Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CI57918
ROBIE, J.
Following a bench trial, the court found defendant William St. Clair liable to plaintiffs Alexander “Ray” Borel and Brenda Jo Borel for negligently performed labor to install wind and solar generating systems on the Borels’ ranch. The trial court found St. Clair had a duty to the Borels because his contractor’s license was used for the project, and his knowledge of that use created a duty to ensure the work was done appropriately. As a result, the trial court found St. Clair liable for the costs required to correct the negligently performed work, including the restoration of power to an agricultural well on the ranch.
On appeal, St. Clair claims the trial court erred by going beyond the pleadings in finding a duty of care in negligence based on the use of his contractor’s license. He also claims there was insufficient evidence to support the award of damages for the restoration of power to the agricultural well. The Borels filed a motion for sanctions on the ground the appeal was objectively frivolous. We agree the trial court went beyond the pleadings in finding a duty in tort, but we conclude that error was harmless because the evidence was sufficient to support the damages awarded on a contract theory. Thus, we will affirm the judgment. In addition, we deny the Borels’ motion for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
The Borels alleged several causes of action against St. Clair and codefendant Daryl Scott Jackson arising out of the failed installation of solar panels and wind turbines on the Borels’ ranch. In the third cause of action, the Borels alleged Jackson and St. Clair had a duty to perform the construction work in a professional, nonnegligent manner based on a contractual relationship between the parties. In his verified answer to the complaint, St. Clair admitted he was in “privity of contract” with the Borels to install the solar and wind power equipment.
At trial, Ray Borel testified he did not sign a contract with St. Clair. There was also evidence that St. Clair’s contractor’s license was used to obtain the appropriate permits for the Borel project but that St. Clair was not involved in the management of the project.
The Borels produced evidence that part of their contractual understanding with Jackson included the connection of an agricultural well to the new solar and wind power equipment. There was also evidence presented that the Borels turned off power to the agricultural well prior to the beginning of this project and that the well had worked prior to being disconnected from the PG&E grid. Finally, the Borels introduced documents showing the $9,969.37 expense to reconnect the agricultural well to the PG&E power grid.
In its statement of decision, the trial court found no contractual relationship between St. Clair and the Borels. Nevertheless, the trial court found St. Clair liable for negligence, not based on a duty arising from a contract, as pled, but instead on a duty of care created by the knowing use of St. Clair’s contractor’s license on the project, which the Borels had not pled. The trial court found: “Plaintiff is entitled to recover the $2,160.00 for making the job site safe. Plaintiff is also entitled to recover the $9,969.37 paid to P.G.&E. to restore power.”
DISCUSSION
I
The Issue Of A Duty In Tort
St. Clair contends the trial court erred by finding he owed a duty to the Borels based on the use of his contractor’s license with his knowledge because the Borels did not allege this basis for St. Clair’s duty in their complaint. He argues the trial court could have found a duty to the Borels based only on his contractual relationship with them because the Borels pled only this basis for a duty. And because the trial court explicitly found no contract, St. Clair contends there was no legitimate basis for any liability on his part. St. Clair reasons this error was prejudicial because he was not put on notice that he had to defend against claims that he owed the Borels a duty based on his knowledge of the use of his contractor’s license. Alternately, he claims there was insufficient evidence to support this duty.
A
The Trial Court Erred In Finding A Duty Arising From St. Clair’s Knowledge Of The Use Of His Contractor’s License
Any judgment beyond the pleadings is invalid. (Orange County Water Dist. v. City of Colton (1964) 226 Cal.App.2d 642, 649.) In the Borels’ first amended complaint, the only basis for a duty of care alleged in the third cause of action is found in paragraph 44, which alleges, “[o]n or about September of 2005, [the Borels] were in privity of contract with [St. Clair and Jackson] and were therefore owed a duty by [St. Clair and Jackson] to complete the House Project and Irrigation Well Project in a professional manner.” In his answer to that allegation, St. Clair admitted, “that he and [the Borels] [we]re in privity of contract with respect to his agreement with [the Borels] to install the material and equipment [the Borels] purchased from Jackson.”
The trial court erred by finding St. Clair owed the Borels a duty of care based on the knowing use of his contractor’s license because no such allegation was contained in the complaint. Rather, the sole basis for a duty alleged in the third cause of action was a contract between St. Clair and the Borels.
This conclusion renders moot St. Clair’s claim that the evidence was insufficient to establish a duty based on the use of his contractor’s license.
