Opinion
A116246
9-4-2008
LARRY SWANSON, Plaintiff and Respondent, v. HANDELIN, INC., Defendant and Appellant.
Not to be Published
Disputes between subcontractor Larry Swanson, doing business as Swansons Painting (Swanson), and general contractor Handelin, Inc., doing business as Original Construction (Handelin), led to this action by Swanson against Handelin for breach of contract, quantum meruit recovery, and promissory estoppel. By special verdict, a jury awarded damages of $50,400. The court denied Handelin a motion for new trial premised on jury irregularity, misconduct, excessive damages, and insufficient evidence. (Code Civ. Proc., § 657, subds. 1-2, 5-6.) Handelin appeals, reiterating its motion arguments. We affirm the judgment.
All unstated section references are to the Code of Civil Procedure.
Handelins notice of appeal specifies both the judgment of September 29, and the order of November 20, 2006, denying the motion for new trial. The denial order is reviewable on appeal from the judgment but not itself appealable (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18-19); thus we must dismiss the purported appeal from the denial order (id. at p. 20).
The notice of appeal, filed November 30, is timely. A September 29 notice of entry of judgment started the 60-day appeal period, but Handelins new trial motion extended that time. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Cal. Rules of Court, rule 8.108(a).) The notice of motion was filed on October 16, a Monday, and was timely under a 15-day rule (§ 659, subd. 2) because the 15th day fell on a weekend (Estate of Drummond (2007) 149 Cal.App.4th 46, 50, fn. 1; Cal. Rules of Court, rule 8.60(a); §§ 12-12b).
BACKGROUND
The job was for interior and some exterior painting of a house being built by Handelin on Laidley Street in San Francisco. It was a "level five" job, meaning it had to be perfect or flawless, and Swanson had the experience and qualifications. Larry Swanson (Larry) bid the job after being assured that it would be properly "phased," with a "window" for the painters to get their work done, and he entered a written contract with Handelins owner, Charles T. Handelin (Chuck or Chuck Sr.), for the sum of $36,406. "Phasing" is the sequencing of work by different trades workers to efficiently use time and labor. Larry employed a crew of four or five men, and Chuck Handelin, Jr. (Chuck Jr.), son of the owner, was the Handelin foreman in charge of day-to-day supervision for the construction project (sometimes called the Abelson job) and overseeing all subcontractors work.
We use first names for Larry, Chuck, and Chuck Jr. to avoid confusion with the businesses bearing their last names.
Testifying for Swanson were Larry, contractor Eric Kaump, who was a lead carpenter for Handelin at the house during the painting, and Clarence Veles and Benito Cabrera, two of Swansons painters for the job. During the painting, the property owners ordered color changes, and there were chronic problems of poor phasing. Ultimately, every part of the job had to be redone, some up to five times, due to changes, plumbing and electrical work, hardware installation, cabinetry and shelving, door fitting and trim work, baseboards, lighting, and landscaping. No "clear window" emerged for the painting, and the schedule "was being pushed."
Exacerbating the problem, it was a four-story house built on a steep hill, shoulder to shoulder with homes on each side. All landscaping material had to be hauled through the house, up some 60 steps to the backyard, damaging wallboard and handrails on the stairways. Damage came to be an "everyday" or "almost daily" occurrence, resulting in many change orders. To maintain a flawless job, wallboard had to be taped, re-textured with "mud," sanded, primed and masked, with multiple finish coats.
Swansons work began in mid-December 2003 and ended at the end of March 2004, when a property owner broke her hip, had to occupy the house, and was sensitive to paint, thus preventing further work. By then, Larry testified, the job was about 95 percent complete. Swanson witnesses testified that there had been no complaints, from Chuck or Chuck Jr., about Swanson employees or the quality of their work.
