Plyley v. Renovating Specialist, Inc. CA2/6

Filed 5/31/22 Plyley v. Renovating Specialist, Inc. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GEORGE M. PLYLEY, 2d Civil No. B309457
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00520231-CU-BC-VTA)
(Ventura County)
v.
RENOVATING SPECIALIST,
INC. et al.,
Defendants and
Respondents.
As the trial court noted, “[T]his action arises from a home
improvement contract of under $4,000.” The contract involved
the installation of two sliding glass doors at appellant George M.
Plyley’s residence. The installer was respondent Renovating
Specialist, Inc. (RSI). RSI’s salesperson was respondent Jay
Steven Nudelman. The new doors worked properly and passed
inspection, but appellant claimed they did not meet the contract’s
specifications and building code requirements. Making a
mountain out of a molehill, appellant filed a 42-page complaint
consisting of 10 causes of action.1
After a six-day court trial, judgment was entered in
respondents’ favor on all 10 causes of action. The judgment
awarded respondents their costs of $1,223 and awarded RSI its
reasonable attorney fees of $95,531.68.
Appellant appeals from the judgment. We affirm. We
remand the matter to the trial court with directions to award
respondents their costs on appeal and to award RSI its
reasonable attorney fees incurred in this appeal.2
Factual Background
In its statement of decision, the trial court found
respondent Nudelman’s testimony credible. It did not find
appellant’s testimony about the home improvement transaction
credible. The court stated: “[Appellant’s] testimony lacked
credibility and was vague about his interactions with RSI’s
salesperson, Nudelman. . . . Nudelman’s testimony was
1 The 10 causes of action are (1) breach of contract, (2)
specific performance, (3) rescission, (4) strict liability, (5) breach
of express warranty, (6) breach of implied warranty of
merchantability, (7) breach of implied warranty of fitness for a
particular purpose, (8) violation of Magnuson-Moss Warranty Act
(15 U.S.C. § 2301 et seq.), (9) violation of Consumer Legal
Remedies Act (Civ. Code, § 1750 et seq.), and (10) violation of
Business and Professions Code section 7160.
2 On October 25, 2021, appellant filed a request to take
judicial notice. On November 15, 2021, appellant filed a
corrected request to take judicial notice of various building code
regulations and a complaint for interpleader filed by Suretec
Indemnity Company, which had posted a surety bond on behalf of
RSI. The request is denied.
2
straightforward and credible about this home improvement
transaction.” The trial court’s “credibility call is binding on this
appeal.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416,
421; see also Estate of Joslyn (1995) 38 Cal.App.4th 1428, 1434,
overruled on another ground in Newman v. Wells Fargo Bank
(1996) 14 Cal.4th 126, 140 [“we are bound by the trial court’s
assessment of credibility”].) Accordingly, we rely on Nudelman’s
testimony as to the home improvement transaction.
Nudelman testified as follows: In July 2018 he met with
appellant at appellant’s residence. Appellant “wanted an
inexpensive way” to replace “old wood doors” with new sliding
glass doors. There were two ways of doing the replacement –
retrofit construction or new construction. Nudelman always
explained to clients the difference between the two types of
construction. He told them that with retrofit construction, the
“door will be slid into the existing opening without any other type
of construction. We just take out the doors . . . and then slide the
new unit in.” The existing door frame is not removed. New
construction, on the other hand, involves the removal and
replacement of the existing door frame. With new construction,
the stucco around the door must be removed. “And then it’s the
client’s responsibility . . . to hire a stucco repair company to come
out and then try and match up the [new] stucco to the existing.”
A city building inspector testified, “New construction, you have to
demo portions of the stucco around the existing frame and . . .
pull out the existing frame . . . . And then you have to redo the
waterproofing, plaster patch, or siding patch, et cetera.” In 97
percent of RSI’s installations of sliding glass doors, the existing
door frame is left in place.
3
Appellant knew the difference between retrofit and new
construction. Appellant said to Nudelman, “‘I just want retrofit.
I don’t want . . . that type of other construction, new
construction.’” “He did not want that, period. He was very
adamant.” “He insistently requested retrofit, and consistently
kept telling me, when I tried to explain both types of installation,
that he absolutely did not want anything but retrofit.” Appellant
wanted to avoid an installation that would “break the stucco”
around the door, causing “more expense.” His insistence on
retrofit construction “had something to do with his garden
window that he had installed when he re-did his kitchen . . . .
[T]hey busted out the stucco and . . . apparently he must have
been stuck with having to repair the stucco.”
