(kxb, ), Order on Motion for Extension of Time to File, Second MOTION for Extension of Time until 01/31/2005 to file Joint Preliminary Status Report by USA. Defendant: USA: Case Number: 1:2004cv01140: Filed: July 9, 2004: Court: United States Federal Claims Court: Office: COFC Office Because the February 2002 demand for repairs came within a year of project acceptance by the State, Kamran had a duty to provide warranty service under section "R" of the subcontract. The State and West Bay agreed as part of this first settlement agreement that West Bay would extend the warranty for the walk-in units from one year to two years, and that the two years would not start to run until the final modifications or punch list were complete and accepted by the State. West Bay tendered defense of the State's complaint through its attorneys to Kamran on August 27, 2003 []. The State did the repairs and sued West Bay, who in turn sued Kamran, who in turn sued West Bay. Response due by 9/26/2005. West Bay shall recover its costs on appeal. These contracts therefore provide for different periods of warranty coverage. About Plumbing v. West Bay Builders Et Al State Civil Lawsuit Superior Court of California, County of San Mateo, Case No. ** MOTION for Summary Judgment, filed by WEST BAY BUILDERS, INC..Response due by 10/5/2007 (per court order). [] The seven Coils that failed were in C.03, C.17, D.01, D.22, E.11, E.16 and L.01. on the contract' does not necessarily mean greater monetary relief." Contract Code, ยงยง 7107, subd. . These include: 2. In this document, paragraph 1.18 entitled, "Guarantee, Guaranty, Warrantee, or Warranty" is relevant in that it requires that the following be added to Article 42 of the General Conditions: Finally, the Subcontract Agreement between West Bay and Kamran, which was entered into on October 30, 1996, has several relevant paragraphs. Thompson Builders has moved locations. Having agreed to wait until completion of the project covered by the prime contract prior to payment, Kamran cannot complain about the waiting period. (rac), ORDER denying 67 Plaintiff's Motion to Withdraw Admissions. Having failed to comply with the terms of its subcontract with West Bay, Kamran became liable to West Bay for breach of contract and indemnification. (Attachments: # (1) Appendix)(Hogan, Tara) Modified on 10/22/2007 to correct response deadline (mb2, ). The parties shall file their joint status report immediately. (kxb, ), JOINT PRELIMINARY STATUS REPORT. MOTION to Strike and Objection to Improper Evidence, filed by WEST BAY BUILDERS, INC..Response due by 2/4/2008. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. However, West Bay has prevailed on both issues. Response due by 5/1/2006. (Ibid., quoting Davey v. Southern Pacific Co. (1897) 116 Cal. The Court therefore finds that, at the latest, the State had accepted the contract no later than March 20, 2002, and as early as late November 2001. On its face, PLCM Group, Inc. involves a request for in-house attorney fees as the measure of actual fees. The laws with respect to contract interpretation have been restated many times. The high court held that Civil Code section 3262 renders such contract provisions void as against public policy. If you are not a monthly donor, we allow five alerts and give a bonus of 10 alerts to anybody with the RECAP Extension installed. Finally, under section W of the General Subcontract Provisions, Kamran is contractually bound to pay West Bay's attorney fees arising out of the defense and settlement of State's action, as there was no evidence that West Bay engaged in sole negligence or any willful misconduct. It did not recognize the June 2001 Settlement Agreement between West Bay and the State as binding on it. It is undisputed that Kamran was not a party to the June 2001 settlement agreement between the State and West Bay, nor did it have knowledge of it. West Bay also withheld over $30,000 for attorney fees. In relevant part, section 1717 provides: "(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Kamran asserts that "[t]he trial court had no discretion not to find Kamran as the `prevailing party' as it had the net monetary recovery." (kxb, ), ANSWER to [1] Complaint, by USA. Prejudgment interest may also be recoverable under Civil Code section 3287 when statutory penalties are awarded to plaintiff. Of these, as we have just explained, Kamran relies on the terms found in paragraph 1.7 of section 11400 of the supplementary conditions of the prime contract. The settlement agreement did not specify which of the walk-in coolers were covered by the new warranty agreement. Kamran, therefore, should have repaired the items identified for remediation in February of 2002. . . **STRICKEN PER ORDER OF SEPTEMBER 11, 2007. Kamran was hired to furnish and install certain food service equipment in exchange for $1,569,029.00.[]. The California Supreme Court addressed the legality of pay if paid contract terms in Clarke Corp., supra, 15 Cal.4th 882, 885. Signed by Judge Margaret M. Sweeney. On June 12, 2001, West Bay and State entered into the first written settlement agreement resolving all disputes except those relating to the walk-ins and refrigeration units installed by Kamran under the Subcontract. West Bay's legal theories are breach of contract and express indemnification. Lacking such specification, the Settlement Agreement language arguably appeared to cover all walk-in coolers. West Bay offered evidence at trial that in addition to the $80,000, it cost $13,635.28 to defend and settle the suit with the State. Kamran contends that the trial court erred in determining that West Bay was entitled to contractual attorney fees as the prevailing party.18 Kamran claims to be the prevailing party because it secured the greater relief in the form of a net monetary recovery of $3,369. The subcontract imposed a guarantee of work and materials for a one-year period after acceptance by the State. Thus, the trial court did not err in determining West Bay to be entitled to attorney fees and costs. Even if the amounts were capable of certainty, as Kamran has pointed out and West Bay has admitted, West Bay has retained over $106,000 in Kamran's Subcontract funds, pending outcome of this litigation. At trial, West Bay offered the testimony of its in-house counsel as to how she tracked her time to the case, and the basis upon which her time could reasonably be charged to the Kamran and State litigation matters. [] 10 11 12. Importantly, under paragraph 29 of the General Conditions of the Contract, any time limits on the Contractor's promise or unconditional guarantee do not start to run until the contract work is "accepted," as set forth in Article 35 or Article 42. (Hogan, Tara), ORDER granting [39] Motion to Withdraw Signed by Judge Margaret M. Sweeney. KAMRAN & COMPANY, INC., Cross-defendant, Cross-complainant and Appellant. The Court therefore need not address whether the portion of the June 12, 2001 Settlement Agreement extending the warranty period for the walk-in coolers to two years is the basis upon which Kamran is bound. Kamran knew nothing about this extension of warranty obligations and did not acquiesce to it. . Second, Kamran argues that it would be an "unfair" burden to make a subcontractor wait until the general contractor completes the entire project before the subcontractor may receive payment on the portion for which it was responsible. (ps2) Modified on 9/11/2007 to correct pdf.