Request for Judicial Notice

Cal. Super. - 5th Dist.April 16, 2013

E-FILED 12/18/2017 1:52 PM FRESNO COUNTY SUPERIOR COURT By: K. Daves, Deputy \OWQQ 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dirk B. Paloutzian #173676 dpaloutzian@bakennanock.com J. Jackson Waste #289081 jwaste@bakennanock.com BAKER MANOCK & JENSEN, PC 5260 North Palm Avenue, Fourth Floor Fresno, California 93 704 Telephone: 559.432.5400 Facsimile: 559.432.5620 Attorneys for Defendant and Cross-Complainant, BUTLER CONSTRUCTION & RENOVATION, INC., a California corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO ED HUFF, AS TRUSTEE OF THE CASE NO. 13CECG01 187 CINDERELLA LIVING TRUST, REQUEST FOR JUDICIAL NOTICE IN Plaintiff, SUPPORT OF MOTION FOR JUDGMENT 0N THE PLEADINGS; 0R v. ALTERNATIVELY TO CONTINUE TRIAL BUTLER CONSTRUCTION & RENOVATION, INC., a California Judge: Hon. Donald S. Black corporation; and DOES 1-25, Date: January 11, 2018 Time: 3:30 pm. Defendants. Dept: 502 Action Filed: April 16, 20 1 3W Trial Date: February 13, 2018 Defendant asks, pursuant t0, without limitation, Evid. Code §§ 450-452, that this Court take judicial notice of the following: 1. Plaintiffs operative First Amended Complaint, filed in the above-entitled civil action on or about September 9, 2013, a true and correct copy 0f which is attached hereto as Exhibit "A." 2. The order dated January 9, 2015, signed by Cindi A. Christensen, Registrar of Contractors, adopting the Proposed Decision (which is attached) rendered by Administrative Law Judge Marilyn A. Woollard from the proceeding titled 1n the Matter offhe Citation Against: 2082667v1 / 18058.0001 REQUEST FOR JUDICIAL NOTICE IN SUPPORT 0F MOTION FOR JUDGMENT 0N THE PLEADINGS \OWQONU'IAUJNH [\JNNNNNNNNHHHt-nr-Ar-tr-Imp-tn- WQQM¥WNHOOWQQM4>WNHO Butler Construction & Renovation, Inc. (Citation No. 2 2013 101 1; OAH N0. 2013 120946), a true and correct copy of which is attached hereto as Exhibit "B." DATED: December E, 2017 BAKER MANOCK & JENSEN, PC Dirk B. anutzian J. Jackson Waste Attorneys for Defendant and Cross- Complainant, BUTLER CONSTRUCTION & RENOVATION, INC., a California corporation 2082667v1 / 18058.0001 2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS; 0R ALTERNATIVELY TO CONTINUE TRIAL EXHIBIT "A" 10 ll 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Douglas M. Larsen, #142852 Travis R. Stokes, #225122 FISHMAN, LARSEN, GOLDRING & ZEITLER 71 12 North Fresno Street, Suite 450 Fresno, California 93720 (559) 256-5000 (559) 256-5005 Attorneys for Plaintiff THE CINDERELLA LIVING TRUST SUPERIOR COURT OF CALIFORNIA, ED HUFF, AS TRUSTEE OF THE CINDERELLA LIVING TRUST, Plaintiff, VS. BUTLER CONSTRUCTION & RENOVATION, INC., a California Corporation; and DOES 1-25, Defendants. BUTLER CONSTRUCTION & RENOVATION, INC., a California Corporation, Cross-Complainant, VS. ED HUFF, AS TRUSTEE OF THE CINDERELLA LIVING TRUST, and ROES 1-10, inclusive, Cross-Defendants. ) H VUWUVWWWVWVWW COUNTY OF FRESNO Case No.: 13CECG01187 FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT, NEGLIGENCE AND FRAUD Complaint Filed: April 16, 2013 Cross-Complaint Filed: June 17, 2013 Trial Date: October 6, 2014 Fl RST AMENDED COMPLAINT 10 lZ 13 14 15 16 l7 l8 l9 20 21 22 23 24 25 26 27 28 COMES NOW, ED HUFF AS TRUSTEE OF THE CINDERELLA LIVING TRUST (“Plaintiff") complains and for causes of action alleges as follows: PARTIES AND VENUE 1. Plaintiff is now, and at all times mentioned in this complaint was, a living trust organized under the laws of California and the owner of that certain real property located at 10851 N. Maple, Fresno, California. 2. Plaintiff is informed and believes and on that basis alleges that, at all times mentioned in this complaint, Defendant Butler Construction & Renovation, Inc. (“Defendant”) is and was a corporation organized under the laws of California and doing business in Fresno County, California, and that Defendant is in the business of general contracting/remodeling work. 3. Plaintiff does not know the true names and capacity of the Defendants sued herein under the fictitious names of Does 1 through 25, inclusive, and therefore sues them by fictitious names. Plaintiffwill amend this complaint to show the true names and capacities once they have been ascertained. 4. Plaintiff is informed and believes and on that basis alleges that, except where otherwise alleged, each of the Defendants herein are and at all times relevant hereto were the agent, employee, and/or representative of the remaining Defendants and were acting at least in part within the course and scope of such relationship, and each Defendant ratified the acts of its agents. 5. Plaintiff is informed and believes, and thereon alleges, that this Court is the proper venue for the tn'al of this action because the contracts that were entered into and the wrongful acts sued Upon took place in the County of Fresno, State of California; and because the real property that is the subject ofthis action is located in the County of Fresno, State 0f California. 2 FIRST AMENDED COMPLAINT 10 ll 12 l3 14 15 16 17 18 l9 20 2] 22 23 24 25 26 27 28 BACKGROUND ALLEGATIONS 6. On or about August 16, 2012, Plaintiff and Defendant entered into a written contract for a balcony project on Plaintiff‘s house. (A true and correct copy of this balcony agreement is attached hereto, and is incorporated herein as thoggh set forth in full, as Exhibit “A.”) On or about August 3 1, 2012, Plaintiff and Defendant entered into a second written contract for a masonry project regarding the installation of a fence, including concrete footing, on the real propeny owned by Plaintiff. (A true and correct copy of this masonry agreement is attached hereto, and is incorporated herein as though set forth in full, as Exhibit “B.”) 7. The balcony proj ect was defectively performed by Defendant in that the arches on the balcony were improperly constructed, the “can lights” were not properly replaced afier Defendant removed them, and the stucco work was so defective that the walls could not be prepared for paint. Despite the fact that it would have only taken a minimal amount of time and effort to remedy the defective work, Defendant simply walked away from the unfinished balcuny project and refused to complete the contract over Plaintiff‘s objections. As such, Plaintiff had to hire another contractor and expend additional funds to finish this balcony project. 8. After the Complaint was filed in this matter, Plaintiff obtained a copy of a citation issued by the Contractors State Licensing Board against Defendant regarding the balcony project. Specifically, the citation states that Defendant “[wlillfully departed in a material respectfrom accepted trade standardsfor good and workmanlike construction as foflows: 1. Installed the stucco with a rough, unfinished surface. 2. Can lights were reinstalled offcenter. 3. The arches’ radiuses were distorted.” (A copy of the citation issued by the Contractors State Licensing Board regarding the balcony project is attached hereto, and is incorporated herein as though set forth in full, as Exhibit “D.”) 9. This citation issued by the Contractors State Licensing Board further found that Defendant violated sections 7109a, 7113 and 7159.5 of the California Business and Professions Code and issued Civil Penalties against Defendant and in favor of Plaintiff for a total amount of $1,000.00 regarding the balcony project. (Exhibit “D.”) 3 FIRST AMENDED COMPLAINT ll 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. When the above disagreement between the parties arose regarding the defective balcony work in or about Octpber 2012, Defendant instructed its subcontractor working on the masonry project to leave the premises and refused to complete this contract. Thus, Defendant repudiated the parties’ masonry contract and failed to substantially perform its contractual duties. Consequently, Plaintiff was forced to hire another contractor to finish the masonry project. 11. After the Complaint was filed in this matter, Plaintiff obtained a copy of a citation issued by the Contractors State Licensing Board against Defendant regarding the masonry project. Specifically, the citation states that Defendant “[wlillfully departed in a material respectfmm accepted trade standardsfor good and workmanlike construction as follows: 1. Failed Io build the CMU block wall. 2. Failed to build the columns.” (A copy 0f the citation issued by the Contractors State Licensing Board regarding the masonry project is attached hereto, and is incorporated herein as though set forth in full, as Exhibit “E.”) 12. This citation issued by the Contractors State Licensing Board further found that Defendant violated sections 7109 and 7159.5 of the California Business and Professions Code and issued Civil Penalties against Defendant and in favor of Plaintiff for a total amount of $1,000.00 regarding the masonry project. (Exhibit “E.”) l3. As a direct and proximate result of Defendant’s wrongful actions described above, Plaintiff has been forced to incur attorneys’ fees in trying to resolve this dispute with Defendant. Under paragraph 14.1 of both written contracts, the prevailing party is entitled to reimbursement of its attorneys’ fees. (See, Exhibits “A” and “B.”) FIRST CAUSE 0F ACTION (Breach 0f Contract) 14. Plaintiff refers to and incorporates by this reference the above paragraphs as if fully set forth herein. 