Preview
1 MATTHEW A, HAULK (SBN 272457)
JOSE HERRERA (SBN; 289590)
RAGGHIANTI FREITAS LLP
1101FifthAvenue,Suite100
San Rafael, California 94901
Telephone: (415) 453-9433 10/10/2019
Facsimile: (415) 453-8269
5
Attorneys for Defendants
PUNIT K. SARNA and
PUJA SARNA
And Cross-Complainant
PUNIT SARNA
9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
10 UNLIMITED JURISDICTION
11 LOUIS PAYCHECK d/b/a EUROPEAN CASE NO.: 19CIV02595
ENTERPRISES,
12
FIRST AMENDED CROSS-COMPLAINT
13
Plaintiff,
14 V.
PUNIT K. SARNA a/k/a PETER SARNA,
PUJA SARNA; and DOES 1-30, inclusive,
16
Complaint Filed: May 10, 2019
17 Defendants. Trial Date: Not set.
18
PUNIT K. SARNA a/k/a PETER SARNA,
19
20
Cross-Complainant,
21 V.
22 LOUIS PAYCHECK, indiv. and dba
EUROPEAN ENTERPRISES; SURETEC
INDEMNITY COMPANY, a corp.; and
24
ROES 1-50, inclusive,
25 Cross-Defendants.
26
27
28
FIRST AMENDED CROSS-COMPLAINT
1 Cross-Complainant Punit K. Sama, aka Peter Sama, alleges:
2 INTRODUCTION
3 1. This action involves the renovation and remodeling of a multi-unit
residential property located at 721 Rollins Road, Burlingame, California (the "Property" ).
5 In November 2017, Cross-Complainant Punit K. Sama (" Cross-Complainant"
) hired Louis
6 Paycheck who was doing business under the fictitious business name "European
7 Enterprises" (" Cross-Defendant European Enterprises" ) to perform renovation and
8 remodeling work at the Property (the "Project" ).
9 2. Cross-Defendant European Enterprises violated numerous provisions of the
&6 California Contractors License Law including, but not limited to, Business and
Professions Code section 7159. On information and belief, Cross-Defendant European
12 Enterprises acted as an unlicensed contractor on the Project. Cross-Defendant European
13 Enterprises failed to perform work on the Project in a good and workmanlike manner,
&4 Cross-Defendant European Enterprises failed to perform work on the Project in a timely
and diligent manner, and Cross-Defendant European Enterprises abandoned the Project
16 and failed to complete work on the Project.
17 3. Cross-Defendant European Enterprises'isconduct and negligence has
18 caused Cross-Complainant to suffer significant general and special damages and, as an
&9 unlicensed contractor who failed to comply with Business and Professions Code 57159,
36 Cross-Defendant European Enterprises must disgorge allcompensation that it received
21 for the performance of work on the Project, a total of approximately $210,000 Cross-
22 Complainant brings this action to recover, among other forms of relief, general damages,
23 special damages, disgorgement, statutory damages, injunctive relief, and any other relief
24 provided by the Court,
25 PARTIES
26 4. Cross-Complainant Punit Sama (" Cross-Complainant" ) is a natural person
27 and is and at all relevant times was, the owner of the Property. Cross-Defendant Louis
28 Paycheck was at all relevant times doing business under the fictitious business name
FIRST AMENDED CROSS-COMPLAINT
European Enterprises and isan individual residing in the County of San Mateo (" Cross-
2 Defendant European Enterprises" ) and doing business in the County of San Mateo, State
3 of California.
4 5. Cross-Complainant is informed and believes, and on that basis alleges that,
5 at all times mentioned herein, Cross-Defendant Suretec Indemnity Company, a
6 corporation (hereinafter "Cross-Defendant Suretec Indemnity" ) was and now is a
7 corporation, duly organized to transact business and doing business as a surety in the
8 State of California.
9 6. The true names and capacities, whether individual, corporate, associate or
19 otherwise of Cross-Defendants Roes 1 through 50 are unknown to Cross-Complainant
who therefore sues these Cross-Defendants by such fictitious names. Cross-Complainant
12 is informed and believes and thereon allege that each of the Defendants designated as a
13 Roe is in some way legally responsible for the acts complained of herein. Cross-
14 Complainant will amend this cross-complaint to specify the true names and capacities of
such Cross-Defendants when they have been ascertained. Cross-Defendant European
16 Enterprises, Cross-Defendant Suretec Indemnity, and Cross-Defendants Roes 1 through
17 Roe 50 are collectively referred to herein as "Cross-Defendants".
18 7. On information and belief, at all times herein mentioned, Cross-Defendants,
19 whether individual, corporate, partnership, joint venture, association, unincorporated
26 association or otherwise, and each of them, were the partners, joint venturers, agents
21 and/or employees of the co-Cross-Defendants, and in doing the things herein alleged,
22 were acting within the course and scope of such partnership, joint venture, agency and/or
23 employment and under the direction of, and with the consent, permission, advanced
24 knowledge, and/or subsequent ratification of their Co-Cross-Defendants.
25 GENERAL ALLEGATIONS
26 8. On or about November 12, 2017, Cross-Complainant entered into an oral
27 contract with Cross-Defendant European Enterprises whereby Cross-Defendant
28 European Enterprises agreed to furnish and supply labor, services, materials, equipment,
FIRST AMENDED CROSS-COMPLAINT
and related work, for the total fixed sum of $ 143,250, for use in remodeling Cross-
2 Complainant's five-unit apartment building, located at 721 Rollins Road, Burlingame,
3 California. The oral contract required Cross-Defendant European Enterprises to complete
4 the job within ninety (90) days, weather permitting. A copy of Cross-Defendant European
3 Enterprises written proposal evidencing the parties'ral contract is attached hereto as
s Exhibit "A".
7 9. The oral contract was for a "home improvement" as that term is defined
s under Business and Professions code 57151. Cross-Defendant European Enterprises
s failed to comply with Business and Professions code 57159 (including providing required
1o written notifications and warnings regarding mechanic's liens) and the oral contract is
therefore voidable at the election of Cross-Complainant. Cross-Complainant reserves the
12 right to make this election at the time of trial or thereafter, as authorized by law.
13 10. Cross-Defendant European Enterprises failed to perform the work on the
14 Project in a good and workmanlike manner within ninety (90) days, pursuant to the
13 agreed-upon plans and specifications and the appropriate Building Codes, and Cross-
16 Defendant European Enterprises abandoned the project before completion. On
information and belief, before and during the project Cross-Defendant European
18 Enterprises failed to have or maintain an active and/or valid contractor's license and/or it
13 was automatically suspended by operation of law for violation of the California
zo Contractors License Law.
