Opinion
A140761
07-27-2017
JAMES ELLIS BROWN, Plaintiff, Cross-defendant and Appellant, v. CITY OF OAKLAND et al. Defendants, Cross-complainant, and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG09-455950)
This appeal arises out of a dispute between James Ellis Brown and the City of Oakland (the City) under a public works contract. Brown sued the City claiming it failed to pay him all he was due under a contract to perform construction services on an as-needed basis to rehabilitate certain City-owned properties. He also sued former City employee Keihan Ehsanipour, alleging that as the City's project manager Ehsanipour made various misrepresentations or engaged in deceptions, by requiring that Brown use a cost methodology for his bid proposal prices and invoices that Brown alleged caused him to underestimate his costs and prevented him from complying with state prevailing wage laws. The City countersued, alleging Brown breached the contract by failing to timely complete the projects he was assigned and seeking liquidated damages. The jury found neither Brown nor the City did all or substantially all the contract required them to do and rejected each of their contract claims against the other. The jury also found no misrepresentation by Ehsanipour and rejected Brown's claims against him.
Brown appeals from the judgment on three grounds. First, he asserts the trial court erred in various rulings requiring him to follow a local court rule regarding exhibits and excluding certain evidence on various grounds. Second, he claims the jury's rejection of his breach of contract and misrepresentation claims is not supported by substantial evidence because the only "credible, reasonable testimony and documentary evidence of solid value" shows Brown "completed the assignments given to him and . . . was not compensated under contract by [the City]," and Ehsanipour "exercised deception in the bidding process" and in enforcing the project cost methodology against Brown. Third, he contends the trial court lacked authority to amend the judgment to award costs to Ehsanipour. We reject each of these contentions and therefore affirm.
BACKGROUND
Brown's claims of error do not require us to summarize all of the evidence presented in the approximately month-long trial. We provide this brief overview and will discuss specific aspects of the trial as needed in addressing issues Brown has raised on appeal.
Brown, a licensed general contractor who in the 1990s had been employed by the City to perform and oversee construction on City-owned properties, in July 2006 bid on a one-year contract to perform miscellaneous construction projects for the City. His was the low bid, and he was awarded the contract.
The bid was for an "as-needed" contract, meaning the projects were not identified at the time of bidding but would be assigned to the successful bidder later through work orders. The instructions provided with the bid package required contractors to determine the amount they would charge to perform specified items of work using an estimating methodology called RS Means. The bid documents and the contract also required contractors to pay their laborers prevailing wages.
At the heart of the parties' dispute are Brown's contentions, to which he testified, that the RS Means method he was required to use, and in fact used, in preparing his bid precluded the use of prevailing wages to calculate labor costs; that RS Means was incompatible with prevailing wages and could not be used on a prevailing wage job; that the bid documents required him to use hourly rates for construction workers that were prescribed by RS Means; that the rates he used in the bid were not required to be based, and he did not base them, on prevailing wages; that the rates he used were below prevailing wages; that the numbers used in the bid were "hypothetical" and the preparation of the bid was an "exercise" and the numbers in the bid were different from the numbers that were to be used in determining amounts due under the actual contract; and that the City failed to pay him the full amount of the invoices he submitted, which were based on prevailing wages rather than the unit price required by RS Means, depriving him of the funds he needed to complete the projects and ultimately causing him to lose his contracting business.
The City's contentions, to which its witnesses testified, were that RS Means is a productivity measure or standard the City used to determine the number of hours and number of trade persons needed to complete each job, but not as a method of determining hourly rates or wages, and that the bidders provided the wage rates to be used for their laborers; that the bid documents required that contractors pay prevailing wages; that the contract required payment of prevailing wages; that the City's contract compliance officer discussed the prevailing wage requirement at the pre-bid meeting; that Brown's bid in fact was based on wage rates that exceeded prevailing wage requirements; that Brown failed to submit payroll records until the closeout when the City requested them; that after he did so the City discovered that he had not been paying prevailing wages and reported the violation to the State; and that Brown was required but failed to perform the work in an efficient manner consistent with RS Means productivity standards. The City also elicited testimony from Brown that he had used the RS Means data from the wrong year, which caused him to underbid the project. The City claimed Brown's delays in completing the project put the City at risk of losing state grant funding and entitled the City to liquidated damages. The City's witnesses also testified that Brown failed to follow the contract requirements regarding changes in the scope of the contract work by proceeding to perform work without the City having first issued change orders approving it. The City witnesses also testified that Brown was paid in full, and indeed overpaid, for all of the work he did.
