Silbermann v. Shangri-La Construction CA2/7 ( 2020 )

Filed 8/19/20 Silbermann v. Shangri-La Construction CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WILLIAM JAMES SILBERMANN, B290364
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC622702)
v.
SHANGRI-LA CONSTRUCTION,
LP,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed in part;
reversed in part; remanded with instructions.
Eisner and Sarah F. Powers; Collins Collins Muir +
Stewart, Christian E. Bredeson and James C. Jardin for
Defendant and Appellant.
Edward M. Picozzi, Ostergar Law Group and Treg A.
Julander for Plaintiff and Respondent.
__________________________
Construction contractor Shangri-La Construction, LP
(Shangri-La) appeals the denial of its motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial
after the trial court entered judgment on the jury’s special verdict
and awarded subcontractor William Silbermann, also known as
Bill Silbermann Construction (Silbermann), $411,377 in damages
for work performed for Shangri-La in the course of a building
renovation.
Shangri-La contends the verdict must be set aside because
the jury awarded Silbermann damages in quantum meruit for
work that was governed by express contracts with Shangri-La for
which Silbermann failed to obtain prior written authorization, as
required by the contracts. Shangri-La also argues the jury’s
findings as to the reasonable value of Silbermann’s work are not
supported by substantial evidence, and its verdict awarding
Silbermann amounts retained under the contracts was defective
because the jury did not specify the amount of damages.
Shangri-La contends further the trial court should have declared
a mistrial after a juror looked up trial counsel on the Internet
and then denied doing so when asked by the court. Finally,
Shangri-La contends the court erred in awarding prejudgment
interest, asserting Silbermann’s damages were uncertain prior to
the jury returning its verdict.
The trial court did not err in denying Shangri-La’s motion
for judgment notwithstanding the verdict or for a new trial.
However, we agree with Shangri-La the court erred in awarding
prejudgment interest. We reverse in part the award of
prejudgment interest and remand to the trial court with
instructions to recalculate prejudgment interest consistent with
this opinion. In all other respects, we affirm the judgment.
2
FACTUAL AND PROCEDURAL BACKGROUND
The Contracts, Mechanic’s Lien, and Complaint
In 2015 the owners of a historic 13-story office building
located at 416 West 8th Street in downtown Los Angeles hired
Shangri-La as the general contractor to convert the building into
a 226-room hotel (the Project). Shangri-La in turn entered into
contracts with Silberman to perform work on the Project.
Silbermann asserted Shangri-La failed to pay him the full
amount owed under the contracts, and on May 6, 2016
Silbermann recorded a mechanic’s lien against the property,
claiming Shangri-La owed $497,191 in connection with “coring,[1]
concrete cutting, concrete patching, [and] labor” Silbermann
performed on the Project.
On June 8, 2016 Silbermann filed this action against
Shangri-La and Fidelity and Deposit Company of Maryland
(Fidelity),2 the guarantor of the surety bond Shangri-La obtained
to release the mechanic’s lien, seeking to recover $497,191 in
damages. Silbermann asserted causes of action for breach of
contract, quantum meruit, money had and received, goods and
services rendered, and a claim to release the mechanic’s lien.
1 Coring refers to drilling holes through concrete slabs to
allow the installation of pipes.
2 Fidelity is not a party to this appeal.
3
The Evidence at Trial
The trial court bifurcated trial of the action, with
Silbermann’s causes of action for breach of contract and quantum
meruit tried to the jury first on November 6, 2017.3 The jury
heard testimony from 11 witnesses over five days: Silbermann
and four of his employees and subcontractors; Shangri-La’s chief
executive officer and four of its site supervisors and foremen; and
Shangri-La’s expert on construction contracts and damages.
1. The coring contract and additional floor coring
Following a competitive bid process, on December 23, 2015
Silbermann and Shangri-La entered into a contract for
Silbermann to perform coring at the Project site (the coring
contract). The contract provided Shangri-La would pay $114,300
for the work. The contract was printed on a Shangri-La form and
was signed by Silbermann and Lynne Delameter, Shangri-La’s
vice president. The contract specified Shangri-La would make
periodic progress payments to Silbermann but would withhold
10 percent of the contract price as a “retainage” to be paid after
completion of the Project, provided Silbermann’s work was “fully,
properly and timely performed in strict compliance with the
requirements” of the contract.
3 Silbermann’s cause of action relating to the mechanic’s lien
was tried before Judge Ongkeko on January 11, 2018. The
common counts causes of action for money had and received and
goods and services rendered were dismissed before trial.
4
The coring contract defined the scope of work to include
drilling 3,425 cores of varying diameters through concrete floors
“based on 4″ thick slab” at locations marked out by Shangri-La on
the Project plans. The scope of work also included sawing 518
larger rectangular cuts (also called openings) “based on 4″ thick
slab” at designated locations.4 In bidding on the contract,
Silbermann calculated his bid, which became the contract price,
based on the time it would take to drill each hole and the
equipment that would be necessary to drill the requisite number
of cuts through four inches of concrete. Fred Reyes, the
Shangri-La senior project manager who solicited bids for the
coring contract, confirmed the contract was based on drilling
through four-inch thick concrete.
The coring contract provided as to modifications, “No
employee or agent of [Shangri-La] is authorized to direct any
changes in [Silbermann’s w]ork by oral order except in an
emergency affecting persons or property. Change to
[Silbermann’s w]ork and to this Agreement may be made only by
a written directive or change order to this Agreement signed by
[Shangri-La] (‘Modification’). The Modification shall be on
[Shangri-La] approved forms. [Silbermann], prior to the
commencement of any revisions, shall submit promptly to
[Shangri-La], in writing, a Claim for adjustment to the
Subcontract Sum and Subcontract.” Additional work “properly
authorized by [Shangri-La]” would be paid “at direct field cost
with a profit not to exceed 5%.” Shangri-La was entitled
unilaterally to make changes to the work to be performed by
4 The larger rectangular openings were designed to enable
installation of heating, air conditioning and ventilation ducts.
5
Silbermann, “whether minor or cardinal,” consisting of
“additions, deletions, reductions in scope, or other revisions,” by
issuing a modification, with the change to be compensated
pursuant to other provisions of the contract.
When Silbermann and his crew began work on the Project,
they discovered many of their four-inch cores were not
penetrating the concrete floors, and they reported the issue to
Shangri-La’s on-site field superintendent (Bob Baca) and to
Reyes. Reyes determined the cores were drilling into steel-
reinforced structural beams and joists that were substantially
thicker than four inches. Reyes orally informed the building
owners, the architect, and the structural engineer of the problem.
According to Silbermann, Baca instructed him to continue
drilling as deep as necessary and to saw through rebar and use a
jackhammer as necessary to penetrate the floors. Reyes
acknowledged in his testimony many of the cores ultimately
needed to be 16 to 18 inches deep to penetrate the floors, which
“burned a lot of [drill] bits and took a long time.” On January 8,
2016 Silbermann reported to Reyes that 475 of 498 holes he had
drilled were 11 to 13½ inches deep, and all 200 rectangular cuts
were 11 inches deep.
Silbermann considered this work to be outside the scope of
the coring contract, and in early January 2016 he advised
Shangri-La he would charge a significantly higher price per hole
because of the additional time and tools necessary: $102.50 for
cores exceeding four inches (compared to $27.50 per four-inch
core under the contract) and $142.50 for rectangular cuts
(compared to $42.50 per cut under the contract). Reyes testified
Silbermann’s rates for the additional work “were reasonable, so I
agreed to them.” Reyes considered the new terms to be a
6
“modification” of the coring contract. Reyes observed Silbermann
performing pursuant to the modification to the benefit of the
Project.
Silbermann testified he repeatedly went to Shangri-La’s
field office to request a change order on Shangri-La letterhead,
but he was never provided with one. Silbermann testified he
nonetheless proceeded with the work because Reyes and Richard
Petersen, who in February 2016 replaced Reyes as senior project
manager, signed the invoices Silbermann provided for work
performed under the modified terms. Silbermann understood
Reyes and Petersen to be the highest-ranking Shangri-La
employees on-site, who were in charge of the entire Project, and
Silbermann believed they were authorized to approve and direct
the additional work. During the course of Silbermann’s work
from December 2015 through April 2016, no one from Shangri-La
informed him that he would not be paid for the additional work
because he had not used a Shangri-La change order. Multiple
Shangri-La senior employees were on-site regularly and observed
Silbermann’s work, including Reyes, Petersen, site supervisor
Darren Veith, and Shangri-La chief executive Andy Meyers.