21 11. On or about January 28, 2019, Cross-Complainant, through his attorney,
22 advised Cross-Defendant European Enterprises in writing that it was terminated due to its
23 failure to perform work in a good and workmanlike and timely manner, pursuant to
24 contract plans and specifications and the appropriate building codes, due to its
23 abandonment of the project before completion, and related issues.
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FIRST AMENDED CROSS-COMPLAINT
1 FIRST CAUSE OF ACTION
BREACH OF CONTRACT
(Against Cross-Defendants European Enterprises and Roes One through Fifty)
4 12. Cross-Complainant incorporates by reference, as if fully set forth,
paragraphs 1 through 11 above.
6 13. On or about November 12, 2017, Cross-Complainant entered into an oral
7 contract with Cross-Defendants European Enterprises and Roes One through Fifty
6 whereby Cross-Defendants agreed to furnish and supply labor, services materials,
s equipment, and related work, for the lump sum of $ 143,250, for use in remodeling Cross-
1II Complainant's five- unit apartment building, located at 721 Rollins Road, Burlingame,
California. The contract required Cross-Defendant European Enterprises to complete the
12 job within ninety (90) days. A copy of Cross-Defendant's written proposal evidencing said
13 oral contract is attached hereto as Exhibit "A".
14 14. Cross-Complainant fully and completely performed all of the terms,
conditions and promises of said contract on his part to be performed, having paid Cross-
16 Defendant European Enterprises the sum of $ 210,000, and all of the conditions
precedent to performance on the part of Cross-Defendants have occurred, and Cross-
16 Complainant has demanded performance from Cross-Defendant European Enterprises.
16 Any terms, conditions or promises not so performed by Cross-Complainant have been
2'xcused by reason of said Cross-Defendant European Enterprises'reach of said
21 agreement as set forth below.
22 15. Within the last two years, Cross-Defendant European Enterprises and
23 Roes One through Fifty breached the above-mentioned contract by failing to perform the
contracted-for work in a good and workmanlike manner according to the plans and
specifications of the contract and the appropriate building codes, by failing to complete
26 the work in ninety (90) days, and by abandoning the job before completion.
27 16. Subsequently, on multiple occasions, Cross-Complainant gave notice to
26 Cross-Defendant European Enterprises that the work was not being performed in a good
FIRST AMENDED CROSS-COMPLAINT
and workmanlike and timely manner according to the plans and specifications of the
2 contract, and accordingly demanded that Cross-Defendant European Enterprises perform
3 according to the terms of the contract with Cross-Complainant. However, said Cross-
4 Defendants failed to so perform, and remained in breach of the contract with Cross-
Complainant, and abandoned the project before completion.
6 17. As a result of said Cross-Defendants'reach of contract, and among other
legal damages, Cross-Complainant has been and will be required to contract with
8 different contractors to complete the work originally required to be performed by Cross-
0 Defendants, and to redo those portions of the work performed by said Cross-Defendants
10 which did not conform to the requirements of the plans and specifications of said project,
and the appropriate building codes. Said contracts with new contractors have and will
12 result in Cross-Complainant having to pay an amount in excess of the original amount
13 Cross-Complainant had agreed to pay said Cross-Defendants.
14 18. By reason of said Cross-Defendants'reach of contract as set forth above,
15 Cross-Complainant has been damaged in an amount to be shown according to proof at
16 trial,which sum is estimated to be in excess of $ 300,000. The exact amount of said
17 damages is unknown to Cross-Complainant at this time, and Cross-Complainant pray
16 leave to amend this Cross-Complaint to state the true amount when the same has been
10 ascertained.
20 19. As a further result of said Cross-Defendants'reach of contract, Cross-
21 Complainant has been unable to rent out said apartment units since December 1, 2017.
22 Said apartment units have a rental value of $ 14,000 per month. The exact amount of said
23 damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays
24 leave to amend this Cross-Complaint to state the true amount when the same has been
26 ascertained.
26 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
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FIRST AMENDED CROSS-COMPLAINT
1 SECOND CAUSE OF ACTION
BREACH OF EXPRESS WARRANTY
(Against Cross-Defendants European Enterprises and Roes One through Fifty)
4 20. Cross-Complainant incorporates by reference, as if fully set forth,
paragraphs 1 through 19 above.
6 21. On or before the date the above-mentioned contract was entered into by
7 Cross-Complainant and Cross-Defendants European Enterprises and Roes One through
6 Fifty, and in order to induce Cross-Complainant to enter into said agreement, Cross-
s Defendants European Enterprises and Roes One through Fifty expressly warranted to
1II Cross-Complainant the following: ( 1) that all of the work to be performed would be
performed in a good and workmanlike manner, pursuant to contract plans and
12 specifications and the Building Code (2) that Cross-Defendant European Enterprises
13 would perform all of the work required to be performed pursuant to said contract (3) that
14 said work would be completed within ninety (90) days, and (4) that he was properly
qualified, licensed, insured, and bonded to perform the work on the Project.
16 22. In reliance on the above warranties of Cross-Defendants, and in good faith,
17 Cross-Complainant then entered into the contract with said Cross-Defendants.
18 23. However, said Cross-Defendants breached the express warranties in, but
ts not limited to, the following: Cross-Defendant European Enterprises failed to perform the
2'ork in a good and workmanlike manner, pursuant to contract plans and specifications
and the Building Code, failed to complete the work within ninety (90) days, and
abandoned the job before completion.
23 24. When Cross-Complainant discovered that the above warranties had been
breached in the manner stated above, he gave notice to Cross-Defendant European
Enterprises within a reasonable period of time following Cross-Complainant's discovery oi
26 said Cross-Defendant's breach.
27 25. As a result of said Cross-Defendants'reach of express warranties, Cross-
26 Complainant has been and will be required to contract with different contractors to
FIRST AMENDED CROSS-COMPLAINT
complete the work originally required to be performed by said Cross-Defendants, and to
2 redo those portions of the work performed by said Cross-Defendants which did not
3 conform to the requirements of the plans and specifications of said project and the
4 appropriate building codes. Said contracts with new contractors will result in Cross-
5 Complainant having to pay an amount in excess of the original amount Cross-
6 Complainant had agreed to pay Cross-Defendant European Enterprises.
7 26. By reason of said Cross-Defendants'reach of express warranties as set
8 forth above, Cross-Complainant has been damaged in an amount to be shown according
9 to proof at trial, which sum is estimated to be in excess of $ 300,000. The exact amount of
10 said damages is unknown to Cross-Complainant at this time, and Cross-Complainant
prays leave to amend this Cross-Complaint to state the true amount when the same has
been ascertained.
