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ALAN C. Davis, SBN 38762
DAVIS & REN! ELECTRONICALLY
22 Battery Stost, Suite 800
San Francisco, CA oatit ee
418) 274-8770 (facsimile) 09/20/: a
aland3370@aol.com Clerk of the Court
Attorneys for Plaintiffs/Petitioners Pi pega Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
Case No.: CPF-12-511817
BRUCE JAMES BERGER, KEVIN D. EX PARTE APPLICATION FOR
CHURCHILL, CHARLES C. FRANCO, EDWARD ORDER SHORTENING TIME FOR
LEACH, WILLIAM WEST Ill, MARK WRIGHT, NOTICE AND HEARING ON
and CHARLES A. PATRICK, MOTION FOR ORDER GRANTING
LEAVE TO FILE A
Plaintiffs/Petitioners SUPPLEMENTAL COMPLAINT
v. (Code of Civil Procedure sec. 464);
AMEC CONSTRUCTION MANAGEMENT, INC., DECLARATION OF ALAN C.
AMEC ENVIRONMENTAL & DAVIS IN SUPPORT THEREOF
INFRASTRUCTURE, INC., and CALIFORNIA AND CERTIFICATION RE: NOTICE
DEPARTMENT OF TRANSPORTATION, (CRC Rule 3.1202);
Defendants/Respondents MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EX
PARTE APPLICATION
Date: September 21, 2016
Time: 11:00 am
Dept: 302
Trial Date: December 12, 2016
EX PARTE APPLICATION FOR ORDER SHORTENINGTIME FOR NOTICE
SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE A SUPPLEMENTAL
COMPLAINT
TO: DEFENDANT AND RESPONDENT CALIFORNIA DEPARTMENT OF
TRANSPORTATION, and to its attorneys of record herein:
Plaintiffs/Petitioners BRUCE JAMES BERGER, KEVIN D. CHURCHILL, CHARLES C.
FRANCO, EDWARD LEACH, WILLIAM WEST III, MARK WRIGHT, and CHARLES A. PATRICK
respectfully apply for an order shortening time to serve, file and schedule for hearing, a motion for
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT
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an Order granting leave to file a Supplemental Complaint pursuant to Code of Civil Procedure
section 464.
Good cause exists for this order shortening time in that trial in this case has been scheduled
to be held on December 12, 2016, and the motion sets forth additional claims against the California
Department of Transportation which are material to the case and which occurred after the filing of
the original Complaint on January 11, 2012.
This application will be based on the application; on the Declaration of Alan C. Davis; the
Memorandum of Points and Authorities served and filed herewith; the motion which will be filed
herewith; and on the papers and records on file herein, and on such oral and documentary
evidence as may be presented at the hearing of this motion.
DATED: September 20, 2016
DAVIS & RENO
ds
ALAN. DAV
Attorneys for Plaintiffs/Petitioners
BRUCE JAMES BERGER, et al.
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
“2+DECLARATION OF ALAN C. DAVIS IN Sree ons ore EX PARTE areas FOR ORDER
TION FOR
LEAVE TO FILE A SUPPLEMENT AL COMPLAINT
|, ALAN GC. DAVIS, declare:
1. [tam an attorney at law, licensed to practice before all Courts in the State of California
and am the attorney of record for Plaintiffs/Petitioners BRUCE JAMES BERGER, KEVIN D.
CHURCHILL, CHARLES C. FRANCO, EDWARD LEACH, WILLIAM WEST Ill, MARK WRIGHT, -
and CHARLES A. PATRICK (hereinafter "Plaintiffs").
2. The Supplemental Complaint which | am proposing to file against Defendant
CALIFORNIA DEPARTMENT OF TRANSPORTATION ("CalTrans") comprises additional causes
of action, namely, breach of contract and declaratory relief and is based on the facts set forth in the
following paragraphs. Trial in this case has been set on December 12, 2016, and it is appropriate
that matters that occurred after the action was filed, be heard and decided at trial.
3. Beginning in March, 2015, | had several conversations with CalTrans’ then attorney,
Alice L. Ramsey. On June 20, 2015, attorney Ramsey and | verbally agreed that CalTrans would
pay the prevailing wages due to the Petitioner/Plaintiffs for their off site work, subject to the
understanding that there would be no finding of liability against CalTrans. The verbal agreement
was confirmed by attorney Ramsey in an email dated July 30, 2015. Defendant AMEC'S attorney
Robert Roginson was aware of this agreement and he was copied on the email which confirmed
the settlement. Attached hereto and marked Exhibit A is a true and correct copy of attorney
Ramsey's email to me dated July 30, 2015, which was copied to the attorney for AMEC. This
email was received by me in the ordinary course of business.
4. Based on this agreement | believed that a settlement had been reached and the only
thing that remained was an accounting of the amounts owed to the Plaintiffs and Petitioners based
on documents received from co-defendant AMEC. Thereafter, numerous requests were made by
Defendant CalTrans to Defendant AMEC to obtain accurate records to determine amounts that
were due to the plaintiffs and Petitioners. AMEC, on behalf of itself and its predecessor MACTEC,
submitted some documents to CalTrans. However, as to each of the requests, CalTrans
responded that the amounts submitted by AMEC were not certifiable.
