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1 JASON H. ANDERSON, State Bar No. 172087
janderson@stradlinglaw.com
2 ANDREW B. MASON, State Bar No. 317944
amason@stradlinglaw.com
3 STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
4 660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660-6422
5 Telephone: 949 725 4000
Facsimile: 949 725 4100
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Attorneys for Plaintiff
7 THOMAS KOPITNIK
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA - COOK
10 THOMAS KOPITNIK, an individual, CASE NO. 21CV02266
11 Plaintiff, Honorable James F Rigali.
Dept. SM2
12 vs.
PLAINTIFF THOMAS KOPITNIK’S
13 CLEARVIEW PROPERTY SERVICES, INC. a REQUEST FOR JUDICIAL NOTICE
California corporation; CHRISTOPHER IN SUPPORT OF HIS MOTION TO
14 HULME, and individual; and, DOES COMPEL COMPLIANCE WITH
1,THROUGH 10, THIS COURT’S ORDER DATED
15 JULY 14, 2022
Defendant.
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Hearing:
17 Date: December 13, 2022
Time: 8:30 a.m.
18 Location: Dept. SM2
312-C East Cook Street
19 Santa Maria, CA 93454
20 Complaint Filed: June 8, 2021
Trial Confirmation: March 13, 2023
21 Trial Date: April 24, 2023
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REQUEST FOR JUDICIAL NOTICE
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1 Pursuant to California Evidence Code Section 452, and in support of his Motion to
2 Compel Compliance with the Court’s Discovery Order dated February 9, 2022, filed
3 concurrently herewith, Plaintiff Thomas Kopitnik, M.D., (“Plaintiff”) respectfully request that
4 this Court take judicial notice of the following official records of this state. Pursuant to
5 California Code of Civil Procedure section 437c, matters subject to judicial notice may support
6 a motion for summary adjudication. Code Civ. Proc. § 437c(b)(2), (f)(2).
7 This Court may take judicial notice of (d) Records of (1) any court of this state or (2)
8 any court of record of the United States or of any state of the United States..” Evid. Code §
9 452(d). A court shall take judicial notice of any matter specified in California Evidence Code
10 Section 452 if a party requests it and (a) gives each adverse party sufficient notice of the
11 request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the
12 request and (b) furnishes the court with sufficient information to enable it to take judicial
13 notice of the matter. Cal. Evid. Code § 453.
14 As such, Plaintiff respectfully requests that the court grant this Request for Judicial
15 Notice and take judicial notice of the following documents, all of which are subject to judicial
16 notice under Evidence Code section 452 and are true and correct copies of what they purport to
17 be:
18 1. Plaintiff Thomas Kopitnik’s Second Amended Complaint filed in the Superior
19 Court of California – County of Santa Barbara, dated October 27, 2022 attached hereto as
20 Exhibit 1.
21 2. Plaintiff Thomas Kopitnik’s Notice of Motion and Motion to Compel Further
22 Responses By Defendant Clearview Property Services to Kopitnik’s: (1) First Set of Requests
23 for Production of Documents, (2) First Set of Special Interrogatories Nos. 1, 2, and 4 filed in
24 the Superior Court of California – County of Santa Barbara, on November 9, 2021 is attached
25 hereto as Exhibit 2.
26 3. Defendant Clearview’s Opposition to Plaintiff Thomas Kopitnik’s Notice of
27 Motion and Motion to Compel Further Responses By Defendant Clearview Property Services
28 to Kopitnik’s: (1) First Set of Requests for Production of Documents, (2) First Set of Special
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1 Interrogatories Nos. 1, 2, and 4 filed in the Superior Court of California – County of Santa
2 Barbara dated January 4, 2022 is attached hereto as Exhibit 3.
3 4. Plaintiff Thomas Kopitnik’s Reply in support of his Motion to Compel Further
4 Responses By Defendant Clearview Property Services to Kopitnik’s: (1) First Set of Requests
5 for Production of Documents, (2) First Set of Special Interrogatories Nos. 1, 2, and 4 filed in
6 the Superior Court of California – County of Santa Barbara, dated November 9, 2021 is
7 attached hereto as January 10, 2022 is attached hereto as Exhibit 4.
8 5. This Court’s Stipulated Order re Plaintiff Thomas Kopitnik’s Motion to Compel
9 Further Responses by Defendant Clearview Property Services to Kopitnik’s: 1) First Set of
10 Requests for Production of Documents, (2) First Set of Special Interrogatories Nos. 1, 2, and 4
11 filed in the Superior Court of California – County of Santa Barbara, dated February 9, 2022
12 attached hereto as Exhibit 5.
13 6. The Court’s Minute Order dated June 28, 2022 regarding Plaintiff’s May 27,
14 2022 Motion to Compel Compliance is attached hereto as Exhibit 6.
15 7. This Court’s Stipulated Order re Joint Stipulation to Mediate and Request to
16 Take the July 15, 2022 Hearing Off Calendar and Order (the “Discovery Order”) dated July 14,
17 2022 is attached hereto as Exhibit 7.
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DATED: November 14, 2022 STRADLING YOCCA CARLSON & RAUTH
19 A Professional Corporation
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21 By:
Jason H. Anderson
22 Andrew B. Mason
Attorneys for Plaintiff THOMAS KOPITNIK
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Exhibit 1
Pursuant to CRC 2.259 this document has been electronically filed by the MM
Superior Court of California, County of Santa Barbara, on 10/26/2022
1 JASON H. ANDERSON, State Bar No. 172087 F IL ED
j anderson@stradlinglaw.com SU PERIOR COURT of CALIFORNIA
2 ANDREW B. MASON, State Bar No. 317944 COUNTY of SANTA BARBARA
amason@stradlinglaw.com 10/27/2022
3 STRADLING YOCCA CARLSON & RAUTH Darrel E. Parker, Executive Offi cer
A PROFESSIONAL CORPORATION BY W illoughby, Norma
4 660 Newport Center Drive, Suite 1600 Deputy Clerk
Newport Beach, CA 92660-6422
5 Telephone: 949 725 4000
Facsimile: 949 725 4100
6
Attorneys for Plaintiff
7 THOMAS KOPITNIK
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA - COOK
10 THOMAS KOPITNIK, an individual, CASE NO. 21CV02266
11 Plaintiff, Honorable James F Rigali.
Dept. SM2
12 vs.
