Opinion
B227017
11-21-2011
MEIR UDI, Plaintiff and Appellant, v. MORDECHY ROZENBAUM, Defendant and Respondent.
Law Offices of Mark E. Goodfriend, Mark E. Goodfriend for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC369966)
APPEAL from a judgment and order of the Superior Court of Los Angeles County. Joseph R. Kalin, Judge. Affirmed.
Law Offices of Mark E. Goodfriend, Mark E. Goodfriend for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Following a bench trial, the trial court dismissed the plaintiff's action, finding that plaintiff could not recover for yard work he performed because he failed to provide defendant with a "three-day right to cancel" notice required for home solicitation contracts (Civ. Code, § 1689.7). We find that although a plaintiff may be able to recover on quantum meruit even if there is a failure to provide the required notice, whether quantum meruit is appropriate is a decision for the trier of fact to make. Given the inadequate record provided on appeal, we are unable to find that the trial court erred in denying quantum meruit relief.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and appellant Meir Udi is a landscape contractor. In June 2006, he entered into a written contract with defendant Mordechy Rozenbaum, pursuant to which Udi was to grade and lay sod in Rozenbaum's yard and install a sprinkler system, among other tasks. The parties entered into a further contract for more yard work in September 2006. The payments called for in the contracts totaled $24,650.
After Udi completed a portion of the requested work, the parties got into a dispute regarding the quality and extent of the work and the payments owing. Rozenbaum made a claim to Udi's bonding company, contending that Udi's work was shoddy and incomplete. The bonding company paid Rozenbaum $8,950, an amount for which Udi became liable to the bonding company.
In April 2007, Udi brought suit against Rozenbaum for the unpaid balance on the yard work contracts, and other claims. Udi's second amended complaint, filed in December 2008, included claims for breach of contract and quantum meruit.
A two-day court trial was conducted on October 27 and 28, 2009. Following the trial the matter was taken under submission. Thereafter, the trial court issued a ruling on December 8, 2009, stating in pertinent part: "The original contract price was $20,000 with an increase agreement of $4650 for extra work. As work progressed defendant paid to plaintiff $10,500.00 towards the contract price. Plaintiff performed a substantial amount of the contract work and asked defendant for additional money he believed due as a progress payment. According to plaintiff the defendant refused to make additional payments although he promised said payments. [¶] . . . [¶] Defendant brought a claim against plaintiff's contractor's bond, and the bonding company paid defendant $8950. Plaintiffs contractor's license has been suspended until this amount is paid to his bonding company. . . . [¶] The decision in this case rests on the credibility of the witnesses. . . . [¶] . . . [¶] Plaintiff is entitled to payment under the contract for the work that he performed. Defendant had paid $10,500 and received $8950 from plaintiff's bonding company, for which plaintiff is liable to his bonding company. Thus, plaintiff only would have been able to receive $1550.00 for the work he performed. [¶] Plaintiff is entitled to judgment against defendant in the amount of $20,000 . . . ." Plaintiff's counsel was ordered to prepare a judgment for the court's signature.
Udi lodged a proposed judgment to which Rozenbaum objected. Then, Rozenbaum filed a "notice of cancellation" and motion to cancel the landscaping contracts. He contended that the contracts were home solicitation contracts within the meaning of Civil Code section 1689.5 et seq. Since the contracts did not contain the mandatory "three-day right to cancel" notice required with home solicitation contracts (Civ. Code, §1689.7), the contracts were ineffective.
The trial court held a hearing on the motion to cancel. On June 1, 2010, it issued a ruling noting that judgment had not yet been entered, and finding that Rozenbaum's notice of cancellation was effective. Its order stated that "equitable arguments" of "laches, estoppel, quantum meruit, and unjust enrichment" were "overridden by the statutory scheme which provides for specific compliance intended by the legislature for the protection of the consumer. To find against the consumer would erode those protections." The trial court granted a "non-suit" and ordered the case dismissed.
Udi thereafter brought a motion for a new trial and to vacate the order of dismissal. He argued that despite the notice of cancellation, the trial court should have awarded him $20,000 for the work performed pursuant to his quantum meruit cause of action. The record indicates that this motion was heard on July 30, 2010. The docket states that the motion was denied, but there is no other record of the hearing, including a transcript or order.
DISCUSSION
Udi requests that we order the trial court to reinstate the award of $20,000 in his favor. We are unable to do so. While a failure to provide a three-day cancellation notice does not necessarily preclude recovery in quantum meruit, the determination of whether such recovery should be awarded is a decision for the trier of fact to make. Given the limited record that has been presented on appeal, we cannot find that the trial court erred by denying recovery.
Udi filed an opening brief only. Rozenbaum did not file a respondent's brief.
In his appeal, Udi does not take issue with the unorthodox procedural occurrences in this case. We note that the trial court's June 1, 2010 order misapplied the label "nonsuit." Following Rozenbaum's notice of cancellation, the trial court essentially reopened the trial to allow in evidence of the cancellation of the contracts, and then ruled in Rozenbaum's favor. This ruling would be more appropriately characterized as the granting of a motion for judgment pursuant to Code of Civil Procedure section 631.8. (See Greening v. General Air-Conditioning Corp. (1965) 233 Cal.App.2d 545, 550 [trial court weighs the evidence on a motion for judgment].) In any event, in a bench trial, the court has broad discretion to reopen a matter and diverge from the usual procedural route to reach a just result. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611-1612.) Thus, the unusual procedures employed here do not mandate reversal, particularly given the lack of any objection.
