Sub-Zero Excavating v. Clean Fuels Nor-Cal






Filed 1/21/11 Sub-Zero Excavating v. Clean Fuels Nor-Cal CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

SUB-ZERO EXCAVATING, INC., Plaintiff and Respondent, v. CLEAN FUELS NOR-CAL, INC., Defendant and Appellant.	G042230 (Super. Ct. Nos. 07CC00085, 07CC00114, 07CC02066, 07CC10839 & GC037825) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed, with directions.
Law Office of Jefford C. Davis and Jefford C. Davis for Defendant and Appellant.
Law Office of Patrick L. Garofalo and Patrick L. Garofalo for Plaintiff and Respondent.
* * *
Defendant Clean Fuels Nor-Cal, Inc., appeals from a judgment after a bench trial in which the trial court awarded plaintiff Sub-Zero Excavating, Inc., $35,766.50 in damages for breach of an oral contract. Plaintiff performed pipe and drainage trenching as a subcontractor for defendant to build a Fountain Valley gas station, but defendant failed to pay plaintiff or other subcontractors for their work because the principal did not pay defendant’s charges. Defendant challenges the sufficiency of the evidence to support the trial court’s damages verdict because plaintiff did not move to admit at trial the invoices or other written documentation of the amounts it billed defendant. But defendant’s field manager, Billy Epps, admitted plaintiff performed the work and that plaintiff provided defendant notice it filed a mechanic’s lien for $35,000 after defendant ignored plaintiff’s requests for payment. Epps testified there was no dispute over the correctness of the $35,000 figure and that the amount was “due and ow[ed]” to plaintiff. Examined by defendant’s attorney, Epps reiterated, “I knew we owed them money, yes,” and when the attorney asked whether “it was particularly the $35,000 as set forth in the mechanic’s lien[,]” Epps stated, “Yeah, and I said I believe that to be correct.”
Because the testimony of a single witness is sufficient to prove a material fact (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134 (Jensen); accord, People v. Gammage (1992) 2 Cal.4th 693, 700-701 (Gammage) [uncorroborated testimony suffices to support trier-of-fact’s verdict]), we affirm the judgment. But in the absence of admission of the invoices into evidence or testimony otherwise establishing defendant owed plaintiff more than $35,000, we direct the trial court to amend the judgment to award plaintiff $35,000 instead of $35,766.50.
II
DISCUSSION
It is a mystery why plaintiff did not move to have the five invoices totaling $35,766.50 admitted into evidence. Plaintiff and defendant included the invoices among 98 exhibits they identified in their pretrial “Joint Exhibit List and Stipulations Thereto.” The stipulations included defendant’s waiver of foundation and authentication objections to the exhibits, but expressly “reserved and retained” until trial all other objections to admissibility.
Both parties discussed the invoices extensively at trial. The only two witnesses to testify — defendant’s field manager, Billy Epps, and plaintiff’s corporate officer, Robert Fletcher — addressed the invoices on direct and cross-examination. Of the five relevant invoices, however, the testimony revealed specific dollar amounts for only three of them: $5,580 (Exhibit 6, invoice #5895), $4,820 (Exhibit 17, invoice #5921), and $13,383.50 (Exhibit 25, invoice #5935); these three invoices totaled $23,783.50.[1] Neither witness identified how much defendant owed plaintiff as reflected in the other two invoices (Exhibits 11 & 31). It was not until the close of the case, after both witnesses stepped down, that plaintiff’s counsel stated, “I will certainly submit. Just for the [c]ourt’s edification, in order to assist the [c]ourt, the outstanding invoices total $35,766.30.” (But see, e.g., Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090-1091 [unsworn statements by counsel do not constitute evidence.) The record does not reflect any of the invoices were admitted into evidence.
Nevertheless, as noted, Epps’s admission defendant owed plaintiff $35,000 for the work it performed is sufficient to support damages in that amount. Because Epps’s testimony suffices to support a damage award up to $35,000 (see Jensen, supra, 35 Cal.App.4th at p. 134; Gammage, supra, 2 Cal.4th at pp. 700-701), defendant’s focus on the unadmitted invoices is unavailing.
Defendant’s reliance on People v. Thuss (2003) 107 Cal.App.4th 221 is misplaced. There, the defendant could not complain that search warrant affidavits from other cases by the allegedly overreaching affiant had not been admitted, since the defendant did not move the writings into evidence. The affiant’s declaration in the defendant’s case furnished probable cause for the search warrant that issued. Thuss has no application here, where testimony supported the trial court’s ruling, without need for any documentary evidence.
Defendant’s reliance on Evidence Code section 1523, which provides that “oral testimony is not admissible to prove the content of a writing” is similarly misplaced. The witnesses’ discussion of the invoices at the behest of both attorneys was not aimed at proving the contents of those invoices and, in any event, is beside the point. Simply put, Epps’s admission defendant owed plaintiff $35,000 is sufficient by itself to support judgment for plaintiff, without need for any documentary corroboration. If anything, the use of the unadmitted invoices and mechanic’s lien may be viewed as refreshing the witnesses’ recollection, and defendant’s failure to object to that usage below forfeits the issue on appeal. Indeed, Epps’s testimony concerning the $35,000 figure referenced in the mechanic’s lien reveals he had independent knowledge sufficient to opine that the amount was “correct” and “due and ow[ed]” based on plaintiff’s satisfactory work.
III
DISPOSITION
The judgment is affirmed, with directions to the trial court to modify the damages award to $35,000 instead of $35,766.50. Plaintiff is entitled to its costs on appeal.



ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



FYBEL, J.





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