Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C03-01947
Kline, P.J.
Todd Britt (Britt), a contractor, appeals from a judgment ordering him to pay $311,147.21 to respondent William Cassidy (Cassidy), whose home he agreed to remodel. Britt challenges the judgment on Cassidy’s cross-complaint, arguing that the trial court erred by excluding expert testimony and by applying the equitable tolling doctrine. Britt also contends that certain damage awards are unsupported by law or substantial evidence. We affirm the trial court’s judgment.
In his notice of appeal, Britt also purports to appeal from the order denying his motion for a new trial. An order denying a motion for new trial is not directly appealable, but may be reviewed on appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18-20; Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1152, fn. 1.) Nonetheless, Britt does not raise any argument with respect to his motion for new trial in his opening brief. Britt’s opening brief does, however, make several references to the trial court’s postjudgment fee award, although it does not articulate any independent reason why the fee award should be reversed. Because we affirm the trial court’s judgment, Britt’s reliance on Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 is misplaced.
I. FACTUAL AND PROCEDURAL BACKGROUND
These facts are taken from unchallenged factual findings in the trial court’s statement of decision or from other portions of the record about which there is no dispute. Additional facts are found in the discussion of issues to which they relate.
In early 2000, Cassidy hired Britt to perform remodeling work on Cassidy’s home, located on Colusa Avenue in El Cerrito (Colusa Home). Shortly thereafter, Cassidy purchased another home, on Eureka Avenue in El Cerrito (Eureka Home). Before purchasing the Eureka Home, Britt inspected it and provided Cassidy with an assessment and estimated costs for needed repairs.
Britt and Cassidy met twice, once in June and once in July, to discuss the scope of work Britt was to perform on the Eureka Home. Cassidy’s partner, David Velasquez (Velasquez), was also present during these meetings. Following these meetings, it was agreed that the first project Britt would tackle was an extensive kitchen remodel and demolition of a wall in the living room area. In July of 2000, Home Depot prepared a plan for the kitchen remodel and Britt began working that same month. Before Britt began work, Cassidy emphasized the necessity of the work being completed in a timely fashion. Britt assured Cassidy that the work would be completed by September 15, 2000.
At Britt’s suggestion, and to expedite the remodeling process, Cassidy and Velasquez leased back the Colusa Home they had just sold for approximately one month. When Cassidy and Velasquez subsequently moved into the Eureka Home, in July of 2000, the only work that had been completed was demolition work, for which Cassidy had paid Britt $840. Britt was asked on several occasions for a written contract and a budget outline. Britt repeatedly promised to provide this information, but failed to do so.
On September 20, 2000, Britt assured Cassidy the work would be completed in a couple of months. On October 24, 2000, Cassidy gave Britt another check for $4,000, which Britt had requested to purchase a new heating unit for the Eureka Home. The installation of the heating system was to be completed by the same time as the kitchen remodel. Cassidy emphasized to Britt the necessity of having heat during the winter months, explaining that the cold could be dangerous to his health. Britt informed Cassidy that he understood how stressful construction could be and assured him the heating system would be installed before the winter months. Britt also assured Cassidy that the delays were over. However, Britt never installed the heating unit.
Health problems had made it necessary for Cassidy to take permanent disability leave from his job, a fact of which Britt was aware.
Following additional discussions regarding the delays on the project, Britt convinced Cassidy to write him another check for $4,000, dated November 13, 2000, which was to be used to purchase flooring. The flooring was delivered, but Britt did nothing to complete the flooring installation, citing employee problems, among other reasons. Cassidy eventually learned that Britt cashed the check, but instead of using the proceeds to purchase flooring, he charged the flooring to his ex-wife’s account.
As of November 13, 2000, the Eureka Home was uninhabitable. It lacked heat and did not have a useable kitchen. Thus, aside from a microwave and a barbeque, Cassidy and Velasquez did not have any means of preparing meals. They had to use their upstairs bathtub to wash food items. A rack on the toilet seat was used to dry dishes. As a consequence, approximately 90 percent of the time Cassidy and Velasquez were forced to eat out.
On December 16, 2000, Cassidy wrote Britt another check for $4,000, after Britt assured Cassidy the money was needed to get the job back on track and that the problems that had precipitated the delays were over. Britt even suggested that Cassidy accompany Velasquez on a business trip to give Cassidy a break, acknowledging how stressful construction could be. Cassidy and Velasquez were gone for ten days. When they returned, the $4,000 check they had left for Britt was gone, but the condition of the house was the same.