What is not in dispute is that Brown did not in fact pay his laborers prevailing wages.
ANALYSIS
I.
Brown's Claims of Error in the Trial Court's Evidence-Related Rulings Fail.
A. Brown Has Failed to Show the Trial Court's Enforcement of Its Local Rule Regarding Exhibits Was an Abuse of Discretion.
Brown contends that the trial court "prejudiced Brown's 'day in court' by refusing to rule on the admissibility of evidence proffered by [Brown] unless all counsel met and conferred and unless Defendant's Counsel stipulated to the admissibility of Brown's evidence." In doing so, Brown argues, the court "misapplied the Local Rule by insisting on the stipulation to admissibility which substantially delayed Plaintiff Brown's ability to proffer evidence when appropriate, e.g., when questioning a witness, Brown's Counsel would not be allowed to show the document/photo to the witness." The effect, Brown contends, was that the City was allowed to "limit[] and control[] [Brown's] presentation" of his case.
We start with Alameda County Superior Court Local Rule 3.35(b), which is at the heart of this argument. That rule provides, in relevant part: "Each counsel . . . must prepare an index of all exhibits to be offered at trial, other than those to be used for impeachment or rebuttal, for submission with one extra copy to the courtroom clerk at the pretrial conference or on the first day of trial if no pretrial conference is scheduled. The index must identify as separate exhibits each discrete document or item to be offered at trial and the index must include a brief description of each exhibit sufficient to distinguish it from the other exhibits. These indices and copies of the exhibits must be exchanged by counsel . . . at least three court days before the pretrial conference or three court days before trial if a pretrial conference is not scheduled. The parties must meet and confer to eliminate duplicate exhibits and stipulate whenever possible to authenticity and admissibility. Failure to disclose or exchange a copy of any exhibit may result in its exclusion at trial. All objections to an exhibit must be in the form of a motion in limine pursuant to paragraph (e). Failure to file and serve a motion in limine objecting to an exhibit may waive all objections to that exhibit at trial." (Alameda County Super. Ct. Local Rules, rule 3.35(b).)
The portions of the record Brown cites do not support the assertion that the court misapplied the rule or threatened to exclude evidence to which defendants would not stipulate. Instead, the record reflects that Brown's counsel repeatedly failed to comply with the rule and then complained when the trial judge enforced it.
For example, Brown cites a portion of a bench conference early in the trial regarding photographs about which his counsel sought to question Ehsanipour. A review of the entire conference indicates that defense counsel objected to the use of the photographs because Brown's counsel had failed to show them to him for purposes of presentation at trial. Brown's counsel conceded she had not met and conferred with defense counsel about the specific photographs she intended to use.
The point of requiring a meet and confer, the court explained, was "so that you can figure out which pictures are going to be admissible" and "iron out these—any objections prior to presenting them in court so that we can, you know, move forward relatively smoothly as opposed to, you know, handling each objection to each photo as it comes up in the queue." Ultimately, the court insisted that counsel meet and confer and attempt to resolve the issues before the next morning.
It is true that at one point during the discussion of the photographs, the court said "If there's no meet-and-confer and there's no agreement, I'm not going to allow them in," which in isolation could be construed as requiring defense counsel to agree to their admission. However, the court's comments in their entirety clearly reflect that the court was simply requiring the parties to meet and confer and attempt to reach agreement on as many exhibits as possible, and not refusing to admit exhibits to which the defendants did not stipulate. Thus, in the next breath after the above-quoted statement, the court said: "And you can ask [the witness] any questions about the projects but I'm not letting the photos in unless there's some attempt to resolve these issues prior to tomorrow morning. Okay?" (Italics added.) After further colloquy, the court reiterated: "Okay, look. I've heard this—I've heard it. Okay. But it's not getting me anywhere, and it's not getting you guys anywhere, really. Because I said last Friday, meet and confer to hammer down an agreement on these exhibits. And now here we are, and you want to show him some photos, and you don't have any agreement on any of the photos. [¶] So, you know, the problem—I mean, I would say the problem is that my order to meet and confer was blown off." (Italics added.) And when Brown's counsel disagreed with that characterization, the court responded: "Well, I just told you if there's no meet-and-confer, I'm not letting those things in. I don't care how admissible they are. I've ordered you to meet and confer to hammer out and narrow down the list of exhibits which may have objections attached to them." (Italics added.) In short, it is clear from the entire colloquy the court was requiring only that the parties meet and confer to "narrow down the list of exhibits" to which the defendants objected, so the trial would not become bogged down unnecessarily with evidentiary disputes.
