Filed 6/11/20 Moorefield Construction v. Tech-Crete CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

MOOREFIELD CONSTRUCTION, INC.,

Plaintiff and Appellant,

v.

TECH-CRETE, INC., et al.,

Defendants and Respondents.

F077211

(Super. Ct. No. 16CECG02787)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge.

Mahoney & Soll, Paul A. Mahoney and Richard A. Soll, for Plaintiff and Appellant.

Law Office of D. Mitchell Taylor and D. Mitchell Taylor for Defendants and Respondents.

-ooOoo-

Appellant Moorefield Construction, Inc. (Moorefield) was the general contractor hired to manage the construction of a movie theater in Fresno. Moorefield hired respondent Tech-Crete, Inc. (Tech-Crete), a concrete contractor, to perform all of the project’s concrete work. After several months of project delays, Tech-Crete pulled off of the project, leaving behind unfinished and defective work. Moorefield hired other subcontractors to finish Tech-Crete’s work.

After the project was finished and the theater opened for business, Moorefield sued Tech-Crete for breach of contract and negligence. Moorefield also sued the surety for Tech-Crete’s contractor’s license bond, respondent American Contractors Indemnity Company (ACIC), alleging Tech-Crete violated six different statutory provisions of the Business and Professions Code.

A jury trial resulted in a defense verdict on all three causes of action. The jury found that although Tech-Crete did not perform all it was required to under the contract, Moorefield was not damaged, and further found Tech-Crete was not negligent. The jury also found Tech-Crete did not commit any willful and deliberate violation of the Business and Professions Code.

On appeal, Moorefield contends the verdict on the breach of contract and contractor’s bond claims was not supported by substantial evidence. Moorefield also argues the trial court erred in denying its new trial motion, which was brought on the chief ground there were irregularities in the jury’s proceedings.

We affirm.

FACTS

Moorefield is a general contractor engaged in the business of constructing movie theaters, shopping centers, and commercial and retail shop buildings. Tech-Crete is a concrete subcontractor that works only on commercial projects. Tech-Crete’s contractor’s license bond was with ACIC.

In 2014, Moorefield entered into a prime contract with Heritage Campus Pointe Company, LLC to construct a movie theater called Maya Cinemas on the campus of California State University, Fresno. This multi-million dollar project required engaging at least 35 subcontractors.

Moorefield entered into a written subcontract with Tech-Crete for the latter to furnish all concrete and concrete reinforcements for the construction of the 16-plex movie theater. The subcontract amount was $893,000. The subcontract required all work be done in strict compliance with all contract documents, plans, and specifications. The subcontract expressly provided: “All steps, stairs, stadium risers and ramps must meet all tolerances and ADA [Americans with Disabilities Act] codes no exceptions.” The subcontract called for, among other things, installation of the concrete ramps and stairs inside the 16 auditoriums. Moorefield was to make monthly progress payments to Tech-Crete, subject to a 10% retention withheld by the owner until completion of all work and acceptance by the owner. Tech-Crete began work on the Maya Cinemas project under the subcontract on February 2014, although the parties did not sign the subcontract until June 2014.

Prior to awarding the subcontract to Tech-Crete, Moorefield’s vice president, Hal Moorefield, spoke with Brady Hole, Tech-Crete’s president, regarding Hole’s experience with ramps and stairs and his experience with ADA compliance. Moorefield and Tech-Crete had worked together before on the construction of a Fresno shopping center, and that project ran smoothly without any disputes over the quality of Tech-Crete’s work. However, unlike the shopping center project, the Maya Cinemas project required the construction of ramps and stairs in a theater setting and Moorefield wanted to ensure Tech-Crete was qualified to do the work.

Hal testified Hole represented himself to be an “expert” in work requiring ADA compliance and that Hole claimed he does lots of work with ADA requirements. Hole also explained he used to own a company called ADA Compliance Solutions, Inc. which performed various work for commercial property owners to identify and remedy ADA compliance issues. Hal took notes of his conversation with Hole and testified he awarded Tech-Crete the subcontract for the Maya Cinemas project because of Hole’s claimed expertise.