The patio outside the doors was below the level of the floor
inside the residence. Nudelman pointed out to appellant that,
with retrofit construction, the drop-off from the door threshold to
the patio would be too long (approximately nine inches) “to pass
code” and would “not [be] safe.” Nudelman recommended that
appellant construct a platform outside the door “so he would be
able to [safely] get down [from inside the residence] to the main
ground area [of the patio]. That would give him a lot of safety
and no issues.” Nudelman also “talked to [appellant] about
putting a brick veneer on top of the existing [outside] step to
bring it up so he wouldn’t have such a long step down . . . .”
As to the height of the threshold above the floor inside the
residence, Nudelman testified: “I went like this and said, ‘It’s
going to be about this high.’” Appellant “didn’t seem to have an
objection to the elevation of that inch and a half or so, two inches
to go out” of the house.
4
Nudelman “told [appellant that] we always pull a permit on
these jobs.” Nudelman said that, because the outside patio “step
area [was] too low,” the door installation would not pass
inspection. Appellant responded that “[h]e did not want a permit
pulled.” “[H]e said it several times adamantly.” “He did not want
the City inspectors out there.” “So at that point, [Nudelman]
gave him the [building permit] opt-out form . . . .” Nudelman
“read [the form] to him and went over it with him.” Appellant
“read through it. He seemed to understand, and he signed it off.”
At appellant’s request, Nudelman reduced the price of the
installation from $4,469.32 to $3,885.
The contract shows Nudelman’s measurements for the
doors. Nudelman testified that they were “rough opening
measurements.” They were “not precise” and not “the final
measurement.” They were “for pricing.” RSI would later “send
out a foreman to . . . get the exact measurements.”
Appellant signed the contract. Thereafter, Nudelman had
no involvement in the home improvement project.
Immediately after the installation of the sliding glass
doors, appellant signed a “Job Completion Certificate.” He rated
his “overall satisfaction” with RSI as “Excellent.”
Appellant later complained that the installation of the
doors was “‘improper.’” RSI said it would send a city building
inspector to check out the doors and would pay to fix anything
that was improper. Appellant agreed to this arrangement. The
inspector approved the installation of the doors.
Appellant’s Complaint
The complaint alleged that RSI had agreed to perform new
construction, not retrofit construction, as to the installation of the
two sliding glass doors. Appellant “explained [to Nudelman] that
5
he sought to have [RSI] remove two exterior oak back doors at his
residence, including removal of all of their door frames, replacing
them with two sets of new sliding glass doors and frames
provided and installed by [RSI]. . . . [RSI], acting through
[Nudelman], offered to remove the existing doors and frames and
provide and install the new doors and frames, as a full frame
installation at the Residence for a total price of $3,885.00.” “At
no time did [appellant] ever request of [Nudelman] or [RSI] for
[RSI] to make an in-frame installation of the new doors at his
residence.” RSI “deviated from the terms of the contract and
installed . . . the new doors within the oak frames of the old doors
(in-frame installation) instead of taking out and replacing all the
old frames as required under the agreement . . . .”
The complaint continued: “[RSI] . . . added a sill or
threshold along the bottom of each of the doors rising 2” above
the finished floor of the residence, and 9” above the exterior
landing, which is a back yard patio. Before [RSI’s] work, the
preexisting doors that [RSI] replaced, had a threshold that was
no higher than 7¾” above the exterior landing (back yard patio),
and a threshold that was no higher than the finished floor of the
interior of the residence. Under Chapter 10 of the California
Building Code, Means of Egress, Thresholds §1010.1.7, (24 CCR,
Part 2, Vol 1), the maximum step down for someone exiting the
back doors should be 7¾” from the top of the sill/ threshold to the
exterior landing (back patio) as it was before [RSI] installed the
new doors. [RSI] has thereby created a tripping hazard for
[appellant] and [his] guests when they exit the newly installed
doors into the backyard of [his] residence. . . . Another tripping
hazard is the 2” of threshold above the finished floor . . . .”
(Italics omitted.) Appellant is 90 years old and has “a mobility
6
disability . . . making intolerably unsafe for him the tripping
hazard.” The trial court noted that appellant “has difficulty
walking without a cane or other assistance.”
No Violation of Parol Evidence Rule
Appellant maintains that the trial court violated the parol
evidence rule in admitting Nudelman’s testimony to vary the
terms of the written contract. The parol evidence rule “‘generally
prohibits the introduction of any extrinsic evidence, whether oral
or written, to vary, alter or add to the terms of an integrated
written instrument.’ [Citation.] The rule does not, however,
prohibit the introduction of extrinsic evidence ‘to explain the
meaning of a written contract . . . [if] the meaning urged is one to
which the written contract terms are reasonably susceptible.’”
(Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343.) We
independently review the trial court’s application of the parol
evidence rule. (Hayter Trucking, Inc. v. Shell Western E&P, Inc.
(1993) 18 Cal.App.4th 1, 14-15; EPA Real Estate Partnership v.
Kang (1992) 12 Cal.App.4th 171, 176.)
The admission of Nudelman’s testimony did not violate the
parol evidence rule. His testimony neither varied, altered,
contradicted, nor added to the terms of the written contract. The
contract did not specify whether RSI would perform retrofit or
new construction. It did not say “the door frames shall remain in
place” or “the door frames shall be removed and replaced.” This
created an ambiguity as to a crucial issue. Nudelman’s testimony
made clear that the parties had understood that RSI would
perform retrofit construction, i.e., the door frames would not be
removed. The written contract terms are “‘reasonably
susceptible’” to this interpretation. (Casa Herrera, Inc. v.
Beydoun, supra, 32 Cal.4th at p. 343.)
7
Appellant contends, “The integration clause in the contract
at issue here shows that this contract is of a higher order of
integration” so that “the parol evidence rule bars consideration of
. . . Nudelman’s testimony.” (Bold and capitalization omitted.)
The integration clause provides: “This Contract constitutes the
entire agreement of the parties, and no written or oral
communication between [RSI] and [appellant] before the time of
execution of this Contract shall be considered to enlarge, modify,
or explain the terms of the Contract.” (Italics added.)
This clause cannot be deemed to bar the admission of parol
evidence in all circumstances. “It is of course the law that a
written contract containing the entire agreement of the parties
supersedes all prior and contemporaneous negotiations.
[Citations.] But [the cited] cases, and many more that could be
cited, all recognize that if the contract is uncertain or ambiguous,
parol evidence is admissible to show what the parties meant by
the uncertain or ambiguous word or phrase used in the written
contract.” (Schmidt v. Macco Const. Co. (1953) 119 Cal.App.2d
717, 730.)
Moreover, despite the integration clause, the written
contract does not appear to be complete on its face because of the
“new construction/retrofit construction” ambiguity. “‘The crucial
issue in determining whether there has been an integration is
whether the parties intended their writing to serve as the
exclusive embodiment of their agreement.’ [Citation.] Under
California law, the presence of an integration clause in the
contract is not conclusive but is a factor which ‘may help resolve’
that issue. [Citation.] ‘In considering whether a writing is
integrated, the court must consider the writing itself, including
whether the written agreement appears to be complete on its face
8
. . . .’ [Citation.] [¶] . . . ‘“[T]he court must consider not only
whether the written instrument contains an integration clause,
but also examine the collateral agreement itself to determine
whether it was intended to be a part of the bargain. . . .”’” (Kanno
v. Marwit Capital Partners II, L.P. (2017) 18 Cal.App.5th 987,
1001, italics added.) Here, the performance of retrofit
construction instead of new construction, although not mentioned
in the written contract, was clearly intended to be a part of the
bargain.
Appellant Forfeited Argument
that Oral Agreement Was Illegal
Appellant argues that the oral agreement between him and
Nudelman to perform retrofit construction was illegal and
unenforceable because it violated Business and Professions Code
section 7159, subdivision (d) (section 7159(d)), which provides, “A
home improvement contract and any changes to the contract
shall be in writing and signed by the parties to the contract prior
to the commencement of work . . . .” The argument is forfeited
because appellant did not raise it in the trial court. (Regency
Midland Construction, Inc. v. Legendary Structures Inc. (2019) 41
Cal.App.5th 994, 999.)
The argument also lacks merit. Section 7159(d) does not
require that the written contract include all of the specifications
for the project. It provides that the contract shall include “[t]he
heading: ‘Description of the Project and Description of the
Significant Materials to be Used and Equipment to be Installed,’
followed by a description of the project and a description of the
significant materials to be used and equipment to be installed.”
(Id., subd. (d)(7).) The contract complied with this requirement.
9
Building Code Regulations Are Not Implied Terms
of the Contract and RSI Did Not Violate the Regulations
Appellant claims that building code regulations as to the
maximum height of the threshold “are implied terms of the home
improvement contract that cannot be varied” by the oral
agreement between him and Nudelman. (Bold and capitalization
omitted.) Thus, to comply with the maximum height regulation,
RSI was required to perform new construction and absorb the
extra cost even though appellant had insisted that it perform
retrofit construction.
We agree with the trial court’s analysis in its statement of
decision: “Nudelman advised [appellant] of the threshold height
issue. [Appellant] insisted on the project going forward.
