Agenda packet — Baldwin Park City Council, March 6, 2024 (part 7 of 8)

Best Best & Krieger LLP
at https://baldwinpark.granicus.com/ViewPublisher.php?view_id=10 or as soon thereafter as the matter may be heard before the City Council of the City of Baldwin Park, at which Zusser Company, Inc. (“Zusser”) and Nationwide Contracting Services, Inc. (“Nationwide”) will be afforded an opportunity to demonstrate that they are responsible bidders. If either wishes to submit a written statement as to their responsibility to be considered at such hearing, such statement may be filed with the undersigned by email on or before January 19, 2024. Zusser, Kasa, and Nationwide have all submitted letters from their respective bid bond sureties extending their bid bond through February 13, 2024 and evidencing their commitment to honor their bid through such date so as to accommodate the process described above. Exhibit H.

As to Zusser Ltr. #2, the City encourages Zusser to reconsider its invocation of the mediation privilege so as to justify the non-production of material information. The mediation privilege does not apply to documents that are not “prepared for the purpose of, in the course of, or pursuant to a mediation”, (Evidence Code, § 1119), such as claims and responses thereto preceding a mediation conducted pursuant to section 9204 of the Public Contract Code. The invocation of inapplicable evidentiary privileges to obstruct the City’s inquiry is inconsistent with “the attribute of trustworthiness” at the core of a responsibility hearing. (Public Contract Code, § 1103). Further, Zusser has still not addressed the extent to which it misclassified workers in the Operating Engineer and Laborer classifications and underpaid workers classified as Cement Masons in connection with the LADWP Lagoon Refurbishment project (“LADWP Project”), let alone whether such was “a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor”. (Labor Code section 1775, subdivision (a)(2)(A)(i).) It appears from the papers and record of such proceedings that Zusser conceded that it misclassified workers in the Operating Engineer and Laborer classifications and underpaid workers classified as Cement Masons in connection with the LADWP Project. As to Kasa Ltr. #2 and Nationwide, the City expects Nationwide to address Kasa’s allegations with respect to the “pending lawsuit in the United States District Court for the Central District of California, Case No. 8:23-cv-0052l” in the written statement referenced above and at the hearing.

Zusser, Nationwide, and Kasa will have an opportunity to address the City Council at the above referenced hearing. The City Council will not take action in connection with this matter until such hearing at the earliest. Any threatened lawsuit about this matter from Kasa, and by implication Zusser or Nationwide, would be premature prior to such action and the City trusts that all persons will permit the process described above to be exhausted prior to any threatened legal action. The City is committed to conducting this process in a matter which protects the due process rights of all bidders as well as the public’s expectation that a contract will not be awarded to a bidder that the City Council, in its legislative judgment, applying subtle judgment, ultimately determines is non-responsible only after affording that bidder due process. (Great West Contractors, Inc. v.

Irvine Unified School District (2010) 187 Cal.App.4th 1425, 1452-53; Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303 (“[T]he letting of contracts by a governmental entity necessarily requires an exercise of discretion guided by consideration of the public welfare”)).

Marion T. Hack, Robert C. Niesley, and Christopher Morrow January 11, 2024

Page 3 ends

Best Best & Krieger LLP
Sincerely,
Grant R. Orbach
for BEST BEST & KRIEGER LLP
GRO:ab
Exhibit A
Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com November 20, 2023
City of Baldwin Park
14403 East Pacific Ave.

Baldwin Park, CA 91706
Project: Barnes Park Multi Benefit Stormwater Capture Project Subject: BID PROTEST
Bid Date: November 14, 2023, at 2:00 PM
This letter shall be construed as a Formal Bid Protest against the apparent low bidder, Zusser Company, and the second apparent low bidder, Nationwide Contracting Services, for the following reasons as explained below.

1. Failure to list only one subcontractor for the same Electrical Scope ( Zusser )

2. Failure to comply with DIR Prevailing Wage Requirements ( Zusser )

3. Failure to list Playground Equipment Installer / Subcontractor with min. 5 years of experience. (Nationwide )

4. Failure to properly execute signatures on Bid Proposal as instructed. ( Nationwide )

5. Failure to list a Licensed Landscape and Irrigation Subcontractor ( Zusser and Nationwide )

6. Failure to list a Fence Subcontractor with min. 5 years of experience. (Zusser and Nationwide)

7. Failure to have the Technical ability, qualifications and experience in constructing similar park projects (Zusser and Nationwide)

8. Non – Responsible Bidder (Zusser and Nationwide)

1. Failure to list only one subcontractor for the same Electrical Scope ( Zusser ) Zusser listed BOTH Creo Electric and Electro Construction as C-10 Electrical subcontractors in their bid. According to California Public Contract Code Sections 4100 through 4113, only one subcontractor may be listed for the same portion of work. If more than one subcontractor is listed, the prime Contractor “shall be qualified to perform that portion itself, and shall perform that portion itself.” Zusser is not licensed with a C-10 nor qualified to perform the electrical scope and therefore cannot perform the electrical on this project. See snip from the Greenbook.

Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com Page A-5 in the specifications clearly state that the prime Contractor is required to perform all aspects of a particular scope if it lists more than one subcontractor for the same portion of work.

See below snip from specs:

Besides an electrical contractor being required to hold a C-10 license, all employee electricians performing work under the C-10 contractor must also be State Certified in order to work on a prevailing wage project. Therefore, it is impractical to assume that Zusser would:
1) Have the ability and experience to perform in the caliber of a C-10 contractor, and 2) Employ qualified State Certified electricians to successfully complete the project. As a matter of fact, it would be impossible since the state certified workers can only work under a licensed C-10 contractor.

Based on the above, Zusser should be deemed non-responive.

2. Failure to comply with DIR Prevailing Wage Requirements ( Zusser ) Zusser’s history of performing public works projects is also problematic. According to the public record, the California Department of Industrial Relations published Case No. 19-0134-PWH against Zusser on 08/18/2022 regarding the Civil Wage and Penalty Assessment issued with respect to the work Zusser performed on the LADWP Lagoon Refurbishment (which was listed as a project reference). According to the DIR, Zusser was assessed $653,177.48 in penalties for a variety of failures including but not limited to the following violations:

A) Apprenticeship violations
B) Prevailing wage violations, including regular and overtime rates C) Misclassifying workers on the project
D) Training fund contribution violations
E) Liquidated damages associated with the incorrect wages The snip of the DIR’s Civil Wage and Penalty Assessment is attached and calls into question Zusser’s technical abilities and trustworthiness to successfully perform a project of this size in compliance with all applicable federal, state, or local laws.

Based on the above, Zusser should be deemed non-responive.

3. Failure to list Playground Equipment Installer / Subcontractor with min. 5 years of experience. (Nationwide)
Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com Per the Specifications section 11 68 13 – Playground equipment, the subcontractor for the installation of the play equipment must have a minimum of 5 years of experience and have completed a minimum of 5 similar projects. Please see snip from specs below.

Based on KASA’s experience in building Parks, KASA knows all the certified installer subs including everyone that submitted a quote for installation. Every quote received exceeded half of 1% of the total bid and were required to be listed. Unless Nationwide can prove that they have 5 years of experience self performing playgrounds and certified by the manufacturer, their bid must be deemed non – responsive.

4. Failure to properly execute signatures on Bid Proposal as instructed. (Nationwide) Nationwide failed to follow the City’s instructions regarding Contractor signatures. Page A-5 in the Specifications states that bids submitted by corporations must be signed by the President and Secretary or Assistant Secretary, or they may be signed by other authorized persons as evidenced by a corporate resolution. In this case Nationwide failed to include a Corporate Resolution and / or failed to sign on behalf of Both Officers.

This requirement was reiterated in the City’s answer to Question #3 in Addendum #5: “A signature by the President and Secretary are required. Other person(s) may sign on behalf of corporation as specified in Section 5. Signature of Contractor.”
Nationwide failed to comply with the bid specs and addendum by signing only its Vice President and, therefore, their bid should be rejected as non-responsive.

5. Failure to list a LICENSED Landscape and Irrigation Subcontractor in “good standing” ( Zusser and Nationwide )
Page A-4 in the Information to Bidders section of the Specifications states that “to be eligible to perform work, the bidder must be a Licensed California State Contractor in good standing.” This requirement also extends to all subcontractors listed by the Contractor in their bid.

Jon Gilmer Construction, CSLB # 582487, has a SUSPENDED CSLB license yet was still the listed subcontractor for Landscape and Irrigation by both Zusser and Nationwide. Please see the attached exhibits which prove the license was suspended both before and after the bid.

Zusser listed Jon Gilmer with a subcontract dollar value of $914,000 which equates to approximately

4.7% of their bid and Nationwide listed Jon Gilmer with a subcontract dollar value of $914,133 which equates to approximately 5.4% of their bid.

As stated in Section 4.3 of the Contract, “The experience, knowledge, capability and reputation of Contractor, its principles and employees were a substantial inducement for the City to enter into this Agreement.” ……. “It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principles were a substantial inducement for the City to enter into this Agreement.”
If either contractor attempts to self-perform the work of such caliber, they would be in direct violation of the contract. The City and its residents deserve quality work performed by an experienced Park builder like KASA Construction Inc. and this error should not be considered by the City as a minor irregularity.

The Technical Ability and Experience would be something both contractors would have to prove as it pertains to the self-performing Landscape and Irrigation for a Park project. Please make reference to the snip from the Bid Documents “Technical Ability and Experience” required below.

Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com Lastly, per the specifications, Section 32-93-95 / 1.03 Quality Assurance, the Landscape Contractor should have experience in horticultural and landscape maintenance. Besides KASA having experience for over 20 years in building Parks, KASA’s Landscape Superintendent worked with the world’s largest landscape company Valley Crest for over 20 years before finally joining KASA’s winning Team.

See below snip from the specs.

Neither Zusser nor Nationwide have a C-27 landscaping license and are not qualified to perform the substantial landscaping responsibilities on this project. At the end of the day, this is a Park project before anything else, and no other bidder is as qualified or experienced than KASA Construction Inc. at building parks. KASA’s reputation speaks for itself.

Based on the above, both Zusser and Nationwide shall be deemed non-responsive.

6. Failure to list a Fence Subcontractor with min. 5 years of experience. (Zusser and Nationwide) Per the specifications 02 82 10 / 1.06 Qualifications / B, the specs require that the Fencing Sub / Installer have 5 years of documented experience. Both Zusser and Nationwide listed Ever Fence who has only been in business since February 05, 2020. KASA received a bid from Ever Fence, however, in order to remain compliant with the requirements of the bid, although they were less expensive, KASA was not able to list them. KASA opted to use Gold Coast Fence Inc., who meets the experience and requirements and has been in business since 2010.

Allowing Zusser or Nationwide to use Ever Fence would defeat the purpose of maintaining a fair playing field besides the fact that it would materially affect the bid.

As a result of this, neither contractor shall be able to utilize Ever Fence and both bids should be considered non-responsive.

See snip below from the specifications.

7. Failure to have the Technical ability, qualifications and experience in constructing similar park projects (Zusser and Nationwide)
Upon reviewing the bid packages of both Zusser and Nationwide, it is without a doubt that both Zusser and Nationwide are unfit to be awarded this project. Both have very little to no experience with the intricacies required in order to build a park of this size. It appears both contractors listed only one Park project on their references. If that’s considered good, then KASA Construction is over 100x better as we have successfully completed over 100 park projects. Not only is KASA one of the most respected Park builders in Southern California, KASA Construction is also an expert when it comes to heavy civil and street improvement projects.

We self-perform several trades in house and own and operate our own machinery for total control over the work. KASA currently has 2 street improvement projects and 4 park projects. Our ability to properly manage the work with Procore and spearhead weekly meetings, makes the Owner job a lot easier and more efficient. Besides on time performance and quality, KASA has also earned its reputation from exceptional value engineering to provide alternative approaches and materials which are oftentimes better and at a lower cost to the Owner. This only comes with Experience and Reputation.

Owners know us, Suppliers know us, and Architects / Designers know us and this is when relationships really matter. Our influence and expertise with clients and vendors make all the difference for a successful project.

KASA Construction Inc. is by far the most experienced, qualified, and the lowest responsible bidder for this project. Our attached Letters of Recommendations speak for themselves.

8. Non – Responsible Bidder (Zusser and Nationwide)
Based on the above findings and the overwhelming supporting information attached, it is without a doubt that both bidders, Zusser and Nationwide, are non-responsive on multiple counts. The City reserves the right to reject proposals as non-responsive that do not demonstrate the Contractor’s technical abilities or familiarity with the scope of work.

Please see snip blow from the specs

KASA Construction respectfully requests that the City of Baldwin Park considers the above findings and make a fair and proper determination to deem the Bids by Zusser and Nationwide, NONRESPONSIVE and Award the contract to KASA Construction Inc.

Respectfully,
Hector Zavala
Estimator
KASA Construction, Inc.

________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com September 28, 2023
KASA Construction, Inc.

Attn: Sam Kasbar
15148 Sierra Bonita Ln.

Chino, CA 91710
Re: Letter of Recommendation
PENTA Building Group – Secure Perimeter Fence Project
To Whom It May Concern,
On behalf of PENTA Building Group, I extend our sincere appreciation to the exceptional team at KASA Construction Inc. for their outstanding performance in successfully completing the Secure Perimeter Fence project. Your unwavering commitment to excellence and your remarkable ability to adapt to challenges have been truly impressive.

The Secure Perimeter Fence project was not your typical fence installation; it represented a complex undertaking with specific project components and qualities that demanded the utmost dedication and expertise.

Your team executed the project with exceptional professionalism and unwavering attention to detail, ensuring that every aspect of the project met the rigorous standards set by the Owner, San Manuel Band of Mission Indians.

Initially a $7.3 million contract with a 12-month duration, this project expanded with the addition of $1.2 million in Extra Work. Furthermore, once under construction and at the Owner's request, the project schedule was accelerated by several months. Through your exceptional adaptability and commitment to excellence, KASA not only completed the project on time but also seamlessly incorporated the additional scope.

Speaking to the scale and complexity of the project, it involved the construction of over a mile of custom fence to secure Tribal lands from public access and trespass. This fence spanned a diverse range of landscapes, including culturally and biologically sensitive areas, steep elevations, drainages, and retaining walls, covering both public and Tribal-owned properties.

KASA demonstrated exceptional prowess in managing global material sourcing to procure the fence components from South Africa, a considerable distance away. This effort underscored your commitment to meeting project specifications and your willingness to go above and beyond to deliver quality results.

Given the nature of the project, which required a construction presence along the entire Tribal perimeter, it was inherently sensitive, involving the security and well-being of residents. This demanded a high level of professionalism and discretion, qualities that your team exhibited commendably and that provided reassurance to our community.
________________________________________________________________________________________________________________________ Throughout the duration of the Secure Perimeter Fence Project, KASA demonstrated unwavering dedication to safety, quality, and timeliness. Any issues that arose were promptly and effectively addressed, ensuring a seamless project execution. Your team's coordination and collaboration with our PENTA team were exemplary, fostering a productive and respectful working relationship.

In conclusion, it is with great pleasure that I wholeheartedly recommend KASA Construction Inc. to any organization seeking a proficient, determined contractor that upholds the highest possible standards and executes projects in a timely and organized fashion. Your company's proven track record of excellence and your unwavering commitment to delivering exceptional results truly set you apart in the construction industry.

Once again, we extend our deepest appreciation for your outstanding work on the Secure Perimeter Fence Project. We eagerly anticipate the opportunity to collaborate with KASA on future projects and to continue building upon our successful partnership.

Sincerely,
Amr Elhelbawi – Project Manager
PENTA Building Group
Adelanto City Hall ~ 11600 Air Expressway, Adelanto, CA 92301 ~ (760) 246-2300 ~ Fax (442) 249-1121 Gabriel Reyes
Mayor
Daniel Ramos
Mayor Pro Tem
Joy Jeannette
Council Member
Angelo Meza
Council Member
Amanda Uptergrove
Council Member
Jessie Flores
City Manager
September 21, 2023
KASA Construction, Inc.
15148 Sierra Bonita Lane
Chino, CA91710
Subject: KASA Construction, Inc. Work Performance Commendation KASA Construction, Inc. (KASA) has performed the construction of Marconi Park Improvement in the city of Adelanto, California. This was funded through State Grant from the Department of Park and Recreation. Project was successfully completed to the grant requirements and was accepted by the city and State Department of Park and Recreation. KASA has been a true partner throughout the process and the City greatly appreciates the efforts.

City of Adelanto is looking forward to work with KASA in future and would highly recommend the company to other agencirs.

Sincerely,
Saba Engineer, P.E.

City Engineer

Landscape Architecture
Planning
Water Management
Graphic Communications
462 Stevens Avenue, Suite 107, Solana Beach, CA 92075-2042 Tel: 619.294.8484 • Fax: 619.574.0626 • Web: www.vdla.us Principals: Mitch Phillippe, ASLA, CA LLA #3781 • Yale Hooper, CID, CLIA Associates: Ling Chan, ASLA, CA LLA #5435, LEED AP • Denise Armijo, ASLA Brett Allen, ASLA, CA LLA #6595, CID, CLIA, RWSS
KASA Construction, Inc.
15148 Sierra Bonita Lane
Chino, CA 91710
Project: Laguna Woods – Water Efficient Median Improvement Project Subject: Letter of Recommendation
To Whom It May Concern,
Van Dyke Landscape Architects would like to acknowledge KASA Construction Inc for their diligent performance in completing the City of Laguna Woods Water Efficient Median Improvement Project for which VDLA prepared construction documents. The scope of work consisted of the removal of landscaping and concrete, installation and modification of irrigation systems, and installation of landscaping within medians located on El Toro Road, and Moulton Parkway.

KASA Construction executed this project with vigor and commitment, maintaining the highest level of professionalism, attention to detail and work ethic. The project field and management staff displayed excellent coordination with our firm and carried out our interests in a compliant and organized fashion. KASA Construction Inc went beyond the firm’s expectations in order to assure that the project was delivered with exceptional standards.

Our firm could not be more pleased with the final project result. It has been a pleasure working with KASA Construction Inc and we would not hesitate to recommend their outstanding services. We look forward to working with KASA in the future.

Sincerely,
Brett Allen, Associate
Van Dyke Landscape Architects
ASLA SD Chapter President
Landscape Architect CA #6595
[email protected]
980 Montecito Drive, Suite 302, Corona, CA 92879
Phone: (951) 817‐3500
May 4, 2023
KASA Construction, Inc.

Attention: Sam Kasbar, Owner / VP
15148 Sierra Bonita Lane
Chino, CA 91710
Projects: Highland Park, Shadow Rock Park, Discovery Park, Adventure Park Project Location: Jurupa Valley, CA
Owner: Lennar Homes of California
Letter of Recommendation
Dear Mr. Kasbar,
On behalf of Lennar Homes, I would like to thank you and your Team at KASA Construction for your continued partnership in yet another project successfully completed.

This project consisted of simultaneously constructing 3 new Parks in the Shadow Rock community at a cost of nearly $7,000,000. The project included but was not limited to grading, earthwork, storm drains, 2 lighted baseball fields, basketball court, 2 large playgrounds with rubber and mulch, a dog park, prefabricated restroom building, parking lot walking trails, fencing, several other park furnishings with new irrigation systems and beautiful landscaping.

Your Team worked closely with my staff, consultants, JARPD and the City of Jurupa Valley to assist in value-engineering to bring this project to fruition for this wonderful community.

KASA’s staff was responsive, honest, and diligent in completing the project on time with quality workmanship.

It was a pleasure working with you and your Team and I look forward to more projects in the future. I would not hesitate to recommend KASA Construction Inc. to any other Owner or Agency.

Sincerely,
Ryan Combe
Director of Forward Planning
Lennar Homes of California

Public Works Department

CITY OF NEWPORT BEACH
100 Civic Center Drive, Bay 2D
Newport Beach, California 92660
949 644-3330 | 949 644-3308 FAX
newportbeachca.gov
October 27, 2020
KASA Construction, Inc.

Attention: Sam Kasbar, Owner / VP
15148 Sierra Bonita Lane
Chino, CA 91710
Project: West Coast Highway Median Landscaping – Phase 2 Subject: Letter of Recommendation
Dear Mr. Kasbar,
On behalf of the City of Newport Beach, I would like to thank you and your Team at KASA Construction for the exemplary efforts in completing the West Coast Highway Median Landscaping – Phase 2 Project.

This project consisted of demolishing the existing stamped concrete in the center median, grading, installing new irrigation systems and landscaping in both the medians and parkways along Pacific Coast Highway, west of Newport Blvd.

From inception, you worked closely with the City Staff with respect, professionalism, honesty, and diligence, which resulted in a successful project.

KASA maintained the highest level of safety and quality, paying close attention to the specifics of construction and completing the required work within the necessary time frames. When issues ever arose, solutions were always implemented immediately. Even amid a viral pandemic, you, as the committed leader, took the extra steps in establishing safety precautions to secure and protect the welfare of your dedicated staff and the public. KASA’s incredible adaptability and coordination with the City, helped bring this project to a polished close.

I’d like to extend my appreciation to you and your devoted team on a job well done. It has been a pleasure working with you and I would not hesitate to recommend KASA Construction Inc. to any Owner or Agency.

Sincerely,
Michael J. Sinacori
Assistant City Engineer
July 6, 2020
Kasa Construction, Inc.

Attn: Sam Kasbar
15148 Sierra Bonita Lane
Chino, CA 91710
Re: Letter of Recommendation
Kasa Construction
Riverbend Community Park, Jurupa Valley, CA
To Whom It May Concern:

On behalf of the Lennar Homes, we would like to cordially thank KASA Construction Inc for their exemplary efforts in completing the Riverbend Community Park Project for the best interests of the Jurupa Area Recreation (JARPD) and Park District and Lennar Homes.

This nearly $4.8 million, 12-acre park project consisted of, but not limited to, grading, underground wet and dry utilities, landscaping, irrigation, electrical, decomposed granite paths, pedestrian and horse trails, parking lots, masonry walls, fencing and pedestrian bridges.

Additionally, the project site also included shade shelters, playground equipment, rubber surfacing, disc golf, decorative concrete, walkway and parking lot lights, basketball courts, a complete athletic field, and a prefabricated restroom building by The Public Restroom Company.

From the start, KASA took on a very proactive approach, paying close attention to the specifics of construction and completing the required work efficiently and within the completion schedule. KASA’s adaptability and coordination with Lennar and JARPD contributed to bringing this project to a to a successful completion. Construction issues were quickly solved by KASA’s attentive team. We could not be more satisfied with the work completed by KASA.

The experience and professionalism guided by Kasa’s founder, Sam Kasbar, was impressive. It has been a sincere pleasure working with Mr. Kasbar and his team and we would not hesitate to recommend their services to anyone seeking a proficient, determined contractor that upholds the highest possible standards and executes in a timely and organized fashion.

Sincerely,
Brian King
Project Manager
Lennar Homes – Inland Empire
[email protected]

Office of the Public Works Director/City Engineer
335 West Rialto Avenue  Rialto, California 92376
City of Rialto
California
April 16, 2019
KASA Construction, Inc.
15148 Sierra Bonita Lane
Chino, CA 91710
SUBJECT: JOE SAMPSON PARK – CITY OF RIALTO PROJECT NO. 150303 To Whom It May Concern:

On behalf of the City of Rialto, we would like to thank KASA Construction for their exemplary performance in completing the $5,323,556.56 construction of Joe Sampson Park. KASA completed this project with diligence, maintaining the highest level of professionalism and attention to detail. The project management team consistently kept the City's best interest in mind and cooperated transparently with the City to overcome any challenges which were faced during construction. KASA fulfilled their duties as a general contractor to the satisfaction of all parties.

The Project was completed within the schedule set forth in the agreement with the City.

We would be pleased to refer KASA Construction Inc. to any other organization seeking a diligent, professional general contractor eager to cooperate with their customer to ensure that the work is completed effectively and with the highest standards.

Sincerely,
Robert G. Eisenbeisz, P.E.

Public Works Director/City Engineer
cc: Project File
March 25, 2019
Mr. Sam Kasbar, Vice President
KASA CONSTRUCTION, INC.
15148 Sierra Bonita Lane
Chino, CA 91710
RE: CONSTRUCTION OF JOE SAMPSON PARK

CITY OF RIALTO, CALIFORNIA
Dear Sam:

I wanted to reach out and thank KASA Construction on the outstanding execution of the construction of Joe Sampson Park for the City of Rialto, a new 8 acre with a construction cost of $5,323,557. This project was completed well within the rigorous timeline set forth by the City of Rialto.

KASA Construction has brought numerous park projects designed by our firm to life over the past several years. We are consistently pleased with the high level of craftsmanship and professionalism demonstrated by your company. Joe Sampson Park was no exception. Your team was diligent in all communication efforts, attention to detail, and in providing quick, cost effective solutions to unforeseen conditions as they arose.

We would be pleased to provide recommendations and positive references about KASA Construction to public agencies and developers for upcoming park, landscape, and similar projects.

Sincerely,

COMMUNITY WORKS DESIGN GROUP
Scott Rice ASLA, LEED AP, CASp
Vice President
Landscape Architect CA #5111 | NY #2645
Certified Access Specialist CASp-709
[email protected]

14000 City
□
Center Drive
Chino Hills, CA 91709
(909) 364-2600
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KASA Construction, Inc.

Attn: Sam Kasbar
15148 Sierra Bonita Lane
Chino, CA 91710 cy
Project: Los Serranos Neighborhood Park
Owner: City of Chino Hills
Subject: Letter of Recommendation
Dear Mr. Kasbar,
On behalf of the City of Chino Hills, I would like to thank you and your team at KASA Construction Inc., for your noteworthy efforts in completing the Los Serranos Neighborhood Park.

The project consisted of a nearly 4 million dollar budget, including a 6-acre park with landscape grading, drainage, irrigation, landscaping, site furnishings, sports courts, restrooms, picnic shelters, lighting, playground and fitness equipment, hardscape, and other amenities.

In September of 2018, KASA commenced their work and through the duration of the project, KASA maintained the highest level of safety and quality, paying close attention to the specifics of construction and completing the required work within the necessary time frames. If issues ever arose, solutions were always implemented immediately. KASA’s incredible adaptability, diligence and close-out for the City’s final acceptance and completion, allowed for a successful Grand Opening of the park on November 16, 2019. I have attached our Grand Opening flyer. KASA’s admirable coordination with City Staff, while upholding the utmost respect, professionalism, integrity and diligence, resulted in a favorable project acceptance.

In addition, I would like to also thank KASA’s generous contributions of tools, material, and a tool shed which was donated to the adjacent Chaparral Elementary School for their after-school garden club.

I’d like to extend my sincere appreciation to you and your devoted team on a job well done and congratulate you on an outstanding project. It was an honor to introduce the 44th park to the City of Chino Hills. I would not hesitate to recommend KASA Construction Inc., to any other owner or agency.

Sincerely,
Cynthia Moran
Council Member
Art Bennett ■ Brian Johsz ■ Ray Marquez ■ Cynthia Moran ■ Peter J. Rogers (
TEr_: 951 .413.3280
F,tx: 951.413.3719
W\,\ryV.MOVAL.ORC
IvtORENO VALLEY

WHERE DREAMS SOAR
I4075 FREDERICK STREET
P.O. Box 88005
MoRENo VALLEY. CA 92552-0805
July 24,2018
Subject Letter of Recom mendation
John F. Kennedy Veterans Memorial Park
Restroom lmprovements Project
Project No. PCS HSG GR - JFK RENO
To whom it may concern:

It has been a pleasant experience working with Sam Kasbar and his staff with KASA Construction on the JFK Park project. This project included a prefabricated restroom, plumbing, electrical, sewer, picnic shelter, irrigation, turf installation, shrub installation, colored concrete walkways, and site amenities. The final project turned out absolutely beautiful.

KASA was proactive throughout the project, notifying me of problem areas of plan elevations to material delays. KASA took these issues in stride and worked on other projects while waiting for plan revisions and materials. KASA kept a clean and safe work site. What was really commendable was that KASA still made the project schedule. lt would be a pleasure to work with Sam and KASA Construction again.

Sincerely,
Tony Hetherman
Parks Projects Coordinator
TH
Enclosure. Letter of Recommendation
c: Project File
V:\Development & SpecsUFK restroom\KASA\Recommendation.docx PARKS AN D CO IrZtrTZtU N ITY S I NVI C T S D E PARTM E NT

CITY OF SOUTH PASADENA

COMMUNITY SERVICES DEPARTMENT
1102 OXLEY STREET, SOUTH PASADENA, CA 91030
TEL: 626.403.7360 • FAX: 626.403.7361
WWW.CI.SOUTH-PASADENA.CA.US
October 25, 2016
To Whom It May Concern:

KASA Construction was awarded a contract for the construction of the dog park project in the City of South Pasadena, which was completed in Fall 2016. Their dedication to the project was a major factor in the project being completed in a successful and timely manner. Through this process, their staff was cooperative, flexible, and diligently worked with city staff. The project was constructed in a professional and workmanlike manner. Documentation and communication were timely and professional, and they were receptive to our requests.

KASA Construction is highly recommended, as their staff would be an excellent asset to any city or agency. Feel free to contact me at [email protected] or (626) 403-7362 if you need additional information.
leila Pautsch
Sincerely.
"Sheila
Community Services Director

CITY OF ORANGE

COMMUNITY SERVICES DEPARTMENT www.cityoforange.org PHONE (714) 744-7274 • FAX (714) 744-7251 July 14, 2015
KASA Construction
15148 Sierra Bonita Lane
Chino, Ca. 91710
Subject: Grijalva Park Exercise Circuit Landscape
To Whom It May Concern:

It is my privilege to offer this letter of recommendation on behalf of the City of Orange to KASA Construction for their superb work at our landscape renovation at Grijalva Park.

KASA Construction completed the work in a timely fashion, showing up on the job each day until it was complete. KASA Construction displayed a professional attitude and work ethic from their management, superintendent, foreman to laborer staffing. Customer service and satisfaction was reflected throughout this project... I would not hesitate in providing a positive referral and I hope that the City of Orange has the good fortune to work alongside them in the future,
Respectfully Submitted,
~/(vt Cre7
Don Equitz /

Sr. Landscape Project Coordinator

COMMUNITY SERVICES DEPARTMENT. 230 E. CHAPMAN AVENUE. ORANGE, CA 92866

Exhibit B
Romany Basilyous, Engineering Manager
December 12, 2023
Larisa Sass

ZUSSER COMPANY INC
[email protected]
Hector Zavala, Estimator
KASA CONSTRUCTION, INC.
[email protected]
Luicci Nader

NATIONWIDE CONTRACTING SERVICES INC
[email protected]

RE: BID PROTEST DISPOSITION AND ORDER TO SHOW CAUSE
Barnes Park Multi Benefit Stormwater Capture Project (“Project”) Introduction
The City of Baldwin Park (“City”) is in receipt of a bid protest dated November 20, 2023 (“Protest”, a copy of which is enclosed) submitted by KASA Construction, Inc. (“KASA”) regarding the award of bids for the Barnes Park Multi Benefit Stormwater Capture Project (“Project”). As we understand the protest, KASA makes numerous allegations against the bids of two bidders who submitted lower bids, Zusser Company, Inc. (“Zusser”) and Nationwide Contracting Services, Inc. (“Nationwide”) (Nationwide and Zusser are collectively referred to herein as the “Lower Bidders”):

1. That Zusser listed more than one subcontractor for the same scope of work.

2. That Zusser violated prevailing wage laws.

3. That Nationwide listed a subcontractor that does not in fact have the contractually required experience.

4. That Nationwide improperly had its bid form signed by a person listing the title Vice-President rather than having such form signed by a person a person listing the title President and Secretary.

5. That Lower Bidders listed an unlicensed subcontractor.

6. That Lower Bidders listed a subcontractor that does not in fact have the contractually required experience.

7. That Lower Bidders lack the necessary ability, qualifications and experience.

8. That Lower Bidders are not qualified.

The City hereby rejects the Protest. As set forth herein, however, the City further directs Zusser to show cause why its bid should not be rejected as NON-RESPONSIBLE on the basis of the conduct described in the Decision of the Director of the California Department of Industrial Relations in Case No. 19-0134-PWH, and in addition on the basis of the fact that the results of it reference investigation did not give City staff confidence that Zusser “has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Public Contract Code section 1103). A statement setting forth such cause must be filed with the City on or before December 22, 2023.

Absent Zusser setting forth good cause, City Staff intends to recommend that the contract be awarded to Nationwide because its bid is responsive and the next-lowest.

Discussion
As observed in Judson Pacific-Murphy Corp. v. Durkee (1956) 144 Cal. App. 2d 377, 383 (“Judson”):

It must be remembered that competitive bidding statutes, and those requiring licenses for bidding on public work, are for the benefit of the public and not for the benefit of bidders or licensees. It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal or license application of the low bidder after the fact, cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy.

The City of Baldwin Park (“City”) regrets that it has received a bid protest from KASA, the third lowest bidder for this Project, attempting to leap-frog two (2) lower bidders, Nationwide and the Zusser, by alleging their bids were NON-RESPONSIVE in the hope of being awarded the contract for the Project at greater expense.

The City further regrets that Zusser nonetheless appears to be a NON-RESPONSIBLE bidder, not a nonresponsive bidder, not only for some of the reasons alluded to in the Protest relating to Zusser’s record before the Department of Industrial Relations, but also because the results of it reference investigation did not give City staff confident that Zusser “has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Public Contract Code section 1103). The City is satisfied that Nationwide’s bid is responsive because the bid promises to do what the contract requires. (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331.) That KASA alleges that Nationwide will not in fact honor those contractual commitments does not render the bid non-responsive, but rather raises an issue as to responsibility, and as to that based on conclusory statements. That KASA alleges that Nationwide’s bid is non-binding because it the signature is accompanied by a title Vice-President rather than President and Secretary is preposterous, particularly considering that it is possible for a person to hold all such titles at the same time and Nationwide has furnished to the City attesting that that is in fact the case.

As explained in Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303 (internal citations and quotation marks omitted):

A public entity's award of a contract, and all of the acts leading up to the award, are legislative in character. [T]he letting of contracts by a governmental entity necessarily requires an exer-cise of discretion guided by consideration of the public welfare. [T]he mere fact that a pro-ceeding before a deliberative body may possess certain characteristics of the judicial process does not convert legislative action into an adjudication of a private controversy. Thus, both the award of the contracts and the decision to reject the protest should be considered legislative actions. Review of a local entity's legislative determination is through ordinary mandamus un-der section 1085. Such review is limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support.

It is regrettable enough that the City is in the position of anticipating rejecting a low bid because of apparent substantial, repeated, bad-faith violations of prevailing wage law as well as negative references. But to expect, as KASA invites, the City to reject the next-lowest-bid as well, based on an allegation of the wrong title being printed on a page as well as allegations that the contractor does not intend to honor its contractual obligations it is representing it will honor, strains credulity, and the City proceeding in such manner would practically guarantee that the second-low-bidder would itself initiate ligation if the City proceeded as invited, which is to say to delay this major park improvement work substantially. As explained in 10 McQuillin, Municipal Corporations (3d ed.) § 29.29 (underline and italics added), competitive bidding laws are enacted “for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best work or supplies at the lowest price practicable and they are enacted for the benefit of property holders and taxpayers and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest.” Nationwide would presumably cry favoritism, improvidence, extravagance, fraud and corruption itself were the City to proceed to contract with KASA at a higher price, and while Zusser may not be in a position to level such arguments given its particularly unique and extensive apparent prevailing wage violations as well as its substandard references, for KASA to apply the same disqualification to Nationwide applied to Zusser so as to award KASA the contract as invited at greater expense, is simply unreasonable under these facts and reflects a mistaken and wrong construction of public bidding laws as intended for a bidder’s personal benefit rather than the public’s. The reality is, if KASA wished to be awarded this contract, it should have, at a minimum, submitted a lower bid.

It is the City’s expectation that if KASA wishes to bring litigation in connection with this matter that it will initiate such action immediately after the contract for the Project is awarded by the City Council so that the City will not be further materially prejudiced by the proceedings being initiated during the prosecution of the Project. Obviously, if KASA were to prosecute such action either prematurely or in an otherwise unnecessarily prejudicial manner the City would consider all of its potential rights, remedies, and defenses.

