Preview
1 Aliah A. Abdo, Esq. [SBN 260341]
THE ABDO LAW FIRM
2 1580 Aldrich Way
San Jose, CA 95121
3
Telephone: (408) 439-4671
4 Facsimile: (408) 904-6263
Email: aliah@abdolawgroup.com
5
6 Attorneys for Plaintiffs, AHMED ALYOUSIFI and FATIMA ALYOUSIFI.
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF ALAMEDA
9
10 UNLIMITED JURISDICTION
11
12 AHMED ALYOUSIFI, an individual, Case. No.: RG21104938
FATIMA ALYOUSIFI, an individual,
13 FIRST AMENDED COMPLAINT FOR DAMAGES
Plaintiffs, FOR:
14
15 v. 1. BREACH OF CONTRACT;
2. BREACH OF CONTRACT – THIRD PARTY
16 ALFARO’S CONSTRUCTION BENEFICIARY;
SERVICES, an unknown entity, for 3. BREACH OF THE IMPLIED COVENANT OF
17 GOOD FAITH AND FAIR DEALING;
itself and dba ALFARO
4. BREACH OF IMPLIED WARRANTY;
18 CONSTRUCTION SERVICES 5. BREACH OF EXPRESS WARRANTY;
PARTNERSHIP; ALFARO
19 CONSTRUCTION SERVICES 6. NEGLIGENCE;
PARTNERSHIP, an unknown entity, for 7. INTENTIONAL MISREPRESENTATION;
20 itself and dba ALFARO’S 8. NEGLIGENT MISREPRESENTATION;
CONSTRUCTION SERVICES; 9. FALSE PROMISE;
21 10. FRAUDULENT CONCEALMENT;
JOHNNY ALFARO,
11. RESCISSION;
22 individually and dba ALFARO’S 12. COMMON COUNTS – MONEY HAD AND
CONSTRUCTION SERVICES and
23 ALFARO CONSTRUCTION RECEIVED;
SERVICES PARTNERSHIP; LUIS 13. INTENTIONAL INTERFERENCE WITH
24 ALFARO, individually and dba PROSPECTIVE ECONOMIC ADVANTAGE;
25 -1-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 ALFARO’S CONSTRUCTION 14. NEGLIGENT INTERFERENCE WITH
SERVICES and ALFARO PROSPECTIVE ECONOMIC ADVANTAGE;
2 CONSTRUCTION SERVICES 15. INTENTIONAL INTERFERENCE WITH
PARTNERSHIP; PRO CONNECT CONTRACTUAL RELATIONS;
3
ELECTRICAL, INC., a California 16. CONVERSION; AND
4 Corporation, and DOES 1-50, inclusive, 17. UNFAIR BUSINESS PRACTICES – Violations
of Cal. Bus. & Prof. Code §17200 et seq.
5 Defendants.
6
7 Plaintiffs, Mr. AHMED ALYOUSIFI and Ms. FATIMA ALYOUSIFI (collectively
8 “Plaintiffs” or the “Alyousifis”), hereby submit their First Amended Complaint against ALFARO’S
9 CONSTRUCTION SERVICES (“ACS”) for itself and dba ALFARO CONSTRUCTION
10 SERVICES PARTNERSHIP (“ACSP”), ACSP for itself and also dba ACS, Mr. JOHNNY
11 ALFARO, individually and dba ACS and ACSP, Mr. LUIS ALFARO, individually and dba ACS
12 and ACSP (collectively with ACS, ACSP, Mr. Johnny Alfaro, Mr. Luis Alfaro, and DOES 1-50, the
13 “Alfaro Parties”), PRO CONNECT ELECTRICAL, INC. (collectively with DOES 1-50, “Pro
14 Connect”), and DOES 1-50, inclusive (collectively with the Alfaro Parties and Pro Connect,
15 “Defendants”), as follows:
16 THE PARTIES
17 1. At all relevant times, Plaintiff, Mr. Ahmed Alyousifi, was and currently is, a
18 resident of Alameda County, Oakland, California.
19 2. At all relevant times, Plaintiff, Ms. Fatima Alyousifi, was and currently is, a
20 resident of Alameda County, Oakland, California. The Alyousifis are the owners of their residence
21 located at 5847 Chelton Drive, Oakland, CA 94611 (“Subject Property” or “Alyousifi Residence”).
22 3. Plaintiffs are informed, believe, and thereon allege that Defendant ACS is an
23 unknown entity, with its principal place of business in Alameda County, California. Upon
24
25 -2-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 information and belief, ACS is at times referred to as ACSP, Mr. Johnny Alfaro, and/or Mr. Luis
2 Alfaro, and does business as ACSP.
3 4. Plaintiffs are informed, believe, and thereon allege that Defendant ACSP is an
4 unknown entity, with its principal place of business in Alameda County, California. Upon
5 information and belief, ACSP is at times referred to as ACS, Mr. Johnny Alfaro, and/or Mr. Luis
6 Alfaro, and does business as ACS.
7 5. Plaintiffs are informed, believe, and thereon allege that Mr. Johnny Alfaro is, and at
8 all relevant times was, a resident of Alameda County, California, and is a principal of ACS and
9 ACSP. Mr. Johnny Alfaro also does business as ACS and ACSP. At various times, Mr. Johnny
10 Alfaro represented himself to be business partners with Mr. Luis Alfaro with respect to the matters
11 and business(es) described herein.
12 6. Plaintiffs are informed, believe, and thereon allege that Mr. Luis Alfaro, the son of
13 Mr. Johnny Alfaro, is, and at all relevant times was, a resident of Alameda County, California, and
14 is a principal of ACS and ACSP. Mr. Luis Alfaro also does business as ACS and ACSP. At
15 various times, Mr. Luis Alfaro represented himself to be business partners with Mr. Johnny Alfaro
16 with respect to the matters and business(es) described herein.
17 7. Plaintiffs are informed, believe, and thereon allege that Defendant Pro Connect is a
18 California corporation with its principal place of business in Solano County, California. Upon
19 information and belief, the Alfaro Parties entered into a subcontractor agreement with Pro Connect
20 relating to construction on the Alyousifi Residence.
21 8. The true names and capacities of each and every Doe Defendant sued herein is
22 unknown to Plaintiffs, who therefore sue such Doe Defendants by fictitious names pursuant to Cal.
23 Code Civ. Proc. §474. Plaintiffs will amend this Complaint to allege any and all Doe Defendant
24 true names and capacities when the same are ascertained. Plaintiffs are informed, believe, and
25 -3-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 thereon allege that all Defendants, including each of the fictitiously named Doe Defendants, are
2 responsible in some manner for the occurrences alleged herein, and that Plaintiffs’ damages as
3 alleged herein were proximately caused by each and every of the Doe Defendants’ conduct.
4 9. Plaintiffs are informed, believe, and thereon allege, that all Defendants named
5 herein are liable in some manner, either by act or omission, negligence, negligence per se, res ipsa
6 loquitur, breach of statute, agency, respondeat superior, or otherwise, for the occurrences herein
7 alleged, and that their loss and damages were legally caused by the conduct of Defendants.
8 10. Plaintiffs are informed, believe, and thereon allege that, at all times mentioned
9 herein, at least some of the Defendants have been and are an agent, assignee, servant, employee,
10 partner, joint-venturer, co-conspirator, subsidiary, successor-in-interest, and/or alter ego of some or
11 each and every other Defendant, and in doing or failing to do the conduct alleged, were acting
12 within the course and scope of, on behalf of, for the benefit of, at the direction of, or under the
13 control of such agency relationship, with the knowledge, permission, or consent of the other
14 applicable Defendants.
15 11. Defendants are sued herein individually and as principals and participants in the
16 wrongful conduct complained of and the liability of each arises from the fact that each has engaged
17 in all or part of the improper acts, plans, conspiracies, omissions, or transactions complained of
18 herein. The acts/omissions alleged to have been done by Defendants were authorized, ordered or
19 done by them and their agents or representatives while actively engaged in the management of
20 each of the Defendants’ affairs. Plaintiffs are further informed, believe, and thereon allege, that at
21 least some of the Defendants herein gave consent, aid, and/or assistance to some or each and every
22 other Defendant, and ratified and/or authorized the acts or omissions of some or each and every
23 Defendant as alleged herein, except as may be hereinafter otherwise specifically alleged.
24
25 -4-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 12. Upon information and belief, each of the Defendants knowingly and willingly
2 participated and acted with or in furtherance of said conspiracy, or aided or assisted in carrying out
3 the purposes of the conspiracy, and have performed/failed to perform acts and made statements in
4 furtherance of the conspiracy and other violations of law.
5 13. Plaintiffs are informed, believe, and thereon allege that there exists such a unity of
6 interest and ownership between at least some Defendants that the individuality and separateness of
7 said Defendants ceases to exist. The business affairs of said Defendants at all relevant times were
8 and are so mixed and intermingled that the same cannot reasonably be segregated, and the same are
9 in inextricable confusion. At least some of the entity Defendants were used by individual
10 Defendants as mere shells and conduits for the conduct of certain of their business affairs. All
11 business operations by at least some of the entity Defendants were under the sole and direct control
12 of individual Defendants. The recognition of the separate existence of Defendants would not
13 promote justice in that it would permit individual Defendants to insulate themselves from personal
14 liability to Plaintiffs, and should be disregarded.
15 JURISDICTION AND VENUE
16 14. This Court has jurisdiction over this action pursuant to Cal. Code Civ. Proc.
17 §410.10 et seq. The damage amounts sought to be recovered are in excess of the jurisdictional
18 minimum for this Court. This Court has personal jurisdiction over the Defendants at least because
19 they are residents of and/or do substantial business in the state of California.
