Ondraka v. Bochinski, Inc. CA4/1 (2014) · DecisionDepot
Ondraka v. Bochinski, Inc. CA4/1
California Court of Appeal Feb 14, 2014 No. D060970Unpublished
Filed 2/14/14 Ondraka v. Bochinski, Inc. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSEPH ONDRAKA et al., D060970
Plaintiffs and Appellants,
v. (Super. Ct. No. GIN55193)
BOCHINSKI, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, William S.
Dato, Judge. Affirmed.
David A. Kay for Plaintiffs and Appellants.
No appearance for Defendants and Respondents.
INTRODUCTION
Joseph and Annette Ondraka appeal from a judgment awarding them a net amount
of $3,697 in their action against Bochinski, Inc. (corporation) and Stephen Bochinski
(Bochinski) for breach of contract and other claims. They contend we must reverse the
judgment because the court: (1) did not allow them to establish the invalidity of the
corporation's contractor's license through alter ego evidence; (2) mistakenly determined
Business and Professions Code section 7159 1 did not apply; (3) mistakenly determined
the parties modified the change order procedures in their contract by their conduct; (4)
failed to interpret key contract provisions against the corporation as the contract drafter ;
(5) mistakenly found Bochinski's testimony credible; (6) awarded the corporation an
excessive amount on its cross-complaint; and (7) deprived them of due process of law.
We conclude each of these contentions lacks merit and affirm the judgment.
BACKGROUND
The Ondrakas contracted with the corporation, a general contracting firm run by
Bochinski, to build a main house on their property (project). The corporation had
previously built a guest house on the same property. Under the terms of the contract, the
corporation agreed to furnish all labor, materials, equipment and other facilities required
to complete the project according to certain plans prepared by the Ondrakas' architect.
The Ondrakas agreed to pay the corporation $730,487.13, "subject to adjustments for
[c]hanges in the work as may be agreed to by the [parties]" or required by the contract.
Exhibit 2 of the contract contained a cost breakdown specifying both the work covered by
the contract as well as the work outside the scope of the contract for which the Ondrakas
were solely responsible.
1 Further statutory references are also to the Business and Professions Code unless otherwise stated. 2
The contract identified November 1, 2005, as the approximate project completion
date. The Ondrakas negotiated for this completion date because of financing concerns if
the project was not completed within one year. The contract further provided that "[t]ime
is of the essence" and required the corporation to give the Ondrakas a progress and
completion schedule (schedule) and to conform to the schedule, including to any agreed
upon schedule changes, schedule changes otherwise allowed under the contract, or
schedule changes required by circumstances beyond the corporation's control.
Nonetheless, the contract excused the corporation for any delay in completing the project
caused by, among other occurrences, acts of the Ondrakas or their agents and unforeseen
contingencies beyond the corporation's control.
The contract permitted the Ondrakas to change the project's scope of work with
written notice to the corporation. If the Ondrakas' changes, plan errors, or circumstances
beyond the control of the corporation required an adjustment to the contract price or
schedule, the corporation was to submit an estimate of the adjustment to the Ondrakas.
Any price adjustments were to be generally consistent with the contract's pricing
structure. However, to the extent the contract's pricing structure was inapplicable, the
contract provided "the cost of the [c]hange and/or the adjustment to the [schedule] shall
be determined by time and materials on the basis of the cost to the [corporation] plus five
percent (5%) for overhead, and fifteen percent (15%) for supervision and profit." The
corporation was not required to perform a change until it and the Ondrakas agreed in
writing on the specifics of the change, the cost or credit for it, and the schedule
adjustment.
3
If the Ondrakas failed to make a payment required by the contract, the contract
permitted the corporation to suspend its work until paid. Similarly if the Ondrakas
disputed a change or payment for a change, the contract permitted the corporation to
suspend its work until the dispute was resolved.
The contract also permitted the Ondrakas to terminate the work at their
convenience with written notice to the corporation. If the Ondrakas terminated the work,
they had to pay the corporation its actual costs for the work performed up to the
termination date, as well as the actual costs incurred because of the termination, plus 20
percent for supervision and profit.