Hole testified that while he did discuss his extensive experience with constructing ADA compliant ramps and steps, he never called himself an expert and testified that he did not know “what classifies somebody as an expert” in the context of the ADA.

Tech-Crete commenced work on the project in February 2014. Tech-Crete was scheduled to finish the last of its work in June 2014, and the theater was scheduled to open for business by Thanksgiving 2014. However, the project experienced multiple delays and was not completed until May 2015. The first delay occurred when the State of California Department of Architecture requested the building plans be submitted to it for review and approval as required by law. This caused a delay of about 60 days during which the job was shut down. A second delay occurred when the state fire marshal determined that the already installed fire walls, as well as the ceiling, had to be redesigned to increase their fire rating. This resulted in another delay of 45 to 60 days, but it is unclear if this delay affected Tech-Crete. Hal testified Tech-Crete was not responsible for any of the delays.

Karen Snyder, the assistant to Moorefield’s project manager on the Maya Cinemas project, testified that the delays did not have anything to do with Tech-Crete’s noncompliant ramps and steps. Hole testified that, even though Tech-Crete was supposed to be finished with its work on the Maya Cinemas project in June 2014, the multiple delays on the project left Tech-Crete unfinished in January 2015.

Ron Saunders was the inspector who took over on the project after the first inspector was injured on the job. One of Saunders’ duties was to inspect the project to ensure ADA compliance. Under the ADA, the ramps could not exceed a slope of 8.33%. Also, the tread of one stair to the next as well as the rise from one step to the next cannot have a difference of more than three-eighths of an inch. In December 2014, Tech-Crete was put on notice that the ramps and stairways were not compliant with ADA specifications, and by March 2015 they still were not all passing inspection.

On March 19, 2015, Hal and Hole had a meeting at the jobsite and discussed the work remaining to be completed. Thereafter, between March 23 and April 14, Hal sent eight letters and emails to Hole regarding the noncompliant stairs and ramps and advising that the work needed to be corrected. After the March 19 meeting, Hole testified Tech-Crete began sending four men to the jobsite each day because “that was all [it] had to send” due to contractual obligations on other projects. According to Hal, Tech-Crete eventually began to send only two men to the job, at which point Moorefield hired other companies to repair and finish the concrete work. Hole maintained Tech-Crete never refused to send workers out to the jobsite.

On April 2, Moorefield hired Fresno Concrete to assist in the task of correcting the noncompliant ramps and steps. However, Fresno Concrete could only work on the job for a week. On April 6, Moorefield hired Beverson Construction, a concrete subcontractor from Los Angeles, to finish the task of correcting the ramps and steps.

On April 13, Hal sent an email to Hole that said Hole was “really causing [his] own problems at Heritage,” and that Moorefield would “continue to correct [Tech-Crete’s] non-compliant work with other forces … and … deduct all costs associated with correcting [Tech-Crete’s] issues from any money remaining.” The email concluded: “So continue to work at your own pace, show when you want and do whatever you feel you want to do, but we will complete this project with or without [Tech-Crete] and deduct all costs as the Contract allows.”

Hole testified that, after reading this email, he “understood [he] had a pretty large balance left on [his] contract at the time with change orders and the initial contract.” He further stated: “I knew I had money left in my contract and [Hal] already had people out there. I’m going to have to bite it and pay up, but there was plenty of money left to pay them.” Twice more in his testimony, Hole reiterated Moorefield owed Tech-Crete money in the form of unpaid retention from the shopping center project and unpaid change orders on the Maya Cinemas job, and that he would rather have Moorefield use that money to pay other contractors to correct and finish Tech-Crete’s work on the Maya Cinemas project. Hole accordingly decided it made sense for him to pull his men off of the project.

Victor Beverson, the president of Beverson Construction, testified that upon arriving at the jobsite and inspecting the concrete work, he observed most of the ramps and steps were not ADA compliant. Mr. Beverson explained to the jury the industry standard method for pouring concrete ramps so as to comply with ADA standards. He further explained that, in his experience, a concrete subcontractor can expect about 5% of the ramps and steps it pours to fail inspection. He stated that a subcontractor would then work to grind down high spots and fill in low spots in the concrete until all ramps and steps were compliant. According to Mr. Beverson, most of the ramps and steps Tech-Crete poured were noncompliant, meaning that there spots on almost all of the ramps and stairs that were out of compliance.