Conclusion
The Protest is denied. All irregularities alleged are waived. City staff intendsto recommend that City Council take action consistent with the foregoing and award the contract to Nationwide in the absence of Zusser setting forth good cause with respect to the matters pertaining to non-responsibility set forth above.

Respectfully,
Sam Gutierrez
CC: Grant R. Orbach, Best Best & Krieger LLP
Encl.: KASA Bid Protest
City of Baldwin Park • Public Works • Engineering Division 14403 E. Pacific Ave. • Ph.: (626) 960-4011, Ext. 459 •Email: [email protected] Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com November 20, 2023
City of Baldwin Park
14403 East Pacific Ave.

1. Failure to list only one subcontractor for the same Electrical Scope ( Zusser )

2. Failure to comply with DIR Prevailing Wage Requirements ( Zusser )

3. Failure to list Playground Equipment Installer / Subcontractor with min. 5 years of experience. (Nationwide )

4. Failure to properly execute signatures on Bid Proposal as instructed. ( Nationwide )

5. Failure to list a Licensed Landscape and Irrigation Subcontractor ( Zusser and Nationwide )

6. Failure to list a Fence Subcontractor with min. 5 years of experience. (Zusser and Nationwide)

7. Failure to have the Technical ability, qualifications and experience in constructing similar park projects (Zusser and Nationwide)

8. Non – Responsible Bidder (Zusser and Nationwide)

See below snip from specs:

Based on the above, Zusser should be deemed non-responive.

Zusser listed Jon Gilmer with a subcontract dollar value of $914,000 which equates to approximately

4.7% of their bid and Nationwide listed Jon Gilmer with a subcontract dollar value of $914,133 which equates to approximately 5.4% of their bid.

Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com Lastly, per the specifications, Section 32-93-95 / 1.03 Quality Assurance, the Landscape Contractor should have experience in horticultural and landscape maintenance. Besides KASA having experience for over 20 years in building Parks, KASA’s Landscape Superintendent worked with the world’s largest landscape company Valley Crest for over 20 years before finally joining KASA’s winning Team.

See below snip from the specs.

Based on the above, both Zusser and Nationwide shall be deemed non-responsive.

Allowing Zusser or Nationwide to use Ever Fence would defeat the purpose of maintaining a fair playing field besides the fact that it would materially affect the bid.

As a result of this, neither contractor shall be able to utilize Ever Fence and both bids should be considered non-responsive.

See snip below from the specifications.

KASA Construction Inc. is by far the most experienced, qualified, and the lowest responsible bidder for this project. Our attached Letters of Recommendations speak for themselves.

Please see snip blow from the specs

Respectfully,
Hector Zavala
Estimator
KASA Construction, Inc.

CC: Robert Niesley/ Watt Tieder
Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com Exhibit C
Marion T. Hack
D 213.928.9885
[email protected]
166156525v1
Troutman Pepper Hamilton Sanders LLP
Two California Plaza, 350 South Grand Avenue, Suite 3400 Los Angeles, CA 90071
troutman.com
December 14, 2023

VIA E-MAIL
Sam Gutierrez
City of Baldwin Park
Public Works, Engineering Division
14403 E. Pacific Ave.

Baldwin Park, CA 91706
Grant R. Orbach
Best Best & Krieger LLP
500 Capitol Mall
Suite 1799
Sacramento, CA 95814
Re: BID PROTEST DISPOSITION AND ORDER TO SHOW CAUSE
Barnes Park Multi Benefit Stormwater Capture Project
Dear Mr. Gutierrez and Mr. Orbach:

This firm represents the interests of Zusser Company, Inc. (“Zusser”). We are in receipt of your letter dated December 12, 2023, requesting a response to the City of Baldwin Park’s (“City”) Order to Show Cause regarding Zusser’s responsibility as a bidder for the Barnes Park Multi Benefit Stormwater Capture Project (“Project”). The notice is invalid as it does not follow clear California law regarding non-responsible determinations.

While Zusser intends to provide a formal response, we note that, as an initial matter, the City is required to (1) notify Zusser of any evidence reflecting upon its responsibility received from others or adduced as a result of independent investigation, (2) afford Zusser an opportunity to rebut such adverse evidence, and (3) permit Zusser to present evidence that it is qualified to perform the contract. (See City of Inglewood-L.A. County Civic Center Auth. v. Superior Court (1972) 7 Cal.3d 861, 871; Boydston v. Napa Sanitation Dist. (1990) 222 Cal.App.3d 1362, 1369.) Furthermore, due process compels a hearing take place prior to a rejection of the low monetary bidder as a non-responsible bidder. (City of Inglewood, supra, 7 Cal.3d at 871.) No hearing has been set and the evidence for which the City is basing its decision has not been provided.

Sam Gutierrez
Grant R. Orbach
December 14, 2023

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166156525v1
The City asserts it is relying on “the results of its reference investigation” but has not provided Zusser with any evidence of such investigation. Accordingly, Zusser demands that the City (1) provide it with all evidence upon which the City is relying, (2) allow Zusser an opportunity to respond to that evidence, and (3) permit Zusser to present evidence at a hearing in order to demonstrate it is qualified to perform the contract for the Project.

Furthermore, the City also asserts that it anticipates rejecting Zusser’s low bid because of “apparent, substantial, repeated, bad-faith violations of prevailing wage law.” Yet, the City only refers to a single Decision of the Director of the California Department of Industrial Relations in case No. 19-0134-PWH. This decision did not include any finding of bad faith and instead involved a worker classification issue. Moreover, this decision is currently being appealed in the Los Angeles Superior Court, thus this current decision has yet to be finalized.

In any event, this decision certainly has no bearing on Zusser’s “trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Pub. Contract Code § 1103.) Indeed, the basis of the decision was whether the lagoon was within or outside of the treatment plant and therefore whether certain workers should be classified as storm drain pipelayers versus pipefitters. This has no bearing whatsoever on Zusser’s ability to perform the contract and certainly does not evidence a bad faith violation of prevailing wage law. In fact, in the almost ten years since the project at issue in the DIR’s decision, Zusser has been deemed a responsible contractor on several dozen of public works projects in California and competently performed its work regarding the same, which calls into question the motivation for the City’s determination.

Zusser is a public works, prevailing wage contractor employing both union and nonunion employees on its projects. Zusser has performed work for Los Angeles County (including the Sanitation District of Los Angeles), Orange County, Imperial County, State of California Parks, multiple municipalities, cities and water districts. Zusser has also paid millions of dollars in prevailing wages including tens of thousands of man hours, and apprentice training from initial to journeyman. Zusser has also participated and continues to successfully participate in several local hiring and disadvantaged programs designed for workers in Los Angeles County.

The City notes, in its letter, that competitive bidding laws are enacted to guard against favoritism. Indeed, the statute requiring a public entity to award a contract to the lowest responsible bidder is aimed at “guarding against Tammany-style favoritism and corruption.” (Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1449.) “To hold otherwise as a broad principle would open the door to possible favoritism, fraud or corruption in the letting of other public construction contracts.” (Ibid.) Yet, the City’s position as to Zusser’s alleged non-responsibility smacks of favoritism. Indeed, the City has already stated it anticipated rejecting Zusser’s bid based on unknown and unsubstantiated “negative references,” and a single decision of the DIR, currently on appeal, on a 10-year-old project which has no bearing whatsoever on Zusser’s ability to perform the Project, nor includes any bad faith violation of prevailing wage law. As you know, responsibility means the fitness, quality, and capacity of the bidder to satisfactorily perform the proposed work. (Taylor Bus Sam Gutierrez
Grant R. Orbach
December 14, 2023

Page 3 ends

166156525v1
Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341–1343.) Here, the City has not demonstrated any evidence which would call into question Zusser’s fitness, quality and capacity of the bidder to satisfactorily perform the Project.

Considering the utter lack of evidence that the City has for rejecting Zusser’ bid, we ask that the non-responsibility be withdrawn immediately. If the City does not withdraw this determination, the City must immediately (1) provide all “negative reference” evidence upon which the City is relying for its determination, (2) allow Zusser an opportunity to respond to that evidence at a hearing, and (3) permit Zusser to present evidence at a hearing in order to demonstrate it is qualified to perform the contract for the Project. Considering the real question here of partiality of the City in this matter, the hearing officer needs to be clearly impartial to the proceedings and have no stake in the outcome. Anything less, would be violation of the due process rights of Zusser.

Best regards,
Marion T. Hack
MTH
cc: Misha Fyodorov
Exhibit D
Grant R. Orbach
Associate
916 329-3692
[email protected]
Best Best & Krieger LLP | 500 Capitol Mall, Suite 1700, Sacramento, California 95814 Phone: (916) 325-4000 | Fax: (916) 325-4010 | bbklaw.com December 20, 2023
VIA E-MAIL [[email protected]]
Marion T. Hack
Troutman Pepper Hamilton Sanders LLP
Two California Plaza, 350 South Grand Avenue, Suite 3400 Los Angeles, CA 90071
Re: BID PROTEST DISPOSITION AND ORDER TO SHOW CAUSE
Barnes Park Multi Benefit Stormwater Capture Project
Dear Ms. Hack:

Our office represents the City of Baldwin Park (“City”). Please direct all further communications regarding this matter to the undersigned. The City is in receipt of your correspondence on behalf of your client Zusser Company, Inc. (“Zusser”) dated December 14, 2023 regarding the above referenced matter. Said correspondence takes no issue with the position actually communicated by the City in its correspondence dated December 12, 2023, but instead takes issue with positions not taken by the City in said correspondence. The City declines the invitation to defend actions it has not taken and positions it has not communicated.

By way of background, the City received a bid protest from KASA Construction seeking the rejection of Zusser’s bid and another bidder’s bid on the grounds of non-responsiveness. The City correctly treated such protest as a protest grounded on an allegation of non-responsibility, and accordingly offered Zusser notice of matters for which the City was contemplating a nonresponsibility finding so that your client had notice and an opportunity to respond.

Instead of thanking the City for recognizing the mischaracterization in KASA Construction’s protest and affording your client an opportunity to respond to the concerns that have arisen that does not exist in a bona fide non-responsiveness challenge as KASA Construction postured its protest, Zusser apparently sees fit to accuse City staff of “favoritism”, specifically citing as legal authority a case observing that competitive bidding laws are designed to avoid “Tammany-style favoritism and corruption[]”, (Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1449), which is to put it mildly a serious accusation for which Zusser has offered no factual support and which is not appropriately directed.

Section 1103 of the Public Contract Code provides in full (emphasis added):
““Responsible bidder,” as used in this part, means a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract. The Legislature finds and declares that this section is declaratory of existing law.”
Marion T. Hack
December 20, 2023

Page 2 ends

Best Best & Krieger LLP
The City observes that it questions whether Zusser has demonstrated such responsibility through the references it provided with its bid. Zusser is invited to demonstrate in its statement of cause why its performance on the following projects demonstrates the attributes described in section 1103 of the Public Contract Code:
 West Hollywood — Pan Pacific Retention Basin Diversion Gate & Control House Upgrade
 Point Dume Staircase Replacement
 John Anson Ford Park Infiltration Cistern
 LADWP Lagoon Refurbishment
 Robert B. Diemer Water Treatment Plant Fire & Portable Water Pump Station.

Not every reference listed above was contacted, and some of the references contacted above did not respond or did not respond in a manner which suggested a willingness to speak with full candor without fear of retaliation from Zusser. Zusser would be well advised to exercise full candor in its statement of cause as to any disputes that arose during these projects and how they were resolved, enclosing copies of the relevant correspondence relating thereto.

As to Zusser’s characterization Decision of the Director of the California Department of Industrial Relations in case No. 19-0134-PWH, the City looks forward to Zusser’s formal response.

Finally, as to the general thrust of Zusser’s argument that “[t]he notice is invalid as it does not follow clear California law regarding non-responsible determinations”, Zusser’s argument fails because the City has not rejected Zusser’s bid on the grounds of non-responsibility. Zusser will be afforded such a hearing before any such action is taken. As was stated unambiguously in the City’s letter, “City staff intends to recommend that City Council take action consistent with the foregoing and award the contract to Nationwide in the absence of Zusser setting forth good cause with respect to the matters pertaining to non-responsibility set forth above.” (emphasis added).

Obviously, such a hearing would take place at or before City Council action on the award of the contract.

Contrary to KASA Construction’s invitation, Zusser has been offered notice and an opportunity to be heard. The City would encourage Zusser to avail itself of this opportunity and set forth a factual basis to support why it is a responsible bidder, with full candor. If Zusser has any concerns as to whether the City is engaged in “Tammany-style favoritism and corruption[]”, those concerns are probably more appropriately directed to another authority. For now, the City intends to limit its inquiry to whether Zusser has demonstrated the attributes required under section 1103 of the Public Contract Code.

Please notify the undersigned promptly as to whether Zusser and its bid bond surety will commit to hold their bid good through February 13, 2024. Absent such extension being agreed to by the three (3) lowest bidders, the City will likely need to set a special meeting for early Marion T. Hack
December 20, 2023

Page 3 ends

Best Best & Krieger LLP
January to dispose of the protest and any due process hearing in connection with Zusser’s responsibility if Zusser’s statement of good cause is not sufficient to resolve staff’s concerns.

Sincerely,
Grant R. Orbach
for BEST BEST & KRIEGER LLP
GRO:ab
Exhibit E
r A--- *
-Tm-T- dlqw-rrrEDER
2040 Main Street, Suite 300
lrvine, California 92614
Telephone: 949-852-6700
Facsimile: 949-261 -07 7 1
www.watttieder.com WATI TIEDER, HOFFAR & FITZGERALD, L.L.P December 21,2023

VIA EMAIL AND FEDEX OVERNIGHT DELIVERY
Sam Gutierrez
s gutien ez@b al dwinp ark. co m
Romany Basilyous
rbasilyous@baldwinpark. com
City of Baldwin Park Public Works Engineering Division
14403 E. Pacific Ave
City of Baldwin Park, CA91706
Grant R. Orbach
Best, Best & Krieger LLP
500 capitol Mall suite 1700
Sacramento, CA 95814
grant. o rb ach @,bbkl aw. c o m
City's Response to KASA Construction's Bid Protest on Barnes Park Multi Benefit Stormwater Capture Proj ect ("Proj ect")
Dear Sirs
This firm represents KASA Construction, Inc. ("KASA") regarding the Barnes Park Multi Benefit Stormwater Capture Project ("Project"). This letter shall constitute KASA's effort to meet and confer with respect to the City of Baldwin Park's ("City's") December 12,2023 response to KASA's bid protest.

On November 14,2023, Zusser Company, Inc. ("Zusser"), Nationwide Contracting Services, Inc. ("Nationwide") and KASA Construction ("KASA") submitted their bids to the City, and were revealed to be the 1st, 2nd and 3rd lowest bidders for the Project. On November 20,2023, KASA submitted a bid protest against both Zusser and Nationwide as the first and second apparent low bidders. On December 12,2023, the City rejected KASA's protest, but directed Zusser to show cause as to why its bid should not be rejected as non-responsible.

While KASA agrees that Zusser is a non-responsible bidder, the City failed to give adequate consideration for the non-responsiveness of both Zusser and Nationwide's bids. Of KASA's six (6) reasons why Nationwide's bid should be rejected, the City's rejection arbitrarily only addressed one (1) - the executed signature. Mr. Gutierrez writes:
"The City is satisfied that Nationwide's bid is responsive because the bid promises to do what the contract requires (Taylor Bus Service, Inc. v. San Diego Bd of Education (1987) 195 Cal.App.3d 133 1 .) That KASA alleges that Nationwide will Re
Sam Gutierrez
Romany Basilyous
Grant R. Orbach
December 21,2023
Page2
not in fact honor those contractual commitments does not render the bid nonresponsive, but rather raises an issue as to responsibility, and as to that based on conclusory statements."
As set forth below, the City's analysis is incorrect. Only KASA's bid promised to do what the contract requires both as set forth by California law (requiring all contractors to be licensed and to have the proper specialty licenses) and as set forth by the Project specifications (requiring minimum years of experience). The City cannot accept Nationwide's bid, which is based on both an unlicensed landscape subcontractor and a fencing subcontractor who cannot meet the defined Specifications for the Project. Nationwide had a clear, unfair advantage in listing these subcontractors. Such an advantage is material, and cannot be waived by the City.

Moreover, Nationwide does not have the requiredc-2T license to perform its unlicensed landscape subcontractor's work. Without either Nationwide or its subcontractor having the proper license to perform this work, Nationwide must be considered a non-responsible bidder.

Finally, Nationwide has been sued by the Construction Laborers Trust funds for Southem California Administrative Company in a pending lawsuit in the United States District Court for the Central District of California, Case No. 8:23-cv-0052l, for monetary damages due to employee benefit plans arising from project labor, collective bargaining and trust agreements. The complaint alleges Nationwide failed to make monthly contributions for its employees. These allegations go to the "trustworthiness, as well as quality, fitness, capacity and experience to satisfactorily perform the public works contract." Pub. Cont. Code $ 1103. The City should also consider whether Nationwide is a non-responsible bidder in light of these allegations.

MPLY WITH THE BID DOCUMENTS

ITS LIST OF S NTRACTORS
A. Nationwide's Designated Landscape Subcontractor is Unlicensed in California and Nationwide Does Not Hold the Requisite C-27 License or Experience to Self-Perform this Work
Per the Bid requirements, the bidders were required to certify that their bids were based on designated subcontractors who would "be used for the work for which they bid in accordance with the applicable provisions of the Specifications for the Project." See Designation of SubContractors. The Subletting and Subcontracting Fair Practices Act also requires all prime contractors submitting bids on public construction projects in California to provide the subcontractor's CSLB license numbers on their subcontractor designation forms.

Nationwide (and Zusser) listed Jon Gilmer Construction (CSLB #582487) as the landscape and irrigation subcontractor. Jon Gilmer Construction had and has a suspended license per the CSLB.

Bidders were required to list subcontractors they intended to use. By listing this unlicensed subcontractor, Nationwide's bid was non-responsive. The City rejected KASA's protest "based on conclusory statements." There is nothing conclusory about this subcontractor's non-licensure. A review of its standing on the CSLB website shows its status as unlicensed.

Sam Gutierrez
Romany Basilyous
Grant R. Orbach
December 21,2023

Page 3 ends

This material defect in Nationwide's bid is not easily waived. Nationwide does not hold the requisite C-27 landscape license to self-perform this work. The Project specifications required that the Contractor "shall possess a valid Class A California Contractor's License or other appropriate license classification under the State Contracting Code at the time the contract is bid." Neither Nationwide nor its listed subcontractor have the proper licensing for the Project.

Nationwide also lacks the technical ability and experience to be a responsible bidder for this scope.

The landscaping is a large portion of this park project for which experience is vital. Whereas KASA is a well-known park contractor, Nationwide lacks the resume to show they have sufficient landscaping experience. Nationwide cannot back up that deficiency by listing an unlicensed landscaper. The bid documents made it clear that experience was an important factor to the City, and the City should require that experience on this Project.

B. Nationwide's Designated Fencing Subcontractor Did Not Meet the Specifications
The Specifications set forth in the Bid required that the company installing chain link fencing have a minimum of five (5) years documented experience. As set forth in KASA's bid protest, Nationwide (and Zusser's) listed subcontractor, EverFence, does not meet this requirement. KASA attested that this subcontractor was less expensive than its listed fencing subcontractor, but KASA did not use Ever Fence's bid because of the specifications. KASA followed the rules and is now being punished for following them. The City should not arbitrarily ignore Nationwide's disregard for the bidding requirements.

Respectfully, the City's December 12,2023 rejection letter failed to address either of these clear, material violations in Nationwide's bid.

II. NATIONWIDE'S BID DID NOT COMPI,Y WITH CAI,IF'ORNIA LAW A. The Bid Was Non-Responsive
Literal compliance with the bid request is a consideration in determining non-responsiveness.

Great W. Contractors. Inc. v. Trvine IInified Sch. Dist.- 187 Cal. App. 4th 1425,1456 (2010), as modified (Sept. 30, 2010), opinion supplemented on denial of reh'g. No. G041688, 2010 WL 3789323 (Cal. Ct. App. Sept. 30, 2010)(citing D.H. Williams Construstion Co. v. Clovis Unified School Dist. ,146 Cal. App. 4th 757 ,69-770 (2007). Nationwide's bid was not responsive because it designated an unlicensed landscape subcontractor at the time of bid opening, and the bid listed a fencing subcontractor who does not have the specified minimum five (5) years' experience required to perform the work. While minor deviations are not sufficient grounds to reject a bid, these are not minor. Nationwide included bids from subcontractors whose work would either be illegal or in violation of the contract. The City should not ignore these deviations and Nationwide's bid must be rejected.

Sam Gutierrez
Romany Basilyous
Grant R. Orbach
December 21,2023

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B. The Bid's Defects are Material and Cannot Be Waived
While the City has the discretion to waive minor details of the bid specifications, "[t]he point of discretion is that the agency may properly act in either discretion. It may waive or refuse to waive such deviations." MCM v. City & County of San Francisco, 66 Cal. App. 4th 359, 373 (1998).

That discretion also extends only to the extent "such a waiver will not make the bidding process unfair i.e., if the deviation from the specifications is inconsequential." Menefee v. County of Fresno, 163 CaL App.3d 1175, Il80 (1985) (citing 47 Ops.Cal.Atty.Gen. 129 (1966)(allowing missing signature on bid). Whether a defect is inconsequential is clearly set forth in the case law:
"the variance cannot have affected the amount of the bid or given the bidder an advantage or benefit not allowed other bidders" Valley Crest Landscape v. Davis,4l Cal. App. 4th 1432 (1996) (citing Konica Business Machines U.S.A.. Inc. v. Regents of University of California,206 Cal.

App. 3d 449, 454 (1988))(emphasis in the original).

Here, the defects are not inconsequential because they affected the amount of the bid. KASA received the same pricing as Zusser and Nationwide from EverFence but intentionally declined to list them because of EverFence's lack of experience under the Specifications. Similarly, use of an unlicensed contractor's price in the bid submission is undoubtedly a benefit not allowed other bidders.

C. Nationwide Gained an Unfair Advantage Over Other Bidders A bid can be accepted but only if the claimed errors do not affect the amount of the bid or give the bidder an advantage that others bidders do not have. See Ghilotti Construction Co. v. Citv of Richmond, 45 CaL App. 4th 897,904-905 (1996) (qlug 47 Ops.Cal.Atty.Gen. 129,130 (1966)).

A proper measure of whether the agency's waiver resulted in an "unfair advarftage" is whether the contractor would have been liable on the bid bond if they had attempted to back out of their bid after it had been accepted by the owner. Menefee v. County of Fresno, 163 Cal. App. 3d 1179, 1181 (1985). If the bidder could use their listed of unlicensed and unqualified subcontractors to later avoid a contract, it had an unfair advantage. On the other hand, if the bidder could not use those listings to avoid its bid, it did not gain any advantage from the defect, and, therefore, waiver should be permitted. Id. at 1 181.

Because an unlicensed and unqualified subcontractors cannot perform the work, Nationwide could use these material defects as the basis to: (1) retract its bid (after being accepted by the City as the lowest bidder); and (2) avoid forfeiture of any bid bond. Nationwide had a clear advantage if he is allowed to list unlicensed, or unqualified subcontractors to achieve a lower bid price than the other bidders.
ilI. CONCLUSION
Based on the foregoing, and the well-established California cases, the City should reject both Zusser and Nationwide's bids and proceed with awarding the contract to KASA. The people of the City of Baldwin Park are entitled to a licensed, qualified team for this Project.

Sam Gutierrez
Romany Basilyous
Grant R. Orbach
December 21,2023

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Thank you for your consideration. This letter is being sent in advance of any litigation. We hope to have a further dialogue with the City concerning the merit of KASA's legal position. Please call me at your earliest opportunity to discuss.

Sincerely,
Wntr, TteteR, HoRnRn & FrrzcpnAI-D, L.L.P
Robert C. Niesley

RCN/ALM
20136398.1 l 0443 1.00003
Exhibit F
Marion T. Hack
D 213.928.9885
[email protected]
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Troutman Pepper Hamilton Sanders LLP
Two California Plaza, 350 South Grand Avenue, Suite 3400 Los Angeles, CA 90071
troutman.com
December 22, 2023

VIA E-MAIL
Grant R. Orbach
Best Best & Krieger LLP
500 Capitol Mall
Suite 1799
Sacramento, CA 95814
Re: BID PROTEST DISPOSITION AND ORDER TO SHOW CAUSE
Barnes Park Multi Benefit Stormwater Capture Project

Dear Mr. Orbach:

This letter is being submitted in response to the City of Baldwin Park’s (“City”) December 12, 2023 letter requesting a response to the Order to Show Cause regarding Zusser Company, Inc.’s (“Zusser”) responsibility as a bidder for the Barnes Park Multi Benefit Stormwater Capture Project (“Project”), and your December 20, 2023 letter. Also, in response to the request in your December 20, 2023 letter, Zusser agrees to extend its bid bond to February 13, 2024.

Zusser hereby reiterates that the City’s notice is invalid as it does not follow clear California law regarding non-responsible determinations. Although you have asserted that the City has not yet made any determination of non-responsibility, the City’s December 12 letter clearly states “Zusser nonetheless appears to be a NON-RESPONSIBLE bidder” and that “the City is in the position of anticipating rejecting a low bid.” Despite Zusser’s request, the City failed to provide Zusser with any evidence upon which the City is relying, and the City failed to provide Zusser with the requisite impartial hearing compelled by due process. (See D.H.

Williams Construction, Inc. v. Clovis Unified School Dist. (2007) 146 Cal.App.4th 757, 763 [In making this determination [of whether a low bidder is responsible], however, the agency is required to afford a significant level of due process to the bidder, including notice and an opportunity to respond].) Zusser therefore renews its objections outlined in its December 14, 2023 letter.

With respect to Zusser’s alleged non-responsibility, the following will provide the City with ample evidence that Zusser is the lowest responsible bidder on the Project. As you know, responsibility means the fitness, quality, and capacity of the bidder to satisfactorily perform the proposed work. (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d Sam Gutierrez
Grant R. Orbach
December 22, 2023

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1331, 1341–1343.) Responsibility is defined by statute as “trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Pub.

Contract Code § 1103.) A bidder is responsible if it can perform the contract as promised. (Taylor Bus Service, Inc., supra, 195 Cal.App.3d at 1341.) As evidenced by the successfully completed projects by Zusser over the years, there is no doubt Zusser can perform the contract as promised.
“Determining whether a certain bidder is ‘responsible’ generally entails an evaluation of the bidder's trustworthiness, quality, fitness, capacity, and experience to satisfactorily perform the contract in question. (Pub. Contract Code, § 1103; City of Inglewood–L.A. County Civic Center Auth. v. Superior Court (1972) 7 Cal.3d 861, 867.) Determinations of non-responsibility are reserved for extraordinary circumstances where the contractor is truly not able to perform the contract or has committed intentional fraud. For example, in Stacy & Witbeck, Inc. v. City and County of San Francisco (1995) 36 Cal.App.4th 1074, the contractor was deemed to be irresponsible after the public utilities commission determined the contractor knowingly and intentionally submitted a false claim. Zusser has never been found to be in violation of the False Claims Act. In another example, in Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425,1458, the court noted that the school district had rejected the contractor’s bid for dishonesty for not disclosing associated licenses. Similarly, D.H. Williams Construction, Inc. v. Clovis Unified School Dist. (2007) 146 Cal.App.4th 757, 766 states that if an agency had reason to believe a bidder knowingly listed a subcontractor, whether licensed or not, with the intention of substituting a different subcontractor once the prime contract was awarded, the agency would be entitled to reject the prime bidder as not responsible. These are all examples where the contractor committed intentional fraudulent acts or raised concerns about the contractor’s dishonesty. There is no such similar circumstance here related to Zusser’s bid.

Your December 20 letter questions whether Zusser has demonstrated responsibility through the references it provided with its bid and invites Zusser to demonstrate why its performance on certain projects demonstrates the attributes described in Section 1103 of the Public Contract. Yet, the City admits it did not call all of Zusser’s references, in fact it appears that the City has not received any negative reference for Zusser. This is inconsistent with the original statements by the City that the City was “anticipating rejecting a low bid because of apparent substantial, repeated, bad-violations of prevailing wage law as well as negative references.” Yet, none of that appears to be true. There is no evidence of “repeated badviolations of prevailing wage law” and there were no negative references. In fact, the City admits it did not call all of Zusser’s references. We do not take accusation of favoritism lightly but with these facts, it is not hard to come to the conclusion that the City is not treating Zusser fairly and is improperly favoring other bidders.

Further, it does not appear that Nationwide has had to prove its responsibility in the same manner as Zusser, even though its qualifications were also questioned. The protesting contractor claimed that both Nationwide and Zusser were not qualified to perform the project.

Sam Gutierrez
Grant R. Orbach
December 22, 2023

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Yet, only the low bidder, Zusser, has had to go through this exercise of proving its responsibility to perform the contract.

In any event, while your letter lacks any specific allegations of a lack of responsibility or trustworthiness for Zusser to specifically respond to, Zusser provides the following information on the projects referenced in your letter. Additionally, Zusser has enclosed supplemental information for the five projects discussed below.
 The West Hollywood Pan Pacific Retention Basin Diversion Gate & Control House Upgrade Project involved replacement of existing slide gate, upgrading the mechanical, electrical, and control systems for the new slide gate, and construction of a new control house within the Pan Pacific Retention Basin. The initial contract scope has been entirely fulfilled. The outstanding tasks involve miscellaneous additional electrical work initiated by the County. The anticipated completion date for these remaining tasks is currently set for January 2024. This schedule aligns with the overall contractual timeframe as allocated. There were no disputes on this project and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.
 The Point Dume Staircase Replacement Project involved removal of existing the stairway and construction of new stairway with an ADA trail above the staircase in Malibu, CA. This was an extremely technically complicated project involving work on an almost 90-degree slope. Despite the technical challenges, this project was completed successfully and on time. There were no disputes on this project and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.  The John Anson Ford Park Infiltration Cistern Project in Bell Gardens, CA involved construction of a diversion structure and subsurface infiltration basin beneath the park to capture and recharge both dry-weather and storm runoff.

The parties are currently in the ADR process with a mediator pursuant to the provisions in the contract and thus are unable to provide you with mediation Sam Gutierrez
Grant R. Orbach
December 22, 2023

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protected materials. Zusser believes that the claims between itself and the City will be resolved shortly. No lawsuits, demands for arbitration, or other legal actions have been filed to date.
 LADWP Lagoon Refurbishment involved construction of a liner basin of over 7,000 linear of PVC, on-site screening of over 6,000 cy of underdrain rock, disposal of hazardous materials, refurbishment of existing valve structures and installation of electrical panes and utility cabinets. This project was completed successfully and on time. There were no disputes on this project with the owner and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.

Zusser is currently appealing a decision from the DIR in the Los Angeles Superior Court which involves wage classification, as more fully discussed below.  Robert B. Diemer Water Treatment Plant Fire & Portable Water Pump Station involved construction of the treatment plant and pump station including mechanical pipe work, structural concrete, flat concrete, electrical work, piles, shoring and excavation, structural steel, and site work. This project was completed successfully and on time. There were no disputes on this project and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.

There is no doubt that Zusser has the trustworthiness, quality, fitness, capacity, and experience to satisfactorily perform the contract in question. For nineteen (19) years Zusser has been a family run general contractor specializing in public works that serves the greater Los Angeles and Orange County areas. Since 2005, Zusser has held a General Engineering A, Building Construction B, and Hazardous Substances Removal HAZ contractor licenses in good standing with the California State License Board. The City’s RFP required that the bidders possess valid Class A licenses. “The California Contractors' State License Board issues Class “A” licenses for general engineering contractors whose principal business involves fixed works requiring specialized engineering knowledge and skill, including irrigation, drainage, water supply, flood control, pipeline, and related excavating, grading, trenching and concrete work. (Bus. & Prof.Code, § 7056; Cal.Code Regs., tit. 16, § 830.)” (M & B Const. v. Yuba County Water Agency (1999) 68 Cal.App.4th 1353, 1356–1357.) Thus, in order to be granted a Class A license, a contractor must demonstrate its principal business involves the ability to take on Class A work which is defined as follows:
7056. A general engineering contractor is a contractor whose principal contracting business is in connection with fixed works requiring specialized engineering knowledge and skill, including the following divisions or subjects: irrigation, drainage, water power, water supply, flood control, inland waterways, harbors, docks and wharves, shipyards and ports, dams and hydroelectric projects, levees, river control and reclamation works, railroads, Sam Gutierrez
Grant R. Orbach
December 22, 2023

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highways, streets and roads, tunnels, airports and airways, sewers and sewage disposal plants and systems, waste reduction plants, bridges, overpasses, underpasses and other similar works, pipelines and other systems for the transmission of petroleum and other liquid or gaseous substances, parks, playgrounds and other recreational works, refineries, chemical plants and similar industrial plants requiring specialized engineering knowledge and skill, powerhouses, powerplants and other utility plants and installations, mines and metallurgical plants, land leveling and earthmoving projects, excavating, grading, trenching, paving and surfacing work and cement and concrete works in connection with the above-mentioned fixed works.

Zusser is fully insured and bonded as required by the RFP. Zusser’s bonding capacity, as evidence by the letter from its surety in the enclosed supplemental information, is currently at $40,000,000 (single) and $50,000,000 (aggregate). This is important because a bonding company performs underwriting to make sure the contractor has the capacity and competency to perform the work. In fact, in the letter, Zusser’s surety states that based on its investigation, Zusser is a company well versed in the construction industry with a great depth of experienced people, known for their ability to complete contracts on schedule, within budget and with exceptional workmanship. In its almost twenty years in business, Zusser has attained a network of reputable subcontractors, designers, and surveyors that meet its stringent quality and dependability requirements.

Moreover, Zusser is a prevailing wage contractor employing both union and nonunion employees on its projects. Zusser has performed work for Los Angeles County (including the Sanitation District of Los Angeles), Orange County, Imperial County, State of California Parks, multiple municipalities, cities and water districts. Zusser has also paid millions of dollars in prevailing wages including tens of thousands of man hours, and apprentice training from initial to journeyman. Zusser has also participated and continues to successfully participate in several local hiring and disadvantaged programs designed for workers in Los Angeles County.

As to the City’s request for a formal response related to the Decision of the Director of the California Department of Industrial Relations in case No. 19-0134-PWH, as noted in our December 14, 2023 letter, this decision did not include any finding of bad faith and instead involved a disagreement over a worker classification issue. Moreover, this decision is currently being appealed in the Los Angeles Superior Court, thus this current decision has yet to be finalized. Enclosed herein is Zusser’s Motion for Issuance of Writ of Mandate for your review.

As is described in detail in the Motion, the DIR’s decision was based on a determination that Zusser misclassified sewer and storm drain pipelayer workers on the project which alleged misclassification is not supported by the evidence. Indeed, the DIR decided to reclassify the workers as pipefitters because it claimed the lagoons on the project were connected to a plant, yet the evidence demonstrated that when Zusser performed work in the lagoons, there was no connecting pipeline to any facility. The uncontradicted evidence is that Zusser’s work was Sam Gutierrez
Grant R. Orbach
December 22, 2023

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performed exclusively in the lagoons. In any event, this decision certainly has no bearing on Zusser’s “trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Pub. Contract Code § 1103.) In fact, in the almost ten years since the project at issue in the DIR’s decision, Zusser has been deemed a responsible contractor on several dozens of public works projects in California.

Of more concern is that a search of contractors that have been awarded contracts by the City show that the City has repeatedly awarded contracts to contractors that had reported DSLE violations, sometimes multiple violations. As an example, All American Asphalt was awarded a contract in June 2022 but there are DSLE claims against them reported in 2020 and June 2022, and it appears the June 2022 claim is still ongoing. (See enclosed record from DSLE.) PCN3 was awarded a contract by the City in 2022 and they also had a wage claim by the DSLE in 2012. (See enclosed record from DSLE.) There are other examples where the City has awarded contracts to contractors who have DSLE violations. Clearly the City did not take into account DSLE violations in other bidding decisions, so it is highly questionable that now, all of a sudden, Zusser’s alleged violation over a worker classification issue is a compelling reason to determine Zusser’s responsibility. The City’s reliance on one DIR decision (which is not yet finalized as it is currently on appeal) regarding wage classification with no finding or determination of bad faith, when it has awarded several contracts to other contractors with multiple DSLE violations, is a clear indicator that the City is illegally favoring another contractor over Zusser.

