Nixon v. Lafler
Filed 1/22/14 Nixon v.
Lafler CA2/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
LARRY NIXON,
Plaintiff
and Appellant,
v.
adrienne lafler et al.,
Defendants
and Respondents.
B247679
(
Super. Ct. No. BC467290)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Michelle R. Rosenblatt, Judge. Affirmed.
C.
Timothy Lashlee for Plaintiff and Appellant.
Young
& Young and George W. Young for Defendants and Respondents.
introduction
Plaintiff and appellant Larry Nixon
claims for breach of contract and negligence against his neighbors Adrienne
Lafler and Marvin Bucholz (collectively, respondents) and on respondents’
cross-claims against Nixon for breach of contract. This dispute
among neighbors arose out of the rebuilding of a wall between their adjacent
properties. The project was subject to a
written agreement between the neighbors.
Nixon contends that the trial court erred in denying his claims based on
respondents’ failure to remove dirt left on his property, and in granting
respondents’ breach of contract claim based on Nixon’s refusal to allow them to
access his property to retrieve
the dirt which they needed to replace on their own property. He also contends that the trial court
erroneously awarded respondents damages
for their costs to purchase replacement dirt.
We find that substantial evidence supported the trial court’s findings
and thus affirm the judgment.
factual and procedural background
The parties entered into a “Fence Line
Agreement†(the agreement) dated August 12, 2010, and prepared by Nixon, whereby
respondents agreed to replace an existing chain link fence separating the
parties’ neighboring residential properties in La Puente with a new block wall,
and agreed to use their best efforts to complete the construction by November 1, 2010. Nixon agreed that during the construction, the
excavated dirt could be stored on his property, and respondents would remove
the dirt after the wall was constructed and regrade and they would restore his property
to its original state. Respondents
assumed liability for “[a]ny damage done to humans, animals, or loss of
material items due to theft or damage while the property is unsecured because
of the construction,†and assumed responsibility for the well being and
confinement of the farm animals on Nixon’s property.
The agreement further provided: “The following omissions to Exhibit 1[
must be corrected: [¶] a. In
order to be valid the engineer’s signature must be in RED ink. [¶]
b. Need name and address of
engineer and plot/site plan showing the elevation and wall configuration. [¶]
c. Need certificate of insurance.â€
The contractor S&H Cement and its
agents provided evidence of vehicle insurance and workers’
building department and was told that S&H had liability insurance. Nixon was satisfied with the proof of
insurance and permitted construction of the wall to go forward, which involved,
in part, use of a “Bobcat†tractor to dig and transport dirt onto Nixon’s
property.
On September
12, 2010, Nixon sent a letter to respondents, asserting that they were
responsible for the theft of his saddle, for damage to his dog run caused by the
Bobcat, and for a missing survey stake.
In addition, the letter demanded that Nixon be provided with
certificates of liability and worker’s compensation insurance before workers
could enter his property again to complete the job. Thereafter, Nixon refused access to workers
attempting to remove the soil from his property.
On November
26, 2010, Nixon wrote another letter, this time to respondents’ counsel, stating
that he was anxious to have the soil removed from his property but that there
was a significant problem remaining to be resolved involving soil sinking
around the footing of the wall. He wrote: “I am willing to allow any licensed, insured
excavation engineers access to my property for the purpose of evaluating and
remedying this problem. Any heavy
equipment involved must be operated by a licensed, insured and capable operator
and a copy of the insurance and license must be provided two business days
prior to access to the property.â€
On March 29,
2011, respondents’ counsel sent a letter to Nixon stating, “I believe the
best situation to resolve this is that we hire a contractor who is licensed and
insured to move the dirt back onto my clients’ property. . . . [¶]
When the dirt is moved it will also give the contractor an opportunity
to fix the grade issues that resulted from the moving of the dirt.†The letter also asked Nixon to provide a
recommendation for a contractor if he had one.
According to Bucholz’s testimony,
Nixon never recommended a contractor and respondents were unable to find
another one to move the dirt from his property.
