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1 LEONIDOU & ROSIN
Professional Corporation
2 A. Robert Rosin (SBN 115245)
Timur Bilir (SBN 269919) 4/22/2021
3 777 Cuesta Drive, Suite 200
Mountain View, CA 94040
4 Telephone: (650) 691-2888
Facsimile: (650) 691-2889
5 arrosin@alr-law.com
tbilir@alr-law.com
6
Attorneys for Plaintiff
7 R & W CONCRETE CONTRACTORS, INCORPORATED
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN MATEO
10
11 R & W CONCRETE CONTRACTORS, ) Case No. 21-CIV-02330
INCORPORATED, a California corporation, )
12 ) COMPLAINT FOR BREACH OF
Plaintiff, ) CONTRACT; MONIES DUE;
13 ) QUANTUM MERUIT; ACCOUNT
vs. ) STATED; AND RECOVERY ON
14 ) PUBLIC WORKS PAYMENT BOND
T.B. PENICK & SONS, INC., a California )
15 corporation; )
THE WESTERN SURETY COMPANY, a ) (Unlimited Jurisdiction – Amount Exceeds
16 South Dakota corporation; and ) $25,000)
DOES 1 through 50, fictitiously named parties, )
17 )
Defendants. )
18 )
)
19
20 For its Complaint, Plaintiff R & W Concrete Contractors, Incorporated alleges:
21 GENERAL ALLEGATIONS
22 1. At all relevant times, Plaintiff R & W Concrete Contractors, Incorporated
23 (hereinafter “Plaintiff”) is and has been a California corporation, doing business in San Mateo
24 County, California, and has been licensed to perform the construction work referred to herein.
25 2. Plaintiff is informed and believes and thereon alleges that at all relevant times
26 Defendant T.B. Penick & Sons, Inc. (“T.B. Penick”) is and has been a corporation that purports
27 to be organized and to exist under California law, which does business in San Mateo County,
28 California.
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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1 3. Plaintiff is informed and believes and thereon alleges that at all relevant times
2 Defendant The Western Surety Company (“Western”) is and has been corporation that purports
3 to be organized and existing under South Dakota law and that does business in the County of San
4 Mateo and elsewhere in California as a surety on bonds.
5 4. Plaintiff is ignorant of the true names and capacities of the defendants sued herein
6 as Does 1 through 50, inclusive. Plaintiff therefore sues these defendants by fictitious names and
7 will amend this complaint when such defendants’ true names and capacities are ascertained.
8 5. Plaintiff is informed and believes and thereon alleges that each of the defendants
9 was the agent and employee of each of the remaining defendants, acting within the purpose and
10 scope of its agency and employment.
11 6. In filing this complaint, Plaintiff does not waive or otherwise impair its rights to
12 mediation or any other dispute resolution procedures that may be applicable.
13 FIRST CAUSE OF ACTION
14 (Breach of Contract – T.B. Penick and Does 1 - 40)
15 7. Plaintiff refers to and incorporates as though fully set forth herein each of the
16 foregoing paragraphs.
17 8. On or about September 8, 2016, general contractor T.B. Penick and Does 1-40
18 (the “T.B. Penick Defendants”) and Plaintiff entered into a written agreement (the
19 “Subcontract”) pursuant to which Plaintiff was to act as a subcontractor to the T.B. Penick
20 Defendants for a private work of improvement known as Skylonda Fire Station #58 located at
21 17290 Skyline Blvd., Woodside, CA (the “Project”). The original Subcontract amount was
22 $237,451.00. A true and correct copy of the principal provisions of the Subcontract is attached
23 hereto and incorporated herein as Exhibit A. The Subcontract also incorporated by reference
24 plans and technical provisions, which are voluminous, and which to avoid prolixity are not
25 attached.
26 9. Plaintiff’s work on the Project consisted of installation of concrete foundations
27 including grade beams, slab, and related work.
28 10. The Subcontract provided that Plaintiff would be paid for its work, labor,
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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1 materials, and services.
2 11. Pursuant to the terms of the Subcontract, Plaintiff provided all necessary
3 materials, equipment and services for performance of the Subcontract, and performed all other
4 conditions, covenants, and promises under the Subcontract, except those conditions, covenants,
5 and promises which it was prevented or otherwise was excused from performing.
