Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C0400618
Siggins, J.
Frank Hamedi-Fard was sued by Ravinder Padda who hired Hamedi-Fard to remove and replace underground storage tanks on her Antioch property. Hamedi-Fard appeals from a judgment following a court trial that found him liable to Padda for damages for breach of contract and negligence. Hamedi-Fard argues: (1) the court erred when it denied his motion for a directed verdict because there was no expert testimony to support Padda’s negligence claim; (2) his performance under the contract was excused by impossibility; and (3) the court failed to properly offset against the damages awarded to Padda the value of the work Hamedi-Fard did complete. We conclude the judgment must be modified to subtract from Padda’s total damages the cost of repaving the property following removal of the storage tanks. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Ravinder Padda has owned an Antioch gas station and convenience store since 1986. Her son Romi has managed the business since the mid-1990’s and testified for the plaintiff at trial.
Romi Padda testified as the agent of his mother who speaks little English. Hereafter, we refer to them jointly as Padda unless otherwise specified.
Padda first hired Hamedi-Fard in the mid-1990’s to remediate some underground leakage from the storage tanks and repeatedly retained him thereafter over the next several years. Padda testified: “If I had any questions or, you know, ‘Frank, this is—the state wants this, what do I do?’ I always went to Frank. I believed in him.” In 1999, Padda learned that a change in state law required that older underground fuel storage tanks be replaced. Since Padda could not afford to replace the tanks at that time she stopped selling gas, but she continued to operate the convenience store.
In early 2002, Padda told Hamedi-Fard that they wanted to replace the fuel tanks but could not afford to pay the entire cost in advance. Hamedi-Fard prepared a contract which Padda signed in March 2002 that called for removal and replacement of the old tanks with a new tank. Padda agreed to pay Hamedi-Fard a total of $130,000 to replace the tanks, including $70,000 by the time the project was started, with the remainder on a monthly payment plan. Hamedi-Fard agreed to obtain “all necessary permits” to remove the old tanks and to install the new one and estimated the job would take 8 to 10 weeks to complete. The contract also included an attorney fees clause.
At about the same time, Padda was required by the district attorney to show that she had contracted to remove the old tank and remediate the site in order to avoid the imposition of fines of $500 per day. Padda provided the district attorney by facsimile a copy of the signed contract between her and Hamedi-Fard and no fines were imposed.
Padda paid Hamedi-Fard $70,000 and Hamedi-Fard began removing the old tanks in January 2003. Donald Griebling, the chief building official with the City of Antioch visited the site and the foreman told Griebling he was only removing the old tanks and repaving the lot, and that no new tank would be installed. Griebling told the foreman that installation of a new tank would require a building permit issued by the city. Approximately a month later, Griebling revisited the site and noticed the tank removal was going very slowly. When Griebling visited the site a third time, he saw that Hamedi-Fard’s crew was installing a new tank. Griebling issued a stop work notice and told the foreman that he would need to obtain a building permit before proceeding any further.
Hamedi-Fard told Padda that the need to obtain the permit was “no big deal” and that Padda should apply for the permit, which would take “five to ten days.” Hamedi-Fard instructed Padda to contact the city “because [Padda was] right down the street,” and Hamedi-Fard was in San Jose.
Obtaining the requisite building permit turned out to be significantly more complicated than Hamedi-Fard had advised Padda it would be. To obtain an Antioch building permit, an applicant is required to comply “not only with the structural requirements of the California Building Code, but with other pertinent laws and ordinances of the city or any other governmental body having jurisdiction within the city.” (Antioch City Ord., § 8-1.03.) Under another City of Antioch ordinance Padda was required to obtain a new use permit in order to reopen the gas station. It provides: “If a once operating service station remains closed for a period of 180 consecutive days, the use permit therefor shall expire and be null and void, and any subsequent use of the land for a service station shall be subject to the issuance of a new use permit . . . .” (Antioch City Ord., § 9-5.3815(A)(2).)
Padda had not operated the gas station since 1999, and in 2003 it was considered to be a new non-conforming use because its physical characteristics did not meet all the requirements for a service station under Antioch ordinances. After approximately a year of proceedings, Padda was denied the use permit and denied a variance that would have allowed her to reopen the gas station without one. When Padda appeared before the planning commissioners to obtain the use permit or variance, they were “very upset” that Hamedi-Fard had started construction without obtaining a building permit.
Shortly after the city council denied Padda’s appeal of the planning commission decision, Padda’s counsel wrote Hamedi-Fard seeking rescission of the contract due to the city’s denial of a new use permit. Padda sought return of the $70,000 paid before work began under the contract, together with the costs of applying for the use permit and legal fees of $8,000. Padda also asked Hamedi-Fard to remove the new tank that was installed without a building permit. Padda testified that Hamedi-Fard did not respond to his letter or subsequent phone calls. Padda also testified that he paid $11,425 to have another contractor remove the new tank and $2,500 to have the area repaved.
