UNITED RIGGERS & ERECTORS v. COAST IRON & STEEL

Amicus Curiae Brief of Associated General Contractors of California

Cal.August 12, 2016

PUPS TR AT AVANT TTR Mee ee w PYwal os oo yl td aEEE UPR Supreme Court Number $23 1549 IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT, DIVISION ONE UNITED RIGGERS & ERECTORS,INC., ose . SUPREME COURT Plaintiff and Respondent, ane tyane? FILED VS. AUG 12 2016 COAST IRON & STEEL CO., Frank A. McGuire Clerk Defendant and Appellant. Deputy Review of the Opinion of the Court of Appealofthe State of California, Los Angeles County Superior Court, Case No. B258860 APPLICATION OF THE ASSOCIATEDGENERAL CONTRACTORS OF CALIFORNIA FOR LEAVETOFILE AN AMICUS CURIAE BRIEF JOHN P. CARPENTER (State Bar No. 148884) Kiewit Infrastructure West Co. 4650 Business Center Drive Fairfield, CA 94539 Telephone: (707) 439-7433 Facsimile: (707) 271-2836 Attorney for THE ASSOCIATED GENERAL CONTRACTORSOF CALIFORNIA Amicus Curiae on Behalf of Plaintiff and Respondent, UNITED RIGGERS & ERECTORS,INC. 379172 2 TABLE OF CONTENTS Page(s) AMICUS CURIAEBRIEF 0.00... eeccecccssseeesseseseeeseeeneeenseessesseeseeseseeenesesaeeess 9 INTRODUCTION.Q...eeeccccceesrceessecsscsesecsesessscssscseeeeseeesessessesenesessneseneeees 9 LEGAL ARGUMENT..0....eeccceccccsesessssescsscseeesasseeeseesensessasssetsesensesaeessaeas 12 I. THE STATUTORY FRAMEWORK PERTAINING TO CONSTRUCTION RETENTION SUPPORT THE DETERMINATION THAT ONLYA “DISPUTE” INVOLVING THE RETENTION ITSELF JUSTIFIES WITHHOLDING PAYMENTOF RETENTION1... ceecseeseeseeeeee 12 A. SECURITIES PLACED IN ESCROWIN LIEU OF CONSTRUCTION RETENTION ARE TO BE PAID AT PROJECT COMPLETION AND CAN ONLY BE WITHDRAWN FOR DEFAULT SUPPORTS THE HOLDING THAT ONLYA DISPUTE INVOLVING THE RETENTION CAN DELAY PAYMENT OF THE RETENTIONooo.eeeecesecessecsesesseeeseeseeeeeteeeneeenseeeees 13 A PERFORMANCE AND PAYMENT BOND MAY BE USEDIN LIEU OF RETENTION ON A PUBLIC WORKS PROJECT SUPPORTS THE HOLDING THAT ONLYA DISPUTE INVOLVING THE RETENTION CAN DELAY PAYMENT OF THE RETENTION...00.. 0. eee eeseesesscssseseecsesesesseeesereseeeeeessersusseneeees 15 THE FACT PUBLIC CONTRACT CODE7107 REQUIRES RETENTION TO BE RELEASED AT “COMPLETION” SUPPORTS THE HOLDING THAT ONLYA DISPUTE INVOLVING THE RETENTION CAN DELAY PAYMENTOF THE RETENTION.....oes sescsecssscsscseesenssssessesesecesseeseeeserseeesenseeeeees 17 CONCLUSION..... eee eceescseseecseceeseerssecsssvcsseesssssscseuessesesesecstensesseessesseensaess 19 CERFICIATE OF WORD COUNTuu... cecccccssscsseseseeeeseeeeneensesetessseasenneees 19 379172.2 TABLE OF AUTHORITIES Page(s) TABLE OF AUTHORITIES Page(s) Cases East West Bank v. Rio School District (2015) 235 Cal.App.4th 742 oeseesscccsssscsseescsesecsssesesseseseessesessenseaes 18 Harsco Corporation v Department ofPublic Works (1971) 21 Cab.App.3d 272 oe cceceseessssesscscssessssesessssesesssssseecsensessessenaes 11 McAndrew v. Hazegh (2005) 128 Cal.App.4th 1563 oo... eessssccessseenscssssenseeseneeserseessensees 10 Pittsburgh Unified School District v. S.J. Amoroso Construction Co., Inc. . (2014) 232 Cal.4th 808 oo... cece ecesesecresscsessessesssssesecsreseseeensssssenns 11, 13 Pittsburgh Unified School District v. S.J. Amoroso Construction Co.Ine. (2014) 232 Cal.App.4th 808occeeecseseeesesessceseresssesesseennessnessssseseees 14 Quinn v. United States (1879) 99 U.S. 30 vo. eeccstcneenccereseeeecsesecaesessessceeessseessssessuenssesseenssessnnes 19 Scott Company v. United States Fidelity & Guaranty Insurance Company (2003) 107 Cal.App.4th 197oeeccsscscssessescnssessseessesseseeseeseseeeseseeeees 16 United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2015) 243 CalApp.4th 151oeeeeseescsssesseresssresecsesesessssensessees 9 Westamerica Bankv. City ofBerkeley (2011) 201 CalApp.4th 598oeccssssssecessssssessteesseseseeseerensesessenenes 13 Yassin v. Solis (2010) 184 CalApp.4th 524oissssssesseresessesssenseseerseecssesseseeseess 10 Statutes California Civil Code sections 8180, 8412 and 8414...eeseeeeeees 18 Public Contract Code section 7017 oo...eeesssscssesssecsesssscsseecsetsessessesseess 17 379172.2 TABLE OF AUTHORITIES (Continued) Page(s) Public Contract Code section 7102 .............csssssceneeecesteeneesceeeeceeeeneneeeees 15, 16 Public Contract Code section 