OppositionOppositionCal. Super. - 4th Dist.November 13, 2018P O R T A L E S L A W , P C 2 0 6 W . 4 T H ST ., S U I T E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALEJANDRO PORTALES, ESQ. (SBN 202992) PORTALES LAW, PC 206 W. 4% St., Suite 307 Santa Ana, California 92701 Telephone: (714) 426-9010 alex(@portales-law.com Attorneys for Cynthia Ignatuk ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 02/15/2019 at 06:08:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CYNTHIA IGNATUK; Plaintiff, Vs. MARK BESNOS, et al., Defendants. CASE NO. 30-2018-01031580-CU-FR-CJC ASSIGNED FOR ALL PURPOSES TO: Judge: Melissa R. McCormick Dept.: C13 Date: March 28, 2019 Time: 1:30 p.m. IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION Filed: November 13, 2018 Trial: None TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: Cynthia Ignatuk (Ignatuk) opposes defendants’ Mark Besnos (Besnos), Enna Eskin’s (Eskin), Michaelangelo Roppo’s (Roppo) and Horizon Construction & Remodeling, Inc.’s (Horizon) (collectively, Defendants) Petition to Compel Arbitration (Petition) on the grounds that e Defendants repudiated the home improvement contract (HIC); e Defendants extorted a new contract seeking more money for less work as a condition not to abandon the project; e Horizon abandoned the home improvement project; e Defendants damaged Ignatuk’s property; e The HIC and its arbitration provision are unconscionable under the facts of this case IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because they were obtained by fraud and extortion; and e¢ The Complaint includes defendants who are not Horizon’s agents or employees and those persons are not parties to the HIC and have no agreement to arbitrate with Ignatuk. This opposition to the Petition will be based upon Ignatuk’s declaration, the memorandum, and all papers and records on file in this matter, on any matter subject to judicial notice, and on such oral and documentary evidence as may be presented at the hearing of this motion. Dated: February 15, 2019 PORTALES LAW, PC Pen | Alejandro Portales, Esq. Attorneys for Cynthia Ignatuk = IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , P C 2 0 6 W . 4 T H ST ., S U I T E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM I. INTRODUCTION Ignatuk filed the Complaint in this matter because Besnos, Eskin, Roppo and Horizon defrauded her into agreeing to the HIC through false advertising and then repudiating the HIC when its terms no longer suited Horizon. Further, having taken Ignatuk to the edge of the abyss, Horizon extorted a new contract under threat of abandoning the home improvement project (Project). Having already paid money for work that had yet to be done in violation of law, Horizon demanded a new agreement which reduced the scope of work without reducing the payments to Horizon. Horizon, having reduced its scope without sacrificing any payments, cut corners at Ignatuk’s expense to increase its profits. Ignatuk discovered that Horizon had deceived her and the City of Tustin (City) by sealing walls to avoid City inspections yet represented to Ignatuk that the work was complete, and the City had approved it. The work, however, had not been inspected and when it was finally inspected, it did not meet industry standards and was unsafe. The cost of completing the remodel according to industry standards exceeds the funds that Ignatuk had remaining for that purpose. Furthermore, the inspections revealed that Defendants severely damaged Ignatuk’s home, including the roof, the soffits and other areas resulting in damages that exceeded the value of the HIC. The cost of repairing the damage Defendants caused far exceeded the value of the HIC. The inspectors also informed Ignatuk that the remodeling plans were defective and required a rework. Because Horizon followed the defective plans, those plans contributed to the damage to Ignatuk’s home. Further, Steven Dobbie, the draftsman who prepared the plans, represented himself as an architect to Ignatuk and others when he is not licensed by the State of California as an architect. Thus, Dobbie deceived Ignatuk into hiring him because she believed he was a licensed architect and his work would perform according to the high standards that architects are subject to. Horizon, on information and belief, rather than hiring subcontractors, abandoned parts of the Project and gave the work to others, defendants Beni Zohar Amir and Windtex, Inc. (collectively, Windtex) without Ignatuk’s knowledge or approval. In fact, Windtex represented itself as the general contractor when it pulled permits to do the back-patio work. Moreover, Horizon led her to believe that the personnel were Horizon’s employees. Importantly, Amir and Windtex are currently under MEMORANDUM P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 licensing discipline and are under investigation by legal authorities. Windtex constructed part of the Project that Horizon abandoned. Windtex’s work was not up to industry standards and caused severe damage to Ignatuk’s property. The Complaint names Dobbie and Windtex, neither of which are parties to the HIC or any arbitration provisions nor are they Horizon’s agents. Moreover, Dobbie’s agreement was exclusively with Ignatuk and, on information and belief, Windtex had no contract with Horizon. Finally, because the Petition is put together in such a confusing and illogical manner, it is necessary to inform the Court that this opposition will first address the Petition’s memorandum which is located after the verifications, declarations and exhibits and, if necessary, it will later address whatever issues are uniquely raised in the “petition” part of the Petition. II. FACTS Ignatuk hired Steven Dobbie (Dobbie) to design the remodeling work for her home. (Ignatuk Dec. 92.) Dobbie held himself out to be an architect on various occasions. (Ignatuk Dec. 93.) Ignatuk used Dobbie’s plans for the work Horizon was hired to perform. (Ignatuk Dec. 94.) Ignatuk first heard about Horizon through door hangers at her home. (Ignatuk Dec. §5.) Later Ignatuk went to Horizon’s website to further investigate the company. (Ignatuk Dec. 96.) The website described Horizon as one which performed to the highest industry standards and had no complaints. (Ignatuk Dec. §7.) Neither representation was true. In fact, Horizon had been sued for substandard work and had settled the matter. (Ignatuk Dec. 498-9.) The settlement terms included removing all negative reviews from public websites. (Ignatuk Dec. §10.) The lack of negative review deceived Ignatuk and lulled her into contracting with Horizon without further investigation. (Ignatuk Dec. 911.) Horizon, however, at all times knew that its website’s claims were false. (Ignatuk Dec. 12.) Horizon sent Michaelangelo Roppo, Horizon’s salesperson, to see me and finalize the home improvement contract (HIC). (Ignatuk Dec. 13, 73-74.) Roppo misrepresented Horizon’s reputation and ability when he presented Horizon’s contract to Ignatuk reassuring her that Horizon could and would do the remodeling work in a workmanlike manner and on time. (Ignatuk Dec. 14.) After Ignatuk hired Horizon, she noticed that the work was being delayed time and time again and - IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 eventually was months behind schedule. (Ignatuk Dec. 415.) Ignatuk also noticed that Horizon’s work was not up to what she expected of a general contractor and began to lose confidence in Horizon’s ability to do the promised work according to the promised highest level of industry standards. (Ignatuk Dec. 416.) In time, Ignatuk saw that the remodel had significant problems including plumbing issues, unfinished work, damage to her home. (Ignatuk Dec. 417.) More specifically, when Ignatuk complained to Besnos about the quality of the work and the delays, Besnos pulled all workers off the Project and repudiated the HIC although all payments were current. (Ignatuk Dec. §18.) Later, Roppo tried to salvage the Project and demanded a new “addendum” to the HIC as a condition of continuing work on the Project. (Ignatuk Dec. 419.) Having no choice, and under duress, Ignatuk agreed to the so-called “addendum.” (Ignatuk Dec. 420.) To her surprise, Besnos repudiated the extorted “addendum” claiming Roppo did not have the authority to make such an agreement for Horizon. (Ignatuk Dec. 9421.) Besnos instead demanded further concessions or he would not complete the Project. (Ignatuk Dec. 922.) Eventually, Besnos stated he would honor the Roppo “addendum.” (Ignatuk Dec. 423.) Ignatuk tried to work with Defendants but it was clear that despite telling her they would finish the Project under the extorted terms, they in fact did not. (Ignatuk Dec. 924.) Having tried everything she could to get the Project completed without success, Ignatuk gave Horizon notice of its breach of the HIC and whatever subsequent “addendum” is any was valid. (Ignatuk Dec. 925.) Horizon abandoned the Project and then belatedly decided to try and mitigate the mess it created. (Ignatuk Dec. 426.) At this point, Ignatuk no longer trusted Defendants and sued them. (Ignatuk Dec. 927.) Once Horizon was no longer on the Project, Ignatuk had the City inspect the work. (Ignatuk Dec. 9428.) The City inspectors notified her that the work was improperly done, that areas were covered with walls and had not been inspected as required by law. (Ignatuk Dec. 429.) The inspectors also informed Ignatuk that Dobbie’s plans were defective and the work done according to those plans was not acceptable and had to be redone. (Ignatuk Dec. 930.) Ignatuk demanded that Dobbie correct the plans and he refused. (Ignatuk Dec. 431.) At this point Ignatuk questioned Dobbie’s credentials and discovered he was not a licensed architect. (Ignatuk Dec. 432.) Ignatuk 23 IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 challenged Dobbie on this and informed him she would have to replace him with a licensed architect. (Ignatuk Dec. 4933-24.) Dobbie’s defective plans were responsible for causing damage to her home which will require repair. (Ignatuk Dec. 935.) Ignatuk also learned from the inspectors that, although Horizon was required to pull permits under the HIC (Additional Term 4), Windtex, Inc., owned by