Udi does not contest the applicability of the home solicitation contract statutes (Civ. Code, § 1689.5 et seq.) to the contracts at issue in this case. A "home solicitation contract" means "any contract, whether single or multiple . . . for the sale, lease, or rental of goods or services or both, made at other than appropriate trade premises in an amount of twenty-five dollars ($25) or more, including any interest or service charges." (Civ. Code, § 1689.5, subd. (a).) "Services" means "work, labor and services, including, but not limited to, services furnished in connection with the repair, restoration, alteration, or improvement of residential premises. . . ." (Civ. Code, § 1689.5, subd. (d).) Udi also acknowledges that the contracts with Rozenbaum did not contain a right to cancel notice. "[I]n a home solicitation contract . . . the buyer's agreement . . . shall contain in immediate proximity to the space reserved for his or her signature, a conspicuous statement in a size equal to at least 10-point boldface type, as follows: 'You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.'" (Civ. Code, § 1689.7, subd. (a)(1).)
In its June 10, 2010 order dismissing the case, the trial court cited to the case of Weatherall Aluminum Products, Co. v. Scott (1977) 71 Cal.App.3d 245 (Weatherall). In Weatherall, the defendants signed a contract agreeing to pay for the installation of an insulated wall system. The plaintiff installed the wall system, but the defendants were dissatisfied with the work and refused to pay. The plaintiff brought suit. (Id. at p. 247.) The defendants then sent notice of cancellation based on the absence of a buyer's right to cancel notification in the contract, and moved for summary judgment. (Ibid.) The trial court found, and the Court of Appeal agreed, that the contract was subject to the requirements of Civil Code section 1689.5 et seq., and since the contract had been cancelled, the defendants were not obliged to pay for installation of the wall system. (Id. at p. 248.) The Court of Appeal held: "If this result appears to deal harshly with merchants who have fully performed under their contracts, it seems clear to this court that the message which the Legislature has attempted to convey by enactment of section 1689.5 et seq. of the Civil Code is 'Caveat Vendor.' Merchants, put on notice by the statute, can easily and inexpensively protect themselves, however, by including a right to cancel provision and an accompanying notice of cancellation as a matter of course in all contracts signed outside their trade premises." (Weatherall, supra, 71 Cal.App.3d at p. 249.)
As pointed out by Udi on appeal, a subsequent case, Beley v. Municipal Court (1979) 100 Cal.App.3d 5 (Beley), held that the failure to provide the buyer's right to cancel notification does not necessarily result in forfeiture of equitable claims. The Court of Appeal in Beley found that the plaintiff could recover in quantum meruit for construction work done prior to cancellation, even though the plaintiff could not recover on the express building contract itself. (Id. at p. 8.) The court wrote, "Nothing in [Weatherall] precludes such equitable adjustment of the rights and duties of the parties." (Beley, supra, 100 Cal.App.3d at p. 9.)
Just because equitable relief is at times appropriate, however, does not mean that it should be awarded in all (or even most) situations. In Louis Luskin & Sons, Inc. v. Samovitz (1985) 166 Cal.App.3d 533, the Court of Appeal found that a claim for recovery in quantum meruit was properly denied. Distinguishing the "unusual facts" of Beley, the court explained, "Beley did not hold that as a general rule the seller can recover on quantum meruit even if he has proceeded in violation of the home solicitation statute. To the contrary, the court in Beley recognized such a rule would defeat the purposes of the statute, especially section 1689.11." (Louis Luskin & Sons, Inc. v. Samovitz, supra, 166 Cal.App.3d at pp. 537-538.)
Civil Code section 1689.11, subdivision (c), states, in pertinent part: "If the seller has performed any services pursuant to a home solicitation contract or offer prior to its cancellation, the seller is entitled to no compensation."
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Thus, the determination of whether quantum meruit relief is called for in spite of a deficient right to cancel notification entails a factual analysis involving the trial court's discretion. The record presented to this court is not adequate to show that the trial court erred by declining to award quantum meruit relief. No transcript of any of the oral proceedings (including the two-day trial, the June 1, 2010 hearing, or the hearing on the motion for new trial) was submitted.
It is the duty of the appellant to submit a record adequate to support the claim of error. (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1657; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563; Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660.) To the extent that the trial court's June 1, 2010 order dismissing the case was based on a finding that equitable relief can never be awarded when a contractor fails to provide notice of a buyer's right to cancel, such a finding was in error. But this error may have been invited—the record does not contain any opposition to Rozenbaum's motion to cancel the contracts, and so we do not know whether Udi argued for quantum meruit in opposing the motion. And, in any event, Udi's subsequent motion for new trial argued that the quantum meruit claim should have been granted, so the trial court had an opportunity to revisit the issue. We have neither a transcript of the hearing on the motion for new trial, nor any sort of pertinent order. The only indication that the motion was denied is the docket's notation that the motion was "denied." We do not know whether the trial court found that recovery in quantum meruit was unsupported by the evidence, or whether it denied the motion on some other ground.
In the absence of an adequate record we can only speculate as to the trial court's reasons for denial of quantum meruit relief, and the law does not allow us to reverse based on pure speculation. Although the facts of this case may have been sufficiently unusual to potentially support recovery in quantum meruit, this would have been a determination for the trier of fact to make. Since appellant has failed to provide a record demonstrating the trial court's error, we must affirm.
DISPOSITION
The judgment (order of dismissal) and order denying new trial are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.