Cross Complaint

Cal. Super. - 6th Dist.April 1, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/12/2021 9:47 AM Reviewed By: A. Villanueva Case #21CV381430 Envelope: 6823864 21CV381430 Santa Clara - Civil A. Villanueva \OOOVONU‘IAUJNH NNNNNNNNr-tr-lhtp-AHp-np-tr-Ap-tp-A qmm-PWNHOOMQONM-PWNV-‘O 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP A'ITORNEYS AT LAW 1600 South Main Plaza Suite 325 Walnut Oak, U 94596 Tdephone: (925) 934-6102 Faslmlle: (925) 934-6060 Yvonne V. Jorgensen, Esq. (SBN 136264) VAN DE POEL, LEVY, THOMAS, ARNEAL LLP 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 Telephone: (925) 934-6102 Fac31mile: (925) 934-6060 Email: viorgensen@vanlewlaw.com Attorneys for Defendant STEVEN E. SMITH dba SARATOGA PAVERS IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA JOSEPH HAAR, SHANNON HAAR, CASE NO.: 21CV381430 Plaintiff, CROSS-COMPLAINT VS. STEVEN E. SMITH, SARATOGA PAVERS, Complaint Filed: April 1, 202] SILVA CONTRACTORS, INC., GEICYLER H. SILVA, and DOES 1-10, inclusive, Defendants. STEVEN E. SMITH dba SARATOGA PAVERS, Cross-Complainant, vs. JOSEPH HAAR, SHANNON HAAR, and MOES 1- 1 O, inclusive, Cross-Defendants. Cross-Complainant, STEVEN E. SMITH DBA SARATOGA PAVERS, alleges: 1. STEVEN E. SMITH DBA SARATOGA PAVERS (hereinafter “Cross-Complainant”) is a sole proprietorship, with its principal place of business in Santa Clara, California. At all times (01937105) 1 CROSS-COMPLAINT ©OONONMJ>LDNH NNNNNNNNI-‘Hp-Ir-AHt-tt-sp-AHH QONM-PWNHOOWNONU‘l-bmwb‘o 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP A'I'I'ORNEYS AT LAW 1600 South Maln Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (9E) 934-6102 Faslmne: (925) 934-5060 mentioned herein, Cross-Complainant was and is duly licensed as a general contractor by the California Contractor State License Board, and authorized to do the things alleged herein. 2. Joseph Haar and Shannon Haar (hereinafter “Cross-Defendants”) are individuals who are, and were, at all relevant times herein alleged, residents of the County of Santa Clara, California. At all times mentioned herein, Plaintiffs represented that they held title to the property located at 1976 Alpert Drive, Morgan Hill, CA (“the Subject Property” ). 3. Cross-Complainant is ignorant of the true names and capacities of Cross-Defendants sued as MOES 1 through 10, inclusive, and therefore sues these Cross-Defendants by these fictitious names. Cross-Complainant will amend this complaint to allege their true names and capacities when they have been ascertained. Cross-Complainant is informed and believes and thereon alleges that each of the fictitiously named Cross-Defendants is in breach of some contract or is tortiously or otherwise legally responsible in some manner for the occurrences alleged in this complaint and for Cross- Complainant’ s damages. FIRST CAUSE OF ACTION Breach of Written Contract (vs. JOSEPH HAAR AND SHANNON HAAR, and MOES 1 to 10) 4. Cross-Complainant refers to and incorporates by reference Paragraphs 1 through 3 as though fully set forth herein. 5. On or about November 4, 2019, and at times thereafter, Cross-Complainant STEVEN E. I SMITH DBA SARATOGA PAVERS, on the one hand, and Cross-Defendants JOSEPH HAAR AND SHANNON HAAR and MOES 1 to 10, and each of them, on the other hand, entered into a written agreement with one another to furnish certain labor, materials, equipment, and services in connection With construction work on the Subject Proj ect, which is attached to the Complaint as Exhibit A (“ the HAAR CONTRACT” ). 6. The HAAR CONTRACT included an obligation that Cross-Complainant would be paid for its work, labor, materials, and services. 7. Cross-Defendants failed to pay for some of the work performed and invoiced by Cross- Complainants, which constitutes a further breach of contract. (01937105) 2 CROSS-COMPLAINT WOOQONM-PUJNH NNNNNNNNHr-tp-AHp-AHr-Ap-AHH \IQKJInPWNHOOWflmm-PWNHO 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATTORNEYS AT LAW 1600 South Maln Plaza Suite 325 Walnut Cram CA 94596 Telephone: (925) 9346102 Faslmile: (925) 9346060 8. Cross-Complainant performed all conditions and covenants required of it under the HAAR CONTRACT, except for those which were excused, waived, or otherwise discharged, or which Cross-Complainant was prevented from performing. 9. Although Cross-Complainant was paid part of what Cross-Defendants owed it under the HAAR CONTRACT, it was not paid all of the amounts 'owed for work it performed at the Subject Property. 10. Cross-Complainant was also deprived of the revenue amount it was entitled to receive under the HAAR CONTRACT, plus the amount of change orders requested by plaintiff, because of Cross- Defendants refusal t0 pay and their unjustified termination of the contract. 11. As a direct and proximate result 0f Cross-Defendants’ breach 0f the HAAR CONTRACT, Cross-Complainant incurred damages, and interest thereon, in an amount of approximately $25,000, t0 be determined according to proof. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, and each of them, as hereinafter set forth. SECOND CAUSE OF ACTION Breach of Oral Contract (vs. JOSEPH HAAR AND SHANNON HAAR, and MOES 1 to 10) 12. Cross-Cornplainant refers to and incorporates by reference Paragraphs 1 through 11 as though fillly set forth herein. 