SECOND AMENDED COMPLAINT
13 CLEARVIEW PROPERTY SERVICES, INC. , FOR:
a California corporation; CHRISTOPHER
14 HULME, and individual; and, DOES 1 1. DISGORGEMENT PURSUANT TO
THROUGHl0 BUS. & PROF. CODE SECTION
15 7031;
Defendants. 2. RESCISSION;
16 3. BREACH OF CONTRACT;
4. NEGLIGENCE;
17 5. FRAUD IN THE INDUCEMENT;
6. NEGLIGENT
18 MISREPRESENTATION;
7. UNFAIR BUSINESS PRACTICES
19 (Bus. & Prof. Code §17200 et seq.)
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Exhibit 1
1 Plaintiff Dr. Thomas Kopitnik, M.D., (“Dr. Kopitnik” or “Plaintiff”) for his Second
2 Amended Complaint against Defendants Clearview Property Services, Inc., Christopher Hulme,
3 and Does 1-10 (collectively, “Defendants”) allege as follows:
4 INTRODUCTION
5 1. In the present case, Plaintiff, Dr. Thomas Kopitnik (“Dr. Kopitnik”) hired
6 Defendants to design, plan, prepare construction drawings, and do landscape improvements to
7 his 360 acre residential ranch located in Buellton, California. However, Defendants
8 misrepresented their licensing status and their skill, knowledge, and prior experience in order to
9 induce and did in fact induce Dr. Kopitnik to award Defendants a lucrative, large and complex
10 landscaping project. Defendants also represented they would only bill for services and materials
11 provided to the project, yet thereafter inflated their billing and charged for services that were not
12 actually provided to the project, including the travel time of their unskilled laborers and
13 supervisory services when Defendant Hulme was not physically at the property to the detriment
14 of Dr. Kopitnik who paid Defendants nearly $1 million for a project that was nowhere near
15 completed and work that was performed in a negligent manner.
16 THE PARTIES
17 2. Plaintiff is an individual residing in Wyoming and is the owner of real property at
18 2401 US Highway 101, Buellton, CA 93427 (the “Property”).
19 3. Plaintiff is informed and believes Defendant Clearview Property Services, Inc.
20 (“Clearview”) is a California corporation with its principal place of business located at 6464
21 Hollister Avenue, Goleta, California and holding itself out as both a licensed landscape
22 contractor.
23 4. Defendant Christopher Hulme is an individual residing in the State of California.
24 Christopher Hulme (“Mr. Hulme”) is Clearview’s principal, President, and chief executive
25 officer. Plaintiff is informed and believes that Hulme was previously the principal, President and
26 chief executive officer of Clearview Industries, Inc., that Hulme caused the assets and licenses of
27 Clearview Industries, Inc. to be transferred or leased to Defendant Clearview Properties Services,
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1 Inc. in response to pending litigation against him Moler v. Hulme, et al., Santa Barbara Superior
2 Court, Case No. 1417847, and thereafter dissolved Clearview Industries, Inc.
3 5. Plaintiff is informed and believes and upon such information and belief alleges
4 that Defendant Clearview is, and at all times herein mentioned was, the alter ego of Defendant
5 Chris Hulme, and that there exists, and at all times herein mentioned has existed, a unity of
6 interest and ownership between Defendant Clearview, on the one hand, and Defendants Chris
7 Hulme on the other hand, such that any separateness has ceased to exist, in that Defendants Chris
8 Hulme used assets of Defendant Clearview for his personal use, caused assets of the corporate
9 entity to be transferred to him without adequate consideration, and withdrew funds from the
10 corporation’s bank accounts for their personal use.
11 6. Plaintiff is informed and believes and upon such information and belief alleges
12 that Defendant Clearview is, and at all times herein mentioned was, a mere shell, instrumentality,
13 and conduit through which Defendant Chris Hulme carried on his business in the corporate name
14 exactly as they had conducted its previous to incorporation, exercising complete control and
15 dominance of such business to such an extent that any individuality or separateness of Defendant
16 Clearview, on the one hand, and Defendant Chris Hulme, on the other hand does not, and at all
17 times herein mentioned did not, exist.
18 7. Defendant Clearview is, and at all times herein mentioned was, controlled,
19 dominated, and operated by Defendant Chris Hulme as his individual business and alter ego, in
20 that the activities and business of Defendant Clearview were carried out without the holding of
21 director’s or shareholders’ meetings, no records or minutes of any corporate proceedings were
22 maintained, and Defendant Chris Hulme entered into personal transactions with Defendant
23 Clearview without the approval of the other directors or shareholders.
24 8. Dr. Kopitnik is ignorant of the true names and capacities of other defendants sued
25 herein as DOES 1-10, inclusive, and therefore sue these defendants by such fictitious names.
26 Dr. Kopitnik will amend this Complaint to allege their true names and capacities when
27 ascertained. Dr. Kopitnik is informed and believes and thereon alleges that each of these
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1 fictitiously named defendants are responsible in some manner for the occurrences herein alleged,
2 and that Dr. Kopitnik’s damages as herein alleged were proximately caused by their conduct.
3 JURISDICTION AND VENUE
4 9. This court has jurisdiction over this action as the mount in controversy exceeds
5 $25,000.
6 10. Venue is proper in the County of Santa Barbara County as the agreement at issue
7 was entered into in Santa Barbara County and Clearview is located in the County of Santa
8 Barbara. Additionally, the Property is located in Santa Barbara County.
9 GENERAL ALLEGATIONS
10 11. On or about August 30, 2017, Dr. Kopitnik purchased a 360 acre ranch property
11 located at 2401 U.S. Highway 101, Buellton California (the “Property”). The main buildings on
12 the Property consist of a large main house, barn and bungalow. The terrain of the Property is
13 hilly, making it susceptible to floods and even landslides during the seasonal heavy rains that fall
14 in the otherwise arid region.
15 12. Following the purchase of the Property, Dr. Kopitnik desired to undertake a multi-
16 acre improvement of the Property’s landscaping (the “Landscaped Area”). Below is an image of
17 the buildings on the property as well as a depiction of the “Landscaped Area” at or around the
18 time of purchase:
19 Aerial View of the Property with Perimeter of the “Landscaped Area” Outlined
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1 13. The Landscaped Area consisted of an open space with various grasses and weeds.
2 The area was not properly drained or irrigated. Consequently, it was susceptible to flooding
3 from runoff during periods of heavy rain, had potential landslide issues, and was brown and
4 lifeless during dry periods.