Moreover, this “evidence” is clearly insufficient to classify Zusser as a non-responsible bidder. If every dispute between Contractors and the DLSE over classification issue resulted in debarment then there would be no contractors available to perform work as this is the most common disputes that contractors have with the DSLE. Determinations of responsibility “inherently carry at least some danger of arbitrary or erroneous determinations.” (See Advance Real Estate Services, Inc. v. Superior Court (2011) 196 Cal.App.4th 338, 352.) The arbitrariness of the City’s determination is apparent. The City has provided no evidence of Zusser’s fitness to perform the work and has found other contractors fit to perform work with the same DLSE issues. This is very concerning that a City would be acting in such a manner.

Notwithstanding the lack of detail for Zusser to specifically rebut any allegations of nonresponsibility, Zusser has been deemed a responsible contractor on countless public works projects in California. With respect to this Project, Zusser no doubt has the requisite trustworthiness, quality, fitness, capacity, and experience to satisfactorily perform the contract in question. Indeed, this Project is a stormwater capture consisting of a subsurface infiltration system designed to capture over 16 acre-feet of runoff for groundwater recharge. The Project also consists of surface improvements to an existing park space including but not limited to additional and expanded parking, new courts and play areas, grass/turf improvements, landscaping, water features and lighting. Zusser has successfully performed similar projects as described above and in the enclosed supplemental information. These projects include a wide variety of underground water storage, stormwater capture, and other water systems. In Sam Gutierrez
Grant R. Orbach
December 22, 2023

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addition, the projects include a variety of public parks and various trades including but not limited to electrical, concrete, structural, demolition, grading and excavation, asphalt, masonry, utilities, sewer, drainage, water lines, and design and survey. Accordingly, Zusser is fully capable of satisfactorily performing the contract for the Project and is the lowest responsible bidder on the Project. The City has no competent evidence to the contrary.

Considering the utter lack of evidence that the City has for rejecting Zusser’ bid, we ask that the non-responsibility be withdrawn immediately. Under well-established California law, the determination that an otherwise winning bidder is ‘irresponsible’ entitles the bidder, as a matter of due process, to a hearing on that determination.” (Advanced Real Estate Services, Inc., supra, 196 Cal.App.4th at 351-352.) Thus, Zusser renews its request for an impartial hearing to rebut the City’s claims. The failure to provide the evidence for which the City bases its initial decision is quite concerning and required Zusser to respond to unknown allegations in a vacuum. There is a taint to this request that is akin to a setup of Zusser. If the City had evidence of its claims and withheld it from Zusser that would be another piece of evidence pointing to an improper motive of the City. We hope that is not the case.

Sincerely,
Marion T. Hack
MTH
cc: Misha Fyodorov
Enclosures
Page: 1 of 1
Total Records: 2
Search Date: 12/14/2023
Filter Applied:

Defendant Name
all american asphalt
Defendant Name Party
Type
Case
Number
NAICS
Code NAICS Industry DateFiled
Assigned
Deputy DIR Office Case Status
All American Asphalt, a
California Corporation Defendant WC-CM-888710 32732 Ready-Mix ConcreteManufacturing 06/11/2022 PuniloaChavira San
Bernardino
WCA
Hearing
Approved
All American Asphalt, a
California Corporation Defendant WC-CM-780654 561311 EmploymentPlacement Agencies 03/27/2020 Maria ElenaSandoval San
Bernardino
WCA
Closed Settled –
Pre-hearing
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OU RT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO
A Professional Law Corporation
Thomas W. Kovacich, State Bar No. 94046
[email protected] 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364
Telephone: (562) 653-3200
Fax: (562) 653-3333
Attorneys for Petitioner ZUSSER COMPANY, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES
ZUSSER COMPANY, INC., a California
corporation,
Petitioner,
v.

CALIFORNIA DEPARTMENT OF
INDUSTRIAL RELATIONS, KATRINA S.

HAGEN, in her capacity as the Director of
Industrial Relations for the State of California,
and DOES 1 through 20, inclusive,
Respondents.

Case No. 22STCP03463
[Assigned to Honorable Mitchell L. Beckloff]
ZUSSER COMPANY, INC.’S NOTICE

OF MOTION AND MOTION FOR
ISSUANCE OF WRIT OF MANDATE;

AND MEMORANDUM OF POINTS AND

AUTHORITIES
Petition Filed: September 26, 2022
Hearing on Petition for Writ of Mandate:

Date: February 7, 2024
Time: 9:30 A.M.

Dept. 86
LILIA GARCIA-BROWER, in her official
capacity as LABOR COMMISSIONER,

DIVISION OF LABOR STANDARDS

ENFORCEMENT,
Real Party In Interest.
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on February 7, 2024, at 9:30 a.m., or as soon thereafter as the matter may be heard before the Honorable Mitchell L. Beckloff in Department 86 of the Los Angeles Superior Court, located at 111 N Hill Street, Los Angeles, CA 90012, Petitioner Zusser Company, Inc. (“Zusser”) will and hereby does move for the issuance of a writ of administrative mandate or other appropriate relief reversing and/or vacating the Decision of the Director of Industrial Relations in Department of Industrial Relations (“DIR”) Case No.: 19-0134- PWH (“Decision”) and dismissing the underlying Civil Wage and Penalty Assessment, or alternatively, reversing and remanding the matter for rehearing.

This motion for issuance of a writ of administrative mandate is made on grounds that DIR’s Decision constitutes a prejudicial abuse of discretion.

Petitioner’s Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities; the Administrative Record in DIR Case No.: 19-0134- PWH; any matters of which the Court may take judicial notice; other documents on file in this action; and any oral argument of counsel.

Dated: October 10, 2023 ATKINSON, ANDELSON, LOYA, RUUD & ROMO By:

Thomas W. Kovacich
Attorneys for Petitioner
Zusser Company, Inc.

TABLE OF CONTENTS
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
TELE PHONE : (562) 653-3200
FAX : (562) 653- 3333
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 6 I. INTRODUCTION .............................................................................................................. 6 II. STATEMENT OF FACTS ................................................................................................. 6 A. The Project .............................................................................................................. 6 B. DLSE Evidence ....................................................................................................... 8

1. Investigation by Industrial Relations Representative Salamero.................. 8 C. Zusser Evidence .................................................................................................... 12 III. STANDARD OF REVIEW .............................................................................................. 14 IV. LEGAL DISCUSSION ..................................................................................................... 15 A. Overview of California Prevailing Wage Law...................................................... 15 B. DLSE Cannot Meet Its Burden of Proof ............................................................... 17 C. Zusser Did Not Misclassify its Pipelayers and Pipe Tradesmen........................... 17 V. CONCLUSION ................................................................................................................. 20

TABLE OF AUTHORITIES
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
TELE PHONE : (562) 653-3200
FAX : (562) 653- 3333

STATE CASES
Busker v. Wabtec Corporation (2021)
11 Cal.5th 1147 .................................................................................................................. 15,20 City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 22 Cal.Rptr.3d 518, 102 P.3d 904 ................................................................. 15 Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733 ......................................................................................................................... 20 Department of Industrial Relations v. Davis Moreno (2011) 193 Cal.App.4th 560 ............................................................................................................... 16 Independent Roofing Contractors v. Department of Industrial Relations (1994) 23 Cal.App.4th 345 ................................................................................................................. 20 Lusardi Construction Co. v. Aubry (1992)
1 Cal.4th 976, 4 Cal.Rptr.2d 837, 824 P.2d 643 ..................................................................... 15 Sheetmetal Workers v. Duncan (2014)
229 Cal.App.4th 192 ............................................................................................................... 15

STATE CODES/STATUTES
Code Civ. Proc. § 1094.5 .............................................................................................................. 14 Code Civ. Proc. § 1094.5(b) ......................................................................................................... 14 Labor Code § 1720 ........................................................................................................................ 15 Labor Code § 1742 ................................................................................................................... 15,16 Labor Code § 1742(b) .............................................................................................................. 16,17 Labor Code § 1742(c) .............................................................................................................. 14,15 Labor Code § 1773 .......................................................................................................................... 9 Labor Code § 1775 .............................................................................................................. 10,11,15 Labor Code § 1777.7 ................................................................................................................ 10,11 Labor Code § 1813 ................................................................................................................... 10,11

OTHER AUTHORITIES
8 CCR § 16200 ................................................................................................................................ 9 8 CCR § 16303(a) ......................................................................................................................... 20 8 CCR § 17224(d) ............................................................................................................... 11,16,17

TABLE OF AUTHORITIES
(CONTINUED)
Pages
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
TELE PHONE : (562) 653-3200
FAX : (562) 653- 3333
8 CCR § 17224(d) ......................................................................................................................... 11 8 CCR § 17244(d) ......................................................................................................................... 17 8 CCR § 17250(a) ......................................................................................................................... 16 8 CCR § 17244 (Rule 44).............................................................................................................. 17 8 CCR § 17244 (Rule 44(d)) ......................................................................................................... 17 8 CCR § 17244 (Rule 50(a)) ......................................................................................................... 17 8 CCR § 17244 (Rule 50(b)) ......................................................................................................... 17 - 6 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFO RNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This writ seeks the reversal of the Decision issued by the Department of Industrial Relations (“DIR”) issued on August 18, 2022. (AR000004.) 1 The Decision erroneously determined that Zusser Company, Inc. (“Zusser”) misclassified its sewer and storm drain pipelayer employees on the Project. The Director abused her discretion in that the findings are not supported by the evidence in light of the entire record.

The hearing was conducted on November 20, 2019, October 23 and 28, 2020 and June 16, 2021. (AR000004.) The enforcing agency, Division of Labor Standards Enforcement (“DLSE” or “Labor Commissioner”) presented the testimony of its investigator, Reisee Salamero (“Salamero”) and Zusser presented the testimony of its Chief Financial Officer, Misha Fyodorov (“Fyodorov”).

II. STATEMENT OF FACTS
A. The Project
Metropolitan Water District (“MWD”) advertised a notice of inviting bids on October 2, 2014. (AR002835.) The Project was a standalone installation of a sewer and storm drain system on four existing lagoons on a property leased by MWD from the Los Angeles Department of Water and Power (“LADWP”). 2 The lagoons were an open bodies of water previously utilized by LADWP. (AR531-532.) The Project specifications are entitled “LADWP Lagoon Refurbishment” (“Project”). (AR000525, 002775.)
The Project consisted primarily of the laying of 7,000 feet of 6-to-8-inch perforated PVC pipe, 500 feet of 2-inch PVC pipe in trenches in an underdrain pipe system. The trenches are lined 1 The Administrative Record is identified as DIR000000. For convenience, Petitioner will cite it as “AR” instead of “DIR”.
2 The project description on the notice of inviting bids is described as follows: “N-3 Project description. The work consists of construction of approximately 7,000 feet of 6-inch to 8-inch PVC pipe, 500 feet of 2-inch PVC pipe, 1,700 feet of utility ductbanks, and three maintenance holes; modification of two existing maintenance holes; installation of two standpipes, five submersible pumps and two turbidity meters; on-site screening of approximately 6,l00 cubic yards of underdrain rock; disposal of approximately 2,000 cubic yards of hazardous material; installation of approximately 12,500 cubic yards of crushed rock; refurbishment of existing decant valve structures for four lagoons including asbestos and PCB abatement; installation of local electrical panels and a utility cabinet; and other appurtenant work as specified and shown on the drawings.” (AR002077, 002782.)
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
with fabric material. Perforated pipe is utilized for purposes of draining the water into the water table. (AR000528-000529, 002077-002088.)
The Project was in effect an underdrainage pipe system with ancillary maintenance otherwise known as manholes and monitoring devices. As part of the system, Zusser installed 6,100 cubic yards of drain rock consisting of gravel on top of the drainage system. The purpose of the gravel is to remove potential sediments similar to a septic system. Two of the four lagoons had existing drainage systems that needed to be updated. The other two lagoons did not have any drainage systems to start with. Zusser also installed 12,500 cubic yards of crushed rock on the bottom of the lagoons. The intent of the crushed rock is to filtrate sediment that would come from different sources. The water comes to the lagoon from stormwater runoff and other sources and then percolates to the ground through the underdrain pipe system. (AR000530-000537.) The work was performed exclusively on the four lagoons. There was no structure on the site. (AR000537.) The work was sequenced so that the lagoon could be taken out of operation. (AR000747-000748, 002078.) The bid documents and contract did not state the lagoons were part of an existing water filtration system.3 (AR002077-002088, 002781-002783.) The cost of the work was estimated by MWD to be between $2,700,000 and $3,200,000.

Zusser was the low bidder at $3,452,582. (AR000809-000810, 002782.) The second bidder was $111,970 higher. MWD made available information to the bidders describing the work to be performed. All the reports related to the site conditions on the four lagoons in which Zusser performed work. In Zusser’s bid it sets forth its plan for the construction process. (AR002811.) A prebid conference was held at the lagoons and at no time was there any conference at the Jensen Plant.
4 (AR000784.) There was no construction of piping or otherwise between the lagoons on the Jensen Plant or any other facility. (AR000782.) There was no discussion with respect to the future use of the lagoons. (AR000782-000783, 000778.)
3 DIR’s entire case rests on the argument that the lagoons would eventually be part of the MWD’s water treatment plant. This treatment plant is 1 mile from the lagoons where Zusser performed work. Zusser asserts this possibility is irrelevant. The issue is the work performed. (AR000526.) 4 Joseph Jensen Water Treatment Plant (“Jensen Plant”) is located in Granada Hills and treats water from the state water project and delivers water to service areas in the water distribution system. (AR002782.) - 8 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
Zusser performed work on the Project from July 27, 2015, to August 22, 2017. (AR003404-003493.) A notice of completion was recorded on October 4, 2017. (AR002843.) Zusser’s performance of work is set forth in the specifications providing the sequence and execution of the work and with respect to the piping was limited to laying PVC pipe in trenches. 5 (AR002077-002088.)
B. DLSE Evidence

1. Investigation by Industrial Relations Representative Salamero The case was assigned to Industrial Relations Representative Salamero whose job duties were to investigate complaints pertaining to prevailing wage and apprenticeship violations. She 5 Ex. L is the summary of work for the Project which provides in relevant part for the execution of the work as follows:

3.01 PREPARATION OF TRENCH
A. Trench excavation, cleanup, and foundation preparation shall be in accordance with Section 02200. Trenches for underdrains shall be excavated to the width and depth shown on the drawings.

B. Control of water shall be as specified in Section 02200 and Section 02140.

3.02 INSTALLATION OF UNDERDRAIN PIPE
A. Perforated underdrain pipe shall be embedded in an envelope of granular material for underdrains as shown on the drawings. Solids underdrain pipe also shall be embedded in an envelope of granular material for underdrain, unless otherwise shown on the drawings. The material below the invert of the pipe shall be placed and compacted prior to placing the pipe. The pipe shall be supported throughout its full length by the underlying material. In no case shall the pipe be installed in such a manner as to be supported by the couplings or other fittings.

B. Preparation of Pipe Prior to Installation: Pipe and fittings shall be inspected before they are lowered into the prepared trench to ensure that cracked, broken, or defective pipe or fittings are not being used in the work.

Foreign matter and dirt shall be removed from the inside of the pipe prior to placement.

C. Lowering Pipe: Pipe shall be lowered into the trench in such a manner as to prevent physical damage to the pipe. Damaged pipe shall be rejected and shall be removed from the jobsite.

D. Line and Grade: The underdrain pipe shall be laid to the lines and grades as shown on the drawings. The underdrain shall be sloped uniformly between the grades shown on the drawings.

E. Orientation of Perforations: Place perforated piping with water outlet perforations oriented downwards.

F. Installation of Pipe and Fittings: Underdrain pipe and fittings shall be installed as shown on the drawings and in accordance with the manufacturer's printed recommendations, including snaking of the pipe as recommended.

The Engineer will inspect the pipe installation prior to the commencement of backfilling. Pipe shall be connected to maintenance holes as shown on the drawings.

3.03 BACKFILL AROUND PIPE
A. Granular material shall be placed simultaneously on both sides of pipe in lifts not exceeding 6 inches thick before compaction. The material shall be worked around the lower part of the pipe exercising care to achieve complete filling below springline. Each lift shall be compacted to at least 95 percent compaction. Compaction of granular material for Underdrains shall be by a hand-operated vibratory plate compactor. Impact compactors shall not be used. Necessary precautions shall be taken to avoid displacement of or damage to pipe during placement or compaction of backfill around pipe.

3.04 CLEANOUTS
A. Cleanouts shall be constructed in accordance with the details shown on the drawings. (AR002080.) - 9 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
testified that she conducted worker interviews and then conducted an audit based on the certified payrolls. (AR000107-000109, 000011-000012.)
In addition, as part of her investigation she received a copy of the contract from the awarding body, MWD. She used the contract to determine the scope of work. The scope of work is important because it allowed her to determine the appropriate classification for prevailing wage purposes. 6 Based on the scope of work in the wage determination she knew “that this was plumbing - you know, it had a lot of pipework. And so I knew that the plumber classification would be appropriate for this particular project.” She utilized the prevailing wage determination for the plumber classification to reclassify 9 workers from sewer and storm drain pipelayers and pipe tradesmen (“Pipelayer”) to industrial pipefitter (“Pipefitter”). (AR000111-000113.) Consequently, she rejected the classification used by Zusser of the pipelayer and utilized the industrial pipefitter classification.7 (AR000122-000125.) Her rationale for utilizing the pipefitter classification is as follows:

So from my understanding of the scope of work of this project the LADWP/Metropolitan lagoons was - is - a filtration plant. And so according to the scope of work from the prevailing wage determination, which is on Exhibit 15, the plumber classification under subs, or industrial pipefitters, scope of work, specifically page 259 under Subsection A.1.36, it says ‘All piping in connection with central distributing filtration treatment stations, boosting stations, waste sewage disposal plant, central chlorination, and chemical treatment work, and all underground supply lines to the cooling wells, suction basins, filtered basins, settling basins, and aeration basins.’ So, based on that subsection, the definition of the subsection, I utilized the industrial pipefitter for this particular project, because from my understanding, it’s a filtration plant. (AR000124-000125.)
6 The Department of Industrial Relations (“DIR”) through the Office of Policy and Research and Legislation (“OPRL”) issues wage determinations which include the general prevailing rate of per diem wages and the general rate for holiday and overtime in the locality where the public work is performed. The wage determinations include an advisory scope of work covered by the wage determination. Labor Code § 1773; 8 CCR § 16200. (AR000112-000113, 000322-000323.)
7 The applicable Wage Determination is LOS-2014-2. (AR112, 002844.) The classification utilized by DLSE was the industrial pipefitter subclassification which includes in relevant part “A.1.36 all piping in connection with central distributing filtration treatment stations, boosting stations, waste sewer disposal plants, central coronation and chemical treatment work and all underground supply lines to cooling wells, suction basins, filter basins, settling basins, and aeration basins.”7 (AR002857.) The applicable scope of work for the sewer and storm drain subclassification utilized by Zusser includes, in relevant part, “D.5.10 all sewer, storm drain, and underground piping inside property lines, but which is outside of the buildings.7 ” (AR002867.)
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
In a nutshell, the basis for her determination was that the lagoons were connected to the Jensen Plant. The Decision takes her testimony even further. 8Salamero testified the function of the treatment plant is to filter the water, the dirty water. “I mean, if you’re looking at it like I said, it’s a pipeline. Pipeline to me would mean that it’s - there’s a connection, right? Like, so if you – if, if you - if there’s a pipeline, it’s, it’s going from - it begins at one end, and ends in another end.” In her mind the pipeline connects “so from my understanding, the lagoons - maybe dirty water starts off in the lagoons, it goes through the pipeline, gets filtered through at the treatment plant, it cleans the water, and gets distributed to the community.” (AR000136-000137, 000356.) This reflected a complete misunderstanding of the work performed by Zusser who simply installed an underdrain pipe system in trenches. Her conclusion was based on interviews with workers, but she could not recall with whom she spoke with. (AR000356-000357.) The evidence is uncontroverted that when Zusser performed the work in the lagoons there was no connecting pipeline solids transfer or otherwise to any facility.

On March 11, 2019, Salamero issued her Civil Wage and Penalty Assessment (“CWPA”).

The CWPA totaled $547,189.87 assessing unpaid wages in the amount of $207,714.55, unpaid training funds in the amount of $1,725.32, penalties under Labor Code § 1775 totaling $277,600 and penalties under Labor Code § 1813 totaling $150, and penalties under Labor Code § 1777.7 for apprenticeship violations totaling $60,000. Zusser is challenging only the reclassification of the pipelayers in this proceeding. (AR002614-002624.)
Salamero acknowledged that she did not reach out to anyone at MWD or LADWP before issuing the CWPA. She had no communication with MWD other than asking for the contract and had no recollection of speaking to the inspector. (AR000316-000317.) Moreover, she did not reach out to the DIR or OPRL, the agency, that issues the wage determinations to determine the 8 The Director cannot cite to any credible evidence for this finding or that Zusser could have known of the position at the time of its bid. The Decision states “The evidence shows that the four lagoons refurbished by Zusser on the Project were connected to the Jensen Plant by a solids transfer pipeline, and that the purpose of connecting the lagoons was to allow Jensen Plant to increase its capacity to process the solids collected by its sedimentation basins as part of its treatment of water. Accordingly, the piping work on the Project constituted piping work in connection with a central distributing filtration treatment station that falls under the Industrial Pipefitter scope of work. The lagoons are connected to the Jensen Plant, and constitute an integral part of its water treatment function.” The Decision relies on statements unsupported in the record. (AR000028.) - 11 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SU I TE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
appropriate scopes of work. (AR000324.) Furthermore, she never visited the Project except she claimed she could see it from the freeway on her commute. (AR000308-000312.) The only communication she had with any outside source other than the workers and Zusser was with her Senior Deputy when the Senior Deputy signed off the Penalty Review when the CWPA was issued. (AR000324.) She testified the reclassification of the Pipelayer to Pipefitter was because there was “lot’s of pipe work.” “I upgraded them to an industrial pipefitter, or industrial plumber, rather, because the project was for a filtration plant. And according to the scope of work, that would have been appropriate determination to utilize.” (AR000352-000353.) It is uncontroverted that the prevailing wage determination (“PWD”) at issue in this matter is LOS 2014-2. (AR000112, 002844-002860.) The difference in wages between a pipelayer and pipe tradesman classification and pipefitter are significant; $13.10 per hour more than a pipelayer and $38.08 per hour more for the pipe tradesman.

Pursuant to the Hearing Officer’s order the parties were to exchange exhibits at least 21 days prior to the hearing. (AR002836-002842.) DLSE produced as part of its exhibits, for the first time, a memorandum dated January 13, 2015. (AR002836-002842.) During the hearing, Salamero testified that she did a Google search and found the document. Over objection under Rule 24(d), 8 CCR § 17224(d), the Hearing Officer admitted the exhibit. Salamero admitted she did not consider the document prior to the issuance of the CWPA on March 11, 2019, and she discovered it a week or two before the exhibits were produced.9 (AR000140-000141, 000148.) The Director determined that $171,476.08 were due in back wages, $1,725.32 in training fund contributions, penalties under Labor Code § 1775 of $248,400, penalties under Labor Code § 1813 of $100, liquidated damages equal to the back wages of $171,476.08, and penalties under Labor Code § 1777.7 for apprenticeship violations of $60,000 for a total of $653,177.48 with 9 She accessed the document one or two months before the hearing date. She believed it was sometime in October 2019. She identified the leasing of the four lagoons to allow MWD to use the lagoons for 50 years as supporting her reclassification. She then erroneously described the lagoons on the grounds of the LADWP Aqueduct Filtration Plant as the basis to assert Zusser was working in a “aqueduct filtration plant.” (AR000151- 000155.)
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
interest accruing on unpaid wages. (AR000039.) Nearly all the back wages and penalties relate to the reclassification of the pipelayer.

C. Zusser Evidence
Zusser presented the testimony of its Chief Financial Officer/Secretary, Misha Fyodorov.

His duties included estimating and project management on this Project. Fyodorov has over 30 years of experience in the construction industry prior this Project. Zusser is a California licensed contractor that performs public works since 2005 primarily related to the construction of infrastructure projects. (AR000520-000521.) Zusser is not signatory to any union collective bargaining agreement. (AR000543.)
Zusser’s work was performed exclusively in the four lagoons. There were no buildings or structure. Zusser also constructed a dry drainage area where materials would be dried out, and water drained into the lagoons in order for the soil to be exported offsite. (AR000537.) The bid documents did not state the lagoons were part of any existing water filtration plant. (AR000711- 000712, 000770-000771.) Zusser employed operating engineers, laborers, cement masons, pipelayers and pipe tradesmen. The pipelayers and pipe tradesmen laid the underdrain pipe system in the trenches. (AR000537-000539.)
Fyodorov testified as to the installation of the underdrain system consistent with the execution section of the contract. (AR000747-000752, 002080.) Fyodorov met with Salamero prior to the issuance of the CWPA to explain the Project was an underdrain pipe system project and her reclassification of the storm drain pipelayer and pipe tradesman to pipefitter was incorrect. He explained that the Project had nothing to do with the Jensen Plant and is a pure drainage and sewer pipe project. (AR000528-000537.) He followed up the conversation with an email dated April 8, 2019. (AR004272-004274.) He emphasized that the pipefitter classification applied to work inside a treatment plant. Zusser’s work was outside any plant and consisted of the laying of PVC pipe in trenches. There was no existing connection between the lagoons and the Jensen Plant. Fyodorov then testified in detail regarding the execution of the work consistent with the bid specifications. He distinguished the difference between the drainage system installed by Zusser in the lagoons from a sewage disposal plant. (AR000561- - 13 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
000568.) Fyodorov also provided photos reflecting the work involved in the execution of the contract including the trenching for the perforated pipe. The photos clearly established the existing conditions including the lack of any building and confirms Fyodorov’s testimony that the Jensen Plant was at least a mile away from the lagoons. (AR000569-000581.) After providing the evidence, Fyodorov suggested to Salamero that she should talk to the owner representatives.

However, Salamero stated that she was done at that point and was not going to reconsider anything. (AR000569.)
Fyodorov confirmed that at no time did the owner representatives or anyone else assert that the pipelayers were misclassified. He testified that change orders for extra work that were performed at the Project confirmed the utilization of the pipelayer and pipe tradesman classifications and at no time did the owner object to these classifications. This included the submission of certified payroll reports reflecting this classification. (AR000612-000614.) Fyodorov testified that the scope and sequence of the work confirms the pipelayer classification. The piping is installed as perforated on the top which allows the water to go from the top into the pipe and from there the pipe carries the water with gravity flow to a certain location. At that time most of the water will dissipate through and into the ground and disappear.

The solids remain and the purpose of the lagoon is to filtrate those soils through the rock so that the water will leave the soils on top of the lagoon and the water itself will penetrate through the holes in the pipe. It then recharges the bottom underground aqueduct. (AR000746-000751.) Fyodorov further corrected Salamero that what she saw off the I-5 freeway was a body of water and a tall white building which was the Jensen Plant, but not the lagoons. The lagoons are not visible from the interstate 5. (AR000532.)
Fyodorov testified that the advisory scope of work clearly establishes that the appropriate classification was pipelayer and pipe tradesman. (AR000253.) He incorporated this scope of work for pipelayer specifically at Section D.5. which describes the pipelayer classification. (AR002108- 002111.)
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
Fyodorov testified the work clearly came within this scope:

Fyodorov walked the Hearing Officer through the above section:

Section D.5.10
Underground Piping Yes Drainage Pipe
Inside Property Line Yes In the Lagoons
Outside Building Yes No Buildings in the Lagoons
Water Line Inside or Under any
buildings.

No No Buildings in the Lagoons
(AR000557-000560, 004272-4274.)
Fyodorov testified that an industrial pipefitter could not install the underdrain pipe. The pipefitter “…install the pressurized system, and obviously perforated pipe is not a pressurized system.” (AR000749.)
III.STANDARD OF REVIEW
California Labor Code § 1742(c) specifically authorizes a contractor to obtain review of a decision by the Director by filing an administrative writ pursuant to California Code of Civil Procedure § 1094.5. In reviewing the underlying decision, the Court’s inquiry extends to questions of whether the DIR proceeded without, or in excess of, its jurisdiction and whether there was any prejudicial abuse of discretion. (Cal. Code Civ. Proc. § 1094.5(b).) Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (Id.) When a petitioner claims that the findings are not supported by the evidence, “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in - 15 -
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 33 33
the light of the whole record.” (Cal. Labor Code § 1742(c).) As set forth below, Decision in the underlying action provide ample grounds for the issuance of a Writ.

IV.LEGAL DISCUSSION
A. Overview of California Prevailing Wage Law
The California Supreme Court in Busker v. Wabtec Corporation (2021) 11 Cal.5th 1147, summarized the California prevailing wage law as follows:
“The overall purpose of the prevailing wage law is to protect and benefit employees on public works projects.” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 985, 4 Cal.Rptr.2d 837, 824 P.2d 643 (Lusardi).) “This general objective subsumes within it a number of specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheaplabor areas; to permit union contractors to compete with nonunion contractors; to benefit the public through the superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees.” (Id. at p. 987, 4 Cal.Rptr.2d 837, 824 P.2d 643.) Courts liberally construe the law to fulfill its purpose. (City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 949–950, 22 Cal.Rptr.3d 518, 102 P.3d 904 (City of Long Beach).)
Generally, those employed on public works must be paid at least the prevailing rate of per diem wages paid locally for work of a similar character. (§ 1771.) A contractor or subcontractor that does not pay the prevailing rate is liable for the deficiency and subject to a penalty. (§ 1775.) The obligation to pay prevailing wages has a statutory basis independent of any contractual requirement. (Lusardi, supra, 1 Cal.4th at pp. 981–982, 4 Cal.Rptr.2d 837, 824 P.2d 643.) A contractor must pay prevailing wages when required, even if it has not contractually agreed to do so. (Id. at p. 988, 4 Cal.Rptr.2d 837, 824 P.2d 643.)
Busker, supra, at 11 Cal.5th 1150 (2021).10
Labor Code § 1742 is part of the statutory procedure in the prevailing wage statute, Labor Code § 1720 et seq. (“PWS”) to provide the hearing process. 10 The DIR’s authority is not unlimited. As the court explained in Sheetmetal Workers v. Duncan (2014) 229 Cal.App.4th 192, 213, the “parties must be able to predict the public works consequences of their actions under reasonably precise criteria and clear precedent” (citation omitted). In Sheetmetal Workers the court rejected an after the fact claim that offsite fabrication was covered by the PWS. “A nebulous standard or set of factors governing whether offsite work is covered by prevailing wage law would create confusion and uncertainty.” Id. at 213. In other words, a contractor, like Zusser, can only rely on the bid documents and not later discovered documents.
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
If the Labor Commissioner or his or her designee determines after an investigation that there has been a violation of this chapter, the Labor Commissioner shall with reasonable promptness issue a civil wage and penalty assessment to the contractor or subcontractor or both. The assessment shall be in writing, shall describe the nature of the violation and the amount of wages, penalties, and forfeitures due, and shall include the basis for the assessment. (Section 1741, subd. (a).)
Labor Code § 1742 describes the procedures available to a contractor or subcontractor who has been issued a civil wage and penalty assessment by the Labor Commissioner. “In effect a contractor or subcontractor may obtain review of a civil wage and penalty assessment under this chapter by transmitting a written request to the office of the Labor Commissioner that appears on the assessment within 60 days after service of the assessment.” (Section 1742, subd. (a).) If hearing is requested, it is held before a hearing officer appointed by the Department of Industrial Relations. (Section 1742, subd. (b).)
The administrative rules for the enforcement of the PWS requires that the Labor Commissioner has the burden of coming forward with evidence that the contractor “(1) was served with an Assessment in accordance with the rules; (2) was provided a reasonable opportunity to review evidence to be utilized at the hearing; and (3) that evidence provides prima facie support for the Assessment.” (emphasis added.) See 8 CCR § 17250(a).

Once the Labor Commissioner meets the above requirements the contractor or subcontractor shall have the burden of proving that the basis for the civil wage and penalty assessment is incorrect. Within 45 days of the conclusion of the hearing, the director shall issue a written decision affirming, modifying, or dismissing the assessment. (Section 1742 subd., (b).) See Department of Industrial Relations v. Davis Moreno, (2011) 193 Cal.App.4th 560, 569.

The Labor Commissioner is obligated to make available for review within 20 days of the receipt of the request for review evidence to be utilized by the Labor Commissioner at the hearing at the request for review. The Labor Commissioner’s failure to make evidence available for review as required by Labor Code § 1742(b) shall preclude the Labor Commissioner from introducing such evidence in proceedings before the Hearing Officer or the Director. See 8 CCR § 17224, - 17 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
subd. (d).11
B. DLSE Cannot Meet Its Burden of Proof
The DLSE has the initial burden of presenting evidence at the hearing that “provides prima facie support for the assessment . . .” (Rule 50(a))12 because only when the burden is met then “the Affected Contractor or Subcontractor has the burden of proving that the basis for the Civil Wage and Penalty Assessment . . . is incorrect” (Rule 50(b)); Labor Code § 1742(b).

While the Hearing Officer admitted a great deal of hearsay evidence under Rule 44, however, this evidence “. . . shall not be sufficient in itself to support a finding unless it either would be admissible over objection in a civil action . . .” (Rule 44(d)). Such evidence cannot in itself “. . . support a finding because of its hearsay character.” C. Zusser Did Not Misclassify its Pipelayers and Pipe Tradesmen The DLSE has not presented any admissible credible evidence as to the basis for reclassification of workers. There was no testimony by anyone but Salamero. It was painfully evident that Salamero had no understanding of the Project scope of work, and failed to reach out to anyone within her own agency that could give her guidance as to the appropriate classification.

Nor did she even reach out to the awarding body to ask what type of work Zusser was performing or whether the lagoons are part of a filtration plant. Salamero’s testimony is not credible.

However, in her Penalty Review she sets forth her position:

1. I reclassified all employees classified as pipe layer/pipe tradesman to an Industrial Pipefitter based on the Master Labor Agreement (subsection –A.1.36) and the scope of work provided by the awarding body “All piping in connection with central distributing filtration stations, boosting stations, waste sewage 11 Ex. 12 (AR002836-002842.) was introduced by the Deputy based on her “Google search.” It is hearsay and cannot support a finding by itself, without corroborating admissible evidence. 8 CCR § 17244(d). It was not produced to Zusser until the parties exchanged exhibits 3 weeks before the hearing. The Deputy admitted it was not considered in the issuance of the CWPA (AR000141). She admitted that it was discovered a week or two before the exhibits were produced. The Hearing Officer admitted Ex. 12 into evidence despite objection that it was not part of her investigation that it was hearsay and lacked foundation. The Director relies almost entirely in her Decision that the lagoons were part of the Jensen Plant on this document. The existence of this document does not change Zusser’s scope of work on the drainage project. The future use of the lagoons including possible solids handling by MWD has no impact on the narrow work performed by Zusser in installing a drainage system. It is pure speculation when, if, or how the lagoons would be used. 12 Rules will be cited by the last two numbers of CCR section 17000, et seq. - 18 -
ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
disposal plants, central chlorination and chemical treatment work and all underground supply lines to cooling wells, suction basins, filter basins, settling basins and aeration basins.” (AR002606.) Salamero misled the Hearing Officer and her supervisor that approved the Penalty Review.

The above-quoted section is not from the scope of work provided in the contract. The abovequoted section is from the advisory scope of work for an industrial pipefitter.13 As set forth in the testimony of Fyodorov, the following is a breakdown of the reasons why this scope of work is not applicable.

Section A.1.36 Yes or No Notes
Jensen Plant No There was not treatment performed at the Lagoons.

Boosting Station No There was no Boosting Stations in the Lagoons.

Waste Sewage Disposal Plans No There was not Sewage Disposal Plans. No sewage involved.

Central Chlorination and Chemical
Treatments work.