It is also clear from the record that the parties understood this to be the court's ruling. Over the next several days, the parties met and conferred and defendants agreed the photographs were admissible so long as notations made on them, apparently by Brown, were redacted. Brown's counsel objected to redacting them, but the court ruled the photos had to be clean, Brown's counsel ultimately redacted them and was able to introduce them during her examination of another city employee.
Brown's contention that the court erred in requiring counsel to follow Local Rule 3.35(b)'s meet-and-confer requirement ignores fundamental principles critical to the functioning of the courts. "A trial court has the inherent authority and responsibility to fairly and efficiently administer the judicial proceedings before it. [Citations.] This authority includes the power to supervise proceedings for the orderly conduct of the court's business and to guard against inept procedures and unnecessary indulgences that tend to delay the conduct of its proceedings." (California Crane School, Inc. v. National Commission for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22, fn. omitted; accord, Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377 ["courts have inherent equity, supervisory and administrative powers"]; Code Civ. Proc., §§ 128, subd. (a), 187.) Further and to the same ends, courts have authority to make local rules so long as they are not inconsistent with the rules established by the Judicial Council. (Gov. Code, § 68070, subd. (a).) We will not disturb a trial court's exercise of its power to supervise proceedings "absent a clear showing of abuse of discretion." (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 24 (Reisig); see also California Crane School, at p. 22 [applying abuse of discretion standard].)
Brown does not contend local rule 3.35(b) was inconsistent with any of the Rules of Court established by the Judicial Council or was invalid for any other reason. And even if it were not set forth in a local rule, requiring parties to meet and confer to narrow disputes about exhibits would be well within a trial court's discretion in fulfilling its responsibility to fairly and efficiently manage the litigation before it. Judge Hayashi's insistence on the parties' compliance with the local rule was laudable, not erroneous. By doing so, he streamlined the presentation of evidence and conserved the time of jurors and witnesses and the scarce resources of the court. That Brown's counsel or any other counsel found compliance with the rule time-consuming, burdensome or "annoy[ing]" is of no consequence. As officers of the court, counsel are obligated to conduct themselves in a manner that comports with court rules and orders and respects the time and resources of the court and those who serve it.
In short, Brown has failed to demonstrate any error in the trial court's enforcement of the meet-and-confer rule, much less an abuse of discretion.
B. Brown Has Failed to Show Error or Prejudice in the Trial Court Ruling Requiring Removal of Captions from Photographic Exhibits.
Brown separately complains that the trial court's requirement that it remove the "captions" from photographs was erroneous because the captions were necessary to comply with the requirement of local rule 3.35, subdivision (b) that each exhibit be "identified and distinguishable from other exhibits." He maintains this resulted in further "temporary exclusion of the photographs" and prevented him from showing the documents "to the witnesses when appropriate; preventing [Brown's] fair, day in court to have his case heard on its merits."
The argument borders on frivolous. Brown misconstrues the local rule, which does not require that exhibits themselves be marked with descriptive information but rather requires an index of exhibits that "must identify as separate exhibits each discrete document or item to be offered at trial" and that "the index . . . include a brief description of each exhibit sufficient to distinguish it from the other exhibits." (Italics added.) The index is not evidence and does not go to the jury. And, as Brown seems (and seemed at trial) to be unaware, words purporting to describe what is shown in a photograph are hearsay and, absent an exception to the hearsay rule, are inadmissible. (Evid. Code, § 1200, subds. (a), (b) [" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" and "[e]xcept as provided by law, hearsay evidence is inadmissible"].) Brown does not even address the point. We review the trial court's evidentiary rulings for abuse of discretion. (Reisig, supra, 9 Cal.App.5th at pp. 22-23.) Brown has failed to establish that the judge abused his discretion in excluding the comments written on the photographs.
See, e.g., DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 681 [package labelling and instruction sheet were hearsay when offered to prove identity of products in package]; In re Michael G. (1993) 19 Cal.App.4th 1674, 1677 [information on label of spray can as to its contents was hearsay].
