Filed 3/5/20 McMenamin v. Cooley Construction, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

EUGENE MCMENAMIN, as Co-trustee, etc., et al.,

Plaintiffs and Appellants,

v.

COOLEY CONSTRUCTION, INC.,

Defendant and Respondent.

E070836, E072458

(Super.Ct.No. CIVDS1602274)

OPINION

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Judge. Affirmed.

Lynberg & Watkins, Trevor O. Resurreccion, and Ruben Escobedo for Plaintiffs and Appellants.

Law Offices of Gregory J. Hout, Gregory J. Hout; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.

Following the plaintiffs’ opening statement in a construction defect trial, the trial court granted the defendant’s motion for nonsuit on the ground that plaintiffs lacked expert testimony that could support their causes of action. It denied plaintiffs’ motion for new trial filed several months later. On appeal, plaintiffs primarily argue that the trial court erred because liability could be proven without expert testimony. We disagree and affirm.

I. FACTUAL AND PROCEDURAL HISTORY
II.
Plaintiffs and appellants Eugene and Juttar McMenamin (collectively, plaintiffs) hired defendant and respondent Cooley Construction, Inc. (Cooley) to install and pave a parking lot in Twentynine Palms. The contract called for an asphalt layer four inches thick. Cracks began to appear nine months after the job completion, so plaintiffs brought causes of action against Cooley for negligence, breach of contract, and breach of implied warranty.

Cooley’s motions in limine included one that sought to exclude all testimony from plaintiffs’ expert on causation, Brett L. Anderson, which the court denied, and another that sought to limit Anderson’s opinions to those expressed during depositions, which the court granted. During his deposition, Anderson opined that the asphalt cracked because the oil that was used in the mixture “appear[ed] too brittle.” Anderson admitted, however, that he did not test the oil and that his opinion was based “entirely” on the fact that the asphalt was cracked.

Plaintiffs presented their opening statement at trial. Cooley then moved for nonsuit, arguing that because none of plaintiffs’ experts would be able to opine as to causation or breach (whether of the contract or of the standard of care), plaintiffs could not prevail on any of their causes of action. The trial court gave plaintiffs an opportunity to make an offer of proof. Plaintiffs responded that they could establish liability by cross-examining Cooley’s expert, to which the trial court noted that the expert was Cooley’s witness, was not required to appear under any subpoena from plaintiffs, and was under no obligation to testify unless Cooley chose to call him. The trial court granted the motion.

Several months later, plaintiffs moved for a new trial. Plaintiffs argued that they did not need expert testimony to establish their contract-based causes of action. Plaintiffs also contended that expert testimony was not needed to establish liability because Cooley had judicially admitted that the asphalt was deficient. Additionally, plaintiffs included a declaration from Eugene stating that although the job called four inches of asphalt, he found that the asphalt was only two inches thick in certain areas. The trial court denied the motion.

III. ANALYSIS
IV.
“The standard of review for a nonsuit after conclusion of the opening statement is well settled. Both the trial court in its initial decision and the appellate court on review of that decision must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts. [Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It can only be upheld on appeal if, after accepting all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot establish an essential element of its cause of action or has inadvertently established uncontrovertible proof of an affirmative defense. [Citations.]” (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041.)

Plaintiffs’ arguments on appeal largely mirror those raised in moving for a new trial. We describe and address each in turn.

A. Necessity of Expert Testimony
B.
Plaintiffs contend that expert testimony was not needed to prevail on their contract based causes of action. We disagree.

“‘[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.] Expert opinion evidence is required in some circumstances. ‘If the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case.’ [Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844 (Carson).) “This rule has been applied to require expert testimony on a wide range of issues.” (Ibid.)

Whether an asphalt surface cracks due to a defect in construction is “‘not within the common knowledge of laymen’” but rather “‘within the knowledge of experts only.’” (Carson, supra, 36 Cal.3d at p. 844.) For example, whether the asphalt cracked because four inches was not a satisfactory thickness for a layer of asphalt in the desert; whether any asphalt (as opposed to concrete) in the desert would crack; or whether it cracked because the density after compaction was too low or too high, is not “‘such common knowledge that men of ordinary education could reach a conclusion as intelligently’” as expert witnesses. (Ibid.)

Plaintiffs recognize that negligence—their first cause of action—generally requires expert evidence when it implicates a professional standard of care. (See Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239 [“In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person’s common knowledge includes the conduct required by the particular circumstances”].) Plaintiffs argue, however, that their claims of breach of an express contract term or an implied warranty of fitness do not require expert testimony because they do not turn upon the violation of a professional standard of care. The argument, as we understand it, is that the breach allegations turn on a violation of the contract, not on a violation of the standard of care.

A problem with the plaintiffs’ argument in this case is that they did not indicate at trial that there was a specific term of the contract that was violated, only a violation of an implied duty of workmanship. This appears to, at bottom, require the same showing of a violation of a professional standard of care as does plaintiffs’ tort claim.

