Johnson v. Polo Villas Partners
Filed 8/11/06 Johnson v. Polo Villas Partners CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| CLARENCE JOHNSON, Plaintiff and Appellant, v. POLO VILLAS PARTNERS, Defendant and Respondent. |
F048221
(Super. Ct. No. CV-251973)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.
J. Craig Jenkins for Plaintiff and Appellant.
Law Offices of Jeffrey S. Young and Jeffrey S. Young for Defendant and Respondent.
-ooOoo-
Plaintiff and appellant Clarence Johnson, individually and doing business as C. Johnson Plastering (Johnson), filed an action in Kern Superior Court for damages for breach of an oral contract arising out of the alleged failure of defendant and respondent Polo Villas Partners, LLC (Polo Villas) to pay Johnson for plastering labor, equipment and materials installed at an apartment complex Polo Villas was building (the project). Johnson alleged he had an oral contract with Polo Villas to perform stucco, plastering and metal work on the project, Polo Villas orally requested modifications to the contract while he was performing the contract consisting of extra work the contract did not call for, he performed the extra work as requested, and Polo Villas refused to pay for the extra work. One week before the December 2004 trial, the trial court granted Johnson's motion for leave to file a first amended complaint, which increased the amount of damages alleged to have been sustained from $54,924.08 to $162,924.08, and added a new cause of action based on the theory of quantum meruit.[1]
Following a three day bench trial, the trial court issued a written intended decision, which it subsequently adopted as its statement of decision after Johnson requested one. The trial court found the parties had entered into an oral contract for Johnson to apply three coats of medium sand finish stucco to the project for $223,455; there were three written change orders executed which increased the total contract price to $261,667.10; and Polo Villas paid Johnson a total of $252,814.42, leaving a balance due of $8,852.68. The trial court rejected Johnson's claim for extra work, finding there was no express contract to increase the contract price accordingly and quantum meruit recovery was precluded because it was contrary to the terms of the express contract.[2]
On appeal, Johnson argues the trial court erred in finding in Polo Villas's favor on his quantum meruit claim. As we shall explain, substantial evidence supports the trial court's finding. Accordingly, we will affirm the judgment.
FACTS
Andrew Fuller is one of two managers of Polo Villas, which owns the Polo Villas apartment complex. Fuller, who has a general contractor's license, supervised construction of the apartment complex, which was comprised of 14 buildings labeled either type A or type B, in 2002 and 2003.
The Oral Agreement
Johnson is a licensed plasterer who has worked in plastering since 1958. In April 2002, Johnson was invited to bid on the project. Johnson reviewed some project drawings and saw the exterior plaster was to contain an Elastomeric finish. The plans did not specify whether a smooth or three-coat stucco sand finish would be used, but they did indicate the soffits would be wood and would not be plastered.
On June 10, 2002, Johnson submitted a written proposal for a three-coat plaster system excluding Elastomeric finish and exterior soffits. According to Johnson, Fuller spoke to him after receiving the revised proposal and asked him about the different types of available finishes. Johnson told him there was a full spectrum of available finishes, from one to three coats. Fuller asked Johnson to submit a bid assuming the use of three different installation systems – Elastomeric, acrylic and the regular three-coat system. On July 17, 2002, Johnson submitted a written proposal which contained prices for each of the three systems, excluding the trash enclosures and soffits: $300,880 for Elastomeric, $287,095 for acrylic, and $223,455 for a three coat with â€