6 12. Under the terms of the Subcontract and California law, the T.B. Penick
7 Defendants at all relevant times have owed a duty to Plaintiff to furnish reasonably accurate and
8 complete specifications, plans, drawings, and designs, and to execute change orders increasing
9 the Subcontract amount, in the event that Plaintiff was required to perform extra work. The
10 Subcontract also provided that any retention withheld by the owner would be paid after
11 Plaintiff’s completion of its work.
12 13. The Subcontract amount was increased by executed change orders.
13 14. Within the last two years, the T.B. Penick Defendants breached the Subcontract
14 by, among other conduct:
15 a. Failing to pay Plaintiff all amounts owed as progress payments;
16 b. Failing pay final payment and retention; and
17 c. Failing to pay all other sums due and owing under the Subcontract.
18 15. As a direct and proximate result of the T.B. Penick Defendants’ breach of the
19 Subcontract, Plaintiff has incurred damages in the principal amount of not less than $118,217.03,
20 plus interest.
21 16. Article 6.5 of the Subcontract provides that the prevailing party shall be entitled to
22 its attorney’s fees. Plaintiff has incurred and will continue to incur attorney’s fees in this
23 litigation.
24 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
25 SECOND CAUSE OF ACTION
26 (Monies Due – T.B. Penick and Does 1 - 40)
27 17. Plaintiff refers to and incorporates as though fully set forth herein each of the
28 foregoing paragraphs. This cause of action is pleaded in the alternative to the first cause of
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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1 action.
2 18. Within the last two years, in San Mateo County, California, the T.B. Penick
3 Defendants, and each of them, became indebted to Plaintiff in the agreed sum of at least
4 $118,217.03, for labor, materials, services, and equipment furnished by Plaintiff to the T.B.
5 Penick Defendants, and each of them, at their special instance and request.
6 19. Notwithstanding Plaintiff’s demands for payment, there is now due, owing, and
7 unpaid from the T.B. Penick Defendants, and each of them, to Plaintiff the principal amount of
8 $118,217.03, together with interest thereon at the prevailing legal rate.
9 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
10 THIRD CAUSE OF ACTION
11 (Quantum Meruit – T.B. Penick and Does 1 - 40)
12 20. Plaintiff refers to and incorporates as though fully set forth herein each of the
13 foregoing paragraphs. This cause of action is pleaded in the alternative to the first cause of
14 action.
15 21. Within the last two years, in San Mateo County, California, Plaintiff furnished
16 labor, materials, equipment, and services to the T.B. Penick Defendants at their special instance
17 and request, for which the T.B. Penick Defendants, and each of them, then and there agreed to
18 pay to Plaintiff the reasonable value thereof.
19 22. The principal amount of approximately $118,217.03 remains due and owing by
20 the T.B. Penick Defendants and each of them, to Plaintiff, plus interest at the legal rate, for such
21 labor, materials, and equipment.
22 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
23 FOURTH CAUSE OF ACTION
24 (Account Stated – T.B. Penick and Does 1 - 40)
25 23. Plaintiff refers to and incorporates as though fully set forth herein each of the
26 foregoing paragraphs. This cause of action is pleaded in the alternative to the first cause of
27 action.
28 24. Within the last two years, in San Mateo County, California, an account was stated
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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1 in writing by and between Plaintiff on the one hand and the T.B. Penick Defendants, and each of
2 them, on the other hand. On such account the principal balance of at least $118,217.03 was
3 found to be due to Plaintiff. The T.B. Penick Defendants agreed to pay Plaintiff this balance in
4 Woodside, California.
5 25. Although demanded by Plaintiff from the T.B. Penick Defendants, no part of the
6 agreed balance has been paid. There is now due, owing, and unpaid from the T.B. Penick
7 Defendants to Plaintiff the principal sum of at least $118,217.03, of which the same total
8 principal amount remains due, owing, and unpaid by the T.B. Penick Defendants to Plaintiff,
9 together with interest at the legal prevailing rate from the time such payments became due.
10 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
11 FIFTH CAUSE OF ACTION
12 (Recovery on Public Works Payment Bond - T.B. Penick, Western, and Does 1-50)
13 26. Plaintiff refers to and incorporates as though fully set forth herein each of the
14 foregoing paragraphs.