5 Defendants’ Representations
6 14. On or about December 21, 2018, Dr. Kopitnik began discussions with Defendants
7 about creating a professional design and plan, including a final and complete set of construction
8 drawings for improving and performing the landscape improvement work at the Property,
9 including grading and drainage construction plans. During this meeting, Plaintiff Kopitnik asked
10 Defendant Hulme if he should hire a landscape architect to prepare the construction drawings
11 and showed Defendant Hulme a set of landscape architect drawings that had been prepared by
12 the prior owner of the Property. Plaintiff also told Hulme that he wanted to ensure he had a
13 complete set of constructions drawings which could be used by any landscape contractor to do
14 the improvements for the Project since, at the time, he had not even agreed Defendants would do
15 the improvements.
16 15. In response, Defendant Hulme represented to Plaintiff that Plaintiff did not need
17 to hire a landscape architect because he had the proper licenses, skill, knowledge, and prior
18 experience to prepare construction drawings, including plans for grading and drainage and that
19 Defendant Clearview was a “one stop shop.” Unbeknownst to Plaintiff until after he terminated
20 his agreements with Defendants, Defendants knew these representations were false because
21 neither Defendant Hulme nor Defendant Clearview had a landscape architect licenses, nor did
22 any of either of them have any skill, knowledge or experience preparing landscape construction
23 drawings.
24 16. Based on these representations, Plaintiff was induced to and did sign Proposal
25 #3336 dated January 21, 2019 and reflecting California license #995590. (Attached hereto as
26 Exhibit A is a true and correct copy of Proposal #3336.) Pursuant to Proposal #3336, Defendants
27 agreed to create a new landscape, hardscape, and waterscape design plan, including a new
28 grading and drainage plan to take water into new dry creek beds during significant rain events.
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1 Unbeknownst to Plaintiff, Defendant Hulme had cancelled a contractor’s license that belonged to
2 Clearview Industries, Inc. and, at the time of this Proposal, reflecting California license #995590
3 belonged to Defendant Hulme as a sole proprietor after having dissolved and transferred the
4 assets of Clearview Industries, Inc. away from during pending litigation against Hulme and this
5 former Clearview entity in Moler v. Hulme, et al., Santa Barbara Superior Court, Case No.
6 1417847.
7 17. Between January and June, 2019, Defendants met with Plaintiff on the Property
8 several times when Plaintiff was ostensibly creating and preparing a new landscape, hardscape,
9 and waterscape design plan, including a new grading and drainage plan to take water into new
10 dry creek beds during significant rain events. During these meetings, Defendants repeated the
11 above representations to Plaintiff and that he would complete a final set of landscape drawings
12 and plan before working on any improvements while also soliciting Plaintiff to contract with
13 Defendant Clearview to perform the improvements in accordance with the professional designs
14 and plans that Defendants were allegedly creating. Mr. Hulme also represented to Plaintiff in
15 connection with the above meetings and solicitations that Defendants would, if they won the
16 contract, only bill for labor and materials actually provided to the Project.
17 18. On June 28, 2019, Defendants again met with Plaintiff on the Property to present
18 and discuss Defendants’ “initial design rendering,” and to solicit Plaintiff to execute a contract
19 for Defendants to perform the improvement work. During this meeting, Defendant Hulme again
20 repeated the above representations to Plaintiff, and he also represented to Plaintiff at this meeting
21 that Defendant Clearview had the proper licenses, skill, knowledge and experience to perform
22 the proposed improvement work, particularly of the size and complexity of the proposed Project.
23 19. At the time Defendant Hulme made these representations to Plaintiff, he knew
24 Defendants had been found liable following a trial for misrepresenting their license status, skill
25 knowledge and experience, and their billing practices on a project of a much smaller scale and
26 complexity. See Moler v. Hulme, et al., Santa Barbara Superior Court, Case No. 1417847. The
27 foregoing facts were unknown to Plaintiff until after Defendants were terminated off the Project.
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1 Plaintiff was unaware of the prior litigation against Defendants and the concealment of
2 Defendants’ billing scheme all of which was likely to and did lead mislead Plaintiff.
3 20. In reliance upon the above representations, Plaintiff was induced to and did sign a
4 Home Improvement Contract dated June 28, 2019, a true and correct copy of which is attached
5 hereto as Exhibit B. The Home Improvement Contract also attached and incorporated Exhibit A
6 to that contract which was Clearview Proposal #3366 (not to be confused with the above
7 referenced landscape architect construction drawings Proposal #3336). The Home Improvement
8 Contract, Proposal #3336, and Proposal #3366 shall be collectively referred to herein as the
9 “Agreement”. Although the Agreement is expressly between Plaintiff and Defendant Clearview,
10 the contractor’s license listed on both Proposals belonged to Defendant Hulme, and Clearview
11 itself did not have a landscape contractor’s license or landscape architecture licenses at the time
12 of execution of the Agreement.
13 21. Proposal #3366 expressly provides that the works of improvement will be
14 performed according to “the Plan” and required Defendants to “update and complete new
15 landscape design Plan” as part of the Agreement.
16 Clearview Fails To Perform
17 22. Shortly after signing the Agreement, Clearview commenced work without final
18 and complete designs or a Plan and thereafter failed to perform on a number of its promises.
19 23. Defendants never did create, update or complete a new landscape, hardscape, and
20 waterscape design plan, including a new grading and drainage construction drawings to take
21 water into new dry creek beds during significant rain events. The only “Plan” that Defendants
22 ever provided to Dr. Kopitnik is below:
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1 24. Apart from misrepresenting Defendants’ status as licensed landscape architects,
2 the Agreement also called for the “contract price” to be determined on a “Time and Materials
3 basis.” A space in the Agreement designated for a contract price is marked as “$TBD.” At the
4 end of the Agreement’s Proposal where the final price of the contract is meant to be inserted, the
5 line is simply left blank.
6 25. The “Time and Materials” provision of the contract called for “labor hours of
7 Contractor’s workers and supervisory personnel at the Work site and other labor costs, costs of
8 materials and equipment to be used or incorporated in the Work (including transportation,
9 delivery, and storage), cost of removal and disposal of debris from the Work site, and portable
10 restroom rentals” to be “billed by the Contractor, plus 15% markup.” The contract drafted by
11 Clearview also contained a provision that the “Billable labor rate will apply of $75 per hour per
12 technician or supervisor working on the project.”
