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WILLIAM C. LAST, JR. (SBN 083588)
JONATHAN M. BOWNE (SBN 234930)
LAST & FAORO
520 South El Camino Real, Ste 430
San Mateo, California 94402
Telephone: (650) 696-8350
Facsimile: (650) 696-8365
Attomeys for Ecological Concerns, Incorporated,
a California corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA COUNTY
UNLIMITED CIVIL CASE
176 V3 2109.2
ECOLOGICAL CONCERNS, CASE NO,
INCORPORATED, a California corporation,
COMPLAINT FOR:
Plaintiff,
1} BREACH OF WRITTEN
vs. CONTRACT,
2). QUANTUM MERUIT,
PROVEN MANAGEMENT, INC., a California} 3) CLAIM FOR STATUTORY PROMPT
corporation; SAFECO INSURANCE PAYMENT PENALTIES,
COMPANY OF AMERICA, a New Hampshire | 4) CLAIM ON PUBLIC WORKS
corporation, SANTA CLARA COUNTY PAYMENT BOND,
WATER DISTRICT, a public entity; and DOES} 5) CLAIM ON STOP PAYMENT
1-25, NOTICE, and
6) CLAIM ON CONTRACTOR’S
Defendants, LICENSE BOND
DECLARATORY RELIEF
BY FAX
Plaintiff ECOLOGICAL CONCERNS, INCORPORATED (hereafter "Plaintiff") alleges:
GENERAL ALLEGATIONS
1. Plaintiff, a California corporation, who operates a business related to, inter alia,
landscape construction, whose principal place of business is in the County of Santa Cruz, but
who does business in the County of Santa Clara. At all times herein mentioned, Plaintiff is
and was duly licensed as a building contractor in the State of California.
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2. Plaintiff is informed and believes, and thereon alleges that at all times herein
mentioned, defendant PROVEN MANAGEMENT, INC. (“PROVEN”) is, and was, a
California corporation, whose principal place of business is in County of Alameda, but who
does business in the County of Santa Clara. At all times relevant herein, PROVEN asserted
it was duly ficensed as a building contractor in the State of California.
3. Plaintiff is informed and believes, and thereon alleges, that defendant SAFECO
INSURANCE COMPANY OF AMERICA (“SAFECO”), is, and at all times relevant to this
action was, a New Hampshire corporation duly qualified to do business as a surety under the
laws of the State of California, engaged in the business of issuing surety bonds in connection
with construction projects, and that it issued bonds implicated by the claims herein, as alleged
below.
4, Plaintiff is informed and believes, and thereon alleges, that defendant SANTA
CLARA COUNTY WATER DISTRICT (“DISTRICT”), is, and at all times relevant to this
action was, a public entity formed and existing under the laws of the State of California,
engaged as a water resources management agency, and that it was the owner of the public
work project implicated by the claims herein, as alleged below.
5. Plaintiff does not presently know the names and capacities of Defendants DOES 1
through 25 inclusive, and therefore sues them under fictitious names. Plaintiff will amend this
complaint by inserting their true names and capacities herein when they are ascertained.
6. Plaintiff is informed and believes, and thereon alleges, that each of the
aforedescribed fictitiously named defendants is tortuously, contractually, or otherwise liable to
Plaintiff herein. Plaintiff is further informed and believes, and thereon alleges that the
aforedescribed Defendants and Does | through 25, inclusive, and each of them, hold some
right, title, or interest in the project alleged herein, the exact nature of which is unknown to
Plaintiff.
7. Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned, each of the Defendants was the agent, employee or surety of each of the remaining
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Defendants, and in doing the things hereinafter alleged was acting within the scope of such
‘agency, employment or suretyship and with the permission, at the direction, and/or with the
authorization of each other Defendant.
8. This action arises from a public works construction project which was owned by the
DISTRICT, known as the “Lower Silver Creek Flood Protection and Creek Restoration
Project Reaches 5C-6A / Contract No. C0580” (“PROJECT”), which was located generally
between Story Road and Moss Point Drive in the City of San Jose, County of Santa Clara. On
or about April 24, 2012 the DISTRICT awarded the PROJECT to PROVEN and the
DISTRICT and PROVEN entered into a prime contract for PROVEN to perform the
PROJECT. PROVEN’s PROJECT scope of work included, inter alia, certain landscape
construction work.
