Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara Meiers, Judge, Los Angeles County Super. Ct. No. BC327038
Knickerbocker Law Corporation and Richard L. Knickerbocker for Defendants and Appellants.
Woollacott Jannol and Cynthia Woollacott for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellants Melissa and Scott Miller appeal the judgment entered following a bench trial in respondent M. F. Construction, Inc.'s action to recover $57,280 in labor and materials provided in connection with the remodel of appellants' home. The trial court entered judgment for respondent in the principal amount of $43,748, and awarded nothing to appellants on their cross-complaint. On appeal, appellants maintain that respondent failed to establish that it was licensed to perform the work on which it sought payment. Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Appellants are writers, directors and producers who work for their own company, Scott Miller Company. They acquired their home in Malibu in 1995, which thereafter became their principal place of employment as well. Appellants commenced work on a major addition and remodel of the residence (the "Project"), which by 2001 was in active construction pursuant to a building permit.
Although not licensed in architecture, engineering, or contracting, appellants were the owner-builders of the Project. That is to say, rather than hiring a general contractor to oversee construction of the Project, appellants contracted directly with numerous trades, including sheet metal, window, waterproofing, framing, plumbing, electrical, roofing, heating, brick masonry and landscaping.
One of the builders with whom appellants contracted was John Reynolds, who held a general contractors license. Appellants fired Mr. Reynolds in or around March 2004 for deficient work, including framing problems which impaired the progress of the Project. Appellants hired respondent to fix the deficiencies in Mr. Reynolds's work. To that end, on May 26, 2004, the parties entered into a contract, on a time and materials basis, which called for respondent to complete all work necessary to pass the framing inspection (the "Framing Contract"). Subsequently, the parties executed a second contract calling for the application of stucco to the exterior of the house for a fixed fee of $45,000 (the "Stucco Contract"). Respondent "subbed out" the stucco work to Wayne Petty, a contractor who had been licensed in that specialty for 27 years.
The framing and stucco work proceeded over the next several months, and on November 1, 2004, respondent obtained framing inspection approval from the city, completing its performance of the Framing Contract. The same day that the framing was approved, appellants asked respondent to leave the job site, thereby terminating the Stucco Contract. Respondent complied with the request. Appellants failed to pay respondent the remaining invoices issued under the Framing Contract.
As of November 1, 2004, when appellants terminated the Stucco Contract, the stucco scaffolding was up and the house was "wrapped" with paper and wire mesh ready for stucco application; the stucco scope of work was about 40-50 percent complete. The next day, appellants signed a contract with Mehrdad Sahafi, a licensed general contractor with respect to the stucco work and additional work unrelated to respondent's performance under the Framing Contract. Mr. Sahafi hired respondent's stucco sub, Mr. Petty, to complete the stucco work.
Respondent sought damages for the unpaid invoices rendered under the Framing Contract as well as approximately half of the contract price called for under the terminated Stucco Contract. Appellant argued that respondent was not entitled to compensation for either the framing or the stucco work for two distinct reasons: (1) the contracts did not comport with the requirements of Business and Professions Code section 7159, and (2) respondent was not properly licensed to enter into either contract.
A bench trial was held over four days in August of 2006. After issuing a tentative judgment and considering objections thereto, the trial court ordered judgment for respondent and against appellants in the amount of $43,754 plus interest and costs. The trial court was not asked to, and did not, issue a statement of decision. Appellants timely filed a notice of appeal.
CONTENTIONS
Appellants maintain that the trial court erred in entering judgment for respondent, and that they are entitled to judgment as a matter of law, on three discrete grounds: (1) respondent did not hold a license which permitted it to sue for compensation under the Framing Contract and the Stucco Contract; (2) neither of these two contracts met the formal requirements of a home improvement contract, and are therefore unenforceable; and (3) there is insufficient evidence "to support recovery of damages or to controvert the Millers' evidence and expert testimony." We address each contention below.
DISCUSSION
1. Respondent was licensed for the work performed under the two contracts
Appellants maintain that respondent did not possess the appropriate license for the construction work for which it is seeking compensation, and thus cannot sue to recover damages under its illegal contracts. We note, however, that although appellants purport to dispute the factual issue of respondent's licensed status, this is in actuality a legal issue. Appellants have never disputed the fact that respondent holds a valid general contractors license, or the fact that Wayne Petty holds a valid specialty license (lath and plaster) which permits him to perform stucco work. For this reason, any suggestion that respondent was required to produce Verified Certificates of Licensure from the Contractors' State License Board lacks merit, since those certificates would not address or resolve appellants' challenge to respondent's right to be compensated under the contracts at issue. Rather, appellants argument that respondent is not properly licensed is based on the limitations imposed on general contractors under Business and Professions Code section 7057.
Further statutory references are to this code.
Section 7057, the licensing statute at issue in this case, provides as follows: "(a) Except as provided in this section, a general building contractor is a contractor whose principal contracting business is in connection with any structure built, being built, or to be built, for the support, shelter, and enclosure of persons, animals, chattels, or movable property of any kind, requiring in its construction the use of at least two unrelated building trades or crafts, or to do or superintend the whole or any part thereof. . . .
