Suffolk Construction Co. v. Los Angeles Unified School Dist. ( 2023 )

Filed 3/30/23 Certified for Partial Pub. 4/21/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SUFFOLK CONSTRUCTION B285400
COMPANY, INC.,
(Los Angeles County
Plaintiff, Cross-defendant Super. Ct. No. BC541085)
and Appellant;
FISK ELECTRIC COMPANY,
Plaintiff and Appellant,
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant;
R.J. DAUM CONSTRUCTION
COMPANY,
Defendant, Cross-
complainant and Respondent.
APPEAL from judgments of the Superior Court of Los
Angeles County, Lisa Hart Cole & Maren E. Nelson, Judges.
Affirmed in part, reversed in part.
K&L Gates, Pierce Kavcioglu Espinosa & Cesar,
Timothy L. Pierce, Hector Espinosa and Samira F. Torshizi for
Plaintiff, Cross-defendant and Appellant.
Nida & Romyn, Robert Nida and Matthew J. Luce for
Plaintiff and Appellant.
David R. Holmquist, Devora Navera Reed, Mark Fall;
Theodora Oringher, Kevin A. Dorse, Jon-Jamison Hill, Helen M.
Cho, Panteha Abdollahi and Andrew B. Breidenbach for
Defendant and Appellant.
Lubka & White, Laurence P. Lubka, Ronald E. White;
Nemecek & Cole, Benedon & Serlin and Mark Schaeffer for
Defendant, Cross-complainant and Respondent.
******
This appeal arises from litigation involving a public
construction project to build the Central Region 9th Street Span
K-8 school in downtown Los Angeles. The Los Angeles Unified
School District (LAUSD or District) and Suffolk Construction
Company, Inc. (Suffolk), entered into a development and
construction agreement dated September 13, 2011 (contract), for
the development and building of the school. Suffolk later entered
into subcontracts with various subcontractors, including R.J.
Daum Construction Company (Daum) for structural concrete
work and Fisk Electric Company (Fisk) for electrical work.
Throughout the project, various problems arose, which caused
delay and disruption and resulted in increased costs to Suffolk,
Daum and Fisk. One major delay occurred after LAUSD
2
discovered significant cracks in the concrete foundation for the
elementary school building. Suffolk submitted time impact
analyses (TIA) to LAUSD seeking compensation on its own behalf
and on behalf of the affected subcontractors due to the cost
overruns resulting from delays, which Suffolk claimed were a
result of LAUSD’s faulty plans.
Suffolk sued LAUSD on April 1, 2014, alleging breach of
the contract, implied contractual indemnity, and seeking
declaratory relief.1 Suffolk’s first amended complaint pled
substantially similar claims against LAUSD and added a claim
against Daum for breach of contract.
Trial proceeded in phases. The first phase (phase 1)
commenced on January 30, 2017, and focused on whether LAUSD
breached the contract by providing Suffolk with plans and
specifications for the concrete foundations that were not correct
(TIA 5). It was LAUSD’s position that the delays were
attributable to Suffolk’s mismanagement of the project and that
1 On February 28, 2014, Fisk submitted to Suffolk a certified
claim in the amount of $1,908,157.61 for overtime acceleration
and productivity impacts resulting from the various delays on the
project. Suffolk passed through Fisk’s claim in its lawsuit
against LAUSD. The notion of a pass-through claim is described
as follows:
“When a public agency breaches a construction contract
with a contractor, damage often ensues to a subcontractor. In
such a situation, the subcontractor may not have legal standing
to assert a claim directly against the public agency due to a lack
of privity of contract, but may assert a claim against the general
contractor. In such a case, a general contractor is permitted to
present a pass-through claim on behalf of the subcontractor
against the public agency.” (Howard Contracting, Inc. v. G. A.
MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 60.)
3
the cracking of the concrete was attributable to Daum’s means
and methods rather than LAUSD’s plans and specifications. The
jury found that Suffolk substantially performed its contract and
that LAUSD breached the implied warranty of correctness by
providing plans and/or specifications for the concrete footing
design that were not correct.
The second phase (phase 2) proceeded with a different
judge and jury and determined Suffolk’s damages for the concrete
issue decided in phase 1 (TIA 5). The phase 2 jury also
considered whether LAUSD had a good faith basis to withhold
$111,714 in retention from Suffolk, and whether LAUSD
breached the implied warranty of correctness by providing
incorrect plans and/or specifications for various other problems
(TIA’s 2, 3, and 4). The phase 2 jury determined, among other
things, that LAUSD had a good faith basis to withhold the
retention from Suffolk. Suffolk challenged the phase 2 verdict
with a motion for new trial and motion for a judgment
notwithstanding the verdict (JNOV). Suffolk’s motion for new
trial was denied but its JNOV motion was granted. The trial
court found that, contrary to the jury’s findings, LAUSD did not
withhold the retention amount of $111,714 in good faith.
The third phase (phase 3) of the proceedings was
determined by cross-motions for summary adjudication. The
central question posed by the cross-motions was whether Suffolk
could require LAUSD to pay Daum’s attorney fee award. The
trial court determined that LAUSD was not liable to Suffolk for
Daum’s fees under either a theory of implied contractual
indemnity or as damages for breach of contract.
LAUSD appeals from the phase 1 judgment, arguing that
there was insufficient evidence to support the phase 1 jury
verdict, that the trial court committed instructional error, and
4
that the evidence did not support the jury’s verdict. LAUSD also
appeals from the phase 2 judgment, arguing that the trial court
erred in granting Suffolk’s motion for JNOV on the issue of good
faith, erred in excluding LAUSD’s expert witness on the issue of
good faith, and erred in refusing LAUSD’s proposed jury
instructions on LAUSD’s licensing defense.
Suffolk cross-appeals, claiming various errors in phases 2
and 3. Suffolk challenges the jury award of damages in phase 2
on TIA 5, arguing that the jury awarded insufficient damages
and the trial court erred by denying its motion for new trial on
this issue. Suffolk further challenges for lack of sufficient
evidence, the jury verdict on TIA 2, and argues that there was an
irreconcilable inconsistency in the jury verdicts on TIA’s 3 and 4.
Suffolk claims that the trial court erred in granting summary
adjudication in favor of LAUSD in phase 3. As to its attorney fee
request, Suffolk argues the trial court abused its discretion in
excluding certain amounts from the fee request.
Suffolk also appeals from the trial court’s award of attorney
fees in favor of Daum. Suffolk challenges the trial court’s
decision to award Daum fees based on a contractual provision
first raised in Daum’s reply brief. Suffolk argues that the
decision was procedurally incorrect and that the contractual
provision does not support an award of fees. Suffolk further
argues that even if the contractual provision did support an
award of fees, the trial court erred in failing to apportion the
award between Suffolk and LAUSD. Finally, Suffolk challenges
the award of damages it was found liable to pay Daum.
Fisk also appeals, arguing that the trial court erred in
denying Fisk’s motion for attorney fees and in denying Fisk
prejudgment interest for the portion of its award payable from
Suffolk.
5
As set forth below, we find that the phase 1 verdict must be
reversed and remanded for retrial on the ground that the special
jury instruction based on Public Contract Code section 1104 was
improper, and it is reasonably probable that the error affected
the verdict. The reversal of the phase 1 liability verdict requires
that the phase 2 trial of damages for TIA 5 (related to the
concrete cracking issue) must also be reversed and remanded for
retrial. All attorney fee issues surrounding liability and damages
for TIA 5 must also be reconsidered upon remand. Finally, the
trial court erred in granting JNOV on the phase 2 jury verdict on
the question of whether LAUSD had a good faith basis for
retention of fees. Thus, the decision granting the JNOV is
reversed with direction to reinstate the jury verdict on that issue.
The subcontractors’ claims for attorney fees and
prejudgment interest must also be reconsidered on remand. The
jury verdicts on TIA’s 2, 3, and 4 are affirmed.
FACTUAL BACKGROUND
LAUSD entered into the contract with Suffolk on
September 13, 2011. Through the contract, Suffolk agreed to
construct a work of improvement for LAUSD in a project known
as the Central Region 9th Street Span K-8 school located near
the downtown Los Angeles Fashion District (project). The
contract price was $39,479,112. The contract included a number
of documents, such as general conditions, supplementary
conditions, design plans and drawings, technical specifications for
each phase of work, a geotechnical report, and other ancillary
documents (collectively contract). KPFF Consulting Engineers
(KPFF), LAUSD’s structural engineers of record (SEOR), put
together the specifications and structural drawings for the
project. The project included an elementary school (ES) building,
6
a middle school building, a multi-purpose room/locker room, and
parking structure.
Suffolk entered into various subcontracts in connection
with the project, including a subcontract with Daum to perform
structural concrete work, and a subcontract with Fisk to perform
electrical work.
Work on the project commenced in October 2011.
The January 31, 2012 concrete pour
The concrete footings for the school buildings were to be
constructed below ground to serve as foundations for the
buildings at the project site. By January 31, 2012, the project
was already two months behind schedule due to delays in placing
the concrete footings. The first pour of concrete on January 31,
2012, for the footings consisted of 1,450 cubic yards of concrete.2
Suffolk asserts that the concrete mix for the pour had been
approved by the LAUSD design team. However, LAUSD points
to conflicting evidence in the record, showing that LAUSD’s
design team stamped Suffolk’s submittal: “This document has
been reviewed for general conformance with design concept only
and does not relieve the fabricator of responsibility for
conformance with design drawings and specifications.”
Suffolk points out that the January 31 pour was observed
by KPFF and LAUSD’s inspector of record (IOR), Donald Shirley.
Also present were third party inspectors from Koury Engineering
2 The jury found that Suffolk was responsible for the delay
surrounding the over-excavation of the concrete footings, which
was at issue in TIA 2. LAUSD took the position that Suffolk
asked Daum to perform the concrete pour in one large event,
rather than spread over two nonconsecutive days as originally
planned, in order to make up for the delay caused by Suffolk.
7
& Testing, Inc. (Koury), who observed the pour. Koury
contemporaneously issued a series of inspection reports stating
that the work met the requirements of the contract drawings and
specifications. The inspection report noted that the mix design
met the requirements of approved drawings and that “[a]ll
concrete placed was mechanically vibrated and placed within
tolerance for slump as specified on approved mix designs.”
Koury’s deputy inspector, Jorge Delgado, testified that no
problems with the contractor’s performance were noted. No
notice of noncompliance for the pour procedures was issued by
any party.
Again, LAUSD points to conflicting evidence in the record:
that there was evidence in the record that KPFF engineers and
inspectors were not concrete experts, nor were they tasked with
“signing off” on the contractor’s means and methods to achieve
nondefective results. Further, LAUSD points out that section
13.4 of the general conditions of the contract provides that
inspections or observations “shall not, in any way, relieve
CONTRACTOR from responsibility for full compliance with all
terms and conditions of the Contract Documents.” The document
added, “IOR is not authorized to make changes in the Contract
Documents . . . nor shall IOR inspection of the Work and methods
relieve the CONTRACTOR of responsibility for the correction of
subsequently discovered defects, or from its obligation to exactly
comply with the Contract Documents.”
Three days after the January 31, 2012 pour, the District’s
IOR alerted Suffolk and Daum that some parts of the foundation
had subsided and showed checkerboard cracking patterns of the
reinforcement bars (or rebar) inside the foundations. This
subsidence cracking was referred to as plastic settlement
cracking, or settlement cracking, because the concrete would
8
settle under the stiff rebar while it was in a wet or plastic state.
On February 3, 2012, Shirley e-mailed photographs of the
cracked foundation to KPFF. Shirley noted that in his experience
the cracks were an odd occurrence. Ghanem Garawi, LAUSD’s
owner authorized representative (OAR), had concern that Suffolk
did not respond with urgency to investigate and correct the
problem, for which there were safety concerns posed by the
cracked concrete.3
LAUSD asserts that because Suffolk and Daum did not
take any action to rectify the cracking problem, LAUSD took the
lead in attempting to determine the cause of the cracking and to
assess whether the foundations were safe. KPFF investigated
the concrete cracking through visual inspections and core
samples to determine whether the concrete and rebar had
debonded, which would affect the structural integrity of the
foundation. The core samples revealed significant gaps between
the rebar and the concrete.
Given the safety concerns, KPFF’s principal engineer on
the project, Gary Duncan, engaged the Division of State
Architects (DSA), the governmental entity that oversees and
monitors public building safety, to assess how to proceed.
LAUSD points out that Suffolk initially blamed Daum for
the cracking problem. Suffolk demanded that Daum “respond in
writing . . . outlining what actions RJ Daum will take in order to
achieve compliance with the Contract Document requirements.”
Suffolk warned Daum that it “consider[ed] RJ Daum responsible
for all cost and time impacts related to this issue.” In response,
Daum disagreed that it was responsible for the failure. Neither
3 The OAR is LAUSD’s principal point of contact for
contractor communications.
9
Suffolk nor Daum made any proposals to rectify the problem in
February or early March 2012.
In early March 2012, LAUSD instructed Suffolk to perform
mock pours designed to identify the causes of the problem. The
purpose of the mock pours was to observe the procedures used by
Suffolk and Daum and evaluate the results. The parties
ultimately performed four mock pours to test possible alterations
that might allow for an acceptable outcome. The fourth mock
pour resulted in a test area that did not exhibit cracking, and
using that process, the parties were able to pour the balance of
the foundations.
Mock 1—March 16, 2012
The first mock pour occurred on March 16, 2012 (mock 1).
Mock 1 used the same concrete mix from the same supplier as
was used in the original pour. LAUSD’s internal structural
engineer, Doc Nghiem, testified that LAUSD provided oversight
at the mock pour, including “two, three engineers [and] three,
four inspectors.” Also present were the SEOR’s Duncan and
Aldrin Orue of KPFF.
Daum prepared a written pour procedure, which KPFF
approved prior to mock 1. KPFF report 8 confirmed that the pour
followed the written pour procedure. Suffolk asserts that LAUSD
did not request that Daum perform a procedure known as
“revibration” of the concrete in mock 1. Further, Suffolk asserts
that the contract did not require re-vibration of the concrete.
LAUSD provided contrary evidence of its position on
revibration. LAUSD points to evidence that prior to mock 1
KPFF requested that Daum consider revibration as a potential
way to mitigate cracking. Further, LAUSD takes issue with
Suffolk’s claim that the contract did not require revibration.
LAUSD points out that specification 03300 mandates that the
10
contractor at a minimum comply with “ACI 309 – Recommended
Practice for Consolidation of Concrete.”4 ACI 309 discusses
revibration and states, “[t]o eliminate [subsidence] cracking, the
concrete should be revibrated at the latest time at which the
vibrator will sink into the concrete under its own mass.” LAUSD
asserts that KPFF asked Daum to consider ACI 309 when
recommending revibration, but Daum refused to consider the
suggestion “since it was RJ Daum’s opinion that these
recommendations did not apply to foundations and footing
conditions.” At a March 15, 2012 meeting involving
representatives of KPFF, LAUSD, Suffolk, Daum, and Koury,
KPFF “inquire[d] about re-vibration of the top lift near the time
of initial set. R.J. Daum (JM) indicate[d] that they do not intend
to perform re-vibration as not part or [sic] their common practice
for foundations.”
The results of the mock 1 pour were better than the
original pour, but still exhibited cracking.
On the same day as mock 1, concrete footings were poured
at an area designated as the “[l]ocker [r]oom [a]rea.” Nghiem
directed the contractor to revibrate a section of the pour in the
locker room area to compare it to the unrevibrated concrete in
mock 1. The concrete cracks in the locker room area in the small
revibrated portion were cracked to a lesser degree than mock 1,
though there was not much difference. Nghiem could not
conclude that revibration was a factor that affected the cracking.
Orue agreed that they would “not require [revibration],” but
would “leave it up to the contractor to decide on their own if
4 ACI is the American Concrete Institute, the leading
authority on concrete construction.
11
revibration is appropriate to mitigate this particular condition as
part of their means and method procedure for the next pour.”5
Mock 2—April 19, 2012
Following mock 1, KPFF recommended an “engineering
investigation” to diagnose further issues and also recommended,
“in addition to this, an additional mock-up with this same mix be
poured on a section with a rat slab at the bottom of the footing,”6
which would “allow for a side by side comparison and assist us in
evaluating the resulting effects of the different conditions if any.”
Suffolk also suggested the use of a rat slab for mock 2. Garawi
did not approve of the use of a rat slab for mock 2 because Suffolk
did not provide a proposal of what procedures Suffolk intended to
follow.