Silbermann drilled 3,120 of the 3,425 cores and sawed 416
of the 518 rectangular cuts specified in the coring contract. At
Shangri-La’s direction, Silbermann did not complete the
remaining cores and cuts because a portion of the site was
occupied by business offices.5 At trial, Silbermann claimed the
reasonable value of the modifications to the contract was
$355,680, accounting for the higher rates approved by Reyes and
5 Silbermann agreed to credit Shangri-La for the
uncompleted work based on the coring contract rates for the
unfinished cores and cuts.
7
the number of cores and cuts exceeding four inches. Shangri-La
paid Silbermann $102,870, based on the $114,300 original coring
contract price, less the 10 percent retention Shangri-La withheld.
Shangri-La’s project supervisor, Cody Holmes, testified
Shangri-La withheld the retention because Silbermann had not
submitted a claim on the industry-standard claim form and the
overall Project was still being wound down, explaining “retention
is held until substantial completion of the Project, and then the
owner disperses all retentions to the subcontractors.” In
contrast, Silbermann testified he submitted multiple notarized
requests on the proper form for paying the retained amount.
2. Overhead and elevator pit coring
On February 2, 2016 Petersen issued an urgent request on
Shangri-La letterhead to the Project architect seeking design
approval to drill cores through beams located along the walls on
several floors of the building to accommodate sprinkler pipes. On
March 17, 2016 Petersen forwarded the request to Silbermann
with the handwritten instruction, “Bill – please proceed with
coring for 2, 4, 8, 13 as needed for [the plumbing subcontractor].”
Petersen also wrote, “Please core Fire Risers.”
Silbermann and his employee David Garrison testified the
requested work was distinct from the cores identified in the
coring contract, and unlike the coring work, it involved “overhead
coring,” a more intensive process requiring hundred-pound drills
to be bolted to horizontal walls. Silbermann and Petersen agreed
to a price for the additional work, and Silbermann submitted
periodic invoices that site superintendent John Paul Martinez
signed. Silbermann believed Petersen had the authority to
approve the additional work.
8
Shangri-La prepared a change order on Shangri-La
letterhead dated April 15, 2016 reflecting the additional work,
which also addressed a separate request for Silbermann to drill
exploratory holes at the bottom of the elevator shaft to test the
structure. The change order stated Silbermann would be paid
$15,890 in addition to the coring contract, including $12,100 for
44 overhead cores at $275 each, $3,200 for 20 floor cores for the
vertical fire risers, and $590 for coring in the elevator shaft.
Shangri-La provided the change order to Silbermann after he
completed the work. Although Silbermann signed the change
order, Shangri-La did not. Silbermann testified the change order
did not reflect all the overhead coring and elevator pit work he
performed, claiming he should have been paid an additional
$36,133 based on the rates described in the invoices Silbermann
presented to Petersen.
3. The grouting contract and additional floor patching
On January 4, 2016 Silbermann and Shangri-La executed a
contract for Silbermann to perform cast-in-place concrete repair
for the Project, referred to as “grouting.” Like the coring
contract, the grouting contract was printed on a Shangri-La form
and was signed by Delameter, and it included identical
modification provisions requiring any additional work to be
approved in writing on a Shangri-La form. The contract price
was $259,328 with a 10 percent retainer. The scope of work was
defined to include “[s]pall [r]epairs per plans” on “[c]olumns,
[w]all, [s]tringer beams above each floor, and [s]offits.”6 The
6 A “spall” is “[a] splinter or chip, especially of rock.” (Oxford
English Dict. Online (2020) https://en.oxforddictionaries.com/
9
contract provided the “[r]epair of any areas not identified on
plans will be done on a [time and materials] basis, identified and
signed for on a separate ticket.”
Reyes testified Silbermann fully performed the grouting
contract, and Shangri-La paid Silbermann the full contract price,
less the 10 percent retention. Holmes testified Shangri-La did
not release the retention on the grouting contract because
Silbermann never submitted a bill on the proper claim form. In
addition, the retention is not usually paid until there is
“substantial completion” of the Project. Silbermann testified he
submitted a claim for retention on the proper forms.
In January 2016 Shangri-La requested Silbermann provide
a bid for additional work patching the concrete floors where walls
and columns had been removed during the renovation, leaving
depressions that needed to be filled and leveled prior to new
construction. The project was urgent because the building owner
was putting pressure on Shangri-La to begin construction of the
new walls. Reyes and the site superintendent therefore orally
instructed Silbermann to proceed. Reyes testified the floor
patching project was for an “entirely different scope of work”
outside of Silbermann’s grouting contract.
On January 22, 2016 Silbermann faxed a letter to Reyes
with the subject “Floor patching contract,” which stated, “After
submitting a written proposal to do the floor patching where
previous walls have been removed from floors 2-12 . . . for the
definition/spall [as of August 18, 2020].) A “soffit” is “[t]he
underside of an architectural structure such as an arch, a
balcony, or overhanging eaves.” (Oxford English Dict. Online
(2020) https://en.oxforddictionaries.com/definition/soffit [as of
August 18, 2020].)
10
price of $129,750.00, we were verbally ordered to proceed. I have
yet to receive a contract from your company, . . . We will start
prep immediately today upon your WRITTEN APPROVAL, and
start the actual patching Monday. If you approve please sign
below and we will start immediately.” Reyes signed the letter,
checking the response stating, “I approve the proposal and order
you to proceed per these terms and prices (Contract to follow from
office).” Reyes also handwrote, “OK per Lynne Delameter.” At
trial, Reyes affirmed he had received Delameter’s authorization
to approve Silbermann’s proposal.
Silbermann performed the floor patching contemplated by
the letter agreement. Silbermann repeatedly requested
Shangri-La generate a contract for the floor patching project, but
Shangri-La never did. Although Silbermann repeatedly
requested payment and was told payment “was in the works,” he
was never paid.
4. Debris removal and floor protection
When Silbermann first arrived on the Project site in
December 2015, he encountered large piles of debris from
previous demolition work throughout the building, including
broken concrete, bricks, lumber, door frames, windows, and glass.
Because the debris covered the floors and prevented Silbermann
from drilling, Reyes requested Silbermann have his crew remove
the debris on a “time and materials” basis pursuant to
Silbermann’s standard labor rate sheet. A crew of 10 laborers
worked continuously from approximately December through
January 2016, laying Masonite boards on marble floor surfaces
for protection and using wheelbarrows and shovels to carry the
debris down the elevators to a dumpster.
11
Silbermann testified the cost of the cleanup project on a
time and materials basis at his standard labor rates was $26,500.
During the cleanup, Silbermann prepared daily invoices
identifying the number of workers and the total labor expense for
the day. Reyes observed the cleanup and approved Silbermann’s
invoices. Silbermann submitted the signed invoices to
Shangri-La’s billing department, but he was never paid.
Silbermann and Reyes testified the removal of other
subcontractors’ debris was not part of the coring and grouting
contracts. Silbermann testified none of the time and materials he
charged included cleanup of debris generated by Silbermann’s
own crew, which he admitted was within the within the scope of
his contracts with Shangri-La.
The Special Verdict and Judgment
On November 15, 2017 the jury returned a special verdict,
making findings on Silbermann’s claims organized into six parts:
(I) retention on the coring contract; (II) retention on the grouting
contract; (III) additional [floor] coring; (IV) overhead and elevator
pit coring; (V) floor patching; and (VI) cleanup/laying Masonite.
The jury found as to the coring and grouting contracts (parts I
and II) Silbermann had done “all, or substantially all, of the
significant things that the contract required [him] to do in order
to recover the retention[s]” and “[Shangri-La] is required to pay
the retention[s] under the contract now.” However, the special
verdict form did not ask the jury to make findings as to the dollar
amount of the retention, and the jury made no such findings.
