Dallah v. Konopacki

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/18/13  Dallah v. Konopacki CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

CHIBUEZE J. DALLAH,               Cross-complainant and Appellant,   v.   EDWARD KONOPACKI,               Cross-defendant and Appellant.

E053286               (Super.Ct.No. RIC456695)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Dallas
Holmes, Judge.  (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed in part; reversed in
part.

            Alan
S. Yockelson; and Joseph G. Maiorano for Cross-defendant and Appellant.

            Law
Offices of Darlene Allen and Darlene Allen for Cross-complainant and Appellant.

            This
appeal and cross-appeal arise from a dispute concerning the construction of a
self-service carwash facility.  Chibueze Dallah
and Sharon Dallah (collectively “Owners”), sued Edward Konopacki (Contractor),
who was doing business as EK Construction Co., for (1) breach of contract, (2)
breach of the covenant of good faith and fair dealing, (3) indemnity, and (4)
declaratory relief.  Contractor sued
Owners for (1) breach of contract, (2) indemnity, and (3) declaratory
relief. 

            Following
a bench trial, the trial court found
Contractor breached the contract with Owners by not completing the self-service
carwash facility in a “timely and workmanlike manner” and awarded Owners
$116,315, plus interest, costs, and attorney’s fees.  The trial court also found Owners breached
their contract with Contractor “by not paying for all the work completed.”  The trial court awarded Contractor $76,853,
plus interest, costs, and attorney’s fees, resulting in a net judgment in favor
of Owners in the amount of $39,462.

            Contractor
raises four issues on appeal.  First,
Contractor asserts the trial court erred by ruling on claims that were not part
of Owners’ complaint, e.g. considering negligence or construction defect
issues.  Second, Contractor contends the
trial court erred by awarding damages to Owners for construction defects that
were not alleged in the complaint. 
Third, Contractor asserts the trial court erred by permitting Owners to
present the testimony of an expert witness. 
Fourth, Contractor contends the trial court should have granted his
motion for a new trial because the verdict was not supported by substantial
evidence. 

            In
their cross-appeal, Owners assert the trial court erred by not issuing a
proposed statement of decision in response to Owners’ objection to the court’s
tentative decision.  We affirm the
judgment against Owners and reverse the judgment against Contractor.

>FACTUAL AND PROCEDURAL HISTORY

            Owners
owned a parcel of property in Riverside.  Chibueze Dallah (Owner) hired Contractor to
construct a six-bay self-service, and two-bay automatic car wash on the
property.  Owner and Contractor entered
into a contract on May 25, 2005.  The contract reflected Owner would pay
Contractor a total of $698,760.  The
construction was supposed to be completed by January 1, 2006. 
The contract required Contractor to “construct the structure in conformance
with the plans . . . in a workmanlike manner.” 
The contract included a provision for attorney’s fees and costs against
the defaulting party. 

            Contractor
subcontracted the masonry work to Galindo Masonry, Inc. (Galindo).  The scope of Galindo’s work included creating
the foundation footings, slab, curbs, driveways, block walls, and grout.  The construction was not completed by January
2006.  Contractor believed Owner was
misappropriating money from a “contingency fund” that was set up for the construction,
so Contractor “pulled off the job” until the accounting was “figured out.”  Owner believed the work was not completed on
schedule because Contractor failed to hire a sufficient amount of employees and
Contractor was working on two other projects at the same time. 

            On
July 14, 2006, Owner and
Contractor amended the original contract. 
In the amendment, (1) Owner agreed to immediately pay Contractor
$35,700; (2) Contractor agreed to pay $20,000 to various suppliers of
materials; (3) Owner would pay $3,000 for extra labor to complete the project;
(4) Contractor would return to work by July 17, 2006; (5) Contractor and Owner
waived claims against one another that may have occurred prior to July 17,
2006; (6) the new completion date for construction was scheduled for August 7,
2006; and (7) if the work were not completed before August 8 then Contractor
would pay $300 per day on Owners’ construction loan until the work was
completed.