[Appellant] now cannot compel RSI to do a more expensive
project than the one he insisted upon and to which he agreed in
writing.” Common sense and fair play dictate this result.
Appellant cites no authority to the effect that building codes are
implied terms of all home improvement contracts and that the
contractor must comply with them at his own expense despite the
homeowner’s insistence that he not comply.
In any event, the issue is moot because RSI did not violate
building code requirements. The city building inspector approved
the installation of the doors “[w]ith no corrections necessary.”
Nudelman explained to appellant that it was appellant’s, not
RSI’s, responsibility to reduce the threshold height to a safe level
after the doors had been installed. Nudelman described the
improvements that appellant would need to make to accomplish
this reduction. As the trial court noted, appellant “went forward
with the retrofit job after being so advised.”
10
The inspector testified that, if he had been aware that the
threshold was too high, he would have recommended that
appellant “install some type of riser or landing” on the patio
directly below the threshold. This is exactly what Nudelman
recommended. The inspector, who was a licensed general
contractor, estimated that it would cost $500 or $600 to make
both doors “height code compliant.” Instead of filing this costly
lawsuit and appeal, appellant should have had the good sense to
pay the $500 or $600.
After oral argument, we granted permission to appellant to
file a supplemental letter brief concerning the inspector’s
approval of the doors. Appellant cites this court’s opinion in El
Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154
Cal.App.4th 1337. Appellant quotes a passage from the opinion
(Id. at p. 1358) to show that “the fact that the local building
inspector approved the work of [RSI is not] dispositive for
purposes of this Appeal.” The inspector’s approval alone may not
necessarily be “dispositive” in some cases, but here his approval,
together with Nudelman’s testimony, shows that the work RSI
performed did not violate building codes.
The Contract Was Not Unconscionable
Appellant argues that the contract “is unconscionable as
. . . permitting RSI to install the unsafe doors in violation of the
pertinent Building, Residential, and Existing Building Code
provisions.” “A contract is unconscionable if one of the parties
lacked a meaningful choice in deciding whether to agree and the
contract contains terms that are unreasonably favorable to the
other party. [Citation.] Under this standard, the
unconscionability doctrine ‘“has both a procedural and a
substantive element.”’ [Citation.] ‘The procedural element
11
addresses the circumstances of contract negotiation and
formation, focusing on oppression or surprise due to unequal
bargaining power. [Citations.] Substantive unconscionability
pertains to the fairness of an agreement's actual terms and to
assessments of whether they are overly harsh or one-sided.’”
(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (OTO).)
“A procedural unconscionability analysis ‘begins with an
inquiry into whether the contract is one of adhesion.’ [Citation.]
An adhesive contract is standardized, generally on a preprinted
form, and offered by the party with superior bargaining power ‘on
a take-it-or-leave-it basis.’” (OTO, supra, 8 Cal.5th at p. 126.)
The contract here was not one of adhesion. Appellant had
considerable bargaining power and exercised that power.
“Substantive unconscionability examines the fairness of a
contract's terms. This analysis ‘ensures that contracts . . . do not
impose terms that have been variously described as “‘“overly
harsh”’” [citation], “‘unduly oppressive’” [citation], “‘so one-sided
as to “shock the conscience”’” [citation], or “unfairly one-sided”
[citation.]’” (OTO, supra, 8 Cal.5th at pp. 129-130.) The terms of
the contract were fair. They were mutually agreed upon by
appellant and Nudelman. Appellant knew what he wanted and
got what he wanted. Nudelman explained to appellant how he
could reduce the height of the threshold.
Strict Liability Cause of Action
Appellant contends that the trial court erroneously entered
judgment on the fourth cause of action for strict liability because
RSI had “intentionally violat[ed]” building code regulations. In
its statement of decision the trial court reasonably concluded that
appellant had “failed to meet his burden of proving any elements
of a strict liability claim” because “[t]here is no evidence
12
whatsoever that the doors installed by RSI were defectively
designed, manufactured or installed.”
Breach of Warranty Causes of Action
In his complaint, appellant alleged three causes of action
for breach of warranty: breach of an express warranty, breach of
an implied warranty of merchantability, and breach of an implied
warranty of fitness for a particular purpose. Appellant asserts
that the trial court erroneously entered judgment on these causes
of action. The trial court reasonably concluded that appellant
had “failed to meet his burden of proving any of the elements” of
these causes of action.
Cause of Action for Violation of
Consumer Legal Remedies Act
Appellant maintains that respondents violated the
Consumer Legal Remedies Act (Civ. Code, § 1750, et seq.)
because they “inserted an unconscionable provision in the
contract . . . to make the doors unsafe and non-code compliant.”