13 26. Clearview’s failure to provide the contract price was illegal. Under California
14 law, a contractor whose home improvement contract fails to provide a final price for a project
15 constitutes a criminal misdemeanor punishable by fine and/or by “imprisonment in a county jail
16 not exceeding one year.” See Cal. Bus. & Prof. Code §§ 7159(d); 7159.5(b).
17 27. Moreover, despite Defendants assurances that timely and accurate invoices would
18 be provided, including underlying receipts and expense documentation, Defendants failed to
19 provide full and accurate invoices for the work allegedly performed at the Property and billed
20 Plaintiff for time allegedly performed at the Property when in fact such time was not performed
21 by Defendants or their workers and/or billed for time and material that was excessive and
22 unnecessary, including their travel time to and from the Project. Over the course of the Project,
23 Defendants repeatedly submitted billings to Plaintiff which listed labor and material supplies not
24 provided at the Project and/or for work that was excessive or unnecessary.
25 28. In addition, Defendants’ performance was substandard and, in some cases grossly
26 negligent. For example, Defendants dug the trenches for the wall footings entirely by hand,
27 using a small staff usually comprising of five or less laborers who used basic tools such as
28 shovels and pickaxes rather than digging the trenches with a mechanical backhoe or other similar
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1 machinery which would have quickly and efficiently created the footings needed for the walls.
2 This small group manually dug out thousands of square feet of dirt in a time consuming and
3 inefficient manner. Moreover, as Dr. Kopitnik later learned, the manually dug trenches were not
4 deep enough to create proper wall footings.
5 29. The wall footings that Clearview dug by hand were woefully inadequate. During
6 sample testing of these walls, nine test pits were selected for either sufficiency of wall footings
7 and/or to inspect the installed drainage lines.
8 30. Of the seven areas inspected for proper footings, two of the test pits contained no
9 wall footings at all. In these instances, the load-bearing, terraced retaining wall was placed
10 directly on the ground, where it is in danger of collapsing from the load behind it.
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12 Photos of Retaining Walls Constructed by Clearview with No Concrete Footing
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Photo JMG_ l388 JPG
40 " high wall with no footing . Photo JMG_l396 • 48" high wall with no footing .
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22 31. Moreover, non-biodegradable plastic refuse and food containers were also
23 discovered entombed below one of the walls constructed by Clearview.
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1 Plastic Waste Discovered Entombed Under Wall Constructed By Clearview
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10 32. Throughout its work on the Project, Clearview billed every single hour of every
11 single worker on the project at the Technician and Supervisor rate of $75.00 per hour.
12 Dr. Kopitnik is informed and believes that these workers were unskilled laborers that were
13 unqualified in the methods and techniques to produce the high-end stone masonry work
14 Clearview promised.
15 33. As Clearview’s substandard work product quickly began to reveal itself,
16 Clearview’s lack of a final, professional design plan and landscape construction drawings
17 eventually became evident, and the costs of the Project were spiraling out of control. By mid-
18 October 2020, over a year after the Project had begun, Plaintiff had billed nearly a million dollars
19 in costs for the Project, including almost $700,000 in labor costs.
20 34. As the December 2020 estimated completion date quickly approached, the Project
21 was nowhere near complete and the quality issues were becoming more apparent with each
22 passing day. After Dr. Kopitnik expressed his increasing dissatisfaction with Clearview,
23 Mr. Hulme responded that Clearview would need more time and money to complete the Project.
24 But enough was enough. On or about October 10, 2020, Dr. Kopitnik ordered Clearview to
25 cease working on the project altogether.
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1 FIRST CAUSE OF ACTION
2 (Disgorgement Pursuant to Cal. Bus. & Prof. Code
Section 7031)
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35. Dr. Kopitnik hereby incorporates the preceding paragraphs as though set forth in
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full herein.
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36. On or about August 13, 2014, the California State License Board issued a sole
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ownership license number 995590 to Defendant Chris Hulme, including a C-27 Landscaping
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classification (hereinafter, the “License”).
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37. In his application for the License, Defendant Hulme specifically and expressly
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requested a “sole ownership entity license” instead of a “Corporation entity license” and swore
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under penalty of perjury that the statements in his application were true and correct.
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38. Defendant Clearview Property Services, Inc. is a California corporation that was
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first incorporated on December 5, 2017, more than the three years after the License was issued to
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Defendant Chris Hulme, as a sole proprietorship.
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39. On or about June 28, 2019, Defendant Clearview Property Services, Inc entered
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into a “Home Improvement Contract” with Plaintiff whereby Clearview was to perform
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improvements to “terraces, patios . . . landscaping, fences, porches . . . and other improvements
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of the structures or land which is adjacent to a dwelling house” at the Property. Cal. Bus. &
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Prof. Code §§ 7151; 7151.2.
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40. Pursuant to the Home Improvement Contract, Defendant Clearview Property
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Services, Inc. started landscape construction work on Plaintiff’s Property, including site
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preparation, grading and rock wall construction, on July 1, 2019.
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41. On September 24, 2019, approximately two months after Defendant Clearview
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Property Services, Inc. commenced landscape construction services on Plaintiff’s Property, the
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California State License Board reissued the License, previously issued to Defendant Chris
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Hulme as a sole ownership license, to a corporation; specifically, to Defendant Clearview
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Property Services, Inc.
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1 42. Defendant Clearview Property Services, Inc., a corporation, had never before
2 been issued a contractor’s license, including a landscaping license, by the State of California
3 prior to commencing work on Plaintiff’s Property.
