Harmon v. Abdulzahra

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 10/9/13  Harmon v. Abdulzahra 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NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 

 
>

STUART J. HARMON et al.,               Plaintiffs, Cross-defendants and Respondents,   v.   HAZIM ABDULZAHRA,               Defendant, Cross-complainant and Appellant.

E055089               (Super.Ct.No. TEC097457)               OPINION

 

            APPEAL from the Superior
Court
of
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.

            Mario Alvarado for Defendant,
Cross-complainant and Appellant.

            Hales & Associates and Brent J. Hales for Plaintiffs,
Cross-defendants and Respondents.

            On July 24, 2009, Stuart Harmon dba
Harmon Excavating (plaintiff) filed a complaint for href="http://www.fearnotlaw.com/">breach of contract against Hazim
Abdulzahra (defendant).href="#_ftn1"
name="_ftnref1" title="">[1]  A court trial was held September 26 and 27,
2011.

The trial court decided that “plaintiff was in
the process of performing the contract here at issue on May 21, 2009,
when defendant called him off the job and ordered him to take his equipment and
leave the site.”

The trial court therefore found that defendant
had breached the contract and awarded plaintiff damages of $25,455, costs of
$3,253.15, and $30,000 in attorney fees. 
Defendant appeals.

STANDARD OF REVIEW

We apply a substantial evidence href="http://www.mcmillanlaw.com/">standard of review to the trial court’s
factual determinations.  Each party cites
the rule as stated in Bowers v. Bernards (1984)
150 Cal.App.3d 870 (Bowers).  In that case, the court defines substantial
evidence as evidence of ponderable legal significance, reasonable in nature,
credible, and of solid value.  (>Id. at p. 873.)  The Bowers
court stated:  “[T]he
existence of such ‘substantial evidence’ will be determined as follows:  When a trial court’s factual determination is
attacked on the ground that there is no substantial evidence to sustain it, the
power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination,
and when two or more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for those of the
trial court.  If such substantial
evidence be found, it is of no consequence that the trial court believing other
evidence, or drawing other reasonable inferences, might have reached a contrary
conclusion.  [Citations.]”  (Id.
at pp. 873-874.)

We apply the substantial
evidence rule to the trial court’s determination of the factual issues in
this case.

FACTS

            Defendant owned property adjacent to
Highway 74 in Lake
Elsinore.  He planned to improve the vacant land by
constructing a car wash and other buildings. 
In April 2009, defendant entered into a grading contract with
plaintiff.  The contract called for rough
grading on the project for a price of $21,875. 
Payments were to be made in four installments at unspecified times.  The contract specifically lists grading of
290 feet of keyway, 15 feet wide and two feet deep.  Subsequently, defendant signed a change order
for the keyway, which contained hourly and daily rates for equipment needed for
three to five days of work.

            The parties agree that the contract
was breached.  Plaintiff testified that,
after a disagreement on May
21, 2009, defendant told him, “that’s it, and . . .
said get off my job or I’m going to call the police.”  Two witnesses also testified that they had heard
plaintiff and defendant’s conversation: 
a surveyor on the property and one of plaintiff’s employees.

            Defendant denied the conversation
occurred and argued that plaintiff walked off the job after a dispute with the
soil engineer technician, Berdge Jolakian (Jolakian).  Jolakian testified that his job was to
observe and test the work performed by plaintiff and to report any deficiencies
he found to both the contractor (plaintiff) and the owner of the property (defendant).  Jolakian further testified that once he
informed plaintiff about the deficiencies he had found, “that’s when things
became ugly.”  Jolakian testified that on
May 21, 2009,
Jolakian gave a copy of his report to defendant.  He then testified that defendant gave a copy
of the report to plaintiff, and that’s when plaintiff left the property.  Jolakian testified that he did not remember
hearing defendant and plaintiff talk about why plaintiff was leaving.

            As noted ante, the trial court believed plaintiff’s version of events and
found in his favor.href="#_ftn2"
name="_ftnref2" title="">[2]

BREACH OF CONTRACT

            Defendant contends that plaintiff
failed to follow contract guidelines and refused to complete the work, thereby
breaching the contract before the alleged ejectment from the job.  Despite his citation to the >Bowers’ substantial evidence rule,
defendant argues that:  “The Court
specifically found that [defendant] breached the contract with
[plaintiff].  The weight of evidence
demonstrated no breach by [defendant].”

            Defendant’s first argument is that
plaintiff failed to follow the plans and specifications, as approved by the
county, and as agreed to by plaintiff. 
However, any such agreement is not stated in any of the three documents
signed by defendant.  The first document
specifically provides for rough grading of 290 feet of a keyway, 15 feet wide
and two feet deep.  Plaintiff explained
that it was standard practice to excavate to a two-foot depth for a
keyway.  Soil conditions generally
required a deeper excavation, and further excavation requires a change
order.  Plaintiff testified that he
explained this practice in detail to defendant before the first document was
signed.  After work began, he excavated
two feet and then spent a week excavating approximately six additional feet on
an hourly basis as stated in the change order. 
The total amount on the change order was $25,455.