Padda filed suit against Hamedi-Fard for breach of contract, fraud, and negligence. After a court trial, Hamedi-Fard’s motion for a directed verdict on the fraud and negligence causes of action was denied and he was found liable for breach of contract and negligence.
The court concluded “[Hamedi-Fard] breached the contract and was negligent by failing to obtain the necessary permits prior to construction. [Hamedi-Fard] knew or should have known that the use permit was lost since the gas pumps had not been in use since 1999. Furthermore, had [Hamedi-Fard] applied for the construction permit prior to commencing the installation, he would have discovered that such a permit could not issue unless and until a new use permit was obtained. If [Hamedi-Fard] had applied for a construction permit prior to commencing the work, [Padda’s] damages would have been avoided.”
The court awarded damages to Padda, consisting of $70,000 for her contract payments to Hamedi-Fard; $3,996 for the costs incurred in the application for the use permit; $11,425 for the cost of removing the new tank; and $2,500 for the cost of repaving the parking lot. The court offset against those damages the amounts of $5,500 for the cost of removing the old tank and $800 for the scrap value of the new tank, resulting in a net total damage award of $81,621. The court subsequently granted Padda’s unopposed motion for attorney fees and awarded fees of $70,910 and costs of $2,901.42. Hamedi-Fard timely appealed from the ensuing judgment.
The court concluded Padda submitted insufficient evidence to support her claim for lost profits.
DISCUSSION
A. Motion for Directed Verdict
Hamedi-Fard argues that the court wrongfully denied his motion for a directed verdict because Padda failed to present expert testimony regarding the applicable standard of care for engineers/contractors removing and installing fuel tanks. Hamedi-Fard’s argument fails for two reasons. First of all, there was expert evidence on this point. Hamedi-Fard’s own expert testified that he should first have obtained a building permit, as required by the contract, before undertaking construction. It could have been error to deny the directed verdict motion only if there was no substantial evidence in support of the verdict. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629.) There was substantial evidence from Hamedi-Fard’s own expert. Moreover, the negligence cause of action asserted general negligence on the part of Hamedi-Fard for undertaking construction without notifying government agencies or seeking government approvals as he was required to do under the contract. The significance of Hamedi-Fard’s non-compliance with the contract and his failure to seek government approval for the project before commencing work is hardly so specialized that we would conclude it was beyond the common man to decipher. “Although courts have not always used the same language, the decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (People v. Cole (1956) 47 Cal.2d 99, 103.) Here, it did not take an expert to conclude that Hamedi-Fard’s failure to notify government agencies of the work or seek their approval before commencing construction was a breach of duty.
At oral argument Hamedi-Fard argued that his expert witness testified that it was an accepted practice for a contractor to commence work and thereafter obtain a building permit. This argument is unpersuasive for two reasons. The contract does not limit Hamedi-Fard’s responsibility to require him to obtain only building permits and he did more than commence work without a permit. The old tank was removed and the new one in the ground before the stop work notice was issued.
B. Liability for Breach of Contract
Hamedi-Fard argues it was error for the court to conclude he breached the contract because performance was impossible due to Padda’s failure to maintain the use permit. Generally, “there is no liability for breach of a contract whose performance has been made impossible by operation of law.” (Baird v. Wendt Enterprises, Inc. (1967) 248 Cal.App.2d 52.) Hamedi-Fard relies on Baird where the court denied damages to both parties to a lease when they extended the close of escrow “with knowledge, if not appreciation, of the resulting risks to performance of the contract on its original terms.” “[E]ach party apparently preferred to gamble that the other would be held legally responsible for the expiration of the building permit and the consequent inability to construct the apartment-hotel under proposed plans and specifications by reason of the new building code.” (Id. at pp. 54-55.) This case is materially different. Hamedi-Fard commenced the construction work before ever seeking a permit. Moreover, Hamedi-Fard’s installation of the new tank without approval was cited as a factor that influenced denial of the variance. Padda argues that it was permissible to rescind the contract in these circumstances once performance became impossible. (See Riff v. Mayhew (1949) 90 Cal.App.2d 712, 717 [upholding rescission concluding “it would be contrary to both law and equity to permit defendants to retain the $25,000 deposited in escrow by the plaintiff” who was unable to obtain a liquor license].)
Hamedi-Fard’s expert testified that it is the business owner’s responsibility to maintain a use permit, and that the provision of the contract that requires the contractor to obtain “all necessary permits” includes only permits for removal and installation of the storage tanks, not a use permit. But the trial court found that due to the parties’ ongoing business relationship, Hamedi-Fard knew or should have known that the use permit expired because the old fuel tanks had not been used since 1999. The finding was based on evidence of Hamedi-Fard’s personal experience and knowledge of Padda’s business, not on the general standard of care attributable to a professional engineer/contractor. The expert also acknowledged that a station owner could be injured if he “has paid the money but he has not got a gas station.” The court did not err in finding Hamedi-Fard liable for breach of contract.
