Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV 446665.
This is an appeal from a judgment after a jury found appellant Hyun Koo Kim liable for breach of contract, breach of implied warranty and negligence. We affirm.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Jenna Lim is the owner of residential property in San Mateo County (the property). In late December 2004, respondent hired appellant as general contractor for a large remodeling project on the house on her property. The parties thereafter signed a contract providing for total payment of $107,000 to appellant for his work. Pursuant to their agreement, respondent paid appellant $25,000 up front, and arranged to distribute the remaining amount to him in partial payments as the remodeling project progressed and passed various building inspections.
On March 24, 2005, respondent terminated appellant’s employment as general contractor, claiming he had performed defective and substandard work in remodeling her house. Appellant, in turn, filed for a mechanic’s lien against respondent’s property in the amount of $45,724.31, claiming that respondent had failed to pay him the full amount due under their contract.
Respondent thereafter filed a complaint against appellant for breach of contract, breach of implied warranty and negligence, seeking damages in excess of $220,000. Appellant responded by filing a cross-complaint against respondent for breach of contract, foreclosure of a mechanic’s lien, and quantum meruit.
The case proceeded to a jury trial on February 28, 2006. Several witnesses appeared, including the general contractor, plumber and electrician who respondent hired to finish the remodeling project after terminating appellant’s employment. These witnesses testified that appellant had performed defective and substandard work in remodeling, among other things, the plumbing, lighting, framing, and wiring in respondent’s house. In particular, the witnesses testified that the work appellant performed violated various building codes and created safety risks.
On March 3, 2006, the jury returned a verdict in respondent’s favor on each of her claims. A bench trial followed, at which the trial court found in respondent’s favor on each of appellant’s equitable claims. Respondent was thus awarded $103,505.72, an amount which included both damages and attorney fees. This appeal followed.
DISCUSSION
Appellant’s sole contention on appeal is that the trial court erred in overruling his objections at trial to certain expert opinion testimony. The challenged testimony was offered by Steve Furner, the general contractor respondent hired to complete the remodel after appellant’s employment was terminated who respondent called to testify as an expert witness regarding the standards, customs and practices applicable to residential remodeling in San Mateo County. Specifically, appellant contends the following statements made by Furner during direct examination were admitted without proper foundation:
“[Respondent’s attorney]: Would it be fair to say that in your observations of working on the home at 145 Ridgeway, that not all of [appellant’s] work was defective?
“[Mr. Furner]: Yes.
“[Appellant’s attorney]: I’m sorry Your Honor. Lacks foundation.
“[The Court]: Overruled.
“[Respondent’s attorney]: Is it also fair to say that you in fact corrected all of [appellant’s] defective work that in your opinion had to be corrected and that fell within the scope of your employment with [respondent]?
“[Appellant’s attorney]: Objection, Your Honor. Lacks foundation.
“[The Court]: Overruled. You can answer that.
“[Mr. Furner]: Yes.
“[Respondent’s attorney]: In addition to correcting [appellant’s] defective work, did you also complete certain portions of the remaining remodeling work?
“[Mr. Furner]: Yes.
“[Appellant’s attorney]: Objection, Your Honor. Lacks foundation.
“[The Court]: Overruled.”
Appellant claims these statements lacked foundation because respondent failed to make a preliminary showing “that Mr. Furner could have recognized or identify [sic] [appellant’s] work. Without knowing which works that had been done prior to Mr. Furner’s arrival belonged to [appellant’s] works, Mr. Furner could not and should not have answered the question.” For reasons set forth below, we reject appellant’s contention.
On appeal, we review a trial court’s admission of evidence for abuse of discretion. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2004) 116 Cal.App.4th 1253,1276.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Id. at p. 1279.)