7107 ..........ccecscsssenseeseeesseeneeeenseeeeeeeees 15, 16, 19 Public Contract Code section 7107(C) ....ccccsscesesesereestesnnentesseeerteeenes 11,17 Public Contract Code sections 7107(C)(1) ......sccsssessseestseetesseesssereeneeenaees 17 Public Contract Code section 7107(€) oo... ccescssssseesecetecsereseeesseeceseneeeey 11 Public Contract Code section 7201(b)(2)........cccecesssseeseeseeceenteeeeeseneeeeeneees 16 Public Contract Code section 10221 eeeceeesceseteteeenetnesteernreeresenerseee 16 Public Contract Code section 10261() .......cesessssssseetesesessteeentneeenaeseeees 10 Public Contract Code section 22300 .........ccecsscceceeeeessereeeeeeeeseeeenes 13, 14, 15 Public Contract Code section 22300(a) .........ssccsssssseeseeesneeeesneeeeeesseseneaes.. 13 Public Contract Code section 22300(b) 0.0... ecscesseereerssteeseeteeertnesseeeenenes 14 Public Contract Code section 22300(b) and (£)(7).....ccseccseeesseetreesreeseeens 14 Public Contract Code section 22300(C) 0... cessceesssrcsnseenseeeeseeeessneeeseneneeey 14 Public Contract Code section 22300(€) ...... ccc csscscsesesssesssestsererssenesesteeenees 13 Public Contract Code section 22300(f) ccnetsesse seaeeusceceaeeeaeeeesenseeseeeeeess 14 Legislative Materials Senate Rules Committee, SB 593 Bill Analysis, August8, QOOB ooe.ececessscssccseseseesccessssesseceaceessesecsevacesecsssssesseceaesneeseansnsesseennensersneaeees 15 379172.2 Permissionto file a brief in this matter is requested by The Associated General Contractors of California (“AGC”), pursuant to Rule 8.200 (c) of the California Rules ofCourt. The applicants and their counsel are familiar with the issues involved in this case and the scope oftheir presentation. The AGCbelievethat there is a need for further briefing and argument concerning the issue before the Court as to the extent of a general contractor/construction owner’sright to continue to hold funds earned by a contractor/subcontractor. | The AGC wouldbe one of the most impacted trade associations if the Court of Appeal’s decision in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2015) 243 Cal.App.4th 151 pertaining to conditions upon which construction retention can be withheld is not upheld on appeal. The use of retention is a hallmark of the construction payment process. The AGC’s members’ livelihoods depend on the certainty and protections of this construction paymentprocess. The Court of Appeal’s decision in favor of United Riggers & Erectors, Inc. (“United”) is correct and sound. CoastIron & Steel (“Coast ' For purposesof ease of reading, Amicus Curiae Associated General Contractors ofCalifornia will use the example of a public agency “owner” for the party holding retention and “general contractor” for the party who earned the retention throughout this pleading as the terms are jointly used with “general contractor” and “subcontractor” in Public Contract Code section 7017 which functions identically to California Civil Code section 8814. 379172.2 Hi ae sW Ri th ow sd ! w e l l e d one oa Iron’’) is seeking to have this Court find, in contravention of the law and sound public policy, that the security for performance(retention) afforded to an ownerby California’s construction retainage laws can continue to be withheld even whenthere is no longer a need for that protection. Appellant Coast Iron contendsthat evenif it no longer needs the protection of the security (retention), so long as there is any kind of dispute between it and United, Coast Iron can continue to hold United’s retention. Moneythat United earned on a project that United completed andthat Coast Iron accepted. The AGCbelieves that the State construction payment laws and public policy considerations support the Court ofAppeal’s holding in United Riggers that construction retention is a form of security for performance and whenthe needfor that protection is gone and the work completed, then the contractor (or subcontractor)is entitled to receive prompt paymentofthat security. Only a dispute involving an issue related to the purpose ofthe retention, is justification to withhold payment of retention after completion of the project. United Riggers at p. 158) The AGC’s membersare responsible for performing over a billion