LNSU 1, LLC v. Aven CA4/1

Filed 8/21/20 LNSU #1, LLC v. Aven CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LNSU #1, LLC, D075329
Plaintiff and Appellant,
v. (Super. Ct. No.
MARCUS AVEN et al., 37-2017-00004042-CU-BC-CTL)
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.
Knottnerus & Associates and Wilford Knottnerus, Mark Beal Simpkins;
Friedhofer and James Friedhofer for Plaintiff and Appellant.
Sepahi Law Group and Sage S. Sepahi for Defendants and
Respondents.
Plaintiff and appellant LNSU #1, LLC (LNSU) appeals from a
judgment in favor of defendants and respondents Marcus Aven, Green Life
Construction, Inc. (Green Life) and American Safety Casualty Insurance
Company following a bench trial on LNSU’s operative complaint for breach of
contract, negligence and recovery on a contractor’s bond. The lawsuit
stemmed from Aven and Green Life’s work for LNSU in refinishing hardwood
flooring. After LNSU served its expert witness designation on Aven and
Green Life, but not the attorney who had been specially appearing for them,
the trial court excluded from trial LNSU’s expert witness on the industry
standard of care for flooring installation and finishing. The court thereafter
found LNSU failed to meet its burden of proof on all of its causes of action; as
to negligence specifically because it had not presented evidence from an
expert that defendants fell below the standard of care in their work. LNSU
contends the court erred as a matter of law by excluding its expert,
warranting the judgment’s reversal and remand for new trial on all causes of
action. LNSU further contends that the court prejudicially erred by failing to
address its pleaded theory that defendants breached an implied covenant to
perform their work in compliance with the manufacturer’s specifications, and
find in LNSU’s favor on that theory.
We need not decide whether LNSU’s counsel timely served its expert
designation on Aven and Green Life, or whether the court erred by excluding
LNSU’s standard of care expert witness. Assuming error, we hold it would be
harmless in light of the fact LNSU’s expert was not designated to testify on
causation and damages, and the record is otherwise absent competent,
nonspeculative evidence establishing defendants’ conduct forced LNSU to
hire another contractor to refinish the flooring, that the refinishing was
necessitated by defendants’ substandard work, or that LNSU suffered
damages, including in diminution in the floor’s value or loss of its warranty.
We reject LNSU’s claim that the trial court prejudicially erred by failing to
rule on an implied contract breach theory related to the floor’s warranty. We
therefore affirm the judgment in defendants’ favor.
FACTUAL AND PROCEDURAL BACKGROUND
2
Many of the basic facts concerning the parties’ underlying dispute are
uncontested, so we take those from the trial court’s statement of decision.1
At LNSU’s request, Aven installed Junckers-brand merbau hardwood
flooring at LNSU’s property. Some of the wood was repurposed from LNSU’s
other properties and the rest was purchased new. LNSU, which had used
Aven for other floor installations, was pleased with his work on the property.
A third party later damaged the upstairs floor’s finish. LNSU asked Aven to
repair the third party’s damage, so he provided an estimate to which LNSU
agreed, and Aven issued an invoice. Aven’s finish failed. After attempts to
test with other products, Aven agreed to repair the finish at no additional
1 When reviewing a judgment following a bench trial, we typically infer
that the court impliedly made every factual finding necessary to support its
decision. (McPherson v. EF Intercultural Foundation, Inc. (2020) 47
Cal. App. 5th 243, 257; Thompson v. Asimos (2016) 6 Cal. App. 5th 970, 981.) A
proper request for a statement of decision, however, may change that
standard. (Thompson, at p. 981.) Under Code of Civil Procedure sections 632
and 634, the court on a party’s proper request must issue a statement of
decision “ ‘explaining the factual and legal basis for its decision as to each of
the principal controverted issues at trial.’ ” (Thompson, at p. 981.) “[I]f the
statement of decision does not resolve a controverted issue or is ambiguous,
and the omission or ambiguity was brought to the attention of the trial court,
‘it shall not be inferred on appeal . . . that the trial court decided in favor of
the prevailing party as to those facts or on that issue.’ ” (Ibid.) As we
summarize below, LNSU requested a statement of decision from the trial
court and prepared a proposed statement of decision that did not comport
with the court’s rulings, but it did not object to the court’s own statement of
decision. LNSU’s sole challenge on appeal relating to the court’s statement of
decision is only to the court’s asserted failure to address a theory that
defendants breached an implied covenant not to void the floor manufacturer’s
warranty. It does not challenge the court’s findings on the basic facts of the
parties’ dispute or any other fact at issue. LNSU does not challenge the
court’s ruling sustaining defendants’ objections to its own proposed statement
of decision. In short, we are not prevented from inferring in favor of the
judgment that the court impliedly made every factual finding necessary to
support its decision. (McPherson, at pp. 257-258.)
