12-20-2009, 11:53 PM
Join Date: May 2007
Bixby vs Rutherford
Bixby vs Rutherford
6. On August 4, 2009, the RUTHERFORDS stated in writing that they would make no
further payments under the contract until all work was completed, thereby repudiating the express terms
of the contract. On August 7,2009, the RUTHERFORDS were presented with an invoice for contract
work that was due by August 17,2009. On August 18,2009, the RUTHERFORDS were given a notice
of breach for non-payment and were given ten (10) days to cure as provided in their contract. Plaintiff
continued to work, notwithstanding the RUTHERFORDS' breach.
7. Plaintiff is informed and believes that in late August, the RUTHERFORDS contacted the
Sacramento County Building Department and insisted that a Stop Work Order be issued because a
retaining wall to be constructed in their backyard had not been permitted properly. A Stop Work Order
was issued on August 27,2009, citing, "need permits for grading and retaining wall", which prevented
and excused BKBY from performing any further work.
8. On September 3, 2009, Plaintiff terminated the contract with the RUTHERFORDS in
writing for non-payment.
4. That the interests and claims and the estates of all Defendants named herein, and each14 the Court further order that the Plaintiff, or any party to this action, may become a purchaser at sale;
13 of them, be determined to be of inferior priority to that of Plaintiff and subj ect to Plaintiffs lien. That
THIRD CAUSE OF ACTION
17. Cross-complainants refer to and incorporates as though
fully set forth herein Paragraphs 1 through 16.
18. At or about the time of execution of the building
Contract for the addition and other miscellaneous work, BIXBY
intentionally and/or negligently misrepresented to RUTHERFORDS,
that he was willing to complete all of the addition and/or the
repairs for the agreed Contract price of $235,904.28.
RUTHERFORDS have since been informed that it is BIXBY's custom
and practice to agree on a Contract price and then during the
course of construction require owners to agree to significant and
multiple Change Orders in order to increase what he will make as
profit on each job. Said intent was misrepresented and/or
concealed from RUTHERFORDS at the time they agreed to the
Contract price and signed the Construction contract.
19. When BIXBY made the representations to RUTHERFORDS that
he could, and would, complete the Contract for the agreed-upon
amount, BIXBY knew that he would be generating Change Orders in
the future. BIXBY made the representations with the intent to
defraud and induce cross-complainants to enter into the Contract
for an agreed amount, knowing that said amount would be increased
by Change Orders. At the time RUTHERFORDS entered into the
Contract, they did not know the representations made by BIXBY
were false and believed they were true and acted in justifiable