            The
construction was not completed by August 8. 
“[I]n August or September” Contractor stopped working on the car wash
construction and did not return to the project. 
In October or November, the City of Riverside gave Owners a conditional
certificate of occupancy, so the car wash could be used.  Work that needed to be completed after
Contractor left the project included (1) repairing a defective backflow device,
which returned water to the City’s system; (2) electrical work; (3) a canopy or
patio cover for the vacuum area; (4) creating an attic storage space; and (5) a
concrete walkway.

            Owner
found various problems with the work Contractor performed such as
(1) Contractor moved soil around the property, which resulted in the
carwash building being too tall; (2) the driveways into two of the bays were
not level, which caused cars to “bounce”; (3) the drains for rainwater needed
to be adjusted; (4) green algae developed on the walls of the automatic
carwashes, which could be fixed by installing new walls or resurfacing the
walls every year; (5) the automatic carwash bay walls were also discolored with
white marks; and (6) the electrical work for the vacuum areas was not properly
completed, so credit card machines were unable to be installed. 

            Cemex
supplied cement and concrete for the carwash construction.  Cemex was not paid for $30,000 worth of
materials.  Cemex had a mechanic’s lien
recorded against Owners’ carwash property due to the non-payment.  On September 8, 2006, Cemex filed a complaint
to foreclose on the mechanic’s lien.  The
complaint named Contractor, Owners, and Galindo as defendants. 

            Owners
filed a cross-complaint against Contractor for (1) indemnity,
(2) declaratory relief, (3) breach of contract, and (4) breach of the
covenant of good faith and fair dealing. 
Owner alleged Contractor breached the contract “by failing and refusing
to complete the construction project under the terms of the agreement, failing
to make the payments toward the construction loan under the amendment, and
failing to pay plaintiff for materials provided for the project.”  Additionally, Owner alleged Contractor
“failed to complete the electrical work, concrete approach, block wall,
waterproofing, draining, and camera installation, among other items . . .
.”  Contractor filed a cross-complaint against
Owners for (1) breach of contract, (2) indemnity, and (3) declaratory
relief.  On August 6, 2010, Owners filed
a second cross-complaint against Contractor for negligence. 

            In
September 2010, Cemex’s complaint was dismissed after Owners settled with Cemex
out of court for $30,000.  Galindo was
dismissed due to filing for bankruptcy. 
Thus, only Owners and Contractor remained in the lawsuit.  Contractor objected to Owners’ second
cross-complaint.  The trial court found
the second cross-complaint was untimely, not properly joined, and filed without
leave from the court.  The trial court
said it would take evidence “without regard” to the second complaint. 

            Trial
began on September 9, 2010.  The
following morning, Contractor informed the court that Owners brought an expert
witness to court.  Contractor objected to
the expert witness testifying because, while the expert appeared on the witness
list, Contractor was not given an opportunity to depose the expert, the expert
was not designated as an expert, and the operative cause of action was breach
of contract—not negligence.  Contractor
argued that Owners failed to sue for construction defect and lost their
negligence cause of action so there was “no reason” for an expert to testify. 

            Owners
argued the expert testimony was needed to demonstrate Contractor breached the
contract by not performing his work in a “workmanlike manner,” in particular,
Contractor failed to place a waterproofing barrier under the foundation that
would have prevented algae from forming. 
Further, Owners asserted there was not a request or demand for
exchanging expert witness information, and Owner had mentioned the possible
expert witness at his deposition.

            The
trial court said it would limit the expert to testifying about whether the
project was completed in a “workmanlike manner.”  The trial court granted Contractor permission
to depose the expert during the lunch recess, but Contractor declined.  The expert, James Feagin, testified at trial.  Feagin was an expert in “masonry
concrete.”  Feagin visited Owners’ carwash
and saw the algae on the walls of the automatic carwash bays. 

