Motion-Secondary: BRUCE JAMES BERGER et al VS. AMEC CONSTRUCTION MANAGEMENT, INC et al

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                                JEANNE SCHERER, Chief Counsel

LAUREN A. MACHADO, Deputy Chief Counsel TILED.
JOANN GEORGALLIS, Assistant Chief Counsel

ALEKSANDRA SACHOWICZ, Deputy Attorney, Bar No, 169597 Superior Court of Caltfomia,

Aleksandra.Sachowiez@dot.ca.gov 09/217 20 16
1120 N Street (MS 57) P.O. Box 1438 09/21/2016
Sacramento, California 95812-1438 BY:MADONNA CARANTO
Telephone: (916) 654-2630 Deputy Clerk

Facsimile: (916) 654-6128

Altorneys for Defendant/Respondent,
California Department of Transportation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

BRUCE JAMES BERGER; KEVIN D.
CHURCHILL; CHARLES C. FRANCO;
EDWARD LEACH; WILLIAM WEST, III;
MARK WRIGHT, and CHARLES A.
PATRICK

Case No. CPF-12-511817

DEFENDANT/RESPONDENT
CALIFORNIA DEPARTMENT OF
TRANSPORTATION’S OPPOSITION TO
PLAINTIFFS/PETITIONERS’ EX-PARTE
APPLICATION FOR ORDER
SHORTENING TIME FOR NOTICE AND
HEARING ON MOTION FOR ORDER

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Plaintiffs/Petitioners, )
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AMEC CONSTRUCTION MANAGEMENT, ) GRANTING LEAVE TO FILE A
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INC.; AMEC ENVIRONMENTAL & SUPPLEMENTAL COMPLAINT;

INFRASTRUCTURE, INC. and MEMORANDUM OF POINTS AND
CALIFORNIA DEPARTMENT OF AUTHORITIES AND DECLARATION OF|
TRANSPORTATION, ALEKSANDRA SACHOWICZ

Defendants/Respondents,
DATE: September 22, 2016
TIME: 11:00 a.m.
DEPT: 302

Complaint Filed January 11, 2012
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TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Defendant/Respondent, California Department of
Transportation (Caltrans) hereby opposes the Plaintiffs’ Ex Parte Application for Order

Shortening Time for Notice and Hearing on Motion for Order Granting Leave to File a

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CALIFORNIA DEPARTMENT OF TRANSPORTATION OPPOSITION TO PLAINTIFFS/PETITIONERS’ EX
PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON MOTION FOR|
ORDER GRANTING LEAVE TO FILE A SUPPLEMENTAL COMPLAINTSupplemental Complaint which is set for hearing on September 22, 2016, at 11:30 a.m., in

Department 302 of the above-entitled court on the following grounds:

1) The plaintiffs/applicants failed to make an affirmative showing of irreparable harm,
immediate danger, or other statutory basis for granting relief ex-parte as required
under California Rules of Court, rule 3.1202(c). The plaintiffs cannot possibly make
a showing of immediate danger or irreparable harm given they have waited for over a
year to enforce a purportedly valid and enforceable settlement agreement. The
plaintiffs allege the settlement agreement was reached in June of 2015 and yet they
saw no harm in failing to take any steps to enforce it until now. The only plausible
reason for the plaintiffs’ effort now is that this case is set for trial in December
(starting December 12, 2016) and the plaintiffs want to either avoid it or delay it by
creating additional causes of actions factually and legally distinct from the issues
before the'court on the existing Writ of Mandate and Declaratory Relief pleadings by
filing a “Supplemental Complaint” at this late juncture which would require extensive|
motion and discovery practice inevitably leading to delay and postponement of the
trial.

2) The plaintiffs’ contentions concerning the alleged enforceable settlement agreement
with Caltrans have no merit. ‘There is no evidence that Caltrans and the plaintiffs’
entered into any enforceable agreement to settle this case. Indeed the evidence is
indisputably to the opposite and clearly shows that Caltrans and the plaintiffs engaged
in settlement discussions which led to no agreement whatsoever. ‘The Plaintiffs’
motions, declarations, and the contents of the proposed “Supplemental Complaint”
are replete with hearsay statements and contents which are inadmissible in evidence
under Evidence Code section 1152 and case law mandating the exclusion of
statements, including e-mails, exchanged among the parties to a dispute which were
sent/exchanged during settlement negotiations The court in Caira v. Offer (2005)

