Preview
WILLIAM C. LAST, JR. (SBN 83588)
PATRICK J. WHITEHORN (SBN 225927)
LAST & FAORO E L E
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520 South El Camino Real, Suite 430
San Mateo, California 94402
JAN 1 7 2018
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Telephone: (650) 696-8350
Facsimile: (650) 696-8365
C rk of the Court
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Attorneys for Plaintiff
BY
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CountyoiSanta Clara
DEPUTY
Stephen Burch.
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
STEPHEN BURCH an individual doing CASE NO.:
18 C V 32 1 9 3
business as BURCH CONSTRUCTION 3
COMPLAINT FOR:
Plaintiff,
1. BREACH OF CONTRACT;
vs. 2. QUANTUM MERIUT;
3. OPEN BOOK ACCOUNT;
CAROL BOWMAN; and DOES 1.507 4. FORECLOSURE ON MECHANICS’
inclusive, ”EN
Defendants.
PlaintiITSTEPHEN BURCH an individual doing business as BURCH CONSTRUCTION,
alleges as follows:
GENERAL ALLEGATIONS
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1. Plaintiff STEPHEN BURCH an individual doing business as BURCH
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CONSTRUCTION (“Plaintiff") is. and was, at all times an individual engaged in the business of general
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building construction and is licensed by the State of California to perform as described in this complaint.
Plaintiff provided labor, service, equipment, or material, or a combination of those components
(“Work”) under a private works contract.
._]-
COMPLAINT
2. Plaintiff is informed and believes and thereon alleges that, at all times relevant herein.
to Defendant Carol Bowman (BOWMAN is, and at all relevant times to this action, has been a resident of
La:
the state of California.
3. Plaintiff is unaware of the true names, capacities, or basis for liability of defendants
DOES I through 50, inclusive, and sues the DOE defendants by their fictitious names. Plaintiff will
amend this complaint (“Complaint”) to allege their true names, capacities, or basis for liability when the
same has been ascertained. Plaintiff is informed and believes and alleges thereon that DOES I through
50. inclusive. and each of them, are in some manner liable to Plaintiff, or claim some right, title or
interest in the subject property that isjunior and inferior to Plaintiff, or both.
4. Defendants Bowman; and DOES 1-50, and each of them, inclusive shall be referred to
collectively as “Defendants."
5. Plaintiff is informed and believes that Defendant BOWMAN is the owner of the Property
as hereinafier set forth.
6. Plainti ff is informed and believes and alleges on information and belief that at all relevant
times, each defendant, including those fictitiously named DOE defendants, was the agent, servant,
employee, partner, joint venturer, or surety of the other defendants and was acting within the scope of
said agency. employment, partnership, venture, or suretyship, with the knowledge and consent or
ratification of each of the other defendants in doing the things alleged here.
7. The real property and improvements that are subject to this dispute are located in the city
of Saratoga. County of Santa Clara, California, with Assessor’s Parcel No. 39340-007, and is
commonly known and described as 12882 Woodmont Drive, Saratoga, California 95070 (hereinafter
the "Property"). Plaintiff is informed and believes, and based thereon alleges that Defendants, and
DOES 1-50, and each of them, inclusive, at all times relevant to this action were, and now are, the
IQ at.
owner(s) or reputed owner(s) of a fee interest in real property and improvements at the Property, and
owner of the construction Project alleged here.
8. On or about June 7 2017, Plaintiff and Defendant BOWMAN, and each of them, entered
into an written agreement (the “Contract") in which Plaintiff agreed to furnish labor, service, equipment
and materials for a work of improvement on the Property, for an agreed contract price of $478,600.00
.2-
COMPLAINT
subject to change orders, which Defendant BOWMAN agreed to pay. A true and correct copy of the
la Contract is attached hereto and incorporated herein as Exhibit A. The whole of the subject property
W and the entire estate of Defendant Owner in the property are required for the convenient use and
4: occupation of the work ofimprovement.
VI
9. Between June 2017 and October 20, 2017, pursuant to the above-described Contract, or
Ch at the special instance and request of Defendants, or their agents, Plaintiff furnished labor, service,
\I equipment and materials that were used and intended to be used in the work of improvement on the
DO
subject property.
10. Plaintiff has substantially performed all things necessary and required of Plaintiff under
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the Contract, except to the extent that Plaintiff was prevented or excused from performing by the
breaches of Defendants alleged below.
1]. The labor, service, equipment and materials furnished by Plaintiff that remains unpaid
has a reasonable value of at least $137,543.93, which Defendant Bowman agreed to pay and which
remained unpaid at the time the lien claim was recorded and the time this action was filed.
FIRST CAUSE OF ACTION
Breach of Contract
(Against Defendant BOWAN, and Docs 1-50)
12. Plaintiff incorporates in this cause of action the allegations of paragraphs 1 through ll
of the General Allegations.
l3. Defendant BOWMAN breached the Contract in that said Defendant failed to make
payment to Plaintiff and there is now due, owing, and unpaid, a balance of $137,543.93, plus interest at
the legal rate. Further, Plaintiffhas been required to retain Last & Faoro to represent it in this litigation
and has incurred attorney fees in an amount according to proof.
14. As a result of said breaches of the Contract, Plaintiffs have been damaged in the sum of
$137.543.93 and in such additional sums for costs of delay, lost profits and delay magnified overhead
expenses in connection with the work as will be proved at trial.
Plaintiff prays for-judgment as set forth below.
Ill
.3.
COMPLAINT
SECOND CAUSE OF ACTION
IQ Quantum Meruit
Ll) (Against Defendant BOWMAN, and Does 1-50)
15. Plaintiff incorporates in this cause of action the allegations of paragraphs 1 through 14
of the Complaint.
16. Within the last two years Defendants became indebted to Plaintiff in the sum of
\DOOxIO‘UIJk
$137,543.93, or accordingto proof, which is the reasonable value, for work, labor, materials, equipment,
and services performed by the Plaintiff for and/or at the special request of Defendants on a work of
improvement at the Property.
17. Plaintiff has repeatedly demanded payment from Defendants.
l8. Defendants have paid Plaintiffonly $132,731.88, leaving a balance due of$l37,543.93,
with interest on that amount at the legal rate from October 20, 2017 or according to proof.
Plaintiff prays forjudgment as set forth below.
THIRD CAUSE OF ACTION
Open Book Account
(Against Defendant BOWMAN, and Does 1-50)
19. Plaintiff incorporates in this cause of action the allegations of paragraphs 1 through 18
ofthe Complaint.
20. Defendants became indebted to Plaintiff within the last four years on an open book
account for money due.
2l. $137,543.93. which is the reasonable value, is due and unpaid despite Plaintiff’s demand
plus prejudgment interest according to proof.
Plaintiff prays forjudgment as set forth below.
FOURTH CAUSE OF ACTION
Foreclosure on Mechanic’s Lien
(Against Defendant BOWMAN, and Does 1-20)
22. Plaintiff incorporates in this cause of action the allegations of paragraphs I through 2|
of the Complaint.
.4.
COMPLAINT
23. Plaintiff served on Defendants and recorded a verified claim of lien on October 20, 2017,
IQ in the office of the county recorder of Santa Clara County after Plaintiff completed the agreed-on work
and before the expiration of 90 days after completion of the work of improvement, no notice of
completion or cessation having been recorded.
24. A copy of the claim of lien that includes the required statutory notice of lien is attached
OODOxIG’fiL/I-bw
to this complaint as Exhibit B and is incorporated by reference. At the time Plaintiff served and recorded
the claim of lien. the amount stated in the lien claim remained owing and unpaid. No part of the cost of
serving, verifying and recording the lien claim has been repaid.
Plaintiff demands judgment as set forth below.
_.
PRAYER
Plaintiff demands judgment from Defendants for:
l. Damages in the amount of $137,543.930r according to proof, plus interest payments in
an amount to be determined at trial;
2. That the sum of $137,543.93, together with interest provided by law until paid, and the
further cost of verifying and recording the Mechanic’s Lien, and costs incurred by
Plaintiff in bringing this action, be adjudged and decreed to be a Mechanic’s Lien on the
Property described in this Complaint;
3. That the demands of Plaintiff and all persons having claims of lien, or any interest in the
real property described in this Complaint, be ascertained and adjudged, and that the
interests of Defendant BOWMAN and any persons claiming under them be sold under
the decree of this court to satisfy the amount of the lien ascertained and adjudged in favor
of Plaintiff. lfjudgment for a sale is given and executed, Plaintiff further demands:
a. That, if any deficiency results from the sale of the Property under this court’s
decree, the Plaintiff have judgment for such deficiency against Defendants, and
each of them.
b. That the court clerk be directed to docket and enter the personal judgment
demanded in paragraph I, above, independently of any deficiencyjudgment that
.5.