FIRST CAUSE OF ACTION
Breach of Written Contract
(Against PROVEN MANAGEMENT, INC., a California corporation, and DOES 1
though 25, inclusive)
9. Plaintiff realleges and incorporates by reference, each and every allegation
contained in Paragraphs 1 through 9, inclusive, herein, as though fully set forth herein.
10. On or about June 8, 2012 Plaintiff and PROVEN entered into a written
subcontract agreement providing that Plaintiff would perform specified landscape construction
work at the PROJECT in exchange for specified payment from PROVEN in the sum of
$341,900.00 (“SUBCONTRACT”),
11. During the course of the PROJECT PROVEN and Plaintiff agreed on at least
five (5) change orders, which modified Plaintiffs scope of work and increased the
SUBCONTRACT amount a total sum of $13,828.51, from $341,900.00 to $355,728.51.
12. Pursuant to the SUBCONTRACT, Plaintiff furnished the necessary services,
materials and equipment that were actually used or consumed in the work of improvement at
the PROJECT. Plaintiff performed all other conditions, covenants and promises required
under the SUBCONTRACT on its part to be performed, except to the extent prevented or
excused by the PROVEN’s own breaches.
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13. Plaintiff has performed $163,505.56 in work per the SUBCONTRACT.
Although demand therefore has been made, PROVEN breached the SUBCONTRACT to the
damage of Plaintiff, in that PROVEN has paid Plaintiff only $112,171.95, and failed to pay
Plaintiff the principle sum of $51,333.61, and there is now due and unpaid to Plaintiff,
pursuant to the SUBCONTRACT since in or about December 2016, a balance of $51,333.61
plus interest at the legal rate.
14, Furthermore, PROVEN has breached the SUBCONTRACT by abandoning the
SUBCONTRACT by, inter alia, demobalizing from the PROJECT and demobalizing Plaintiff
from the PROJECT, and failing and/or refusing to remobilize Plaintiff and/or authorizing
Plaintiff to complete it work on the PROJECT. As a result Plaintiff has suffered damages,
incliding forewent profits which it would have earned and been paid per the
SUBCONTRACT if it was permited to complete work.
15. Section G(2) of the SUBCONTRACT’s “General Subcontract Provision”
provides that the prevailing party in litigation shall be awarded their attorney and consulting
fees and other costs as the trier of fact deems equitable under the circumstances, and Plaintiff
hereby demands the same herein,
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
SECOND CAUSE OF ACTION
Quantum Meruit
(Against PROVEN MANAGEMENT, INC,, a California corporation, and DOES 1
though 25, inclusive)
16. Plaintiff realleges and incorporates by reference, each, all, and every allegation
contained in Paragraphs 1 through 14, inclusive of this Complaint as thought fully set forth
herein.
17. Plaintiff is informed and believes and thereon alleges that within the last four
years PROVEN became indebted to Plaintiff in the agreed sum for work, materials, and
services performed by Plaintiff and money laid out by the Plaintiff for and/or at the special
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request of PROVEN for the PROJECT. Plaintiff has repeatedly demanded payment from
PROVEN.
18. Plaintiff is informed and believes and based thereon alleges that the labor,
services, equipment, and materials furnished by Plaintiff, which PROVEN, agreed in writing
to pay, has a reasonable and current market value of $51,333.61. This amount remains unpaid,
due, and owing, plus interest.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
THIRD CAUSE OF ACTION
Claim for Statutory Prompt Payment Penalties
(Against PROVEN MANAGEMENT, INC., a California corporation, and DOES 1
though 25, inclusive)
19. Plaintiff realleges and iticorporates by reference, each, all, and every allegation
contained in Paragraphs | through 17, inclusive of this Complaint as thought fully set forth
herein.
20. Pursuant to statute, PROVEN was obligated to pay Plaintiff progress payments
and/or retention payment, including the 551,333.61 alleged due herein, within a certain
number of days. Notwithstanding this mandate PROVEN failed to pay to Plaintiff the said
sums within the required timeframes. In doing so PROVEN violated the said statutes entitling
Plaintiff to “prompt payment penalties” equal to two percent (2%) per month on the
improperly withheld amount.