Aside from the deficient work that needed to be corrected, one of Tech-Crete’s vendors, Triangle Rock Products (Triangle Rock) had not been paid for $43,533 worth of material. According to Hal, Tech-Crete was to pay Triangle Rock for that material out of the $845,000 in progress payments Tech-Crete had received from Moorefield. However, Hal admitted Moorefield did not make out a joint check to Tech-Crete and Triangle Rock, even though it was Moorefield’s policy to make out joint checks to subcontractors when vendors needed to be paid.

Eventually, Moorefield sent a check for $22,533 as partial payment for the $43,533 owed to Triangle Rock. Triangle Rock thereafter recorded a $21,000 mechanic’s lien on the property for the remaining balance. After the lien was recorded, Moorefield’s controller, James Weber, emailed Hole, asking him if he agreed to have Moorefield pay Triangle Rock directly what Tech-Crete owed Triangle Rock so as to release the lien. Hole emailed Weber the following response: “That’s fine to pay and deduct from my bill yes. Please advise status of retention on El Paseo. I lose my rights this week. I need a check by Friday or I have to lien thanks!” Moorefield then sent a $21,000 check to Triangle Rock and the lien was released.

Moorefield’s damages calculation

Moorefield claimed to have been damaged by Tech-Crete’s breach of contract in the amount of $186,604, calculated as follows:

The original subcontract price was $893,000. Tech-Crete was on the Maya Cinemas job for eight months and submitted invoices to Moorefield each month, and Moorefield paid all of Tech-Crete’s invoices, less retention. In total, Moorefield had paid Tech-Crete $845,331, and the only amount not paid to Tech-Crete on the subcontract was the remaining $47,669 held in retention.

Because Tech-Crete’s work did not pass inspection, Moorefield had to hire other companies to correct Tech-Crete’s work. Moorefield paid a total of $157,951 to 10 other companies. Moorefield produced invoices that were admitted into evidence regarding the amounts paid to each of the 10 companies and the work each company performed. Following is a description of the work performed and amounts charged by each of those companies.

1. $8,632 was paid to Basic Metals, a structural steel contractor, for corrective work due to Tech-Crete’s alleged misplacement of anchor bolts.

2. $106,000 was paid to Beverson Construction for corrective work for ramps and steps.

3. $872 was paid to Electrolurgy, a steel contractor, for constructing metal steps on the mezzanine since Tech-Crete did not pour concrete steps as it was supposed to.

4. $22,966 was paid to Fresno Concrete for corrective work for ramps and steps.

5. $1,488 was paid Mike McNeil, an employee of Moorefield, who purchased materials from Home Depot that Beverson Construction used for filling and leveling ramps and steps.

6. $715 was paid to Miller & Co., for performing floor grinding on a ramp.

7. $9,000 was paid to Steel Tile Inc., for floating some of the ramps in the theater.

8. $5,115 was paid to Tildin Engineering, for “provid[ing] some fixed details for some engineer changes.”

9. $1,050 was paid to Four C’s, for closing a “strip at the base of the stadium where there was too large of a gap in the concrete to bridge that gap.”

10. $2,113 was paid to White Cap, a supply house from which Moorefield purchased visqueen to protect the seats in the theater from dust caused by concrete grinding, as well as materials used for sacking the defective ramps and steps.

Additionally, Moorefield contended it was entitled to back charge against the subcontract price in the amount of $43,533 for the payment it made in connection with monies owed to Triangle Rock. Furthermore, Moorefield contended it was entitled to a back charge of $70,500, the amount allocated for Tech-Crete to install Geofoam and deadman concrete blocks, a task which Tech-Crete never performed.