15. Plaintiff and Defendant entered into written contracts regarding remodeling work to be performed on the balcony of Plaintiffs house and a masonry fence to be erected on Plaintiffs real property as detailed above and described more fully in Exhibits “A” and “B.” 4 FIRST AMENDED COMPLAINT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2B 16. Plaintiff has performed all conditions, covenants, and promises required on its part to be performed in accordance with the terms and conditions of the written contracts, except to the degree excused by impossibility of performance. 17. Beginning on 0r about October 2012, Defendant breached the parties’ agreements by failing to complete either the balcony or the masonry project in a proper and workmanlike manner. (See, Exhibits “D” and “E.”) As a result of Defendant’s breach of both contracts, Plaintiffhas been forced to pay monies in excess of the contract amounts to properly finish the balcony project and the masonry project. Despite Plaintiff‘s demand for payment, Defendant has not paid the amount owed, or any partial amount thereon. WHEREFORE, Plaintiff demands judgment as hereinafter set forth. SECOND CAUSE OF ACTION (Negligence) 18. Plaintiff refers to and incorporates by this reference the above paragraphs as if fully set forth herein. 19. Throughout Defendant’s work on the masonry project it represented to Plaintiff that a surveying company had inspected the property prior to the installation of the concrete footing in order to ensure that no encroachment occurred onto the neighbor’s property. However, after Defendant abandoned the masonry project, Plaintiff hired a licensed surveying company to inspect the concrete masonry unit fence that had been installed. The surveying company found that the concrete footing installed by Defendant encroaches onto the adjoining neighbor’s property from approximately 6 to 12 inches. (A true and correct copy of the surveying report is attached hereto, and is incorporated herein as though set forth in full, as Exhibit “C.”) 20. Moreover, after the Complaint was filed Plaintiff had another survey done of the remaining portions of the wall erected by Defendant. This supplemental survey revealed that additional portions of the wall erected by Defendant encroached onto the property of Plaintiff’s other neighbor. (A true and correct copy of this additional survey 5 FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 l9 20 2] 22 23 24 25 26 27 28 report is attached hereto, and is incorporated herein as though set forth in full, as Exhibit “F.”) 21. Plaintiff is informed and believes, and thereon alleges, that Defendant negligently constructed/installed the concrete footing in a manner that encroaches onto the adjoining neighbors’ properties. Defendant’s negligent act of constructing/installing the concrete footing onto the neighbors’ properties has resulted in property damages to both Plaintiff and to Plaintiff’s neighbors. Plaintiff s neighbors have been damaged in that the concrete footing installed by Defendant encroaches onto the neighbors’ properties. Plaintiff has been damaged in an amount to be determined at trial in that Plaintiff will be forced to demolish the entire fence, remove the concrete footing from the neighbors’ properties that Defendant installed, and then re-install the concrete footing onto Plaintiff’s property in order to properly re-build the fence. 22. As a direct and legal result of Defendant’s negligence, Plaintiff has incurred, and will continue to incur, legal fees and related expenses. Plaintiff does not know at this time the exact amount of expenses that have been incurred and that will be incurred in the future. WHEREFORE, Plaintiff prays for relief as set forth below. THIRD CAUSE 0F ACTION (Common Law and Statutory Fraud) 23. Plaintiff refers to and incorporates by this reference the above paragraphs as if fully set forth herein. 24. Plaintiff brings this cause of action as a common law fraud cause of action, as well as under the California Civil Code sections 1709 and 1710 against Defendant for fraudulently inducing Plaintiff to pay monies for a fence and/or concrete footing that was not properly erected on Plaintiff‘s property. Throughout Defendant’s work on the masonry project it represented to Plaintiff that a surveying company had inspected the property prior to the installation of the concrete footing in order to ensure that no encroachment occurred onto the neighbor’s property. However, after Defendant abandoned the masonry project, Plaintiff hired a licensed surveying company to inspect the concrete masonry unit fence that had been installed. 6 FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 l7 18 l9 20 2] 22 23 24 25 26 27 28 The surveying company found that the concrete footing installed by Defendant encroaches onto the adjoining neighboring property from approximately 6 to 12 inches. (Exhibit “C.”) 25. Moreover, after the Complaint was filed Plaintiff had another survey done of the remaining portions of the wall erected by Defendant. This supplemental survey revealed that additional portions of the wall erected by Defendant encroached onto the property of Plaintiff’s other neighbor. (Exhibit “F.”) 26. Plaintiff reasonably relied to its detriment on the false statements and representations made by Defendant; and Plaintiff would not have paid nor continued to contract with Defendant if Plaintiff had known the truth; namely, that the concrete footing installed by Defendant encroached onto the neighbors’ properties. No reasonable person would have continued to pay and/or or contract with a company such as Defendant who purposely misrepresents that a surveying report was completed and that the concrete footing was installed on the proper property, and Plaintiff would not have paid Defendant under the contract if Plaintiff had known the truth. 27. Defendant’s actions alleged in this cause of action and as described above, diréctly and proximately caused Plaintiff economic loss of monies paid to Defendant under the written masonry contract. In addition, Defendant’s wrongful act of representing that the concrete footing was properly constructed/installed when, in reality, the concrete footing encroaches onto the adjoining neighbors’ properties, has resulted in damage to Plaintiff in an amount to be determined at trial in that Plaintiff will be forced to demolish the entire fence and re-install the concrete footing on Plaintist property in order to properly re-build the fence. 28. As a direct and legal result 0f Defendant’s wrongful conduct, Plaintiff has incurred, and will continue to incur, legal fees and related expenses. Plaintiff does not know at this time the exact amount of expenses that have been incurred and that will be incurred in the future. 29. Plaintiff is informed and believe, and based upon such information and belief alleges, that the aforementioned actions were undertaken and performed by Defendant Willfillly, maliciously, fraudulently, with an intent to oppress Plaintiff, and in conscious disregard of the 7 FIRST AMENDED COMPLAINT 10 ll 12 13 18 l9 20 2] 22 23 24 25 26 27 28 rights ofPlaintiff, and by reason thereof, Plaintiff is entitled to an award of exemplary and punitive damages in a sufficiently large amount to punish Defendant, deter future conduct by Defendant and others behaving like it, and to make an example of Defendant. WHEREFORE, Plaintiff prays for relief as set forth below. PRAYER FOR RELIEF 1. For judgment because of damage including, but not limited to, property damage in the principal sum to be determined at trial; 2. For interest on the principal sum at the highest rate allowed by law; 3. For an award of punitive and/or exemplary damages; 4. 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PEACH'STq.:£-2 n czows c‘it 9J6 H e 559.272.4300 - CA no.4: 82.5776 mm‘flfi: mum“. mu ’ nmrmlurmmmgmmbmmfi ‘- nmmfllflm ammut flldmmmrmw ‘ P.5 EXT BIT B REMODELING (CONTRACT Tms AGREEMENT, MADE m; OI? “Aususr 3 1, 2012" Between the Owners: Cinderella Living Trust 10851 N. Maple Ava Fresno CA 93730 And tho Contractor: Butler Couslmcliou £5 Renovation, Inc. 755 N. Peach, Suite E-Z Clovis, CA. 93611 For the Project: Musonry ARTICLE 1 . CONTRACTOR Docuwmwrs 1.1. TI“: cuulmut documanis consist ufllu’s umucment, um! nukes lnkun by Tim ButlerlBuflcr Cnuslmuliun S: Renovation, Inc. cm "ng1 lg, 30 l3" during nn lniiiul nwcling \viill "Ci ldglcl u L'sxigu Tflfl“ ta discuss lhu hams Involved ln the balcony mmdclpwjuct ut'flmmplg Avg figmu Q5 93193". Gancufl unndiliunu, conslmcliun ducumc nu. specifications, nlluwnnccs. Innarmnfiou (tisclusum sintcment. n11 addcndn or mudiflcntlonn issued and agreed tn by hull: parties shall 1m nddcvl to lhIs ccmrnct us lhcy m‘a complutcd. Thuso cnntvnct documcnlu represent lho entire ugmenmm of both purllea uml supersede uny prior urul m' \vrlltcn agreements. ARTICLE 2. Scorn on WORK 2.1 '11“: Couhruclm: agrees to remodel liw ubuvo mmtionedprajcct int Frame). County, _ and 5mm ut’(CA) according (u tho ultunh:d"Scupo ufWur " nukes Inken " \ l 1r " ARTICLE 3. Tum: on COMPLETION 3.1 . The nuuro ' lair: conuncnuumcul ut‘mls projectslmh ho “Auglgstal. gs] lg", Thu apptuximnte completion} flu: purulent shall bo' gctuhcr 1'2 31312." however pnssllfic dnlny In dul‘wnw m- unusualwnndmmight delay or uthcnwsc nfl‘cct H1: numpletlo I dntc. The conh'actcxccmluudato 31m“ lac“ I u 2 " 3.2 [-‘uiiuru uECuntractor without lawful cxcnau lu substnnflnlly mmmcncc \vnrk within. 10 days fi'um Ill: uppwximntu dale specified in (his conlulct ls n. vinhalion oflhc Cunmmmr: Liccnsu Lluv. Suhsinnlinlcommencement of prajcctshul‘i bu deemed to bc'. ‘ZM gving n? gnu l] [[11]; [gum " lnilinlud hy Owntfllfiflw Iullinlcd by Caulrnatm- BUTLER CONSTRUCTION & RENOVATION INC. 755 N. PEACH STE. E-2 - CLows CA 93611 - 559.272.4800 - CA Luci: 325776 _._P-. r____,__------'___.