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
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5. | sent emails to AMEC attorney Robert Roginson on February 17, 2016 and March 22,
2016 asking that his client provide accurate and complete records that would permit a resolution of
this case. However each time, CalTrans' attorneys claimed that the, documents were not
satisfactory to CalTrans.
6. On July 14, 2016, attorney Roginson and | received a letter from Aleksandra
Sachowicz, CalTrans' new attorney, advising us, inter alia, that AMEC’s latest submission of
amounts due to my clients was “not helpful’ in an analysis of what wages were paid for which work.
Attorney Sachowicz said that: "{7]hese records fail to indicate with specificity whether the wages
were paid for work done on any specific project, much less a Caltrans project or even project
04A3500 which is referenced in the pleadings as the contract at issue." Attorney Sachowicz also
stated that Respondent's "violations were extensive and repeated" but since all records were not
received, the full extent of the violations could not be ascertained. Attorney Sachowicz went on to
state that would “align itself with the plaintiffs/petitioners to help them determine the full extent of
prevailing wage law violations stemming from the performance of contract 04A3500 at issue in this
case.” Attached hereto and marked Exhibit B is a true and correct copy of a letter that attorney
Sachowicz sent to AMEC'S attorney and to my office. This letter was received by me, in the
ordinary course of business.
7. Co-Defendant AMEC appears to have taken the position that the documents provided
were adequate. However, CalTrans now refuses to honor the settlement agreement to pay
prevailing wages CalTrans' new attorney Aleksandra Sachowicz is claiming that, "she is the sheriff
now' and that she believes that no agreement to pay the prevailing agreement was reached.
8. Based on the foregoing and the fact that plaintiffs had believed that they had a
settlement for payment of the prevailing wages, Plaintiffs and Petitioners seek leave to file a
Supplemental Complaint for breach of contract and specific performance against CalTrans which
had agreed to pay the prevailing wage.
9. — Since trial has been scheduled on December 12, 2016, it is submitted that the
Supplemental Complaint against CalTrans must be heard at the same time as the trial. California
Code of Procedure Section 464 provides for the filing of after occurring facts that are material to
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
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the pending litigation. Resolution of the existence of a settlement agreement between Plaintiffs
and Petitioners will conserve judicial resources, including the Court's time, conserve attorneys’ fees|
and costs if this controversy if tried once.
10. CERTIFICATION RE: NOTICE (CRC Rule 3.1202): Attorney Aleksandra Sachowicz
represents the California Department of Transportation (CalTrans) in this lawsuit. Ms Sachowicz’
address is 1120 N. Street, Sacramento, California; her telephone number is 916-654-2630 and her
email address is aleksandra.sachowicz@dot.ca.gov. On September 20, 2016 at 8:07 a.m., |
telephoned Ms. Sachowicz to advise her of this Ex Parte request for order shortening time for
notice, service and filing of their motion for leave to file a Supplemental Complaint, and that | would
be appearing in this Department at 11:00 am on Wednesday, September 21, in this Department
with this Ex Parte request. No one answered the telephone, but | left a message that | would be
appearing in Department 302 on September 21, 2016, at 11:00 a.m. as | have set forth above. |
followed up my telephone call with an email fo Ms. Sachowicz with the same information as set
forth above. In that email, | asked Ms. Sachowicz to let my office know if she would be appearing
in Department 302 on September 21. At 11:40 a.m. on the morning of September 20, 2016, Ms.
Sachowicz called me on the telephone to advise me that she would be appearing at the Ex Parte
hearing on September 21, 2016.
11. CERTIFICATION RE: NOTICE CRC (Rule 3.1202): Attorneys Carolyn Hall and
Robert Roginson have represented Defendants MACTEC and AMEC in this lawsuit. Ms. Hall's
business address is at Steuart Tower, One Market Plaza, San Francisco. Ms. Hall's telephone
number is 415-442-4810. Ms. Hall's email address is carolyn.hall@ogletreedeakins.com . Mr.
Roginson’s address is 400 South Hope Street, Suite 1200, Los Angeles, California. Mr.
Roginson’s telephone number is 213-239-9800. Mr. Roginson’s email address is
robert.roginson@ogletreedeakins.com. On September 20, 2016, at 8:17 a.m., | called attorney
Carolyn Hall at her telephone number shown above. Ms. Hall answered the call. | told Ms. Hall
that | would be appearing in Department 302 on September 21, 2016, at 11:00 a.m. with Ex
Parte request for order shortening time for notice, service and filing of their motion for leave to file
a Supplemental Complaint against Defendant CalTrans, as | have set forth above. Ms. Hall told
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
“5oO N Da FF wWwHN
10
me that she would call Mr. Roginson and that | did not need to do so. | followed up my
conversation with a confirming email to Ms. Hall and Mr. Roginson. In that email, | asked Ms. Hall
to let my office know if anyone representing AMEC or MACTEC would be appearing in Department
302 on September 21. On 11:02 a.m. on the morning of September 20, 2016, Ms. Hall wrote me
and email stating, in part, that no attorneys for AMEC or MACTEC would appear at the Ex Parte
hearing on the morning of September 21.
| have personal knowledge of the matters testified to herein and could and would
competently testify thereto if called as a witness.
| declare under penalty of perjury that the foregoing is true and correct.
Executed this 20" day of September, 2016, at San Francisco, California.
DAVIS & RI
Cl, Yad,
ALAN C. DAVIS
Attorneys for Plaintiffs/Petitioners
BRUCE JAMES BERGER, et al.