13 27. As a further result of said Cross-Defendants'onduct, Cross-Complainant
has been unable to rent out said apartment units since December 1, 2017. Said
15 apartment units have a rental value of $ 14,000 per month. The exact total amount of said
16 damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays
17 leave to amend this Cross-Complaint to state the true amount when the same has been
18 ascertained.
19 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
20
THIRD CAUSE OF ACTION
21
BREACH OF IMPLIED WARRANTY
(Against Cross-Defendants European Enterprises and Roes One through Fifty)
22
23 28. Cross-Complainant incorporates by reference, as if fully set forth,
24 paragraphs 1 through 27.
25 29. On the date the above-mentioned contract was entered into by Cross-
26 Complainant and Cross-Defendants European Enterprises and Roes One through Fifty,
27 Cross-Defendants European Enterprises and Roes One through Fifty impliedly warranted
28 the following: (1) that all of the work to be performed by European Enterprises would be
FIRST AMENDED CROSS-COMPLAINT
performed in a good and workmanlike and timely manner, pursuant to contract plans and
2 specifications and the appropriate building codes, and (2) that European Enterprises
3 would perform all of the work required to be performed pursuant to said contract (3) that
all of the work would be completed in ninety (90) days.
5 30. However, said Cross-Defendants breached said warranties in, but not
8 limited to, the following ways: implied (1) they failed to perform the work in a good and
7 workmanlike and timely manner, pursuant to contract plans and specifications and the
8 appropriate building codes, (2) failed to complete the work in ninety (90) days, and (3)
8 they abandoned the job before completion.
10 31. When Cross-Complainant discovered that the above warranties had been
breached in the manner stated above, he gave notice to said Cross-Defendants within a
12 reasonable period of time following the discovery of said Cross-Defendant's breach.
13 32. By reason of said Cross-Defendants'reach of implied warranties, as set
14 forth above, Cross-Complainant has been damaged in an amount to be shown according
15 to proof at trial, which sum is estimated to be in excess of $ 300,000. The exact amount of
18 said damages is unknown to Cross-Complainant at this time, and Cross-Complainant
17 prays leave to amend this Cross-Complaint to state the true amount when the same has
18 been ascertained.
19 33. As a further result of said Cross-Defendants'onduct, Cross-Complainant
20 has been unable to rent out said apartment units since December 1, 2017. Said
21 apartment units have a rental value of $ 14,000 per month. The exact total amount of said
22 damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays
23 leave to amend this Cross-Complaint to state the true amount when the same has been
24 ascertained.
25 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
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FIRST AMENDED CROSS-COMPLAINT
1 FOURTH CAUSE OF ACTION
(Negligence)
(Against Cross-Defendants European Enterprises and Roes One through Fifty)
34. Cross-Complainant incorporates by reference, as iffully set forth,
paragraphs 1 through 33 above.
35. Cross-Defendants European Enterprises and Roes One through Fifty owed
a duty to Cross-Complainant to, inter alia, (1) perform the work in a good and
workmanlike and timely manner (2) complete all required work within 90 days (3) timely
pay all of their subcontractors (4) properly supervise the work (5) properly credit Cross-
1p Complainant for work not performed and/or materials purchased by Cross-Complainant,
(6) properly bill Cross-Complainant for the work without overcharges, double-billings and
other errors, and (7) complete the work within ninety (90) days, all in keeping with the
13 accepted standards of the construction industry and others engaged in similar work in the
14 San Francisco Bay Area.
15 36. Said Cross-Defendants negligently performed the agreement in, but not
limited to, the following ways: failed to perform the work in a good and workmanlike and
timely manner, pursuant to contract plans and specifications and the appropriate building
codes, failed to timely pay all of his subcontractors, failed to properly supervise the work,
failed to properly credit Cross-Complainant for work not performed and/or materials
20 purchased by Cross-Complainant, failed to properly bill Cross-Complainant for the work
without overcharges, double-billings and other errors, failed to complete the work in
22 ninety (90) days, and abandoned the project before completion.
23 37. As a proximate result of the negligence of said Cross-Defendants, Cross-
Complainant has been and will be required to contract with different contractors to
complete the work originally required to be performed by Cross-Defendant European
Enterprises, and to redo those portions of the work negligently performed by Cross-
Defendant European Enterprises. Said contracts with different contractors will result in
25 Cross-Complainant having to pay an amount in excess of the original amount Cross-
10
FIRST AMENDED CROSS-COMPLAINT
Complainant had agreed to pay to said Cross-Defendants.
2 38. By reason of said Cross-Defendants'egligence, as set forth above, Cross-
3 Complainant has been damaged in an amount to be shown according to proof at trial,
which sum is estimated to be in excess of $ 300,000. The exact amount of said damages
5 is unknown to Cross-Complainant at this time, and Cross-Complainant prays leave to
6 amend this Cross-Complaint to state the true amount when the same has been
7 ascertained.
8 39. As a further result of said Cross-Defendants'egligence, Cross-
0 Complainant has been unable to rent out said apartment units since December 1, 2017.
10 Said apartment units have a rental value of $ 14,000. per month. The exact total amount
of said damages is unknown to Cross-Complainant at this time, and Cross-Complainant
12 prays leave to amend this Cross-Complaint to state the true amount when the same has
13 been ascertained.
14 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
15 FIFTH CAUSE OF ACTION
BUS. & PROF. CODE II7160
16
(Against Cross-Defendants European Enterprises and Roes One through Fifty)
17
18 40. Cross-Complainant incorporates by reference, as if fully set forth,
10 paragraphs 1 through 39 above.
20 41. On or before the date the above-mentioned contract was entered into by
21 Cross-Complainant and Cross-Defendants European Enterprises and Roes One through
22 Fifty, Cross-Defendant European Enterprises represented to Cross-Complainant that: (1)
23 he would pull all necessary building permits all of the work required under the contract,
24 including but not limited to all fire sprinkler work and related work (2) that he would
25 complete all of the work in a good and workmanlike manner, pursuant to the project plans
26 and specifications and appropriate Building Codes, (3) that said work would be
27 completed within ninety (90) days, and (4) that he was properly qualified, licensed,
26 insured, and bonded to perform the work on the Project.
