Opinion
B158364.
7-18-2003
JOHNNY CLAY, Plaintiff and Respondent, v. SCOTT ALAN ROSSON et al., Defendants and Appellants.
Ashworth & Benedict and Stephen A. Bowers for Defendants and Appellants. Alex Gilanians for Plaintiff and Respondent.
Johnny Clay doing business as Quality Concrete, a concrete subcontractor, sued Scott Alan Rosson doing business as Rosson Construction, a general contractor, and others for money due for work on a construction project. After a nonjury trial, the trial court determined that the concrete work was 90 percent complete when Rosson terminated the subcontract and awarded Clay the difference between 90 percent of the contract price and the amount paid by Rosson under the subcontract. The trial court also found that Clay timely paid its workers and that Rossons termination of the subcontract based on Clays alleged failure to pay wages was unjustified.
Rosson and the other defendants, B&K Development and American Contractors Indemnity Company, appeal the judgment. They contend Rosson was justified in terminating the subcontract based on Clays breach of a contractual provision requiring compliance with the Labor Code. The defendants contend the court erred by excluding evidence and refusing to consider argument concerning Clays purported Labor Code violations relating to payment of wages. The defendants do not challenge the findings that Clay completed 90 percent of the work and that Rosson paid less than 90 percent of the subcontract price, nor do they challenge the measure of damages.
The defendants have not shown that a justified termination would relieve them of liability for work performed before the termination or that Clays recovery in those circumstances would be less than the damages awarded by the trial court. Nor do they explain the significance of section 7.2.1 of the subcontract, which provides that if the general contractor terminates the subcontract for cause and with notice the subcontractor is entitled to the unpaid balance of the subcontract price less the cost to complete the work. Since the defendants have not shown that their liability would be less if the trial court had determined that Rosson properly terminated the subcontract, they have not shown prejudice resulting from the exclusion of evidence and purported refusal to consider argument on that issue.
An appealed judgment is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal. Rptr. 65, 468 P.2d 193.) An appellant has the burden to show not only that the trial court erred but also that the error is prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal. Rptr. 528, 728 P.2d 1163; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) The defendants have not shown prejudicial error.
DISPOSITION
The judgment is affirmed. Clay is entitled to costs on appeal.
We concur: CROSKEY, Acting P.J. and ALDRICH, J.