3
cost to LNSU. LNSU, however, terminated Aven and hired another
contractor, Hugh Staley, who sanded the floor to bare wood and refinished it.
LNSU sued Aven and his company for breach of contract and
negligence. After LNSU filed a first amended complaint, Aven, representing
himself, filed a general denial with affirmative defenses. In August 2017, the
parties appeared for a case management conference at which the trial court
advised Aven that Green Life had to be represented by counsel. By
stipulation and leave of court, LNSU filed its second amended complaint,
adding Aven and Green Life’s contractor’s bonding company as a party as
well as a claim for recovery on a contractor’s bond.
Representing himself and Green Life, Aven answered LNSU’s second
amended complaint. In early December 2017, at the continued case
management conference, attorney Sage Sepahi specially appeared for Aven.
In its minute order, the court again noted that Aven had answered the
operative complaint on behalf of himself and Green Life, and that Green Life
must be represented by counsel. It set an order to show cause as to why
Green Life’s answer should not be stricken for the absence of legal
representation, and again continued the case management conference to
December 8, 2017. Days later, attorney Sepahi filed a case management
conference statement on Aven and Green Life’s behalf.2 On December 8,
2017, Sepahi advised the court he would be representing Aven and Green
2 The caption lists only Green Life as the client, but the statement states
elsewhere it was submitted jointly by both Green Life and Aven.
4
Life.3 The court ordered the first expert exchange to occur on April 20, 2018,
and set the matter for trial in July 2018. On December 29, 2017, Sepahi filed
an amended answer to the second amended complaint on Aven and Green
Life’s behalf.
On April 12, 2018, LNSU’s counsel Mark Simpkins served LNSU’s first
expert witness declaration and designation on Aven and Green Life but not
Sepahi. The document identified David Newman as LNSU’s expert witness
on, among other things, the industry standard of care for installing and
finishing merbau flooring.
On July 6, 2018, the parties filed a verified joint trial readiness
conference report with attached exhibit and witness lists. The witness list
included Newman as LNSU’s expert. In part, the parties reported that
Sepahi was Aven and Green Life’s trial counsel. They reported that they had
not conducted discovery or exchanged experts pursuant to the court’s
deadlines. In mid-July 2018, American Safety Casualty Insurance Company
filed a substitution of attorney form substituting attorney Sepahi in as its
counsel.
At some point, the trial date was continued to September 4, 2018. At
the trial call in late August, Sepahi raised an issue concerning LNSU’s expert
witness designation. LNSU’s counsel conceded he had not served it on
Sepahi.
On August 28, 2018, attorney Simpkins applied ex parte for an order to
permit Newman to testify at trial on LNSU’s behalf, on grounds he timely
3 The minute order for that hearing identifies Sepahi as counsel present
for defendants and provides: “Upon the Court’s inquiry, Attorney Sepahi
informs the Court he will be representing Aven . . . and the business entity
Green Life Construction Inc.” The minute order is unsigned and concludes:
“Parties waive notice.”