Mock 2 was performed on April 19, 2012, changing only the
concrete supplier to determine whether there was a problem with
the material. Cracking still occurred but not as severely as with
the original pour. Witnesses from LAUSD’s design team testified
that mock 2 was designed to determine if changing the concrete
mix supplier made a difference. The only thing that changed in
mock 2 was the concrete supplier, not the concrete mix recipe.
LAUSD points out that mock 2 showed that when Daum slowed
5 In phase 2, Michael Holliday, Daum’s project manager,
testified about a KPFF report indicating that the locker room
area pour, which occurred on the same day as mock 1, and where
Ngheim had “asked for some additional vibration or revibration,”
showed “no visible signs of concern . . . , and the foundations
appeared to be in conformance with the project specifications
requirements.”
6 A rat slab is shorthand for a thin layer of concrete placed
directly on the soil in advance of the pour to act as a barrier
between the soil and the concrete for the footing.
12
its work and paid closer attention to the pour, the cracking was
less pronounced
Events following mock 2
LAUSD retained concrete expert Goeffrey Hichborn from
the concrete consulting firm Building Forensics International
(BFI) to assist with determining the cause of the concrete
cracking. BFI issued a preliminary report dated April 24, 2012,
which noted a “likelihood that the reduction in concrete volume is
specifically due to the loss of water from the fresh concrete into
the soil . . . . This condition is commonly referred to as
‘subsidence cracking’ . . . .”7 Hichborn stated that the “cracking
situation is mainly the result of the means and methods the
concrete installer elected (or failed) to employ in the original
placement.” As a possible solution, Hichborn’s preliminary report
proposed the use of an admixture to reduce the loss of water.
On May 2, 2012, Hichborn memorialized plans for a mock 3
pour after a call with Garawi, Nghiem, and KPFF engineers
(Duncan and Orue). Hichborn stated that subsidence occurs after
vibration, thus he opined that “the vibration itself is irrelevant to
the subsidence because it is occurring after you vibrated it.”
Hichborn recommended the use of an accelerant admixture, as
well as a “barrier to moisture transport . . . between the concrete
and soils.”
On the same date, Orue of KPFF presented Garawi with a
proposal and revised plans for incorporating the use of a rat slab
7 Subsidence is the gradual caving or sinking of the poured
concrete.
13
and Visqueen layer for mock 3.8 Nghiem was in favor of following
KPFF’s recommendation of using a rat slab and Visqueen layer
for mock 3.
LAUSD rejected Hichborn’s and KPFF’s proposal to use a
rat slab or Visqueen layer for mock 3 and asked KPFF to revise
the mock 3 plans to exclude them. Instead, Garawi instructed
KPFF to include the use of an admixture as proposed by
Hichborn. However, that solution turned out to be unworkable
because the proposed admixture was not an approved chemical
product for use on a school site.9
Mock 3—May 10, 2012
Garawi then decided mock 3 should proceed with the
higher strength concrete mixture that had been used for an
adjacent parking structure. Mock 3 was poured on May 10, 2012,
and was unsuccessful. The same level of scrutiny was present at
mock 3 as at earlier mock pours, and Daum poured strictly in
accordance with the pour procedures. Mock 3 exhibited cracking
similar to mock 1 and mock 2.
Mock 4—May 21, 2012
On May 14, 2012, during a call among LAUSD and its
consultants, the parties agreed on “a rat slab with [V]isqueen
8 Visqueen is a plastic sheeting used to isolate the sides of
the foot excavation from the concrete and block water from
traveling from the concrete into the vertical earth surfaces.
9 There was conflicting testimony on the reason the
admixture proposed by Hichborn (called Polarset) was not used.
While Garawi testified that it was because it was not an
approved chemical, Duncan testified that there was insufficient
data suggesting that this particular admixture had been used
elsewhere and “the concrete would still come up to strength and
perform the way we expected it to.”
14
sides for the mockup as a way to best insure favorable results on
the next mock-up.” On the same day, KPFF issued a
memorandum requiring that “[t]he mud slab shall be poured a
minimum of 3 days prior to placement of foundation concrete.
Contractor to submit the mud slab mix design for review.”10
Suffolk submitted a mud slab mix design to LAUSD, which was
approved by LAUSD, KPFF and Koury, and used in mock 4. The
KPFF memorandum also included new structural sketches (SSK)
showing “exactly how to install the water barrier.”
Mock 4 took place on May 21, 2012, and was successful. As
directed, Daum installed the rat slab and Visqueen to isolate the
concrete from the adjacent soil and the cracking did not occur.
Mock 4 used the same concrete mix used in the January 31, 2012
pour.
After mock 4, Nghiem concluded that the moisture barrier
(i.e., the rat slab and Visqueen) prevented the water from
escaping and the “concrete [had] a chance to harden.” Thus, “the
cracks didn’t appear.” Nghiem’s ultimate conclusion was that
“the adverse effects of the concrete [were] due to a rapid loss of
water from fresh concrete into the soil.” Duncan of KPFF agreed
that the use of water barriers had eliminated the “subsidence
that [they] had seen in the first three mock-ups.” KPFF report 12
confirmed mock 4’s success and “the pour plan and procedures
used for . . . mock-up [#4] appear to be acceptable for use on the
remainder of the [foundations of the project].”
On October 18, 2012, KPFF sent a letter summarizing the
events surrounding the mock pours, concluding: “[T]he
foundation issues encountered at this site extended from an
10 The term “mud slab” is a term used interchangeably with
the term rat slab on this project.
15
unfavorable reaction between the concrete and the soils. This is
evident from the favorable results of Mock-up #4 where a barrier
was placed between two materials. It is likely that the adverse
effect on the concrete is due to the rapid loss of water from the
fresh concrete into the soil.”
Suffolk and Daum later claimed that the mock pour process
proved the cracking was the result of a design error, because the
rat slab and Visqueen sketches KPFF provided for mock 4
constituted a design change that was necessary to “correct” a
design error.
LAUSD takes issue with Suffolk’s portrayal of the rat slab
and Visqueen additions in mock 4 as design changes, noting that
the SSK produced by KPFF simply showed the placement of the
Visqueen and mud slab on the original design sheet. KPFF’s
engineer testified that he issues supplementary drawings like
SSK’s for many reasons, and providing a diagram like the mock 4
SSK does not constitute a design change. Other KPFF engineers
also testified that the SSK did not constitute a design change.
In addition, LAUSD points out that the use of Visqueen
was not a design change because specification 03000 permits the
use of Visqueen. LAUSD argues that the mud slab and Visqueen
were remedial, but not probative, of the underlying cause of the
cracking.
LAUSD’s alternate theories for the cause of the concrete
cracking
Prior to the mock pours, KPFF had identified inadequate or
improper vibration techniques as a common cause of the type of
cracking observed. For the mock pours, KPFF recommended that
Daum reconsider its vibration techniques, specifically, the failure
16
to perform revibration. Daum did not act on this suggestion
during the mock pours.11
LAUSD also presented evidence suggesting that Daum’s
concrete mix was faulty.12 In support of this argument, LAUSD
presented testimony from a concrete engineering and concrete
mix expert, Mateusz Radlinski, Ph.D. Radlinski’s analysis
showed that Daum’s concrete mix used more water than was
necessary. Radlinski testified that “the vast majority of the
batches with maybe the exception [of] two, . . . significantly
exceeded” the maximum water limit.” Avi Mor, Daum’s concrete
expert, affirmed that the concrete mix Daum selected exceeded
the water content maximum specified in the contract.
LAUSD also presented evidence that Daum could have
mitigated the effects of the excess water by adjusting other
components of the concrete mix.13 The contract specifications
gave Daum the option to use admixtures to reduce the potential
11 In a field report prepared on March 16, 2012, KPFF
engineers Orue and Duncan noted that revibration had not
occurred, despite KPFF’s suggestion and referral to the ACI
Standard Practices manual.
12 Garawi testified that the contractor was responsible for
creating the concrete mixture.
13 In phase 2, LAUSD argued that it had a good faith basis to
withhold retention funds because of its good faith belief that the
concrete cracking was caused by contractor means and methods.
LAUSD took the position that its good faith belief was based, in
part, on Suffolk’s failure to adjust its concrete mix through the
use of an admixture or by adjusting the water content. LAUSD’s
expert, Hichborn, also testified that the water content in the
mixture Daum used exceeded the maximum water content set by
contract specifications.
17
for excess water bleeding. Daum could have offset excessive
water with an air entraining admixture, which is a chemical that
“generate[s] and introduce[s] small microscopic air bubbles into
the concrete [and] increases the volume.” Admixtures are
“broadly recognized in the industry [to] significantly
reduce[]bleeding of concrete.” Radlinksi concluded that Daum
should have modified the mix it selected to account for the
excessive water.
Radlinski also testified that Daum’s selected concrete mix
failed to use the required aggregate composition.14 Radlinski
testified that Daum “used incorrect size of the aggregate. Not the
size that was specified in the concrete specification.” Daum’s own
expert conceded that Daum failed to comply with the contract
aggregate requirements.
In phase 2, LAUSD presented testimony that during the
initial January 2012 pour, there were “many areas at the
elementary school [where] there was not cracking and there was
no mud slab.” LAUSD points out that, had a mud slab or
Visqueen been necessary to ensure a proper foundation pour, all
of the ES foundations would have exhibited the same cracking
that occurred elsewhere.
Other delay and TIA claims
During the project, Suffolk submitted four requests to
extend the contract completion date, each submitted in the form
of a TIA.
TIA 2—over-excavation
Early in the project, Suffolk submitted to LAUSD request
for clarification (RFC) 62, dated October 25, 2011, to confirm
direction to deepen or over-excavate certain areas of the footing
14 Aggregates are small rocks or pebbles in the mix.
18
excavation and then refill to the original five-foot excavation
depth in areas where the soil was not sufficiently stable. On
October 26, 2011, LAUSD responded, citing the geotechnical
specifications: “[I]n accordance with the project geotechnical
report, where the recommended lateral overexcavation of 5-feet
beyond footings could not be performed, and footings were not
designed for passive resistance, the footing excavation should be
deepened to the competent alluvium found at or below a depth of
5 feet . . . .”
This response to RFC 62, which directed Suffolk to perform
the over-excavation work, was approved and signed by the OAR,
the SEOR, and Geocon West, Inc. (Geocon), the geotechnical
engineer of record.
Suffolk asserts that uncertainty remained as to which
areas of the footing the response to RFC 62 applied. In a
supplemental response to RFC 62, KPFF and Geocon revised
structural drawing sheet S201, giving more details on areas that
required additional excavation work.
Suffolk’s project manager, Armin Mumper, testified that
the revised S201 drawing confirmed Geocon’s direction and
clarified the specific locations along the property line that
required over-digging and then filling of the footings back to the
designed five-foot depth. Mumper attested that the information
in the RFC 62 supplement was necessary to proceed with and
finish the open trenches where the footings would be poured.
On October 28, 2011, Suffolk provided to LAUSD an “Initial
Notice of Issue/Event/Condition/Circumstance/Cause of Perceived
Delay . . .” regarding the over-excavation issue, which it referred
to as “Event Number 1.” On November 15, 2011, Suffolk
retracted the “Initial Notice Event No. 1,” stating: “This
transmittal will serve as a formal notice the Initial Notice Event
19
No1 dated Oct 28, 2011 for the additional over-ex, will be
retracted by Suffolk. RFC0062 provide[s] sufficient direction to
proceed with the over-ex at the footing. Please void the Initial
Notice of Event No. 1 from your files.”
LAUSD explains that the retraction was significant
because the contract required Suffolk to submit an initial notice
in order to assert a claim of delay. By voiding and retracting its
Initial Notice No. 1, Suffolk communicated that it did not view
RFC 62 as causing any delays.
Suffolk submitted contingency allocation proposal (CAP)15
16 for direct cost to over-excavate beyond five feet and backfill
the areas of the footings as specified by the response to RFC 62.
Suffolk also submitted CAP 36 for additional payment for the
extra time and delay required to get extra direction to perform
the extra work. In response, LAUSD issued a change order in the
form of contingency disbursement authorization (CDA) 12,
approving $18,750 for the direct cost to perform the extra work
related to the over-excavation issue (CAP 16), but did not approve
CAP 36 for associated delays.
Suffolk submitted TIA 2 to request a time extension related
to CAP 36. TIA 2 was submitted in August 2012 for work that
had been performed in November 2011. LAUSD repudiated a
negotiated change order for TIA 2 by never returning a copy
executed by LAUSD management. Suffolk’s TIA 2 delay claim at
trial alleged that the plans and specifications were incorrect
because Suffolk was required to perform over-excavation that
was not described in the plans.
15 A CAP was a change order request, which Suffolk would
submit for additional payments when extra work outside of the
contract was necessary.
20
At trial, LAUSD pointed to evidence that the contract
documents expressly stated that Suffolk should perform over-
excavation at the property lines. Specifically, section 7.1.6 of the
geotechnical investigation report required the depth of
excavations along property lines to be increased: “Where
excavation and compaction cannot be performed, such as adjacent
to property lines, foundation should be deepened as necessary to
bear in the undisturbed competent alluvium at or below a depth
of five feet.” The provision is repeated in section 7.4.6.
LAUSD claims the contract made it clear that the design
drawings did not encompass every detail of potential over-
excavation. Sections 3.1 and 3.2 of the general conditions state:
“Any item of Work mentioned in the Specifications and not shown
on the Drawings . . . shall be provided by Contractor as if shown
or mentioned in both,” and “it is not the intent . . . to show on the
Drawings all items of the Work described or specified in the
Specifications even if such items could have been shown and/or
specified.” Thus, LAUSD states it was not necessary for the
drawings to delineate the specific property lines where over-
excavation should be completed.
In addition, LAUSD presented evidence that undercut the
credibility of Suffolk’s TIA 2 claim by pointing out that Suffolk
belatedly submitted TIA 2 in August 2012 for events that
occurred in November 2011. Further, Suffolk claimed in TIA 2
that it had been unable to perform any foundation excavations for
17 days in November 2011 because it could not “proceed with
excavation” absent “formal direction” on excavation
requirements. Garawi responded to TIA 2 on September 5, 2012,
providing photographs showing Suffolk had performed the very
work it claimed it could not perform. On September 7, 2012,
Garawi further responded to TIA 2, indicating “Contrary to
21
Contractor’s statement . . . that Contractor ‘cannot proceed with
excavation of the concrete foundations without formal direction’,
on 10/28/11 concrete was paced at the two footings in question . . .
and Contractor continued to progress with the excavation of
footing[s] for lockers/MPR . . . .” (Boldface and italics omitted.)
On September 12, 2012, Suffolk responded to Garawi that,
while it continued with excavations in that area, it did not do so
at the property line where the deepening of footings was in
question. On September 14, Garawi responded with more
photographs refuting Suffolk’s claims, writing, “[T]ake a look at
the attached photos on progress of footing excavation on
11/15/11 . . . and let me know if you will be dropping this
argument . . . .” Garawi testified at trial that the photographs
showed that Suffolk was excavating the foundations along the
property lines. Though Suffolk did not respond to Garawi, it
instead resubmitted the same narrative in a revised TIA 2 claim
approximately one year later.
TIA’s 3 and 4—plumbing issues
At trial Suffolk asserted that it also encountered conflicts
in LAUSD’s drawings related to the plumbing underneath the
floor slab for the ES. Mumper testified that the conflict was in
LAUSD drawings, which showed plumbing pipes and concrete
occupying the same spaces: “the plumbing pipes were going
through the concrete foundations and the plans didn’t make
allowances for that to take place.” Mumper testified he could not
resolve this because “[w]e basically put the work in place as it’s
shown on the drawings.”
Suffolk asserts that it submitted a number of RFC’s
seeking clarification on how LAUSD wanted to resolve the
conflicts in the plans. For example, RFC 191 sought clarification
for the “[w]ater closet [to be] relocated to clear the footing.”
22
Mumper testified that the designers “actually moved the entire
toilet to get rid of the conflict,” a solution that could only be made
by the licensed designers for the project. In addition to changes
in the various RFC’s, LAUSD also issued a “bulletin” that showed
changes to the underground plumbing system. Bulletin 2 was
issued to resolve numerous issues, including all of the plumbing
issues defined in the bulletin.16
Suffolk submitted CAP 106 for approximately $62,000 for
direct costs for additional plumbing work required to address the
changes in bulletins 1 and 2, among others. LAUSD approved
CAP 106.17
Suffolk submitted TIA’s 3 and 4 to support time extension
requests for the delay necessary to resolve and implement the
underground plumbing changes, claiming it was unnecessary for
Suffolk to divide the conflicts in plumbing drawings into two
separate TIA’s, but it did so based on the relevant time periods.