dollars in public construction contracts statewide. The AGC’s membersare in a unique position with regardto this issue of whether retention payments may be withheld whenthere is a good faith dispute of any kind, or only whenthe dispute relates to the retention itself because our -6- 379172.2 membersare not only the general contractors that are having their earned construction funds retained by a project ownerbut, as general contractors our membershold retention from subcontractors. In addition, AGC membersalso servein therole of a subcontractor whoalso has funds withheld as retention by general contractors. The holding of the Court of Appeal in United Riggers that only a dispute involving the retention can form the basis for withholding paymentofretention is a vested interest of the AGC in maintaining the integrity of the protections afforded by the statutory construction payment process and the owner/contractor/subcontractor relationship. The AGCis a statewide trade association comprised of twelve geographical districts and two regional offices and counts asits’ members more than a thousand general and specialty contractors. The organization has a formalprocess for the evaluation of potential amicus curiae issues requiring time, coordination, and approvals.” The AssociatedGeneral Contractors of California, respectfully requests this Court to uphold the Court of Appeal, Second Appellate District decision and issue an order * The Associated General Contractors of California certifies that no person or entity other than the Associated General Contractors of California andits counsel authored this proposed brief in whole orin part and that no person or entity other than the Associated General Contractors of California,its members, or its counsel made any monetary contribution intended to fund the preparation or submission of the proposed brief. See Cal. Rules of Court, rule 8.520 (f) (4). 379172.2 permitting the AGC to submit the within amicuscuriae brief on behalf of Plaintiff and Respondents, United Riggers & Erectors,Inc. Respectfully submitted, John P. Carpenter By: (Brn Pp Coremorteor. John P. Catpenter Attorneyfor THE ASSOCIATED GENERAL CONTRACTORSOF CALIFORNIA, Amicus Curiae on BehalfofPlaintiffand Respondent, UNITED RIGGERS & ERECTORS,INC., 379172.2 AMICUS CURIAE BRIEF The Associated General Contractors of California (“AGC”) respectfully submit this Amicus Curiae Brief on behalf ofplaintiff and respondent, United Riggers & Erectors, Inc. The AGC contendsthat the Court of Appeal’s holding is correct, “... a contractor is entitled to withhold a retention payment only whenthere is a good faith dispute regarding whether the subcontractoris entitled to the full amountofthe retention payment.” United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., (2015) 243 Cal.App.4th 151, 158 (hereafter United Riggers). The Court in United Riggers hit the nail on the head whenit determined, “To excuse Coastin this case from paying United the retention _ payments would unduly increase the leverage of owners and primary contractors over smaller contractors and subcontractors by discouraging subcontractors from making legitimate claims for fear of delaying the retention payment”. [bid INTRODUCTION Retention was never intended to be used as a weapon. Retention is assurance. Assurance for a public agency/general contractor that it won’t be left holding the bag if its contractor/subcontractor does not properly perform the work orit fails to pay for its labor or materialsin performing the project. 379172.2 Retention is money earnedby the contractor. Typically, the contractor will submit an invoice or, “pay application” to the owner each month for the work that was performedforthe prior pay period. The owner will confirm that the work being billed by the contractor was properly performed andthe contractor has provided releases reflecting the amounts owedfor labor and material furnished to the project have beenpaid(or will be paid). McAndrew v. Hazegh (2005) 128 Cal.App.4th 1563, 1566. After confirming that the work invoiced by the contractor was properly performed andthe contractor has submitted releases from the subcontractors and suppliers attesting that they have, or will be paid forall the