Even if he had shown error, Brown's argument would fail for the further reason that he has failed to show prejudice: that "it appears reasonably probable [he] would have obtained a more favorable result absent the errors." (Reisig, supra, 9 Cal.App.5th at p. 29.) He complains that the refusal to admit the written captions resulted in a "temporary exclusion" of the photographs preventing them from being "shown to witnesses when appropriate." This conclusory assertion falls far short of demonstrating a reasonable probability that Brown would have obtained a more favorable result on some or all of his claims if the captions had been admitted, enabling the photographs to be used to question witnesses earlier.
C. Brown Has Failed to Show Error or Prejudice in the Trial Court's Exclusion of Certain Plans and Specifications.
Brown also contends the court excluded evidence of some of the plans and specifications for the projects, which he claims were relevant to the issue of whether the assignments he was given by the City exceeded the scope of the projects contained in the original plans and specification. When Brown sought to introduce the relevant exhibit at trial, Exhibit 28, defendants objected, claiming Brown had previously objected to the same document when proffered by defendants, on hearsay grounds, and defendants had therefore withdrawn the exhibit. Brown's lawyer responded by informing the court that the copy she was offering did not contain certain marks made by the defendants' experts that had been on the copy offered by the defendants. Defense counsel reiterated his argument that Brown was seeking to introduce exhibits his counsel had previously objected to.
On appeal, Brown does not discuss the reason for the court's exclusion of the documents and whether it was factually or legally incorrect. As a result, he does not meet his burden of showing the trial court abused its discretion. Further, his contention that the court's "delay" in ruling on the document's admissibility "for at least a week after the trial started," deprived him of "the opportunity to question Ehsanipour about the plans and his instructions to his subordinate employee" is untenable because he does not explain or provide citations to the record as to the reason for the delay, including whether it was the product of his counsel's failure to meet and confer. Finally, even if he had shown an abuse of discretion, Brown's argument would fail because his assertion of prejudice is unsubstantiated by anything other than the broad and general assertion that Brown was denied "the opportunity to present evidence needed to prove his case" and the jury was not permitted "to hear a [sic] testimony regarding the plans from the Project Manager." Without an explanation of what Ehsanipour's testimony about the plans would likely have been and in what way it could have changed the outcome, we cannot conclude there was a reasonable probability that if the trial court had admitted the exhibit Brown would have obtained a more favorable result.
D. Brown Has Failed to Demonstrate Error or Prejudice in the Trial Court's Rulings Regarding Admission of Documents Not Produced in Discovery.
Brown's final evidentiary contention is that the court erred in granting defendants' in limine motion to exclude evidence not produced in discovery. The motion itself generally sought to preclude Brown from introducing evidence pertaining to documents not previously produced in discovery. When the court heard the motion in limine, Brown's counsel did not object to it so long as the exclusion was mutual, and the court granted it as to both parties. At the hearing, defense counsel stated that Brown's exhibits did not "bear any bates stamp numbers that were used during the discovery process" but stated defense counsel was "now in the process of evaluating whether in fact new documents that were not produced previously during discovery have been included."
Despite the lack of any opposition to the motion in limine below, which itself is a waiver of this issue on appeal, Brown now contends that the trial court "misinterpreted the Discovery Act and erroneously granted Defense Counsels' in limine Motion to exclude evidence alleged not to have been produced by [Brown] in Discovery" and, specifically, excluded documents defendants had produced to Brown. The record does not support this assertion. Contrary to Brown's contention, the colloquy he cites does not reflect a ruling by the court excluding documents that had been produced by defendants rather than by Brown. Rather, it reflects only that the trial court reserved ruling on the admissibility of a document produced by defendants (i.e., a document from the State of California Department of Health and Human Services) until the document had been properly authenticated.
Brown further complains that because of defense counsel's contention that some of the documents in his exhibit binder had not been produced in discovery, Brown's counsel was required to write a brief and to "retrieve Defendants' Discovery packets to show the Trial Judge that the documents had been in Defendants' possession and provided to [Brown]—not vice versa." There are so many problems with this argument we state only the most obvious ones, starting with this: Brown has not shown that it was erroneous for the court to require his lawyer to address this subject further, through briefing or otherwise. Trial is a dynamic process; and trial lawyers are required to address all manner of subjects to a trial judge's satisfaction all the time. Indeed, far from showing error, Brown's counsel brought the problem on herself by providing an exhibit binder that contained documents without bates stamp numbers. Nor could there be any conceivable prejudice to Brown from requiring his lawyer to brief or address the issue further, even assuming the trial court overstepped (it did not). Further, his appellate brief does not cite the portions of the record where the court ruled on the objections he claims were erroneously premised on the documents having been produced by the defendants rather than by Brown, except for the colloquy described above that we have already discussed.
