Author: Andrew Peluso

City of Lincoln declares April ‘Child Abuse Prevention Month’, recognizes KidsFirst

April-Child-Abuse-Prevention-Month-Lincoln CA

The City of Lincoln recently adopted Proclamation 2022-04 declaring April 2022 as Child Abuse Prevention and Awareness Month and recognized KidsFirst for their efforts in the prevention of Child Abuse. 

During a City Council meeting on March 22, 2022, Lincoln’s Mayor Holly Andreatta (and Vice President of the Board for KidsFirst) presented the proclamation with fellow KidsFirst Board members Todd Olson of Image Outfitters Photography, and our own Trevor Hensley, partner at Herrig & Vogt, LLP. 

The proclamation cites that “in 2020, Placer County investigated 3,277 reports of child abuse and neglect, affecting an average of 2 children per household”, and encourages wearing a blue ribbon on April 1st, and displaying a pinwheel garden during the month of April to serve as a positive reminder for the community to prevent and treat child abuse and neglect, and to keep children safe. 

The Proclamation was passed and adopted by a unanimous vote. KidsFirst is a non-profit, community-based organization operating counseling and family resource centers offering education regarding child abuse prevention, early detecting, intervention, and treatment programs. Its services are free, confidential, and available in English and Spanish.

New Partner Announcement

New-Partner-Trevor-L.-Hensley

Herrig & Vogt is excited to announce that attorney Trevor Hensley has become a Partner in the firm. Mr. Hensley has grown his family law practice with Herrig & Vogt as an associate attorney since he joined the Firm 9 years ago. He officially became a Partner in January of 2022.


Mr. Hensley prides himself on his ability to empathize with his clients during what are often incredibly stressful times in their lives. With frequent communication and a clear roadmap toward resolving a variety of family law issues, he secures favorable outcomes for the families he represents while maintaining an approachable and understanding demeanor. This has put him in a position to build a thriving family law practice with the Firm. We are thrilled to be able to elevate him to the position of Partner, and to continue to build upon our tradition of excellence in the legal profession.


Mr. Hensley received his Juris Doctor degree in 2011 from Willamette University School of Law in Salem, Oregon, and is a proud member of the State Bar of California, the American Bar Association, and the Family Law Section of the American Bar Association.

COVID-19 Resources for Residents of Placer County

Local Information and Updates for Placer County  

Food Resources for Persons in Need in Placer County 

Resources for Victims of Domestic Abuse in Placer County 

Mental Health Resources for Placer County

Child Abuse Resouces for Placer County

Resources for the homeless in Placer County  

Placer County Resources for Seniors

Resources for Businesses in Placer County

Resources for Workers in Placer County 

Legal Resources for Residents of Placer County

Free Legal Answers program.  Through this online platform, modest means clients (under 400% of the Federal Poverty Level) located in Northern California (Monterey and north) may ask volunteer attorneys legal questions having to do with the COVID-19 pandemic or wildfires.  Individuals/clients interested in using this service should visit https://ca.freelegalanswers.org/.  You can also click here to see an informational flyer about this program.

Videos: Family Law Concerns

General Information about Custody & Spousal Support

https://www.youtube.com/embed/pce_ggQxX8Q

Child Support and Spousal Support

https://www.youtube.com/embed/0bDIhqkSRy4

Custody & Support

https://www.youtube.com/embed/fyffkpiC5hE

Domestic Violence Protection During the Pandemic

https://www.youtube.com/embed/fXehPb4zX4s

Resources for Help with Utilities for Residents of Placer County

On a Lighter Note

It can’t all be doom and gloom. Here are some resources for you and your family to make the most out of the situation. 

A Project Owner May be Liable for Interfering with a Contract Between a Subcontractor and the General Contractor

subcontractor working

California’s Fourth District Court of Appeal’s recent decision in Caliber Paving Co., Inc. v. Rexford Industrial Realty & Management, Inc. holds that an owner on a construction project may be liable for intentional interference with a contract between the project’s general contractor and its subcontractor.   