5
served the expert designation on Aven and Green Life, his failure to serve
Sepahi was excusable warranting relief under Code of Civil Procedure4
section 473, and defendants had no standing to object as they had failed to
comply with expert exchange requirements. Simpkins submitted a
declaration averring that on April 12, 2018, he had timely served Aven and
Green Life with the expert designation, but not attorney Sepahi, because
Aven had been representing himself and Green Life and thus Simpkins did
not believe Sepahi was counsel of record because Aven and Green Life had
not served a substitution of attorney indicating Sepahi was an attorney of
record.
In opposition, defendants argued the court could not grant LNSU’s
requested relief under section 473, subdivision (b), and the application failed
to establish good cause because LNSU’s failure to serve an expert designation
was unreasonable. Attorney Sepahi stated his clients would be prejudiced in
the event the court permitted expert testimony when trial was to commence
in less than a week. Aven submitted a declaration stating he had not
received LNSU’s expert designation and did not recall ever seeing it.
The trial court denied LNSU’s application. The matter proceeded to
trial, after which the trial court ruled LNSU failed to meet its burden of proof
on its causes of action. It found Aven to be the more credible witness. It
accepted Aven’s testimony that he agreed to remedy the problems with the
flooring at no additional cost to LNSU and was in the process of doing so
when LNSU terminated him.
LNSU asked for a statement of decision addressing 29 “controverted
issues,” including procedural and legal questions pertaining to attorney
4 Undesignated statutory references are to the Code of Civil Procedure.
6
Sepahi’s appearance as counsel of record in the case, the court’s order
excluding LNSU’s expert evidence, and LNSU’s expert disclosure. LNSU also
asked the court to address whether defendants breached the contract,
whether any breach was excused, whether LNSU performed its contractual
obligations, if a breach occurred whether it caused LNSU damages, the
amount of LNSU’s contract damages and whether the court precluded LNSU
from offering expert opinion or evidence that defendants breached the
standard of care. LNSU asked the court to address similar questions as to
defendants’ negligence: whether defendants were negligent, if their
negligence caused LNSU damages, and the amount of LNSU’s damages.
LNSU thereafter filed a lengthy proposed statement of decision addressing
“findings of fact common to all dispositive procedural issues,” as well as
conclusions of law regarding LNSU’s expert witness designation and
defendants’ representation by attorney Sepahi. The proposed statement of
decision included findings and rulings of fact and law on the substantive trial
issues but in LNSU’s favor, contrary to the court’s ruling after trial.
Defendants objected to the proposed statement of decision in part on grounds
it sought to circumvent the court’s findings and rulings.
Sustaining defendants’ objections, the court issued its own statement of
decision. In part, it found LNSU failed to prove the elements of breach of
contract, particularly the element of breach: “To the contrary, the evidence
presented showed that defendant [Aven] was ready, willing and able to
perform but was prevented from doing so because of plaintiff’s unwarranted
termination of defendant’s services.” As to negligence, the court found
“[t]here was no evidence presented that defendant [Aven] fell below the
standard of care in his efforts to correct the defect in the upstairs finish that
was damaged by an unrelated third party. Neither party provided expert
7
testimony to establish the standard of care let alone that defendant fell below
the standard of care. Thus, the court was left with the testimony of the . . .
parties and lay witnesses—none of whom could testify to the standard of
care.” The court further ruled that because LNSU’s breach of contract and
negligence claims failed, so did the surety cause of action against American
Safety Casualty Insurance Company.
LNSU filed this appeal from the ensuing judgment.
DISCUSSION
I. Exclusion of Expert Witness
LNSU contends the trial court erred by excluding its expert flooring
standard-of-care witness Newman from testifying at trial. It rests its claim
on two grounds: First, LNSU argues it validly served its first expert witness
designation on Aven and Green Life because they had not yet taken steps to
substitute attorney Sepahi as their counsel. Second, LNSU argues
defendants could not object to Newman’s trial testimony because they did not
make a complete and timely section 2034.260 designation, and the trial court
did not have the ability to exclude Newman sua sponte.
