34-2016-00197663

Access Limited Construction vs. Excavating Engineers, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Gest, Aaron D.

El Dorado Irrigation District (the “District”) moves for summary judgment or, in the alternative, summary adjudication in its favor on Excavating Engineers, Inc.’s (“EEI”) Cross-Complaint.

The District’s motion for summary judgment and alternative motion for summary adjudication are DENIED, as follows.

Request for Judicial Notice

The District’s request for judicial notice in support of its motion is unopposed and is granted.

Evidentiary Objections

The District’s evidentiary objections Nos. 1, 3, 4, and 16-20 are sustained.

The Court does not rule on the District’s remaining evidentiary objections since they concern evidence immaterial to decision on the motion. (Code Civ. Proc., § 437c, subd. (q).)

Procedural & Factual Background

This action was transferred from El Dorado County to Sacramento County on a motion for change of venue by order dated June 9, 2016.

All parties to this action except EEI and the District appear to have been dismissed. The District’s motion concerns EEI’s Cross-Complaint filed October 20, 2015. EEI alleges two causes of action against the District: breach of contract and declaratory relief. Both causes of action concern Contract No. E14-05 (the “Contract”) for

construction of the Camp 2 Replacement Bridge (the “Project”) entered into by EEI and the District on June 9, 2014.

The District provides water to over 100,000 people within a 220 square mile service area for municipal, industrial, and irrigation uses. To gain access to District water and hydropower facilities, the District maintains and uses a roadway located on U.S. National Forest lands called the Camp 2 Road. Along the road, a steep cliff interrupts the roadbed, creating a gap of approximately 125 feet. The Camp 2 Bridge spans that gap. EEI’s work on the Project included demolition of the existing Camp 2 Bridge and construction of a new bridge in its place.

EEI began work on the Project site on August 4, 2014. Throughout construction, EEI’s work on the Project was delayed. The District blamed the delays on EEI and terminated the Contract for cause on December 31, 2014.

EEI alleges the District breached the Contract in multiple respects, including by failing to approve change orders for, and to pay for, added and changed work on the Project, and for improperly terminating the Contract. (Cross-Compl. ¶ 9.) EEI alleges these breaches resulted in at least $2,600,000 in damages. (Id. ¶ 10.) EEI also seeks a judicial determination of the parties’ respective rights under the Contract. (Id. ¶¶ 26-27.)

The District moves for summary judgment on EEI’s Cross-Complaint on the ground that EEI did not comply with the Contract’s claims procedures, thereby failing to exhaust its administrative remedies under the Government Claims Act, Government Code sections 910, et seq. The District also argues EEI cannot “pass through” its subcontractor Access Limited Construction’s (“ALC”) claims because EEI and ALC settled their claims against each other, thereby extinguishing any potential liability EEI may have had to ALC.

The Contract’s Claims Procedure

Government Code sections “930.2 and 930.4 authorize local agencies such as the [District] to ‘include in any written agreement … provisions governing the presentation

… of any or all claims arising out of or related to the agreement …’ (§ 930.2), and provide that the ‘claims procedure established … exclusively governs the claims to which it relates …’ (§ 930.4).” (Arntz Builders v. City of Berkeley (2008) 166 Cal.App.4th 276, 280.) These statutes “allow local agencies to develop their own claims procedures for contractual disputes as an alternative to the section 910 claims requirements.” (Id. at 288.)

Article 12 of the Contract is titled “Claims by Contractor” and expressly references section 930.2 of the Government Code. (See Article 12(A)(5) [“The provisions of this Article 12 constitute a non-judicial claim settlement procedure, and also a claim presentment procedure by agreement under Section 930.2 of the California Government Code . . . .”].)

Article 12 of the Contract provides in relevant part:

12. CLAIMS BY CONTRACTOR

A. General

. . . .