work they providedto the project, then the owner will pay the contractorfor all of the work it had performed/ess five percent retention. Public Contract Code section 10261(a); Civil Code section 8132. Why doesn’t the contractor receive paymentfor all of the work performed? Becausethereis a possibility that the owner will discover that some of the work wasn’t properly performed or that a supplier or subcontractor or laborer wasn’t fully paid. The owner holdsretention as “security” to protect itself from those types ofperformance and payment issues. Yassin v. Solis (2010) 184 Cal.App.4th 524, 534 (citations omitted). If there is a dispute involving these types of issues (retention issues), then the owner may hold up to 150% ofthe value of that issue from the contractor’s earned retention that the owneris holding until the issueis -10- 379172.2 resolved. Public Contract Code section 7107(e). Under the California Public Contract Code, the contractor will not receive its earned retention funds from the owneruntil 60-days after project “completion”. Public Contract Code section 7107(c). The reason that the ownercan hold the contractor’s retention until completion of the project is because retention serves to both spur the contractor to complete the project, and is security to protect the owner should it have to pay to correct the contractor’s defective work or complete the contractor’s work. Pittsburgh Unified School District v. S.J. Amoroso Construction Co., Inc. (2014) 232 Cal.4th 808, 812. Retention also protects the ownerandproject from claims of non-payment by subcontractors and suppliers. Harsco Corporation v Department ofPublic Works (1971) 21 Cal.App.3d 272, 276-277. The California construction payment lawsare part of an interrelated statutory framework wherethe statutes should be interpreted in. harmony with one another to achieve the purpose of the framework. “As our Supreme Court recently observed: ‘A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them to construe them to give full force.and effect to all of their provisions [Citations].’” Pittsburgh Unified School at pp. 821-822. To disregard the purpose and interplay of the other sections of this statutory payment framework wheninterpreting the circumstances ofwhen a contractoris -11- 379172.2 entitled to receive its retention (a hallmark of the construction payment process), wouldresult in transforming what has always been a form of protective security into a weaponthatwill discourage those in a lesser position from pursuing legitimate claims for fear that they won’t receive all of the money they had earned performing work for the owner. LEGAL ARGUMENT IL THE STATUTORY FRAMEWORK PERTAINING TO CONSTRUCTION RETENTION SUPPORT THE DETERMINATION THAT ONLYA “DISPUTE” INVOLVING THE RETENTIONITSELF JUSTIFIES WITHHOLDING PAYMENTOF RETENTION California’s comprehensivestatutory framework governing construction paymentare based onprinciples of security, that those who furnish labor and materials to constructa project will be promptly paid and that those who contract to have the work performed will have the work properly performed. The California statutory construction payment frameworkprovides various means by whichthis security function can be fulfilled including securities in lieu of cash retention, surety bonds and cash retention. Public ContractCode section 22300, Public Contract Code section 7201, and Public Contract Code section 7107. A contractor should not be placedin any less position because one of the statutory options for security was selected over another. The security (retention) should be released whenthereis no longer an issueor dispute involving the security. Simply, the security is no longer needed. -12- 379172.2 A. SECURITIES PLACED IN ESCROWIN LIEU OF CONSTRUCTION RETENTION ARE TO BE PAID AT PROJECT COMPLETION AND CAN ONLYBE WITHDRAWN FOR DEFAULT SUPPORTS THE HOLDING THATONLYA DISPUTE INVOLVING THE RETENTION CAN DELAY PAYMENTOF THE RETENTION The Legislature in enacting Public Contract Code section 22300, recognized that the system of construction paymentandretention was harming contractors and discouraging participation in public contracting, “The Legislature hereby declares that the provisionsofthis