Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1156922 Denise de Bellefeuille, Judge
Myers, Widders, Gibson, Jones & Schneider, Erik B. Feingold, Poliquin & DeGrave, Mark P. Poliquin and Jacky P. Wang for Defendants and Appellants.
James E. Marino for Plaintiffs and Respondents.
GILBERT, P.J.
This case arises from an agreement to purchase a new mobile home. Purchasers claim the mobile home was damaged and sued the dealer and installation contractor. A jury awarded purchasers $36,275 damages against the dealer for breach of contract, and $36,275 against the installation contractor for negligence. The trial court denied purchasers' motion for attorney fees.
The dealer and installation contractor appeal the judgment, and the purchasers appeal the denial of their motion for fees. We affirm.
FACTS
On August 23, 2003, Ron and Lavinia Castillo entered into a contract with San Jose Advantage Mobile Homes, Inc., (Advantage) to purchase a new mobile home. The new mobile home was to replace the Castillos' existing mobile home at the Blue Skies Mobile Home Park in Santa Barbara. The purchase price was $99,902, including delivery and installation. As part of the transaction, the Castillos agreed to transfer their existing mobile home to Advantage for no additional consideration.
The parties opened escrow with Express Escrow Company (Express). Shortly after executing the purchase agreement, the Castillos agreed to pay the purchase price with the proceeds of a $55,000 loan and the balance deposited in cash. The Castillos made an initial deposit of $22,395 into escrow and applied to Origin Financial Services, LLC., (Origin) for the $55,000 loan.
On October 30, 2003, the Castillos vacated their existing mobile home so Advantage could remove it and prepare the site. Between October 31 and November 5, 2003, Advantage removed and destroyed the existing mobile home.
On November 17, 2003, the new mobile home arrived at the park. It had, however, been damaged in transit. The mobile home sustained further damage when it was placed on the site. Advantage had hired Paul Flohr to prepare the site and install the mobile home. But the site was not properly prepared and was soft and muddy from rains. Advantage promised to repair the damage. On December 23, 2003, the Castillos deposited $21,164 into escrow. By December 30, 2003, Origin had deposited the $55,000 loan proceeds into escrow, and began charging the Castillos for loan payments.
Advantage, however, still had not repaired the damage. On December 30, 2003, the County of Santa Barbara (County) issued a certificate of occupancy, but revoked the certificate the next day by way of a correction notice.
On February 23, 2003, the Castillos' attorney sent a letter to Advantage. The letter noted that Advantage has not completed performance under the purchase and sale contract and demanded that Advantage promptly repair the damage to the mobile home. A copy of the letter was sent to Flohr, Express and Origin.
On April 9, 2004, the County issued a certificate of occupancy. Escrow closed the same day. The Castillos did not approve the close of escrow and refused to accept the mobile home in its damaged condition.
The Castillos brought the instant action against Advantage and Flohr, among others. While the action was pending, Origin foreclosed on its loan. The jury found that Advantage had breached its contract and that Flohr had been negligent in the installation of the mobile home. The jury awarded the Castillos $36,275 against each defendant for a total judgment of $72,550. The trial court denied the Castillos' motion for attorney fees.
ADVANTAGE'S AND FLOHR'S APPEAL
I
Advantage contends the trial court erred in refusing to instruct the jury that it may not award damages for the loss of the Castillos' old mobile home.
The proposed instruction is as follows: "The value of Plaintiffs' old manufactured home is not an issue in this case. Ron Castillo entered into an agreement to sell the old manufactured home to San Jose Advantage Homes, Inc. for $0.00. Consequently, if you determine that San Jose Advantage Homes, Inc. breached the contract with Plaintiffs, you may not award damages for the loss of the value of the old manufactured home."
At trial, over Advantage's objection, Ron Castillo testified that the value of his old mobile home was between $200,000 and $225,000. The Castillos' expert testified the value of the old mobile home was between $115,000 and $170,000. The Castillos argued to the jury that it should consider the value of their old mobile home in awarding damages.