The $157,951 paid to other subcontractors, plus the $43,533 paid to Triangle Rock, plus the $70,500 credit for the Geofoam and deadman blocks, totaled $271,984. Deducting from this amount the $47,669 held in retention on the Maya Cinemas, the $23,587 held in retention on the shopping center project, the $11,000 owed to Tech-Crete for an amendment to the subcontract for additional costs, and the $3,124 owed to Tech-Crete for a second amendment for further costs, the total amount of damages according to Moorefield’s calculations was $186,604.

Tech-Crete’s position on damages

Hole testified he went through Moorefield’s damage calculation line by line. He testified Tech-Crete was not responsible to Moorefield for the services and products provided by Basic Metals, Tildin Engineering, and White Cap. He further testified he was responsible for only one-half of the amounts Moorefield claimed for the charges paid to Beverson Construction, Fresno Concrete, Miller & Co., and Steel Tile, Inc., as he believed each of these contractors charged an inflated price for their respective work. He did not dispute the back charge for Electrolurgy, Mike McNeil, or Four C’s. This translated to a credit of $72,750.50 for work performed by other contractors. Hole also testified that he acknowledged he should be back charged for the $43,533 Moorefield paid to Triangle Rock. In total, Hal stated Moorefield would be entitled to a credit of $116,288.50, which is the sum of the amount he felt Tech-Crete owed Moorefield for the contractors’ work plus the amount owed Moorefield for the payments to Triangle Rock.

However, Hole testified Moorefield still owed Tech-Crete $237,015.20. To arrive at this figure, Hole began with the subcontract price of $893,000, and explained the subcontract price was increased by $11,000 and $3,124 for the two amendments described by Moorefield, increased by an additional $45,804 for three unpaid change orders, and increased by an additional $70,500 for added expenses related to relocating some stringer footings. These amendments and change orders increased the subcontract price to $1,023,428. Furthermore, the $23,587.20 in unpaid retention owing to Tech-Crete on the shopping center project increased the total amount owed to Tech-Crete to $1,047,015.20. Deducting the $810,000 Hole claimed Tech-Crete had been paid by Moorefield, Tech-Crete was owed $237,015.20, according to Tech-Crete’s calculations.

Jury instructions and verdict

The breach of contract, negligence, and contractor’s bond causes of action were all submitted to the jury on January 16, 2018. Between 30 and 45 minutes later, the jury returned its special verdict.

On the first cause of action for breach of contract, the jury found as follows:

“1. Did Moorefield Construction and Tech-Crete enter into a contract?

“[Answer: Yes]

“If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

“2. Did Moorefield Construction do all, or substantially all, of the significant things that the contract required it to do?

“[Answer: Yes]

“If your answer to question 2 is yes, skip question 3 and answer question 4. If you answered no, answer question 3.

“3. Was Moorefield Construction excused from having to do all, or substantially all, of the significant things that the contract required it to do?

“[Answer: No]

“If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

“4. Did Tech-Crete fail to do something that the contract required it to do?

“[Answer: Yes]

“or

“Did Tech-Crete do something that the contract prohibited it from doing?

“[Answer: No]

“If your answer to either option for question 4 is yes, then answer question 5 If you answered no to both options, stop here, answer no further questions, and have the presiding juror sign and date this form.

“5. Was Moorefield Construction harmed by Tech-Crete’s breach of contract?

“[Answer: No]

“If your answer to question 5 is yes, then answer question 6. If you answer no, stop here, answer no further questions, and have the presiding juror sign and date this form.”

On the third cause of action for the contractor’s license bond, the jury rendered the following verdict:

“1. Did TECH-CRETE commit any wilful [sic] and deliberate violation of the contractors license law?

“[Answer: No]”

New trial motion

On January 23, 2018, the trial court entered judgment in favor of Tech-Crete and ACIC, and notice of entry of judgment was served on January 25, 2018. On February 7, 2018, Moorefield moved for a new trial on the grounds that the evidence was insufficient to support a defense verdict and that there were irregularities in the jury’s proceedings, namely that the jury deliberated for a short time and that the jury unnecessarily answered a question on the verdict form for the breach of contract claim.

The motion was argued on March 2, 2018, and denied on March 5, 2018. Also on March 5, 2018, the court signed an order granting Tech-Crete’s unopposed motion for costs and attorney fees pursuant to the terms of the contract. The order awarded costs in the amount of $7,588.20 and attorney fees in the amount of $57,300, and interest at 10% per annum.