16 LAUSD states that bulletins “may contain numerous
unrelated design revisions for different areas of the Project.” Also
the revisions in bulletin 2 addressed several separate parts of the
design and project. LAUSD asserts that in many cases, the
design revisions in bulletin 2 reduced Suffolk’s scope of work or
eliminated features from the design, adding that the fact that
several design issues are grouped into a single bulletin or paid for
by a single CAP does not indicate those design issues are
identical.
17 It is LAUSD’s position that CAP 106 paid Suffolk’s net
increased direct costs for a broad range of changed work, reduced
scope, and contained design-related clarifications on issues
unrelated to any of the issues in TIA 3, TIA 4, or bulletin 2.
Thus, LAUSD states, not all of the issues addressed in CAP 106
are identical, nor are they related to the same design issue or the
same area of the project.
23
TIA 3 addressed delays in December 2011 and TIA 4 addressed
delays in January 2012.
LAUSD repudiated a negotiated change order it drafted for
TIA’s 3 and 4 by never executing the final change order.
At trial, the jury found that the claim for TIA 3 arose from
incorrect plans and specifications, while the claim for TIA 4 did
not. Suffolk asserts on appeal that the jury made inconsistent
factual determinations based on the same evidence in finding
that the claim for TIA 3 arose from incorrect plans and
specifications while the claim for TIA 4 did not.
TIA 5—concrete footing delays
Suffolk submitted TIA 5 to LAUSD seeking a time
extension for the delay from the discovery of the concrete
cracking after the January 2012 pour, throughout the
implementation of the four mock pours. Suffolk submitted CAP’s
390R2 and 390.1 seeking roughly $3.3 million in additional costs
and impacts arising from that issue.
CAP 390.1 included Suffolk’s claims, while CAP 390 and its
later iterations included subcontractor claims that were being
passed through to LAUSD, including claims by Daum and Fisk.
LAUSD rejected TIA 5, CAP 390 and CAP 391.
PROCEDURAL HISTORY
Pleadings and pretrial orders
Suffolk filed the original complaint in this action against
LAUSD on April 1, 2014, alleging breach of contract, implied
contractual indemnity and seeking declaratory relief. LAUSD’s
demurrer to all causes of action was overruled as to the breach of
contract and indemnity claims.
On July 24, 2014, LAUSD filed its answer and asserted
affirmative defenses claiming, in part, that Suffolk’s alleged
24
damages were the result of the conduct of Suffolk and its
subcontractors. On November 14, 2014, Suffolk filed a first
amended complaint adding Daum as a defendant and alleging
contractual indemnity against Daum in the event LAUSD could
prove its contention that the concrete cracking was caused by
Daum’s poor workmanship.
On January 2, 2015, Daum filed a cross-complaint against
Suffolk for breach of contract, quantum meruit, open book
account, and violation of prompt payment statutes.
On November 7, 2016, the trial court bifurcated trial,
ordering a phase 1 trial to determine only liability for the
concrete cracking. Phase 2 of trial was to cover damages for the
concrete cracking issue, as well as liability and damages for all
other claims.
Phase 1 of trial
Phase 1 of trial commenced on January 30, 2017. The jury
returned a special verdict on February 15, 2017, finding that
Suffolk did all, or substantially all, of the significant things
required by its contract with LAUSD and that LAUSD breached
the implied warranty of correctness of plans and specifications by
providing project plans or specifications for the concrete footing
design that were not correct.
LAUSD brought a motion for JNOV and a motion for new
trial after the phase 1 verdict. In its JNOV motion, LAUSD
argued that no substantial evidence supported the jury’s special
verdict on liability. On August 30, 2017, the trial court provided
a written ruling rejecting this argument and denying the motion
for JNOV. In its motion for new trial, LAUSD raised numerous
claims including that the trial court erred by giving Suffolk’s jury
instruction regarding Public Contract Code section 1104 and
failing to give LAUSD’s proposed instruction on CACI 4510. The
25
trial court rejected LAUSD’s arguments and denied the motion
for new trial.
Phase 2 of trial
Before a different jury and a different judge, phase 2 of the
trial began on April 11, 2017. Two new parties participated in
the phase 2 trial: Fisk and Maya Steel Fabrication, Inc. (Maya),
each making pass-through claims.
On May 4, 2017, the jury rendered its special verdict that
LAUSD did not breach the implied warranty of correctness of
plans and specifications as to TIA 2 and TIA 4. The jury did find
that LAUSD breached the implied warranty of correctness of
plans and specifications as to TIA 3, but that the breach was not
a substantial factor in causing harm to Suffolk.
As to LAUSD’s withholding of $111,714 in retention from
Suffolk, the jury found that in December 2013 LAUSD had a good
faith basis to withhold the money from Suffolk.
The jury awarded Suffolk a total of $2,296,748.05 for TIA 5,
which included all amounts properly passed through on behalf of
subcontractors Fisk, Daum, and Maya. The jury allocated from
its total award to the various subcontractors: $1,046,479 to Fisk;
$699,635 to Daum; and $222,055 to Maya. The jury found that
$624,559.63 of Fisk’s award was not the responsibility of LAUSD.
Similarly, the jury found that $147,658 of Daum’s award was not
the responsibility of LAUSD.
Suffolk filed motions for new trial and for JNOV.
The motion for new trial, among other grounds, was made
on the ground that the phase 2 damage award was contrary to
the phase 1 verdict and undisputed facts presented in the phase 2
trial. The trial court denied Suffolk’s motion for new trial.
Suffolk’s JNOV motion was based in part on Suffolk’s
position that the jury erred in determining that LAUSD had a
26
good faith basis to withhold the retention of $111,714 in
professional services. The trial court granted this motion, finding
that, while at the time of the initial pour there was uncertainty
as to the cause of the concrete cracking, after the fourth mock
pour, LAUSD could not reasonably believe that the problem arose
from the contractor’s means and methods. The trial court
concluded that on this issue only a JNOV was appropriate.
Posttrial fee motions
Suffolk moved for attorney fees against LAUSD as the
prevailing party on its prompt payment penalty claim, pursuant
to Public Contract Code section 7107.
Daum moved for attorney fees against LAUSD and Suffolk
under Public Contract Code section 7107 and section 8.6.2 of the
subcontract.
On April 12, 2018, the trial court entered its “Order Re
Attorneys’ Fees and Prejudgment Interest” (attorney fees order),
finding that Suffolk was entitled to attorney fees from LAUSD
under Public Contract Code section 7107, subdivision (f), in the
amount of $400,000. The court awarded Daum the full amount of
its requested attorney fees, $775,523, from Suffolk.
Phase 3 of trial
The issue in phase 3 was whether Suffolk could compel
LAUSD to pay Daum’s attorney fee award pursuant to Suffolk’s
implied contractual indemnity or breach of contract causes of
action. The trial court determined that LAUSD was not liable to
Suffolk for Daum’s fees under either a theory of implied
contractual indemnity or breach of contract. Accordingly,
LAUSD’s motion was granted, and Suffolk’s motion was denied.
Notices of appeal
LAUSD filed a notice of appeal following phase 1 and the
posttrial motions on September 8, 2017. This court stayed the
27
appeal in a written order on December 15, 2017, to allow the trial
court to resolve remaining issues.
Suffolk filed a notice of appeal from the April 12, 2018
phase 2 judgment on May 23, 2018.
On May 7, 2019, the trial court filed a final amended
judgment on jury verdict and postverdict rulings.
Although both parties had previously appealed, both
parties filed notices of appeal following the entry of the final
amended judgment. Suffolk filed a notice of appeal from the
amended judgment on June 24, 2019. LAUSD filed a notice of
appeal of the amended judgment on June 26, 2019.
DISCUSSION
I. LAUSD’s direct appeal
LAUSD raises five issues in its appeal from the judgment,
three issues concerning phase 1 of trial and two issues concerning
phase 2 of trial. As to phase 1, LAUSD argues that the trial
court erred when it refused to give its modified proposed jury
instruction based on CACI No. 4510 concerning its affirmative
defense that Suffolk failed to competently perform its work, and
instead gave Suffolk’s special Public Contract Code section 1104
(section 1104) jury instruction concerning a public entity’s
responsibility for the completeness and accuracy of plans and
specifications. In addition, LAUSD argues that substantial
evidence did not support the phase 1 verdict.
As to phase 2, LAUSD argues that the trial court
improperly precluded it from presenting certain expert testimony
related to the good faith retention of funds and that the trial
court erred by granting JNOV in favor of Suffolk on the part of
the phase 2 verdict related to LAUSD’s good faith retention of
funds. Further, LAUSD argues that the trial court erred in
28
declining to give LAUSD’s proposed jury instruction regarding its
defense related to Suffolk’s licensure status.
We first address the issues concerning phase 1 of trial and
conclude (1) the special section 1104 instruction was erroneous
and prejudicial, therefore requiring retrial on the issue of liability
for the concrete cracking; (2) the CACI No. 4510 instruction, if
error, constituted harmless error; and (3) LAUSD’s substantial
evidence claim is moot, as the matter will be remanded for
retrial.
We next address the issues concerning phase 2 of trial and
conclude that the trial court erred in granting JNOV in favor of
Suffolk on the part of the phase 2 verdict related to LAUSD’s
good faith retention of funds. We find no error in the trial court’s
refusal to give LAUSD’s proposed jury instruction on Suffolk’s
licensure status.
A. Instructional error—phase 1
Instructional error is subject to a de novo standard of
review. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) It
is primarily a legal inquiry in which we need not give deference
to the trial court’s decision. (People v. Waidla (2000) 22 Cal.4th
690, 733.) “[W]here it is contended that the trial judge gave an
erroneous instruction,” we must “view the evidence in the light
most favorable to the claim of instructional error.” (Mize-
Kurzman v. Marin Community College Dist. (2012) 202
Cal.App.4th 832, 845 (Mize-Kurzman).)
However, the giving of an erroneous jury instruction should
not be disturbed unless, “‘after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice.’” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580
(Soule).) Instructional error is prejudicial in a civil case where
29
“‘“‘it seems probable’ that the error ‘prejudicially affected the
verdict.’”’” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 846.)
1. Suffolk’s special section 1104 jury instruction
a. Relevant factual background
One of LAUSD’s defenses on the concrete cracking issue
was that Suffolk was responsible for selecting the concrete mix
using its ingenuity and experience. LAUSD’s position was that if
nondefective concrete was poured by Suffolk using a different
concrete mix, the rat slab and Visqueen would have been
unnecessary. LAUSD argued that Suffolk did not prove that it
was impossible or impracticable to select a concrete mix that
would not have cracked in the absence of a rat slab and Visqueen.
In support of this argument, LAUSD presented expert
testimony from Radlinski, a concrete engineering and concrete
mix expert, who testified that the concrete mix had more water
than necessary and exceeded the maximum water limit. LAUSD
also presented evidence that Daum could have used admixtures
to reduce the cracking and failed to use the correct aggregate
composition within the mix.
Thus, in avoiding liability on the issue of the concrete
cracking, LAUSD relied in part on the premise that the selection
of the concrete mix was Suffolk’s responsibility and that the
selection of concrete mix was faulty.
b. Special instruction and section 1104
Suffolk’s special instruction No. 13 was based on section
1104.18 The instruction read: “No local public entity shall require
18 Section 1104 states: “No local public entity, charter city, or
charter county shall require a bidder to assume responsibility for
the completeness and accuracy of architectural or engineering
plans and specifications on public works projects, except on
30
a bidder to assume responsibility for the completeness and
accuracy of architectural or engineering plans and specifications
on public works projects.”
Section 1104 was enacted to prohibit a public entity from
transferring design responsibility to the contractor. The
legislative history shows that the Legislature accepted the long-
standing division of responsibilities on public construction
projects set forth in United States v. Spearin (1918) 248 U.S. 132(Spearin).19 However, the Legislature noted a “recent trend by
local entities to utilize contract provisions to transfer design
liability from architects to general contractors.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.
Bill No. 1314 (1999-2000 Reg. Sess.) as amended Sept. 2, 1999,
p. 3.) The Legislature noted that this trend ran “counter to the
clearly designated design build projects. Nothing in this section
shall be construed to prohibit a local public entity, charter city, or
charter county from requiring a bidder to review architectural or
engineering plans and specifications prior to submission of a bid,
and report any errors and omissions noted by the contractor to
the architect or owner. The review by the contractor shall be
confined to the contractor’s capacity as a contractor, and not as a
licensed design professional.”
19 Spearin is regarded as the seminal case setting forth the
division of responsibilities between a public entity and a
contractor. Spearin set forth the principle that “if the contractor
is bound to build according to plans and specifications prepared
by the owner, the contractor will not be responsible for the
consequences of defects in the plans and specifications.”
(Spearin, supra, 248 U.S. at p. 136.) This law is the foundation of
the cause of action for breach of implied warranty of correctness
of plans and specifications and is sometimes referred to as the
Spearin doctrine.
31
long-standing division of responsibilities on construction projects
which was formally recognized by the U.S. Supreme Court in
[Spearin].” (Ibid.) Due to this trend of contractual shifting of
responsibilities, the Legislature enacted section 1104 to prohibit
public entities from requiring bidders to assume such
responsibilities. The purpose of section 1104 was thus to prevent
public entities from attempting to contract around the Spearin
doctrine.
Case law interpreting section 1104 is sparse. However, the
few available cases support the premise that section 1104 is not
relevant to a claim for breach of warranty of the correctness of
plans and specifications. Instead, its purpose is to prevent public
entities from attempting to contract around their obligation to
provide correct plans and specifications. (Thompson Pacific
Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th
525, 553 (Thompson) [“Section 1104 prevents the public entity
from placing the risk of accuracy and completeness of the plans
and specifications upon the contractor. It says nothing about the
contractor’s burden to prove that the public entity breached the
warranty [of correctness].”].) In Thompson, a contractor hired by
a city to construct a public project brought an action against the
city to recover for extra work. When the city prevailed at trial,
the contractor appealed, arguing, in part, that the trial court
erred by declining to give the jury its proposed instruction based
on section 1104.20 The Thompson court rejected the contractor’s
20 The contractor’s proposed instruction read, “‘[The city] had
a duty to provide adequate plans and specifications. [Thompson]
had no responsibility for the adequacy of [the city’s] plans and
specifications, nor any duty to supplement any inadequacy of
32
argument, finding that the trial court did not err in refusing this
instruction. As the Thompson court noted, section 1104 is not
relevant to a contractor’s claim that a public entity breached the
warranty of correctness. (Thompson, at p. 553.)
In Los Angeles Unified School Dist. v. Great American Ins.
Co. (2010) 49 Cal.4th 739 (Great American), the Supreme Court
addressed in detail the requirements for a contractor’s claim
against a public entity when the contractor is misled by incorrect
plans and specifications and, as a result, submits a bid that is
lower than the contractor would have otherwise made. The Great
American court held that the contractor need not prove
affirmative fraudulent intent to conceal in order to recover
additional compensation for the public entity’s failure to disclose
material information. (Id. at pp. 753-754.) In explaining the
effect of section 1104, the Great American court stated,
“although . . . section 1104 prohibits local public entities from
requiring bidders to assume responsibility for the completeness
and accuracy of architectural or engineering plans and
specifications, public entities retain the power to contractually
disclaim responsibility for assumptions a contractor might draw
from the presence or absence of information.” (Great American,
at p. 752.) This language, which concerns a public entity’s
contractual powers, supports an interpretation of section 1104
that limits it to a formal or contractual shifting of responsibility.
The language of the statute, the legislative history, and the
limited case law available suggest that section 1104 is applicable
only where a public entity attempts, through contractual
language or other formal means, to require a bidder to assume
those plans and specifications.” (Thompson, supra, 155
Cal.App.4th at p. 552.)
33
responsibility for the completeness and accuracy of architectural
or engineering plans and specifications on a public works project.
Suffolk has made no such claim in this case.
c. LAUSD’s arguments
LAUSD argues that there was no basis for the trial court to
give the section 1104 instruction, since LAUSD’s contract did not
transfer design responsibility to Suffolk. In fact, the instruction
was irrelevant, as it has no application to a claim for breach of
the implied warranty of correctness. (Thompson, supra, 155
Cal.App.4th at p. 553.) LAUSD argues that the broad instruction
allowed Suffolk to argue that requiring Suffolk to competently
choose an appropriate concrete mix violated section 1104.