15 27. Before commencing construction of the Project for the County of San Mateo
16 Department of Public Works (the “County”), and in accordance with the terms of its written
17 contract with the County, T.B. Penick filed with the County a written statutory public works
18 payment bond, Bond Number 58731633 (the “Payment Bond.”) The principal on the Payment
19 Bond was T.B. Penick and the surety on the bond was Western, and Does 41 through 50 (the
20 “Payment Bond Defendants”).
21 28. The legal effect of the Payment Bond was that if T.B. Penick fails to pay any of
22 the persons named in Civil Code section 9100 who furnished labor, materials, equipment or
23 services to the Project, then the Payment Bond Defendants would pay the same in an amount not
24 exceeding the sum specified in the bond and would also pay, in case suit is brought upon such
25 Payment Bond, reasonable attorney’s fees to be taxed as costs and included in the judgment
26 rendered by the court.
27 29. The Payment Bond contains all of the stipulations and provisions required by law
28 to be contained in a public works payment bond. Plaintiff is a beneficiary of the Payment Bond.
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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1 Government Code section 66499.10 expressly authorizes Plaintiff to prosecute this cause of
2 action against Western.
3 30. Plaintiff complied with all requirements of the California Civil Code relating to
4 the causes of action on file herein against the Payment Bond, including preliminary notice
5 requirements, if any apply to Plaintiff as a first-tier subcontractor in direct privity with T.B.
6 Penick.
7 31. Following the completion of its work on the Project and before filing this action,
8 Plaintiff duly and timely served a written notice and claim, by certified mail return receipt
9 requested, and in accordance with Civil Code Sections 9560 and 9562, on T.B. Penick and
10 Western. This written notice complied with Section 8100 et seq. of the Civil Code, and included
11 information regarding Plaintiff’s name, address, and role on the Project, T.B. Penick’s name,
12 address, and role on the Project, the name and location of the Project, the total value of the labor,
13 service, equipment or materials anticipated to be furnished and actually furnished by Plaintiff,
14 the amount paid to Plaintiff to date, and the amount still owing and unpaid, after all just credits
15 and offsets.
16 32. Plaintiff has satisfied and discharged all conditions, covenants, and promises
17 required on Plaintiff’s part with respect to the Bond, except those conditions, covenants, and
18 promises which Plaintiff was prevented or otherwise was excused from performing.
19 33. Under the Bond and Undertaking Act, Code of Civil Procedure sections 996.410
20 and 996.430, both the surety and the principal on a bond can be sued as defendants in a civil
21 action.
22 34. The Payment Bond Defendants and T.B. Penick have failed, neglected and
23 refused to pay the amount due to Plaintiff for labor, services, and materials furnished in the
24 amount of $118,217.03, plus interest.
25 35. Within the time provided by law, Plaintiff has duly commenced this action to
26 enforce its rights and claims against the Payment Bond.
27 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
28 ///
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiff R & W Concrete Contractors, Incorporated prays for judgment
3 as set forth below:
4 On the First Cause of Action against T.B. Penick and Does 1 - 40:
5 1. For damages in the principal sum of not less than $118,217.03;
6 2. For reasonable attorney’s fees;
7 On the Second Through Fourth Causes of Action against T.B. Penick and Does 1 - 40:
8 3. For damages in the principal sum of not less than $118,217.03;
9 On the Fifth Cause of Action against T.B. Penick, Western, and Does 1 - 50:
10 4. For damages of not less than $118,217.03;
11 On All Causes of Action Against All Defendants:
12 5. For pre-judgment and post-judgment interest at the legal rate;
13 6. For costs of suit; and
14 7. For such other and further relief as the Court may deem just and proper.