2. Work Disputes: Contractor shall

give written notice to District of any dispute arising under the Contract Documents respecting the true value of any Work performed, the implementation or performance of Work required by Contract Documents, any Work omitted,

any extra Work that Contractor may be required to perform or time extensions, respecting the size of any
payment to Contractor during the performance of Contact Documents, or of compliance with the Contract Documents

procedures. Contractor shall give notice promptly, but, in no event more than thirty (30) days after discovery of the matter, or other, shorter time, provided in Contract
Documents. District will render a determination regarding the issue, which shall be final. If Contractor disagrees with District’s decision, Contractor’s sole and exclusive remedy is to file a claim in accordance with this Article 12. Pending the resolution of any claim, Contractor shall diligently prosecute the Disputed Work to Final Completion.

. . . .

4. “Claim” means a written demand or

written assertion by Contractor seeking, as a matter of right, the payment of money, the adjustment or interpretation of Contract Documents terms, or other relief arising under or relating to Contract Documents. In order to qualify as a “claim,” the written demand must state that it is a claim submitted under this Article 12.

5. A voucher, invoice, proposed change, Application for Payment, cost proposal, RFI, change order request, or other routine or authorized form of request for payment is not a claim under the Contract Documents. If such request is disputed as to liability or amount, then the disputed portion of the submission may be converted to a claim under the Contract Documents by submitting a separate claim in compliance with claim submission requirements.

6. The provisions of this Article 12

constitute a non-judicial claim settlement procedure, and also a claim presentation procedure by agreement

under Section 930.2 of the California Government Code

, and shall survive termination, breach or completion of the Contract Documents. Contractor shall bear all costs incurred in the preparation and submission of a claim. Pursuant to Government Code Section 930.2, the one-year period In Government Code section 911.2 shall be reduced to 150 days. Any claims shall be presented in accordance with the Government Code and shall affirmatively indicate Contractor’s prior compliance with the claims procedure herein and previous dispositions under paragraph 12.B.3 below.

B. Procedure

1. Should any clarification, determination, action or inaction by District or Engineer, Work, or any other event, in the opinion of Contractor, exceed the requirements of or not comply with Contract Documents in any way, or otherwise result in

Contractor seeking additional compensation in time or money or damages for any reason (collectively “Disputed Work”), then Contractor and District will make good faith attempts to resolve informally any and all such issues, claims and/or disputes. Before commencing the
Disputed Work, or within seven Days after Contractor’s first knowledge of the Disputed Work, whichever is earlier, Contractor shall file a written notice and cost proposal for the Disputed Work with District stating clearly and in detail its objection and reasons for contending the Disputed Work or interpretation is outside or in breach of the requirements of Contract Documents. If a written notice and cost proposal for Disputed Work is not issued within this time period, or if Contractor proceeds with the Disputed Work without first having given the notice required by this paragraph 12.B.1, Contractor shall waive its rights to further claim on the specific Issue.

2. District will review Contractor’s timely notice and cost proposal for Disputed Work and provide a decision. If, after receiving the decision, Contractor disagrees with it or still considers the Work required of it to be outside of the requirements of Contract Documents, it shall so notify District, in writing, within seven Days after receiving the decision, by submitting a notice of potential claim, stating that a formal claim will be issued. Within 30 Days of receiving the decision,

Contractor shall submit its claim in the form specified herein and all arguments, justification, cost or estimates, schedule analysis, and detailed documentation supporting its position. Contractor’s failure to furnish notification within seven Days and all justifying documentation within 30 Days will result in Contractor waiving its right to the subject claim. If Disputed Work persists longer than 30 Days, then Contractor shall, every 30 Days until the Disputed Work ceases, submit to District a document titled “Claim Update” that shall update and quantify all elements of the claim as completely as possible. Contractor’s failure to submit a Claim Update or to quantify costs every 30 Days shall result in waiver of the claim for that 30-Day period. Claims or Claim Updates stating that damages, total damages (direct and indirect), schedule input and/or any time extension will be determined at a later date shall not comply with this paragraph 12.8.3 and shall result In Contractor waiving its claim(s).

3. Upon receipt of Contractor’s formal

claim including all arguments, justifications, cost or estimates, schedule analysis, and documentation supporting its position as required herein, District or its designee will review the issue and render a final determination. District may in its discretion conduct an administrative hearing on Contractor’s claim, in which case Contractor shall appear, participate, answer questions and inquiries, and present any further evidence or analysis requested by District to evaluate and decide Contractor’s claim.