LAUSD argues that there is no legal precedent that prohibits a
government agency from allowing the contractor the
responsibility and flexibility to use its expertise to select a
concrete mix that best suits its methods and the conditions of the
project.
i. Irrelevance of section 1104
LAUSD argues that the contract specifications for the
concrete mix, found in specifications 02317 and 03300, did not
require Suffolk to assume responsibility for the correctness of
LAUSD’s design.21 Instead, these were proper objective
21 LAUSD points to numerous contractual provisions that set
general performance specifications for the concrete mix—not
specific design formulas. specification 03300, section 1.2A.9,
required compliance with ACI Publication 309, “Recommended
Practice for Consolidation of Concrete.” ACI 309.2R-98, section
2.2 states, “Specifications should be sufficiently broad in scope to
permit adjustments of mixture proportions . . . Accepted mixture
proportions may need adjustments to produce the desired
34
performance standards, which allowed the contractor to select the
proportions and ingredients in the concrete mix within the
parameters of LAUSD’s design. This allowed Suffolk, the entity
with the most extensive expertise in performing concrete work, to
select the appropriate concrete mix. LAUSD points to federal
and foreign authority suggesting that the Spearin doctrine does
not apply to performance specifications, but only to design
specifications.22 LAUSD presented testimonial evidence that an
concrete characteristics and to minimize consolidation problems.”
Daum’s concrete expert, Dr. Mor, testified that such performance
specifications are preferred and agreed that the contract in this
case gave parameters for the concrete mix, but still allowed the
contractor to determine the overall mix. Specification 03300,
section 1.5A, required Suffolk to use a “registered civil engineer
with experience in concrete mix design [to] select the relative
amounts of ingredients to be used as basic proportions of the
concrete mixes proposed for use under the provisions of ACI
318 . . . .” Specification 03300, section 2.2D provided that
“[p]roportions of materials shall provide workability and
consistency to permit concrete to be placed readily into forms and
around reinforcement under conditions of placement to be
employed, without segregation or excessive bleeding.” ACI 318-
08, section 5.2.1, provides that concrete mix proportions “shall”
provide workability “without segregation or excessive bleeding.”
The specifications also allowed Suffolk to use admixtures in the
concrete mix and set ranges for the sizes of the aggregates.
22 “While there are two types of specifications, design and
performance, only a design specification creates an implied
warranty. [¶] Performance specifications ‘set forth an objective
or standard to be achieved, and the successful bidder is expected
to exercise his ingenuity in achieving [it].’” (James Talcott
Constr. Inc. v. United States (Ct.Cl. Mar. 4, 2019, No. 14-427C)
2019 WL 1040383, *4; see also Aleutian Constructors v. United
35
experienced contractor will have a wealth of knowledge about the
performance of different concrete mixes in different
circumstances and that the contract gave the contractor leeway
to determine the best mix for the construction. Suffolk did not
claim that these contractual provisions regarding the parameters
for the concrete mix violated section 1104.
LAUSD argues that the instruction was not necessary to
establish any of the elements of Suffolk’s claim for breach of
implied warranty of correctness of plans and specifications.23
Instead, as explained above, section 1104 was designed to
prohibit “local entities [from] utili[zing] contract provisions to
transfer design liability from architects to general contractors.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis
of Assem. Bill No. 1314 (1999-2000 Reg. Sess.) as amended
Sept. 2, 1999, p. 3.) Thus, LAUSD argues, section 1104 was
enacted to prevent public agencies from contracting around the
States (Ct.Cl. 1991) 24 Cl.Ct. 372, 390; Haehn Management Co. v.
United States (Ct.Cl. 1988) 15 Cl.Ct. 50, 56; District of Columbia
v. District of Columbia Contract Appeals Bd. (D.C.App. 2016) 145
A.3d 523, 536; Florida Bd. of Regents v. Mycon Corp.
(Fla.Dist.Ct.App. 1995) 651 So.2d 149, 153.)
23 The breach of implied warranty of correctness applies
where plans and specifications include an incorrect
representation. Under such circumstances, a contractor “‘may
recover . . . for extra work or expenses necessitated by the
conditions being other than as represented.’” (Great American,
supra, 49 Cal.4th at p. 748.) “This rule is mainly based on the
theory that the furnishing of misleading plans and specifications
by the public body constitutes a breach of an implied warranty of
their correctness.” (Souza & McCue Constr. Co. v. Superior Court
(1962) 57 Cal.2d 508, 510-511.) The Souza court cited the
seminal 1918 decision in Spearin, supra, 248 U.S. 132, 136-137.
36
implied warranty of correctness. It did not change the
fundamental elements or scope of a claim for breach of implied
warranty of correctness. (Thompson, supra, 155 Cal.App.4th at
p. 553.)
ii. Prejudice
LAUSD argues that Suffolk improperly used the special
section 1104 instruction in closing argument. Specifically,
Suffolk argued: “This is a California statute, a code section, so the
contract can’t override it. Any provision that the school district
stands up this afternoon and says, well, this requires the
contractor to adjust the mix to fix this problem is in violation of
the statute.”
Suffolk continued that, “essentially, now [LAUSD is] saying
the contractor should have designed the [concrete] mix,” but “the
public agency cannot transfer this design responsibility to the
contractor.”
LAUSD argues that Suffolk used its section 1104
instruction to argue that by not giving Suffolk a precise recipe for
the concrete mix, LAUSD violated section 1104 by unlawfully
requiring the contractor to assume responsibility for the
completeness and accuracy of LAUSD’s plans and specifications.
LAUSD argues that this premise, and Suffolk’s use of its section
1104 instruction, were improper and misstated the law.
d. Suffolk’s counterarguments
Suffolk takes a broader interpretation of section 1104,
arguing that it is not limited to a contractual shifting of
responsibility for the completeness and accuracy of architectural
or engineering plans and specifications. Suffolk argues that
section 1104 places the burden on the public entity to issue
correct and complete design plans and prohibits the public entity
from requiring the bidder to assume responsibility for the
37
completeness and accuracy of such plans and specifications.
Suffolk takes the position that charging LAUSD with
responsibility for design errors and omissions is consistent with
section 1104, and the instruction was relevant to LAUSD’s
contention that Suffolk should have taken responsibility to
develop a new concrete mix to solve the cracking problem.
Suffolk points out that LAUSD argued that Suffolk had a
responsibility to alter the concrete mix to attempt to fix the
concrete cracking problem, but the cracking problem ultimately
was resolved by the addition of a water barrier. Suffolk argues
that this attempt to shift design responsibility to Suffolk was
contrary to section 1104 and justified the need for the instruction.
With this argument, Suffolk essentially asks us to adopt its
view of the facts—that the cracking was caused by a design
flaw—specifically, the failure of LAUSD to include a rat slab and
Visqueen in the design. However, it ignores LAUSD’s factual
argument below, which was that, had Suffolk provided a proper
concrete mix, the rat slab and Visqueen would have been
unnecessary. Suffolk cites no law suggesting that section 1104
rendered the contract provisions regarding Suffolk’s flexibility to
determine the proper concrete mix unlawful. Nor does it cite any
law suggesting that placing the ultimate responsibility for the
concrete mix on the contractor is an improper shifting of
responsibility under section 1104.
Suffolk further points out that changes to the concrete mix
in both mock 2 and mock 3 did not eliminate the cracking, thus
the problem was not remedied by a mix alteration in any event.24
24 Mock 2 changed only the concrete supplier, not the concrete
mix. Mock 3 used a higher-strength concrete mixture that had
38
Again, Suffolk asks us to adopt its view of the facts and does not
address the problem of whether inclusion of the section 1104
instruction, and Suffolk’s improper use of the instruction,
prevented the jury from placing the blame on Suffolk’s selection
of the concrete mix—which was one of LAUSD’s main defenses to
this factual conclusion.
e. Analysis
The sole issue to be determined in phase 1 of trial was
whether LAUSD breached the implied warranty. LAUSD is
arguing that (1) the instruction was irrelevant, as section 1104 is
not relevant to a claim of breach of implied warranty of
correctness; and (2) the way that Suffolk used the instruction was
misleading to the jury, and therefore prejudicial.
i. Relevance
Suffolk did not contend that the contract expressly declared
Suffolk responsible for any architectural or engineering plans.
Nor did Suffolk contend that those provisions of the contract,
which gave Suffolk leeway to choose the concrete mix, violated
section 1104. Instead, the only issue before the jury in phase 1
was whether LAUSD breached the implied warranty of
correctness. Section 1104 is not relevant to such a claim.
(Thompson, supra, 155 Cal.App.4th at p. 553.)
A trial court “has the duty to instruct on general principles
of law relevant to the issues raised by the evidence.” (People v.
Saddler (1979) 24 Cal.3d 671, 681.) It has “the correlative duty
‘to refrain from instructing on principles of law which not only
been used for an adjacent parking structure. However, Suffolk
points to no evidence in the record that mock 3 addressed the
concerns set forth by LAUSD’s experts concerning water content,
possible use of an admixture, and aggregate level of the mix.
39
are irrelevant to the issues raised by the evidence but also have
the effect of confusing the jury or relieving it from making
findings on relevant issues.’” (Ibid.)
Section 1104 is not relevant to Suffolk’s claim of breach of
implied warranty, therefore the trial court committed error in
giving the instruction. (People v. Guiton (1993) 4 Cal.4th 1116,
1129 [“It is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the
case.”].) However, such error is subject to reversal only if it was
prejudicial to the appealing party. When a jury receives an
improper instruction in a civil case, “prejudice will generally be
found only ‘“[w]here it seems probable that the jury’s verdict may
have been based on the erroneous instruction . . . .”’” (Soule,
supra, 8 Cal.4th at p. 574.)
ii. Prejudice
Suffolk used section 1104 to declare that LAUSD alone was
responsible for choosing the concrete mix and was not allowed to
shift that burden to Suffolk. Suffolk essentially used the
instruction to argue that LAUSD was breaking the law by
suggesting Suffolk was responsible for choosing an appropriate
concrete mix and that such action wrongly transferred design
responsibility to the contractor.
In its closing argument, Suffolk argued:
“And essentially, now they’re saying the contractor should
have designed the mix further to make up for the error that was
left by KPFF. [¶] . . . [¶]
“And there’s a jury instruction that’s right on point.
“‘No local public entity shall require a bidder to assume
responsibility for the completeness and accuracy of the
engineering plans.’
40
“In other words, you the public agency cannot transfer this
design responsibility to the contractor. Why? Because we want
the smart people doing this. We want the people with the stamps
doing this, not the contractors. These are public buildings used
by the public and we don’t want the designers to shirk their
responsibilities and hand this off to the contractors.
“And this is a California statute, a code section, so the
contract can’t override it. Any provision that the school district
stands up this afternoon and says, well, this requires the
contractor to adjust the mix to fix this problem is in violation of
the statute.”
Suffolk emphasized again in its rebuttal:
“Clearly, we’ve seen there’s a Public Contract Code section
that says the contract—the owner can’t shift it. And you know
why that section exists? Why do we have any statute? It’s to
prevent people from doing things like they’ve been doing.
“The reason we have that statute is because owners have
tried for years to shift that design responsibility to the contractor.
And the state spoke and said you can’t do that. The design must
stay with the designers, the people with the stamps.”
This argument is at odds with both the language of the
contract and the testimony at trial—all of which suggested that
Suffolk, not LAUSD, was responsible for choosing the concrete
mix within the parameters set by LAUSD’s designers and
engineers. The testimony at trial, including testimony from
Daum’s own expert that it was acceptable, indeed “preferred,”
that the contractor be permitted to choose the specific concrete
mix, undermines Suffolk’s position on appeal that this
41
responsibility was wrongly shifted to Suffolk.25 Suffolk’s special
section 1104 instruction allowed Suffolk to improperly argue that
LAUSD’s affirmative defense, which shifted blame to Suffolk for
providing a faulty concrete mix, was in violation of the law.
In reviewing instructional error, we must view the evidence
in the light most favorable to the claim of instructional error.
(Mize-Kurzman, supra, 202 Cal.App.4th at p. 845.) Here, the
dispute between LAUSD and Suffolk was whether LAUSD
breached the warranty of correctness by providing faulty plans.
As part of its defense, LAUSD argued to the jury that it was not
faulty plans, but faulty workmanship on the part of Suffolk, that
caused the concrete cracking. Among its arguments that
Suffolk’s workmanship was at fault was LAUSD’s claim that
Suffolk provided an improper concrete mix. Through the use of
the irrelevant special section 1104 instruction, Suffolk was
permitted to argue that shifting responsibility for the concrete
mix to Suffolk was illegal.
We conclude that it is probable that this error prejudicially
affected the verdict. (Mize-Kurzman, supra, 202 Cal.App.4th at
p. 846 [instructional error is prejudicial in a civil case where “‘“‘it
seems probable’ that the error ‘prejudicially affected the
verdict’”’”].) We must consider LAUSD’s evidence on this point,
25 Daum’s expert, Mor, testified that a performance
specification is one that tells the concrete contractor, “You need to
provide concrete that will do what—something that we want it to
do. We don’t tell you how to do that. For example, you can tell
me, ‘I want concrete that is 4,000 PSI strong.’ I’m not telling you
how to mix it. That’s up to you.” Mor was then asked, “And you
believe that a performance specification is a beneficial, preferred
way to have a concrete specification?” Mor responded, “I believe
so, yes.”
42
which suggested an improper concrete mix, and view it in the
light most favorable to LAUSD. (Id. at p. 845 [“Where it is
contended that the trial judge gave an erroneous instruction,” we
must “view the evidence in the light most favorable to the claim
of instructional error.”].) We therefore assume the jury may have
been persuaded by LAUSD’s argument had it not been informed
that it was illegal under section 1104. Therefore, not only was
the instruction improper, we find it reasonably probable that the
error affected the verdict.
Due to this instructional error, the phase 1 verdict must be
reversed. However, for the benefit of the parties upon retrial, we
review the other claimed instructional error in phase 1.
2. LAUSD’s modified CACI No. 4510 instruction
a. Relevant factual background
As part of its phase 1 defense, LAUSD contended that the
failure by Suffolk and Daum to perform competently and within
LAUSD’s specifications caused the defective cracked
foundations.26 LAUSD sought to submit a modified version of
CACI No. 4510 to the jury explaining its defense that if Suffolk
26 LAUSD put forth two affirmative defenses based on this
theory. Its eighth affirmative defense, titled
“Intervening/Superseding Cause,” asserts that “[t]o the extent
that the alleged injuries and damages sustained by [Suffolk], if
any, were caused by the intervening and superseding actions of
others, such intervening and superseding actions bar and/or
diminish [Suffolk]’s recovery, if any, against LAUSD.” LAUSD’s
29th affirmative defense, titled “Comparative Fault,” asserts, “To
the extent any injuries alleged in the Complaint were caused, in
whole or in part, by [Suffolk] or a third party’s negligent
performance of the contract, LAUSD’s liability, if any, to [Suffolk]
must be barred or reduced in proportion to the amount of
negligence or other fault attributable to [Suffolk] or others.”
43
suffered harm or damage, it was the result of Suffolk’s failure to
comply with the contract specifications rather than LAUSD’s
specifications or design.
Normally, CACI No. 4510 is framed as an affirmative
showing by a plaintiff alleging that a contractor caused a
construction defect.27 LAUSD’s modified proposed instruction
read: “As an affirmative defense, LAUSD claims that Suffolk and
Daum failed to install the concrete competently and failed to use
the proper materials for the Project. To establish this claim,
LAUSD must prove all of the following: [¶] (1) That Suffolk
and/or Daum failed to perform their work competently and/or
provide the proper materials by pouring concrete that was
deficient and did not meet contract specifications, and [¶] (2)
That Suffolk and/or Daum’s failure was a substantial cause of the
damages claimed by Suffolk and/or Daum.”
The trial court declined to give LAUSD’s special instruction
No. 4510. The court explained, “that was really in the same
27 CACI No. 4510 typically reads:
“[Name of plaintiff] claims that [name of defendant] failed
to [perform the work for the [project . . . ] competently/[or] use the
proper materials for the [project . . . ]. To establish this claim,
[name of plaintiff] must prove all of the following:
“1. That [name of defendant] failed to [perform . . . ] work
competently/[or] provide the proper materials] by [describe
alleged breach . . . ]; and
“2. That [name of plaintiff] was harmed by [name of
defendant]’s failure.” (CACI No. 4510 (2023 ed.) p. 1271.)