12
As to Silbermann’s claims with respect to the “additional
[floor] coring” (part III); “overhead and elevator pit coring”
(part IV); “floor patching” (part V); and “clean-up/laying
Masonite” (part VI), the jury found (1) there was no “valid,
written contract governing the subject matter for which
[Silbermann] now seeks recovery”; (2) Shangri-La “request[ed],
by words or conduct, that [Silbermann] perform services for the
benefit of [Shangri-La], the subject matter of which is not
governed by any written contract between the parties”;
(3) Silbermann did not “know or have reason to believe that Fred
Reyes could not authorize the claimed additional work”;
(4) Silbermann “[d]id the work for which he now seeks to
recover”; and (5) Silbermann has “proven the reasonable value of
his work.” The jury also found the quantum meruit value of
Silbermann’s additional work separate from the two contracts
was $313,701, including $158,818 for additional coring; $36,133
for overhead coring and elevator pit work; $99,750 for floor
patching; and $19,000 for cleanup/Masonite.
On March 2, 2018 the trial court entered judgment on the
jury’s special verdict and awarded Silbermann $411,376.91. The
award included the amounts determined by the jury to be the
reasonable value of Silbermann’s work, as found in parts III
through VI of the verdict form, plus $25,932.80 for retention
under the grouting contract (10 percent of $259,328) and $11,430
for retention under the coring contract (10 percent of $114,300).
The award also included $60,313.11 in prejudgment interest
calculated at 10 percent per annum beginning on May 6, 2016,
the date Silbermann filed the mechanic’s lien. The court only
awarded prejudgment interest on the work set forth in parts I
through V, not the $19,000 awarded in part VI for debris
13
removal. The trial court handwrote the calculations for retention
and prejudgment interest on the judgment.
On March 29, 2018 Shangri-La and Fidelity filed a motion
for judgment notwithstanding the verdict, or in the alternative,
for a new trial. The trial court denied the motions on April 30,
2018. As to the motion for judgment notwithstanding the verdict,
the court found “there was substantial evidence, or reasonable
inferences to be drawn therefrom, on all grounds raised in the
motion to support the challenged verdicts.” As to the motion for
new trial, the court ruled, “After weighing all of the evidence, the
court finds that there was sufficient evidence to show that
[Silbermann’s] additional work as relevant to his claims in
Parts III-VI of the special verdict was not governed by either
agreement and, therefore, quantum meruit recovery was properly
submitted to the jury. The testimony of [Silbermann] and Fred
Reyes was credible, reasonable, and solid in all significant
respects. The jury apparently rejected, and the court also finds,
that there was no evidence of a collusion or conspiracy between
them, notwithstanding [Shangri-La’s] innuendos. . . . The court
cannot say that the jury clearly should have reached different
verdicts.”
Shangri-La timely appealed.
DISCUSSION
Standard of Review
“‘A motion for judgment notwithstanding the verdict may
be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support.’” (Cabral v. Ralphs Grocery
14
Co. (2011) 51 Cal. 4th 764, 770; accord, Johnson & Johnson
Talcum Powder Cases (2019) 37 Cal. App. 5th 292, 313 (Johnson).)
“‘“On appeal from the denial of a motion for judgment
notwithstanding the verdict, we determine whether there is any
substantial evidence, contradicted or uncontradicted, supporting
the jury’s verdict. [Citations.] If there is, we must affirm the
denial of the motion.’” (Newland v. County of Los Angeles (2018)
24 Cal. App. 5th 676, 684; accord, Cabral, at p. 770; see IIG
Wireless, Inc. v. Yi (2018) 22 Cal. App. 5th 630, 639 [denial of a
motion for judgment notwithstanding the verdict “is essentially
the same as appealing the judgment itself for a lack of
substantial evidence”].) The appellate court, like the trial court,
may not reweigh the evidence or judge the credibility of
witnesses. (Johnson, at p. 313.) “‘“‘“If the evidence is conflicting
or if several reasonable inferences may be drawn, the motion for
judgment notwithstanding the verdict should be denied.”’”’”
(Ibid., quoting Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110.)
“The denial of a new trial motion is reviewed for an abuse
of discretion, except that a trial court’s factual determinations are
reviewed under the substantial evidence test.” (Minnegren v.
Nozar (2016) 4 Cal. App. 5th 500, 514, fn. 7; see People v. Johnson
(2019) 8 Cal. 5th 475, 524 [“We will not disturb a trial court’s
denial of a motion for a new trial unless ‘a “manifest and
unmistakable abuse of discretion”’ clearly appears.”].) Code of
Civil Procedure section 657 provides seven grounds for granting a
new trial where the error “materially affect[s] the substantial
rights” of a party, including as applicable here: “[¶]
2. Misconduct of the jury; . . . [¶] . . . [¶] . . . [¶] 5. Excessive or
inadequate damages. [¶] 6. Insufficiency of the evidence to
justify the verdict or other decision, or the verdict or other
15
decision is against law. [and] [¶] 7. Error in law, occurring at
the trial and excepted to by the party making the application.”
However, “[a] new trial shall not be granted upon the ground of
insufficiency of the evidence to justify the verdict . . . unless after
weighing the evidence the court is convinced from the entire
record, including reasonable inferences therefrom, that the court
or jury clearly should have reached a different verdict or
decision.” (Code Civ. Proc., § 657.)
The Jury’s Findings Awarding Silbermann Damages in
Quantum Meruit Are Supported by Substantial Evidence
Shangri-La contends Silbermann was not entitled to
recover damages in quantum meruit because his contracts with
Shangri-La governed his performance, and to the extent he
performed additional work without obtaining written change
orders, he was not entitled to compensation. Shangri-La’s
contentions lack merit.7
7 Although the parties correctly articulate the differing
standards of review for a motion for judgment notwithstanding
the verdict and a motion for a new trial, they do not distinguish
between the motions in their arguments. Because substantial
evidence supports the verdicts, the trial court properly denied
both motions to the extent they relied on the sufficiency of the
evidence. The trial court likewise did not abuse its discretion in
denying Shangri-La’s motion for a new trial on the basis of an
error of law.
16
1. Substantial evidence supports Silbermann’s quantum
meruit claims based on work performed outside the
scope of the parties’ contracts
“‘A quantum meruit or quasi-contractual recovery rests
upon the equitable theory that a contract to pay for services
rendered is implied by law for reasons of justice. [Citation.]
However, it is well settled that there is no equitable basis for an
implied-in-law promise to pay reasonable value when the parties
have an actual agreement covering compensation.’” (Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016)
6 Cal. App. 5th 1207, 1222 [quantum meruit claim for costs of
prosecuting unlawful detainer action barred where defendants
had contractual obligation to pay the costs, but plaintiffs could
plead alternative inconsistent causes of action], affd. on other
grounds (2018) 4 Cal. 5th 637; accord, California Medical Assn. v.
Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal. App. 4th
151, 172 [medical association could not maintain claim on behalf
of doctors against insurance companies for compensation under
quasi-contract theory where parties’ rights were defined by
express binding agreements]; see Retired Employees Assn. of
Orange County, Inc. v. County of Orange (2011) 52 Cal. 4th 1171,
1179 [“‘Implied contractual terms “ordinarily stand on equal
footing with express terms”’ [citation], provided that, ‘as a
general matter, implied terms should never be read to vary
express terms.’”].)
However, “[i]n cases where extra work is caused by
authorized deviations from a building contract, and no agreement
is made regarding the price thereof, or payment therefor, the law
implies an agreement by the owner to pay the reasonable value of
the extra work.” (City Street Improv. Co. v. Kroh (1910) 158 Cal.
17
308, 323 (City Street Improv.), overruled in part on other grounds
by Pasadena v. Charleville (1932) 215 Cal. 384; accord, Benson
Electric Co. v. Hale Bros. Associates, Inc. (1966) 246 Cal. App. 2d
686, 697 (Benson) [general rule barring equitable remedies when
a written contract controls does not apply where contractor seeks
value of “‘extras’ for which there was no underlying express
contract”].) “Extra work as used in connection with a building
contract means work arising outside of and entirely independent
of the contract—something not required in its performance, not
contemplated by the parties, and not controlled by the contract.