Further, in reviewing evidentiary rulings, we do not reweigh the evidence, and we give respondent, as the prevailing party, the benefit of all reasonable inferences drawn from such evidence. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 116 Cal.App.4th at pp. 1257-1258; Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544, disapproved on another point in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 581.) “ ‘When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ (Shamblin v. Brattain [(1988)] 44 Cal.3d 474, 478-479; Korsak [v. Atlas Hotels, Inc. (1992)] 2 Cal.App.4th [1516,] 1523.)” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 116 Cal.App.4th at p. 1279.)
With respect to the admissibility of an expert’s opinion testimony, the relevant rules are as follows. “Expert opinion testimony is limited to such opinions as are related to subjects so beyond common experience that the opinion of an expert would assist the trier of fact, and are based upon matter perceived by or personally known to the expert of a type reasonably relied upon by experts in formulating an opinion on such subject ‘unless an expert is precluded by law from using such matter as a basis for his opinion.’ (Evid. Code, § 801.)” (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1277.)
Evidence Code section 801 provides in full:
Consistent with these general rules, expert opinion testimony may be based upon information furnished to the expert by others so long as the information is of a type reasonably relied upon by professionals in the relevant field. (Korsak, supra, 2 Cal.App.4th at p. 1524.) Moreover, “hearsay information of a type reasonably relied upon by professionals in the field in forming an opinion on the subject may be used to support an expert opinion, even though not admissible in court.” (Korsak, supra, at p. 1524; see also Board of Trustees v. Porini (1968) 263 Cal.App.2d 784, 792 [expert witnesses are “permitted certain latitude with reference to the use of hearsay”].)
Expert opinion testimony may not be based, however, upon information furnished by others that is speculative, conjectural or otherwise unreliable. (People v. Dodd (2005) 133 Cal.App.4th 1564, 1569.) Further, “[a]lthough experts may properly rely on hearsay in forming their opinions, they may not relate the out-of-court statements of another as independent proof of the fact.” (Korsak, supra, 2 Cal.App.4th at pp. 1524-1525.)
With respect to rulings on foundational matters forming the basis of an expert’s opinion testimony, the trial court enjoys the same broad discretion it enjoys with other evidentiary rulings. As such, the trial court’s rulings are subject to reversal only if that broad discretion is abused. (Korsak, supra, 2 Cal.App.4th at pp. 1522-1523; City of San Diego v. Sobke (1998) 65 Cal.App.4th 379, 395; Evid. Code, § 803.)
Here, appellant challenges the trial court’s foundational rulings with respect to Furner’s expert opinion testimony. Specifically, appellant claims Furner should not have been permitted to offer opinions premised on the fact that appellant performed defective work on respondent’s house because Furner lacked personal knowledge of which work on respondent’s house appellant performed. In making such claim, appellant points to Furner’s admission that he did not personally observe appellant working on respondent’s house.
Even though Furner admittedly did not personally observe appellant at work, the record makes clear Furner relied upon information provided to him by respondent in rendering his opinions with respect to appellant’s work. In particular, respondent testified in detail based on her own personal observations about the defective and substandard work appellant performed on, among other things, the wiring, lighting and plumbing in her house. Further, respondent testified that before hiring Furner to take over appellant’s role as general contractor, she and Furner engaged in an extensive walk-though of the property, during which she showed Furner “in great detail” the defective and substandard work appellant had performed. Furner, in turn, testified without objection from appellant that the work respondent identified during the walk-through was, in his opinion, defective, and that he could distinguish between the work in her house that had been recently performed, and other work that had been performed in the past. Furner also testified, consistent with respondent’s testimony and without objection from appellant, that it was his understanding he was being hired in part to correct appellant’s defective work. In fact, Furner and the subcontractors he hired spent substantial amounts of time over the course of several weeks correcting appellant’s defective work.
Admittedly, respondent did not identify appellant to Furner by name. Respondent did, however, identify appellant to Furner as her former general contractor who had recently performed the defective and substandard work on her house which Furner was being hired, at least in part, to correct. This evidence permits the reasonable inference that Furner knew appellant’s identity, even though he did not know appellant’s name.