COMPLAINT
may be entered after sale of the Property under the court’s decree.
IQ 4. For attomey’s fees and costs of suit; and
5, For such other and further relief as this court may deem proper;
Dated: January 17, 20l 8 Respectfully Submitted
OGDQOKUIJLL»
LAST & FAORO,
atrick J. Whitehom
Altomeys for Plaintiff
Stephen Burch.
.5.
COMPLAINT
EXHIBIT A
HOME IMPROVEMENT AGREEMENT
This Home improvement Agreement (the "Agreement") is effective on the date that the second party to sign this
Agreement signs ("Effective Date”) and is between Stephen Burch, General Contractor, doing business as Burch
Construction (the "Contractor’i, an individual with License it 349972, who resides at 23310 Mom Glen Dr., Los Altos,
CA. 94024 and Carol Bowman [the "Owner’) who owns the property located at 12882 Woodmont Drive. Saratoga,
CA 95070 (the "Job Slte").
The parties agree as follows:
1. Contract Documents. This Agreement consists of the terms and conditions set forth below and the disclosures
and notices required by federal and state law and the scope of work and referenced plans attached to this
Agreement as follows:
Attachment A Mechanics Lien Warning‘
Attachment 8 information about the Contractors' State License Board (5L5)
Attachment C Checklist for Home Owner
Attachment D Information about Commercial General Liability insurance
Attachment E California Home improvement Contract Change Order Form
—
Attachment F Notice of Three-Day Right to Cancel (in dupficate)
Attachment G Notice of Cancellation (in duplicate)
Attachment ii Notice of Right to Cancel under Regulation 2 (in duplicate)
Attachment l Notice Required by 12 Code of Federal Regulation Section 226.1.Sidi Effects of Resclsslon
Attachment] Plans
2. Work and Contract Price. Contractor shall perform the construction work based on the approved and permitted
plans prepared by Flury Bryant Design Group dated September 22, 2016 [those plans, the "Pians‘); such work, the
'Work“) ior $478,600 (the ”Contract Price").
3. Start and Completion Dates. On the condition that Owner signs the Agreement and returns it to Contractor on
or before June 10, 2017, Contractor shall start the Work on or around _, 2017. The Work will be
substantially completed within 24 weeks from the date the Work commences, subject to the Owner‘s timely
compliance with her obligations. including her material selection and approval obligations, under this Agreement.
a. Paymens.
A. Payment Schedule. Owner shall pay Contractor $1.000 upon the execution of the Agreement and $40,000 on
the date the Work begins. Contractor shall invoice Owner for completed Work every two weeks after the Work
begins. Owner shall pay Contractor within 5 days of receipt of each invoice. Owner will submit Ownera final invoice
after Contractor has completed the Work shown on the plans and the Work passes the final inspection
3. Down Payment. Under Caliiomia law, THE DOWN PAYM ENT ON A HOME iMPROVEMENT CONTRACT MAY NOT
EXCEED $1,000 OR 10 PERCENT OF THE CONTRACT PRICE, WHICHEVER i5 LESS. Unless Owner exercises her right to
cancel this Agreement by midnight of the third business day after her signing of this Agreement, Contractor may
retain the initial 51,000 payment as a non-refundable deposit if Owner terminates this Agreement for any reason
other than Contractor’s default.
C. interest. Contractor may charge Owner Interest on overdue payments from the date the payment was due
untii paid at a monthly rate of 1.0 96. in the event Owner withholds payment pending settlement of a dispute
Page 1 of 5
asserted in good faith about the scope, quality. or timeliness of the Work. interest shall accrue only on the amount
ultimately paid. Owner's payment of interest on overdue amounts does not abrogate or replace any other rights
Contractor may have against Owner under this Agreement.
0. Punch List. Prior to the completion of the Work. Contractor will ask Owner to inspect the Work and provide
Contractor with a list of any unfinished or nonconfon-ning Worlr (such list, the ”Punch List”). Contractor shall then
complete or correct the items on the Punch List.
E. Final Payment. By paying the final invoice, Owner waives all claims against Contractor related to the Worlr,
except for any claims previously made in writing and delivered to Contractor.
5. Contractor's Responsihilitia.
A. Contractor shall supervise and direct the Work and establish the means. methods. and sequence ofthe Work.
as required to complete the Work.
B. Contractor shall ensure that Work is performed in a safe. orderly and professional manner in keeping with
industry standards.
6. Owner's Responsibilities
A. Owner shall have sole responsibility for securing financing for the Project and for paying fees, charges, or other
costs of such financing, including inspection fees charged by any insurer or lender. The nonperformance of any
insurer or tender shall not affect the obligation of Owner to pay Contractor the Contract Price.
8. Owner shall be responsible for providing electric power and water for the Work.
C. Owner shall be responsible for making material and other selections in a timely manner and shall be solely
responsible for any schedule delays mused by the late selection and delivery of materials resulting from Owner’s
untimely decisions.
D. Owner shall not stop, hinder, delay or interfere with, or permit others to interfere with. the Work;
7. Owner's Repruentations. Owner has notified Contractor of any conditions related to the Job Site that [ii are
known to Owner, (ii) may not be apparent to Contractor and (iii) may affect the nature or the cost of the Work or
delay completion. Such conditions include haxards, unsuitable or unstable soil conditions due to hills or other
conditions, prior defective work of others, latent or concealed defects or code nonvconformities, earlier attempts
to do similar or related work, and obligations imposed by government. Owner also represents and warrants that
she is the Ownerof the property located at the lot: Site and has the financial resources to pay the Contract Price.
Unless Contractor knows such information to be false, Contractor is entitled to rely on the accuracy of the
information provided by Owner.
8. Additional Woric
A. Minor Changes. Owner hereby authorize Contractor to make minor changes in the Work that (ii are in the
interest of Owner. (iii do not materially alter the quality or performance of the Work, (iiii do not affect the cost or
time of performance and (iv! comply with applicable laws.
3. Change Orders. Contractor shall not undertake any work, other than minor changes, inconsistent with the
Plans, until (i) Contractor and Owner document in writing the change (such change, a ‘Change Order") and any
related modifications to the Contract Price. Work schedule or progress payments, and (ii) Owner authorizes such
changes and modifirations in writing. For the purposu of this section, "writing" includes an email communication
Page 2 of 5
or cellphone text. Once approved by Owner, the Change Order and related modifications to the Contract Price,
Work schedule and progress payments become a part of this Agreement and supplement or amend the applicable
provisions of, or attachments to. this Agreement.
C. Required Notice. California Business and Professions Code § 7159(e)(3 I requires Contractor to provide Owner
with the following notice:
Notice: Owner may not require a contractor to perform extra work or change order work without
providing written authorization prior to the commencement of any work covered by the new
change order. Extra work or a change order is not enforceable against an Owner unless the change
order also identifies all of the following in writing prior to the commencement of any work covered
by the new change order:
(1) The scope of work encompassed by the order.
(2) The amount to be added or subtracted from the contract price. and
(3) The effect the change order will have on progress payments or the completion date.
Failureof a contractor to comply with the requirements of this paragraph does not preclude the
recovery of compensation for worit based upon legal or equitable remedies designed to prevent
unjust enrichment.
9. Limited Warranty. Contractor warrants the Work against defects In workmanship for a period of one year from
the date of completion or cessation of Work. Contractor‘s sole obligation for any detective Work will be, at his
option. to repair or replace the Work. in no event will Contractor's obligation to repair or replace exceed the
Contract Price for the applicable Work. This limited warranty does not cover deiects caused by misuse, accident.
earthquake, negligent maintenance or nonnai wear and tear. Owner shall give Contractor written notice of any
defect on or before the day that Is 30 days after the discovery of the defect and the expiration of the one year
warranty period. whicheverls earlier. Owner shall give Contractor reasonable access to the Job Site to inspect and
repair or replace defective Work.
10. LimitedUabilitv. IN NO EVENT SHALL CONTRACTOR BE LIABLE TO THE OWNER FOR ANY INDIRECT, INCIDENTAL,
PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
RELATIONSHIP OF THE PARTIES, WHETHER OR NOT OWNER WERE ADVISED OR KNEW OF THE POSSIBILITY OF SUCH
DAMAGES, AND WHETHER OR NOT THE CAUSE OF ACTION OR THEORY ASSERTED ARISES OUT OF CONTRACT OR
NON-CONTRACTUAL CLAIMS. CONTRACTORS ENTIRE LIABILITY UNDER THIS AGREEMENTSHALL NOT EXCEED THE
AMOUNT PAID BY OWNER FOR THE WORK AS OF THE DATE OF ANY CLAIM. THE FOREGOING LIMITATIONS APPLY
EVEN IF THIS REMEDY FAILS lTS ESSENTIAL PURPOSE.