We need not reach these arguments. Even if we were to conclude the
trial court abused its discretion in excluding Newman as an expert, that
would not by itself be sufficient to reverse the judgment. (ABM Industries
Overtime Cases, supra, 19 Cal.App.5th at p. 293; Grail Semiconductor, Inc. v.
Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal. App. 4th 786, 799.)
“Rather, the ‘judgment of the trial court may not be reversed on the basis of
the erroneous [exclusion] of evidence, unless that error was prejudicial.’
[Citations.] Article VI, section 13, of the California Constitution further
provides that ‘a judgment may not be set aside based on the erroneous
[exclusion] of evidence “unless, after an examination of the entire cause,
8
including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.” ’ [Citations.] ‘In civil
cases, a miscarriage of justice should be declared only when the reviewing
court, after an examination of the entire cause, including the evidence, is of
the opinion that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.’
[Citation.] Thus, our task on appeal is to determine whether an abuse of
discretion has occurred and, if so, whether it is reasonably probable that a
result more favorable to [LNSU] would have been obtained absent the error.”
(ABM Industries, at p. 293; see Evid. Code, §§ 353, 354; Ajaxo, Inc. v.
E*Trade Financial Corporation (2020) 48 Cal. App. 5th 129, 185.) “In making
this assessment ‘we are not to look to the particular ruling complained of in
isolation, but rather must consider the full record in deciding whether a
judgment should be set aside.’ [Citation.] The appellant bears the burden of
establishing that the error was prejudicial.” (Grail Semiconductor, at p. 799.)
Presuming error, we conclude LNSU cannot meet its burden to show
prejudice. LNSU’s operative complaint alleged that defendants breached
their duty to plaintiff by failing to do the project work “in a good and
workman-like manner, in compliance with governing building codes and
regulations, the manufacturer’s specifications and recommendations, and in
compliance with industry customs, practices, and standards . . . .” It alleged
more specifically that defendants installed the flooring crooked in at least one
room, used an improper finish not manufacturer-approved or recommended,
improperly applied the finish leaving fibers, bubbles and other imperfections,
then damaged the factory finish of the wood by attempting to sand off the
improper finish.
9
LNSU’s proffered expert declaration stated that Newman had been
installing and refinishing wood floors for over 20 years and was very familiar
with the type of merbau flooring installed in the home as well as the industry
standard of care for installing and finishing the wood. It provided that
Newman would testify that defendants’ refinishing work was below the
standard of care in both the selection and application of finishing material
and the manner in which the work was performed. Newman’s inspection
report detailed the problems with photographs.
Concededly, defendants did not object to Newman’s qualifications to
testify on the standard of care in response to LNSU’s request for leave to
present him and Newman disclosed sufficient knowledge of the subject to
entitle his opinion to go to the trier of fact. (See Chadock v. Cohn (1979) 96
Cal. App. 3d 205, 209 [where expert has sufficient knowledge of a subject, the
degree of his knowledge goes more to the weight of the evidence than its
admissibility].) His testimony was required on the industry standard of care
and its breach—factual questions for LNSU to prove negligence. (Unigard
Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal. App. 4th 1229, 1239
[whether party failed to conform to standard of care is a question of fact if
reasonable minds can differ]; Frantz v. San Luis Medical Clinic (1978) 81
Cal. App. 3d 34, 39.) “In negligence cases arising from the rendering of
professional services, as a general rule the standard of care against which the
professional’s acts are measured remains a matter peculiarly within the
knowledge of experts. Only their testimony can prove it, unless the
layperson’s common knowledge includes the conduct required by the
particular circumstances.” (Unigard Ins. Group, at p. 1239.)
However, LNSU was not merely required to show breach, but also that
defendants’ negligent acts or omissions proximately caused damage. (See
10
Stephen v. Ford Motor Co. (2005) 134 Cal. App. 4th 1363, 1370.) To establish
legal causation, a plaintiff must show that a defendant’s act or omission “was
a ‘substantial factor’ in bringing about the injury”; requiring evidence of
“some substantial link or nexus between omission and injury.” (Saelzler v.