44
nature as Suffolk’s No. 1. And so the court said it would give
either both or neither, and LAUSD chose neither.”28
LAUSD argues that the trial court erroneously required
LAUSD to assent to Suffolk’s improper instruction No. 1 in order
to have LAUSD’s own instruction given. LAUSD contends that
tying the two instructions together was error because it violates
the fundamental rule that a party is entitled to instructions
supported by the law and facts. (Ayala v. Arroyo Vista Family
Heath Center (2008) 160 Cal.App.4th 1350, 1358 (Ayala).)
LAUSD argues that the trial court should have independently
evaluated the two instructions on their own merits rather than
forcing LAUSD to compromise its right to receive a proper
instruction by agreeing to what LAUSD argues is an improper
instruction.29
b. Applicable law
Parties are entitled to instructions that explain the theories
advanced in pleadings and supported by the evidence. (Code Civ.
Proc., §§ 607a, 608; Ayala, supra, 160 Cal.App.4th at p. 1358.) It
is “improper to give an instruction which lacks support in the
evidence, even if the instruction correctly states the law.”
(LeMons v. Regents of University of California (1978) 21 Cal.3d
869, 875.) In reviewing the evidence supporting the jury
instruction, “we assume the jury might have believed appellant’s
28 Suffolk’s proposed Special Instruction No. 1 stated: “Plans
and/or specifications for a project are not ‘correct’ if the contractor
follows the plans and/or specifications but still encounters
difficulty in constructing the project.”
29 Suffolk does not appeal the propriety of the trial court’s
decision to decline its Special Instruction No. 1, therefore we do
not directly address the propriety of that instruction.
45
evidence and, if properly instructed, might have decided in
appellant’s favor.” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075,
1087.) Thus, “‘we state the facts most favorably to the party
appealing the instructional error alleged, in accordance with the
customary rule of appellate review.’” (Ibid.) However, the
instructional error is “‘prejudicial reversible error only if it is
reasonably probable the appellant would have received a more
favorable result in the absence of the error.’” (Id. at pp. 1087-
1088.)
c. LAUSD’s evidence supporting the
modified CACI No. 4510 instruction
LAUSD cites several categories of evidence that it
presented to the jury in support of its defense that Suffolk was
responsible for the cracked foundations due to errors made by
Suffolk or Daum. The evidence included the testimony of Mark
Bogh, an expert concrete contractor. Bogh testified that one of
Daum’s significant errors was its failure to properly or
adequately vibrate the concrete during pours. Bogh opined that
the contractor should systemically vibrate the concrete as soon as
it is poured and referred to photographs and video footage to
show that Daum was pumping concrete into place without
performing sufficient or proper vibration. Bogh testified that the
concrete work was done haphazardly, conducted “two times too
fast,” and was not fully performed. Bogh did not believe there
would have been any significant cracking at all if they had
vibrated the concrete for a longer period. Bogh also testified that
Daum understaffed the pour. Due to the rapid pace of the pour,
and an insufficient number of crew members vibrating, the
vibrators could not keep up with the pour.
In addition to these problems, Bogh testified that Daum’s
workers used undersized vibrators. Bogh testified, “I would have
46
had the bigger vibrators, [and] I would have four people doing
vibration instead of two.” Bogh also explained that Daum should
have revibrated after its initial pass.
In addition to vibration, LAUSD provided evidence that
Daum selected a concrete mix that did not comply with LAUSD’s
contractual specifications. LAUSD’s concrete engineering and
concrete mix expert, Radlinski, testified that LAUSD’s failure to
comply with the contractual specifications caused or contributed
to the cracking. Radlinski’s analysis showed that Daum’s
concrete mix used more water than was necessary. Radlinski
also testified that Daum’s selected concrete mix failed to use the
required aggregate composition. Finally, Radlinksi testified that
Daum should have utilized an admixture, which would “allow[]
the contractor to reduce the bleeding.”
Another supporting basis for the CACI instruction was
LAUSD’s evidence that Suffolk and Daum ignored the
specifications requiring the use of forms to encase the concrete
pours. Bogh testified that, based on specification 02317, Daum
should have used forms for the foundation pours 30 A form “keeps
the concrete from leaking or touching the soil.” Bogh testified
that the contractor in this case did not install forms for the
foundation. In reading the contract and following the chain of
events, Bogh testified: “So they went from supposed to put forms
in, didn’t put forms in, had problems, and then at the end of the
30 Section 3.4A of specification 02317 required the use of
forms for the sides of slab foundations, stating, “[f]orm sides of
footings, pads, grade beams, and slab foundations, unless
otherwise indicated. Provide excavations of sufficient size to
permit installation and removal of forms and other Work as
required.”
47
day they put plastic in which replaces a form because a form
keeps the concrete from leaking or touching the soil. So they
kind of went full circle all the way back around.” Bogh testified
that it was the contractor’s decision to pour the concrete against
the earth instead of using a form in the first place.
Based on this evidence, LAUSD argues that CACI No. 4510
was crucial to provide the jury with explanation that Suffolk
could only recover on its breach of implied warranty claim if
Suffolk performed its concrete work properly. LAUSD argues
that the trial court’s refusal to give the instruction deprived it of
the opportunity to have the jury consider this basic theory of the
case. (Soule, supra, 8 Cal.4th at pp. 573-574.) LAUSD argues
that the trial court’s failure to give this instruction was
prejudicial because it was critical to LAUSD’s defense.
In contrast, LAUSD argues, Suffolk’s special instruction
No. 1 was not supported by the evidence and did not accurately
reflect the law. LAUSD argues that the word “difficulty” in
Suffolk’s special instruction No. 1 was hopelessly vague, and the
instruction improperly attempted to shift responsibility for
deficient workmanship away from Suffolk by suggesting to the
jury that any difficulty inherently arose from faulty plans.
d. Suffolk’s arguments
Suffolk agrees that CACI No. 4510 involves breach of an
implied covenant to perform work in a good and competent
manner. Suffolk argues that, as modified, the instruction was
overbroad and confusing with too many conjunctions. Further,
Suffolk argues, the modified CACI No. 4510 instruction
presupposed that the plans were correct and did not take into
account a situation where after following the specifications, the
concrete does not perform as expected because of a design error.
To address these shortcomings, Suffolk offered its proposed
48
special instruction No. 1 to counterbalance CACI No. 4510.
Suffolk proposed its special instruction No. 1 to be given in
tandem with CACI No. 4510 so that the contractor could argue
that the plans cannot be correct if the contractor followed the
plans and the defect still occurred. Suffolk points out that the
trial court agreed and properly decided to give either both or
neither.
Suffolk offers no law suggesting that the trial court’s offer
that the parties agree to both instructions or neither instruction
was proper. However, Suffolk argues that any error was
harmless because the special verdict form already addressed the
point LAUSD was trying to make. Question 1 in the special
verdict form asked whether or not Suffolk had substantially
performed its obligations under the contract to construct the
footings.31 Suffolk further points to other jury instructions that
instructed the jury on LAUSD’s defenses. Specifically,
instruction No. 21 stated: “If you find Suffolk has proven the
elements of its claims by a preponderance of the evidence, you
must then consider LAUSD’s affirmative defense of mitigation.
LAUSD must prove mitigation by a preponderance of the
evidence. [¶] Suffolk is not entitled to recover for harm that
LAUSD proves Suffolk could have avoided with reasonable efforts
or expenditures. You should consider the reasonableness of
Suffolk’s efforts in light of the circumstances facing it at the
time.”
31 Question No. 1 asked the jury, “Did Suffok . . . do all, or
substantially all, of the significant things that its Contract with
[LAUSD] required Suffolk to do to construct the elementary and
middle school footings?” The jury checked “YES.”
49
Instruction No. 22 informed the jury that “[i]t was Suffolk’s
responsibility to manage, schedule, coordinate, and supervise the
work of its subcontractors and Suffolk was responsible for all acts
and omissions of its subcontractors.”
Suffolk also points to instruction No. 303, which indicates
that in order to prove its breach of contract claim against
LAUSD, Suffolk must first prove that it “did all, or substantially
all, of the significant things that the contract required it to do.”
Finally, Suffolk points to instruction No. 4500, which sets forth
the essential factual elements of the breach of implied warranty
of correctness of plans.
e. Analysis
Suffolk does not disagree that LAUSD was entitled to a
proper instruction regarding its defense that Suffolk’s errors and
omissions led to Suffolk’s damages. However, Suffolk argues that
the proposed statement of the law regarding breach of implied
covenant to perform work in a competent manner was erroneous
and needed to be “counterbalanced” with Suffolk’s own opposing
instruction. Suffolk provides no legal authority that such a
“counterbalancing” of a purportedly improper instruction is an
acceptable way to address a flawed instruction. Instead, the
appropriate strategy would be to propose edits to the instruction
that would bring it within the realm of legality. (Ayala, supra,
160 Cal.App.4th at p. 1358 [“‘“[P]arties have the ‘right to have the
jury instructed as to the law applicable to all their theories of the
case which were supported by the pleadings and the evidence,
whether or not that evidence was considered persuasive by the
trial court.’”’”].)
However, we agree that any error was harmless under the
circumstances. LAUSD’s affirmative defense that any harm to
Suffolk should be mitigated by Suffolk’s own failures was
50
addressed in other instructions. First, in order to find in favor of
Suffolk at all, the jury was first required to find that “Suffolk did
all, or substantially all, of the significant things that the contract
required it to do.” Further, instruction No. 21 instructed the jury
that if it found that Suffolk proved its claims, the jury “must then
consider LAUSD’s affirmative defense of mitigation.” The
instruction further provided that Suffolk could not recover for
harm “that LAUSD proves Suffolk could have avoided with
reasonable efforts or expenditures.” While not stated in the
traditional format for breach of implied covenant to perform work
in a good and competent manner, these instructions sufficiently
permitted the jury to find in LAUSD’s favor on its faulty
workmanship defense.
B. Substantial evidence—phase 1
LAUSD argues that the portion of the phase 1 judgment
based on the phase 1 verdict is not supported by substantial
evidence. Because we reverse the phase 1 verdict and remand for
a new trial on the grounds of prejudicial instructional error, we
do not need to address this contention of error. (See, e.g., People
v. Jackson (2022) 75 Cal.App.5th 1, 27.)
C. Grant of Suffolk’s JNOV—phase 232
1. Relevant law and standard of review
JNOV motions are governed by Code of Civil Procedure
section 629, which provides, in part, that a trial court “shall
render judgment in favor of the aggrieved party notwithstanding
the verdict whenever a motion for a directed verdict for the
32 Although our reversal of the phase 1 verdict and remand
for retrial will moot some of the issues raised in phase 2, the
issue of LAUSD’s good faith retention of the $111,714 is separate
from the liability issue. Therefore we address it.
51
aggrieved party should have been granted had a previous motion
been made.” (Code Civ. Proc., § 629, subd. (a).) A JNOV acts as a
demurrer to the evidence. A JNOV “can be sustained only when
it can be said as a matter of law that no other reasonable
conclusion is legally deducible from the evidence, and that any
other holding would be so lacking in evidentiary support that the
reviewing court would be compelled to reverse it, or the trial
court would be compelled to set it aside as a matter of law . . . .”
(Moore v. City & County of San Francisco (1970) 5 Cal.App.3d
728, 733.) In considering a JNOV motion, the trial court must
view the evidence in the light most favorable to the party
securing the verdict. (Sweatman v. Department of Veterans
Affairs (2001) 25 Cal.4th 62, 68.) The JNOV motion may be
granted only “if it appears from the evidence, viewed in the light
most favorable to the party securing the verdict, that there is no
substantial evidence in support.” (Ibid.)
“The trial court’s discretion in granting a motion for
judgment notwithstanding the verdict is severely limited.” (Teitel
v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603
(Teitel).) “‘“The trial judge cannot reweigh the evidence [citation],
or judge the credibility of witnesses. [Citation.] If the evidence is
conflicting or if several reasonable inferences may be drawn, the
motion for judgment notwithstanding the verdict should be
denied.”’” (Ibid.)
“‘“As in the trial court, the standard of review [on appeal] is
whether any substantial evidence—contradicted or
uncontradicted—supports the jury’s conclusion.”’” (Webb v.
Special Electric Co., Inc. (2016) 63 Cal.4th 167, 192.)
52
2. Relevant background
At trial Suffolk sought prompt payment penalties pursuant
to Public Contract Code section 7107, subdivision (f).33 The
phase 2 jury determined, among other things, that LAUSD had a
good faith basis to withhold $111,714 in retention from Suffolk in
December 2013.34 The $111,714 represented LAUSD’s
33 Public Contract Code section 7107, subdivision (c) provides
that “[i]n the event of a dispute between the public entity and the
original contractor” the public entity may withhold from the
contractor’s payment a certain percentage of the disputed
amount. The “dispute exception excuses payment only when a
good faith dispute exists over a statutory or contractual
precondition to that payment, such as the adequacy of the
construction work for which the payment is consideration.”
(United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4
Cal.5th 1082, 1085.) Public Contract Code section 7107,
subdivision (f) provides: “In the event that retention payments
are not made within the time periods required by this section, the
public entity or original contractor withholding the unpaid
amounts shall be subject to a charge of 2 percent per month on
the improperly withheld amount, in lieu of any interest otherwise
due. Additionally, in any action for the collection of funds
wrongfully withheld, the prevailing party shall be entitled to
attorney’s fees and costs.”
34 Although the phase 1 jury found in favor of Suffolk as to
liability for the cracking issue, the inquiry into whether LAUSD
was justified in withholding the payment is a separate issue.
(FEI Enterprises, Inc. v. Yoon (2011) 194 Cal.App.4th 790, 805
(FEI) [“Whether the nonpaying party might ultimately be
vindicated is not the issue. The critical question should be the
legal tenability of the justification for nonpayment that was
asserted.”].)
53
investigation costs to determine the cause of, and solution for, the
concrete cracking.
Suffolk challenged the phase 2 verdict with a JNOV
motion, arguing that “the jury in Phase 2 had no basis upon
which to find good faith that would be needed to support a verdict
in [LAUSD’s] favor” on the issue of good faith. Suffolk took the
position that Garawi’s testimony that LAUSD had a good faith
basis to withhold the retention was a subjective belief that was
not reasonable nor supported by objective evidence. Suffolk
suggested that LAUSD “adopted the subjective opinion of a
person not present or adequately knowledgeable” in withholding
the retention. Suffolk also argued that the evidence did not
support LAUSD’s position that it had a good faith basis for
retention of funds. In short, Suffolk argued that “[b]y October
2012, KPFF agreed ‘[i]t is likely that the adverse effect on the
concrete is due to rapid loss of water from the fresh concrete into
the soil’—not the result of the contractor means and methods.”
The trial court accepted Suffolk’s arguments, finding “it is
apparent that the jury erred in its conclusions regarding
LAUSD’s objective good faith in retaining $111,714 for
professional services it engaged to determine the cause of the
cracking.” In granting the JNOV, the court noted that it was
true that “at the time of the initial pour of concrete there was
uncertainty as to the cause of the cracking.” While there
continued to be uncertainty until the time of the fourth mock
pour, the court stated that the addition of the rat slab and
Visqueen in the fourth mock pour was a design change. The
court stated: “Although this was not a design change requiring
the approval of the State Architect, it did require new drawings
from LAUSD’s engineers (KPFF) . . . . When those new plans
were followed the cracking did not occur. Further KPFF itself
54
opined on October 18, 2012 that, ‘the foundation issues resulted
from an unfavorable reaction between the concrete and the soils,
which it characterized as a “rare occurrence” and uncommon
condition.’” After the fourth mock pour and October 18, 2012
memorandum, the court concluded, LAUSD could not have
objectively been of the view that the problem arose from the
contractor’s means and methods. The court stated that LAUSD
could point to “no objective evidence after KPFF’s October 18,
2012 report was issued that could support its continued belief
that the issue lay with the contractor.” The trial court found that
a JNOV on this issue was appropriate.
3. LAUSD’s arguments and evidence
LAUSD argues that the trial court’s granting of the JNOV
ran afoul of the narrow review a trial court may conduct (citing
Teitel, supra, 231 Cal.App.3d at p. 1603), adding that the
evidence presented at trial fully supported the jury’s finding that
it had a good faith basis in December 2013 to withhold the
$111,714 in retention from Suffolk. The evidence LAUSD relies
upon falls into several categories, including (1) improper methods
of vibrating the concrete and failure to revibrate the concrete; (2)
failure to use an admixture in the concrete mix; and (3) improper
water content, which exceeded the maximum water content set
by contract specifications. Further, LAUSD argues that it
presented evidence refuting Suffolk’s position that the cracking
resulted from a design error. We briefly discuss the evidence
presented to the phase 2 jury below.