In short, Brown has failed to show the trial court excluded evidence on the ground that it had been produced by the defendants and not by the Brown. And, having failed to demonstrate that any documents were excluded on that ground, he has also failed to demonstrate any prejudice. For these reasons, the cases he cites holding that a trial court's erroneous refusal to admit all evidence or evidence critical to proof of a plaintiff's claim constitutes reversible error are simply inapposite.
II.
Brown's Challenges to the Sufficiency of the Evidence Are Meritless.
A. Brown's Has Failed to Show There Is No Substantial Evidence Supporting the Jury Verdict Rejecting His Breach of Contract Claim.
Brown argues there was not substantial evidence to support the jury's verdict against him on his contract claim against the City. He contends that "[f]rom the record of this trial, there is only credible, reasonable testimony and documentary evidence of solid value that Brown completed the assignments given to him and that he was not compensated under contract by City."
Brown's framing of his argument reflects a misunderstanding of the substantial evidence standard under which we review challenges to a jury's factual findings. We do not sort the "credible" from the noncredible, like wheat from chaff; nor do we decide which evidence is "reasonable" or unreasonable or of "solid value." "Under the substantial evidence standard of review, '[w]e must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. [Citations.] [¶] . . . If this "substantial" evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.' [Citation.] It is not our role to 'reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.' [Citation.] That role is the 'province of the trier of fact.' " (Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488 [italics added].)
Brown's arguments fail fully to grapple with the factual basis on which the jury's rejection of Brown's contract claim against the City rests, which is reflected by the special verdict. The jury expressly found that Brown did not "do all, or substantially all of the things that his contract with the City of Oakland required him to do." As instructed by the special verdict form, the jury, after answering that question in the negative, skipped the questions (and thus made no finding) regarding whether the City breached the contract with Brown or Brown was harmed by any such breach. Brown argues that the City breached the contract by failing to pay him and that he was harmed as a result; however, these arguments, while necessary, are insufficient to support his substantial evidence challenge unless he can also demonstrate there was no substantial evidence supporting the jury's finding that he defaulted on his own obligations under the contract. As the special verdict reflected, " 'plaintiff's performance or excuse for nonperformance' " is an essential element of a breach of contract claim. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178; see Civ. Code, § 1439.) We therefore focus first on whether Brown has demonstrated a lack of substantial evidence to support the jury's finding that he did not perform his obligations under the contract.
The reporter's transcript contains the jury's reading of the questions that it was asked and its answers to those questions. Defendants have requested and we now grant judicial notice of the special verdict form, which was omitted from the record filed with this court.
Two of Brown's arguments indirectly address this issue. First, he argues generally that evidence demonstrates he performed the construction work called for by the contract in a satisfactory manner. Specifically, he asserts that the photographs showed the work he did and the " 'hidden' conditions that were belatedly discovered, causing the completion of the work to be delayed." He refers to testimony of one of the City's architects and a City building inspector that, by his account, proves his work was satisfactorily performed. And he points to the testimony of a third City employee, Moore, about walk throughs and inspections and to his own testimony about the increase in the scope of work. And, he argues that there was "a failure of evidence that Brown breached the contract in violation of City's right to claim liquidated damages," and that the evidence shows that unforeseen conditions reasonably caused delay, thereby justifying and excusing delay in his performance. Second, regarding his contractual obligation to pay prevailing wages, he concedes he failed to pay them but argues the City was not harmed because of his bonding company's payment of the state Department of Industrial Relations' assessment for the shortfall.
These arguments fail for several reasons. First, Brown's arguments about what the evidence shows are general and conclusory, and he fails to cite the record in support of his assertions. Relatedly, his statement of facts, earlier in the brief, presents an argumentative and one-sided recitation of the facts. And neither his statement of facts nor his substantial evidence discussion acknowledges, much less discusses, the evidence that conflicts with his version of the facts. These failures alone are grounds for rejecting Brown's substantial evidence challenge. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 ["conclusionary assertions are wholly inadequate to tender a basis for relief on appeal"].)