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
6:EXHIBIT ABerger v. California Departmy of Transportation Page | of 1
From: Ramsey, Alice L@DOT
To: AlanD3370
Co; graniab ; robert.roginson ; Mitchell, Richard
J@DOT
Subject: Berger v. California Department of Transportation
Date: Thu, Jul 30, 2015 4:34 pm
Mr. Davis,
This will confirm my conversation with your office regarding the settlement of this case and the
payment of prevailing wages to your clients. As stated in our various conversations, it is not known
at present what the settlement amounts will be, but there will be an accounting of any amounts
owed. The amounts owed are in the process of being determined,
On another note, as you are aware, | am in the process of retiring from Caltrans this month. Richard
Mitchell, an attorney in the Sacramento Legal Office, will be working with you and the Caltrans
Division of Labor Compliance to finalize the settlement documents, once the amounts owed are
determined.
Mr, Mitchell can be contacted at 916-654-2630 or at richard. j. mitchell @dot.ca.gov.
Thank you for your professional courtesy in this matter.
Alice L. Ramsey
Deputy Attorney
California Department of Transportation
1120 N Street
Sacramento, CA 95814
Office (916) 654-2630
Cell (916) 204-1023
Email: Alice Ramsey@dot.ca.gov
HERERO EAR A RSE KARA RRMA HAE
CONFIDENTIALITY NOTICE: This is a privileged attorney-client work product communication. itis
for the sole use of the intended recipient(s). Any unauthorized review, usé, disclosure or distribution
is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and
destroy all copies of the original message. Do not print, copy or forward.
THERESA IER ITER ROSS IIE ATI IIIA IASI RE OIE
EXHIBIT A
hitns://mail aol.com/webmail-std/en-us/PrintMessage 8/11/2015EXHIBIT BEC fF E TRANSPORTATION. EOMUND G. BI
DEPARTMENT OF TRANSPORTATION
LEGAL DIVISION - MS 57
1120 N STREET, SACRAMENTO, CA 95814
P.O. BOX 1438, SACRAMENTO, CA 95812-1438
PHONE (916) 654-2630 Serions drought,
FAX (916) 654-6128 Help save water!
Try 7u
July 14, 2016
Alan C. Davis, Esq.
Davis & Reno
22 Battery Street, Suite 800
San Francisco, CA 94111
Email: AlanD3370@aol.com
Robert R. Roginson, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Email: robert.coginson@ogletreedeakins.com
RE: Bruce James Berger etc. v. Amec Construction Management, Inc. et al.
San Francisco County Superior Court Case No: CPF-12-511817
Gentlemen,
As you both know by now, I have taken over the representation of the California
Department of Transportation (“Caltrans”) in the above captioned matter. I have had a chance to
discuss this case with my predecessors, Alice Ramsey and Richard Mitchell, and with both of
you. I have completed my review of the case file and court records and I am confident that I
have possession, and full grasp of all the prior pleadings and discovery.
It is my understanding that, a number of years ago, my colleague Alice Ramsey broached
preliminary settlement discussions with the idea of globally resolving this matter and avoiding
full litigation on the merits. And only recently, Amec furnished ceriain records and
documentation to Richard Mitchell which were labeled confidential and “for settlement purposes
only.” Ihave furnished these records to my client’s staff (the Caltrans Labor Compliance
Program employees). The Labor Compliance staff determined recently furnished records were
“not helpful” in any way in the analysis of what wages were paid for which work. Primarily,
these records fail to indicate with specificity whether the wages wete paid for work done on any
specific project, much less a Caltrans project or even project 0443500 which is referenced in the
“Provide a safe, sustainable, integrated and efficient transportation sistem
To enhance California's economy and livability"
EXHIBIT BMr. Davis and Mr. Roginson
July 14, 2016
Page 2
pleadings as the contract at issue.
Contract No. 04A3500 between Caltrans and Mactec Engineering and Consulting was in
effect between July 1, 2010 and August 31, 2013. During the term of said contract, Mactec
furnished to Caltrans various labor records which were required, by the terms of the contract, to
be submitted to Caltrans. My client has commenced the review and audit of the records
submitted pursuant to the contract requirements to the District 4 staff. Although my client’s
teview/audit has not been completed, it is already apparent that Mactec and Amec (as its
Successor in interest) failed to pay wages at correct prevailing wage rates for work that was
clearly covered ( i.e, work performed “on-site” meaning on the locations of Caltrans construction
projects). My client expects to complete its review/audit in two weeks. The full extent of
Mactec’s non-compliance with prevailing wage laws will be known once the review/audit is
completed, but it is already apparent that the violations were extensive and repeated.
Unfortunately, my client will be unable to bring any enforcement action before the Department
of Industrial Relations (DIR) because the statute of limitations pursuant to Labor Code section
174} expired on February 13,2014.
This discovery of Mactec’s and Amec’s errant practices precludes Caltrans from
engaging in any settlement discussions. Legally Caltrans is not in any position to pay the
plaintiffs/petitioners or Amec any moneys. Caltrans stands in a very unique and special position
in this litigation by virtue of having what is known as a “delegated Labor Compliance Program.”