____.------ ARTICLIM THE Comma PRICE 4-1 Thu Remodeling Projectwlll. inuludu n11 items described in the "Scope oEWozk" attachment. Total cast ofum job l5 not to meadmm Deducllun: will bu determin ad once thn scups emu mm my Ea detannlnad. 'flwse deductions \vfllba mkm fmm tha final pnymwt.“ 4:2 The Ownor and the Coultectnr acknuwzcd an that I1“: Owner wing 3y a sum of 10% of 111a co tum: prim upon 51313111? of (his comma! andbufore wnstmalion beglna nu a deposit and part of cunstmcllon cnotdinatluufees for the pro ac . ARTICLE 5 Pnoamss PAYMENTS 5.1 Tho Ownerwill make pnymnnls to tho Conunctur an specified bnlow: 5.2 Payment Schedule: ' lipaymcnt of 10 % Annual 22. 20 12 mm 1 payment of 3W. Augufl 24, 2012' filflofifil sfigaymmufams Snpnmburmmz W Final paymentofiws atflnal Completion (sec. 15.2) 5.3 The 0mm- ahnll mnlm pnynmmis to Cunhnaturwimin’f days am: rcqunatby Contractor. Should tho Owner fail to make payment, Contractor may charge upcnalty of 1.5% pm- munlh uponlllo mpnidnmountuntll paid. 5.4 prnymcut i5 nut mama by Ihu Commuter withfu [Hays aftca'dcliwry ofpnymcnt demand l'ot- work smisfaciurfly completed. a onttuctor shall have Lhu rlghuo stop worker tcmfinat- ma ca mm: at E1 [3' option. Termlualian by Cunuaclorundu- lhepmvialonn ufihio pmgraphshallnot rallava 131a owner ofrhe ubflgailons ufpaymcnta (o Confluutur for that pmof lite work pummed prim: to aunt: termination. Terminafipn by Owner undertlw provisions of this paragraph shall nut relieve the Owner uftho obligaliona nfpaymunttu Conkactor fur that part ofma wurk perfumed prior Io such \ermlultluu. . ARTICLE 6 DUTIES 0F THE CONTRACTOR 6.1 All work shallbo in accordanca ta the ptovlsinna ofihe plans and spacificutluns. All systems shall bcin good worldng utder. 6.2 All work 31m“ be complewdln aworkmnn like manner, and shall comply wkh all applicablonatlonal, slate and local building coda: and lawn. 6.3 All work shall be puforpmd by licanscd individuals to perform their said work. nu outlined by law. 6.4 At me Owncr’n cost. WWW ifneuessary for tho wnrkto be completed. 6.5 Contractor shun remove all coustrucllon dabxll and have the project. in a bruom nlcun condition. 6.6 Upon inflsl'kutnry puymant hams made for any portion oflhe work parfon-ne d, Commuter shall mmish u full mdunmndiflunal release fium any uIaIm or mechanic's Hen fox Illa: gnrtIun ofthe work tn: whichp nyment has been made. 6.7 Elasmmerlc Paint tn match [ha existing color lnlu’ITud by Owncrfi) W Inltrl'lcfihy Cnnvlclm ARTICLE 7 OWNER 1.1 Thu Owner shall communicatu with subcontractors only through lhe Contractor. 7:2 Thu Owrnur will nut assumo my llahllity or responsibillly, nurhavn control aver or chargo ofeonalruclion manna. mgmads, muhniqucs. anuencoa, procedures, m- fur safhty prcuautluns and programs In cmmectlon with tho project. amca lhasa m solely tin: Cnnlracnor'a responsibility. ARTICLE 8 INsURANCE 3.1 Tho Ownerwin purchasu and nmintaln propcfly lusuxancn to tho fill] and lnsumble Value of tho project, In cuss of fix}, vandalism. malloioua misnhiufnr other lnslwcwss thatmay occur. 3.3 BC&R wlll. carry Ind maintain n Commercial Gnnamlldnbfllty Policy throughout 1h: emit: building process. Tho nmntyoiicy ta insured through Finnunlnl Faclfiu: Insurmca for an amount DES”! 00.000. Further mfumaflon wm‘he pruvidcdto the own :r upon request. ARTICLE 9 GENERAL PROVISIONS 9.1 [f commons m unconnmad nt lhu nonstruoflonalta which nru nubsurihcu o:- ulhuswisn concealed physical conditions or unknown physical cntldlllons ofan unusual nature, which diffam amen}! {tom those orfiinnr‘lly found to exist and ganeraml magnmd as Inherent in construction unliviflas, 111a Ownur \v Ill promptly imcatlgnt: such cunditiorm and, Inlay £11m- malnrlally and cause m lacunae or deems: in the Conlmulot‘a coat of, main: (lma required for. parfurrnanue army part of tlmwork, wlIl negotiate with tho Contractor m :quluhle adjustment in 11m contract sum. cunb‘not time or both. . ARTICLE 10 mmous MATERIALS, WASTE AND ASBESTOS 10.1 Bnlh panics nyc: that dealing wlll: hazardous matcrlah. waste ur nsbcston :cquim speciallzed taming, processes. precautions md llcunsca. “urchin, unless lhu scope uflhla ayumunt Includes 1110 spcclflo handling. disturbance. removal ur mayor! nllan thmrdaun materms. wasta or nabfilou, upon dlscamy nrauuh hummus materinis the Cantuntor shallnafifl the Omar lmnmdlmly and allow tho Ownar In contractwith aptnpuly limmcd nnd qualifizd hummus materials contractor. ' ARTICLE ll ARBITRATION 0F DISPUTES 11.1 Any controversy u: cialm 3:131:13 nut afar relatingta this contract. or the breach themof, shall bu settlud by arbitration administurcd by mu Amurlm Arbitration Association under its Construction Industry Arbifmiun Ruin, and judgment an. thu award ramimd hymn ubiu-ntaru) may ha entered [n any noun havingjurhdicuon thereof. 11.2 NDTICEI BY INITIAHNG TRIS SPACE BELOW YOUARE AGREEING TO HAVE ANY DISPUTE ARISING OUT 0? THE MATTERS WGLUDED Wm ARBITRATION OF DESPUTES PROVISION DECIDED “NEUTRAL ARBITRATIDNAB PROVIDED BY CALIFORNIA LAW ANDYOU ARE GIVING UP ANYRIGHTS YOU nflGflT EDSBESS T0 HAVE TEE DISPUTE LITIGATED 1N A COURT 0F JURY TRT . BY mlTlALmG IN THE SPACE BELOW YOU ARE GIVING UP YOUR DEICIDALRIGHTS T0 DISCOVERY AND MERLE, UNLESS THOSE RIGHTS ARE SPECWICALLY INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION. [9' YOU REFUSE TO SUBMIT TD ARBITRATION AFTER.AGREEING T0 THIS PROVISION, YOU MAY BE COWELLED 1‘0 ARBITRATE UNDERTHE AUTHORITY 0F THE BUSINESS AND PROFESSIONS CODEOR OTHER A??MCABLE LAWS. YOURAGREEMNT TO IBIS ARBITRATION PROVISION IS VOLUNTARY. [nlllllfi by Own u(u}: W lnltfliad by Cuannwr .a sax: - WE HAVE READ AND UNDERSTANB THE FOREGOING AND AGREE TD SUBMIT DISPUTES ARISING ‘ OUT 0F THEMATTERS INCLUDED m THE ‘ARBITRATION OF DIS? : ’ NEUTRAL ARBITRATION. UTEI PROVISION T0 Euslum and Profustnns Coda Sectlnn'lm (Wdum h. In c.1311“ 1mm, Ln mm; |u.pn|u| mm." bumcown nr In cnnlmllng red print In ll loan lpeiulmnm hnldl'hua mun.) I agree to arbitration I agree to arbitration ‘ (billaln nl mum) LIniIlulI n! Couumor) ARTICLE 12 WARRANTY 12.1 At me comptullun nfthix project, Cuntautor shall axauulu nu instrument to Ownerwmmllng tha pmjcct for one year against detects inworlu'nanship or malerlals milked. Thu mariufnntuxera wmanty'wili pravull. No legal auflnn ufuny kind rulafing 10 tho project, project p arthrmnco or Ihla contract shall 1: a initlaml by either party u gains: the umarpnrty aflnr on: year beyond onmpielion ohhu projcct or cessation ofwork. , Arum 13 Termina’tton or Contract 13.1 Should Ilsa Ownct or Contractor fail lo carry nut this conflnct, with all ofits provisions, the following options nnd allpuiufions shall apply: 13.1.1 If the Ownzr or thn Contractor shall dnfault on the contact, 1h: ncn-dcfauiliug party may dualm the contract is in dufhult am! proceed nailmtlhe defiulflng party for lhu muuvmr of all dnmagcs Incurred us n mult of said breach ufconlml. including reasonable attornuy‘s flees. mine cum oh defaulting Owner, tho Earnest money hereinmnnllonud Illnll bu applied to (ha legnlly ascertained dnmugos. 13.1.2 1n tho event of a dammit by lhu Owner or Contractor. tho non-defuulting party may stale his intention to comply with 1h: cnntraut and primed {hr specific perform ance. 13.1.3 lath: ma 0E3 damning Owner, Ibo Contactm- mmy accept, as his npuun tho enmeatmunuy as shown herein as liquidatud damages. should carries! menu}! no cuvm'flle expenses to flute. flu: CunLractor may makean tn the Owner ihr all work oxauuled and ibr puma loan \vilh respect lo equipment, malarials, tools, aunshuuflon equiprrwnt and mschinny, including maunnblo ovarhud. profitmd dnmagca nppflcnbla lo Illa property loss the umast moucy. ARTICLE 14 A'rmmmv Fans 14.1 In the want ofamt atbllrnltuu er liflggflan xelnllugto the project, prqlnnt performance or this contract, tho prevailing pnrty‘shull ha euflfled In reuonnbln nflomny m, costs and mums. ARTICLE 15 Acclaim»:cm or COMPLETION 15.1 Upon cumptetion. 111° project shall be inspected by tha me and Ihn Contractor. and any repairs necessary to comply with um contract douumeum shall ha listed 11y tho Comm“. Thu items will be discussed and agreed upon by bnthpnrlio: and a copy presented to the Omar for hisihnr mmd s. 15.2 Once all thump nits nnihu list era commuted. Iho Dnnlmclur willl :nviow aflworkwith tho Owner and confirm that all work was donoto blame: snll motion. Ifso. tho 0mm will sign flm emmunn list as ncccpfinnsa ofcnmplcfion. The final payment, not to embed $14,242.41. will he due upon signing. Inililld by 0wnel(:): Kniu'nlcd by Connclou Atu‘lcus 16' FILING A Commmr 16.1. jurisdiction t'om‘yem's o dumclsmust heml’cuctllul'llcnc i W (Wriltcn luntl 5L -po l. CoutracturSIgu, ura Cuntmclars m‘c required by inw Io bu 'Itcensud nnd wgulnlcd by “1e Ccmmetura Stale Llccnsc Board. which has lu investigate cunaplalnts “gums: contractors lfu cununlnint regaming n gamut nut or omlsslon ls filed \vhhln t‘ Hm dntc ofllm alleged viulnllun. A cumulnim mgmling u Intent act 01' nn omission mrinlning lo slnwlnml be I'Iludwilhin 10);». s aflht: duh: u‘f lilo alleged violation. Any questions cunccruing tho :onh’nclm‘ um)! u 101's Stale Licensing Bnurd. Post Ol'ficn Bax 7.6mm, Sucmmcuio, Cnm‘nrnin 95326. c). fie“ ”I 0w; Si nature Ownarmuy annual this lmnmction nhmy limo prlur lu midnight nf (he third business :luy aflcr lhc dale of lhia hunsucfiun. Sac a(luulmdNufico ofCan ucllnlinu fmm l'm- m1 cxplanution of thin rlght. Inillnln'tlw Dwnulm: [nitlnlcdhy Cnmmunfififi BUTLER CONSTRUCTION 8t RENOVATION INC. 755 N. PEACH STE. LLZ - CLOVIS CA 93611 - 559.272.4800 a CA LIC# 825776 r.