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City of Sacramento vs. State of California PERS

City of Sacramento vs. State of California PERS

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A Sacramento Superior Court Judge has issued a tentative ruling in the case the City of Sacramento filed to invoke eminent domain. The City filed the suit over the old Macy’s men’s store and the land it’s on. The City says it needs control of the land the building is on to build a new arena.

See Item 8.
A Sacramento Superior Court Judge has issued a tentative ruling in the case the City of Sacramento filed to invoke eminent domain. The City filed the suit over the old Macy’s men’s store and the land it’s on. The City says it needs control of the land the building is on to build a new arena.

See Item 8.

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Published by: Capital Public Radio on Mar 18, 2014
Copyright:Attribution Non-commercial

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05/28/2014

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Superior Court of California800 Ninth Street, 3rd Floor Wednesday, March 19, 2014, 9:00 AMDepartment54Raymond M. Cadei, JudgeC. Chambers/J. Green, Bailiff Diane Ahee, Clerk
To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7848 (Department 54) by 4:00 p.m. the court day before this hearing and advise opposing counsel. If no call is made, the tentative ruling becomes the order of the court. Local Rule 1.06. Parties requesting services of a court reporter shall advise the court at the number stated above no later than 4:00 p.m. the court day before the hearing. Please be advised there is a $30.00 fee for court reporting services, which must be paid in Room 102 prior to the hearing unless otherwise ordered, for each civil proceeding lasting less than one hour. Govt. Code §68086(a)(1)(A).The Court Reporter will not report any proceeding unless a request is made and the requisite fees are paid in advance of the hearing.
NOTICE:
Item1
2009-00036948-CU-PNHammer Lane RV & Mini-Storage LP vs. Jack S Johal
Nature of Proceeding:Filed By:Motion to Compel Compliance with Janury 16, 2014 Court Order  Alves, Suzanne M.
This matter is continued to 3/26/2014 at 09:00AM in this department.
Item2
2009-00042196-CU-MCCooper Crane & Rigging Inc vs. Pavex-Myers
Nature of Proceeding:Filed By:Motion for Summary AdjudicationPierce, Timothy L.
Defendants Pavex-Myers (“Pavex”) and Safeco Insurance Company of America, Inc.’s (collectively “Defendants”) motion for summary adjudication of Plaintiff Cooper Crane & Rigging, Inc./West Cost Welding, Inc.’s, (“Plaintiff”) claims for prompt payment penalties and attorney’s fees is ruled upon as follows.This motion is brought pursuant to CCP §437c(s)(1). The parties have stipulated that the Court hear the motion and that resolution of this motion will either further the interests of judicial economy by reducing the time to be consumed in trial or significantly increase the ability of the parties to resolve the case by settlement.Pavex is admonished as its separate statement does not comply with CRC 3.1342(h). Defendant separately identifies 16 undisputed material facts. Defendant also moves for summary adjudication on 3 issues. However, Defendant did not repeat verbatim the undisputed material facts below each issue. Rather, Defendant simply identifies the number of the undisputed fact in support of the issue.
 