Advanced Group 400 (2001) 25 Cal. 4th 763, 778; Sanchez v. Kern Emergency
Medical Transportation Corp. (2017) 8 Cal. App. 5th 146, 155 [“Regarding
causation, ‘the plaintiff must offer an expert opinion that contains a reasoned
explanation illuminating why the facts have convinced the expert, and
therefore should convince the jury, that it is more probable than not the
negligent act was a cause-in-fact of the plaintiff’s injury’ ”].) Expert
testimony is required to establish causation where the complexity of that
issue is beyond common experience. (Garbell v. Conejo Hardwoods, Inc.
(2011) 193 Cal. App. 4th 1563, 1569; see Inouye v. Black (1965) 238 Cal. App. 2d
31, 34 [esoteric negligence causation demands expert testimony].) “A plaintiff
cannot recover damages based upon speculation or even a mere possibility
that the wrongful conduct of the defendant caused the harm. [Citations.]
Evidence of causation must rise to the level of a reasonable probability based
upon competent testimony. [Citations.] ‘A possible cause only becomes
“probable” when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.’ ”
(Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 133.) It was LNSU’s burden
to establish causation by competent evidence. (Thompson v. Sacramento City
Unified School Dist. (2003) 107 Cal. App. 4th 1352, 1371.)
Here, Newman’s expert declaration did not state he would testify how
Aven’s deficient work (versus some defective product) caused LNSU’s
damages, or even about LNSU’s damages in general. The declaration does
not state that Newman would render opinions on depreciation in the
11
flooring’s value, or that he was familiar with the Junckers warranty and the
impact of the work on any flooring warranty. Nor does Newman’s report
address any such issues or opinions.5 LNSU’s expert witness declaration
was required to provide, among other things, “[a] brief narrative statement of
the general substance of the testimony the expert is expected to give.”
(§ 2034.260, subd. (c)(2); see Bonds v. Roy (1999) 20 Cal. 4th 140, 148.) If
LNSU wished to expand the scope of its expert’s testimony beyond the
standard of care issue identified in the declaration, it was required to move
for leave to amend its expert witness declaration. (§ 2034.610, subd. (a)(2);
see Bonds, at p. 145.) Otherwise, an opinion offered by any party who has
“unreasonably failed” to comply with these requirements “shall be excluded.”
(§ 2034.300; see Bonds, at pp. 146-147; see DePalma v. Rodriguez (2007) 151
Cal. App. 4th 159, 164 [“It is well[-]settled that an expert may be precluded
5 Newman’s report documented his inspection of the flooring in May
2017. LNSU manager Doug Grimes was present. Newman’s report relates
that Grimes was “concerned with a white or hazy appearance to the finish
flooring surface.” According to Newman, Grimes also told him that for
unknown reasons, the contractor refinished the floor with a high gloss finish
rather than the matte finish applied by the manufacturer. Newman
reported: “Upon completion of the refinish process bumps, bubbles, hairs,
and streaks were visible in the finish surface. The contractor came out to
refinish the floor a 2nd time via the screen and recoat process. [Grimes]
halted this process after hairs bubbles and streaks were visible in rooms that
had been completed during the 2nd refinish.” Newman concluded that the
hairs, bumps and bubbles were “a refinishing technician concern” that
“should be correctable via a screen and recoat refinishing process.” He stated
the affected planks were due to a “substance or contaminant preventing the
applied finish from curing properly,” another refinishing technician concern,
and that planks “may need to be replaced rather than refinished.” Newman’s
report stated that “the screening portion of the refinishing process needed to
be completed, the floor cleaned, and new finish applied to correct the
appearance to these affected areas. This too is a refinishing technician
concern as the refinishing process has not been completed.”
12
from testifying at trial on a subject that was not described in his expert
witness declaration”].) An expert declaration that omits or inaccurately
describes the substance of an expert’s expected testimony is akin to a failure
to disclose the expert at all. (Bonds, at pp. 146-147.)