For example, Brown nowhere discusses in his brief the evidence defendants presented at trial (including Brown's own admissions on cross-examination) that in a number of instances he proceeded to perform extra work without complying with the contract requirements that he first seek and obtain a change order from the City authorizing the extra work and any increased costs or additional time associated with it.
These requirements are fundamental and should be familiar to any appellate practitioner. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 9:36, p. 9-12 (Eisenberg) ["Any statement in a brief concerning matters in the appellate record-whether factual or procedural and no matter where in the brief the reference to the record occursmust be supported by a citation to the record. [¶] . . .[¶] When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited"]; id. ¶ 9:144, p. 9-43 ["On an appeal challenging sufficiency of the evidence . . ., appellant's opening brief must set forth all the material evidence on point, including the evidence damaging to appellant's position . . . . An appellant who states and argues only favorable facts and evidence, ignoring evidence favorable to respondent (or entirely omitting pertinent facts), 'fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment' "]; see Cal. Rules of Court, rule 8.204 (a)(1)(C), (2)(C).)
Second, even if Brown had not waived the issue, he addressed only some and by no means all of the factual bases on which the City relied in arguing that he failed to perform his contractual obligations. He contends his construction work was satisfactory, any delay in completing the projects was excused by unforeseen conditions and defendants' expansion of the scope of the work and his failure to pay prevailing wages was immaterial. However, he does not address other grounds on which defendants argued he breached the contract, including that he used arbitrary rates in preparing his bid with no intention of doing the work at those rates and failed to comply with the work order procedures in the contract, instead undertaking work the City had not authorized. The City cites evidence supporting these claimed failures on Brown's part, and Brown's failure even to address them dooms his substantial evidence challenge.
Third, and finally, Brown's "no harm" argument concerning his failure to pay prevailing wages is a non-starter. Brown cites no authority supporting the proposition that a plaintiff may breach a contract at will and still enforce it so long as a third party belatedly rectifies the problem so the defendant is not ultimately harmed. But even if Brown's theory that a breach that does not result in damage or harm is immaterial and does not prevent a party from enforcing the contract, he has failed to provide record support for his assertions that all of the employees were made whole and that there was no harm to the City. Further, the City argued and apparently presented evidence that it was harmed, in that the laborers Brown hired and paid "a fraction of what they were entitled to be paid" were "wildly inefficient," and that this was the reason completion of the projects was significantly delayed. In failing to address this point, Brown has not met his burden to show error or overcome the presumption that the jury verdict was correct. (Godfrey v. Oakland Port Servs. Corp. (2014) 230 Cal.App.4th 1267, 1283.)
Where a contractor agrees with a public entity that it will pay prevailing wages, aggrieved workers are third-party beneficiaries of that contract. (Dept. of Indus. Relations v. Fidelity Roof Co. (1997) 60 Cal.App.4th 411, 426.)
In his closing argument, defense counsel stated that Exhibit 113 showed the inefficiencies. However, Brown did not include that exhibit in the record on appeal. In this circumstance, we presume the missing evidence supports the jury verdict. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [appellant's failure to furnish adequate record to assess claim of error requires resolution of such claim against him]; Osgood v. Landon, supra, 127 Cal.App.4th at p. 435 [" 'a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed' "].)
For all of these reasons, Brown's substantial evidence challenge to the jury verdict on his breach of contract claim fails.
B. Brown's Challenge to the Judgment Against Him on His Misrepresentation Claims Misconstrues the Scope of Substantial Evidence Review.
Brown similarly challenges the jury's rejection of his misrepresentation claims against defendant Ehsanipour. In the special verdict, the jury found that Ehsanipour did not make a false representation of fact. Brown's challenge to this finding consists of two conclusory sentences: "There was no substantial evidence upon which the Jury could reasonably have based its verdict on to [sic] award [Brown] 'nothing.' Even with the evidence viewed in a light most favorable to Defendant/Appellees City and Ehsanipour, there is only one inference that can reasonably be deduced from the facts, . . . that Ehsanipour exercised deception in the bidding process and in the enforcement of the use of the R.S. Means Standard against Brown, when Ehsanipour knew that never before nor since the subject contract had City applied the R.S. Means standard."