21. No bona fide dispute existed or exists between, Plaintiff and PROVEN related to
all or a portion of the $51,333.61 alleged due herein.
22. ‘By statute, Plaintiff is entitled to ‘be awarded the attorney’s fees and costs
incurred in the filing and prosecution of this action. Plaintiff has retained attorneys to pursue
this élaim and has and will continue to accrue attorney’s fees.and costs.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
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FOURTH CAUSE OF ACTION
Claim on Payment Bond
(Against PROVEN MANAGEMENT, INC., a California corporation; SAFECO
INSURANCE COMPANY OF AMERICA, an New Hampshire corporation; and DOES 1
though 25, inclusive)
23. Plaintiff realleges and incorporates by reference, each, all, and every allegation
contained in Paragraphs | through 21, inclusive of this Complaint as though fully set forth
herein.
24. Plaintiff is informed and believes that PROVEN, as principal and SAFECO, as
surety executed a public works payment bond under Civil Code §8600 et seq., relative to the
PROJECT, which was thereafter filed and approved by the DISTRICT. This bond was
conditioned, and provided that if the original contractor failed to pay for any materials,
provisions, or other supplies used in, on, for, or about the construction of the work of
improvement on the PROJECT, or for any work or labor done thereon of any kind, that surety
on the bond would pay the same.
25, A balance of the amount claimed in the sum of $51,333.6lis past due, owing
and unpaid to Plaintiff by PROVEN. This said unpaid sum arises from the SUBCONTRACT
between Plaintiff and PROVEN, and Plaintiff's work at the PROJECT performed pursuant to
the same. Plaintiff has made demand said defendants for payment of the balance, but they
have failed and refused and continue to fai] and refuse to pay the sum or any part thereof.
26. Plaintiff timely and duly served proper and required notice of its claims on the
PROJECT, including a California Preliminary Notice.
27. Pursuant to the terms of the said public works payment bond and Civil Code
§9550 et seq., the principal unpaid amount of $51,333.6lis due under the said bond. Also,
pursuant to Civil Code §§9554 and 9564, as duly incorporated into the said public works
payment bond, Plaintiff is entitled to its reasonable attorneys’ fees to be fixed by the court, for
costs of suit, and for prejudgment interest from in or about December 2016 on the sum
$51,333.61at the legal rate.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
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FIFTH CAUSE OF ACTION
Claim on Stop Payment Notice
(Against T.B. PENICK & SONS, INC., a California corporation; SANTA CLARA
COUNTY WATER DISTRICT, an New Hampshire corporation; and DOES | though 25,
inclusive, and each of them)
28. Plaintiff realleges and incorporates by reference each and every allegation of the
above paragraphs I through 26, inclusive, as if fully set forth herein.
29, Onor about February 6, 2017 Plaintiff served on the DISTRICT a Stop Payment
Notice relative to the amounts owed on the PROJECT, stating an amount owed of $38,651.34.
30. Plaintiff hereby asserts a claim on the said Stop Payment Notice, plus interest at
the legal rate from in or about February 6, 2017.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth.
SIXTH CAUSE OF ACTION
Claim on Contractor’s License Bond
(Against PROVEN MANAGEMENT, INC.,.a California corporation; SAFECO
INSURANCE COMPANY OF AMERICA, an New Hampshire corporation; and DOES 1
though 25, inclusive, and each of them)
31. Plaintiff realleges and incorporates by reference each and every allegation of the
above paragraphs 1 through 29, inclusive, as if fully set forth herein.
32. Plaintiff is informed and believes and based thereon. alleges that PROVEN, as
principal, and SAFECO, as surety made and executed and filed as required by Business &
Professions Code §7071.6, one or more bonds conditioned upon PROVEN’s complete
compliance with all provisions of Business and Professions Code Division 3, Chapter 9
(§§7000-7173) and inuring to the benefit of any person damaged as a result of violation said
provisions. Plaintiff is informed and believes and based thereon alleges that the said bond is
identified as Bond # 100200070.