20 15. Venue is proper in the Alameda County Superior Court because the acts, omissions,
and occurrences giving rise to the causes of action alleged in the Complaint occurred in Alameda
21
County, the contract(s) and actions at issue were to be performed in Alameda County, the Subject
22
Property is located in Alameda County, several Defendants reside in Alameda County and/or have
23
24
25 -5-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 their principal place of business in Alameda County, Defendants do substantial business in
2 Alameda County, and the majority of the witnesses and evidence are in Alameda County.
3 GENERAL ALLEGATIONS
4 16. Plaintiffs reallege and incorporate by reference, all proceeding paragraphs as though
5 fully set forth herein.
6 17. Plaintiffs bring this complaint against Defendants for: breach of contract; breach of
7 contract – third party beneficiary; breach of the implied covenant of good faith and fair dealing;
8 breach of implied warranty; breach of express warranty; negligence; intentional misrepresentation;
9 negligent misrepresentation; false promise; fraudulent concealment; rescission; common counts –
10 money had and received; intentional interference with prospective economic advantage; negligent
11 interference with prospective economic advantage; intentional interference with contractual
12 relations; conversion; and unfair business practices – violations of Cal. Bus. & Prof. Code §17200
13 et seq., in relation to a home improvement project on the Alyousifi Residence.
14 18. The Alyousifi Residence is a three-story wood-frame structure built on a steep
15 downslope lot. The house has an attached garage, three bedrooms and one and a half bathrooms on
16 the upper two floors and an in-law unit at the lower level.
17 19. Mr. Alyousifi was initially referred to the Alfaro Parties by a colleague, after
18 seeking contractor recommendations for a small project to repair damage to the garage wall of the
19 Alyousifi Residence.
20 20. On or about February 2018, the Alfaro Parties were hired by the Alyousifis, only to
21 repair damage on the garage wall for a total amount of $5,150 inclusive of supplies and labor.
22 However, what started out as a $5,150 contract would turn into an over $420,000 home
23 improvement project based upon the Alfaro Parties’ misrepresentations, false promises, fraudulent
24
25 -6-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 concealment, solicitation, and other unlawful conduct. The project was not completed and was
2 ultimately abandoned after the Alyousifis paid in excess of $420,000.
3 21. While the Alfaro Parties were working on the garage wall, the Alfaro Parties
4 informed the Alyousifis that the stairs and small deck on the north side of the Subject Property
5 required repair. The Alfaro Parties charged an additional $8,000 to work on those areas. At or
6 around that time, Mr. Alyousifi was working on assembling a storage shed in the backyard, as the
7 Alyousifis hoped to and were in the process of attempting to turn the lower-level in-law unit into a
8 rental unit and wanted additional storage space. The Alfaro Parties were aware of the Alyousifis’
9 intent to do so, and offered to construct/build a shed for $3,800, representing that the Alfaro Parties
10 could build one that would last at least 25 years or longer. On or around this time, the Alfaro
11 Parties also stated that the second unit deck needed to be reconstructed, and charged an additional
12 $20,100.
13 22. Prior to any contract(s) with the Alfaro Parties, the Alyousifis had applied for a
14 permit with the City of Oakland for the lower-level in-law unit. Renovation plans were prepared
15 for its creation, renovation of the kitchen, and remodeling of the two existing bathrooms. Plans for
16 the in-law rental unit also included a new wood-framed deck at the rear of the residence. When the
17 Alfaro Parties learned of the Alyousifis’ intent to convert the lower level of the house into a rental
18 unit and had applied for a permit, the Alfaro Parties offered to do a complete rental unit remodel,
19 including labor and materials, for a total amount of $67,350 as set forth in its March 16, 2018,
20 invoice, a copy of which is attached at Exhibit “A.” The scope of the proposed work included the
21 following:
22 a. Demolition: “[r]emove shower wall panes; remove kitchen counters; remove
flooring; remove panel walls; remove ceiling panels, remove plumbing and
23
electrical items that will be in an obstruction for the renovation”;
24
25 -7-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 b. Kitchen: “[r]epair drywall, install new cabinets (design to fit kitchen area), install
new floor, new plumbing connections, install countertop, install kitchen sink,
2
comply with city fire protection and tile 24, designed will be follow per drawings or
3 owners consent”;
4 c. Bathroom: “[i]nstall shower pan, backerboard; moister barrier film; plumbing lines
5 and drains; shower wall panels (cultured marble) finish plumbing trim and shower
door; install toilet stall; re route all plumbing sewer line, water supply and drains;
6 install new bathroom sink; install new light and receptacles (location to be
7 determine after demolition) reconstruction and design per drawings and contractor
would comply with city code and title 24”;
8
9 d. Carpentry: “[i]nstall header beam to closed door opening; reframe bathroom ceiling;
frame new shower walls; reframe door entrance and floor; install new three-doors;
10 replace windows with double pane glass; install new floor; open new door on south
side wall adjacent to chimney; build new concrete landing; install fireproof gypsum
11
board throughout, install soundproof and insulation per drawings”;
12
e. Electrical work: “[i]nstall new electrical panel; wire 6 circuits to comply with city
13
code and title 24; install new 10 new receptacles”; and
14
f. Finish: “paint; seal tile and floor”.
15
Additionally, the Alfaro Parties guaranteed its craftmanship and ensured that “all labor will meet
16
professional industry standards set by the State of California.” The Alfaro Parties also agreed that
17
cleaning and dumping fees were included in the cost.
18
23. On or about March 2018, while the Alfaro Parties were still in the process of
19
performing the initial services, the Alyousifis were informed that the rental unit permit they
20
previously applied for was approved. When the Alfaro Parties learned that the permit was
21
approved, Mr. Johnny Alfaro volunteered to pick up the permit for the Alyousifis, as he claimed he
22
was already going to be in the area. Without prior approval and without the Alyousifis agreeing to
23
Alfaro remodeling the rental unit, the Alfaro Parties listed itself as the contractor for the project.
24
25 -8-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 On top of amounts already paid, the Alfaro Parties required the Alyousifis to pay a $10,000
2 deposit, in violation of California law (including Bus. & Prof. Code §7159), as the deposit
3 exceeded the lower of $1,000 or 10% of the then contract price.
4 24. On or about August 11, 2018, the Alfaro Parties provided the Alyousifis with an
5 invoice (incorrectly dated as August 11, 2017), in the total amount of $104,400, consisting of
6 $67,350 for the second unit remodel, $5,150 for the garage wall repair, $3,800 for the storage shed,
7 and $20,100 for the reconstruction of the second unit deck. A copy is attached hereto at Exhibit
8 “B”.
9 25. When the Alfaro Parties were working on the north side stairs, they claimed to have
10 found some decayed/rotten wood and represented to the Alyousifis that they would need to crack
11 all the stucco for the entire house and have new siding. The Alfaro Parties stated that the total cost
12 with all services including the rental unit would be $286,750 and provided an invoice dated April
13 23, 2018, a copy of which is attached at Exhibit “C”. The scope of the work was stated as follows:
14 a. “[s]tucco repair, dry rot repair, replacing shearing wall, replaced door and installed
window on workshop; reenforce framing, scaffolding erection and monthly fees;”
15
b. “[i]nsulated house throughout;”
16
17 c. “[r]econstruct north staircase;”
18 d. “[e]rected a storage shed installed two windows;”
19 e. “[f]oundation repair and seismic reinforcement, foundation holdback shoes piers on
20 west side, reinforced foundation at second unit kitchen wall, reinforce main
foundation on west side (4 three feet and six inches long and three feet deep footing
21 with 1/2 rebar 6 inches on center) reinforced foundation at new door and poor new
concrete landing on south side per drawings;”
22
f. “[s]econd [u]nit remodel per contract;”
23
24 g. “[r]econstruct and water proof balcony on third floor north side;”
25 -9-
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 h. “[b]uild deck on lower unit per permit;” and
2 i. “repipe all water lines.”
3
26. When the Alyousifis learned that there was dry rot around the windows and their
4
frames were exposed, they decided to replace the windows and doors for the entire house, with the
5
exception of the main door. Prior to ordering the new windows and doors that the Alyousifis
6
selected, the Alfaro Parties informed Mr. Alyousifi that they should not order from their selected
7
vendor, that their selected vendor was not trustworthy, that the Alfaro Parties could and would get
8
a better deal for all the windows and doors replacements, and that the windows and doors should
9
match what the Alfaro Parties already ordered for the rental unit. Based upon those
10
representations, the Alyousifis agreed to have the Alfaro Parties order and replace all windows and
11
doors, with the exception of the main door. However, the Alfaro Parties failed to do so for several
12
windows and doors that were included in the contract(s) price.
13
27. The Alfaro Parties also stated that his crew found dry rot surrounding the fireplace
14
and informed the Alyousifis that they had to either open the fireplace from the inside of the house
15
(which was described as difficult and messy) and would result in losing the aesthetics of the
16
fireplace stones, or remove the chimney with the fireplace intact. In reliance of those
17
representations and believing that those were their only options, the Alyousifis informed the Alfaro
18
Parties that they would rather have the chimney removed. Upon information and belief, the Alfaro
19
Parties did not need to remove the chimney with the fireplace intact, causing a fire hazard.
20
28. On or about October 2018, the Alfaro Parties sent a letter to the Alyousifis, stating
21
that while repairing and replacing the wooden stairs, they discovered “enormous water damage to
22
his house’s frames caused by water penetrations to the walls and some parts of the house
23
foundation,” claiming that to “[t]o avoid a bigger and more extensive damages to this property, this
24
25 - 10 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 needs an immediate attention to save the building from farther deterioration and potential clapsing
2 (sic).” At that point, the Alfaro Parties increased the total price to $350,000. A copy of the letter is
3 attached hereto at Exhibit “D”.
