K.G. Mullen, Inc. v. Team Transit Mix, Inc. CA2/2

Filed 10/6/14 K.G. Mullen, Inc. v. Team Transit Mix, Inc. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

K.G. MULLEN, INC., et al., B249501

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC410282) v.

TEAM TRANSIT MIX, INC., et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Suzanne G. Bruguera, Judge. Affirmed.

Gary Kurtz, Law Offices of Gary Kurtz, and Brandon J. Anand, Anand & Associates, for Plaintiffs and Appellants.

No appearance for Defendants and Respondents.

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After one judge tentatively finds that a plaintiff has proven up its damages following the entry of default, can a second judge to whom the case is later assigned consider additional evidence and enter a smaller damages award? If so, was the second judge’s smaller award in this case supported by substantial evidence? The answer to both questions is yes, and we affirm. FACTUAL AND PROCEDURAL BACKGROUND Winters-Schram Associates (“Winters”) hired Plaintiffs K.G. Mullen, Inc. and Kevin Mullen (collectively, “Plaintiffs”) to do the structural concrete work on two jobs-- one in Malibu, and another for the Los Angeles Museum of the Holocaust. Plaintiffs sub- contracted with Defendants Team Transit Mix and its owner Tom Nelson (collectively, “Defendants”) to mix colored concrete for the Malibu job. Defendants got the color wrong, and their mistake became obvious only after the concrete dried. Plaintiffs then spent approximately $158,000 to tear out the mismatched concrete and to pour new concrete. Winters thereafter terminated Plaintiffs on the Malibu job, as well as the Holocaust Museum job, for failing to “fully pay . . . vendors and laborers on the Project[s]” and for “[w]illfully divert[ing] payments made by [Winters] for the express benefit of [Plaintiffs’] vendors and laborers . . . to other purposes.” Plaintiffs sued Defendants for negligence, and sought their costs of remediation and for $2 million in unspecified “lost prospective economic benefits.” When Defendants did not respond to the complaint, Plaintiffs sought a default and default judgment from the court. Plaintiffs submitted documentation in support of a request for $158,605 in reimbursement costs and an additional $529,326.27 in consequential damages. Plaintiffs argued that Winters had been withholding $529,326.27 in profits owed to Plaintiffs on the Malibu and Holocaust Museum jobs; that Plaintiffs lost those profits when Winters terminated them; that Winters’ termination was due to Plaintiffs’ inability to pay its vendors; and that Plaintiffs were unable to pay those vendors because they were forced to spend money fixing Defendants’ mistake.