____----....‘ "‘_._____-------‘_.--____---'.-- ___------ um- -. EXHIBIT C DALE G. MELL 8L ASSOCIATES ENGINEERING 3a SURVEYING SERVICES ERY AVENULI ' FRESNO, CALIFORNIA 93703 - I‘X-I (559) 7.924046 - FAX (559) 251-9220 November 21, 2012 Steve Onnj'mn 10851 N. Maple Ave. Fresno, CA 93730 Ref: Lucnt'ton oi“ CMU Block Fence @ 10851 N. Maple Avenue OurProjcot # 12-092 Mr. Ouujian, We lmvo completed um' fiald surveys uud calculations to determine the lo cation of a. concrete masonry unit (CMU) fence and um' findings axe ns follows: 1. The south face of the CMU fence umrsest to Maple Avenue wns found to 1w 0.043 (1)2”) north uf the aim south. boundary. ‘ 2. The south mac 0E the west and of [J16 CMU fiance East, near the northwest comer of tnx parcel 577-23063, was foumltu bu 0.3' (3 W') 1191111 of the site south buuudnry. 3. The two (2) foot square CMU column constructad. 0.5' A: cast and 0.5‘ south affine site east; and south. boundary, resulting in an eaumncbmant onto €116 adjoiuers pmpwy (AFN 577-28063) 4. The east flue of {ho 1.101111 end of‘flm CMU fence south, near tho northwest comer oftnx parcel 571280-33, was Ebuucl to Ina 0.08‘ (1") west of the site east boundary. 5. Th6 east face nfthe south end o2 the new CMU fence conshuctlon connecling to lho existing CMU fence was found to bu 0.]9’ (2 V4“) west n'f flu sits wast boundary. 6. The: concrete roofing for the above referenced CMU fence encroached on to the ndju‘umts property fimn 6" to 12" mom or less. In conclusion we found the CMU fwcc to be located all within (Lu: subject site boundary; the concrete footing and 2 foot square column. encroach onto the atljoiuets property from 6“ l'o 1?.” mom or less. Please call if you lmvc any questions. Du1e G. Men, rLs 4323 DMA/tj ..__.4_...._... .__..w. EXH IT D Aa CONTRACTORS STATE LICENSE BOARDCITATION ENFORCEMENT SECTION STATE 0F GkUFORNIA y . . 12601 East Imperial Hwy.. Sulle 600 Edmund G. Brown Jr., Governor N ' E Norwalk. CA 90850 (662) 345-7650 FAX (562) 466»6075 www.cslb.ca.gov Citation No.:2 2013 1011 To: Butler Construcflon and Renovation lnc. 755 N. Peach E-2 Clovis. CA 93611 License Number: 825776 Owner of Proiect: Cindereila Living Trust Location of Occurrence: 10851 N. Maple Ava. Fresno. CA 93730 Approximate datafs of occurrences: 08h 6/2012 An invastigatlon of your contracting activity at the location identified above has bean conducted by the Contractors State License Board. Thls cltation ia being Issued In accordance with the Business and Professions Code Section 7099, for vioiatlonfa which were iound during ma invastlgafion. This citation details each violation charged and orders of correction where applicable. IT IS YOUR RESPONSIBILITY TO READ THE ENTIRE ClTATION. Unless contested on or before 0750/2013 thls cltatlon shall become ailnal cider of the Heglstrar on 07/301201 3; compliance with me ordan's of correction Is due on or before 07/30/201 3; and ma $1 000.00 clvll penalty assessment ls due on or before 07l30f201 3. Payment of clvll penalty should he made to tha Registrar of Contractors by cashler‘s check 0r money order. Pleass inciuda the citation number on the payment. Any payment ordered to the project OWner should be paid to himlher directly. You. the licensee, are responsible for notifying the Registrar of Contractors when correction and/or restitutlon is made. You are responsible for providing a reieasa irom the project owner, or other proof of correction/restitutlon. Proof of correctlonfresfilutlon must be received at the address on the first page of this document no later than five (5) working days after the correctlon due data. Please Include the citation number on all correspondence. FAILURE TO RESPOND TO THIS CITATION WILL RESULT IN FURTHER DISCIPLINARY ACTION AGAINST YOUR LICENSE AND ANY OTHER LICENSE YOU ARE ASSOCIATED WITH. '7, 9 r! 3 h___,__H___-.--4 DATE FOR: Stsphan . é d , ReglstrarniComractors Contractors Sta a Board WITEM NO: 1 SECTION VIOLATED: DESCRIPTION 0F VIOLATION: ORDER OF CORRECTlON: TIME TO CORRECT: ClVlL PENALTY: WITEM NO: 2 SECTION VIOLATED: DESCRIPTION 0F VIOLATION: ORDER OF CORRECTION: TIME TO CORRECT: CIVIL PENALTY: 71 09a Willfully departed In a material respect from accepted trade standards for good and workmanlike construction as follows: 1. Installed the stucco with a rough. unfinished surface. 2. Can fights ware relnstalled off center. 3. The arches' radiusas were distorted. None 07/30/201 3 $350.00 7113 Failed in a materlal respect 10 completelcarrect the project for the prlce stated 1n the contract; the owner wasiwill be requlred to secure the services of other contractors to compla‘e/correct at a cost of $2,242.00 In excess of the contract price. Pay tha sum of $2,242.00 to Richard Ounjlan, Cinderella Living Trust None $150.00 Page 2 WITEM N0: 3 SECTION VIOLATED: 7159.5 DESCRIPTION 0F Violated the provisions ofthe law regarding home Improvement VIOLATION: contracts. subsection/s: (3) The down payment received exceeded either one thousand dollars ($1 .000). or 10 percent 0f the contract amount, whichever '15 less. ORDER 0F None CORRECTION: TIME T0 CORRECT: None CIVIL PENALTY: $500.00 Page 3 EXH IT E CITATION ENFORCEMENT SECTION - STATE OF CALIFORNIA 125m East Imperial Hwy.. sulle 600 Edmund G. Brown Jr‘. Governor Notwalk. CA 90550 (562) 345-7650 FAX (562) 466-6075 www.cslb.cagav CONTRACTORS STATE LICENSE BOARD x Citation No.22 2013 1010 To: Butler Construction and Renovation Inc. 755 N. Peach E-2 Clovis. CA 93611 License Number: 825776 Owner of Project: Cinderella Living Trust Location of Occurrence: 10851 N. Maple Ave. Fresno, CA 93730 Approximate date/s oi occurrences: 08/16/2012 An Investigation of your contracting aciivlty at the Iocation ide'ntified above has been conductld by the Contractors State License Board. This citation i3 belng Issued in accordance with the Business and Professions Code Section 7099, 1m vlolatlonfa which were fou nd during the investigation. This cltatiun details each violation charged and orders of correction where applicable. IT IS YOUR RESPONSIBILITY TO HEAD THE ENTIRE CITATION. Unless contested or: or before 07i301201 3 this citation shall become a final order of tha Registrar on DTI3OIEO1 3: compllance with the ordarls of correctlon is due on or before NIA; and the $1 000.00 civil penalty assessment Is due on or before 07130.!201 3. Payment of clvil penalty should be made to the Raglstrar of Contractors by cashler's check or money order. Please include the citation number on the payment. Any payment Ofderad to the project owner should be paid to him/her directly. You. the licensee. are responslble for notifying tha Registrar of Contractors when correction and/or restltution is made. You are responsible fur providing a release from the prolect owner. or other proof oi correctionlrestitution. Proof of correctlon/restilution must be received at the address on the first page of this document no later lhan five (5) working days afler the corracflon dge dgte. Please Include the citation number on all correspondence. FAILURE TO RESPOND TO THIS CITATION WILL RESULT IN FURTHER DISCIPLINAHY ACTION AGAINST YOUR LICENSE AND ANY OTHER LICENSE YOU ARE ASSOCIATED WITH. 7’ 7’ 7'3 \0 A / DATE FOR: Stephen P. h , Registrar of Contractors Contractors State i e a Board WITEM NO: 1 SECTlON WOLATED: DESCRlPTION OF VIOLATION: ORDER 0F CORRECTION: TlME To CORRECT: CIVIL PENALTY: WITEM NO: 3 SECTION VIOLATED: DESCRIPTION OF VIOLATION: ORDER OF CORRECTION: TIME T0 CORRECT: CIVIL PENALTY: 71093 Willfully departed in a material respect from accepted trade standards for good and workmanfike construction as foiiows; 1. Failed to build the CMU block wall 2. Failed to build the columns None 07/30/201 3 $500.00 71 59.5 Vlolated the provlslons of the law regarding home improvement contracts, subsectionls: (3) The down payment received exceeded either one thousand do|lars ($1 .000). or 10 percent oi the contract amount, whichever is less. None None $500.00 Page 2 EXHIBIT F m DALE G. MELL 8c ASSOCIATESWi ENGINEERING & SURVEYING SERVICES 2090M wmmw AVENUE‘ PRESNO.CAL1F0RNIA 93703 - PH(559)292,4046 - FAX(559)251-9220 June 24, 2012 Steve Ounjian 10851 N. Maple Ave.- Fresno, CA 93730 Ref: Location ofCMU Black Fence @ 10851 N. Maple Av'enue Our Project ‘Jl 12-092.01 Mr. Ounjism, We have completed our field suweys and calcuialions to determine the location of a cencrete mnscnry unit (C MU) fence and our findings are as fulluws: 1. [q The west face of the 6” wide CMU fence south from the calculated northwest comer of Parcel 3 afParcel Map No. 2673, was found to be 0.5’ (5 1/2”) more or less east ofthe site west boundary. ' The west face of [he 6” wide CMU fence north/south along the west boundary ot‘Parcel 3 ofPurccl Map No. 2573, was found to be on the site west boundary near the southeast comer of Lot 37 ofTrnct No. 5101 In conclusion we found the 6" wide CMU fiance along the westerly boundary to be located well within the subject site boundary at the northwest earner but deflecting westerly as it extended south; also found encronclfing onto the adjoiners properly was a concrete fence footing extending 5“ Io 10” westerly of the west face of the CMU block. Please call if you have any questions. lO 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 PROOF 0F SERVICE CCP §§ 1011. 