11. Insurance. A notice about commercial liability insurance is attached to this Agreement.
12. Contractor Claims. ll Contractor determines that any instruction, act or omission of Owner or Owner‘s
representative, or any act by any agency of government increases the costs to Contractor for the Work or requires
extra time or changes the Plans, Contractor shall have the right to assert a claim against Owner for such costs or
time.
13. Dispute Resolution/Mediation.
A. Owner and Contractor shall attempt to resolve any controversy or claim arising out 0! or related to this
Agreement Inforrnally through negotiation. Subject to Section 13 (C), if they are unable to resolve the controversy
Page 3 of S
or claim informally after 45 days, (i) the party claiming damage or harm may file a complaint in any Small Claims
Court having jurisdiction, or (ii) if the controversy or claim is outside the jurisdiction of a Small Claims Court, the
pa nies shall submit the controversy or claim to mediation by a neutral mediator selected by the parties. If the parties
cannot agree on a mediator, at the request of either party. the American Arbitration Association shall designate a
mediator.
B. The mediation shall be treated as a settlement discussion and shall therefore be confidential. Each party shall
bear its own costs in the mediation. The parties shall share the fees and expenses of the mediator equally. if the
parties have not resolved a dispute within 90 days after written notice of the beginning mediation (or a longer
period, if the parties agree to extend the mediation), the mediation shall terminate and either party may exercise
its rights and remedies at law or in equity.
C. Sections 13(A) and (a) shall not prevent a party from seeking and obtaining injunctive relief for any breach of
this Agreement that may cause irreparable harm for which monetary damages may be an inadequate remedy or
difficult to ascertain.
1A. General
A. Governing law. This Agreement is governed and interpreted in accordance with the laws 0! California, without
regard to its choice or conflicts of law principles.
B. Compliance with Laws. Each of Contractor and Owner shall exercise reasonable care to meet the requirements
of state, federal and local law when discharging their responsibilities under this Agreement.
C. Assignment. Contractor may assign Work to subcontractors. Otherwise. neither party may assign its right and
obligations under this Agreement. Any attempted assignment in violation ofthis section is void.
D. Force Maleure. Owner shall excuse Contractor for any delay in completion of the Work mused by acts of the
Owner or Owners agents, acts of God. labor trouble, acts of public utilities or bodies, Change Orders, lire. war,
earthquakes, terrorism, accident, shortage, delay in transportation, or any other cause beyond the reasonable
control of the Contractor.
E Severabllity. If any provision in this Agreement is found invalid or unenforceable, the remainder of this
Agreement will remain in full force and effect.
F. Entire Agreement. This Agreement is the entire Agreement between the parties about the Work and
supersedes all prior or contemporaneous oral or written Agreements, negotiations or understandings between
them about the Work.
G. Counterparts This Agreement may be executed by in counterparts. each of which is deemed an original and
together shall comprise a single Agreement. Each counterpart may be transmitted by facsimile or email in .pdf
format.
Signatures
OWNER HAVETHE RIGHTTO REQUEST A PERFORMANCE AND PAYMENTBOND ON THE PROJECT WHICH ENSURES
THE WORK WILL BE COMPLETED ACCORDING TO THlS AGREEMENT AND THAT LIENS ON THIS JOB ARE DISCHARGED
lN RETURN FOR PAYMENT IN FULL 8‘! OWNER.
Owner are entitled to a completely filled in copy of this Agreement, signed by both Owner and the Contractor,
before any Work may be started.
Page 4 of 5
The law requires mat the Contractor give you a notice expialning your rights as Owner to cancei. By providing your
initiai below. you hereby confirm that the Contractor has given you a notice ofyour Three-Day Right to Cancel.
Dwnefs Initials—”(24
WA
This Agreement is effective whzn signed by Owner and Canmctor.
Owner. Carol Bowman
Signature:
om: Quid—sloug—
Contractor: Seephen 51/1
Signature:
Date: Wkg‘ 2.0]
3
lot I
Page 5 of5
AttachmentA
Mechanics! Lien Warning
Anyone who helps improve your property, but who is not paid. may record what is called a mechanis’ lien on your
property. A mechanlrs' lien is a claim. like a mortgage or home equity loan. made against your property and
recorded with the county recorder.
Even if you pay your contractor in full. unpaid subcontractors, suppliers, and laborers who helped to Improve your
property may record mechanirs' liens and sue you in court to foreclose the lien. if a court finds the lien is valid. you
could be forced to pay twice or have a court officer sell your home to pay the lien. Liens can also affect yourcredil.
To preserve their right to record a lien. each subcontractorand a supplier of material (but not labor) must provide
you with a document called 3 70-Day Preliminary Notice‘. This notice is not a lien. The purpose of the notice is to
let you know that the person who sends you the notice has the right to record a lien on your property if he or she
is not paid.
8E MREFUL The Preliminary Notice can he sent up to 20 days after the subcontractor starts work or the supplier
provides material. This can be a big problem if you pay your contractor before you have received the Preliminary
Notices.
You will not get Preliminary Notices from your prime contractor or from laborers who work on your project. The
law assumes that you already know they are improving your property.
PROTECT YOURSELF FROM LIENS. You can protect yourself from liens by getting a list from your contractor of all
the subcontractors and material suppliers that work on your project. Find out from your contractor when these
subcontractors started work and when these suppliers delivered goods or materials. Then wait 20 days, paying
attention to the Preliminary Notices you receive.
PAV WITH JOINT CHECKS. One way to protect yourself is to pay with a foint check. When your contractor tells you
it is time to pay for the work of a subcontractor or supplier who has provided you with a Preliminary Notice, write
a joint check payable to both the contractor and the subcontractor or material supplier.
For other ways to prevent liens, visit CSLB's Web site at ww.cslb.ca.gov or call SL8 at 800-32 l-GLB (2752).
REMEMBER. IF YOU DO NOTHING. YOU RISK HAVING A LIEN FIACED ON YOUR HOME. This can mean that you may
have to pay twice. or face the forced sale ofyour home to pay what you owe.
Notice required by California Business and Professions Code § 759(c)(4): When payment is made for any portion
of the work performed, Contractor shall prior to any further payment being made, furnish to Owner a full and
unconditional release from any claim or mechanics' lien pursuant to § 3114 of the Civil Code Cor that portion of the
work for which payment has been made.
Attachment A
Attachment 8
information about the Contractors' State License Board (CSLB)
CSLB is the state consumer protection agency that licenses and regulates construction contractors. Contact GL8
for information about the licensed contractor you are considering, Including lniarmaxlon ubuul disclosable
complaints, disciplinary actions and civil judgments that are reported to CSLB. Use only licensed contractors. if you
file a complaint against a licensed contractor within the legal deadline (usually four years). CSLB has authority to
investigate the complaint. if you use an unlicensed contractor, CSLB may not be able to help you resolve your
complaint. Your only remedy may be in civil court. and you may be liable for damagesarising out of any injuries to
the unlicensed contractor or the unlicensed contractor‘s employees.
For more information: Visit (518's Web site at www.clbcagov Call CSLB at EOD-3Zl-CSLB (2752) Write CSLB at RU.
Sax 26000, Sacramento, CA 95826.
Attachment B
Attachment C
Checklist for HomeOwners
Check Out the Contractor
| ] Did you contact the Contractor; State Ucense Board (CSLS) to dteck the status ol the contractor’s license?
Contact the GL6 at 1-800-311-5111 [1752) or visit our web site: muwaibcagou
( l Did you get at least 3 local references from the contractors you are considering?
Did you call them?
I 1 Building Permits - will the contractor get a permit before the work starts?
Check Out the Contract
I I Did you read and do you understand your contract?
[ “Does the 3-day right to cancel a contract apply to you?
Contact the 616 if you don‘t know.
[ 1 Does the contract tell you when work will start and end?
S 1 Does the contract include a detailed description at the work to be done. the material to be used. and equipment to he
installed?
Thls‘ descrlytinn should include brand names, model numbers, quantities and colors. Specific descriptions now will prevent
dispute; later.
[ ]Are you required to pay a down payment?
I] you ore. the down poymcntshould never be more than 10 percent a] the contract price «$2,000. whlcheverl: [ESL
l lls more a schedule of payments?
I/ thereIs a schedule 0/ payments, you should pay only as work is completed and not before. There are some exceptions -
contact the i318 tofind out what they are.
l 1 Did your contractor give you a “Notice to Owner“, 3 warnlng notlce describing liens and ways to prevent them?
Even if you pay your contractor. a lien can be placed on your home by unpaid laborers, subcontractors or material suppliers. A
lien can result in you paying twice or, in some onus, losing your home in oloreclosure. Check the “Notice to Drone/for ways to
protect yourself.
I ] Did you know changes or additions to your contract must be in writlng?