4. Claims shall be calculated in the same manner as Change Orders per Section 01250 (Modification Procedures). EXCEPT WHERE PROVIDED BY LAW, OR ELSEWHERE IN THESE CONTRACT DOCUMENTS (IF APPLICABLE), DISTRICT SHALL NOT BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, AND CONTRACTOR SHALL NOT INCLUDE THEM IN ITS CLAIMS. CONTRACTOR SHALL BE LIMITED IN ITS RECOVERY ON CLAIMS TO THE CHANGE ORDER CALCULATIONS SET FORTH IN SECTION 01250 (MODIFICATION PROCEDURES).

5. If Contractor’s claims submitted in

accordance with this Article 12 at Project completion total less than $375,000, then claims resolution shall proceed in

the manner prescribed by Article 1.5, Chapter 1, Part 3 of Division 2 of the California Public Contract Code.

C. Claim Format

1. Contractor shall submit the claim

justification in the following format:

a. Cover letter and certification

under penalty of perjury of the accuracy of the claim;

b. Summary of claim, including

underlying facts, entitlement, schedule analysis, quantum calculations, contract provisions supporting relief;

c. List of documents relating to

claim including Specifications, Drawings, clarifications/requests for information, schedules, notices of delay, and any others;

d. Chronology of events and

correspondence;

e. Analysis of claim merit;

f. Analysis of claim cost; and

g. Attach supporting documents

referenced in paragraph 12.C.1.C.

. . . .

F. Exclusive Remedy

Contractor’s performance of its duties and obligations specified in this Article 12 and administration of a claim as provided In this Article 12 is Contractor’s sole and exclusive remedy for disputes of all types pertaining to the payment of money, extension of time, the adjustment or interpretation of Contract Documents terms or other contractual or tort relief arising from Contract Documents. This exclusive remedy and the limitation of liability (expressed herein and elsewhere throughout Contract Documents) apply notwithstanding the completion, termination, suspension, cancellation, breach or rescission of the Work or Contract Documents, negligence or strict liability by District, its representatives, consultants or agents, or the transfer of Work or the Project to District for any reason whatsoever. Contractor waives

and covenants not to use any claims of waiver, estoppel, release, bar, or any other type of excuse for non-

compliance with the claim submission, administration, and mediation requirements. Compliance with the claim submission, administration, and mediation procedures described in Article 12 is a condition precedent to the right to commence litigation or commence any other legal action. Claim(s) or Issue(s) not raised in a timely protest and timely claim submitted under this Article 12 may not be asserted in any subsequent Government Code claim, litigation or legal

action. District shall not be deemed to waive any provision under this Article 12, if at District’s sole discretion, a claim is administered in a manner not in accord with this Article 12. Contractor’s timely and full compliance with its obligations in this Article 12 shall constitute a condition precedent to Contractor’s compliance with the claims presentation requirements under the California Government Code, which

shall remain upon substantial completion or termination of the Contract Documents.

(General Conditions, Section 700, Article 12 of the Contract, Decl. of Brian Mueller ISO Mot. for Summ. J. [“Mueller Decl.”], Ex. 2 [emphasis added].)

Legal Standard

In evaluating a motion for summary judgment or summary adjudication, the Court engages in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the challenged causes of action cannot be established, or that there is a complete defense to the causes of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc., § 437c, subd. (p)(2)].) A defendant is not required to conclusively negate one or more elements of the plaintiff’s causes of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of his causes of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal. 4th at 853-855.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the causes of action alleged or a defense to them. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners (1993) 17 Cal.App.4th 322, 326-327.)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the opposing party. ( Aguilar, supra, 25 Cal. 4th at 843.) Summary judgment or summary adjudication is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

Discussion

Failure to Exhaust Administrative Remedies

“Presentation of a claim, when required by law, is a mandatory pre-requisite to maintain a cause of action against a public entity, and failure to [properly] file a claim is fatal to the claimant’s cause of action.” (Cal. Gov’t Tort Liability Practice (Cont.Ed.Bar. 2016) § 5.14, page 5-13 [citing State v. Super. Ct. (2004) 32 Cal.4th 1234, 1239].) “Even if the public entity has actual knowledge of facts that might support a claim, the claims [procedures] still must be satisfied. [Citation.] ‘The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to

prevail.’ [Citations.]” (DiCampli-Mintz v. Cnty. of Santa Clara (2012) 55 Cal.4th 983, 990.)