The first category of evidence concerned LAUSD’s position
that Suffolk did not properly vibrate the concrete. LAUSD points
to evidence showing that it explained to the jury that the project
specifications gave Suffolk broad responsibility to use Suffolk’s
preferred means and methods, including selecting its preferred
55
means and methods for vibrating the freshly poured concrete.
Duncan, a KPFF engineer, testified that KPFF raised improper
vibration as a potential issue with respect to the cracking. As a
result, Duncan testified, KPFF provided citations to ACI about
concrete vibration. Holliday, Daum’s project manager, also
testified that KPFF cited certain provisions of the ACI regarding
vibration to him at a meeting, and he agreed to review them.
Holliday also acknowledged that Daum did not make any
changes to the concrete vibration or installation techniques after
reviewing the pertinent provisions of the ACI regarding
vibration. This evidence provided LAUSD with a good faith basis
for believing that the subsidence cracking that occurred stemmed
from poor contractor means and methods, particularly by
inadequate vibration of the concrete.
In an e-mail dated May 2, 2012, Hichborn, LAUSD’s chosen
consultant, opined that “the subsidence cracking situation is
mainly the result of the means and methods the concrete
installer elected.” Hichborn also suggested, among other things,
that “the informed use of accelerating admixtures” could alleviate
the cracking. LAUSD also presented to the jury trial testimony
showing that the amount of water in Daum’s selected concrete
mix exceeded the amount of water permitted in LAUSD’s
contract specifications. This evidence provided further reason for
the jury to believe that LAUSD’s retention was withheld on the
grounds of a good faith dispute as to the cause of the cracking.
In addition to this affirmative evidence suggesting that
Daum’s means and methods were at fault, LAUSD also provided
evidence refuting Suffolk’s position that the foundation design
itself was defective. Both KPFF and LAUSD’s geotechnical
engineer, Neal Berliner, reviewed and verified that the designs
were accurate and sound. Both Duncan and Orue testified that
56
the remedial measures ultimately adopted to help prevent
cracking in later pours—namely the use of a mud slab and
Visqueen, were not design changes. They also confirmed that
KPFF did not believe there was anything unusual about the soils
that would have required the use of a mud slab or Visqueen.
Other evidence suggested that there was no clear correlation
between the use of a mud slab and nondefective concrete pours.
In some areas where a mud slab had been placed for other
reasons, the concrete still exhibited cracking. This evidence
highlighted for the jury why LAUSD might have a good faith
belief that contractor means and methods, rather than design
flaws, led to the problems.
In addition to the evidence described above, LAUSD
explained to the jury its decisionmaking process involved with
the retention of the disputed funds. Garawi, LAUSD’s OAR for
the project, provided much of the testimony on this subject.
Garawi had direct involvement with the investigation of the
concrete cracking problem and provided input for LAUSD’s
decision to withhold the $111,714 in investigation expenditures.
Garawi testified that he relied on the engineers’ verification of
the propriety of the original design. Both the soil engineer and
the structural engineer told Garawi, “This is a problem [that] has
nothing to do with the design.” Garawi also testified to some of
his own observations. He observed that there was much more
severe cracking on the day when the concrete workers had a 14-
hour day. “In this area, we had much more severe cracking
[than] in the [other] area, so that was a 14-hour day. The
contractor[s] were experiencing fatigue. Their level of quality
control was going down. And that area experienced much more
cracking than the earlier.”
57
However, the most important aspect of Garawi’s analysis
was improper vibration, specifically “the lack of vibration.”
Garawi’s opinion had not changed over time. He testified that “I,
to this date, confirm and actually became much more confident in
the fact that the vibration was the main cause of the cracking to
the concrete.” LAUSD’s assessment that the cracking was caused
by contractor means and methods was confirmed by the mock
pour process, because critical aspects of contractor means and
methods, such as vibration, were not tested and thus not
eliminated as a cause of the cracking.
The jury was shown Garawi’s written summary of his
thoughts as to what caused the problem. Garawi testified that
the document was his “best effort at the time to tell [his] team at
[LAUSD] what [his] issues and concerns and thoughts were as to
what had caused the problem.” Garawi mentioned improper
vibration. He opined that “the lack of contractor’s quality control
and worker fatigue are the most probable causes of the
inconsistent vibration during the pour that caused the
cracking . . . .” Garawi testified that he had not changed his
opinion since the time he wrote the document in October 2012.
This was Garawi’s “best judgment on the issue and how it
happened and what it is and what caused it.”
David Tatevossian, LAUSD’s deputy director of facilities
project execution and head of construction projects, also testified
about LAUSD’s response to the concrete cracking. He confirmed
that once the concrete cracking was discovered, LAUSD
instructed Geocon and KPFF to review their work and verify that
the underlying design was correct. Neither reported that a
design flaw led to the concrete cracking. LAUSD relied on
Geocon’s and KPFF’s assessments when making payment
decisions. Tatevossian also confirmed that Suffolk had the
58
discretion to use moisture barriers as part of its means and
methods to construct the foundations. He further confirmed that
the mud slab and Visqueen were not structural design changes.
The above evidence was presented to the phase 2 jury in
order to show LAUSD’s good faith belief that it was justified in
withholding the retention funds. LAUSD argues that the trial
court was required to accept this evidence as true. (Jones &
Matson v. Hall (2007) 155 Cal.App.4th 1596, 1607.) It had no
authority to weigh evidence or judge credibility. (Hansen v.
Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.)
However, instead of following these directives, LAUSD argues
the trial court improperly inserted its own view of the evidence
over the jury’s, drew adverse inferences and reweighed the
evidence. LAUSD further argues that the trial court improperly
interpreted a letter prepared by KPFF in October 2012 which
stated that “the foundation issues encountered at this site
extended from an unfavorable reaction between the concrete and
the soils.” The court relied heavily on this letter in concluding
that “[t]he plain evidence was that the soil conditions were
unusual” and thus that LAUSD “could not, in good faith, have
concluded that the blame [for the concrete cracking] was thus
shifted to Suffolk and Daum.” LAUSD argues that the trial court
misinterpreted the document and erroneously relied on it given
other contradictory evidence in the record,35 and it also wrongly
35 LAUSD argues that undisputed evidence showed that the
soil was not, in fact, unusual. Duncan testified as follows:
“Q Was there anything unusual about the soils in the soils
report that you saw?
“A No.
59
interpreted evidence, such as the mock pours and Hichborn’s
letter, to preclude contractor means and methods as a cause of
the cracking. LAUSD argues that the trial court thus substituted
its own conclusions based on its interpretations of evidence.
4. Suffolk’s arguments
Suffolk’s position is that Garawi’s decision was subjective,
but was not objectively reasonable. Suffolk cites FEI, supra, 194
Cal.App.4th at page 806 for the proposition that “the proper
standard to be applied to the question of whether there was a
‘good faith dispute’ is . . . objective, not subjective.” The FEI court
clarified, “Certainly, a party who has no reasonable, objective
justification for withholding payment under a construction
contract, but ‘believes,’ by reason of delusion, ignorance,
negligence of legal counsel or otherwise, that the money is not
owed should not be able to avoid penalty interest on such
ground.” (Ibid.)
Moreover, Suffolk argues, the good faith must exist at the
time of the withholding. (Citing Fassberg Construction Co. v.
Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th
720, 733 [“the Housing Authority was entitled to withhold the
retention proceeds more than 60 days after the date of completion
because there was a dispute between the parties at that time,
pursuant to Public Contract Code section 7107, subdivision (c)”].)
“Q Okay. Even in comparison to the other school projects
you’ve worked on?
“A There was—no, nothing unusual.
“Q And did anybody at KPFF, including you, come to the
conclusion that anything about the actual soil differed from what
was in the soils report?
“A No.”
60
Suffolk argues that nearly all the evidence cited by LAUSD
predates mock 4. Suffolk asserts, without citation to the record,
that mock 4 “ruled out contractor means and methods.” Suffolk
sums up its position as follows: “The relevant inquiry is the
objective reasonableness of Garawi’s personal opinion that
contractor means and methods were the cause of the cracking,
even after the results of the four mock pours and evidence from
LAUSD’s own consultants and personnel during the Project had
ruled out that possibility leading to a change in the design.”
With this statement, Suffolk makes it clear that its
interpretation of the results of mock 4 and the words of LAUSD’s
consultants differs from LAUSD’s interpretation of the same
evidence. Suffolk’s argument thus relies upon its own factual
spin on the evidence. The dispute between LAUSD and Suffolk is
ultimately one that comes down to the interpretation of the facts
presented to the jury.
5. Analysis
Both LAUSD’s opening brief and Suffolk’s respondent’s
brief on this issue contain pages and pages of analysis of the
evidence, each party’s spin on that evidence, and arguments as to
why the other party’s interpretation of the evidence is incorrect.
The question of LAUSD’s good faith in retaining the funds was
ultimately one of intense observation of, consideration of, and
weighing of a multitude of facts.
We decline to reweigh or reanalyze these facts. Instead, we
note that there was ample evidence to support the jury’s verdict.
Despite Suffolk ultimately winning the issue of liability for the
concrete cracking, the jury was still well within its power to
conclude also that LAUSD’s belief that the contractor was
responsible was reasonable. We note that LAUSD maintains
that belief even now, as it has launched a substantial evidence
61
challenge to the phase 1 verdict on liability. We conclude that
the trial court overstepped its role in granting Suffolk’s JNOV
motion on the issue of good faith.
As set forth above, a JNOV “can be sustained only when it
can be said as a matter of law that no other reasonable conclusion
is legally deducible from the evidence.” (Moore v. City & County
of San Francisco, supra, 5 Cal.App.3d at p. 733.) That is not the
case here, where LAUSD has set forth at least 15 pages of
evidence presented to the phase 2 jury in support of its position
that the withholding of funds was done in good faith. Rather
than accept the jury’s analysis of the evidence, the trial court
undertook its own analysis of the evidence, setting forth in detail
its conclusions as to the outcomes of the four mock pours. While
acknowledging LAUSD’s position that the addition of the rat slab
and Visqueen was not a design change, the court disagreed with
this position.36 The court further concluded, with no apparent
evidence, that the soil conditions were “unusual,” stating: “Nor
could [LAUSD] and its senior team justify its decision by reason
of the fact that its engineers and designers did not admit to a
design flaw. The plain evidence was that the soil conditions were
unusual. While LAUSD’s engineers and designers may not have
36 It is Suffolk’s position that the phase 1 verdict confirmed
that the addition of rat slab and Visqueen was a design change,
stating, “LAUSD re-litigates the Phase [1] jury’s verdict
contending the addition of the Visqueen layer was not a ‘design
change.’” The issue in phase 2 was not whether LAUSD’s design
plans and specifications were correct or not, but whether LAUSD
had a good faith belief that they were correct at the time they
withheld payment. Thus, LAUSD was permitted to present to
the phase 2 jury evidence supporting its belief that the addition
of rat slab and Visqueen were not design changes.
62
been ‘at fault,’ LAUSD could not, in good faith, have concluded
that the blame was thus shifted to Suffolk and Daum.”
In carrying out its own lengthy analysis of the evidence, the
court erred. The court was not permitted to reweigh the evidence
or judge the credibility of witnesses. (Teitel, supra, 231
Cal.App.3d at p. 1603.) It did both of these things in granting
Suffolk’s JNOV. In light of the plethora of conflicting evidence on
the issue of LAUSD’s good faith, the motion for JNOV should
have been denied. (Ibid.)
Substantial evidence supported the jury’s conclusion as to
good faith. (Webb v. Special Electric Co., Inc., supra, 63 Cal.4th at
p. 192.) The trial court’s grant of Suffolk’s JNOV on good faith is
reversed, and the court is directed to reinstate the jury’s verdict
on this issue.
D. Exclusion of LAUSD’s expert on good faith—
phase 2
LAUSD argues that the trial court abused its discretion in
excluding its expert testimony on objective good faith in phase 2.
LAUSD sought to present testimony from its concrete expert,
Bogh, to support its position that there was a good faith dispute
over the retention money. The trial court found the testimony to
be inadmissible because it was unknown to LAUSD as of the date
of the withholding, which was December 2013. Bogh was
retained in March 2016. A trial court’s exclusion of evidence is
normally reviewed for abuse of discretion. (Tudor Ranches, Inc.
v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.)
Because we have reversed the trial court’s grant of JNOV
on the issue of good faith, and reinstated the jury verdict in favor
of LAUSD on this issue, we find that the issue is moot, and we
need not address it.
63
E. Instructional error—unlicensed contractor—
phase 2
The final issue in LAUSD’s direct appeal is the trial court’s
denial of LAUSD’s proposed jury instructions explaining the
statutory bar to an unlicensed contractor bringing an action. The
first instruction explained the statutory bar contained in
Business and Professions Code former section 7031 (former
section 7031). The second instruction explained the responsible
managing employee (RME) requirements required of Suffolk
under Business and Professions Code sections 7068 and 7068.1
(RME instruction).
The trial court refused to give LAUSD’s proposed
instructions, finding that the RME instruction “overstates the
law and provides the jury with unnecessary information.”37
37 LAUSD’s proposed instruction read:
“A corporation such as Suffolk qualifies for a contractor’s
license by the use of a Responsible Managing Officer (‘RMO’) or a
Responsible Managing Employee (‘RME’). A RMO or RME is a
bona fide officer or employee of Suffolk who is actively engaged in
the operation of the contracting business. To meet the definition
of a ‘bona fide employee,’ an individual must be permanently
employed by Suffolk and actively engaged in the [sic] Suffolk’s
contracting business for at least 32 hours per week or 80 percent
of the total hours of the business per week, whichever is less.
“Suffolk’s RME or RMO also must have actually applied his
knowledge and skill in managing the project involved in this case
and must have been ‘responsible for exercising direct supervision
and control’ over the [sic] Suffolk’s construction operations. The
term ‘direct supervision and control’ can encompass the following
activities: supervising construction, managing construction
activities by making technical and administrative decisions,
64
Specifically, the trial court found that section 7068.1 does not
“stand for the proposition that employing an RME who does not
directly oversee a particular project results in an automatic
license suspension.” However, the trial court offered to give a
modified version of the instruction, omitting the language
informing the jury that “[i]f you find that Suffolk’s RME or RMO
did not provide direct supervision or control over Suffolk’s work
on the Project, then you must find that Suffolk was not a properly
licensed contractor.”
LAUSD asserts that the trial court’s refusal to give the
proposed RME instruction, as written, effectively precluded
LAUSD from presenting any evidence or argument on this
issue.38 LAUSD cites case law supporting the proposition that
checking jobs for proper workmanship, and directly supervising
on construction job sites.
“If you find that Suffolk’s RME or RMO did not provide
direct supervision or control over Suffolk’s work on the Project,
then you must find that Suffolk was not a properly licensed
contractor.”
38 Greg Hescock was Suffolk’s designated RME for the
relevant period of construction. As factual support for its defense
that Suffolk was not a properly licensed contractor due to an
inadequate RME, LAUSD provided the following excerpt from the
deposition of Mumper, Suffolk’s project manager:
“Q Okay. So was Mr. Hescock involved in the supervision or
management of this project?
“A No.
“Q And as a—as the senior project manager, you were the one
that was on the ground interacting with Suffolk and other
personnel involved in the project?
65
failure to instruct the jury to make a finding on a critical issue
constitutes prejudicial error. (Citing Moore v. Wal-Mart Stores,
Inc. (2003) 111 Cal.App.4th 472, 479-480; Sutter Health v.
UNITE HERE (2010) 186 Cal.App.4th 1193, 1211.)
1. Applicable law
A corporation qualifies for a contractor’s license through an
RME. (Bus. & Prof. Code, § 7068, subd. (b).) An RME is defined
as “an individual who is a bona fide employee of the applicant
and is actively engaged in the classification of work for which
that responsible managing employee is the qualifying person on
behalf of the applicant.” (Bus. & Prof. Code, § 7068, subd.
(c)(1).)39 The statute in effect at the time of the project provided
that the RME “shall be responsible for exercising that direct
supervision and control of his or her employer’s or principal’s
construction operations as is necessary to secure full compliance
with this chapter and the rules and regulations of the board
relating to the construction operations.”40 (Former § 7068.1.)
“‘[D]irect supervision and control’ includes any one or any
combination of the following activities: supervising construction,
managing construction activities by making technical and
“A Correct.”
At the hearing on the issue, LAUSD also pointed out that
Hescock was not present in California during the construction at
issue, and instead was working in Massachusetts.
39 “‘Classification’ is a term of art which refers to various
specialty licenses.” (Buzgheia v. Leasco Sierra Grove (1997) 60
Cal.App.4th 374, 384 (Buzgheia).)