13. Cross-Defendants orally agreed to pay Cross-Complainants for the performance of work by Cross-Complainant which was outside the scope of the HAAR CONTRACT, including but not limited to a. Increased material cost when plaintiffs requested to change paver from Classic Cobble Antique paver to Calstone Belgium Paver and then to Belgard Old World paver. b. Increased installation cost due to thickness of Belgard Old World paver being 80 mm, compared with Classic Cobble Antique paver being 60 mm, which change increased the amount of excavation and base-rock and polymeric sand required for the installation of the Belgard Old World {01937105} 3 CROSS-COMPLAINT \OOOQONU‘I-PUJNp-A NNNNNNNNHHHHHHHr-AHH QONUI-bmwr-‘ooooumm-Ikwwu-‘o 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATI'ORNEYS AT LAW 1600 South Main Ptaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Fasimile: (925) 934-6060 paver, over and above the cost included in the HAAR CONTRACT for installation of Classic Cobble Antique pavers. 14. Further, through an oral agreement, Cross-Defendants agreed to pay Cross-Complainants for additional materials and work, for a total increased price of approximately $20,000. 15. As a direct and proximate result of Cross-Defendants’ breach 0f their oral agreement, Cross- Complainant incurred damages, and interest thereon, in an amount of approximately $20,000, to be determined according to proof. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, and each of them, as hereinafter set forth. THIRD CAUSE OF ACTION Quantum Meruit (vs. JOSEPH HAAR, SHANNON HAAR, and MOES 1 to 10) 16. Cross-Complainant refers to and incorporates by reference Paragraphs 1 through 15 as though fully set forth herein. 17. Cross-Complainant provided services to the Subject Project at the specific request of Cross- Defendants Joseph Haar and Shannon Haar and MOES 1 to 10, and each of them. 18. Cross-Defendants knew, agreed with, and acquiesced in Cross-Complainant’ s actions. The services provided by Cross-Complainant were intended to, and did, benefit, Cross-Defendants, including, among other things, beneficial use and occupancy of the Subject Project for its intended purpose. 19. Cross-Complainant demanded payment for such services, however Cross-Defendants failed, and continue to fail and refuse, to pay for such services. 20. The fair and reasonable value of the services provided by Cross-Complainant, for which Cross-Defendants failed to pay is approximately $25,000, in an amount to be proved at trial, and interest thereon. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, and each of them, as hereinafter set forth. (01937105) 4 CROSS-COMPLAINT wmflam-RMNH NmmdeNHOOOOQQM-PWNHO 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP MTORNEYS AT LAW 1600 South Maln Plaza Suite 325 Walnut Creek 0A 94596 Telephone: (925) 934-6102 FaGlmile: (925) 934-6060 FOURTH CAUSE OF ACTION Account Stated (vs. JOSEPH HAAR, SHANNON HAAR, and MOES 1 to 10) 21. Cross-Complainant refers to and incorporates by reference Paragraphs 1 through 20 as though fully set forth herein. 22. An account was stated in writing between Cross-Complainant and Cross-Defendants JOSEPH HAAR, SHANNON HAAR, and MOES 1 to 10, and each of them, and on such account a balance was due and owing to Cross-Complainant from Cross-Defendants. 23. Neither the whole nor any part of said balance has been paid, although demand has been made, and there is now due, owing, and unpaid a sum 0f money by Cross-Defendants in an amount of approximately $25,000, including interest. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, and each of them, as hereinafter set forth. FIFTH CAUSE OF ACTION Unjust Enrichment (V. JOSEPH HAAR, SHANNON HAAR, and MOES 1 to 10) 24. Cross-Complainant refers to and incorporates by reference Paragraphs 1 through 23 as though fully set forth herein. 25. Preceding the commencement of this action, Cross-Defendants received the benefits of work furnished by Cross-Complainant, for which Cross-Complainant was not paid; that in furnishing this work, Cross-Complainant was not acting as a volunteer and Cross-Defendants, and each of them, have accepted the benefits of that which Cross-Complainant furnished Without furnishing sufficient consideration therefore. 26. The reasonable value furnished by Cross-Complainant t0 Cross-Defendants, for Which Cross- Complaint was not paid, and that by their acceptance and retention thereof, Defendants have become and are indebted to Cross-Complainant a sum according to proof, plus, interest, and costs. PRAYER FOR RELIEF {01937105} 5 CROSS-COMPLAINT \OOOQONLI‘I-PUJNr-A NNNMNNNNH-Ir-AHHHHr-AHH NOMLWNI-‘OWOOQONUI-D-mmr-Ao 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATTORNEYS AT LAW 1600 South Maln Plaza Su'me 325 Walnm Creek, CA 94596 Telephone: (925) 934-6102 Facsimile: (925) 934-6060 1. That Cross-Complainant be entitled to an award of damages, including monies due and owing for work performed and materials supplied to plaintiffs; 2. Prejudgment interest per code; 3. Costs; and 4. For such other and further relief as the court may deem just and proper. DATED: July 6, 2021 VAN DE POEL, LEVY, THOMAS, ARNEAL LLP \ \mmm J MW YVONN‘E’Y. JORGENSEWTESQ. Attorneys for Defendant STEVEN E. SMITH dba SARATOGA PAVERS (01937105) 6 CROSS-COMPLAINT