Filed 2/4/20 Rubin v. Aspenleiter CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

ANNETTE RUBIN,

Plaintiff, Cross-defendant and Appellant,

v.

FREDERICK A. ASPENLEITER,

Defendant and Respondent;

ASPEN CUSTOM WOODWORKING, INC.,

Defendant, Cross-complainant and Respondent.

2d Civ. No. B295455

(Super. Ct. No. 15CV02057)

(Santa Barbara County)

A homeowner sued a corporate contractor and its principal alleging breach of a construction contract. The corporate contractor cross-complained for damages for breach. A jury found against the homeowner on the complaint, and awarded damages to the contractor on the cross-complaint. The judgment on the cross-complaint states that it is in favor of both the contractor and the principal. We correct the error by removing the principal from the judgment as not a party to the cross-complaint. In all other respects, we affirm.

FACTS

Annette Rubin hired Aspen Custom Interior Woodworking, Inc. (Aspen) pursuant to an oral contract to furnish and install interior finish work in her home on a time and materials basis. Aspen is owned by Frederick Aspenleiter. Aspenleiter hired subcontractors to help with the work. Rubin agreed to pay Aspen weekly for the services provided at $65 per hour.

For the first six months of the job, Rubin paid Aspen weekly as agreed and Aspen paid its subcontractors. Thereafter, Rubin stopped paying Aspen, claiming that she lost the invoices or that her bookkeeper needed more information. Aspen continued to work without payment for another six weeks, then left the job. Rubin paid Aspen’s subcontractors to continue the work.

Aspen filed a mechanic’s lien claiming Rubin owed $58,273.98 to Aspen and its subcontractors for work performed. When Rubin threatened litigation, Aspen released the lien.

Rubin sued Aspen and Aspenleiter anyway alleging causes of action for breach of contract, slander of title, and equitable indemnity. Rubin alleged Aspen entered into a written contract specifying a maximum amount for the work, overbilled her, failed to complete the agreed work, and failed to pay its subcontractors. Rubin alleged she paid Aspen’s subcontractors a total of $34,166.04. Among other relief, the complaint sought to recover that amount from Aspen and Aspenleiter.

Aspen cross-complained for breach of an oral contract, quantum meruit, and fraud, seeking $58,273.98 plus statutory penalties pursuant to Civil Code section 8800. Aspen dismissed the fraud cause of action prior to trial.

The parties submitted special verdict forms to the jury. The jury found that Rubin and Aspen did not enter into a written contract, but entered into an oral contract; that Rubin breached the contract; that Aspen substantially performed the contract; and that Aspen suffered damages in the amount of $30,615.32.

After the jury rendered its verdict, the trial court assessed a penalty of 2 percent per month on $30,615.32 for each month the bill was unpaid for a total penalty of $28,165.80, plus attorney fees and costs pursuant to section 8800.

DISCUSSION

I.

Rubin contends the special verdict forms are fatally defective in that they are inconsistent with the jury instructions.

Rubin complains that the special verdict forms did not ask the jury whether her performance was excused by Aspen’s breach. Rubin also complains that the special verdict forms did not ask the jury whether Rubin disputed Aspen’s billing in good faith for the purposes of section 8800. Finally, Rubin complains that the special verdict forms contained no questions relating to Aspen’s quantum meruit cause of action.

Rubin points to no inconsistencies between the jury instructions and the questions actually asked on the special verdict forms. Instead, her complaint appears to be that the special verdict forms did not ask all the questions she wanted answered.

It appears from the record that Rubin’s trial counsel prepared the special verdict forms. At the very least, Rubin’s counsel participated in the creation of the special verdict forms and raised no objection. If there was error, it was invited error and cannot be raised on appeal. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685; see also Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal.App.4th 958, 1005 [“appellant must object to or otherwise challenge special verdict form in the trial court to allege error on appeal”].)

Rubin claims that the doctrines of invited error and waiver do not apply where a party fails to object in the trial court to an inconsistent verdict. (Citing City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 686; Morris v. McCauley’s Quality Transmission Service (1976) 60 Cal.App.3d 964, 972.) But this is not a case involving an inconsistent verdict. Here, all the jury findings are consistent with each other and with the general verdict. All the jury’s findings, as well as the verdict, were against Rubin and in favor of Aspen. That the jury did not award all the damages Aspen’s cross-complaint asked for does not render the findings and verdict inconsistent.

There is a vast difference between inconsistent jury findings over which the parties have no control, and defects in special verdict forms over which the parties have complete control. The rule for special verdict forms is that the failure to object or otherwise challenge the special verdict form waives any error on appeal. (Fuller-Austin Insulation Co. v. Highlands Ins. Co., supra, 135 Cal.App.4th at p. 1005.) Thus, waiver and invited error apply here.