Bucholz testified that on April 18, 2011, he spoke to Nixon and
told him that respondents needed the soil, and that if Nixon did not grant them
access, they would purchase replacement soil and sue Nixon for the costs. Nixon continued to refuse access and soon
afterwards, respondents purchased replacement soil from another source and neither
removed the soil from Nixon’s property nor regraded his land.
Nixon sued respondents for breach of
written contract, breach of oral contract, and negligence. In particular, he alleged that respondents
breached the agreement by failing to remove the excavated soil and regrade his
property, which required him to hire someone to do so at a cost of at least $15,800. Nixon also alleged that during construction
respondents’ agents had damaged his property, including a block wall, a horse
corral, a survey stake, and the bumper of his truck, that they had left a gap
between the new wall and his fence that allowed two goats to escape, and that
they had left his property unsecured resulting in the theft of a saddle from
his property. He also sued for breach of
oral contract, alleging that the parties orally agreed that respondents would
rent Nixon’s RV truck for $124 a month for use as a bathroom facility during
the construction period.
Respondents cross-complained for
breach of contract, alleging that Nixon had committed a breach by refusing to
allow respondents access to his property in order to remove the dirt, and
alleging that they suffered damages by having to purchase replacement dirt and
pay to get it onto their property.
The trial court conducted a two-day
bench trial, after which the parties stipulated to a “joint summary of
testimony†that outlined the substance of the witnesses’ testimony. The trial court issued a lengthy and detailed
statement of decision. The court concluded
that the agreement “requires a certificate of insurance†and found that Nixon
was shown proof of vehicle insurance by an agent or employee of S&H and worker’s
compensation insurance by S&H, and that Nixon knew that S&H had
provided proof of liability insurance to the County building department for the
purpose of obtaining a permit for the construction project.
The court further found that once the
permit was issued, Nixon allowed S&H to work and drive heavy equipment on
his property, dump the dirt from respondents’ property onto his, move items
around, care for the animals, and use his RV’s bathroom, and did not express a
lack of satisfaction with the proof of insurance that he had been shown. Based on these facts, the court concluded that
Nixon “accepted the proof of insurance shown to him as meeting the ‘need
certificate of insurance’ requirement and that he waived the right to demand a
certificate of insurance as he let the job move forward.†The court further found that “Nixon’s conduct
was inconsistent with the intent to enforce ‘need certificate of insurance’ and
induced a reasonable belief that the condition was fulfilled or extinguished.†Although the court found most of Nixon’s
testimony to be credible, it deemed “disingenuous†his testimony regarding his
reasons for demanding proof of insurance for the dirt removal and regrading
phase, “given that he let S&H’s [B]obcat operator onto his property in the
first instance and the evidence shows that he also allowed another [B]obcat
operator onto his property without any knowledge or concern about the insurance
status of that other [B]obcat operator.â€
The court found that evidence of Nixon’s waiver of the term requiring a
certificate of insurance was “clear and convincing.â€
The court further found that “there is
no term in the contract requiring that the certificate of insurance be shown
again before the removal of dirt and regrading phase. Nixon drafted the contract. If this was material, he should have put it
in the contract.â€
Having found that Nixon had no
contractual right to demand a certificate of insurance before permitting
respondents access to his property to remove the soil, the court found that
respondents had not breached the agreement by failing to remove the dirt and
regrade Nixon’s land, given that Nixon prevented them from doing so. Further, the court concluded that Nixon
breached or anticipatorily breached the agreement by not allowing respondents
back onto his property to remove the dirt.
With respect to damages on respondents’
cross-complaint, the court awarded them $18,250 for their cost in replacing the
soil. On Nixon’s complaint, the court
awarded him $2,160 to replace the corral, $3,820 to fix the damaged wall, $250
to close the gap between the wall and the fence, and $124 for use of the RV,
for a total damages award of $6,354.
Nixon timely appealed from the judgment.
discussion
Nixon contends that the trial court erred
in concluding that respondents were excused from their responsibility to remove
the dirt from his property and regrade his land based on Nixon’s refusal to
grant access until a certificate of insurance was provided to him. He further contends that the court
erroneously found him in breach of contract and erroneously denied his claims
based on respondents’ failure to move their dirt. He also challenges the court’s award of
damages on respondents’ cross-claim for breach of contract.