FIRST AMENDED CROSS-COMPLAINT
1 42. Said representations were false. Further, Cross-Defendant European
2 Enterprises knew said above representations were false at the time he made them. The
3 true facts were that Cross-Defendant European Enterprises knowingly failed to pull all
4 necessary building permits to complete all of the work required under the contract, failed
5 to complete all of the work in a good and workmanlike manner pursuant to the project
6 plans and specifications and appropriate Building Codes, his work failed to pass
7 inspection by the Building Department, he failed to complete the work within ninety (90)
8 days, and he abandoned the project before completion.
9 43. Cross-Defendant European Enterprises'alse representations induced
to Cross-Complainant to enter into the contract in reliance on said representations. As a
proximate result of the false representations made by Cross-Defendant European
12 Enterprises, Cross-Complainant has been and will be required to contract with different
13 contractors to complete the work originally required to be performed by Cross-Defendant
14 European Enterprises, and to redo those portions of the work negligently performed by
15 Cross-Defendant European Enterprises. Said contract with different contractors will result
16 in Cross-Complainant having to pay an amount in excess of the original amount Cross-
Complainant had agreed to pay to Cross-Defendant European Enterprises.
18 44. As a further result of the false representations made by Cross-Defendant
19 European Enterprises as set forth above, Cross-Complainant has been damaged in an
2o amount to be shown according to proof at trial, which sum is estimated to be in excess of .
21 $ 300,000. The exact amount of said damages is unknown to Cross-Complainant at this
22 time, and Cross-Complainant prays leave to amend this Cross-Complaint to state the true
23 amount when the same has been ascertained.
24 45. As a further result of Cross-Defendant European Enterprises'alse
25 representations, Cross-Complainant has been unable to rent out said apartment units
26 since December 1, 2017. Said apartment units have a rental value of $ 14,000. per
27 month. The exact total amount of said damages is unknown to Cross-Complainant at this
28 time, and Cross-Complainant prays leave to amend this Cross-Complaint to state the true
12
FIRST AMENDED CROSS-COMPLAINT
amount when the same has been ascertained.
2 46. In addition to the damages mentioned above, Cross-Complainant has
3 incurred and will incur further attorney's fees in prosecuting this action. Pursuant to
Business 8 Professions Code section 7160, Cross-Complainant is also entitled to a five
hundred dollars ($ 500) penalty from Cross-Defendant European Enterprises in addition to
5 reasonable attorney's fees.
7 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
SIXTH CAUSE OF ACTION
DISGORGEMENT
BUS. & PROF. CODE 57031
10 (Against Cross-Defendants European Enterprises and Roes One through Fifty)
47. Cross-Complainant incorporates by reference, as if fully set forth,
12 paragraphs 1 through 46 above.
13 48. Cross Defendant European Enterprises and Cross-Defendants Roes One
&4 through Fifty were required to have and to maintain valid and active contractor's licenses
&5 to enter into the parties'ontract and/or to perform work on the Project. On information
15 and belief, Cross Defendant European Enterprises and Cross-Defendants Roes One
17 through Fifty failed to maintain a valid and active contractor's license at all relevant times
&5 before and during the Project and must disgorge all compensation they received for the
ts performance of work on the Project.
20 49. Cross-Complainant paid Cross-Defendant European Enterprises
2& approximately $ 210,000 in compensation for the performance of work on the Project.
22 Cross-Defendant European Enterprises must disgorge said compensation to Cross-
23 Complainant.
24 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
25
SEVENTH CAUSE OF ACTION
DISGORGEMENT/RESTITUTION
BUS. 8 PROF. CODE $ 7159
27 (Against Cross-Defendants European Enterprises and Roes One through Fifty)
28 50. Cross-Complainant incorporates by reference, as if fully set forth,
13
FIRST AMENDED CROSS-COMPLAINT
paragraphs 1 through 49 above.
2 51. Cross-Complainant entered into an agreement with Cross-Defendant
3 European Enterprises for a home improvement, as that term is defined by Section 7151.
4 The parties'greement was a "home improvement contract" as that term is defined in
5 Section 7151.2. Cross-Defendant European Enterprises was required to supply Cross-
6 Complainant with a written home improvement contract that complied with requirements
7 set forth in Section 7159. Cross-Defendant European Enterprises failed to provide Cross-
6 Complainant with a contract that complied with Section 7159. Instead, Cross-Defendant
6 European Enterprises provided Cross-Complainant with the "Contract Proposal" attached
to hereto as Exhibit "A", which fails to include most, ifnot all, of the terms required by
Section 7159.
12 52. The oral contract is illegal and void at the election of Cross-Complainant.
13 Cross-Complainant reserves the right to make this election at the time of trial or
14 thereafter, as authorized by law.
15 53. As an illegal contract, Cross-Defendant European Enterprises must
16 disgorge all compensation he received for the performance for work under the
parties'ontract.
In the alternative, Cross-Defendant European Enterprises was only authorized
16 to accept payment for the "reasonable value" of the work he supplied to the Project.
16 Cross-Complainant paid, and Cross-Defendant European Enterprises accepted, an
26 amount far in excess of the reasonable value of Cross-Defendant European Enterprises
21 work on the Project. Cross-Defendant European Enterprises must provide restitution to
22 Cross-Complainant for the amount that Cross-Complainant paid to Cross-Defendant
23 European Enterprises that was in excess of the reasonable value of Cross-Defendant
24 European Enterprises'ork on the project.
25 54. Cross-Complainant is entitled to disgorgement of the entire amount paid by
26 Cross-Complainant under the contract or, in the alternative, disgorgement/restitution of all
27 amounts paid to Cross-Defendant European Enterprises in excess of the reasonable
28 value of his work on the Project.
14
FIRST AMENDED CROSS-COMPLAINT
1 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth.
EIGHTH CAUSE OF ACTION
(Business and Professions Code $ 17200)
(Against Cross-Defendants European Enterprises and Roes One through Fifty)
4
5 55. Cross-Complainant incorporates by reference, as if fully set forth,
8 paragraphs 1 through 54 above.
7 56. California's Unfair Competition Law, Cal. Bus. 8 Prof. Code @17200, et
8 seq. ("UCL"), protects consumers and competitors by promoting fair competition in the
8 commercial marketplace. Cross-Complainant is within the class of parties intended to be
1o protected by the UCL.