The District moves for summary judgment on EEI’s Cross-Complaint, arguing: “EEI failed to comply with California Government Code section 930.2 and the Contract’s Administrative Claims Presentation Procedure. Therefore its claims are barred as a matter of law.” (Mem. P.&A. ISO Mot. for Summ. J. [“Mot.”] 15:6-7.) The District contends:

[T]he Contract[] sets forth . . . very specific and detailed procedure[s] for EEI . . . to present claims and disputed work. . . .

. . . .

EEI, throughout the entirety of the Project, certified in weekly minutes that it had no claims or disputed work. . . .

. . . Moreover . . . [n]ot once during the [P]roject did EEI submit a notice of potential claim pursuant to the [Contract’s terms.]

. . . .

On May 28, 2015, nearly six months after EEI was terminated for cause, . . . EEI submitted what it purportedly claims is its “certified claim” pursuant to Article 12 of the Contract. . . . On August 26, 2015, the District issued to EEI its final determination that the “claim” submitted . . . was untimely and without merit, and therefore denied, as well as directed EEI to Government Code section 930.4 permitting EEI to submit an application for leave to present late claims. . . . However, EEI did not request to present a late claim . . . .

(Id. at 9:3-13:17.)

EEI rejoins that it “complied or substantially complied with [the Contract’s] notice and claims procedures.” (Opp’n 5:9-10.) Specifically, EEI argues the Contract’s claims procedures are conflicting and ambiguous (Opp’n 6:4-7:9); the contractual claims process requires attempts at informal resolution and a preliminary decision/denial by the District before the formal claim process is triggered (Opp’n 6:21-7:1); EEI provided notice to the District of issues as they arose pursuant to the Contract’s informal resolution process (Opp’n 7:11-12:26); the District failed to provide a preliminary decision/denial triggering the formal claims process (Opp’n 18:6-8); and EEI timely submitted its formal claim on May 28, 2015, which was less than thirty days after the District first indicated it had made a decision as to the pending issues EEI raised during the Project. (Opp’n 20:24-21:2.)

In support of its opposition, EEI presented evidence to support, inter alia, the following facts:

The Project required substantial quantities of rebar for structural reinforcement. (Decl. of Bobby Lathrop ISO Opp’n [“Lathrop Decl.”] ¶ 3.) Before EEI started its work on the Project, EEI project manager and chief estimator, Bobby Lathrop, discussed with the District that the Contract’s rebar quantities were unrealistic and would need to be increased significantly. (Ibid.) On July 23, 2014, Lathrop requested via email a change order for the increased rebar quantities as well as the District’s approval of EEI’s use of a rebar subcontractor, rather than EEI performing the rebar work itself, as bid. (Ibid.; EEI’s Evid. in Opp’n [“EIO”], Ex. 3.) The next day, on July 24, 2014, the District acknowledged that rebar quantities had increased by 47% and approved EEI’s use of a rebar subcontractor. (Lathrop Decl. ¶ 3; EIO, Ex. 3.) Minutes from the Project’s July 31, 2014 Construction Meeting state that “the poundage of the rebar” was the expected subject of a future change order. (EIO, Ex. 4.) Upon EEI’s termination, EEI’s change order request for additional rebar remained pending. (Lathrop Decl. ¶ 3.)

