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. West Bay seeks indemnification for the $80,000 it paid to the State for the State's repairs, as well as its attorney fees in defending against the State's action. (rac), REPLY to Response to Motion re [68] MOTION to Strike and Objection to Improper Evidence, filed by WEST BAY BUILDERS, INC.. (McInerney, Timothy), REPLY to Response to Motion re [67] MOTION to Withdraw Admissions, filed by WEST BAY BUILDERS, INC.. (McInerney, Timothy), ORDER granting in part and denying in part [68] Motion to Strike. West Bay asks also for prejudgment interest on this amount. In February 2002, State discovered leaks in seven coils in the walk-ins and both KAMRAN and West Bay were made aware of the claims. A number of issues remained with these units up to and after the first settlement agreement was signed in June 2001. (Samler, Debbie). Certified General Contractor, Construction Financial Officer, Construction Business Information License: CGC1528166, FRO10226. The Court also believes that the reasoning in Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 508-509 also supports its analysis. In addition, the meaning of the words used must be determined from a reading of the entire contract, so as to give effect to every part, if possible, with each clause helping to interpret the other. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The California Supreme Court addressed the legality of pay if paid contract terms in Clarke Corp., supra, 15 Cal.4th 882, 885. It is apparent to the Court, from a reading of the various documents, that the terms "warranty," "guaranty" and "indemnification" are defined, with each specifying the relevant time frames for their operation, and which entity is responsible for making good on the covenants. There was never an agreement to waive any and all payment for the work if never paid, and thus mechanic lien rights, if the State failed to pay West Bay. 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." . Rules of Court, rule 8.278(a)(1) & (2).). With respect to the original agreement dated October 30, 1996 between West Bay and Kamran, there are many relevant contract provisions in different sections of the component documents that require consideration. As a matter of public policy, retaining the withhold until release appears consistent with the public policy expressed in Public Contract Code sections 7107(e) and 10262.5, both of which allow the general contractor to withhold up to 150 percent of any amount subject to a good faith dispute by the parties from a Subcontractor's retention or progress payments. West Bay Builders West Bay Builders, inc http://www.westbaybuilders.com Signed by Judge Margaret M. Sweeney. Kamran therefore breached its warranty in the subcontract. [¶]. Kamran cross-complained against West Bay for withheld payment on the project and against equipment manufacturer, Carrier Corporation. Following the Supreme Court's decision in Clarke Corp., the Court of Appeal held pay if paid provisions unlawful for public works projects. Evident in the arguments of the parties is the empty chair, otherwise assigned to the manufacturers of the various refrigeration unit components, who provided the materials and ostensibly provided written warranties for their products. (ps2), RESPONSE to [53] PROPOSED FINDINGS of Uncontroverted Fact, filed by USA, filed by USA. The express warranty period would end, therefore, at the earliest November 19, 2003, and at the latest March 19, 2004, at least as between West Bay and State. & Prof. Code, § 7108.5; accord Pub. ." Contrary to Kamran's claim, this case does not involve a pay if paid issue. West Bay Builders, Inc. v. Foothill De Anza Community College District, Court Case No. Kamran would have us ignore this express provision in the subcontract. The State did the repairs and sued West Bay, who in turn sued Kamran, who in turn sued West Bay. Under the subcontract's indemnity provision, Kamran was liable for the damages as well as West Bay's legal fees and costs.16. Defendant: USA: Case Number: 1:2004cv01140: Filed: July 9, 2004: Court: United States Federal Claims Court: Office: COFC Office (Hsu v. Abbara (1995) 9 Cal.4th 863; Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 399-340; Sears v. Baccaglio (1998) 60 Cal.App.4th 1136.) On November 22, 2005, West Bay offered Kamran $13,130.48 ($106,854.48-$80,000-$13,715) to settle the final amount of any retention and dispute the parties had. As we shall explain, Kamran's warranty obligations are found not in the settlement agreement between West Bay and the State, nor in section 1.7 of section 11400 of the Supplementary Conditions, but rather in Kamran's subcontract with West Bay. West Bay is therefore awarded the sum of $80,000, plus the "actual fees" paid and incurred by the firm of McInerney in the amount of $13,635.28, plus the $9,500.00 for corporate counsel, for a total award of $103,135.28. In pertinent part, paragraph "H" states: "CONTRACTOR may withhold . In February 2002, the State reportedly discovered leaks in seven coils in the walk-ins. (Clarke Corp., supra, 15 Cal.4th at p. Extrinsic evidence is thus admissible to interpret the language of a written instrument, as long as such evidence is not used to give the instrument a meaning to which it is not reasonably susceptible. Signed by Judge George W. Miller. (Samler, Debbie). v. Agrippina Versicherunges A.G. (1970) 3 Cal.3d 434, 447; Mabie & Mintz v. B & E Installers (1972) 25 Cal.App.3d 491, 497.). Recent work: 13x9 addition per plans bathroom provided install 2x8 header for 6' clear opening to create open floor pland between existing dining room/ study. Kamran rejected the offer of settlement and maintained that it was owed the entire contract balance without back charge, as it believed that all warranty or other obligations had been discharged with the passage of time. . This is true because Business and Professions Code section 7108.5 permits withholding up to 150 percent "in the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the prime contractor or Subcontractor to a Subcontractor. An itemization of the State's alleged damages [] indicates that the State expended $818.14 for food and/or product loss; $31,669.35 for refrigerant, $27,969.10 for repair labor costs; and another $21,638.65 for parts. The prevailing party determination is to be made only upon final resolution of the contract claims and only by "a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions." Response due by 5/1/2006. Where the language of a contract is clear and does not involve an absurdity, it will be followed. (rac), ORDER denying 67 Plaintiff's Motion to Withdraw Admissions. Finally, the Court is asked to address who is responsible for the attorney fees and costs associated with West Bay's action with the State and the cross-action between West Bay and Kamran, and thus which side is the prevailing party. A copy of State's May 13, 2002 letter was forwarded to Kamran on May 15, 2002. It therefore claimed a total of $103,135.28 in indemnification costs against Kamran. Hsu v. Abbara, supra, (1995) [[9]] Cal.4th at 876. However, the 2001 Settlement Agreement was appended. Sign in to add some. Wm. On August 27, 2003, West Bay tendered defense of the State's complaint to Kamran. Pay if paid contract provisions are void as against public policy. This is because the prime contract itself instructs, "The General Conditions of the Contract shall govern over all other contract documents except for specific modifications thereto stated in the Supplemental Conditions and except for Addenda." Signed by Judge George W. Miller. In March 2001, Kamran was informed that the State would reject all of the coolers unless all the wall and ceiling panels in the problem units were replaced. (McInerney, Timothy), ORDER granting [71] Plaintiff's Unopposed Motion for Extension of Time. However, we rely on different grounds than the trial court in determining that Kamran had a duty to make repairs in February 2002. (e), 10262.5, subd. The State signed on November 28, 2005. It is reversible error for a trial court to refuse to consider competent extrinsic evidence on the basis of the trial court's own conclusion that the language of the contract appears to be clear and unambiguous on its face. (See Addendum C to the Subcontract Agreement, which makes changes to Section 4, the Payment Schedule of the Subcontract.) R. Clarke Corp. v. Safeco Ins. Under the subcontract's indemnity clause, Kamran's failure to fulfill its duty to make the repairs in February 2002 required West Bay to be made whole for the sum owed to the State for those repairs as well as for attorney fees incurred in defending against the State's lawsuit.