In addition, Furner testified regarding defective and substandard work he observed in dozens of photographs respondent had taken in her house. Again without challenge from appellant, respondent had already explained to the jury having taken the photographs soon after she terminated appellant’s employment to “document” problems with the work “completed and left by [appellant].”
Given this record, we conclude substantial evidence supported the trial court’s foundational rulings with respect to Furner’s expert opinion testimony. Specifically, the evidence set forth above proved that appellant performed defective work on respondent’s house, and that Furner was familiar with appellant’s defective work based on information provided to him by respondent.
Further, we conclude the information respondent furnished to Furner was reliable. Indeed, appellant makes no claim to the contrary. (Cf. Korsak, supra, 2 Cal.App.4th at p. 1524.) Instead, appellant suggests evidence existed that “someone other than [appellant] had worked at the jobsite after [appellant’s] dismissal but before Mr. Furner’s engagement,” and thus that someone other than appellant could have performed the defective work identified to Furner. In doing so, appellant points to respondent’s testimony that city inspectors posted a stop work notice on her property on March 10, 2005, and to Furner’s testimony that he did not see the notice when he first visited the property in late March or early April 2005. Appellant’s argument, however, ignores other evidence in the record that no one worked on the property between the time when the stop work notice was posted on March 10 soon after appellant’s termination and when Furner was engaged as general contractor in late March or early April. Specifically, respondent testified she recalled no work being performed on her house between March 10, 2005 and mid-April, when her new plans were approved and Furner began work. ~(1RT 155-157)~ It is not our role to reweigh the evidence. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 116 Cal.App.4th at p. 1279; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) As such, where substantial evidence supported the conclusion that appellant performed the defective work identified to Furner, we decline to draw another conclusion based on conflicting evidence. (Ibid.)
Moreover, to the extent appellant disagreed with the information respondent furnished Furner in forming his expert opinions, he had ample opportunity to challenge that information when cross-examining respondent and Furner. (Evid. Code, § 804; cf. Korsak, supra, 2 Cal.App.4th at pp. 1525-1526 [concluding information relied upon by an expert was unreliable where it came from unidentified persons who were not subject to cross-examination at trial].)
Evidence Code section 804 provides in full:
As such, viewing the evidence in a light most favorable to respondent, as the law requires, we conclude the trial court acted within its broad discretion in admitting into evidence Furner’s expert opinion testimony based upon information respondent furnished to him regarding appellant’s defective work. (Korsak, supra, 2 Cal.App.4th at p. 1523; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 116 Cal.App.4th at p. 1279.) Under the applicable law set forth above, the trial court properly concluded the information constituted a proper basis for Furner’s expert opinions. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618; Korsak, supra, at pp. 1524-1525 [experts have “considerable leeway as to the material on which they may rely”].) As has already been discussed, “determinations to be made [regarding whether an expert witness properly relied upon information in forming an opinion] are questions best left to the trial court to determine in the exercise of a sound discretion and in the light of evidence to be offered at . . . trial.” (Board of Trustees v. Porini, supra, 263 Cal.App.2d at pp. 794-795.)
And because we have determined no improper admission of testimony occurred, we need not determine whether such admission resulted in prejudice to appellant. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed. Appellant shall bear costs on appeal.
We concur: McGuiness, P. J., Siggins, J.
“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: “ (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and “ (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
1“(a) If a witness testifying as an expert testifies that his opinion is based in whole or in part upon the opinion or statement of another person, such other person may be called and examined by any adverse party as if under cross-examination concerning the opinion or statement. “(b) This section is not applicable if the person upon whose opinion or statement the expert witness has relied is (1) a party, (2) a person identified with a party within the meaning of subdivision (d) of Section 776, or (3) a witness who has testified in the action concerning the subject matter of the opinion or statement upon which the expert witness has relied. “(c) Nothing in this section makes admissible an expert opinion that is inadmissible because it is based in whole or in part on the opinion or statement of another person. “(d) An expert opinion otherwise admissible is not made inadmissible by this section because it is based on the opinion or statement of a person who is unavailable for examination pursuant to this section.”