4 29. Prior to entering into the contract(s) and throughout this process, the Alfaro Parties
5 falsely and fraudulently engaged in a series of misrepresentations, false promises, and fraudulent
6 concealment in order to continuously expand the scope of the project and increase the contract(s)
7 price. Not only did the Alfaro Parties represent that several areas of the house required urgent or
8 immediate repairs as stated above (e.g., the stairs and small deck on the north side of the Subject
9 Property, the stucco for the entire house, windows and doors, chimney removal, house frames,
10 foundation, etc.), some of which they claimed were necessary to prevent the house from further
11 deterioration and potential collapsing (especially as the house sits on a steep hill), the Alfaro
12 Parties also made representations, including, but not limited to the following:
13 a. That they were experienced contractors and had the requisite knowledge to perform
each of the tasks on the project. Alfaro even claimed it performed several multi-
14 million-dollar renovation projects and that work on the Alyousifi Residence was
minor compared to their typical project;
15
16 b. That they were qualified, ready, and able to perform all aspects of the project
including but not limited to, performing and ensuring the work was performed
17 correctly and according to building code and professional industry standards, hiring
licensed and competent subcontractors, providing the correct materials and supplies,
18 providing building permits, abiding by project plans and drawings, charging
reasonable rates for the work performed and based on industry standards;
19
20 c. That choosing them “will guarantee you the highest industry standards.” The
Alfaro Parties also stated that its work is in compliance with California building
21 codes which “guarantees you excellent results;”
22 d. That they have a commitment to honesty, integrity, and transparency;
23
e. That they provided a professional service, with unmatched quality, and fair pricing;
24
f. That they are licensed, bonded, and insured;
25 - 11 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1
g. That the in-law rental unit would be completed in 3-4 months, but no later than
2 October 2018, and that the entire project would be completed no later than June
2019;
3
4 h. That they were charging far below industry rates (70% of the average price);
5 i. That the additional work beyond the initial garage wall repairs was necessary and
urgent;
6
j. That the Subject Property would be “like new” after the completion of the project.
7
One or more of the Alfaro Parties stated: “trust me, I am going to make this house
8 brand new” or words to that effect;
9 k. That they would customize the accessory dwelling unit’s kitchen;
10 l. That they would correct/repair all garage floor and driveway cracks;
11
m. That they would open a door from the garage into the house;
12
n. That they would seismically retrofit the building and make it strong enough to
13 withstand the “biggest earthquake;”
14 o. That they would grout the stairs from the driveway all the way down to the main
15 entrance;
16 p. That they would repair and grout the stones on the front patio;
17 q. That they would repipe the entire house with copper pipes;
18 r. That they would fix/construct stairs on both sides of the house;
19
s. That they would install a new set of gutters, their downspouts, and run diverting
20 systems to prevent water from going under the foundation;
21 t. That they would waterproof the two decks and create storage space underneath each
of them;
22
23 u. That they would fix every crack in the foundation no matter the size;
24 v. That they would insulate the whole house including the crawl space, especially
under the main floor;
25 - 12 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 w. That they would install posts in the crawl space under the main floor to support the
whole building; and
2
x. That the shed in the backyard would last for at least 25 years or longer, among other
3
things.
4
30. As a result of the representations, the Alyousifis ended up with project consisting of
5
comprehensive internal and external repairs and renovations, which lasted for nearly two years
6
before the Alfaro Parties and Pro Connect abandoned the project on or about late 2019 after the
7
Alyousifis paid over $420,000. Upon information and belief, each of the representations above
8
were false and misleading.
9
31. The Alfaro Parties also worked with partially written contract(s) akin to proposals
10
labeled as invoices that do not add up to the amounts eventually claimed by them. The documents
11
provided by the Alfaro Parties do not include all items required by law, in violation of Cal. Bus. &
12
Prof. Code §7159. At no time did Defendants provide a contract in compliance with and as
13
required by §7159.
14
32. Upon information and belief, to perform the electrical work on the project as set
15
forth above, the Alfaro Parties subcontracted with Pro Connect. Upon information and belief, the
16
Alfaro Parties subcontracted with Pro Connect and Pro Connect was to provide services on the
17
Alyousifi Residence, initially, at least with respect to some or all of the following, as set forth at
18
Exhibit “E”:
19
a. “(FOR SINGLE METER) To install new 200 Amp Surface mount meter
20 main with distribution, with all new grounding per code; pipe over to a
junction box and redirect all the existing circuits from subpanel to new
21 junction box and pipe over to new service and extend all existing circuits
22 from subpanel to new junction box and pipe over to new service and extend
all existing circuits to junction box to main panel with all new are fault
23 breakers as per code also labeling panel” (estimated price for labor and
materials to be $4,900);”
24
25 - 13 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 b. “(FOR TWO METER PACK) To install new 200 Amp Surface mount meter
main with distribution, with all new grounding per code; pipe over to a
2 junction box and redirect all the existing circuits from subpanel to new
junction box and pipe over to new service and extend all existing circuits to
3
junction box to main panel with all new arc fault breakers as per code also
4 labeling panel” (estimated price for labor and materials to be $5,800);”
5 c. “To eliminate all old wiring in the lower unit, and to safe off any wires that
cannot be eliminated and to be put in a junction box” (estimated price for
6 labor and materials to be $800);” and
7 d. “To wire up the new lower unit per plans and pipe from main service to a new
8 100 Amp subpanel with new sub feeders, also panel to be installed in hallway
as per plans” (estimated price for labor and materials to be $7,500).”
9
33. Upon information and belief, the scope of Pro Connect’s work on the Project was
10
expanded to include at least the following, as set forth in Exhibit “F”:
11
a. “In Entry tie in to outlet to power up New outside GFI with box and bubble
12 cover;”
13
b. “In Front by garage Install new box and GFI with bubble cover;”
14
c. “In Front [illegible] to garage Door on each side Install 2 new lites and box;”
15
d. “Install New Lite on side garage;”
16
e. “Install one New box and 1 New lite For side Door Down below walk way;”
17
and
18
f. “Tie all into Existing circuit somewhere in house close power source.” (sic)
19
34. Checks were made payable to Pro Connect at least in the name of Johnny Alfaro,
20
Alfaro Construction Services, and Alfaro’s Construction Services Partnership, all at the same
21
business address of 1807 62nd Street, Berkeley, CA 94703-2702. Upon information and belief,
22
these checks were signed by both Johnny Alfaro and Luis Alfaro at various times.
23
24
25 - 14 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 35. At one point during the ever-expanding scope of the project, the Alfaro Parties
2 informed the Alyousifis that they were required to obtain a stamped statement of approval from an
3 engineer regarding the waterproofing of the balcony and deck, as per the City of Oakland Building
4 Department. When an engineer from Amana Engineering & Construction, Inc. (“Amana”) came to
5 inspect, he opined that the deck was problematic, and noticed that the Alfaro Parties’ foundation
6 and seismic retrofitting work was not proper. Amana was thereafter hired to prepare some
7 drawings for seismic and foundation crack repairs. The Alfaro Parties agreed to follow Amana’s
8 drawings and instructions, and although the April 23, 2018, invoice in the amount of $286,750
9 included the seismic and foundation repairs and the $350,000 October 2018 also included
10 foundation repairs, the Alfaro Parties stated a new total contract price of $410,000. The scope of
11 services at this point also included painting, exterior light fixtures, installation of a laundry room
12 door, and a concrete pad. After a claimed delay in awaiting Amana’s drawings for a week and
13 even though the Alfaro Parties had not completed other portions of the project, the Alfaro Parties
14 unilaterally increased the contract price by another $7,000, to $417,000, with Mr. Johnny Alfaro
15 stating: “my charges for delay work are 40 hours at $170 per hour = $7000,” and threatened
16 additional charges even though their calculations were already incorrect, resulting in additional
17 overcharges.
18 36. Each time the engineer came to the site to inspect the work, Amana noted several
19 problems with the Alfaro Parties’ work, even after several sight visits. On or about December 14,
20 2018, Amana noted that the work was substantially incomplete, including: (1) the drilled holes in
21 the concrete foundation for the Simpson’s HD5B holdowns were not complete; (2) anchor bolts
22 were missing at the shear walls per approved plans; (3) the shear wall plywood was not installed to
23 check the adequate nailing at the old bay window wall, the perpendicular wall towards the interior
24 stairs, and the shear wall at the interior stairs as required by approved plans; (4) the ceiling floor
25 - 15 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 joists at the basement did not have adequate blocking as required by the building code; and (5) the
2 soil at the basement crawl space was supposed to receive a two inches of concrete cover for
3 protection of the floor framing, but did not. Amana also requested that the nailing pattern for the
4 shear wall plywood be exposed for visual inspection. When the Alfaro Parties learned of Amana’s
5 inspection findings, they threatened that if the engineer did not “correct his report,” that they would
6 hire another engineer to sign off at the Alyousifis’ expense. The Alyousifis insisted that the Alfaro
7 Parties comply with Amana’s plans and instructions.
8 37. On or about February 4, 2019, Amana again raised concerns with the shear wall
9 plywood and crawl space, which had not been corrected, and again requested that the nailing
10 pattern be exposed for future visual inspection. When Amana returned on or about July 15, 2019,
11 the engineer was unable to inspect all areas, as the Alfaro Parties had already covered the walls so
12 that the nailing pattern was hidden, despite the engineer’s repeated requests to leave it exposed for
13 visual inspection purposes. Upon information and belief, the required structural modifications
14 noted on the Amana reports were not properly addressed and were concealed by Alfaro.
15 38. For unknown reasons, the Alfaro Parties later unilaterally increased the total
16 contract price to $420,000 without explanation, and informed Mr. Alyousifi. The Alyousifis made
17 the payments throughout the project totaling at least $421,171.10, as requested by the Alfaro
18 Parties. The Alfaro Parties later claimed the total price to be $430,000 and informed Ms.
19 Alyousifi, without explanation, itemization, or agreement, claiming that Mr. Alyousifi agreed to
20 that price when he did not, which was represented $10,000 lower to Mr. Alyousifi.
21 39. At times, Mr. Johnny Alfaro would send bizarre text messages to Mr. Alyousifi,
22 such as: “I don’t have $$$$$, need a lots $$$$;” and “we will need your help with some $$$$$.”