11 57. The UCL prohibits any unlawful, unfair, or fraudulent business acts or
12 practices. A business practice need only satisfy one of the three prongs to be considered
13 a violation of the UCL. Cross-Defendant European Enterprises has violated the
14 "unlawful" prong of the UCL, the "unfair" prong of the UCL, and the "fraudulent" prong of
18 the UCL, as alleged above and herein. In so doing, Cross-Defendant European
16 Enterprises acted with malice, oppression, and in a fraudulent manner.
17 58. Cross-Defendant European Enterprises representations and activitie
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1 MATTHEW A, HAULK (SBN 272457) JOSE HERRERA (SBN; 289590) RAGGHIANTI FREITAS LLP 1101FifthAvenue,Suite100 San Rafael, California 94901 Telephone: (415) 453-9433 10/10/2019 Facsimile: (415) 453-8269 5 Attorneys for Defendants PUNIT K. SARNA and PUJA SARNA And Cross-Complainant PUNIT SARNA 9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO 10 UNLIMITED JURISDICTION 11 LOUIS PAYCHECK d/b/a EUROPEAN CASE NO.: 19CIV02595 ENTERPRISES, 12 FIRST AMENDED CROSS-COMPLAINT 13 Plaintiff, 14 V. PUNIT K. SARNA a/k/a PETER SARNA, PUJA SARNA; and DOES 1-30, inclusive, 16 Complaint Filed: May 10, 2019 17 Defendants. Trial Date: Not set. 18 PUNIT K. SARNA a/k/a PETER SARNA, 19 20 Cross-Complainant, 21 V. 22 LOUIS PAYCHECK, indiv. and dba EUROPEAN ENTERPRISES; SURETEC INDEMNITY COMPANY, a corp.; and 24 ROES 1-50, inclusive, 25 Cross-Defendants. 26 27 28 FIRST AMENDED CROSS-COMPLAINT 1 Cross-Complainant Punit K. Sama, aka Peter Sama, alleges: 2 INTRODUCTION 3 1. This action involves the renovation and remodeling of a multi-unit residential property located at 721 Rollins Road, Burlingame, California (the "Property" ). 5 In November 2017, Cross-Complainant Punit K. Sama (" Cross-Complainant" ) hired Louis 6 Paycheck who was doing business under the fictitious business name "European 7 Enterprises" (" Cross-Defendant European Enterprises" ) to perform renovation and 8 remodeling work at the Property (the "Project" ). 9 2. Cross-Defendant European Enterprises violated numerous provisions of the &6 California Contractors License Law including, but not limited to, Business and Professions Code section 7159. On information and belief, Cross-Defendant European 12 Enterprises acted as an unlicensed contractor on the Project. Cross-Defendant European 13 Enterprises failed to perform work on the Project in a good and workmanlike manner, &4 Cross-Defendant European Enterprises failed to perform work on the Project in a timely and diligent manner, and Cross-Defendant European Enterprises abandoned the Project 16 and failed to complete work on the Project. 17 3. Cross-Defendant European Enterprises'isconduct and negligence has 18 caused Cross-Complainant to suffer significant general and special damages and, as an &9 unlicensed contractor who failed to comply with Business and Professions Code 57159, 36 Cross-Defendant European Enterprises must disgorge allcompensation that it received 21 for the performance of work on the Project, a total of approximately $210,000 Cross- 22 Complainant brings this action to recover, among other forms of relief, general damages, 23 special damages, disgorgement, statutory damages, injunctive relief, and any other relief 24 provided by the Court, 25 PARTIES 26 4. Cross-Complainant Punit Sama (" Cross-Complainant" ) is a natural person 27 and is and at all relevant times was, the owner of the Property. Cross-Defendant Louis 28 Paycheck was at all relevant times doing business under the fictitious business name FIRST AMENDED CROSS-COMPLAINT European Enterprises and isan individual residing in the County of San Mateo (" Cross- 2 Defendant European Enterprises" ) and doing business in the County of San Mateo, State 3 of California. 4 5. Cross-Complainant is informed and believes, and on that basis alleges that, 5 at all times mentioned herein, Cross-Defendant Suretec Indemnity Company, a 6 corporation (hereinafter "Cross-Defendant Suretec Indemnity" ) was and now is a 7 corporation, duly organized to transact business and doing business as a surety in the 8 State of California. 9 6. The true names and capacities, whether individual, corporate, associate or 19 otherwise of Cross-Defendants Roes 1 through 50 are unknown to Cross-Complainant who therefore sues these Cross-Defendants by such fictitious names. Cross-Complainant 12 is informed and believes and thereon allege that each of the Defendants designated as a 13 Roe is in some way legally responsible for the acts complained of herein. Cross- 14 Complainant will amend this cross-complaint to specify the true names and capacities of such Cross-Defendants when they have been ascertained. Cross-Defendant European 16 Enterprises, Cross-Defendant Suretec Indemnity, and Cross-Defendants Roes 1 through 17 Roe 50 are collectively referred to herein as "Cross-Defendants". 18 7. On information and belief, at all times herein mentioned, Cross-Defendants, 19 whether individual, corporate, partnership, joint venture, association, unincorporated 26 association or otherwise, and each of them, were the partners, joint venturers, agents 21 and/or employees of the co-Cross-Defendants, and in doing the things herein alleged, 22 were acting within the course and scope of such partnership, joint venture, agency and/or 23 employment and under the direction of, and with the consent, permission, advanced 24 knowledge, and/or subsequent ratification of their Co-Cross-Defendants. 25 GENERAL ALLEGATIONS 26 8. On or about November 12, 2017, Cross-Complainant entered into an oral 27 contract with Cross-Defendant European Enterprises whereby Cross-Defendant 28 European Enterprises agreed to furnish and supply labor, services, materials, equipment, FIRST AMENDED CROSS-COMPLAINT and related work, for the total fixed sum of $ 143,250, for use in remodeling Cross- 2 Complainant's five-unit apartment building, located at 721 Rollins Road, Burlingame, 3 California. The oral contract required Cross-Defendant European Enterprises to complete 4 the job within ninety (90) days, weather permitting. A copy of Cross-Defendant European 3 Enterprises written proposal evidencing the parties'ral contract is attached hereto as s Exhibit "A". 7 9. The oral contract was for a "home improvement" as that term is defined s under Business and Professions code 57151. Cross-Defendant European Enterprises s failed to comply with Business and Professions code 57159 (including providing required 1o written notifications and warnings regarding mechanic's liens) and the oral contract is therefore voidable at the election of Cross-Complainant. Cross-Complainant reserves the 12 right to make this election at the time of trial or thereafter, as authorized by law. 13 10. Cross-Defendant European Enterprises failed to perform the work on the 14 Project in a good and workmanlike manner within ninety (90) days, pursuant to the 13 agreed-upon plans and specifications and the appropriate Building Codes, and Cross- 16 Defendant European Enterprises abandoned the project before completion. On information and belief, before and during the project Cross-Defendant European 18 Enterprises failed to have or maintain an active and/or valid contractor's license and/or it 13 was automatically suspended by operation of law for violation of the California zo Contractors License Law. 21 11. On or about January 28, 2019, Cross-Complainant, through his attorney, 22 advised Cross-Defendant European Enterprises in writing that it was terminated due to its 23 failure to perform work in a good and workmanlike and timely manner, pursuant to 24 contract plans and specifications and the appropriate building codes, due to its 23 abandonment of the project before completion, and related issues. 