Putting changes in writing reduces the possiblllty of a later dispute.
Attachment c
Attachment D
Information about Commercial General Liability Insurance
I 1Dld your contractor tell you whalhcr he or she cards Commerdal Generallmhlllty Insurance?
Home improvement mmmnars are required by low In (ell you whether ornol they carry Commercial General Liabiliry Insurance.
This written :raxemenr mus! aaampany the bid, if Ihzra ix une. and the cannon.
I ] ls ml: Insurance required?
ND. But the Contractor: State License Board strongly recommend: that all :onrractors :any it. The Boon! motions you to
evaluare the risk (a your [anally and praperry when you hire a contractor who is no: Insured. Ask yourself, if somerhing went
wrong, would (his canxmnorb: able to cover lanes ordinarily covered by insurance?
I )How can you make sure the :onlranor ls lnsured?
Ifhe or she I: inswed, the mnrmtxor is required by law to provide you with the name and telephone number of the insurance
company. check with tho insurance company to ven’fy that [he canyozlar's Insurance coverage will can! your project
I ] What about a commmr who Is self-Insured?
t
A self-insured contractor has made ahuman decision to be personally mpanxible [atlases that would ordinarily be covered
by insurance. Before mnrmcfing will: a self—insured contractor. all: yourself. lfsamerhlng wenr wrung, would this contractor be
able in cover losses should be covered by insurance?
Contracmr is sell-lnsuvedV
For more lnfovmallon about Commercial General Uablllw Insurance, contact the Cnnmmrs State License Board at
www.1slb.n.gov or call IWSZI-GLB (2752).
Attachment D
Attachment E
California Home Improvement Contract - Change Order Form
Contractor Name: Stephen Burch] General Contractor
LICENSE Ii 349972
23310 Mora Gen Dr.
Los lilies, CA 9&024
Owner's Name: Carol Bowman
And
Contractor states that the contract dated lune _, 2017 Is Incorporated by reference In Its entirety Into this Califomla Home
Improvement Change Order and ls changed as described below.
Desulotlon of the change and Dauiptlon of the Signilkzm Materials to be Used and Equipment to be Installed under this change.
L] This change adds the following amount to the Contract Price. 5
L] This change reduces the Contract Price by the Iollowing amnunt:5
L] Flnance charge litany) that vaults (ram this change: 5
L] Eilect this order will have an the Schedule of Progress Payments:
Payments due under this Agreement are hereby adjusted to reflect this change In the Contract Price. Payment for this change
shall become due: (Dale) /
I . Completion date of Work under this Agreement. Including this Change Order, is
adjusted to: (Date) I . l
Note about Extra Work and Change Orders
Extra work and change orders become part at the contract once the order is prepared in writing and signed by the parties prior
to commencement of any work covered by the new change order. The order must dtscrihe the scope of the extra work or
change. the cost to be added or subtracted irom the contract, and the effect the order will have on the schedule of progress
payments. You are entitled to a completely tilled In copy of this Agreement signed by both you and the contractor, belore any
work may he started
_/_/___. _/__/___
Owner' Signature Date Owner' Signature
Date
_.J_/.._
Date
Stephen Burch
Attachment E
Attachment F
Notice of Three-Day Right to Cancel
Date of Transaction: lune fl, 2017
You, the buyer, have the right to cancel this contract within three business days. You may cancel by emailing. mailing. faxing.
or delivering a written notice to the contractor at the contractor's place of business by midnight of the third business day after
you received a signed and dated copy of the contract that includes this notice. include your name, your address. and the date
you received the signed copy of the contract and this notice.
ii you cancel, the contractor must return to you anything you paid within 10 days of receiving the notice of cancellation. For
your part, you must make available to the [unit-actor at your residence, in substantially.“ good condition as you received it,
any goods delivered to you under this contractor sale. Or. you may, If you wish, comply with the contractor's instructions on
how to return the goods at the contractor‘s expense and risk It you do make the goods available to the contractor and the
contractor does not pick them up within 20 days of the date of your notice of cancellation, you may keep them without any
further obligation. if you fail to make the goods available to the contractor. or if you agree to return the goods to the contractor
and fail to do so. then you remain liable for periormance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy oi the Notice o! Cancellation. or any other written notice to:
Stephen Burch] Contractor
LICENSE ‘1 345972
23310 More Glen Dr.
Los Altos, CA 94024
Not later than midnight oi (Date): June _, 2017 (3 days after the Contract Efiective Date)
Calliornla Business and Prolassions Code Section § 7159 rennires that this iorm be signed and dated when the contract is
signed. My signature below acknowledges receipt oi’ this Notice olThree-Day Right to Cancel and two copies of the (arm Notice
Wm
ofCanteilaiion.
AJJJaza I 7
Signature oiOw r Date
I /
Signature oi Owner Date
Attachment F
Attachment F
Notice of Three-Day Right to Cancel
Date of Transaction: lune _, 2017
You, the buyer, have the right to ancel this contract within three business days. You may cancel by emailing, mailing faxing,
or delivering a written notice to the contractor at the contractor's place at business by midnight of the third husinas day after
you received a signed and dated copy oi the contract that includes this notice. lndude your name. your address, and the date
you received the signed copy of the contract and this notice.
if youcancel, the contractor must return to you anything you paid within 10 days of receiving the notice oi ancellation. For
your part. you must make available to the contractor at your residence, In substantially as good condition as you received It,
any goods delivered to you under this contract or sale. Or, you may. ii you wish, comply with the contractor's instructions on
how to return the goods at the contractor‘s expense and risk. it you do make the goods available lo the cantfinor and the
contractor does not pick them up within 20 days of the date at your notice of cancellation, you may keep them without any
further obligation. llyou iall to make the goods available to the contractor. or Ii you agree to return the goods to the contractor
and (all to do so, then you remain liable ior performance of all obligations under the contract.
To rancel this transaction, mail or delivera signed and dated copy of the Notice of Cancellation, or any other written notice to:
Stephen Burctonu-actor
tICENSE ll 349972
2331.0 Mora Glen Dr.
Los Altos, CA 94024
Not later than midnight of (Date): June _, 2017 (three days alter the Contract Eifective Date)
California Business and Professions Code Section 5 7159 requires that this iorm he signed and dated when the contract is
signed. My signature below acknowledges receipt of this Notice oi Three-Day Right to (Lance! and two copies of the form Notice
of Cancellation.
_.._l l..—
Signature oi Owner Date
Signature 0! Owner
_/_I_ Date
Attachment F
Attachment G
Notice of Cancellation (California Business & Professions Code § 7159)
Date the contract was signed: (Date): June _, 2017
You may cancel this transaction, without any penalty or obligation, within three business days from the above date. if you
cancel. any property traded in, any payments made by you under the contact or sale, and any negotiable Instrument executed
by you will be returned within 10 days following receipt by the seller of your cancellation notice. and any security interest
arising out of the transaction will be canceled. ll you cancel. you must make available to the seller at your residence. in
sUbstantially as good condition as when received. any goods delivered to you under this contract or sale, or you may. if you
wish, comply with the Instructions of the seller regarding the return shipment of the goods at the sellei’s expense and rislt. if
you do make the goods available to the seller and the seller does not pick them up within 20 days or the date or your notice or
cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to
the seller. or it you agree to return the goods to the seller and iail to do so‘ then you remain liable (or performance ol all
obligations under the contract."
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice. or
send a telegram to:
Stephen aurchl Contractor
LICENSE it 349972
23310 Mora Glen Dr.
L05 Altos. CA 93024
My cancellation must occur no later than midnight oHDate): June_, 2017.
I hereby cancel this transaction:
Date olcancellation (Dale) ___J_/__
Signature oi Buyer
PRINT TWO (2) COPIES OF THIS FORM.
Attachment G
Attachments
Notice of Cancellation (California Business & Professions Code § 7159)
Date the contract was signed: (Date): June; 2017.
You may cancel this transaction, without any penalty or obligation, within three business days from the above date. If you
cancel, any property traded in. any payments made by you under the contract or sale, and any negotiable instrument executed
by you will be returned within 10 days following receipt by the seller olyaur cancellation notice. and any security interest
arising out of the transaction will be canceled. if you cancel, you must make available to the seller at your raidence, in
substantially as good condition as when received. any goods delivered to you under this contract or sale, or you may, ll you
wish. comply with the instructions oi the seller regarding the return shipment of the goods at the seller’s upense and risk. If
you do make the goods available to the seller and the seller does not pick them up within 20 days of the date oi your notice at
cancellation. you may retain or dispose of the goods without any iunher obligation. If you fall to make the goods available to
the seller. or if you agree to return the goods to the seller and iaii to do so, then you remain iiahie for performance of all
obligations under the contract.”
