Titan Elec. Corp. v. LA Unified Sch. Dist.
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Filed 3/7/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR TITAN ELECTRIC CORPORATION, Plaintiff and Appellant, B194748 (Los Angeles County Super. Ct. No. BS099444) v. LOS ANGELES UNIFIED SCHOOL DISTRICT and KEMP BROS. CONSTRUCTION, INC., ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] Defendants and Respondents. THE COURT:* It is ordered that the opinion filed herein on February 19, 2008, be modified as follows: 1. On page 8, delete complete second paragraph with heading Kemp s April 29 Requests for Substitution through page 9, with the paragraph that ends with the word subcontract and the following paragraphs are inserted in its place: Kemp s April 29 Letters to the IBEW Solaas wanted to ensure that Titan s employees on the projects got paid, and that the IBEW union, which supplied electrical workers on the projects, knew it. To do so, Kemp needed a union subcontractor as a vehicle for payment. A&R Electric was a union subcontractor with which Kemp had worked several times over the past 10 to 15 years. Solaas knew A&R to be reputable and trusted it to receive the $86,000 advance and pay it out to Titan s employees. Therefore, he asked A&R whether it would pay Titan s workers if Kemp advanced the funds. A&R was reluctant to get involved, but agreed. Thus, on the morning of April 29, Kemp faxed separate letters to the IBEW, with copies to Titan, informing the IBEW that Kemp had hired . . . A&R Electric to replace Titan Electric for refusing to complete [the Huntington Park and LACES projects]. [ΒΆ] We have instructed A&R Electric to cover the payroll for Titan Electric for the period of April 19 thru 23, 2004 for the . . . project[s]. According to Solaas, although the letters to the IBEW stated that Kemp had hired A&R, Kemp had not entered a contract with A&R to perform work under Titan s subcontracts. Rather, Kemp was simply using A&R to transmit the payroll advance to Titan s employees, and Kemp had agreed with A&R that if Titan failed to return to work, Kemp would pay A&R on a time-and-materials basis to complete the work. Kemp, however, did not enter a formal time-and-materials contract with A&R. Further, Kemp did not have A&R perform any work on the Huntington Park and LACES worksites on April 29 or April 30, and not until May 4, 2004, did Kemp issue its first check to A&R. That check was to pay Titan s employees for the work they had performed under Titan s subcontract. Kemp s April 29 Requests for Substitution In the afternoon of April 29, 2004, based on Titan s failure to send employees to the project sites, Kemp sent the District written requests 2 under section 4107 to replace Titan on the Huntington Park and LACES projects with another electrical subcontractor, A&R Electric (A&R), and listed A&R s address and contractor s license number. In its requests for substitution, Kemp contended, inter alia, that Titan had failed or refused to perform its subcontracts (4107, subd. (a)(3)) and substantially delayed or disrupted the progress of work (id., subd. (a)(7)). As in the Huntington Park project, the electrical work on the LACES project was on critical path, and it was imperative that Titan complete its work in order to keep the project on schedule. 2. On page 9, delete the first word Later in the third paragraph so that the sentence reads: On the morning of April 30, 2004, Kemp faxed Titan notices to cure 3. On page 10, delete the words IBEW letters and the in the second paragraph so that the sentence reads: The same day that Kemp faxed the notices to cure 4. On page 23, add the words It has been held that a after the word contractor in the second paragraph, so that the sentence reads: for damages against the prime contractor. It has been held that a necessary prerequisite to such a claim There is no change in the judgment. Appellant s petition for rehearing is denied. *WILLHITE, Acting P.J. MANELLA, J. SUZUKAWA, J. 3
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