Free Complaint - District Court of California - California

Case 3:07-cv-04929-SI

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Filed 09/21/2007

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StanD. Blyth, SEN 166938 The Law Offices of Stan D. Blyth 11 Embarcadero West, Suite 145 Oakland, CA 94607 Telephone: (510) 272-0200 Facsimile: (510) 451-3931 [email protected] Attorneys for Plaintiff RENTAL SOLUTIONS, LLC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA, For the Use and Benefit of RENTAL SOLUTIONS, LLC, Plaintiff,
vs.

Civil Action File No. COMPLAINT FOR: 1. ENFORCEMENT OF MILLER ACT PAYMENT BOND 2. BREACH OF CONTRACT, and 3. OPEN BOOK ACCOUNT

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CENTRAL VALLEY CONSTRUCTION, INC., TPA-CKY JOINT VENTURE, CKY, INC., TAN PHUNG & ASSOCIATES, AMERICAN CONTRACTORS INDEMNITY COMPANY, and DOES 1-20, inclusive, Defendants.

Plaintiff United States of America for the use and benefit of RENTAL SOLUTIONS, LLC ("RENTAL SOLUTIONS") complains and alleges:

Complaint on Bond; Breach of Contract - 1

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I.
Jurisdiction 1. The Court has federal question jurisdiction to hear this matter pursuant to the Miller

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Act (40 U.S.C. §§ 270a-270e), and 28 U.S.C. §§1331, 1337. This Court has supplemental jurisdiction pursuant to 28 U.S.C. §1367.

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II.

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Intradistrict Assignment
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2. Venue is appropriate in this District and Division because the real property which
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benefitted from the improvements is located in this District, and in Napa County, California.
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3. Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY ("AMERICAN") was at all times herein mentioned and now is, on information and belief, a corporation duly organized and existing, and authorized to transact business as surety upon bonds or undertakings in the State of California. 4. Defendant CENTRAL VALLEY CONSTRUCTION, INC. ("CENTRAL VALLEY") is and was at all relevant times mentioned herein a corporation duly organized under the laws of the State of California and doing business in California.

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5. Defend ant CKY, INC. ("CKY") is and was at all relevant times mentioned herein a corporation duly organized under the laws of the State of California and doing business in

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California.
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6. Defend ant TAN PHUNG & ASSOCIATES ("TPA") is and was at all relevant times
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mentioned herein a corporation duly organized under the laws of the State of California and
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doing business in California.
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7. Defendant TPA-CKY JOINT VENTURE is an unknown entity who Use Plaintiff RENTAL SOLUTIONS is informed and believes is and was at all times relevant herein a joint
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venture doing business in California. 8. Use Plaintiff RENTAL SOLUTIONS as at all relevant times a limited liability company duly organized under the laws of the State of California and doing business in California. 9. The true names and capacities whether individual, corporate, associate, or otherwise of Doe Defendants 1 through 20, inclusive are unknown to Use Plaintiff RENTAL SOLUTIONS at this time, as such, RENTAL SOLUTIONS therefore sues said Defendants by such fictitious names and will ask leave of Court to amend this Complaint to show the true names and capacities when same have been ascertained. RENTAL SOLUTIONS is informed and believes,

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and thereon alleges, that each of the Defendants designated herein as Doe Defendants is
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responsible in some manner for the events and happenings herein referred to and which proximately caused the damages alleged herein. RENTAL SOLUTIONS is further informed and believes, and thereon alleges, that each of the Defendants sued herein is responsible in some manner for the occurrences herein alleged and RENTAL SOLUTIONS' damages, as alleged herein, were proximately caused by such defendants.
III.

First Cause of Action ENFORCEMENT OF MILLER ACT PAYMENT BOND (Against Defendants CENTRAL VALLEY, CKY, TPA, TPA-CKY JOINT VENTURE and AMERICAN) 10. On or about June 30, 2005, Defendants CKY and TPA were awarded a joint

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venture contract as TPA-CKY JOINT VENTURE by the United States of America through the
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Complaint on Bond; Breach of Contract - 3

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United States Department of the Army Corps of Engineers, more particularly identified as Contract No. W91238-05-C-0019 (the "Prime Contract"), for that certain work of improvement consisting of the flood control work at the Napa River, in Napa, California. 11. On or about July 21, 2005, said Defendants CKY and TPA, acting as TPA-CKY JOINT VENTURE, as principal, and Defendant AMERICAN, as surety, executed and delivered a certain Payment Bond, number 234122, guaranteeing the payment to all persons supplying labor, equipment and materials in the prosecution of the work provided for in the Prime Contract and any and all duly authorized modifications thereof, which bond was executed and delivered as

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foresaid in accordance with the provisions of an act of the Legislature of the United States of American, dated August 24, 1935, 49 Stat. 793, as amended (40 U.S.C. §§ 270a-270e). 12. Thereafter, and during the course of the performance and prosecution of the work

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provided for in said Prime Contract, Defendants CKY and TPA, acting as TPA-CKY JOINT
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VENTURE, entered into a subcontract with Defendant CENTRAL VALLEY for the performance and prosecution of a part of the work described in said general contract between Defendants CKY and TPA, acting as TPA-CKY JOINT VENTURE, and the United States of America. 13. During the course of the performance and prosecution of said public work, and under and by virtue of said contract between Defendants CKY and TPA, acting as TPA-CKY JOINT VENTURE, and CENTRAL VALLEY, between July 2006 and October 2006, Use Plaintiff RENTAL SOLUTIONS rented equipment to Defendant CENTRAL VALLEY, at its special instance and request, which equipment was furnished to be used in the prosecution of the work provided for in the Prime Contract.