No No chlorination or any treatment of water
was performed at the Lagoons
Underground supply lines to:

Cooling Wells No No cooling Wells (part of treatment plant) Suction Basin No No Suction Basins (part of treatment plant) Filter Basin No No Filter Basin (part of treatment plan) Settling Basin No No Settling Basin (part of treatment plan) Aeration Basin No No Aeration Basin (part of treatment plan) (AR000548-000552, 000867.)
Fyodorov set forth the elements that fit the description of a pipefitter under A.1.36. This is not work within the scope of what Zusser performed and relates to the operation of the Jensen Plant over a mile from the lagoons. (AR000548-000552.) See diagram below:
(AR002081, 004273.)
13 The advisory scope of work in the wage determination for a pipefitter states:
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
There is no credible evidence submitted by DLSE that the Jensen Plant was connected to the lagoons and even if it were it does not change the nature of the work as the installation of an underdrain piping system which is the laying of PVC pipe in trenches. DLSE submitted Exhibit 12, which it obtained after-the-fact that relates to future plans with respect to the lagoons but had nothing to do with the work performed by Zusser.

The DLSE points to the language in Exhibits 12 that:

In December 2012, Metropolitan’s Board authorized an agreement with LADWP that will enable Metropolitan to use four solids lagoons on the grounds that LADWP Aqueduct Filtration Plant for a period of 50 years. (AR002836.)
The word filtration relates to LADWP’s Aqueduct Filtration Plant and has nothing to do with MWD leased lagoons.14
The uncontradicted testimony is that the work was performed exclusively in the lagoons.

The bid and contract documents did not provide any notice that the lagoons are connected to the Jensen Plant or any filtration plant. Zusser simply refurbished the lagoons. All cooling wells, suction basins, filter basins, settling basins and aeration basins described in the pipefitter scope of work were located inside the Jensen Plant. Zusser did not have anything to do with these systems.

Zusser’s position is bolstered by Fyodorov’s testimony that the pipelayer/pipe tradesman classification relates primarily to digging trenches and laying perforated pipe. (AR000555.) The pipefitter classification is much more complex requiring more training and hence, the higher wage rate.

While the advisory scope of work is not a statute, the regulations provides that the authority of the Director to establish the prevailing wage rate for any craft classification or type of 14 The following colloquy illustrates Salamero’s clear misunderstanding:

Q. So, did the fact that there were no buildings have any bearing on the classification, in your opinion? A. No.

Q. And why not?
A. Because even though the lagoons are outside of the treatment plant, which is the actual building itself, in my opinion, they’re connected. So whether there’s a building or not, the piping is underneath the building, or outside of a building. It’s to me has no relevance because I believe, in my interpretation, that the two plants are connected.

Q. And so is it that reason why it wouldn’t be considered sewer storm drain underground piping? A. In my opinion, yes. (AR000139.)
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ZUSSER COMPANY, INC.’S MOTION FOR ISSUANCE OF WRIT OF MANDATE 42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
T ELEPHONE : (562) 653 -3200
F AX : (562) 653- 3333
worker is quasi legislative. 8 CCR § 16303(a). See Independent Roofing Contractors v.

Department of Industrial Relations (1994) 23 Cal.App.4th 345, 254. In analyzing the advisory scope of work between the pipefitter and pipelayer the language must be reviewed. “If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” See Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, cited in Busker v. Wabtech at 1153. “However, words used in a statute are not considered in isolation. They are construed in context, honoring the statutory purpose, and harmonizing statutes relating to the same subject to the extent possible” (citations omitted. Busker, supra, at 1154.).

The clear language of the sewer and storm drain scope of work exactly covers the work performed by Zusser. Under Section D.5.10 sewer, storm drain and underground piping work shall include all sewer, storm drain and all sewer, storm drain and underground piping inside property lines but which is outside of the building. Zusser in bidding and performing this work applied the expressed terms of this scope of work to its pipelayers. The language of the advisory scope could not be clearer and less ambiguous.

V. CONCLUSION
Whether this drainage system was to be connected to any other system was not relevant to Zusser who performed the laying of PVC pipe work exclusively in the lagoons which had no existing piping system to the Jensen Plant. Zusser performed no work within the definition of the Pipefitter classification. Accordingly, the Writ should be issued setting aside the Decision as the reclassification of the pipelayers.

Dated: October 10, 2023 ATKINSON, ANDELSON, LOYA, RUUD & ROMO By:

Thomas W. Kovacich
Attorneys for Petitioner

PROOF OF SERVICE
42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
TELE PHONE : (562) 653-3200
FAX : (562) 653- 3333

PROOF OF SERVICE
(CODE CIV. PROC. § 1013A(3))

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 12800 Center Court Drive South, Suite 300, Cerritos, California 90703-9364.

On October 10, 2023, I served the following document(s) described as ZUSSER COMPANY, INC.’S NOTICE OF MOTION AND MOTION FOR ISSUANCE OF WRIT OF MANDATE; AND MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action as follows:

SEE ATTACHED SERVICE LIST
☒ BY MAIL: I placed a true and correct copy of the document(s) in a sealed envelope for collection and mailing following the firm’s ordinary business practices. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid.
☒ BY EMAIL: My electronic service address is [email protected]. Based on a written agreement of the parties pursuant to California Code of Civil Procedure § 1010.6 to accept service by electronic means, I sent such document(s) to the email address(es) listed above or on the attached Service List. Such document(s) was scanned and emailed to such recipient(s) and email confirmation(s) will be maintained with the original document in this office indicating the recipients’ email address(es) and time of receipt pursuant to CCP § 1013(a).

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on October 10, 2023, at Cerritos, California.

Rany Sao

PROOF OF SERVICE
42518266.1
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ATKINSON, ANDELSON, LOYA, RUUD
&
ROMO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
12800 CENTER C OURT DRIVE S OUTH , SUITE 300
CERRITOS , C ALIFORNIA 90703 -9364
TELE PHONE : (562) 653-3200
FAX : (562) 653- 3333

SERVICE LIST
Doris NG, Chief Counsel
Steven A. McGinty, Asst. Chief Counsel
Department of Industrial Relations
Office of the Director – Legal Unit
355 S. Grand Ave., Suite 1800
Los Angeles, CA 90071
Tel.: (213) 897-3200
Fax: (213) 897-3260
Email(s): [email protected];
[email protected]
Attorneys for the State of California
Department of Industrial Relations, and
Director of Industrial Relations
Division of Labor Standards Enforcement
Department of Industrial Relations
Lance A. Grucela
7575 Metropolitan Drive, Suite 210
San Diego, CA 92108
Tel.: (619) 767-2023
Fax: (619) 767-2026
Email(s): [email protected];
[email protected]
Attorney for Real Party In Interest
Division of Labor Standards Enforcement
Page: 1 of 1
Total Records: 1
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PCN3, INC., Defendant 05-55056 02/17/2012 Long Beach
WCA Closed
ZUSSER COMPANY, INC.

Project Summary for City of Baldwin Park
We would like to introduce Zusser Company, Inc. as a full-size service construction company specializing in public works, heavy-civil and municipal construction in the Greater Southern California area.

Zusser’s expertise encompasses construction work such as excavation, grading, demolition, concrete work, rubber dam removal and replacement, infrastructure upgrades, park restoration, stormwater management, and more.

Zusser has successfully completed projects for various clients, including government agencies such as the State of California, City of Whittier, County of Los Angeles, Inland Empire Utilities Agency, Los Angeles County Public Works, California Department of Parks and Recreation, and others. The projects involve diverse tasks such as rubber dam installations, staircase replacements, infiltration cistern construction, monument installations, and seismic retrofits.

Zusser has demonstrated competence in managing contracts of varying amounts, ranging from smaller projects like the Buena Park Fallen Officer Memorial to larger-scale endeavors such as the San Gabriel River Rubber Dam Removal and Replacement and Bell Gardens Cistern Project.

Zusser possesses both General Engineering A, Building Construction B, and Hazardous Substances Removal HAZ licenses. Zusser is fully insured and bonded.

Zusser has a network of reputable subcontractors, designers, and surveyors that meet our stringent quality and dependability requirements.

Hollywood, CA

PROJECT SUMMARY
Agency: Los Angeles County – Public Works
Contract Amount: $4,040,000
Estimated Completion: 2024

PROJECT SUMMARY
• Replace existing slide gate, upgrade mechanical,
electrical and control systems
• Construct a new control house within the Pan Pacific
Retention Basin in LA City
Pan Pacific Retention Basin
Diversion Gate & Control House
Upgrade
West Hollywood, CA
Pan Pacific Retention Basin
Diversion Gate & Control House
Upgrade
West Hollywood, CA
Pan Pacific Retention Basin
Diversion Gate & Control House
Upgrade
Bell Gardens, CA

PROJECT SUMMARY
Agency: City of Bell Gardens - Public Works
Contract Amount: $15,600,000
Architect: CWE, Inc.

Completed: 2023

PROJECT SUMMARY
• Construction of Subsurface Infiltration Cistern,
Pretreatment unit, reinforced concrete box culvert
and vaults.
• Installation of storm drain, sewer, AC Pavement,
Park restoration, monument signs, landscaping,
irrigation system, and flat concrete.

John Anson Ford Park Infiltration
Cistern
Bell Gardens, CA
John Anson Ford Park Infiltration
Cistern
Bell Gardens, CA
John Anson Ford Park Infiltration
Cistern
Bell Gardens, CA
John Anson Ford Park Infiltration
Cistern
Bell Gardens, CA
John Anson Ford Park Infiltration
Cistern
Bell Gardens, CA
John Anson Ford Park Infiltration
Cistern
Malibu, CA

PROJECT SUMMARY
Agency: California Department of Parks and Recreations
Contract Amount: $3,600,000
Completed: 2022

PROJECT SUMMARY
• Remove existing stairway and construct a new timber
& concrete stairway.
• Build cast-in-drill concrete and encased timber pole
foundation supports with topside landings and beach
landings oriented to serve the primary path of travel.
• Build ADA trail with native material, supported by
timber restaging walls
Point Dume Staircase Project
Malibu, CA
Point Dume Staircase Project
Malibu, CA
Point Dume Staircase Project
Point Dume Staircase Project Malibu, CA
Yorba Linda, CA

PROJECT SUMMARY
Agency: Metropolitan Water District of So. California
Contract Amount: $5,000,000
Completed: 2012

PROJECT SCOPE
• Construct Robert B. Diemer Water Treatment
Plant Fire and Potable Water Pump Station
including Mechanical Pipe Work, Structural
Concrete, Flat Concrete, Electrical work.
• Install 30” & 36” CIDH Piles. Shore and excavate
up to 20 feet deep. Bore and Case 54” Steel Pipe.

Install Structural Steel and Miscellanies Metals.

Painting and Cathodic Protection. Site Work
Including Demolition, Dirtwork, New Asphalt,
Concrete, Retaining Walls and Landscape.

Robert Diemer Water
Treatment Plant Fire &
Portable Water Pump Station
Yoba Linda, CA
Robert Diemer Water Treatment
Plant Fire & Portable Water
Pump Station
Yoba Linda, CA
Robert Diemer Water Treatment
Plant Fire & Portable Water
Pump Station
Yoba Linda, CA
Robert Diemer Water Treatment
Plant Fire & Portable Water
Pump Station
Yoba Linda, CA
Robert Diemer Water Treatment
Plant Fire & Portable Water
Pump Station
Yoba Linda, CA
Robert Diemer Water Treatment
Plant Fire & Portable Water
Pump Station
Granada Hills, CA

PROJECT SUMMARY
Agency: Metropolitan Water District of So. California
Contract Amount: $3,600,000
Completed: 2017

PROJECT SUMMARY
• Construction of liner basin- over 7,000 linear of PVC, utility ductbanks, large maintenance holes,
modification of existing maintenance holes, installation of standpipes, submersible pumps and turbidity meters
• On-site screening of over 6,000 cy of underdrain rock, disposal of hazardous material, installation of 13,000 cy of crushed rock
• Refurbishment of existing decant valve structures for four lagoons including asbestos and PCB abatement,
• Installation of electrical panes and utility cabinets.

LADWP Lagoon Refurbishment
Granada Hills, CA
LADWP Lagoon Refurbishment
Granada Hills, CA
LADWP Lagoon Refurbishment
Granada Hills, CA
LADWP Lagoon Refurbishment
Granada Hills, CA
LADWP Lagoon Refurbishment
Exhibit G

Exhibit H

Libcr1):

Mutual.
---- SURETY
January 4, 2024
City of Baldwin Park
14403 Pacific Ave.

Baldwin Park, CA 91706
RE: KASA Construction, Inc.
790 The City Drive South, Suite 200
Orange, CA 92868
(714) 634-5728 - PHONE
(866} 547-9060 - FACSIMILE
Project: BARNES PARK MUL Tl-BENEFIT STORMWATER CAPTURE
PROJECT, City Project No. CIP 21-198
Ladies and Gentlemen:

Liberty Mutual Insurance Company issued a bid bond on behalf of KASA Construction, Inc. for the referenced project. The owner and KASA Construction, Inc. have requested that we provide our consent to extend the bid until February 14, 2024. Liberty Mutual Insurance Company hereby consents to this time extension.

Nothing contained herein shall alter or change the underlying terms and conditions of said bid.

Sincerely,
Liberty Mutual Insurance Company
, Attorney-In-Fact
Seal No. 5700
~ Libert_r. \P Mutual. SURETY
This Power of Attorney limits the acts ol lhole named herein, and they have no authority to bind the Company except In the manner and to the extent herein stated. liberty Mutual Insurance Company
The Ohio Casualty Insurance Company
West American Insurance Company

POWER OF ATTORNEY
Certificate No: 8209562--024103
KNOWN ALL PERSONS BY THESE PRESENTS: That The Ohio casualty lnsuranoe Company is a eotp0ration duly org1111ized under the laws of the State of New Hampshire, that liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts, and West American Insurance Company iS a corporation duly organized under the laws of the State of Indiana (herein coMectively called the 'Companies'). pU1SUant to and by authority herein set forth, does hereby name, constitute and appoint. ""J""as:..:ce _ _ _ Hamilton, Jeffrey W. Cavignac, Judith Samuel, Lisa Cruz, Lisa Sayno, Oliver Craig, James P. Schabarum, IJ all of the city of San Diego state of CA each individually if there be more than one named, its true and lawful attorney-in-fact to make. execute, seal, acknOll>iedge and deliver, fol' and on its beh~ as S1Kety and as its act and deed, any and all undertakings, bonds, recognizances and other surety obligations. in pursuance of these presents and shall be as bilding upon the Companies as if they h.,.-e been duly signed by the president and attested by the secrelaly of the Companies in their own proper persons.

IN WITNESS WHEREOF, this Power of Attorney has been subsaibed by an autllorlzed officer or official of the Companies and the COIJ)Olllle seals of the Companies have been affixed thereto this ~ day of March • 2023 .

Liberty Mutual Insurance Company
The Ohio Casualty Insurance Company
West American Insurance Company
"' · I/ /4 / 111·E
$ By: ~ /, 2 :~_§ _ fii ---'-'-- ..__ -- David M. Carey, Assistant Secretary g ~ ~ cv Stateof PENNSYLVANIA ·-:::, ~ :::, County of MONTGOMERY ss S E
E ~ On this 13th day of March , 2023 before me personally appeared David M. Carey, who acknowledged himself to be the Assistant Secretary of Liberty Mutual Insurance ~ Q) ~ iii Company. The Ohio Gasualty Company, and West American Insurance Company, and that he, as such, being authorized so to do, execute the foregoing instrument for the purposes ~ ,g ~ i therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ~ f ~--5 IN WITNESS WHEREOF, I hct."e hereunto subscribed my name and affixed my notarial seal at Plymouth Meeting, Pennsylvania, on the day and year first above written. ~Oen C 'iii _,,,.- ~---cc--c-c---,--,.....,,-~ 0
~Q)- ~o... (st:;oNVr,,(, '-
0 ,s.

Comm~:-::ast~~laty~ Montgomery County I
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A--... d ~ 1 ~ _ _ , t! ~ ✓ I C ~ 0 ~ 0 Myoommlssion e,pires Mardl 28, 2025 By: ~ ~ (5 Cl> CCV ~ ,.. Commissoonoo,bef 1126044 -J-'---,,-----=-------------1= ,.._ CU.:: ,i,: ,,.~ CJ Member, Penn,ytvan,o -ion of Nolane, leresa Pastella, Nolaly PubUc ~ 0 ~u, oO (VQ) '-- - ._"<t
.g> i This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohio Casualty Insurance Company, Liberty r.\rtual I ~ ~ .5_ Insurance Company, and West American Insurance Company which resolutions are now in full force and effect reading as follows: tr_~ ._ ~ ARTICLE IV - OFFICERS: Section 12. Power of Attorney. (5 6 ~ I:!! Any officer or other official of the Corporation authorized for that purpose in writing by the Chainnan or the President and subject to such limitation as the Chainnan or the =a ..- ;g ~ President may prescribe, shall appoint such attom8'jS-in-fact, as may be necessary to act in behalf of the Corporation to make, execute, seal, acknowledge and deliver as surety ; ~ ~ ~ any and all undertakings, bonds, recognizanoes and other surety obligations. Such attorneys-in-fact, subject to the limitations set forth in their respective powers of attorney, shafl -o rl - t: h.we full power to bind the Corporalion by their signature and execution of 'Mf/ such instruments and to attach thereto the seal of the COll)Ofation. When so executed, such .8 ~ ~ G instruments shall be as binding as if signed by the President and attested to by the Sectetary. Any power or authority granted to any representative or attorney-in-fact under the ._ cv provisions of this artlcie may be revoked at any time by the Board, the Chairman, the President or by the officer or officers granting such power or authority. ~ ~ ARTICLE XIII-Execution of Contracts: Section 5. Surety Bonds and Undeftakings.

Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such Hmitations as the chainnan or the president may prescribe, shall appoint such attorneys-in-fact. as may be necessary to act in behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such attomeys~n-fact subject to the Mmitations set fofth in their respective powers of attorney. shall have full power to bind the Company by lhelr signature and execution of any such instruments and to attach thereto the seal of the Company. When so executed such instruments shall be as binding as if signed by the president and attested by the secretary.

Certificate of Designation - The President of the Company, acting l)IISUant to the Bylaws of the Company, authorizes David M. Carey, Assistant Secrelaly to appoint such attomeys-infact as may be necessary to act on behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and au undertakings, bonds, recognizanoes and other surety obligations.

Authorization - By unanimous consent of the Company's Board ex Directors, the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the Company, whereyer appearing upon a certified copy of any power of attorney issued by the~ in connection with surety bonds, sha& be valid and binding upon the Company with the same force and effect as though manually affixed.

I, Renee C. Llewellyn, the undersigned, Assistant SecretaJy, The Ohio Casualty Insurance Company, Liberty MJtuaf lnsuranoe Company, and West American Insurance Company do hereby certify that the original power of attorney of which the foregoing is a fuff. true and carect copy of the Power of Attorney executed by said Companies, is in full force and effect and has not been revoked.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of sad Corl\,anies this~ day of January , 2024 .

By:_~L.-,,-.::::,,~,.....,..-~....,....------- a-~·fy. Renee C. Llewellyn. Assistant Secretary LMS-12873 LMIC OCIC WAIC M\Jlti Co 02f.l1
~ Liber:tx Mutual. ~ SURETY
Liberty Mutual Surety
1001 4th Ave Ste 3800
Office: 206-473-3533
As part of its business continuity efforts during the pendency of the COVID-19 pandemic, Liberty Mutual Insurance Company ("LMIC") on behalf of itself and the companies listed below has authorized its Attorneys-in-Fact to affix its corporate seal for surety obligations in a digital format in lieu of its traditional raised seal to any bond issued on its behalf by any such Attorney-in-Fact:

Liberty Mutual Insurance Company
Liberty Mutual Fire Insurance Company
The Ohio Casualty Insurance Company
West American Insurance Company
Safeco Insurance Company of America
American States Insurance Company
Please note that the digital seal utilized by our authorized agents will also include their agency specific reference number.

LMIC agrees and affirms on behalf of itself and the other companies listed herein, that the digital corporate seal referenced above has the same binding effect when affixed to a bond or a Power of Attorney document as if it were a raised corporate seal.

Effective this 23rd day of March, 2020.

By:.__,
m~
~ _ _,::'------------ Renee C. Llewellyn, Assistant Secretary

CALIFORNIA ALL- PURPOSE

CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California
County of San Diego
}
}
On 'JAN '04' 2024 before me, Judith Samuel, Notary Public ----------- {Here insert name and title oi the off,cer) personally appeared _L_is_a_S_a_,y,_n_o __________________ _ who proved to me on the basis of satisfactory evidence to be the person(&) whose name(-s-)@are subscribed to the within instrument and acknowledged to me that he,@they executed the same in hi~their authorized capacity(ies), and that by his©'their signature(-s-) on the instrument the person(-s-), or the entity upon behalf of which the person(-s-) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. le--~~ JUDITH SAMUEL I ~ :· Commission No. 2452311 ~ WITNESS my h nd and official seal. ~ NOTARY Pueuc. CALIFORNIA! { · SAN DIEGO COUNTY ~
J Commu1011 Expqs July 4, 2027 I

INSTRUCTIONS FOR COMPLETING THIS FORM
ADDITIONAL OPTIONAL INFORMATION This/om, complies wi1h current Ca/iforni" sta111Tes reg"rding nolary wording and.

DESCRIPTION OF THE ATTACHED DOCUMENT
{TIiie or description of attached document)
{Title or description of attached document continued)
Number of Pages _ _ Document Date ___ _

CAPACITY CLAIMED BY THE SIGNER
□ Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-in-Fact
□ Trustee(s)
□ Other ______ ___ _
2015 Version www NotaryClasses com 800 873-9865
if needed. sho11ld be comple1ed and al/ached 10 the doc11ment. Aclcnowledgments from or her s1a1es may be co111ple1ed for doc11me111s being sen/ 10 1ha1 Stale so long a.i 1he wording does no/ require 1he California nolary /0 violale California nolary law.
• State and County infonnation must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signcr(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization.
• Indicate the correct singular or plural fonns by crossing off incorrect fonns (i.e. ll;!/she/~ is /ere) or circling the correcl fonns. Failure to correctly indicate this infonnation may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible.

Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area pennits, otherwise comple1e a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county cleric.
❖ Additional infonnation is not required but could help to ensure this acknowledgment is not misused or attached to a different document. ❖ Indicate title or type of attached document, number of pages and date. ❖ Indicate the capacity claimed by the signer. If the claimed capacit) is a corporate officer, indicate the title (i.e. CEO. CFO, Secretary). • Securely attach this document to the signed document with a staple.

65431.40014\41989058.1
Grant R. Orbach
Associate
916 329-3692
[email protected]
Best Best & Krieger LLP | 500 Capitol Mall, Suite 1700, Sacramento, California 95814 Phone: (916) 325-4000 | Fax: (916) 325-4010 | bbklaw.com January 30, 2024
VIA E-MAIL [[email protected]]
Marion T. Hack
Troutman Pepper Hamilton Sanders LLP
Two California Plaza, 350 South Grand Avenue, Suite 3400 Los Angeles, CA 90071
VIA E-MAIL [[email protected]]
Robert C. Niesley
Watt, Tieder, Hoffar & Fitzgerald, LLP
2040 Main Street, Suite 300
Irvine, California 92614
VIA E-MAIL [[email protected] ]
Christopher Morrow
Salamirad, Morrow, Timpane & Dunn LLP
17901 Von Karman Avenue, Suite 500
Irvine, California 92614
Re: BID PROTEST AND RELATED PROCEEDINGS RE: BARNES PARK

MULTI BENEFIT STORMWATER CAPTURE PROJECT
Dear Colleagues:

As you are aware, this office represents the City of Baldwin Park (“City”). The City is in receipt of the enclosed correspondence in connection with the bidding of the above referenced project (the “Project”), which supplements that correspondence that accompanied my letter dated January 11, 2024.

City staff intends to recommend that the City Council of the City of Baldwin Park reject the bid of Zusser Company, Inc. (“Zusser”) on non-responsibility grounds and award the contract for the Project Nationwide Contracting Services, Inc. (“Nationwide”) as the lowest responsive responsible bidder. City staff intends to make the first recommendation on two grounds:
 Zusser conceded before the Department of Industrial Relations that it misclassified workers on the LADWP Lagoon Refurbishment, yet now denies that it in fact misclassified those same workers. Zusser’s failure to take responsibility for violations it previously conceded before the administrative agency charged with its enforcement is inconsistent with Zusser having “demonstrated the attribute of trustworthiness […] to satisfactorily perform the public works contract”. (Public Contract Code section 1103). 65431.40014\41989058.1
Marion T. Hack, Robert C. Niesley, and Christopher Morrow January 30, 2024

Page 2 ends

Best Best & Krieger LLP
 Zusser has not demonstrated candor in connection with the instant proceedings. Zusser conditioned its willingness to provide the City with requested documents material to the City’s inquiry on the City providing the “evidence” which prompted the request, and when such “evidence” was not forthcoming, refused to comply. Such conduct is inconsistent with Zusser having “demonstrated the attribute of trustworthiness […] to satisfactorily perform the public works contract”. (Public Contract Code section 1103).

For the absolute avoidance of doubt, the City has requested that Zusser provide the City with, by way of illustration and not by limitation, any “claim[s]”, any “written statement[s] identifying what portion of the claim is disputed and what portion is undisputed”, and any “written statement[s] identifying the portion of the claim that remains in dispute and the portion that is undisputed” as described in section 9204 of the Public Contract Code, or any similar documents, for the John Anson Ford Park Infiltration Cistern Project, and Zusser has refused to comply, first under an assertion of mediation privilege, and later under an assertion of irrelevance in the absence of the City identifying the evidence prompting its inquiry. In the unanticipated event that Zusser now claims that it did not understand that the City was requesting this information, the City’s request is renewed, and Zusser shall provide such documents to the City immediately. Time is of the essence.

As to Nationwide’s bid, City staff is of the opinion it is responsive and that the responsibility accusations against it do not rise to the level of non-responsibility. This is particularly true because those non-responsibility accusations have not been adjudicated and Nationwide, unlike Zusser, has demonstrated candor with respect to the matters it has been permitted to address. To the extent Nationwide has not addressed other matters raised by Zusser, it is because Zusser unconscionably withheld such information from prior correspondence so that it could deprive Nationwide of notice and an opportunity to respond. For Zusser to claim that its due process rights are being violated, and then turn around and egregiously “sandbag” its business competitor with last minute nonresponsibility accusations to which it has been deprived an opportunity to respond to, smacks of bad faith.

For the avoidance of doubt, the undersigned would appreciate if counsel going forward limit their communications with the undersigned to writings upon which counsel of record for the other of the three (3) lowest bidders are copied.

Sincerely,
Grant R. Orbach
for BEST BEST & KRIEGER LLP
GRO:ab
Encl.: Correspondence Since January 11, 2024
1 Grant Orbach
From: Grant Orbach
Sent: Tuesday, January 30, 2024 4:21 PM
To: 'Hack, Marion T.'; 'Robert Niesley'; '[email protected]' Cc: 'Rosenberg, Michelle B.'; Amanda Marutzky
Subject: FW: Re:

Counsel,
KASA Construction, Inc.’s ex parte advocacy, albeit apparently confined to positions taken within its papers, could be perceived as an attempt to (a) deprive the lower bidders of their due process rights and (b) instigate a serial meeting in violation of the Brown Act. I am forwarding the email so that if any of the lower bidders take issue with its contents they have an opportunity to be heard in the matter.

Thanks,
-Grant
From: Enrique Vega <[email protected]>
Date: Tuesday, January 30, 2024 at 12:54 PM
To: Daniel "Danny" Damian <[email protected]>, Emmanuel J. Estrada <[email protected]>, Alejandra Avila <[email protected]>, Monica Garcia <[email protected]>, Jean M. Ayala <[email protected]> Cc: Enrique Zaldivar <[email protected]>, Sam Gutierrez <[email protected]>, Romany Basilyous <[email protected]>, [email protected] <[email protected]> Subject: Re:
[CAUTION: External Email -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.]
Good Afternoon Councilmember Damian,
Thank you very much for your prompt response. We appreciate the opportunity to share our concerns with you, your colleagues, and your staff. I am writing on behalf of KASA Construction, which submitted a bid for the Barnes Park Stormwater Capture Project. As you may be aware, KASA also submitted a Formal Bid Protest against the lowest bidder, Zusser Company, and the second lowest bidder, Nationwide Contracting Services. KASA identified several issues of concern in both proposals submitted by Zusser and Nationwide.

Fitness, Ability, Capacity, Experience
·At the end of the day, this is a park project, and amongst other things, there was a decent amount of Storm Drain work, which the Zusser and Nationwide are more versed in than KASA, and that is why they bid on the project. The amount of Storm Drain work is a small percentage of the overall bid.
· If it was just a park project, neither Zusser nor Nationwide would have even bid on the project because parks are not what they specialize in. If there was a PRE-QUAL, which there typically is and You don't often get email from [email protected]. Learn why this is important 2 requires the General Contractor to have built X amount of Parks in a certain period of time, neither would have likely qualified, but KASA would have. Additionally, KASA listed a very experienced and qualified sub to perform the underground storm drain, which is all the company does.

Failure to comply with DIR Prevailing Wage Requirements (Zusser) · Zusser's history of performing public works projects is also problematic. According to the public record, the California Department of Industrial Relations published Case No. 19-0134- PWH against Zusser on 08/18/2022 regarding the Civil Wage and Penalty Assessment issued concerning the work Zusser performed on the LADWP Lagoon Refurbishment (which was listed as a project reference). According to the DIR, Zusser was assessed $653,177.48 in penalties for a variety of failures, including but not limited to A) Apprenticeship violations, B) Prevailing wage violations, including regular and overtime rates, C) Misclassifying workers on the project, D) Training fund contribution violations E) Liquidated damages associated with the incorrect wages · The City investigated this claim by KASA and determined that Zusser appears to be a NONRESPONSIBLE bidder. This determination was not solely based on the reasons alluded to in the Protest relating to Zusser's record before the Department of Industrial Relations but also because the investigation's findings did not instill confidence in staff that Zusser "has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to perform the public works contract satisfactorily."
· Unless Zusser can show good cause, City Staff intends to recommend that the contract be awarded to the next lowest responsive bidder, which it believes to be Nationwide.

Failure to have the Technical ability, qualifications, and experience in constructing similar park projects (Zusser and Nationwide).
· Upon reviewing the bid packages of both Zusser and Nationwide, it is without a doubt that both Zusser and Nationwide are not the most qualified vendors to be awarded this project. Both have very little to no experience with the intricacies required in order to build a park of this size. It appears both contractors listed only one Park project on their references.

Proven Track Record and Competitive Pricing
· KASA is one of the most respected Park builders in Southern California; KASA Construction is also an expert when it comes to heavy civil and street improvement projects. KASA selfperforms several trades in-house and owns and operates its own machinery for total control over the work. KASA currently has 2 street improvement projects and four park projects. · KASA is not merely trying to leapfrog the two lowest bidders. In fact, as a result of Zusser being deemed a non-responsible bidder, the lowest bidders, Nationwide and KASA, are separated by approximately $150,000 on this multi-million-dollar project. · It is KASA's opinion that the City and Residents deserve the most qualified bidder for this project, not just the cheapest.
· KASA Construction Inc. is by far the most experienced, qualified bidder for this project.

Due to the aforementioned concerns and KASA's extensive experience in parks projects we respectfully request that the council award the contract for the Barnes Park Stormwater Capture Project to KASA Construction Inc.

Thank you for your time and consideration of this matter. 3 Respectfully,
Enrique Vega
Vice President
The Principia Group
On Thu, Jan 25, 2024 at 5:41 PM Daniel "Danny" Damian <[email protected]> wrote:

Hi Mr. Vega,
Thank you for reaching out with your concerns. I welcome any points you would like to make regarding the project and recommend that you email them to me as well as to staff for the city council to take into consideration at the February 7th council meeting.

Please CC the following
CEO Enrique Zaldivar - [email protected]
Public Works Director Sam Gutierrez - [email protected] Engineering Manager Romany Basilyous - [email protected] Chief Deputy City Clerk Shirley Quinonez - [email protected] Thank you!
Daniel "Danny" Damian
Councilmember
City of Baldwin Park
14403 E. Pacific Ave.

Baldwin Park, CA 91706
City Hall 626-813-5201
Fax 626-337-2965
Cell 626-634-1860
www.baldwinpark.com
[email protected]
City Hall is Closed on Fridays
From: Enrique Vega <[email protected]>
Sent: Thursday, January 25, 2024 4:31 PM
To: Daniel "Danny" Damian <[email protected]>
Subject:
4 [CAUTION: External Email -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.]
Good Afternoon Councilmember Damian,
I hope this email finds you doing well. My name is Enrique and I am reaching out on behalf of a vendor that is looking to do work with the City of Baldwin Park. We would like to request a meeting to discuss the Barnes Project Stormwater Capture project bid which the city will be having a hearing for on February the 7th.

We would like the opportunity to discuss some concerns that we have with some of the bidders and the project as a whole. We hope that we will be able to shed some light and highlight some issues we find problematic so that the City and the Residents of Baldwin Park get the most qualified vendor to complete the project.

Thank you in advance for your time and consideration of this request. We look forward to hearing from you.

Sincerely,
Enrique Vega
Vice President
The Principia Group
You don't often get email from [email protected]. Learn why this is important Marion T. Hack
D 213.928.9885
[email protected]
167259427v2
Troutman Pepper Hamilton Sanders LLP
Two California Plaza, 350 South Grand Avenue, Suite 3400 Los Angeles, CA 90071
troutman.com
January 16, 2024

VIA E-MAIL
Grant R. Orbach
Best Best & Krieger LLP
500 Capitol Mall, Suite 1799
Sacramento, CA 95814
Re: BID PROTEST DISPOSITION AND ORDER TO SHOW CAUSE
Barnes Park Multi Benefit Stormwater Capture Project

THIRD REQUEST FOR EVIDENCE OF NON-RESPONSIBILITY - AMENDED Mr. Orbach:

This letter is being submitted in response to the City of Baldwin Park’s (“City”) January 11, 2024 letter setting a hearing date for Zusser Company, Inc. (“Zusser”) and Nationwide Contracting Services, Inc. (“Nationwide) to demonstrate they are responsible bidders for the Barnes Park Multi Benefit Stormwater Capture Project (“Project”). Please refer to this letter as we have added additional information that was left out of the letter originally sent on January 15, 2024.

The City is required to award the contract to the lowest responsible bidder. (See City of Baldwin Park’s Municipal Code §§ 34.27 through 34.38 [all contracts shall be awarded to the lowest responsible bidder pursuant to the public contract code].)1 Zusser’s bid was the lowest and its bid has already been deemed responsive by the City (See City’s letter dated December 12, 2023 at pg. 2). The City has nonetheless claimed Zusser is not responsible and has set a hearing to determine the responsibility of both Zusser and Nationwide, the second low bidder.

Because of that determination of non-responsibility, the City must provide any evidence it is relying on in its determination of responsibility to Zusser, prior the January 19 date for briefing that the City has set. See City of Inglewood-L.A. County Civic Center Auth. v. Superior Court (1972) 7 Cal.3d 861, 871. The California Supreme Court is very clear on this very point:
“prior to awarding a public works contract to other than the lowest bidder, a public body must notify the low monetary bidder of any evidence reflecting upon his responsibility 1 . “[W]hen a public entity solicits bids, it represents, consistent with the statutory mandate, that if the contract is awarded, it will be awarded to the lowest responsible bidder.” (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transp. Authority (2000) 23 Cal.4th 305, 315.) Grant R. Orbach
January 16, 2024

Page 2 ends

167259427v2
received from others or adduced as a result of independent investigation, afford him an opportunity to rebut such adverse evidence, and permit him to present evidence that he is qualified to perform the contract.]; see also Boydston v. Napa Sanitation Dist. (1990) 222 Cal.App.3d 1362, 1369.) To date the only evidence provided by the City is as follows:
“The conduct described in the Decision of the Director of the California Department of Industrial Relations in Case No. 19-0134-PWH, and in addition on the basis of the fact that the results of its reference investigation did not give City staff confidence that Zusser ‘has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.’ (Public Code Section 1103).” (See December 12, 2022 letter.)
Since this is the only evidence that the City has identified as the basis for questioning of Zusser’s non-responsibility, Zusser will provide additional rebuttal evidence by January 19 as requested by the City. If the City is basing its decision on any evidence “received from others or adduced as a result of independent investigation” regarding the City of Bell Gardens project or any other information, the City must provide that evidence and Zusser will respond accordingly.

