United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE MOTION FOR SUMMARY
JUDGMENT (Doc. 278)
Lawrence J. O’Neill United States Chief District Judge
PRELIMINARY STATEMENT TO PARTIES AND
in the Eastern District of California carry the heaviest
caseloads in the nation, and this Court is unable to devote
inordinate time and resources to individual cases and
matters. Given the shortage of district judges and staff,
this Court addresses only the arguments, evidence, and
matters necessary to reach the decision in this order. The
parties and counsel are encouraged to contact the offices of
United States Senators Feinstein and Boxer to address this
Court’s inability to accommodate the parties and this
action. The parties are required to reconsider consent to
conduct all further proceedings before a Magistrate Judge,
whose schedules are far more realistic and accommodating to
parties than that of U.S. Chief District Judge Lawrence J.
O’Neill, who must prioritize criminal and older civil
trials set before Chief Judge O’Neill trail until he
becomes available and are subject to suspension mid-trial to
accommodate criminal matters. Civil trials are no longer
reset to a later date if Chief Judge O’Neill is
unavailable on the original date set for trial. Moreover,
this Court's Fresno Division randomly and without advance
notice reassigns civil actions to U.S. District Judges
throughout the nation to serve as visiting judges. In the
absence of Magistrate Judge consent, this action is subject
to reassignment to a U.S. District Judge from inside or
outside the Eastern District of California.
case concerns disputes that arose over a large-scale
broadband infrastructure construction project (“the
Project”) throughout California’s Central Valley.
See Doc. 84, Plaintiff’s Second Amended
Complaint (“SAC”), at ¶ 1. The goal of the
Project is to create an approximately 1, 371-mile broadband
fiber network through 18 Central Valley counties.
Id. at ¶ 22. Because of various ongoing
disputes that arose during the construction of the Project,
MP Nexlevel of California, Inc. (“MP”) brought
this suit against CVIN, LLC (“CVIN”) d/b/a Vast
Networks, among others.
response, CVIN asserts a number of counterclaims against MP.
See Doc. 94. In its eighteenth counterclaim, CVIN
alleges that MP did not have a proper and valid
contractor’s license when perfoming its work on the
Project and, accordingly, CVIN is entitled to recover all
compensation it paid to MP for its work on the Project under
California Business and Professions Code § 7031(b)
(“§ 7031(b)”). Id. at ¶¶
before the Court is MP’s motion for summary judgment on
that counterclaim. Doc. 278. The Court took the matter under
submission on the papers Local Rule 230(g). For the following
reasons, the Court DENIES MP’s motion.
RULING ON OBJECTIONS
Court notes at the outset that the parties have lodged an
enormous number of evidentiary objections. See
generally Docs. 343-347; 353-366. In fact, there are
relatively few pieces of evidence to which the parties do not
object. The Court has carefully reviewed the objections and
need only consider them to the extent the objected-to
evidence is material to the Court’s ruling. See
Norse v. City of Santa Cruz, 629 F.3d 966, 973
(9th Cir. 2010) (en banc) (holding district court “must
also rule on evidentiary objections that are material to its
ruling”). The parties’ objections are OVERRULED
unless otherwise indicated, either explicitly or by the
Court’s not addressing objected-to evidence below.
FACTUAL AND PROCEDURAL BACKGROUND
following facts are undisputed. The Project is divided into
30 geographical “Segments.” SAC at ¶ 28. The
Segments were constructed on public road rights-of-way owned
and controlled by various state and local governments. Doc.
352, CVIN’s Separate Statement of Disputed Facts
(“SSDF”), at ¶ 13. “Significant
portions of each of the Segments were constructed in areas
subject to the jurisdiction of the California Department of
Transportation (‘Caltrans’).” SSDF at
performed work on Segments 8, 10, 12, 13, 14, 15, 18, 19, 21,
22, 25, 26, 26, and 30 (collectively, “the
Segments”). CVIN’s Claims at ¶ 8. Beginning
in November 2011, MP and CVIN entered into a separate
contract for each Segment, id. at ¶ 7, though
“[t]he terms and conditions of each of the written
contracts . . . are essentially identical except for the
quantities, unit prices, fixed sum to be paid to MP Nexlevel,
and dates of execution.” Id. at ¶ 10. The
parties entered into contracts for Segments 10, 12, 13, 15,
18, and 30 on November 18, 2011. Doc. 206, Declaration of
Anthony Sturtz (“Sturtz Decl.”) at ¶ 3;
Sturtz Decl., Exs. A-F. In January 2012, they entered into
contracts for Segments 8 and 14. Sturtz Decl. at ¶ 4. On
March 23, 2012, they entered into a contract for Segment 22.