Rubin did not dispute the quality of Aspen’s work. Instead, Rubin claimed that Aspen entered into a written contract for a maximum of $185,500 and that Aspen overbilled her. Rubin even produced a document which she claimed was a contract. The jury did not believe her. The jury expressly found that there was no written contract. In fact, the jury believed little or nothing that Rubin said unless it was supported by other evidence. It found all the questions on the special verdict forms against her and in Aspen’s favor. The jury believed Aspenleiter that Aspen entered into an open-ended time and materials contract at $65 per hour.

II.

Rubin contends the trial court erred in imposing sanctions under section 8800.

Section 8800 provides, in part: “(a) Except as otherwise agreed in writing by the owner and direct contractor, the owner shall pay the direct contractor, within 30 days after notice demanding payment pursuant to the contract is given, any progress payment due as to which there is no good faith dispute between them. . . . [¶] . . . (c) An owner that violates this section is liable to the direct contractor for a penalty of 2 percent per month on the amount wrongfully withheld, in place of any interest otherwise due. In an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney’s fee.”

Rubin argues that the question of good faith is a question of fact for the jury, and that the trial court usurped the jury’s function by finding bad faith. But the court was simply reflecting the jury’s finding.

Rubin argues the jury was not instructed on good faith. But the jury was instructed: “Frederick A. Aspenleiter and Aspen Custom Woodworking, Inc. contends that Annette Rubin did not perform all of the things that she was required to do under the contract, and therefore Frederick A. Aspenleiter and Aspen Custom Woodworking, Inc. did not have to perform their obligations under the contract. To overcome this contention, Annette Rubin must prove both of the following: [¶] 1. That Annette Rubin made a good faith effort to comply with the contract; and [¶] 2. That Frederick A. Aspenleiter and Aspen Custom Woodworking, Inc. received essentially what the contract called for because Annette Rubin’s failures, if any, were so trivial or unimportant that they could have been easily fixed or paid for.”

The jury would not have found for Aspen had it concluded Rubin withheld payment in good faith.

Rubin argues the instruction is generic and not tailored to the standards of section 8800. But Rubin points to no objection to the instruction or request for augmentation raised in the trial court. A civil litigant must propose complete instructions in accordance with his or her theory of the litigation. (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1686.) Rubin has waived any error on appeal.

Rubin claims a finding of bad faith is not supported by the evidence. Rubin’s claim is based on a view of the evidence most favorable to her. But that is not how we view the evidence.

In viewing the evidence, we look only to the evidence supporting the prevailing party. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872.) We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. (Ibid.) Where the trial court has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. (McIntyre v. Doe & Roe (1954) 125 Cal.App.2d 285, 287.) The trier of fact is not required to believe even uncontradicted testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.)

The jury could reasonably conclude that Rubin refused to pay Aspen to save money and that Rubin’s failure to pay prevented Aspen from paying its subcontractors. That does not constitute a good faith dispute by any standard.

III.

Rubin contends Aspen’s claim of a judgment against it is based on improper hearsay and is not supported by substantial evidence.

Aspenleiter testified that Rubin’s failure to pay resulted in one of Aspen’s subcontractors obtaining a judgment against Aspen in the amount of $6,507.38. The jury’s award against Rubin included that amount. “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to provide the truth of the matter stated. (Evid. Code, § 1200, subd. (a).)

Aspenleiter did not testify to a statement; he testified to a fact: that a subcontractor obtained a judgment against him. That is not hearsay. Moreover, Rubin points to no hearsay objection having been made. The failure to object waives any error. (3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 383, p. 535.)

Substantial evidence is satisfied by Aspenleiter’s testimony that a subcontractor obtained a judgment against him for work done for Rubin for which she never paid. Rubin cites no authority that admission of the judgment into evidence is necessary.

IV.

Rubin contends the judgment is defective in two respects.

First, the judgment provides that Aspenleiter and Aspen are entitled to judgment against Rubin. Rubin points out that although both Aspen and Aspenleiter were defendants in Rubin’s action, only Aspen was a plaintiff on the cross-complaint. Thus, only Aspen is entitled to judgment against Rubin. It appears Rubin is correct. Only Aspen is entitled to judgment against Rubin.

Second, the judgment does not reflect that Aspen dismissed its fraud cause of action prior to trial. But Rubin cites no authority that the judgment must reflect the dismissal.

DISPOSITION

The judgment is modified to eliminate Aspenleiter as a prevailing party on the cross-complaint. In all other respects, the judgment is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. TANGEMAN, J.
Colleen K. Sterne, Judge

Superior Court County of Santa Barbara

______________________________

McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle and Michael J. Kenney for Plaintiff, Cross-defendant and Appellant.

Law Offices of Barton C. Merrill and Barton C. Merrill for Defendants, Respondents and Cross-complainant.