Zusser is not required to rebut evidence that has not be presented nor can it. Wholesale requests for records that are not the basis for the City’s non-responsibility determination is not appropriate nor relevant. If the City has evidence of specific issues as to the City of Bell Garden’s project, Zusser must be informed of such so it can prepare a response and provide the appropriate documents to rebut said allegations.

Of note, the City has not provided to Zusser any evidence of a negative reference obtained by the City. So far, the City has admitted that it did not contact all of Zusser’s references or that some of the references did not respond. (See December 20, 2023 Letter) If there is evidence of a negative reference, it must be provided to allow Zusser to respond. .

Please confirm that the above evidence correctly reflects the record or if the City wishes to amend the record. If the City amends the evidentiary record, Zusser may need more time to respond.

Sincerely,
Marion T. Hack
MTH
cc: Misha Fyodorov

EXHIBIT A
Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com List of Parks and Athletic Field Projects
Completed by
KASA Construction

1. 1013ON –Ontario - Veterans Park

2. 1101RE – Redlands – Terrace Park

3. 1103MU – Murrieta - Torrey Pines Park

4. 1205ON – Ontario – South Bon View Park

5. 1208PE – Perris – Mercado Park

6. 1401RP – RPV – Abalone Cove Shoreline Park

7. 1402NM – NMC Builders – Mill Creek Wetlands Park

8. 1403RP – RPV – Abalone Cove Park - Restroom and Parking Lot

9. 1404ON – Ontario – Celebration Park

10. 1406FO – Fontan – Sierra Crest Park D

11. 1408BE – Bellflower – Flora Vista Dog Park

12. 1501NE – Newport – Back Bay Park

13. 1502OR – Orange – Grijalva Park

14. 1504RC – Rancho Cucamonga – Etiwanda Creek Park

15. 1505BE - Bellflower – Zinn Park

16. 1507MO – Moreno Valley – Palm Middle School Athletic Fields

17. 1511GL – Glendora – Drought Tolerant Landscape and Dog Park

18. 1605SP – South Pasadena – Dog Park Project

19. 1606TU – Tustin – Detention Basin Passive Park

20. 1608HU – Huntington Beach – Worthy Park

21. 1701RO – Rosemead – Jay Imperial Park

22. 1702OR – Orange - Yorba Park

23. 1704ON – Ontario – Celebration Park North

24. 1705RI – Rialto – Joe Sampson Park

25. 1708MV – Moreno Valley – J F Kennedy Park

26. 1804CH – Chino Hills - Los Serranos Park

27. 1805JV – Jurupa Valley – Riverbend Park

28. 1902FO – Fontana - Sierra Crest Park

29. 1905LF – Lake Forest – Portola Park

30. 1908CY – Cypress – Oak Knoll Park

31. 2009YU – County of San Bernardino – Yucaipa Regional Park

32. 2006WE – Westminster – Mendez Tribute Park

33. 2008OR – Orange – Handy Park

34. 2101CH – Chino - Discovery Park

35. 2102FO – Fontana – PA16 – Park
Building the Foundation for our Future
CA License No. 927544 | Classifications: A, B, C-27, C-10 ________________________________________________________________________________________________________________________ 15148 Sierra Bonita Lane, Chino, California 91710
Phone: (909) 457-8260 Fax: (909) 457-8261 | www.kasaconstruction.com

36. 2106GG – Garden Grove – West Haven Park

37. 2107JV – Jurupa Valley - Shadow Rock Park

38. 2107JV – Jurupa Valley – Adventure Park

39. 2107JV – Jurupa Valley – Discovery Park

40. 2109AD – Adelanto – Marconi Park

41. 2201MO – Monrovia – Lucinda Garcia Park

42. 2205SF – San Fernando – Layne Park

43. 2303WI – Winchester – KB Willow Glen Park

44. 2304EM – El Monte – Merced Ave Linear Park

45. 2305HO – Homeland – Countryview Park

46. 2307EA – Eastvale – JCSD Mt. View Park

EXHIBIT B
January 18, 2024
Kasa Construction, Inc.

Attn: Sam Kasbar
15148 Sierra Bonita Lane
Chino, CA 91710
Subject: Letter of Recommendation
To Whom it May Concern,
I am writing to express my recommendation for KASA Construction, a company I have had the benefit of collaborating with on multiple projects. As Landscape Architect and Project Manager at David Volz Design, I have seen the successful completion of projects in collaboration with KASA Construction in various cities, including Cypress, Fontana, Irvine, Costa Mesa, and Norwalk.

KASA Construction consistently demonstrated a high level of professionalism, dedication, and expertise. Their commitment to delivering exceptional results within the stipulated timelines and budget constraints is commendable. Their attention to detail, innovative approach, and adherence to industry standards have made them a valuable partner and team member.

Furthermore, their collaborative approach with various agencies and municipalities, including those in Cypress, Fontana, Irvine, Costa Mesa, and Norwalk, reflects their commitment to building positive relationships within the community. KASA Construction has not only met but exceeded our expectations in terms of quality, safety, and overall project management.

It is without hesitation that I recommend KASA Construction for any construction project. Their exemplary work ethic, professionalism, and track record of successful project deliveries make them an invaluable asset to any team. If you have any further questions or require additional information, please do not hesitate to contact me.

Luis Pedraza Cardozo,
Licensed Landscape Architect

January 19, 2024
Via Email ([email protected])
Grant Orbach
Best Best & Krieger LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814
Re: Nationwide Contracting Services, Inc.’s Supplemental Response to Bid Protest on the Barnes Park Multi Benefit Stormwater Capture Project (“Project”)
Dear Mr. Orbach:

As you know, this firm represents Nationwide Contracting Services, Inc. (“Nationwide”), who is the lowest responsive and responsible bidder on the Project for the City of Baldwin Park (“City”). We provide this letter in response to your letter dated January 11, 2024.

Nationwide was the second lowest bidder on the Project. Kasa Construction Inc. (“Kasa”), on November 20, 2023, submitted a bid protest claiming that Nationwide’s bid should be found non-responsive. The City responded to Kasa’s letter and correctly found that Zusser Company, Inc.’s bid should be rejected, and that Nationwide’s bid was responsive.

In response to the City’s request, Nationwide responded to Kasa’s bid protest on December 29, 2023.1
In that response, Nationwide provided evidence and explanations showing that Kasa’s bid protest was factually inaccurate and did not provide sufficient grounds for the City to deem Nationwide’s bid non-responsive. Nationwide’s bid is clearly responsive as it promises to do what the contract documents require. (See, MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368.) Moreover, Nationwide has duly provided information and support refuting Kasa’s bid protest and showing that its bid substantially conforms to the bid documents. This is all that is required under California law. (See Bay Cities Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1198-1199 [bids that substantially conform to a public agency’s request but contain some error or irregularity may be accepted].) As a last-ditch effort, Kasa submitted a second bid protest letter on December 21, 2023. This second protest letter was sent months after the bid date, and for the first time, Kasa requested that the City determine whether Nationwide is a responsible bidder and 1 Nationwide incorporates its December 29, 2023, response and does not intend to restate the arguments and evidence previously provided to the City.

Grant Orbach
Best Best & Krieger LLP
January 19, 2024

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raised again arguments that were previously rejected by the City.2 Kasa should not be permitted to submit multiple bid protests asserting new and different arguments, the City should reject Kasa’s protests and the City should award the Project to Nationwide the lowest responsive and responsible bidder. Clearly, Kasa’s actions are not only unnecessarily dragging out the City’s contracting process, but Kasa’s actions exemplify why disgruntled high bidders should not be allowed to scour bids for inconsequential issues hoping to find immaterial errors. (Bay Cities Paving & Grading, Inc. v. City of San Leandro (2014) 223 Cal.App.4th 1181, 1189 [“It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal . . . after the fact, [and] cancel the low bid on minor technicalities, with the hope of securing acceptance of his [or hers], a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy.”].) It is well established that a public entity must “notify the low monetary bidder of any evidence reflecting upon his responsibility received from others or adduced as a result of independent investigation, afford him an opportunity to rebut such adverse evidence, and permit him to present evidence that he is qualified to perform the contract.” (City of Inglewood-Los Angeles County Civic Center Auth. v. Sup. Crt. (1972) 7 Cal.3d 861, 871.) Here, the City has only provided Nationwide with Kasa’s December 21, 2023, letter as “evidence” in support of conducting a non-responsibility hearing.

Kasa’s December 21 letter, however, is factually inaccurate and does not provide a good faith basis for deeming Nationwide a non-responsible bidder. Clearly, if Kasa had sufficient grounds to assert that Nationwide was non-responsible, it would have included those grounds in its original protest and provided sufficient notice and information for Nationwide to properly respond. Instead, Kasa has asserted conclusory arguments based upon a misunderstanding of Nationwide’s experience, a misreading of the bid documents, and a misunderstanding of California law.

As part of its bid protests, Kasa boldly concluded that Nationwide has “little to no experience with the intricacies required in order to build a park of this size.” Kasa provides no evidence in support of this argument. Rather, Kasa’s sole basis for this argument is that:
“It appears both contractors listed only one Park project on their references.”
Notably, this project did not require pre-qualification. Furthermore, the City as part of its awarding of the Project is fully capable and able to independently assess a bidder’s 2 In its November 20 bid protest, Kasa appears to argue that Nationwide should be found a nonresponsible bidder, but Kasa provides no specific evidence or arguments to support this position.

Indeed, in each of the paragraphs addressing Nationwide’s bid, Kasa argued that Nationwide’s bid was “non-responsive”. Although paragraph 8 of Kasa’s November 20 bid protest is titled “NonResponsible Bidder”, nothing in that paragraph discusses responsibility, and instead, Kasa argues that Nationwide’s bid is non-responsive.

Grant Orbach
Best Best & Krieger LLP
January 19, 2024

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experience and call on the bidder’s references to verify the bidder’s abilities.3 Kasa’s attempts to create its own standards in the bid documents is irrelevant and not appropriate under California law. How Kasa views the project requirements or what Kasa deems to be a similar project has no weight on the City’s analysis or decision. If every disgruntled high bidder’s argument regarding a lower bidder’s experience was sufficient grounds to hold a responsibility hearing, then the public works construction industry would be delayed indefinitely. Moreover, as discussed in Nationwide’s December 29 letter, Kasa’s assumptions regarding Nationwide’s experience are factually wrong. Nationwide has provided the City with its relevant experience and is prepared to partner with the City to complete this project.

Kasa’s belated attempt to raise a pending litigation involving Nationwide is also irrelevant and not germane to the City’s analysis. Nationwide acknowledges there is a litigation currently pending in United States District Court between Nationwide and the Laborer’s Trust Funds. This is a disputed claim, and the action involves accounting discrepancies concerning contributions made by Nationwide during a specific time period.

During that time, Nationwide was performing work on various projects including projects it believes were not subject to Trust Fund contributions. The parties are currently engaged in exchanging information to resolve this matter. The Trust Funds previously reduced their proposed assessment due to Nationwide voluntarily providing information, and Nationwide believes the current calculations are still inaccurate. Nothing in the Laborer Trust Funds claim suggests that Nationwide acted with an intent to deceive or that Nationwide’s actions were untrustworthy. In fact, Kasa offers no evidence or legal argument to support its argument that a pending dispute over trust fund contributions is grounds for finding a bidder non-responsible.

Turning to the remaining arguments in Kasa’s December 21, letter, and as previously discussed in Nationwide’s December 29 letter, Kasa incorrectly claims that Nationwide’s bid should be deemed non-responsive because Jon Gilmer Construction was not licensed at the time of bid.

It is clear from the printouts from CSLB website provided by Kasa, (see Exhibit B), and the relevant statutes that the basis for Jon Gilmer Construction’s license being suspended was its failure to renew the worker’s compensation insurance. The License Status section of the CSLB license detail explains that Jon Gilmer Contruction’s “[l]icense is under suspension for failure to comply with Workers Comp.” More importantly, it goes on to explain that
[a] workers’ compensation certificate or exemption statement may have been received by the Board but not yet processed. Once the certificate or exemption statement is processed the suspension will be lifted retroactively to the effective date of the certificate or exemption statement. Ask the 3 Although not required by the bid documents, Nationwide provides the enclosed additional references to the extent necessary to assist the City’s analysis. (See Exhibit A).

Grant Orbach
Best Best & Krieger LLP
January 19, 2024

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contractor for proof of worker's compensation and contact the insurance company to verify coverage.
(Exhibit B [emphasis added].) Under California law, Jon Gilmer Construction would have been licensed at the time of bid and able to contract with Nationwide had it timely resolved its worker’s compensation audit. Specifically, under California law, Jon Gilmer Construction had until December 21, 2023, to resolve its worker’s compensation audit and have its license activated retroactively to September 21, 2023.4 (Bus. & Prof. Code, § 7125.1, subd. (a).) Jon Gilmer Construction represented that its worker’s compensation insurance was being resolved prior to bid and Nationwide correctly listed Jon Gilmer Construction in its bid. Under California law, Nationwide is entitled to substitute a subcontractor if the subcontractor’s license is subsequently suspended.5 (Pub. Cont. Code, § 4107, subd. (a)(6).)
Finally, Nationwide provided sufficient evidence showing EverFence’s experience and qualifications. Nothing in Kasa’s bid protest or the bid instructions indicate that EverFence’s experience is a basis for rejecting Nationwide’s bid.

Based upon the foregoing, Nationwide again requests that the City deny Kasa’s two bid protests, and award the Project contract to Nationwide, the lowest responsive and responsible bidder on the Project.

Sincerely,

SMTD LAW LLP
Christopher Morrow
cc: Client
4 As discussed in Nationwide’s December 29 letter, per the CSLB’s website, Jon Gilmer Construction’s worker’s compensation insurance was active through September 21, 2023, and Jon Gilmer had 90 days from that date to resolve any issues with its worker’s compensation carrier. 5 Nor is listing an unlicensed subcontractor the kind of error in arithmetic or clerical mistake in filling out the bid that would have entitled Nationwide to withdraw its bid without penalty. (See Pub. Cont. Code, § 5103; MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 376-377.) Because listing Jon Gilmer Construction would not have allowed Nationwide to withdraw its bid without penalty, Nationwide could not have gained a competitive advantage.

Marion T. Hack
D 213.928.9885
[email protected]
167244907v2
Troutman Pepper Hamilton Sanders LLP
Two California Plaza, 350 South Grand Avenue, Suite 3400 Los Angeles, CA 90071
troutman.com
January 19, 2024

Dear Mr. Orbach:

This letter is being submitted in response to the City of Baldwin Park’s (“City”) January 11, 2024 letter setting a hearing date for Zusser Company, Inc. (“Zusser”) and Nationwide Contracting Services, Inc. (“Nationwide) to demonstrate they are responsible bidders for the Barnes Park Multi Benefit Stormwater Capture Project (“Project”). Zusser, as the lowest responsible bidder, disputes that it is a nonresponsible contractor as outlined by California Law and does not waive and hereby reserves any objections to these hearings.

I. THE CITY’S MUNICIPAL CODE REQUIRES IT TO AWARD THE CONTRACT

TO THE LOWEST RESPONSIBLE BIDDER, ZUSSER
The City is required to award the contract to the lowest responsible bidder. (See City of Baldwin Park’s Municipal Code §§ 34.27 through 34.38 [all contracts shall be awarded to the lowest responsible bidder pursuant to the public contract code].) “[W]hen a public entity solicits bids, it represents, consistent with the statutory mandate, that if the contract is awarded, it will be awarded to the lowest responsible bidder.” (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transp. Authority (2000) 23 Cal.4th 305, 315.) Zusser’s bid was the lowest and its bid has already been deemed responsive by the City (See Exhibit 1, City’s letter dated December 12, 2023 at pg. 2). While the base bids for the three bidders (KASA, Nationwide, and Zusser) were close, the overall Project consists of the base bid plus alternatives. Taking the base bid plus the alternatives into account, the overall bid prices differ significantly. Indeed, KASA’s overall bid is $1,451,847 higher than Zusser’s overall Sam Gutierrez
Grant R. Orbach
January 19, 2024

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bid and Nationwide’s overall bid is $685,056 higher than Zusser’s. Thus, if the City does not accept Zusser’s lowest responsive bid, it will be paying significantly more money for this Project.1 This would be waste of public funds and precisely why the City Charter requires the City to award contracts to the lowest bidder. The City has a fiscal responsibility as well as a legal responsibility to accept the lowest responsive bid.

Furthermore, a finding of nonresponsibility is a serious accusation which would have a major effect on Zusser, who is a small family-owned company. Zusser would have no choice but to fight such a finding in litigation and appeal if necessary. Thus, the City would not only be paying significantly more for the Project but would also be required to pay hundreds of thousands of dollars in legal fees over unnecessary protracted litigation. Fees incurred to defend such litigation are not recoverable. When looked at as a whole, there is no financial benefit to rejecting Zusser’s lowest bid.

II. THE CITY HAS FAILED TO PROVIDE ANY EVIDENCE OF ZUSSER’S

INABILITY TO PERFORM THE CONTRACT
As a matter of law, Zusser is entitled to all evidence upon which the City is relying in its determination of nonresponsibility. (See Boydston v. Napa Sanitation Dist. (1990) 222 Cal.App.3d 1362, 1369; City of Inglewood-L.A. County Civic Center Auth v. Superior Court (1972) 7 Cal.3d 861, 871.) Notwithstanding, the City has not provided such evidence despite four requests from Zusser for said evidence. Disturbingly, the City has also been inconsistent as to the reasons why Zusser is a nonresponsible contractor.

On December 12, 2023, Zusser received a letter from the City rejecting KASA’s bid protest in which the City stated that Zusser was not a non-responsive bidder but that it appeared to be a nonresponsible bidder based on Zusser’s “substantial, repeated, bad faith violations of prevailing wage law.” (See Exhibit 1.) Yet no such examples of “repeated, bad faith violations” were ever provided by the City. The City was apparently basing this statement on one decision by the DIR on a project that was 10 years old where there was no finding of bad faith. The City has never provided any evidence of “repeated, bad faith violations.” On December 14, 2023, Zusser wrote a letter to the City requesting the City provide it with “any evidence reflecting upon [Zusser’s] responsibility received by others or adduced as a result of an independent investigation” as required under California law.2 (See Exhibit 2.) The City had claimed that the “results of its reference investigation did not give City staff confident (sic)” that Zusser was a responsible contractor. (See Exhibit 1, pg. 2.) But, shockingly, on 1 We are informed that the funds for the base bid come from a grant but the alternatives must be paid from the City’s own funds. Thus, not awarding the contract to Zusser would deprive the City of a direct savings of between $685,056 and $1,451,847 and would make the alternatives potentially infeasible. 2 (See City of Inglewood-L.A. County Civic Center Auth v. Superior Court (1972) 7 Cal.3d 861, 871; Boydston v. Napa Sanitation Dist. (1990) 222 Cal.App.3d 1362, 1369.) Sam Gutierrez
Grant R. Orbach
January 19, 2024

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December 20, 2023, the City’s counsel admitted the City did not contact every reference listed in Zusser’s bid and that some of the references did not respond to the City. (See Exhibit 3.) The City admittedly had no evidence of negative references received for Zusser. Despite this lack of evidence, the City required Zusser to provide further information on five specific projects without any basis for asking for such information.

On December 22, 2023, Zusser provided a fulsome response demonstrating that Zusser is the lowest responsibility bidder including descriptions of Zusser’s work on these projects, whether projects were completed timely, and whether any disputes on the project or warranty issues. (See Exhibit 4.)
Despite Zusser fully responding to the City’s requests, on January 11, 2024, the City sent a letter to KASA, Nationwide and Zusser, setting the date for a hearing on nonresponsibility and yet again asking for more information on a project that Zusser did for the City of Bell Gardens. (Exhibit 5.) Yet the City has never provided any evidence which would support a conclusion that Zusser was a nonresponsible contractor based on Zusser’s work on the Bell Gardens project. Zusser has already provided the following information on that Project, including new information as highlighted:
 The John Anson Ford Park Infiltration Cistern Project in Bell Gardens, CA involved construction of a diversion structure and subsurface infiltration basin beneath the park to capture and recharge both dry-weather and storm runoff.

The work involved construction of subsurface infiltration cistern, pretreatment unit, reinforced concrete box culverts and vaults, installation of storm drain, sewer, park restoration, monument signs, landscaping, irrigation and flat concrete. This project has achieved substantial completion. Zusser has claims for extra work and owner-caused delays while the City of Bell Gardens has assessed liquidated damages against Zusser. Zusser contends that any delays that were not owner-caused, were the fault of its supplier, Jensen Enterprises, Inc. Jensen had difficulties with the fabrication of its precast concrete boxes which resulted in repair work and delays. Jensen used a dry-cast method which has since been banned for use in cistern systems by several public agencies. In fact, because of bad experience at Bell Garden Project, the same designer, CWE, has specifically prohibited the use of the dry-cast method for stormwater infiltration system in Barnes Park. (See Exhibit 6 page D-51 of project specification paragraph WSI-1 2, “Dry - cast units may not be used.”) The parties are currently in the ADR process with a mediator pursuant to the provisions in the contract and thus are unable to provide you with mediation protected materials.

Zusser believes that the claims between itself and the City will be resolved shortly. No lawsuits, demands for arbitration, or other legal actions have been filed to date.

Sam Gutierrez
Grant R. Orbach
January 19, 2024

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If the City has evidence “received from others or adduced as a result of independent investigation” regarding something specific to the Bell Gardens project, then Zusser will respond to those specific allegations. But providing claim documents without any context would be irrelevant and ultimately useless to the City’s analysis of responsibility. The City has no personal knowledge of the Bell Gardens project or the claims. It is a mystery why the City needs these documents, unless the City is withholding information that it has received on that particular project. We would hope that the City would not violate the law so brazenly. Again, Zusser will provide any document the City needs in order to rebut any evidence that the City has “received from others or adduced as a result of independent investigation” regarding the Bell Gardens project.

On January 15 and 16, Zusser asked the City, for the third and fourth time, of any evidence reflecting upon Zusser’s nonresponsibility so that Zusser could properly rebut or respond to this evidence. (See Exhibits 7 and 8.) The City must provide all evidence “received from others or adduced as a result of independent investigation.” (City of Inglewood-L.A.

County Civic Center Auth. v. Superior Court (1972) 7 Cal.3d 861, 871.) To date, the City has provided no such evidence except questions regarding a DIR issue which will be discussed below.

III. ZUSSER IS A RESPONSIBLE CONTRACTOR
Indeed, while the City has provided no evidence to suggest Zusser’s inability to perform the contract at issue, Zusser has twenty years of successfully performed projects. Zusser is a family run general contractor specializing in public works that serves the greater Los Angeles and Orange County as well as Riverside, Imperial and Ventura Counties. Zusser has successfully performed similar projects to this Project including a wide variety of underground water storage, stormwater capture, and other water systems. In addition, the projects include a variety of public parks and various trades including but not limited to electrical, concrete, structural, demolition, grading and excavation, asphalt, masonry, utilities, sewer, drainage, water lines, and design and survey. Examples of these projects, as requested by the City, include:
 The West Hollywood Pan Pacific Retention Basin Diversion Gate & Control House Upgrade Project involved replacement of existing slide gate, upgrading the mechanical, electrical, and control systems for the new slide gate, and construction of a new control house within the Pan Pacific Retention Basin. The initial contract scope has been entirely fulfilled. The outstanding tasks involve miscellaneous additional electrical work initiated by the County. The anticipated completion date for these remaining tasks is currently set for January 2024. This schedule aligns with the overall contractual timeframe as allocated. There were no disputes on this project and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.

Sam Gutierrez
Grant R. Orbach
January 19, 2024

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 The Point Dume Staircase Replacement Project involved removal of existing the stairway and construction of new stairway with an ADA trail above the staircase in Malibu, CA. This was an extremely technically complicated project involving work on an almost 90-degree slope. Despite the technical challenges, this project was completed successfully and on time. There were no disputes on this project and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.  LADWP Lagoon Refurbishment involved construction of a liner basin of over 7,000 linear of PVC, on-site screening of over 6,000 cy of underdrain rock, disposal of hazardous materials, refurbishment of existing valve structures and installation of electrical panes and utility cabinets. This project was completed successfully and on time. There were no disputes on this project with the owner and all issues regarding extra work were resolved through mutually agreed change orders. In addition, there were no warranty issues on this project.

Further, Zusser already provided a letter from its surety stating that based on its investigation, Zusser is a company well versed in the construction industry with a great depth of experienced people, known for their ability to complete contracts on schedule, within budget and with exceptional workmanship. (See Exhibit 9, Surety Letter.) In its almost twenty years in business, Zusser has attained a network of reputable subcontractors, designers, and surveyors that meet its stringent quality and dependability requirements.

Lastly, Zusser has enclosed a number of positive references from public entities herein. (Exhibit 10, References.)
Accordingly, Zusser is fully capable of satisfactorily performing the contract for the Project and is the lowest responsible bidder on the Project. The City has no competent evidence to the contrary.

Sam Gutierrez
Grant R. Orbach
January 19, 2024

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IV. THE DIR DECISION IS NOT RELEVANT TO ZUSSER’S PERFORMANCE ON

THE CONTRACT NOR ITS TRUSTWORTHINESS
The only piece of evidence Zusser has been provided, and therefore the only evidence which Zusser is required to respond to, is the DIR decision on a 10-year old project. The Decision of the Director of the California Department of Industrial Relations in case No. 19- 0134-PWH did not include any finding of bad faith and instead involved a disagreement over a worker classification issue. Moreover, this decision is currently being appealed in the Los Angeles Superior Court, thus this current decision is not final.

The DIR’s decision was based on a determination that Zusser misclassified sewer and storm drain pipelayer workers on the project. Zusser contends that the alleged misclassification is not supported by the evidence. Indeed, the DIR decided to reclassify the workers as pipefitters because it claimed the lagoons on the project were connected to a plant, yet the evidence demonstrated that when Zusser performed work in the lagoons, there was no connecting pipeline to any facility. The uncontradicted evidence is that Zusser’s work was performed exclusively in the lagoons, which would make Zusser’s classification of the workers the correct one.

Additionally, the main point of contention is not whether the Plant and Lagoons were connected, but the fact that refurbishment of waste solids lagoons did not involve any water treatment components typically associated with specialized pipefitting trades in the water treatment plans. Therefore, the use of pipelayers for sewer and storm drain, applicable to underground piping including solid waste disposal was totally appropriate for the scope of this project which was refurbishing of refurbishment of lagoons used for solids disposal and includes modifications to the existing piping system.

In any event, this decision certainly has no bearing on Zusser’s “trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Pub. Contract Code § 1103.) This is a simple disagreement on how a small portion of workers were classified on a job. Zusser had a right to contest what it proved was an incorrect classification of workers. There was no finding of bad faith on the part of Zusser nor could it be.

The project is 10 years old and Zusser has performed numerous projects with prevailing wage worker since that time. Despite this issue, other public entities had no issue considering Zusser a responsible contractor because this issue had no impact on whether Zusser could competently perform the work on their Projects. Zusser has successfully completed several dozen projects since this issue arose.
a. The Operating Engineer and Labor and Cement Misclassification Issue Is Not Relevant
The DIR Decision found that Zusser misclassified workers in the Operating Engineer and Laborer classifications and underpaid workers classified as Cement Masons. Zusser made a Sam Gutierrez
Grant R. Orbach
January 19, 2024

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financial decision not to fight the DIR decision regarding the reclassification of these workers due to the legal costs of doing so and the fact that two workers involved in the alleged misclassification have since passed away. Notwithstanding, Zusser maintains that these workers were appropriately classified and that if there was any misclassification, it was due to a good faith error. However, Zusser notes that the wages of laborers and cement masons are almost the same and therefore the alleged misclassification did not cause harm to the employees. This issue was also a difficult one to provide evidence for records in the field were not clear as to which classification was appropriate as these trades often overlap. Since that time, Zusser set up a state-of-the-art system to avoid misclassification and claims in the future, which has been very successful.

In order to “promptly and voluntarily” prevent any future misclassification, Zusser set up a system to prevent these misclassification issues that are common on projects with prevailing wages. Over the years, in order to eradicate any potential worker misclassification, Zusser has developed one of the most sophisticated four-way classification tracking system in the industry.

This consists of (1) a special cell phone (or tablet) application to track daily reporting and tasks of individuals in near real time; (2) full-time solar-powered cameras installed on project locations which allows a timekeeper to double check employee tasks and classifications throughout the day and during payroll preparation; (3) a time sheet which reflects classification, work performed, and hours worked; and (4) check boxes within timecard which allow workers to certify that the classifications listed are correct. (See Exhibit 11, examples of Zusser’s system.) If any data entry mistakes are discovered, they are corrected typically by the next pay period.3 Zusser had gone above and beyond to make sure DIR issues are mitigated. These are not the actions of a contractor that is not responsible, rather it is the height of responsibility. It is doubtful, that Nationwide and/or KASA have developed such a robust system to ensure proper classification of workers.

Finally, it should also be noted that the alleged misclassification here had no bearing on Zusser’s timely and quality performance of this project. Indeed, the project was completed on time and to the complete satisfaction of the owner. Again, we reiterate the fact that the DIR decision certainly has no bearing on Zusser’s “trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract.” (Pub. Contract Code § 1103.) As stated in our prior letters to the City, in the almost ten years since the project at issue in the DIR’s decision, Zusser has been deemed a responsible contractor on several dozens of public works projects in California, involving hundreds of workers under prevailing wages. (See Exhibit 12, portfolio.)
3 It should be noted that pay checks are always released regardless of any claim by the worker that the hours, classifications, work description or rates are wrong, or injuries reported. (Id.) Sam Gutierrez
Grant R. Orbach
January 19, 2024

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VI. THE CITY CANNOT EMPLOY FAVORITISM IN ITS AWARD
The “purpose of requiring governmental entities to open the contracts process to public bidding is to eliminate favoritism, fraud and corruption; avoid misuse of public funds; and stimulate advantageous marketplace competition.” (Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1256.) “Although public bodies have discretion to determine which bidders are responsible, they may not, if they determine more than one bidder is responsible, make the award on the basis of relative superiority.” (Boydston, supra, 222 Cal.App.3d 1362, 1369 [emphasis added].) In City of Inglewood-L.A. County Civic Center Auth, supra, 7 Cal.3d 861, after the civic center authority awarded a contract who was not the lowest bidder, it was found that the award was based on a determination that the higher bidder was relatively superior in ability to perform the work. In setting aside the ruling, the Court of Appeal found that the statute had no basis for applying the relative superiority concept and rather the civic center authority was required to award the contract to the lowest bidder, unless that bidder was found not responsible, i.e. not qualified to do the particular work under consideration.

Here, the City may not similarly apply the concept of relative superiority where all three low bidders have allegations which might be used to challenge the “trustworthiness, as well as quality, fitness, capacity and experience to satisfactorily perform the public works contract.” Instead, the City must award the contract to the lowest bidder—Zusser. Each contractor here has issues which could lead to a subjective determination that the bidder is nonresponsible.4 Nationwide has a pending lawsuit in the United States District Court for the Central District of California, Case No. 8:23-cv-00521, filed on March 22, 2023. (Exhibit 13.) This lawsuit involves claims that Nationwide owes the Construction Laborers Trust Funds damages due to Nationwide’s failure to make monthly benefit contributions for its employees. This is a recent serious allegation and far more relevant that Zusser’s DIR dispute. Here, Nationwide is accused of not paying for employee’s retirement funds. Another recent pending lawsuit was filed against Nationwide by the Creditors Adjustment Bureau, Inc. in Orange County Superior Court, Case No. 30-2022-01296113-CU-BC-NJC. (Exhibit 14.) In this lawsuit, the plaintiff, as the assignor of the State Compensation Insurance Fund, claims that Nationwide failed to pay premiums on the workers compensation insurance policy provided by the assignee. Again, this is a serious allegation in which Nationwide is accused of not paying workers comp insurance premiums. In a third lawsuit filed in the Orange County Superior Court, Case No. 30-2023- 01326343-CU-BC-NJC, homeowners sued Nationwide for construction defects. (Exhibit 15.) This pending lawsuit goes directly to Nationwide’s fitness and capacity to perform work on a project. Thus, the second low bidder Nationwide is involved in three court actions, that are more persuasive evidence as to the ‘trustworthiness, as well as quality, fitness, capacity and experience to satisfactorily perform the public works contract” than the alleged evidence against 4 However, Zusser is not advocating that any of the bidders be deemed nonresponsible. Each bidder has been in business for many years and through that time run into issues that are normal for any business.

The point is that one bidder’s issues cannot be held to a higher standard than similar issues experienced by the other bidders.

Sam Gutierrez
Grant R. Orbach
January 19, 2024

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Zusser. Thus, any finding that Zusser’s one 10-year violation is an indicator of nonresponsibility over three lawsuits against Nationwide that involve alleged wage theft, construction defects and failure to insure employees, could only be considered favoritism.

Moreover, in 2014, KASA was involved in a personal injury lawsuit filed in the San Bernardino Superior Court, Case No. CIVDS1414976. (Exhibit 16.) This case involved an automobile accident wherein the defendant was employed by KASA and driving a KASA vehicle. This lawsuit speaks to worker safety issues, a serious concern. It would be highly arbitrary and capricious for the City to hold Zusser to a higher standard that the other bidding contractors. The allegations against Nationwide and KASA are even worse than those made against Zusser—a single 10-year-old DIR decision that has no bearing on whether Zusser could perform the work on that project.

Furthermore, the City has a history of awarding contracts to contractors with DIR issues.

As an example, All American Asphalt was awarded a contract in June 2022 but there are DSLE claims against them reported in 2020 and June 2022, and it appears the June 2022 claim is still ongoing. (See Exhibit 17, record from DSLE.) PCN3 was awarded a contract by the City in 2022 and they also had a wage claim by the DSLE in 2012. (Id.) Clearly the City has never used DIR violations or decisions in determining contractors are responsible, so it is highly questionable that now, all of a sudden, Zusser’s alleged violation over a worker classification issue is a compelling reason to determine Zusser’s responsibility.

VII. CONCLUSION
The City’s “evidence” is clearly insufficient to classify Zusser as a nonresponsible bidder.

Moreover, with respect to this Project, Zusser no doubt has the requisite trustworthiness, quality, fitness, capacity, and experience to satisfactorily perform the contract in question.

Zusser is fully capable of satisfactorily performing the contract for the Project and is the lowest responsible bidder on the Project. The City has no competent evidence to the contrary.

Zusser is confident that it has demonstrate and will demonstrate that it is the lowest responsible bidder on this Project. Moreover, Zusser is fully prepared to pursue all legal remedies should the City decide to deny Zusser the contract on the basis of nonresponsibility.

Sincerely,
Marion T. Hack
MTH
cc: Misha Fyodorov

Exhibit A

R. REX PARRIS RAJ MALHI MAYOR COUNCILMEMBER

MARVIN CRIST LAUREN HUGHES-LESLIE VICE MAYOR COUNCILMEMBER

KEN MANN JASON CAUDLE COUNCILMEMBER CITY MANAGER
44933 Fern Avenue
Lancaster, CA 93534
661.723.6000
cityoflancasterca.gov
January 18, 2024
Sent Via Email
Nationwide General Construction Services
7660 Liberty Dr.,
Huntington Beach CA, 92647
Re: LETTER OF RECOMMENDATION
The City of Lancaster hereby expresses its commendation to Nationwide General Construction Services for their outstanding performance on the Lancaster Health District (Phase I), LACMTA Project ID# F9131. The team demonstrated expeditious and thorough submission of submittals, as well as timely issuance of Change Orders.

Moreover, the team provided prompt and accurate Certified Payroll Records (CPRs) to our Labor Compliance team, fully complying with City regulations regarding payment to employees and subcontractors.

The City of Lancaster recognizes and appreciates Nationwide General Construction Services' unwavering commitment to quality, timeliness, and compliance in this project.

Sincerely,
Araxie Kahramanian
Analyst PW City Engineering
AK:at

Phone:951-208-4320Office
E-mail:[email protected]
24849LornaDr
MorenoValley,CA92553
LicenseNo.#814643

UCELECTRIC

Sincerely,
CarlosUrbinaSr.
(909) 821-9182
Owner
January 17, 2024
The City of Baldwin Park
14403 Pacific Avenue
Baldwin Park, Ca 91706
Project: Barnes Park Multi-Benefit Stormwater Capture
To whom it may concern,
I am writing to express my recommendation for Nationwide General Construction Services, with whom i've had the pleasure of working closely with over the past 15+ of our company's 23.years. As a subcontractor, our professional relationship has been longstanding and positive.