1013, 1013a, 2015.5 FRCP 5(b) STATE 0F CALIFORNIA. COUNTY OF FRESNO | am employed in the County of Fresno, State of California. I am over the age of 18 and not a party to the within action; my business address is 71 12 N. Fresno Street. Suite 450. Fresno, California 93720. On September 9, 2013. | served the document described as FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT, NEGLIGENCE AND FRAUD on the interested parties in this action D by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached malling list: by placing D the original a true copy thereof enclosed in sealed envelopes addressed as follows: Dirk B. Paloutzian, Esq. Baker Manock 8. Jensen. P.C. 5260 North Palm Avenue. Fourth Floor Fresno, California 93704-2209 X BY MAlL D I deposited such envelope in the mail at Fresno. California. The envelope was mailed with postage thereon fully prepaid. E As follows: I am ”readily familiar" with the firm’s practice of collection and processing correspondence for mailing. Under that pracfice Ii would be deposited with U.S. postal service on that same day with postage thereon fully prepafd al Fresno, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more that one-day after date of deposit for maillng in affidavit. Executed on September 9. 2013. at Fresno. California. X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. D (Federal) I declare under penalty of perjury under the laws of the United States of America that the above is true and correct and that | am employed in the office of a member of the bar of this Court at who direction the service was made. I [i m” Caitlin Grimm V. BUTLER CONSTRUCTION & RENOVATION, INC. CASE NO. 13 CE CG 01187 1 PROOF OF SERVICE EXHIBIT "B" =‘1 j‘]3‘_w_r~r 1'43 3 F; II.mufimfl '/ BEFORE THE REGISTRAR 0F CONTRACTORS CONTRACTORS STATE LICENSE BOARD DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Citation Against: CITATION ENFORCEMENT Butler Construction and Renovation Inc. SECTION 755 N. Peach E-2 Ciovis, CA 93611 CITATION NO. 2 2013 1011 Timothy Butler, RMO OAH NO. 2013120946 License No. 825776 DECISION AND ORDER Respondent ORDER The attached Proposed Decision of the Administrative Law Judge is hereby adopted by the Registrar of Contractors as his Decision in the above-entitled matter. Based on this Decision, the Citation as modified shall become final effective Februam 11 2015. The civil penalty assessment shall become a finai order of the Registrar on the effective date of this Decision; payment of $500.00 civil penalty is due on or before March 11 2015. This Decision shall become effective Februam 11, 2015. IT IS SO ORDERED this Januag 9 2015. I L a Z. - Cindi A. Christensen Registrar of Contractors Contractorertate License Board Stale of California BEFORE THE REGISTRAR OF CONTRACTORS CONTRACTORS’ STATE LICENSE BOARD DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Consolidated Citations Against: Case Nos. 2 2013 1010 2 2013 1011 BUTLER CONSTRUCTION AND RENOVATION, INC. OAH Nos. 2013120945 Contractor’s License Number 825776 2013120946 Respondent. PROPOSED DECISION This matter convened for hearing before Marilyn A. Woollard, Administrative Law Judge (ALJ) for the Office of Administrative Hearings (OAH), State of California, in Sacramento, California, on November 4, 2014. Geoffrey S. Allen, Deputy Attorney General, appeared on behalf of complainant, the Contractors’ State License Board (Board), Department of Consumer Affairs. Dirk B. Paloutzian, Attorney at Law, Baker, Manock & Jensén, PC, appeared on behalf of respondent Butler Construction and Renovation, Inc. (respondent). Timothy Bryan Butler, respondent’s Responsible Managing Officer (RMO), was also present. The parties presented oral and documentary evidence. Following closing arguments, the record was closed and the matter was submitted for decision on November 4, 2014. SUMMARY The Citations for violations of Business and Professions Code] section 7159.5, with related civil penalties in the total amount of $1,000, are affirmed. There was insufficient ' Unless olhenavise indicated, all undesignated statutory references are to the Business and Professions Code. evidence to sustain the remaining alleged vioiations, with related order of correction and civil penalties. FACTUAL FINDINGS 1. On October 9, 2003, the Board issued License Number 825776 10 Timothy Bryan Butler as soie owner. On October 18, 2007, the Board reassigned this license to respondent Butler, a corporation, with Timothy Bryan Butler as RMO. The license is current and is renewed through October 31, 2015. 2. In July of 2013, the Board issued citations to respondent based 0n its construction work on two projects al the same property, located at 10851 North Maple Avenue, in Fresno, California (the property). The property is owned by the Cinderella Living Trust (CLT), which has Richard Ounjian and his wife as its beneficiaries. The CLT, through Mr. Ounjian, hired respondent and executed the contracts involved in these citations. The citations alleged that the Violations described below occurred on approximately August 16, 2012. 3. Citan'on 2 2013 1011 (Balcony Project): On July 9, 2013, the Board issued Citation Number 2 2013 1011(balcony citation) to respondent, for three alleged violations of the Business and Professions Code. First, respondent was cited for violating section 7109, Subdivision (a) (willful departure in a material respect from accepted trade standards for good and workmanlike construction) because: respondent allegedly “installed the stucco with a rough, unfinished surface”; the “can lights were reinstalled off-ccnter”; and the “arches’ radiuses were distorted.“ Second, respondent was cited for violating section 71 l3 by failing to complete the contract for the contract price, which required the owner to pay for another contractor to complete the project at a cost 0f $2,242 in excess of that price. The citation imposed an order of correction, by which respondent was required t0 pay the sum of $2,242 to the CLT/Mr. Ounjian for this violation. Third, respondent was cited for a violafion of section 7159.5 (down payment in excess of statutory limits). The citation imposed total civil penalties of $1,000 for these violations, comprised of respective penalties per violation of $350, $150, and $500. 4. Citation 2 2013 1010 (Masonry Project): On July 30, 2013, the Board issued Amended Citation Number 2 2013 1010 (masonry citation) to respondent, for alleged violations of section 7107 (abandoned project without legal excuse without building the “CMU block wall” and “the columns”); and section 7159.5 (down payment in excess of statutory limits). The citation imposed total civil penalties of $1,000 for these violations ($500 per violation). There were no orders of correction} 5. On July 23, 2013, respondent’s attorney filed a Notice oprpeal regarding both citations. 3 The original citation, which was issued on July 9, 2013, was not offered in evidence. 6. By order dated January 2, 2014, these matters were consolidated for hearing. 7. At hearing, the parties agreed that respondent contested all aspects 0f each 0f the citations. The Board called Richard Ounjian and Steven Lawrence Anderson as witnesses. Timothy Bryan Butler testified on respondent’s behalf. The testimony 0fthese witnesses is paraphrased as relevant below. The Balcony Project 8. The 12,000-square-foot, two-story house on the property has a 390-square foot balcony extending from the master bedroom. The underside of the balcony is the ceiling to the first floor patio, which is shaped by multiple columns connected by arches. There arc can fights inside each 0f the arches for illumination. Before respondent became involved in this project, the balcony‘s floor sloped toward the bedroom. This slope resulted in chronic pooling 0f water and water damage to the wooden beams which were structural components for the patio’s ceiling and arches. When the CLT was negotiating to purchase the property, Mr. Ounjian noticed that the balcony had problems and he observed it had a large opening or crack. The realtor arranged for the seller to set money aside for balcony repairs, and the parties agreed that the seller would chODSe the contractor. Both respondent and Mr. Chapman made bids on the project. Based 0n his much lower bid, Mr. Chapman was selected by the seller to perform the balcony repairs. In the middle of this project, however, Mr. Ounjian realized that Mr. Chapman had not pulled a permit on the project. The CLT terminated his contract and contacted respondent to finish the work. 9. Contract and Down Payment: On August 16, 2012, the CLT and respondent signed a balcony repair/remodeling contract, for a total price of not more than $47,474.70. The contract provided that “. . .the Owner will pay a sum of 10% of the contract price upon signing of this contract and before construction begins as a deposit and part of construction coordination fees for the project.” A four-stage payment schedule was detailed, with the first payment of 10 percent on August 16, 2012, in the amount of $4,747.47. Mr. Ounjian’s August 17, 2012, check Lo respondent in the amount of $4,747.47 was deposited into respondent’s bank account on August l7, 2012. 