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NATHAN D. IDE, #187510 Attorney at Law 110 W. Center Ave., Suite A Post Office Box 2621 Visalia, CA 93279 Telephone: (559) 734-9889 Facsimile: (559) 734-9876 Attorneys for ECCO Equipment Corporation
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) Plaintiff, ) vs. ) ) CENTRAL VALLEY CONSTRUCTION, INC.; ) CKY, INC., TPA, INC., AMERICAN ) CONTRACTORS INDEMNITY COMPANY, and ) DOES 1-20, ) ) Defendants. ) _____________________________________) ) CENTRAL VALLEY CONSTRUCTION, INC., ) ) Cross-Claimant, ) vs. ) ) TPA-CKY JOINT VENTURE, ) ) Counterdefendant. ) _____________________________________) ) TPA-CKY JOINT VENTURE, ) ) Counterclaimant, ) vs. ) ) CENTRAL VALLEY CONSTRUCTION, INC., ) a California corporation; PHILLIP ) VALLEJO, an individual; GENE ARNAIZ, ) an individual; and JOES 1 through ) UNITED STATES, For the Use of ECCO EQUIPMENT CORPORATION,
Civil Action Files No. C 07-01568 SI and No. C 07-04929 SI FURTHER JOINT STATUS CONFERENCE STATEMENT Date: July 18, 2008 Dept: 10 Time: 2:30 p.m.
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
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) ) Counterdefendants. ) _____________________________________) ) AND RELATED ACTION: ) _____________________________________) ) UNITED STATES OF AMERICA, For the ) Use and Benefit of RENTAL SOLUTIONS, ) LLC, ) Plaintiff, ) vs. ) ) CENTRAL VALLEY CONSTRUCTION, INC., ) TPA-CKY JOINT VENTURE, CKY, INC., ) TAN PHUNG & ASSOCIATES, AMERICAN ) CONTRACTORS INDEMNITY COMPANY, ) and DOES 1-20, inclusive, ) ) Defendants. ) _____________________________________) 1. Jurisdiction and Service: The Court
10, inclusive,
13 jurisdiction over plaintiffs< claims is pursuant to the Miller Act 14 (40 U.S.C. Sections 3131 and 3133). 15 All parties named by plaintiffs in both matters have 16 been served or have appeared. 17 served and appeared. 18 against the individual defendants. 19 2. 20 ("ECCO") and RENTAL SOLUTIONS ("RENTAL") provided heavy equipment 21 to CENTRAL VALLEY CONSTRUCTION ("CVC") on a federal work of 22 improvement. 23 these rentals. 24 not been properly credited and that some of the equipment was not 25 used on the project. 26 The general contractor on the project was defendant
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
All cross-defendants have been
All Cross-Complaints have been filed
Facts:
Plaintiff ECCO EQUIPMENT CORPORATION
Plaintiffs contend they have not been paid for CVC contends in both cases that its payments have
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TPA-CKY JOINT VENTURE, which was a joint venture formed by defendant CKY INC. and TAN PHUNG & ASSOCIATES. The TPA-CKY
JOINT VENTURE has sued defendant CVC for indemnity and breach of contract, and CVC has sued the TPA-CKY JOINT VENTURE for breach of contract. Plaintiffs ECCO and RENTAL believe these will be
the major issues litigated in both matters. 3. Legal Issues: Defendants contend that both
Plaintiffs' 90-day Notices under the Miller Act were defective, and were not sufficient to cover all of the rentals provided. 4. Motions: Plaintiffs ECCO and RENTAL do not
anticipate filing a dispositive motion, as the parties dispute certain credits. Counter-defendant PHILLIP VALLEJO anticipates
filing a dispositive motion regarding his individual liability. 5. Amendment of Pleadings: Plaintiff ECCO filed an
amended complaint changing the names of the joint venture defendants to their proper designations. CVC has filed a cross-
claim against the TPA-CKY JOINT VENTURE and the TPA-CKY JOINT VENTURE has filed a counter-claim naming CVC and its individual owners. 6. Evidence Preservation: There are no evidence
preservation issues as all of the subject invoices are retained in the normal course of business. 7. Disclosures: Plaintiffs ECCO and RENTAL complied Plaintiffs believe all Rule 26
with their Rule 26 disclosures. disclosures have been made.
8.
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
Discovery: Written discovery requests have been
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exchanged, and documents have been produced by the parties in the ECCO matter. Four motions to compel have been filed by the TPACKY JOINT VENTURE against CVC and ANTHONY ARNAIZ, regarding the alter ego allegations made against the individual owners of CVC. The hearing on these motions is set for July 18, 2008. The current Case Management Order provides for a discovery cutoff of August 29, 2008 for the ECCO matter. However, new attorneys have recently substituted in as counsel for Phillip Vallejo and Anthony Arnaiz. As a result, the parties have only recently agreed to a mediation date of August 28, 2008, which is only one day before the currently scheduled discovery cutoff. The parties would like to avoid the time and expense of taking numerous depositions before the mediation, and to do so, request that the court move back the discovery cutoff date by a period of 60 to 90 days. 9. Class Actions: This is not a class action lawsuit.