Rexford Industrial Realty & Management, Inc. (Rexford) hired Steve Fodor Construction (SFC) as its general contractor to make improvements to a Rexford property.  The scope of work included repaving the parking lots on the property.  SFC hired Caliber Paving Company, Inc. (Caliber) as its subcontractor to perform the parking lot repaving work.   

Caliber showed up to the jobsite on September 11, 2017, and then left because trucks and trailers were parked in the area where the paving work was to be performed.  Caliber demanded that SFC pay a $15,000 “move on” charge provided under the subcontract and refused to return to the project unless SFC agreed to pay.  SFC refused and then terminated Caliber from the project and hired another subcontractor to complete the repaving work.   

Caliber sued SFC for breach of the subcontract, and it sued Rexford for intentional interference with the subcontract.  Caliber claimed that SFC terminated Caliber from the project because Rexford personnel told SFC to “kick [Caliber] off the job or hire somebody else.”     

California law recognizes a tort cause of action against a noncontracting party who intentionally interferes with the performance of a contract, as in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (Applied Equipment).  Intentional interference with contract requires proof of: (1) a valid contract between the plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) breach or disruption of the contractual relationship; and (5) resulting damage.  A contracting party cannot be held liable for conspiracy to interfere with its own contract.  

Rexford filed a motion for summary judgment.  The trial court granted Rexford’s motion, relying on the California Supreme Court’s decision in Applied Equipment: “The tort duty not to interfere with the contract falls only on strangers—interlopers who have no legitimate interest in the scope or course of the contract’s performance.”  The trial court held that Rexford could not be held liable for intentionally interfering with the subcontract between Caliber and RFC because, as owner of the project, Rexford had a legitimate economic interest in the subcontract.

The Appellate Court reversed and remanded the matter to the trial court for further determination.  The Court held that the Applied Equipment decision does not confer immunity for intentional interference for noncontracting parties having an economic interest in the contract.  The Court held that it would make no sense to allow Rexford to escape the consequences of its allegedly intentional misconduct merely because it had an economic interest in the subcontract between RFC and Caliber. 

“Conferring immunity from tort liability for interference with contract on a noncontracting party claiming to have a social or economic interest in the contractual relationship could have the anomalous result of leaving a plaintiff without a remedy for tortious conduct. … A party with an economic interest in a contractual relationship could interfere without risk of facing either tort or contract liability.”  

“Contract law exists to enforce legally binding agreements between parties; tort law is designed to vindicate social policy. (Citation).”   The law places greater moral blame on one who intentionally interferes with another’s contractual relationship, as opposed to a contracting party who fails to fulfill a contractual commitment. 

This differing moral blame is reflected in the assessment of damages an injured party may be entitled to recover for breach of contract, as opposed to tortious misconduct.  Breach of contract damages provide the injured party the amount they would have received if the contract had been fully performed.  The purpose of breach of contract damages is to put the injured party in as good a position as they would have been if the contract had been fully performed.  Consequential damages beyond the parties’ expectations when they entered the contract are not recoverable. 

Tort damages, on the other hand, are awarded for “the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”  In addition, punitive damages may be awarded against a defendant who acts with “oppression, fraud or malice” in committing a tort.  Punitive damages, even for a willful or malicious breach of contract, are not available in the absence of other tortious misconduct.  A plaintiff may be awarded a significantly greater recovery for economic losses caused by a defendant’s tortious misconduct, as opposed to breach of a contract.        

Caliber may be entitled to recover the profits it would have realized from the project if it can prove that RFC breached the subcontract by terminating Caliber prior to completion.  Caliber may be entitled to recover lost profits against RFC and Rexford jointly, and it may be entitled to other consequential and punitive damages against Rexford if it can prove that Rexford intentionally and improperly caused RFC to breach the subcontract.  Rexford will likely argue that it was justified in demanding that RFC terminate Caliber from the project due to Caliber’s refusal to complete the project because of a $15,000 payment dispute.  An “actor having financial interest in third person’s business does not improperly interfere if he did not employ wrongful means and acted to protect his own interest from being prejudiced.” 