DISCUSSION

I. Sufficiency of the evidence claims

Moorefield first argues the defense verdict on the breach of contract and contractor’s bond claims is not supported by substantial evidence. Regarding the breach of contract claim, Moorefield argues that, even if all of Hole’s testimony regarding damages were believed, the only conclusion the jury could have reached was that Moorefield was harmed. With respect to the claim on the contractor’s bond, Moorefield argues substantial evidence did not support a finding that Tech-Crete did not commit a willful and deliberate violation of the contractor’s licensing law. We reject the contentions.

A. Applicable law and standard of review

Moorefield incorrectly states the substantial evidence standard of review applies. In a case such as this one, “ ‘where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more of the elements of the case.’ ” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 (Sonic Manufacturing).) “ ‘Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Id. at p. 466.)

B. Breach of contract claim

“ ‘A cause of action for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’ ” (Agam v. Gavra (2015) 236 Cal.App.4th 91, 104.) Only the damages element is relevant in this appeal. The general standard of damages in a breach of contract action against a contractor is expressed in Civil Code section 3300. (Amerson v. Christman (1968) 261 Cal.App.2d 811, 824–825.) That section states: “For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” (Civ. Code, § 3300.)

We first note Moorefield does not, in either its opening brief or reply brief, challenge Tech-Crete’s assertions regarding the amount the subcontract price was increased by four separate change orders. Exhibits produced at trial evidenced three change orders for $6,461, $36,843, and $2,500, as well as an additional $65,651.84 increase in the subcontract price. These four increases total $111,455.84, and Moorefield does not dispute that this extra work was not performed nor that these amounts are inaccurate. The parties also agree that there were two other amendments totaling $14,124, that there was $23,587.20 owing in unpaid retention on the shopping center project, and that Moorefield had paid Tech-Crete $845,331. Adding the uncontested amount of $111,455.84, plus $14,124, plus $23,587.20 to the initial subcontract price of $893,000, and then subtracting from that total the $845,331 Tech-Crete has been paid yields a balance owing to Tech-Crete of $196,836.

Moorefield argues that even if the jury accepted this figure of $196,836, this amount was nevertheless exceeded by the $116,288.50 credit Tech-Crete admitted it owed Moorefield, plus the $43,533 paid to Triangle Rock, plus the $70,500 deduction from the subcontract price for the Geofoam and deadman blocks. However, Moorefield, in making this argument, double counts the amount paid to Triangle Rock. Hole’s $116,288.50 figure factored in both the $72,750.50 he felt Tech-Crete owed Moorefield for the other contractors’ work and the $43,533 he admitted he owed Moorefield for the Triangle Rock payments. Thus, adding together the $116,288.50 credit Hole admitted Tech-Crete owed and the $70,500 figure for the Geofoam and deadman blocks, Moorefield’s damages would be $186,788.50, which is less than the $196,836 Tech-Crete claims it was owed.

If the jury were to believe—and again, Moorefield does not argue here the jury could not—that Moorefield owed Tech-Crete $196,836, and also believed Hole’s testimony regarding how much Tech-Crete owed Moorefield for the other contractors’ work to fix and complete Tech-Crete’s work, then the jury could reasonably have concluded Moorefield’s claimed damages were exceeded by Moorefield’s balance owed to Tech-Crete. As such, Moorefield’s evidence was not “uncontradicted and unimpeached” and not “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding” in its favor. (Sonic Manufacturing, supra, 196 Cal.App.4th at p. 466.)

C. Contractor’s license bond

Moorefield next argues the jury’s verdict that Tech-Crete had not willfully and deliberately violated certain provisions of the Business and Professions Code was not supported by substantial evidence. Moorefield is wrong because its evidence regarding an actionable violation of the Business and Professions Code did not absolutely compel a finding in its favor. (Sonic Manufacturing, supra, 196 Cal.App.4th at p. 466.)