Nationwide General Construction Services' leadership has exhibited effective communication, proactive problem-solving abilities, and payment reliability. Their dedication to deliver high-quality results on time and within budget has been instrumental in the successful completion of numerous projects.

Should you require further information or wish to discuss Nationwide General Construction Services in more detail, please feel free to contact me directly.

Exhibit B

D-51
SECTION SWI – STORMWATER INFILTRATION SYSTEM
This specification describes a reinforced concrete subsurface storage and infiltration system, produced by a manufacturer that is regularly engaged in the engineering design and production of stormwater infiltration systems for at least five (5) years and which have a history of successful production, acceptable to the Engineer.

SWI1 GENERAL
SWI1-1 Design Requirements
The following design requirements shall apply:

1. Precast concrete modular stormwater detention/infiltration shall comply with ASTM C858.

2. Dry-cast units may not be used.

3. Precast concrete subsurface infiltration system shall be sized in accordance with the following specifications:
a. Subsurface infiltration system must have a minimum capacity of 1,346,400 gallons (about 180,000 cubic feet or 4.1 acre-feet) and a minimum footprint of 20,000 square feet.

4. System shall be designed so modules are aligned and have channels that extend to the bottom of the modules, allowing for relatively unrestricted fluid flow in both directions.

5. The invert of the system must be level and continuous to allow for maintenance.

6. Minimum structural design loading (ASTM C857)
a. Total cover: as indicated on Plans
b. Concrete shall be designed for AASHTO HS-20 wheel loading c. Minimum soil bearing pressure: 3,000 pounds per square foot (psf) d. Vertical and lateral soil pressures shall be determine using:
i. Groundwater below invert
ii. Lateral soil pressures to be based on active earth pressure

1. Lateral soil pressure (unsaturated) = 35 pounds per cubic foot (pcf) for 120 pcf backfill unit weight
iii. Vertical soil pressures

1. Live load = HS-20-44 and Dead load = 120 pcf cover fill unit weight

7. Contractor to verify geotechnical requirements

8. Backfill on the sides of the precast system shall be structure backfill, ¾-inch crushed rock, or as recommended by the manufacturer and approved by the Engineer. Backfill over the top of the structure shall have a maximum unit weight of 120 pcf.

December 14, 2023
To whom it may concern,
Zusser Company Inc. successfully carried out and completed the “Park to Playa Trail:

Stoneview Nature Center to Scenic Overlook” project in Culver City, CA.

This project was awarded to Zusser Company Inc. by Los Angeles County Public Works.

I worked on the project as the Los Angeles County Public Works Owner's Project Manager.

If you have any questions, please call me at (213) 840-7004.

Sincerely,
Ryan Kristan

PROJECT MANAGER

Mikhail Fyodorov <[email protected]>
RE: Fountain Valley Contractor Follow-up
DeCoursey, Chris <[email protected]> Fri, Nov 22, 2019 at 12:47 PM To: Mark Bray <[email protected]>
Hi Mark,
Please see my answers in RED below. Zusser is a good responsive firm! My cell is (714) 720-6066, if you need more and want to talk directly. Have a Happy Thanksgiving and Holidays! Chris DeCoursey, PE
Construction Manager
Orange County Fire Authority
Office: 714-573-6473 | Mobile: 714- 720-6066
We visualize problems and solutions through the eyes of those we serve.

From: Mark Bray [mailto:[email protected]]
Sent: Friday, November 22, 2019 10:47 AM
To: DeCoursey, Chris <[email protected]>
Subject: Fountain Valley Contractor Follow-up
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Good morning Chris,
We opened bids for a small construction project yesterday and wanted to follow up with you regarding a contractor that listed you as a reference for Fire Station 42 Retaining Wall and Foundation Remediation.

I am looking to get some input on Zusser Company, Inc. and would like to discuss when you have a minute.

Things I am looking for are:

Their professionalism, I principally dealt with Anton Fyodorov, Misha Fyodorov and Rick Rodriguez of Zusser and found them to be extremely professional, knowledgeable, and responsive. They self-performed most of the work scope on our project with the exception of Foundation/slab foam jacking and v-ditch installation.

Their timeliness, They were excellent and very expedient on submittals, RFI’s, change requests, and certified payroll.

They also handled agency compliance both State labor and City building department, documentation and test/inspection reports efficiently.

They complete on budget. The project was completed nearly a month ahead of schedule. There were minor budget cost increase change orders for unforeseen subsurface conditions and improved value engineering installation which didn’t have a significant cost effect on the anticipated project budget (basically, under budget on the Agency’s anticipated CIP budget for the included work scope).

I generally would like to know if you would hire them again. I would definitely work with Zusser again if the opportunity presents itself. In fact, Zusser has also successfully performed projects for OC Parks based on my recommendation and their performance.

My cell phone is 949-344-1185.

Thank you,
Mark Bray
PW Project Manager
Full Time Cameras (Solar Powered)
Installed Onsite
Full Time Cameras (Solar Powered)
Installed Onsite
Online Interface for Site Camera Footage
Website automatically has permanent archiving of site video/ photos at 15 minute intervals (maximum) at several camera angles during site working hours.

Allows Zusser to re-visit the full history of project including the laborer and equipment onsite during a specific date/ time.

Online Time Card Reporting SystemCustom designed electronic time card reporting system which transmits information to our email server for permanent archiving of the daily time resources. This system is implemented for Zusser staff to use on all projects.

Physical (Paper) Time Sheets
Filled out and signed by employee with each paycheck
ZUSSER COMPANY, INC.

COMPANY PORTFOLIO
We would like to introduce Zusser Company, Inc. as a full-size service construction company specializing in public works, heavy-civil and municipal construction in the Greater Southern California area.

Zusser possesses both General Engineering A, Building Construction B, and Hazardous Substances Removal HAZ licenses. Zusser is fully insured and bonded.

Zusser has a network of reputable subcontractors, designers, and surveyors that meet our stringent quality and dependability requirements.

Please contact me at your convenience if you are interested in additional information or have any project you want to discuss.

We enclosed some major project reference list along with selected photographs.

T A B L E O F C O N T E N T S

1. Our Values
About Us
Why Choose Zusser
Values

2. Our Qualifications
Relevant Experience

3. Our Team
Resumes

Zusser Company is uniquely qualified for today’s construction environment. Our successful track record in designing and building urban development and civil projects will enable us to produce an end product that will suit the needs of the client and all end users. Our experienced staff of planners, engineers, and builders approach each project with the future generations in mind.

WHO WE ARE
Zusser Company Inc. (ZCI) is a general contractor, construction firm that serves the greater Los Angeles and Orange County Area. ZCI is a family run business founded 19 years ago (2005) in a small home office in Orange County, CA. ZCI aims to plan, design, build, and deliver high quality projects with friendly professional, efficient, and sustainable service. We strive to implement a long-term relationship with our clients based on communication, transparency, trust, and an anticipation of their needs.

WHY CHOOSE ZUSSER?
Selecting Zusser Company for this your
construction needs is a clear choice for several
reasons- our extensive experience in all
construction areas and trades and our
commitment to client satisfaction. There is no
project too big, too small, or too difficult.

The greatest asset our team brings is our
widespread success in construction. Our
company has experience in everything from
Rubber Dam Replacements in the Santa Ana
River, to emergency pipe repairs for the
Metropolitan Water District. This vast
experience allows us to have established
relationships with industry consultants and
engineers and anticipate issues that are
important to you.

MISSION STATEMENT
• Provide development, infrastructure, planning and environmental services to private and public clients in local, regional markets
• Lead as professionals specializing in planning, design and construction • Look forward to the future with a commitment to building opportunities and value for our clients and ourselves
• To deliver high quality projects with friendly, professional and efficient service • Build a long term relationship with our clients, based on full transparency, quality, and timely service
.

OUR VALUES

INTEGRITY
We value high ethical construction practices based on the values of honest and hard work.

TEAMWORK
Zusser’s goal is to collaborate with all team members associated with our projects including clients, partners, subcontractors, sub-consultants, and vendors.

SAFETY
Our goal is zero accidents and zero injuries with work tasks designed to minimize or eliminate hazards to personnel, process, equipment, and the general public. No employee should ever perform tasks that may endanger his/her own safety and health or that of other. When implemented, these requirements will help protect site personnel, visitors, and the public from exposure to potential safety and health hazards.

QUALITY
Zusser’s goal is the ensure we meet the target qualities and the owner’s expectations. This will be accomplished by monitoring and controlling the level of quality produced by the project, utilizing a Construction Quality Control Plan (CQCP)

1. New Building construction.

2. Electrical work.

3. Concrete works including Pavers and decorative concrete.

4. Structural work.

5. Demolition work.

6. Grading and excavation of the small and large scale project.

7. Asphalt paving and repairs.

8. Masonry and Block work.

9. Utilities: Sewer and Drainage. Manholes.

10. Water lines and water supply.

11. Design and Survey.

12. Emergency repairs.

13. Project management, estimating, and construction procurement.

C O N S T R U C T I O N E X P E R I E N C E
Zusser specialized in the following Heavy Civil Construction:

Highways and Roads:
• Construction of roadways
• Traffic control, temporary and permanent
• Pedestrian bridge construction
Dams and Reservoirs:
• Installation of rubber dams for water storage and flood control • Constructing reservoirs and associated infrastructure • Installation of temporary water storage tanks
Water and Wastewater Treatment Plants:
• Building water treatment and pump stations plants for clean water supply • Constructing wastewater treatment facilities
• Removal of sediment for aeration and desilting ponds
Stormwater Management:
• Constructing stormwater drainage systems
• Building retention basins and flood control structures

C O N S T R U C T I O N E X P E R I E N C E
Rubber Dam #3- County
of Los Angeles
Conejo Creek
Maintenance Project
Pipeline Construction:
• Installing pipelines for potable, non-potable, and sewer distribution Urban Development Projects:
• Construction of public spaces and Parks
Levees and Flood Protection:
• Building and repairing embankments for flood protection • Constructing flood control channels
Educational Institutions:
• Building schools and educational facilities, on campus Retaining Walls:
• Segmented block retaining walls
• Construction of slough walls and cast-in-place retaining walls • Re-compaction and repair of slope failures
Landscape and Irrigation:
• Planting of trees, shrubs, sod, and hydroseeding
• Installation of irrigations systems for commercial landscaping • Large tree demolition and removal
• Tree protection
Fire Damage & Hazardous Material Clean-up:
• Permitting and compliance for hazardous waste clean-up • Classification and disposal of RCRA and Non-RCRA hazardous waste • Demolition and removal of fire damaged properties

C O N S T R U C T I O N E X P E R I E N C E
City of Pasadena-
“Eastside Well
Collector” Woosley Fire Clean-up
Zusser has experience in the following Park Construction:

Walking Paths and Trails:

Paved or natural pathways for walking, jogging, or biking Trail construction with materials like asphalt, concrete, gravel, or mulch
Green Spaces and Lawns:

Open areas with grass for picnics, sports, or relaxation Irrigation systems for lawn maintenance
Sports Facilities:

Soccer fields, baseball diamonds, or multi-use sports fields Public Art Installations:

Sculptures, statues, and other artistic elements
Restrooms and Amenities:

Public restroom facilities
Drinking fountains and waste disposal stations
Lighting:

Pathway lighting for safety and nighttime use
Decorative lighting for accentuating features
Informational Signage:

Wayfinding signs and maps
Parking Facilities:

Parking lots or designated parking areas
Bicycle racks for cyclists
Security and Safety Features:

Surveillance cameras systems
Accessibility features, such as ramps and ADA-compliant pathways

C O N S T R U C T I O N E X P E R I E N C E
City of Malibu- Malibu
Bluffs Park
City of Malibu- Legacy
Park
County of Los AngelesPan Pacific Park
Bell Gardens, CA

PROJECT SUMMARY
Agency: City of Bell Gardens - Public Works
Contract Amount: $15,600,000
Architect: CWE, Inc.

Completed: 2023

PROJECT SUMMARY
Agency: California Department of Parks and Recreations
Contract Amount: $3,600,000
Completed: 2022

PROJECT SUMMARY
Agency: City of Bell Gardens - Public Works
Contract Amount: $205,000
Completed: 2023

PROJECT SUMMARY
• Construction of water, sewer, electrical utilities for the pre-fabricated restroom including preparation
of the foundation
Installation for a Prefabricated
Restroom at ABC Field
Redondo Beach, CA

PROJECT SUMMARY
Agency: City of Redondo Beach
Contract Amount: $900,000
Completed: 2012

PROJECT SCOPE
Renovation of the Pier Deck Surface including
Demolition, PCC Pavement, Interlocking Pavers,
Decorative Concrete Banding, Site Furnishing,
Channel Drains and Piping, Electrical Work,
SWPPP
Redondo Beach Pier
Improvements, Phase I
Yorba Linda, CA

PROJECT SUMMARY
Agency: Metropolitan Water District of So. California
Contract Amount: $5,000,000
Completed: 2012

Install Structural Steel and Miscellanies Metals.

Painting and Cathodic Protection. Site Work
Including Demolition, Dirtwork, New Asphalt,
Concrete, Retaining Walls and Landscape.

Robert Diemer Water
Treatment Plant Fire &
Portable Water Pump Station
Savage Canyon Landfill,
Whittier , CA

PROJECT SUMMARY
Agency: Whittier Utility Authority
Contract Amount: $1,800,000
Completed: 2013

PROJECT SCOPE
• Construction of a Lined Landfill Cell for Phase 2C
at the Savage Canyon Landfill located in Whittier.
• The work consist of Mass Excavation, Subgrade
Preparation, Earthwork, Installation of High
Density Polyethylene (HDPE) Geomembrane,
Geosynthetic Clay Liner (GCL), Geocomposite,
Geotextiles, HDPE and PVC Piping, Surface Water
Control Structures.

Phase 2C Liner Construction
Colton, CA

PROJECT SUMMARY
Agency: City of Colton
Contract Amount: $1,300,000
Completed: 2013

PROJECT SUMMARY
• Construction of new Well Pumping Plant which
includes Site Grading, Aggregate Base and Paving.

Construct Well head Improvement including Pump
Pedestal, Gravel Access and Construction of Well Pump
Foundation.
• Construction of Well Blow off Drain and Discharge
Piping and Fittings, Concrete Structure, Chlorination
System including 1,000 gal Containment Storage Tank,
Pumps and Appurtenances.
• Electrical Work including Building and Site work.

Painting and Coating.

Well Pumping Plant 30 at Fogg
Street
Ontario, CA

PROJECT SUMMARY
Agency: City of Ontario
Contract Amount: $3,400,000
Completed: 2015

PROJECT SUMMARY
• Water System Improvements including
installation of 1,300 lf of CML&C water
transmission pipeline, installation of RCP,
connection to existing at various street
intersection, traffic control, pavement repairs,
street restoration, demolition.
• Relocation of the existing Well No. 41 Chlorine
Generation and Injection system, construction of
CMU building, installation of a Single Pass Ion
Exchange Perforate Wellhead Treatment System
for Well No. 41.
• Electrical and system integration work.

Well No. 41 Wellhead
Treatment System
Granda Hills, CA

PROJECT SUMMARY
Agency: Metropolitan Water District of So. California
Contract Amount: $3,600,000
Completed: 2017

LADWP Lagoon Refurbishment
El Centro, CA

PROJECT SUMMARY
Agency: Imperial County
Contract Amount: $8,100,000
Completed: 2019

PROJECT SUMMARY
• Remove waste and impacted soil from site and regrade to a uniform surface. • Removal & disposal of Cal-Haz waste and nonhazardous waste. • Onsite processing of existing concrete and placement
of reclaimed concrete.

Clean Closure of the Cruickshank
Road Illegal Disposal Site
Culver City, CA

PROJECT SUMMARY
Agency: County of Los Angeles
Contract Amount: $1,800,000
Completed: 2018

PROJECT SUMMARY
• Stone Nature Center to Overlook Segment: New
decomposed granite trails, soldier pile retaining walls at slope hillsides, shoring, sire demolition, grading,
excavation, interceptor drain, bench cuts at sloped
hillsides, post and cable rails, fencing, landscape and irrigation
Park to Playa Trail: Stone Center
to Overlook Segment
Culver City, CA
Park to Playa Trail: Stone Center
to Overlook Segment
Culver City, CA
Park to Playa Trail: Stone Center
to Overlook Segment
Culver City, CA

PROJECT SUMMARY
Agency: County of Los Angeles
Contract Amount: $110,000
Completed: 2018

PROJECT SUMMARY
• Construction of the Martin Luther King
memorial grove portion of the Park to Playa
project- including manufacturing and
installation of the obelisk
• Site amenities including the seating, boulders,
and engraving of boulders
MLK Memorial Project
MLK Memorial Project Culver City, CA
MLK Memorial Project Culver City, CA
Temecula, CA

PROJECT SUMMARY
Agency: Rancho California Water District
Contract Amount: $3,000,000
Completed: 2019

PROJECT SUMMARY
• Demolition and disposal of existing surface
debris, polypropylene, geotextile liners,
reinforced concrete.
• Pond surface preparation, grading, excavation.
• Install reinforced geomembrane and geotextile
along the slopes and bottom of Pond.
• Construct reinforced concrete dewatering sump,
fiberglass grating, liner anchorage and related
work.

Recycled Water Storage Pond
Relining, Pond No. 1/2
Hollywood, CA

PROJECT SUMMARY
Agency: Los Angeles County – Public Works
Contract Amount: $3,654,000
Completed: 2023

PROJECT SUMMARY
Agency: County of Los Angeles
Contract Amount: $2,716,00
Completed: 2023

PROJECT SUMMARY
• Removal of an existing Valley Rubber Dam#3
measuring 8’ in dia by 450’ in length,
• Supplying and installation of a new rubber dam and
materials
• Concrete foundation preparation, construction joint
repairs, cleaning and testing of dam
Removal & Replacement Valley
Rubber Dam #3
Duarte, CA

PROJECT SUMMARY
Agency: County of Los Angeles, Dept of Public Works
Contract Amount: $1,400,000
Completed: 2014

PROJECT SUMMARY
• Demolition of existing concrete channel, reconstruct
reinforced concrete channel
• Construct rubber dam and control house
• Modified diversion structure, slides gates, operational platform, structural steel catwalk, RCP pipes and
fittings, structural and site concrete, asphalt, concrete outlets, riprap, electrical.

Live Oak Spreading Grounds
Improvements
Huntington Beach, CA

PROJECT SUMMARY
Agency: Orange County Transportation Authority (OCTA)
Contract Amount: $1,980,000
Completed: 2015

PROJECT SUMMARY
• Construct additional parking at the Golden West
Transportation Center.
• Construct 57’x97’ Storm Water underground concrete
vault, excavate to 20’ deep, shoring, sump pumps,
mechanical.
• Site grading, flat concrete, asphalt, landscape, site demolition, electrical
Construction of Additional
Parking at Golden west
Transportation Center
Huntington Beach, CA
Construction of Additional
Parking at Golden west
Transportation Center
Carson, CA

PROJECT SUMMARY
Agency: County Sanitation District of Los Angeles
Contract Amount: $3,700,000
Completed: 2019

PROJECT SUMMARY
• Demo existing Digestion Tank KLM, ancillary facilities, residuals within tanks, mechanical piping, equipment,
reinforced concrete structures.
• Relocation of existing yard piping and electrical
equipment.
• Backfill to match existing grade.

Joint Water Pollution Control
Plant Demolition of Digestion
Tanks MLK
Carson, CA
Joint Water Pollution Control
Plant Demolition of Digestion
Tanks MLK
Buena Park, CA

PROJECT SUMMARY
Agency: City of Buena Park - Public Works
Contract Amount: $163,630
Completed: 2020

PROJECT SUMMARY
• The memorial was created and dedicated to honor
Buena Park’s Fallen officers.
• It includes excavation, concrete work, memorial
monument installation with lights and landscape
PD Fallen Officer Memorial
Project
Calabasas, CA

PROJECT SUMMARY
Agency: Las Virgenes Metropolitan Water District
Contract Amount: $1,500,000
Completed: 2019

PROJECT SUMMARY
• New glass-lined centrate storage tank with volume of
480,000 gallons, tank mixing equipment, valves,
instrumentation, and associated tank accessories.
• New access road and tank site, excavation, grading,
paving.
• New pipes, fittings to tie-in to existing centrate lines for filling and draining the storage tank.
• New electrical panels, PLC, equipment.
• New dry weather diversion structure.
• Site drainage system including concrete swale, gutters and storm drains.

Rancho Las Virgenes Centrate
Storage Tank Construction
Calabasas, CA
Rancho Las Virgenes Centrate
Storage Tank Construction
Calabasas, CA
Rancho Las Virgenes Centrate
Storage Tank Construction
Calabasas, CA
Rancho Las Virgenes Centrate
Storage Tank Construction
Ventura, CA

PROJECT SUMMARY
Agency: County of Ventura
Contract Amount: $625,000
Completed: 2017

PROJECT SUMMARY
• Repair of damaged levee slope of Conejo Creek.
• Removal undermined riprap revetment and place
new revetment material.
• Remove and replace deficient bank lining,
excavation, rock riprap, compacted backfill, water
pollution & diversion control, removal water,
shoring
Conejo Creek Maintenance
Conejo Creek Maintenance Ventura, CA

Lara Sass, President
Ms. Sass has 40 years of heavy-civil and marine construction experience. Ms. Sass is responsible for estimating, scheduling, project control, and administration for environmental, massexcavation/grading, marine public, and private work projects.

She is experienced in estimating, negotiation, and
performance of large and small contracts and subcontracts, including hard-dollar, and design-build contracts for
government agencies and private clients.

Misha Fyodorov, CEO & General Manager
Mr. Misha Fyodorov has 40 years of heavy-civil construction experience encompassing all aspects of construction project execution. Mr. Fyodorov is responsible for overall company performance including estimating, construction management, procurement and contract administration, safety program, equipment management, hiring and employee training. Mr.

Fyodorov supervises multiple, complex, medium and largescale projects involving hundreds of craft labor, several project managers, project engineers and field superintendents. As a Project Manager, Mr. Fyodorov has a proven record in
managing complex government, municipal and private work including construction of bridges, highways, airport, marine, landfills, flood control, mass excavation, pipe-line, mechanical, and remediation projects in the Western United States.

O U R T E A M L E A D E R S
Antonio Zori, Senior Project Manager
Mr. Antonio Zori is a results-oriented professional with over 25 years of experience in construction management and direction of different types of complex projects (public and private contracts). Specialist in increasing profits, reducing expenses and execution time using different construction methods and value engineering, maintaining the quality and scope of project. Highly qualified in analyzing production and deviation costs, scheduling optimization, team management and successful negotiation with clients and subcontractors.

Anton Fyodorov, General Project Manager
With 18 years of heavy-civil construction experience, Mr. Anton Fyodorov oversees company performance, managing various aspects such as estimating, construction, procurement, safety, equipment, hiring, and training. He leads multiple large-scale projects, demonstrating expertise in government, municipal, and private construction, covering bridges, highways, airports, marine structures, landfills, flood control, mass excavation, pipelines, mechanical, and remediation projects in the Western United States.

O U R T E A M L E A D E R S

C O N S T U C T I O N E N G I N E E R I N G
Zusser has construction-focused engineering, providing seamless solutions that smoothly translate blueprints into completed projects.

DIGITIAL DESIGN DRAWINGS (2D & 3D)
Zusser utilizes a range of advanced heavy-civil design software to produce both 2D and 3D designs and drawings specifically tailored for construction applications. This enables us to employ sophisticated tools and technologies to enhance the precision and effectiveness of our design processes.

Zusser forwards its finalized designs to field crews for seamless implementation and to material suppliers and fabricators to ensure precise construction and manufacturing processes. This streamlined communication and distribution of design information facilitate accurate and efficient execution in both construction and fabrication phases.

EARTH WORK CALCULATIONS & OPTIMIZATION
Zusser employs specialized software to accurately calculate earthwork quantities, focusing on efficiently managing the import and export of soil and determining the optimal haul routes on construction sites. This dedicated software ensures precise earthwork planning and enhances overall project efficiency.

C O N S T U R U C T I O N S U R V E Y I N G
Zusser is equipped with cutting-edge, in-house construction survey equipment that plays a pivotal role in ensuring accuracy and efficiency throughout the construction process. This advanced equipment serves various purposes:

Site Investigation: Prior to commencing a construction project, Zusser can examine the site to gather crucial information about topography, soil conditions, drainage patterns, and existing structures.

Staking and Layout: Zusser is able establish and mark critical reference points on the site, including property boundaries, building corners, and utility locations.

Monitoring and Verification: Throughout the construction process, Zusser continuously checks on the position, elevation, and alignment of structures are conducted to promptly identify and rectify any deviations.

As-Built Surveying: Upon project completion, Zusser can conduct a final survey to document the finished works, creating an as-built record.

By leveraging state-of-the-art survey equipment such as Drone Mapping and our Trimble GPS/ GNSS system, Zusser ensures that precise measurements and spatial data guide decision-making, minimize errors, and uphold quality control from project initiation to completion.
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ALEXANDER B. CVITAN (SBN 81746)
E-mail: [email protected]
MARSHA M. HAMASAKI (SBN 102720)
E-mail: [email protected]
PETER A. HUTCHINSON (SBN 225399)
E-mail: [email protected]
REICH, ADELL & CVITAN, A Professional Law Corporation
3550 Wilshire Blvd., Suite 2000
Los Angeles, California 90010-2421
Telephone: (213) 386-3860; Facsimile: (213) 386-5583
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CONSTRUCTION LABORERS

TRUST FUNDS FOR SOUTHERN

CALIFORNIA ADMINISTRATIVE
COMPANY, a Delaware limited
liability company,
Plaintiff,
v.

NATIONWIDE CONTRACTING
SERVICES, INC, a California
corporation doing business as

NATIONWIDE GENERAL

CONSTRUCTION SERVICES,
Defendant.

CASE NO.:

COMPLAINT FOR:

1. MONETARY DAMAGES DUE TO

EMPLOYEE BENEFIT PLANS

2. SPECIFIC PERFORMANCE OF

OBLIGATION TO PRODUCE

RECORDS FOR AUDIT
[29 U.S.C. §§ 185, 1132(a)(3),
1132(g)(2) and 1145]
Plaintiff, Construction Laborers Trust Funds for Southern California Administrative Company, a Delaware limited liability company, alleges:

JURISDICTION AND VENUE

1. This action is brought by a fiduciary administrator on behalf of employee benefit plans against an employer. It is brought to enforce of the terms of Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 1 of 13 Page ID #:1 474847.3 2
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collective bargaining agreements and plan trust agreements to: (a) recover fringe benefit contributions and related damages due by the employer on behalf of its employees (Claim 1); and (b) compel the employer to fully produce its records for audit to determine if additional amounts are due (Claim 2). This Court has jurisdiction pursuant to: sections 502(g)(2) and 515 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(g)(2) and 1145; section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3); and section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Pursuant to ERISA section 502(e)(2), 29 U.S.C. § 1132(e)(2), venue is proper in this district for each of the following reasons: the plans are administered in this district; the employer's performance and breach took place in this district; and the employer resides or may be found in this district.

PARTIES

2. Plaintiff ("CLTF") is an administrator of, agent for collection for, a fiduciary to, and brings this action on behalf of the following employee benefit plans: Laborers Health and Welfare Trust Fund for Southern California; Construction Laborers Pension Trust for Southern California; Laborers Annuity Plan for Southern California; Construction Laborers Vacation Trust for Southern California; Laborers Training and Re-Training Trust Fund for Southern California; Fund for Construction Industry Advancement; Center for Contract Compliance; Laborers Contract Administration Trust Fund for Southern California; Laborers' Trusts Administrative Trust Fund for Southern California; and Southern California Partnership for Jobs Trust Fund (collectively "Trust Funds"). The Trust Funds are express trusts created by written agreements; employee benefit plans within the meaning of ERISA section 3(3), 29 U.S.C. § 1002(3); and multi-employer plans within the meaning of ERISA section 3(37)(A), 29 U.S.C. § 1002(37)(A). The Trust Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 2 of 13 Page ID #:2 474847.3 3
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Funds exist pursuant to ERISA and LMRA section 302, 29 U.S.C. § 186. CLTF and the Trust Funds' principal places of business are in the County of Los Angeles, State of California.

3. CLTF is a fiduciary as to the Trust Funds in that it:
a. Exercises discretionary authority or discretionary control with respect to the collection of delinquent (or possibly delinquent) fringe benefit contributions due to the Trust Funds, including but not limited to discretion in auditing employers, deciding what claims to assert, acting as agent of the Trust Funds in asserting claims, waiving liquidated damages, settling claims, and releasing claims; and
b. Exercises authority or control with respect to management or disposition of assets of the Trust Funds, including but not limited to receiving delinquent contributions collected and holding them in a bank account in its own name over which it has check-writing authority, and then exercising discretion in allocating those assets among the different Trust Funds, different participants, different time-periods and different jobs.

4. CLTF is informed and believes, and on that basis alleges, that defendant Nationwide Contracting Services, Inc (“Employer”) is a corporation organized and existing under the laws of the State of California that does business as Nationwide General Construction Services; has a principal place of business in the City of Fountain Valley, County of Orange, State of California; and does, or at all relevant times did, business in the State of California as a construction contractor in an industry affecting interstate commerce.

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AGREEMENTS

5. Various public entities in Southern California have entered into project labor agreements (also known a project stabilization agreements, continuity of work agreements, and community workforce agreements) with unions and employer associations establishing terms and conditions of work on public works projects. In each case, by, and as a condition of, performing work on such a project, contractors must abide by the terms of the applicable project labor agreement, including terms related to the payment of employee wages and fringe benefits. The Employer has performed work on such public works projects, including at least those of the Los Angeles Unified School District (governed by the Los Angeles Unified School District Project Stabilization Agreement) and the City of Santa Ana (governed by the City of Santa Ana Community Workforce Agreement). Many project labor agreements, including the two listed above in this paragraph (referenced herein together as “Project Labor Agreements”), are signed by the Laborers Union and other labor unions (as parties to the agreement) and incorporate the unions’ respective collective bargaining agreements by reference. The Laborers Union collective bargaining agreements, which are among those incorporated by reference into the Project Labor Agreements, are known as the Construction Master Labor Agreements, including one known as the Southern California Master Labor Agreement. In addition to working under project labor agreements, the Employer executed a collective bargaining agreement with the Laborers Union binding it directly to the Construction Master Labor Agreements for work on one or more specific projects, including one for work on a project of the City of Santa Barbara known as the Central Library Renovation project (“Santa Barbara Public Works Project Agreement”). The Los Angeles Unified School District Project Stabilization Agreement, City of Santa Ana Community Workforce Agreement, Santa Barbara Public Works Project Agreement, and any other agreement binding the Employer to Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 4 of 13 Page ID #:4 474847.3 5
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the Construction Master Labor Agreements, as well as the Construction Master Labor Agreements themselves, are identified as the “Collective Bargaining Agreements” where referenced collectively hereinafter.

6. Pursuant to the Collective Bargaining Agreements, employers become – and the Employer became and is – bound to the terms and conditions of the various trust agreements that created each of the Trust Funds ("Trust Agreements"). When referenced collectively hereinafter, the Collective Bargaining Agreements and Trust Agreements are referred to as "the Agreements."

7. Under the terms of the Agreements, employers, including the Employer, are required to submit monthly fringe benefit contributions ("Monthly Contributions") to the Trust Funds for all hours worked by (or paid for) their employees who perform work covered by the Agreements ("Covered Work").

8. Under the terms of the Agreements, employers, including the Employer, are required to submit to the Trust Funds, with their Monthly Contributions, monthly reports, itemized by project, listing the names of their employees who performed Covered Work, their Social Security numbers, the hours of work performed by (or paid for) each, and the resulting Monthly Contributions due for them ("Monthly Reports"). The Trust Funds rely on Monthly Reports – and the accuracy of those reports – to determine the amount of Monthly Contributions due to the Trust Funds by employers and the credit toward fringe benefits to be allocated to their employees.

9. The Agreements provide for the payment of interest on delinquent Monthly Contributions from the date due at a rate set by the trustees of the Trust Funds. The trustees have set that rate at five percent (5%) above the prime rate set Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 5 of 13 Page ID #:5 474847.3 6
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by the Federal Reserve Board of San Francisco, California. The Agreements also provide for the payment of liquidated damages for each month of delinquent Monthly Contributions or Monthly Reports, for each Trust Fund separately, in the amount of twenty percent (20%) of the delinquent Monthly Contributions due to the Trust Fund or $25, whichever is greater (except with respect to the Laborers Contract Administration Trust Fund for Southern California, which assesses liquidated damages at the greater of $20 or ten percent (10%)). In addition, employers are required to pay fees for the submission of dishonored checks.

10. The failure of employers to pay Monthly Contributions when due causes damages to the Trust Funds and its participants beyond the value of the unpaid Monthly Contributions, which are difficult to quantify. Apart from the fees and costs incurred in litigation, the harm caused includes, but is not limited to, the administrative costs of processing and collecting delinquencies, the costs of adjusting benefit credits and notifying participants, the additional burden placed on contractors who faithfully pay their contributions, and the burden upon participants and beneficiaries who may be unable to qualify for benefits they may have otherwise been entitled to had it not been for the delinquency of their employer. The liquidated damages provision of the Agreements was meant to compensate for the loss to the Trust Funds, which is incurred even if the Monthly Contributions for a given month are later paid. It is based on the Trust Funds' ratio of collection costs over amounts collected, which are regularly reported to the Trust Funds' trustees.

11. Under the terms of the Agreements, employers, including the Employer, agree to subcontract Covered Work only to entities that are signatory to a Construction Master Labor Agreement applicable to the work performed. If an employer subcontracts Covered Work to a non-signatory entity, the employer becomes liable to the Trust Funds in an amount equal to the Monthly Contribution s Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 6 of 13 Page ID #:6 474847.3 7
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that would have been due if the entity had been signatory (plus interest, liquidated damages and audit fees thereon).

12. Under the terms of the Agreements, employers, including the Employer, agree not to subcontract Covered Work to entities that are delinquent to the Trust Funds. If an employer subcontracts Covered Work to such an entity the employer becomes under the terms of the Agreements liable to the Trust Funds for the Monthly Contributions due by the subcontractor and any lower-tier subcontractors.

13. The Agreements provide the Trust Funds with specific authority to examine the payroll and business records of employers, including the Employer, to determine whether they have reported all hours worked by (or paid for) their employees who perform Covered Work, and whether they have paid the appropriate Monthly Contributions and other amounts due by them to the Trust Funds. The Agreements further provide that employers, including the Employer, must maintain records sufficient for the Trust Funds to verify proper Monthly Reporting, and, where there has been inaccurate Monthly Reporting, to determine the additional amounts due, and that the employer must pay the Trust Funds' audit fees if it is delinquent to the Trust Funds. The Trust Funds have delegated the authority to perform such audits to CLTF.

14. The Agreements require employers to pay the Trust Funds' attorneys’ fees and costs of litigation to enforce the Agreements' foregoing terms, including the Monthly Contribution, Monthly Reporting, subcontracting and audit provisions. ///
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FIRST CLAIM FOR RELIEF
For Monetary Damages Due to Employee Benefit Plans
[29 U.S.C. §§ 185, 1132(g)(2) and 1145]

15. CLTF repeats, realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 14 above as if fully set forth here.

16. The Employer has failed to timely submit Monthly Contributions due by it to the Trust Funds. Pursuant to the Agreements and ERISA sections 502(g)(2) and 515, 29 U.S.C. §§ 1132(g)(2) and 1145, the Employer owes the Trust Funds a known amount of $76,908.33 for unpaid or late-paid Monthly Contributions and related damages (and/or late-submitted Monthly Reports) for some or all of the months of December 2018 through September 2021 (“Known Delinquency”). The Known Delinquency consists of: $53,798.66 in unpaid Monthly Contributions; $9,122.50 in interest through March 6, 2023; $13,667.17 in liquidated damages; and $320.00 in audit fees.