40 The phrases “as necessary” and “relating to the
construction operations,” and the word “full” have been deleted
from the statute’s current version. (§ 7068.1)
66
administrative decisions, checking jobs for proper workmanship,
or direct supervision on construction job sites.” (Cal. Code Regs.,
tit. 16, former § 823, subd. (b).)41 “Personal presence is not
necessary.” (Buzgheia, supra, 60 Cal.App.4th at p. 381.)
Business and Professions Code section 7068.2 provides in
part that “upon failure to replace the RME or notify the registrar
of disassociation of the RME within 90 days, ‘the license shall be
automatically suspended or the classification removed.’”
(Buzgheia, supra, 60 Cal.App.4th at p. 381.)
2. No trial court error in declining LAUSD’s proposed
instruction as written
The last sentence of LAUSD’s proposed instruction
provided, “If you find that Suffolk’s RME or RMO did not provide
direct supervision or control over Suffolk’s work on the Project,
then you must find that Suffolk was not a properly licensed
contractor.” The trial court did not err in concluding that this
sentence overstates the law.
The relevant statutes and regulation, taken together, do
not require that an RME exercise direct supervision and control
over any given project. Instead, the RME was “responsible for
exercising that direct supervision and control of his or her
employer’s or principal’s construction operations as is necessary to
secure full compliance with this chapter and the rules and
regulations of the board relating to the construction operations.”
(Former § 7068.1, italics added.) The requirement that the RME
provide direct supervision and control does not mandate such
direct supervision control over every project, but over the
41 California Code of Regulations, title 16, section 823 was
repealed June 2, 2022, pursuant to section 100, title 1 of the
California Code of Regulations.
67
employer’s “construction operations” as a whole, to the extent
necessary to ensure compliance with the rules and regulations of
the board. Thus, the RME’s supervision and control is not tied to
any particular job site. As the Buzgheia court noted, an RME’s
“[p]ersonal presence” on a job site “is not necessary.” (Buzgheia,
supra, 60 Cal.App.4th 374, 381.)
LAUSD’s proposed instruction informed the jury that the
RME was required to “provide direct supervision or control over
Suffolk’s work on the Project.” (Italics added.) As set forth above,
an RME is required to exercise supervision and control over his
or her employer’s construction operations—not any one particular
job. Contrary to LAUSD’s instruction, the RME’s focus was
required on the company’s construction operations as a whole,
and could have been satisfied through making technical and
administrative decisions, or checking jobs for proper
workmanship. (Cal. Code Regs., tit. 16, former § 823, subd. (b).)
LAUSD’s suggestion that the RME was required to provide direct
supervision or control over this particular job overstated the law
as written.
LAUSD’s instruction told the jury that if it found that
Suffolk’s RME did not provide direct supervision or control over
this particular project, the jury “must” find that Suffolk was not a
properly licensed contractor. The parties disagree over whether a
violation of former section 7068.1, subdivision (a), results in
automatic suspension of the contractor’s license. No such
language exists in the statute itself. As Suffolk points out, case
law suggests that automatic suspension should not be imposed in
the absence of a statute expressly providing for that penalty.
(Citing Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694; MW
Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co.
(2005) 36 Cal.4th 412, 426.)
68
Former section 7031, subdivision (a), provided that no
contractor “may bring or maintain any action, or recover in law or
equity in any action, in any court of this state . . . without
alleging that he or she was a duly licensed contractor at all times
during the performance of that act or contract regardless of the
merits of the cause of action brought by the person . . . .” Thus,
former section 7031 does not provide for automatic suspension.
Instead, it essentially prohibits a contractor from bringing a
lawsuit unless that contractor is duly licensed. However, even
where a contractor alleges licensure, a party may “challenge the
bona fides of a contractor’s RME in a civil suit.” (Buzgheia,
supra, 60 Cal.App.4th at p. 386.) This is what LAUSD proposed
to do in this matter. In such a case, the party challenging the
RME takes the position that the RME was a “sham.” “If the RME
was a sham, the contractor is barred from recovery because he or
she is, in effect, acting outside the license, just like a specialty
contractor who labors at a task for which he or she has no
expertise nor license.” (Ibid.) Thus, the language of LAUSD’s
proposed instruction, which directed the jury to find that Suffolk
was not a properly licensed contractor, was not technically
correct. Instead, the presence of a “sham” RME would result in a
finding that Suffolk was acting outside of its license.
The results to Suffolk—inability to collect on a judgment in
court—may be the same. However, Suffolk could have cured this
technical misstatement by keeping the language of its instruction
more in line with the statute. In its reply brief on this issue,
LAUSD insists it “never argued use of a sham RME resulted in
automatic suspension of Suffolk’s license. Instead, LAUSD
insists its “actual position is that when a contractor’s RME is a
sham (i.e., the RME fails to perform statutorily required
functions), then the contractor is ‘barred from recovery because
69
[it] is, in effect, acting outside the license.’” Thus LAUSD
concedes there is a difference between a company that is not
properly licensed and one that is acting outside of its licensure.
However, the language LAUSD used in its instruction was that
the jury was required to find Suffolk was “not a properly licensed
contractor.” The language was inaccurate.
LAUSD’s proposed instruction on the licensing issue
misstated the law and improperly informed the jury that an RME
was required to directly supervise that particular job. Thus, we
find no error with the trial court’s overall analysis that the
instruction overstated the law.
3. LAUSD was not prejudiced by the trial court’s
action
LAUSD complains that the trial court’s proposal that it
give the instruction without the last line of the proposed jury
instruction “effectively precluded” LAUSD “from presenting any
evidence or argument on this issue.” We find that LAUSD
suffered no such prejudice. The court was willing to give an
instruction on this issue that followed the language of the
statute. LAUSD was therefore not precluded from presenting
evidence or argument on this issue. Thus, even if the trial court
had acted in error, LAUSD was not prejudiced as the trial court
offered to give an instruction in keeping with the law.
II. Suffolk’s cross-appeal
Suffolk raises five issues in its cross-appeal against
LAUSD. It raises three issues concerning phase 2 of trial; it
challenges the trial court’s decision by cross-motions for summary
judgment in phase 3; and it challenges the trial court’s decision to
reduce the amount of attorney fees awarded to Suffolk.
As to phase 2, Suffolk first argues that the damages the
jury awarded for TIA 5 were not supported by the record and
70
were inadequate as a matter of law. Suffolk raises two other
issues challenging the jury’s findings in phase 2. First, Suffolk
argues there was insufficient evidence to support the jury’s
verdict on TIA 2, which involved over-excavation of footings.
Suffolk takes the position that the over-excavation on certain
foundations were extra work requiring a change in LAUSD’s
plans and specifications. The jury found that LAUSD did not
breach the warranty of correctness of plans and specifications as
to TIA 2.
Next, Suffolk argues that the phase 2 verdict is
inconsistent as to TIA’s 3 and 4. Both TIA 3 and TIA 4 related to
plumbing issues. TIA 3 addressed delays in December 2011, and
TIA 4 addressed delays in January 2012. The jury found that
LAUSD breached the warranty of correctness of plans and
specifications for TIA 3, but not for TIA 4. Suffolk argues that
the jury was required to find that the plans and specifications for
TIA’s 3 and 4 were either both correct or both incorrect and that
the jury’s findings were inconsistent and against the law,
requiring a new trial.
Phase 3 of trial was decided by cross-motions for summary
adjudication on the question of whether LAUSD was liable to
Suffolk for Suffolk’s obligation to pay attorney fees to Daum
under a theory of contractual indemnity. The trial court granted
LAUSD’s motion for summary adjudication on this issue on the
ground that LAUSD was not a party to the subcontract between
Suffolk and Daum. Suffolk challenges this determination,
arguing that the attorney fees were recoverable from LAUSD as a
form of damages.
Finally, Suffolk challenges the trial court’s final award of
attorney fees to Suffolk, arguing that the trial court erred in
reducing its requested fees. Given that there will be a retrial of
71
phase 1, the issue of Suffolk’s entitlement to attorney fees will
also need to be reconsidered on remand.
We first address Suffolk’s challenges to phase 2 of trial and
conclude that the damages for TIA 5 will be subject to reversal
and retrial along with the liability issue from phase 1. As to the
jury verdict on TIA’s 2, 3, and 4, they are affirmed, as set forth in
detail below.
As to Suffolk’s challenge to the outcome of phase 3, we
conclude that this issue is best addressed following retrial below.
A. Damages awarded for TIA 5—phase 2
In phase 2, the jury was charged with assessing Suffolk’s
damages resulting from the concrete cracking problem. Suffolk
now challenges the phase 2 jury’s award, arguing it was
insufficient.
The jury in phase 1 found LAUSD liable for the concrete
cracking having received an erroneous instruction and related
argument based on section 1104. The phase 2 jury was tasked
with awarding damages on the phase 1 liability. As such, the
phase 2 jury was required to accept the phase 1 jury’s finding
that LAUSD was liable for the concrete cracking. As the phase 1
liability determination will be remanded for retrial, the phase 2
liability issue will also need to be retried. Thus, we decline to
address this issue.
B. Sufficiency of the evidence regarding TIA 2—
phase 2
TIA 2 concerned time extensions and costs for the delay
related to over-excavation of the footings along the project
property line. Since LAUSD did not approve Suffolk’s request for
additional time and costs for TIA 2, the jury was instructed to
determine whether LAUSD breached the implied warranty of
correctness of plans and specifications for the designs implicated
72
in TIA 2. The jury found that LAUSD did not breach the implied
warranty as to the designs implicated in TIA 2. Suffolk
challenges this finding on the ground that no reasonable jury
could have found that no breach occurred based on the record as
a whole.
We review this issue for substantial evidence. Under this
standard, we must “‘accept as true the evidence supporting the
verdict, disregard conflicting evidence, and indulge every
legitimate inference to support the verdict.’” (Cochrum v. Costa
Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1044.)
Thus, our only role is to determine if substantial evidence exists
in the record to support the verdict in favor of the prevailing
party. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582
(Schmidt).)
1. Evidence and arguments
In October 2011, Suffolk requested clarification on whether
foundations along an adjacent property line required over-
excavation. E-mails between the parties show that Suffolk asked
LAUSD to “identify foundations that must be deepened” and
provide “some clarification on which footings will need to be
deepened.” It was requested that KPFF “mark up the foundation
plan to identify foundations that must be deepened.” LAUSD
complied and provided a “sketch on the subject matter.” The
revised drawings were provided to Suffolk in a supplemental
response to RFC 62. The response provided, in part: “[i]n
accordance with the project geotechnical report, where the
recommended lateral overexcavation of 5-feet beyond footings
could not be performed, . . . the footing excavation should be
deepened to the competent alluvium found at or below a depth of
5 feet . . . .”
73
Suffolk also points to its CDA No. 12, initiated in
August 2012. The CDA requested contingency funds for “labor,
material, and equipment to over-excavate and backfill with
concrete approximately 2’ deep at building footings.” The request
specified, “NO CHANGE TO DSA APPROVED DOCUMENTS.”
Mumper testified that the information in RFC 62 and revised
S201 drawing, which was provided to clarify the over-excavation
work, was necessary to proceed with and finish the over-
excavation work.
Suffolk admits that the geotechnical investigation report,
prepared by Geocon, already informed Suffolk of the potential for
over-excavation “at or below a depth of five feet.” Suffolk also
acknowledges other evidence in the record suggesting that the
over-excavation was part of the original plan and did not require
a design change. For example, Garawi testified that the revised
S201 drawing was “voluntary information” he provided to
Suffolk, and that Suffolk would have been able to excavate
without the revised drawings. Further, as LAUSD points out,
there was pushback from Garawi within the TIA 2 narrative.
Garawi responded to TIA 2 in September 2012 with photographic
evidence, noting that the contractor had proceeded with the over-
excavation “without formal direction.” (Boldface and italics
omitted.) At Suffolk’s suggestion that they only proceeded in
certain areas, Garawi responded with additional photographs,
stating, “take a look at the attached photos . . . and let me know if
you will be dropping this argument . . . .” Garawi testified at trial
that Suffolk was over-excavating the property lines, in
contradiction to their position that they could not do so without
direction from LAUSD.
Despite the contradictory evidence in the record, Suffolk
argues that “a reasonable jury could only have found the plans
74
for the footing excavation addressed in TIA 2 were incorrect and
had to be corrected via CDA 12.” Suffolk draws a distinction
between plans that contemplated over-excavation might be
necessary, and plans that allow a contractor to accurately
prepare its bid. Suffolk argues plans that allow a contractor to
further excavate “as necessary” do not satisfy a public owner’s
obligation to provide correct plans and specifications. Suffolk
contends CDA 12 provided undisputed evidence that a change
was required and was made.42
2. Substantial evidence supports the jury verdict
Ample evidence in the record supported the jury’s
determination that LAUSD did not breach the implied warranty
of correctness of plans and specifications as to the over-
excavation issue in TIA 2. As set forth above, Garawi testified
that Suffolk was falsely claiming that it could not proceed with
the over-excavation work absent revised drawings. He testified
that LAUSD provided the revised drawings voluntarily and that
they were not necessary design changes. Further, documentary
evidence showed that the changes did not require any deviation
from the original design documentation. The jury was entitled to
consider, and give weight to, LAUSD’s evidence suggesting that
no design change was necessary for Suffolk to implement the
over-excavation.
42 LAUSD argues that CDA 12 did not refer to design
modifications and in fact specified “NO CHANGE TO DSA
APPROVED DOCUMENTS.” Thus, the jury was free to
interpret CDA 12 as not requiring design modifications. Even if
the jury could not consider CDA 12 as not requiring design
modifications, the jury was free to believe Garawi’s testimony
suggesting that the revised drawings were not necessary to
Suffolk’s over-excavation work.
75
Suffolk asks that we interpret the evidence differently from
the jury to support its version of the facts. However, our role is
“not to determine whether substantial evidence might support
the losing party’s version of events.” (Schmidt, supra, 44
Cal.App.5th at p. 582.) Because substantial evidence supported
the jury’s determination that LAUSD did not breach the implied
warranty of correctness of plans and specifications on TIA 2, we
affirm the jury verdict on TIA 2.
C. Consistency of verdicts as to TIA’s 3 and 4—
phase 2
Suffolk argues that TIA’s 3 and 4 relate to the same
underlying issue—alleged conflicts between the underground
plumbing and concrete footings. Both TIA’s sought respective
time extensions necessitated by Suffolk’s need to wait for revised
drawings so the underground work could be completed and
concrete poured. Suffolk states that the parties unnecessarily
divided the delays arising from the conflicts in the plumbing
drawings into two TIA’s covering different time periods. TIA 3
addressed delays in December 2011 and TIA 4 addressed delays
in January 2012. Suffolk contends that the jury made
inconsistent factual determinations in finding that the claim for
TIA 3 arose from incorrect plans and specifications while the
claim for TIA 4 did not.43 Suffolk raised this issue in its motion
43 The jury verdict form was set up as follows:
“Special Interrogatory No. 1(a) Regarding Suffolk’s Claim
for Implied Warranty of Correctness of Plans and Specifications
Against LAUSD: Did LAUSD breach the implied warranty of
correctness of plans and specifications in the Contract by
76
for new trial following phase 2. The trial court denied the
motion, stating: “the jury could have found that the plans
underlying RFC 266 and 297 [in TIA 4] were materially correct
and still found the plans underlying the RFC in TIA 3 to have
been incorrect, even though they all related generally to the same
plans and specifications regarding plumbing and CMU joints.”
1. Standard of review
“‘A special verdict is inconsistent if there is no possibility of
reconciling its findings with each other.’” (Markow v. Rosner
(2016) 3 Cal.App.5th 1027, 1048 (Markow).) This court generally
reviews a special verdict de novo to determine whether its
findings are inconsistent. (Zagami, Inc. v. James A. Crone, Inc.
(2008) 160 Cal.App.4th 1083, 1092.) “A court reviewing a special
verdict does not infer findings in favor of the prevailing party
[citation], and there is no presumption in favor of upholding a
special verdict when the inconsistency is between two questions
in a special verdict.” (Ibid.) The appellate court is not permitted
to choose between inconsistent answers, but “[i]f a verdict is not
‘hopelessly ambiguous,’ the court may ‘“interpret the verdict from
its language considered in connection with the pleadings,
evidence and instructions.”’” (Ibid.)
Where inconsistency is alleged, reversal is warranted
“[w]here the findings are so inconsistent, ambiguous, and
providing Project plans and/or specifications for the designs
implicated in TIAs 2, 3, or 4 to Suffolk that were not correct?
