Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CC08963 Peter J. Polos, Judge.
Elizabeth T. VanHorn for Plaintiff and Appellant.
Law Offices of Susan D. Stein and Susan D. Stein for Defendants and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
Ron Azarkman appeals from a judgment rejecting his claim for damages stemming from Shannon Mitchell’s alleged anticipatory repudiation of a construction contract entered into between the parties. The case was tried without a jury, and Azarkman argues the court erred by “completely ignor[ing] the case [he] pleaded and proved” – a claim Azarkman supports by pointing out the court made no specific findings against him with respect to the statutory theory he relied upon.
We are unpersuaded that any error occurred. In reviewing a case tried to the court, in which no statement of decision is either requested or issued, we are required to infer all findings necessary to support the judgment, and we will affirm the judgment unless some finding necessary to the judgment is shown to be wholly unsupported by substantial evidence. Thus, contrary to Azarkman’s argument, we must presume the court did consider his statutory theory of liability, and impliedly made the findings he claims are absent. And because Azarkman has made no effort to establish that the court’s implied findings (which he does not acknowledge had been made) were actually unsupported by substantial evidence, we affirm the judgment.
FACTS
The contract at issue here was for the production and installation of a large (32-foot square), motorized skylight in a residence being built by Azarkman. The parties had first begun working on the skylight project in 2004, with Azarkman and his architect making several changes in the design of the contemplated skylight before ultimately settling on a final version at the end of 2006. In January of 2007, the parties signed the final contract for manufacture and installation of the skylight.
The contract provided that the total price for the skylight project, including the creation of shop drawings, and the manufacture and installation of the unit, would be $137,700 (including $57,500 already paid for prior work). The contract specified that it did not include the structural calculations necessary to complete the specifications, and that those would be done at an additional cost. Mitchell was required to submit the shop drawings to Azarkman for his approval prior to manufacturing the skylight, but the only time limit included in the agreement was that Mitchell would “make all possible efforts necessary to substantially complete the project within twenty four (24) weeks after approved shop drawing[s] and calculations.”
After the contract was signed, Mitchell prepared a set of shop drawings in February of 2007, and sent them to Azarkman for approval in March of 2007. Azarkman and his architect approved those drawings, after requesting some additional changes, in May of 2007. The approved drawings were then to go to Mitchell’s structural engineer, so the engineer could perform the necessary structural calculations to finalize the design and installation plan.
Although the record is not entirely clear, there may have been some delay in getting the drawings to the engineer. Mitchell testified he attempted to send the drawings by email on May 24th, 2007, but the transmission was apparently unsuccessful. When Mitchell learned the engineer had not received the drawings the first time, he sent them again. Thereafter, throughout June and July, Mitchell testified that he worked with the engineer to address various issues, and prepared revised versions of the shop drawings to reflect changes necessitated by the engineer’s structural calculations. As Mitchell explained, it was necessary to revise the shop drawings to incorporate the engineer’s changes, because when the calculations were finally complete, the engineer was required to physically stamp a version of the shop drawings as approved.
Azarkman suggests in his statement of facts that Mitchell had made various misrepresentations during June and July of 2007 about having sent the shop drawings to the engineer, and implies the drawings were never even transmitted to the engineer until his construction manager finally delivered them personally in July of 2007. However, a fair reading of the evidence suggests that Mitchell’s only misstatement about sending the drawings was the result of his unsuccessful attempt to email them the first time, and that when he learned the drawings had not been received by the engineer, he resent them. Moreover, it appears that the shop drawings personally delivered by the construction manager in July were actually a revised version incorporating some of the earlier changes required by the engineer. Indeed, the construction manager’s own notes state that when he spoke to the engineer, the engineer did not claim that he had never received any shop drawings from Mitchell, but instead stated merely that he was “still waiting for revisions” from Mitchell. (Italics added.)
Mitchell also had various conversations with Azarkman’s construction manager, who was designated as the “owner’s agent” in the skylight contract, about the progress of the engineering. At one point, Mitchell warned him that the calculations “were going to take some time because the engineering for this size of a project and complexity was going to take a while.”
When the construction manager expressed dissatisfaction about the slow pace of the engineering in a letter sent in mid-June, Mitchell told him he expected the engineering to be completed by June 29. However, that did not happen, and on July 11, Mitchell told the construction manager he had been unable to reach the engineer. Mitchell then suggested to the construction manager that they could use another engineer if there was one who could get the work done more quickly. The construction manager then consulted with his own structural engineer (who was responsible for other aspects of the construction project), but that engineer declined to undertake the specialized skylight calculations. As the construction manager explained it, skylights were not that engineer’s “forte.”
The construction manager and his partner also had conversations directly with Mitchell’s engineer, including one in July of 2007, in which the engineer informed the construction manager that it might not be possible to engineer the skylight as designed, because “the additional weight of the skylight may cause structural issues with the framework of the house.” In response to that information, the construction manager went back to his own engineer, who had been responsible for the home’s structural framework, “to make sure that it equaled out and worked.”
