Legal Question in Construction Law in California

We built a new house. Our contract with general stated - "all change orders in written"

Our general contractor got paid in full for the work done.

There is a subcontractor who had a simple written contract with our general for labor and materials, no mention of any changes orders.

That subcontractor of our general contractor demanded a payment in full. Our general realized that sub did not pay about $20K for materials he ordered for that contract. A general paid for materials by himself and refused $20K payment to that sub. After realizing that his trick with materials did not work, that sub presented our general with about $20K fake "oral" change orders ( later he started to claim that our general has signed these "change orders"). And filed a mechanics lien against our house. He did not perfect the lien and we've got it canceled.

However, how he threatens to sue us for that amount in civil court.

Will such a case have a merit? We did not have any contract with this sub, only our general had...

Are we a right party for such a suite?


Asked on 7/21/10, 1:34 pm

2 Answers from Attorneys

Sounds like you were working with a general who knows the business and covered you from a potentially valid mechanics lien claim from the supplier. You are fortunate. As for your question, no, you are not a proper party to such a suit. The only rights a subcontractor has against the owner of a project are lien and stop notice rights. They have no direct right of action against the owner.

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Answered on 7/21/10, 5:41 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Naming an additional defendant or three in a lawsuit is easy enough to do, and adds only slightly to the filing and service-of-process fees. It's widely taught and frequently done, and sometimes catches the truly-responsible party to the plaintiff's surprise. It is also playing with fire to some extent, because frivolous or malicious suits or frivolous or malicious addition of named defendants, when plaintiff has no reasonable theory upon which a defendant might be liable, can backfire with a suit for malicious prosecution or a demand for payment of defense costs and fees.

In your case, it sounds as though addition of you, the owners, to a lawsuit would have very little basis in fact, but I'm only hearing one side of the story, of course.

This all could be nothing more than a final attempt to coax some kind of settlement offer out of someone. My hunch is that it's better than 50-50 - but not 75% - likely no suit will ever be filed. If one is, it'd be interesting to see what the sub conjures up to allege against you. Be sure to defend. Possibly your insurance or the general's would cover the defense.

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Answered on 7/21/10, 5:54 pm


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