C. Damages Awarded to Padda
Hamedi-Fard makes several challenges to the computation of damages awarded to Padda. He argues the court did not offset against the award any amount for work he performed to remove the old storage tank, and that, in fact, the court erroneously awarded damages to Padda for this work. He also says that damages should have been offset by $70,000 (an amount equal to what Padda paid him before construction began) because the $70,000 was paid in order to secure Hamedi-Fard’s services and avoid fines by the district attorney. Finally, he argues that no damages should have been awarded for costs Padda incurred in his unsuccessful effort to obtain a variance or use permit, or to backfill and repave the construction site. We agree that the judgment should not include any reimbursement to Padda for amounts he incurred to backfill and repave the site. Otherwise, we affirm the award.
Contrary to what Hamedi-Fard says, the court did offset against the damage award an amount to compensate Hamedi-Fard for his work to remove the old storage tank. The statement of decision shows an offset of $5,500 for the cost of removing the old tank, as well as an additional offset of $800 for the scrap value of the new tank that was removed by a subsequent contractor. Hamedi-Fard does not challenge the accuracy of those figures. Moreover, the judgment does not include any award to Padda for removal of the old tank. Hamedi-Fard seeks to take advantage of a clerical error in the amended statement of decision that incorrectly states $11,425 was awarded as the “cost to remove old tank” instead of the “cost to remove new tank.” Padda testified that he paid $11,425 to remove the new tank that Hamedi-Fard installed without a building permit and a copy of the contract for that work was admitted into evidence. Hamedi-Fard does not challenge the amount Padda paid to remove the new tank. The amount Padda so expended corresponds exactly to the mistaken label on the damages award in the amended statement of decision. We will not modify the judgment to reduce this item of damages. It was properly awarded.
In a footnote in his opening brief, Hamedi-Fard summarily asserts that “the lower court generates the damage figures from a misreading of testimony, and according weight to documents that [the court] did not receive as evidence,” but he does not further explain this contention or cite to the record to support it.
Hamedi-Fard’s third challenge to damages is that the award should be reduced by $70,000 because that amount secured his services and retention of a contractor ensured that Padda would not incur fines for unabated underground storage tanks. Our initial observation is that $70,000 seems an unreasonably large sum for such consideration. But more importantly, the contract was for the removal and installation of underground storage tanks. Nothing in the contract or the evidence reflects that consideration passed between the parties in order to secure Hamedi-Fard’s services or to avoid a governmental penalty. Hamedi-Fard was allowed an offset for the value of removal of the old storage tank and there is no basis to conclude he was entitled to an additional offset of $70,000.
We also see no error in the court’s award to Padda of the costs he incurred attempting to secure a use permit or a variance. Hamedi-Fard says any award of these costs was improper because they were incurred when the use permit lapsed as a result of Padda’s decision to stop selling gasoline, and not as a result of Hamedi-Fard’s performance under the contract. But his argument misses the point. Padda was forced to seek the use permit when the stop notice issued after the new storage tank was already in the ground. Had Hamedi-Fard proceeded to seek a permit before commencing work, it is entirely possible these expenses could have been avoided. Padda could have considered whether to pursue the application as far as seeking the variance, and would not have been tainted in the process by Hamedi-Fard’s efforts to complete work without a permit. There was sufficient evidence that Hamedi-Fard’s conduct was a substantial factor in bringing about Padda’s expenditure of $3,996 to obtain a new use permit or variance, and the court properly awarded these costs as an element of Padda’s recovery.
Padda testified that during the hearing on his application for a variance, the planning commissioners were “very upset” about Hamedi-Fard’s failure to obtain a building permit before installing the new tank. Hamedi-Fard argues that his failure to obtain a building permit before installing the new tank was not listed as a reason for denial of the variance, but does not otherwise refute Padda’s testimony.
However, the amounts awarded to compensate Padda for the costs he incurred to repave the parking lot are another matter. Hamedi-Fard argues that the repaving was unavoidable because Padda was required by state law to remove the old tank. For this reason, the repaving expenses were inevitable and not the result of any breach of the parties’ contract. Padda makes no contrary argument. We agree that Hamedi-Fard should not have been held liable for the costs of backfilling and repaving, because they would have been incurred in any event to restore the site once the old tank was removed. The judgment must therefore be amended to reduce Padda’s damages by $2,500, the amount specified as the cost of repaving.
Because we conclude substantial evidence supports the court’s imposition of damages for breach of contract, we do not address the parties’ additional arguments regarding whether Hamedi-Fard’s failure to obtain a building permit before starting construction also constituted negligence per se.
DISPOSITION
The judgment is modified to reduce the damages awarded to Padda by $2,500, the cost of repaving the property. As modified, the judgment is affirmed. Each party is to bear its own costs on appeal.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.