[Citations.] . . . Where the extras are of a different character
from the work called for in the contract and no price is agreed on
for extra work, their reasonable value may be recovered.” (C. F.
Bolster Co. v. J. C. Boespflug Constr. Co. (1959) 167 Cal. App. 2d
143, 151 (Bolster Co.).)
The Supreme Court’s holding in City Street Improv., supra,
158 Cal. 308 is directly on point. There, the county entered into a
contract with the plaintiff to perform road improvements in the
course of which the county’s plan for the work was modified to
decrease the amount of grading required for the project. (Id. at
pp. 314, 325.) The Supreme Court concluded that because the
contract did not specify the price to be paid based on the modified
amount of grading required, “it would be necessary to resort to
the general principles of the law of implied contracts.” (Id. at
p. 325.) Similarly, in Bolster Co., supra, 167 Cal.App.2d at
page 145, the plaintiff entered into a subcontract to apply
plastering to a school building, but in the course of the work the
condition of the building’s exterior surface required the plaintiff
to apply three coats of plaster, instead of the two required under
the subcontract. The Court of Appeal concluded there was
18
substantial evidence the third coat of plaster was necessary to
produce an exterior wall surface that conformed to the
specifications of the contract and the general contractor directed
the third coat be applied. (Id. at pp. 150-151.) Accordingly, the
plaintiff was entitled to recover for the reasonable value of the
third coat of plaster, which was not controlled by the contract or
contemplated by the parties. (Id. at p. 151.)
Here, the jury made specific findings as to each quantum
meruit claim that there was no “valid, written contract governing
the subject matter for which [Silbermann] now seeks recovery.”
The jury also found Shangri-La instructed Silbermann to perform
additional work “the subject matter of which [are] not governed
by any written contract between the parties.” These findings are
supported by substantial evidence.
With respect to the additional floor coring (part III), the
coring contract expressly stated the cores and cuts were “based
on a 4″ thick slab,” but Silbermann and Shangri-La learned in
January 2016 that approximately 95 percent of the cores and cuts
needed to be at least 11 inches deep and required sawing through
steel-reinforced structural beams and blasting out holes with
jackhammers. Silbermann priced his bid for the coring contract
based on the time and resources it would take to penetrate
four-inch concrete slabs, not concrete and metal to depths of
11 inches or more. In addition, Baca instructed Silbermann to
drill as deeply as necessary to saw through the rebar and
penetrate the floors. Multiple Shangri-La senior employees
observed the modified work. Silbermann advised Reyes of the
modified rates he would charge to drill the deeper holes, and
Reyes “agreed to them.” Likewise, Reyes and Petersen signed the
invoices submitted by Silbermann with the modified prices.
19
With respect to the overhead and elevator pit coring
(part IV), the coring contract identified 3,425 cores and 518
rectangular cuts to be drilled based on the Project plans. But
several months later Petersen instructed Silbermann to perform
overhead and elevator pit coring based on subsequent design
revisions. The additional work was distinct from the coring
called for under the coring contract in that the overhead and
elevator pit coring involved the bolting of drilling machinery to
walls and lowering men and equipment into an elevator shaft
instead of coring through the concrete floor. Petersen agreed to
Silbermann’s price for the additional work, and Shangri-La
prepared a written change order for the additional work, which
Silbermann signed but Shangri-La did not.
The floor-patching work (part V) also falls outside of the
scope of the contracts. To support its argument the floor patching
was part of the grouting contract, Shangri-La points to testimony
from Silbermann employee Thomas Ocon that he used “grout
mix” to do “floor patching” and from Silbermann subcontractor
Marvin Aceves that “[g]rout [and] patch are interchangeable
[terms]. . . . It’s basically the same thing as . . . for the ceiling.”
But regardless of the common nature of the work, the grouting
contract clearly defined the scope of the work to include “[s]pall
[r]epairs per plans” on “[c]olumns, [w]all, [and] [s]tringer beams
above each floor, and [s]offits,” that is, grouting on walls and
ceilings, which is distinct from the additional floor patching work
to fill in and level depressions in the floors. Reyes admitted the
floor patching work was an “entirely different scope of work” that
would require a new contract. Further, Silbermann provided a
written proposal for the floor patching work to Reyes at the
request of Shangri-La, which proposal Reyes signed, checking the
20
box “I approve the proposal and order you to proceed per these
terms and prices.”
With respect to Silbermann’s site clean-up and laying of
Masonite floor protection (part VI), the parties’ contracts did not
address removal of demolition debris left by other subcontractors,
and Silbermann and Reyes testified the debris littered the Project
site when Silbermann first arrived. Further, it was Reyes who
requested Silbermann remove the debris on a “time and
materials” basis; Reyes observed the cleanup, and Reyes
approved Silbermann’s invoices for the work. On appeal,
Shangri-La disputes that Silbermann performed the cleanup
work, but it does not argue the work fell within the scope of the
contracts.
Thus, substantial evidence supports recovery in quantum
meruit with respect to each of these categories of additional work
because the work was of a different character from the work
called for in the contracts, the coring contract did not provide a
price for the modified coring work, the modified work was not
contemplated by the parties, and Shangri-La directed it be
performed. (City Street Improv., supra, 158 Cal. 308 at p. 323;
Bolster Co., supra, 167 Cal.App.2d at 151.)
The cases relied on by Shangri-La are distinguishable
because in each case the parties had an express agreement
covering the work for which the plaintiff sought equitable relief,
thus barring relief for both an express and implied contract. As
noted in California Medical Assn. v. Aetna U.S. Healthcare of
California, Inc., supra, 94 Cal.App.4th at pages 172 to 173, an
express contract governed the doctors’ right to compensation from
the insurance companies. In Hedging Concepts, Inc. v. First
Alliance Mortgage Co. (1996) 41 Cal. App. 4th 1410, 1420, an
21
express contract governed the plaintiff consultants’ right to
commissions from the defendant securities company. In
Wal-Noon Corp. v. Hill (1975) 45 Cal. App. 3d 605, 613, a written
lease governed the obligation of the lessor to make roof repairs.
In contrast to these cases, the jury here awarded damages for
additional work not specified by the written contracts.
2. Shangri-La waived the requirement Silbermann
obtain a written change order for additional work
Shangri-La contends Silbermann’s recovery in quantum
meruit was barred by the express terms of the contracts that
required Silbermann to obtain a written change order on an
approved claim form to recover for additional work performed.
However, substantial evidence supports a finding Shangri-La
waived the written change order requirement.8
8 Shangri-La’s argument is premised on its assertion the
contracts “expressly provide that [Silbermann] is not entitled to
payment in the event he does not follow the procedure set forth
therein” for change orders. (Italics omitted.) Although the coring
and grouting contracts require any modification be made by a
written change order, only the prime contract between the Project
owner and Shangri-La provides specifically that failure to obtain
a change order “shall be deemed a waiver of [Shangri-La’s] and
[Silbermann’s] right to payment for such work.” The contracts
between Shangri-La and Silbermann include the prime contract
within the definition of a “subcontract document,” but the prime
contract does not purport to control the payment arrangement
between Shangri-La and Silbermann. In any event, there is
substantial evidence Shangri-La waived the change order
requirement.
22
“If the parties, by their conduct, clearly assent to a change
or addition to the contractor’s required performance, a written
‘change order’ requirement may be waived.” (Weeshoff Constr.
Co. v. Los Angeles County Flood Control Dist. (1979)
88 Cal. App. 3d 579, 589 (Weeshoff); accord, Healy v. Brewster
(1967) 251 Cal. App. 2d 541, 552 [“Where the terms of a written
contract require that extra work be approved in writing, such
provision may be altered or waived by an executed oral
modification of the contract.”]; Howard J. White, Inc. v. Varian
Associates (1960) 178 Cal. App. 2d 348, 353 [“It is settled law that
the parties may by their conduct waive the requirement of a
written contract that no extra work shall be done except upon
written order.”]; Bolster Co., supra, 167 Cal.App.2d at p. 153.)