"(b) A general building contractor may take a prime contract or a subcontract for a framing or carpentry project. However, a general building contractor shall not take a prime contract for any project involving trades other than framing or carpentry unless the prime contract requires at least two unrelated building trades or crafts other than framing or carpentry, or unless the general building contractor holds the appropriate license classification or subcontracts with an appropriately licensed contractor to perform the work. A general building contractor shall not take a subcontract involving trades other than framing or carpentry, unless the subcontract requires at least two unrelated trades or crafts other than framing or carpentry, or unless the general building contractor holds the appropriate license classification. The general building contractor may not count framing or carpentry in calculating the two unrelated trades necessary in order for the general building contractor to be able to take a prime contract or subcontract for a project involving other trades."
Appellants argue: "As a matter of law, based on undisputed facts, respondent was not entitled to any compensation for any framing or stucco work, which is the only work for which it claimed a right to compensation."
a. Framing contract
Section 7057, subdivision (b) specifically states that "A general building contractor may take a prime contract or a subcontract for a framing or carpentry project." While appellants state that respondent cannot recover under the framing contract, they do not explain why this is so. The contention must therefore be rejected.
b. Stucco contract
Applying the requirements of the foregoing section 7057 to the facts of this case, respondent was licensed to perform the stucco work if (1) its contract with appellants called for its performance of two or more unrelated building trades other than framing or carpentry or (2) respondent held a lath and plaster license or (3) respondent subcontracted the stucco work to a contractor who held a lath and plaster license. Respondent maintains that he satisfied the requirements of section 7057 by subcontracting the stucco work to Wayne Petty. As noted above, there is no dispute regarding Mr. Petty's status as a contractor licensed to perform stucco work.
Appellants argue that respondent did not satisfy the requirements of section 7057, because respondent did not subcontract the stucco work to Mr. Petty. Appellants claim that, while Mr. Petty's usual workers performed the stucco work, they did so as employees of respondent, not of Mr. Petty, and therefore not under Mr. Petty's contractor's license. However, respondent's position at trial was that he engaged Mr. Petty to perform the stucco work, and appellants presented no evidence (such as Mr. Petty's testimony) to contradict that evidence. The trial court impliedly found that the stucco work was subcontracted to Mr. Petty, and substantial evidence supports that finding.
2. The contracts' failure to conform to the formal requirements of section 7159 did not render them unenforceable
Section 7159 "identifies the projects for which a home improvement contract is required, outlines the contract requirements, and lists the items that shall be included in the contract, or may be provided as an attachment." (§ 7159, subd. (a)(1).) For example, such a contract must be in writing, must contain a specifically worded "Mechanics Lien Warning," and a copy must be delivered to the homeowner. Appellants maintain, and respondent concedes, that neither the Framing Contract nor the Stucco Contract met the formal requirements of section 7159.
The parties disagree, however, as to the consequence of this failure. The statute itself states that "Failure by the licensee, his or her agent or salesperson, or by a person subject to be licensed under this chapter, to provide the specified information, notices, and disclosures in the contract, or to otherwise fail to comply with any provision of this section, is cause for discipline." (§ 7159, subd. (a)(5).) Unlike section 7031, which prohibits an unlicensed contractor from suing, section 7159 does not proscribe respondent's lawsuit for failure to follow the form and content mandates of a home improvement contract. Moreover, respondent argued below, and the trial court agreed, that Arya Group, Inc. v. Cher (2000) 77 Cal.App.4th 610 ("Arya"), permits respondent's recovery under the facts of this case.
On appeal, appellants do not argue otherwise, but contend that Arya "should have no current appeal in light of later decisions of the California Supreme Court and Court of Appeal in MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co., Inc. [(2005) 36 Cal.4th 412] and Wright v. Issak [(2007) 149 Cal.App.4th 1116]." Both of these cases concern section 7031's prohibition against an unlicensed contractor suing for payment for work completed on a home improvement project. As noted above, respondent was not unlicensed. Consequently, appellants' argument lacks merit.
3. Substantial evidence supports the judgment
Finally, appellants challenge the sufficiency of the evidence to support the judgment. Their entire argument follows: "The evidence of the Millers, concerning the failure to conform to reasonable building standards of the community, have not been rebutted. The issues involved are not simple ones that a layman could understand, and the standards of practice in a particular community is important to the resolution of this case. The Millers called two expert witnesses, one percipient and the other retained, and the experts have been qualified and have testified as to flagrant standards of practice violations. [Respondent] has offered no expert opinion in reply. The trial court did not weigh the evidence because Respondent presented no competent believable evidence to weigh. Where Appellants' expert witness's testimony in such important areas is left unresponded to, and Respondent offers no expert testimony [] as to the standard of practice[,] Respondent has a total failure of proof." Appellants are wrong on both the facts and the law.
"As a general rule, '[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted.' This rule is applied equally to expert witnesses." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890, citation omitted.)
A number of licensed contractors testified at trial: Marc Futterman (general contractor); William Shaw (general contractor); David Des Baillets (plumbing); Farzin Rahbar (engineering); and Mehrdad Sahafi (general contractor). Appellants provide no citation to the record to support their assertion that any expert testified to a standard of care. Indeed, a review of the reporter's transcript makes clear that the quality of respondent's work was hotly contested, with the trial court asking pointed questions of both sides' experts during the exhibition of a videotape. The assertion that appellants' expert witness's testimony was "unresponded to" is simply not true.
In short, the trial court impliedly found that respondent adequately performed its work on the Project, and substantial evidence supports that finding.
DISPOSITION
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.