15 Dated: April 22, 2021 LEONIDOU & ROSIN
Professional Corporation
16
17
18
By______________________________________
19 A. Robert Rosin
20 Timur Bilir
Attorney for Plaintiff
21 R & W CONCRETE CONTRACTORS,
INCORPORATED
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COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND
RECOVERY ON PUBLIC WORKS PAYMENT BOND
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Preview
1 LEONIDOU & ROSIN Professional Corporation 2 A. Robert Rosin (SBN 115245) Timur Bilir (SBN 269919) 4/22/2021 3 777 Cuesta Drive, Suite 200 Mountain View, CA 94040 4 Telephone: (650) 691-2888 Facsimile: (650) 691-2889 5 arrosin@alr-law.com tbilir@alr-law.com 6 Attorneys for Plaintiff 7 R & W CONCRETE CONTRACTORS, INCORPORATED 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 11 R & W CONCRETE CONTRACTORS, ) Case No. 21-CIV-02330 INCORPORATED, a California corporation, ) 12 ) COMPLAINT FOR BREACH OF Plaintiff, ) CONTRACT; MONIES DUE; 13 ) QUANTUM MERUIT; ACCOUNT vs. ) STATED; AND RECOVERY ON 14 ) PUBLIC WORKS PAYMENT BOND T.B. PENICK & SONS, INC., a California ) 15 corporation; ) THE WESTERN SURETY COMPANY, a ) (Unlimited Jurisdiction – Amount Exceeds 16 South Dakota corporation; and ) $25,000) DOES 1 through 50, fictitiously named parties, ) 17 ) Defendants. ) 18 ) ) 19 20 For its Complaint, Plaintiff R & W Concrete Contractors, Incorporated alleges: 21 GENERAL ALLEGATIONS 22 1. At all relevant times, Plaintiff R & W Concrete Contractors, Incorporated 23 (hereinafter “Plaintiff”) is and has been a California corporation, doing business in San Mateo 24 County, California, and has been licensed to perform the construction work referred to herein. 25 2. Plaintiff is informed and believes and thereon alleges that at all relevant times 26 Defendant T.B. Penick & Sons, Inc. (“T.B. Penick”) is and has been a corporation that purports 27 to be organized and to exist under California law, which does business in San Mateo County, 28 California. 1 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX 1 3. Plaintiff is informed and believes and thereon alleges that at all relevant times 2 Defendant The Western Surety Company (“Western”) is and has been corporation that purports 3 to be organized and existing under South Dakota law and that does business in the County of San 4 Mateo and elsewhere in California as a surety on bonds. 5 4. Plaintiff is ignorant of the true names and capacities of the defendants sued herein 6 as Does 1 through 50, inclusive. Plaintiff therefore sues these defendants by fictitious names and 7 will amend this complaint when such defendants’ true names and capacities are ascertained. 8 5. Plaintiff is informed and believes and thereon alleges that each of the defendants 9 was the agent and employee of each of the remaining defendants, acting within the purpose and 10 scope of its agency and employment. 11 6. In filing this complaint, Plaintiff does not waive or otherwise impair its rights to 12 mediation or any other dispute resolution procedures that may be applicable. 13 FIRST CAUSE OF ACTION 14 (Breach of Contract – T.B. Penick and Does 1 - 40) 15 7. Plaintiff refers to and incorporates as though fully set forth herein each of the 16 foregoing paragraphs. 17 8. On or about September 8, 2016, general contractor T.B. Penick and Does 1-40 18 (the “T.B. Penick Defendants”) and Plaintiff entered into a written agreement (the 19 “Subcontract”) pursuant to which Plaintiff was to act as a subcontractor to the T.B. Penick 20 Defendants for a private work of improvement known as Skylonda Fire Station #58 located at 21 17290 Skyline Blvd., Woodside, CA (the “Project”). The original Subcontract amount was 22 $237,451.00. A true and correct copy of the principal provisions of the Subcontract is attached 23 hereto and incorporated herein as Exhibit A. The Subcontract also incorporated by reference 24 plans and technical provisions, which are voluminous, and which to avoid prolixity are not 25 attached. 26 9. Plaintiff’s work on the Project consisted of installation of concrete foundations 27 including grade beams, slab, and related work. 28 10. The Subcontract provided that Plaintiff would be paid for its work, labor, 2 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX 1 materials, and services. 2 11. Pursuant to the terms of the Subcontract, Plaintiff provided all necessary 3 materials, equipment and services for performance of the Subcontract, and performed all other 4 conditions, covenants, and promises under the Subcontract, except those conditions, covenants, 5 and promises which it was prevented or otherwise was excused from performing. 