Weeshoff, supra, 88 Cal.App.3d at pages 585 to 586 and
Bolster Co., supra, 167 Cal. App. 2d 143 are directly on point. In
Weeshoff, a flood control district entered into a contract with a
contractor to construct a storm drain project. The contract
required the contractor to maintain three lanes of traffic on a
specified road during construction but prohibited the use of
temporary pavement during construction. (Weeshoff, at p. 583.)
After the district pressured the contractor to use temporary
pavement to enable the opening of the traffic lanes, the district
refused to approve a change order or pay the contractor for the
work. The Court of Appeal affirmed a judgment awarding the
contractor the value of the additional paving, concluding there
was substantial evidence the defendant intended to waive the
written change order requirement by directing the contractor to
restore the traffic lanes knowing temporary pavement was
needed and itself using temporary pavement on a portion of the
23
same road to restore traffic. (Id. at pp. 589-590.)9 Similarly, in
Bolster Co. the Court of Appeal rejected the defendant’s
argument the plastering subcontractor was barred from
recovering the cost of applying a third coat of plaster by its
failure to obtain a written change order. (Bolster Co., supra,
167 Cal.App.2d at pp. 152-153.) The court concluded sufficient
evidence supported a finding of waiver because “the extra work
was done at defendant’s special instance and request,” noting the
contractor had submitted a written offer to perform the
additional work, and defendant directed the contractor to proceed
without referring to the need to comply with the written change
order requirement. (Id. at pp. 152-153.)
9 The holding in Weeshoff, supra, 88 Cal. App. 3d 579 has been
criticized for applying the law that a private contracting party
may waive the requirement of a written change order to contracts
with public agencies subject to public contracting law. (See P&D
Consultants, Inc. v. City of Carlsbad (2010) 190 Cal. App. 4th
1332, 1342 [noting questionable continued viability of Weeshoff,
explaining “the party contracting with a public agency is charged
with the knowledge of public contracting law”]; Katsura v. City of
San Buenaventura (2007) 155 Cal. App. 4th 104, 111 [Weeshoff
improperly “cited cases involving private parties, not public
agencies” to hold a change order requirement may by waived by
the parties’ conduct]; see also G. Voskanian Construction, Inc. v.
Alhambra Unified School Dist. (2012) 204 Cal. App. 4th 981, 989
[the requirement in a public contract that change orders must be
in writing cannot be waived].) None of these cases questions the
validity of a waiver of the requirement for a written modification
in a private construction contract.
24
Here too, there was substantial evidence multiple
Shangri-La employees supervised the additional work; senior
employees orally approved additional payment for the work; and
in some instances Shangri-La instructed Silbermann to proceed
with the work after Silbermann requested written approval.10
Shangri-La, by both words and conduct, thereby waived the
written change order requirement in the parties’ contracts.
Substantial Evidence Supports Silbermann’s Recovery of
Damages for Retention Under the Contracts
The jury found on Silbermann’s breach of contract claims
Shangri-La was “required to pay the retention under the
contract[s] now,” but it did not assign a specific dollar amount.
Shangri-La contends the failure of the jury to specify an amount
of the retentions violated Code of Civil Procedure section 626’s
10 At trial, Shangri-La sought to discredit Reyes’s testimony
and to suggest Reyes conspired with Silbermann to bilk the
company for the additional work. On appeal Shangri-La
continues to discount the value of Reyes’s testimony as
substantial evidence supporting the verdict. However, the trial
court in its ruling denying the motions for judgment
notwithstanding the verdict and for new trial found Reyes was
“credible, reasonable, and solid in all significant respects.” On
appeal we may not reweigh the evidence or judge the credibility
of witnesses. (Johnson, supra, 37 Cal.App.5th at p. 313.)
Further, there was substantial evidence other Shangri-La
employees, including Petersen, Delameter, the architect, and
Shangri-La foremen, were aware of Silbermann’s work on the site
but allowed it to proceed.
25
requirement the jury “find the amount of the recovery.”11
Shangri-La also argues insufficient evidence was presented at
trial to support the court’s determination Shangri-La owed
Silbermann $11,430 on the coring contract and $25,932.80 on the
grouting contract (10% of the contract sums of $114,300 and
$259,328, respectively). Neither contention has merit.
The special verdict form prompted the jury to state as to
the coring and grouting contracts whether Silbermann was
entitled to retention under the contract, but it provided no place
on the form for the jury to specify the value of the retention. At
the final hearing on the verdict form on November 14, 2017,
Shangri-La’s attorney did not object to parts I and II of the
verdict form addressing Silbermann’s claims to recover retention
under the contracts (on pp. 2-3 of the verdict form). Shangri-La’s
attorney stated, “I think that we’ve come to an agreement on
pages 2 and 3.” Silbermann’s attorney agreed. The court then
stated, “So there’s no amounts. That’s fine.” Silbermann’s
attorney commented, “[W]e’ll figure that out on your own.” The
court responded, “I think the jury will appreciate that.”
This colloquy among counsel and the court reflects an
implied agreement by counsel that the jury would determine
whether Shangri-La owed Silbermann retention under the
contracts, and the court would subsequently calculate the amount
owed. Shangri-La’s alternative scenario is not reasonable—that
the parties would focus extensively on retention at trial and
include retention in the jury verdict, but if Silbermann prevailed
on his retention claims, he would recover nothing. Shangri-La’s
11 Code of Civil Procedure section 626 provides, “When a
verdict is found for the plaintiff in an action for the recovery of
money, . . . the jury must also find the amount of the recovery.”
26
assertion the jury could have included retention as part of the
damages awarded on the quantum meruit claims is inconsistent
with the verdict form, which makes clear retention was part of
the breach of contract claims, not the quantum meruit claims.
In addition, because Shangri-La agreed to the verdict form
before it was submitted to the jury and failed to request
clarification as to how the retention amount would be calculated
before the jury was discharged, Shangri-La forfeited any
objection to the failure of the verdict form to specify a dollar
amount of retention. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal. 4th
247, 263-264, italics omitted [“‘Failure to object to a verdict before
the discharge of a jury and to request clarification or further
deliberation precludes a party from later questioning the validity
of that verdict if the alleged defect was apparent at the time the
verdict was rendered and could have been corrected.’”]; Taylor v.
Nabors Drilling USA, LP (2014) 222 Cal. App. 4th 1228, 1242
[“‘The obvious purpose for requiring an objection to a defective
verdict before a jury is discharged is to provide it an opportunity
to cure the defect by further deliberation.’”].)
Even had Shangri-La not forfeited its challenge to the trial
court’s calculation of retention, the court did not violate
section 626 because the jury was not asked to resolve a factual
dispute concerning the amount of the retention beyond
Shangri-La’s obligation to pay it. (See Redmond v. Weismann
(1888) 77 Cal. 423, 425-426 [in a builder’s action to recover
damages for construction work, where the jury was instructed
without objection that it should determine whether the parties
entered a contract but not the amount of damages, the jury’s
verdict “for the plaintiff” was sufficient to support a judgment for
the contract sum and did not warrant reversal under § 626];
27
Pray v. Trower Lumber Co. (1929) 101 Cal. App. 482, 490-491
[jury verdict specifying money damages for unpaid deliveries that
stated defendant could deduct transportation charges “as shown
by . . . expense bills” did not violate § 626 where the trial court
later modified the judgment to deduct the undisputed
transportation charges because “the verdict therefore was
decisive of the only issue presented for the jury’s
determination”].)
It is true no witness testified to the numerical value of the
retention under the contracts, but there was substantial evidence
fixing the value. The cover page of the coring and grouting
contracts stated the total contract price ($114,300 and $259,328,
respectively) and noted, “10% retainage withheld.” Silbermann
explained “[a] retention is 10 percent of the value of the contract
that is withheld until you are a hundred percent complete with
your project.” Reyes similarly testified subcontractors were paid
for the billed contract price, “less 10 percent retention,” until
completion of the Project. Thus, substantial evidence supports
the award of the retention amounts.
Substantial Evidence Supports the Jury’s Valuation of
Silbermann’s Quantum Meruit Claims
Shangri-La contends the jury’s award on Silbermann’s
quantum meruit claims was not supported by substantial
evidence. We conclude otherwise.