The problem, ultimately, was disagreement on how much to pay for the various change orders, which by the end of the Swanson work numbered 60. The procedure for changes or extra work, Larry testified, was that whenever Chuck Jr., as superintendent, directed the work, he (Larry) would go ahead with it, take notes and then prepare and submit back to Chuck Jr. a change order reflecting the work and costs, having "agreed on what it would take for time." Not one of the changes was done without direction from Chuck Jr. As he had for his initial contract bid (see language at fn. 8, post), Larry calculated each change based on the cost of materials plus the hours per man, at an hourly rate of $45. He described that rate as "very fair" given workers compensation and other costs, and he used that rate uniformly for all of his workers. He got no complaints and continued to get daily directions for more extra work. Larry himself was on the job at least two days a week, and more often toward the end, but was in daily contact with his crew members. He submitted the orders in "bulk," in early and late March 2004, and always expected to be paid. Toward the end, however, after all change orders were in, he realized, from a meeting with the elder Chuck, that Chuck was not going to pay because he deemed the overall total too expensive. In early March, Chuck faxed Larry a proposed figure of $19,789, but Larry did not agree to it. On April 15, Chuck wrote to object to further change orders and the $ 45 per hour rate, saying he was "not interested in a time and materials contract." The letter also raised, for the first time according to Larry, complaints about Swansons crew and work. The impasse continued in a letter from Chuck in early May.
A provision in the original contract required that changes would be "executed" only upon written order. "Any alteration or deviation . . . involving extra costs will be executed only upon written order, and will become an extra charge over and above the estimate. . . ." Nevertheless, changes were directed by Chuck Jr., daily, without prior written approval by order.
It was stipulated that Handelin paid Swanson the full $36,406 on the original contract. No payment was ultimately made, however, for the change orders, which had mounted cumulatively to about $50,000. Handelin eventually hired Eds Painting to finish painting in August of that year.
Chuck Sr. and Chuck Jr. testified for Handelin. Chuck Sr. said he did not review the alteration/deviation language (fn. 4, ante) when signing the initial bid but that the "industry standard" was "to get a form in written order with a price on it and present it before you do the work and ask for a signature of approval . . . ." He was first aware of requests for extra compensation at the end of February 2004, when Larry sent him a revised contract with a completion price of $25,900. He did not accept this and told his son to have Larry submit change orders using Handelin forms. He also did a walk-through with Larry a few days later, on March 2nd, and this was the basis for the counter proposal of $19,789 that Larry rejected. Chuck testified that his son knew "nothing about money" and had no authority to sign work orders.
Chuck Jr. testified, similarly, that he approved no change orders, had no authority to do so, referred cost matters to his father, and did not know Larrys hourly rate or have any idea what the 60 change orders submitted to him would total. Nevertheless, he was "surprised" at the ultimate $51,000 figure and at an "excessive" hourly rate. Chuck Sr. testified that while he had paid his own carpenter Eric Kaump $50 an hour, a painter should be paid far less, suggesting it would be reasonable to charge $20 for the worker and another $5 or $6 for the employers contribution, workers compensation, and other overhead. Chuck also objected to Larrys use of the $ 45 rate "across the board" whereas a laborer, for example, should be paid less than a painter. Larry explained that he never had more than one laborer on the job, all the rest being painters.
Both Handelins testified that some Swanson workmanship concerned them and that they related this to Larry during the work. Because this directly conflicts with the testimony of Swanson witnesses, however, there is no need to recite it fully. Our review for substantial evidence (see part III, post) presumes that the jury resolved all credibility matters and evidentiary conflicts in favor of the prevailing party, Swanson (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926). Also implicitly resolved in Swansons favor was Larrys estimate that he left the job 95 percent complete when it ceased by reason of an owner breaking her hip; the items to complete were some exterior railings and perhaps minor interior work. Chuck claimed that he left the work only 75 percent complete, although arguably referring only to originally contracted work. Chuck testified that he paid Eds Painting $16,900 to finish the work much later that year, but this testimony and the supporting exhibits failed in most respects to correlate that work to things left undone by Swanson. Chuck agreed that the property owner broke her hip in late March but seemed to disagree, without elaboration, that this was the reason the painting stopped.