In accordance with Title 8 of the California Code of Regulations, section 16455, Caltrans has
DIR approval to operate its own Labor Compliance Program (ID No. 010) in lieu of paying the
Department of Industrial Relations for compliance monitoring and enforcement. This
approval/exemption remains in effect as long as Caltrans continues compliance with its legal
obligations and responsibilities as an approved labor compliance program underTitle 8 of the
California Code of Regulations, sections 16421 through 16439. Currently, Caltrans is the only
State agency with an approved Labor Compliance Program. Caltrans cannot, and will not, do
anything to jeopardize its Labor Compliance Program’s good standing with the DIR.
Since it is Caltrans’ statutory and regulatory mandate to monitor, detect, enforce, and
penalize violations of prevailing wage laws, payment of any money to the plaintiffs as
compensation for Mactec’s and/or Amec’s errant labor practices is out of the question, Any
payment by Caltrans in this case would constitute a violation of Caltrans’ labor compliance
program’s obligations and put the continued existence of the program at significant risk,
Prevailing wage determinations and DIR guidelines for both on-site and off-site work must be
strictly adhered to by Caltrans, Consequently, on the issue of the eligibility of the plaintiffs for
prevailing wages for inspections and steel quality control performed at locations other than the
Caltrans project and project-dedicated facilities, Caltrans was required to follow and it did follow
the rules and principles set forth by DIR. Caltrans is therefore not legally able to take the
“Provide a safe, sustanable, integrated and efficient transportation system
To enhance California's economy and tivabHity”Mr. Davis and Mr. Roginson
July 14, 2016
Page 3
position that DIR guidance on the issue of off-site work was wrong and settle with the plaintiffs
on that issue. For the same set of reasons, Caltrans has no alternative but to align itself with the
plaintiffs/petitioners to help them determine the full extent of prevailing wage law violations
stemming from the performance of contract 0443500 at issue in this case.
I look forward to working with you on bringing this matter to litigation. As I indicated to
both of you, I will stipulate to Mr. Davis’ request for an extension of the five year trial
limitations period. I will also gladly work with both of you in preparing and presenting a
stipulated administrative record in order to avoid the duplication of costs and records involved in
preparing separate records. I hope all parties can work cooperatively to efficiently and
expeditiously prosecute this case.
Sincerely,
Ni thngue2 SAchovn'—
Aleksandra C. Sachowicz
Caltrans Deputy Attorney IV
Ce: Pat Maloney, Caltrans Labor Compliance Program
“Provide a safe, sustainable, integrated and efficlent transporistian.sysiom
To enhance California's economy avid livability”oMON OAR OD
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING
7 LEAVE TO FIL ITAL COMPLAINT
A. THE COURT IS AUTHORIZED TO SHORTEN TIME FOR NOTICE AND HEARING OF
THE PROPOSED MOTION:
Code Civ, Proc. § 1005 prescribes the times for written notice of motions and for the
service and filing of supporting and opposing papers, However Code Civ. Proc. § 1005(b)
provides that “[t]he court, or a judge thereof, may prescribe a shorter time” than otherwise
prescribed in § 1005.
California Rules of Court rule 3.1300(b) states: The court, on its own motion or an
application for an order shortening time supported by a declaration showing good cause, may
prescribe shorter times for the filing and service of papers than the time specified in Code of
Civil Procedure section 1005.
As stated in the Application and Declaration of Alan C. Davis submitted herewith, good
cause exists to shorten time for the hearing on Plaintiffs’ Motion for Leave to File a
Supplemental Complaint. Trial has been scheduled on December 12, 2016, and Plaintiffs
believe that all pertinent matters, including the settlement agreement with CalTrans should be
determined in a single trial, to avoid a multiplicity of lawsuits.
B. EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES:
An applicant must make an affirmative factual showing in a declaration containing
competent testimony based on personal knowledge of irreparable harm, immediate danger, or
any other statutory basis for granting relief ex parte. California Rules of Court, rule 3.1202( c)
Cc. COUNSEL HAS COMPLIED WITH CALIFORNIA RULES OF COURT, RULES
3.1203 AND 3.1204:
Among other provisions, California Rules of Court rule 3.1203provides as follows: A
party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day
before the ex parte appearance, absent a showing of exceptional circumstances that justify a
shorter time for notice. California Rules of Court rule 3.1203(a).
As stated in the Declaration of Alan C. Davis filed herewith, counsel has duly complied
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
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with the notice requirements of California Rules of Court rule 3.1203(a) and California Rules of
Court rule 3.1204(b). Counsel for Defendant CalTrans and counsel for co-defendant AMEC
and MACTEC have been duly informed that the application will be heard on September 21,
2016 in Department 302 at 11:00 a.m. CalTrans attorney, Aleksandra Sachowicz, has
advised the attorney for Plaintiffs and Petitioners that she will appear at the Ex Parte hearing.
Carolyn Hall, one of the attorneys for Defendants AMEC and MACTEC have advised Plaintiffs
and Petitioners counsel that they will not appear at the Ex Parte hearing.
D. CONCLUSION
In view of the foregoing facts and authorities, and the matters set forth in the
Declaration of Alan C. Davis filed herewith, Plaintiffs hereby submit that good cause exists for
an ex parte Order shortening time for notice and hearing on their Motion for Leave to File a
Supplemental Complaint.
DATED: September 20, 2016
DAVIS & RENO
4
ALAN C: IS
Attorneys for Plaintiffs/Petitioners
BRUCE JAMES BERGER, et al.