33. Plaintiff is informed and believes and alleges that alleges that PROVEN violated
the applicable Business and Professions Code sections while performing work on the
PROJECT, to the damage of Plaintiff, who as a result has been damaged in an amount which
exceeds the sum of bond.
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25.
34. Accordingly SAFECO is indebed to Plaintiff for the damages alleged herein up
to the penal sum of the said bond or bonds.
WHEREFORE, Plaintiff prays for relief as hereinafter set forth
SEVENTH CAUSE OF ACTION
Declaratory Relief
(Against PROVEN MANAGEMENT, INC., a California corporation; and DOES 1
though 25, inclusive; and each of them)
35. Plaintiff realleges and incorporates by reference each and every allegation of the
above paragraphs | through 33, inclusive, as if fully set forth herein.
36. Plaintiff contends that it is no longer obligated to perform work under the
SUBCONTRACT and that PROVEN has abandoned the SUBCONTRACT, and that the
passage of time, the change in site conditions, and modifications to the work required to
complete the PROJECT have dramticly increased. Plaintiff is informed and believes and
thereon alleges that PROVEN will deny this contention, Thus an actual controversy exists
between the parties.
37. Plaintiff desires a judicial determination of its rights and duties and a declaration
of the rights and duties of Plaintiff and PROVEN. Plaintiff therefore desires a judicial
determination and declaration of Plaintiffs and PROVEN rights and duties. Plaintiff has no
other adequate remedy at law for determining the rights and duties of all of the respective
parties,
WHEREFORE, Plaintiff prays for relief as hereinafter set forth
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays judgment as follows:
1. On the First Cause of Action, for judgment against PROVEN and DOES 1
26 || through 25, inclusive, and each of them, in the sum of $51,333.61principal, plus interest at the
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legal rate from in or about December 2016 to the date of entry of judgment, plus reasonable
costs, including expert witness fees, and attorneys fees; ,
2. On the Second Cause of Action, for judgment against PROVEN and DOES |
through 25, inclusive, and each of them, in the sum of $51,333.61 principal, plus interest at the
legal rate from in or about December 2016 to the date of entry of judgment, plus costs;
3.. On the Third Cause of Action, for judgment against PROVEN and DOES 1
through 25, inclusive, and each of them, in the sum equal to 2% of wrongfully withheld
amounts as calculated per the applicable prompt payment penalty statute(s), plus attorney’s fees
and costs; ,
4. On the Fourth Cause of Action, for judgment against PROVEN and DOES |
through 25, inclusive, and each of them, and SAFECO, inclusive, and each of them, in the sum
tof $51,333.6ltogether with interest at the legal rate from in or about December 2016 to the date
of entry of judgment, plus attomey’s fees and costs.
5. On the Fifth Cause of Action, for judgment against PROVEN and DOES 1 |
through 25, inclusive, and each of them, and DISTRICT, inclusive, and each of them, in the
sum stated in the said Stop Payment Notice, together with interest at the legal rate from in or
about December 2016 to the date of entry of judgment, and costs.
6. On the Sixth Cause of Action, for judgment against PROVEN and DOES 1
| through 25, inclusive, and each of them, and SAFECO, inclusive, and each of them, in the
amount of the full penal sum of the contractor’s license bond, together with interest at.the legal
rate from in or about December 2016 to the date of entry of judgment, and costs.
7. On the Seventh Cause of Action, for a declaration determining the rights and
obligations of the parties.
4, Attorneys fees;