What emerged was that Handelin, during all of March and the first half of April, continued to direct Swanson to do extra work, despite an impasse about how much to pay and, by Larrys account, without complaint about the quality of the work. This no doubt influenced the jurys ultimate findings that Handelin (at least implicitly) promised to pay and reasonably expected Swanson to act to its detriment (fn. 6, post). Chuck Jr. testified that, while he lacked authority to order payment, he had authority to direct Swanson to do work and did so for the work described in 59 of the 60 change orders Swanson submitted, the sole exception being the 60th, for future supervising work. This was all expected to be done and for the benefit of the house. Chuck Sr., while not on site as regularly, said he was personally present when Swansons crew performed 37 of those changes. He also explained that he spoke with his son four or five times a day by phone, reviewed the submitted change orders, and discussed them with his son. His withholding of approval clearly conflicted with his description of an "industry standard" that no extra work be done without a change order, for he later elaborated that he expected Larry to "come back to me, show me his payroll records, show me his expenses and explain to me how he can charge me $45 an hour . . . when Im evaluating a change order." This seemingly meant that the work had to be done already, and the approval procedure that Chuck described was in turn inconsistent with his testimony that he told Larry that he required agreement in advance "because we dont do anything on a time and material basis."
The jury returned a special verdict awarding Swanson $50,400. The court entered judgment the next day for that amount plus costs. Handelin then brought a new trial motion, counsel submitting a declaration relating, among other things, that one juror had told counsel after trial that, as a builder herself, she was aware of national averages for labor rates and had recently read an article about this. Counsel was of the impression that the juror had shared this information with other jurors, undercutting the defense position that Swansons hourly rate of $45 was not reasonable. Swanson opposed the motion on all grounds, and the courts order denying the motion stated that none had been established.
The jury answered these questions grounded in quantum meruit. First they answered "yes" to the query, "Did Original Construction or its agents request Swanson to perform additional services beyond the original contract terms?" They wrote $50,400 after this inquiry: "What is the value of the services? You may consider any set-offs or any additional evidence presented on damages."
The jury also answered "yes" to the following questions, grounded in promissory estoppel: (1) "Did [Handelin] promise to pay in full under the change orders?" (2) "Did [Handelin] reasonably expect [Swanson] to change his position substantially as a result of the promise?" (3) "Did [Swanson] change his position substantially as a result of the promise?" (4) "Was [Swanson] damaged or harmed in some way as a result of his change of position?"
DISCUSSION
I. Jury Misconduct
The new trial motion claimed jury irregularity and misconduct (§ 657, subds. 1-2) and based on these pertinent parts of a declaration by defense counsel John Sharp: "On September 28, 2006 [after the jury was discharged], I observed several jurors talking on the courthouse steps. I asked whether the jurors would be willing to discuss with me, for purposes of my own education, what factors had contributed to their verdict. Juror No. 3 . . . stated, among other things, words to the effect that, as a builder herself she was aware of specific national averages for labor rates for employees of the building trades. [She] stated that she had recently read an article in that regard. It was and is my impression that [she] had shared this information (which was not based upon any evidence[] adduced at trial) with the other jurors during jury deliberations. [She] specifically related this outside information as a basis for finding plaintiff Swansons claimed hourly rate for his employees ($45) to be reasonable, as supporting the verdict. This outside knowledge was specifically cited as a basis for the jury having discredited Mr. Handelins testimony as to his disagreement with Mr. Swansons mark-up for his employees, regardless of skill level or experience."
Swanson objected that the declaration was inadmissible both as hearsay and as offered to show jurors deliberative processes in violation of Evidence Code section 1150, subdivision (a). The courts denial order, apparently issued without a hearing, states that "no grounds for new trial have been established."
To assess a new trial motion based on jury misconduct, the trial court undertakes a three-step inquiry. First, it determines whether the affidavits supporting the motion are admissible. Second, it decides whether the admissible facts establish misconduct. Third, the court decides whether any misconduct was prejudicial. (People v. Perez (1992) 4 Cal.App.4th 893, 906.) Admissibility questions of relevance and hearsay are reviewed for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Then, whether misconduct occurred is tested for substantial evidence insofar as the court made findings of credibility and historical fact. (People v. Majors (1998) 18 Cal.4th 385, 417.) Finally, whether prejudice arose is a mixed question of law and fact subject to independent review. (Ibid.)