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE
AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT
-8-
Preview
oon OO BRB WDNY = we NMNNYNMNY NY NYDN DN BB Be Bw we BB Ba | ont @2akK © NHN 32 CoO ON DAB WH |= CO ALAN C. Davis, SBN 38762 DAVIS & REN! ELECTRONICALLY 22 Battery Stost, Suite 800 San Francisco, CA oatit ee 418) 274-8770 (facsimile) 09/20/: a aland3370@aol.com Clerk of the Court Attorneys for Plaintiffs/Petitioners Pi pega Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO Case No.: CPF-12-511817 BRUCE JAMES BERGER, KEVIN D. EX PARTE APPLICATION FOR CHURCHILL, CHARLES C. FRANCO, EDWARD ORDER SHORTENING TIME FOR LEACH, WILLIAM WEST Ill, MARK WRIGHT, NOTICE AND HEARING ON and CHARLES A. PATRICK, MOTION FOR ORDER GRANTING LEAVE TO FILE A Plaintiffs/Petitioners SUPPLEMENTAL COMPLAINT v. (Code of Civil Procedure sec. 464); AMEC CONSTRUCTION MANAGEMENT, INC., DECLARATION OF ALAN C. AMEC ENVIRONMENTAL & DAVIS IN SUPPORT THEREOF INFRASTRUCTURE, INC., and CALIFORNIA AND CERTIFICATION RE: NOTICE DEPARTMENT OF TRANSPORTATION, (CRC Rule 3.1202); Defendants/Respondents MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION Date: September 21, 2016 Time: 11:00 am Dept: 302 Trial Date: December 12, 2016 EX PARTE APPLICATION FOR ORDER SHORTENINGTIME FOR NOTICE SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT TO: DEFENDANT AND RESPONDENT CALIFORNIA DEPARTMENT OF TRANSPORTATION, and to its attorneys of record herein: Plaintiffs/Petitioners BRUCE JAMES BERGER, KEVIN D. CHURCHILL, CHARLES C. FRANCO, EDWARD LEACH, WILLIAM WEST III, MARK WRIGHT, and CHARLES A. PATRICK respectfully apply for an order shortening time to serve, file and schedule for hearing, a motion for EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT AeomOmnt anaer wn = wN MN NH NHN NH NY SB Sse Ba sa sa a as sa a en Oa BF ON BS GO eae NOAA KRDSNH SF STS an Order granting leave to file a Supplemental Complaint pursuant to Code of Civil Procedure section 464. Good cause exists for this order shortening time in that trial in this case has been scheduled to be held on December 12, 2016, and the motion sets forth additional claims against the California Department of Transportation which are material to the case and which occurred after the filing of the original Complaint on January 11, 2012. This application will be based on the application; on the Declaration of Alan C. Davis; the Memorandum of Points and Authorities served and filed herewith; the motion which will be filed herewith; and on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of this motion. DATED: September 20, 2016 DAVIS & RENO ds ALAN. DAV Attorneys for Plaintiffs/Petitioners BRUCE JAMES BERGER, et al. EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT “2+DECLARATION OF ALAN C. DAVIS IN Sree ons ore EX PARTE areas FOR ORDER TION FOR LEAVE TO FILE A SUPPLEMENT AL COMPLAINT |, ALAN GC. DAVIS, declare: 1. [tam an attorney at law, licensed to practice before all Courts in the State of California and am the attorney of record for Plaintiffs/Petitioners BRUCE JAMES BERGER, KEVIN D. CHURCHILL, CHARLES C. FRANCO, EDWARD LEACH, WILLIAM WEST Ill, MARK WRIGHT, - and CHARLES A. PATRICK (hereinafter "Plaintiffs"). 2. The Supplemental Complaint which | am proposing to file against Defendant CALIFORNIA DEPARTMENT OF TRANSPORTATION ("CalTrans") comprises additional causes of action, namely, breach of contract and declaratory relief and is based on the facts set forth in the following paragraphs. Trial in this case has been set on December 12, 2016, and it is appropriate that matters that occurred after the action was filed, be heard and decided at trial. 3. Beginning in March, 2015, | had several conversations with CalTrans’ then attorney, Alice L. Ramsey. On June 20, 2015, attorney Ramsey and | verbally agreed that CalTrans would pay the prevailing wages due to the Petitioner/Plaintiffs for their off site work, subject to the understanding that there would be no finding of liability against CalTrans. The verbal agreement was confirmed by attorney Ramsey in an email dated July 30, 2015. Defendant AMEC'S attorney Robert Roginson was aware of this agreement and he was copied on the email which confirmed the settlement. Attached hereto and marked Exhibit A is a true and correct copy of attorney Ramsey's email to me dated July 30, 2015, which was copied to the attorney for AMEC. This email was received by me in the ordinary course of business. 4. Based on this agreement | believed that a settlement had been reached and the only thing that remained was an accounting of the amounts owed to the Plaintiffs and Petitioners based on documents received from co-defendant AMEC. Thereafter, numerous requests were made by Defendant CalTrans to Defendant AMEC to obtain accurate records to determine amounts that were due to the plaintiffs and Petitioners. AMEC, on behalf of itself and its predecessor MACTEC, submitted some documents to CalTrans. However, as to each of the requests, CalTrans responded that the amounts submitted by AMEC were not certifiable. EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT 3o DWN OH BP WH = Rw NNN NY NNN YD = BS B= ease sa aaa os er ®9 aK ON SOC O ABN DAB WH |= OO 5. | sent emails to AMEC attorney Robert Roginson on February 17, 2016 and March 22, 2016 asking that his client provide accurate and complete records that would permit a resolution of this case. However each time, CalTrans' attorneys claimed that the, documents were not satisfactory to CalTrans. 