4 43. California Business & Professions Code Section 7031(b) provides that “a person
5 who utilizes the services of an unlicensed contractor may bring an action in any court of
6 competent jurisdiction in this state to recover all compensation paid to th
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1 JASON H. ANDERSON, State Bar No. 172087 janderson@stradlinglaw.com 2 ANDREW B. MASON, State Bar No. 317944 amason@stradlinglaw.com 3 STRADLING YOCCA CARLSON & RAUTH A PROFESSIONAL CORPORATION 4 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660-6422 5 Telephone: 949 725 4000 Facsimile: 949 725 4100 6 Attorneys for Plaintiff 7 THOMAS KOPITNIK 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA - COOK 10 THOMAS KOPITNIK, an individual, CASE NO. 21CV02266 11 Plaintiff, Honorable James F Rigali. Dept. SM2 12 vs. PLAINTIFF THOMAS KOPITNIK’S 13 CLEARVIEW PROPERTY SERVICES, INC. a REQUEST FOR JUDICIAL NOTICE California corporation; CHRISTOPHER IN SUPPORT OF HIS MOTION TO 14 HULME, and individual; and, DOES COMPEL COMPLIANCE WITH 1,THROUGH 10, THIS COURT’S ORDER DATED 15 JULY 14, 2022 Defendant. 16 Hearing: 17 Date: December 13, 2022 Time: 8:30 a.m. 18 Location: Dept. SM2 312-C East Cook Street 19 Santa Maria, CA 93454 20 Complaint Filed: June 8, 2021 Trial Confirmation: March 13, 2023 21 Trial Date: April 24, 2023 22 23 24 25 26 27 28 S TRADLING Y OCCA -1- C ARLSON & R AUTH LAWYERS NEWPORT BEACH REQUEST FOR JUDICIAL NOTICE 21CV02266 1 Pursuant to California Evidence Code Section 452, and in support of his Motion to 2 Compel Compliance with the Court’s Discovery Order dated February 9, 2022, filed 3 concurrently herewith, Plaintiff Thomas Kopitnik, M.D., (“Plaintiff”) respectfully request that 4 this Court take judicial notice of the following official records of this state. Pursuant to 5 California Code of Civil Procedure section 437c, matters subject to judicial notice may support 6 a motion for summary adjudication. Code Civ. Proc. § 437c(b)(2), (f)(2). 7 This Court may take judicial notice of (d) Records of (1) any court of this state or (2) 8 any court of record of the United States or of any state of the United States..” Evid. Code § 9 452(d). A court shall take judicial notice of any matter specified in California Evidence Code 10 Section 452 if a party requests it and (a) gives each adverse party sufficient notice of the 11 request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the 12 request and (b) furnishes the court with sufficient information to enable it to take judicial 13 notice of the matter. Cal. Evid. Code § 453. 14 As such, Plaintiff respectfully requests that the court grant this Request for Judicial 15 Notice and take judicial notice of the following documents, all of which are subject to judicial 16 notice under Evidence Code section 452 and are true and correct copies of what they purport to 17 be: 18 1. Plaintiff Thomas Kopitnik’s Second Amended Complaint filed in the Superior 19 Court of California – County of Santa Barbara, dated October 27, 2022 attached hereto as 20 Exhibit 1. 21 2. Plaintiff Thomas Kopitnik’s Notice of Motion and Motion to Compel Further 22 Responses By Defendant Clearview Property Services to Kopitnik’s: (1) First Set of Requests 23 for Production of Documents, (2) First Set of Special Interrogatories Nos. 1, 2, and 4 filed in 24 the Superior Court of California – County of Santa Barbara, on November 9, 2021 is attached 25 hereto as Exhibit 2. 26 3. Defendant Clearview’s Opposition to Plaintiff Thomas Kopitnik’s Notice of 27 Motion and Motion to Compel Further Responses By Defendant Clearview Property Services 28 to Kopitnik’s: (1) First Set of Requests for Production of Documents, (2) First Set of Special S TRADLING Y OCCA -2- C ARLSON & R AUTH LAWYERS NEWPORT BEACH REQUEST FOR JUDICIAL NOTICE 21CV02266 1 Interrogatories Nos. 1, 2, and 4 filed in the Superior Court of California – County of Santa 2 Barbara dated January 4, 2022 is attached hereto as Exhibit 3. 3 4. Plaintiff Thomas Kopitnik’s Reply in support of his Motion to Compel Further 4 Responses By Defendant Clearview Property Services to Kopitnik’s: (1) First Set of Requests 5 for Production of Documents, (2) First Set of Special Interrogatories Nos. 1, 2, and 4 filed in 6 the Superior Court of California – County of Santa Barbara, dated November 9, 2021 is 7 attached hereto as January 10, 2022 is attached hereto as Exhibit 4. 8 5. This Court’s Stipulated Order re Plaintiff Thomas Kopitnik’s Motion to Compel 9 Further Responses by Defendant Clearview Property Services to Kopitnik’s: 1) First Set of 10 Requests for Production of Documents, (2) First Set of Special Interrogatories Nos. 1, 2, and 4 11 filed in the Superior Court of California – County of Santa Barbara, dated February 9, 2022 12 attached hereto as Exhibit 5. 13 6. The Court’s Minute Order dated June 28, 2022 regarding Plaintiff’s May 27, 14 2022 Motion to Compel Compliance is attached hereto as Exhibit 6. 15 7. This Court’s Stipulated Order re Joint Stipulation to Mediate and Request to 16 Take the July 15, 2022 Hearing Off Calendar and Order (the “Discovery Order”) dated July 14, 17 2022 is attached hereto as Exhibit 7. 18 DATED: November 14, 2022 STRADLING YOCCA CARLSON & RAUTH 19 A Professional Corporation 20 21 By: Jason H. Anderson 22 Andrew B. Mason Attorneys for Plaintiff THOMAS KOPITNIK 23 24 25 26 27 28 S TRADLING Y OCCA -3- C ARLSON & R AUTH LAWYERS NEWPORT BEACH REQUEST FOR JUDICIAL NOTICE 21CV02266 Exhibit 1 Pursuant to CRC 2.259 this document has been electronically filed by the MM Superior Court of California, County of Santa Barbara, on 10/26/2022 1 JASON H. ANDERSON, State Bar No. 172087 F IL ED j anderson@stradlinglaw.com SU PERIOR COURT of CALIFORNIA 2 ANDREW B. MASON, State Bar No. 317944 COUNTY of SANTA BARBARA amason@stradlinglaw.com 10/27/2022 3 STRADLING YOCCA CARLSON & RAUTH Darrel E. Parker, Executive Offi cer A PROFESSIONAL CORPORATION BY W illoughby, Norma 4 660 Newport Center Drive, Suite 1600 Deputy Clerk Newport Beach, CA 92660-6422 5 Telephone: 949 725 4000 Facsimile: 949 725 4100 6 Attorneys for Plaintiff 7 THOMAS KOPITNIK 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA - COOK 10 THOMAS KOPITNIK, an individual, CASE NO. 21CV02266 11 Plaintiff, Honorable James F Rigali. Dept. SM2 12 vs. SECOND AMENDED COMPLAINT 13 CLEARVIEW PROPERTY SERVICES, INC. , FOR: a California corporation; CHRISTOPHER 14 HULME, and individual; and, DOES 1 1. DISGORGEMENT PURSUANT TO THROUGHl0 BUS. & PROF. CODE SECTION 15 7031; Defendants. 