The first problem is hearsay. No juror submitted an affidavit, and Sharp was offering his own declaration for the truth of what a juror told him (Evid. Code, § 1200, subd. (a)). Handelins rejoinder that it was not offered for the truth, but "to prove the objective fact that the statements were made," is misguided. The court was indeed asked to believe the truth of what the juror said, i.e., that she knew about labor rates. The recitations were inadmissible (id., subd. (b); Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442), as were Sharps impressions or beliefs (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1124) as to whether any misconduct occurred. The burden was on Handelin, as the proponent of hearsay, to show that an exception applied (People v. Woodell (1988) 17 Cal.4th 448, 464; People v. Livaditis (1992) 2 Cal.4th 759, 778; Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 668, 693), but no exception was offered. Nor is any offered now. " `Normally, hearsay is not sufficient to trigger the courts duty to make further inquiries into a claim of juror misconduct. " (People v. Carter (2003) 30 Cal.4th 1166, 1216-1217, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1256.) An exception may arise, in a criminal case, where evidence shows that a jurors unwillingness to execute an affidavit is the result of interference by a prosecutor (People v. Hayes, supra, 21 Cal.4th at p. 1256, fn. 6), but those are not our facts. Indeed, there is nothing to show that Handelin even tried to secure juror affidavits. Hearsay is therefore a sufficient and full answer to the claim. (Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1670-1671 [hearsay from two investigators]; People v. Villagren (1980) 106 Cal.App.3d 720, 729-730 [affidavit of defense counsel recounting discussion with the jury foreman].)
Beyond hearsay, the showing also failed on the second ground of objection below, that the showing was inadmissible under Evidence Code section 1150, subdivision (a). "[W]ith narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jurys impartiality may be challenged by evidence of `statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly, but `[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined. [Citations.] Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, `open to [corroboration by] sight, hearing, and the other senses [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias." (In re Hamilton (1999) 20 Cal.4th 273, 294, fn. omitted.) "This rule `serves a number of important policy goals: It excludes unreliable proof of jurors thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by losing counsel eager to discover defects in the jurors attentive and deliberative mental processes. It reduces the risk of postverdict jury tampering. Finally, it assures the privacy of juror deliberations by foreclosing intrusive inquiry into the sanctity of jurors thought processes. " (Id., fn. 17, quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 414.)
Applying those standards, we must edit the declaration, for much of it narrates the thought processes of jurors. Indeed, Sharps prefatory phrasing that he approached the jurors by asking if they "would be willing to discuss with me . . . what factors had contributed to their verdict," seemingly renders everything any juror said inadmissible as revealing their thought processes, i.e., what factors contributed to their verdict.
Even ignoring the fatal phrasing still leaves just this: Juror No. 3 spoke "words to the effect that, as a builder herself she was aware of specific national averages for labor rates for employees of the building trades. [She] stated that she had recently read an article in that regard. It was and is my impression that [she] had shared this information (which was not based upon any evidence[] adduced at trial) with the other jurors during jury deliberations. . . ." There being no admissible basis for counsels "impression" that this juror shared such information with others, the showing is only that the juror, "as a builder herself," was aware of "specific national averages for labor rates for employees of the building trades" and "had recently read an article in that regard."
There is no claim that Juror No. 3 improperly acquired this information during the trial or refused to disclose her knowledge during pertinent voir dire examination. So the question is whether Juror No. 3s preexisting knowledge of national average labor rates, assuming it had been properly shown by juror affidavit, constituted misconduct.
The answer is no. "Jurors need not be totally ignorant of the facts and issues involved. It is sufficient if the juror can lay aside his impressions or opinions and render a verdict based on the evidence adduced in court." (People v. Zambrano (2007) 41 Cal.4th 1082, 1127.) Jurors were instructed at the start and close of evidence, to "decide this case based only on the evidence presented in this trial," that nothing "presented outside the courtroom" was evidence, that they could "not do any research on your own or as a group" or use "reference materials," that they "must decide what the facts are in this case," and that they must base their verdict "only on the evidence that you hear or see in this courtroom." Specific to the problem here, jurors were told: "You should use common sense but do not use or consider any special training or any unique personal experience that any of you have. Any such experience is not a part of the evidence received in this case."