23 When the Alyousifis requested a breakdown at various times throughout the project, the Alfaro
24 Parties initially promised to provide them, but never did. At times when the Alyousifis requested
25 - 16 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 confirmation of all amounts paid, Alfaro denied receiving all the amounts paid, even though the
2 Alyousifis’ checks had been cashed or deposited, but later acknowledged receipt.
3 40. The only other invoice the Alyousifis received from the Alfaro Parties was an
4 invoice dated April 2, 2019, in the amount of $5,588, listing their workers, rates of pay, and hours
5 purportedly worked, as if the Alyousifis were their direct employers (which they were not) and
6 even thought the breakdowns in prior invoices were inclusive of labor. See Exhibit “G.”
7 Furthermore, the Alfaro Parties again miscalculated the totals, resulting in additional overcharges.
8 41. About halfway into the project, the Alfaro Parties claimed that the Alyousifis
9 needed to sign a contract. While the Alyousifis did not understand why a contract was being asked
10 about a year into the project, they said they would happily sign one if it was appropriate and
11 accurately reflected what was agreed upon. However, while both Mr. Johnny Alfaro and Mr. Luis
12 Alfaro spoke of a written contract in the middle of the project, the Alfaro Parties never presented
13 one to the Alyousifis, but would bring it up from time to time for the remainder of the project.
14 Instead, the Alfaro Parties asked the Alyousifis to text their social security numbers and copies of
15 their identification cards, something they were not comfortable with. Mr. Johnny Alfaro stated, “I
16 need this please otherwise my lawyers fees will apply and my time to go over the contract and
17 payment. That will push $175 per hour my time and $450 for layer (sic).” At various times
18 throughout the project, Mr. Johnny Alfaro represented his hourly rate as $85/hour, $170/hour, and
19 finally $175/hour.
20 42. The more the Alfaro Parties unilaterally increased the contract price, the more the
21 Alyousifis requested a breakdown of the amounts claimed, and the more hostile and threatening the
22 Alfaro Parties became, especially in relation to withdrawing from the project or charging extra.
23 For example, in response to an inquiry regarding a breakdown of costs and money already paid, the
24 Alfaro Parties threatened to charge the Alyousifis for their accounting and attorney’s fees, in
25 - 17 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 addition to extra charges for their delays while providing one. At other times, the Alfaro Parties
2 would threaten to withdraw the permits on the Subject Property or let them expire. Mr. Johnny
3 Alfaro would text the Alyousifis requesting payment at various times, including with statements
4 such as: “to continue I need payment,” “would you guys going to make payment or will hire
5 someone else to finish? As a reminder, we don’t’ have a signed contract,” as if that somehow
6 absolved them of their responsibilities, and even though the Alyousifis made payments when
7 requested and without a payment schedule. Despite the Alfaro Parties’ failure to provide
8 additional promised breakdowns, the Alyousifis continued to pay and cooperate, at least so that
9 their home was not left open and in ruins (e.g., the walls were open, debris were everywhere, not
10 all windows and doors were installed, stucco was incomplete, there would have been substantial
11 further water damage to the Subject Property, etc.), because they had already paid hundreds of
12 thousands of dollars, because the Alfaro Parties warned of their home’s potential further
13 deterioration and collapsing, because of the Alfaro Parties’ continued threats, and because of the
14 continued promises and assurances made by the Alfaro Parties, including that they were near
15 completion.
16 43. The Alyousifis also discovered damage to other pre-existing areas of the Alyousifi
17 Residence, caused by the Alfaro Parties’ defective work, including reconstruction and partial
18 waterproofing of the balcony on the third floor, resulting in water damage and leaks into the dining
19 room area below. This had not been a problem before the Alfaro Parties began working on the
20 Alyousifi Residence and damaged areas beyond the scope of their contract(s). The Alyousifis
21 notified the Alfaro Parties of the leaks, but they took no remedial action.
22 44. For the stucco and new siding, the Alfaro Parties used an unapproved stucco
23 underlayment that the Alfaro Parties covered before inspection and that the City of Oakland
24 declined to approve upon inspection. During the inspection, the inspector asked the Alfaro Parties
25 - 18 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 to either provide documentation showing that the unapproved stucco underlayment used was
2 proper, or to redo it with the use of a proper moisture barrier. Upon information and belief, the
3 Alfaro Parties failed to do either, and as additional cracks emerged in the stucco, placed a moisture
4 barrier on top of the then existing stucco on at least two sides of the building, and informed the
5 Alyousifis that they were “double protected,” without further inspection or approval. This has
6 resulted in unevenness and believed other damages to the existing structure.
7 45. Despite receiving timely payments from the Alyousifis, the Alfaro Parties began
8 withdrawing and/or withholding their crew from working on the project. When the Alyousifis
9 inquired as to why nobody was working, the Alfaro Parties would respond with statements such as:
10 “nobody is working because need $$$ to clear” or “FYI I deposited a check yesterday form (sic)
11 25K and would take 7 business days to be posted on my account.” The Alfaro Parties assured the
12 Alyousifis on or about May 2019 that the project would take another month to complete.
13 However, the Alfaro Parties were not on site regularly to complete the project, and at times, only
14 one person was present, even though the checks had long cleared. On or about late June 2019, the
15 Alfaro Parties claimed to be “almost done” and stated that “payment will be due immediately.”
16 The Alfaro Parties also claimed that there will be unspecified extra charges for the trim on the
17 interior windows due to claimed material cost increases and unspecified “all the delays that were
18 not included on agreement,” which, in reality, were their own fault and actually caused damages to
19 the Alyousifis.
20 46. On or about July 2019, the Alfaro Parties demanded that the Alyousifis pay an
21 additional $20,000, on top of the over $406,000 already paid by that time. As the Alfaro Parties
22 had not yet provided a breakdown of remaining costs, amounts paid to date, or a list of remaining
23 items on the project, the Alyousifis said they would give a check in the amount of $10,000 at that
24 time and would pay the remaining balance of approximately $5,000 once they had that
25 - 19 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 information. When Ms. Alyousifi handed Mr. Johnny Alfaro a check in the amount of $10,000, he
2 threw the check at her, and threatened that the Alfaro Parties would walk out on the project. The
3 Alyousifis then gave the Alfaro Parties a check in the amount of $15,000, believing they had paid
4 over the entire price of $420,000, on a project that was not yet completed. Mr. Johnny Alfaro took
5 the check and left. At that time, the Alfaro Parties claimed to be almost done with the project that
6 was to be completed the month prior.
7 47. On or about late July 2019, Mr. Johnny Alfaro texted Mr. Alyousifi, stating: “I
8 need payment ASAP otherwise I won’t continue and to let you know permit will be expired.” Mr.
9 Alyousifi again asked for a list of remaining items, and wanted confirmation of all payments to
10 date. Mr. Alyousifi stated: “we have to know how much we have paid you to this point and what’s
11 the remaining balance. Once you finish the work, we promise you that: you will get every dollar
12 we owe you without any hassle or delay from us. We really beg you to finish the job. Also, we beg
13 to stop threatening us.” Instead of providing the information requested, Mr. Johnny Alfaro
14 responded: “… I have a business and expense. So you are more than welcome to get a other
15 contractor to finish. I can’t keep losing money. You need to take me serious. As a business
16 practice, a contractor is allowed to charge delays that will force work to continue… Well, I don’t
17 have a sign contract. I can not even do change orders because we don’t have a contract I ask you to
18 pay the balance an to sit with you to discuss the extra work that need to be done to get final… So if
19 you want us to finish I need a balance payment signed a contract for the extra work and the extra
20 cost will be due when final get approve by city building inspector.” However, once again, no
21 contract was presented to the Alyousifis.
22 48. When the Alyousifis and the Alfaro Parties arranged to meet to discuss these
23 issues, Mr. Johnny Alfaro warned in advance, “[j]ust be prepared I’m not on my best but to let you
24 know I won’t be easy.” They met on or about late July 2019, to discuss the status of the project,
25 - 20 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 amounts paid, and remaining items. During the meeting, the Alfaro Parties demanded more money
2 immediately, even though the Alfaro Parties’ crew had not been regularly on site and that the
3 Alyousifis had made a payment in the amount of $15,000 about a week prior. The Alfaro Parties
4 again claimed to be almost finished on the project and claimed that the Alyousifis were getting a
5 great deal. The Alyousifis promised to pay any remaining balance, if any, when the project was
6 completed and after receiving an itemized statement of remaining amounts owed, as they believed
7 to have already paid over the entire contract price of $420,000. On or about that time, the Alfaro
8 Parties also stated that all items the Alfaro Parties promised to complete that were not in writing
9 would no longer be completed.
10 49. On or about late July 2019, Mr. Johnny Alfaro texted Mr. Alyousifi, stating: “After
11 our conversation yesterday, I will be sending an invoice and will deduct the unfinished items Yet
12 the balance also will reflect a charge for the electrician extra work Balance will be due with in
13 fifteen days from the invoice is issue.” However, the Alfaro Parties never sent the invoice, upon
14 information and belief, because the Alfaro Parties knew the Alyousifis would be entitled to a
15 substantial refund.
16 50. On or about late July 2019, Mr. Johnny Alfaro sent another text, stating: “What we
17 need is $20000 payment to finish and the remaining balance when final inspection,” which would
18 seemingly increase the contract price in their view to over $440,000, plus whatever amount the
19 Alfaro Parties would claim on final inspection, despite their refusal to complete areas they
20 promised to fix that they claimed were not in writing.