2. RESCISSION; 16 3. BREACH OF CONTRACT; 4. NEGLIGENCE; 17 5. FRAUD IN THE INDUCEMENT; 6. NEGLIGENT 18 MISREPRESENTATION; 7. UNFAIR BUSINESS PRACTICES 19 (Bus. & Prof. Code §17200 et seq.) 20 21 22 23 24 25 26 27 28 STRADLING YOCCA -1- CAR LSON & R AUT H LAWYE RS NEWPO RT B EACH 4871-7132-8314v2/104827-0005 21CV0226 Exhibit 1 1 Plaintiff Dr. Thomas Kopitnik, M.D., (“Dr. Kopitnik” or “Plaintiff”) for his Second 2 Amended Complaint against Defendants Clearview Property Services, Inc., Christopher Hulme, 3 and Does 1-10 (collectively, “Defendants”) allege as follows: 4 INTRODUCTION 5 1. In the present case, Plaintiff, Dr. Thomas Kopitnik (“Dr. Kopitnik”) hired 6 Defendants to design, plan, prepare construction drawings, and do landscape improvements to 7 his 360 acre residential ranch located in Buellton, California. However, Defendants 8 misrepresented their licensing status and their skill, knowledge, and prior experience in order to 9 induce and did in fact induce Dr. Kopitnik to award Defendants a lucrative, large and complex 10 landscaping project. Defendants also represented they would only bill for services and materials 11 provided to the project, yet thereafter inflated their billing and charged for services that were not 12 actually provided to the project, including the travel time of their unskilled laborers and 13 supervisory services when Defendant Hulme was not physically at the property to the detriment 14 of Dr. Kopitnik who paid Defendants nearly $1 million for a project that was nowhere near 15 completed and work that was performed in a negligent manner. 16 THE PARTIES 17 2. Plaintiff is an individual residing in Wyoming and is the owner of real property at 18 2401 US Highway 101, Buellton, CA 93427 (the “Property”). 19 3. Plaintiff is informed and believes Defendant Clearview Property Services, Inc. 20 (“Clearview”) is a California corporation with its principal place of business located at 6464 21 Hollister Avenue, Goleta, California and holding itself out as both a licensed landscape 22 contractor. 23 4. Defendant Christopher Hulme is an individual residing in the State of California. 24 Christopher Hulme (“Mr. Hulme”) is Clearview’s principal, President, and chief executive 25 officer. Plaintiff is informed and believes that Hulme was previously the principal, President and 26 chief executive officer of Clearview Industries, Inc., that Hulme caused the assets and licenses of 27 Clearview Industries, Inc. to be transferred or leased to Defendant Clearview Properties Services, 28 S TRADLING Y OCCA -2- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 Inc. in response to pending litigation against him Moler v. Hulme, et al., Santa Barbara Superior 2 Court, Case No. 1417847, and thereafter dissolved Clearview Industries, Inc. 3 5. Plaintiff is informed and believes and upon such information and belief alleges 4 that Defendant Clearview is, and at all times herein mentioned was, the alter ego of Defendant 5 Chris Hulme, and that there exists, and at all times herein mentioned has existed, a unity of 6 interest and ownership between Defendant Clearview, on the one hand, and Defendants Chris 7 Hulme on the other hand, such that any separateness has ceased to exist, in that Defendants Chris 8 Hulme used assets of Defendant Clearview for his personal use, caused assets of the corporate 9 entity to be transferred to him without adequate consideration, and withdrew funds from the 10 corporation’s bank accounts for their personal use. 11 6. Plaintiff is informed and believes and upon such information and belief alleges 12 that Defendant Clearview is, and at all times herein mentioned was, a mere shell, instrumentality, 13 and conduit through which Defendant Chris Hulme carried on his business in the corporate name 14 exactly as they had conducted its previous to incorporation, exercising complete control and 15 dominance of such business to such an extent that any individuality or separateness of Defendant 16 Clearview, on the one hand, and Defendant Chris Hulme, on the other hand does not, and at all 17 times herein mentioned did not, exist. 18 7. Defendant Clearview is, and at all times herein mentioned was, controlled, 19 dominated, and operated by Defendant Chris Hulme as his individual business and alter ego, in 20 that the activities and business of Defendant Clearview were carried out without the holding of 21 director’s or shareholders’ meetings, no records or minutes of any corporate proceedings were 22 maintained, and Defendant Chris Hulme entered into personal transactions with Defendant 23 Clearview without the approval of the other directors or shareholders. 24 8. Dr. Kopitnik is ignorant of the true names and capacities of other defendants sued 25 herein as DOES 1-10, inclusive, and therefore sue these defendants by such fictitious names. 26 Dr. Kopitnik will amend this Complaint to allege their true names and capacities when 27 ascertained. Dr. Kopitnik is informed and believes and thereon alleges that each of these 28 S TRADLING Y OCCA -3- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 fictitiously named defendants are responsible in some manner for the occurrences herein alleged, 2 and that Dr. Kopitnik’s damages as herein alleged were proximately caused by their conduct. 3 JURISDICTION AND VENUE 4 9. This court has jurisdiction over this action as the mount in controversy exceeds 5 $25,000. 6 10. Venue is proper in the County of Santa Barbara County as the agreement at issue 7 was entered into in Santa Barbara County and Clearview is located in the County of Santa 8 Barbara. Additionally, the Property is located in Santa Barbara County. 9 GENERAL ALLEGATIONS 10 11. On or about August 30, 2017, Dr. Kopitnik purchased a 360 acre ranch property 11 located at 2401 U.S. Highway 101, Buellton California (the “Property”). The main buildings on 12 the Property consist of a large main house, barn and bungalow. The terrain of the Property is 13 hilly, making it susceptible to floods and even landslides during the seasonal heavy rains that fall 14 in the otherwise arid region. 15 12. Following the purchase of the Property, Dr. Kopitnik desired to undertake a multi- 16 acre improvement of the Property’s landscaping (the “Landscaped Area”). Below is an image of 17 the buildings on the property as well as a depiction of the “Landscaped Area” at or around the 18 time of purchase: 19 Aerial View of the Property with Perimeter of the “Landscaped Area” Outlined 20 21 22 23 24 25 26 27 28 S TRADLING Y OCCA -4- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 13. The Landscaped Area consisted of an open space with various grasses and weeds. 2 The area was not properly drained or irrigated. Consequently, it was susceptible to flooding 3 from runoff during periods of heavy rain, had potential landslide issues, and was brown and 4 lifeless during dry periods. 5 Defendants’ Representations 6 14. On or about December 21, 2018, Dr. Kopitnik began discussions with Defendants 7 about creating a professional design and plan, including a final and complete set of construction 8 drawings for improving and performing the landscape improvement work at the Property, 9 including grading and drainage construction plans. During this meeting, Plaintiff Kopitnik asked 10 Defendant Hulme if he should hire a landscape architect to prepare the construction drawings 11 and showed Defendant Hulme a set of landscape architect drawings that had been prepared by 12 the prior owner of the Property. Plaintiff also told Hulme that he wanted to ensure he had a 13 complete set of constructions drawings which could be used by any landscape contractor to do 14 the improvements for the Project since, at the time, he had not even agreed Defendants would do 15 the improvements. 