Biography
Elaine Fresch's primary focus is construction defect litigation, representing developers and general contractors, as well as all types of subcontractors and construction product manufacturers. One of her primary goals has been to develop ways to aggressively defend her clients in a cost-effective manner, including formatting and operating successful joint defense agreements.
While it is rare to take a complex construction defect case to trial, Elaine has done so and has handled a variety of complex commercial/real estate litigation matters, including trial in the U.S. District Court. Elaine has also arbitrated construction cases successfully over the years including a defense award for her client over contractual obligations claimed by the plaintiff. She is aggressive in her pursuit of settlement on terms that are cost effective and strategically sound for her clients. Additionally, Elaine represents product manufacturers in complex subrogation claims, as well as defends a variety of clients in general liability and construction accident lawsuits.
With an established Equine Law practice, Elaine is one of few in the country who, not only fully understands the complexities of horse-related cases and claims, but who is also a trained and awarded equestrian who actively competes. In this capacity, Elaine regularly advises clients on their contracts and releases and litigates matters ranging from personal injury to contract claims relating to purchases, sales, and loss-of-use.
Elaine is a member of CLM’s Construction Advisory Board and is a Co-Chair of CLM’s Diversity and Inclusion Committee. She has been invited to speak at numerous seminars sponsored by such organizations as CLM, West Coast Casualty, Perrin, and DRI on a variety of topics related to the construction industry and the defense of construction defect cases. She is also a Charter Fellow of the Construction Lawyers Society of America and a Senior Fellow of the Litigation Counsel of America. Elaine has been honored with the Larry Syhre Commitment to Service Award for her contributions to the construction industry.
Representative Experience
- Successfully defended David Copperfield in a 7-week liability jury trial in Clark County, Nevada wherein Plaintiff alleged he was injured during his voluntary participation in one of Mr. Copperfield’s illusions at his show in Las Vegas. Recently the Nevada Supreme Court affirmed in a published opinion the jury verdict after two oral arguments by Elaine and other defense counsel.
- Successfully defended an interpretive artist against a licensee of art’s allegations of defamation, breach of contract and confidentiality in a binding JAMS arbitration wherein the client was awarded $316,547.72 in sanctions and related fees and costs due to Elaine establishing that the cross-claimant had forged a contract and had manipulated and spoliated financial records.
- Successfully defended an international construction product manufacturer in a binding JAMS arbitration brought by a national home builder regarding the contractual terms of a national purchase agreement which the builder claimed had been breached.
- Successfully settled a case brought by multiple homeowners alleging construction defects against a regional home builder wherein Elaine secured the subcontractor contributions to the settlement at 100% and her client secured defense reimbursements. Elaine’s client did not contribute any monies to the global settlement with the Plaintiffs.
- Successfully opposed a motion for class certification in Washington State against her client an international construction product manufacturer and won a summary judgment motion to dismiss the related CPA claims.
- Successfully resolved a claim in Nevada against her general contractor client in a pre-litigation claim for extensive water damage at a strip hotel in Las Vegas, wherein through the tender under an additional insured endorsement, was able to have the AI carrier pay several settlements with the hotel and commercial tenants and remediation contractors.
- Had a demurrer sustained without leave to amend to the second amended complaint in an action where Plaintiff, an exerciser rider, claimed he was injured when the client’s horse, which he owned and trained, collided with Plaintiff’s horse during a training session at Santa Anita Park. The basis for the demurrer was primary assumption of risk.
- Secured a Court of Appeal decision affirming the granting of a summary judgment motion against her client a polo player based on primary assumption of risk wherein a plaintiff child was struck by a ball that her client had hit during a professional polo game.
- Has a published appellate opinion Swigart v Bruno (2017) 13 Cal. App. 5th wherein the California Court of Appeals affirmed the granting of a summary judgement motion in favor of Elaine’s client, an endurance rider. Plaintiff a co participant endurance rider during a timed competitive ride was injured when the client’s horse spooked leading to the client falling off and the horse colliding with Plaintiff who had dismounted from her horse at the time. The basis for the summary judgment ruling was primary assumption of risk and is now cited under the CACI jury instruction for primary assumption of risk comments section.
- Part of the trial team and litigated an action brought against a riding school by a Plaintiff minor who fell off her horse during summer camp after going over a jump. The case went to jury wherein the jury returned a defense verdict for the firm’s clients the school and instructor. The trial court upheld the written waiver of liability signed by the Plaintiff’s mother and the jury decided the claim of gross negligence in favor of the clients. Due to an Offer of Judgment being served early in the litigation, the clients were awarded nearly $100,000 in expert fees and costs.
Education
- University of San Diego School of Law (J.D.)
- University of California, Los Angeles (A.B., cum laude)
- Pi Gamma Mu
Bar Admissions
Courts
- U.S. Court of Appeals for the Ninth Circuit
- U.S. District Court for the Central District of California
- U.S. District Court for the District of Nevada
Professional Affiliations
- Claims Litigation Management (CLM)
- CLM Construction Committee
- Education Subcommittee, Co-Chair
- Diversity in Construction Litigation (DCL), Executive Director
- Defense Research Institute (DRI)
- Trial Law Institute
- Diversity Law Institute
- Association of Southern California Defense Counsel
- Litigation Counsel of America (LCA), Senior Fellow
- American Bar Association (ABA)
- ABA Tort Trial & Insurance Practice Section
- Equine Subcommittee
- USHJA-Owners Task Force Committee, Member (Appointed) 2015 – 2017
- Joint Amateur Task Force Committee, Member (Appointed) 2012 – 2014
Honors
- Daily Journal,Top 100 Women in California
- Syhre Award
- Super Lawyers: 2006-2007, 2009-2023
- Top 50 Women Southern California, 2014-2023
- Top 100 Southern California, 2015, 2020
- Rated AV Preeminent® by Martindale-Hubbell​​
- Construction Lawyers Society of America (CLSA), Charter Fellow
Elaine was the recipient of a special award at West Coast Casualty's CD Seminar recognizing her commitment to the industry and has been featured in Forbes magazine in their "Outlook - Los Angeles Legal Section" regarding her expertise on construction issues. She was also featured in a Los Angeles Daily Journal article regarding noted construction defect lawyers in Southern California. She is a past recipient of the Syhre Award for her commitment to service and education within the construction law industry and frequently writes articles and commentaries on recent changes in construction law. Elaine is a founding director of Diversity in Construction Litigation (DCL), formerly named Women's Construction Litigation Alliance (WCLA), a non-profit organization.
An avid horsewoman, Elaine competes in the jumper division at nationally recognized horse shows in the United States and Canada in her spare time. She is actively involved in the equestrian community as a result of her equine law practice, as well as her show jumping pursuits. She is an active member of the U.S. Equestrian Federation, the United States Hunter Jumper Association (USHJA), and the Pacific Coast Horse Show Association. Elaine previously served on the USHJA's Joint Amateur Task Force Committee and is currently serving on the Owners Task Force Committee, to which she was appointed. She is a former officer on the board of directors of the West Coast Active Riders, a non-profit organization, and has been a speaker at industry seminars.
Named to the Daily Journal’s 2016 “Top 100 Women Lawyers in California” list, the “Top 50 Women in Southern California” list from Super Lawyers (2014-2022), and the National Law Journal's list of Real Estate/Construction Law Trailblazers (2021)