As explained above, the contract is not unconscionable.
Appellant claims that respondents’ request that he sign a
“‘Building Permit Opt Out’” form was an “unlawful business
practice” and “an attempt . . . to avoid their responsibilities to
their customers under the applicable building code regulations.”
But appellant insisted that a permit not be pulled. Furthermore,
appellant’s claim is moot because RSI did pull a permit and the
city inspector approved the project.
Cause of Action for Violation of Business
and Professions Code Section 7160
Appellant contends that “the contract constitutes a ‘false or
fraudulent representation or false statements knowingly made’
and Respondents are liable for this under Business and
13
Professions Code §7160.” The trial court reasonably concluded,
“There simply is no evidence of any false or misleading
statements, representations or conduct by RSI and/or Nudelman
in relation to this home improvement contract.”
Attorney Fees Awarded by Trial Court
The contract provides, “If the parties become involved in
legal action resulting from a dispute as to [RSI’s] . . . performance
of this contract, the court shall award reasonable costs and
expenses, including attorney’s fees, to the prevailing party.”
Appellant argues: “The attorney’s fees provision of the contract is
narrow, only applying to RSI and only to causes of action on the
contract, not to tort causes of action. . . . It was reversible error
for the Court to award RSI attorney[’]s fees for the defense of the
tort causes of action . . . [and] for the defense of Nudelman, who is
not a party to the contract.”
“Once a trial court determines entitlement to an award of
attorney fees, apportionment of that award rests within the
court's sound discretion. [Citations.] We review the court's
decisions for abuse of discretion. [Citation.] The court abuses its
discretion whenever it exceeds the bounds of reason, all of the
circumstances before it being considered. The burden is on the
party complaining to establish that discretion was clearly abused
and a miscarriage of justice resulted.” (Carver v. Chevron U.S.A.,
Inc. (2004) 119 Cal.App.4th 498, 505.)
“Where a cause of action based on the contract providing
for attorney's fees is joined with other causes of action beyond the
contract, the prevailing party may recover attorney's fees under
[Civil Code] section 1717 only as they relate to the contract
action.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124,
129.) But “[a]ttorneys fees need not be apportioned between
14
distinct causes of action where plaintiff's various claims involve a
common core of facts or are based on related legal theories.”
(Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 493.)
Here, all of appellant’s causes of action involved a common core of
facts relating to the home improvement contract between RSI
and appellant. They were based on RSI’s alleged failure to
comply with building code regulations and to install the doors
pursuant to the agreed upon specifications.
“‘Further, “[a]pportionment is not required when the claims
for relief are so intertwined that it would be impracticable, if not
impossible, to separate the attorney's time into compensable and
noncompensable units.” . . .’” (Calvo Fisher & Jacob LLP v.
Lujan (2015) 234 Cal.App.4th 608, 625-626.) In its statement of
decision, the trial court ruled: “The Court finds that no
apportionment between cause[s] of action[] or defendants is
possible or feasible. The home improvement contract is
inextricably intertwined with all 10 causes of action. As between
defendants, no apportionment is possible or feasible. Defendant
Nudelman was an employee of defendant RSI. He was the agent
who entered into the contract on RSI’s behalf. The attorney’s fees
incurred by RSI were necessarily incurred in Nudelman’s defense
as well, thus making apportionment impossible.” Appellant has
failed to carry his burden of showing that the trial court’s ruling
on attorney fees exceeded the bounds of reason. We have
reviewed appellant’s other contentions. They are without merit.
RSI Is Entitled to Appellate Attorney Fees
Respondents have requested that RSI be awarded its
reasonable attorney fees incurred in connection with this appeal.
“When a contract or a statute authorizes the prevailing party to
recover attorney fees, that party is entitled to attorney fees
15
incurred at trial and on appeal. [Citations.] On remand,
therefore, the trial court shall determine the amount of attorney
fees reasonably incurred” by RSI in connection with this appeal.
(Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211
Cal.App.4th 230, 250.)
Disposition
The judgment is affirmed. Respondents are awarded their
costs on appeal. In addition, RSI is awarded its reasonable
attorney fees incurred in connection with this appeal. The
matter is remanded to the trial court with directions to
determine, upon motion, the appropriate amount of costs and
attorney fees.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
16
Matthew Guasco, Judge
Superior Court County of Ventura
______________________________
William A. Salzwedel for Plaintiff and Appellant.
The Mouzis Law Firm, Gerald W. Mouzis and Leah K.
McKechnie for Defendants and Respondents.