5. For the costs of suit herein; and
6. Such other and further relief as this court deems just and proper.
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Ecological Concerns, Incorporated’s Complaint|/DATED: December 26. 2017
Plaintif! Eevlogical Concerns Ineorportted
or tence
Ecological Concerns, Incerperated’s Complaint
Preview
rye wo mI DA eh BF WwW NY = eee Coe uU Aw RF DH HS WILLIAM C. LAST, JR. (SBN 083588) JONATHAN M. BOWNE (SBN 234930) LAST & FAORO 520 South El Camino Real, Ste 430 San Mateo, California 94402 Telephone: (650) 696-8350 Facsimile: (650) 696-8365 Attomeys for Ecological Concerns, Incorporated, a California corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA COUNTY UNLIMITED CIVIL CASE 176 V3 2109.2 ECOLOGICAL CONCERNS, CASE NO, INCORPORATED, a California corporation, COMPLAINT FOR: Plaintiff, 1} BREACH OF WRITTEN vs. CONTRACT, 2). QUANTUM MERUIT, PROVEN MANAGEMENT, INC., a California} 3) CLAIM FOR STATUTORY PROMPT corporation; SAFECO INSURANCE PAYMENT PENALTIES, COMPANY OF AMERICA, a New Hampshire | 4) CLAIM ON PUBLIC WORKS corporation, SANTA CLARA COUNTY PAYMENT BOND, WATER DISTRICT, a public entity; and DOES} 5) CLAIM ON STOP PAYMENT 1-25, NOTICE, and 6) CLAIM ON CONTRACTOR’S Defendants, LICENSE BOND DECLARATORY RELIEF BY FAX Plaintiff ECOLOGICAL CONCERNS, INCORPORATED (hereafter "Plaintiff") alleges: GENERAL ALLEGATIONS 1. Plaintiff, a California corporation, who operates a business related to, inter alia, landscape construction, whose principal place of business is in the County of Santa Cruz, but who does business in the County of Santa Clara. At all times herein mentioned, Plaintiff is and was duly licensed as a building contractor in the State of California. T Ecological Concerns, Incorporated’s Complaintom NY AH Rh BW NH — Be ee ee ek 2. Plaintiff is informed and believes, and thereon alleges that at all times herein mentioned, defendant PROVEN MANAGEMENT, INC. (“PROVEN”) is, and was, a California corporation, whose principal place of business is in County of Alameda, but who does business in the County of Santa Clara. At all times relevant herein, PROVEN asserted it was duly ficensed as a building contractor in the State of California. 3. Plaintiff is informed and believes, and thereon alleges, that defendant SAFECO INSURANCE COMPANY OF AMERICA (“SAFECO”), is, and at all times relevant to this action was, a New Hampshire corporation duly qualified to do business as a surety under the laws of the State of California, engaged in the business of issuing surety bonds in connection with construction projects, and that it issued bonds implicated by the claims herein, as alleged below. 4, Plaintiff is informed and believes, and thereon alleges, that defendant SANTA CLARA COUNTY WATER DISTRICT (“DISTRICT”), is, and at all times relevant to this action was, a public entity formed and existing under the laws of the State of California, engaged as a water resources management agency, and that it was the owner of the public work project implicated by the claims herein, as alleged below. 5. Plaintiff does not presently know the names and capacities of Defendants DOES 1 through 25 inclusive, and therefore sues them under fictitious names. Plaintiff will amend this complaint by inserting their true names and capacities herein when they are ascertained. 6. Plaintiff is informed and believes, and thereon alleges, that each of the aforedescribed fictitiously named defendants is tortuously, contractually, or otherwise liable to Plaintiff herein. Plaintiff is further informed and believes, and thereon alleges that the aforedescribed Defendants and Does | through 25, inclusive, and each of them, hold some right, title, or interest in the project alleged herein, the exact nature of which is unknown to Plaintiff. 7. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, each of the Defendants was the agent, employee or surety of each of the remaining 2 Ecological Concerns, Incorporated’s ComplaintCc oN DH FF YW YD & Ny wy —- oe Bee ee SBkS Se TR aGRESEH SS 24 Defendants, and in doing the things hereinafter alleged was acting within the scope of such ‘agency, employment or suretyship and with the permission, at the direction, and/or with the authorization of each other Defendant. 