"As a general matter it must be presumed that the jurors observed and applied the instructions given them." (People v. Adcox (1988) 47 Cal.3d 207, 253.) The showing here does not rebut that presumption. This juror revealed personal experience in one aspect of the trial only afterwards, when court-imposed restrictions against using or considering such things were lifted. "It is `virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. " (In re Hamilton (1999) 20 Cal.4th 273, 296.) As held in a criminal case: "The jurors pretrial exposure to publicity about the case is not itself grounds to impeach the verdict, even when the exposure led them to develop tentative opinions about the defendants guilt or innocence." (Id. at p. 295.) Juror No. 3s background in average national labor rates is no different. No misconduct was shown, and thus no presumption of prejudice arose.
We reject Handelins view that a new trial was mandated because Swanson offered no counteraffidavits. There is no requirement, generally, of counteraffidavits. (See, e.g., Davis v. Kahn (1970) 7 Cal.App.3d 868, 880-881; Kyle v. Stone (1965) 234 Cal.App.2d 286, 293.) A case Handelin cites states, "Where no affidavits or declarations are introduced to counter the evidence of jury misconduct proffered on a new trial motion, the acts are deemed established, and the only issue is whether they are harmful or prejudicial." (Tapia v. Barker (1984) 160 Cal.App.3d 761, 766.) Here, however, there was no initial showing of misconduct.
There was no error in denying a new trial based on jury misconduct.
II. Phantom Issues
The rest of Handelins briefing follows a heading that the verdict was unsupported (§ 657, subds. 5 [excessive damages] & 6 [insufficient evidence]), that is subcast into claims of irregularity (see id., subd. 1) or results contrary to law (id., subd. (6)) in that jurors (1) disregarded instructions on breach of contract, (2) disregarded instructions on damages, (3) failed to review all evidence, (4) awarded damages not incurred, (5) ignored evidence that Swanson did not finish the job, (6) acted without evidence of agreement on an hourly rate for extra work, and (7) ignored instructions that the arguments of counsel were not evidence. These track the grounds raised for a new trial, but the only useful inquiry here is whether substantial evidence supports the verdict.
On a motion for new trial claiming excessive damages or insufficient evidence (§ 657, subds. 5-6), the trial court sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) If the motion is granted, we apply a "highly deferential standard" (id. at p. 409), upholding all factual determinations with "the same deference that an appellate court would ordinarily accord a jurys factual determinations" (id. at p. 412); pertinent evidentiary conflicts place the new trial order "beyond review" (id. at p. 416). A denial of the motion, on the other hand, requires deference to the jury verdict, as in any claim of insufficient evidence. We affirm if any substantial evidence, contradicted or uncontradicted, supports the judgment. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
Handelins claims that jurors disregarded instructions do not alter that result. We presume that jurors generally understand and faithfully follow the instructions (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17), and there is no competent showing that jurors ignored or misapplied any instructions in this case (part I, ante). Were we to find lack of substantial evidence for the verdict, we might infer, like Handelin, that some disregard of instructions or other irregularity was the cause. However, we would be guessing at the actual cause. "It is possible to determine whether a verdict is contrary to an instruction only when the evidence on a point covered by the instruction is without conflict and fails to show a set of facts which, under the instruction, would warrant the verdict reached. Where the evidence on that point is conflicting, but sufficient to support a finding of fact which, under the instruction, warrants the verdict, it must be presumed that the jury did make such a finding, and hence its verdict is not contrary to the instruction and not against law." (Hawkinson v. Oesdean (1943) 61 Cal.App.2d 712, 716-717.)
Finally, any supposed disregard of instructions or other juror irregularities would gain Handelin nothing as a practical matter, for demonstrating lack of sufficient evidence would itself require reversal of the corresponding finding or award. We shall accordingly review for substantial evidence.
III. Substantial Evidence
In our review of the evidence: "[A]ll conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. " (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 571, quoting Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.) The same is true for a damages award; we affirm if the record, viewed most favorably to the award, discloses substantial evidence. (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 729, 746 (Fassberg).)
This review necessarily places a burden on an appellant: " `[A] reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings. [Citations.]" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) A recitation of only the appellants evidence does not suffice. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) An attack on the evidence without such briefing is entitled to no consideration when it is apparent that a substantial amount of evidence was received on a respondents behalf. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) "It is neither practical nor appropriate for us to comb the record on [an appellants] behalf." (In re Marriage of Fink, supra, 25 Cal.3d at p. 888.)