“The measure of recovery in quantum meruit is the
reasonable value of the services, provided they were of direct
benefit to the defendant.” (Children’s Hospital Central
California v. Blue Cross of California (2014) 226 Cal. App. 4th
1260, 1274; accord, Maglica v. Maglica (1998) 66 Cal. App. 4th
28
442, 449.) “The burden is on the person making the quantum
meruit claim to show the value of the services.” (Children’s
Hospital, at p. 1274; accord, Miller v. Campbell, Warburton,
Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal. App. 4th
1331, 1344.) “The ‘reasonable value’ of the services has been
described as the ‘going rate’ for the services [citation] or the
‘reasonable market value at the current market prices.’”
(Children’s Hospital, at p. 1274; accord, Punton v. Sapp Bros.
Constr. Co. (1956) 143 Cal. App. 2d 696, 701.) “[T]he party suing
for compensation may testify as to the value of his services . . . .
[Citation.] Evidence of value can also be shown through
agreements to pay and accept a particular price. [Citations.]
‘The court may consider the price agreed upon by the parties “as
a criterion in ascertaining the reasonable value of services
performed.”’ [Citation.] . . . Additionally, evidence of a
professional’s customary charges and earnings is relevant and
admissible to demonstrate the value of the services rendered.”
(Children’s Hospital, at pp. 1274-1275.) Moreover, “in the
absence of evidence of the value of such services, or where the
evidence leaves uncertain the amount plaintiff is entitled to
recover, the jury may estimate their value from their own
judgment and knowledge on the subject.” (Punton, at pp. 701-
702; accord, Burgermeister v. Wells Fargo Bank & Union Trust
Co. (1961) 191 Cal. App. 2d 624, 632.)
Substantial evidence supports the jury’s valuation of
Silbermann’s additional work. With respect to the additional
floor coring, Silbermann advised Reyes of the rates he would
charge per opening, and Reyes testified the rates “were
reasonable, so I agreed.” With respect to the overhead and
elevator pit coring, Shangri-La drafted a change order specifically
29
pricing the work. For the floor patching, Reyes and Silbermann
similarly agreed in writing on a project price, and Reyes testified
Delameter authorized the work. As to the debris removal, Reyes
agreed to pay Silbermann on a time and materials basis based on
his standard labor rate sheet. Reyes and Silbermann testified
Silbermann carried out the additional work in each of these
categories. In addition, Garrison, Aceves, and Ocon described
their performance of the additional work and authenticated
photographs showing the work in progress.
Shangri-La’s challenges to the sufficiency of this evidence
are not persuasive. First, as noted, Shangri-La questions Reyes’s
credibility but fails to point to evidence that calls Reyes’s
testimony into question. As discussed, the trial court found
Reyes credible, and we do not assess the credibility of witnesses
on appeal. (Johnson, supra, 37 Cal.App.5th at p. 313.) Second,
Shangri-La points out Silbermann failed to produce time cards
for his employees’ work or documentary proof he paid Aceves for
Aceves’s floor patching work, instead relying only on the
testimony of Silbermann and his workers.12 But “[t]he testimony
of a single witness is sufficient proof of any fact.” (Brand v.
12 Shangri-La also claims Silbermann falsified invoices for his
overhead coring, citing testimony from Shangri-La
superintendent John Paul Martinez that he signed off on some of
Silbermann’s daily work tickets to certify the work had been
performed, but Silbermann filled in a dollar amount later.
However, Martinez’s testimony was only relied on to show
Silbermann performed the additional work to Shangri-La’s
satisfaction. To support his money claims, Silbermann relied on
the draft change order Shangri-La issued and Petersen’s
agreement the change order would govern the overhead and
elevator pit coring work.
30
Hyundai Motor America (2014) 226 Cal. App. 4th 1538, 1550; see
Evid. Code, § 411 [“the direct evidence of one witness who is
entitled to full credit is sufficient for proof of any fact”].)
Moreover, several witnesses, none of whom currently works for
Silbermann, testified to their completion of the work.
Third, Shangri-La contends the jury was misled into
awarding a double recovery, awarding the same damages in
quantum meruit and under the contracts. For example, to
support its argument the jury awarded damages in quantum
meruit for work performed under the grouting contract,
Shangri-La cites Aceves’s testimony that floor patching is
“basically the same thing, as in like for the ceiling.” But as
discussed, this ignores the substantial evidence the scope of work
defined in the grouting contract and floor patching project did not
overlap.13 As another example, Shangri-La cites to Garrison’s
testimony the overhead coring work he performed matches the
work described in the April 2016 unsigned change order for
$15,890 “that became part of [the coring contract].” But
Shangri-La never paid the $15,890 specified in the change order,
so this amount never became part of the coring contract.
Fourth, Shangri-La contends the jury was misled by
Silbermann’s closing argument into awarding the value of the
retention on the coring contract twice, once as contract damages
in part I and a second time as a part of the quantum meruit
award for additional coring in part IV. Shangri-La is correct
13 Likewise, contrary to Shangri-La’s argument, Aceves’s
testimony that one of the grouting materials used to patch floors
is the same type of grouting material called for under the
grouting contract does not prove Silbermann billed Shangri-La
for materials he used for the grouting contract.
31
Silbermann’s counsel in his closing argument asserted $309,835
was the reasonable value of Silbermann’s additional coring work,
which “includes the retention on the contract.” But Shangri-La’s
attorney did not object to the closing argument at any time before
the jury delivered its verdict, thereby forfeiting its challenge to
the verdict on this basis. (See Soto v. BorgWarner Morse TEC
Inc. (2015) 239 Cal. App. 4th 165, 200 [“By remaining silent during
plaintiffs’ counsel’s zealous closing argument, [defendant]
forfeited any right to challenge the remarks as improper or
inflammatory at this juncture.”]; Saret-Cook v. Gilbert, Kelly,
Crowley & Jennett (1999) 74 Cal. App. 4th 1211, 1230
[“[Defendant] complains that the closing argument made by the
individual respondent’s counsel ‘blatantly encouraged the jury to
award damages based on their dislike of [defendant], rather than
on [plaintiff’s] emotional distress damages.’ However,
[Defendant] does not cite to anywhere in the record where she
objected to this argument in the trial court, or asked for an
admonishment or a curative instruction. The point is therefore
waived.”].)
Even if Shangri-La did not forfeit this argument, it has not
shown the jury awarded the $11,400 retention amount on the
coring contract twice. Silberman’s attorney later in his argument
specifically requested 10 percent of the contract price for the
coring contract, which he pointed out was the amount Shangri-La
owed on part I of the verdict form. Silbermann’s attorney stated
part I of the verdict form “pertains to [the coring] contract and no
other contract—nor quantum meruit.” Further, the jury rejected
32
Silbermann’s request for $309,835 in quantum meruit for
additional coring, instead awarding only $158,818.14
Juror Misconduct Did Not Require a New Trial
Shangri-La contends the trial court erred in denying its
motion for a new trial because a juror engaged in prejudicial
misconduct by researching trial counsel on the Internet and lying
about it when questioned by the trial judge. We agree with the
trial court there was insufficient evidence of prejudice to
Shangri-La to warrant a new trial.
1. Evidence of juror misconduct
Halfway through trial, Juror No. 13 (Mr. Smith) informed
the trial court he saw Juror No. 12 (Ms. Gonzalez) using her
smart phone during trial to look up Silbermann’s lead trial
counsel, James Turken. The court called Smith into the
courtroom outside the presence of the other jurors and asked him
what he saw. Smith responded as to Gonzalez, “This morning
she’s had her phone on the whole time. She holds it down low
and she’s leaning into me, and she’s got Mr. Turken—I don’t
know what Web site she was looking at, but his picture is there,
his name is there, and she’s researching him. . . . Instead of
listening to the witness, she was researching.” The trial court
14 Shangri-La also argues as evidence of an improper recovery
that on the eve of trial Silbermann abandoned his claim for
nearly $100,000 in “unpaid overtime,” then arbitrarily increased
his quantum meruit claim by more than $100,000. Whether
Silbermann changed his theory of recovery before trial is
irrelevant to the soundness of the jury’s finding as to the
reasonable value of Silbermann’s work based on the evidence at
trial.