8. This action arises from a public works construction project which was owned by the DISTRICT, known as the “Lower Silver Creek Flood Protection and Creek Restoration Project Reaches 5C-6A / Contract No. C0580” (“PROJECT”), which was located generally between Story Road and Moss Point Drive in the City of San Jose, County of Santa Clara. On or about April 24, 2012 the DISTRICT awarded the PROJECT to PROVEN and the DISTRICT and PROVEN entered into a prime contract for PROVEN to perform the PROJECT. PROVEN’s PROJECT scope of work included, inter alia, certain landscape construction work. FIRST CAUSE OF ACTION Breach of Written Contract (Against PROVEN MANAGEMENT, INC., a California corporation, and DOES 1 though 25, inclusive) 9. Plaintiff realleges and incorporates by reference, each and every allegation contained in Paragraphs 1 through 9, inclusive, herein, as though fully set forth herein. 10. On or about June 8, 2012 Plaintiff and PROVEN entered into a written subcontract agreement providing that Plaintiff would perform specified landscape construction work at the PROJECT in exchange for specified payment from PROVEN in the sum of $341,900.00 (“SUBCONTRACT”), 11. During the course of the PROJECT PROVEN and Plaintiff agreed on at least five (5) change orders, which modified Plaintiffs scope of work and increased the SUBCONTRACT amount a total sum of $13,828.51, from $341,900.00 to $355,728.51. 12. Pursuant to the SUBCONTRACT, Plaintiff furnished the necessary services, materials and equipment that were actually used or consumed in the work of improvement at the PROJECT. Plaintiff performed all other conditions, covenants and promises required under the SUBCONTRACT on its part to be performed, except to the extent prevented or excused by the PROVEN’s own breaches. 3 Ecological Concerns, Incorporated’s Complaintv \ ! 4 13. Plaintiff has performed $163,505.56 in work per the SUBCONTRACT. Although demand therefore has been made, PROVEN breached the SUBCONTRACT to the damage of Plaintiff, in that PROVEN has paid Plaintiff only $112,171.95, and failed to pay Plaintiff the principle sum of $51,333.61, and there is now due and unpaid to Plaintiff, pursuant to the SUBCONTRACT since in or about December 2016, a balance of $51,333.61 plus interest at the legal rate. 14, Furthermore, PROVEN has breached the SUBCONTRACT by abandoning the SUBCONTRACT by, inter alia, demobalizing from the PROJECT and demobalizing Plaintiff from the PROJECT, and failing and/or refusing to remobilize Plaintiff and/or authorizing Plaintiff to complete it work on the PROJECT. As a result Plaintiff has suffered damages, incliding forewent profits which it would have earned and been paid per the SUBCONTRACT if it was permited to complete work. 15. Section G(2) of the SUBCONTRACT’s “General Subcontract Provision” provides that the prevailing party in litigation shall be awarded their attorney and consulting fees and other costs as the trier of fact deems equitable under the circumstances, and Plaintiff hereby demands the same herein, WHEREFORE, Plaintiff prays for relief as hereinafter set forth. SECOND CAUSE OF ACTION Quantum Meruit (Against PROVEN MANAGEMENT, INC,, a California corporation, and DOES 1 though 25, inclusive) 16. Plaintiff realleges and incorporates by reference, each, all, and every allegation contained in Paragraphs 1 through 14, inclusive of this Complaint as thought fully set forth herein. 17. Plaintiff is informed and believes and thereon alleges that within the last four years PROVEN became indebted to Plaintiff in the agreed sum for work, materials, and services performed by Plaintiff and money laid out by the Plaintiff for and/or at the special 4 Ecological Concerns, Incorporated’s Complaintw N oN eee Bo BRB Se Aa DEC HR AS po Se IW Du FF YL request of PROVEN for the PROJECT. Plaintiff has repeatedly demanded payment from PROVEN. 18. Plaintiff is informed and believes and based thereon alleges that the labor, services, equipment, and materials furnished by Plaintiff, which PROVEN, agreed in writing to pay, has a reasonable and current market value of $51,333.61. This amount remains unpaid, due, and owing, plus interest. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. THIRD CAUSE OF ACTION Claim for Statutory Prompt Payment Penalties (Against PROVEN MANAGEMENT, INC., a California corporation, and DOES 1 though 25, inclusive) 19. Plaintiff realleges and iticorporates by reference, each, all, and every allegation contained in Paragraphs | through 17, inclusive of this Complaint as thought fully set forth herein. 