6 12. Under the terms of the Subcontract and California law, the T.B. Penick 7 Defendants at all relevant times have owed a duty to Plaintiff to furnish reasonably accurate and 8 complete specifications, plans, drawings, and designs, and to execute change orders increasing 9 the Subcontract amount, in the event that Plaintiff was required to perform extra work. The 10 Subcontract also provided that any retention withheld by the owner would be paid after 11 Plaintiff’s completion of its work. 12 13. The Subcontract amount was increased by executed change orders. 13 14. Within the last two years, the T.B. Penick Defendants breached the Subcontract 14 by, among other conduct: 15 a. Failing to pay Plaintiff all amounts owed as progress payments; 16 b. Failing pay final payment and retention; and 17 c. Failing to pay all other sums due and owing under the Subcontract. 18 15. As a direct and proximate result of the T.B. Penick Defendants’ breach of the 19 Subcontract, Plaintiff has incurred damages in the principal amount of not less than $118,217.03, 20 plus interest. 21 16. Article 6.5 of the Subcontract provides that the prevailing party shall be entitled to 22 its attorney’s fees. Plaintiff has incurred and will continue to incur attorney’s fees in this 23 litigation. 24 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 25 SECOND CAUSE OF ACTION 26 (Monies Due – T.B. Penick and Does 1 - 40) 27 17. Plaintiff refers to and incorporates as though fully set forth herein each of the 28 foregoing paragraphs. This cause of action is pleaded in the alternative to the first cause of 3 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX 1 action. 2 18. Within the last two years, in San Mateo County, California, the T.B. Penick 3 Defendants, and each of them, became indebted to Plaintiff in the agreed sum of at least 4 $118,217.03, for labor, materials, services, and equipment furnished by Plaintiff to the T.B. 5 Penick Defendants, and each of them, at their special instance and request. 6 19. Notwithstanding Plaintiff’s demands for payment, there is now due, owing, and 7 unpaid from the T.B. Penick Defendants, and each of them, to Plaintiff the principal amount of 8 $118,217.03, together with interest thereon at the prevailing legal rate. 9 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 10 THIRD CAUSE OF ACTION 11 (Quantum Meruit – T.B. Penick and Does 1 - 40) 12 20. Plaintiff refers to and incorporates as though fully set forth herein each of the 13 foregoing paragraphs. This cause of action is pleaded in the alternative to the first cause of 14 action. 15 21. Within the last two years, in San Mateo County, California, Plaintiff furnished 16 labor, materials, equipment, and services to the T.B. Penick Defendants at their special instance 17 and request, for which the T.B. Penick Defendants, and each of them, then and there agreed to 18 pay to Plaintiff the reasonable value thereof. 19 22. The principal amount of approximately $118,217.03 remains due and owing by 20 the T.B. Penick Defendants and each of them, to Plaintiff, plus interest at the legal rate, for such 21 labor, materials, and equipment. 22 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 23 FOURTH CAUSE OF ACTION 24 (Account Stated – T.B. Penick and Does 1 - 40) 25 23. Plaintiff refers to and incorporates as though fully set forth herein each of the 26 foregoing paragraphs. This cause of action is pleaded in the alternative to the first cause of 27 action. 28 24. Within the last two years, in San Mateo County, California, an account was stated 4 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX 1 in writing by and between Plaintiff on the one hand and the T.B. Penick Defendants, and each of 2 them, on the other hand. On such account the principal balance of at least $118,217.03 was 3 found to be due to Plaintiff. The T.B. Penick Defendants agreed to pay Plaintiff this balance in 4 Woodside, California. 5 25. Although demanded by Plaintiff from the T.B. Penick Defendants, no part of the 6 agreed balance has been paid. There is now due, owing, and unpaid from the T.B. Penick 7 Defendants to Plaintiff the principal sum of at least $118,217.03, of which the same total 8 principal amount remains due, owing, and unpaid by the T.B. Penick Defendants to Plaintiff, 9 together with interest at the legal prevailing rate from the time such payments became due. 10 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 11 FIFTH CAUSE OF ACTION 12 (Recovery on Public Works Payment Bond - T.B. Penick, Western, and Does 1-50) 13 26. Plaintiff refers to and incorporates as though fully set forth herein each of the 14 foregoing paragraphs. 