Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC404211, Kenneth R. Freeman, Judge.
The Liu Law Group and Long Z. Liu for Defendants and Appellants.
Lee Tran & Liang, James M. Lee, Austiag H. Parnineh and Enoch H. Liang for Plaintiffs and Respondents.
KITCHING, J.
INTRODUCTION
Plaintiffs and respondents Vivien Bollenberg (Vivien) and David Bollenberg hired defendants and appellants Han Qiang Chen (Chen), Xiaoping Ye (Ye) and Cantonese Hong Kong Construction (CHKC) to remodel their home. After defendants abandoned the project, plaintiffs sued them for breach of contract and other causes of action. The trial court granted plaintiffs’ motion for summary judgment, which was unopposed, and then entered judgment in favor of plaintiffs. The essential issue on appeal is whether plaintiffs made a prima facie showing that they were entitled to judgment as a matter of law based on their unopposed papers in support of their motion for summary judgment. We hold that plaintiffs made such a showing and thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, plaintiffs were looking to remodel their home when Vivien responded to defendants’ advertisement in a newspaper for construction work by CHKC. Prior to entering into a written contract, plaintiffs spoke to Chen and Ye. Plaintiffs informed Chen that “time was of the essence” because their current lease expired on May 15, 2008, and they needed to move into their home before then. Chen assured plaintiffs that the project would take no longer than four weeks.
The record does not clearly indicate whether CHKC is a separate legal entity. In their complaint, plaintiffs alleged that Chen and Ye are husband and wife doing business under the fictitious business named Cantonese Hong Kong Construction. However, CHKC filed papers in superior court and this court as a separate party. At a hearing on August 12, 2009, plaintiffs’ attorney stated: “I don’t think [CHKC is] a corporation....”
On or about April 21, 2008, plaintiffs entered into a written contract with defendants, whereby defendant agreed to complete certain renovation work for plaintiffs within four weeks for $74,500. In April and May 2008, plaintiffs made four different payments to defendants totaling $19,000. In addition, plaintiffs spent money on materials during the renovation project.
During the course of performing remodeling work, defendants caused damage to plaintiffs’ home, including damage to the garage door, a large oval bathtub, a custom made wall unit, and the lawn. Further, defendants improperly installed lights, were unable to perform certain plumbing work, performed substandard concrete work, and used substandard materials.
In about June 2008, before completing the project, defendants stopped performing construction work. Plaintiffs had difficulty contacting defendants and, when they did so, defendants gave various excuses for the delay. Defendants never came back to plaintiffs’ home to complete the job. Plaintiffs thus were required to incur costs to repair much of defendants’ work and to finish the project.
In December 2008, plaintiffs commenced this action by filing a complaint against defendants for (1) breach of contract, (2) violation of the Civil Code, section 895 et seq. (Right to Repair Act), (3) recovery pursuant to Business and Professions Code section 7031, subdivision (b), (4) waste, and (5) unfair competition (Bus. & Prof. Code, §17200). In March 2009 defendants, represented by attorney Amy Haihua Gu, filed an answer.
In May 2009, defendants filed substitution of attorney forms, whereby Gu withdrew as counsel for defendants and defendants became parties in propria persona.
In July 2009, plaintiffs filed a motion for an order establishing their requests for admission. Defendants did not oppose the motion. On August 13, 2009, the trial court granted plaintiffs’ motion and entered an order deeming plaintiffs’ requests for admission admitted.
On the following day, August 14, 2009, plaintiffs filed a motion for summary judgment, or in the alternative, summary adjudication. In their motion, plaintiffs sought to recover $19,000 in payments to defendants, $51,047.14 for the costs of materials “rendered useless” by defendants, $163,700 in costs to fix defendants’ “shoddy” workmanship and to finish the restoration project, and $79,296 in damages caused by their displacement from their home and being forced to find alternative housing, for a total of $313,043.14. Defendants did not file an opposition to the motion.
On November 2, 2009, the trial court granted the motion. The trial court then entered judgment on December 29, 2009, awarding plaintiffs $313,043.14 plus prejudgment interest. Defendants filed a timely appeal.
Defendants filed their notice of appeal of the judgment on December 18, 2009, before the judgment was entered. We deem the notice of appeal to be filed immediately after the entry of the judgment. (Cal. Rules of Court, rule 8.104(e)(2).)
CONTENTIONS
Defendants argue that summary judgment should have been denied because there were triable issues of material fact. With respect to plaintiffs’ breach of contract claim, defendants contend that plaintiffs did not prove an essential element of the cause of action, namely that they performed the obligations required of them under the contract or were excused from doing so. Specifically, defendants contend that time was not of the essence in the contract, and thus their “delay” in performance was not a material breach and did not excuse plaintiffs’ obligation to pay the entire amount due under the contract. Defendants also contend Ye and CHKC were not parties to the contract, and thus cannot be liable for breach of contract.