            Feagin
explained that the salts and sulfate from the cement “bleed out” through the
cement itself.  The bleed out creates a
“white film” on the dark brown blocks. 
Moisture usually causes the bleed out. 
Thus, the bleed out typically means there is moisture in the wall.  The moisture can cause the steel rebar in the
wall to rust and deteriorate.  Feagin
determined the moisture was coming from below the walls.  He cored a hole in the foundation slab
looking for a vapor barrier.  Feagin
found a vapor barrier, but noticed “[t]he slab was not poured according to the
plans.”  Feagin believed the moisture was
traveling up the walls because the vapor barrier was not “flush against the
slab.”  Feagin explained the block walls
act like sponges, absorbing the moisture.

            Feagin
believed the best way to repair the problem would be to remove the entire slab,
clean the foundation, and seal it. 
Feagin did not believe the moisture was from the water used to wash
cars, because (1) that water would be only on the surface of the walls, and (2)
the self-service bays did not have the same problems as the automatic
bays. 

            The
trial court found Contractor “breached his contract with [Owners] by not
completing the carwash in a timely and workmanlike manner.”  The trial court awarded Owners damages for
(1) replacing the backflow device, (2) finishing the attic, (3) replacing
concrete, (4) rewiring, (5) engineering, (6) replacing a breaker,
(7) purchasing a patio cover, (8) fixing or replacing a damaged camera,
(9) removing the slabs, (10) repouring the slabs, (11) cleaning the
foundation, and (12) sealing the foundation.

>DISCUSSION

            A.        CLAIMS

            Contractor
asserts the trial court erred by ruling on claims that were not part of Owners’
complaint, e.g. considering negligence or construct defect issues.  We agree.

            Contractor’s
contention presents a legal issue with undisputed facts, which we review de
novo.  (Hensel Phelps Const. v. San Diego Unified Port Dist. (2011) 197
Cal.App.4th 1020, 1037.)  A court may
grant a cross-complainant “any relief consistent with the case made by the
[cross-]complaint.”  (Code Civ. Proc., §
580, subd. (a).)  “[A] breach of contract
cause of action[] must be pleaded with specificity.”  (Levy
v. State Farm Mut. Auto Ins. Co. (2007) 150 Cal.App.4th 1, 5-6.)

            In
the breach of contract cause of
action, Owner alleged Contractor “breached the agreement by failing and
refusing to complete the construction project under the terms of the agreement,
failing to make the payments toward the construction loan under the amendment,
and failing to pay [Cemex] for materials provided for the project.  [Contractor] has failed to complete the
electrical work, concrete approach, block wall, waterproofing, draining, and
camera installation . . . .”  The
complaint does not allege with specificity that Contractor breached the
contract by failing to complete the work in a workmanlike manner.  The complaint does not raise any assertion
regarding the manner in which the work was conducted—just that certain work was
not done or was not finished.

            When
the trial court issued its ruling on Owners’ cross-complaint, it wrote,
“[Contractor] breached his contract with [Owners] by not completing the
car[wash] in a timely and workmanlike manner.” 
The trial court found Owners were owed money for replacing the backflow
device; finishing the attic; replacing the concrete; rewiring; engineering;
replacing a breaker; removing and repouring the slabs; and for purchasing a
camera that had been damaged, and a patio cover which was needed to mask the
building’s problematic height.  Other
than “finishing the attic” it appears that much of the damages were awarded for
fixing the work done by Contractor—not for items Contractor failed to complete,
as reflected by the “re” in front of the various verbs, e.g. rewiring,
replacing, removing, and repouring.

            Since
Owner alleged Contractor breached the contract by not finishing certain items,
it is not proper to enter a judgment against Contractor for items he completed
in an unprofessional manner, because that was not the allegation in the
complaint.  Therefore, we conclude the
trial court erred.