21 51. On or about late August 2019, Mr. Johnny Alfaro texted Mr. Alyousifi, falsely
22 stating: “… I drove by to check on site. It is clear to me work was done by someone else than
23 Alfaro’s Construction crewmen. For the reason, and not hearing any news from payments or
24
25 - 21 -
FIRST AMENDED COMPLAINT FOR DAMAGES
26
27
28
1 signing a cont
Preview
1 Aliah A. Abdo, Esq. [SBN 260341] THE ABDO LAW FIRM 2 1580 Aldrich Way San Jose, CA 95121 3 Telephone: (408) 439-4671 4 Facsimile: (408) 904-6263 Email: aliah@abdolawgroup.com 5 6 Attorneys for Plaintiffs, AHMED ALYOUSIFI and FATIMA ALYOUSIFI. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF ALAMEDA 9 10 UNLIMITED JURISDICTION 11 12 AHMED ALYOUSIFI, an individual, Case. No.: RG21104938 FATIMA ALYOUSIFI, an individual, 13 FIRST AMENDED COMPLAINT FOR DAMAGES Plaintiffs, FOR: 14 15 v. 1. BREACH OF CONTRACT; 2. BREACH OF CONTRACT – THIRD PARTY 16 ALFARO’S CONSTRUCTION BENEFICIARY; SERVICES, an unknown entity, for 3. BREACH OF THE IMPLIED COVENANT OF 17 GOOD FAITH AND FAIR DEALING; itself and dba ALFARO 4. BREACH OF IMPLIED WARRANTY; 18 CONSTRUCTION SERVICES 5. BREACH OF EXPRESS WARRANTY; PARTNERSHIP; ALFARO 19 CONSTRUCTION SERVICES 6. NEGLIGENCE; PARTNERSHIP, an unknown entity, for 7. INTENTIONAL MISREPRESENTATION; 20 itself and dba ALFARO’S 8. NEGLIGENT MISREPRESENTATION; CONSTRUCTION SERVICES; 9. FALSE PROMISE; 21 10. FRAUDULENT CONCEALMENT; JOHNNY ALFARO, 11. RESCISSION; 22 individually and dba ALFARO’S 12. COMMON COUNTS – MONEY HAD AND CONSTRUCTION SERVICES and 23 ALFARO CONSTRUCTION RECEIVED; SERVICES PARTNERSHIP; LUIS 13. INTENTIONAL INTERFERENCE WITH 24 ALFARO, individually and dba PROSPECTIVE ECONOMIC ADVANTAGE; 25 -1- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 ALFARO’S CONSTRUCTION 14. NEGLIGENT INTERFERENCE WITH SERVICES and ALFARO PROSPECTIVE ECONOMIC ADVANTAGE; 2 CONSTRUCTION SERVICES 15. INTENTIONAL INTERFERENCE WITH PARTNERSHIP; PRO CONNECT CONTRACTUAL RELATIONS; 3 ELECTRICAL, INC., a California 16. CONVERSION; AND 4 Corporation, and DOES 1-50, inclusive, 17. UNFAIR BUSINESS PRACTICES – Violations of Cal. Bus. & Prof. Code §17200 et seq. 5 Defendants. 6 7 Plaintiffs, Mr. AHMED ALYOUSIFI and Ms. FATIMA ALYOUSIFI (collectively 8 “Plaintiffs” or the “Alyousifis”), hereby submit their First Amended Complaint against ALFARO’S 9 CONSTRUCTION SERVICES (“ACS”) for itself and dba ALFARO CONSTRUCTION 10 SERVICES PARTNERSHIP (“ACSP”), ACSP for itself and also dba ACS, Mr. JOHNNY 11 ALFARO, individually and dba ACS and ACSP, Mr. LUIS ALFARO, individually and dba ACS 12 and ACSP (collectively with ACS, ACSP, Mr. Johnny Alfaro, Mr. Luis Alfaro, and DOES 1-50, the 13 “Alfaro Parties”), PRO CONNECT ELECTRICAL, INC. (collectively with DOES 1-50, “Pro 14 Connect”), and DOES 1-50, inclusive (collectively with the Alfaro Parties and Pro Connect, 15 “Defendants”), as follows: 16 THE PARTIES 17 1. At all relevant times, Plaintiff, Mr. Ahmed Alyousifi, was and currently is, a 18 resident of Alameda County, Oakland, California. 19 2. At all relevant times, Plaintiff, Ms. Fatima Alyousifi, was and currently is, a 20 resident of Alameda County, Oakland, California. The Alyousifis are the owners of their residence 21 located at 5847 Chelton Drive, Oakland, CA 94611 (“Subject Property” or “Alyousifi Residence”). 22 3. Plaintiffs are informed, believe, and thereon allege that Defendant ACS is an 23 unknown entity, with its principal place of business in Alameda County, California. Upon 24 25 -2- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 information and belief, ACS is at times referred to as ACSP, Mr. Johnny Alfaro, and/or Mr. Luis 2 Alfaro, and does business as ACSP. 3 4. Plaintiffs are informed, believe, and thereon allege that Defendant ACSP is an 4 unknown entity, with its principal place of business in Alameda County, California. Upon 5 information and belief, ACSP is at times referred to as ACS, Mr. Johnny Alfaro, and/or Mr. Luis 6 Alfaro, and does business as ACS. 7 5. Plaintiffs are informed, believe, and thereon allege that Mr. Johnny Alfaro is, and at 8 all relevant times was, a resident of Alameda County, California, and is a principal of ACS and 9 ACSP. Mr. Johnny Alfaro also does business as ACS and ACSP. At various times, Mr. Johnny 10 Alfaro represented himself to be business partners with Mr. Luis Alfaro with respect to the matters 11 and business(es) described herein. 12 6. Plaintiffs are informed, believe, and thereon allege that Mr. Luis Alfaro, the son of 13 Mr. Johnny Alfaro, is, and at all relevant times was, a resident of Alameda County, California, and 14 is a principal of ACS and ACSP. Mr. Luis Alfaro also does business as ACS and ACSP. At 15 various times, Mr. Luis Alfaro represented himself to be business partners with Mr. Johnny Alfaro 16 with respect to the matters and business(es) described herein. 17 7. Plaintiffs are informed, believe, and thereon allege that Defendant Pro Connect is a 18 California corporation with its principal place of business in Solano County, California. Upon 19 information and belief, the Alfaro Parties entered into a subcontractor agreement with Pro Connect 20 relating to construction on the Alyousifi Residence. 21 8. The true names and capacities of each and every Doe Defendant sued herein is 22 unknown to Plaintiffs, who therefore sue such Doe Defendants by fictitious names pursuant to Cal. 23 Code Civ. Proc. §474. Plaintiffs will amend this Complaint to allege any and all Doe Defendant 24 true names and capacities when the same are ascertained. Plaintiffs are informed, believe, and 25 -3- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 thereon allege that all Defendants, including each of the fictitiously named Doe Defendants, are 2 responsible in some manner for the occurrences alleged herein, and that Plaintiffs’ damages as 3 alleged herein were proximately caused by each and every of the Doe Defendants’ conduct. 4 9. Plaintiffs are informed, believe, and thereon allege, that all Defendants named 5 herein are liable in some manner, either by act or omission, negligence, negligence per se, res ipsa 6 loquitur, breach of statute, agency, respondeat superior, or otherwise, for the occurrences herein 7 alleged, and that their loss and damages were legally caused by the conduct of Defendants. 8 10. Plaintiffs are informed, believe, and thereon allege that, at all times mentioned 9 herein, at least some of the Defendants have been and are an agent, assignee, servant, employee, 10 partner, joint-venturer, co-conspirator, subsidiary, successor-in-interest, and/or alter ego of some or 11 each and every other Defendant, and in doing or failing to do the conduct alleged, were acting 12 within the course and scope of, on behalf of, for the benefit of, at the direction of, or under the 13 control of such agency relationship, with the knowledge, permission, or consent of the other 14 applicable Defendants. 15 11. Defendants are sued herein individually and as principals and participants in the 16 wrongful conduct complained of and the liability of each arises from the fact that each has engaged 17 in all or part of the improper acts, plans, conspiracies, omissions, or transactions complained of 18 herein. The acts/omissions alleged to have been done by Defendants were authorized, ordered or 19 done by them and their agents or representatives while actively engaged in the management of 20 each of the Defendants’ affairs. Plaintiffs are further informed, believe, and thereon allege, that at 21 least some of the Defendants herein gave consent, aid, and/or assistance to some or each and every 22 other Defendant, and ratified and/or authorized the acts or omissions of some or each and every 23 Defendant as alleged herein, except as may be hereinafter otherwise specifically alleged. 24 25 -4- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 12. Upon information and belief, each of the Defendants knowingly and willingly 2 participated and acted with or in furtherance of said conspiracy, or aided or assisted in carrying out 3 the purposes of the conspiracy, and have performed/failed to perform acts and made statements in 4 furtherance of the conspiracy and other violations of law. 5 13. Plaintiffs are informed, believe, and thereon allege that there exists such a unity of 6 interest and ownership between at least some Defendants that the individuality and separateness of 7 said Defendants ceases to exist. The business affairs of said Defendants at all relevant times were 8 and are so mixed and intermingled that the same cannot reasonably be segregated, and the same are 9 in inextricable confusion. At least some of the entity Defendants were used by individual 10 Defendants as mere shells and conduits for the conduct of certain of their business affairs. All 11 business operations by at least some of the entity Defendants were under the sole and direct control 12 of individual Defendants. The recognition of the separate existence of Defendants would not 13 promote justice in that it would permit individual Defendants to insulate themselves from personal 14 liability to Plaintiffs, and should be disregarded. 15 JURISDICTION AND VENUE 16 14. This Court has jurisdiction over this action pursuant to Cal. Code Civ. Proc. 17 §410.10 et seq. The damage amounts sought to be recovered are in excess of the jurisdictional 18 minimum for this Court. This Court has personal jurisdiction over the Defendants at least because 19 they are residents of and/or do substantial business in the state of California. 20 15. Venue is proper in the Alameda County Superior Court because the acts, omissions, and occurrences giving rise to the causes of action alleged in the Complaint occurred in Alameda 21 County, the contract(s) and actions at issue were to be performed in Alameda County, the Subject 22 Property is located in Alameda County, several Defendants reside in Alameda County and/or have 23 24 25 -5- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 their principal place of business in Alameda County, Defendants do substantial business in 2 Alameda County, and the majority of the witnesses and evidence are in Alameda County. 3 GENERAL ALLEGATIONS 4 16. Plaintiffs reallege and incorporate by reference, all proceeding paragraphs as though 5 fully set forth herein. 6 17. Plaintiffs bring this complaint against Defendants for: breach of contract; breach of 7 contract – third party beneficiary; breach of the implied covenant of good faith and fair dealing; 8 breach of implied warranty; breach of express warranty; negligence; intentional misrepresentation; 9 negligent misrepresentation; false promise; fraudulent concealment; rescission; common counts – 10 money had and received; intentional interference with prospective economic advantage; negligent 11 interference with prospective economic advantage; intentional interference with contractual 12 relations; conversion; and unfair business practices – violations of Cal. Bus. & Prof. Code §17200 13 et seq., in relation to a home improvement project on the Alyousifi Residence. 