Marshall v. Pasadena Unified School Dist. (Hayward Construction Co., Inc.) (2004) 120 Cal.App.4th 881c [-- Cal.Rptr.3d --]

Marshall v. Pasadena Unified School Dist. (Hayward Construction Co., Inc.) (2004)120 Cal.App.4th 881c , -- Cal.Rptr.3d --

[No. B160520. Second Dist., Div. Three. Jul. 28, 2004.]

PAUL G. MARSHALL, JR. et al., Plaintiffs and Respondents, v. PASADENA UNIFIED SCHOOL DISTRICT, Defendant and Appellant; HAYWARD CONSTRUCTION COMPANY, INC., Real Party in Interest.

[Modification of opinion (119 Cal.App.4th 1241) on denial of petition for rehearing.]

THE COURT.-

It is ordered that the opinion filed herein on June 29, 2004, be modified as follows:

1. On page 19, in the second full paragraph of Section 4 [119 Cal.App.4th 1260, advance report, carryover par.], delete the final sentence of the paragraph and the citation, beginning with the word "Further."

2. On page 19, immediately after the second full paragraph in Section 4 [119 Cal.App.4th 1260, advance report, carryover par.], insert the following paragraph and footnote.

However, the rule cited by the District has been superseded by section 5110, which entitles a contractor who proceeded with construction "based upon a good faith belief that the contract was valid" (? 5110, subd. (a)(1)) to recover the reasonable cost of the work performed, irrespective of a later determination that the contract is "invalid due to a defect or defects in the competitive bidding process caused solely by the public entity . . . ." (? 5110, subd. (a).) fn. 14

3. On page 19, line 21 [119 Cal.App.4th 1260, advance report, line 4], delete the word however and the comma which follows it. [120 Cal.App.4th 881d]

4. On page 20, line 2 [119 Cal.App.4th 1260, advance report, line 14], delete the word which.

The petition for rehearing is denied.

[There is no change in judgment.]

?FN 14. In adopting section 5110, the Legislature declared its intent that a contractor "may be paid the reasonable cost, specifically excluding profit, of labor, equipment, materials, and services that were rendered under a contract that was competitively bid, but subsequently determined to be invalid, in order to avoid unjust enrichment of the public entity and an unlawful taking of the contractor's property." (Stats. 2003, ch. 678, ? 1.)


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