Our review of the judgment is
conducted in view of the trial court’s issuance of a detailed statement of
decision following the bench trial. We
review the trial court’s express factual findings in the statement of decision for
substantial evidence. (
206 Cal.App.4th 999, 1009 (Apex).) Findings of fact are liberally construed to
support the judgment. (
208 Cal.App.4th 181, 189.) Further, the
ultimate facts found in the court’s statement of decision necessarily include
findings on the intermediate evidentiary facts that sustain them, and any
conflict in the evidence is resolved in support of the trial court’s decision. (Community
Youth Athletic Center v. City of
1385, 1407.) We review legal issues
under a de novo or independent standard.
(Apex, supra, 206 Cal.App.4th
at p. 1009.) Thus, in interpreting
contractual terms, “‘[w]hen no extrinsic evidence is introduced, or when the
competent extrinsic evidence is not in conflict, the appellate court independently
construes the contract.’ [Citation.]†(Fink
v. Shemtov (2012) 210 Cal.App.4th 599, 608.)
I. Nixon’s Waiver of Term Requiring
Certificate of Insurance
“‘A cause of action for breach of
contract requires pleading of a contract, plaintiff’s performance or excuse for
failure to perform, defendant’s breach and damage to plaintiff resulting
therefrom.’ [Citation.]†(Hale
v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.) “‘[P]revention of performance by one party to
a contract excuses performance by the other [party].’ [Citation.]â€
(Id. at p. 1387.)
Any contractual term is “subject to
waiver by the party for whose benefit [it is] made. [Citation.]†(Galdjie
v. Darwish (2003) 113 Cal.App.4th 1331, 1339, fn. omitted.) Contractual provisions may be waived by
conduct. (Pease v. Brown (1960) 186 Cal.App.2d 425, 428; Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 598 (
‘which, according to its natural import, is so inconsistent with an intent to
enforce the right as to induce a reasonable belief that such right has been
relinquished.’ [Citations.]â€); see
[when party to a contract accepts other party’s performance without objection
it is assumed the performance was that contemplated by the agreement].) “‘The burden . . . is on the party claiming a
waiver of a right to prove it by clear and convincing evidence that does not
leave the matter to speculation, and “doubtful cases will be decided against a
waiver†[citation].’ [Citation.]†(Waller
v. Truck Ins. Exchange, Inc. (1995) 11
Cal.4th 1, 31.)
“Whether there has been a waiver is a
question of fact. [Citations.] We review the trial court’s finding of waiver
under the deferential ‘substantial evidence’ standard.†(Bickel
v. City of Piedmont (1997) 16 Cal.4th 1040, 1052-1053, superseded by
statute on another ground as stated in DeBerard
Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668; see Savaglio, supra, 149 Cal.App.4th at p. 598.)
Nixon’s chief contention is that the
evidence the trial court relied upon to find a waiver was not strong enough to
satisfy the “clear and convincing†standard. The trial court found that the following facts
established a waiver by Nixon: Nixon was
shown proof of vehicle insurance and worker’s compensation insurance by
S&H, and Nixon was informed by the city building department that S&H
had provided proof of liability insurance.
In response, Nixon did not express a lack of satisfaction with the proof
of insurance that he had been shown, and instead allowed S&H to access and
work on his property, including using Bobcats, dumping the dirt from
respondents’ property onto his, moving things around, caring for the animals,
and using the bathroom on his RV. In
light of the fact that Nixon previously had permitted S&H’s Bobcat operator
onto his property and also allowed another Bobcat operator to work his property
without any proof of insurance, the court did not credit Nixon’s testimony that
he refused access for the dirt removal phase out of a legitimate concern over
the status of the insurance held by respondents’ contractor.
Where, as here, the substantial
evidence test applies and “the evidence gives rise to conflicting reasonable
inferences, one of which supports the finding of the trial court, the trial
court’s finding is conclusive on appeal.