As the project progressed, the parties did not follow the contract's change order
procedures. Instead, Bochinski would verbally advise the Ondrakas when a change was
necessary, or the Ondrakas would verbally advise Bochinski about a change they desired.
Bochinski would give the Ondrakas a general price range for the change and the
corporation would bill for the change on a time and materials basis. There was rarely any
discussion or written statement regarding the effect of the change on the project's timing.
While the parties dispute the cause, they agreed there were substantial delays in
completing the project. The project was still being framed in November 2005, and in
December the Ondrakas had to obtain an extension of their construction loan. At that
point, the corporation estimated the project would take another six months to complete.
Further straining the parties' relationship, a billing dispute arose over the
application of the contract's overhead surcharge provision. The Ondrakas believed the
4
surcharge applied only to labor and materials. The corporation believed the surcharge
applied to labor, materials, supervision, and profit.
On June 13, 2006, Joseph sent the corporation a memo stating the Ondrakas would
no longer pay any supervision, profit or overhead surcharges until they received an
accounting for the overhead surcharges incurred to that point. The next day Bochinski
visited the Ondrakas to discuss the issue. After a heated exchange between Annette and
Bochinski, the corporation declined to continue working on the project, which was then
only 60 to 65 percent complete. A few days later, the Ondrakas notified the corporation
they were terminating the contract. The project was completed without further
involvement from the corporation.
Two months after terminating the contract, the Ondrakas sued the defendants.
Their operative second amended complaint included causes of action for breach of
contract, negligence, negligent misrepresentation, intentional misrepresentation, and
violation of multiple Business and Professions Code provisions. The complaint also
alleged the corporation was Bochinski's alter ego and the corporation was not a licensed
contractor. The corporation filed a cross-complaint against the Ondrakas for failing to
pay for work completed before contract termination.
After a lengthy bench trial, which did not include a trial of the Ondrakas' alter ego
claims, the court issued a statement of decision finding each party had breached the
contract in certain respects and awarding the Ondrakas net damages of $3,697.
5
DISCUSSION
I
Corporation's Licensure
A
The Ondrakas' original and first amended complaints alleged on information and
belief that the corporation was a licensed general building contractor. However, their
second amended complaint alleged that, while the corporation held itself out as a licensed
contractor, it was not licensed because it did not comply with all of the formalities
necessary to be a valid corporation. The second amended complaint additionally alleged
the corporation was Bochinski's alter ego and he was not a licensed contractor either.2
Based on the corporation's alleged lack of proper licensure, the Ondrakas sought the
return of all monies they paid the corporation for the construction of the main house
under section 7031, subdivision (b).
The court decided against the Ondrakas on this point. The court found that,
because the Ondrakas had admitted the corporation was licensed in their original
complaint, they had not controverted the corporation's licensure. In addition, the court
found the corporation had established it was duly licensed by producing a verified license
certification from the Contractors' State License Board. The court further found the
2 The parties do not dispute Bochinski did not have a contractor's license. They also do not dispute he was not required to have a license as long as the corporation had a valid license.
6
Ondrakas had not established the corporation's failure to comply with various close
corporate formalities allowed them to recover under section 7031.
The court made its findings without the benefit of alter ego evidence because the
court bifurcated and ultimately never tried the Ondrakas' alter ego claims. On appeal, the
Ondrakas contend we must reverse the judgment and allow them to establish through
alter ego evidence that the corporation was a sham and, therefore, the corporation's
license was invalid.
B
Generally, a contractor may not sue to recover money for performing work for
which a license is required unless the contractor alleges the contractor was duly licensed
at the time the contractor performed the work. (§ 7031, subd. (a).) Concomitantly, "a
person who utilizes the services of an unlicensed contractor may bring an action in any
court of competent jurisdiction in this state to recover all compensation paid to the
unlicensed contractor for performance of any act or contract." (§ 7031, subd. (b).) When
controverted, the licensee has the burden of establishing licensure or prope r licensure,
which "shall be made by production of a verified certificate of licensure from the
Contractors' State License Board." (§ 7031, subd. (d).)
