Phillips v. McIntosh

TUTTLE, J.

Plaintiff seeks to recover the sum of $1,131.99 for work performed and materials furnished. At the close of her case, the court granted defendants’ motion for nonsuit, and plaintiff prosecutes this appeal from the order granting said motion.

The sole question on appeal is whether or not the evidence brings the case within the purview of section 7031 of Business and Professions Code, which reads as follows:

“No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action in any court of this State for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract.”

Plaintiff made no proof of complance with said section, and relied solely upon the theory that she was not a contractor, but an employee, and hence required no license.

Section 7026 of the Business and Professions Code defines the term “contractor” as follows:

“The term ‘contractor’ for the purposes of this chapter is synonymous with the term ‘builder’ and, within the meaning of this chapter, a contractor is any person, except a licensed architect or a registered civil engineer acting solely in his professional capacity, who in any capacity other than as the

[342]

employee of another with wages as the sole compensation, undertakes to or offers to undertake to or purports to have the capacity to undertake to or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith.”

It is the duty of the trial court to deny a motion for non-suit if there is any substantial evidence which, with the aid of all legitimate inferences favorable to the plaintiff, tends to establish the averment of the complaint, or, in other words, where plaintiff’s evidence would support a judgment in his favor. (9 Cal. Jur., § 36, pp. 558-559.) We will proceed to subject plaintiff’s evidence to the foregoing rule.