Landscape v. Bethel
Filed 12/4/13 Armet’s
Landscape v. Bethel Properties CA2/6
NOT TO BE PUBLISHED
IN THE 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opinion has not been certified for publication or ordered published for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 SIX
ARMET'S
LANDSCAPE, INC.,
Plaintiff and Respondent,
v.
BETHEL
PROPERTIES, LLC et al.,
Defendants and Appellants.
2d Civil No. B241956
(Super. Ct.
No. CV118019)
(San Luis Obispo
County)
Bethel
Properties, LLC, Matt Talbert and Veris Cellars (Appellants) appeal from a
judgment after a bench trial awarding respondent Armet's Landscaping, Inc.,
(Armet) $28,659.40 for breach of contract
plus prejudgment interest and attorneys' fees of $36,061.50. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Appellants
Talbert and Veris hired Armet to install landscaping and related improvements
at Veris Cellars. The written contract
specified a total price of $53,843. Talbert
and Veris made progress payments totaling $25,000 but refused to pay the
balance. Armet sued Talbert and Veris
for breach of contract and common counts and Bethel
(the owner of the Veris property) for foreclosure of a mechanic's lien. Appellants' defense was Armet's
nonperformance. The trial court found
that Armet had either fully or substantially performed under the contract and
that Talbert and Veris were responsible for any nonperformance by Armet. The trial court denied recovery on the remaining
causes of action, finding that the common counts were duplicative of the breach
of contract claim. The judgment was only
against Veris; there was insufficient evidence to hold Talbert personally
liable. The trial court did not,
however, enter a defense judgment for Talbert, although it did enter judgment
for Bethel. Neither Bethel
nor Talbert filed a memorandum of costs.
The trial court found Armet to be the prevailing party and awarded
attorneys' fees.
DISCUSSION
Standard
of Review
We review
the factual findings of the trial court for substantial evidence. On substantial evidence review, we examine
the evidence in the light most favorable to the prevailing party and give that
party the benefit of every reasonable inference. We accept all evidence favorable to the
prevailing party as true and discard contrary
evidence. We do not reweigh the
evidence or reconsider credibility determinations. (In re
Marriage of Calcaterra & Bakakhsh (2005) 132 Cal.App.4th 28, 34.) We review questions of law de novo. (Monterroso
v. Moran (2006) 135 Cal.App.4th 732, 736.)
Judicial
Admission
Appellants
contend that the written contract attached as Exhibit 1 to Armet's complaint is
a judicial admission of the contract terms that prevents Armet from introducing
evidence of other terms. (
(2002) 103 Cal.App.4th 1264, 1271.)
The complaint did not, however, allege that Exhibit 1 represented the
sole agreement between the parties. Although
the complaint alleges that Rick Armet presented Exhibit 1 to Talbert, it also
alleges that Talbert made changes to Exhibit 1 before he signed it. Because the complaint does not allege that
Exhibit 1 was the contract that governed the work that was to be performed,
there was no judicial admission. (
(2012) 211 Cal.App.4th 726, 737-738.)
Evidentiary
Issues
Appellants
contend unpersuasively that Veris should be excused from payment of the
contract price because of three failures of performance by Armet. To recover damages for breach of contract a
plaintiff must prove, among other things, that it "did all, or
substantially all, of the significant things that the contract required [it] to
do or that [it] was excused from doing those things." (CACI No. 303.)
Fountain
The plans
originally called for a fountain and electrical wiring and a water line to
serve it. Rick Armet testified that
Talbert eliminated the fountain to save costs.
Armet did not install the water line and wiring and Appellants claim
that this was a failure of performance.
The trial court found that Talbert's unclear instructions resulted in
elimination of the wiring and water supply to the fountain, not any failure by
Armet. Substantial evidence,
specifically the testimony of Rick Armet, supports this finding.
Pavers
The plans
called for installation of pavers on a walkway to end at a parking lot. Armet installed pavers to a point, but
finished the walkway with decomposed granite.
Appellants seek a set-off for the pavers that were paid for but not
installed and the cost of labor for the installation. Although the trial court found that Armet did
fail to install certain pavers, it also found that Appellants "received
essentially what the contract called for because [Armet's] failures, were
trivial or unimportant and could have been easily fixed or paid for." (Invoking, without citation, CACI No. 312,
"Substantial Performance.")
The cost of the missing pavers and the labor for installing them was
$1,670. The trial court did not abuse
its discretion in finding that Armet substantially performed and that
appellants received essentially what the contract called for.
Appellants
provide no authority for their assertion that Armet cannot recover based on
substantial performance without paying the difference between substantial
performance and full performance. Appellants'
interpretation would impermissibly nullify the concept of "substantial
performance."