            In
Owners’ first argument they contend the trial court did not err in its judgment
because the trial court erred in dismissing Owners’ second cross-complaint,
which included a negligence cause of action. 
Worded differently, the trial court’s error was harmless because Owners
tried to sue for negligence but the trial court improperly dismissed the
negligence cause of action.  Assuming for
the sake of argument that Owners are correct in asserting their second
complaint was improperly dismissed, the trial court’s error would not be
harmless because of due process problems. 
A trial court cannot issue a judgment on allegations that were dismissed
before trial started because Contractor had no means of knowing such
allegations were being litigated.  (>Wilson v. Sunshine Meat & Liquor Co.
(1983) 34 Cal.3d 554, 563 [“notice is a fundamental aspect of due
process”].)  Accordingly, we are not
persuaded the trial court’s error was harmless.

            Second,
Owners assert the judgment was not outside the scope of the complaint because
construction contracts include an implied warranty against incomplete and
defective construction.  This argument is
also problematic for due process reasons. 
Owners’ cross-complaint did not identify an implied warranty concerning
defective construction as the portion of the contract that was breached.  Rather, the cross-complaint reflects
Contractor allegedly breached the contract by not completing electrical work,
concrete work, a block wall, waterproofing, draining, and installing a
camera.  Since an implied warranty
against defective construction was not the basis for the breach of contract
action, we find Owners’ argument to be unpersuasive.

            Owners
assert that within the cross-complaint they alleged Contractor breached the
contract, “by failing and refusing to complete the construction project under the
terms of the agreement,” and this allegation incorporates the failure to
complete the construction in a workmanlike manner.  This argument is not persuasive because
breach of contract allegations must be pled with specificity. (>Levy v. State Farm Mut. Auto Ins. Co., >supra, 150 Cal.App.4th at p. 5.)  The specifics of the pleading reflect
Contractor breached the agreement by not finishing certain aspects of the
project; as set forth ante, the
specifics do not relate to the manner in which the work was completed.  Thus, we are still confronted with the
problem of the pleading not matching the judgment—focusing on the general, or
vague, allegations does not resolve this issue due to the pleading
requirements. 

            This
same reasoning applies to Owners’ argument concerning the allegation of
Contractor breaching the implied covenant of good faith and fair dealing—the
argument fails because the pleading is too vague and we must look to the
specifics of the cross-complaint, which only concern a failure to finish the
work.

            Third,
Owners assert the trial court did not err because the court could properly
award “any and all relief which may be appropriate under the scope of the
pleading and within the facts alleged and proved, irrespective of the theory
upon which they may be alleged. 
[Citation.]”  Owners’ argument is
not persuasive because the judgment is not within the scope of the pleading or
the specific facts alleged in the pleading.

            Fourth,
Owners contend Contractor had advance notice of Owners’ negligence cause of
action because Owners filed their second cross-complaint in August 2010, prior
to trial commencing.  Owners’ argument is
not persuasive because the trial court found the second complaint was untimely,
not properly joined, and filed without leave from the court.  The trial court said it would take evidence
“without regard” to the second complaint. 
Thus, there was no way for Contractor to know he needed to defend
himself against allegations of negligence, construction defect, or work
performed in an unprofessional manner.

            Fifth,
Owners assert Contractor’s argument fails because he did not demonstrate that
he suffered prejudice.  Due process
violations are reversible per se.  (>Martin v. County of Los Angeles (1996)
51 Cal.App.4th 688, 698 [denial of jury trial]; Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd. (1984) 153
Cal.App.3d 965, 971 [denial of cross-examination].)  Notice is a fundamental aspect of due
process.  (McMaster v. City of Santa Rosa (1972) 27 Cal.App.3d 598, 602.)  In this case, a judgment was entered against
Contractor concerning the manner in which Contractor performed his work without
Contractor having been given notice that the manner of his work was an issue
being litigated.  This failure to provide
notice is a due process violation and therefore reversible per se.