126 Cal. App. 4th 12 clearly held that offers to settle a claim, and related

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CALIFORNIA DEPARTMENT OF TRANSPORTATION OPPOSITION TO PLAINTIFFS/PETITIONERS’ EX,
PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON MOTION FOR|
ORDER GRANTING LEAVE TO FILE A SUPPLEMENTAL COMPLAINTCO A A WH Bw NHN

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3)

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negotiations’ and statements “connected” to an attempt to compromise are
inadmissible. Accordingly, the plaintiffs’ “Supplemental Complaint” is doomed to
defeat but will require multiple filings of motions (a demurrer and motion to strike at
the minimum) as well as motions to extend discovery deadlines which will inevitably
lead to trial delays. By the plaintiffs’ counsel own admission, the plaintiffs do not
have an enforceable settlement agreement with Caltrans. (Declaration of Aleksandra
Sachowicz, paragraph 4.) Consistent with said admission is the fact that the plaintiffs
never filed a motion to enforce a settlement. In fact, plaintiffs’ counsel Alan Davis
attempted.to negotiate settlement terms with Caltrans in August and September 2016
indicating he would be willing to accept payment in the $60,000 to $70,000 range.
(Declaration of Aleksandra Sachowicz, paragraph 5).

Given the clear absence of any evidence of an enforceable agreement, the filing of
the ex-parte and the proposed motion to allow the filing of a “supplemental”
complaint amount to nothing other than a bad faith litigation tactic to tacitly delay the
trial and to compel Caltrans to come up with some kind of settlement to avoid all the
required litigation activity. The Plaintiffs are aware that they are stuck with losing
claims because in 2014 the California Court of Appeal squarely held in a published
decision that work on offsite manufacturing facilities not established in connection
with a specific public works project is not subject to the payment of prevailing wages.
(Sheet Metal Workers’ International Association, Local 104 v. Duncan (Russ Will
Mechanical), (2014) 229 Cal. App. 4th at 214.) All of the plaintiff's claims against
both defendants center on the entitlement to the payment of prevailing wages for
inspection work on offsite manufacturing facilities,

The granting of the plaintiffs’ ex-parte motion will inevitably result in the plaintiffs’
filing of the motion to file their supplemental complaint in close proximity to the trial
date of December 12, 2016, and will cause prejudice to Caltrans (and potentially to

the other defendant as well) in that 1) the Caltrans attorneys efforts will be diverted

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CALIFORNIA DEPARTMENT OF TRANSPORTATION OPPOSITION TO PLAINTIFFS/PETITIONERS’ EX
PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON MOTION FOR}

ORDER GRANTING LEAVE TO FILE A SUPPLEMENTAL COMPLAINT

|away from the preparation for trial on the issues framed by the existing pleadings and
2) Caltrans will have no more than 2 months to prepare a defense and conduct
: discovery if the Supplemental Complaint survives a demurrer and/motion for
judgment on the pleadings. It is simply unfair to Caltrans to grant the plaintiffs’
motion at this late juncture in such close proximity to the trial date. Plaintiffs have
failed to offer any explanation for their delay in bringing their motion and/or the
effort to enforce the alleged settlement.
For the foregoing reasons, Caltrans is requesting that the court deny the plaintiffs’ ex-parte
application.
Caltrans’ opposition is based on the foregoing notice, the declaration of Aleksandra
Sachowicz; the Memorandum of Points and Authorities served and filed herewith; on the papers
and records on file herein, and on such oral and documentary evidence as may be presented at

the hearing of this motion.

Dated: September 20, 2016.

JEANNE SCHERER, Chief Counsel

LAUREN A, MACHADO, Deputy Chief Counsel
JOANN GEORGALLIS, Assistant Chief Counsel
ALEKSANDRA SACHOWICZ, Deputy Attorney

By Ne¥eendia. Di ou'~

ALEKSANDRA SACHOWICZ
Deputy Attorneys for Defendant/Respondent
California Department of Transportation

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CALIFORNIA DEPARTMENT OF TRANSPORTATION OPPOSITION TO PLAINTIFFS/PETITIONERS’ EX
PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON MOTION FOR]
ORDER GRANTING LEAVE TO FILE A SUPPLEMENTAL COMPLAINT