section are of statewide concern and are necessary to encouragefull participation by contractors and subcontractors in public contract procedures.” Public Contract Code section 22300(e). Public Contract Code section 22300 provided that contractors would have the right to place securities in escrow as retention in lieu ofhaving the public owner holding back a percentage of every payment. Pittsburgh Unified SchoolDistrict at pp. 814-815; Westamerica Bankv. City of Berkeley (2011) 201 Cal.App.4th 598, 611-612. Virtually very public contract in California must allow a contractor to place securities into an escrow accountinstead of having money withheld from each paymentto the contractor to “ensure performance under a contract’. (Public Contract Code section 22300(a), emphasis added). Because the purposeofretentionis to assure performance,it is logical that the right of an ownerto withhold payment of -13- 379172.2 retention must be based on anissue or “dispute” that implicates the retention. Underthe provisions of Public Contract Code section 22300, if a public owner does not include the provision for a contractor to establish an escrow and deposit securities in the bid and contract documents, then “any provisions for performanceretentions”in the public agency’s contract are “void.” Public Contract Code section 22300(c) (emphasis added). Thelaw establishing the right of a contractor to place securities in lieu of retention further provides that upon “satisfactory completion of the contract”, the contractoris to receive from the escrow agent“all securities, interest, and payments by the escrow agent from the owner, pursuant to this section.” Public Contract Code section 22300(b). The Legislature in enacting Public Contract Code section 22300 wentso far as to include a form of escrow agreementthatis to be used by the public ownerto effectuate the use ofsecurities in lieu of retention. Public Contract Code section 22300(f). An owner may only draw uponthe securities under the termsofthe statutory escrow agreement form “in the event of a default by the Contractor” and the escrow agentis to pay the proceedsto the contractor upon “satisfactory completion”ofthe project. Public Contract Code sections 22300(b) and (f)(7); Pittsburgh Unified School District v. S.J. Amoroso Construction Co. Inc. (2014) 232 Cal.App.4th 808. -14- 379172.2 Public Contract Code section 22300 does not allow a public ownerto withhold paymentofthe contractor’s retention (escrow) for any dispute but only an event of “default”. Why would the Legislature allow a different result under Public Contract Code section 7107 and enable paymentofretention to be withheld for a reason other than default merely because the contractor opted to have the public ownerretain and hold funds instead of availing itself to the statutory escrow process? Respondent's argument that Public Contract Code section 7107 pertaining to an owner’s right to hold retention for any dispute is out of synch with the State’s statutory contract payment framework. B. A PERFORMANCE AND PAYMENT BOND MAYBE USED IN LIEU OF RETENTIONON A PUBLIC WORKS PROJECT SUPPORTS THE HOLDING THAT ONLY A DISPUTE INVOLVING THE RETENTION CAN DELAY PAYMENT OF THE RETENTION Whenthe Legislature passed Public Contract Code section 7102 prohibiting the California Department of Transportation. (“Caltrans”) from withholding any retention from progress payments to contractors working on transportation projects, they did so in part because, “Caltrans relies on payment and performance bondsto ensure contractor performance and completion of contract work.” Senate Rules Committee, SB 593 Bill Analysis, August 8, 2008,ftp://www.leginfo.ca.gov/pub/07- 08/bill/sen/sb_0551-0600/sb_593_cfa_ 20080808 165453 _sen_floor.html; -15- 379172.2 Public Contract Code section 7102 and Public Contract Code section 10221. In light of Public Contract Code section 7102 prohibiting Caltrans from withholding any retention from public contractors because Caltrans has alternate security in the form ofperformance and payment bonds which can only be pursuedifthere is a default, it follows that when retention is held, it should not be subject to any more expansive usage than a performance and paymentbond. In addition, under