Further, the trial court acts as a gatekeeper to exclude expert
testimony based on reasons unsupported by the material on which the expert
relies, or that is speculative. (Sargon, supra, 55 Cal.4th at pp. 771-772; Apple
Inc. v. Superior Court (2018) 19 Cal. App. 5th 1101, 1118.) Given the limited
scope of Newman’s opinion and the materials relied upon by him—his
personal inspection, photographs and the minimal observations of LNSU
manager and witness Doug Grimes—any opinions from Newman on
causation and damages—particularly warranty damages—would have been
speculative and lacking factual foundation.
Apart from the absence of expert testimony, the record contains no
competent, nonspeculative evidence from LNSU’s nonexpert witnesses on
causation and damages. Though the evidence need only be such as to afford a
reasonable basis to conclude it is more likely than not Aven’s conduct was the
cause in fact of LNSU’s damage (see Viner v. Sweet (2003) 30 Cal. 4th 1232,
1243; City of Modesto v. Dow Chemical Co. (2018) 19 Cal. App. 5th 130, 154),
the evidence at trial here permitted a trier of fact to conclude the
unsatisfactory result stemmed from a defective finish or other environmental
conditions. Aven testified that the finish LNSU demanded he use did not
perform as well as the finish he had used originally to successfully install the
flooring or other commercial grade finishes. He also testified that the
environmental conditions were unsuitable for the finish application. Aven
testified that he believed the Junckers finish was the problem and told
LNSU’s manager, who insisted that he continue to use it. LNSU’s witnesses
13
testified about their dissatisfaction with the result but did not negate the
possibility of defective materials or environmental conditions as a factor.
Indeed LNSU’s witness Grimes testified that upon seeing the result, “I didn’t
know what the error was caused by, whether it was the wrong material or a
bad batch or whatever, but, obviously—I mean, everyone who went up there
would say, ‘What’s wrong with this floor?’ ” (Italics added.) On this record,
LNSU did not establish it was more likely than not Aven was the cause in
fact of the poor result.
We reach the same conclusion on damages. LNSU’s damages claims at
trial differed significantly from its pleadings. Its operative complaint alleged
it had incurred damages, including damage to the merbau flooring, estimated
to exceed $200,000. In opening statements, LNSU’s counsel admitted LNSU
had not suffered actual damages from any warranty issues.6 Following trial,
however, counsel asked the court to award LNSU $19,2717 in damages.
Counsel argued LNSU’s damages were caused not by any defective product,
but by Aven’s incompetence as evidenced by his violation of laws governing
home improvement contracts, and the fact Aven did nothing to advise LNSU
that his actions “could have negative impacts on the warranty.” LNSU
6 Counsel argued: “[I]t’s hard to quantify, but another important
element of damages was because of the finishing—the refinishing that Mr.
Aven did, he voided the warranty—the manufacturer’s warranty on the
product. That is something hard to quantify, because we don’t have any
actual damages. We haven’t had to go back for warranty repairs yet, if at all.
[¶] But because of what he did and because he didn’t check with the
manufacturer and because he didn’t get the manufacturer’s approval to use
different products in the finish, he actually voided the warranty.” (Italics
added.)
7 Counsel’s calculation of LNSU’s damages was off by one dollar.
14
sought $5,596 for its cost of repair ($8,325 invoiced by Staley, minus $2,728 it
would have paid Aven for a “screen and recoat”); $10,035 in diminution of the
flooring’s value, calculated by discounting the cost of the wood 50 percent for
the loss of its factory finish and part of the wood; and $3,640 for lost warranty
value.
This record does not contain evidence proving these elements of
damage to a reasonable certainty. “ ‘Whatever its measure in a given case, it
is fundamental that “damages which are speculative, remote, imaginary,
contingent, or merely possible cannot serve as a legal basis for recovery.