Id. And on May 2, 2012, they entered into contracts
for Segments 19, 21, 25, 26, and 27. Doc. 199, Joint
Statement of Undisputed Facts (“JUF”), at ¶
contract explained that
[CVIN] has been awarded a grant by the Broadband Technology
Opportunities Program (“BTOP”) administered by
the National Telecommunications and Information Association
(“NTIA”) to design and construct the [Project] .
. . The [Project], as defined herein, consists of a 1, 371
mile fiber backbone network through 18 Central Valley
counties. The network will provide internet backbone service
to these counties and will construct 12 new wireless nodes in
order to deploy WiMax last mile service to rural portions of
Fresno, Tulare, Kings and Kern counties.
Doc. 208, Ex. A, CVIN LLC Construction Agreement
(“Project Contract”), at 1. The contracts
required that MP be “a licensed California general
contractor.” Id.; JUF at ¶ 18. When
submitting its bids for the contracts, MP was asked to
provide its “California General Contractor
License” number. SSDF at ¶ 17. MP stated on the
bid form: “California Contractor’s License is
#907019, ” referring to its C-7 Low Voltage Systems
license (“C-7 license”), which it had obtained
from the California Contractors State License Board
(“the Board”) in November 2007. See Doc.
201, Ex. A at 1; SSDF ¶ 17.
2, 2012, MP received a Class A General Engineering
Contractor’s license (“Class A license”)
from the Board. Id. Louis-George Menard was listed
as MP’s “responsible managing employee”
(“RME”) for the license. See Doc. 201,
Ex. A at 1. Both of MP’s licenses remained effective
through July 29, 2014, when MP was no longer performing any
work for CVIN. Id.; JUF at ¶ 2.
Project had two phases: (1) underground construction and
excavation for the installation of conduit (“the
Underground Phase”) and (2) the installation of fiber
optic cable into the conduit. SSDF at ¶ 3. MP bid to
perform work on both phases; however, CVIN awarded contracts
to MP for only the first phase. Id. at ¶ 4;
see also, e.g., Sturtz Decl., Ex. J at 7 (MP’s
bid for both phases on Segment 8). The first phase
“constituted only a portion of the work to be performed
on the Project in order to successfully complete the
installation of the network, ” SSDF at ¶ 8, and
had to be completed before the second phase could begin.
See SSDF at ¶¶ 3, 9; Doc. 329 at 13. After
the first phase was completed, CVIN completed the second
phase itself. SSDF at ¶ 9; Doc. 329 at 13.
majority of [MP’s] work for CVIN involved burying
conduit underground.” Sturtz Decl. at ¶ 17.
Pursuant to the parties’ contracts, MP was required
“to perform underground construction, including
trenching and [Horizontal Directional Drilling
(“HDD”)]/boring, excavate, compact and backfill
trenches, and pour over roadway sections where it had
trenched.” SSDF at ¶ 5.
created specifications for the construction of the
Underground Phase. See Doc. 322, Declaration of
James Twineham (“Twineham Decl.”), Ex. 7,
“CVNGBIP Underground Plant Construction
Specifications” (“the Specifications”). The
purpose of of the Specifications was to provide “CVIN,
consulting engineers, contractors and other interested
parties with information on the construction of [the
Underground Phase].” Id. at p. 1. The
“information and recommendations in [the
Specifications] [were] mandatory, ” and explained that
“[d]eviations from [them] shall be made only with the
prior written approval of the engineer and/or owner.”
Id. at ¶ 5.
instance, the Specifications provided detailed background and
guidance on “Trench Excavating, Grading, and Conduit
Laying.” Specifications at ¶ 10. The
Specifications defines a trench as including “those
conditions in which a conduit is installed in a relatively
narrow ditch that has been cut in undisturbed soil and the
ditch is backfilled to the original level, ” and
explained that “[t]renching is accomplished with the
use of some type of mechanical machine, backhoe, trencher,
rock saw or plow, operated by a reliable professional
operator.” Id. at ¶ 10.1. The conduit
depth for the Project was 36 inches unless otherwise
specified, with a minimum conduit radius of 30 inches.
Id. at ¶ 10.2.
Specifications also provided requirements and guidance for
HDD. See Id. at ¶¶ 11, 13.4. Among other