To cancel this transaction. mail or deliver a signed and dated copy oi this cancellation notice, or any other written notice. or
send a telegram to:
Stephen Burch] Contractor
LICENSE l1 349972
23310 Mom Glen Dr.
Los Altos. CA 9&024
Any cancellation must occur no later than midnight oi (Date): June _4 1017 (three days after the Contract Effective Date).
lhereby cancel this transaction:
Date oi cancellation (Date) _/.__/___
Signature of Sayer
PRINT TWO (2) COPIES OF THIS FORM.
Atmdtment G
Attachment H
NOTICE OF RIGHT TO CANCEL UNDER REGULATION Z
To: Owner
Re: Your Right to Cancel Protect
You are entering into a transaction thatwili result in a security interest being placed on your home. You have a legal ri
Preview
WILLIAM C. LAST, JR. (SBN 83588) PATRICK J. WHITEHORN (SBN 225927) LAST & FAORO E L E Ix) 520 South El Camino Real, Suite 430 San Mateo, California 94402 JAN 1 7 2018 b-l Telephone: (650) 696-8350 Facsimile: (650) 696-8365 C rk of the Court 4‘— LII _ . Attorneys for Plaintiff BY Supe "“'\..:(1c (HQ . ‘ o CountyoiSanta Clara DEPUTY Stephen Burch. omua IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION STEPHEN BURCH an individual doing CASE NO.: 18 C V 32 1 9 3 business as BURCH CONSTRUCTION 3 COMPLAINT FOR: Plaintiff, 1. BREACH OF CONTRACT; vs. 2. QUANTUM MERIUT; 3. OPEN BOOK ACCOUNT; CAROL BOWMAN; and DOES 1.507 4. FORECLOSURE ON MECHANICS’ inclusive, ”EN Defendants. PlaintiITSTEPHEN BURCH an individual doing business as BURCH CONSTRUCTION, alleges as follows: GENERAL ALLEGATIONS Id [\J 1. Plaintiff STEPHEN BURCH an individual doing business as BURCH Ix) bl CONSTRUCTION (“Plaintiff") is. and was, at all times an individual engaged in the business of general IxJ 3:. building construction and is licensed by the State of California to perform as described in this complaint. Plaintiff provided labor, service, equipment, or material, or a combination of those components (“Work”) under a private works contract. ._]- COMPLAINT 2. Plaintiff is informed and believes and thereon alleges that, at all times relevant herein. to Defendant Carol Bowman (BOWMAN is, and at all relevant times to this action, has been a resident of La: the state of California. 3. Plaintiff is unaware of the true names, capacities, or basis for liability of defendants DOES I through 50, inclusive, and sues the DOE defendants by their fictitious names. Plaintiff will amend this complaint (“Complaint”) to allege their true names, capacities, or basis for liability when the same has been ascertained. Plaintiff is informed and believes and alleges thereon that DOES I through 50. inclusive. and each of them, are in some manner liable to Plaintiff, or claim some right, title or interest in the subject property that isjunior and inferior to Plaintiff, or both. 4. Defendants Bowman; and DOES 1-50, and each of them, inclusive shall be referred to collectively as “Defendants." 5. Plaintiff is informed and believes that Defendant BOWMAN is the owner of the Property as hereinafier set forth. 6. Plainti ff is informed and believes and alleges on information and belief that at all relevant times, each defendant, including those fictitiously named DOE defendants, was the agent, servant, employee, partner, joint venturer, or surety of the other defendants and was acting within the scope of said agency. employment, partnership, venture, or suretyship, with the knowledge and consent or ratification of each of the other defendants in doing the things alleged here. 7. The real property and improvements that are subject to this dispute are located in the city of Saratoga. County of Santa Clara, California, with Assessor’s Parcel No. 39340-007, and is commonly known and described as 12882 Woodmont Drive, Saratoga, California 95070 (hereinafter the "Property"). Plaintiff is informed and believes, and based thereon alleges that Defendants, and DOES 1-50, and each of them, inclusive, at all times relevant to this action were, and now are, the IQ at. owner(s) or reputed owner(s) of a fee interest in real property and improvements at the Property, and owner of the construction Project alleged here. 8. On or about June 7 2017, Plaintiff and Defendant BOWMAN, and each of them, entered into an written agreement (the “Contract") in which Plaintiff agreed to furnish labor, service, equipment and materials for a work of improvement on the Property, for an agreed contract price of $478,600.00 .2- COMPLAINT subject to change orders, which Defendant BOWMAN agreed to pay. A true and correct copy of the la Contract is attached hereto and incorporated herein as Exhibit A. The whole of the subject property W and the entire estate of Defendant Owner in the property are required for the convenient use and 4: occupation of the work ofimprovement. VI 9. Between June 2017 and October 20, 2017, pursuant to the above-described Contract, or Ch at the special instance and request of Defendants, or their agents, Plaintiff furnished labor, service, \I equipment and materials that were used and intended to be used in the work of improvement on the DO subject property. 10. Plaintiff has substantially performed all things necessary and required of Plaintiff under 00 the Contract, except to the extent that Plaintiff was prevented or excused from performing by the breaches of Defendants alleged below. 1]. The labor, service, equipment and materials furnished by Plaintiff that remains unpaid has a reasonable value of at least $137,543.93, which Defendant Bowman agreed to pay and which remained unpaid at the time the lien claim was recorded and the time this action was filed. FIRST CAUSE OF ACTION Breach of Contract (Against Defendant BOWAN, and Docs 1-50) 12. Plaintiff incorporates in this cause of action the allegations of paragraphs 1 through ll of the General Allegations. l3. Defendant BOWMAN breached the Contract in that said Defendant failed to make payment to Plaintiff and there is now due, owing, and unpaid, a balance of $137,543.93, plus interest at the legal rate. Further, Plaintiffhas been required to retain Last & Faoro to represent it in this litigation and has incurred attorney fees in an amount according to proof. 14. As a result of said breaches of the Contract, Plaintiffs have been damaged in the sum of $137.543.93 and in such additional sums for costs of delay, lost profits and delay magnified overhead expenses in connection with the work as will be proved at trial. Plaintiff prays for-judgment as set forth below. Ill .3. COMPLAINT SECOND CAUSE OF ACTION IQ Quantum Meruit Ll) (Against Defendant BOWMAN, and Does 1-50) 15. Plaintiff incorporates in this cause of action the allegations of paragraphs 1 through 14 of the Complaint. 16. Within the last two years Defendants became indebted to Plaintiff in the sum of \DOOxIO‘UIJk $137,543.93, or accordingto proof, which is the reasonable value, for work, labor, materials, equipment, and services performed by the Plaintiff for and/or at the special request of Defendants on a work of improvement at the Property. 17. Plaintiff has repeatedly demanded payment from Defendants. l8. Defendants have paid Plaintiffonly $132,731.88, leaving a balance due of$l37,543.93, with interest on that amount at the legal rate from October 20, 2017 or according to proof. Plaintiff prays forjudgment as set forth below. THIRD CAUSE OF ACTION Open Book Account (Against Defendant BOWMAN, and Does 1-50) 19. Plaintiff incorporates in this cause of action the allegations of paragraphs 1 through 18 ofthe Complaint. 20. Defendants became indebted to Plaintiff within the last four years on an open book account for money due. 2l. $137,543.93. which is the reasonable value, is due and unpaid despite Plaintiff’s demand plus prejudgment interest according to proof. Plaintiff prays forjudgment as set forth below. FOURTH CAUSE OF ACTION Foreclosure on Mechanic’s Lien (Against Defendant BOWMAN, and Does 1-20) 22. Plaintiff incorporates in this cause of action the allegations of paragraphs I through 2| of the Complaint. .4. COMPLAINT 23. Plaintiff served on Defendants and recorded a verified claim of lien on October 20, 2017, IQ in the office of the county recorder of Santa Clara County after Plaintiff completed the agreed-on work and before the expiration of 90 days after completion of the work of improvement, no notice of completion or cessation having been recorded. 24. A copy of the claim of lien that includes the required statutory notice of lien is attached OODOxIG’fiL/I-bw to this complaint as Exhibit B and is incorporated by reference. At the time Plaintiff served and recorded the claim of lien. the amount stated in the lien claim remained owing and unpaid. No part of the cost of serving, verifying and recording the lien claim has been repaid. Plaintiff demands judgment as set forth below. _. PRAYER Plaintiff demands judgment from Defendants for: l. Damages in the amount of $137,543.930r according to proof, plus interest payments in an amount to be determined at trial; 2. That the sum of $137,543.93, together with interest provided by law until paid, and the further cost of verifying and recording the Mechanic’s Lien, and costs incurred by Plaintiff in bringing this action, be adjudged and decreed to be a Mechanic’s Lien on the Property described in this Complaint; 3. That the demands of Plaintiff and all persons having claims of lien, or any interest in the real property described in this Complaint, be ascertained and adjudged, and that the interests of Defendant BOWMAN and any persons claiming under them be sold under the decree of this court to satisfy the amount of the lien ascertained and adjudged in favor of Plaintiff. lfjudgment for a sale is given and executed, Plaintiff further demands: a. That, if any deficiency results from the sale of the Property under this court’s decree, the Plaintiff have judgment for such deficiency against Defendants, and each of them. b. That the court clerk be directed to docket and enter the personal judgment demanded in paragraph I, above, independently of any deficiencyjudgment that .5. COMPLAINT may be entered after sale of the Property under the court’s decree. IQ 4. For attomey’s fees and costs of suit; and 5, For such other and further relief as this court may deem proper; Dated: January 17, 20l 8 Respectfully Submitted OGDQOKUIJLL» LAST & FAORO, atrick J. Whitehom Altomeys for Plaintiff Stephen Burch. .5. COMPLAINT EXHIBIT A HOME IMPROVEMENT AGREEMENT This Home improvement Agreement (the "Agreement") is effective on the date that the second party to sign this Agreement signs ("Effective Date”) and is between Stephen Burch, General Contractor, doing business as Burch Construction (the "Contractor’i, an individual with License it 349972, who resides at 23310 Mom Glen Dr., Los Altos, CA. 94024 and Carol Bowman [the "Owner’) who owns the property located at 12882 Woodmont Drive. Saratoga, CA 95070 (the "Job Slte"). The parties agree as follows: 1. Contract Documents. This Agreement consists of the terms and conditions set forth below and the disclosures and notices required by federal and state law and the scope of work and referenced plans attached to this Agreement as follows: Attachment A Mechanics Lien Warning‘ Attachment 8 information about the Contractors' State License Board (5L5) Attachment C Checklist for Home Owner Attachment D Information about Commercial General Liability insurance Attachment E California Home improvement Contract Change Order Form — Attachment F Notice of Three-Day Right to Cancel (in dupficate) Attachment G Notice of Cancellation (in duplicate) Attachment ii Notice of Right to Cancel under Regulation 2 (in duplicate) Attachment l Notice Required by 12 Code of Federal Regulation Section 226.1.Sidi Effects of Resclsslon Attachment] Plans 2. Work and Contract Price. Contractor shall perform the construction work based on the approved and permitted plans prepared by Flury Bryant Design Group dated September 22, 2016 [those plans, the "Pians‘); such work, the 'Work“) ior $478,600 (the ”Contract Price"). 3. Start and Completion Dates. On the condition that Owner signs the Agreement and returns it to Contractor on or before June 10, 2017, Contractor shall start the Work on or around _, 2017. The Work will be substantially completed within 24 weeks from the date the Work commences, subject to the Owner‘s timely compliance with her obligations. including her material selection and approval obligations, under this Agreement. a. Paymens. A. Payment Schedule. Owner shall pay Contractor $1.000 upon the execution of the Agreement and $40,000 on the date the Work begins. Contractor shall invoice Owner for completed Work every two weeks after the Work begins. Owner shall pay Contractor within 5 days of receipt of each invoice. Owner will submit Ownera final invoice after Contractor has completed the Work shown on the plans and the Work passes the final inspection 3. Down Payment. Under Caliiomia law, THE DOWN PAYM ENT ON A HOME iMPROVEMENT CONTRACT MAY NOT EXCEED $1,000 OR 10 PERCENT OF THE CONTRACT PRICE, WHICHEVER i5 LESS. Unless Owner exercises her right to cancel this Agreement by midnight of the third business day after her signing of this Agreement, Contractor may retain the initial 51,000 payment as a non-refundable deposit if Owner terminates this Agreement for any reason other than Contractor’s default. C. interest. Contractor may charge Owner Interest on overdue payments from the date the payment was due untii paid at a monthly rate of 1.0 96. in the event Owner withholds payment pending settlement of a dispute Page 1 of 5 asserted in good faith about the scope, quality. or timeliness of the Work. interest shall accrue only on the amount ultimately paid. Owner's payment of interest on overdue amounts does not abrogate or replace any other rights Contractor may have against Owner under this Agreement. 0. Punch List. Prior to the completion of the Work. Contractor will ask Owner to inspect the Work and provide Contractor with a list of any unfinished or nonconfon-ning Worlr (such list, the ”Punch List”). Contractor shall then complete or correct the items on the Punch List. E. Final Payment. By paying the final invoice, Owner waives all claims against Contractor related to the Worlr, except for any claims previously made in writing and delivered to Contractor. 5. Contractor's Responsihilitia. A. Contractor shall supervise and direct the Work and establish the means. methods. and sequence ofthe Work. as required to complete the Work. B. Contractor shall ensure that Work is performed in a safe. orderly and professional manner in keeping with industry standards. 6. Owner's Responsibilities A. Owner shall have sole responsibility for securing financing for the Project and for paying fees, charges, or other costs of such financing, including inspection fees charged by any insurer or lender. The nonperformance of any insurer or tender shall not affect the obligation of Owner to pay Contractor the Contract Price. 8. Owner shall be responsible for providing electric power and water for the Work. C. Owner shall be responsible for making material and other selections in a timely manner and shall be solely responsible for any schedule delays mused by the late selection and delivery of materials resulting from Owner’s untimely decisions. D. Owner shall not stop, hinder, delay or interfere with, or permit others to interfere with. the Work; 7. Owner's Repruentations. Owner has notified Contractor of any conditions related to the Job Site that [ii are known to Owner, (ii) may not be apparent to Contractor and (iii) may affect the nature or the cost of the Work or delay completion. Such conditions include haxards, unsuitable or unstable soil conditions due to hills or other conditions, prior defective work of others, latent or concealed defects or code nonvconformities, earlier attempts to do similar or related work, and obligations imposed by government. Owner also represents and warrants that she is the Ownerof the property located at the lot: Site and has the financial resources to pay the Contract Price. Unless Contractor knows such information to be false, Contractor is entitled to rely on the accuracy of the information provided by Owner. 8. Additional Woric A. Minor Changes. Owner hereby authorize Contractor to make minor changes in the Work that (ii are in the interest of Owner. (iii do not materially alter the quality or performance of the Work, (iiii do not affect the cost or time of performance and (iv! comply with applicable laws. 3. Change Orders. Contractor shall not undertake any work, other than minor changes, inconsistent with the Plans, until (i) Contractor and Owner document in writing the change (such change, a ‘Change Order") and any related modifications to the Contract Price. Work schedule or progress payments, and (ii) Owner authorizes such changes and modifirations in writing. For the purposu of this section, "writing" includes an email communication Page 2 of 5 or cellphone text. Once approved by Owner, the Change Order and related modifications to the Contract Price, Work schedule and progress payments become a part of this Agreement and supplement or amend the applicable provisions of, or attachments to. this Agreement. C. Required Notice. California Business and Professions Code § 7159(e)(3 I requires Contractor to provide Owner with the following notice: Notice: Owner may not require a contractor to perform extra work or change order work without providing written authorization prior to the commencement of any work covered by the new change order. Extra work or a change order is not enforceable against an Owner unless the change order also identifies all of the following in writing prior to the commencement of any work covered by the new change order: (1) The scope of work encompassed by the order. (2) The amount to be added or subtracted from the contract price. and (3) The effect the change order will have on progress payments or the completion date. Failureof a contractor to comply with the requirements of this paragraph does not preclude the recovery of compensation for worit based upon legal or equitable remedies designed to prevent unjust enrichment. 9. Limited Warranty. Contractor warrants the Work against defects In workmanship for a period of one year from the date of completion or cessation of Work. Contractor‘s sole obligation for any detective Work will be, at his option. to repair or replace the Work. in no event will Contractor's obligation to repair or replace exceed the Contract Price for the applicable Work. This limited warranty does not cover deiects caused by misuse, accident. earthquake, negligent maintenance or nonnai wear and tear. Owner shall give Contractor written notice of any defect on or before the day that Is 30 days after the discovery of the defect and the expiration of the one year warranty period. whicheverls earlier. Owner shall give Contractor reasonable access to the Job Site to inspect and repair or replace defective Work. 10. LimitedUabilitv. IN NO EVENT SHALL CONTRACTOR BE LIABLE TO THE OWNER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES, WHETHER OR NOT OWNER WERE ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT THE CAUSE OF ACTION OR THEORY ASSERTED ARISES OUT OF CONTRACT OR NON-CONTRACTUAL CLAIMS. CONTRACTORS ENTIRE LIABILITY UNDER THIS AGREEMENTSHALL NOT EXCEED THE AMOUNT PAID BY OWNER FOR THE WORK AS OF THE DATE OF ANY CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THIS REMEDY FAILS lTS ESSENTIAL PURPOSE. 11. Insurance. A notice about commercial liability insurance is attached to this Agreement. 