Assuming, without deciding, the Ondrakas properly controverted the corporation's
licensure, the corporation met its burden of establishing its licensure by producing the
requisite verified certificate. Nonetheless, relying on Wright v. Issak (2007) 149
Cal.App.4th 1116 (Wright) and Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th
374 (Buzgheia), the Ondrakas contend the court should have allowed them to present
7
alter ego evidence to establish the corporation's license was invalid because the
corporation itself was invalid for not complying with necessary corporate formalities.
In both Wright and Buzgheia, the courts permitted challenges to facially valid
contractor's licenses with evidence of circumstances which, if established, resulted in the
licenses' automatic suspension under specific statutes. (Wright, supra, 149 Cal.App.4th
at pp. 1120-1122; Buzgheia, supra, 60 Cal.App.4th at pp. 385-387.) The Ondrakas,
however, have not identified any statute providing a corporate contractor is not duly
licensed if it does not comply with corporate formalities. They also have not identified
any statute providing for the automatic suspension of a corporation's contractor's license
in such circumstances.3 Accordingly, they have not established that the court
prejudicially erred by failing to permit them to present evidence of such noncompliance.
(See Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 702-703 [Section 7031 does not
preclude a contractor's recovery where the contractor purportedly violated licensing laws,
but no statute automatically suspended the contractor's license or rendered it invalid due
to the violations].)
3 Section 7076.2, subdivision (a), provides for the automatic suspension of a corporation's license if the corporation, after 30 days' notice, fails to provide satisfactory proof it is registered and in good standing with the Secretary of State. The Ondrakas do not cite or rely upon this statute nor do they suggest they can present evidence showing the corporation received or failed to respond to such a notice.
8
II
Application of Section 7159
A
The Ondrakas' causes of action against the defendants included a claim the
contract was invalid because it violated section 7159 in multiple respects. However, the
court determined section 7159 did not apply because the contract was not a "home
improvement" contract within the meaning of the statute. The Ondrakas dispute this
determination, but we agree section 7159 does not apply here.
B
Section 7159 "identifies the projects for which a home improvement contract is
required, outlines the contract requirements, and lists the items that shall be included in
the contract." (§ 7159, subd. (a)(1).) A "home improvement contract" is a contract
between an owner or tenant and a contractor for the performance of a home improvement
priced at more than $500. (§§ 7151.2, 7159, subd. (b).) " 'Home improvement' means
the repairing, remodeling, altering, converting, or modernizing of, or adding to,
residential property." (§ 7151.) It includes "the construction, erection, replacement, or
improvement of driveways, swimming pools, including spas and hot tubs, terraces,
basements, and other improvements of the structures or land which is adjacent to a
dwelling house." (Ibid.) Essentially then, "[a] 'home improvement contract' is a
contract . . . that provides for the remodeling, alteration, repair, or improvement of a
9
personal residence, in excess of $500." (Miller & Starr, Cal. Real Estate (3d ed. 2010),
§ 27:55, p. 27-240.)
The evidence in this case shows the Ondrakas contracted with the corporation for
the construction of a separate, primary residence. It does not show they contracted for
the remodeling, alteration, repair, or improvement of their existing guest house.
Accordingly, the court correctly determined section 7159 did not apply.
Moreover, contracts made in violation of section 7159 are not necessarily void.
They may be enforced in appropriate cases to avoid unjust enrichment. (Asdourian v.
Araj (1985) 38 Cal.3d 276, 292-293; Arya Group, Inc. v. Cher (2000) 77 Cal.App.4th
610, 615-616.) As the Ondrakas have not established, or attempted to establish, the
corporation's alleged violations of section 7159 would have precluded enforcement of the
contract, they have not established they were prejudiced by the court's failure to apply
section 7159.
III
Written Change Orders
A
The parties' contract specified procedures for change orders, including requiring
written notice of the proposed change, a written estimate of the price of the changes, and
a written agreement to the changes signed by both parties. The court found neither party
complied with nor insisted the other party comply with these procedures. Instead, the
parties consistently addressed change orders informally. The court, therefore, found the
parties modified the contract's change order procedure by their conduct. Alternatively,
10
the court found the Ondrakas waived compliance with the formal change order
procedure.