With respect to plaintiffs’ second cause of action for violation of the Right to Repair Act, defendants argue that they cannot be liable under the act because they were engaged to perform remodeling work, not new construction.
Defendants also argue that plaintiffs’ fourth cause of action for waste does not apply to these facts because they were not in possession of plaintiffs’ real property. Alternatively, defendants contend that the damages for this cause of action were improperly calculated.
Defendants further contend that plaintiffs were not entitled to judgment in their favor on their fifth cause of action for unfair competition (Bus. & Prof. Code, §17200 et seq.) because civil damages cannot be awarded under that cause of action.
Finally, defendants argue that there was no substantial justice and that their due process rights were violated because the trial court failed to consider defendants’ language barrier and lack of counsel.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., §437c, subd. (c).) The moving party is required to file certain supporting papers, including a separate statement of undisputed material facts and supporting evidence. (Id., subd. (b)(1).) Likewise, the opposition papers “shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed.” (Id., subd. (b)(3).) The separate statements are not merely technical requirements, they are an indispensible part of the summary judgment process. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 415 (Kojababian).)
Whether or not the opposing party files a separate statement, the moving party must set forth in his or her papers a prima facie showing for summary judgment in order for the moving party to prevail. (Kojababian, supra, 174 Cal.App.4th at p. 416.) “After a prima facie showing, the burden shifts to the opposing party to make a showing of the existence of a triable issue of fact. [Citation.] If the opposing party fails to submit the required separate statement, under the applicable law and rules, a trial court may conclude that the opposing party has not satisfied his ‘burden of production’ showing a triable issue of fact.” (Ibid.) Thus, we must examine whether plaintiffs made a prima facie showing that they are entitled to summary judgment. (Ibid.)
“We review the trial court’s decision de novo, considering ‘all of the evidence set forth in the [supporting and opposition] papers, [if any, ] except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.’ ” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)
2. Plaintiffs Were Entitled To Summary Judgment on Their First Cause of Action for Breach of Contract
“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
Defendants do not dispute that there was a contract between plaintiffs and Chen, that Chen breached the contract, and that plaintiffs sustained damages as a result of that breach. They instead argue that the second element-plaintiffs’ performance or excuse for nonperformance-was not satisfied. According to plaintiffs, defendants did not perform all of their obligations under the contract, specifically their obligation to pay defendants the full amount due under the contract.
The trial court found that plaintiffs performed or were excused from performing because plaintiffs made $19,000 in payments to defendants in April and May 2008, and spent an additional $30,777.14 on materials during the renovation project.
We reject this argument. The contract does not specify when plaintiffs were obligated to pay defendants for their remodeling work. In her declaration, Vivien stated that she made the following payments: “1) a check for $5,000 on April 21, 2008 payable to Xiaoping Ye, 2) a check for $5,000 on May 2, 2008 payable to Xiaoping Ye, 3) $2,000 in cash to Defendants on May 13, 2008, and 4) $7,000 in cash to Defendants on May 17, 2008, with the remaining balance to be paid upon the completion of the project.” There is no evidence in the record that the contract required plaintiffs to make these or any progress payments or that defendants demanded such payments. Plaintiffs therefore were only obligated to pay defendants when the project was completed. (Smoll v. Webb (1942) 55 Cal.App.2d 456, 458.) The project, however, was never completed by defendants.
Moreover, after defendants stopped working on the project in June 2008, plaintiffs were not obligated to make any more payments to defendants. Defendants materially breached the contract by, inter alia, failing to perform construction work in a workmanlike manner and by refusing to complete the project. Plaintiffs thus were excused from further performance, namely paying defendants the balance of the amount due under the contract. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 853, p. 940 [a material breach excuses performance])
Defendants argue that plaintiffs were not excused from performance because the contract did not contain a time-is-of-the-essence clause and, therefore, defendants’ “delay” in performance was not a material breach of contract. Plaintiffs contend that they and defendants orally agreed that time was of the essence. We need not resolve the issue of whether the contract contained a time-is-of-the-essence term in order to affirm the judgment because even if it did not contain such a term defendants materially breached the contract.
“Where time is not of the essence of an instrument, compliance within a reasonable time after the specified due date constitutes compliance therewith.” (Leiter v. Handelsman (1954) 125 Cal.App.2d 243, 251.) In this case, defendants did not simply miss the four-week deadline to complete the project or “delay” their performance. Rather, they abandoned the project altogether. When plaintiffs finally filed suit against defendants in December 2008, defendants had not worked on the project for approximately six months. We hold that as a matter of law, defendants did not comply with their obligation to either complete the project within four weeks or at the latest within a reasonable time, and that this failure constituted a material breach of the contract. Plaintiffs therefore performed all of their obligations under the contract or were excused from doing so.
