California Court of Appeal Oct 9, 2013 No. E055089Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 E055089 Respondents, (Super.Ct.No. TEC097457) v. OPINION HAZIM ABDULZAHRA,
Defendant, Cross-complainant and Appellant.
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.
1
On July 24, 2009, Stuart Harmon dba Harmon Excavating (plaintiff) filed a
complaint for breach of contract against Hazim Abdulzahra (defendant).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 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
1 The complaint is not in our record because defendant failed to ask that it be included in the record on appeal.
2
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.
3
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.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].”
2 The trial court’s credibility determination was not surprising. For example, defendant testified that he had not had any discussion with plaintiff about the change order regarding the depth of the keyway. Defendant was then impeached with his deposition testimony. In that testimony, defendant described discussions with plaintiff about the keyway and the change order.
4
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,
5
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.
6
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.
7
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.)
8
In the present case, the allegations of the complaint were apparently made in a
single breach of contract cause of action.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 costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
KING J.
3 See footnote 1, ante.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the trial court's finding that the defendant breached the contract by ordering the plaintiff off the job site, and that the trial court did not abuse its discretion in awarding attorney fees based on a change order that was part of the overall contract.
Issues
Whether substantial evidence supports the trial court's finding that the defendant breached the contract.
Whether the trial court erred in determining that the change order was part of the contract and that the attorney fee provision applied to the entire agreement.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the trial court could, and did, find that defendant breached the contract, and substantial evidence supports the trial court’s conclusion.”
“The trial court could find that all three documents were part of the same contract for the same project.”