10. Scope of Work: The contract incorporated the Scope of Work respondent previously submitted to the CLT as a bid. Respondent‘s scope of work included demolition, framing, finish carpentry, electrical, stucco, decking, wrought iron railing, paint and gutters. The following provisions are relevant to this citation: DEMO: ~ Removal 0f all materials from the existing deck surface. - Removal of all stucco where necessary to correct the leakage problem and damage caused by the water intrusion to this point. (This would include the patio ceiling, both sides ofthe arches, and 18” ofthe wall in locations where i1 meets the deck). FRAMINgi: - Labor and materials to correct the insufficient, and in certain places negative, slope of the master bedroom deck. . .. ELECTRI AL: - Removal of all cari lights in the patio ceiling to allow for the demolition and to determine the extent of the damage, if any, the water intrusion may have caused to the electrical systems. - Repair wiring and systems as needed. EE_QQ: - Tie in the existing lath with new lath after the repairs have been made. - Replace the roofto wall flashing with new 6” x 6” flashing. - Install new weep screed a1 the wall to deck locations. PAINT: - Preparation, priming, and painting of approximately 16OOSF 0f elastomeric paint to match the existing finish of the home. In addition, under “Duties ofthe Contractor,” section 6.7 of the contract provided: “Elastomeric Paint to match the existing color.” 11. Written Change Order: Mr. Ounjian had hired a painter to repaint the entire house, except for the balcony. After the contract was signed, Mr. Butler suggested that it made more sense for Mr. Ounjian to use his painter to complete both the house and the balcony. and he offered to credit money back to the CLT for this purpose. Mr. Ounjian agreed that this was a good idea. On September 13, 2012, Kathy Ounjian signed the Change Order to the CLT Balcony Repair Contract, “eliminating painting from the scope of work.” The change order revised the total contract price downward by $6,922.50, calculated as follows: “Deduct Gutters (825.00), Deduct Painting Cost (4,500.00), Deduct Contractors Fees 30% (1597.50).” Based on the change order, the original final contract payment 0f $14,242.41 was reduced to 37,3 19.91. 12. Final Payment (md Release: Article 15 0f the contract outlined the manner in which acceptance of completion would occur. 1t provided that the owner and contractor would inspect the project, note any repairs neceSsary t0 comply with the contract documents, and make a list of any necessary repairs. “Once ail the repairs on the list are completed, the Contractor will review all work with the Owner and confirm that all work was done to his/hcr satisfaction. If so, the Owner will sign the correction list as acceptance of completion. The final payment, n01 to exceed $14,242.41, will be due upon signing.” On September 20, 2012, thc CLT paid respondent the final progress payment in Ihe amount of $7,3 19.9], and noted “final payment" on [he check. According lo Mr. Butler, the final check was written only after he and his subcontractors had met with Mr. Ounjian at least three times to conduct repairs and to ensure he was satisfied with the work. Mr. Butler slascd that, at completion, Mr. Ounjian expressed great satisfaction with respondent’s work on the project. According to Mr. Ounjian, he was never happy with the stucco work or the shape of the arches, but he was reassured that everything would look fine after the stucco dried. He denied that there had ever been a walk- through of the project. 13. The written change order eliminated respondent’s contractual obligation for [he “preparalien. priming, and painting of approximately 1600$F of elastomeric paint lo match Lhe existing finish ofthe home" as set forth in the scope nfwork and section 6.7 OfIhe conlracl. The parties disputed whether the “preparation" for painling included applying a fine sand coat to the stucco, which is required before application of elastomeric paint. Mr. Butler testified that, due to the extreme heal in Fresno, stucco continues to crack and the practice i5 l0 wait one month before finishing. For this reason, respondent makes painters responsible for preparing the stucco by adding the fine sand coat. Mr. Butler asserted that the significant amount of money he credited back lo the CLT in the change order was to cover both the preparation and painting of the balcony and was more than enough to cover the fine sand preparation layer. 14. The panies‘ relationship deteriorated following a meeting at the properly 0n October 4, 2012. Prior Io this meet, the painter Mr. Ounjian had hired to paint the house complained that the stucco on the balcony was rough and was not ready for painting. At the October 4, 2012. meeting, Mr. Ounjian brought his painter to discuss his concerns with Mr. Butler. Mr. Buller advised that the change order had shifted the responsibility for painting preparation back to the CLT. He. indicated that Mr. Ounjian’s painter had underbid this job and should do lhis work. A heated argument ensued. Mr. Ounjian recalled [hat Mr. Butler became enraged, foul-moulhed, and walked off the property. Mr. Butler recalled that Mr. Ounjian had called him a “liar”; that he demanded that respondent do work that was not within [he scope of work on [he now-finished project; and that he told Mr. Butler t0 “get off of the property.” Mr. Butler conceded that he lost his temper after being called a liar. This argument led to the cessation of work 0n the ongoing masonry project, discussed below. 15. Compiafnr m Board: 0n August 18, 2012, Mr. Ounjian filed a complaint with the Board against respondent, alleging: mulliple ceiling cracks in the balcony; substantial cracks in [he new stucco at the top of the column; can lights re-installed in arches off-center; and rough areas in finish plaster/stucco not consistent with finish plaster. Mr. Ounjian asserted that respondent had failed t0 make repairs after being paid and had failed to honor its warranty. He asked for Mr. Butler to pay the full, unspecified amount ofthe CLT's repair costs. 16. Mid Valley Builders/Steven Lawrence Anderson: Mr. Anderson is a licensed general contractor doing business as Mid Valley Builders. On October 18, 2012, the CLT/Mr. Ounjian contracted with Mid Valley Builders t0 “repair existing stucco at underside of repaired second floor deck and overhang area” of the house. The relevant scope 0f work involved: - removing existing stucco sufficient to realign existing light fixturcs in arched soffils; - relocating existing light fixtures to center of arches sufficient to customer’s satisfaction; - patching back stucco to areas around lights, repair uneven areas 0f existing stucco and patch existing cracking as possible to make ready for application of elastomeric paint by others. The scape of work did not include any painting. Mr. Anderson did some 0f the work and he also used a stucco subcontractor. Mr. Anderson’s invoice for this work was $2,242, which the CLT paid on November 28, 2012. 17. Mr. Anderson testified that there were four or five arches under the balcony, each containing a recessed can light at the top. TWO of the can lights in lhc arches were not symmetrically in the center of the arches and he moved these two lights at Mr. Ounjian’s request. To do so, Mr. Anderson personally broke open the stucco, relocated the fixtures and patched around the can lights. Mr. Anderson had no knowledge of whether respondent had previously changed the position of any of the can lights, and he did not see any evidence that the lights had been previously moved. In addition, Mr. Anderson redefined the arches, so they looked more round at the top, in accordance with Mr. Ounjian’s personal preferences. Mr. Anderson also patched over cracking in the stucco that was on the underside of the balcony. Mr. Anderson did not find the cracks in the stucco to be unusual. Rather, in his experience, such cracks are typical and do not necessarily constitute defects. Smoothing the cracks is part of the finish work. The cracked stucco surface was not ready to receive elastomeric paint, which stretches to cover future cracks. Preparation to receive this type of paint requires a smooth finish which is achieved by applying another layer of fine sand mixed with stucco. Mt. Anderson did not know whether paintars are ever responsible for applying the fine sand layer. 18. Discussion: The evidence persuasively established that respondent received an excessive down payment in violation of section 7159.5. The Board did no! call an industry expert lo testify about the standards of the industry in regard to the radiuses of the arches, the positioning of [he can lights, the cracks in the stucco surface and whether the fine sand preparation to receive elastomeric paint is the obligation of the stucco contractor or the paint contractor. 