33
next called Gonzalez into the courtroom and asked if she was
“possibly . . . violating an order of the court by being on the
Internet.” Gonzalez responded, “Oh, because I’m texting my boss,
if I could not come to work tonight because I’m here at jury
duty. . . . But I’m listening, you know. I’m sorry.” Asked again if
she was “on the Internet of any kind, looking for anything,”
Gonzalez answered, “No.” But Gonzalez added she also texted
with her daughter about plans that afternoon. The court asked if
“that’s it,” and Gonzalez answered “yeah, definitely.”
Shangri-La asked the court to dismiss Gonzalez for her
misconduct, acknowledging this would result in a mistrial
because there were no alternate jurors. The court asked Turken
what Internet pages featured his photograph that Gonzalez
might have seen. Turken stated there were multiple photographs
of him on his law firm’s Web site, and the Web site also included
information about his other cases, including one in which Turken
represented a group affiliated with the Israel Defense Forces in a
lawsuit against a hotel in Santa Monica coincidentally named the
Shangri-La. Silbermann’s counsel objected to dismissing
Gonzalez, arguing there was no evidence Gonzalez saw any
material about Turken’s other matters and a mistrial would
impose unfair economic hardship on Silbermann. After hearing
argument, the court called Gonzalez back into the courtroom for
further questioning.
Asked again whether she used the Internet during trial,
Gonzalez replied, “Oh, yeah. I did Google . . . ‘cause I wanted to
know . . . the names of the lawyers and all that stuff.” Gonzalez
stated she did not admit this to the court when first questioned
“because . . . it doesn’t really make a big deal for me. I just want
to know their names and all that stuff. . . . For me it was just an
34
innocent thing or something. I don’t do any malice against you.”
Gonzalez stated she tried looking up all the lawyers in the case
but could not find Silbermann’s lawyer, Edward Picozzi, because
she did not know how to spell his name. When she searched for
other lawyers, she “couldn’t get their names” and was only able to
obtain something on “Lincoln” (presumably LinkedIn). Gonzalez
said she saw “only one or two” Internet pages before she stopped
searching, and she did not see the attorneys’ names on those
pages. The trial court instructed Gonzalez she could not be on
her cell phone during testimony. When the court inquired
whether she would continue to be on her cell phone if the trial
continues, Gonzalez responded, “Definitely no.” When asked
whether she felt she could still be a fair and impartial juror “after
viewing whatever it is you viewed on your cell phone,” Gonzalez
said, “I am. Yeah.” She added, “It has nothing to do with that.
Whoever. I believe is telling correctly, whoever has the logic side,
whoever has the appropriate reasoning and has the . . .
justification and explanations, that’s all I have to it. Has nothing
to do, whatever emotional or status or whatever credentials a
person has.”
After hearing additional argument from counsel, the court
denied Shangri-La’s motion to excuse Gonzalez and for a mistrial.
The court found Gonzalez’s untruthfulness was a serious
violation and noted Gonzalez “didn’t really ever tell us that she
saw Mr. Turken’s picture on there, when we’ve had one
eyewitness next to her say yes, his picture was on there.”
However, the court found “what she did is benign, not excusable,
but not enough to affect her fairness and impartiality to both
sides. . . . I’m convinced that she can still be fair and impartial
35
despite what she did. And I think an admonition to the entire
panel will cure the problem, and it won’t happen again.”
The court denied Shangri-La’s motion for a new trial on the
same grounds, holding, “As far as the misconduct of Juror no. 12,
the court is still of the view that there was insufficient evidence
that such misconduct was prejudicial to [Shangri-La] and that its
decision denying [Shangri-La’s] motion for mistrial was
correct.”15
2. Shangri-La failed to show Gonzalez’s misconduct was
prejudicial
Under Code of Civil Procedure section 657, subdivision (2),
grounds for a new trial include misconduct of the jury that
“materially affect[s] the substantial rights of [the moving] party.”
To prevail on a motion for new trial, the moving party has the
burden to establish both that an error occurred and “the error
was prejudicial―that it affected a substantial right and prevented
[the party] from obtaining a fair trial.” (Donlen v. Ford Motor Co.
(2013) 217 Cal. App. 4th 138, 147; accord, Donovan v. Poway
Unified School Dist. (2008) 167 Cal. App. 4th 567, 625.)
“A presumption of prejudice arises from serious juror
misconduct.” (Bandana Trading Co., Inc. v. Quality Infusion
Care, Inc. (2008) 164 Cal. App. 4th 1440, 1445; accord, Hasson v.
Ford Motor Co. (1982) 32 Cal. 3d 388, 417, disapproved on
another ground in Soule v. General Motors Corp. (1994) 8 Cal. 4th
548, 580.) However, the presumption “may be rebutted by an
15 Shangri-La’s motion for a new trial was supported by a
declaration of counsel attaching excerpts of the certified trial
transcript, but neither party presented additional affidavits from
the jurors or trial counsel.
36
affirmative evidentiary showing that prejudice does not exist or
by a reviewing court’s examination of the entire record to
determine whether there is a reasonable probability of actual
harm to the complaining party resulting from the misconduct.”
(Hasson, at p. 417.) “Some of the factors to be considered in this
connection are ‘the strength of the evidence that misconduct
occurred, the nature and seriousness of the misconduct, and the
probability that actual prejudice may have ensued.” (Elsworth v.
Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 557; accord, Hasson, at
p. 417.) We review de novo whether juror misconduct was
prejudicial, supporting a new trial. (People v. Ault (2004)
33 Cal. 4th 1250, 1262.)
Based on our review of the record, we conclude there was
no reasonable probability of prejudice to Shangri-La from
Gonzalez’s conduct. There was no evidence Gonzalez saw
information about Turken’s other cases or anything else on his
firm’s Web site that might have influenced her; nor is there
evidence she shared any information with other jurors. (See
People v. Hamlin (2009) 170 Cal. App. 4th 1412, 1466 [although
juror engaged in misconduct by searching online for the definition
of great bodily injury, there was no prejudice requiring a new
trial because there was “‘no . . . affirmative evidence . . . [the
juror] learned anything himself’” and no information was
conveyed to the other jurors].) Shangri-La could have presented
evidence of what a juror was likely to see on the firm’s Web site,
but it failed to do so.
Further, although Gonzalez’s untruthfulness when
confronted was serious, there is no evidence suggesting she lied
to preserve her seat on the jury because she had prejudged the
case, and the trial court found credible Gonzalez’s statement she
37
could remain fair and impartial. (See People v. Collins (2010)
49 Cal. 4th 175, 242 [in considering juror misconduct, reviewing
court “‘accept[s] the trial court’s credibility determinations and
findings on questions of historical fact if supported by substantial
evidence’”].)
Silbermann Is Not Entitled to Prejudgment Interest on the
Damages for Additional Coring Work
Under Civil Code section 3287, subdivision (a), a plaintiff is
entitled to an award of prejudgment interest where the plaintiff
“is entitled to recover damages certain, or capable of being made
certain by calculation, and the right to recover which is vested in
the person upon a particular day.” The test for determining
certainty is “‘“whether defendant actually know[s] the amount
owed or from reasonably available information could the
defendant have computed that amount.”’” (Children’s Hospital &
Medical Center v. Bontà (2002) 97 Cal. App. 4th 740, 774; accord,
Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal. App. 4th 718,
729.) “‘“The statute . . . does not authorize prejudgment interest
where the amount of damage, as opposed to the determination of
liability, ‘depends upon a judicial determination based upon
conflicting evidence and it is not ascertainable from truthful data
supplied by the claimant to his debtor.’ [Citations.]” Thus, where
the amount of damages cannot be resolved except by verdict or
judgment, prejudgment interest is not appropriate.’” (Medical
Center, at p. 774; accord, Duale, at p. 729.) “On appeal, [courts]
independently determine whether damages were ascertainable
for purposes of [prejudgment interest], absent a factual dispute
as to what information was known or available to the defendant
38
at the time.” (Collins v. City of Los Angeles (2012)
205 Cal. App. 4th 140, 151 (Collins).)
Shangri-La contends Silbermann was not entitled to
prejudgment interest because his quantum meruit damages were
uncertain until the jury determined the value of his services.16
We agree as to Silbermann’s damages for additional floor coring
and overhead and elevator pit coring (parts III and IV of the
verdict form). But the retention amounts under the contracts
awarded in parts I and II and damages for floor patching work
(part V) were reasonably ascertainable.