16 15. In response, Defendant Hulme represented to Plaintiff that Plaintiff did not need 17 to hire a landscape architect because he had the proper licenses, skill, knowledge, and prior 18 experience to prepare construction drawings, including plans for grading and drainage and that 19 Defendant Clearview was a “one stop shop.” Unbeknownst to Plaintiff until after he terminated 20 his agreements with Defendants, Defendants knew these representations were false because 21 neither Defendant Hulme nor Defendant Clearview had a landscape architect licenses, nor did 22 any of either of them have any skill, knowledge or experience preparing landscape construction 23 drawings. 24 16. Based on these representations, Plaintiff was induced to and did sign Proposal 25 #3336 dated January 21, 2019 and reflecting California license #995590. (Attached hereto as 26 Exhibit A is a true and correct copy of Proposal #3336.) Pursuant to Proposal #3336, Defendants 27 agreed to create a new landscape, hardscape, and waterscape design plan, including a new 28 grading and drainage plan to take water into new dry creek beds during significant rain events. S TRADLING Y OCCA -5- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 Unbeknownst to Plaintiff, Defendant Hulme had cancelled a contractor’s license that belonged to 2 Clearview Industries, Inc. and, at the time of this Proposal, reflecting California license #995590 3 belonged to Defendant Hulme as a sole proprietor after having dissolved and transferred the 4 assets of Clearview Industries, Inc. away from during pending litigation against Hulme and this 5 former Clearview entity in Moler v. Hulme, et al., Santa Barbara Superior Court, Case No. 6 1417847. 7 17. Between January and June, 2019, Defendants met with Plaintiff on the Property 8 several times when Plaintiff was ostensibly creating and preparing a new landscape, hardscape, 9 and waterscape design plan, including a new grading and drainage plan to take water into new 10 dry creek beds during significant rain events. During these meetings, Defendants repeated the 11 above representations to Plaintiff and that he would complete a final set of landscape drawings 12 and plan before working on any improvements while also soliciting Plaintiff to contract with 13 Defendant Clearview to perform the improvements in accordance with the professional designs 14 and plans that Defendants were allegedly creating. Mr. Hulme also represented to Plaintiff in 15 connection with the above meetings and solicitations that Defendants would, if they won the 16 contract, only bill for labor and materials actually provided to the Project. 17 18. On June 28, 2019, Defendants again met with Plaintiff on the Property to present 18 and discuss Defendants’ “initial design rendering,” and to solicit Plaintiff to execute a contract 19 for Defendants to perform the improvement work. During this meeting, Defendant Hulme again 20 repeated the above representations to Plaintiff, and he also represented to Plaintiff at this meeting 21 that Defendant Clearview had the proper licenses, skill, knowledge and experience to perform 22 the proposed improvement work, particularly of the size and complexity of the proposed Project. 23 19. At the time Defendant Hulme made these representations to Plaintiff, he knew 24 Defendants had been found liable following a trial for misrepresenting their license status, skill 25 knowledge and experience, and their billing practices on a project of a much smaller scale and 26 complexity. See Moler v. Hulme, et al., Santa Barbara Superior Court, Case No. 1417847. The 27 foregoing facts were unknown to Plaintiff until after Defendants were terminated off the Project. 28 S TRADLING Y OCCA -6- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 Plaintiff was unaware of the prior litigation against Defendants and the concealment of 2 Defendants’ billing scheme all of which was likely to and did lead mislead Plaintiff. 3 20. In reliance upon the above representations, Plaintiff was induced to and did sign a 4 Home Improvement Contract dated June 28, 2019, a true and correct copy of which is attached 5 hereto as Exhibit B. The Home Improvement Contract also attached and incorporated Exhibit A 6 to that contract which was Clearview Proposal #3366 (not to be confused with the above 7 referenced landscape architect construction drawings Proposal #3336). The Home Improvement 8 Contract, Proposal #3336, and Proposal #3366 shall be collectively referred to herein as the 9 “Agreement”. Although the Agreement is expressly between Plaintiff and Defendant Clearview, 10 the contractor’s license listed on both Proposals belonged to Defendant Hulme, and Clearview 11 itself did not have a landscape contractor’s license or landscape architecture licenses at the time 12 of execution of the Agreement. 13 21. Proposal #3366 expressly provides that the works of improvement will be 14 performed according to “the Plan” and required Defendants to “update and complete new 15 landscape design Plan” as part of the Agreement. 16 Clearview Fails To Perform 17 22. Shortly after signing the Agreement, Clearview commenced work without final 18 and complete designs or a Plan and thereafter failed to perform on a number of its promises. 19 23. Defendants never did create, update or complete a new landscape, hardscape, and 20 waterscape design plan, including a new grading and drainage construction drawings to take 21 water into new dry creek beds during significant rain events. The only “Plan” that Defendants 22 ever provided to Dr. Kopitnik is below: 23 24 25 26 27 28 S TRADLING Y OCCA -7- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 24. Apart from misrepresenting Defendants’ status as licensed landscape architects, 2 the Agreement also called for the “contract price” to be determined on a “Time and Materials 3 basis.” A space in the Agreement designated for a contract price is marked as “$TBD.” At the 4 end of the Agreement’s Proposal where the final price of the contract is meant to be inserted, the 5 line is simply left blank. 6 25. The “Time and Materials” provision of the contract called for “labor hours of 7 Contractor’s workers and supervisory personnel at the Work site and other labor costs, costs of 8 materials and equipment to be used or incorporated in the Work (including transportation, 9 delivery, and storage), cost of removal and disposal of debris from the Work site, and portable 10 restroom rentals” to be “billed by the Contractor, plus 15% markup.” The contract drafted by 11 Clearview also contained a provision that the “Billable labor rate will apply of $75 per hour per 12 technician or supervisor working on the project.” 