McAndrew v. HAZEGH

[1565]

Opinion

HOLLENHORST, J.

Defendant Hassan Hazegh (Hazegh) appeals the judgment following a court trial which awarded to plaintiff Thor McAndrew (McAndrew) $10,755.20 due under an oral contract, and ordered foreclosure of the mechanic’s lien. The judgment further awarded attorney fees and a statutory penalty of 2 percent per month on the judgment pursuant to Civil Code section 3260 (section 3260).

1

FACTS

On May 13, 2001, McAndrew, a general contractor, entered into a construction contract with Hazegh. When the work was completed, McAndrew submitted an invoice showing an outstanding balance of $10,755.20. Hazegh refused to pay, contending he had already paid in full. McAndrew recorded a mechanic’s lien and on April 23, 2002, sued Hazegh for breach of contract, common counts, enforcement of stop notice, and foreclosure of mechanic’s lien. Additionally, the complaint sought interest (a 2 percent penalty) under section 3260, subdivision (g).

A bench trial was held on May 1 and 5, 2003. The evidence at trial showed that, in May 2001, Hazegh and McAndrew entered into a construction contract, whereby McAndrew would perform drywall work for Hazegh in connection with real property located in Rancho Cucamonga, California, in exchange for $38,500 “or less.” The contract provided that the money would be paid “after the completion of the job.” There would be no installment payments or withholding of any retention. However, McAndrew billed for his work in installments at various times from May to November 2001. Also, the contract provided that it could be modified or amended only “if the amendment is made in writing and is signed by both parties.”

Hazegh testified that he never asked McAndrew to perform any work outside the scope of the contract, never authorized, whether orally or in writing, any extra work to be performed, and never received any written change order pertaining to purported extra work from McAndrew during the time the work under the contract was being performed. In contrast, McAndrew testified that, from time to time, Hazegh asked him to do extra work which he performed in Hazegh’s presence since Hazegh was at the jobsite virtually every day. The work was completed around September 24, 2001. McAndrew attempted to keep track of the “extra work” and eventually prepared written documentation related to such extra work which he faxed to