Wednesday, June 17, 2015
‘Small Detail’ Results in Reversal of Ruling Against Contactor
Justice, Quoting Rock Standard, Says Verified Proof of License Not Required if Issue ‘Uncontroverted’
By KENNETH OFGANG, Staff Writer
A contractor seeking payment for its work need not produce a verified certificate from the Contractors’ State License Board if the property owner’s own pleadings acknowledge the contractor’s license, the Fourth District Court of Appeal has ruled.
Div. Three Monday reversed an Orange Superior Court judge’s order granting a homeowner JNOV in a dispute over a 2010 Laguna Hills home remodel. The ruling reinstates a jury verdict in favor of DA Lovell Corporation, doing business as Aztec Sunpower.
“The lawyers dwell on small details,” Justice William Bedsworth wrote, quoting singer/songwriter Bruce Hornsby’s classic “End of the Innocence.”
The justice continued:
“That’s true. We have to. The devil isn’t the only resident in the details; sometimes truth and fairness lodge there as well.
“In this case, we address a ‘detail’” that was lost or hidden and resulted in what we consider an injustice. Fortunately, as is usually the case, painstaking attention to other small details enables us to correct this injustice. If you dwell on small details with an eye to fairness, the law works well.”
What the court found to be a correctable injustice occurred in litigation that began in 2011. Homeowner Art Womack alleged Aztec had done an incomplete and sloppy job and thus forced him to incur extra expenses for corrections.
The relevant pleading by Womack identified Aztec as having, “at all times” relevant to the “acted in the capacity as a licensed contractor.” It also sought recovery against Aztec’s surety on its license bond, in support of which it alleged that the bond had been issued “upon application…to the Registrar of Contractors of the Contractor’s State License Board of the State of California for a contractor’s license or renewal thereof” in accord with the relevant statute.
Aztec cross-complained against Womack, and against a swimming pool subcontractor. The contractor alleged that it had fully performed on its contract, that it had been a California licensed general contractor for 20 years, and the homeowner and subcontractor had illegally cut it out of the job.
Prior to trial, in accordance with local rules, the attorney representing Womack and the subcontractor filed a “joint list of stipulated facts and controverted issues.” The document, although designated as joint, was apparently not served on Aztec’s counsel and made no mention of any dispute as to whether Aztec was licensed.
During trial, Aztec’s owner, D.A. Lovell, took the stand and testified that Aztec was licensed. Opposing counsel, however, citing Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, demanded that Lovell produce a verified certificate from the license board, which he did not have.
The case strictly construed Business and Professions Code §7031, which requires that such a certificate be presented if the issue of licensure is “controverted.”
Judge Derek Hunt instructed the parties to brief the effect of there being no certificate, while allowing the trial to continue. Aztec’s counsel contacted the license board, meanwhile, but learned that it takes a minimum of six days to obtain the certificate, even if it is picked up from the board’s Sacramento office.
Hunt, who said he had not had time to read the briefs and needed to reread Advantec, allowed the case to go to the jury, which found that Womack owed Aztec more than $13,000 and that the subcontractor owed Aztec more than $4,000. The judge, however, granted JNOV days later, saying he was compelled by Advantec and the statute to do so.
Bedsworth, however, said that while the trial judge was “haunted” by the “spectre” of Advantec, the case was distinguishable because of the “clear statement in Womack’s complaint admitting Aztec was licensed.”
Indeed, the justice pointed out, Womack went so far as to sue on the license bond—the surety settled right before trial—which could only have been issued to Aztec if it was licensed.
“Womack’s complaint effectively told both the court and Aztec – twice – that the issue of Aztec’s licensure was not controverted for purposes of section 7031, subdivision (d),” the justice wrote. “Under the doctrine of judicial admission, that removed the issue from the set of controverted issues. And if the issue of licensure was not controverted, then, under the plain language of section 7031, subdivision (d), there was no need on Aztec’s part to present a verified certificate from the License Board as part of its case.”
The case is Womack v. Lovell, 15 S.O.S. 2973.
Copyright 2015, Metropolitan News Company