Pool construction abandonment
We signed a contract on November 2006 to have our pool done with a CA licensed pool contractor. He has been on and off on our project and we still have no pool (we have gunite, coping and tile). Last week we sent him a certified letter asking for a completion date and proper staffing of our project. We have made ALL payments scheduled and required. He has not shown up and hasn't contacted us back. We want to send him a second letter but don't know what to state in it and if we should wait a week or two. I believe our next step should be the license board and finding a lawyer for a civil suit, but don't know in what order we should do that. Also, we've already spent a lot of money, we'll have to spend more to hire someone else to finish the pool. I'm afraid the lawyer fees will be too much and we won't be able to get any compensation out of the contractor. Please advise!
Re: Pool construction abandonment
I thank attorney Whipple for his input and would like to address his two points briefly.
In consumer protection statutes like this, the "prevailing party" concept applies to prevailing plaintiffs. For prevailing defendants to be awarded attorneys fees, they must show that the plaintiff's action was TOTALLY without merit. See Stephens v. Coldwell Banker Commercial Group, Inc. 199 C.3d 1394 (1988); Cummings v. Benco 11 C.4th 1383 (1992). In the facts presented, it seems there is a good faith basis for bringing the lawsuit. An attorney would have to conduct an investigation to be sure.
As to the possibility of recovery when there is a bankrupt contractor, I made mention (perhaps too subtly) in my first answer of the legislature's recognition of this problem in enacting the license bond law. Every contractor, to be licensed, must post a license bond in the amount of $12,500.00 for the benefit of anyone the contractor harms by way of a violation of the license law. Like I mentioned, however, the bond is distributed pro rata among all claimants, so if there are numerous claimants, the recovery of each could be miniscule. Still, I name the surety as a defendant in all of my lawsuits against contractors.
I do not disagree with the substance of attorney Whipple's answer, but I do want to offer my two-cents on the issues he raises.
Re: Pool construction abandonment
I thank attorney Whipple for his input and would like to address his two points briefly.
In consumer protection statutes like this, the "prevailing party" concept applies to prevailing plaintiffs. For prevailing defendants to be awarded attorneys fees, they must show that the plaintiff's action was TOTALLY without merit. See Stephens v. Coldwell Banker Commercial Group, Inc. 199 C.3d 1394 (1988); Cummings v. Benco 11 C.4th 1383 (1992). In the facts presented, it seems there is a good faith basis for bringing the lawsuit. An attorney would have to conduct an investigation to be sure.
As to the possibility of recovery when there is a bankrupt contractor, I made mention (perhaps too subtly) in my first answer of the legislature's recognition of this problem in enacting the license bond law. Every contractor, to be licensed, must post a license bond in the amount of $12,500.00 for the benefit of anyone the contractor harms by way of a violation of the license law. Like I mentioned, however, the bond is distributed pro rata among all claimants, so if there are numerous claimants, the recovery of each could be miniscule. Still, I name the surety as a defendant in all of my lawsuits against contractors.
I do not disagree with the substance of attorney Whipple's answer, but I do want to offer my two-cents on the issues he raises.
Re: Pool construction abandonment
I thank attorney Whipple for his input and would like to address his two points briefly.
In consumer protection statutes like this, the "prevailing party" concept applies to prevailing plaintiffs. For prevailing defendants to be awarded attorneys fees, they must show that the plaintiff's action was TOTALLY without merit. See Stephens v. Coldwell Banker Commercial Group, Inc. 199 C.3d 1394 (1988); Cummings v. Benco 11 C.4th 1383 (1992). In the facts presented, it seems there is a good faith basis for bringing the lawsuit. An attorney would have to conduct an investigation to be sure.
As to the possibility of recovery when there is a bankrupt contractor, I made mention (perhaps too subtly) in my first answer of the legislature's recognition of this problem in enacting the license bond law. Every contractor, to be licensed, must post a license bond in the amount of $12,500.00 for the benefit of anyone the contractor harms by way of a violation of the license law. Like I mentioned, however, the bond is distributed pro rata among all claimants, so if there are numerous claimants, the recovery of each could be miniscule. Still, I name the surety as a defendant in all of my lawsuits against contractors.
I do not disagree with the substance of attorney Whipple's answer, but I do want to offer my two-cents on the issues he raises.