Cassidy had a great deal of difficulty reaching Britt, but when he was finally able to reach him he expressed his concerns about the condition of the house, in particular, the lack of heat. Britt informed Cassidy that the heating unit was back-ordered, but agreed to install a temporary heating system. Other than installing the temporary heating system, Britt did no other work on the house and continued to be difficult to contact. However, Cassidy was finally able to track Britt down at another job site. When confronted, Britt acknowledged that he had been avoiding Cassidy because he was not making any money on the project.
It was unseasonably cold that November and December, with temperatures in the low forties.
This system provided heat to only the master bedroom and resulted in Cassidy’s monthly heating bill jumping from approximately $60 per month to $300 per month.
On February 12, 2001, Cassidy wrote Britt a letter informing him of his termination. Britt did not respond to the letter, prompting Cassidy to write another letter on February 27, 2001. Britt responded with a letter, dated March 9, 2001, in which he accepted absolutely no responsibility for what had occurred. Rather, Britt blamed Cassidy for not having a full set of plans and claimed he had not been paid for all of the work he had done on the house. In July 2001, Cassidy filed a complaint with the Contractors State License Board (CSLB), which alleged that Britt had abandoned the remodel project after making the home uninhabitable, and that Britt had received $12,840 from Cassidy without providing full value. On August 4, 2003, Britt, acting in propria persona, filed a complaint for breach of contract, conversion, and fraud. On September 26, 2003, Cassidy filed his own complaint for breach of contract, negligence, negligent misrepresentation, fraud, intentional and negligent infliction of emotional distress, and breach of the covenant of good faith and fair dealing.
After the trial court consolidated the two actions, the court granted Cassidy’s motion for judgment on the pleadings as to Britt’s causes of action for fraud and breach of contract. The case proceeded to a bench trial on Britt’s conversion cause of action, and Cassidy’s claims. In its statement of decision, the trial court found Britt’s credibility to be “woefully lacking” and found in favor of Cassidy on Britt’s conversion claim.
Britt does not challenge the trial court’s ruling on his conversion claim on appeal.
With respect to Cassidy’s cross-complaint, the trial court found that “Cassidy established Mr. Britt not only failed to honor his contract with him, but also based on his subsequent conduct, Mr. Britt never intended to honor his contract.” With respect to Cassidy’s negligence claims, the trial court found that “Cassidy established what little work Mr. Britt did perform was substandard.” With respect to Cassidy’s fraud claim, the trial court concluded “Britt’s claim the heating system was back ordered was only one of numerous misrepresentations he made to Mr. Cassidy regarding the reasons for the delays and the materials he had allegedly purchased.” The trial court rejected Britt’s contention that the delays were the product of Cassidy’s failure to have final plans for the project and, instead, concluded that “Britt’s conduct was motivated by... [the fact] that [Britt] was not making any money on the project.”
The trial court further found that “Britt was aware [Cassidy] was on disability” and that “Cassidy informed [Britt] of his health problems and the need to have heat during the winter.” Nevertheless, the trial court found that “after tearing apart Mr. Cassidy’s house, Mr. Britt abandoned the project,” leaving Cassidy with “a house open to the elements that allowed rodents to enter,” “that was unstable as a result of its being up on jacks, without a functioning kitchen for approximately 16 months and without heat during a time the weather was unseasonably cold.” Accordingly, the trial court found that Britt “endangered [Cassidy’s] health” and that Britt’s “indifference to Mr. Cassidy’s health was unconscionable.” Ultimately, the court concluded: “Having established he was defrauded, repeatedly lied to, provided with substandard work and had his health impaired, Mr. Cassidy is entitled to judgment on his negligence, fraud, breach of contract and intentional infliction of emotional distress claims.”
On Cassidy’s breach of contract claim, the trial court awarded Cassidy $67,390 in repair cost damages and $37,800 for loss of use. On his negligence and fraud claims, the trial court awarded Cassidy $16,200 in increased food costs, $3,457.21 for rent on the Colusa Home, $8,000 for supplies never purchased, and $5,000 in interest that Cassidy paid on money borrowed to repair his home. The trial court concluded: “For noneconomic damages, including physical pain and mental suffering[,] Mr. Cassidy is awarded $86,400. This same amount is awarded for intentional infliction of emotional distress. [¶] Finally, Mr. Cassidy is entitled to an additional $500 pursuant to Business and Professions Code § 7160 plus his reasonable attorneys fees.” On March 22, 2006, the trial court entered judgment against Britt in the sum of $311,147.21. Britt filed a timely notice of appeal.
Business and Professions Code section 7160 provides: “Any person who is induced to contract for a work of improvement, including but not limited to a home improvement, in reliance on false or fraudulent representations or false statements knowingly made, may sue and recover from such contractor or solicitor a penalty of five hundred dollars ($500), plus reasonable attorney’s fees, in addition to any damages sustained by him by reason of such statements or representations made by the contractor or solicitor.”