            To
the extent it could be argued the error is not reversible per se, we conclude
the error was prejudicial.  (See >Hinrichs v. County of Orange (2004) 125
Cal.App.4th 921, 928 [“[P]rocedural due process violations, even if proved, are
subject to a harmless error analysis”].) 
When a trial proceeds on allegations that were not raised in the
cross-complaint or answer,href="#_ftn1"
name="_ftnref1" title="">^[1] prejudice “easily result[s] because of the
inability of the other party to investigate the validity of the factual
allegations while engaged in trial or to call rebuttal witnesses.”  (Garcia
v. Roberts (2009) 173 Cal.App.4th 900, 910.)  The expert witness’s testimony is an example
of the prejudice suffered by Contractor due to trial proceeding on allegations not
raised in the cross-complaint—Contractor was given only a lunch recess to
depose the expert, and the larger portion of the damages award appears to
relate to allegations that were not set forth in the cross-complaint.  The lack of notice concerning the workmanship
allegations placed Contractor at a prejudicial disadvantage for (1)
cross-examining the expert on allegations not raised in the cross-complaint,
and (2) arguing against damages for allegations not raised in the
cross-complaint.  Thus, we conclude the
error resulted in a miscarriage of justice.  (Hawkins
v. Wilton (2006) 144 Cal.App.4th 936, 947.)

            B.        CONTRACTOR’S REMAINING CONTENTIONS

            Contractor
contends the trial court erred by (1) awarding damages to Owners for
construction defects that were not alleged in the complaint, (2) permitting
Owners to present the testimony of an expert witness, and (3) not granting his
motion for a new trial because the verdict is not supported by substantial
evidence.  We will reverse the judgment
entered against Contractor for the reasons set forth ante, thus, these three contentions are moot because we can offer
no further relief.  (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357,
364 [a case is moot when a ruling can have no practical impact or provide any
effectual relief].)

            C.        TENTATIVE DECISION

                        1.         PROCEDURAL
HISTORY

            The
trial court issued a written tentative decision on September 14, 2010.  Contractor filed objections to the court’s
tentative decision.  Owners also filed
objections to the tentative decision.  In
the objections, Owners asserted the trial court failed to address their
indemnity cause of action in the tentative decision.  Owners also reminded the trial court that
Owner wanted to be reimbursed $26,000 for money paid to Galindo, and that
Contractor did not provide receipts for three alleged payments.  The trial court’s final written judgment was
drafted by Owners’ attorney and filed in February 2011.  The final judgment refers the reader to the
tentative decision to find the reasons supporting the judgment. 

                        2.         ANALYSIS

            Owners
contend the trial court erred by not issuing a proposed statement of decision
in response to Owners’ objections to the court’s tentative decision.  We disagree.

            The
rule concerning a request for a statement of decision is as follows:  “Within 10 days after announcement or service
of the tentative decision, whichever is later, any party that appeared at trial
may request a statement of decision to address the principal controverted
issues.  The principal controverted
issues must be specified in the request.” 
(Cal. Rules of Court, rule 3.1590(d).)

            Owners
filed objections to the trial court’s tentative decision.  In the objections, Owners explained why they
believed the court’s tentative decision was inadequate.  Owners did not file a request for a statement
of decision—only objections.  Thus, the
trial court did not err by not issuing a statement of decision, because a
statement of decision was never requested. 
(Cal. Rules of Court, rule 3.1590(d).)

            Owners
contend the trial court erred because their objections were, in substance, a
request for a statement of decision. 
Owners assert, “the Objection to Tentative Decision was sufficient to
trigger the requirement of a proposed statement of decision from the trial
court.”  It is unclear how exactly the
trial court should have inferred Owners wanted a statement of decision issued,
since Owners never requested the trial court take any action nor used the words
“statement of decision” in their written objections.  While Owners assert it is reasonable to infer
they wanted a statement of decision given the substance of their objections, a
more reasonable inference is that Owners wanted to preserve issues for appeal
and were simply setting forth their objections for the record with no further
action required by the trial court. 
Thus, we find Owners’ argument to be unpersuasive.

>DISPOSITION

            The
judgment against Edward Konopacki is reversed. 
The judgment against Chibueze J. Dallah and Sharon K. Dallah is
affirmed.  Edward Konopacki is awarded
his costs on appeal.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

MILLER                                            

J.

 

 

We concur:

 

 

RAMIREZ                                         

                                                     P. J.

 

 

McKINSTER                                    

                                                         J.