The measure of damages for breach of contract is the amount which will compensate the party aggrieved for all the detriment proximately caused by the breach, or which is foreseeable by the breaching party at the time the contract is entered into. (Civ. Code, § 3300; Wallis v. Farmers Group, Inc. (1990) 220 Cal.App.3d 718, 737, disapproved on other grounds in Dore v. Arnold Worldwide, Inc. (2006) 32 Cal.4th 384, 394, fn. 2.)
All statutory references are to the Civil Code unless otherwise stated.
Advantage's contention is based on the theory that the Castillos agreed to transfer title to the old mobile home for no consideration. But that agreement is part of Advantage's agreement to deliver and install a new mobile home. Advantage's breach of the agreement deprived the Castillos of the use and value of their old mobile home without substituting a new home. Those damages were proximately caused by the breach and were entirely foreseeable at the time Advantage entered into the contract. The trial court did not err in refusing the proposed instruction.
II
Advantage and Flohr contend juror misconduct entitles them to a new trial. In support of their motion for a new trial, Advantage and Flohr submitted the affidavits of five jurors. All the affidavits were the same and stated, in part:
"3. During deliberations, the jury discussed and agreed to include non-economic damages in the damage awards against San Jose Advantage Homes, Inc. and Paul Flohr/Flohr Construction.
"4. As part of the non-economic damages the jury discussed, considered, and agreed to include the emotional distress of the plaintiffs.
"5. We discussed and agreed that the total economic damages against all defendants would be $6,350[], which was based upon two months rent at $1,875[] per month, four months of space rent at $450[] per month, and two months of storage at $200[] per month. We then agreed to divide the economic damages figure of $6,350[] between San Jose Advantage Homes, Inc. and Paul Flohr/Flohr Construction. The jury also discussed and agreed to award $33,000[] for non-economic damages against both San Jose Advantage Homes, Inc. and Paul Flohr/Flohr Construction, which we understood to be awardable.
"6. In other words, $33,000 of each of the awards against each of the defendants is not related to any economic damage claim in the lawsuit, but rather represents plaintiffs' emotional distress."
Advantage and Flohr point out that damages for emotional distress are generally not recoverable for breach of an ordinary commercial contract. (Citing Erlich v. Menezes (1999) 21 Cal.4th 543, 550.)
In response, the Castillos presented the affidavits of two jurors. Those jurors declared: The jury initially considered awarding damages for emotional distress. One juror, however, pointed out that the court instructed the jury not to consider such damage. From then on, it was no longer considered and did not become part of the award.
The trial court denied the motion. The court stated it considered all of the juror affidavits. The court found that the five identical juror affidavits submitted by Advantage and Flohr lack credibility, and that the "manner and mode of their preparation are of concern to the Court, particularly in light of the declarations of [the jurors opposing affidavits]."
Advantage and Flohr argue the juror affidavits submitted by the Castillos were untimely and should not have been considered. Advantage and Flohr point out that the Castillos' opposition was not filed until 35 days after the new trial motion was filed.
Code of Civil Procedure section 659a provides that parties opposing the motion for a new trial shall have 10 days after service of the moving party's affidavits to file counter-affidavits. The section also provides: "The time herein specified may, for good cause shown by affidavit . . . be extended by any judge for an additional period of not exceeding 20 days."
Advantage claims the time limits are jurisdictional. (Citing Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1672; but see Fredericks v. Page (1994) 29 Cal.App.4th 1622, 1648 [not jurisdictional].) Assuming the time limits are jurisdictional, the Castillos have met them.
In opposing the motion, the Castillos' attorney submitted an affidavit declaring, in part, that one of the jurors from whom he anticipated receiving an affidavit was out of town. The trial court could consider that to be sufficient cause to grant the 20-day extension. That plus the five days allowed because Advantage affidavits were served by mail (Code Civ. Proc., § 1005), makes the Castillos' response filed 35 days after service of Advantage's affidavits timely.
Moreover, even if the Castillos' counter-affidavits could not be considered, there is good reason for the trial court to find Advantage's and Flohr's affidavits not to be credible. Not only were all the affidavits identical, but none of them used the term "emotional distress." Instead, the affidavits used the term, "non-economic damages." It is not clear that affiant jurors understood that non-economic damages are the same as damages for emotional distress.