On appeal, the Ondrakas contend the court erred in its determination because
"[e]xisting contract law does not provide for the oral modification of required written
contract terms by 'conduct' or implicit waiver." Instead, under existing law, they contend
the change order procedure could not be orally modified unless the modification was
supported by new consideration, which did not occur. We conclude there is no merit to
these contentions.
B
The Ondrakas support their position by citing to Civil Code section 1698,
subdivision (c), which provides in part: "Unless the contract otherwise expressly
provides, a contract in writing may be modified by an oral agreement supported by new
consideration." Assuming, without deciding, this code section applies to this case, it is
not dispositive as subdivision (d) of the code section provides: "Nothing in this section
precludes in an appropriate case the application of rules of law concerning . . . waiver of a
provision of a written contract." As the court correctly noted, parties may by their
conduct waive a requirement for a contract modification to be in writing if evidence
shows the modification conforms to their intent. (Biren v. Equality Emergency Medical
Group, Inc. (2002) 102 Cal.App.4th 125, 141). Since the Ondrakas do not dispute the
evidence supports the court's finding in this respect, the Ondrakas have not established
the court erred in determining the corporation did not breach the contract by failing to
follow the contract's change order procedure.
11
IV
Interpreting Contract Against Corporation
The Ondrakas contend the court erred by failing to interpret several contract
provisions against the corporation as the drafter of the contract. To support their position,
they rely on Civil Code section 1654, which provides: "In cases of uncertainty not
removed by the preceding rules, the language of a contract should be interpreted most
strongly against the party who caused the uncertainty to exist." However, Civil Code
section 1654, does not apply unless other canons of construction fail to dispel the
uncertainty. (Decter v. Stevenson Properties (1952) 39 Cal.2d 407, 418; California
National Bank v. Woodbridge Plaza LLC (2008) 164 Cal.App.4th 137, 145; Oceanside
84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1448.) The Ondrakas do
not discuss how the court arrived at the challenged interpretations or why the court did
not or could not rely on other canons of construction. Consequently, they have not
established the court erred by failing to apply Civil Code section 1654 in this case.
V
Bochinski's Credibility
The Ondrakas contend the court improperly evaluated their fraud claims because,
for various stated reasons, the court mistakenly found Bochinski's testimony was
credible. We note that none of the Ondrakas' arguments on this point is supported with
citation to authority. " 'Appellate briefs must provide argument and legal authority for
the positions taken. "When an appellant fails to raise a point, or asserts it but fails to
12
support it with reasoned argument and citations to authority, we treat the point as
waived." ' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Additionally, because the evaluation of a witness's credibility necessarily involves
consideration of the witness's demeanor and manner of testifying, the evaluation is not
susceptible to appellate review. (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127,
141.) "The law has long recognized the problem of appellate review in the matter of
credibility of witnesses based upon their demeanor, and for that reason the rule has
evolved that the trier of facts is the sole and exclusive judge of the credibility of
witnesses as determined by their demeanor. . . . [¶] On the cold record a witness may be
clear, concise, direct, unimpeached, uncontradictedbut on a face to face evaluation, so
exude insincerity as to render his credibility factor nil. Another witness may fumble,
bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript
be hardly worthy of belief. But one who sees, hears and observes him may be convinced
of his honesty, his integrity, his reliability. All of this is because a great deal of that
highly delicate process we call evaluating the credibility of a witness is based on what
might be called, for lack of a better word, 'intuition'that intangible, inarticulable
capacity of one human being to evaluate the sincerity, honesty and integrity of another
human being with whom he comes in contact. There is no way of knowing or proving
how much of the testing process is encompassed in the 'traditional' tests of credibility
such as provable bias or interest, contradiction or impeachment, all demonstrable on the
record, and how much of that evaluation process comes from the purely subjective
13
reaction of the trier of facts to the attitude, demeanor and manner of testifying of the
witnessnot demonstrable on the record." (Id. at pp. 140-141.)
