United States ex rel. J & A Landscape Co. v. Reza, Inc.

MEMORANDUM **

Plaintiff, J & A Landscape (“J & A”), appeals the district court’s grant of summary judgment in favor of Reza Inc./Dennis J. Amoroso Construction Co., Inc. (“Reza”), R.P. Richards, Inc. (“Richards”), and Fireman’s Fund Insurance Company (“Fireman’s Fund”) on J & A’s Miller Act claim based on its conclusion that J & A had not provided timely notice as required by the Miller Act. We review a grant of *709 summary judgment de novo. Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir.2000). Because there are genuine issues of material fact as to whether notice was timely, we reverse the district court’s grant of summary judgment and remand for trial.

Reza contends that J & A’s notice was untimely under the Miller Act’s ninety day notice period because it was not provided “within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made.... ” 40 U.S.C. § 270b(a). To determine the date on which the ninety day notice period commenced, we apply the following test: “whether the work was performed and the material supplied as a part of the original contract or for the…