As the construction manager explained, such engineering back and forth between different aspects of the construction was all “part of the shop drawing process,” and once the structural calculations were finished, the shop drawings would then be revised and approved in accordance with the engineering requirements.
At some point during this engineering phase, Azarkman apparently “lost confidence” in Mitchell. Notwithstanding the fact that the January 2007 agreement specified that the skylight would be completed within 24 weeks (approximately 5 and a half months) of “approved shop drawing[s] and calculations,” Azarkman’s own expectation was that the skylight project would be entirely completed within six to seven months of the contract’s execution – i.e., before September of 2007. Specifically, Azarkman testified he had expected the shop drawings phase of the agreement “would take a couple of weeks.”
Given that expectation, it is perhaps not surprising that Azarkman became upset at what must have seemed a painfully slow process of engineering the shop drawings. Thus, on July 2, 2007, in the midst of the engineering work, Azarkman had his counsel send a letter to Mitchell, reiterating concerns about the slow pace, and asking for “a written update on the status of the project immediately.” Mitchell responded with a telephone call to the construction manager, telling him “where [Mitchell] was in the project [with] the engineer, resolving the issues of the subframe,” but did not respond in writing to the attorney.
So the attorney wrote to Mitchell again on July 26, 2007, requesting “a clear timeline that indicates in a satisfactory fashion how you will fulfill your contractual obligations.” This time Mitchell did respond in writing, but did not provide the requested “timeline.” Instead, he defended himself and his company from any claims of delay, and explained the progress of the engineering phase to that point. He noted that on the very day the attorney sent her letter, the construction manager had picked up the most recent version of the shop drawings (revised to accommodate the engineer’s concerns about a “member [that] would not calc out”) and delivered them to the engineer for approval.
Concerned that Mitchell had still not “provid[ed] any assurance that he [was] able and committed to completing the skylight in a timely way,” Azarkman’s counsel wrote a final letter on August 1, 2007 (only six days after the second one), informing Mitchell they were “interested in performance, not in excuses.” The attorney appeared to be under the misapprehension that the construction manager’s July 26, delivery of shop drawings to the engineer was the first time the engineer had seen any version of the shop drawings, and informed Mitchell that circumstance was “not a point in your favor.” She then insisted that under the terms of the agreement, the skylight was required to be completed and installed no later than September 6, 2007, and warned Mitchell that if he did not provide adequate assurance by September 6, 2007, of his ability to comply with that deadline, Azarkman would file suit for anticipatory repudiation of the contract.
On August 15, 2007, Azarkman filed suit. His cause of action for anticipatory repudiation relied upon California Uniform Commercial Code section 2609, which provides in pertinent part: “A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance.... [¶] ... [¶]... After receipt of a justified demand failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.”
Despite Azarkman’s initiation of litigation, Mitchell continued to work with the engineer on the shop drawings. The engineer ultimately stamped a final version of the drawings, and they were sent to Azarkman for approval. Azarkman apparently initialed his approval of those drawings on August, 31 2007, albeit with some additional markups, while continuing to pursue his claim of anticipatory repudiation.
On September 11, 2007, Mitchell informed Azarkman that the skylight was “ready to release to manufacturing” as soon as Azarkman signed a clean copy of the shop drawings, made the payment required under the terms of the contract at the time manufacturing commenced, and dismissed the lawsuit. Azarkman refused to commit to any further payments, and consequently the manufacturing never commenced.
After hearing all the evidence, the court concluded that Azarkman had failed to meet his burden of proving anticipatory breach. The court explained it thought the evidence was “pretty clear... that Mr. Mitchell was ready and able to perform this contract. It may have taken a little longer than the plaintiff wanted, but much of the delays, much of the time spent, going back to ’04, was a result of changes in the design, changes in the plans that the plaintiffs wanted or the plaintiff’s architect wanted or the plaintiff’s construction consultants were involved with. So I can’t fault Mr. Mitchell for that. [¶]...[A]fter the February contract, you know, there’s certainly – it could have been done faster, but were those delays all Mr. Mitchell’s? No. Part of them was the fact that the opening – you know, the opening changed. The size of the skylight changed, things had to be redone and recalculated, the engineer was out of town. [¶] And, most importantly to me, is that the construction consultants and Mr. Mitchell, in their contract that they entered into in February, discussed the timing of everything. They said 24 weeks after the drawings were approved and the calculations are approved, he would be completed with the job. [¶] Well, when presented with the calculations and the drawings that were done and completed in September, the plaintiff refused to sign them, sign off on therm. And he testified, he didn’t do it when asked to do it. So I don’t see how he could possibly go forward and complete the job if the plaintiff won’t do something essential for his completion of the job.”