2s /// 37 /// 23 /// FIRST AMENDED CROSS-COMPLAINT 1 FIRST CAUSE OF ACTION BREACH OF CONTRACT (Against Cross-Defendants European Enterprises and Roes One through Fifty) 4 12. Cross-Complainant incorporates by reference, as if fully set forth, paragraphs 1 through 11 above. 6 13. On or about November 12, 2017, Cross-Complainant entered into an oral 7 contract with Cross-Defendants European Enterprises and Roes One through Fifty 6 whereby Cross-Defendants agreed to furnish and supply labor, services materials, s equipment, and related work, for the lump sum of $ 143,250, for use in remodeling Cross- 1II Complainant's five- unit apartment building, located at 721 Rollins Road, Burlingame, California. The contract required Cross-Defendant European Enterprises to complete the 12 job within ninety (90) days. A copy of Cross-Defendant's written proposal evidencing said 13 oral contract is attached hereto as Exhibit "A". 14 14. Cross-Complainant fully and completely performed all of the terms, conditions and promises of said contract on his part to be performed, having paid Cross- 16 Defendant European Enterprises the sum of $ 210,000, and all of the conditions precedent to performance on the part of Cross-Defendants have occurred, and Cross- 16 Complainant has demanded performance from Cross-Defendant European Enterprises. 16 Any terms, conditions or promises not so performed by Cross-Complainant have been 2'xcused by reason of said Cross-Defendant European Enterprises'reach of said 21 agreement as set forth below. 22 15. Within the last two years, Cross-Defendant European Enterprises and 23 Roes One through Fifty breached the above-mentioned contract by failing to perform the contracted-for work in a good and workmanlike manner according to the plans and specifications of the contract and the appropriate building codes, by failing to complete 26 the work in ninety (90) days, and by abandoning the job before completion. 27 16. Subsequently, on multiple occasions, Cross-Complainant gave notice to 26 Cross-Defendant European Enterprises that the work was not being performed in a good FIRST AMENDED CROSS-COMPLAINT and workmanlike and timely manner according to the plans and specifications of the 2 contract, and accordingly demanded that Cross-Defendant European Enterprises perform 3 according to the terms of the contract with Cross-Complainant. However, said Cross- 4 Defendants failed to so perform, and remained in breach of the contract with Cross- Complainant, and abandoned the project before completion. 6 17. As a result of said Cross-Defendants'reach of contract, and among other legal damages, Cross-Complainant has been and will be required to contract with 8 different contractors to complete the work originally required to be performed by Cross- 0 Defendants, and to redo those portions of the work performed by said Cross-Defendants 10 which did not conform to the requirements of the plans and specifications of said project, and the appropriate building codes. Said contracts with new contractors have and will 12 result in Cross-Complainant having to pay an amount in excess of the original amount 13 Cross-Complainant had agreed to pay said Cross-Defendants. 14 18. By reason of said Cross-Defendants'reach of contract as set forth above, 15 Cross-Complainant has been damaged in an amount to be shown according to proof at 16 trial,which sum is estimated to be in excess of $ 300,000. The exact amount of said 17 damages is unknown to Cross-Complainant at this time, and Cross-Complainant pray 16 leave to amend this Cross-Complaint to state the true amount when the same has been 10 ascertained. 20 19. As a further result of said Cross-Defendants'reach of contract, Cross- 21 Complainant has been unable to rent out said apartment units since December 1, 2017. 22 Said apartment units have a rental value of $ 14,000 per month. The exact amount of said 23 damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays 24 leave to amend this Cross-Complaint to state the true amount when the same has been 26 ascertained. 26 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. /// 26 /// FIRST AMENDED CROSS-COMPLAINT 1 SECOND CAUSE OF ACTION BREACH OF EXPRESS WARRANTY (Against Cross-Defendants European Enterprises and Roes One through Fifty) 4 20. Cross-Complainant incorporates by reference, as if fully set forth, paragraphs 1 through 19 above. 6 21. On or before the date the above-mentioned contract was entered into by 7 Cross-Complainant and Cross-Defendants European Enterprises and Roes One through 6 Fifty, and in order to induce Cross-Complainant to enter into said agreement, Cross- s Defendants European Enterprises and Roes One through Fifty expressly warranted to 1II Cross-Complainant the following: ( 1) that all of the work to be performed would be performed in a good and workmanlike manner, pursuant to contract plans and 12 specifications and the Building Code (2) that Cross-Defendant European Enterprises 13 would perform all of the work required to be performed pursuant to said contract (3) that 14 said work would be completed within ninety (90) days, and (4) that he was properly qualified, licensed, insured, and bonded to perform the work on the Project. 16 22. In reliance on the above warranties of Cross-Defendants, and in good faith, 17 Cross-Complainant then entered into the contract with said Cross-Defendants. 18 23. However, said Cross-Defendants breached the express warranties in, but ts not limited to, the following: Cross-Defendant European Enterprises failed to perform the 2'ork in a good and workmanlike manner, pursuant to contract plans and specifications and the Building Code, failed to complete the work within ninety (90) days, and abandoned the job before completion. 23 24. When Cross-Complainant discovered that the above warranties had been breached in the manner stated above, he gave notice to Cross-Defendant European Enterprises within a reasonable period of time following Cross-Complainant's discovery oi 26 said Cross-Defendant's breach. 27 25. As a result of said Cross-Defendants'reach of express warranties, Cross- 26 Complainant has been and will be required to contract with different contractors to FIRST AMENDED CROSS-COMPLAINT complete the work originally required to be performed by said Cross-Defendants, and to 2 redo those portions of the work performed by said Cross-Defendants which did not 3 conform to the requirements of the plans and specifications of said project and the 4 appropriate building codes. Said contracts with new contractors will result in Cross- 5 Complainant having to pay an amount in excess of the original amount Cross- 6 Complainant had agreed to pay Cross-Defendant European Enterprises. 7 26. By reason of said Cross-Defendants'reach of express warranties as set 8 forth above, Cross-Complainant has been damaged in an amount to be shown according 9 to proof at trial, which sum is estimated to be in excess of $ 300,000. The exact amount of 10 said damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays leave to amend this Cross-Complaint to state the true amount when the same has been ascertained. 