II. DISCUSSION
Britt complains only (1) of the trial court’s purported error in excluding expert testimony; (2) of the trial court’s purported error in applying the equitable tolling doctrine to certain of Cassidy’s claims; and (3) of certain of the trial court’s damage awards. We separately address each argument below.
A. Standard of Review
“A judgment... 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.) When the trial court’s judgment and statement of decision contain both findings of fact and conclusions of law, the reviewing court “ ‘review[s] the trial court’s findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo.’ [Citations.]” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
Under the substantial evidence standard of review, the reviewing court “must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn....” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) Substantial evidence is evidence of ponderable legal significance, reasonable in nature, credible, and of solid value. (Id. at p. 631.) “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)
B. Exclusion of Expert Testimony
Britt first argues that the trial court erred in excluding the expert testimony of John Bailey (Bailey) on the ground of nondisclosure. Specifically, Britt argues that the testimony of a proposed expert witness cannot be excluded for nondisclosure in the absence of a demand for the exchange of expert witness information. Cassidy, on the other hand, contends that the trial court did not exclude the expert testimony of Bailey for nondisclosure, or for any other reason.
Britt relies on Hirano v. Hirano (2007) 158 Cal.App.4th 1, wherein the Second District Court of Appeal held that it was error to exclude expert witness testimony for failure to make a timely exchange of expert witness information when neither party made a demand for such an exchange. (Id. at p. 8.)
We agree with Cassidy that the trial court never ordered exclusion of expert testimony from Bailey. At trial, Bailey was called by Britt. Cassidy’s counsel objected on the ground that Bailey’s testimony would be cumulative of Britt’s prior testimony regarding a 2004 inspection of the Eureka Home. The trial court did not rule on Cassidy’s objection. The trial court inquired as to the substance of Bailey’s testimony. Britt informed the court that Bailey would testify regarding measurements made during the inspection and regarding “some of the structural issues that were brought up by [the contractor hired by Cassidy to make repairs].”
Cassidy never objected to, or made a motion to exclude, Bailey’s proposed testimony on grounds of his nondisclosure as an expert witness. The trial court asked if Bailey had been disclosed as an expert. Britt responded “yes,” and Cassidy’s counsel responded “no.” The trial court never ruled that Bailey’s expert testimony was excluded for nondisclosure. The trial court merely stated: “He can’t testify that he was with you. He can’t testify to that. [¶] He made measurements, and let’s keep it narrow and focused.” Britt responded: “Okay.” Although there is some ambiguity in the record, we cannot read, as Britt does, the trial court’s statement “let’s keep it narrow and focused” to mean that expert testimony was excluded. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433 [“By appealing, [the appellant] assume[s] ‘the burden of showing reversible error by an adequate record.’ [Citation.]”].) The trial court merely limited Bailey’s testimony on irrelevant matters. Thus, Britt’s exclusion argument does not mandate reversal of the judgment.
In any event, Britt has waived the argument he raises on appeal. (Evid. Code, § 354, subd. (a); see also Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 344-345.) Prior to oral argument we solicited supplemental briefing from the parties on whether Britt waived his argument by failing to make an adequate offer of proof. Cassidy, who was unrepresented by counsel at the time, did not file a brief on the issue. However, we considered Britt’s supplemental brief, which was filed out of sequence, and heard oral argument from both parties’ counsel on this point. We are not persuaded that it would have been futile for Britt to make a more specific offer of proof. Here, after the court’s specific inquiries, Britt gave only a vague description of the substance of Bailey’s proposed testimony, but never pointed out that neither party demanded an exchange of expert witness information or directed the court’s attention to the specific instances in which Bailey had been disclosed as an expert witness. Furthermore, Britt has failed to demonstrate that any error was prejudicial.
C. Application of Equitable Tolling Doctrine
Next, Britt argues that the judgment must be reversed because the trial court erred by concluding that Cassidy’s CSLB complaint equitably tolled the statute of limitations applicable to certain of Cassidy’s claims. We need not address the equitable tolling doctrine because Britt waived the statute of limitations defense by failing to plead it in an answer to Cassidy’s complaint or by demurrer. (Minton v. Cavaney (1961) 56 Cal.2d 576, 581; Hall v. Chamberlain (1948) 31 Cal.2d 673, 679 [“if a statute of limitation is not pleaded it is waived”].)