Beni Zohar Amir, had pulled the permits to do the back-patio work in Windtex’s name as the general contractor on the job rather than through Horizon, the actual general contractor on the Project. (Ignatuk Dec. 436.) This was the first time Ignatuk had heard of this company. (Ignatuk Dec. 437.) Ignatuk had no contractual relationship with Windtex or Amir. (Ignatuk Dec. 938.) Instead, Horizon led Ignatuk to believe it used and supervised a subcontractor do the work on the back-patio. (Ignatuk Dec. 439.) Windtex and Amir (collectively, Windtex unless context dictates otherwise) were then and are now under licensing discipline and investigation by law enforcement for the work they had previously performed for others. (Ignatuk Dec. 940.) Thus, it was clear to Ignatuk that although Horizon represented to her that it was doing the back-patio work with a subcontractor which it supervised, and she had paid Horizon for that work, Horizon had abandoned the back-patio work and given the work to someone else without her knowledge. (Ignatuk Dec. 941.) Ignatuk would never have hired Windtex to do any work on her home had she known about them. (Ignatuk Dec. 942.) Windtex’s work was defective and caused significant damage to her home including the soffits and the roof. (Ignatuk Dec. 443.) Importantly, Horizon tried to get Ignatuk to replace the roof for $35,000.00 despite the City inspector’s opinion that roof did not need to be replaced. (Ignatuk Dec. 944.) The roof was in excellent condition before Horizon’s work and would have lasted years. (Ibid.) Yet, unbeknownst to Ignatuk Horizon had already damaged the roof. (Id.) When Ignatuk refused, Horizon forced Ignatuk to waive any potential liability that Horizon or a potential roofer may have for leaks occurring to her roof. (Ignatuk Dec. 945.) J1IR DISCUSSION The HIC was void ab initio and so was the included arbitration provision. To the extent the HIC was not void ab initio, Besnos, Horizon’s responsible managing officer (RMO) and 20% or more shareholder, repudiated the HIC and refused to honor it when it was no longer convenient to -4- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 him or Horizon. (Ignatuk Dec. 946.) Moreover, the arbitration provision is unconscionable as a matter of fact and law. Finally, Dobbie and Windtex are third-parties not subject to the arbitration provisions as a matter of fact and law. Ignatuk’s opposition to the Petition is based on primarily three facts: 1) the HIC is unconscionable because it was obtained by deception such that the HIC was never a contract reached by a meeting of the minds and because the arbitration provision unfairly burdens Ignatuk; 2) Horizon and Ignatuk entered into a waiver of liability for part of the work and it is not covered by the arbitration agreement; and, 3) the Complaint includes parties who are not parties to the HIC neither as named parties or by incorporation by reference into another contract and their involvement in the facts are such that it would be fundamentally unfair to Ignatuk to have to prosecute an arbitration action and separately sue other persons separately on the same facts. The Code of Civil Procedure controls the existence and enforceability of arbitration agreements. Those agreements are generally enforceable. There are exceptions, however, to enforcing such agreements. A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. (Code Civ. Proc., § 1281.) On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295. skeskoskoskosk If the court determines that a written agreement to arbitrate a controversy exists, an -5- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 order to arbitrate that controversy may not be refused on the ground that the petitioner's contentions lack substantive merit. If the court determines that there are other issues between the petitioner and the respondent which are not subject to arbitration and which are the subject of a pending action or special proceeding between the petitioner and the respondent and that a determination of such issues may make the arbitration unnecessary, the court may delay its order to arbitrate until the determination of such other issues or until such earlier time as the court specifies. If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding. (Code Civ. Proc., § 1281.2.) Thus, a Court has the power to refuse to enforce an arbitration agreement if: 1) there are grounds to revoke/rescind the agreement; 2) the party who seeks to enforce the agreement waives that right; and, 3) there are third-parties who are not subject to the arbitration agreement involved in the action arising out of the same facts and there is a possibility of conflicting rulings of law or fact. This opposition is based on all three of those grounds. A. THE AGREEMENT IS ONE OF ADHESION AND THE ARBITRATION PROVISION IS UNCONSCIONABLE WHICH ARE GROUNDS TO REVOKE/RESCIND THE AGREEMENT AND ITS ARBITRATION PROVISIONS AND BECAUSE THE ALLEGED “ADDENDUM” WAS INDUCED BY FEAR OF ECONOMIC LOSS, THEY SHOULD BE RESCINDED The HIC’s arbitration provisions are unconscionable as a matter of law. The Court, and not an arbitrator, decides if the arbitration clause is unconscionable because Ignatuk is resisting arbitration claiming the clause is unconscionable. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1564.) A clause in a contract as well as a contract can be adhesive. (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1351, as modified on denial of reh'g (Feb. 9, 2015)(*. .. [T]he oppressive nature in which the amendment was imposed establishes the necessary element of procedural unconscionability.”).) California uses two approaches to determine whether a contract (or a clause) is -6- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unconscionable. Under the first approach, “the court first determines whether an allegedly unconscionable contract is one of adhesion. Upon making this finding, the court then must determine “whether (a) the contract term was outside of the reasonable expectations of the weaker party, or (b) was unduly oppressive or unconscionable.” (Parada v. Superior Court (2009) 176 Cal. App.4th 1554, 1568 citing Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 820 (internal edits and quotation marks omitted).) The second approach looks for procedural and substantive unconscionability. Both must be present but if one is present in greater degree, the other may be found in lesser degree. The procedural element requires oppression or surprise where oppression exists where there is a lack of negotiation and meaningful choice or surprise where the provision is hidden. The substantive element unreasonably or in an unexpected manner reallocates risk. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1568 citing Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) The California Supreme Court has shown no preference for either approach and stated that the result would be the same under either analysis. (Ibid. at 1568-1569.) Stand alone arbitration agreements have been held to be contracts of adhesion rather than arbitration clauses embedded in larger agreements. (See, e.g., Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 784 (9th Cir.2002) (holding that a stand-alone arbitration agreement signed by an employee was procedurally unconscionable).) “California courts have consistently held that where a party in a position of unequal bargaining power is presented with an offending clause without the opportunity for meaningful negotiation, oppression and, therefore, procedural unconscionability, are present.” (Ibid.) “The California Supreme Court has defined the term ‘contract of adhesion’ to mean (1) a standardized contract (2) imposed and drafted by the party of superior bargaining strength (3) that provides the subscribing party only the opportunity to adhere to the contract or reject it.” (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1350, as modified on denial of reh'g (Feb. 9, 2015).) Further, the use of threatened force or fear to induce a contract is illegal. (Carson Redevelopment Agency v. Padilla (2006) 140 Cal. App.4th 1323, 1331-1332.) Fear includes the fear of economic loss. (Ibid.) The use of fear to induce a contract is grounds for rescinding the contract. He IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Ramos v. Pacheco (1944) 64 Cal.App.2d 304, 306.) The HIC’s arbitration provision states: Any controversy or claim arising out of or related to this contract, or the breach thereof, shall be settled by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. Claims within the monetary limit of the small claims court shall be litigated in such court at the request of either party, so long as both parties limit their right to recovery to the jurisdiction of the small claims court. Any claim filed in small claims court shall not be deemed to be a waiver of the right to arbitrate, and if a counter claim in excess of the jurisdiction of the small claims court is filed in the municipal or superior court, then the party filing in small claims court may demand arbitration pursuant to this paragraph. Notice: by initialing in the space below you are agreeing to have any dispute arising out of the matters included in the “arbitration of disputes” provision decided by neutral arbitration as provided by California law and you are giving up any rights you might possess to have the dispute litigated in a court or jury trial. By initialing in the space below you are giving up judicial rights to discovery and appeal, unless those rights are specifically included in the “arbitration of disputes” provision. If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under the authority of the Business and Professions Code or other applicable laws. Your agreement to this arbitration provision is voluntary. We have read and understand the foregoing and agree to submit disputes arising out of the matters included in the “arbitration of disputes” provision to neutral arbitration. (Petition, Exh. B (all caps in original).) These arbitration provisions are unconscionable as applied to Ignatuk and the facts of this case. The HIC is for all practical purposes, a contract of adhesion as to the principal terms including the arbitration provisions. The