The final outcome of the dispute between Caliber, SFC and Rexford remains to be determined, but the Caliber Paving Co. decision provides useful guidance and clarification of the law concerning tortious interference with contract by related third parties, particularly in the construction project setting. 

  1. Decided September 1, 2020.
  2. Applied Equipment Corp. v. Litton Saudi Arabia Ltd., (1994) 7 Cal.4th 503, 513-514.
  3. Pacific Gas & Electric Co. v. Bear Stearns & Co., (1990) 50 Cal.3d 1118, 1126.
  4. Asahi Kasei Pharma Corp. v. Actelion Ltd., (2013) 222 Cal.App.4th 945, 961. 
  5. Applied Equipment, 7 Cal.4th at p. 514.
  6. Applied Equipment, 7 Cal.4th at p. 515.  
  7. Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist., (2004) 34 Cal.4th 960, 968; Civ. Code § 3330.  
  8. Civ. Code § 3333.
  9. Civ. Code § 3294.
  10.  Woods v. Fox Broadcasting Sub., Inc., (2005) 129 Cal.App.4th 344.

Public Contract Code § 9204

Public Contract Code §9204 is a new law that requires a claims resolution procedure for claims arising in public contract. It became effective January 1, 2017 and was recently renewed until January 1, 2027. 

It applies to nearly all public works projects in California that are entered into on or after January 1, 2017. Projects that are excepted from § 9204 include the following: Water Resources, Transportation, Parks and Recreation, Corrections and Rehabilitation, Military, General Services, and the High-Speed Rail Authority. (Cal. Pub. Contract Code § 9204(c)(3)(B)(i-vii)). 

All public entities subject to § 9204 are required to include the § 9204 provisions, or an accurate summary of them, in every project plan and/or specifications. 

Below is an outline of the timeline that the law requires, as well as some practical considerations for public works projects in California. 

Timeline

The process of § 9204 begins once a contractor submits a claim with “reasonable documentation to support the claim” to the public entity. The claim must be sent by registered mail or certified mail with return receipt requested. (Cal. Pub. Contract Code § 9204(c)(1)). The claim can be for one or more of the following: a time extension, payment by the public entity of money or damages, or payment of an amount that is disputed. (Cal. Pub. Contract Code § 9204(c)(1)(A-C)).

After the public entity receives the claim, it has 45 days to “conduct a reasonable review” of the claim and to provide the contractor with a written statement that identifies what portion of the claim is disputed and what portion is undisputed. (Cal. Pub. Contract Code § 9204 (d)(1)(A)). 

If the public entity does not provide a written statement as required within the statute, it results in the claim being deemed rejected in its entirety. (Cal. Pub. Contract Code § 9204 (d)(3)). 

If the public entity identifies any undisputed claims, it must pay those claims within 60 days after it issues its written statement. (Cal. Pub. Contract Code § 9204 (d)(1)(D)). If the public entity fails to make payment within those 60 days, any amounts not paid shall bear interest at 7 percent per annum. (Cal. Pub. Contract Code § 9204 (d)(4)). 

If any part of the claim is disputed by the public entity, then after it issues its response or the time to respond has lapsed, the contractor can demand in writing an informal conference to meet and confer for settlement of the issues in dispute. The public entity has 30 days following a written demand to meet and confer to schedule a conference. (Cal. Pub. Contract Code § 9204 (d)(2)(A)).

Within 10 business days of the conclusion of the meet and confer conference, if any claim or portion of a claim remains in dispute the public entity shall provide the contractor with a written statement identifying the portion of the claim that remains in dispute and any portion that is undisputed. (Cal. Pub. Contract Code § 9204 (d)(2)(B)). The undisputed amounts must be paid within 60 days of the written statement or be subject to the 7 percent interest. 