Britt has conceded that he did not plead the statute of limitations as a defense to any of Cassidy’s claims below. “The statute of limitations is a special defense which may be either relied on or waived at the election of a party entitled to avail himself of it, and, if not specially made, will be deemed to have been waived. [Citation.] Being a defense which is personal in its nature, it must be affirmatively shown to the court that it is relied upon by the party as a defense to the action; and upon an appeal from a judgment against a party entitled to make the defense, it will be assumed that the defense was waived, unless it affirmatively appears from the record that it was made in the court below.” (Bliss v. Sneath (1898) 119 Cal. 526, 528 (italics added).)
As Cassidy correctly points out and Britt concedes, the trial court raised the statute of limitations issue sua sponte. Even after the trial court called attention to the statute of limitations, Britt did not seek leave to amend his answer and plead such a defense, but only requested an opportunity to brief the issue. Because Britt did not assert the statute of limitations by answer or demurrer, he has waived any argument that Cassidy’s claims are time-barred.
D. Damage Awards
Finally, Britt argues that certain of the trial court’s damage awards lack legal or factual support. First, Britt argues that the trial court’s awards of $86,400 for intentional infliction of emotional distress and $86,400 for physical pain and mental suffering are duplicative. Britt is correct that “[d]ouble or duplicative recovery for the same items of damage amounts to overcompensation and is therefore prohibited. [Citation.]” (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159.) We do not agree, however, that the two awards of $86,400 are necessarily duplicative. We cannot assume, without any indication in the record, that the trial court did not conclude Cassidy was damaged in the amount of $172,800 for such injuries, and merely split the total damages between the claims. Britt points to nothing in the record that indicates the trial court concluded Cassidy was only damaged in the amount of $86,400 for both physical and emotional suffering.
The other challenged awards are supported by substantial evidence. Britt contends that the trial court’s award of $67,390 in repair cost damages is unsupported by substantial evidence. The trial court’s repair cost award was based on testimony that Cassidy hired various contractors to make repairs necessitated by Britt’s substandard work, along with supporting invoices and reports. Cassidy presented evidence that he paid just one of those contractors, David Thompson (Thompson), $63,095 for repairs necessitated by Britt’s work. But that was not it. Cassidy also presented evidence that he additionally spent $44,972.92 making repairs.
We reject Cassidy’s argument that Britt has waived any substantial evidence argument on appeal by failing to fairly summarize the evidence.
Britt’s claim that “most of Thompson’s work involved completion work rather than repairs” is contradicted by the trial court’s finding that “Cassidy hired David Thompson... among others, to repair the damage to his home.” (Italics added.) Thompson specifically testified that all of the costs included in his report were “cost[s] to get the house into reasonably habitable condition without any of the extra stuff that was done that was optional.” Cassidy testified to having paid a total of over $180,000 for the remodel. He did not claim this entire amount as repairs necessitated by Britt’s work. However, the evidence presented by Cassidy shows that he spent well in excess of $67,390 making those repairs. Thus, substantial evidence supports the trial court’s repair cost damage award.
Next, Britt argues that substantial evidence does not support the trial court’s awards for loss of use and increased food expenses. Britt claims that the awards fail to take into account the fact that Cassidy “was in Hawaii for about one-eighth of the construction period.” The trial court’s award of $37,800 represents 18 months of lost use of 75 percent of the Eureka Home. This was based on Cassidy’s testimony that the monthly rental value of the Eureka Home was $2,800 and that only 25 percent of the house was available for use in the relevant time period. The trial court’s award of $16,200 in increased food costs represents 18 months in which Cassidy spent approximately $30 per day on meals because his home lacked a functioning kitchen. The award is supported by testimony that approximately 90 percent of the time Cassidy and Velasquez were forced to eat out and that Cassidy spent $30-50 per day on meals.
Britt misstates the evidence. The evidence showed only that Cassidy made four one-week trips to Hawaii.
Although Cassidy may have accompanied Velasquez on out-of-town business trips during four weeks of the 18 months, the trial court found that, in at least one instance, Cassidy traveled on Britt’s suggestion. This finding is supported by Cassidy’s testimony that he accompanied Velasquez, at Britt’s suggestion, to escape the conditions at home and because Britt had informed him he could complete more work while the house was vacant. Accordingly, the trial court’s awards for loss of use and increased food costs are supported by substantial evidence.
Finally, Britt challenges the trial court’s award of $5,000 in loan interest damages. The trial court’s award is supported by Cassidy’s testimony that he was forced to borrow $90,000 to finance repairs to the Eureka Home and that he paid $5,000 in interest on that loan. Britt contends that he should only be responsible for “the portion of the $5,000.00 in interest that the total amount of repair costs bears to the $90,000.00 loan principal.” As noted above, the evidence presented at trial showed that Cassidy expended approximately $108,068 in making repairs necessitated by Britt’s work. Accordingly, substantial evidence supports the trial court’s award of $5,000 in loan interest damages.
III. DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.