Again, Brown overlooks that it is his burden on appeal to "affirmatively show[] error." (Godfrey v. Oakland Port Servs. Corp., supra, 230 Cal.App.4th at p. 1283.) This burden "includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court's role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness." (Eisenberg, supra, ¶ 8:17.1, p. 8-6; see People v. Stanley (1995) 10 Cal.4th 764, 793 [where defendant did not "specify how the evidence fail[ed] to support the verdict" and "merely refer[red] [court] to the statement of facts contained in his opening brief," it was not court's role to "construct a theory supportive of his innocence and inconsistent with the prosecutor's version of the evidence"].) The requirement that every brief contain a legal argument with citation of authorities on the points made and principle that where appellant fails to do so the court may treat the argument as waived "is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence." (Stanley, supra, at p. 793.) Despite this burden, Brown's briefing discusses none of the evidence defendants presented in defense against Brown's misrepresentation claim.
Brown's theory as alleged in his complaint was that Ehsanipour misrepresented that labor costs were to be determined using a method known as RS Means, rather than using prevailing wages, and that the two standards were incompatible. He alleged he relied on the "representation that his bid calculations should be based upon the RS-Means rather than upon the prevailing wages standard, but that his payments for work that [Brown] and his crew performed would not be bound by the RS-Means standard when Defendant Ehsanipour calculated the value of the payments due." At trial, he testified that the RS Means test and prevailing wage requirements were incompatible, that RS Means specified the hourly rate, and that if the RS Means method was employed, a contractor could not meet the prevailing wage standard. He testified that he believed he should (and that he did) use RS Means only in preparing his bid and that prevailing wages would instead be used in performing the contract.
But Brown's substantial evidence argument ignores the defense theory of the case and the evidence supporting it. He fails even to mention, much less discuss, defendants' argument and evidence showing RS Means is a method of estimating the materials cost and hours required to do a project (productivity) that does not prescribe or require particular hourly rates; that it was up to each contractor to fill in the hourly rate it would charge for the services his workers performed; and that contractors were required to use hourly rates that, at minimum, complied with prevailing wage standards. Nor does he discuss his admission during cross-examination that the bid documents did not list hourly rates for different trades but left a column for bidders to fill in the rates they proposed. Brown also fails to discuss his own deposition testimony, used to impeach him on cross-examination, that he could not recall oral statements Ehsanipour made to him, did not ask any questions at the pre-bid meeting, and recalled no other communications with Ehsanipour about the bid documents other than one regarding moving the date for the pre-bid meeting. And he fails to discuss Ehsanipour's testimony that at the pre-bid meeting Ehsanipour simply told prospective bidders the contract was for as-needed general construction work and the bid criteria were spelled out in the specifications, solicited questions (and no one asked any) and did not discuss RS Means or prevailing wages, and that never, prior to Brown submitting his bid, did Ehsanipour tell Brown he should use numbers other than prevailing wage rates in preparing his bid. Brown also fails to mention, much less discuss, the fact that the City employee who evaluated the bids testified that Brown's bid did in fact include labor rates that met the prevailing wage requirement.
In short, Brown has waived the issue of whether there was substantial evidence supporting the jury's finding that Ehsanipour did not make a misrepresentation to him, and even a cursory review of the record indicates his contention lacks merit in any event.
III.
Brown's Argument That the Trial Court Lacked Jurisdiction to Amend the
Judgment to Award Fees and Costs Is Meritless.
Brown's final argument is that the trial court's issuance of an amended judgment awarding costs to Ehsanipour, who prevailed on Brown's claim against him, was in excess of the court's jurisdiction and is therefore void.
The court entered judgment on November 19, 2013. The judgment was in favor of Ehsanipour on both of Brown's claims against him. On December 4, 2013, Ehsanipour filed and served on Brown a memorandum of costs. Brown did not file a motion to strike or tax costs. On December 24, 2013, defendants submitted a proposed amended judgment, adding an award of the costs to Ehsanipour in the amount set forth in the memorandum of costs. On January 14, 2014, the trial court entered the amended judgment. The proposed amended judgment and the actual (signed) amended judgment are identical to the original judgment in content except for the addition of the sentence: "Defendant Keihan Ehsanipour is hereby awarded costs in the amount of $25,069.75."
Brown, who characterizes the court's amendment of the judgment to add costs as "ex parte," neglected to mention in his brief that Ehsanipour filed a memorandum of costs, and also neglected to include the cost memorandum in the record on appeal. Defendants have requested that we take judicial notice of the memorandum of costs, which we now grant.