1n the absence 0f expert testimony, it cannot be determined whether respondent willfully departed in a material respect from accepted trade standards for good and workmanlike construction in the manners specified in the citation. In addition, Mr. Butler testified persuasively that the can lights were not moved during this remodeling. Instead, respondent removed the can light bulbs and housings (trims), demolished the areas around :hem, and placed the can lights back into their original location after it was determined that the electric wiring had not been damaged by the water. His testimony was supported by Mr. Anderson’s observation that, at the time he moved the can lights, they did not appear to have been previously moved. Further, Mr. Butler’s testimony that the obligation to prepare the stucco ta receive elastomeric paint, by adding a fine sand layer, was shifmd hack to CLT by the change order was persuasive. particularly in light of the amount of money respondent credited back to the CLT for this work; i.e., $4,500 of the $6,922.50 was for the paint work described in the scope of work t0 include “preparation” for elastomeric paint.3 This amount was significantly more than what the CLT paid to Mr. Anderson for this work. For these reasons, there was also insufficient evidence to establish that respondent had failed to complete the contract for the contract price. Consequently, there was insufficient support for an order of correction. The Masonry Project 19. Contract and Down Payment: The CLT and respondent entered into a remodeling contract for masonry on August 3 1, 2012, incorporating respondent’s scope of work dated July 16, 2012. The project was to commence on approximately August 31, 2012, and be completed by October 19, 2012. The contract price was nol lo exceed $106,355.70. The contract provided that “.. .the Owner will pay a sum of 10% of the contract price upon signing of this contract and before construction begins as a deposit and part of construction coordination fees for the project.” The contract amount was later revised t0 $107,285.30 following two change orders. The contract detailed a four-stage progress payment schedule, with the first payment of 10 percent 0n August 22, 2012, in the amount of $ [0,635.70. Mr. Ounjian’s September 5, 201 2, check to respondent in the amount of$10,635.70 was deposited into respondent’s bank account on that date. Mr. Butler testified that respondent began work on the project on August 31, 2012, five days before he received any funds from Mr. Ounjian. The specific work performed was the moving of a chain link fence, chopping off meta] footings and putting them back in place to ensure the property was fenced. Under respondent’s Pre- Construction Estimate Sheet attached to the contract, however, the estimated cost for “demo: moving of fence to allow for block wall disposal” was $2,650, far less than the check amount, which exceeded an allowable down payment. 20. Scope of Work: The contract incorporated respondent’s July 16, 2012, Scope of Work, which involved remodeling the front gates to the property, including raising existing columns at either side of the entrance gate, removing existing wall caps and installing new column caps, adding pineapple finials, creating a raised curb with flowerbed for the full length of the front wall, and expanding the call box for mail box. It also included adding and remodeling block walls at the South side of the property’s entry with removal of other fencing; installing balustrades near the front doors; removing existing columns and adding smooth columns with Corinthian capitals, and stucco. Uniike the Scope of Work for 3 Mr. Ounjian acknowledged that he later learned that his painter was unlicensed, which raises questions about the painter’s knowledge and competence in this regard. the Balcony contract, the Scope 0f Work for the Masonry contact required the stucco work t0 have a “slick finish” 0n new columns and blocks “to be ready for elastomeric paint.” Painting was not included and the scope of work noted that painting was “to be included with overall painting ofhouse.” 21. Following the October 4, 2012 argument described in Factual Finding 14, the dispute about the balcony project caused an interruption in the masonry project. The parties never resumed face-to-face contact and respondent was not allowed t0 return to the property. In a letter dated October 4, 2012, Mr. Butler advised Mr. Ounjian of respondent’s intention to have all its subcontractors remain on the property and to see the project through to completion. He indicated that respondent “will remotely supervise all subcontractors...to work on the property. We will do so pursuant to your October 4, 2012, request to leave the property. ..” Mr. Butler also indicated respondent would be willing to enter the property for subcontractor supervision or other purposes on request. 0n October 5, 2012, Mr. Ounjian sent an email t0 respondent giving a “72 hour notice for balcony repairs.” Thereafter, Mr. Ounjian sued respondent. Correspondence between the parties was through their respective attorneys. Mr. Ounjian testified that respondent’s proposal to remotely supervise the project was unacceptable, but neither he nor the CLT ever allowed respondent t0 return to the property. ML Ounjian denied having knowledge of extensive correspondence from respondent’s attorney to his own attorney, by which respondent attempted to resolve the dispute. Respondent’s letters included offers to return to work on the property if allowed, as well as offers to facilitate completion of the project by respondent’s subcontractor Jeremiah Gloeckner, 0f Viking Masonry, either pursuant t0 their existing contract or via rescission of that contract to allow Viking Masonry to complete this work under a distinct contract with the CLT. According to Mr. Butler, Mr. Ounjian persisted in not allowing Viking Masonry to either continue its work on the project or t0 remove its equipment from the project. Mr. Butler’s testimony was corroborated by Viking Masonry’s October 16, 2012, Notice of Action for equipment removal and payment, which provided that Viking Masonry had been told to cease work on the project by MI. Ounjian effective October 5, 2012. Mr. Ounjian testified that he agreed with the concept of rescinding the contract and completing the project with another contractor, but once Viking Masonry hired an attorney, Mr. Ounjian decided not to work with Mr. Gloeckner. The masonry project was ultimately completed by Mr. Anderson. 22. CSLB Complaint: On December 19, 2012, the CLT by Mr. Ounjian filed a compiaint with the Board, which provided that respondent was “hired to oversee masonry work/the construction of a block wall... Also [respondent] was going to adjust the height of the front wall, create mow strips, a new mailbox, Balustrades for a patio and order and install pre-cast material for various areas of the new walls and existing columns.” In the complaint, Mr. Ounjian reported that work on the project had started on September 3, 2012, and ceased on October 4, 2012. Mr. Ounjian asserted that Mr. Butler had “abandoned this project voluntarily," afier failing to obtain and produce a survey to insure that the wall was constructed entirely on the CLT’s property. As a remedy, Mr. Ounjian requested that respondent “find and pay for a solution to the encroachment problem he caused.” 23. Discussion: The evidence established that respondent received an excessive down payment on the masonry project in violation of section 7159.5. Neither the citation nor the evidence at hearing addressed any encroachment issues pertaining t0 the masonry project, as described in the CLT’s complaint to the Board. The citation alleged respondent had abandoned the masonry project without legal excuse by failing to build the CMU block wall and failing to build the columns. The evidence was insufficient to support a finding that respondent had abandoned the masonry project without legal excuse. To the contrary, the weight of the evidence supports a finding that respondent was prevented from returning to the property to perform on the contract, despite multiple attempts to do so, and that the actions of the CLT, through Mr. Ounjian, resulted in a rescission of the contract. LEGAL CONCLUSIONS 1. The Contractors’ State License Law (the Law), Business and Professions Code, section 7000 et seq., is intended to “protect the public from incompetence and dishonesty in those who provide building and construction services. [Citation] The licensing requirements provide minimal assurance that all persons offering such services in California have the requisite skill and character, understand applicable local laws and codes, and know the rudiments of administering a contracting business.” (Banis Restaurant Design v. Serrano (2005) 134 Cal.AppAth 1035, 1042, citing Hydrated: Systems, Ltd. v. Oasis Waterpark [Hydrotech] (1991) 52 Cal.3d 988, 995.) In exercising its licensing, regulatory, and disciplinary functions, the Board must place "protection of the public” as its highest priority. “Whenever the protection ofthe public is inconsistent with other interests sought to be promoted. the protection of the public shall be paramount.” (§ 7000.6.) 2. Burden ofProof: The Board has the burden of proving [he statutory violations set forth in its citation by a preponderance 0f the evidence. (Owen v. Sands (2009) 176 Cal.App. 4th 985 [rehearing review and cert. denied 130 S.Ct. 2110].) Once the Board establishes its case, the burden shifts to respondent to establish any affirmative defenses. (Whetstone v. Board ofDental Examiners (1927) 87 Cal.App. 156.) 3. Departure from Aceepted Trade Standards: Section 7109, subdivision (a), prOVides: A willful departure in any material respect from accepted trade standards for good and workmanlike construction constitutes a cause for disciplinary action, unless the departure was in 9 accordance with plans and specifications prepared by or under the direct supervision of an architect. 4. Breach of Contract: Section 71 13 provides: Failure in a material respect on the purl of a licensee t0 complete any construction project or operation for the price stated in the contract for such construction project or operation or in nny modification 0f such contract constitutes a cause for disciplinary action. 5. Abandonment: Section 7107 provides: Abandonment without legal eXCuse of any construction project or operation engaged in or undertaken by the licensee as a contractor constitutes a cause for disciplinary action. 