In any event, however, plaintiffs’ focus on the breach allegations does not resolve the burden that they have of proving causation. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th, 1182, 1186.) “Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352), and “[c]ausation of damages in contract cases requires that the damages be proximately caused by the defendant’s breach” (St. Paul Fire and Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038, 1060; see Civ. Code, § 3300). Here, expert testimony was necessary (at a minimum) to show that something about Cooley’s purported violation of explicit terms in the contract, or of the implied warranty, caused the parking lot to crack, even assuming Cooley violated some contractual obligation.

As discussed above, why a layer of asphalt cracks is “‘not within the common knowledge of laymen.’” (Carson, supra, 36 Cal.3d at p. 844.) “Where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1614.) Thus, all three of plaintiffs’ causes of action—negligence, breach of contract, and breach of implied warranty—required expert testimony. Plaintiffs could not have prevailed at trial without it.

C. Judicial Admissions
D.
Plaintiffs contend that Cooley judicially admitted that its use of asphalt was negligent. Plaintiffs point to Cooley’s cross-complaint against its asphalt supplier as well as statements made by Cooley’s counsel. Again, we disagree.

A judicial admission is “ordinarily a factual allegation by one party that is admitted by the opposing party.” (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452, italics omitted.) Such a concession by the opposing party “‘has the effect of removing the matter from the issues.’” (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.) “Although statements of counsel ‘may be treated as judicial admissions if they were intended to be such or reasonably construed by the court or the other party as such,’ such admissions must be clear and unambiguous.” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1112.)

Cooley’s allegations in its cross-complaint do not constitute judicial admissions as between Cooley and plaintiffs here. A judicial admission is conclusive “‘only in the particular case’” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456), and “a complaint and cross-complaint are separate actions” for these purposes (Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256, 260). This is to allow a party to choose “among possible alternative theories” of liability prior to trial: “[O]n the possibility that [liability] might be found to exist, [Cooley] should be permitted to reserve the option of seeking indemnity from third persons . . . on the theory that they were primarily responsible . . . .” (Ibid.) Cooley’s tactical decision to seek indemnity from others in the event it is held liable does not automatically mean that Cooley has admitted liability.

Plaintiffs also contend that Cooley’s counsel “admitted in open court that it was negligent” (italics and boldface omitted), citing a four page portion of the reporter’s transcript, but nothing in those pages constitutes an unambiguous admission. Plaintiffs cite to an argument made during one of plaintiffs’ motions in limine—specifically, a motion to exclude any evidence referring to the potential use of concrete rather than asphalt. The parties agree that concrete would have been better than asphalt, but Eugene stated during his deposition that a concrete parking lot was nothing more than “a wish.” At one point, Cooley’s counsel contended that plaintiffs’ decision to use asphalt despite “two civil engineers’ specifications and instructions to install concrete” raised an “issue about comparative fault.” However, this is not the same as Cooley conceding that any installation of asphalt would have been negligent. In making this contention, Cooley’s counsel was merely trying to argue that the fact that plaintiffs chose to install asphalt instead of concrete, despite engineering advice to the contrary, should not be withheld from the jury. Neither this statement nor any other one cited by plaintiffs is a judicial admission of negligence.

E. Asphalt Thickness
F.
Plaintiffs contend that they should have been allowed to present their cause of action for breach of contract to the jury because the fact that the asphalt was only two inches thick in certain areas could have been sufficient to establish liability. This appears to be an argument of a violation of a specific term of the contract. Putting issues of causation discussed above aside, this argument fails as untimely. Plaintiffs did not mention in their opening statement that they sought to establish that the asphalt was too thin, and when the trial court gave plaintiffs an opportunity to make an offer of proof in opposing the motion for nonsuit, plaintiffs failed to mention this theory. Instead, it was first advanced when plaintiffs moved for a new trial several months after the trial court granted Cooley’s motion for nonsuit. Courts have upheld denials of relief from nonsuit brought even one day after nonsuit where no justification for the delay has been shown. (Onick v. Long (1957) 154 Cal.App.2d 381, 388.) It is not hard to see why: If the rule were otherwise, a plaintiff could routinely devise a new theory after nonsuit was granted (and jurors dismissed) and be allowed to present a new trial before a new jury, forcing the parties to repeat the jury selection process. Allowing parties to craft new post trial theories in this manner would waste judicial resources. Plaintiffs make no attempt to explain why this theory of liability was never mentioned in their opening statement or offer of proof, so we reject their argument as inexcusably tardy.

G. Costs and Attorneys’ Fees
H.
Plaintiffs contend that the trial court’s costs and attorneys’ fees awards should be reversed if the judgment is. Because we affirm the judgment, we affirm the awards as well.

V. DISPOSITION
VI.
The judgment and orders awarding costs and attorneys’ fees are affirmed. Cooley is awarded its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.