“A. TIA 2: __YES or __NO
“B. TIA 3: __YES or __NO
“C. TIA 4: __YES or __NO”
The jury checked “YES” for TIA 3 and “NO” for TIA 4.
77
uncertain that they are incapable of being reconciled . . . .”
(Renfer v. Skaggs (1950) 96 Cal.App.2d 380, 383.)
2. Relevant factual background and arguments
Suffolk acknowledges that the information regarding the
plumbing delays was split into two TIA’s and the claims were
presented to the jury in that manner. However, Suffolk asserts
that the evidence showed that the errors and design conflicts in
TIA’s 3 and 4 arose from the same set of underground plumbing
drawings. As support for this argument, Suffolk points to
evidence that LAUSD approved one change order (CAP 106) for
the direct cost of performing the changes to the underground
plumbing conflicts spanning from December 2011 through
January 2012. Of the multiple RFC’s addressed in CAP 106 were
RFC’s 192, 193, and 195 (covered in TIA 3) and RFC 297 (covered
in TIA 4). Simply put, Suffolk argues, the RFC’s that are split
between TIA 3 and TIA 4 are included in a single change order
that LAUSD paid for. CAP 106 also included many of the
plumbing changes that were formalized in bulletin 2. Bulletin 2
was a collection of design revisions addressing several separate
parts of the overall design and project, including many of the
plumbing changes.44 Bulletin 2 was dated December 30, 2011.
Further responses to RFC’s 172 and 297 were provided on
January 17 and 26, 2012. Suffolk argues that because the RFC’s
listed in the TIA’s overlap with those included in CAP 106, the
verdict must be inconsistent.
Suffolk also points out that TIA 4 focused primarily on the
changes to the plumbing design made in response to RFC’s 172
and 297. RFC 172 is addressed in both TIA 3 and TIA 4. RFC
44 We note that bulletin 2 is a three-page chart containing
reference to over 35 drawings.
78
297 was also addressed in both TIA’s because it superseded RFC
193, which was covered in the TIA 3 narrative. Bulletin 2 was
also referenced in both TIA’s. Suffolk asserts that TIA 4’s
inclusion of bulletin 2, which listed changes to the plumbing
through December 31, 2011, shows that TIA 4 was simply a
continuation of delay arising from the same set of plumbing
issues. Finally, Suffolk asserts that TIA 3 included language
indicating further changes to the underground plumbing
resulting in delay in the following month would be addressed in a
subsequent claim: “TIA 3.1 impact continues into January 2012
and will be provided in a month-by-month analysis as required by
LAUSD.”
Suffolk points out that in instructing the jury, the trial
court collectively referred to TIA’s 3 and 4 as “the plumbing
conflict issue.”
LAUSD argues that simply because there were a few
commonalities between TIA 3 and TIA 4 does not mean that the
jury was required to find that the plans and specifications for
TIA’s 3 and 4 were either both correct or both incorrect. While
there was some overlap, LAUSD argues, TIA 3 involved design
issues unique to it and not at issue or implicated in TIA 4. First,
in TIA 3 Suffolk claimed design issues raised in RFC’s 169, 190,
191, and 195 delayed the project.45 None of these alleged design
45 In RFC 169, for example, Suffolk asked for further
information regarding the location of plumbing sleeves to permit
a waste line to run through concrete footings at the ES building.
LAUSD responded to RFC 169 on December 23, 2011. Suffolk
claimed the plumbing subcontractor installed the two sleeves on
December 27, 2011. Thus, this design issue underlying RFC 169
was resolved and no longer at issue in January 2012. Evidence
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changes were at issue in TIA 4. These RFC’s dealt with alleged
design conflicts involving plumbing lines and foundations at
specific locations. There was no overlap between TIA 3 and TIA 4
on these issues. In addition, TIA 3 and TIA 4 have distinct time
frames, as Suffolk admits.
LAUSD points out that just because several design issues
are grouped into a single bulletin, such as bulletin 2, or paid for
through a single CAP, does not mean that those design issues are
identical or that they all stem from the same part of the project’s
design. LAUSD challenges Suffolk’s suggestion that CAP 106
proves that the verdict is inconsistent. CAP 106 paid Suffolk’s
net increased direct costs for a broad range of changed work, and
contained design-related clarifications on issues unrelated to any
of the issues in TIA 3, TIA 4, or bulletin 2. For example, CAP 106
included payment for changes set forth in bulletin 1. This was
unrelated to the plumbing issues in the ES. In addition, bulletin
2 provided dozens of design updates, revisions, and clarifications,
many of which were unrelated to the plumbing issues.
Finally, LAUSD argues that even if the jury verdict were
inconsistent as to its findings on TIA’s 3 and 4, any such error is
harmless, as the jury found that LAUSD’s breach as to TIA 3 was
not a substantial factor in causing harm to Suffolk. Thus,
because Suffolk failed to prove causation, a new trial is not
necessary, and any inconsistency is harmless and moot.
at trial suggested that the sleeves were not actually installed
until January 26, 2012, a month later than Suffolk represented,
due to delays attributable to Suffolk. Garawi testified that
Suffolk waited a month after getting a response before doing the
work. Garawi testified that LAUSD did not hold up the work,
thus the fault was with Suffolk.
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3. Analysis
Suffolk bears a heavy burden of showing that the jury
verdict is impossible to reconcile. (Markow, supra, 3 Cal.App.5th
at p. 1048.) Based on the evidence described above, we find that
Suffolk has failed to meet this burden. Suffolk admits that the
two TIA’s covered different time frames. In addition, the two
TIA’s were presented to the jury as two separate issues to be
resolved. And on the jury form, the jury was given the option of
providing different answers to the question of whether LAUSD
breached the implied warranty of correctness as to the two
TIA’s.46
At best, Suffolk has shown that there were some common
issues that spanned the two TIA’s. The record shows that
unrelated issues were grouped together into documents such as
CAP 106 and bulletin 2 during the project. Suffolk points to no
testimony or argument in the record requiring that jury treat the
two TIA’s as inextricably linked. Suffolk does not dispute that
the two TIA’s were not identical, thus allowing room for the jury
to determine that while the plans underlying the claims in TIA 3
were incorrect, the plans underlying the claims in TIA 4 were
correct.
Suffolk argues that the jury’s responses to the question of
breach for TIA 3 and TIA 4 were required to be the same because
“it took two months to correct the collective errors in the
46 The parties have not raised the issue, but we note that
where the special verdict form allows for two different answers on
the same issue, a party may be foreclosed from objecting to an
inconsistent verdict under the doctrine of invited error.
(Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677,
1685-1687.)
81
plumbing drawings.” Suffolk contends this point is “undisputed,”
despite Garawi’s testimony that the blame for the delay lay at
least partially with Suffolk. Suffolk suggests that the jury
suffered some “confusion or lack of understanding” that led to the
purportedly inconsistent verdicts. Again, we note that the
manner in which the evidence was presented, as well as the
questions on the jury verdict, invited different answers to the two
questions. Given the voluminous and diverse evidence the
parties presented on TIA’s 3 and 4, we decline to find that Suffolk
has shown an irreconcilable verdict. The verdicts are affirmed
and retrial is not required.
III. Cross-motions for summary adjudication—phase 3
In November 2014, Suffolk sued its concrete subcontractor,
Daum, for breach of contract. Suffolk prayed for attorney fees
against Daum. Daum cross-complained against Suffolk for
breach of contract and related claims. In its answer to Daum’s
cross-complaint, Suffolk requested attorney fees.
After phase 2, Daum made a motion for attorney fees
against both LAUSD and Suffolk. The trial court found that
Daum was entitled to recover its fees against Suffolk only under
their subcontract and awarded Daum $775,523 against Suffolk.
Thereafter, LAUSD and Suffolk filed cross-motions for summary
adjudication on the issue of whether LAUSD was liable to
Suffolk, under Suffolk’s implied contractual indemnity or breach
of contract cause of action, for Suffolk’s obligation to pay attorney
fees to Daum.
The trial court granted LAUSD’s motion for summary
adjudication and denied Suffolk’s motion for summary
adjudication. The trial court denied Suffolk’s claim on the ground
of contractual indemnity, finding that Suffolk failed to establish
that LAUSD had a joint legal obligation to compensate Daum for
82
its fees. The trial court also found that Suffolk failed to establish
that LAUSD was liable for the attorney fees as an element of
damages based on breach of contract. Suffolk argues that the
trial court erred.
The attorney fees at issue in phase 3 were fees that the
trial court awarded to Daum for expenses Daum incurred in
litigating the concrete cracking issue (phase 1). As the concrete
cracking issue will be retried, the issue of liability may be
resolved differently. Thus, we find that we need not resolve this
issue at this time. Particularly because Suffolk casts the issue as
a “question of first impression,” we find that it is better addressed
when there exists an actual controversy.
IV. Suffolk’s appeal versus Daum
In its appeal against Daum, Suffolk challenges the trial
court’s award of attorney fees to Daum. Suffolk challenges the
award on several grounds. First, Suffolk challenges the award on
procedural grounds, arguing that the trial court erred in granting
Daum attorney fees based on an argument Daum presented in a
supplemental brief following oral argument. Suffolk also argues
that the trial court erroneously interpreted the contract between
Suffolk and Daum, and erroneously failed to apportion
recoverable fees.
As set forth above, Daum’s fees were related to the concrete
cracking issue. As that issue will be retried, we decline to
address Suffolk’s arguments regarding attorney fees at this time.
V. Fisk’s appeal versus Suffolk
Fisk was a subcontractor hired by Suffolk to perform work
on the project. Due to the problems encountered during the
building process, Fisk expended additional manpower and
resources to complete its work on the project. Fisk provided
notice to Suffolk as to how the delays would adversely affect
83
Fisk’s performance and the increased costs associated with Fisk’s
efforts. On February 28, 2014, Fisk submitted to Suffolk a
certified claim in the amount of $1,908,157.61. Suffolk treated
Fisk’s claim as a pass-through claim.
Fisk’s damages were only associated with TIA 5, which
involved the concrete cracking issue. At trial, Fisk presented its
damage calculations to the jury through an employee, Jennifer
Sears, and an expert, Ted Scott. The two witnesses provided
different totals for Fisk’s damages. As the trial court noted, Fisk
originally claimed $2,084,683 in damages, and the jury awarded
$1,721,038.63. The jury broke down Fisk’s award as follows:
$1,046,479 against LAUSD, and $674,559.63 against Suffolk.
While there was no suggestion that Fisk was at fault for
any of its losses, the jury was required to determine the amount
of Fisk’s damages and the question of which party—LAUSD or
Suffolk—was ultimately responsible for paying Fisk’s claim.
Because no party on appeal challenges the jury’s determination of
Fisk’s claim of damages, that number has been conclusively
determined by the jury and need not be retried in the remand of
the damages trial for TIA 5. However, the allocation of Fisk’s
damage award between LAUSD and Suffolk is an issue that will
need to be retried on remand. For this reason, as set forth in
more detail below, we conclude that we need not address the
specific issues presented in Fisk’s appeal: (1) whether the trial
court erred in denying Fisk’s motion for attorney fees on
procedural grounds and (2) whether the trial court erred in
declining to award Fisk prejudgment interest on the portion of its
award payable from Suffolk.
A. Attorney fee award
Following phase 2, Fisk sought attorney fees against
Suffolk under a theory that it was the prevailing party under the
84
subcontract as well as under the terms of Suffolk’s performance
bond.47 The trial court acknowledged that Fisk would be entitled
to attorney fees from “the Payment Bond Defendants,” provided
the fees were shown to be reasonable. However, the trial court
found that Fisk failed to provide sufficient evidence in its moving
papers supporting its fee request and failed to use an appropriate
method to show that its fees were reasonable. Fisk appeals this
discretionary decision.
Given that damages for TIA 5 will be retried, we decline to
address this issue. While Fisk’s damages have been determined
by the jury, Fisk will be required to present evidence to a new
jury on remand concerning the allocation of liability for those
damages as between LAUSD and Suffolk. As such, Fisk will
incur additional attorney fees. As all attorney fee issues as to
damages for TIA 5 will be reconsidered at a later date, the award
of attorney fees to Fisk should also be decided at that time.
B. Prejudgment interest against Suffolk
The trial court awarded Fisk prejudgment interest against
LAUSD at the rate of 10 percent from and after February 15,
2017.48 However, the trial court denied Fisk prejudgment
interest on the portion of its award that it was awarded against
Suffolk. Fisk had asserted a right to prejudgment interest
against Suffolk pursuant to Civil Code section 3287, subdivision
47 Suffolk’s performance bond contained an attorney fee
provision. The parties did not dispute that an obligee is entitled
to recover its attorney fees pursuant to a claim made on a
performance bond containing an attorney fee provision. (Mepco
Services, Inc. v. Saddleback Valley Unified School Dist. (2010)
189 Cal.App.4th 1027, 1048-1049.)
48 February 15, 2017, was the date of the phase 1 verdict.
85
(a) (section 3287), which provides for mandatory prejudgment
interest where damages are “certain, or capable of being made
certain by calculation.” The trial court reasoned that because the
jury had to determine Fisk’s damages, “the amount was neither
liquidated [n]or capable of calculation so as to entitle Fisk to
interest under section 3287(a).” The court also denied Fisk
discretionary interest against Suffolk, as the liability of Suffolk
was not established until after the phase 2 trial was concluded.
Fisk appeals, arguing that because no party contested
Fisk’s entitlement to its claim, the date upon which prejudgment
interest should be calculated was the date of the filing of Fisk’s
complaint, which was May 22, 2014.
We agree with the trial court that Fisk’s claim was
uncertain. While the parties did not provide contradictory
evidence undermining Fisk’s claims, the jury was required to
determine the amount owed to Fisk based on the varied evidence
presented at trial. While it is true that the jury awarded Fisk an
amount close to what it sought, the jury was not required to do
so. The jury was presented with Fisk’s records, the testimony of
Fisk’s employee and the testimony of an expert witness, each of
whom came up with different numbers. It was for the jury to
decide, based on the evidence, the amount of Fisk’s damages. The
question of the amount of Fisk’s damages was a factual question
to be resolved at trial.49
49 Leff v. Gunter (1983) 33 Cal.3d 508, 520, is distinguishable.
In Leff, the calculation of damages was calculated “mechanically,
on the basis of uncontested and conceded evidence of the value of
the IRS Center upon its completion, the balance due on the
indebtedness to which it was subject, and the extent of plaintiff’s
interest in the original joint venture.” (Ibid.) Under those
86
Thus, section 3287, subdivision (a), is inapplicable. While
the trial court denied Fisk discretionary interest as to the
amount owed from Suffolk on the ground that Suffolk’s liability
was not determined until the phase 2 trial was concluded, the
issue of discretionary prejudgment interest will be subject to
reconsideration upon motion of Fisk following retrial of the TIA 5
damages.
DISPOSITION
The phase 1 verdict is reversed and remanded for retrial, as
is the damages phase of trial for TIA 5, which was held in
phase 2. The JNOV on the retention of funds issue is reversed,
and the trial court is directed to enter judgment on that issue in
keeping with the jury verdict. The remaining issues arising out
of phase 2 are affirmed. The phase 3 judgment is reversed, to be
reconsidered following the retrial of damages, as are the trial
court’s orders regarding attorney fees and prejudgment interest.
Each party is to bear its own costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. ASHMANN-GERST, J.
circumstances, the plaintiff was “‘entitled, as a matter of right, to
recover prejudgment interest on the sum awarded from the time
such sum became due.’” (Ibid.) In the matter before us, as shown
from the varying evidence at trial, no such simple “mechanical”
calculation was possible.
87
Filed 4/21/23
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SUFFOLK CONSTRUCTION B285400
COMPANY, INC.,
(Los Angeles County
Plaintiff, Cross-defendant Super. Ct. No. BC541085)
and Appellant;
ORDER CERTIFYING
FISK ELECTRIC COMPANY, OPINION FOR PARTIAL
PUBLICATION
Plaintiff and Appellant,
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant;
R.J. DAUM CONSTRUCTION
COMPANY,
Defendant, Cross-
complainant and Respondent.
THE COURT:*
The opinion in the above-entitled matter filed on March 30,
2023, was not certified for publication in the Official Reports.
Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of the Discussion parts I.A.2 through V.
There is no change in judgment.
The requests to publish by the Los Angeles Unified School
District, the Metropolitan Water District of Southern California,
the San Bernardino County Transportation Authority, the Los
Angeles County Metropolitan Transportation Authority and the
Contra Costa Transportation Authority are granted as specified
above.
* LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
2