13 27. As a further result of said Cross-Defendants'onduct, Cross-Complainant has been unable to rent out said apartment units since December 1, 2017. Said 15 apartment units have a rental value of $ 14,000 per month. The exact total amount of said 16 damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays 17 leave to amend this Cross-Complaint to state the true amount when the same has been 18 ascertained. 19 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. 20 THIRD CAUSE OF ACTION 21 BREACH OF IMPLIED WARRANTY (Against Cross-Defendants European Enterprises and Roes One through Fifty) 22 23 28. Cross-Complainant incorporates by reference, as if fully set forth, 24 paragraphs 1 through 27. 25 29. On the date the above-mentioned contract was entered into by Cross- 26 Complainant and Cross-Defendants European Enterprises and Roes One through Fifty, 27 Cross-Defendants European Enterprises and Roes One through Fifty impliedly warranted 28 the following: (1) that all of the work to be performed by European Enterprises would be FIRST AMENDED CROSS-COMPLAINT performed in a good and workmanlike and timely manner, pursuant to contract plans and 2 specifications and the appropriate building codes, and (2) that European Enterprises 3 would perform all of the work required to be performed pursuant to said contract (3) that all of the work would be completed in ninety (90) days. 5 30. However, said Cross-Defendants breached said warranties in, but not 8 limited to, the following ways: implied (1) they failed to perform the work in a good and 7 workmanlike and timely manner, pursuant to contract plans and specifications and the 8 appropriate building codes, (2) failed to complete the work in ninety (90) days, and (3) 8 they abandoned the job before completion. 10 31. When Cross-Complainant discovered that the above warranties had been breached in the manner stated above, he gave notice to said Cross-Defendants within a 12 reasonable period of time following the discovery of said Cross-Defendant's breach. 13 32. By reason of said Cross-Defendants'reach of implied warranties, as set 14 forth above, Cross-Complainant has been damaged in an amount to be shown according 15 to proof at trial, which sum is estimated to be in excess of $ 300,000. The exact amount of 18 said damages is unknown to Cross-Complainant at this time, and Cross-Complainant 17 prays leave to amend this Cross-Complaint to state the true amount when the same has 18 been ascertained. 19 33. As a further result of said Cross-Defendants'onduct, Cross-Complainant 20 has been unable to rent out said apartment units since December 1, 2017. Said 21 apartment units have a rental value of $ 14,000 per month. The exact total amount of said 22 damages is unknown to Cross-Complainant at this time, and Cross-Complainant prays 23 leave to amend this Cross-Complaint to state the true amount when the same has been 24 ascertained. 25 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. 28 /// 27 /// 28 /// FIRST AMENDED CROSS-COMPLAINT 1 FOURTH CAUSE OF ACTION (Negligence) (Against Cross-Defendants European Enterprises and Roes One through Fifty) 34. Cross-Complainant incorporates by reference, as iffully set forth, paragraphs 1 through 33 above. 35. Cross-Defendants European Enterprises and Roes One through Fifty owed a duty to Cross-Complainant to, inter alia, (1) perform the work in a good and workmanlike and timely manner (2) complete all required work within 90 days (3) timely pay all of their subcontractors (4) properly supervise the work (5) properly credit Cross- 1p Complainant for work not performed and/or materials purchased by Cross-Complainant, (6) properly bill Cross-Complainant for the work without overcharges, double-billings and other errors, and (7) complete the work within ninety (90) days, all in keeping with the 13 accepted standards of the construction industry and others engaged in similar work in the 14 San Francisco Bay Area. 15 36. Said Cross-Defendants negligently performed the agreement in, but not limited to, the following ways: failed to perform the work in a good and workmanlike and timely manner, pursuant to contract plans and specifications and the appropriate building codes, failed to timely pay all of his subcontractors, failed to properly supervise the work, failed to properly credit Cross-Complainant for work not performed and/or materials 20 purchased by Cross-Complainant, failed to properly bill Cross-Complainant for the work without overcharges, double-billings and other errors, failed to complete the work in 22 ninety (90) days, and abandoned the project before completion. 23 37. As a proximate result of the negligence of said Cross-Defendants, Cross- Complainant has been and will be required to contract with different contractors to complete the work originally required to be performed by Cross-Defendant European Enterprises, and to redo those portions of the work negligently performed by Cross- Defendant European Enterprises. Said contracts with different contractors will result in 25 Cross-Complainant having to pay an amount in excess of the original amount Cross- 10 FIRST AMENDED CROSS-COMPLAINT Complainant had agreed to pay to said Cross-Defendants. 2 38. By reason of said Cross-Defendants'egligence, as set forth above, Cross- 3 Complainant has been damaged in an amount to be shown according to proof at trial, which sum is estimated to be in excess of $ 300,000. The exact amount of said damages 5 is unknown to Cross-Complainant at this time, and Cross-Complainant prays leave to 6 amend this Cross-Complaint to state the true amount when the same has been 7 ascertained. 8 39. As a further result of said Cross-Defendants'egligence, Cross- 0 Complainant has been unable to rent out said apartment units since December 1, 2017. 10 Said apartment units have a rental value of $ 14,000. per month. The exact total amount of said damages is unknown to Cross-Complainant at this time, and Cross-Complainant 12 prays leave to amend this Cross-Complaint to state the true amount when the same has 13 been ascertained. 14 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. 15 FIFTH CAUSE OF ACTION BUS. & PROF. CODE II7160 16 (Against Cross-Defendants European Enterprises and Roes One through Fifty) 17 18 40. Cross-Complainant incorporates by reference, as if fully set forth, 10 paragraphs 1 through 39 above. 20 41. On or before the date the above-mentioned contract was entered into by 21 Cross-Complainant and Cross-Defendants European Enterprises and Roes One through 22 Fifty, Cross-Defendant European Enterprises represented to Cross-Complainant that: (1) 23 he would pull all necessary building permits all of the work required under the contract, 24 including but not limited to all fire sprinkler work and related work (2) that he would 25 complete all of the work in a good and workmanlike manner, pursuant to the project plans 26 and specifications and appropriate Building Codes, (3) that said work would be 27 completed within ninety (90) days, and (4) that he was properly qualified, licensed, 26 insured, and bonded to perform the work on the Project. FIRST AMENDED CROSS-COMPLAINT 1 42. Said representations were false. Further, Cross-Defendant European 2 Enterprises knew said above representations were false at the time he made them. The 3 true facts were that Cross-Defendant European Enterprises knowingly failed to pull all 4 necessary building permits to complete all of the work required under the contract, failed 5 to complete all of the work in a good and workmanlike manner pursuant to the project 6 plans and specifications and appropriate Building Codes, his work failed to pass 7 inspection by the Building Department, he failed to complete the work within ninety (90) 8 days, and he abandoned the project before completion. 