            Since the trial court found that
defendant breached the contract by ordering plaintiff off the job, it cannot be
determined whether plaintiff would have completed the contract in accordance
with the plans and specifications.  If
the argument relates to the keyway, the evidence shows that plaintiff did the
necessary work under the contract and the change order.  Nevertheless, defendant failed to pay the
amount due under the change order.

Although he signed the change order, defendant’s
complaint seems to be that he was charged extra for the work, i.e., that
plaintiff agreed to do all the work in the plans, including all work on the
keyway, for the contract price.  The
difficulty with this argument is that the contract specified the amount of
keyway excavation (two feet deep), and it does not specify that the work
includes all the grading in the plans. 
For example, the contract specifies that it does not include fine
grading.  The grading plan does, however,
require fine grading.  Defendant claims
that plaintiff should have done the fine grading called for in the grading
plan.  Plaintiff testified that he did
the rough grading, not fine grading, as specified in the contract.  Thus, the trial court could conclude that the
contract provisions trumped the plan provisions, i.e., that plaintiff did not
agree to do all the grading provided for in the plan.

In any event, the trial court could, and did,
find that defendant breached the contract, and substantial evidence supports
the trial court’s conclusion.  (Evid.
Code, § 411.)

THE AGENCY ISSUE

            Defendant contends that Jolakian was
his agent and, accordingly, Jolakian’s dispute with plaintiff was, under agency
principles, a dispute between defendant and plaintiff.  Defendant states in his brief, “[t]hus, the
dispute between Jolakian and Abdulzahra [sic]
could be used to find that Respondent [Harmon] breached the contract.”  While this may be true, if defendant is
referring to a dispute between Jolakian and plaintiff, it doesn’t affect the
determination of who breached the contract. 
As the trial court stated:  “Any
dispute between plaintiff and Mr. Jolakian on the same day is irrelevant to defendant’s
breach.”

Defendant contests this decision by arguing that
it was a “major dispute” that resulted in “further acrimony” between plaintiff
and defendant, as Jolakian’s principal. 
Defendant contends that the court should have considered the Jolakian
dispute but failed to do so.

There is no evidence to support the argument.  The trial court apparently >did consider the evidence but merely
found it irrelevant.  It was certainly
entitled to do so because the central issue was whether defendant breached the
contract by ordering plaintiff off the job. 
We agree with the trial court that the number of disputes or the amount
of acrimony on the jobsite is essentially irrelevant to the question of who
breached the contract.

AWARD OF ATTORNEY FEES

Defendant next argues that the trial court’s
subsequent attorney fee award of $30,000 was improper.  He points out that the first two documents he
signed, the contract and the conditions and exclusions page, do not provide for
attorney fees.  The attorney fee provision
is contained in the third document, the change order.

Defendant argues that the trial court erred in
considering the three documents to be part of one contract, and in applying the
attorney fee provision to the entire contract.

The trial court could find that the change order
was part of the contract because, as plaintiff testified, it was contemplated
that there would be a change order after the final depth of the keyway was
established by the soil engineer technician. 
Defendant testified that the change order related to another issue, the
removal of a pipe and cable found during excavation, but the result is the
same:  the trial court could find that
all three documents were part of the same contract for the same project.  Defendant has not borne his burden of
demonstrating error.

The change order was signed by defendant.  Just under the signature, it states, “Should
suit be commenced to collect this invoice or any portion thereof, such sum, as
the court may deem reasonable, shall be added hereto as attorney fees.”

Defendant argues that the attorney fee provision
was not bargained for and the change order was merely an invoice “for work
already contemplated and performed prior to the change order.”  He does not cite any authority to support his
argument.

Plaintiff cites Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582 (>Amtower).  In that case, the court considered a cause of
action based on an employment contract with an attorney fee provision in
conjunction with tort causes of action. 
Although the contract clause of action was eventually dismissed,
attorney fees were awarded because the contract cause of action was an attempt
to enforce the contract.  (>Id. at p. 1603.)  The Amtower
court rejected the apportionment argument, citing the leading case of >Reynolds Metals Co. v. Alperson (1979)
25 Cal.3d 124:  “[F]ees need not be
apportioned ‘when incurred for representation on an issue common to both a
cause of action in which fees are proper and one in which they are not
allowed.’”  (Amtower, at pp. 1603-1604, quoting Reynolds, at pp. 129-130.)

The Amtower case goes on to hold: 
“Where fees are authorized for some causes of action in a complaint but
not for others, allocation is a matter within the trial court’s
discretion.  [Citation.]  A trial court’s exercise of discretion is
abused only when its ruling ‘“‘“exceeds the bounds of reason, all of the
circumstances before it being considered.”’”’ 
[Citation.]”  (>Amtower, supra, 158 Cal.App.4th at p. 1604.)

In the present case, the allegations of the
complaint were apparently made in a single breach of contract cause of action.href="#_ftn3" name="_ftnref3" title="">[3]  The trial court did not abuse its discretion
in treating all documents as part of one contract and awarding attorney fees
accordingly.

DISPOSITION

The judgment is affirmed.  Plaintiff to recover his href="http://www.mcmillanlaw.com/">costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

McKINSTER                        

                                                J.

 

We concur:

 

 

 

RAMIREZ                             

                                         P. J.

 

 

 

KING                                     

                                             J.