Advantage and Flohr rely on the rule that in the absence of counter-affidavits, the misconduct alleged in the moving party's affidavits is deemed admitted. (Citing Moore v. Preventive Medicine Group, Inc. (1986) 178 Cal.App.3d 728, 740, fn. 8.) But the rule should not apply where, as here, the moving party's affidavits appear questionable on their faces. This is quite apart from the affidavits relating to the jurors' mental processes.
The trial court did not abuse its discretion in denying the motion for a new trial.
III
Flohr contends his motion for nonsuit should have been granted because the Castillos failed to present expert testimony on the standard of care.
A defendant is entitled to a judgment of nonsuit where the evidence presented by the plaintiff is as a matter of law insufficient to permit a jury to find in his favor. (Heller v. Pillsbury, Madison & Sutro (1996) 50 Cal.App.4th 1367, 1384.)
Flohr relies on Miller v. Los Angeles Flood Control District (1973) 8 Cal.3d 689. There the defendants constructed plaintiffs' home so that it was in a direct line with the natural runoff of water. During a storm, a wall of water, mud and debris traveled down a canyon and demolished plaintiffs' home. Plaintiffs sued the defendants, alleging negligence in the design and construction of their home. The trial court granted the defendants' motion for nonsuit on the ground that plaintiffs presented no expert on the practices of builders in the area in order to establish the standard of care.
Our Supreme Court affirmed the judgment of nonsuit. The court noted that if the matter at issue is one within the knowledge of experts only, expert opinion evidence is necessary to establish a prima facie case. (Miller v. Los Angeles Flood Control Dist., supra, 8 Cal.3d at p. 702.) In applying that principal, the court stated: "Building homes is a complicated activity . The average layman has neither training nor experience in the construction industry and ordinarily cannot determine [fn. omitted] whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry. In the instant case, the issue as to whether or not the Miller home had been negligently constructed involved a multitude of subsidiary questions bearing not only upon the erection of the structure itself but also upon the location of the house on the particular lot, the elevation of the lot, the influence of the surrounding terrain, the possibility of run-offs and floods, and the existence of the debris dam. These were not questions which the jury could have resolved from their common experience and the trial judge properly concluded that the issue of the allegedly negligent construction of the Miller residence was one within the knowledge of experts only. [Fn. omitted.]" (Id. at pp. 702-703.) The court also stated: "We exclude from consideration those failures on the part of the builder which are so obvious, if not bizarre, that they present no problem in the determination of his negligence, as for example the installation of a fireplace without a chimney or of a second floor without any means of access to it." (Id. at p. 702, fn. 15.)
It is true that in the absence of an obvious or bizarre defect, an expert will ordinarily be necessary where the negligence alleged is in the construction and design of a home. But here, unlike Miller, the complaint did not allege Flohr was negligent in the construction and the design of the home. All Flohr had to do was install a mobile home that had already been designed and constructed. The installation was in an existing space in an established mobile home park. The manufacturer provided a standard instruction booklet. This case did not involve the difficult questions of concern in Miller. The trial court did not believe an expert was necessary here. Flohr points to nothing that convinces us the trial court was wrong.
THE CASTILLOS' APPEAL
The Castillos contend the trial court erred in refusing to award them attorney fees.
After trial, the Castillos made a motion for attorney fees against Advantage and Flohr in the amount of $166,147.50. The trial court denied the motion. In denying the motion, the court reasoned: The Castillos were the prevailing party in their action against Advantage, but they only prevailed on their claim for breach of the purchase agreement. The purchase agreement has no attorney fees clause. The escrow instructions contain an attorney fees clause, but the scope of the clause is limited to disputes with the escrow agent. The security agreement also has an attorney fees clause, but it is limited to a breach of the security agreement. The Castillos neither alleged nor prevailed on a breach of warranty claim, and thus are not entitled to fees under section 1794, subdivision (d). As to Flohr, the Castillos prevailed only on a negligence cause of action. No fees are awardable for negligence.
Attorney fees may be awarded to the prevailing party only where authorized by statute or agreement of the parties. (Code Civ. Proc., § 1021; Barthels v. Santa Barbara Title Co. (1994) 28 Cal.App.4th 674, 680.)