6. Excessive Down Payment: Section 7159.5, which applies to all home improvement contracts, provides, in pertinent part, as follows: (a) Failure by the licensee or a person subject t0 be licensed under this chapter, or by his or her agent or salesperson, to comply with the following provisions is cause for discipline: WIMW] (3) If a downpayment will be charged, the downpaymem may not exceed one thousand dollars ($1.000) or 10 percent of the contract amount, whichever is less. Citation N0. 2 2013 101 1 (Balcony Project) 7. Legal cause was established that respondent violated section 7159.5 by receiving an excessive down payment. Accordingly, the $500 civil penalty for this violation is affirmed. 8. As set forth in the Factual Findings and Lsgal Conclusions as a whole and, particularly, in Factual Finding 18, the Board did nol establish that respondent had willfully departed from accepted trade standards regarding the balcony project's stucco surface; positioning of the can lights and/or the “arches' radiuses," and it did not establish that respondent had breached [he contract. Legal cause was not established for violations of either section 7109, subdivision (a), 0r section 7113. Accordingly, the civil penalties and order of correction relating Lo these alleged violali0ns will not be upheld. // 10 Citation N0. 2 2013 1010 (Masrmry Project) 9. Legal cause was established that respondent violated section 7159.5 by receiving an excessive down payment. Accordingly, the $500 civil penalty for this violation is affirmed. 10. The Board has the burden to establish the elements of a section 7107 violation. As set forth in the Factual Findings and Legal Conclusions as a whole and, particularly in Factual Finding 23, the Board did not establish that respondent abandoned the masonry project “without legal excuse." Accordingly, legal cause is not established for a violation of section 7107 and the civil penalty relating to this alleged violation will not be upheld. 11. Amount ofCivil Penalties: The Board has promulgated regulations regarding the assessment of civil penalties. Section 7099.2, subdivision (a), provides that the regulations shall “give due consideration to the appropriateness of the penalty with respect t0 the following factors: (1) The gravity of the violation. (2) The good faith of the licensee or applicant for licensurc being charged. (3) The history ofprevious violations.” The minimum and maximum range of civil penalties to be imposed for violation of distinct provisions of the law are set forth in California Code 0f Regulations, title 16 (16 CCR), section 884, subdivision (a). The civil penalty range for violations 0f section 7159.5 is $100 to $5,000. When determining the amount of civil penalty, the Registrar is required to consider factors identified in 16 CCR section 884, subdivision (b). These factors are whether: (1) the citation includes multiple violations; (2) the cited person has a history of violations of the same or similar sections of the Contractors License Law; (3) in the judgment 0f the Registrar, a person has exhibited bad faith; (4) in the judgment of the Registrar, the violation is serious or harmful; (5) the citation involves a violation or violations perpetuated against a senior citizen or disabled person; and/or (6) the citation involves a violation or violations involving a construction project in connection with repairs for damages caused by a natural disaster as described in Section 7158 0f the code. 11 12. As set forth in Factual Findings 3 and 4, a $500 civil penalty was imposed for each ofrespondent’s violations ofscction 7159.5. The faclors for determining the range 0f the civil penalties imposed 0n respondent for the two contested and affirmed violations have been considered. Considering all facts and circumstances, the civil penalties imposed reflect that the Registrar appropriately considered the statutory and regulatory factors in mitigation when i1 imposed civil penalties that were far below the stalutory maximum civil penalty. Accordingly, the $500 civil penalty imposed for each 0f respondent’s violations 0f section 7159.5 is affirmed. ORDER 1. Respondent’s appeal of Citation No. 2' 2013 1'011 (Balcohy Project) is granted in part and denied in part. a. The citation for violation of section 7159.5 is AFFIRMED. b. The citation for alleged violations of section 7109, subdivision (a), and/or section 7113, is DENIED. 2. Respondent’s appeal of Citation No. 2 2013 101 0 (Masonry Project) is granted in part and denied in part. - a. The citation for violation of section 7159.5 is AFFIRMED. b. The citation for alleged violation of section 7107 is DENIED. 3. The civil penalties imposed for respondent’s violations of section 71 59.5 are AFFIRMED. Within thirty (30) days of the effective date of this Decision, respondent shall pay lo the Board total civil penalties of $1,000. swap,i MA "LYN pi. WOOLLARD Ad inistrativc Law Judge Office of Administrative Hearings DATED: December 23, 2014 12 § 11520. Defaults and uncontested cases (a) It the respondent either fails lo me a nolioe of defense or to appear at the hearing, the agency may take action based upon the respondent's express admissions or upon other evidence and aflidavits may be used as evidence without any notice to respondent; and where {he burden oi proof is on the respondent lo establish lhat the respondent is entitled to the agency action sought the agency may ad without taking evidence. ‘ (b) Notwilhsianding the default of the respondent. the agency or the administrative lawjudge, before a proposed decision is issued, has discretion to granl a hearing on reasonable notice to the parties. If the agency and administrative tawjudge make conflicting orders under this subdivision, the agency's order takes precedence. The administrative Iawjudge may order the respondent. or the respondent's attorney or other authorized representative, or both. to pay reasonable expenses, including attorney's fees. incurred by another pady as a result of the respondent's failure lo appear at the hean‘ng. (c) Within seven days after service on the respondent of a decision based on the respondent's default. the respondent may serve a written motion requesting that the decision be vacated and stating :he grounds relied on. The agency in its discretionrmay vacateihe decision and grant a hearing on a showing of good cause. As used In this subdivision. good cause includes, bul is n01 limited lo, any of the foltowing: (1) Failure of the person 10 receive notice sewed pursuant to Section 11505. (2) Mistake, inadvenence, surprise, or excusable neglect § 1 1 521. Reconsideration n; (a) The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency shall notify a petitioner of the iime limits for petitioning for reconsideration. The power to order a reconsideration shall expiré 30 days after the delivery or mailing of a decision to a respondent. or on the date set by the agency itself as the effective date of the decision if that date occurs priorto the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. If additional Hme is needed Io evaluate a peiiiion for reconsideration filed prior to the expiration of any of the applicable periods. an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition. lf no action is taken on a petition within the time allowed for ordering reconsideration. the petition shall be deemed denied. (b) The case may be reconsidered by the agency itself on all 1he peninent parts of the record and such additional evidence and argument as may be permitted. or may be assigned lo an administrative lawjudge. A reconsideration assigned to an administrative law judge shall be subject to the procedure provided in Se'ttion 11517. If oral evidence is iniroduced before the agency itself. no agency member may vote unless he or she heard the evidence. u .,V If you wish to file a petition for recbqsidelpi'dnz‘lhé petition mus! be received prior to the effective date of the decision. How‘e‘yer. please be advised that H13 Board requires approximatefy five (5) working days to process g‘ppthion. Petitions shouid be addressed as.nw. foilows: ”-7.122 1'- Contractors State License Board Atlention:Leg.aIAdioangyly. I : __ Posi Office Box 269121 Sacramento. CA 95826 Or documents may be faxed to: (916) 255-1944 UI-hbJN \DOOVON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE STATE OF CALIFORNIA, COUNTY OF FRESNO At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Fresno, State of California. My business address is 5260 North Palm Avenue, Fourth Floor, Fresno, CA 93704. On December 18, 2017, I served true copies of the following document(s) described as REQUEST FOR JUDICIAL NOTICE IN SUPPORT 0F MOTION FOR JUDGMENT ON THE PLEADINGS; OR ALTERNATIVELY TO CONTINUE TRIAL 0n the interested parties in this action as follows: Don J. Pool, Esq. Attorneys for Plaintiff, ED HUFF, as WILD, CARTER & TIPTON Trustee ofthe CINDERELLA LIVING 246 West Shaw Avenue TRUST Fresno, CA 93704 P: (559) 224-2131 F: (559) 224-8462 e-mail: dnool@wctlaw.com BY E-MAIL 0R ELECTRONIC TRANSMISSION: Pursuant to California Rules of Court, Rule 2.251 and Code 0f Civil Procedure §1010.6, I caused a copy of the document(s) to be sent from e-mail address Vkearney@bakermanock.com to the persons at the e- mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. BY HAND DELIVERY: I caused such envelope(s) t0 be delivered by hand t0 the office of the addressee(s). I declare under penalty of perj ury under the laws of the State of California that the foregoing is true and correct. Executed on December 18, 2017, at Fresno, California. %/;//y Veronica E. Kearnev