VI
Excess Award
The court awarded the corporation $66,959 on its cross-complaint against the
Ondrakas. The Ondrakas contend this amount was excessive because the corporation
only requested an award of $20,610.38 in its cross-complaint. Neither the record nor the
law supports this contention.
The record does not support this contention because a fair reading of the
corporation's cross-complaint indicates the corporation did not limit its damages claim to
$20,610.38. Rather, the corporation sought damages "in the sum of $20,610.38 for work
performed under [the contract], plus such additional compensatory and consequential
sums including, without limitation, costs of delay, costs of termination, lost profits, and
investigation costs resulting from said breaches, all in an amount to [be] proven at
trial . . . ." (Italics added.)
Even if the corporation had limited its damages claim to $20,610.38, the
corporation was not necessarily barred from recovering additional damages. In a
contested action, "the court may grant the plaintiff any relief consistent with the case
made by the complaint and embraced within the issue." (Civ. Proc. Code, § 580, subd.
(a); American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, 883 [following a
trial on the merits, the court may grant any form of relief supported by the evidence and
to which the parties had notice, whether the relief was requested in the pleadings or not].) 14
Further, the court admitted evidence showing the corporation sustained $66,950 in
damages from the Ondrakas' breach of the contract. "The parties thus actually tried the
issues of damages in amounts above the limits set forth in the body of the complaint. The
amount of the trial court's judgment on those issues therefore could not have come as any
surprise to [the Ondrakas] and was the source of no prejudice to [them] since no
additional time or effort by [them] was required to meet those issues." (Castaic Clay
Manufacturing Co. v. Dedes (1987) 195 Cal.App.3d 444, 450; see also, Grubb & Ellis
Co. v. Bello (1993) 19 Cal.App.4th 231, 241 [in a contested case, a prayer which seeks
the wrong or inadequate relief is not a serious defect].)
VII
Due Process Violations
A
The court conducted the bench trial in this case over 15 days between March 22
and April 29, 2010. At the outset of the trial, the court deferred all rulings on relevancy
objections. The court explained it did not believe there was a need to be terribly
concerned about relevancy objections for a bench trial. It also assured the parties it
would not be basing its decision on irrelevant information.
The parties' trial estimate was 10 days. On the eighth day of trial, in the midst of
the Ondrakas case-in-chief, it became clear to the court the parties would exceed their
estimate. After a chambers meeting to discuss scheduling, the court determined it would
be unreasonable to allow the presentation of evidence to exceed counsel's estimate by
more than 50 percent. Consequently, the court limited the parties' presentation of
15
evidence to a total of 15 days, with four of the days allocated to the corporation and
Bochinski and the remainder to the Ondrakas.
Between May and mid-June 2010, the parties filed written closing arguments and
in mid-July, they apparently orally argued their respective positions for an entire day.4
They then submitted supplemental closing briefs between early August and early
September. The Ondrakas' supplemental closing brief included relevancy objections to
all or part of 23 exhibits. The corporation and Bochinski responded to the objections in
one of their supplemental closing briefs.5
The court ordered the matter submitted on September 9, 2010. In November, the
court vacated its submission order pending "the preparation of transcripts of certain of the
witnesses' testimony." The court ordered the matter resubmitted in February 2011. The
court subsequently discovered the transcripts of two primary witnesses' testimony were
incomplete. After receiving the completed transcripts, it again ordered the matter
resubmitted as of April 11, 2011.
The court issued a proposed statement of decision on June 30, 2011, and directed
the parties to file any objections to it in accordance with rule 3.1590(d) of the California
Rules of Court. On July 13, the Ondrakas filed a request for statement of decision
seeking the factual and legal bases for the court's decision on 81 issues. Two days later,
the court struck the request because the court had already issued a proposed statement of
4 The corporation and Bochinski's written closing arguments are not in the record. In addition, there is no transcript of the oral arguments in the record.