10. Related Cases: The Court ordered case number C-07-4929 18 19 20 21 22 23 24 25 26 MHP (SI), Rental Solutions, LLC v. Central Valley Construction, et al, related. 11. Relief: Plaintiff ECCO is seeking damages in the amount of $347,535.76, which is for all rental charges and interest related to the heavy equipment provided to Defendants. Plaintiff RENTAL is seeking damages in the amount of $41,629.75 in its matter
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
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Defendant TPA-CKY JOINT VENTURE has filed a counter claim against CVC for approximately $500,000.00 related to its performance on the project and has named the individual owners of the corporation on an alter-ego theory. Defendant CVC has filed a cross claim against TPA-CKY JOINT VENTURE for approximately $900,000.00 it claims it is owed on the project. 12. Settlement and ADR: The parties have agreed upon
9 mediation. 10 Ernest C. Brown. In addition, a settlement agreement has been 11 entered into in the Rental Solutions case between RENTAL, CVC and 12 the TPA-CKY JOINT VENTURE. The TPA-CKY JOINT VENTURE has 13 performed its obligations under the agreement, in the Rental 14 Solutions case, but CVC has not performed its obligations 15 thereunder. 16 17 18 19 20 21 22 23 24 25 26 13. Consent to Magistrate Judge for All Purposes: Plaintiff RENTAL did not consent to a magistrate judge in its matter. 14. Other References: None. 15. Narrowing of Issues: The issues in this matter are narrow as to ECCO and RENTAL. amount of their invoices. their alleged credits. Plaintiffs must prove the total Mediation is scheduled for August 28, 2008, with
Defendants must prove the amount of
Defendants must also litigate their legal
defense of lack of proper 90-day notice.
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
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As to the other defendants, the issues are more complex, involving performance on the project by the parties, as well as an accounting of monies allegedly advanced by TPA-CKY on behalf of CVC. TPA-CKY is also attempting to pierce the corporate veil These issues will be the
as to the individual owners of CVC. bulk of trial in this matter. 16. Scheduling:
The Current schedule, with proposed changes, is as follows: 9 10 11 12 13 14 c) Discovery cutoff: August 29, 2008 (other than 15 16 17 18 19 20 f) Pretrial conference and trial: Trial is scheduled 21 for November 10, 2008. 22 2008. 23 24 25 26 As indicated in Paragraph 8 above, the introduction of new counsel for Phillip Vallejo and Anthony Arnaiz, and the scheduling of the mediation of these cases on August 28, 2008 suggest that a 60 to 90 day continuance of the discovery cutoff
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
a) Designation of Experts: Sept. 12, 2008; No proposed changes. b) Counter Designation of Experts: Sept. 26, 2008; No proposed changes.
designation of experts); No proposed changes. d) Pretrial Disclosures: 30 days before trial. e) Hearing of dispositive motions: September 26, 2008.
The pretrial conference is October 28,
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date and the other dates associated therewith would be prudent, including the trial date, so that the parties can engage in meaningful settlement negotiations without having to incur the time and expense of completing all non-expert discovery prior to the scheduled date of the mediation. 17. Trial: The case is set for a Jury trial. RENTAL
Plaintiff ECCO believes its case should take two days. believes its case will take two days.
Defendants< claims should
take significantly longer, and trial is currently set for 5 days total.
Dated: July ___, 2008
/s/ Nathan D. Ide, Attorney for Use Plaintiff ECCO EQUIPMENT CORPORATION
Dated: July ___, 2008 17 18 19 20 21 22 23 Dated: July ___, 2008 24 25 26
GANZER & WILLIAMS By:/s/ James E. Ganzer, Attorneys for Defendant CENTRAL VALLEY CONSTRUCTION, INC. MUSICK, PEELER & GARRETT LLP By:/s/ Jack W. Fleming, Attorney for Defendants, CKY, INC., TPA-CKY JOINT VENTURE, AMERICAN CONTRACTORS INDEMNITY COMPANY
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dated: July __, 2008 /s/ Stan D. Blyth, Esq. Attorneys for Plaintiff RENTAL SOLUTIONS Dated: July ___, 2008 -----------------------------Michael F. Babitzke Attorney for Defendant, TONY ARNAIZ Dated: July ___, 2008 /s/ Jennifer K. Whipple, Attorney for Defendant, PHILLIP VALLEJO
NATHAN D. IDE ATTORNEY AT LAW VISALIA, CA
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