Public Contract Code section 7201(b)(2), the only circumstance where a contractor on a public works project can withhold more than five percent retention is when the subcontractoris unable to provide a performance and payment bondby an admitted surety insurer. Because a general contractor is permitted by statute to withhold retention on a subcontractor when the subcontractor is unable to provide a performance and payment bond demonstrates that bonds serve the same protective function asretention. A performance bond securesthe contractor’s performance, like retention. A paymentbondassuresthat the contractor will pay its subcontractors and suppliers, like retention. Scott Company v. United States Fidelity & Guaranty Insurance Company (2003) 107 Cal.App.4th 197, 215-216. Why would Public Contract Code section7107 be interpreted to allow a public owner to withhold paymentofretention for a -16- 379172.2 reason other than a default (issue involving the retention) when there is not a corresponding right had a performance and payment bond been posted by the subcontractor instead? The holder of retention should have no greater rights against cash retention than a bond. Why should a public works contractor in California be in any more tenuousposition with respect to receiving its retention and the reasons an owner can withhold payment, merely because it was performing work for a public agency (other than Caltrans) whereit provided cash retention other than a bond? C. THE FACT PUBLIC CONTRACT CODE7107 REQUIRES RETENTION TO BE RELEASED AT “COMPLETION” SUPPORTS THE HOLDING THAT ONLYA DISPUTE INVOLVING THE RETENTION CAN DELAY PAYMENTOF THE RETENTION Underthe California Public Contract Code, a contractorwill | notreceive its earnedretention funds from the owneruntil 60 days after the project is completed. Public Contract Code section 7107(c). The term “completion”is defined in Public Contract Code section 7017 as the occurrence of any one ofthe four “completion” events set forth in Public Contract Code sections 7107(c)(1) through 7107(c)(4). It is importantto note that three of the four events depend onthe event being accompanied by a “cessation of labor on the work of improvement”, -17- 3791722 The reason whythe “cessation of labor on the work of improvement” is integral to the definition of “completion” and the required timing for the releaseof retention is because the deadlines for filing both a stop notice and mechanicslien and their associated payment remediesare triggered by the “cessation of labor”. California Civil Code sections 8180, 8412 and 8414. | Thefact “cessation of labor” is a term synonymouswith the timing deadlines provided by California’s construction paymentstatutory remedies and usein the timing for release of retention (security for payment claims) is not a coincidence. The Appellate Court in East West Bank v. Rio School District (2015) 235 Cal.App.4th 742, 748 stated, “The purpose of retention is to provide security against potential mechanicsliens[Cites] ... Here,after the stop notices were cleared,District points to nothing for which security was required.” The Court in East West Bank went on to hold, “Once the legitimate purposefor retaining the funds ends, the public entity must release the fundsor suffer the statutory penalty. District may not hold these funds hostagebecause it disputes amounts owed underthe contract that includes numerous change orders.” Jd. at 749-750. Thefact that the Public Contract Code requires an ownerto release a contractor’s retention at completion which includes the “cessation of labor”further bolsters the argumentthat retention is security for payment claims, that only a dispute regarding an issue affecting the retention will -18- 379172.2 enable an ownerto withhold paymentofretention beyond “completion” provided in Public Contract Code section 7107. CONCLUSION A public owner wanting to withhold paymentof a contractor’s retention for a reason other than security for performanceis nothing new. In fact the U.S. Supreme Court over 135 years ago decided a case where the public owner (Federal Government) contended that it could withhold a contractor’s retention for a dispute other than one based on the purposeofthe retention (security). In