[Citation.] That rule applies
even where the standard of proof in the trial court was ‘clear and convincing
evidence’ rather than ‘a preponderance of the evidence.’ [Citations.]â€
(Rubin v.
(1990) 218 Cal.App.3d 502, 513 [“The existence or nonexistence of a waiver
involved issues of fact determined by the lower court. Where different inferences might fairly and
reasonably have been drawn the choice made by the trial court, in the absence
of an abuse of discretion, is binding on appeal.â€].) The court’s finding that a waiver occurred
based on the above facts was not an unreasonable inference. Therefore, under the applicable standard of
review, we will not disturb its finding.
Nixon also makes conclusory arguments
that the trial court erred in finding that a waiver had occurred because there
was no consideration provided, because the waiver was not in writing, and
because there was no evidence that respondents detrimentally changed their
position. However, Nixon’s arguments are
incorrect under the law. (See
(1903) 140 Cal. 57, 67 [no consideration required for waiver as opposed to
estoppel]; 13 Williston on Contracts (4th ed. 2013) § 39:26, p. 675 [“It
is well settled that a party to a written contract may orally, or by
implication from conduct, waive performance of a contract term or condition
inserted in the contract for its benefit and that the waiver does not require a
writing.â€]; Rubin, supra, 159
Cal.App.3d at p. 298 [“[D]etrimental reliance is not a necessary element of
waiver, only of estoppel.â€].) Civil Code
section 1541, upon which Nixon relies in arguing that consideration or a
writing are required, governs the requirements of a release, not a waiver
implied from conduct. (
Cal.3d 18, 31, fn. 7 [“an agreement to discharge from liability previously
incurred is more normally denominated a release [than a ‘waiver’]. Civil Code section 1541 permits the
extinction of an obligation, unsupported by consideration, provided that the
release is in writing. The writing must,
however, expressly show the creditor’s intent to extinguish the obligation.â€])
In sum, substantial evidence supported
the trial court’s determination that Nixon waived his contractual right to
demand a certificate of insurance.
II. Trial Court’s Finding of Material
Breach
The trial court found that Nixon’s
refusal to grant access to his property for the dirt removal phase constituted
a material breach. “‘[I]n contract law a
material breach excuses further performance by the innocent party. [Citations.]’
[Citations.] ‘Normally the
question of whether a breach of an obligation is a material breach, so as to
excuse performance by the other party, is a question of fact. [Citations.]’
[Citation.]†(
Cal.App.4th 1590, 1602-1603; see Brown v.
Grimes (2011) 192 Cal.App.4th 265, 277.) Substantial evidence supported the trial court’s
conclusion that Nixon’s refusal to allow respondents onto his land constituted
a material breach that in turn excused respondents’ failure to remove the soil
and regrade Nixon’s property, and also justified damages on respondents’
cross-claim.
We reject Nixon’s contention that any
breach by Nixon was “nullified by the subsequent actions†of the parties. Nixon contends that he retracted his refusal
to permit access to his property when respondents agreed on March 29, 2011 that they would hire a licensed and insured
contractor to remove the soil and fix the grading issues. In its statement of decision, the trial court
took note of the fact that the March 29, 2011 letter upon which Nixon
relies led him to believe that respondents would hire a different licensed
contractor to remove the dirt and fix the grading issues. However, ultimately, the trial court found
that Nixon denied access to his property, in breach of the agreement. Because we must imply “all necessary findings
supported by substantial evidence†and “‘construe any reasonable inference in
the manner most favorable to the judgment, resolving all ambiguities to support
an affirmance’†(Lewis v. Fletcher Jones
Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 443 (Lewis)), we conclude that the trial court necessarily credited two
facts to which Bucholz testified: first,
that respondents tried to hire another contractor other than S&H to remove
the soil from Nixon’s property but could not get one; and second, that on April
18, 2011, several weeks after the March 29, 2011 letter was sent, Nixon was
still prohibiting access to his property even after Bucholz spoke to him and stated
that respondents needed the dirt and if Nixon did not grant them access, they
would purchase dirt and sue him for the costs.