9 43. Cross-Defendant European Enterprises'alse representations induced to Cross-Complainant to enter into the contract in reliance on said representations. As a proximate result of the false representations made by Cross-Defendant European 12 Enterprises, Cross-Complainant has been and will be required to contract with different 13 contractors to complete the work originally required to be performed by Cross-Defendant 14 European Enterprises, and to redo those portions of the work negligently performed by 15 Cross-Defendant European Enterprises. Said contract with different contractors will result 16 in Cross-Complainant having to pay an amount in excess of the original amount Cross- Complainant had agreed to pay to Cross-Defendant European Enterprises. 18 44. As a further result of the false representations made by Cross-Defendant 19 European Enterprises as set forth above, Cross-Complainant has been damaged in an 2o amount to be shown according to proof at trial, which sum is estimated to be in excess of . 21 $ 300,000. The exact amount of said damages is unknown to Cross-Complainant at this 22 time, and Cross-Complainant prays leave to amend this Cross-Complaint to state the true 23 amount when the same has been ascertained. 24 45. As a further result of Cross-Defendant European Enterprises'alse 25 representations, Cross-Complainant has been unable to rent out said apartment units 26 since December 1, 2017. Said apartment units have a rental value of $ 14,000. per 27 month. The exact total amount of said damages is unknown to Cross-Complainant at this 28 time, and Cross-Complainant prays leave to amend this Cross-Complaint to state the true 12 FIRST AMENDED CROSS-COMPLAINT amount when the same has been ascertained. 2 46. In addition to the damages mentioned above, Cross-Complainant has 3 incurred and will incur further attorney's fees in prosecuting this action. Pursuant to Business 8 Professions Code section 7160, Cross-Complainant is also entitled to a five hundred dollars ($ 500) penalty from Cross-Defendant European Enterprises in addition to 5 reasonable attorney's fees. 7 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. SIXTH CAUSE OF ACTION DISGORGEMENT BUS. & PROF. CODE 57031 10 (Against Cross-Defendants European Enterprises and Roes One through Fifty) 47. Cross-Complainant incorporates by reference, as if fully set forth, 12 paragraphs 1 through 46 above. 13 48. Cross Defendant European Enterprises and Cross-Defendants Roes One &4 through Fifty were required to have and to maintain valid and active contractor's licenses &5 to enter into the parties'ontract and/or to perform work on the Project. On information 15 and belief, Cross Defendant European Enterprises and Cross-Defendants Roes One 17 through Fifty failed to maintain a valid and active contractor's license at all relevant times &5 before and during the Project and must disgorge all compensation they received for the ts performance of work on the Project. 20 49. Cross-Complainant paid Cross-Defendant European Enterprises 2& approximately $ 210,000 in compensation for the performance of work on the Project. 22 Cross-Defendant European Enterprises must disgorge said compensation to Cross- 23 Complainant. 24 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. 25 SEVENTH CAUSE OF ACTION DISGORGEMENT/RESTITUTION BUS. 8 PROF. CODE $ 7159 27 (Against Cross-Defendants European Enterprises and Roes One through Fifty) 28 50. Cross-Complainant incorporates by reference, as if fully set forth, 13 FIRST AMENDED CROSS-COMPLAINT paragraphs 1 through 49 above. 2 51. Cross-Complainant entered into an agreement with Cross-Defendant 3 European Enterprises for a home improvement, as that term is defined by Section 7151. 4 The parties'greement was a "home improvement contract" as that term is defined in 5 Section 7151.2. Cross-Defendant European Enterprises was required to supply Cross- 6 Complainant with a written home improvement contract that complied with requirements 7 set forth in Section 7159. Cross-Defendant European Enterprises failed to provide Cross- 6 Complainant with a contract that complied with Section 7159. Instead, Cross-Defendant 6 European Enterprises provided Cross-Complainant with the "Contract Proposal" attached to hereto as Exhibit "A", which fails to include most, ifnot all, of the terms required by Section 7159. 12 52. The oral contract is illegal and void at the election of Cross-Complainant. 13 Cross-Complainant reserves the right to make this election at the time of trial or 14 thereafter, as authorized by law. 15 53. As an illegal contract, Cross-Defendant European Enterprises must 16 disgorge all compensation he received for the performance for work under the parties'ontract. In the alternative, Cross-Defendant European Enterprises was only authorized 16 to accept payment for the "reasonable value" of the work he supplied to the Project. 16 Cross-Complainant paid, and Cross-Defendant European Enterprises accepted, an 26 amount far in excess of the reasonable value of Cross-Defendant European Enterprises 21 work on the Project. Cross-Defendant European Enterprises must provide restitution to 22 Cross-Complainant for the amount that Cross-Complainant paid to Cross-Defendant 23 European Enterprises that was in excess of the reasonable value of Cross-Defendant 24 European Enterprises'ork on the project. 25 54. Cross-Complainant is entitled to disgorgement of the entire amount paid by 26 Cross-Complainant under the contract or, in the alternative, disgorgement/restitution of all 27 amounts paid to Cross-Defendant European Enterprises in excess of the reasonable 28 value of his work on the Project. 14 FIRST AMENDED CROSS-COMPLAINT 1 WHEREFORE, Cross-Complainant prays for judgment as hereinafter set forth. EIGHTH CAUSE OF ACTION (Business and Professions Code $ 17200) (Against Cross-Defendants European Enterprises and Roes One through Fifty) 4 5 55. Cross-Complainant incorporates by reference, as if fully set forth, 8 paragraphs 1 through 54 above. 7 56. California's Unfair Competition Law, Cal. Bus. 8 Prof. Code @17200, et 8 seq. ("UCL"), protects consumers and competitors by promoting fair competition in the 8 commercial marketplace. Cross-Complainant is within the class of parties intended to be 1o protected by the UCL. 11 57. The UCL prohibits any unlawful, unfair, or fraudulent business acts or 12 practices. A business practice need only satisfy one of the three prongs to be considered 13 a violation of the UCL. Cross-Defendant European Enterprises has violated the 14 "unlawful" prong of the UCL, the "unfair" prong of the UCL, and the "fraudulent" prong of 18 the UCL, as alleged above and herein. In so doing, Cross-Defendant European 16 Enterprises acted with malice, oppression, and in a fraudulent manner. 17 58. Cross-Defendant European Enterprises representations and activitie