6. On July 14, 2016, attorney Roginson and | received a letter from Aleksandra Sachowicz, CalTrans' new attorney, advising us, inter alia, that AMEC’s latest submission of amounts due to my clients was “not helpful’ in an analysis of what wages were paid for which work. Attorney Sachowicz said that: "{7]hese records fail to indicate with specificity whether the wages were paid for work done on any specific project, much less a Caltrans project or even project 04A3500 which is referenced in the pleadings as the contract at issue." Attorney Sachowicz also stated that Respondent's "violations were extensive and repeated" but since all records were not received, the full extent of the violations could not be ascertained. Attorney Sachowicz went on to state that would “align itself with the plaintiffs/petitioners to help them determine the full extent of prevailing wage law violations stemming from the performance of contract 04A3500 at issue in this case.” Attached hereto and marked Exhibit B is a true and correct copy of a letter that attorney Sachowicz sent to AMEC'S attorney and to my office. This letter was received by me, in the ordinary course of business. 7. Co-Defendant AMEC appears to have taken the position that the documents provided were adequate. However, CalTrans now refuses to honor the settlement agreement to pay prevailing wages CalTrans' new attorney Aleksandra Sachowicz is claiming that, "she is the sheriff now' and that she believes that no agreement to pay the prevailing agreement was reached. 8. Based on the foregoing and the fact that plaintiffs had believed that they had a settlement for payment of the prevailing wages, Plaintiffs and Petitioners seek leave to file a Supplemental Complaint for breach of contract and specific performance against CalTrans which had agreed to pay the prevailing wage. 9. — Since trial has been scheduled on December 12, 2016, it is submitted that the Supplemental Complaint against CalTrans must be heard at the same time as the trial. California Code of Procedure Section 464 provides for the filing of after occurring facts that are material to EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT -4-oc MOnNt Dak WHY = MMM N NY HH NH NY |S BB BB ew a aw s&s oe enN O29 AK ON BS SG OH AN DAB WDOH SFOS the pending litigation. Resolution of the existence of a settlement agreement between Plaintiffs and Petitioners will conserve judicial resources, including the Court's time, conserve attorneys’ fees| and costs if this controversy if tried once. 10. CERTIFICATION RE: NOTICE (CRC Rule 3.1202): Attorney Aleksandra Sachowicz represents the California Department of Transportation (CalTrans) in this lawsuit. Ms Sachowicz’ address is 1120 N. Street, Sacramento, California; her telephone number is 916-654-2630 and her email address is aleksandra.sachowicz@dot.ca.gov. On September 20, 2016 at 8:07 a.m., | telephoned Ms. Sachowicz to advise her of this Ex Parte request for order shortening time for notice, service and filing of their motion for leave to file a Supplemental Complaint, and that | would be appearing in this Department at 11:00 am on Wednesday, September 21, in this Department with this Ex Parte request. No one answered the telephone, but | left a message that | would be appearing in Department 302 on September 21, 2016, at 11:00 a.m. as | have set forth above. | followed up my telephone call with an email fo Ms. Sachowicz with the same information as set forth above. In that email, | asked Ms. Sachowicz to let my office know if she would be appearing in Department 302 on September 21. At 11:40 a.m. on the morning of September 20, 2016, Ms. Sachowicz called me on the telephone to advise me that she would be appearing at the Ex Parte hearing on September 21, 2016. 11. CERTIFICATION RE: NOTICE CRC (Rule 3.1202): Attorneys Carolyn Hall and Robert Roginson have represented Defendants MACTEC and AMEC in this lawsuit. Ms. Hall's business address is at Steuart Tower, One Market Plaza, San Francisco. Ms. Hall's telephone number is 415-442-4810. Ms. Hall's email address is carolyn.hall@ogletreedeakins.com . Mr. Roginson’s address is 400 South Hope Street, Suite 1200, Los Angeles, California. Mr. Roginson’s telephone number is 213-239-9800. Mr. Roginson’s email address is robert.roginson@ogletreedeakins.com. On September 20, 2016, at 8:17 a.m., | called attorney Carolyn Hall at her telephone number shown above. Ms. Hall answered the call. | told Ms. Hall that | would be appearing in Department 302 on September 21, 2016, at 11:00 a.m. with Ex Parte request for order shortening time for notice, service and filing of their motion for leave to file a Supplemental Complaint against Defendant CalTrans, as | have set forth above. Ms. Hall told EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT “5oO N Da FF wWwHN 10 me that she would call Mr. Roginson and that | did not need to do so. | followed up my conversation with a confirming email to Ms. Hall and Mr. Roginson. In that email, | asked Ms. Hall to let my office know if anyone representing AMEC or MACTEC would be appearing in Department 302 on September 21. On 11:02 a.m. on the morning of September 20, 2016, Ms. Hall wrote me and email stating, in part, that no attorneys for AMEC or MACTEC would appear at the Ex Parte hearing on the morning of September 21. | have personal knowledge of the matters testified to herein and could and would competently testify thereto if called as a witness. | declare under penalty of perjury that the foregoing is true and correct. Executed this 20" day of September, 2016, at San Francisco, California. DAVIS & RI Cl, Yad, ALAN C. DAVIS Attorneys for Plaintiffs/Petitioners BRUCE JAMES BERGER, et al. EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT 6:EXHIBIT ABerger