Thus, there was substantial evidence presented at trial that Nixon returned
to his stance that he would not permit S&H access to his property in order
to remove the dirt. Accordingly, we will
not disturb the court’s conclusion that Nixon breached the agreement by failing
to permit respondents access to his property.
III. Damages
Nixon also contends that the trial
court erred in awarding respondents $18,250, their cost to purchase replacement
dirt and have it trucked onto their property.
He asserts that it was not reasonable for respondents to buy replacement
dirt.
A plaintiff may not be awarded damages
that could have been mitigated by reasonable effort or expenditures. The defendant (or here, the cross-defendant
Nixon) bears the burden of proving a plaintiff failed to mitigate damages. (Powerhouse
Motorsports Group, Inc. v. Yamaha Motor Corp.,
867, 884 (Powerhouse).) “‘The fact that reasonable measures other
than the one taken would have avoided damage is not, in and of itself, proof of
the fact that the one taken, though unsuccessful, was unreasonable. [Citation.]
“If a choice of two reasonable courses presents itself, the person whose
wrong forced the choice cannot complain that one rather than the other is
chosen.†[Citation.]’†(Royal
Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24,
41.)
We review for substantial evidence the
trial court’s implicit finding that respondents acted reasonably in purchasing
replacement soil in April 2011. (
884 [“Whether a plaintiff acted reasonably to mitigate damages . . . is a
factual matter to be determined by the trier of fact, and is reviewed under the
substantial evidence test.â€]) The permit
for the block wall did not expire until September
2, 2011, but Bucholz testified that the City building department pressured him
to put the soil back on his property and regrade it before May 2011 and told
him that otherwise he would have to pull new permits. He testified that therefore he had no choice
but to purchase soil. However, the court
found not credible Bucholz’s testimony that he had no choice in this regard,
given the evidence that the permit for the block wall did not expire until
September 2, 2011, and respondents’ failure to present any evidence that a
different permit applied as to the soil removal and regrading.
The trial court’s findings could be
construed to be ambiguous. On the one
hand, the court did not believe Bucholz’s testimony that respondents had no
choice but to purchase replacement soil.
On the other hand, the court found that “Nixon is liable for the cost of
replacing the soil that he wrongfully would not allow [respondents] to retrieve
from his property,†the court thus impliedly finding that respondents did not
fail to mitigate their damages.
name="_ftnref3" title="">[3] However, Nixon did not assert either before
the entry of judgment or in conjunction with a new trial motion or a motion to
vacate the judgment that the statement of decision was ambiguous in this regard
or request clarification of the decision on this issue. “[W]e therefore must infer findings to
support the judgment.†(
866, 911; Chapala Management Corp. v.
Stanton (2010) 186 Cal.App.4th 1532, 1535 [“If the statement of decision is
ambiguous or omits material factual findings, we will infer any factual
findings necessary to support the judgment.â€].)
As discussed above, Bucholz testified
that respondents tried to hire another contractor to remove the soil from Nixon’s
property but could not get one.
Therefore, sufficient evidence in the record supports the determination
that this
option
was not available to respondents, thus narrowing their remaining options.
believe Bucholz’s testimony that he had “no choice†but to purchase replacement
soil in April 2011, the law does not require that respondents have had no other
choice before incurring these costs.
Rather, respondents were required only to make reasonable efforts to
avoid damages. Given the length of the impasse
on the matter of the soil on Nixon’s property, the trial court could reasonably
have found that respondents were justified in concluding that it was unlikely
that Nixon was ever going to provide them access to his property, and that it
was not unreasonable to bypass him and obtain replacement soil without waiting
until the expiration date of the permit.
In sum, substantial evidence supports
the trial court’s determination of respondents’ damages.
>
disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
EDMON, J.*
*Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant
to article VI, section 6 of the California
Constitution.
name="_ftn1" title="">[1] The factual
background is taken from the facts and evidence in the record and the trial
court’s statement of decision.
name="_ftn2" title="">[2] The document
referred to as Exhibit 1 was not in evidence at trial, and the court inferred
that it was the plans and specifications for the construction project.