Defendants also argue that Ye and CHKC were not parties to the contract. However, the trial court deemed admitted plaintiffs’ requests for admission that Ye and CHKC “entered into a written Contract” with plaintiffs. These admissions are “conclusively established” pursuant to Code of Civil Procedure section 2033.410, subdivision (a).
Defendants contend that the trial court abused its discretion by accepting these admissions. But defendants do not cite, and we have not found, any authority indicating that this was a discretionary matter.
“The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.) A party can truthfully deny requests for admission. Further, even when a request is deemed admitted, a party may withdraw or amend an admission by leave of court upon the showing that the admission was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., §2033.300, subds. (a) and (b).) Defendants failed to respond to plaintiffs’ requests for admission, failed to respond to plaintiffs’ motion to have the requests established, and failed to seek leave to withdraw or amend their admissions. As a result, the admissions were conclusively established and the trial court had no discretion at the time of the motion for summary judgment to find otherwise.
3. The Trial Court’s Alleged Errors With Respect to Plaintiffs’ Second and Fourth Causes of Action Did Not Result in a Miscarriage of Justice
We cannot reverse a judgment unless there was a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs when it is probable that the appealing party would have reached a more favorable result in the absence of the trial court’s error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
Defendants make various arguments with respect to the trial court’s ruling to grant plaintiffs summary judgment on their second cause of action for violation of the Right to Repair Act and fourth cause of action for waste. However, we do not reach these arguments because even assuming the trial court erred, there was no miscarriage of justice and thus no grounds for reversal.
In its first cause of action for breach of contract plaintiffs sought to recover $313,043.14 in damages. Plaintiffs sought to recover the same amount of damages in their second and fourth causes of action. In the judgment, the trial court awarded plaintiffs $313,043.14. Thus, even if the trial court erroneously ruled in plaintiffs’ favor on the second and fourth causes of action, there was no miscarriage of justice because plaintiffs would have recovered the same amount of damages based on their breach of contract cause of action. Accordingly, we cannot reverse the judgment on the grounds that the trial court erroneously ruled in plaintiffs’ favor on their second and fourth causes of action.
4. The Trial Court Did Not Award Plaintiffs Compensatory Damages for Their Fifth Cause of Action of Unfair Competition
Although a plaintiff may recover restitution under the unfair competition law, Business and Professions Code section 17200 et seq., he or she may not recover damages. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) Defendants contend that plaintiffs were improperly awarded damages on their fifth cause of action for unfair competition. This is not true. The trial court stated at the hearing on plaintiffs’ motion for summary judgment that “plaintiffs are asking for disgorgement of monies wrongfully paid to defendants, which is an appropriate remedy.” This finding was supported by substantial evidence because plaintiffs produced evidence showing that they paid defendants $19,000. We thus reject defendants’ argument relating to plaintiffs’ fifth cause of action for unfair competition.
5. Defendants’ Fairness and Due Process Argument Has No Legal Merit
Defendants argue that the judgment was unfair and violated their due process rights because they were in propria persona (pro. per.) and did not understand English well. We reject this argument. “Pro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Defendants’ reliance on Gamet v. Blanchard (2001) 91 Cal.App.4th 1276 (Gamet) is misplaced. There, an in pro. per. litigant was sent confusing and unclear notices of certain events in the litigation. The court found that “even a licensed attorney stepping into this case would have had trouble figuring out exactly what had happened.” (Id. at p. 1284.) Although the court acknowledged that an in propria persona litigant must be held to the same standards as an attorney, it stated: “The judge should monitor to ensure the in propria persona litigant is not inadvertently misled, either by the represented party or by the court. While attorneys and judges commonly speak (and often write) in legal shorthand, when an in propria persona litigant is involved, special care should be used to make sure that verbal instructions given in court and written notices are clear and understandable by a layperson. This is the essence of equal and fair treatment, and it is not only important to serve the ends of justice, but to maintain public confidence in the judicial system.” (Ibid.)
This case is distinguishable from Gamet. There is nothing in the record indicating that defendants were misled, inadvertently or otherwise, by the court or plaintiffs or in any way unfairly treated. Gamet thus lends no support to defendants’ argument.
With respect to defendants’ alleged language barrier, defendants appeared with an uncertified interpreter at a hearing on August 12, 2009. The court did not allow that person to interpret for defendants at the hearing. Instead, the court urged defendants to obtain a certified interpreter at future hearings. Defendants, however, did not do so. After the August 12, 2009, hearing, defendants did not attempt to make another appearance. It is unclear from the record why defendants stopped appearing. There is nothing in the record indicating that defendants did not have the monetary resources to hire an attorney or a certified interpreter. Under these circumstances, defendants did not have a due process right to a court-appointed interpreter at the government’s expense. (Jara v. Municipal Court (1978) 21 Cal.3d 181, 183 [holding that an indigent litigant in a civil case did not have a constitutional right to an interpreter appointed without expense to himself].)
We find no basis to reverse the judgment on fairness or due process grounds.
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.