Petition includes a version of the HIC as Exhibit A. The page numbering below is based on the order of pages in Exhibit A but they do not reflect any page numbering or imply that the HIC is a single document of connected pages. It is not. (Ignatuk Dec. 147.) The HIC is a pre-printed form which leaves blank spaces for the particulars of the parties and addenda with the particulars of the remodel. The first page has blank spaces for the parties names and addresses, the price and the date and signatures. The second page has 16 preprinted “Additional Terms and Conditions.” The third page is a stand-alone document that contains the preprinted arbitration provisions with signature and initial spaces and check boxes for acknowledgements. There are no pen and ink changes to any preprinted terms. Ignatuk did not receive the arbitration -%- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provisions at the time she signed the first two pages. (Ignatuk Dec. 9948-49.) The fourth page contains preprinted cancelation and insurance information with locations for acknowledgements. The remaining 11 pages that Defendants included in their Petition contain one fully preprinted page regarding pets and the rest are the scope of work for the remodel, change orders and a waiver. (Ignatuk Dec. 4957-58.) (Petition Exh. A.) Ignatuk had a take-it-or-leave-it contract as to the business terms and the arbitration provisions and had a say only as to the scope of the work. (Ignatuk Dec. 950 & 60-61.) The arbitration provisions require the use of the Construction Industry Arbitration Rules (Rules) of the American Arbitration Association (AAA). (Ignatuk Dec. q51.) Ignatuk did not understand the importance of the Rules nor did she receive a copy of those rules. (Ignatuk Dec. 52.) Horizon did not inform Ignatuk of the costs associated with arbitration under the AAA Rules. (Ignatuk Dec. 453.) After the instant dispute occurred Ignatuk discovered that it would cost her almost $5,000.00 just to file an arbitration action. (Ignatuk Dec. 4954-55.) Ignatuk was informed that she would also have to pay for the lists of arbitrators and pay the arbitrator separate fees to arbitrate the dispute. (Ignatuk Dec. 955.) Ignatuk financed the remodel which made a big impact on her budget. (Ignatuk Dec. 956.) As a result, financing an arbitration action as required by the arbitration provision is outside of her budget or ability to pay. (Ignatuk Dec. 456.) Ignatuk is a homeowner with no experience in remodeling contracts. (Ignatuk Dec. 9.) While it is true that Ignatuk is a member of the California Bar, she is a criminal defense attorney with no greater experience in construction contract matters or arbitration agreements than any other consumer. (Ignatuk Dec. 4962-63.) On the other hand, Horizon has been in business for 12 years and has held a general contractor’s license for almost 10 years under Mark Besnos license. (Ignatuk Dec. 9966-68.) Thus, Horizon and its personnel are far more experienced in construction contracts. Tellingly, when the dispute arose between defendants and Ignatuk, Besnos taunted her regarding arbitration. (Ignatuk Dec. 969.) On one occasion when Besnos demanded more money claiming he had finished the Project, which was not true, Ignatuk told him as he was walking out the door, “you act like you want me to sue you.” (Ibid.) Besnos replied, “I don’t care, you signed an arbitration agreement” which Ignatuk took as a threat because of his tone and body language. (Id.) This led her -9- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to believe Besnos had some hidden advantage. (Id.) As it turned out, he did. (Id.) Horizon is insured against suits such as this one and Ignatuk isn’t. (Id.; 470.) Based on these facts, the arbitration provisions form a contract or clause of adhesion because Ignatuk had no opportunity to negotiate its preprinted terms she could only take-it-or-leave-it. (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc., supra, 232 Cal.App.4th at 1350.) Thus, the first element of the Graham approach is met. (Parada v. Superior Court, supra, 176 Cal. App.4th at 1568.) The second element is whether the arbitration provision was outside of the reasonable expectations of the weaker party or was unduly oppressive or unconscionable. Horizon was an experience remodeling contractor who prepared the HIC and offered its basic terms including the arbitration provisions on a take-it-or-leave-it basis. Ignatuk had never entered into a remodeling contract before. Moreover, while Horizon and especially its owner Besnos clearly understood the implications of the arbitration provisions and taunted Ignatuk as to arbitration, Ignatuk had no understanding of the Rules or the costs of arbitration. She was not given a copy of the Rules with the arbitration provisions nor did Horizon disclose the costs associated with arbitration. Unbeknown to her, the costs would be forbidding; she did not have the resources to mount an arbitration action after spending the money to remodel her home and do emergency repairs to mitigate temporarily the damage defendants caused it. In contrast, Horizon was aware of the implications of the arbitration provisions. It also had an ace up its sleeve: if any consumer sued it or its people, it was insured and would be defended by its carrier. (Szetela v. Discover Bank, supra, 97 Cal. App.4th at 1101 (“[The arbitration provision” provides the customer with no benefit whatsoever; to the contrary, it seriously jeopardizes customers’ consumer rights by prohibiting any effective means of litigating Discover's business practices. This is not only substantively unconscionable, it violates public policy by granting Discover a ‘get out of jail free’ card while compromising important consumer rights.”).) When Ignatuk signed the arbitration provisions, she believed them to be even handed and affordable. They were neither. The playing field was uneven from the beginning and Defendants knew it. (Ibid. (“While adhesive arbitration provisions are not per se unconscionable, “there may be arbitration provisions which do -10- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 give an advantage to one party.... In those cases ... it is not the requirement of arbitration alone which makes the provision unfair but rather the ... manner in which the arbitration is to occur.”).) Accordingly, the arbitration provisions unreasonably reallocated the risk of settling disputes to Ignatuk and it did so without disclosing the significant advantage Horizon would have in any arbitration action. The second element of the Graham approach is met. (Parada v. Superior Court, supra, 176 Cal.App.4th at 1568.) In sum, the arbitration provisions are unconscionable as a matter of fact and law. And because the clause was unconscionable, if the arbitration provisions are found to be inseparable from the HIC, the HIC is also unconscionable. But in either case, the arbitration provisions are unenforceable as a matter of law. The HIC addendum should be rescinded because they were extorted by fear of economic loss. Horizon abandoned the Project and refused to return and complete the work unless Ignatuk entered into an “addendum” to the HIC. The addendum reduced the scope of work without reducing the HIC price. It also shifted costs to Ignatuk. Because she feared that she could not afford to finish the work she signed the addendum under duress. This is an illegal extortion and grounds to rescind the addendum and to the extent they are considered part of the HIC, it is grounds to rescind the HIC. (Carson Redevelopment Agency v. Padilla, supra, 140 Cal.App.4th at 1331-1332; Ramos v. Pacheco, supra, 64 Cal. App.2d at 306.) For the reasons above, the arbitration provisions should not be enforced and the HIC or its addendum should be rescinded. B. HORIZON WAIVED THE RIGHT TO ENFORCE THE ARBITRATION PROVISIONS WHEN IT REPUDIATED THE HIC Defendants waived their right to arbitrate by repudiating the HIC by abandonment, the extorted so-called “addendum” notwithstanding. A party who repudiates a contract with an arbitration provision has no right to arbitration. (Grunwald-Marx, Inc. v. Los Angeles Joint Bd. Amalgamated Clothing Workers of America (1961) 192 Cal.App.2d 268, 278-279.) Furthermore, “an abandonment of a contract may be implied from the acts of the parties and this may be accomplished by the repudiation of the contract by one of the -11- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parties and by the acquiescence of the other party in such repudiation.” (Ibid. at 279-280.) The abandonment repudiates the contract and bars enforcement of the arbitration provision. (Id. at 280.) Once a contract is repudiated, the repudiator cannot retract the repudiation and the other party may act in reliance on that repudiation. (Id. at 278.) Further, the use of threatened force or fear to induce a contract is illegal. (Carson Redevelopment Agency v. Padilla (2006) 140 Cal.App.4th 1323, 1331-1332.) Fear includes the fear of economic loss. (Ibid.) The use of fear to induce a contract is grounds for rescinding the contract. (Ramos v. Pacheco (1944) 64 Cal.App.2d 304, 306.) Horizon and Ignatuk entered into the HIC to remodel her home on false premises. Ignatuk was led to believe that Horizon was a respectable company that could deliver a legal and workmanlike remodel to her home. The truth was that Horizon had delivered sub-par work in the past and had been sued for it. Horizon hid that suit and the bad publicity as a condition of paying damages in that case. In doing so, Horizon deceived Ignatuk into entering into the HIC. Had she known that Horizon had been sued for substandard work, she would never have hired Horizon. Horizon’s actions were in violation of law. (Bus. & Prof. Code § 7160 (allowing damages, penalties and fees against any contractor who obtains a job by deceit) and § 7161 (forbidding deceptive practices to obtain work).) But, worse that simply deceiving Ignatuk into contracting with Horizon, once they had the job, Defendants refused to perform as agreed and began to extort concessions as a condition of finishing and not abandoning the Project in violation of law. (Bus. & Prof. Code § 7107.) Those concessions included payment for work