The Castillos concede that the purchase agreement did not expressly provide for attorney fees. They argue, however, that the purchase agreement, escrow instructions and security agreement must be read together as a single contract. (Citing Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 378-380.) They point to attorney fees provisions in the escrow instructions and security agreement.
The escrow instructions provide in part: "If Escrow Agent is required to respond to any legal summons or proceedings, or if any action of interpleader or declaratory relief is brought by Escrow Agent, or if conflicting demands or notice by parties to this escrow or by any other party or parties is served upon Escrow Agent, the parties hereto jointly and severally agree to pay reasonable escrow fees and all costs, expenses and reasonable attorneys' fees expended or incurred by Escrow Agent as a result of any of the above described events . . . ."
The provisions governs fees in actions by or against the escrow agent. It does not provide for fees in an action against Advantage or Flohr. The Castillos point out that the trial court erroneously dismissed the escrow agent from this action. (See Castillo v. Express Escrow Co. (2007) 146 Cal.App.4th 1301.) But the erroneous dismissal of the escrow agent does not make Advantage or Flohr liable for fees.
The Castillos also rely on a security agreement they executed with Advantage. The agreement provides in part: "If [Advantage] hire[s] an attorney who is not [Advantage's] employee to collect what [the Castillos] owe under this Contract or to get possession of the Manufactured Home, [the Castillos] will pay [Advantage's] reasonable attorney's fees, not to exceed any maximum amount permitted by applicable law."
Here the Castillos did not prevail on causes of action to collect money owed under the security agreement or for possession. The attorney fees provision in the security agreement does not apply.
The Castillos argue they are entitled to an award of attorney fees and a $2,000 penalty based on a violation of Health and Safety Code section 18035, subdivision (f). Violation of Health and Safety Code section 18035 entitles the prevailing plaintiff to an award of attorney fees and a civil penalty not to exceed $2,000. (Id. at subd. n.) But Health and Safety Code section 18035, subdivision (f), places a duty on the escrow agent not to close escrow upon being notified of a dispute. (See Castillo v. Express Escrow Co, supra, 146 Cal.App.4th 1301. The subdivision places no duty on Advantage or Flohr. Thus neither Advantage nor Flohr violated the subdivision.
The Castillos argue that they are entitled to an award of fees under Code of Civil Procedure section 1021.5, allowing a fee award in an action that results in a public benefit. The Castillos claim that their victory in Castillo v. Express Escrow Co., supra, 146 Cal.App.4th 1301, conferred a public benefit. But their victory was against Express Escrow only. Advantage and Flohr were not parties to the appeal. We need not decide here whether the Castillos are entitled to an award of fees against Express Escrow.
Finally, the Castillos argue they are entitled to attorney fees for breach of warranty. Section 1797 provides that all new mobile homes are covered by a warranty. The mobile home contractor, manufacturer, or dealer warrants to the buyer that the mobile home "is free from any substantial defects in materials or workmanship." (§ 1797.3, subd. (a).) The contractor, manufacturer or dealer is required to take corrective action within 90 days of written notice at the site of the mobile home for substantial defects that become evident within one year from the date of delivery. (Id. at subd. (b), § 1797.7.) The buyer must give written notice of the defect not more than one year and 10 days after delivery of the mobile home. (Ibid.) "Contractor" is defined as a person who is a general building contractor within the meaning of section 7057 of the Business and Professions Code. Flohr testified that he is a general contractor. The buyer who prevails in an action on the warranty is entitled to an award of attorney fees. (§ 1794, subd. (d).)
Advantage and Flohr argue that the Castillos failed to plead and prove breach of warranty. They claim the jury never determined such factual questions as whether the defects were substantial and whether the Castillos gave written notice of the defects within a year and 10 days.
We agree. The Castillos' complaint does not mention breach of warranty or section 1797 et seq. Nor do the Castillos point to any jury finding that Advantage or Flohr breached the warranty. Under the circumstances, the trial court was correct in denying fees under section 1797 et seq.
The judgment and order denying attorney fees is affirmed. The parties shall bear their own costs on appeal.
We concur: YEGAN, J., COFFEE, J.