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14. Said equipment so furnished by Use Plaintiff RENTAL SOLUTIONS in and for the prosecution of said work as aforesaid, was and is reasonably worth the sum of $41,629.75, of which nothing has been paid or credited on said amount; and there is now due, owing and unpaid to Use Plaintiff RENTAL SOLUTIONS the sum of $41,629.75, after deducting all just credits and offsets, and the same has not been paid, neither the whole nor any part thereof. 15. Within ninety (90) days from the date on which Use Plaintiff RENTAL SOLUTIONS furnished the last of the equipment for which its claim hereunder is made, said plaintiff gave written notice to said general contractor, defendants CKY and TPA, acting as TPA-CKY JOINT

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VENTURE, stating with substantial accuracy the amount claimed and the name of the party to whom the equipment was furnished, which said notice was served on Defendants CKY and TPA by registered mail, postage prepaid, in an envelope addressed to said contractor at its business

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address specified in said contract and bond.
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16. Use plaintiff RENTAL SOLUTIONS has not been paid in full for said equipment furnished in the prosecution of said work, as aforesaid; more than ninety (90) days have elapsed

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after the date on which the last of said equipment was furnished as herein above set forth; the balance thereof unpaid at the time of commencement of this action is $41,629.75. 17. WHEREFORE, Use Plaintiff RENTAL SOLUTIONS prays for judgment against the Defendants CENTRAL VALLEY, CKY, TPA, TPA-CKY JOINT VENTURE and AMERICAN jointly and severally, in the sum of $41,629.75, together with interest thereon at the rate often percent (10%) per annum from the date of filing complaint herein, until paid, and together with late charges, attorney's fees, costs of suit herein incurred, and for such other and further relief as the Court deems just and equitable.

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IV.

Second Cause of Action BREACH OF CONTRACT UNDER CALIFORNIA LAW (Against Defendant CENTRAL VALLEY) 18. Plaintiff RENTAL SOLUTIONS incorporates by reference the allegations contained

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in paragraphs 1 through 17, above.
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19. As a California licensed contractor, CENTRAL VALLEY's conduct and contract is
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governed by California substantive law. 20. In addition to equipment rented by RENTAL SOLUTIONS to CENTRAL VALLEY for prosecution of the work provided for in said Prime Contract, RENTAL SOLUTIONS and CENTRAL VALLEY contracted for rental of equipment for other projects including, the Pine Meadows subdivision, under which contracts CENTRAL VALLEY incurred charges owing to RENTAL SOLUTIONS in the amount of $4,554.00, which charges CENTRAL VALLEY has failed and refused to pay to RENTAL SOLUTIONS despite demand therefore by RENTAL SOLUTIONS. 21. CENTRAL VALLEY's conduct alleged above is in violation of its contractual duties

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with RENTAL SOLUTIONS, including, but not limited to, its duty to pay promptly under
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California's prompt payment statutes.
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22. RENTAL SOLUTIONS has been damaged by CENTRAL VALLEY's breach of
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contract and failure to pay the total sum of $46,183.75 owing to RENTAL SOLUTIONS.
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23. RENTAL SOLUTIONS is entitled to interest penalties under California Governmental Code §3262.5 in the amount of 2% per month. 24. WHEREFORE, Plaintiff RENTAL SOLUTIONS prays for judgment against defendant CENTRAL VALLEY, in the amount of $46,183.75, plus statutory interest, late

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charges, attorney's fees and costs of suit herein incurred, and for such other and further relief as the Court deems just and equitable.

Third Cause of Action OPEN BOOK ACCOUNT (Against Defendant CENTRAL VALLEY)

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25. Plaintiff RENTAL SOLUTIONS hereby refers to, realleges, and incorporates by reference each and every allegation contained in the First and Second Cause of Action. 26. Within the past four years, Defendants, CENTRAL VALLEY and DOES 1 -20, and
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each of them, became indebted to Plaintiff for money due in the sum of $46,183.75, on an open book account for money due. Despite demand, said sum remains due, owing and unpaid.

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27. WHEREFORE, Plaintiff prays for judgment against CENTRAL VALLEY in the
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amount of $46,183.75, plus statutory interest, late charges, attorney's fees and costs of suit herein incurred.

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Dated: September 21, 2007

By:. STAN D. BLYTH, Attorneys for RENTAL SOLUTIONS, LLC

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