v. California Departmy of Transportation Page | of 1 From: Ramsey, Alice L@DOT To: AlanD3370 Co; graniab ; robert.roginson ; Mitchell, Richard J@DOT Subject: Berger v. California Department of Transportation Date: Thu, Jul 30, 2015 4:34 pm Mr. Davis, This will confirm my conversation with your office regarding the settlement of this case and the payment of prevailing wages to your clients. As stated in our various conversations, it is not known at present what the settlement amounts will be, but there will be an accounting of any amounts owed. The amounts owed are in the process of being determined, On another note, as you are aware, | am in the process of retiring from Caltrans this month. Richard Mitchell, an attorney in the Sacramento Legal Office, will be working with you and the Caltrans Division of Labor Compliance to finalize the settlement documents, once the amounts owed are determined. Mr, Mitchell can be contacted at 916-654-2630 or at richard. j. mitchell @dot.ca.gov. Thank you for your professional courtesy in this matter. Alice L. Ramsey Deputy Attorney California Department of Transportation 1120 N Street Sacramento, CA 95814 Office (916) 654-2630 Cell (916) 204-1023 Email: Alice Ramsey@dot.ca.gov HERERO EAR A RSE KARA RRMA HAE CONFIDENTIALITY NOTICE: This is a privileged attorney-client work product communication. itis for the sole use of the intended recipient(s). Any unauthorized review, usé, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Do not print, copy or forward. THERESA IER ITER ROSS IIE ATI IIIA IASI RE OIE EXHIBIT A hitns://mail aol.com/webmail-std/en-us/PrintMessage 8/11/2015EXHIBIT BEC fF E TRANSPORTATION. EOMUND G. BI DEPARTMENT OF TRANSPORTATION LEGAL DIVISION - MS 57 1120 N STREET, SACRAMENTO, CA 95814 P.O. BOX 1438, SACRAMENTO, CA 95812-1438 PHONE (916) 654-2630 Serions drought, FAX (916) 654-6128 Help save water! Try 7u July 14, 2016 Alan C. Davis, Esq. Davis & Reno 22 Battery Street, Suite 800 San Francisco, CA 94111 Email: AlanD3370@aol.com Robert R. Roginson, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Email: robert.coginson@ogletreedeakins.com RE: Bruce James Berger etc. v. Amec Construction Management, Inc. et al. San Francisco County Superior Court Case No: CPF-12-511817 Gentlemen, As you both know by now, I have taken over the representation of the California Department of Transportation (“Caltrans”) in the above captioned matter. I have had a chance to discuss this case with my predecessors, Alice Ramsey and Richard Mitchell, and with both of you. I have completed my review of the case file and court records and I am confident that I have possession, and full grasp of all the prior pleadings and discovery. It is my understanding that, a number of years ago, my colleague Alice Ramsey broached preliminary settlement discussions with the idea of globally resolving this matter and avoiding full litigation on the merits. And only recently, Amec furnished ceriain records and documentation to Richard Mitchell which were labeled confidential and “for settlement purposes only.” Ihave furnished these records to my client’s staff (the Caltrans Labor Compliance Program employees). The Labor Compliance staff determined recently furnished records were “not helpful” in any way in the analysis of what wages were paid for which work. Primarily, these records fail to indicate with specificity whether the wages wete paid for work done on any specific project, much less a Caltrans project or even project 0443500 which is referenced in the “Provide a safe, sustainable, integrated and efficient transportation sistem To enhance California's economy and livability" EXHIBIT BMr. Davis and Mr. Roginson July 14, 2016 Page 2 pleadings as the contract at issue. Contract No. 04A3500 between Caltrans and Mactec Engineering and Consulting was in effect between July 1, 2010 and August 31, 2013. During the term of said contract, Mactec furnished to Caltrans various labor records which were required, by the terms of the contract, to be submitted to Caltrans. My client has commenced the review and audit of the records submitted pursuant to the contract requirements to the District 4 staff. Although my client’s teview/audit has not been completed, it is already apparent that Mactec and Amec (as its Successor in interest) failed to pay wages at correct prevailing wage rates for work that was clearly covered ( i.e, work performed “on-site” meaning on the locations of Caltrans construction projects). My client expects to complete its review/audit in two weeks. The full extent of Mactec’s non-compliance with prevailing wage laws will be known once the review/audit is completed, but it is already apparent that the violations were extensive and repeated. Unfortunately, my client will be unable to bring any enforcement action before the Department of Industrial Relations (DIR) because the statute of limitations pursuant to Labor Code section 174} expired on February 13,2014. This discovery of Mactec’s and Amec’s errant practices precludes Caltrans from engaging in any settlement discussions. Legally Caltrans is not in any position to pay the plaintiffs/petitioners or Amec any moneys. Caltrans stands in a very unique and special position in this litigation by virtue of having what is known as a “delegated Labor Compliance Program.” In accordance with Title 8 of the California Code of Regulations, section 16455, Caltrans has DIR approval to operate its own Labor Compliance Program (ID No. 010) in lieu of paying the Department of Industrial Relations for compliance monitoring and enforcement. This approval/exemption remains in effect as long as Caltrans