they had not done in violation of law, reducing the scope of work but not the price of the HIC, refused to provide lien releases after payment and request for the release, and forcing Ignatuk to bear the cost and responsibility of obtaining materials. (Bus. & Prof. Code §7159.5, subd. (a)(5) (forbidding contractor from “request[ing] nor accept[ing] payment that exceeds the value of the work performed or material delivered”); subd. (a)(6)(requiring delivery of unconditional lien releases on request after payment).) Horizon through Besnos, Eskin and Roppo tried to retract the abandonment and the repudiation of the HIC after Ignatuk demanded performance and threatened to sue. That performance never materialized and this suit followed. -12- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because Horizon pulled its workers off the job, despite the fact that Ignatuk was current on all payments. Horizon abandoned the HIC and the Project. Horizon also abandoned the back-patio portion of the Project in favor of another general contractor. Besnos and Eskin as licensed general contractors were required to supervise the Project to ensure that the work was done according to the HIC and was of the quality Ignatuk expected. (Bus. & Prof. Code § 7068.1.) They failed to do so. (Ignatuk Dec. 4971-72.) Because Besnos and Eskin failed to supervise the Project properly, Ignatuk’s home was damaged and the work done was substandard. Further, by abandoning the back-patio portion of the Project in favor of another contractor, the work done by that contractor was not covered by the HIC. By abandoning the Project, Horizon could no longer retract that repudiation of the HIC. And because it repudiated the HIC, it could no longer enforce the arbitration provisions. C. DOBBIE, WINDTEX AND AMIR ARE NOT SUBJECT TO THE ARBITRATION PROVISIONS AND CANNOT ENFORCE THEM BUT THEY DAMAGED IGNATUK UNDER THE SAME FACTS AND CIRCUMSTANCES AS DEFENDANTS AND THERE IS A POSSIBILITY OF CONFLICTING RULINGS OF FACT AND LAW As discussed above, Dobbie, Amir and Windtex are third-parties not subject to the arbitration provisions. Dobbie was directly hired by Ignatuk. Amir and Windtex listed themselves as the general contractors on the back-patio work and not Horizon. Horizon led Ignatuk to believe it was using subcontractors it supervised were doing the back-patio work and she paid Horizon for the work. However, it was apparent that Horizon was not supervising Windtex. Horizon had abandoned that part of the HIC and pawned it off on Windtex. On information and belief, and with an opportunity to conduct discovery, Ignatuk believes there is no contract between Windtex or Amir and Horizon and that the HIC is therefore not incorporated by reference into the HIC. (Ignatuk Dec. 975.) Because there are third-parties who are not subject to the arbitration provisions, the Code of Civil Procedure allows the Court to (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among -13- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding. (Code Civ. Proc. § 1281.2, subd. (c).) Because there are third-parties not subject to the arbitration agreement who face the possibility of conflicting rulings of law and fact, and because there are other reasons stated above to rescind or refuse to enforce the arbitration provisions, Ignatuk asks the Court to refuse to enforce the arbitration provisions and order all of the parties into this single action for all purposes. The Petition argues that non-signatories may enforce the arbitration provisions. That is true enough as a general proposition and as to Besnos, Eskin and Roppo, as Horizon’s employees. (Roppo is a signatory but as Horizon’s agent.) (Petition, p.20, IIL. A. citing Rowe v. Exline (2007) 153 Cal.App.4th 1276 (holding that alter egos may enforce arbitration agreements).) Non-signatory agents may also be forced to arbitrate a dispute. (Ibid. at 1285.) But, as to Dobbie, Amir and Windtex, that the Petition goes too far. It claims that: [t]he equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are based on the same facts and are inherently inseparable. (Petition, p.21, Mem. III.C citing Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, 833.) That is a misstatement of the law because it goes much farther than the case cited in support as discussed in cases reviewing that case. The Court of Appeal reviewed Turtle Ridge and stated that its holding that an arbitration agreement was enforceable was based on the fact that the arbitration provisions were incorporated by reference into the subcontract not on equitable estoppel reasons. The Turtle Ridge reversed a trial court ruling that refused to enforce an arbitration agreement because there was no direct contractual relationship between the party demanding arbitration and the party against whom the demand was made. (Turtle Ridge, supra, 140 Cal. App.4th at pp. 830-831.) The Court of Appeal, distinguished Turtle Ridge stating that court there “spoke in terms of equitable estoppel, citing Boucher and Metalclad. (Turtle Ridge, supra, 140 Cal.App.4th at p. 833, 44 Cal.Rptr.3d 817. ) But the court actually based its ruling on incorporation by reference. ‘The following emerges from our consideration of the contract and subcontract together: SBC and Clientlogic expressly agreed to -14- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arbitrate any disputes. Their agreement was expressly incorporated by reference in the subcontract between Turtle [Ridge] and Clientlogic. Although the subcontract explicitly excluded certain SBC/Clientlogic terms in the incorporation process, the arbitration clause was not one of them. The result was that either expressly or by incorporation each agreement contained an arbitration provision.” (Id. at p. 834, 44 Cal.Rptr.3d 817, italics added.)” (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal. App.4th 1061, 1073.) To the extent that Petitioners would rely on Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal. App.4™ 1705,1717-1718, it is distinguishable because there a signatory sued a non-signatory to avoid any arbitration agreement and the non-signatory was attempting to enforce the arbitration agreement. That is not the case here. Here the Petitioners are signatories or their agents and are covered by the arbitration provisions of the HIC. Furthermore, for Metalclad Corp. and an equitable estoppel theory to apply, Ignatuk would have to be relying on the HIC’s terms to sue Dobbie, Amir and Windtex. She isn’t. Dobbie’s duties and actions are independent of the HIC. Amir’s and Windtex’s torts, which are still being investigated as to their severity and cost, will be more fully explained in a First-Amended Complaint are for the property damage they caused to Ignatuk’s roof and its supporting structure. Ignatuk is not relying on the terms of the HIC to assert claims against Amir and Windtex. (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 220.) Thus, there is no broad equitable right that subjects “nonsignatory defendants for claims that are based on the same facts and are inherently inseparable” to arbitration agreements to which they are not parties. On the contrary, the rule is that non-signatories cannot be compelled to arbitrate absent an exception such as agents or employees such as Besnos, Eskin and Roppo. In California there are two exceptions where a court can compel a non-signatory to arbitrate. The first is where the non-signatory is a third-party beneficiary of the contract with the arbitration agreement. The second is where “a preexisting relationship existed between the nonsignatory and one of the parties to the arbitration agreement, making it equitable to compel the nonsignatory to also be bound to arbitrate his or her claim.” (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1069-1070.) The Court upheld the refusal to enforce an -15- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arbitration agreement on a non-signatory whose claims where inextricably intertwined with the facts otherwise subject to an arbitration agreement. (Ibid. at 1073-1074.) As to Dobbie, Amir and Windtex, neither exception applies because no one is seeking to compel them, non-signatories to the arbitration provisions, to arbitrate a dispute. On the contrary, Defendants are seeking to compel, it appears, Ignatuk, a signatory to the HIC and the arbitration provision. (Petition, generally.) Petitioners cite to the Code of Civil Procedure which provides that the “court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.” (Mem. p.20, IIIA.) Curiously, the Petition never identifies who the respondent is. We assume the respondent is Ignatuk because she is the plaintiff in Superior Court and no one else is named in the Petition as a respondent. In any case, Petitioners have not presented any facts or legal argument that can compel Dobbie, Amir or Windtex to arbitrate the dispute in the Complaint. Should such arguments arise for the first time in a reply brief, if any exist, Ignatuk objects to those arguments and requests that they not be considered. IV. CONCLUSION For the reasons stated above, Ignatuk asks that the Court rescind the HIC, its arbitration provisions and refuse to enforce the arbitration provisions. Dated: February 15, 2019 PORTALES LAW, PC Peo] Alejandro Portales, Esq. Attorneys for Cynthia Ignatuk -16- IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION P O R T A L E S L A W , P C 2 0 6 W . 4 T H ST ., S U I T E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IGNATUK DECLARATION I, Cynthia Ignatuk, declare: 1. 1 am the plaintiff in this action and I have personal knowledge of each fact stated in this declaration. 2. Thired Steven Dobbie (Dobbie) to design the remodeling work for my home. 3. Dobbie held himself out to me and others to be an architect on various occasions. 4. 1 used Dobbie’s plans for the remodeling work Horizon Construction & Remodeling, Inc. (Horizon) was hired to perform on my home. 5. I first heard about Horizon through door hangers at my home. 6. Ithen went on Horizon’s website to further investigate the company. 7. Horizon’s website described it as one which performed to the highest industry standards and had no complaints which was not true. 8. I discovered that Horizon had been sued for substandard work and had settled the matter. 