Moorefield’s cause of action against Tech-Crete’s contractor’s bond was rooted in Business and Professions code section 7071.5, subdivision (c), which provides that a contractor’s bond shall be for the benefit of “[a] person damaged as a result of a willful and deliberate violation of this chapter by the licensee, or by the fraud of the licensee in the execution or performance of a construction contract.” Here, sufficient evidence showed Moorefield was not damaged as a result of any alleged violation of the contractor’s bond law and that any such alleged violation was not willful and deliberate.

The jury was instructed as follows regarding the license bond law:

“American Contractors Indemnity Company issued a contractor’s license bond to Tech-Crete. Contractor’s license bond is for the benefit of any person damaged as a result of a willful and deliberate violation of the contractor’s licensing law or by the fraud of Tech-Crete and the execution or performance of a construction contract.

“The term ‘willful’ means the intentional doing of something either with knowledge that serious harm is probable, as distinguished from possible, result for the intentional doing of an act with wanton and reckless disregard of its possible result.

“The term ‘deliberate’ means an act done consciously and intentionally.

“Any one or more of the following can constitute a violation of the contractors license law: One, abandonment without legal excuse of any construction project or operation engaged in or undertaken by Tech-Crete as a contractor; two, a willful departure in any material respect from accepted trade standards for good and workman-like construction, unless the departure was in accordance with the plans and specifications prepared by or under the direct supervision of an architect; three, failure in a material respect on the part of Tech-Crete to complete any construction project or operation for the price stated in the contract for such construction project or operation or in any modification of such contract; four, the doing of any willful[ ] or fraudulent act by Tech-Crete as a contractor in consequence of which another is substantially injured; five, willful failure or refusal without legal excuse on the part of Tech-Crete as a contractor to prosecute a construction project or operation with reasonable diligence causing material injury to another; sixth, willful or deliberate failure by Tech-Crete or agent or officer thereof to pay any moneys when due for any materials or services rendered in connection with its operations as a contractor when it has the capacity to pay or when it has received sufficient funds therefor as payment for the particular construction work, project or operation for which the services or materials were rendered.”

Each of the six grounds for recovery from the surety are rooted in statute, and the jury found no liability under any of the six statutory grounds. Of these six grounds, Moorefield only discusses the second, third, and sixth grounds in its opening brief on appeal, and therefore our review is limited exclusively to those. The crucial aspect of a claim on a contractor’s bond under Business and Professions Code section 7071.5, subdivision (c), that has apparently been lost on Moorefield is that Moorefield must not only have suffered damage by a violation of an applicable provision of the Business and Professions Code, but that such violation be willful and deliberate. We address each of the three grounds Moorefield discusses, and demonstrate how the evidence did not compel a finding in Moorefield’s favor on any of them.

Regarding the second ground in the jury instructions, there was evidence to support a finding Moorefield was not damaged as a result of Tech-Crete’s alleged “willful departure in any material respect from accepted trade standards for good and workman-like construction.” Additionally, there was evidence to support a finding

Tech-Crete’s alleged violation was not willful and deliberate. Hole testified that, at the time Tech-Crete stopped sending workers to the Maya Cinemas project, he “understood” there were sufficient funds remaining under the contract that could be used to hire other contractors to repair any defective work. Were this testimony believed, it would refute a conclusion that Tech-Crete knew a serious harm was probable in these circumstances. Furthermore, were Hole’s testimony regarding the damages calculations believed, the jury could conclude Moorefield was not damaged.

The same analysis applies to the third ground—failure in a material respect on the part of Tech-Crete to complete any construction project or operation for the price stated in the contract for such construction project or operation or in any modification of such contract. Again, there was evidence supporting a conclusion that Moorefield was not damaged by Tech-Crete’s failure to complete the project, as well as a conclusion that Tech-Crete believed in good faith that there were sufficient funds such that Moorefield would not be harmed.