12. Contractor Claims. ll Contractor determines that any instruction, act or omission of Owner or Owner‘s representative, or any act by any agency of government increases the costs to Contractor for the Work or requires extra time or changes the Plans, Contractor shall have the right to assert a claim against Owner for such costs or time. 13. Dispute Resolution/Mediation. A. Owner and Contractor shall attempt to resolve any controversy or claim arising out 0! or related to this Agreement Inforrnally through negotiation. Subject to Section 13 (C), if they are unable to resolve the controversy Page 3 of S or claim informally after 45 days, (i) the party claiming damage or harm may file a complaint in any Small Claims Court having jurisdiction, or (ii) if the controversy or claim is outside the jurisdiction of a Small Claims Court, the pa nies shall submit the controversy or claim to mediation by a neutral mediator selected by the parties. If the parties cannot agree on a mediator, at the request of either party. the American Arbitration Association shall designate a mediator. B. The mediation shall be treated as a settlement discussion and shall therefore be confidential. Each party shall bear its own costs in the mediation. The parties shall share the fees and expenses of the mediator equally. if the parties have not resolved a dispute within 90 days after written notice of the beginning mediation (or a longer period, if the parties agree to extend the mediation), the mediation shall terminate and either party may exercise its rights and remedies at law or in equity. C. Sections 13(A) and (a) shall not prevent a party from seeking and obtaining injunctive relief for any breach of this Agreement that may cause irreparable harm for which monetary damages may be an inadequate remedy or difficult to ascertain. 1A. General A. Governing law. This Agreement is governed and interpreted in accordance with the laws 0! California, without regard to its choice or conflicts of law principles. B. Compliance with Laws. Each of Contractor and Owner shall exercise reasonable care to meet the requirements of state, federal and local law when discharging their responsibilities under this Agreement. C. Assignment. Contractor may assign Work to subcontractors. Otherwise. neither party may assign its right and obligations under this Agreement. Any attempted assignment in violation ofthis section is void. D. Force Maleure. Owner shall excuse Contractor for any delay in completion of the Work mused by acts of the Owner or Owners agents, acts of God. labor trouble, acts of public utilities or bodies, Change Orders, lire. war, earthquakes, terrorism, accident, shortage, delay in transportation, or any other cause beyond the reasonable control of the Contractor. E Severabllity. If any provision in this Agreement is found invalid or unenforceable, the remainder of this Agreement will remain in full force and effect. F. Entire Agreement. This Agreement is the entire Agreement between the parties about the Work and supersedes all prior or contemporaneous oral or written Agreements, negotiations or understandings between them about the Work. G. Counterparts This Agreement may be executed by in counterparts. each of which is deemed an original and together shall comprise a single Agreement. Each counterpart may be transmitted by facsimile or email in .pdf format. Signatures OWNER HAVETHE RIGHTTO REQUEST A PERFORMANCE AND PAYMENTBOND ON THE PROJECT WHICH ENSURES THE WORK WILL BE COMPLETED ACCORDING TO THlS AGREEMENT AND THAT LIENS ON THIS JOB ARE DISCHARGED lN RETURN FOR PAYMENT IN FULL 8‘! OWNER. Owner are entitled to a completely filled in copy of this Agreement, signed by both Owner and the Contractor, before any Work may be started. Page 4 of 5 The law requires mat the Contractor give you a notice expialning your rights as Owner to cancei. By providing your initiai below. you hereby confirm that the Contractor has given you a notice ofyour Three-Day Right to Cancel. Dwnefs Initials—”(24 WA This Agreement is effective whzn signed by Owner and Canmctor. Owner. Carol Bowman Signature: om: Quid—sloug— Contractor: Seephen 51/1 Signature: Date: Wkg‘ 2.0] 3 lot I Page 5 of5 AttachmentA Mechanics! Lien Warning Anyone who helps improve your property, but who is not paid. may record what is called a mechanis’ lien on your property. A mechanlrs' lien is a claim. like a mortgage or home equity loan. made against your property and recorded with the county recorder. Even if you pay your contractor in full. unpaid subcontractors, suppliers, and laborers who helped to Improve your property may record mechanirs' liens and sue you in court to foreclose the lien. if a court finds the lien is valid. you could be forced to pay twice or have a court officer sell your home to pay the lien. Liens can also affect yourcredil. To preserve their right to record a lien. each subcontractorand a supplier of material (but not labor) must provide you with a document called 3 70-Day Preliminary Notice‘. This notice is not a lien. The purpose of the notice is to let you know that the person who sends you the notice has the right to record a lien on your property if he or she is not paid. 8E MREFUL The Preliminary Notice can he sent up to 20 days after the subcontractor starts work or the supplier provides material. This can be a big problem if you pay your contractor before you have received the Preliminary Notices. You will not get Preliminary Notices from your prime contractor or from laborers who work on your project. The law assumes that you already know they are improving your property. PROTECT YOURSELF FROM LIENS. You can protect yourself from liens by getting a list from your contractor of all the subcontractors and material suppliers that work on your project. Find out from your contractor when these subcontractors started work and when these suppliers delivered goods or materials. Then wait 20 days, paying attention to the Preliminary Notices you receive. PAV WITH JOINT CHECKS. One way to protect yourself is to pay with a foint check. When your contractor tells you it is time to pay for the work of a subcontractor or supplier who has provided you with a Preliminary Notice, write a joint check payable to both the contractor and the subcontractor or material supplier. For other ways to prevent liens, visit CSLB's Web site at ww.cslb.ca.gov or call SL8 at 800-32 l-GLB (2752). REMEMBER. IF YOU DO NOTHING. YOU RISK HAVING A LIEN FIACED ON YOUR HOME. This can mean that you may have to pay twice. or face the forced sale ofyour home to pay what you owe. Notice required by California Business and Professions Code § 759(c)(4): When payment is made for any portion of the work performed, Contractor shall prior to any further payment being made, furnish to Owner a full and unconditional release from any claim or mechanics' lien pursuant to § 3114 of the Civil Code Cor that portion of the work for which payment has been made. Attachment A Attachment 8 information about the Contractors' State License Board (CSLB) CSLB is the state consumer protection agency that licenses and regulates construction contractors. Contact GL8 for information about the licensed contractor you are considering, Including lniarmaxlon ubuul disclosable complaints, disciplinary actions and civil judgments that are reported to CSLB. Use only licensed contractors. if you file a complaint against a licensed contractor within the legal deadline (usually four years). CSLB has authority to investigate the complaint. if you use an unlicensed contractor, CSLB may not be able to help you resolve your complaint. Your only remedy may be in civil court. and you may be liable for damagesarising out of any injuries to the unlicensed contractor or the unlicensed contractor‘s employees. For more information: Visit (518's Web site at www.clbcagov Call CSLB at EOD-3Zl-CSLB (2752) Write CSLB at RU. Sax 26000, Sacramento, CA 95826. Attachment B Attachment C Checklist for HomeOwners Check Out the Contractor | ] Did you contact the Contractor; State Ucense Board (CSLS) to dteck the status ol the contractor’s license? Contact the GL6 at 1-800-311-5111 [1752) or visit our web site: muwaibcagou ( l Did you get at least 3 local references from the contractors you are considering? Did you call them? I 1 Building Permits - will the contractor get a permit before the work starts? Check Out the Contract I I Did you read and do you understand your contract? [ “Does the 3-day right to cancel a contract apply to you? Contact the 616 if you don‘t know. [ 1 Does the contract tell you when work will start and end? S 1 Does the contract include a detailed description at the work to be done. the material to be used. and equipment to he installed? Thls‘ descrlytinn should include brand names, model numbers, quantities and colors. Specific descriptions now will prevent dispute; later. [ ]Are you required to pay a down payment? I] you ore. the down poymcntshould never be more than 10 percent a] the contract price «$2,000. whlcheverl: [ESL l lls more a schedule of payments? I/ thereIs a schedule 0/ payments, you should pay only as work is completed and not before. There are some exceptions - contact the i318 tofind out what they are. l 1 Did your contractor give you a “Notice to Owner“, 3 warnlng notlce describing liens and ways to prevent them? Even if you pay your contractor. a lien can be placed on your home by unpaid laborers, subcontractors or material suppliers. A lien can result in you paying twice or, in some onus, losing your home in oloreclosure. Check the “Notice to Drone/for ways to protect yourself. I ] Did you know changes or additions to your contract must be in writlng? Putting changes in writing reduces the possiblllty of a later dispute. Attachment c Attachment D Information about Commercial General Liability Insurance I 1Dld your contractor tell you whalhcr he or she cards Commerdal Generallmhlllty Insurance? Home improvement mmmnars are required by low In (ell you whether ornol they carry Commercial General Liabiliry Insurance. This written :raxemenr mus! aaampany the bid, if Ihzra ix une. and the cannon. I ] ls ml: Insurance required? ND. But the Contractor: State License Board strongly recommend: that all :onrractors :any it. The Boon! motions you to evaluare the risk (a your [anally and praperry when you hire a contractor who is no: Insured. Ask yourself, if somerhing went wrong, would (his canxmnorb: able to cover lanes ordinarily covered by insurance? I )How can you make sure the :onlranor ls lnsured? Ifhe or she I: inswed, the mnrmtxor is required by law to provide you with the name and telephone number of the insurance company. check with tho insurance company to ven’fy that [he canyozlar's Insurance coverage will can! your project I ] What about a commmr who Is self-Insured? t A self-insured contractor has made ahuman decision to be personally mpanxible [atlases that would ordinarily be covered by insurance. Before mnrmcfing will: a self—insured contractor. all: yourself. lfsamerhlng wenr wrung, would this contractor be able in cover losses should be covered by insurance? Contracmr is sell-lnsuvedV For more lnfovmallon about Commercial General Uablllw Insurance, contact the Cnnmmrs State License Board at www.1slb.n.gov or call IWSZI-GLB (2752). Attachment D Attachment E California Home Improvement Contract - Change Order Form Contractor Name: Stephen Burch] General Contractor LICENSE Ii 349972 23310 Mora Gen Dr. Los lilies, CA 9&024 Owner's Name: Carol Bowman And Contractor states that the contract dated lune _, 2017 Is Incorporated by reference In Its entirety Into this Califomla Home Improvement Change Order and ls changed as described below. Desulotlon of the change and Dauiptlon of the Signilkzm Materials to be Used and Equipment to be Installed under this change. L] This change adds the following amount to the Contract Price. 