9. The lawsuit was filed in the Superior Court of Orange County as Case No. 30-2012- 00579339-CU-BC-CJC by Hiangkie Han Gibson and Edward R. Gibson on June 25, 2012 10. Horizon’s settlement terms included removing all negative reviews from public websites. 11. The lack of negative reviews deceived me, leading me to take their website claims at face value and contracting with Horizon without further investigation. 12. Horizon, however, at all times knew that its website’s claims were false. 13. Horizon sent Michaelangelo Roppo, Horizon’s salesperson, to see me and finalize the home improvement contract (HIC). 14. Roppo misrepresented Horizon’s reputation and ability when he presented Horizon’s contract to me reassuring me that Horizon could and would do the remodeling work in a workmanlike manner and on time. 15. After I hired Horizon, I noticed that the work was being delayed time and time again and eventually was months behind schedule. 16. I also noticed that Horizon’s work was not up to what I expected of a general contractor and I began to lose confidence in Horizon’s ability to do the promised work according to the promised IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 highest level of industry standards. 17. 1 saw that the remodel had significant problems including plumbing issues, unfinished work, and damage to my home. 18. When I complained that the work was defective and had delayed far too long, Besnos pulled all workers off the Project and repudiated the HIC although I was current on all payments. 19. Roppo tried to salvage the remodeling project (Project) and demanded a new “addendum” to the HIC as a condition of continuing work on the Project. 20. I had no choice and I was under duress to get the job done so I could use my home I agreed to the so-called “addendum.” 21. To my surprise, Besnos rejected the extorted “addendum” claiming Roppo did not have the authority to make such an agreement for Horizon. 22. Besnos instead demanded further concessions or he would not complete the Project. 23. Eventually, Besnos relented and agreed to honor the Roppo “addendum.” 24.1 again tried to work with Horizon but it was clear that despite telling me they would finish the Project under the extorted terms, they did not. 25. At this point I gave Horizon notice of its breach of the HIC and whatever subsequent “addendum” if any was valid. 26. Horizon abandoned the Project and then belatedly decided to try and mitigate the mess it created. 27. At this point, I no longer trusted Horizon and the other defendants and I stopped using them. 28. Once Horizon was no longer on the Project, I had the City of Tustin (City) inspect Horizon’s work. 29. The City’s inspectors notified me that the work was improperly done, that areas that needed to be inspected were covered with walls and had not been inspected as required by law. 30. The inspectors also informed me that Dobbie’s plans were defective, and the work done according to those plans was not acceptable and had to be redone. 31. I contacted Dobbie and asked him to correct the plans and he refused. 32. At this point I questioned Dobbie’s credentials and discovered he was not a licensed architect. -7- IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33. I challenged Dobbie on this and informed him I would have to replace him with a licensed architect. 34. Dobbie was extremely angry in response. 35. Dobbie’s defective plans were responsible for causing damage to my home which will require repair. 36. I also learned from the inspectors that, although Horizon was required to pull permits under the HIC (Additional Term 4), Windtex, Inc., owned by Beni Zohar Amir, had pulled the permits to do the back-patio work in Windtex’s name as the general contractor on the job rather than through Horizon, the actual general contractor on the Project. 37. This was the first time I heard of this company and its involvement in the Project. 38. I have no contractual relationship with Windtex or Amir. 39. Horizon led Ignatuk to believe it used and supervised a subcontractor do the work on the back-patio. 40. Windtex and Amir (collectively, Windtex unless context dictates otherwise) were then and are now under licensing discipline and investigation by law enforcement for the work they had previously performed for others. 41. It was clear to me that although Horizon represented to me that it was doing the back-patio work with a subcontractor which it supervised and I had paid Horizon for that work, Horizon had abandoned the back-patio work and given the work to someone else without my knowledge. 42. I would never have hired Windtex to do any work on my home had I known about them. 43. Windtex’s work was defective and caused significant damage to my home including the soffits and the roof. 44. Horizon tried to get me to replace the roof for $35,000.00 despite the City inspector’s opinion that roof did not need to be replaced. The was in excellent condition before Horizon’s work and would have lasted years. Yet, unbeknown to me Horizon had already damaged the roof. 45. When I refused to replace the roof, Horizon forced me to waive any potential liability that Horizon or a potential roofer may have for leaks occurring to my roof as a condition of continuing the Project. “B= IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. Mark Besnos, Horizon’s responsible managing officer (RMO) and 20% or more shareholder, repudiated the HIC and refused to honor it when it was no longer convenient to him or Horizon. 47. The HIC attached to defendants’ petition as Exhibit A is not how it was presented to me. 48. I received the first two pages as the HIC. 49. 1 later signed as a separate document, the arbitration provisions. 50. The HIC was a take-it-or-leave-it contract as to the business terms and the arbitration provisions and I had a say only as to the scope of the work. 51. The arbitration provisions require the use of the Construction Industry Arbitration Rules (Rules) of the American Arbitration Association (AAA). 52. I did not understand the importance of the Rules nor did I receive a copy of those Rules 53.1 was not informed of the costs associated with arbitration under the Rules and only after a dispute occurred did I discover that it would cost me almost $5,000.00 just to file an arbitration action. 54. Attached as Exhibit A and incorporated by reference is a true and correct copy of the fee schedule for the AAA. 55. I'understand that I would also have to pay for the lists of arbitrators and also pay the arbitrator separate fees to arbitrate the dispute. 56. I had to finance the remodel which was a big decision for me and which made a big impact on my budget making financing an arbitration action as required by the arbitration provision outside of my budget or ability to pay. 57. Finally, I received as a separate document, the scope of work pages. 58. The change orders were entered into as they occurred. 59. The HIC attached to the petition is missing the other “addenda” I was forced to sign. 60. Attached as Exhibit B and incorporated by reference is a true and correct copy of the additional addenda. 61. I had no say in the HIC’s preprinted terms and the arbitration provisions. 62. I only had a say in the HIC as to the scope of the work. 63. I have no experience in remodeling contracts. -4- IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 64. I am a member of the California Bar and practice as a criminal defense attorney. 65. I have no experience in construction contract matters or arbitration agreements. 66. Horizon has been in business for 12 years and has held a general contractor’s license for almost 10 years under Mark Besnos license. 67. Attached as Exhibit C and incorporated by reference is a true and correct copy of Horizon’s Articles of Incorporation. 68. Attached as Exhibit D and incorporated by reference is a true and correct copy of Horizon’s general contractor’s license. 69. Besnos taunted me with threats of arbitration twice. The second time, when Besnos demanded more money and claimed he had finished the Project, which was not true, I told him as he was walking out the door, “you act like you want me to sue you.” He replied, “I don’t care, you signed an arbitration agreement” which I took as a threat. Besnos tone and body language led me to believe he had some advantage I was unaware of. He did: Horizon is insured against suits such as this one and I wasn’t. 70. Attached as Exhibit E and incorporated by reference is a true and correct copy of Horizon’s insurance documents. 71. Neither Besnos and Eskin who are licensed general contractors supervised the day-to-day work on the Project to ensure that the work was done according to the HIC and was of the quality | expected. 72. Attached as Exhibit F and incorporated by reference is a true and correct copy of the Contractor’s State Licensing Board printout showing Besnos’ and Eskin’s general contractor’s licenses. 73. Roppo, the home improvement salesperson (HIS) was the person who Horizon used to communicate with me. 74. Attached as Exhibit G and incorporated by reference is a true and correct copy of the Contractor’s State License Board printout showing Roppo’s HIS registration. 75. On information and belief, and with an opportunity to conduct discovery, I believe there is no contract between Windtex or Amir and Horizon and that the HIC is therefore not incorporated by =5= IGNATUK DECLARATION P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reference into the HIC. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: February 15,2019 Cynthia Ignatuk -6- IGNATUK DECLARATION EXHIBIT A ® AMERICAN ARBITRATION ASSOCIATION" Construction Industry Arbitration Rules and Mediation Procedures Administrative Fee Schedules Amended and Effective October 1, 2017 For all cases determined to be international by the AAA-ICDR, the International Fee Schedule shall apply. An international case is generally defined as having either the place of arbitration or performance of the agreement outside the United States, or having an arbitration agreement between parties from different countries. To view the International Fee Schedule, visit info.adr.org/internationalfeeschedule. The AAA offers parties two options for the payment of administrative fees. For both schedules, administrative fees are based on the amount of the claim or counterclaim and are to be paid by the party bringing the claim or counterclaim at the time the demand or claim is filed with the AAA. Arbitrator compensation is not included in either schedule. Unless the parties’ agreement provides otherwise, arbitrator compensation and administrative fees are subject to allocation by an arbitrator in an award. Standard Fee Schedule: A two-payment schedule that provides for somewhat higher initial filing fees but lower overall administrative fees for cases that proceed to a hearing. Flexible Fee Schedule: A three-payment schedule that provides for lower initial filing fee and then spreads subsequent payments out over the course of the arbitration. Total administrative fees will be somewhat higher for cases that proceed to a hearing. Standard Fee Schedule Flexible Fee Schedule ; re srs 5 . ; Initial | Amount of Claim Initial Filing Fee Final Fee Amount of Claim = Proceed Fee Final Fee : Filing Fee Less than $75,000 $750 $800 Less than $75,000 Only available for claims $150,000 and above $75,000 to less than $150,000 $1,750 $1,250 $75,000 to less than $150,000 $150,000 to less than $300,000 $2,650 $2,000 $150,000 to less than $300,000 $1,650 $1,700 $2,000 $300,000 to less than $500,000 $4,000 $3,500 $300,000 to less than $500,000 $2,000 $3,000 $3,500 500,000 to less than $1,000,000 2,500 4,300 6,200 $500,000 to less than $1,000,000 $5,000 $6.200 $ 0 less than $ $ $ $ $1,000,000 to less than $1,000,000 to less than $3,500 $5,700 $7,700 http://info.adr.org/constructionfeeschedule/[2/14/2019 17:40:26] $10,000,000 5000 B7a00 $10,000,000 $10,000 plus .01% of the $9,000 plus .01% of the $10,000,000 and above claim amount above $12,500 $10,000,000 and above $5,000 SRILA RTE $12,500 $10,000,000 up to $10,000,000 up to $65,000 $65,000 i Undetermined Monet: Undetermined Monetary $7,000 $7.700 n Ie er ned Monetary $3.500 $5.700 $7,700 Claims Claims Nonmonetary Claims* $3,250 $2,500 Nonmonetary Claims* $2,000 $2,250 $2,500 Deficient Filing Fee $500 Deficient Filing Fee $500 If there are more than two separately represented parties in the If there are more than two separately represented parties in the arbitration, an additional 10% of each fee contained in these arbitration, an additional 10% of each fee contained in these fee schedules will be charged for each additional separately fee schedules will be charged for each additional separately i, represented party. However, Additional Party Fees will not i represented party. However, Additional Party Fees will not A Additional Party F Lo dditional Party Fees exceed 50% of the base fees contained in these fee schedules tional Party Fees exceed 50% of the base fees contained in these fee schedules unless there are more than 10 separately represented parties. unless there are more than 10 separately represented parties. See below for additional details. See below for additional details. o The Initial Filing Fee is payable in full by a filing party when a claim, counterclaim, or additional claim is filed. e The Final Fee will be incurred for all cases that proceed to their first hearing and is payable in advance at the time the first hearing is scheduled. ¢ Fee Modifications: Fees are subject to increase if the claim or counterclaim is increased after the initial filing date. Fees are subject to decrease if the claim or counterclaim decreases prior to the first hearing. e Cases with Three or More Arbitrators are subject to a minimum Initial Filing Fee of $4,000 and a Final Fee of $3,500. e Nonmonetary Claims: The non-monetary filing fee is the minimum filing fee for any case requesting non-monetary relief. Where a party seeks both monetary damages and non-monetary relief, the higher of the two filing fees will apply. Refunds-Standard Fee Schedule: Initial Filing Fees: Subject to a $500 minimum non-refundable Initial Filing Fee for all cases, refunds of Initial Filing Fees for settled or withdrawn cases will be calculated from the date the AAA receives the demand for arbitration as follows: e within 5 calendar days of filing-100%. e between 6 and 30 calendar days of filing-50% e between 31 and 60 calendar days of filing-25% http://info.adr.org/constructionfeeschedule/[2/14/2019 17:40:26] The Initial Filing Fee is payable in full by a filing party when a claim, counterclaim, or additional claim is filed. The Proceed Fee must be paid within 90 days of the filing of the demand for arbitration or a counterclaim before the AAA will proceed with the further administration of the arbitration, including the arbitrator appointment process. e Ifa Proceed Fee is not submitted within 90 days of the filing of the Claimant’s Demand for Arbitration, the AAA will administratively close the file and notify all parties. o If the Flexible Fee Schedule is being used for the filing of a counterclaim, the counterclaim will not be presented to the arbitrator until the Proceed Fee is paid. The Final Fee will be incurred for all cases that proceed to their first hearing and is payable in advance at the time the first hearing is scheduled. Fee Modifications: Fees are subject to increase if the claim or counterclaim is increased after the initial filing date. Fees are subject to decrease if the claim or counterclaim decreases prior to the first hearing. Cases with Three or More Arbitrators are subject to a minimum Initial Filing Fee of $2,000, a $3,000 Proceed Fee and a Final Fee of $3,500. Nonmonetary Claims: The non-monetary filing fee is the minimum filing fee for any case requesting non-monetary relief. Where a party seeks both However, no refunds will be made once: monetary damages and non-monetary relief, the higher of the two filing fees . . . . . will apply. e any arbitrator has been appointed (including one arbitrator on a three-arbitrator panel). Refunds-Flexible Fee Schedule: Final Fees: If a case is settled or withdrawn prior to the first hearing taking place, all Under the Flexible Fee Schedule, Filing Fees and Proceed Fees are Final Fees paid will be refunded. However, if the AAA is not notified of a non-refundable once incurred. cancellation at least 24 hours before a scheduled hearing date, the Final Fee will remain due and will not be refunded. Final Fees: If a case is settled or withdrawn prior to the first hearing taking place, all Final Fees paid will be refunded. However, if the AAA is not notified of a cancellation at least 24 hours before a scheduled hearing date, the Final Fee will remain due and will not be refunded. Additional Fees Applicable to the Standard Fee and Flexible Fee Schedules Additional Party Fees: Additional Party Fees will be charged as described above, and in addition: e Additional Party Fees are payable by the party, whether a claimant or respondent, that names the additional parties to the arbitration. e Such fees shall not exceed 50% of the base fees in the fee schedule, except that the AAA reserves the right to assess additional fees where there are more than 10 separately represented parties. ¢ An example of the Additional Party Fee is as follows: A single claimant represented by one attorney brings an arbitration against two separate respondents, however, both respondents are represented by the same attorney. No Additional Party Fees are due. However, if the respondents are represented by different attorneys, or if one of the respondents is self- represented and the other is represented by an attorney, an additional 10% of the Initial Filing fee is charged to the claimant. If the case moves to the Proceed Fee stage or the Final Fee stage, an additional 10% of those fees will also be charged to the claimant. Incomplete or Deficient Filings: Where the applicable arbitration agreement does not reference the AAA, the AAA will attempt to obtain the agreement of all parties to have the arbitration administered by the AAA. e Where the AAA is unable to obtain the parties’ agreement to have the AAA administer the arbitration, the AAA will not proceed further and will administratively close the case. The AAA will also return the filing fees to the filing party, less the amount specified in the fee schedule above for deficient filings. e Parties that file Demands for Arbitration that are incomplete or otherwise do not meet the filing requirements contained in the rules shall also be charged the amount specified above for deficient filings if they fail or are unable to respond to the AAA’s request to correct the deficiency. Arbitrations in Abeyance: Cases held in abeyance by mutual agreement for one year will be assessed an annual abeyance fee of $500, to be split equally among the parties. If a party refuses to pay the assessed fee, the other party or parties may pay the entire fee on behalf of all parties, otherwise the arbitration will be administratively closed. All filing requirements, including the payment of filing fees, must be met before a matter will be placed in abeyance. Fees for Additional Services: The AAA reserves the right to assess additional administrative fees for services performed by the AAA that go beyond those provided for in the AAA’s rules, but which are required as a result of the parties’ agreement or stipulation. Hearing Room Rentals: The fees described above do not cover the cost of hearing rooms, which are available on a rental basis. Check with the AAA for availability and rates. http://info.adr.org/constructionfeeschedule/[2/14/2019 17:40:26] Mediation-Administrative Fee Schedules A $250 non-refundable deposit, which will be applied toward the mediation fee, is required to initiate the AAA’s administration of the mediation and appointment of the mediator. The mediator’s fee is stated on his or her resume. The AAA administrative fee, split by the parties, is $75 per hour billed by the mediator with a minimum four hour charge for any mediation held. Expenses referenced in Section M-17 of the Mediation Procedures may also apply. If a matter submitted for mediation is withdrawn or cancelled or results in a settlement after the request to initiate mediation is filed but prior to the mediation conference, the AAA administrative fee is $250 (to which the deposit will be applied) plus any mediator time and expenses incurred. These costs shall be borne by the initiating party unless the parties agree otherwise. If you have questions about mediation costs or services, visit www.adr.org or contact your local AAA office. © American Arbitration Association, Inc. A// rights reserved. http://info.adr.org/constructionfeeschedule/[2/14/2019 17:40:26] EXHIBIT B sere hoFzeREEmsA HIRE con} Toll Free: 866-446-5188 Lic# 938236 This Addendum represents tiers, known to client that remain to be completed. Revision of Front porch flooring; Revision of credited items to client; Revised payment schedule for remaining balance owed. Interior & exterior work / Punchlist: e 9 © 0 oo © » Interior: Remove weather strip at bottom of garage door, repair paint where clients dog chewed wood. Interior: Add Calking to mater floor between flooring and garage door threshold Interior: Repair scratches under pool table on floor. interior: Install 3 interior door handles Interior: Install shoe molding at back of range to close gap between range and counter, to be painted white Interigr: Install scribe molding at base board under fireplace Interior: Install/supply 2 HVAC supply vent covers, 1 access panel in closet Interior: Final interior painting Interior: install zip ties for lines at garbage disposal and dishwasher Interior: Small texture patch in front of closet Interior; Install/supply door casing at closet door, center door, install handle on closet door (Client to supply handles) . Exterior Front house: Install standard smooth cement for front porch area with scores lines every 8ft, créate up to 4 steps, sidewalk to side of house W: 36in x L: 160in smooth concrete with 3 score lines, up to 275 sq./ft included for front porch and sidewalk area only.{see sketch) Exterior; Supply Travertine stone tiles Country Classic (as selected in MSI) (to cover entire front porch and steps} up to 300sq./ft. included. Install Travertine stone tiles at front porch area and front porch steps, Create bullnose detail from stone tiles, and face of front porch only. no tiles will be installed on sidewalk area (see sketch) Exterior: Install/supply 4x8 bead board panels on ceiling of front porch area, install/supply 4, 2 piece fluted round post cover as listed in print, install/supply L: 18ft x H H: 3ft hand rail with paint grade 2x6 hand rail, 2in x 2in square spindles, Install/supply 10in crown molding in front of porch up to 2tft included, Install/supply paint grade Plywood t to wrap beam up to 27ft included {see sketch). pron FOF R/O AH - Priced Name pr 250 Date 16-// 75 1|Page 614s Euclid, St Fullerton 92832 Toll Free: 866-446. S188 Fax 71 4707- 5352 V Y V Y V v y e ® eo > 1) 2) 3) 4) e Exterior: Install white_Paint all wood work at front porch ceiling, rail, post. Finish white paint install of all stucco, eves, dark brown for facia. ¢ Exterior Back Yard: Install frame for 4 post bases at back yard patio cover W: 14in x W:14in x H: 31 in. Install ledger tiles at 4 post bases, and under window, up to 75sq/ft included at window area and up to 50 sq./ft included at post, contractor will not be responsible for custom fabricate of any corners. Stone caps will need to be cut and mitered. Note: These are approximate measurements. Client will supply all materials for post and window ledgerstone installation, including all caps, outside corners for posts, and ledgerstones. (See sketch). Stone provided by client. Client agrees that the items listed in the above punch list are final items {tha known to client at the time this addendum is signed) to complete project in full: Initial No further discounts-promotion-special pricing will be applied Init { r-- No credits for the following items will be applied. Initial { New widows will not be installed and no credit will be given. Initial Attic fans will not be installed and no credit will be given, Initial: Back exterior door will not be installed and no credit will be given Tniti Exterior shutters will not be installed and no credit will be given. Initial: No Stamped concrete will be installed. This Original item is replaced with Travertine tile installation instead of the stamped concrete. . Initial; G . Interior Cleaning will not be comp when project is -client will assume responsibility for cleaning. Initial In return for the i listed above Contractor will now add the following items at no additional charge: Initial: In case city or city inspector will require any work to be done regarding the vents, No work (labor & material) is included. . Initial: Oo ALL Payments must be made on time to keep work schedule listed payments could affect completion of remaining items. Initial: low, failure to make Date: Revised Payment Schedule; Final Balance Owed by Client: $12,682.25 All interior of house work finished - Payment due $1,527.50 Concrete & Tile install finished - Payment due: $5,000.00 Front house exterior work finished - Payment due $2,500.00 All work completed - Payment due $3,654.75 pate Cf Ae [0 ~~ 1 - Date: fo-rte ~/8& 2|Page CLeNT “OKC TO CLOSE VENT" STANPARD 74 ---- Rei STRET FRONT i fi8sT STEP 1o~ : NO “TLE on CRN RAIL LeEL With N RAIL LL WITH EX\STING DRWEWAY, With DRWEWAMN, (TFs 55 (C14 & EXHIBIT C 2912 011 in room i DD id of the Stare 3 of Exjiary o of Stale FEB 0 5 2007 ARTICLES OF INCORPORATION ~~ ~~~ I. The name of this corporations MARK BESNOS, INC. IIL. The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the GENERAL CORPORATION LAW of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III. The name and address in the State of California of this corporation’s initial agent for service of process is: Mark Besnos 16761 Viewpoint Ln Suite 354 Huntington Beach, California 92647 IV. This corporation is authorized to issue only one class of shares of stock; and the total Number of shares which this corporation is authorized to issue is 100,000. \ Mark Besnos IncorBofatdr EXHIBIT D CONTRACTORS STATE LICENSE BOARD Contractor's License Detail for License # 938230 NSCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this nformation, you should be aware of the following limitations. CSLB complaint disclosure is restricted by law (B&P 7124.6) If this entity is subject to public complaint disclosure, a link for complaint disclosure will appear below. Click on the link or button to obtain complaint and/or legal action information, Per B&P 7071.17, only construction related civil judgments reported to the CSLB are disclosed. Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitration. Due to workload, there may be relevant information that has not yet been entered onto the Board's license database. Data current as of 9/25/2017 9:37:05 AN Business Information HORIZON CONSTRUCTION & REMODELING INC 614 SOUTH EUCLID STREET FULLERTON, CA 92832 Business Phone Number:(714) 449-9035 Entity Corporation Issue Date 09/28/2009 Expire Date 09/30/2019 License Status This license is current and active. All information below should be reviewed. l ion B - GENERAL BUILDING CONTRACTOR Bondin rmati Contractor's Bond This license filed a Contractor's Bond with AMERICAN CONTRACTORS INDEMNITY COMPANY. | Bond Number: 100174641 Bond Amount: $15,000 Effective Date: 01/01/2016 | Contractor's Bond History Bond of Qualifying Individual this company; therefore, the Bond of Qualifying Individual is not required. The qualifying individual MARK BESNOS certified that he/she owns 10 percent or more of the voting stock/membership interest of | Effective Date: 11/05/2015 Workers' nsation This license has workers compensation insurance with the STATE COMPENSATION INSURANCE FUND | Policy Number: 1949382 Effective Date: 04/30/2010 Expire Date: 04/01/2018 Workers' Compensation History Miscellan form 12/14/2015 - CONTRACTOR HIS LETTER SENT STATE OF CALIFORNIA Contractors State License Woard Pursuant to Chapter 9 of Division 3 of the Business and Professions Code and the Rules and Regulations of the Contractors State License Board, the Registrar of Contractors does hereby issue this license to: HORIZON CONSTRUCTION & REMODELING INC LicéRise Nurnber 936230 to engage in the Business or act in the capacity of a contractor in the’ folowing classification(s): B- GENERAL BUILDING CONTRACTOR Witness my hand and seal this day, September 29, 2009 Issued September 28, 2009 ( / James Miller Stephen P. Sands i This license is the’ property of the Registrar of Contractors, : Board Chair is not transferrable, and shal be returned to the Registrar Registrar of Contractors upon demand when suspended, revoked, or invalidated for any reason. It becomes void if not renewed. 131-24 (REV. 12-07) EER OSP 07 105460 AUDIT NO: 479185 WEAYE BF zALIrORNIA CONTRACTORS CJC" =3 STATE LICENSE BOARD ACTIVE LICENSE OEPARTIAGRT OF CONSUMER AFT ARS. 938230 CORP sans ore HORIZON CONSTRUCTION & REMODELING INC Classbcabond(s) B iA cononcae 09/30/2019 www. cslb.ca.gov EXHIBIT E TOKIO MARINE American Contractors Indemnity Company \ HCC 801 S. Figueroa Street, Suite 700 Los Angeles, CA 90017 main 310 649 0990 facsimile 310 645 9274 September 20, 2017 Continuation Certificate Bond No. Bond Description Bond Amount Effective Date Expiration Date 100174641 R2017 CLB (CONTRACTOR $15,000.00 09/18/2017 09/18/2019 LICENSE) Principal: HORIZON CONSTRUCTION & REMODELING INC 614 S. EUCLID STREET FULLERTON, CA 92832 Obligee: CALIFORNIA CONTRACTORS STATE LICENSE BOARD P.O. BOX 26000 SACRAMENTO, CA 95826 THIS BOND CONTINUES IN FORCE TO THE ABOVE EXPIRATION DATE CONDITIONED AND PROVIDED THAT THE LOSSES OR RECOVERIES IN IT AND ALL ENDORSEMENTS SHALL NEVER EXCEED THE PENALTY SET FORTH IN THE BOND AND WHETHER THE LOSSES OR RECOVERIES ARE WITHIN THE FIRST AND/OR SUBSEQUENT OR WITHIN ANY EXTENSION OR RENEWAL PERIOD, PRESENT, PAST OR FUTURE. ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. SIGNED AND DATED THIS 20th DAY OF Sept 2017 American Contractors Indemnity Company 000 BETHANY HARGRAVES |, Attorney-in-fact await, SR ACT Og 8, S AN Coase! 