17. CLTF will establish by proof at the time of trial or through dispositive motion the Known Delinquency and any additional amounts determined to be due to the Trust Funds by the Employer, including any additional Monthly Contributions, interest, liquidated damages, audit fees, fees for the submission of checks not honored by the bank upon which they were drawn, attorneys’ fees and costs, and amounts owed as a result of work performed by subcontractors of the Employer (or lower-tier subcontractors). If deemed necessary by the Court, CLTF will amend its complaint to add any additional amounts determined to be due. Any and all conditions to the Employer’s obligations under the Agreements to pay the Known Delinquency and any additional amounts due under the Agreements to the Trust Funds have been met.

Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 8 of 13 Page ID #:8 474847.3 9
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18. A portion of the Known Delinquency, including all of the amounts due for months during the period December 2018 through November 2019 (and a portion of amounts due for subsequent months), was discovered to be due a review of Employer records produced in response to a request by CLTF for it to submit to an audit, the first of which were received by CLTF in January 2021. Sufficient records were not produced for the audit to be completed. A partial audit was completed in April 2022.

SECOND CLAIM FOR RELIEF
For Specific Performance of Obligation to Produce Records for Audit [29 U.S.C. §§ 1132(a)(3) and 1132(g)(2)(E)]

19. CLTF repeats, realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 18 above as if fully set forth here.

20. CLTF has requested that the Employer produce its records for audit.

The Employer has failed to fully produce its records for audit. CLTF requests that the Court exercise its authority under ERISA sections 502(a)(3) and (g)(2)(E), 29 U.S.C. §§ 1132(a)(3) and (g)(2)(E), to order the Employer to comply with its obligation under the Agreements and ERISA to fully produce its books and records in order for CLTF to complete an audit to determine if additional amounts are due.

21. An award of attorneys’ fees and costs is provided for by Agreements and under ERISA sections 502(g)(1) and/or (g)(2), 29 U.S.C. § 1132(g)(1) and/or (g)(2). ///
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WHEREFORE, CLTF prays for judgment as follows:

ON CLTF'S FIRST CLAIM FOR RELIEF
[For Monetary Damages Due to Employee Benefit Plans]
A. For $53,798.66 in unpaid Monthly Contributions, as required by the Agreements and 29 U.S.C. § 1132(g)(2)(A).

B. For $9,122.50 in interest through March 6, 2023 on unpaid or late paid Monthly Contributions at the rate of five percent above the variable prime rate set by the Federal Reserve Board of San Francisco, California, plus such additional interest that has or does hereafter accrue from March 6, 2023, as required by the Agreements and 29 U.S.C. § 1132(g)(2)(B).

C. For $13,667.17 in liquidated damages for unpaid and late-paid Monthly Contributions at, for each of the Trust Funds separately, the greater of 20% or $25 (except with respect to the Laborers Contract Administration Trust Fund for Southern California, for which liquidated damages are sought at the greater 10% or $20), as required by the Agreements and 29 U.S.C. § 1132(g)(2)(C).

D. For $320.00 in audit fees, as required by the Agreements and 29 U.S.C. § 1132(g)(2)(E).

E. For, according to proof, any additional Monthly Contributions, interest, liquidated damages, audit fees, insufficient funds check fees, and amounts owed as a result work performed by any subcontractors of the Employer (or lower-tier subcontractors) determined to be due, pursuant to the Agreements and 29 U.S.C. §§ 1132(g)(2) and 1145.

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F. For reasonable attorneys’ fees and costs of suit, as required by the Agreements and 29 U.S.C. § 1132(g)(2)(D).

G. For such other relief that this Court deems appropriate, pursuant to any authority of the Court, including but not limited to the authority established by 29 U.S.C. §§ 1132(g)(2)(E) and 1132(a)(3).

ON CLTF'S SECOND CLAIM FOR RELIEF
[For Specific Performance of Obligation to Produce Records for Audit] A. For the issuance of injunctive relief pursuant to the Agreements and 29 U.S.C. §§ 1132(g)(2)(E) and/or 1132(a)(3) ordering the Employer and its managing officers, managing employees, agents and successors, as well as all those in active concert or participation with any one or more of them, to submit to an audit of the Employer’s records from at least December 1, 2018 forward, to fully cooperate with CLTF with respect to the audit in order for CLTF to determine the total amount due to the Trust Funds by the Employer, and, specifically, to produce to CLTF the following payroll and business records – and any other records determined by CLTF to be necessary to conduct a full audit – for inspection, examination and copying:

A.1. All of the Employer’s payroll and employee records, as well as any other records that might be relevant to a determination of the work performed by the Employer, its employees, its subcontractors, its lower-tier subcontractors and the employees of the Employer’s subcontractors and lower-tier subcontractors, including but not limited to payroll journals, employee earnings records, certified payroll records, payroll check books and stubs, cancelled payroll checks, payroll time cards and state and federal tax returns (and all other state and federal tax records), as well Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 11 of 13 Page ID #:11 474847.3 12
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as labor distribution journals and any other records that might be relevant to an identification of the employees who performed work for the Employer, its subcontractors or lower-tier subcontractors, or which might be relevant to a determination of the projects on which the Employer, its employees, its subcontractors, lower-tier subcontractors or the employees of its subcontractors or lower-tier subcontractors performed work, including any records that provide the names, addresses, Social Security numbers, job classification or the number of hours worked by any one or more employee;
A.2. All of the Employer’s job files for each contract, project or job on which the Employer, its employees, its subcontractors, its lower-tier subcontractors or the employees of its subcontractors or lower-tier subcontractors worked, including but not limited to all correspondence, agreements and contracts between the Employer and any general contractor, subcontractor, owner, builder or developer, as well as all field records, job records, notices, project logs, supervisors' diaries and notes, employees' diaries and notes, memoranda, releases and any other records that relate to the supervision of the Employer’s employees, its subcontractors, its lowertier subcontractors or the employees of its subcontractors and lower-tier subcontractors, or the projects on which the Employer, its employees, its subcontractors, its lower-tier subcontractors or the employees of its subcontractors or lower-tier subcontractors performed work;
A.3. All of the Employer’s records related to cash receipts, including but not limited to the Employer’s cash receipts journals, accounts receivable journals, accounts receivable subsidiary ledgers and billing invoices for all contracts, projects and jobs on which the Employer, its employees, its subcontractors, its lower-tier subcontractors or the employees of its subcontractors or lower-tier subcontractors performed work;
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A.4. All of the Employer’s bank statements, including but not limited to those for all checking, savings and investment accounts; A.5. All of the Employer’s records related to disbursements, including but not limited to vendors' invoices, cash disbursement journals, accounts payable journals, check registers and all other records which indicate disbursements; A.6. All collective bargaining agreements between the Employer and any trade union, and all records of contributions by the Employer to any trade union trust fund; and
A.7. All records related to the formation, licensing, renewal or operation of the Employer.

B. For reasonable attorneys’ fees and costs of suit, as required by the Agreements and provided for under 29 U.S.C. § 1132(g)(1) and/or (g)(2).

C. For such other relief that this Court deems appropriate, pursuant to any authority of the Court, including but not limited to the authority established by 29 U.S.C. §§ 1132(g)(2)(E) and 1132 (a)(3).

DATED: March 21, 2023 REICH, ADELL & CVITAN
A Professional Law Corporation
By: /s/ Peter A. Hutchinson
PETER A. HUTCHINSON
Attorneys for Plaintiff
Case 8:23-cv-00521 Document 1 Filed 03/22/23 Page 13 of 13 Page ID #:13 - 1 -

COMPLAINT FOR MONEY
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LAW OFFICES OF KENNETH J. FREED
KENNETH J. FREED, ESQ. [SBN. 125349]
JOSEPH JYOO, ESQ. [SBN. 321286]
4340 Fulton Ave., Third Floor
Sherman Oaks, California 91423
(818) 990-0888
(818) 990-1047 Facsimile
[email protected]
[email protected]
Attorneys for Plaintiff
CREDITORS ADJUSTMENT BUREAU, INC.

Our File No. 6085481

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE

CENTRAL JUSTICE CENTER, UNLIMITED CIVIL
CREDITORS ADJUSTMENT BUREAU, INC.,
Plaintiff(s),
vs.

NATIONWIDE CONTRACTING SERVICES,

INC AKA NATIONWIDE CONTRACTING

SERVICES INC AKA NATIONWIDE
CONTRACTING SERVICES, INC. DBA

NATIONWIDE GENERAL CONSTRUCTION
SERVICES; and DOES 1 through 10, Inclusive,
Defendants.
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Case No.:

COMPLAINT FOR MONEY
(Insurance Premiums)

1. BREACH OF CONTRACT

2. OPEN BOOK ACCOUNT

3. ACCOUNT STATED

4. REASONABLE VALUE

AMOUNT OF DEMAND
$140,714.83
Plaintiff, on information and belief, alleges as follows:

DEFINITIONS AND PRELIMINARY ALLEGATIONS

1. As used herein, the term "Plaintiff's Assignor" refers to STATE COMPENSATION INSURANCE FUND.

2. As used herein, the term "Debt" refers to the sum of $140,714.83 for Policy No. 9240973-

20. 3. As used herein, the term "Due Date" refers to May 27, 2022.

4. Plaintiff's Assignor is a corporation and an insurance issuer and underwriter, licensed under the laws of the State of California. Prior to the commencement of this action, the claims herein sued upon Electronically Filed by Superior Court of California, County of Orange, 12/09/2022 12:32:38 PM. 30-2022-01296113-CU-BC-NJC - ROA # 2 - DAVID H. YAMASAKI, Clerk of the Court By Y. Ramirez, Deputy Clerk. - 2 -

COMPLAINT FOR MONEY
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were assigned to Plaintiff by Plaintiff's Assignor for collection purposes only and Plaintiff, as assignee, has not accepted any of the obligations, debts or liabilities of Plaintiff’s Assignor.

5. Plaintiff is a corporation organized and existing under the laws of the State of California and is a collection agency.

6. The true names and capacities, whether individual, corporate, associate or otherwise, of the Defendants herein designated DOES 1 through 10, inclusive, are unknown to Plaintiff. Plaintiff will ask leave of the Court to amend this Complaint to show their true names and capacities when ascertained.

7. The obligation and claims sued upon herein were made and entered into and are due and payable in the above-mentioned Judicial District and County, State of California, and are not subject to the provisions of Sections 1812.10 and 2984.4 of the California Civil Code and Section 395(b) of the California Civil Code of Procedure.

8. At all times herein mentioned, the Defendants were agents and employees of the other Defendants and were acting within the course and scope of such agency and employment.

9. Plaintiff is informed and believes and thereon alleges that each Defendant is and at all times herein mentioned was, an alter ego and/or successor in interest of each other Defendant, in order to perpetrate a fraud and to accomplish other wrongful and inequitable purposes, such that the Court must disregard the separate entities and treat each entities’ acts as set forth herein as if they were done by each of these named Defendants.

FIRST CAUSE OF ACTION (BREACH OF CONTRACT)
(Against All Defendants; and DOES 1 through 10, Inclusive)

10. Plaintiff repeats, realleges and incorporates herein by reference paragraphs 1 through 9 as though fully set forth herein.

11. Plaintiff’s Assignor and Defendants entered into a written agreement wherein Plaintiff’s Assignor agreed to provide a policy of workers compensation insurance to the Defendants, bearing Policy No. 9240973-20 (covering the period of November 3, 2020 through November 3, 2021) and Defendants agreed to pay premiums in accordance with the terms and conditions of said policy which provided for payment of premiums.

12. Said Defendants accepted said workers compensation insurance policy bearing Policy No. - 3 -

COMPLAINT FOR MONEY
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9240973-20, and, in consideration thereof, agreed to the terms and conditions set forth therein which provided payment of premiums.

13. Plaintiff’s Assignor has performed everything on its part to be performed under said insurance policy.

14. Defendants breached that part of Policy No. 9240973-20 requiring the payment of the premium assessed by Plaintiff’s Assignor at the conclusion of Policy No. 9240973-20 in the amount of $140,714.83. Said balance has not been paid although payment has been demanded, and there is now due, owing and unpaid from the Defendants to Plaintiff said Debt, together with interest thereon at the rate of ten percent (10%) per annum since demanded on the Due Date as set forth in Paragraph 3 herein.

SECOND CAUSE OF ACTION (OPEN BOOK ACCOUNT)
(Against All Defendants; and DOES 1 through 10, Inclusive)

15. Plaintiff repeats, realleges and incorporates herein by reference paragraphs 1 through 9 as though fully set forth herein.

16. Within four years preceding the commencement of this action, Defendants, and each of them, became indebted to Plaintiff’s Assignor in the amount of the Debt for a balance due on an open book account for goods sold and delivered and/or services rendered by Plaintiff’s Assignor to Defendants at Defendants’ request. Said Debt has not been paid although payment has been demanded, and said Debt is now due, owing and unpaid, together with interest thereon at the rate of ten percent (10%) per annum since demanded on the Due Date.

17. The Debt sued upon herein was incurred on or after January 1, 1987 and is subject to the provisions of the California Civil Code Section 1717.5 and that Plaintiff is entitled to be awarded attorney’s fees pursuant to said section.

THIRD CAUSE OF ACTION (ACCOUNT STATED)
(Against All Defendants; and DOES 1 through 10, Inclusive)

18. Plaintiff repeats, realleges and incorporates herein by reference paragraphs 1 through 9 as though fully set forth herein.

19. Within four years preceding the commencement of this action, an account was stated by and between Plaintiff’s Assignor and Defendants, and each of them, wherein it was ascertained and agreed - 4 -

COMPLAINT FOR MONEY
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that said Defendants owed said Debt to Plaintiff’s Assignor together with interest thereon at the rate of ten percent (10%) per annum from the Due Date.

20. The Debt sued upon herein was incurred on or after January 1, 1987 and is subject to the provisions of the California Civil Code Section 1717.5 and that Plaintiff is entitled to be awarded attorney’s fees pursuant to said section.

FOURTH CAUSE OF ACTION (REASONABLE VALUE)
(Against All Defendants; and DOES 1 through 10, Inclusive)

21. Plaintiff repeats, realleges and incorporates herein by reference paragraphs 1 through 9 as though fully set forth herein.

22. Within two years preceding the commencement of this action Defendants, and each of them, became indebted to Plaintiff’s Assignor for the reasonable value of goods sold and delivered and/or services rendered by Plaintiff’s Assignor to said Defendants’ request, the Debt was and is the reasonable value of said goods, and/or services. No part of said Debt has been paid although payment has been demanded, and said Debt is now due, owing and unpaid, together with interest at the rate of ten percent (10%) per annum since demanded on the Due Date.

23. The Debt sued upon herein was incurred on or after January 1, 1987 and is subject to the provisions of the California Civil Code Section 1717.5 and that Plaintiff is entitled to be awarded attorney’s fees pursuant to said section.

WHEREFORE, Plaintiff prays for judgment against the Defendants and each of them, as follows:

AS TO THE FIRST CAUSE OF ACTION

1. As to Policy No. 9240973-20, for a sum of $140,714.83 together with interest thereon at the rate of ten percent (10%) per annum from May 27, 2022;

2. For costs of suit herein; and

3. For such other and further relief as the Court may deem just and proper.

AS TO THE SECOND, THIRD AND FOURTH CAUSES OF ACTION

1. As to Policy No. 9240973-20, for a sum of $140,714.83 together with interest thereon at the rate of ten percent (10%) per annum from May 27, 2022;

2. For costs of suit incurred herein;
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COMPLAINT FOR MONEY
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3. For attorney’s fees pursuant to California Civil Code Section 1717.5; and

4. For such other and further relief as the Court may deem just and proper.

DATED: December , 2022 LAW OFFICES OF KENNETH J. FREED
BY: ______________________________________
JOSEPH JYOO, ESQ.

Attorneys for Plaintiff
CREDITORS ADJUSTMENT BUREAU, INC.
[Electronic Signature per C.R.C. 2.257(a)]
8 - 1 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
A NTON B LVD ., S UITE 150
C OSTA
M ESA CA 92626
TELEPHONE: (949) 269 - 7709
Christopher M. Engels, Esq (Bar No. 304855)
Sean B. Janzen, Esq. (Bar No. 293246)

ENGELS LAW APC
555 Anton Blvd, Suite 150
Costa Mesa CA 92626
(949) 269-7709
[email protected]
[email protected]
Attorneys for Plaintiffs Alex Song and Traci Doan,
individually and as Trustees of Song Doan Nevada Trust

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE, NORTH JUSTICE CENTER
ALEX SONG, an individual, TRACI DOAN,
an individual; ALEX SONG and TRACI
DOAN as Trustees of SONG DOAN

NEVADA TRUST,
Plaintiffs,
vs.

NATIONWIDE CONTRACTING
SERVICES, INC., D.B.A. NATIONWIDE
GENERAL CONSTRUCTION SERVICES, a
California Corporation; ELIE NADER, an
individual; HUDSON INSURANCE
COMPANY, a Delaware Corporation;
CHARLIE PLUMBING, an unknown business
entity; MD CUSTOM WOOD WORK, an
unknown business entity; SPECIALIZED
FIRE PROTECTION, INC., a California
Corporation; THOMAS STEWART dba TBS
CONSTRUCTION, a Sole Proprietorship;
NAVIGATORS INSURANCE COMPANY, a
New York Corporation; CAL PRIME
STRUCTURES, INC., a California
Corporation dba CAL PRIME GLASS AND
MIRROR; BUSINESS ALLIANCE
INSURANCE COMPANY, a California
Corporation; ARCE ELECTRIC, a California
Corporation; AMERICAN CONTRACTORS
INDEMNITY COMPANY, a California
Corporation; REGAL INTERIOR, INC., a
California Corporation dba REGAL
PLASTERING; RG DECK COATING, INC.,
Lead Case No:
30-2023-01326343-CU-BC-NJC
Consolidated with Case No:
30-2023-01335746-CU-BC-CJC

FIRST AMENDED COMPLAINT FOR

DAMAGES

1. Violation of Building Standards
Civil Code §§ 896 and 897

2. Negligence

3. Breach of Implied Warranty

4. Breach of Express Warranty

5. Breach of Contract

6. Intentional Misrepresentation - Fraud

7. Conversion

8. Violation of Business and
Professionals Code §7164

9. Violation of Business and
Professionals Code §7031

10. Action on Surety Bond Business &
Professions Code § 7071.5

11. Action to Expunge Mechanic’s Lien
Civil Code § 3118
Electronically Filed by Superior Court of California, County of Orange, 08/22/2023 05:23:00 PM. 30-2023-01326343-CU-BC-NJC - ROA # 47 - DAVID H. YAMASAKI, Clerk of the Court By R. Baker, Deputy Clerk. - 2 -

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E NGELS LAW APC
555
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C OSTA
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TELEPHONE: (949) 269 - 7709
a California Corporation; DON R. WEILER,
an individual; MICROBIAL SOLUTIONS,
INC., a California Corporation dba OC
DECKS; CALIFORNIA CUSTOM LIFT,
INC., a California Corporation; THE OHIO
CASUALTY INSURANCE COMPANY, a
New Hampshire Corporation; SO CAL
ROLLING SHUTTER, LLC, a California
Limited Liability Company; SURETEC
INSURANCE COMPANY, a Texas
Corporation; ANDREW SMITH, an
individual; and DOES 1-100, inclusive,
Defendants. ______________________________________
AND ALL RELATED CROSS-ACTIONS.

PLAINTIFF ALEX SONG demands a jury trial and complains of Defendants and each of them, as follows:

GENERAL ALLEGATIONS

1. Plaintiff ALEX SONG (“SONG”) is an individual residing in the County of Orange, California.

2. Plaintiff TRACI DOAN (“DOAN”) an individual residing in the County of Orange, California

3. Plaintiff ALEX SONG and TRACI DOAN are Trustees of SONG DOAN NEVADA TRUST (“SONG DOAN TRUST”), and the owners of real property located at 204 2nd St., Huntington Beach, CA.

4. Plaintiffs hired NATIONWIDE CONTRACTING SERVICES, INC.

D.B.A. NATIONWIDE GENERAL CONSTRUCTION SERVICES (“NATIONWIDE”), a California Corporation doing business in the City of Huntington Beach doing business under California Contractors State License Board License No. 1031246, to build new residential construction at 204 2nd St., Huntington Beach, CA, County of Orange, State of California (referred to herein as “PROJECT”).

5. Plaintiffs are informed, believe, and based on such information and belief allege that Defendant ELIE NADER (“NADER”), an individual, is and at all times - 3 -

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TELEPHONE: (949) 269 - 7709
mentioned in this Complaint was the Responsible Managing Officer, CEO, and President of NATIONWIDE.

6. Plaintiffs are informed, believe, and based on such information and belief allege that at all times relevant, NADER was the alter ego of NATIONWIDE due to the fact that NADER failed to observe corporate formalities, disregarded the distinction between himself and the corporate defendant, and the corporate defendant was a mere shell and conduit for NADER’s affairs. Upon information and belief, at all times relevant, there was such a unity of interest and ownership between NADER and NATIONWIDE that the separate personalities of NATIONWIDE and NADER no longer exist. Further, it would sanction a fraud or promote injustice to uphold the corporate fiction of NATIONWIDE and not hold NADER personally liable for the misconduct he performed through the corporate entity defendant.

7. Defendant HUDSON INSURANCE COMPANY (“HUDSON”) has
underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 30026732 in the amount of $15,000.00 on the California State Contractor’s License of Defendant NATIONWIDE and/or NADER, License Number 1031246, and as such, assumed the liability of NATIONWIDE and/or NADER to the extent of the penal sum of the bond.

8. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant CHARLIE PLUMBING (“CHARLIE PLUMBING”) was an unknown business entity doing business in the County of Orange, California, who furnished work and/or materials on the PROJECT.

9. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant MD CUSTOM WOOD WORK (“MD”) was an unknown business entity doing business in the County of Orange, California, who furnished work and/or materials on the PROJECT.

10. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant SPECIALIZED FIRE PROTECTION, INC. - 4 -

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TELEPHONE: (949) 269 - 7709
(“SPECIALIZED”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 1005885, who furnished work and/or materials on the PROJECT.

11. Defendant HUDSON has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 30006906 in the amount of $15,000.00 on the California State Contractor’s License of Defendant SPECIALIZED, License Number 1005885, and as such, assumed the liability of SPECIALIZED to the extent of the penal sum of the bond.

12. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant THOMAS STEWART dba TBS CONSTRUCTION (“TBS”) was a Sole Proprietor doing business in the County of Orange, California, under California Contractors State License Board License No. 1012469, who furnished work and/or materials on the PROJECT.

13. Defendant NAVIGATORS INSURANCE COMPANY (“NAVIGATORS”) has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number NAV00020338 in the amount of $15,000.00 on the California State Contractor’s License of Defendant TBS, License Number 1012469, and as such, assumed the liability of TBS to the extent of the penal sum of the bond.

14. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant CAL PRIME STRUCTURES, INC., dba CAL PRIME GLASS AND MIRROR (“CAL PRIME”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 1075613, who furnished work and/or materials on the PROJECT.

15. Defendant BUSINESS ALLIANCE INSURANCE COMPANY
(“BUSINESS ALLIANCE”) has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number G110413096471in the amount of $15,000.00 on the California State Contractor’s License of Defendant CAL PRIME, License Number - 5 -

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1075613, and as such, assumed the liability of CAL PRIME to the extent of the penal sum of the bond.

16. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant ARCE ELECTRIC (“ARCE”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 977091, who furnished work and/or materials on the PROJECT.

17. Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY
(“AMERICAN”) has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 100531324 in the amount of $15,000.00 on the California State Contractor’s License of Defendant ARCE, License Number 977091, and as such, assumed the liability of ARCE to the extent of the penal sum of the bond.

18. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant REGAL INTERIOR, INC., dba REGAL PLASTERING (“REGAL”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 1000371, who furnished work and/or materials on the PROJECT.

19. Defendant BUSINESS ALLIANCE has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number G100513078379 the amount of $15,000.00 on the California State Contractor’s License of Defendant REGAL, License Number 1000371, and as such, assumed the liability of REGAL to the extent of the penal sum of the bond.

20. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant RG DECK COATING, INC. (“RG”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 975675, who furnished work and/or materials on the PROJECT.
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E NGELS LAW APC
555
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TELEPHONE: (949) 269 - 7709

21. Defendant NAVIGATORS has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number NAV00015704 in the amount of $15,000.00 on the California State Contractor’s License of Defendant RG, License Number 975675, and as such, assumed the liability of RG to the extent of the penal sum of the bond.

22. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DON R. WEILER (“WEILER”) was an individual doing business in the County of Orange, California, under California Contractors State License Board License No. 586459, who furnished work and/or materials on the PROJECT.

23. Defendant HUDSON has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 30050713 in the amount of $15,000.00 on the California State Contractor’s License of Defendant WEILER, License Number 586459, and as such, assumed the liability of WEILER to the extent of the penal sum of the bond.

24. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant MICROBIAL SOLUTIONS, INC., a California Corporation dba OC DECKS (“OC DECKS”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 857286, who furnished work and/or materials on the PROJECT.

25. Defendant AMERICAN has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number SC1039338 in the amount of $25,000.00 on the California State Contractor’s License of Defendant OC DECKS, License Number 857286, and as such, assumed the liability of OC DECKS to the extent of the penal sum of the bond.

26. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant CALIFORNIA CUSTOM LIFT, INC. - 7 -

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(“CUSTOM LIFT”) was a California Corporation doing business in the County of Orange, California, under California Contractors State License Board License No. 417741, who furnished work and/or materials on the PROJECT.

27. Defendant THE OHIO CASUALTY INSURANCE COMPANY (“OHIO CASUALTY”) has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 661161C in the amount of $15,000.00 on the California State Contractor’s License of Defendant CUSTOM LIFT, License Number 417741, and as such, assumed the liability of CUSTOM LIFT to the extent of the penal sum of the bond.

28. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant SO CAL ROLLING SHUTTER, LLC (“ROLLING SHUTTER”) was a California Limited Liability Company doing business in the County of Orange, California, under California Contractors State License Board License No. 9900221, who furnished work and/or materials on the PROJECT.

29. Defendant SURETEC INSURANCE COMPANY (“SURETEC”) has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 143600 in the amount of $25,000.00 on the California State Contractor’s License of Defendant ROLLING SHUTTER, License Number 9900221, and as such, assumed the liability of ROLLING SHUTTER to the extent of the penal sum of the bond.

30. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant ANDREW SMITH (“SMITH”) was an individual who furnished insulation work and/or materials on the PROJECT.

31. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 1 (“DOE 1”) was an unknown business entity doing business in the County of Orange, California, who furnished HVAC work and/or materials on the PROJECT by and through an individual named “Moe.”

32. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 2 (“DOE 2”) was an unknown business - 8 -

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entity doing business in the County of Orange, California, who furnished stucco and/or lath work and/or materials on the PROJECT.

33. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 3 (“DOE 3”) was an unknown business entity doing business in the County of Orange, California, who furnished concrete work and/or materials on the PROJECT.

34. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 4 (“DOE 4”) was an unknown business entity doing business in the County of Orange, California, who furnished bathroom tile work and/or materials on the PROJECT.

35. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 5 (“DOE 5”) was an unknown business entity doing business in the County of Orange, California, who furnished flooring tile work and/or materials on the PROJECT.

36. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 6 (“DOE 6”) was an unknown business entity doing business in the County of Orange, California, who furnished countertop work and/or materials on the PROJECT.

37. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times relevant, Defendant DOE 7 (“DOE 7”) was an unknown business entity doing business in the County of Orange, California, who furnished outside tiling work and/or materials on the PROJECT.

38. Plaintiffs are informed, believe, and based on such information and belief allege, that Defendants DOES 51 through 100 are surety companies who have underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number on the California State Contractor’s License of Defendant DOES 1 through 25 and as such, assumed the liability of DOES 1 through 50 to the extent of the penal sum of the bond.
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39. The true names and capacities, whether individual, corporate, associate, representative, or otherwise of DOES 1 through 100, inclusive, are presently unknown to this Plaintiff, who therefore sues said Defendant by such fictions names, and Plaintiff, who therefore sues said Defendants by such fictitious names, and Plaintiff will seek leave of Court to amend this Complaint to insert the true names and capacities when they are ascertained.

40. Plaintiffs are informed, believe, and based on such information and belief allege, that at all times pled in this Complaint, Defendants and their agents and/or employees, and in doing the things alleged herein, Defendants were acting within the course and scope of their agency and/or employment.

41. Plaintiffs are informed, believe, and based on such information and belief allege, that each of the Defendants, NATIONWIDE, NADER, CHARLIE, MD,

SPECIALIZED, TBS CAL PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50 are legally responsible in some manner for the events and happenings herein referred to, and caused damage proximately thereby to the Plaintiff as alleged herein.

42. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50 were contractors, sub-contractors, suppliers, architects, designers, engineers, surveyors, construction managers and other professional service providers for the PROJECT which is the subject of Plaintiffs’ Complaint.

43. Plaintiffs are informed, believe, and based on such information and belief allege, that from the inception of the PROJECT’s construction, through the present date, Defendants maintained control and supervisory duties of all persons, entities, subcontractors or any other devise of installation.

44. Plaintiffs are informed, believe, and based on such information and belief allege, that from the start date of the PROJECT through the present date, Defendants - 10 -

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made inspections, investigations, concealed by temporary repairs, and did not reveal, disclose, or inform Plaintiffs of various building deficiencies and defective conditions of the PROJECT that were observed and/or discovered during inspections, investigations, and temporary repairs conducted by the Defendants and did not disclose budgetary deficiencies in the SONG budget and/or contract, and Plaintiffs reasonably relied on the implied and express representations by Defendants that the PROJECT was adequately reserved and free from building standard deficiencies, defective conditions, construction or design defects, premature and unreasonable deterioration of the improvements at the PROJECT and was constructed in accordance with applicable building standard.

45. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50 willfully departed from accepted trade standards for good and workmanlike construction in violation of Business and Professions Code § 7109.

46. Plaintiffs are informed, believe, and based on such information and belief allege that each of the violations of residential building standards for the original construction alleged herein were timely alleged in compliance with the limitation periods prescribed in Civil Code §896 and 897.

47. During the construction of the PROJECT, Defendants promised, agreed to, and did make some repairs to the PROJECT, but failed to provide Plaintiffs with accurate and complete information about the repairs, assuring Plaintiffs that any and all building standard violations were incidental anomalies and not systematic and widespread, and concealing, either intentionally or negligently, the true conditions. In so doing, Plaintiffs reasonably relied on said promises, agreements and repairs and thereby deferred the filing of this action.

48. Pursuant to Civil Code § 896 and 897, SONG brings this action individually and on his own behalf for the damage to the PROJECT. Pursuant to said action, SONG - 11 -

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has standing to institute the instant action for the damages alleged herein in his own name as the real party in interest.

49. Plaintiffs are informed, believe, and based on such information and belief allege that Plaintiffs have sustained and suffered consequential damages resulting from Defendants’ acts and/or omissions, including, without limitation, loss of private property, improperly installed finishes, potential physical injury, unsatisfactory workmanship, code violations and fraud. Plaintiffs have or will incur expenses in connection with the repair and remediation of such defects and damages.

50. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE and/or NADER are a BUILDER Defendant within the meaning of Civil Code §911(a) as NATIONWIDE and/or NADER was a builder, developer, general contractor, contractor, or original seller who at the time of sale was also in the business of remodeling or constructing residential units. As a result, NATIONWIDE and/or NADER is liable to SONG for violation of the building standards of residential construction enumerated in Civil Code §§896 and 897, et seq.

51. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE (1) may not have had the RMO or RME in direct supervision of work as defined by Business and Professional codes §§ 7065-7077; (2) may not have been duly licensed as defined by Business and Professional codes §§ 7025-7034; and (3) may not have fulfilled the requirement of Business and Professional Code §7159. ///
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FIRST CAUSE OF ACTION

VIOLATIONS OF THE RESIDENTIAL BUILDING STANDARDS
CIVIL CODE §§ 896 AND 897
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

52. Plaintiffs incorporate and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs 1 through 51 of this Complaint.

53. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, and SMITH provided services to the PROJECT as builder, general contractor, subcontractor, designer, consultant, and/or material suppliers, improved, supplied materials for, constructed, and/or remodeled the PROJECT.

54. The PROJECT was constructed in violation of the residential building standards set for in Civil Code §§ 896 and 897, including but not limited to the violations identified in “Exhibit A” to this complaint and incorporated herein by reference (the “building Standard Violations”). Plaintiffs’ investigation is continuing, and additional Building Standard Violations may be discovered as this action proceeds.

55. The Building Standard Violations existed at the time that Defendants demanded payment for said work performed in violation of Civil Code §§ 896 and 897.

56. As a direct and proximate result of the Building Standard Violations, Plaintiffs have sustained and will continue to sustain damages, for the value of repairing any violation of the standards set forth in this title, the reasonable cost of repairing any damages caused by the repair efforts, the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet requisite standards, the reasonable cost of removing and replacing any improper repair by the builder, reasonable relocation - 13 -

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and storage expense, lost business income if the home was used as a principal place of business licensed to be operated from the home, reasonable investigative costs for each established violation and all other costs or fees recoverable by contract or statue, all as set forth in Civil Code § 944. Such damages far exceed the minimum jurisdictional amount of the Court according to the proof at the time of trial.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below prayer.

SECOND CAUSE OF ACTION

NEGLIGENCE
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

57. Plaintiffs incorporate and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs 1 through 56 of this Complaint.

58. NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, and SMITH negligently planned, designed, improved, constructed, inspected, installed, repaired, investigated and/or replaced the PROJECT’S structural, electrical, mechanical elements, including, but not limited to, those identified in Exhibit “A” to this complaint and incorporated herein by reference, and other elements of the PROJECT presently unknown (hereinafter referred to collectively as “Project Defects”).

NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, and SMITH departed from accepted trade standards for good and workmanlike construction in violation of Business and Professions Code § 7109; failed to use adequate materials, products, goods, devices and procedures, design plans or specifications, resulting in these elements of the PROJECT not functioning or performing properly; being defective so as - 14 -

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to create unsafe and unhealthy conditions; and having caused consequential damages to the building, improvements, personal property at the PROJECT, and loss of use of property.

59. NATIONWIDE and/or NADER as BUILDER, failed to supervise the work of those under their control, failed to ensure that reported and known defects were repaired, failed to maintain proper permits or license, and failed to notify SONG of the Project defects.

60. Specifically, NATIONWIDE and/or NADER BUILDER (1) failed to properly inspect, repair and maintain the elements of the PROJECT; (2) negligently advised Plaintiffs that the PROJECT was in a condition suitable for acceptance and habitation, free from defects and/or that all Project Defects had been repaired or did not require repair; (3) performed inspections and repairs using methods and materials which were and are below applicable industry standards; and (4) negligently failed to adequately investigate Project Defects, and advise Plaintiffs of any repairs or investigations undertaken.

61. NATIONWIDE and/or NADER as BUILDER, failed to complete the PROJECT in a timely fashion.

62. NATIONWIDE and/or NADER as BUILDER failed to properly construct, improve, repair, supervise and inspect construction on the Project, so as to eliminate or mitigate the damages alleged herein.

63. NATIONWIDE and/or NADER BUILDER, so negligently planned and designed the building elements of the PROJECT that the details, plans, and specifications provided, and inspections performed, were insufficient, and the actions of said BUILDER fell below the standard of care, failed to warn of potential defects, and failed to observe and report PROJECT defects to the Plaintiffs.

64. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE and/or NADER violated Business and Professionals Code - 15 -

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§7109 in that they willfully departed in a material respect from accepted trade standards for good and workmanlike construction.

65. As a direct and proximate result of said defects in the PROJECT, Plaintiffs have been damaged and will continue to be damaged by the expenditure of certain monies for repair and/or replacement of the Project Defects, as well as damages to other property caused as a result of the defects alleged herein, all in excess of the minimum jurisdictional amount of the Court, according to proof at the time of trial.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.

THIRD CAUSE OF ACTION

BREACH OF IMPLIED WARRANTY
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

66. Plaintiffs incorporate and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs 1 through 65 of this Complaint.

67. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, and SMITH impliedly warranted that the PROJECT would be free from defects and fit for ordinary residential use, and that the complete structure was designed and constructed in a reasonably workman like manner.

68. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

FIRST AMENDED COMPLAINT FOR DAMAGES
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they were in a better position than Plaintiffs, to know of defects in the construction of the PROJECT and/or defects in materials, products, and goods for the PROJECT; that Plaintiffs relied on the skill and judgment of said Defendants, and each of them, to select and provide products, materials and goods and to perform work suitable to improve and construct the PROJECT free from defects and fit for reasonable residential use, and the implied warranty that the improvements at the complete structure were designed and constructed in a reasonably workmanlike manner.

69. After Plaintiffs discovered said injuries to the PROJECT and/or defects, as hereinbefore described, notice was given to Defendants, orally and/or in writing of the breach of said implied warranties. As a direct and proximate result of the breach of said warranties, Plaintiffs have been damaged, and will be damaged, by the expenditure of certain monies for repair, installation and/or replacement of the Project Defects and for damage caused by or as a result of said project defects. Plaintiffs are informed and believe and thereon allege that such costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.

FOURTH CAUSE OF ACTION

BREACH OF EXPRESS WARRANTY
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

70. Plaintiffs incorporate and re-allege, as though fully set forth in this cause of action, the preceding paragraphs 1 through 69 of this Complaint.

71. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING - 17 -

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SHUTTER, and SMITH expressly warranted that the PROJECT would be free from defects and fit for ordinary residential use, and that the complete structure was designed and constructed in a reasonably workman like manner.

72. Plaintiffs are informed, believe, and based on such information and belief allege that NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, and SMITH had a part in designing, building, financing, supplying, distributing products and goods used in or for the construction of the PROJECT and that they were in a better position than Plaintiffs to know of defects in the construction of the PROJECT and/or defects in materials, products, and goods for the PROJECT; that Plaintiffs relied on the skill and judgment of said Defendants, and each of them, to select and provide products, materials and goods and to perform work suitable to improve and construct the PROJECT free from defects and fit for reasonable residential use, and the express warranty that the improvements at the complete structure were designed and constructed in a reasonably workmanlike manner.

73. After Plaintiffs discovered said injuries to the PROJECT and/or defects, as hereinbefore described, notice was given to Defendants, orally and/or in writing of the breach of said express warranties. As a direct and proximate result of the breach of said warranties, Plaintiffs have been damaged, and will be damaged, by the expenditure of certain monies for repair, installation and/or replacement of the Project Defects and for damage caused by or as a result of said project defects. Plaintiffs are informed and believe and thereon allege that such costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.
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FIRST AMENDED COMPLAINT FOR DAMAGES
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FIFTH CAUSE OF ACTION

BREACH OF CONTRACT
(By SONG)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

74. SONG incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs 1 through 73 of this Complaint.

75. SONG and NATIONWIDE and/or NADER entered into a contract for New Construction on or about August 15, 2020 whereby NATIONWIDE and/or NADER was to perform all necessary work to build a new home located at 202 2nd St., Huntington Beach, CA (“AGREEMENT”) in exchange for $1,050,300.00. The AGREEMENT is attached hereto as Exhibit “B” to this complaint and incorporated herein by reference.

76. SONG did all, or substantially all, of the significant things the AGREEMENT required him to do by providing payment to NATIONWIDE and/or NADER for the construction.

77. NATIONWIDE and/or NADER breached the AGREEMENT by failing to complete the agreed upon work, and providing work that is incomplete, defective, and constructed in an unworkmanlike manner.

78. After SONG discovered said breaches of contract, as hereinbefore described, notice was given to NATIONWIDE and/or NADER, orally and/or in writing of the breach of said AGREEMENT.

79. SONG is informed, believes, and thereon alleges, that NADER is the alter ego of NATIONWIDE such that he is liable for SONG’s damages.

80. As a direct and proximate result of the breach of said contract, SONG has been damaged, and will be damaged, by the expenditure of certain monies for repair, installation and/or replacement of the Project Defects and for damage caused by or as a result of said contract breach. SONG is informed and believes and thereon alleges that such costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial.
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FIRST AMENDED COMPLAINT FOR DAMAGES
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WHEREFORE, SONG prays for judgment as hereinafter set forth in the below Prayer.

SIXTH CAUSE OF ACTION

INTENTIONAL MISREPRESENTATION - FRAUD
(By SONG and DOAN)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

81. SONG and DOAN incorporate and re-allege, as though fully set forth in this cause of action, the preceding paragraphs 1 through 80 of this Complaint.

82. NADER represented to SONG and DOAN, both individually and as the owner of NATIONWIDE, that Defendants possessed the requisite skill and craftsmanship to perform the work outlined in the AGREEMENT and that Defendants would complete the work on time and for the contract price in order to fraudulently induce SONG into a construction contract with NATIONWIDE and/or NADER for the property he owned with DOAN.

83. Defendants’ representations were false as Defendants did not possess the requisite skill and craftsmanship to perform the work outlined in the AGREEMENT and did not complete the contract despite collecting money from SONG and DOAN.

84. Defendants knew the representations were false when made.

85. SONG and DOAN are informed, believe and thereon allege that Defendants intended SONG and DOAN rely on these representations and SONG and DOAN did in fact reasonably rely on false or fraudulent representations or false statements Defendants knowingly made.

86. After SONG and DOAN discovered said misrepresentation/fraud, as hereinbefore described, notice was given to Defendants, orally and/or in writing of the misrepresentation/fraud. In reliance of the above and as direct and proximate result of the misrepresentation/fraud, SONG and DOAN have been damaged, and will be damaged, by the expenditure of certain monies for repair, installation and/or replacement of the Project Defects and for damage caused by or as a result of said fraud. SONG and - 20 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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DOAN are informed and believe and thereon allege that such costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial.

WHEREFORE, SONG and DOAN pray for judgment as hereinafter set forth in the below Prayer.

SEVENTH CAUSE OF ACTION

CONVERSION
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

87. Plaintiffs incorporate and re-allege, as though fully set forth in this cause of action, the preceding paragraphs 1 through 86 of this Complaint.

88. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER wrongfully exercised control over their personal property by failing to account for $100,000.00 paid by Plaintiffs in cash that was to be applied to SONG’s contract.

89. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER intentionally and substantially interfered with Plaintiff’s property by preventing Plaintiffs from having access to it and failing to account for it.

90. Plaintiffs are informed, believe and thereon allege that they did not consent to this intentional and substantial interference.

91. Plaintiffs are informed, believe and thereon allege that they were harmed by the loss of their personal property.

92. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER’s conduct was a substantial factor in causing their harm.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.
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EIGHTH CAUSE OF ACTION
VIOLATION OF BUSINESS & PROFESSIONS CODE §7164
(By SONG)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

93. SONG incorporates and re-alleges, as though fully set forth in this cause of action, the preceding paragraphs 1 through 92 of this Complaint.

94. SONG is informed, believes and thereon alleges that the AGREEMENT is a “contract between owner and contractor for construction of single-family home” as described by §7164(a) and therefore must contain the general and special requirements outlined in §7164 (b).

95. The AGREEMENT failed to contain the approximate dates when the work will begin and be substantially completed in accordance with §7164(b)(2).

96. The AGREEMENT failed to contain a legal description of the location where the work will be done in accordance with §7164(b)(3).

97. The AGREEMENT failed to contain a statement with the heading “Mechanics Lien Warning” with the language required by §7164(b)(4).

98. The AGREEMENT failed to contain a statement prepared by the board through regulation that emphasizes the value of commercial general liability insurance and encourages the owner to verify the contractor's insurance coverage and status and a check box indicating whether or not the contractor carries commercial general liability insurance in accordance with §7164(b)(5).

99. The AGREEMENT failed to contain a notice stating that the owner has the right to require the contractor to have a performance and payment bond in close proximity to the signatures of the owner and contractor in accordance with §7164(d). 100. As a direct and proximate result of the code violation, SONG has been damaged, and will be damaged, by the expenditure of certain monies caused by or as a result of said violation. SONG is informed and believes and thereon alleges that such - 22 -

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costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial.

WHEREFORE, SONG prays for judgment as hereinafter set forth in the below Prayer.

NINTH CAUSE OF ACTION
VIOLATION OF BUSINESS & PROFESSIONS CODE §7031
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, and DOES 8 through 50)
101. Plaintiffs incorporate and re-allege, as though fully set forth in this cause of action, the preceding paragraphs 1 through 100 of this Complaint. 102. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER may have not been duly licensed as required by the code. 103. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER may have not been duly bonded as required by the code. 104. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER may have not carried proper workman’s compensation insurance as required by the code.
105. Plaintiffs are informed, believe and thereon allege that NATIONWIDE and/or NADER may have violated the code in another manner not yet ascertained.

Plaintiffs reserve the right to amend this complaint after further discovery is made. 106. As a direct and proximate result of the code violation, Plaintiffs have been damaged, and will be damaged, by the expenditure of certain monies caused by or as a result of said violation. Plaintiffs are informed and believe and thereon allege that such costs far exceed the minimum jurisdictional amount of this Court, according to proof at the time of trial.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.
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TENTH CAUSE OF ACTION
ACTION ON SURETY BOND BUSINESS AND PROFESSIONS CODE § 7071.5 (By SONG, DOAN, and SONG DOAN TRUST)
(Against HUDSON, NAVIGATORS, BUSINESS ALLIANCE, AMERICAN, OHIO, SURETEC and DOES 51 through 100)
107. Plaintiffs incorporate and re-allege, as though fully set forth in this cause of action, the preceding paragraphs 1 through 106 of this Complaint. 108. Defendant HUDSON has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 30026732 in the amount of $15,000.00 on the California State Contractor’s License of Defendant NATIONWIDE and/or NADER, License Number 1031246, and as such, assumed the liability of NATIONWIDE and/or NADER to the extent of the penal sum of the bond.
109. Defendant HUDSON has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 30006906 in the amount of $15,000.00 on the California State Contractor’s License of Defendant SPECIALIZED, License Number 1005885, and as such, assumed the liability of SPECIALIZED to the extent of the penal sum of the bond.
110. Defendant HUDSON has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 30050713 in the amount of $15,000.00 on the California State Contractor’s License of Defendant WEILER, License Number 586459, and as such, assumed the liability of WEILER to the extent of the penal sum of the bond.
111. Defendant NAVIGATORS has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number NAV00020338 in the amount of $15,000.00 on the California State Contractor’s License of Defendant TBS, License Number 1012469, and as such, assumed the liability of TBS to the extent of the penal sum of the bond.
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112. Defendant NAVIGATORS has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number NAV00015704 in the amount of $15,000.00 on the California State Contractor’s License of Defendant RG, License Number 975675, and as such, assumed the liability of RG to the extent of the penal sum of the bond.
113. Defendant BUSINESS ALLIANCE has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number G110413096471 in the amount of $15,000.00 on the California State Contractor’s License of Defendant CAL PRIME, License Number 1075613, and as such, assumed the liability of CAL PRIME to the extent of the penal sum of the bond.
114. Defendant BUSINESS ALLIANCE has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number G100513078379 in the amount of $15,000.00 on the California State Contractor’s License of Defendant REGAL, License Number 1000371, and as such, assumed the liability of REGAL to the extent of the penal sum of the bond.
115. Defendant AMERICAN has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 100531324the amount of $15,000.00 on the California State Contractor’s License of Defendant CAL ARCE, License Number 977091, and as such, assumed the liability of ARCE to the extent of the penal sum of the bond.
116. Defendant AMERICAN has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number SC1039338 in the amount of $25,000.00 on the California State Contractor’s License of Defendant OC DECKS, License Number 857286, and as such, assumed the liability of OC DECKS to the extent of the penal sum of the bond.
117. Defendant OHIO has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 661161C in the amount of $15,000.00 on the California State Contractor’s License of Defendant CUSTOM LIFT, License Number - 25 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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417741, and as such, assumed the liability of CUSTOM LIFT to the extent of the penal sum of the bond.
118. Defendant SURETEC has underwritten and provided in their capacity as a Surety, a Contractor’s License Bond Number 143600 in the amount of $25,000.00 on the California State Contractor’s License of Defendant ROLLING SHUTTER, License Number 9900221, and as such, assumed the liability of ROLLING SHUTTER to the extent of the penal sum of the bond.
119. Plaintiffs have been damaged as a result of Defendants’ violations of the Business and Professions Code § 7000 et seq., California State Contractor’s License Law, in the contracting for new construction and as such, hereby claims right to the bonds underwritten or provided as set forth above in the amount of $15,000.00.

WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.

ELEVENTH CAUSE OF ACTION
ACTION TO EXPUNGE MECHANIC’S LIEN CIVIL CODE § 3118
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, and DOES 1 through 50)
120. Plaintiffs incorporate and re-allege, as though fully set forth in this cause of action, the preceding paragraphs 1 through 119 of this Complaint. 121. Defendants NATIONWIDE and/or NADER have caused a Mechanic’s Lien to be recorded on Plaintiffs’ real property located at 204 2nd St., Huntington Beach, CA in the amount of $359,282.96 together with interest at the rate of 10% per annum from April 1, 2023.
122. Defendants have claimed an amount owed to them that is larger than any sum actually owed to them. The actual amount owed to Defendants is $0.00. 123. As a result, Defendants have forfeited any right to a lien on Plaintiffs’ property.
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124. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth in the below Prayer.

PRAYER
WHEREFORE, Plaintiffs pray for judgment against DEFENDANTS, as follows:

FIRST CAUSE OF ACTION

VIOLATIONS OF THE RESIDENTIAL BUILDING STANDARDS
CIVIL CODE §§ 896 AND 897
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL

PRIME, ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT,
ROLLING SHUTTER, SMITH and DOES 1 through 50)

1. For damages in an amount to be determined and according to proof at the trial of this action;

2. For interest thereon, at the maximum legal rate;

3. For prejudgment interest on all sums awarded, at the maximum legal rate;

4. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;

5. For the reasonable cost of repairing any damages caused by the repair efforts;

6. For the reasonable cost of removing and replacing any improper repair by the builder;

7. Attorney fees in an amount the court determines to be reasonable;

8. For reasonable relocation and storage expenses;

9. For loss of income;

10. For reasonable investigative costs for each established violations;

11. For costs of suit incurred herein;
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FIRST AMENDED COMPLAINT FOR DAMAGES
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12. For consequential damages according to proof at the time of trial and as provided by law;

13. For expert fees and costs;

14. For loss of use of the property; and

15. For such and further relief as the Court deems just and proper.

SECOND CAUSE OF ACTION

NEGLIGENCE
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

16. For damages in an amount to be determined and according to proof at the trial of this action;

17. For interest thereon, at the maximum legal rate;

18. For prejudgment interest on all sums awarded, at the maximum legal rate;

19. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;

20. For the reasonable cost of repairing any damages caused by the repair efforts;

21. For the reasonable cost of removing and replacing any improper repair by the builder;

22. Attorney fees in an amount the court determines to be reasonable;

23. For reasonable relocation and storage expenses;

24. For loss of income;

25. For reasonable investigative costs for each established violations;

26. For costs of suit incurred herein;
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FIRST AMENDED COMPLAINT FOR DAMAGES
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27. For consequential damages according to proof at the time of trial and as provided by law;

28. For expert fees and costs;

29. For loss of use of the property; and

30. For such and further relief as the Court deems just and proper.

THIRD CAUSE OF ACTION

BREACH OF IMPLIED WARRANTY
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

31. For damages in an amount to be determined and according to proof at the trial of this action;

32. For interest thereon, at the maximum legal rate;

33. For prejudgment interest on all sums awarded, at the maximum legal rate;

34. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;

35. For the reasonable cost of repairing any damages caused by the repair efforts;

36. For the reasonable cost of removing and replacing any improper repair by the builder;

37. Attorney fees in an amount the court determines to be reasonable;

38. For reasonable relocation and storage expenses;

39. For loss of income;

40. For reasonable investigative costs for each established violations;

41. For costs of suit incurred herein;
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FIRST AMENDED COMPLAINT FOR DAMAGES
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42. For consequential damages according to proof at the time of trial and as provided by law;

43. For expert fees and costs;

44. For loss of use of the property; and

45. For such and further relief as the Court deems just and proper.

FOURTH CAUSE OF ACTION

BREACH OF EXPRESS WARRANTY
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, CHARLIE, MD, SPECIALIZED, TBS CAL PRIME,

ARCE, REGAL, RG, WEILER, OC DECKS, CUSTOM LIFT, ROLLING SHUTTER, SMITH and DOES 1 through 50)

46. For damages in an amount to be determined and according to proof at the trial of this action;

47. For interest thereon, at the maximum legal rate;

48. For prejudgment interest on all sums awarded, at the maximum legal rate;

49. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;

50. For the reasonable cost of repairing any damages caused by the repair efforts;

51. For the reasonable cost of removing and replacing any improper repair by the builder;

52. Attorney fees in an amount the court determines to be reasonable;

53. For reasonable relocation and storage expenses;

54. For loss of income;

55. For reasonable investigative costs for each established violations;

56. For costs of suit incurred herein;
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FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
A NTON B LVD ., S UITE 150
C OSTA
M ESA CA 92626
TELEPHONE: (949) 269 - 7709

57. For consequential damages according to proof at the time of trial and as provided by law;

58. For expert fees and costs;

59. For loss of use of the property; and

60. For such and further relief as the Court deems just and proper.

FIFTH CAUSE OF ACTION

BREACH OF CONTRACT
(By SONG)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

61. For damages in an amount to be determined and according to proof at the trial of this action;

62. For interest thereon, at the maximum legal rate;

63. For prejudgment interest on all sums awarded, at the maximum legal rate;

64. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;

65. For the reasonable cost of repairing any damages caused by the repair efforts;

66. For the reasonable cost of removing and replacing any improper repair by the builder;

67. Attorney fees in an amount the court determines to be reasonable;

68. For reasonable relocation and storage expenses;

69. For loss of income;

70. For reasonable investigative costs for each established violations;

71. For costs of suit incurred herein;

72. For consequential damages according to proof at the time of trial and as provided by law;

73. For expert fees and costs;
- 31 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
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TELEPHONE: (949) 269 - 7709

74. For loss of use of the property; and

75. For such and further relief as the Court deems just and proper.

SIXTH CAUSE OF ACTION

INTENTIONAL MISREPRESENTATION - FRAUD
(By SONG and DOAN)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

76. For damages in an amount to be determined and according to proof at the trial of this action;

77. For interest thereon, at the maximum legal rate;

78. For prejudgment interest on all sums awarded, at the maximum legal rate;

79. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;

80. For the reasonable cost of repairing any damages caused by the repair efforts;

81. For the reasonable cost of removing and replacing any improper repair by the builder;

82. Attorney fees per Business and Professionals Code §7160 in an amount the court determines to be reasonable;

83. $500 Penalty per Business and Professionals Code §7160.

84. For reasonable relocation and storage expenses;

85. For loss of income;

86. For reasonable investigative costs for each established violations;

87. For costs of suit incurred herein;

88. For consequential damages according to proof at the time of trial and as provided by law;

89. For expert fees and costs;

90. For putative damages;
- 32 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
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C OSTA
M ESA CA 92626
TELEPHONE: (949) 269 - 7709

91. For loss of use of the property; and

92. For such and further relief as the Court deems just and proper.

SEVENTH CAUSE OF ACTION

CONVERSION
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, and DOES 8 through 50)

93. For damages in an amount to be determined and according to proof at the trial of this action;

94. For interest thereon, at the maximum legal rate;

95. For prejudgment interest on all sums awarded, at the maximum legal rate;

96. Attorney fees in an amount the court determines to be reasonable;

97. For reasonable investigative costs for each established violations;

98. For costs of suit incurred herein;

99. For consequential damages according to proof at the time of trial and as provided by law;
100. For expert fees and costs;
101. For loss of use of the property; and
102. For such and further relief as the Court deems just and proper.

EIGHTH CAUSE OF ACTION
VIOLATION OF BUSINESS & PROFESSIONS CODE §7164
(By SONG)
(Against NATIONWIDE, NADER, and DOES 8 through 50)
103. For damages in an amount to be determined and according to proof at the trial of this action;
104. For interest thereon, at the maximum legal rate;
105. For prejudgment interest on all sums awarded, at the maximum legal rate;
- 33 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
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C OSTA
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TELEPHONE: (949) 269 - 7709
106. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;
107. For the reasonable cost of repairing any damages caused by the repair efforts;
108. For the reasonable cost of removing and replacing any improper repair by the builder;
109. Attorney fees in an amount the court determines to be reasonable; 110. For reasonable relocation and storage expenses;
111. For loss of income;
112. For reasonable investigative costs for each established violations; 113. For costs of suit incurred herein;
114. For consequential damages according to proof at the time of trial and as provided by law;
115. For expert fees and costs;
116. For loss of use of the property; and
117. For such and further relief as the Court deems just and proper.

NINTH CAUSE OF ACTION
VIOLATION OF BUSINESS & PROFESSIONS CODE §7031
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, and DOES 8 through 50)
118. For damages in an amount to be determined and according to proof at the trial of this action;
119. For interest thereon, at the maximum legal rate;
120. For prejudgment interest on all sums awarded, at the maximum legal rate;
121. For damages for the reasonable value of repairing any violation of the standards set for in Civil Code §944;
- 34 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
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TELEPHONE: (949) 269 - 7709
122. For the reasonable cost of repairing any damages caused by the repair efforts;
123. For the reasonable cost of removing and replacing any improper repair by the builder;
124. Attorney fees in an amount the court determines to be reasonable; 125. For reasonable relocation and storage expenses;
126. For loss of income;
127. For reasonable investigative costs for each established violations; 128. For costs of suit incurred herein;
129. For consequential damages according to proof at the time of trial and as provided by law;
130. For expert fees and costs;
131. For loss of use of the property; and
132. For such and further relief as the Court deems just and proper.

TENTH CAUSE OF ACTION
ACTION ON SURETY BOND BUSINESS AND PROFESSIONS CODE § 7071.5 (By SONG, DOAN, and SONG DOAN TRUST)
(Against HUDSON, NAVIGATORS, BUSINESS ALLIANCE, AMERICAN, OHIO, SURETEC and DOES 51 through 100)
133. For damages in the amount of the penal sum of the bond in the amount of $15,000.00; and
134. For such and further relief as the Court deems just and proper.

ELEVENTH CAUSE OF ACTION
ACTION TO EXPUNGE MECHANIC’S LIEN CIVIL CODE § 3118
(By SONG, DOAN, and SONG DOAN TRUST)
(Against NATIONWIDE, NADER, and DOES 1 through 50)
135. For an order expunging the mechanic’s lien;
136. Attorney fees in an amount the court determines to be reasonable; - 35 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
A NTON B LVD ., S UITE 150
C OSTA
M ESA CA 92626
TELEPHONE: (949) 269 - 7709
137. For costs of suit incurred herein; and
138. For such and further relief as the Court deems just and proper.

Dated: August 22, 2023 ENGELS LAW

___________________________________
Christopher Engels, Esq. Attorneys for Alex Song and Traci Doan, individually and as Trustees of The Song
Doan Nevada Trust
- 36 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
A NTON B LVD ., S UITE 150
C OSTA
M ESA CA 92626
TELEPHONE: (949) 269 - 7709
Exhibit A

PRELIMINARY LIST OF VIOLATIONS OF CONSTRUCTION STANDARDS

ACTIONABLE VIOLATIONS UNDER
CALIFORNIA CIVIL CODE §896-§897
Cal Civ Code §896
(a) With respect to water issues:
(1) A door shall not allow unintended water to pass beyond, around, or through the door or its designed or actual moisture barriers, if any.
(2) Windows, patio doors, deck doors, and their systems shall not allow water to pass beyond, around, or through the window, patio door, or deck door or its designed or actual moisture barriers, including, without limitation, internal barriers within the systems themselves. For purposes of this paragraph, “systems” include, without limitation, windows, window assemblies, framing, substrate, flashings, and trim, if any. (3) Windows, patio doors, deck doors, and their systems shall not allow excessive condensation to enter the structure and cause damage to another component. For purposes of this paragraph, “systems” include, without limitation, windows, window assemblies, framing, substrate, flashings, and trim, if any.
(4) Roofs, roofing systems, chimney caps, and ventilation components shall not allow water to enter the structure or to pass beyond, around, or through the designed or actual moisture barriers, including, without limitation, internal barriers located within the systems themselves. For purposes of this paragraph, “systems” include, without limitation, framing, substrate, and sheathing, if any.
(5) Decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems shall not allow water to pass into the adjacent structure. For purposes of this paragraph, “systems” include, without limitation, framing, substrate, flashing, and sheathing, if any. (6) Decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems shall not allow unintended water to pass within the systems themselves and cause damage to the systems. For purposes of this paragraph, “systems” include, without limitation, framing, substrate, flashing, and sheathing, if any.
(9) Hardscape, including paths and patios, irrigation systems, landscaping systems, and drainage systems, that are installed as part of the original construction, shall not be installed in such a way as to cause water or soil erosion to enter into or come in contact with the structure so as to cause damage to another building component. (10) Stucco, exterior siding, exterior walls, including, without limitation, exterior framing, and other exterior wall finishes and fixtures and the systems of those components and fixtures, including, but not limited to, pot shelves, horizontal surfaces, columns, and plant-ons, shall be installed in such a way so as not to allow unintended water to pass into the structure or to pass beyond, around, or through the designed or actual moisture barriers of the system, including any internal barriers located within the system itself. For purposes of this paragraph, “systems” include, without limitation, framing, substrate, flashings, trim, wall assemblies, and internal wall cavities, if any. (11) Stucco, exterior siding, and exterior walls shall not allow excessive condensation to enter the structure and cause damage to another component. For purposes of this paragraph, “systems” include, without limitation, framing, substrate, flashings, trim, wall assemblies, and internal wall cavities, if any.
(18) The waterproofing system behind or under ceramic tile and tile countertops shall not allow water into the interior of walls, flooring systems, or other components so as to cause damage. Ceramic tile systems shall be designed and installed so as to deflect intended water to the waterproofing system.
(d) With respect to fire protection issues:
(1) A structure shall be constructed so as to materially comply with the design criteria of the applicable government building codes, regulations, and ordinances for fire protection - 37 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
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of the occupants in effect at the time of the original construction. (g) With respect to issues regarding other areas of construction:
(1) Exterior pathways, driveways, hardscape, sidewalls, sidewalks, and patios installed by the original builder shall not contain cracks that display significant vertical displacement or that are excessive. However, no action shall be brought upon a violation of this paragraph more than four years from close of escrow.
(2) Stucco, exterior siding, and other exterior wall finishes and fixtures, including, but not limited to, pot shelves, horizontal surfaces, columns, and plant-ons, shall not contain significant cracks or separations.
(3) (A) To the extent not otherwise covered by these standards, manufactured products, including, but not limited to, windows, doors, roofs, plumbing products and fixtures, fireplaces, electrical fixtures, HVAC units, countertops, cabinets, paint, and appliances shall be installed so as not to interfere with the products’ useful life, if any. (B) For purposes of this paragraph, “useful life” means a representation of how long a product is warranted or represented, through its limited warranty or any written representations, to last by its manufacturer, including recommended or required maintenance. If there is no representation by a manufacturer, a builder shall install manufactured products so as not to interfere with the product’s utility. (C) For purposes of this paragraph, “manufactured product” means a product that is completely manufactured offsite.
(D) If no useful life representation is made, or if the representation is less than one year, the period shall be no less than one year. If a manufactured product is damaged as a result of a violation of these standards, damage to the product is a recoverable element of damages. This subparagraph does not limit recovery if there has been damage to another building component caused by a manufactured product during the manufactured product’s useful life.
(E) This title does not apply in any action seeking recovery solely for a defect in a manufactured product located within or adjacent to a structure. (13) Ceramic tile and tile backing shall be installed in such a manner that the tile does not detach.
(15) Structures shall be constructed in such a manner so as not to impair the occupants’ safety because they contain public health hazards as determined by a duly authorized public health official, health agency, or governmental entity having jurisdiction. This paragraph does not limit recovery for any damages caused by a violation of any other paragraph of this section on the grounds that the damages do not constitute a health hazard.

Cal Civ Code §897
The standards set forth in this chapter are intended to address every function or component of a structure. To the extent that a function or component of a structure is not addressed by these standards, it shall be actionable if it causes damage. - 38 -

FIRST AMENDED COMPLAINT FOR DAMAGES
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E NGELS LAW APC
555
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M ESA CA 92626
TELEPHONE: (949) 269 - 7709
Exhibit B

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-1- PROOF OF SERVICE

PROOF OF SERVICE
I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 555 Anton Blvd. Suite 150 Costa Mesa, California.

I served the within document(s) described as:

FIRST AMENDED COMPLAINT FOR DAMAGES; and FIRST AMENDED

SUMMONS WITH ATTACHMENT FOR ADDITIONAL PARTIES
on the interested parties in this action as stated on the attached mailing list. [] (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth on the attached mailing list. I placed each such envelope for collection and mailing following ordinary business practices. I am readily familiar with this Firm’s practices for collection and processing of correspondence for mailing. Under that practice, the correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at Ladera Ranch, 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 in affidavit.
[ ] (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by overnight service, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document(s) in a sealed envelope or package designated by the express service carrier, addressed as set forth on the attached mailing list, with fees for overnight delivery paid or provided for.
[ x] (BY FACSIMILE OR EMAIL) Based upon an agreement of the parties to accept service by facsimile transmission or email, I caused the foregoing document(s) to be transmitted to a facsimile machine telephone number or email address as last given by counsel or party in pro per as set forth on the attached mailing list.
[ ] (BY PERSONAL DELIVERY) By placing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth on the attached mailing list and causing such envelope(s) to be delivered to the office of the addressee(s).

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on August 22, 2023, at Costa Mesa, California. _______________________________
Leilani Kaihewalu
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-2- PROOF OF SERVICE

SERVICE LIST
CASE NO. 30-2023-01326343
Christopher Morrow
Teresa L. Polk

SMTD LAW LLP
17901 Von Karman Avenue, Suite 500
Irvine, California 92614
T: (949) 537-3800
E: [email protected] ; [email protected]
Attorneys for Elie Nader and
Nationwide Contracting Services Inc.,
dba Nationwide General Construction
Services
D
1 RAQUEL CRUZ State Bar No 256399 SPACE BELOW FOR COURT USE ONLY THE L 4W OFFICES OF LARRY H PAf KER INC
2 350 San Antonio Drive
Long Beach California 90807 0948
3 562 427 2044 Fax 562 490 9855 F I L E D

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN P3ERNARDINO
4 SAN BERNARDINO C V L DIVISION
5 Attorneys for Plaintiff Rufina Loeras OCT 0 2 2014
s
6 p
L
DEPUTY
1 v
7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN BERNARDINO
10 11 RUFINA LOERAS j
CASE NO l yE
12 Plaintiff COMPLAINT FOR PERSONAL

INJURIES
13 v
14 SATIEL HERNANDEZ PEREZ

KASA CONSTRUCTION INC
15 and DOES 1 through 100 Inclusive
16 Defendants
17 18
19 Plaintiff Rufina Loeras alleges
20 21 1 At all times herein mentioned plaintiff Rufina Loeras was and is a 22 competent adult residing in the City of Fontana County of San Bernardino California 23 2 At all times herein mentioned defendant Satiel Hernandez Perez 24 was and is a natural person residing in the City of San Bernardino County of San 25 Bernardino California
26 27
28 COMPLAINT FOR PERSONAL INJURIES
1 3 Plaintiff Rufina Loeras is unsure ofthe legal capacities of 2 defendant Kasa Contruction Inc whether corporate dba partnership joint venture or 3 otherwise and will seek leave to amend this complaint at such time as same is 4 discovered or will disclose same through discovery
5 4 The true names and capacities of the defendants sued herein as 6 Does 1 through 100 inclusive are unknown to plaintiff who therefore sues said 7 defendants by such fictitious names Plaintiff Rufina Loeras is informed and believes 8 and thereon alleges that each of the defendants herein designated as a Doe is legally 9 responsible in some manner for the events and happenings herein referred to and 10 caused injury and damages to plaintiff as herein alleged 11 5 At all times alleged herein each defendant was the agent and 12 employee of each of his codefendants and in doing the things herein described was 13 acting within the scope of his authority as such agent and employee 14 6 At all times material herein Valley Boulevard was and is a public 15 highway in the City of Fontana County of San Bernardino State of California 16 7 On or about March 25 2014 plaintiff Rufina Loeras was the driver 17 of a vehicle on Valley Boulevard at or near its intersection with Juniper Avenue and at 18 the same time and place defendants and each of them so negligently owned 19 controlled repaired entrusted maintained and operated an automobile as to cause it 20 to and it did become involved in an accident or collision injuring and damaging plaintiff 21 as hereinafter described
22 8 At all times set forth herein defendants and each of them were the 23 owners of their aforementioned automobile and at all times herein referred to said 24 vehicle was being used and operated with the knowledge and consent of said owners 25 26
27 28
2 COMPLAINT FOR PERSONAL INJURIES
1 9 As a cause of said conduct of defendants and each ofthem 2 plaintiff sustained personal injuries which caused and will continue to cause pain 3 discomfort and physical disability to plaintiff general damage in an amount according to 4 proof which in good faith is believed to be an amount within the jurisdictional limits of 5 this court
6 10 As a further cause of said conduct of defendants and each of 7 them plaintiff employed and will employ in the future physicians surgeons and others 8 for examination treatment and care and thereby incurred and will incur medical and 9 incidental expense the exact amount of which is unknown at this time and plaintiff will 10 offer proof thereof at the time of trial
11 11 As a further cause of the above described conduct of defendants 12 and each ofthem the aforementioned automobile of plaintiff was damaged and 13 depreciated so that repairs were necessary the reasonable costs of repairs or the 14 amount of depreciation being unknown at this time and plaintiff will offer proof thereof 15 at the time of trial
16 12 As a further cause of said conduct of defendants and each of 17 them plaintiff lost the use of said automobile for a period of time that the reasonable 18 value of said loss of use of said automobile is unknown to plaintiff at this time and plain 19 tiff will offer proof thereof at the time of trial
20 13 At the time of the described improper conduct of defendants and 21 each of them plaintiff Rufina Loeras was gainfully employed for compensation and as 22 a further cause of defendants conduct and each of them plaintiff has been and in the 23 future wifl be deprived of earnings the exact amount of which is unknown at this time 24 and plaintiff will offer proof thereof at the time of trial 25 26
27 28
3 COMPLAINT FOR PERSONAL INJURIES
e
1 WHEREFORE judgment is prayed for against defendants and each of 2 them as follows
3 1 General damages according to proof
4 2 Medical and related expenses past and future according to proof 5 3 Loss of earnings past and future in a sum according to proof 6 4 Loss of income from impaired earning capacity past and future 7 according to proof
8 5 Property damage in a sum according to proof
9 6 Loss of use of automobile in a sum according to proof 10 7 For prejudgment interest pursuant to Civil Code 3291 11 8 Costs of suit incurred herein and
12 9 For such other relief as may be appropriate
13 14
15 Dated September 2014
16 RAQUE CRUZ Member of
17 THE LAW OF ES LARRY H PAR E INC
Attorneys for lainti fina Loeras
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26 27
28 a

COMPLAINT FOR PERSONAL INJURIES
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Filter Applied:

Defendant Name
all american asphalt
Defendant Name
Party
Type
Case
Number
NAICS
Code
NAICS Industry
Date
Filed
Assigned
Deputy
DIR Office Case Status
All American Asphalt, a
California Corporation
Defendant WC-CM-888710 32732
Ready-Mix Concrete
Manufacturing
06/11/2022
Puniloa
Chavira
San
Bernardino
WCA
Hearing
Approved
All American Asphalt, a
California Corporation
Defendant WC-CM-780654 561311
Employment
Placement Agencies
03/27/2020
Maria Elena
Sandoval
San
Bernardino
WCA
Closed Settled –
Pre-hearing
Page: 1 of 1
1 Total Records:
12/15/2023 Search Date:

Filter Applied:

Defendant Name
pcn3
Defendant
Name
Party
Type
Case
Number
NAICS
Code
NAICS
Industry
Date
Filed
Assigned
Deputy
DIR Office
Case
Status
PCN3, INC., Defendant 05-55056 02/17/2012
Long Beach
WCA
Closed

STAFF REPORT
ITEM NO. ____11____

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Baldwin Park City CouncilMarch 6, 2024

Baldwin Park City Council
March 6, 2024