5 None of the challenged exhibits are in the record. 16
decision. The court then granted the Ondrakas 10 days' leave to file and serve any
objections to the proposed statement. The court additionally advised the Ondrakas, "A
seriatim list of the sort contained in the stricken request is not sufficient, particularly
given the fact that most of the listed issues were addressed in the proposed statement.
Rather, the objections should identify specific alleged defects in the proposed statement
with a clear and concise explanation why the factual determinations are not supported by
the trial record or why the legal reasoning is in error. The objections should also identify
any necessary issues that were not addressed in the proposed statement, explaining why
reaching those issues is necessary to the decision in light of the [c]ourt's reasoning. In
this regard, in particular, [the Ondrakas'] counsel should explain why resolution of the
bifurcated alter ego claims . . . is required and, if so, how those remaining issues should
be tried." (Italics added.)
On July 25, 2011, the Ondrakas filed objections to the proposed statement. Their
objections did not address the bifurcated alter ego claims. The corporation and Bochinski
filed their response to the Ondrakas' objections on August 18. The court issued its final
statement of decision on September 12. The statement of decision did not address the
relevancy objections or the bifurcated alter ego claims. Given the Ondrakas' failure to
address the alter ego claims in their objections to the proposed statement, the court
determined the Ondrakas had waived them.
B
The Ondrakas contend the court deprived them of due process of law by deferring
and then failing to rule on their relevancy objections, by imposing strict time limits on the
17
trial that precluded them from calling all the witnesses they wanted to call, by taking 18
months to complete the proposed statement of decision, by rendering a decision when it
only had access to part of the trial transcripts, and by failing to conduct the bifurcated
portion of the trial before completing proposed statement of decision. We conclude there
is no merit to any of these points.
1
Regarding the relevancy objections, generally a court's failure to formally decide a
reserved ruling on an evidentiary objection is an implied ruling in favor of admissibility
and against the objection. (Clopton v. Clopton (1912) 162 Cal. 27, 32.) Although the
practice of handling objections in this fashion is discouraged, an appellate court will not
reverse a judgment because of this practice absent a showing of prejudice. (Ebner v.
West Hollywood Transfer Co. (1919) 45 Cal.App. 186, 191.) No prejudice exists where
the challenged evidence was admissible. (Casey v. Richards (1909) 10 Cal.App. 57, 61.)
In addition, we presume a court sitting without a jury did not base its decision on
irrelevant evidence where there is competent evidence to support the decision. (Southern
California Jockey Club v. California Horse Racing Bd. (1950) 36 Cal.2d 167, 176;
Monogram Industries, Inc. v. Sar Industries, Inc. (1976) 64 Cal.App.3d 692, 704.) The
Ondrakas have not included the challenged evidence in the record (see fn. 3, ante) or
attempted to demonstrate any of it was inadmissible. They also have not attempted to
rebut the presumption the court did not base its decision on irrelevant evidence.
Accordingly, they have not established they were prejudiced by the court's failure to rule
on the deferred relevancy objections.
18
2
Regarding the trial time limits, "courts have fundamental inherent equity,
supervisory, and administrative powers, as well as inherent power to control litigation
before them. [Citation.] 'In addition to their inherent equitable power derived from the
historic power of equity courts, all courts have inherent supervisory or administrative
powers which enable them to carry out their duties, and which exist apart from any
statutory authority. [Citations.] "It is beyond dispute that 'Courts have inherent
power . . . to adopt any suitable method of practice, both in ordinary actions and special
proceedings, if the procedure is not specified by statute or by rules adopted by the
Judicial Council.' [Citation.]" [Citation.] That inherent power entitles trial courts to
exercise reasonable control over all proceedings connected with pending litigation . . . in
order to insure the orderly administration of justice.' " (Rutherford v. Owens-Illinois, Inc.
(1997) 16 Cal.4th 953, 967.) We review a court's exercise of its inherent power for abuse
of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 209.)