13 26. Clearview’s failure to provide the contract price was illegal. Under California 14 law, a contractor whose home improvement contract fails to provide a final price for a project 15 constitutes a criminal misdemeanor punishable by fine and/or by “imprisonment in a county jail 16 not exceeding one year.” See Cal. Bus. & Prof. Code §§ 7159(d); 7159.5(b). 17 27. Moreover, despite Defendants assurances that timely and accurate invoices would 18 be provided, including underlying receipts and expense documentation, Defendants failed to 19 provide full and accurate invoices for the work allegedly performed at the Property and billed 20 Plaintiff for time allegedly performed at the Property when in fact such time was not performed 21 by Defendants or their workers and/or billed for time and material that was excessive and 22 unnecessary, including their travel time to and from the Project. Over the course of the Project, 23 Defendants repeatedly submitted billings to Plaintiff which listed labor and material supplies not 24 provided at the Project and/or for work that was excessive or unnecessary. 25 28. In addition, Defendants’ performance was substandard and, in some cases grossly 26 negligent. For example, Defendants dug the trenches for the wall footings entirely by hand, 27 using a small staff usually comprising of five or less laborers who used basic tools such as 28 shovels and pickaxes rather than digging the trenches with a mechanical backhoe or other similar S TRADLING Y OCCA -8- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 machinery which would have quickly and efficiently created the footings needed for the walls. 2 This small group manually dug out thousands of square feet of dirt in a time consuming and 3 inefficient manner. Moreover, as Dr. Kopitnik later learned, the manually dug trenches were not 4 deep enough to create proper wall footings. 5 29. The wall footings that Clearview dug by hand were woefully inadequate. During 6 sample testing of these walls, nine test pits were selected for either sufficiency of wall footings 7 and/or to inspect the installed drainage lines. 8 30. Of the seven areas inspected for proper footings, two of the test pits contained no 9 wall footings at all. In these instances, the load-bearing, terraced retaining wall was placed 10 directly on the ground, where it is in danger of collapsing from the load behind it. 11 12 Photos of Retaining Walls Constructed by Clearview with No Concrete Footing 13 14 15 16 17 18 19 20 * Photo JMG_ l388 JPG 40 " high wall with no footing . Photo JMG_l396 • 48" high wall with no footing . 21 22 31. Moreover, non-biodegradable plastic refuse and food containers were also 23 discovered entombed below one of the walls constructed by Clearview. 24 /// 25 26 27 28 S TRADLING Y OCCA -9- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 Plastic Waste Discovered Entombed Under Wall Constructed By Clearview 2 3 4 5 6 7 8 9 10 32. Throughout its work on the Project, Clearview billed every single hour of every 11 single worker on the project at the Technician and Supervisor rate of $75.00 per hour. 12 Dr. Kopitnik is informed and believes that these workers were unskilled laborers that were 13 unqualified in the methods and techniques to produce the high-end stone masonry work 14 Clearview promised. 15 33. As Clearview’s substandard work product quickly began to reveal itself, 16 Clearview’s lack of a final, professional design plan and landscape construction drawings 17 eventually became evident, and the costs of the Project were spiraling out of control. By mid- 18 October 2020, over a year after the Project had begun, Plaintiff had billed nearly a million dollars 19 in costs for the Project, including almost $700,000 in labor costs. 20 34. As the December 2020 estimated completion date quickly approached, the Project 21 was nowhere near complete and the quality issues were becoming more apparent with each 22 passing day. After Dr. Kopitnik expressed his increasing dissatisfaction with Clearview, 23 Mr. Hulme responded that Clearview would need more time and money to complete the Project. 24 But enough was enough. On or about October 10, 2020, Dr. Kopitnik ordered Clearview to 25 cease working on the project altogether. 26 27 28 S TRADLING Y OCCA -10- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 FIRST CAUSE OF ACTION 2 (Disgorgement Pursuant to Cal. Bus. & Prof. Code Section 7031) 3 35. Dr. Kopitnik hereby incorporates the preceding paragraphs as though set forth in 4 full herein. 5 36. On or about August 13, 2014, the California State License Board issued a sole 6 ownership license number 995590 to Defendant Chris Hulme, including a C-27 Landscaping 7 classification (hereinafter, the “License”). 8 37. In his application for the License, Defendant Hulme specifically and expressly 9 requested a “sole ownership entity license” instead of a “Corporation entity license” and swore 10 under penalty of perjury that the statements in his application were true and correct. 11 38. Defendant Clearview Property Services, Inc. is a California corporation that was 12 first incorporated on December 5, 2017, more than the three years after the License was issued to 13 Defendant Chris Hulme, as a sole proprietorship. 14 39. On or about June 28, 2019, Defendant Clearview Property Services, Inc entered 15 into a “Home Improvement Contract” with Plaintiff whereby Clearview was to perform 16 improvements to “terraces, patios . . . landscaping, fences, porches . . . and other improvements 17 of the structures or land which is adjacent to a dwelling house” at the Property. Cal. Bus. & 18 Prof. Code §§ 7151; 7151.2. 19 40. Pursuant to the Home Improvement Contract, Defendant Clearview Property 20 Services, Inc. started landscape construction work on Plaintiff’s Property, including site 21 preparation, grading and rock wall construction, on July 1, 2019. 22 41. On September 24, 2019, approximately two months after Defendant Clearview 23 Property Services, Inc. commenced landscape construction services on Plaintiff’s Property, the 24 California State License Board reissued the License, previously issued to Defendant Chris 25 Hulme as a sole ownership license, to a corporation; specifically, to Defendant Clearview 26 Property Services, Inc. 27 28 S TRADLING Y OCCA -11- C ARLSON & R AUTH LAWYERS NEWPORT BEACH SECOND AMENDED COMPLAINT 4871-7132-8314v2/104827-0005 21CV02266 Exhibit 1 1 42. Defendant Clearview Property Services, Inc., a corporation, had never before 2 been issued a contractor’s license, including a landscaping license, by the State of California 3 prior to commencing work on Plaintiff’s Property. 4 43. California Business & Professions Code Section 7031(b) provides that “a person 5 who utilizes the services of an unlicensed contractor may bring an action in any court of 6 competent jurisdiction in this state to recover all compensation paid to th