If claims remain in dispute, the contractor shall provide the public entity with written notice that demands non-binding mediation. The parties have 10 days after the contractors notice to agree to a mediator. If the parties are unable to agree, each will select a mediator and those mediators shall select a qualified, neutral third party to mediate regarding the disputed portion of the claim. (Cal. Pub. Contract Code § 9204 (d)(2)(B)). 

If mediation is unsuccessful, the contractor may pursue litigation, arbitration, etc. for the remaining disputed claims. (Cal. Pub. Contract Code § 9204 (d)(2)(B)).

Practical Considerations

United Contractors was the original sponsor of the bill and it was intended to encourage timely resolution of contractor claims on public works projects. § 9204 is an additional procedure to existing claim resolution procedures such as the Public Contract Code § 10240 through §10240.13, related to state public works arbitration, and § 20104 through §20104.6, related to claims against local agencies under $375,000.00, unless the agency has elected to arbitrate under § 10240, et seq. Practitioners should be aware that deadlines and provisions under existing statutes must still be followed. 

United Contractors labeled the passage of the bill as a “win” for the industry after its multi-year battle to close the gap in prompt payment by public agencies to California contractors. United Contractors is hopeful that § 9204 has created an additional avenue for accelerated settlement of disputed contractors’ claims in public works projects. 

However, celebration of § 9204 may be premature. Currently, it is unclear how § 9204 will fit within the existing statutory scheme and contractors should remain vigilant about pitfalls in handling claims. 

First, under § 9204 waiver of its provisions is void; however, public entities may add contract requirements for change orders, claims, and dispute resolution that do not conflict with § 9204 provisions. This option is made clear in § 9204(f)(2): “a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this §.” This statutory language seems to allow contract procedures to continue to define categories such as notice of potential claim, claim waiver features, negotiations of dispute, evidence of claims and more. 

Next, contractors should be aware that it is possible that the public entity’s written decision, or expiration of its response time thereby rejecting a claim, can trigger the 90-day period to begin arbitration under Pub. Contract Code § 10240.1. Further, the 90-day period under § 10240.1 may expire before mediation takes place under § 9204. 

Alternatively, the public entity’s written decision, or expiration of its response time thereby rejecting a claim, could begin the one-year period in which to initiate a government claim under § 10240.1, which again, may expire before mediation takes place under § 9204.

Third, there is no assurance of receiving earlier payment. Despite the ostensibly quick timelines within § 9204, the dispute resolution procedure leaves noticeable gaps in follow-through. For example, under subdivision (d)(2)(A), the public entity has 30 days following a written demand to meet and confer to schedule a conference. However, there is no parameters on when the meet and confer must be scheduled and little incentive on the public entity to schedule the conference as soon as practicable. The lack of a timeline allows the public entity to use the provisions of § 9204 to prolong the resolution of a claim and leaves the contractor dependent on the cooperation of the public entity. 

In addition, if the meet and confer conference does not resolve the claim, § 9204 does not set a time by which mediation must take place. Once again, the provisions of § 9204 allow the public entity to delay the resolution of a claim and leaves the contractor reliant on the cooperation of the public entity. 

Finally, subcontractors do not gain rights under § 9204. If a subcontractor has a claim, the subcontractors must present their claim to the general contractor. The general contractor must then notify the subcontractor within 45 days as to whether it presented the subcontractor’s claim to the public entity. If the contractor did not present the claim, the contractor must provide a statement of reasons for not doing so. (Cal. Pub. Contract Code § 9204 (d)(5)). Contractors should carefully consider their contractual obligations to the public entity and to the subcontractor if presented with a subcontractor claim. 

Conclusion 

§ 9204 offers another avenue through which contractors can bring claims to public entities. However, § 9204 also introduces another avenue for uncooperative public entities to delay contractor claim resolution. Additionally, if contractors decide to use the new dispute resolution procedures of § 9204, contractors may find their claim to be time-barred from arbitration or litigation under existing statutes. Contractors should exercise caution in outlining their timelines throughout the claim process to ensure they do not miss out on any option for claim relief.