The trial court awarded prejudgment interest calculated
from the date Silbermann filed a mechanic’s lien (May 6, 2016).
But the mechanic’s lien did not provide sufficient information for
Shangri-La to use to calculate the amount it owed for the
additional work Silbermann performed, only stating generally
16 We reject Shangri-La’s contention “[i]t is axiomatic that
damages awarded on quantum meruit are not certain until the
date of verdict, and thus no interest begins to accrue until such
date.” Although a claim in quantum meruit may be uncertain, it
is not inherently so, particularly if the valuation is based on the
parties’ agreements. (See, e.g., Zalk v. General Exploration Co.
(1980) 105 Cal. App. 3d 786, 795 [“[T]he trial court concluded that
because [plaintiff]’s claim was in quantum meruit, it had no
authority to award prejudgment interest. We think this
conclusion erroneous, in that the cause of action had a consensual
basis and, as discussed earlier, was grounded on the specific
agreement of the parties.”]; see also Gray v. Bekins (1921)
186 Cal. 389, 399 [“True, the action here is one in quantum
meruit, but even so, if the exact amount of the indebtedness due
the plaintiffs was known to and admitted by the defendants, the
parties to be charged, the reason for refusing interest until the
amount due is made certain by evidence no longer obtains.”].)
39
Shangri-La owed $497,191 for “coring, concrete cutting, concrete
patching, [and] labor.” The mechanic’s lien did not provide any
specifics, for example, as to how the amount of the lien was
calculated or what contracts and services were included in the
amount. Silbermann’s June 8, 2016 complaint prayed for the
same amount and attached four agreements: the coring contract,
the grouting contract, Reyes’s January 22, 2016 agreement for
Silbermann to perform the floor patching for $129,750, and a
December 29, 2015 letter in which Reyes authorized Silbermann
to charge $56.25 per hour for additional coring work.
Prejudgment interest on Silbermann’s floor patching claim
(part V) was proper because the January 22, 2016 letter
agreement authorized a total payment of $129,750 for the floor
patching project, which was the amount Silbermann sought at
trial. The focus of the parties’ dispute was Shangri-La’s legal
obligation to pay Silbermann for floor patching and its contention
the work was included within the grouting contract, not the
amount of Silbermann’s claim. (See Collins, supra,
205 Cal.App.4th at p. 151 [“[D]amages are unascertainable if the
amount of damages depends on disputed facts or the available
factual information is insufficient to determine the amount; and
damages are ascertainable if the only impediment to the
determination of the amount is a legal dispute concerning
liability or the measure of damages.”].) Contrary to Shangri-La’s
contention, the fact the jury awarded Silbermann only $99,750—
approximately 77 percent of his claim of $129,750—does not
preclude prejudgment interest because the discount applied by
the jury does not result from resolution of a factual dispute over
the amount of the damages. As the Court of Appeal explained in
Collins, “[T]he large discrepancy between the amount initially
40
demanded by plaintiffs in this litigation and the amount awarded
does not indicate that the damages were unascertainable. The
discrepancy results from the resolution of legal disputes
regarding the [defendant’s] liability and not from the resolution
of factual disputes arising from conflicting evidence or the lack of
factual information needed to readily calculate damages.”
(Collins, at p. 152; see Uzyel v. Kadisha (2010) 188 Cal. App. 4th
866, 920 [“A large discrepancy between the amount demanded
and the amount awarded indicates that damages were not
ascertainable if the discrepancy results from the resolution of
factual disputes arising from conflicting evidence or the lack of
factual information needed to readily calculate damages.”].)17
By contrast, there was insufficient information for
Shangri-La to evaluate Silbermann’s claim for additional floor
coring and overhead and elevator pit coring work (parts III and
IV). Although Reyes authorized Silbermann to charge $56.25 per
hour in the December 29, 2015 letter, Silbermann based his
17 The cases cited by Shangri-La for the contrary proposition
involved damage awards that were a small fraction of the
plaintiff’s claim, and the courts concluded the large disparities
were evidence the damages were not reasonably ascertainable.
(See Wisper Corp. v. California Commerce Bank (1996)
49 Cal. App. 4th 948, 961 [rejecting prejudgment interest where
damages were 25 percent of claim]; Polster, Inc. v. Swing (1985)
164 Cal. App. 3d 427, 436 [recovery of $7,836 on $55,000 demand
was “large discrepancy [that] is inconsistent with a sum certain
or capable of being made certain”]; Chesapeake Industries, Inc. v.
Togova Enterprises, Inc. (1983) 149 Cal. App. 3d 901, 910
[uncertainty of damages shown by “70 percent shrinkage from
the initial claim”].)
41
demand at trial on Reyes’s agreement in January 2016 to pay
Silbermann $102.50 for each deeper core and $142.50 for each
deeper square cut, not the amount approved in the December 29
letter. At trial Silbermann testified he drilled a total of 2,808
cores and 416 cuts that were deeper than 11 inches. But there is
no evidence in the record Silbermann advised Shangri-La of the
number of deeper cores and cuts he had drilled other than letters
he sent on January 27 and February 9, 2016 seeking payment
based on 475 holes and 200 cuts deeper than 11 inches that he
had drilled by the date of the letters.18 Further, the jury rejected
Silbermann’s methodology for valuing the coring work when it
awarded him $158,818.75, a sum that corresponded exactly to a
written request Silbermann made to Shangri-La’s accounting
department seeking payment for “extra coring charges” for the
period December 2015 through May 9, 2016. There is no
evidence when Shangri-La received this request (although it was
sometime after May 9, 2016, the date of the last invoice reflected
on the request), and Silbermann does not contend this invoice
constituted a valuation of his coring work. To the contrary,
Silbermann at trial sought nearly twice as much in damages as to
parts III and IV of the special verdict form. Under these
circumstances, Shangri-La could not have reasonably ascertained
Silbermann’s damages for additional coring prior to the verdict.
(See Polster, Inc. v. Swing, (1985) 164 Cal. App. 3d 427, 435
[striking prejudgment interest award on lessor’s judgment
18 Further, the January 27 and February 9, 2016 letters
requested payment based on rates of $100 for each deeper core
and $155 for each deeper cut, also at variance with Silbermann’s
position at trial the agreed rates were $102.50 and $142.50,
respectively.
42
against tenant where lessor’s pretrial letters to tenant identifying
items of property damage were insufficient for tenant to ascertain
money damages and the landlord only recovered 15 percent of its
demand at trial]; Conderback, Inc. v. Standard Oil Co. (1966)
239 Cal. App. 2d 664, 690-691 [construction contractor’s damages
not reasonably ascertainable by project owner where invoices
submitted to property owner were inadequate to determine total
amount owed, contractor’s own pricing formulas arrived at
different amounts, and contractor twice amended its prayer];
cf. Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016)
2 Cal. App. 5th 279, 296 [parts supplier’s contract modification
damages ascertainable where the amount awarded by the jury
corresponded with supplier’s initial price quote, a request for a
change order, the complaint, and supplier’s counsel’s closing
argument].)
Finally, as to the trial court’s award of prejudgment
interest on the contract retention claims (parts I and II), this
award was proper because there is substantial evidence
Silbermann demanded to be paid the retentions when he finished
the work, prior to recording the mechanic’s lien, and the amount
of the retentions ($37,363) is easily ascertained and undisputed.
Accordingly, we affirm the trial court’s award of
prejudgment interest on parts I, II and V of the jury’s special
verdict, and we reverse the award of prejudgment interest on
parts III and IV.
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DISPOSITION
We reverse in part the award of prejudgment interest in
the judgment and remand to the trial court with instructions to
recalculate prejudgment interest consistent with this opinion. In
all other respects, we affirm the judgment. Silbermann is to
recover his costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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