that case the Court held, “In our view,it is a fair construction of this part of the agreementthat the money retained underit is for security that the contractor will not abandon his work, but will proceed in it with due vigor, and for indemnity to the United States in case he fails to do this. Unless, therefore, the government has sustained some loss, some pecuniary or legal damagebyhis failure, the money which hehasfairly earned should be paid to him when the work which he agreed to do has been completed ....”” Quinn v. United States (1879) 99 USS. 30, 34. - California’s prompt paymentstatutes and moreparticularly the rules governing construction retention are about security and protection. An owner(or contractor) may not continue to hold retention unless there is a dispute that relates to the retention andits purpose. -19- 379172.2 It is for the above reasonsthat the Associated General Contractors of California as Amicus Curiae, respectfully requests that this Court uphold the ruling of the appellate court. (Mo. PCuvawite JOHN P. CARPENTER, SBN 148884 KIEWIT INFRASTRUCTURE WEST 4650 Business Center Drive Fairfield, CA 94534 Telephone: (707) 439-7433 Attorney for Amicus Curiae THE ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA Dated: August 2, 2016 -20- 379172.2 CERTIFICATE OF WORD COUNT Cal. Rules of Court, rule 8.204(c)(1).) Pursuant to California Rules of Court, rule 8.204(c)(1),I certify that the total word countofthe Petition For Review, excluding covers, table of contents, table of authorities, and certificate of compliance is 3,271. In making this certification, I have relied on the computer program, Microsoft Word, for this word count. (Dhow? Caepentar= JOHN P. CARPENTER Dated: August 2, 2016 -21- 379172.2 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO I, the undersigned, declare as follows: At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of ‘California. My business address is 311 California Street, San Francisco, CA 94104. On August 3, 2016, I served the following document described as APPLICATION OF THE ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA FOR LEAVE TO FILE AMICI CURIAEBRIEF; PROPOSEDBRIEF on the interested parties in this action as follows: SEE ATTACHED SERVICELIST b e BY U.S. MAIL: By placing a true and correct copy thereof enclosed in a sealed envelope addressed as above or on the attached service list, with postage thereon fully prepaid, in the U.S. Mail at San Francisco, California. I am readily familiar with my employer’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on the same day with postage thereon fully prepaid at San Francisco, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing as stated in the affidavit. BY FEDERAL EXPRESS: I am readily familiar with my employer’s practice of the collection and processing of FedEx packages. Under that practice, packages should be deposited with FedEx that sameday, with overnight (next business day) delivery charges thereon fully prepaid,in the ordinary course of business. I caused such envelope(s) to be delivered by overnight mail to the addressees listed on the attached servicelist. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. X Executed on August 3, 2016, at San Francisco, California. nieSoba Laurie Stoker I Ix -22- 379172.2 SERVICE LIST UNITED RIGGERS & ERECTORS, INC. v. COASTIRON & STEEL CO, Case No. 8231549 R. Duane Westrup. Westrup & Associates 444 Ocean Boulevard, Suite 1614 Long Beach, CA 90802 Tel: (562) 432-2551; Fax: (562) 435-4856 Attorneys for Defendant and Appellant COAST IRON & STEEL CO. Dirk Bruinsma Law Office of Dirk Bruinsma 1181 Puerta del Sol, Suite 120 San Clemente, CA 92673 Tel: (714) 939-8100; Fax: (714) 634-1387 Attorneysfor Plaintiff and Respondent UNITED RIGGERS & ERECTORS,INC. Kristen Martin Law Offices of Kristen Martin 600 Anton Blvd., Suite 1100 Costa Mesa, CA 92626 Tel: (818) 340-1950; Fax: (818) 340-1990 Attorneys for Plaintiff and Respondent UNITED RIGGERS & ERECTORS, INC, California Court ofAppeal Honorable Thomas I. McKnew2" District Los Angeles Superior Court2" Floor, North Tower Southeast District300 South Spring Street 1270 Norwalk BoulevardLos Angeles, CA 90013 Norwalk, CA 90650Mail Only Mail Only | -23- 379172.2