In this case, the record shows the court imposed time limits on the presentation of
evidence after it became clear the parties would far exceed their trial estimate. Even with
the time limits, the court permitted the parties to exceed their trial estimate by 50 percent
and allocated more than two-thirds of the available time to the Ondrakas. The court also
permitted the parties to present extensive written and oral closing arguments. Although
the time limits may have prevented the Ondrakas from presenting all of their character
evidence, they were able to present the key evidence in their case, including their own
testimony and their expert's testimony. They were also able to extensively question
19
Bochinski, whose testimony had more direct bearing on the assessment of his credibility
than any character evidence would have had. Accordingly, we cannot conclude the court
abused its discretion in imposing the time limits.
3
Regarding the time lapse between the end of the trial and the court's issuance of
the statement of decision, the Ondrakas perfunctorily assert without citation to authority
that the time lapse was prejudicial under the circumstances and, therefore, warrants
reversal. "One cannot simply say the court erred, and leave it up to the appellate court to
figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) In addition, as we
have previously noted, " '[a]n appellate brief "should contain a legal argument with
citation of authorities on the points made. If none is furnished on a particular point, the
court may treat it as waived, and pass it without consideration." ' " (Ibid.)
Moreover, the record shows the time lapse was not due to any dereliction on the
court's part. Several months were consumed by the parties' submission of written and
oral closing arguments. Most of the rest of the time was consumed waiting for transcripts
of the principal witnesses' testimony. After receiving the transcripts and finally
submitting the matter, the court produced a 32-page proposed statement of decision in
approximately a month and a half. The statement included a detailed factual and legal
analysis of the parties' respective claims. The Ondrakas do not assert there is insufficient
evidence to support any of the court's findings. Accordingly, they have not demonstrated
either that the time lapse was error or that it prejudicially harmed them.
20
4
Finally, the Ondrakas contend that we must reverse the judgment because the
court failed to conduct a bifurcated trial on their alter ego claims. They have forfeited
this contention because they have provided no analysis or authority supporting it. (Niko
v. Foreman, supra, 144 Cal.App.4th at p. 368.) They have also forfeited this contention
because the court specifically invited them to explain why, in light of the proposed
statement of decision, it was necessary to try their alter ego claims and they did not
accept the court's invitation. (See Code Civ. Proc., § 634, Fladeboe v. American Isuzu
Motors Inc. (2007) 150 Cal.App.4th 42, 59; Ermoian v. Desert Hospital (2007) 152
Cal.App.4th 475, 497-498; Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20
Cal.App.4th 1372, 1380 [failure to raise specific objections to omissions or ambiguities
in a statement of decision waives the right to challenge the omissions or ambiguities on
appeal].) Although they assert on appeal the evidence was necessary for them to
challenge the corporation's licensure, we are not persuaded by this assertion for the
reasons stated in part I, ante. Accordingly, the Ondrakas have not demonstrated the
court's failure to conduct a trial on their alter ego claims was prejudicial error. (See
Domach v. Spencer (1980) 101 Cal.App.3d 308 313 [where findings are made on issues
which determine cause and uphold judgment, other issues are immaterial and failure to
make findings on them does not constitute prejudicial error].)
21
DISPOSITION
The judgment is affirmed. Respondents are awarded their appeal costs.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
22
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment, concluding that the appellants failed to establish that the trial court erred in its rulings regarding contractor licensure, the inapplicability of Business and Professions Code section 7159, the modification of contract procedures, or the conduct of the trial.
Issues
Whether the trial court erred by failing to allow alter ego evidence to challenge the validity of the corporation's contractor's license.
Whether the trial court erred in determining that Business and Professions Code section 7159 did not apply to the construction contract.
Whether the trial court erred in finding that the parties modified the contract's change order procedures through their conduct.
Whether the trial court's management of the trial and evidentiary rulings deprived the appellants of due process.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The Ondrakas, however, have not identified any statute providing a corporate contractor is not duly licensed if it does not comply with corporate formalities.”
“The evidence in this case shows the Ondrakas contracted with the corporation for the construction of a separate, primary residence. It does not show they contracted for the remodeling, alteration, repair, or improvement of their existing guest house.”
“As the court correctly noted, parties may by their conduct waive a requirement for a contract modification to be in writing if evidence shows the modification conforms to their intent.”