14 18. The Alyousifi Residence is a three-story wood-frame structure built on a steep 15 downslope lot. The house has an attached garage, three bedrooms and one and a half bathrooms on 16 the upper two floors and an in-law unit at the lower level. 17 19. Mr. Alyousifi was initially referred to the Alfaro Parties by a colleague, after 18 seeking contractor recommendations for a small project to repair damage to the garage wall of the 19 Alyousifi Residence. 20 20. On or about February 2018, the Alfaro Parties were hired by the Alyousifis, only to 21 repair damage on the garage wall for a total amount of $5,150 inclusive of supplies and labor. 22 However, what started out as a $5,150 contract would turn into an over $420,000 home 23 improvement project based upon the Alfaro Parties’ misrepresentations, false promises, fraudulent 24 25 -6- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 concealment, solicitation, and other unlawful conduct. The project was not completed and was 2 ultimately abandoned after the Alyousifis paid in excess of $420,000. 3 21. While the Alfaro Parties were working on the garage wall, the Alfaro Parties 4 informed the Alyousifis that the stairs and small deck on the north side of the Subject Property 5 required repair. The Alfaro Parties charged an additional $8,000 to work on those areas. At or 6 around that time, Mr. Alyousifi was working on assembling a storage shed in the backyard, as the 7 Alyousifis hoped to and were in the process of attempting to turn the lower-level in-law unit into a 8 rental unit and wanted additional storage space. The Alfaro Parties were aware of the Alyousifis’ 9 intent to do so, and offered to construct/build a shed for $3,800, representing that the Alfaro Parties 10 could build one that would last at least 25 years or longer. On or around this time, the Alfaro 11 Parties also stated that the second unit deck needed to be reconstructed, and charged an additional 12 $20,100. 13 22. Prior to any contract(s) with the Alfaro Parties, the Alyousifis had applied for a 14 permit with the City of Oakland for the lower-level in-law unit. Renovation plans were prepared 15 for its creation, renovation of the kitchen, and remodeling of the two existing bathrooms. Plans for 16 the in-law rental unit also included a new wood-framed deck at the rear of the residence. When the 17 Alfaro Parties learned of the Alyousifis’ intent to convert the lower level of the house into a rental 18 unit and had applied for a permit, the Alfaro Parties offered to do a complete rental unit remodel, 19 including labor and materials, for a total amount of $67,350 as set forth in its March 16, 2018, 20 invoice, a copy of which is attached at Exhibit “A.” The scope of the proposed work included the 21 following: 22 a. Demolition: “[r]emove shower wall panes; remove kitchen counters; remove flooring; remove panel walls; remove ceiling panels, remove plumbing and 23 electrical items that will be in an obstruction for the renovation”; 24 25 -7- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 b. Kitchen: “[r]epair drywall, install new cabinets (design to fit kitchen area), install new floor, new plumbing connections, install countertop, install kitchen sink, 2 comply with city fire protection and tile 24, designed will be follow per drawings or 3 owners consent”; 4 c. Bathroom: “[i]nstall shower pan, backerboard; moister barrier film; plumbing lines 5 and drains; shower wall panels (cultured marble) finish plumbing trim and shower door; install toilet stall; re route all plumbing sewer line, water supply and drains; 6 install new bathroom sink; install new light and receptacles (location to be 7 determine after demolition) reconstruction and design per drawings and contractor would comply with city code and title 24”; 8 9 d. Carpentry: “[i]nstall header beam to closed door opening; reframe bathroom ceiling; frame new shower walls; reframe door entrance and floor; install new three-doors; 10 replace windows with double pane glass; install new floor; open new door on south side wall adjacent to chimney; build new concrete landing; install fireproof gypsum 11 board throughout, install soundproof and insulation per drawings”; 12 e. Electrical work: “[i]nstall new electrical panel; wire 6 circuits to comply with city 13 code and title 24; install new 10 new receptacles”; and 14 f. Finish: “paint; seal tile and floor”. 15 Additionally, the Alfaro Parties guaranteed its craftmanship and ensured that “all labor will meet 16 professional industry standards set by the State of California.” The Alfaro Parties also agreed that 17 cleaning and dumping fees were included in the cost. 18 23. On or about March 2018, while the Alfaro Parties were still in the process of 19 performing the initial services, the Alyousifis were informed that the rental unit permit they 20 previously applied for was approved. When the Alfaro Parties learned that the permit was 21 approved, Mr. Johnny Alfaro volunteered to pick up the permit for the Alyousifis, as he claimed he 22 was already going to be in the area. Without prior approval and without the Alyousifis agreeing to 23 Alfaro remodeling the rental unit, the Alfaro Parties listed itself as the contractor for the project. 24 25 -8- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 On top of amounts already paid, the Alfaro Parties required the Alyousifis to pay a $10,000 2 deposit, in violation of California law (including Bus. & Prof. Code §7159), as the deposit 3 exceeded the lower of $1,000 or 10% of the then contract price. 4 24. On or about August 11, 2018, the Alfaro Parties provided the Alyousifis with an 5 invoice (incorrectly dated as August 11, 2017), in the total amount of $104,400, consisting of 6 $67,350 for the second unit remodel, $5,150 for the garage wall repair, $3,800 for the storage shed, 7 and $20,100 for the reconstruction of the second unit deck. A copy is attached hereto at Exhibit 8 “B”. 9 25. When the Alfaro Parties were working on the north side stairs, they claimed to have 10 found some decayed/rotten wood and represented to the Alyousifis that they would need to crack 11 all the stucco for the entire house and have new siding. The Alfaro Parties stated that the total cost 12 with all services including the rental unit would be $286,750 and provided an invoice dated April 13 23, 2018, a copy of which is attached at Exhibit “C”. The scope of the work was stated as follows: 14 a. “[s]tucco repair, dry rot repair, replacing shearing wall, replaced door and installed window on workshop; reenforce framing, scaffolding erection and monthly fees;” 15 b. “[i]nsulated house throughout;” 16 17 c. “[r]econstruct north staircase;” 18 d. “[e]rected a storage shed installed two windows;” 19 e. “[f]oundation repair and seismic reinforcement, foundation holdback shoes piers on 20 west side, reinforced foundation at second unit kitchen wall, reinforce main foundation on west side (4 three feet and six inches long and three feet deep footing 21 with 1/2 rebar 6 inches on center) reinforced foundation at new door and poor new concrete landing on south side per drawings;” 22 f. “[s]econd [u]nit remodel per contract;” 23 24 g. “[r]econstruct and water proof balcony on third floor north side;” 25 -9- FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 h. “[b]uild deck on lower unit per permit;” and 2 i. “repipe all water lines.” 3 26. When the Alyousifis learned that there was dry rot around the windows and their 4 frames were exposed, they decided to replace the windows and doors for the entire house, with the 5 exception of the main door. Prior to ordering the new windows and doors that the Alyousifis 6 selected, the Alfaro Parties informed Mr. Alyousifi that they should not order from their selected 7 vendor, that their selected vendor was not trustworthy, that the Alfaro Parties could and would get 8 a better deal for all the windows and doors replacements, and that the windows and doors should 9 match what the Alfaro Parties already ordered for the rental unit. Based upon those 10 representations, the Alyousifis agreed to have the Alfaro Parties order and replace all windows and 11 doors, with the exception of the main door. However, the Alfaro Parties failed to do so for several 12 windows and doors that were included in the contract(s) price. 13 27. The Alfaro Parties also stated that his crew found dry rot surrounding the fireplace 14 and informed the Alyousifis that they had to either open the fireplace from the inside of the house 15 (which was described as difficult and messy) and would result in losing the aesthetics of the 16 fireplace stones, or remove the chimney with the fireplace intact. In reliance of those 17 representations and believing that those were their only options, the Alyousifis informed the Alfaro 18 Parties that they would rather have the chimney removed. Upon information and belief, the Alfaro 19 Parties did not need to remove the chimney with the fireplace intact, causing a fire hazard. 20 28. On or about October 2018, the Alfaro Parties sent a letter to the Alyousifis, stating 21 that while repairing and replacing the wooden stairs, they discovered “enormous water damage to 22 his house’s frames caused by water penetrations to the walls and some parts of the house 23 foundation,” claiming that to “[t]o avoid a bigger and more extensive damages to this property, this 24 25 - 10 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 needs an immediate attention to save the building from farther deterioration and potential clapsing 2 (sic).” At that point, the Alfaro Parties increased the total price to $350,000. A copy of the letter is 3 attached hereto at Exhibit “D”. 4 29. Prior to entering into the contract(s) and throughout this process, the Alfaro Parties 5 falsely and fraudulently engaged in a series of misrepresentations, false promises, and fraudulent 6 concealment in order to continuously expand the scope of the project and increase the contract(s) 7 price. Not only did the Alfaro Parties represent that several areas of the house required urgent or 8 immediate repairs as stated above (e.g., the stairs and small deck on the north side of the Subject 9 Property, the stucco for the entire house, windows and doors, chimney removal, house frames, 10 foundation, etc.), some of which they claimed were necessary to prevent the house from further 11 deterioration and potential collapsing (especially as the house sits on a steep hill), the Alfaro 12 Parties also made representations, including, but not limited to the following: 13 a. That they were experienced contractors and had the requisite knowledge to perform each of the tasks on the project. Alfaro even claimed it performed several multi- 14 million-dollar renovation projects and that work on the Alyousifi Residence was minor compared to their typical project; 15 16 b. That they were qualified, ready, and able to perform all aspects of the project including but not limited to, performing and ensuring the work was performed 17 correctly and according to building code and professional industry standards, hiring licensed and competent subcontractors, providing the correct materials and supplies, 18 providing building permits, abiding by project plans and drawings, charging reasonable rates for the work performed and based on industry standards; 19 20 c. That choosing them “will guarantee you the highest industry standards.” The Alfaro Parties also stated that its work is in compliance with California building 21 codes which “guarantees you excellent results;” 22 d. That they have a commitment to honesty, integrity, and transparency; 23 e. That they provided a professional service, with unmatched quality, and fair pricing; 24 f. That they are licensed, bonded, and insured; 25 - 11 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 g. That the in-law rental unit would be completed in 3-4 months, but no later than 2 October 2018, and that the entire project would be completed no later than June 2019; 3 4 h. That they were charging far below industry rates (70% of the average price); 5 i. That the additional work beyond the initial garage wall repairs was necessary and urgent; 6 j. That the Subject Property would be “like new” after the completion of the project. 