20. Pursuant to statute, PROVEN was obligated to pay Plaintiff progress payments and/or retention payment, including the 551,333.61 alleged due herein, within a certain number of days. Notwithstanding this mandate PROVEN failed to pay to Plaintiff the said sums within the required timeframes. In doing so PROVEN violated the said statutes entitling Plaintiff to “prompt payment penalties” equal to two percent (2%) per month on the improperly withheld amount. 21. No bona fide dispute existed or exists between, Plaintiff and PROVEN related to all or a portion of the $51,333.61 alleged due herein. 22. ‘By statute, Plaintiff is entitled to ‘be awarded the attorney’s fees and costs incurred in the filing and prosecution of this action. Plaintiff has retained attorneys to pursue this élaim and has and will continue to accrue attorney’s fees.and costs. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. 3 Ecological Concerns, Incorporated’s Complaintv Do MAY DH HW F&F YW NY 10 FOURTH CAUSE OF ACTION Claim on Payment Bond (Against PROVEN MANAGEMENT, INC., a California corporation; SAFECO INSURANCE COMPANY OF AMERICA, an New Hampshire corporation; and DOES 1 though 25, inclusive) 23. Plaintiff realleges and incorporates by reference, each, all, and every allegation contained in Paragraphs | through 21, inclusive of this Complaint as though fully set forth herein. 24. Plaintiff is informed and believes that PROVEN, as principal and SAFECO, as surety executed a public works payment bond under Civil Code §8600 et seq., relative to the PROJECT, which was thereafter filed and approved by the DISTRICT. This bond was conditioned, and provided that if the original contractor failed to pay for any materials, provisions, or other supplies used in, on, for, or about the construction of the work of improvement on the PROJECT, or for any work or labor done thereon of any kind, that surety on the bond would pay the same. 25, A balance of the amount claimed in the sum of $51,333.6lis past due, owing and unpaid to Plaintiff by PROVEN. This said unpaid sum arises from the SUBCONTRACT between Plaintiff and PROVEN, and Plaintiff's work at the PROJECT performed pursuant to the same. Plaintiff has made demand said defendants for payment of the balance, but they have failed and refused and continue to fai] and refuse to pay the sum or any part thereof. 26. Plaintiff timely and duly served proper and required notice of its claims on the PROJECT, including a California Preliminary Notice. 27. Pursuant to the terms of the said public works payment bond and Civil Code §9550 et seq., the principal unpaid amount of $51,333.6lis due under the said bond. Also, pursuant to Civil Code §§9554 and 9564, as duly incorporated into the said public works payment bond, Plaintiff is entitled to its reasonable attorneys’ fees to be fixed by the court, for costs of suit, and for prejudgment interest from in or about December 2016 on the sum $51,333.61at the legal rate. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. ¢ Ecological Concerns, Incorporated’s Complaint~ we ee HT DH HA FF WY NH weet @raanw se GS Hs FIFTH CAUSE OF ACTION Claim on Stop Payment Notice (Against T.B. PENICK & SONS, INC., a California corporation; SANTA CLARA COUNTY WATER DISTRICT, an New Hampshire corporation; and DOES | though 25, inclusive, and each of them) 28. Plaintiff realleges and incorporates by reference each and every allegation of the above paragraphs I through 26, inclusive, as if fully set forth herein. 29, Onor about February 6, 2017 Plaintiff served on the DISTRICT a Stop Payment Notice relative to the amounts owed on the PROJECT, stating an amount owed of $38,651.34. 30. Plaintiff hereby asserts a claim on the said Stop Payment Notice, plus interest at the legal rate from in or about February 6, 2017. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. SIXTH CAUSE OF ACTION Claim on Contractor’s License Bond (Against PROVEN MANAGEMENT, INC.,.a California corporation; SAFECO INSURANCE COMPANY OF AMERICA, an New Hampshire corporation; and DOES 1 though 25, inclusive, and each of them) 31. Plaintiff realleges and incorporates by reference each and every allegation of the above paragraphs 1 through 29, inclusive, as if fully set forth herein. 