5 L] This change reduces the Contract Price by the Iollowing amnunt:5 L] Flnance charge litany) that vaults (ram this change: 5 L] Eilect this order will have an the Schedule of Progress Payments: Payments due under this Agreement are hereby adjusted to reflect this change In the Contract Price. Payment for this change shall become due: (Dale) / I . Completion date of Work under this Agreement. Including this Change Order, is adjusted to: (Date) I . l Note about Extra Work and Change Orders Extra work and change orders become part at the contract once the order is prepared in writing and signed by the parties prior to commencement of any work covered by the new change order. The order must dtscrihe the scope of the extra work or change. the cost to be added or subtracted irom the contract, and the effect the order will have on the schedule of progress payments. You are entitled to a completely tilled In copy of this Agreement signed by both you and the contractor, belore any work may he started _/_/___. _/__/___ Owner' Signature Date Owner' Signature Date _.J_/.._ Date Stephen Burch Attachment E Attachment F Notice of Three-Day Right to Cancel Date of Transaction: lune fl, 2017 You, the buyer, have the right to cancel this contract within three business days. You may cancel by emailing. mailing. faxing. or delivering a written notice to the contractor at the contractor's place of business by midnight of the third business day after you received a signed and dated copy of the contract that includes this notice. include your name, your address. and the date you received the signed copy of the contract and this notice. ii you cancel, the contractor must return to you anything you paid within 10 days of receiving the notice of cancellation. For your part, you must make available to the [unit-actor at your residence, in substantially.“ good condition as you received it, any goods delivered to you under this contractor sale. Or. you may, If you wish, comply with the contractor's instructions on how to return the goods at the contractor‘s expense and risk It you do make the goods available to the contractor and the contractor does not pick them up within 20 days of the date of your notice of cancellation, you may keep them without any further obligation. if you fail to make the goods available to the contractor. or if you agree to return the goods to the contractor and fail to do so. then you remain liable for periormance of all obligations under the contract. To cancel this transaction, mail or deliver a signed and dated copy oi the Notice o! Cancellation. or any other written notice to: Stephen Burch] Contractor LICENSE ‘1 345972 23310 More Glen Dr. Los Altos, CA 94024 Not later than midnight oi (Date): June _, 2017 (3 days after the Contract Efiective Date) Calliornla Business and Prolassions Code Section § 7159 rennires that this iorm be signed and dated when the contract is signed. My signature below acknowledges receipt oi’ this Notice olThree-Day Right to Cancel and two copies of the (arm Notice Wm ofCanteilaiion. AJJJaza I 7 Signature oiOw r Date I / Signature oi Owner Date Attachment F Attachment F Notice of Three-Day Right to Cancel Date of Transaction: lune _, 2017 You, the buyer, have the right to ancel this contract within three business days. You may cancel by emailing, mailing faxing, or delivering a written notice to the contractor at the contractor's place at business by midnight of the third husinas day after you received a signed and dated copy oi the contract that includes this notice. lndude your name. your address, and the date you received the signed copy of the contract and this notice. if youcancel, the contractor must return to you anything you paid within 10 days of receiving the notice oi ancellation. For your part. you must make available to the contractor at your residence, In substantially as good condition as you received It, any goods delivered to you under this contract or sale. Or, you may. ii you wish, comply with the contractor's instructions on how to return the goods at the contractor‘s expense and risk. it you do make the goods available lo the cantfinor and the contractor does not pick them up within 20 days of the date at your notice of cancellation, you may keep them without any further obligation. llyou iall to make the goods available to the contractor. or Ii you agree to return the goods to the contractor and (all to do so, then you remain liable ior performance of all obligations under the contract. To rancel this transaction, mail or delivera signed and dated copy of the Notice of Cancellation, or any other written notice to: Stephen Burctonu-actor tICENSE ll 349972 2331.0 Mora Glen Dr. Los Altos, CA 94024 Not later than midnight of (Date): June _, 2017 (three days alter the Contract Eifective Date) California Business and Professions Code Section 5 7159 requires that this iorm he signed and dated when the contract is signed. My signature below acknowledges receipt of this Notice oi Three-Day Right to (Lance! and two copies of the form Notice of Cancellation. _.._l l..— Signature oi Owner Date Signature 0! Owner _/_I_ Date Attachment F Attachment G Notice of Cancellation (California Business & Professions Code § 7159) Date the contract was signed: (Date): June _, 2017 You may cancel this transaction, without any penalty or obligation, within three business days from the above date. if you cancel. any property traded in, any payments made by you under the contact or sale, and any negotiable Instrument executed by you will be returned within 10 days following receipt by the seller of your cancellation notice. and any security interest arising out of the transaction will be canceled. ll you cancel. you must make available to the seller at your residence. in sUbstantially as good condition as when received. any goods delivered to you under this contract or sale, or you may. if you wish, comply with the Instructions of the seller regarding the return shipment of the goods at the sellei’s expense and rislt. if you do make the goods available to the seller and the seller does not pick them up within 20 days or the date or your notice or cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller. or it you agree to return the goods to the seller and iail to do so‘ then you remain liable (or performance ol all obligations under the contract." To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice. or send a telegram to: Stephen aurchl Contractor LICENSE it 349972 23310 Mora Glen Dr. L05 Altos. CA 93024 My cancellation must occur no later than midnight oHDate): June_, 2017. I hereby cancel this transaction: Date olcancellation (Dale) ___J_/__ Signature oi Buyer PRINT TWO (2) COPIES OF THIS FORM. Attachment G Attachments Notice of Cancellation (California Business & Professions Code § 7159) Date the contract was signed: (Date): June; 2017. You may cancel this transaction, without any penalty or obligation, within three business days from the above date. If you cancel, any property traded in. any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within 10 days following receipt by the seller olyaur cancellation notice. and any security interest arising out of the transaction will be canceled. if you cancel, you must make available to the seller at your raidence, in substantially as good condition as when received. any goods delivered to you under this contract or sale, or you may, ll you wish. comply with the instructions oi the seller regarding the return shipment of the goods at the seller’s upense and risk. If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date oi your notice at cancellation. you may retain or dispose of the goods without any iunher obligation. If you fall to make the goods available to the seller. or if you agree to return the goods to the seller and iaii to do so, then you remain iiahie for performance of all obligations under the contract.” To cancel this transaction. mail or deliver a signed and dated copy oi this cancellation notice, or any other written notice. or send a telegram to: Stephen Burch] Contractor LICENSE l1 349972 23310 Mom Glen Dr. Los Altos. CA 9&024 Any cancellation must occur no later than midnight oi (Date): June _4 1017 (three days after the Contract Effective Date). lhereby cancel this transaction: Date oi cancellation (Date) _/.__/___ Signature of Sayer PRINT TWO (2) COPIES OF THIS FORM. Atmdtment G Attachment H NOTICE OF RIGHT TO CANCEL UNDER REGULATION Z To: Owner Re: Your Right to Cancel Protect You are entering into a transaction thatwili result in a security interest being placed on your home. You have a legal ri