Handelins prime attack (and basis for a claim that jurors ignored instructions on contract formation) is that there was never a meeting of the minds as to contract price for the 60 change orders submitted by Swanson and, thus, no contract on which to award damages. The claim is unavailing, for it completely ignores that the case went to the jury on instructions that recovery could be premised not only on express or implied-in-fact contract, but on quantum meruit and promissory estoppel.
In the background part of this opinion, we summarized the trial evidence in far greater detail than Handelin does, and observed that the special verdict is premised on quantum meruit and promissory estoppel (fn. 6, ante). "As every first year law student knows or should know, recovery in quantum meruit does not require a contract" (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449, citations and fn. omitted), and Handelins failure to legally or factually address this alternative basis for the verdict is fatal, even if the basis Handelin attacks is wanting. The jurys findings on the alternate grounds are, like any other, presumed to be correct (Walling v. Kimball (1941) 17 Cal.2d 364, 373), and Handelins failure to present argument or authority on those points constitutes an abandonment (In re Sade C. (1996) 13 Cal.4th 952, 994; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317). We have no duty to expound upon how the verdict may in fact be supported. (In re Marriage of Fink, supra, 25 Cal.3d at p. 888; Clewett v. Clewett (1955) 136 Cal.App.2d 913, 915.)
Handelin claims that the damages award includes payment for work under the original contract, new work already charged in prior proposed change orders, and work never done. For this Handelin cites parts of Chuck Sr.s testimony and notations to that effect next to charges marked "[r]ejected" on a four-page spreadsheet prepared by Chuck Jr. Chuck Sr. testified: "Its my belief that some of it was already in the contract . . . . Some of it he didnt do. Some of it he was entitled to." He specifically disputed one proposed change order as charging $7,200 for handrail work already bid at $9,000 in the original contract. Of the remaining 59 proposed change orders, Chuck testified that "[p]robably half" were "included in the original work or it [sic] was something that he re-did because he did it incorrectly to begin with."
The parties freely use the term "change orders," but we shall call them "proposed change orders." In the usual sense, change orders do not arise, or generate progress payments, until approved. (Fassberg, supra, 152 Cal.App.4th at pp. 746-747.)
The short answer is that Handelin fails to recite contrary evidence. Stating just its own evidence has waived the substantial evidence claim. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
Alternatively, our review of the record shows that these issues came down to credibility. The spreadsheet did indicate some duplication, unfinished work, and double charging, but it contained no elaboration and, as Swansons counsel would point out to jurors, was created in May 2004, during the payment impasse and months after the work was done. Nor would jurors have been aided by comparing the proposed change orders with the original contract, for while the proposed changes were specific, the initial contract was not.
The original contract provided only this description: "This bid includes the following areas[:] Sheet Rock, Railing, baseboard, Elevator doors[,] Door Jambs, Doors, Windows (2), Garage Jamb[,] Exterior sidewalk window, Pool House Equip. Room door & Casing—Material/Labor. [¶] *SheetRock—one coat PVA, two coats finish [¶] *Trim & Doors—one coat oil primer, two coats oil finish [¶] *Handrail—one coat primer (red oxide), two coats oil enamel."
Larry, on the other hand, testified that virtually all of the painting had to be redone one or more times due to changes and damage, and Velez verified that some had to be done up to five times. Larry also explained in detail 19 of the proposed change orders, as jurors examined copies of them, and expressly stated, whenever asked, that they were not part of the original contract and came out at the request of Chuck Jr. Larry closed by answering that he had personally written all of the orders, that the work was not "any part of my contract, none of this," that the prices were based on his costs of labor and materials, that he had anticipated none of this work being covered by the contract price, and that, after reviewing the orders, he would change nothing. Counsel for Handelin, in jury argument, did not offer jurors any assistance in the calculations and took a hard position—contrary to Chucks equitable concession that Swanson was entitled to "[s]ome of" what it proposed—that no damages were awardable because no proposed change orders were signed by Chuck. Counsel also urged broadly that the Handelin witnesses years of experience and documentation rendered them more credible.