Rock anchor lengths were the topic of another EEI change order request. In August and September 2014, the District knew longer rock anchor lengths were needed for the Project, which could increase Project costs and time. (Lathrop Decl. ¶ 6.) On October 29, 2014, the District agreed to pay for the increased anchor lengths, but did not provide a time extension for the corresponding delay. (Ibid.) Following multiple discussions with the District, on November 24, 2014, Lathrop submitted a change order request for additional time. (Ibid.; EIO, Ex. 25.) Minutes from the Project’s December 11, 2014 Construction Meeting state a potential change order for “additional time for tie-back anchors” was “under District review.” (EIO, Ex. 27.) This change order request remained pending at the time of EEI’s termination. (Lathrop Decl. ¶ 6.)

Over two months after its termination, on March 20, 2015, EEI sent a letter to the District requesting a decision on these outstanding change order requests, among other things, and “new items caused by [EEI’s termination.]” (Mueller Decl., Ex. 11.) The first paragraph of the letter reads, “[EEI] requests a final determination of [these items] so that it may proceed with the claim process pursuant to Article 12.” (Ibid.) On April 13, 2015, the District’s internal counsel told EEI’s attorney, Louis Blum, that the District intended to respond to EEI’s March 20, 2015 letter. (Decl. of Louis Blum ISO Opp’n [“Blum Decl.”] ¶ 4.) On April 28, 2015, Blum sent a letter to the District on EEI’s behalf, requesting the District’s response. (Ibid; EIO, Ex. 33.) The letter states, inter

alia: “once [EEI] has your final determination on issues outstanding as of the termination, . . . [EEI] will submit certified claims under Article 12.” (EIO, Ex. 33.) The District subsequently referred EEI’s March 20, 2015 letter to outside counsel. (Blum Decl. ¶ 5; EIO, Ex. 34.)

On May 1, 2015, the District’s outside counsel sent Blum a letter “as the District’s initial response to EEI’s 3/20/15 Submission and to [Blum’s] April 28, 2015 letter.” (EIO, Ex. 35.) The scope of the letter was expressly limited to “the contract’s procedures for notice, documentation, submission, and negotiation of claims,” which the District maintained “EEI has generally disregarded.” (Ibid.)

On May 7, 2015, EEI responded with a letter stating EEI “take[s] [the District’s May 1st] letter as a ‘decision’ on each of the claims discussed in [EEI’s] letter of March 20,

2015 . . . .” (EIO, Ex. 36.) EEI’s May 7, 2015 response further stated that “EEI will therefore submit a . . . certified claim within 30 days of [the District’s] letter.” (Ibid.)

On May 28, 2015, EEI submitted its formal, certified claim (“Certified Claim”) pursuant to Article 12 of the Contract. (Decl. of Martin Smith ISO Opp’n [“Smith Decl.”] ¶ 7; EIO, Ex. 28.) The Certified Claim is certified under penalty of perjury by EEI’s president, Marty Smith, and includes discussion of the above-referenced change order requests. (Ibid.) On August 26, 2015, the District sent its “final determination” in response to EEI’s Certified Claim “den[ying] every part of the claim.” (Mueller Decl., Ex. 18.)

Here, the District has not shown that EEI’s Cross-Complaint is barred by the failure to exhaust administrative remedies.

As a preliminary matter, the Court notes that the District’s moving papers do not discuss Article 12’s informal resolution procedures, and the Court agrees with EEI that certain provisions of Article 12 appear conflicting. For example, Article 12(A)(2) discusses “Work Disputes” and provides that the “Contractor shall give written notice to District of any dispute . . . respecting . . . any extra Work that Contractor may be required to perform or time extensions . . . promptly, but in no event, more than thirty

(30) days after discovery of the matter . . . .” In contrast, Article 12(B)(1) discuses “Disputed Work” and states: “Should any . . . event . . . result in Contractor seeking additional compensation in time or money . . . for any reason . . . , then Contactor and District will make good faith attempts to resolve informally any and all issues, claims and/or disputes. Before commencing the Disputed Work, or within seven Days after Contractor’s first knowledge of the Disputed Work, whichever is earlier, Contractor shall file a written notice and cost proposal . . . .” It is unclear when the thirty-day notice for “work disputes” versus the seven-day notice for “disputed work” would apply.