29 “4%, So 0% Tar wz Tal BZ EN TE 28: INCORPORATED 5 Z 2%: SEPT.251990 <3 ze SOI * “, , 2, ~ ox $8 oi N (a) LIFORW we Tangy pan Agency: ALTA VISTA INSURANCE AGENCY, INC. P.O. BOX 1480 VISTA, CA 92085 ® ACCORD Ne CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY] 11/3/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Alta Vista Insurance Agency PHONE A/C, No, Ext): NAME: George Francis FAX [ake No): PO Box 1480 RDORESS: george(a altavistainsurance.com INSURER(S) AFFORDING COVERAGE NAIC # Vista CA 92805 INSURER A : Colony Insurance Company INSURED INSURER B : Horizon Construction & Remodeling, Inc INSURER C : 614 South Euclid Street INSURER D : INSURER E : Fullerton CA 92832 INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN {S SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPE OF INSURANCE NSD WVD POLICY NUMBER (MMDBNY YY) (MRIBBIYVYY) LIMITS 3 | COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1.000.000 DAMAGE TO RENTED | cLams- MaDe [X] OCCUR PREMISES (Ea occurrence) $ 100.000 re=t MED EXP (Any one person) $ 5,000 A 101GL006460702 10 122017 | 10 122018 [PERSONAL & ADV INJURY $ 1.000,000 GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $s 2,000,000 POLICY ES [] Loc PRODUCTS - COMP/OP AGG |$ 2,000,000 OTHER $ AUTOMOBILE LIABILITY eo VOLE TN $ ANY AUTO BODILY INJURY (Per person) |$ | OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) | $ {HIRED NON-OWNED 3 AUTOS ONLY AUTOS ONLY (Per accident) $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED | [Reventon $ $ WORKERS COMPENSATION [E¥Arure | [rR AND EMPLOYERS’ LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE EL EACH ACCIDENT $ IOFFICER/MEMBER EXCLUDED? [1] N/A Mandatory in NH) EL DISEASE - EA EMPLOYEE|$ If yes, describe under DESCRIPTION OF OPERATIONS below EL DISEASE - POLICY LIMIT |$ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER -_ = CANCELLATION Proof Of Insurance SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Bethany Hargranes ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD EXHIBIT F Contractor's License Personnel Detail ONTRACTORS mile STATE LICENSE BOARD A Consumers Contractors Online Services Media Room About Us Home | Online Services | License Detail | Personnel List | Personnel Detail ! i } } Online Services Quick Hits Check a License or HIS Contractor 938230 Registration License # . . Contractor HORIZON CONSTRUCTION & REMODELING INC Bind My Licensed Coniracior Name Frequently Asked Questions Forms and Applications Name MARK BESNOS Guides and Publications CSLB Laws and Regulations Title and Class History Listof All CSLB Fees License Classifications Contractor Newsletter Title CEO/PRESIDENT a Applicat Classification Application Status Association 09/28/2009 Application Status (Secured) Date Application Status by Disassociation 11/05/2015 Personnel Name Date Po Title RMO/CEO/PRES Application Status by igre: Business Name Classification B GENERAL BUILDING CONTRACTOR Association 11/05/2015 CSLB Email Login Date Bonding History Effective Date 11/05/2015 {> Select Language V This Google translation feature is provided for informational purposes only; CSLB is unable to https://www2.cslb.ca.gov/...aspx?LicNum=938230&SeqNumber=883418 &LicName=HORIZON+CONSTRUCTION+%26+REMODELING+INC[2/15/2019 17:51:12] Contractor's License Personnel Detail guarantee the accuracy of this translation. Please consult a professional translator for accuracy if you are using this site for official business. Conditions of Use Privacy Policy Accessibility Contact Us Website Feedback Accessing CSLB Public Records CSLB Email Login Copyright © 2014 state of California Contractors State License Board https://www2.cslb.ca.gov/...aspx?LicNum=938230&SeqNumber=883418 &LicName=HORIZON+CONSTRUCTION+%26+REMODELING+INC[2/15/2019 17:51:12] Personnel License List | - *ONTRACTORS mile STATE LICENSE BOARD A Consumers Contractors Online Services Media Room About Us Home | Online Services | Personnel Search Results | Personnel License List x } : } Online Services Quick Hits Check a License or HIS Registration Click on the license number to see a more detailed page Find My Licensed Contractor of information on that person. Frequently Asked Questions Forms and Applications K lo VA : With Guides and Publications icenses Currently Associated Wit -- List of All CSLB Fees License # 1009969 License Classifications Business Name ESKIN ENNA Contractor Newsletter City ANAHEIM Association 12/28/2015 Application Status Date Application Status (Secured) Status ACTIVE License # 938230 Application Status by Personnel Name Business Name HORIZON CONSTRUCTION & RE City FULLERTON Application Status by Association 04/04/2017 Business Name Date CSLB Email Login Online Services Status ACTIVE {> Select Language V This Google translation feature is provided for informational purposes only; CSLB is unable to https://www2.cslb.ca.gov/OnlineServices/CheckLicensell/PersonnelLicenseList.aspx?SeqNumber=959735&PersName=ESKIN%2c+ENNA[2/15/2019 17:52:16] Personnel License List guarantee the accuracy of this translation. Please consult a professional translator for accuracy if you are using this site for official business. Conditions of Use Privacy Policy Accessibility Contact Us Website Feedback Accessing CSLB Public Records CSLB Email Login Copyright © 2014 state of California Contractors State License Board https://www2.cslb.ca.gov/OnlineServices/CheckLicensell/PersonnelLicenseList.aspx?SeqNumber=959735&PersName=ESKIN%2c+ENNA[2/15/2019 17:52:16] EXHIBIT G Home Improvement Registration Detail rd Nv tl YcsLB “Ua I" re I mile STATE LICENSE BOARD A Consumers Contractors Online Services Media Room About Us Home | Online Services | HIS Details j i } ] Online Services Quick Hits € Home Improvement Registration Detail Check a License or HIS Registration CSLB license database. Before relying on this information, you should Find My Licensed Contractor DISCLAIMER: A license status check provides information taken from the be aware of the following limitations: Frequently Asked Questions CSLB complaint disclosure is restricted by law (B&P 7124.6). If this entity is subject to public complaint disclosure, a link for Forms and Applications complaint disclosure will appear below. Click on the link or button Guides and Publications to obtain complaint and/or legal action information. CSLB Laws and Regulations Per B&P 7071.17, only construction-related civil judgments Li ist of All CSLB Fees reported to the CSLB are disclosed. License Classifications Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitration. Contractor Newsletter Application Status Due to workload, there may be relevant information that has not yet been entered onto the Board's license database. Application Status (Secured Application Status by Personnel Name Application Status by Business Name Salesperson Information CSLB Email Login MICHAELANGELO ROPPO ) ) 203 N SAN DIMAS CANYON RD Online Services SAN DIMAS, CA 91773 (312) 520-0955 HIS Registration 96337 SP Issue Date 03/05/2015 Expiration Date 07/31/2019 Registration Status This registration is current and active. All information below should be reviewed. https://www2.cslb.ca.gov/OnlineServices/CheckLicensel /HISDetail.aspx ?ZHISLicNum=00096337 &HISLm{Pre=SP[2/15/2019 17:53:02] Home Improvement Registration Detail Licenses Currently Employed By License #: 938230 HORIZON CONSTRUCTION & REMODELING INC 614 SOUTH EUCLID STREET FULLERTON, CA 92832 Phone Number: (714) 449-9035 Effective Date: 08/14/2017 Licenses No Longer Employed By License #: 989433 SO CAL HOME REMODELING INC 7100 HAYVENHURST AVE #324 VAN NUYS, CA 91406 Phone Number: (855) 899-1799 Effective Dates: 03/05/2015 - 11/24/2015 Use this form to make changes to your registration info {> Select Language ¥ This Google translation feature is provided for informational purposes only; CSLB is unable to guarantee the accuracy of this translation. Please consult a professional translator for accuracy if you are using this site for official business. Conditions of Use Privacy Policy Accessibility Contact Us Website Feedback Accessing CSLB Public Records CSLB Email Login Copyright © 2014 state of California Contractors State License Board https://www2.cslb.ca.gov/OnlineServices/CheckLicensel /HISDetail.aspx ?ZHISLicNum=00096337 &HISLm{Pre=SP[2/15/2019 17:53:02] P O R T A L E S L A W , P C 2 0 6 W 4 T H ST ., S U I T E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. Iam over the age of 18. My business address is 206 W. 4" St.. Suite 307; Santa Ana, CA 92701. On February 15, 2019, I served the within document(s) described as: IGNATUK’S OPPOSITION TO DEFENDANTS’ PETITION TO COMPEL ARBITRATION; IGNATUK DECLARATION on the interested parties in this action as stated on the attached mailing list as follows: [1] (MAIL) I am not a party to the action and I deposited the document in a sealed envelope in the mail with postage prepaid. Code Civ. Proc. §1013a, subd. (1). [1] (MAIL - BUSINESS) I am not a party to the action and I am readily familiar with the business’ practice for collection and processing of correspondence for mailing and know it deposits the mail with the US Postal Service the same day; I placed the document in a sealed the envelope with postage prepaid for collection and mailing following ordinary business practices. Code Civ. Proc. §1013a, subd. (3). [1] (OVERNIGHT DELIVERY) I deposited the document in a sealed envelope in a facility maintained by an overnight service or other express service, or delivered to a courier or driver authorized by that service to receive documents with all fees paid. [X] (ELECTRONIC SERVICE) I electronically served the document on the date indicated below to the persons identified in the attached service list. Electronic service was agreed to by the parties or by operation of law including by application of Rules of Court, Rule 2.251(b)(1)(B). [1] (PERSONAL SERVICE) I caused the document in a sealed envelope to be delivered to the persons in the attached service list at the address indicated in the service list. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: February 15,2019 Pe | Alejandro Portales PROOF OF SERVICE P O R T A L E S L A W , PC 20 6 W. 4™ ST ., SU IT E 30 7 S A N T A AN A, CA 92 70 1 T: ( 7 1 4 ) 4 2 6 - 9 0 1 0 F: ( 7 1 4 ) 5 6 9 - 0 5 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Attorney: Party: Frederick P. Hayes, Esq. Defendants: 515 E. Commonwealth Ave. Maik Basics Fullerton, CA 92832-2020 « (714) 481-5820 Fg. Belkin Michaelangelo Roppo FredHayesEsq@gmail.com Horizon Construction & Remodeling, Inc. SERVICE LIST