15 27. Before commencing construction of the Project for the County of San Mateo 16 Department of Public Works (the “County”), and in accordance with the terms of its written 17 contract with the County, T.B. Penick filed with the County a written statutory public works 18 payment bond, Bond Number 58731633 (the “Payment Bond.”) The principal on the Payment 19 Bond was T.B. Penick and the surety on the bond was Western, and Does 41 through 50 (the 20 “Payment Bond Defendants”). 21 28. The legal effect of the Payment Bond was that if T.B. Penick fails to pay any of 22 the persons named in Civil Code section 9100 who furnished labor, materials, equipment or 23 services to the Project, then the Payment Bond Defendants would pay the same in an amount not 24 exceeding the sum specified in the bond and would also pay, in case suit is brought upon such 25 Payment Bond, reasonable attorney’s fees to be taxed as costs and included in the judgment 26 rendered by the court. 27 29. The Payment Bond contains all of the stipulations and provisions required by law 28 to be contained in a public works payment bond. Plaintiff is a beneficiary of the Payment Bond. 5 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX 1 Government Code section 66499.10 expressly authorizes Plaintiff to prosecute this cause of 2 action against Western. 3 30. Plaintiff complied with all requirements of the California Civil Code relating to 4 the causes of action on file herein against the Payment Bond, including preliminary notice 5 requirements, if any apply to Plaintiff as a first-tier subcontractor in direct privity with T.B. 6 Penick. 7 31. Following the completion of its work on the Project and before filing this action, 8 Plaintiff duly and timely served a written notice and claim, by certified mail return receipt 9 requested, and in accordance with Civil Code Sections 9560 and 9562, on T.B. Penick and 10 Western. This written notice complied with Section 8100 et seq. of the Civil Code, and included 11 information regarding Plaintiff’s name, address, and role on the Project, T.B. Penick’s name, 12 address, and role on the Project, the name and location of the Project, the total value of the labor, 13 service, equipment or materials anticipated to be furnished and actually furnished by Plaintiff, 14 the amount paid to Plaintiff to date, and the amount still owing and unpaid, after all just credits 15 and offsets. 16 32. Plaintiff has satisfied and discharged all conditions, covenants, and promises 17 required on Plaintiff’s part with respect to the Bond, except those conditions, covenants, and 18 promises which Plaintiff was prevented or otherwise was excused from performing. 19 33. Under the Bond and Undertaking Act, Code of Civil Procedure sections 996.410 20 and 996.430, both the surety and the principal on a bond can be sued as defendants in a civil 21 action. 22 34. The Payment Bond Defendants and T.B. Penick have failed, neglected and 23 refused to pay the amount due to Plaintiff for labor, services, and materials furnished in the 24 amount of $118,217.03, plus interest. 25 35. Within the time provided by law, Plaintiff has duly commenced this action to 26 enforce its rights and claims against the Payment Bond. 27 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 28 /// 6 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff R & W Concrete Contractors, Incorporated prays for judgment 3 as set forth below: 4 On the First Cause of Action against T.B. Penick and Does 1 - 40: 5 1. For damages in the principal sum of not less than $118,217.03; 6 2. For reasonable attorney’s fees; 7 On the Second Through Fourth Causes of Action against T.B. Penick and Does 1 - 40: 8 3. For damages in the principal sum of not less than $118,217.03; 9 On the Fifth Cause of Action against T.B. Penick, Western, and Does 1 - 50: 10 4. For damages of not less than $118,217.03; 11 On All Causes of Action Against All Defendants: 12 5. For pre-judgment and post-judgment interest at the legal rate; 13 6. For costs of suit; and 14 7. For such other and further relief as the Court may deem just and proper. 15 Dated: April 22, 2021 LEONIDOU & ROSIN Professional Corporation 16 17 18 By______________________________________ 19 A. Robert Rosin 20 Timur Bilir Attorney for Plaintiff 21 R & W CONCRETE CONTRACTORS, INCORPORATED 22 23 24 25 26 27 28 7 COMPLAINT FOR BREACH OF CONTRACT; MONIES DUE; QUANTUM MERUIT; ACCOUNT STATED; AND RECOVERY ON PUBLIC WORKS PAYMENT BOND S:\ALRDOCS\30663\1\00249467.DOCX