Further, EEI’s evidence presented in opposition raises a triable issue of fact concerning whether EEI timely submitted its Certified Claim under Article 12. Article 12 (A)(5) states a change order request “is not a claim under the Contract Documents.” Only if “such request is disputed as to liability or amount” may “the disputed portion . . .

be converted to a claim.” Here, EEI presented evidence that it submitted two change order requests, which remained pending at the time EEI was terminated. Per Article 12’s terms, EEI was not required to submit a claim in connection with those requests until they were disputed. Moreover, EEI presented evidence that it submitted its Certified Claim within thirty days after it finally received a response from the District concerning those requests.

Also, to the extent the District is challenging in its motion EEI’s Certified Claim for reasons other than untimeliness (see, e.g., Mot. 19:1-4), the Court finds EEI’s evidence raises a triable issue of material fact as to whether the Certified Claim substantially complied with Article 12’s Claim Format requirements. “Where a claimant has attempted to comply with the claim requirements but the claim is deficient in some way, the doctrine of substantial compliance may validate the claim ‘if it substantially complies with all of the . . . requirements . . . even though it is technically deficient in one or more particulars.’ [Citation.]” (Connelly v. Cnty. of Fresno (2006) 146 Cal.App.4th 29, 38.) “‘The doctrine is based on the premise that substantial compliance fulfills the purpose of the claims statutes, namely, to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation. [Citations.]’ [Citation.]” (Ibid.) “The test for substantial compliance is whether the . . . claim discloses sufficient information to enable the public entity to make an adequate investigation of the claim’s merits and settle it without the expense of litigation.” (Ibid.) Although EEI raised the doctrine of substantial compliance in its opposition, the District did not discuss the doctrine or its application to EEI’s Certified Claim in its reply.

For the stated reasons, the District’s motion for summary judgment/adjudication based on the failure to exhaust administrative remedies is DENIED.

Pass-Through Claims

The District also moves for summary judgment, arguing “[t]o the extent that EEI’s breach of contract claim against the District is based on, or derives from, claims belonging to ALC, such claim is barred as a matter of law because EEI cannot pass-through ALC’s claims.” (Mot. 21:4-6.) The District maintains:

After the project, EEI, ALC, and its sureties engaged in settlement discussions. On October 22, 2015, EEI, ALC, U.S. Specialty Insurance Company, and Nationwide entered into a full settlement and release agreement. [fn.] .

. . The settlement was in fact a “walk away,” with each party releasing claims against the others. [fn.] . . . Thus, EEI has no potential liability to its subcontractor ALC and therefore has no standing to assert pass-through claims belonging to ALC against the District.

. . . .

. . . Under the “Severin doctrine,” a prime contractor may not sue the government for contract damages incurred by a subcontractor unless the prime contractor remains potentially liable to the subcontractor for those same damages; thus, a pass-through suit may be maintained only when the prime contractor has reimbursed its subcontractor for the latter’s damages or remains liable for such reimbursement in the future. [Citation.] Here, EEI is suing the District for breach of contract and contract damages, and asserting that “ALC claims its delay was excused . . . , and EEI has agreed to allow ALC to pass such claim as well as other claims affecting the cost and

duration of ALC’s work through to the District. [fn.] EEI cannot rely upon claims that ALC may have had against EEI or the District to form the basis of EEI’s own breach of contract claim against the District, because any potential liability to ALC has been extinguished. [fn.]

(Id. at 21:6-23:1.)

EEI responds that it “is not pursuing any such claim[,]” therefore this portion “of the District’s motion is moot.” (Opp’n 24:9-15.)

Since EEI states it is not seeking “any direct damages based on ALC’s pass-through claim” (Opp’n 24 fn. 6), the District’s motion for summary judgment/adjudication as to ALC’s pass-through claims is DENIED as moot.

Conclusion

The District’s summary judgment motion and alterative summary adjudication motion are DENIED.

EEI’s counsel shall prepare an order for the Court’s signature pursuant to Code of Civil Procedure section 437c, subsection (g), and California Rules of Court, rule 3.1312.