A similar analysis applies to the sixth ground as well—willful or deliberate failure by Tech-Crete or agent or officer thereof to pay any moneys when due for any materials or services rendered in connection with its operations as a contractor when it has the capacity to pay or when it has received sufficient funds therefor as payment for the particular construction work, project or operation for which the services or materials were rendered. This ground is obviously directed at the payment of monies owed to Triangle Rock. After James Weber emailed Hole asking if Hole agreed for Moorefield to pay Triangle Rock, Hole responded: “That’s fine to pay and deduct from my bill yes.” Also, Hole testified that Tech-Crete was responsible for the amount paid to Triangle Rock and agreed that Moorefield should be credited $43,533 accordingly. In light of this, the jury could reasonably have concluded Moorefield was not damaged and that Tech-Crete at no point knew Moorefield would be seriously harmed on this matter.

As we have demonstrated, Moorefield’s evidence on these three alternative grounds for finding an actionable violation of the Business and Professions Code was not uncontradicted and unimpeached and not of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding in Moorefield’s favor.

II. Motion for a new trial

Moorefield also contends the trial court erred by denying its motion for a new trial. It urges a new trial should be granted due to irregularities in the jury’s proceedings, namely that the jury deliberated for a short time and that the jury unnecessarily answered a question on the verdict form. These “irregularities,” according to Moorefield, indicate Moorefield did not receive a fair trial. We review the denial of Moorefield’s new trial motion for abuse of discretion and conclude here no such abuse occurred. (Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 733.)

A. Length of deliberations

Moorefield argues that since this case was several days long and included the admission of 65 exhibits, the jury’s deliberation for approximately 30 to 45 minutes calls the reliability of the verdict into question. Specifically, Moorefield contends it was “impossible” for the jury to consider the evidence in such a short amount of time. This argument, presented in both Moorefield’s new trial motion and here on appeal, is not supported by any legal authority or substantive analysis.

Code of Civil Procedure section 613 states that “[w]hen the case is fully submitted to the jury, they may decide in Court or retire for deliberation.” (Italics added.) Thus, “the plain language of [Code of Civil Procedure] section 613 indicates a jury may decide a case immediately following the court’s instructions.” (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 309–310 (Mendoza).) “[S]hort jury deliberations do not show a failure by a jury to fully consider a case.” (Id. at p. 310.) In Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, the Court of Appeal held “a jury’s decision on a verdict 10 to 15 minutes after beginning deliberations, before receiving exhibits, and without discussing the case before their vote, did not deprive a party of its constitutional right to a jury trial.” (Mendoza, at p. 310.)

Here, not only is the case law against Moorefield’s argument in principle, but Moorefield does not explain in any detail how the jury did not faithfully fulfill their duty. Accordingly, we are in no position to overturn the jury’s verdict on this ground and we decline to do so.

B. Verdict Form

Additionally, Moorefield contends the jury unnecessarily answered a question on the breach of contract verdict form, which demonstrates the jury did not follow the court’s instructions. Moorefield suggests the jury’s verdict is thus unreliable. While we agree the jury unnecessarily answered question 3 on the breach of contract verdict form, this did not create an inconsistency in the jury’s verdict, and therefore we cannot say on that basis the jury’s verdict was unreliable. Additionally, while the jury unnecessarily answered question 3, there is no reason to suspect the jury did not follow other instructions from the judge.

Question 2 in the verdict form asked if Moorefield did all, or substantially all, of the significant things that the contract required it to do. If the jury answered “yes,” the jury was to skip question 3 and proceed to question 4. Here, the jury answered “yes” to question 2 but then proceeded to answer “no” to question 3, which asked if Moorefield was excused from having to do all, or substantially all, of the significant things required of it under the contract. However, answering “yes” to question 2 and “no” to question 3 did not create an inconsistency. In light of the jury’s finding that Moorefield did all, or substantially all, of the significant things it was required to do under the subcontract, it does not matter whether Moorefield would have been excused from performing those things. Thus, while the jury’s answering of question 3 was superfluous, it did not create an inconsistency and did not render the verdict unreliable.

Furthermore, while the jury technically went against the instructions in the verdict form by not skipping question 3, there is no reason to suspect the jury did not follow the judge’s jury instructions. In other words, that the jury made an inconsequential mistake by unnecessarily answering a question in the verdict form does not necessarily mean the jury did not follow other instructions.

 

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

SNAUFFER, J.

WE CONCUR:

FRANSON, Acting P.J.

SMITH, J.