Payment
to Third Party Contractor
In July 2010
appellants hired Rick Elisarraras to complete the paving of the parking lot,
which was part of Armet's work.
Appellants seek a set-off for the payments made to Elisarraras. The trial court found that Armet was not
responsible for Appellants' decision to bring in another contractor. Substantial evidence supports this finding.
Trial
Court's Failure to Enter Judgment for Talbert
The trial
court found that the evidentiary record was insufficient to hold Talbert
personally responsible for Armet's damages, yet did not enter a defense
judgment for Talbert. This was harmless
error. Talbert's only concern about the
error is that he is unable to recover costs absent entry of judgment in his
favor. As explained below, Talbert is
not entitled to costs because he failed to timely file a memorandum of costs.
Costs
Both Talbert
and Bethel argue that they are entitled to costs as prevailing parties. Both were prevailing parties because both are
defendants against whom Armet did not recover relief. (Code Civ. Proc., § 1032 subd. (a)(4).) Both have waived their claims of costs,
however.
"A
prevailing party who claims costs must serve and file a memorandum of costs
within 15 days after the date of mailing of the notice of entry of judgment . .
. or the date of service of written notice of entry of judgment . . . or within
180 days after entry of judgment, whichever is first." (Cal. Rules of Court, rule 3.1700 (a)(1).) A prevailing party who fails to timely file a
memorandum of costs waives the right to costs.
(Hydratec, Inc. v. Sun Valley 260
Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 928-929 [failure of
party to file a cost bill "is fatal to its claim for costs"].) Judgment was entered on April 11, 2010. Because neither Talbert nor Bethel filed a
their right to costs.
Talbert's
assertion that he is entitled to costs because of the trial court's failure to
enter judgment in his favor prevented him from filing a memorandum of costs has
no merit. Nothing in California Rules of
Court, rule 3.1700 states that the 15-day deadline applies only to parties
named in the judgment. Moreover, the
"appropriate remedy [for an error in the judgment] is to timely file a
cost bill in the trial court despite the error . . . . The trial court will then have an opportunity
to evaluate the issue on a motion to strike the cost bill or to tax costs, if
either is filed, or on the prevailing party's motion to amend the judgment, if
its memorandum of costs is not challenged." (Hydratec,
Inc. v. Sun Valley 260 Orchard & Vineyard Co., supra, 223 Cal.App.3d at p. 929.)
Accordingly, the trial court's failure to enter a defense judgment for
Talbert did not relieve him of the duty to file a memorandum of costs and he
has waived his right to claim costs.
Attorneys' Fees
The contract
provides that the prevailing party in a lawsuit necessary "to enforce payment
of a delinquent account" is entitled to attorneys' fees. Although the language of the attorneys' fee
clause, even as amended, is ambiguous, both Talbert and Armet testified that
the amendment was intended to provide for attorneys' fees to the prevailing
party in an action under the contract.
The party prevailing on a contract is the party who recovered a greater
relief in the action on the contract. (
209 Cal.App.4th 431, 439.) The trial
court has broad discretion in making that determination. (Ibid.) The trial court found Armet to be the
prevailing party, based on Armet's "unqualified victory." As explained above, substantial evidence
supports the trial court's findings. Therefore,
Armet is entitled to attorneys' fees under the contract.
Amount
of Attorneys' Fees
Appellant's
contention that the fee award should be reduced for time expended on Armet's
unsuccessful common count and foreclosure of mechanic's lien claims is
unavailing. Apportionment is not
necessary when fees are "'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.' [Fn. omitted.]" (Acree
v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 404-405.) The unsuccessful foreclosure of mechanic's
lien and common count causes of action were different theories of recovery premised
on the contractual relationship between the parties. The trial court thus did not abuse its
discretion by failing to apportion the attorneys' fees.
The
judgment is affirmed.
O'DONNELL, J.
We concur:
GILBERT,
P. J.
YEGAN,
J.
Jac
A. Crawford, Judge
Superior Court
County of San Luis Obispo
______________________________
Hutkin
Law Firm, Maria L. Hutkin, for Defendants and Appellants.
P.
Terence Schubert for Plaintiff and Respondent.
name="_ftn1" title=""> [1] We have not considered the
Form Interrogatories and Answers to Form Interrogatories that are included in
Respondent's Appendix. Those discovery
documents are not part of the record on appeal.
title=""> [2]
Appellants claim they are entitled to "set-offs," but provide no
authority for a contractual right to "set-off." Appellants' only legally cognizable argument
for the three areas of nonperformance is that Armet did not perform as the
contract required and therefore is not entitled to recover.