7 One or more of the Alfaro Parties stated: “trust me, I am going to make this house 8 brand new” or words to that effect; 9 k. That they would customize the accessory dwelling unit’s kitchen; 10 l. That they would correct/repair all garage floor and driveway cracks; 11 m. That they would open a door from the garage into the house; 12 n. That they would seismically retrofit the building and make it strong enough to 13 withstand the “biggest earthquake;” 14 o. That they would grout the stairs from the driveway all the way down to the main 15 entrance; 16 p. That they would repair and grout the stones on the front patio; 17 q. That they would repipe the entire house with copper pipes; 18 r. That they would fix/construct stairs on both sides of the house; 19 s. That they would install a new set of gutters, their downspouts, and run diverting 20 systems to prevent water from going under the foundation; 21 t. That they would waterproof the two decks and create storage space underneath each of them; 22 23 u. That they would fix every crack in the foundation no matter the size; 24 v. That they would insulate the whole house including the crawl space, especially under the main floor; 25 - 12 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 w. That they would install posts in the crawl space under the main floor to support the whole building; and 2 x. That the shed in the backyard would last for at least 25 years or longer, among other 3 things. 4 30. As a result of the representations, the Alyousifis ended up with project consisting of 5 comprehensive internal and external repairs and renovations, which lasted for nearly two years 6 before the Alfaro Parties and Pro Connect abandoned the project on or about late 2019 after the 7 Alyousifis paid over $420,000. Upon information and belief, each of the representations above 8 were false and misleading. 9 31. The Alfaro Parties also worked with partially written contract(s) akin to proposals 10 labeled as invoices that do not add up to the amounts eventually claimed by them. The documents 11 provided by the Alfaro Parties do not include all items required by law, in violation of Cal. Bus. & 12 Prof. Code §7159. At no time did Defendants provide a contract in compliance with and as 13 required by §7159. 14 32. Upon information and belief, to perform the electrical work on the project as set 15 forth above, the Alfaro Parties subcontracted with Pro Connect. Upon information and belief, the 16 Alfaro Parties subcontracted with Pro Connect and Pro Connect was to provide services on the 17 Alyousifi Residence, initially, at least with respect to some or all of the following, as set forth at 18 Exhibit “E”: 19 a. “(FOR SINGLE METER) To install new 200 Amp Surface mount meter 20 main with distribution, with all new grounding per code; pipe over to a junction box and redirect all the existing circuits from subpanel to new 21 junction box and pipe over to new service and extend all existing circuits 22 from subpanel to new junction box and pipe over to new service and extend all existing circuits to junction box to main panel with all new are fault 23 breakers as per code also labeling panel” (estimated price for labor and materials to be $4,900);” 24 25 - 13 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 b. “(FOR TWO METER PACK) To install new 200 Amp Surface mount meter main with distribution, with all new grounding per code; pipe over to a 2 junction box and redirect all the existing circuits from subpanel to new junction box and pipe over to new service and extend all existing circuits to 3 junction box to main panel with all new arc fault breakers as per code also 4 labeling panel” (estimated price for labor and materials to be $5,800);” 5 c. “To eliminate all old wiring in the lower unit, and to safe off any wires that cannot be eliminated and to be put in a junction box” (estimated price for 6 labor and materials to be $800);” and 7 d. “To wire up the new lower unit per plans and pipe from main service to a new 8 100 Amp subpanel with new sub feeders, also panel to be installed in hallway as per plans” (estimated price for labor and materials to be $7,500).” 9 33. Upon information and belief, the scope of Pro Connect’s work on the Project was 10 expanded to include at least the following, as set forth in Exhibit “F”: 11 a. “In Entry tie in to outlet to power up New outside GFI with box and bubble 12 cover;” 13 b. “In Front by garage Install new box and GFI with bubble cover;” 14 c. “In Front [illegible] to garage Door on each side Install 2 new lites and box;” 15 d. “Install New Lite on side garage;” 16 e. “Install one New box and 1 New lite For side Door Down below walk way;” 17 and 18 f. “Tie all into Existing circuit somewhere in house close power source.” (sic) 19 34. Checks were made payable to Pro Connect at least in the name of Johnny Alfaro, 20 Alfaro Construction Services, and Alfaro’s Construction Services Partnership, all at the same 21 business address of 1807 62nd Street, Berkeley, CA 94703-2702. Upon information and belief, 22 these checks were signed by both Johnny Alfaro and Luis Alfaro at various times. 23 24 25 - 14 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 35. At one point during the ever-expanding scope of the project, the Alfaro Parties 2 informed the Alyousifis that they were required to obtain a stamped statement of approval from an 3 engineer regarding the waterproofing of the balcony and deck, as per the City of Oakland Building 4 Department. When an engineer from Amana Engineering & Construction, Inc. (“Amana”) came to 5 inspect, he opined that the deck was problematic, and noticed that the Alfaro Parties’ foundation 6 and seismic retrofitting work was not proper. Amana was thereafter hired to prepare some 7 drawings for seismic and foundation crack repairs. The Alfaro Parties agreed to follow Amana’s 8 drawings and instructions, and although the April 23, 2018, invoice in the amount of $286,750 9 included the seismic and foundation repairs and the $350,000 October 2018 also included 10 foundation repairs, the Alfaro Parties stated a new total contract price of $410,000. The scope of 11 services at this point also included painting, exterior light fixtures, installation of a laundry room 12 door, and a concrete pad. After a claimed delay in awaiting Amana’s drawings for a week and 13 even though the Alfaro Parties had not completed other portions of the project, the Alfaro Parties 14 unilaterally increased the contract price by another $7,000, to $417,000, with Mr. Johnny Alfaro 15 stating: “my charges for delay work are 40 hours at $170 per hour = $7000,” and threatened 16 additional charges even though their calculations were already incorrect, resulting in additional 17 overcharges. 18 36. Each time the engineer came to the site to inspect the work, Amana noted several 19 problems with the Alfaro Parties’ work, even after several sight visits. On or about December 14, 20 2018, Amana noted that the work was substantially incomplete, including: (1) the drilled holes in 21 the concrete foundation for the Simpson’s HD5B holdowns were not complete; (2) anchor bolts 22 were missing at the shear walls per approved plans; (3) the shear wall plywood was not installed to 23 check the adequate nailing at the old bay window wall, the perpendicular wall towards the interior 24 stairs, and the shear wall at the interior stairs as required by approved plans; (4) the ceiling floor 25 - 15 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 joists at the basement did not have adequate blocking as required by the building code; and (5) the 2 soil at the basement crawl space was supposed to receive a two inches of concrete cover for 3 protection of the floor framing, but did not. Amana also requested that the nailing pattern for the 4 shear wall plywood be exposed for visual inspection. When the Alfaro Parties learned of Amana’s 5 inspection findings, they threatened that if the engineer did not “correct his report,” that they would 6 hire another engineer to sign off at the Alyousifis’ expense. The Alyousifis insisted that the Alfaro 7 Parties comply with Amana’s plans and instructions. 8 37. On or about February 4, 2019, Amana again raised concerns with the shear wall 9 plywood and crawl space, which had not been corrected, and again requested that the nailing 10 pattern be exposed for future visual inspection. When Amana returned on or about July 15, 2019, 11 the engineer was unable to inspect all areas, as the Alfaro Parties had already covered the walls so 12 that the nailing pattern was hidden, despite the engineer’s repeated requests to leave it exposed for 13 visual inspection purposes. Upon information and belief, the required structural modifications 14 noted on the Amana reports were not properly addressed and were concealed by Alfaro. 15 38. For unknown reasons, the Alfaro Parties later unilaterally increased the total 16 contract price to $420,000 without explanation, and informed Mr. Alyousifi. The Alyousifis made 17 the payments throughout the project totaling at least $421,171.10, as requested by the Alfaro 18 Parties. The Alfaro Parties later claimed the total price to be $430,000 and informed Ms. 19 Alyousifi, without explanation, itemization, or agreement, claiming that Mr. Alyousifi agreed to 20 that price when he did not, which was represented $10,000 lower to Mr. Alyousifi. 21 39. At times, Mr. Johnny Alfaro would send bizarre text messages to Mr. Alyousifi, 22 such as: “I don’t have $$$$$, need a lots $$$$;” and “we will need your help with some $$$$$.” 23 When the Alyousifis requested a breakdown at various times throughout the project, the Alfaro 24 Parties initially promised to provide them, but never did. At times when the Alyousifis requested 25 - 16 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 confirmation of all amounts paid, Alfaro denied receiving all the amounts paid, even though the 2 Alyousifis’ checks had been cashed or deposited, but later acknowledged receipt. 