I
As Mitchell points out in his respondent’s brief, and Azarkman vehemently disputes, the standard of review applicable to this case is the key to our analysis on appeal. Because this case was tried to the court, and Azarkman did not seek a statement of decision, our review of that decision is necessarily limited. “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, “[t]he doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. (Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942.) The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. (In re Marriage of Arceneaux [, supra, ] 51 Cal.3d [at p.] 1133...; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
In his reply brief, Azarkman concedes it “is quite true” that his opening brief “conspicuously fails to mention the appropriate standard of review.” However, he asserts that “[n]o discussion of the appropriate standard of review is necessary, because under any standard of review, the trial court’s judgment cannot stand.” As we explain, that assertion is quite incorrect.
The doctrine of implied findings seriously limits our ability to second-guess the trial court in a case such as this – or to even entertain critiques of its decision. Where, as here, the appellant wishes to establish that the court failed to consider his theory of liability, his primary remedy is in the trial court, not with us. “In a bench trial, how does an appellant obtain a record affirmatively proving the trial court erred by failing to make factual findings on an issue. The appellant must secure a statement of decision under Code of Civil Procedure section 632 and, pursuant to Code of Civil Procedure section 634, bring any ambiguities and omissions in the statement of decision to the trial court’s attention.” (Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th at p. 58.)
Only if the appellant has requested such a statement of decision, and then specifically brought any perceived errors or omissions in that decision to the attention of the trial court – to no avail – can he assert on appeal that the court actually failed to address his points. “[I]if a party does not bring such deficiencies to the trial court’s attention, that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment.” (In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.)
Consequently, we must reject Azarkman’s contention that the court “ignored the case [he] pleaded and proved.” To the contrary, we presume it did consider his legal theory, and was simply unpersuaded of its merit in light of the evidence presented.
II
The only other basis for reversing a judgment grounded on implied findings is when appellant demonstrates that the findings necessary to support the court’s decision were not supported by substantial evidence. Azarkman has made no such showing in this case, and has thus waived that claim. (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 [“As with all substantial evidence challenges, an appellant... must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden.”].)
But even if the claim had not been waived, we would have to conclude the court’s implied rejection of Azarkman’s claim that he had “reasonable grounds” for insecurity about Mitchell’s timely performance in July of 2007, must be upheld.
As explained in Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279, when the trier of fact finds against the plaintiff – i.e., the party with the burden of proof – the burden of demonstrating that the decision was unsupported by the evidence is particularly high: “When the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals, it is somewhat misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This is because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case. (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742, [trier of fact is exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660, [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted].) Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ (Roesch v. De Mota, supra, 24 Cal.2d at p. 571.)”
In this case, as in Shaw, the answer is clearly “no.” Indeed, the evidence in this case falls far short of a level which would have essentially compelled the trial court to rule in Azarkman’s favor. To the contrary, it is difficult to imagine how a court could have done so. The biggest flaw in Azarkman’s position is his failure to acknowledge that the 24-week time limitation contained in the skylight contract had not even commenced in July of 2007 – the point at which Azarkman declared himself to be “insecure” about Mitchell’s ability to perform in a timely manner.
As the trial court explained it, the “most important[]” factor underlying its ruling was the timing specified in the contract itself: “They said 24 weeks after the drawings were approved and the calculations are approved....” And those drawings “were done and completed in September, [at which point] the plaintiff refused to sign them, sign off on them.... So I don’t see how [Mitchell] could possibly go forward and complete the job if the plaintiff won’t do something essential for his completion....” (Italics added.)
The trial court was absolutely right in its interpretation of the contract. The terms of the agreement hold Mitchell responsible for the timing of only the manufacture and installation portion of the project – which is to be completed “within twenty-four (24) weeks after approved shop drawings and calculations” (italics added) – while exempting him from responsibility for guaranteeing the amount of time consumed by the engineering.
The fact Azarkman may have assumed the shop drawings would be entirely completed (presumably including the engineering) within two weeks – and thus the entire project completed within about six months – is of no moment. If Azarkman wanted to enforce that deadline against Mitchell, he needed to include it as a term of the agreement.
Because the 24-week period within which Mitchell was to manufacture and install the skylight had not even commenced, and Mitchell was not contractually responsible for ensuring that the engineering phase be completed within a certain time – and certainly not in accordance with Azarkman’s two-week assumption – we conclude the court acted reasonably in rejecting Azarkman’s assertion that he had a reasonable basis for insecurity about Mitchell’s timely compliance with his obligations under the contract in July of 2007, when he demanded “reassurance.”
And once the court rejected Azarkman’s “reasonable insecurity” assertion, his claim under the California Uniform Commercial Code section 2609 necessarily failed. Consequently, the court acted properly in rejecting Azarkman’s claim for anticipatory repudiation based upon Uniform Commercial Code section 2609.
California Uniform Commercial Code section 2609, the statute relied upon by Azarkman, provides: “1) A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return. [¶] “(2) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards. [¶] “(3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party’s right to demand adequate assurance of future performance. [¶] “(4) After receipt of a justified demand failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.”
The judgment is affirmed and Mitchell is to recover his costs on appeal.
WE CONCUR: O’LEARY, J., MOORE, J.