In the respondent’s reply brief, the Borels assert St. Clair owed them a general duty of care because he affirmatively undertook an act, and a general duty of care flows from that action. But this general duty of care was not pled, so it would not be a valid basis for the finding of duty either. (See Orange County Water Dist. v. City of Colton, supra,226 Cal.App.2d at p. 649.)
B
The Trial Court’s Error Was Harmless
St. Clair argues this variance between the pleadings and the judgment was material and prejudicial, and therefore the judgment should be reversed. We will reverse a judgment only if that error is prejudicial, i.e., if “a different result would have been probable without the error.” (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 372.)
Here, the result would not have been different for St. Clair if the trial court had not erred. The contractual relationship between St. Clair and the Borels, which St. Clair admitted, created the same duty as the duty found by the trial court. In his answer, St. Clair admitted he was in privity of contract with the Borels to “install the material and equipment [the Borels] purchased from [codefendant] Jackson.” Therefore, St. Clair had a duty to perform these contractual tasks in a competent and reasonable manner. (See North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774.) The trial court found St. Clair, as a licensed contractor, had a “duty of care to the consumer to see that the work is performed and completed... in compliance with the contractual agreement of which he was on notice,” where the court found the contractual agreement was between Jackson and the Borels to install the solar and wind power equipment. The contractual duty effectively admitted by St. Clair mirrors the duty the trial court found: the duty to install the solar and wind power equipment on the Borels’ ranch with due care. The breach, causation, and damages analysis would thus be the same for both duties. Accordingly, the liability finding against St. Clair and the damages assessed would not have changed even if the trial court had not erred.
St. Clair argues that because the trial court found no contract between him and the Borels, the existence of such a contract cannot be used as the basis for a duty. As we have explained, however, St. Clair admitted to a contract in his verified answer, and “where allegations in a complaint are admitted by the answer, no evidence need be offered in their support; evidence is not admissible to prove their untruth; no finding thereon is necessary; a finding contrary thereto is error; and the introduction of evidence relative to such admitted allegations is error.” (County of Los Angeles v. Beverley (1954) 126 Cal.App.2d 89, 92, italics added.)
Here, the trial court was bound to find a contract between St. Clair and the Borels because St. Clair admitted the existence of that contract in his verified answer. Therefore, the trial court erred in finding St. Clair had no contractual relationship with the Borels. Though evidence was admitted during trial suggesting there was no such relationship between these two parties, that evidence was irrelevant since evidence is not admissible to prove the untruth of the admitted allegation. (County of Los Angeles v. Beverley, supra,126 Cal.App.2d at p. 92.) Having admitted a contract with the Borels in his verified answer, St. Clair cannot now take advantage of the trial court’s erroneous finding that there was no contract in order to escape liability to the Borels.
II
Substantial Evidence Supports The Judgment
St. Clair contends there was insufficient evidence for him to be liable for the costs paid to PG&E to reconnect the agricultural well. St. Clair points to the title of the exhibits presented and to some of the language in the documents referencing an “extension” of service to argue this was new electrical service being provided to the Borels. As a result, St. Clair argues he could not have caused the PG&E costs if these charges related to new service.
“[W]hen reviewing the sufficiency of the evidence, this court does not reweigh the evidence. We consider the evidence in the light most favorable to the prevailing party and in support of the judgment.” (Travelers Ins. Co. v. Lesher (1986) 187 Cal.App.3d 169, 195.)
Here, Ray Borel testified that the charges from PG&E were to “get [the] power back onto certain portions of [the] property” and that the well had run properly prior to the beginning of this project. The trial court could have rationally believed these two statements by Ray Borel as showing it was not new service. The implication was that the well was disconnected in preparation for the work to be done because Ray Borel testified that the agricultural well was supposed to be hooked up to the new solar and wind power equipment. Accordingly, substantial evidence supports an award of damages for the cost to reconnect the agricultural well to the PG&E grid when the wind and solar panels did not work.
III
Sanctions
The Borels claim that St. Clair’s appeal is objectively frivolous and request sanctions.
We do not agree. For an appeal to be objectively frivolous, a reasonable lawyer would have to find the appeal devoid of merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649.) Sanctions for frivolous appeals should be used sparingly “as to avoid a serious chilling effect on the assertion of the litigants’ rights on appeal.” (Id. at p. 650.)
As we have noted, the trial court erred in going beyond the pleadings. This alone is sufficient to make this appeal not frivolous. The fact the error is harmless does not make St. Clair’s argument objectively devoid of merit.
DISPOSITION
The judgment is affirmed. The motion for sanctions is denied. The Borels shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: SCOTLAND, P. J., NICHOLSON, J.