3 40. The only other invoice the Alyousifis received from the Alfaro Parties was an 4 invoice dated April 2, 2019, in the amount of $5,588, listing their workers, rates of pay, and hours 5 purportedly worked, as if the Alyousifis were their direct employers (which they were not) and 6 even thought the breakdowns in prior invoices were inclusive of labor. See Exhibit “G.” 7 Furthermore, the Alfaro Parties again miscalculated the totals, resulting in additional overcharges. 8 41. About halfway into the project, the Alfaro Parties claimed that the Alyousifis 9 needed to sign a contract. While the Alyousifis did not understand why a contract was being asked 10 about a year into the project, they said they would happily sign one if it was appropriate and 11 accurately reflected what was agreed upon. However, while both Mr. Johnny Alfaro and Mr. Luis 12 Alfaro spoke of a written contract in the middle of the project, the Alfaro Parties never presented 13 one to the Alyousifis, but would bring it up from time to time for the remainder of the project. 14 Instead, the Alfaro Parties asked the Alyousifis to text their social security numbers and copies of 15 their identification cards, something they were not comfortable with. Mr. Johnny Alfaro stated, “I 16 need this please otherwise my lawyers fees will apply and my time to go over the contract and 17 payment. That will push $175 per hour my time and $450 for layer (sic).” At various times 18 throughout the project, Mr. Johnny Alfaro represented his hourly rate as $85/hour, $170/hour, and 19 finally $175/hour. 20 42. The more the Alfaro Parties unilaterally increased the contract price, the more the 21 Alyousifis requested a breakdown of the amounts claimed, and the more hostile and threatening the 22 Alfaro Parties became, especially in relation to withdrawing from the project or charging extra. 23 For example, in response to an inquiry regarding a breakdown of costs and money already paid, the 24 Alfaro Parties threatened to charge the Alyousifis for their accounting and attorney’s fees, in 25 - 17 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 addition to extra charges for their delays while providing one. At other times, the Alfaro Parties 2 would threaten to withdraw the permits on the Subject Property or let them expire. Mr. Johnny 3 Alfaro would text the Alyousifis requesting payment at various times, including with statements 4 such as: “to continue I need payment,” “would you guys going to make payment or will hire 5 someone else to finish? As a reminder, we don’t’ have a signed contract,” as if that somehow 6 absolved them of their responsibilities, and even though the Alyousifis made payments when 7 requested and without a payment schedule. Despite the Alfaro Parties’ failure to provide 8 additional promised breakdowns, the Alyousifis continued to pay and cooperate, at least so that 9 their home was not left open and in ruins (e.g., the walls were open, debris were everywhere, not 10 all windows and doors were installed, stucco was incomplete, there would have been substantial 11 further water damage to the Subject Property, etc.), because they had already paid hundreds of 12 thousands of dollars, because the Alfaro Parties warned of their home’s potential further 13 deterioration and collapsing, because of the Alfaro Parties’ continued threats, and because of the 14 continued promises and assurances made by the Alfaro Parties, including that they were near 15 completion. 16 43. The Alyousifis also discovered damage to other pre-existing areas of the Alyousifi 17 Residence, caused by the Alfaro Parties’ defective work, including reconstruction and partial 18 waterproofing of the balcony on the third floor, resulting in water damage and leaks into the dining 19 room area below. This had not been a problem before the Alfaro Parties began working on the 20 Alyousifi Residence and damaged areas beyond the scope of their contract(s). The Alyousifis 21 notified the Alfaro Parties of the leaks, but they took no remedial action. 22 44. For the stucco and new siding, the Alfaro Parties used an unapproved stucco 23 underlayment that the Alfaro Parties covered before inspection and that the City of Oakland 24 declined to approve upon inspection. During the inspection, the inspector asked the Alfaro Parties 25 - 18 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 to either provide documentation showing that the unapproved stucco underlayment used was 2 proper, or to redo it with the use of a proper moisture barrier. Upon information and belief, the 3 Alfaro Parties failed to do either, and as additional cracks emerged in the stucco, placed a moisture 4 barrier on top of the then existing stucco on at least two sides of the building, and informed the 5 Alyousifis that they were “double protected,” without further inspection or approval. This has 6 resulted in unevenness and believed other damages to the existing structure. 7 45. Despite receiving timely payments from the Alyousifis, the Alfaro Parties began 8 withdrawing and/or withholding their crew from working on the project. When the Alyousifis 9 inquired as to why nobody was working, the Alfaro Parties would respond with statements such as: 10 “nobody is working because need $$$ to clear” or “FYI I deposited a check yesterday form (sic) 11 25K and would take 7 business days to be posted on my account.” The Alfaro Parties assured the 12 Alyousifis on or about May 2019 that the project would take another month to complete. 13 However, the Alfaro Parties were not on site regularly to complete the project, and at times, only 14 one person was present, even though the checks had long cleared. On or about late June 2019, the 15 Alfaro Parties claimed to be “almost done” and stated that “payment will be due immediately.” 16 The Alfaro Parties also claimed that there will be unspecified extra charges for the trim on the 17 interior windows due to claimed material cost increases and unspecified “all the delays that were 18 not included on agreement,” which, in reality, were their own fault and actually caused damages to 19 the Alyousifis. 20 46. On or about July 2019, the Alfaro Parties demanded that the Alyousifis pay an 21 additional $20,000, on top of the over $406,000 already paid by that time. As the Alfaro Parties 22 had not yet provided a breakdown of remaining costs, amounts paid to date, or a list of remaining 23 items on the project, the Alyousifis said they would give a check in the amount of $10,000 at that 24 time and would pay the remaining balance of approximately $5,000 once they had that 25 - 19 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 information. When Ms. Alyousifi handed Mr. Johnny Alfaro a check in the amount of $10,000, he 2 threw the check at her, and threatened that the Alfaro Parties would walk out on the project. The 3 Alyousifis then gave the Alfaro Parties a check in the amount of $15,000, believing they had paid 4 over the entire price of $420,000, on a project that was not yet completed. Mr. Johnny Alfaro took 5 the check and left. At that time, the Alfaro Parties claimed to be almost done with the project that 6 was to be completed the month prior. 7 47. On or about late July 2019, Mr. Johnny Alfaro texted Mr. Alyousifi, stating: “I 8 need payment ASAP otherwise I won’t continue and to let you know permit will be expired.” Mr. 9 Alyousifi again asked for a list of remaining items, and wanted confirmation of all payments to 10 date. Mr. Alyousifi stated: “we have to know how much we have paid you to this point and what’s 11 the remaining balance. Once you finish the work, we promise you that: you will get every dollar 12 we owe you without any hassle or delay from us. We really beg you to finish the job. Also, we beg 13 to stop threatening us.” Instead of providing the information requested, Mr. Johnny Alfaro 14 responded: “… I have a business and expense. So you are more than welcome to get a other 15 contractor to finish. I can’t keep losing money. You need to take me serious. As a business 16 practice, a contractor is allowed to charge delays that will force work to continue… Well, I don’t 17 have a sign contract. I can not even do change orders because we don’t have a contract I ask you to 18 pay the balance an to sit with you to discuss the extra work that need to be done to get final… So if 19 you want us to finish I need a balance payment signed a contract for the extra work and the extra 20 cost will be due when final get approve by city building inspector.” However, once again, no 21 contract was presented to the Alyousifis. 22 48. When the Alyousifis and the Alfaro Parties arranged to meet to discuss these 23 issues, Mr. Johnny Alfaro warned in advance, “[j]ust be prepared I’m not on my best but to let you 24 know I won’t be easy.” They met on or about late July 2019, to discuss the status of the project, 25 - 20 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 amounts paid, and remaining items. During the meeting, the Alfaro Parties demanded more money 2 immediately, even though the Alfaro Parties’ crew had not been regularly on site and that the 3 Alyousifis had made a payment in the amount of $15,000 about a week prior. The Alfaro Parties 4 again claimed to be almost finished on the project and claimed that the Alyousifis were getting a 5 great deal. The Alyousifis promised to pay any remaining balance, if any, when the project was 6 completed and after receiving an itemized statement of remaining amounts owed, as they believed 7 to have already paid over the entire contract price of $420,000. On or about that time, the Alfaro 8 Parties also stated that all items the Alfaro Parties promised to complete that were not in writing 9 would no longer be completed. 10 49. On or about late July 2019, Mr. Johnny Alfaro texted Mr. Alyousifi, stating: “After 11 our conversation yesterday, I will be sending an invoice and will deduct the unfinished items Yet 12 the balance also will reflect a charge for the electrician extra work Balance will be due with in 13 fifteen days from the invoice is issue.” However, the Alfaro Parties never sent the invoice, upon 14 information and belief, because the Alfaro Parties knew the Alyousifis would be entitled to a 15 substantial refund. 16 50. On or about late July 2019, Mr. Johnny Alfaro sent another text, stating: “What we 17 need is $20000 payment to finish and the remaining balance when final inspection,” which would 18 seemingly increase the contract price in their view to over $440,000, plus whatever amount the 19 Alfaro Parties would claim on final inspection, despite their refusal to complete areas they 20 promised to fix that they claimed were not in writing. 21 51. On or about late August 2019, Mr. Johnny Alfaro texted Mr. Alyousifi, falsely 22 stating: “… I drove by to check on site. It is clear to me work was done by someone else than 23 Alfaro’s Construction crewmen. For the reason, and not hearing any news from payments or 24 25 - 21 - FIRST AMENDED COMPLAINT FOR DAMAGES 26 27 28 1 signing a cont