Opinion
H024882.
10-28-2003
FARDIS SHAHRIVAR, Plaintiff and Appellant, v. JAMSHID AGHEVLI, Defendant and Respondent.
background
Plaintiff generally recites facts favorable to him and ignores the facts unfavorable to him. We summarize the facts supporting the judgment (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631), which are gleaned largely from the trial courts statement of decision.
Defendant was an architect and civil engineer whom plaintiff knew from family ties. Though he had once been a licensed general contractor, defendant was not, and plaintiff knew that defendant was not, a licensed contractor. The two signed a written, cost-based contract that was subject to oral revisions as the work progressed. Defendant began the work, but plaintiff ultimately became dissatisfied, terminated defendant, and hired another to finish the project. When plaintiff terminated defendant, there remained minor corrective work that defendant could have easily remedied.
The trial court concluded that plaintiff had failed to prove breach of contract, negligent performance, or damages. In particular, it found that "defendant performed his work under the agreement to the best of his skill and ability" and plaintiff simply terminated him leaving "wholly innocent and entirely innocuous" mistakes. It rejected plaintiffs theory that defendant was also responsible for rain damage to personal property given that plaintiff lived in the residence (as did defendant) and participated in the construction work yet took no steps to protect his belongings. And it rejected plaintiffs various damage claims as "never articulated," not "calculated," "speculative," "wholly unsupported," and, on the whole, not tied to corrective work ("complete disconnect"/"no reference to defendant"/"no one . . . could substantiate that any charges were, in fact, for corrective work").
discussion
Plaintiff contends that the judgment is based on three erroneous legal conclusions.
I
Plaintiff first complains about the trial courts conclusion that, because defendant was not a licensed general contractor, "there was no implied term in the contract . . . of workmanlike performance. As a result, whether or not [defendant] performed in a workmanlike manner was irrelevant . . . ."
We agree that the trial courts conclusion of law is erroneous.
Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done. A negligent failure to observe any of these conditions is a tort as well as a breach of the contract. The rule that imposes this duty is of universal application as to all persons who by contract undertake professional or other business engagements requiring the exercise of care, skill and knowledge. The obligation is implied by law and need not be stated in the agreement. (Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485.)
But we disagree that the conclusion caused plaintiff prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.)
First, plaintiff proffered no expert testimony on the "workmanlike" issue. Thus, the trial court did not erroneously exclude, strike, or simply not consider pivotal evidence because of the erroneous legal conclusion.
And second, despite the erroneous legal conclusion, the trial court made a finding on the "workmanlike" issue based on the evidence that was presented: it found that defendant had performed to the best of his skill and ability to a result where only trivial defects remained at termination. And, to the extent that those trivial defects would support a breach of contract or tort duty, it rejected plaintiffs remedial damage evidence.
II
Plaintiff second complains about the trial courts conclusion that defendant was not required to have a contractors license.
First, the trial court was correct. The Contractors State License Law does not apply to an owner of property who does the work himself or herself or through his or her employees working for wages, provided that the structure is not intended for sale. (Bus. & Prof. Code, § 7044, subd. (a).) Nor does it apply to a homeowner who is improving his or her principal place of residence, provided that certain conditions exist. (Bus. & Prof. Code, § 7044, subd. (c).) Here, plaintiff was free to hire unlicensed employees to improve his property under subdivision (a), and the trial court implicitly found from ambiguous facts (the contract and relationship) that defendant was plaintiffs employee.[] In any event, plaintiff was free to engage unlicensed persons in any capacity to improve his residence under subdivision (c).
And second, it makes absolutely no difference in this case whether defendant was required to possess a contractors license. Plaintiffs theory was predicated upon breach of a contract or tort duty rooted in unworkmanlike performance. But, as we mentioned above, defendants duty of workmanlike performance stemmed from the contract apart from whether his relationship to plaintiff was that of an independent contractor (licensed or not) or employee. (See also 17A Am.Jur.2d (1991) Contracts, § 627; see 27 Am.Jur.2d (1996) Employment Relationship, §§ 220-221.)
III
Plaintiff finally complains about a conclusion that he was not entitled to damages gounded upon that plaintiff should have given defendant an opportunity to correct the defects.
The short answer here is that the trial court never made such a conclusion. We add that plaintiffs record references do not support that the trial court made such a conclusion. The record references point to where the trial court mentioned that the defects existing at defendants termination were "correctable."
As part of this point, plaintiff seems to assume that the trial court denied recovery because he terminated defendant without giving defendant the opportunity to correct the defects. But this is not the case. As we mentioned, the trial court denied recovery, at least as to the correctable-defect issue, because it did not accept plaintiffs evidence on damages. (Oldenburg v. Sears ,Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted].)
In short, as to this third point, plaintiff simply fails to affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
disposition
The judgment is affirmed.
WE CONCUR: Elia, J., Bamattre-Manoukian, J. --------------- Notes: "The question of whether plaintiff was functioning as an unlicensed contractor or merely as an employee hired by defendants to supply material and act as an employee is essentially a question of fact. [Citation.] . . . [¶] `The determination of whether the status of an employee or that of an independent contractor exists is governed primarily by the right of control which rests in the employer, rather than by his actual exercise of control; and where no express agreement is shown as to the right of the claimed employer to control the mode and manner of doing the work, the existence or nonexistence of the right must be determined by reasonable inferences drawn from the circumstances shown, and is a question for the jury. [Citations.]" (Vaughn v. DeKreek (1969) 2 Cal.App.3d 671, 677; see also Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 983-984.) When the circumstances disclose a mixed relation of employment, the finding of the trial court based on substantial and competent evidence cannot be disturbed. (Dorsk v. Spivack (1951) 107 Cal.App.2d 206, 208.)