continues compliance with its legal obligations and responsibilities as an approved labor compliance program underTitle 8 of the California Code of Regulations, sections 16421 through 16439. Currently, Caltrans is the only State agency with an approved Labor Compliance Program. Caltrans cannot, and will not, do anything to jeopardize its Labor Compliance Program’s good standing with the DIR. Since it is Caltrans’ statutory and regulatory mandate to monitor, detect, enforce, and penalize violations of prevailing wage laws, payment of any money to the plaintiffs as compensation for Mactec’s and/or Amec’s errant labor practices is out of the question, Any payment by Caltrans in this case would constitute a violation of Caltrans’ labor compliance program’s obligations and put the continued existence of the program at significant risk, Prevailing wage determinations and DIR guidelines for both on-site and off-site work must be strictly adhered to by Caltrans, Consequently, on the issue of the eligibility of the plaintiffs for prevailing wages for inspections and steel quality control performed at locations other than the Caltrans project and project-dedicated facilities, Caltrans was required to follow and it did follow the rules and principles set forth by DIR. Caltrans is therefore not legally able to take the “Provide a safe, sustanable, integrated and efficient transportation system To enhance California's economy and tivabHity”Mr. Davis and Mr. Roginson July 14, 2016 Page 3 position that DIR guidance on the issue of off-site work was wrong and settle with the plaintiffs on that issue. For the same set of reasons, Caltrans has no alternative but to align itself with the plaintiffs/petitioners to help them determine the full extent of prevailing wage law violations stemming from the performance of contract 0443500 at issue in this case. I look forward to working with you on bringing this matter to litigation. As I indicated to both of you, I will stipulate to Mr. Davis’ request for an extension of the five year trial limitations period. I will also gladly work with both of you in preparing and presenting a stipulated administrative record in order to avoid the duplication of costs and records involved in preparing separate records. I hope all parties can work cooperatively to efficiently and expeditiously prosecute this case. Sincerely, Ni thngue2 SAchovn'— Aleksandra C. Sachowicz Caltrans Deputy Attorney IV Ce: Pat Maloney, Caltrans Labor Compliance Program “Provide a safe, sustainable, integrated and efficlent transporistian.sysiom To enhance California's economy avid livability”oMON OAR OD NN NN DY NNN YN BS BSB me ew ew a a a aw om en” OA fF GOGH 3S FO BN DAR WDOH BS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING 7 LEAVE TO FIL ITAL COMPLAINT A. THE COURT IS AUTHORIZED TO SHORTEN TIME FOR NOTICE AND HEARING OF THE PROPOSED MOTION: Code Civ, Proc. § 1005 prescribes the times for written notice of motions and for the service and filing of supporting and opposing papers, However Code Civ. Proc. § 1005(b) provides that “[t]he court, or a judge thereof, may prescribe a shorter time” than otherwise prescribed in § 1005. California Rules of Court rule 3.1300(b) states: The court, on its own motion or an application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the time specified in Code of Civil Procedure section 1005. As stated in the Application and Declaration of Alan C. Davis submitted herewith, good cause exists to shorten time for the hearing on Plaintiffs’ Motion for Leave to File a Supplemental Complaint. Trial has been scheduled on December 12, 2016, and Plaintiffs believe that all pertinent matters, including the settlement agreement with CalTrans should be determined in a single trial, to avoid a multiplicity of lawsuits. B. EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES: An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. California Rules of Court, rule 3.1202( c) Cc. COUNSEL HAS COMPLIED WITH CALIFORNIA RULES OF COURT, RULES 3.1203 AND 3.1204: Among other provisions, California Rules of Court rule 3.1203provides as follows: A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice. California Rules of Court rule 3.1203(a). As stated in the Declaration of Alan C. Davis filed herewith, counsel has duly complied EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT -T-CON DH BR ON = NNN YY HY NY NY NY NY |S |= |= SB SF se se a a= | ent OoOnak © NY 3S SC ONDA BR ONH SF SD with the notice requirements of California Rules of Court rule 3.1203(a) and California Rules of Court rule 3.1204(b). Counsel for Defendant CalTrans and counsel for co-defendant AMEC and MACTEC have been duly informed that the application will be heard on September 21, 2016 in Department 302 at 11:00 a.m. CalTrans attorney, Aleksandra Sachowicz, has advised the attorney for Plaintiffs and Petitioners that she will appear at the Ex Parte hearing. Carolyn Hall, one of the attorneys for Defendants AMEC and MACTEC have advised Plaintiffs and Petitioners counsel that they will not appear at the Ex Parte hearing. D. CONCLUSION In view of the foregoing facts and authorities, and the matters set forth in the Declaration of Alan C. Davis filed herewith, Plaintiffs hereby submit that good cause exists for an ex parte Order shortening time for notice and hearing on their Motion for Leave to File a Supplemental Complaint. DATED: September 20, 2016 DAVIS & RENO 4 ALAN C: IS Attorneys for Plaintiffs/Petitioners BRUCE JAMES BERGER, et al. EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE, SERVICE AND HEARING ON MOTION FOR LEAVE TO FILE ASUPPLEMENTAL COMPLAINT -8-