This is an action arising out of a construction contract for the California Department of Transportation (“Caltrans”). Pavex was the general contractor on the project. Plaintiff was a subcontractor hired to install cast-in-drilled-hole piling, among others items. Problems arose with the project which resulted in Plaintiff conducting additional work on contract items 97, 98 and 99. Plaintiff submitted a claim to Pavex for the additional work, which Pavex “passed through” to Caltrans per the subcontract agreement. The matter then proceeded to an Office of Administrative Hearings. Pavex was the Petitioner, Caltrans was the Respondent, and Plaintiff was an interested party. The arbitrator found in favor of Pavex and awarded $1,950,853.00, of which $92,898 was for Pavex’s 5% mark-up on the claim. Plaintiff alleges that pursuant to the force account payment terms, Pavex failed to timely pay Plaintiff. (FAC, ¶ 13.) Plaintiff alleges that “as determined by the arbitrator, Plaintiff was forced to self-finance work performed to the tune of $1,857,956.00 due to defendant Pavex/Myers’ failure to pay Plaintiff in accordance with the terms of the Subcontract, its incorporated force account provisions and its implied terms.” (FAC, ¶ 15.)
Prompt Payment Penalties
Pavex argues that Plaintiff is not entitled to recover prompt payment penalties because: (1) the amount claimed by Plaintiff as the basis for the penalties is not retention or progress payments, (2) the amount that Plaintiff claims Pavex withheld was never due under the subcontract, and (3) Pavex promptly paid Plaintiff after Caltrans paid Pavex the pass-through amount pursuant to the arbitrator’s decision.Public Contracts Code §10262 requires a general contractor to pay its subcontractor, within seven days of receipt, of each progress payment. (Pub. Contracts Code §10262.)Public Contracts Code §7017 requires a general contractor to pay its subcontractor, within seven days of receipt, its share of retention proceeds. (Pub. Contracts Code §7107.)Pavex contends that Plaintiff’s verified discovery responses indicate that the underlying amount on which Plaintiff’s prompt penalties is based ($1,249,000) is neither a progress payment nor retention proceeds. Plaintiff’s discovery responses state that the $1,249,000 is the “value that [Pavex-Myers] was paid by Caltrans for Items 97, 98, and 99 in the amount of $2,422,728 and subtracting the amount [Pavex-Myers] paid to Plaintiff . . . $1,173,684.” (Defendant’s separate statement, UMF 12-13.) According to Pavex, this amount represents Pavex’s profit and payment for work beyond the work done by Plaintiff. Pavex also contends that Plaintiff did not bill for these amounts (Defendant’s separate statement, UMF 14) which is necessary for them to qualify as progress or retention payments.Pavex has failed to satisfy its initial burden to demonstrate no triable issue of material fact. Here, there is no dispute that Caltrans paid Pavex for contract items 97, 98, and 99 in the amount of $2,422,728. Despite Pavex’s contention that this amount represents Pavex’s profit and payment for work beyond the work done by Plaintiff, Pavex has failed to proffer evidence to support this purported fact. As noted in Plaintiff’s opposition, Pavex has not proffered any evidence that the payments Pavex received for contract items 97-99 during the project were payments for something other than the work that Plaintiff performed on those contract items. Indeed, Pavex’s
 
separate statement does not include the “fact” that the $2,242,728 was paid to Pavex solely for work done by Pavex. Thus, Pavex has not shown, on the undisputed facts, that the payment Caltrans made to Pavex does not fall within Public Contracts Code §10262. Accordingly, the motion for summary adjudication on Plaintiff’s entitlement to prompt payment penalties is DENIED.
 Attorneys’ Fees based on Prompt Payment Statutes
Pavex argues that Plaintiff is not entitled to attorneys’ fees pursuant to Pub. Contracts Code §10262.5 because Plaintiff is not entitled to prompt payment penalties.The motion for summary adjudication is DENIED. The Court has denied Pavex’s motion for summary adjudication on Plaintiff’s entitlement to prompt payment penalties.
Cooper Crane's Attorneys’ Fees Incurred during Arbitration
Plaintiff is seeking $320,000 in attorneys’ fees based on the “actual amounts invoiced.” Pavex argues that given the limited activity in this action, presumably most of these fees related to the arbitration.Pavex argues that Plaintiff is not entitled to attorneys’ fees incurred in the arbitration because: (1) the arbitration was not an action “for collection of funds wrongfully withheld” (Pub. Contracts Code §10262.5(a)), and (2) Plaintiff did not “prevail” in the arbitration because the arbitration was between Pavex and Caltrans.Public Contracts Code §10262.5(a) provides “[i]n any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney's fees and costs.” (Pub. Contracts Code §10262.5(a).) Pavex argues that the arbitration was not “for the collection of funds wrongfully withheld” because “the arbitration was designed to determine the merit, and if merit was found, the amount due to Pavex for Plaintiff’s pass-through claim for additional work related to item nos. 97-99. (Defendant’s separate statement, UMF, 7.) There is no dispute that the subcontract has a prevailing party provision entitling a prevailing party to recover its attorneys’ fees. The subcontract provides “either party shall be entitled to all remedies afforded by law to enforce their respective rights under this Subcontract. In the event legal proceedings are commenced by either party against the other to enforce the provision of this subcontract, or for breach thereof, the prevailing party shall be entitled to the payment of reasonable attorney’s fee.”In opposition to the motion, Plaintiff argues the motion is premature because Plaintiff may prevail in this case and that the determination of entitlement to and amount of attorney’s fees should be made post-judgment and pursuant to a motion for attorney’s fees. Plaintiff further argues that Pavex has failed to analyze the various contractual and statutory fee-shifting vehicles available to Plaintiff.The Court disagrees with Plaintiff that the motion is premature. Indeed, Plaintiff stipulated to summary adjudication of its entitlement to attorney’s fees. Moreover, Plaintiff has failed to demonstrate a triable issue of material fact. Here, Plaintiff does

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