[Citations.]” [Citations.] However, recovery is allowed if claimed benefits are
reasonably certain to have been realized but for the wrongful act of the
opposing party.’ ” (Moore v. Teed (2020) 48 Cal. App. 5th 280, 292, quoting
Piscitelli v. Friedenberg (2001) 87 Cal. App. 4th 953, 989.) At trial, LNSU’s
manager Ponani Sukumar testified that after Aven unsuccessfully attempted
to repair the upper floor and performed three different tests in further efforts
to correct the repair, Sukumar told Aven he was going to hire someone else to
correct the work. Grimes testified that Aven had “no hesitation” that it was
his responsibility to fix the floor at Aven’s own expense. Aven confirmed he
never refinished the floor; he had micro-abraded it, prepared it for recoat and
was in “mid system” when Grimes dismissed him from the project. The trial
court, which credited Aven’s testimony over that of LNSU’s witnesses, found
that defendants were prevented from performing repairs because LNSU
terminated them and hired someone else. The evidence shows LNSU took it
upon itself to hire and pay its new contractor, Staley.
Nor is there evidence about the value of the Junckers warranty or the
terms of the warranty itself. Staley did not address warranty issues. Aven
testified that while he was in process of attempting to test products at
15
Grime’s request, he contacted Junckers, who informed him that as long as
the factory finish was on the floor, it would not void the flooring warranty.
Though LNSU’s counsel questioned Aven about the warranty and purported
to read portions of it, counsel’s questions are not evidence (Cuenca v. Safeway
San Francisco Employees Fed. Credit Union (1986) 180 Cal. App. 3d 985, 998),
and Aven did not admit that his work voided any warranty. Nor is there
testimony from any party as to the value of such a warranty.
Finally, there is no competent evidence as to the diminution in value of
that portion of the upper flooring refinished by Staley. Admittedly,
California law requires only that a party present some reasonable basis for
computing damages, and damages may be approximated. (SCI California
Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal. App. 4th 549,
570; Sargon, supra, 55 Cal.4th at p. 775.) But the record still must contain
evidence of the existence and fact of damage by which to make such an
approximation. (See Sargon, supra, 55 Cal.4th at p. 774 [fact of damage
must be certain]; Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 921
[once cause and existence of damages has been so established, recovery will
not be denied because damages are difficult of ascertainment]; Acree v.
General Motors Acceptance Corp. (2001) 92 Cal. App. 4th 385, 389.) Here,
LNSU did not present evidence from which a trier of fact could conclude
LNSU’s flooring diminished in value, much less reasonably calculate the
amount of such diminution.
II. LNSU’s Implied Contract Claim
Apart from the court’s exclusion of its expert witness, LNSU contends
the trial court separately prejudicially erred by failing to rule on its contract
breach theory that Aven and Green Life’s flooring work voided LNSU’s 25-
year warranty from Junckers. LNSU argues the court was bound to rule on
16
the question after LNSU requested a statement of decision having such a
finding under section 632. It maintains the evidence is undisputed on the
point, compelling a verdict in its favor.
We are unpersuaded. First, the trial court sustained in full defendants’
objections to LNSU’s proposed statement of decision, which improperly made
findings in its favor contrary to the court’s oral ruling after trial. The court’s
ruling effectively struck LNSU’s proposed statement of decision, and LNSU
presents no argument as to why that ruling was incorrect. Second, LNSU did
not object to the court’s final statement of decision or point out any asserted
omissions, and it cannot be heard to complain about the court’s final
statement of decision for the first time on appeal. (In re Marriage of Arceneax
(1990) 51 Cal. 3d 1130, 1134, 1138 [when court issues a statement of decision,
a party claiming deficiencies therein must bring such defects to the trial
court’s attention; it is “unproductive to deprive a trial court of the opportunity
to correct such a purported defect by allowing a litigant to raise the claimed
error for the first time on appeal”]; see Damiani v. Albert (1957) 48 Cal. 2d 15,
18 [“points not urged in the trial court may not be urged for the first time on
appeal”].) Third, we disagree with LNSU that Aven’s testimony—in which he
stated he was not a nationally-approved Junckers contractor and did not tell
LNSU that fact—established that the Junckers warranty had been voided by
his work. In sum, LNSU has not demonstrated error in connection with any
implied contract claim based on a voided warranty.
17
DISPOSITION
The judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
18