32. Plaintiff is informed and believes and based thereon. alleges that PROVEN, as principal, and SAFECO, as surety made and executed and filed as required by Business & Professions Code §7071.6, one or more bonds conditioned upon PROVEN’s complete compliance with all provisions of Business and Professions Code Division 3, Chapter 9 (§§7000-7173) and inuring to the benefit of any person damaged as a result of violation said provisions. Plaintiff is informed and believes and based thereon alleges that the said bond is identified as Bond # 100200070. 33. Plaintiff is informed and believes and alleges that alleges that PROVEN violated the applicable Business and Professions Code sections while performing work on the PROJECT, to the damage of Plaintiff, who as a result has been damaged in an amount which exceeds the sum of bond. 7 Ecological Concerns, Incorporated’s Complaintwv om NW A UW FF YN seta ma uy DH HY F&F YW NY KY S&S 25. 34. Accordingly SAFECO is indebed to Plaintiff for the damages alleged herein up to the penal sum of the said bond or bonds. WHEREFORE, Plaintiff prays for relief as hereinafter set forth SEVENTH CAUSE OF ACTION Declaratory Relief (Against PROVEN MANAGEMENT, INC., a California corporation; and DOES 1 though 25, inclusive; and each of them) 35. Plaintiff realleges and incorporates by reference each and every allegation of the above paragraphs | through 33, inclusive, as if fully set forth herein. 36. Plaintiff contends that it is no longer obligated to perform work under the SUBCONTRACT and that PROVEN has abandoned the SUBCONTRACT, and that the passage of time, the change in site conditions, and modifications to the work required to complete the PROJECT have dramticly increased. Plaintiff is informed and believes and thereon alleges that PROVEN will deny this contention, Thus an actual controversy exists between the parties. 37. Plaintiff desires a judicial determination of its rights and duties and a declaration of the rights and duties of Plaintiff and PROVEN. Plaintiff therefore desires a judicial determination and declaration of Plaintiffs and PROVEN rights and duties. Plaintiff has no other adequate remedy at law for determining the rights and duties of all of the respective parties, WHEREFORE, Plaintiff prays for relief as hereinafter set forth PRAYER FOR RELIEF WHEREFORE, Plaintiff prays judgment as follows: 1. On the First Cause of Action, for judgment against PROVEN and DOES 1 26 || through 25, inclusive, and each of them, in the sum of $51,333.61principal, plus interest at the 27 28 8 Ecological Concerns, Incorporated’s Complaintoo UO BD HY BR YN | ms legal rate from in or about December 2016 to the date of entry of judgment, plus reasonable costs, including expert witness fees, and attorneys fees; , 2. On the Second Cause of Action, for judgment against PROVEN and DOES | through 25, inclusive, and each of them, in the sum of $51,333.61 principal, plus interest at the legal rate from in or about December 2016 to the date of entry of judgment, plus costs; 3.. On the Third Cause of Action, for judgment against PROVEN and DOES 1 through 25, inclusive, and each of them, in the sum equal to 2% of wrongfully withheld amounts as calculated per the applicable prompt payment penalty statute(s), plus attorney’s fees and costs; , 4. On the Fourth Cause of Action, for judgment against PROVEN and DOES | through 25, inclusive, and each of them, and SAFECO, inclusive, and each of them, in the sum tof $51,333.6ltogether with interest at the legal rate from in or about December 2016 to the date of entry of judgment, plus attomey’s fees and costs. 5. On the Fifth Cause of Action, for judgment against PROVEN and DOES 1 | through 25, inclusive, and each of them, and DISTRICT, inclusive, and each of them, in the sum stated in the said Stop Payment Notice, together with interest at the legal rate from in or about December 2016 to the date of entry of judgment, and costs. 6. On the Sixth Cause of Action, for judgment against PROVEN and DOES 1 | through 25, inclusive, and each of them, and SAFECO, inclusive, and each of them, in the amount of the full penal sum of the contractor’s license bond, together with interest at.the legal rate from in or about December 2016 to the date of entry of judgment, and costs. 7. On the Seventh Cause of Action, for a declaration determining the rights and obligations of the parties. 4, Attorneys fees; 5. For the costs of suit herein; and 6. Such other and further relief as this court deems just and proper. 9 Ecological Concerns, Incorporated’s Complaint|/DATED: December 26. 2017 Plaintif! Eevlogical Concerns Ineorportted or tence Ecological Concerns, Incerperated’s Complaint