In essence, then, the jury had no means to determine for itself, from documents, whether there were duplicative charges or charges for work undone, and had to decide by weighing the credibility of witnesses. We presume in support of their verdict that they found the Swanson witnesses to be more credible. We cannot substitute our views for theirs, since it was their exclusive province to determine the credibility of witnesses and the truth or falsity of facts on which that depended. (People v. Barnes (1986) 42 Cal.3d 284, 303.) Moreover, the testimony of a single witness, even a party himself, may constitute sufficient evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Substantial evidence supports the determination here.
Handelin urges that it paid more on the contract than the parties stipulated, and that the jury failed to offset the overage against damages. The parties stipulated: "[T]he $36,406 on the original contract was paid by Original Construction to Larry Swanson[;] therefore this issue is not before you." Handelin points to a place in the record where Chuck Sr. later testified, "Now, I paid Mr. Swanson $38,210." Putting ourselves in the jurors shoes, however, we are struck with the fact that this figure was stated without any documentary corroboration, and was never mentioned again, not even by counsel for Handelin in closing argument. Jurors could, and inferably did, disregard it as unsupported, or just not credible. Jurors rejected much of what Chuck Jr. and Sr. claimed, after all, and this was one more bare assertion.
Handelins claims of failure to offset assume such failures, yet this is not usually discernible from a gross figure such as the $50,400 here. Since the award was exactly the amount requested by Swanson, however, we assume purely for sake of argument a lack of offsets.
More persuasive to jurors, evidently, was Swansons position, posed in jury argument, that Handelin had gotten itself into financial trouble on the project due to poor management. Handelin then directed Swanson to perform a series of changes and, when this proved to be expensive, manufactured after the fact, in unsworn documents such as Chuck Jr.s spreadsheet and Chuck Sr.s letters, a series of complaints in an effort to foist the blame and costs onto Swanson. Correct or not, that was one reasonable view of the evidence, and we cannot second-guess the jury.
The same observation answers Handelins complaint of jurors not offsetting the $16,900 paid to Eds Painting. Assuming for sake of argument a lack of offset (see fn. 9, ante), substantial evidence supports the result. As previously noted (fn. 5, ante), Chucks testimony provided no specifics to correlate that work to anything left undone by Swanson; nor did the supporting exhibits help much. Counsel for Swanson stressed this in jury argument, pointing out as well that some of the work was for the house next door and that the painting was done in August, many months after Swanson ceased work on the project, further attenuating the link.
Handelin asserts that there is "no evidence" of agreement on the rate of payment for extra work. As already noted, this is beside the point, for jurors relied on quantum meruit recovery (fn. 6, ante) under instructions directing them to award the "reasonable value of the painting services" (italics added). Handelin cites Chucks testimony that $25 per hour was reasonable and that $45 was not, but the jury obviously rejected Chucks view as not credible. Moreover, counsel for Swanson noted in argument that one of the invoices from Eds Painting showed Handelin paying that firm $43 an hour for the work ($2,730 for 63 hours and material costs). Substantial evidence supports the $45 hourly rate.
One of the 60 proposed change orders—for $9,000 in projected supervision—was concededly work never performed, but Swanson did not seek this as part of its damages. Counsel clearly factored this into the request for $50,400 damages. That is precisely what the jury awarded. This means that jurors discounted Chucks view of how much work remained undone when he took Swanson off the job. Larry testified that all that remained was a "finish coat" on the exterior handrailing and minor work on the inside. Given the discretion necessarily inherent in a jurys determination of reasonable value, we cannot say on this record that the award exceeded scope of the evidence.
"[M]y client believes wholeheartedly theres no reason why you should give him that $9,000. . . . So [$]51,000 in change orders. And this number is based on an hourly rate of $45 an hour for the hours that they spent to do the changes. [¶] You subtract the $9,000 and I believe you are left with [$]42,000. My client is entitled by law to 10 percent interest per year. That would be $4,200 for 2005, and 10 percent for 2006. And I believe that adds up to [$]50,400. And this is what I believe is the least amount that you should award to my client in this case. That that would be a fair amount."
DISPOSITION
The judgment is affirmed; the purported appeal from the order denying a new trial is dismissed.
We concur:
Haerle, J.
Richman, J.