The record does not indicate whether the proposed judgment was served on Brown, although it contained a line for Brown's counsel to approve it as to form. To the extent Brown is characterizing the proceedings as "ex parte" because the proposed form of judgment was not served on him, the characterization is at best misleading and an overstatement. The memorandum of costs was served on Brown through his counsel. Brown thus had notice that Ehsanipour was seeking costs and notice of the amount. The submission of a proposed form of judgment that did nothing more than add those costs to the judgment, after Brown's time to move to strike or tax costs had expired without him filing anything, should not have been a surprise. A copy of the proposed judgment should have been served on Brown's counsel, but the failure to do so, if any, did not deprive Brown of notice of, or the opportunity to oppose, costs.
Brown makes two arguments as to why the amendment of the judgment was improper. First, he argues the trial court failed to leave "blanks" in the original judgment for costs, to make the judgment "conditional or provisional" or to "reserve jurisdiction over the issue of fees and costs to be determined later," and this precluded the trial court from adding the costs to the judgment after the fact. He attempts to distinguish cases in which fees and costs were awarded after judgment on the ground that in some such cases, e.g., Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222-223 (Torres), the trial court had left blanks, and in another, Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 649-650, the fees and costs were awarded after a noticed motion.
Brown's theory is that only where a judgment is "preliminary and non-appealable where the document is incomplete and leaves blank spaces to be filled-in at a later date," may the court enter an award of fees and costs after issuing it. Brown concedes that even under the theory he articulates, a judgment is complete and appealable "where the 'blank is merely for the inclusion of statutory costs, a ministerial act' for the clerk of court to fill-in later."
By citing Torres and Lakin, in which the trial courts had addressed fees and costs after entering judgment, Brown implicitly acknowledges that costs may be awarded postjudgment. His argument is that unless the court makes the judgment "preliminary" by leaving blanks, explicitly reserving jurisdiction, or the defendant files a motion for fees and costs after judgment, it lacks jurisdiction to decide the issue.
There are many problems with this argument, most significantly, that no case or other authority he cites support this proposition, which neither Torres nor Lakin addressed. Moreover, Torres flatly rejects the Brown's theory; far from holding an original judgment was "preliminary" because it contained blanks for attorneys' fees and costs that were later awarded, the court held the opposite: that the original judgment was a final, appealable judgment. (Torres, supra, 154 Cal.App.4th at pp. 222, 223, 227.)
Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, cited by Brown, also is inapposite. It involved a substantive, material amendment to a judgment, not a mere amendment to add costs. As Torres holds, an order awarding both attorney fees and costs does not amend the judgment "in any substantive way." (Torres, supra, 154 Cal.App.4th at p. 222.)
Furthermore, Brown virtually ignores both the statute and the rule that govern prevailing party costs awards. Section 1032 of the Code of Civil Procedure provides in relevant part that "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc., § 1032, subd. (b).) Section 1034 provides that "[p]rejudgment costs allowable under this chapter shall be claimed and contested in accordance with rules adopted by the Judicial Council." (Id., § 1034, subd. (a), italics added.) The Judicial Council rule governing prejudgment costs is rule 3.1700 of the California Rules of Court. That rule requires a prevailing party who claims costs to serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal or within 180 days after judgment, whichever is first. (Cal. Rules of Court, rule 3.1700(a).) The rule specifies that the method for contesting costs is to file and a notice of motion to strike or tax costs within 15 days after service of the cost memorandum. (Id., subd. (b).) Finally, the rule further directs that "[a]fter the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment." (Id., subd. (b)(4), italics added.)
Brown's theory, then, is utterly at odds with rule 3.1700. That rule not only authorizes but compels the trial court to "enter the costs on the judgment" once a memorandum of costs is filed and the time passes for filing a motion to tax. The rule does not require the court either to leave a blank in the judgment for costs or expressly "reserve jurisdiction over the issue of . . . costs to be determined later." In effect, the rule itself reserves, or at least recognizes, the trial court's inherent jurisdiction to award costs after judgment is entered. The rule also does not require a noticed motion; it specifically prescribes the process for adding costs to the judgment, and that relatively quick and efficient process entails the filing of a memorandum of costs and, if objected to, a motion to strike or tax. (See 612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285 [describing procedure and noting it "provides an orderly and efficient way of placing disputed costs at issue on a line-item basis"].)
In short, there was no error.
DISPOSITION
The judgment of the superior court is affirmed. Respondent is entitled to costs on appeal.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.