RSF Associates, LLC v. Nieto CA4/1

Filed 2/18/21 RSF Associates, LLC v. Nieto 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
RSF ASSOCIATES, LLC, D076227
Plaintiff, Cross-defendant, and
Respondent,
(Super. Ct. No. 37-2018-
v. 00001161-CU-BC-NC)
NATHANIEL NIETO,
Defendant, Cross-complainant,
and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert P. Dahlquist, Judge. Affirmed.
Nathaniel Joseph Nieto, in pro. per., for Defendant, Cross-complainant
and Appellant.
Law Offices of Darren J. Quinn and Darren J. Quinn, for Plaintiff,
Cross-defendant and Respondent.
In this contract action, the court issued a detailed ruling after a bench
trial, finding in favor of plaintiff and cross-defendant RSF Associates, LLC
(RSF) on the complaint and on the cross-complaint. Defendant and cross-
complainant Nathaniel Nieto, doing business as Dave Heyden Landscaping
(Heyden Landscaping), challenges the court’s ruling. We affirm.
BACKGROUND
Facts
RSF is a general contractor that built two new buildings on land it
owned in the City of San Marcos (City). RSF and Heyden Landscaping
entered into a written contract for Heyden Landscaping to provide all
landscaping for the property, including underground irrigation, for a fixed
cost of $52,500. This dispute arises out of the landscaping to be installed on a
strip of land between the sidewalk and the developed property, known as the
Community Facility District (CFD). In its contract with Heyden
Landscaping, RSF required that the landscaping on the CFD had to be
approved by the City, using plans and materials approved by the City in
advance, and with inspection and approval by the City of the installation and
materials in the trenches for underground irrigation before the trenches were
closed. Nieto and his crew started work on the project in April 2017.
On September 18, 2017, RSF’s superintendent had an argument with
Nieto at the site. The superintendent told Nieto that the work was
progressing too slowly. RSF wanted to open the site by October 10, 2017.
Nieto knew of this deadline. The landscaping work at that point “was not
close to being completed.” Nieto left the site with his crew after the
argument and never returned to complete the work.
2
The work that Heyden Landscaping had completed up until September
18 was not approved by the City. A city inspector subsequently inspected the
irrigation pipes that Heyden Landscaping had laid, and told RSF that the
materials and the entire plan for irrigation layout had not been approved,
and it would not be approved due to conflicts with trees, depth, and possible
hydraulics issues.
An employee of RSF talked with Nieto about returning and completing
the job. Nieto would not agree to return unless certain conditions were met.
He also said he did not have a sufficient work crew to return to the job until
October.
RSF hired another landscaper. After conferring with the City
inspector, the second landscaper concluded that most of Heyden
Landscaping’s work on the CFD was “useless.” It had to be torn out and
redone. The new landscaper finished the work by early December.
Procedure
RSF filed a complaint against Nieto, doing business as Heyden
Landscaping, for breach of contract. Nieto cross-complained for breach of
contract, goods and services rendered, and foreclosure of two mechanic’s liens
he had filed.
The court heard evidence over four days. At the conclusion, the court
found that “Nieto failed to perform as required by the contract. The work
performed by Nieto did not satisfy the City’s standards, as required by the
contract. Nieto did not supply sufficient resources to complete the contract in
a timely manner.” The court found that Nieto left the job without valid
justification, causing RSF to hire another landscaping company to complete
the contract work.
3
The court entered judgment on June 28, 2019, awarding RSF a net
amount of $37,222.61. The court ruled against Nieto on his cross-complaint.
Nieto appealed. RSF later obtained an award of costs and of attorney fees of
more than $125,000.00. The court issued an amended judgment in the total
amount of $171,322.51 on September 18, 2019. Nieto did not appeal from the
amended judgment.
DISCUSSION
Nieto challenges the judgment of the trial court on three grounds: (1)
RSF breached the contract by failing to pay Nieto pursuant to the terms of
the contract; (2) RSF breached the contract by requiring Nieto to hire
unlicensed day laborers; and (3) the court erred in awarding attorney fees to
RSF.
I. Standard of Review
The three fundamental principles of appellate review are: “(1) a
judgment is presumed correct; (2) all intendments and presumptions are
indulged in favor of correctness; and (3) the appellant bears the burden of
providing an adequate record affirmatively proving error. [Citations.]”
(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58–62
(Fladeboe).) In determining whether substantial evidence supports the
court's judgment, we view the evidence in the light most favorable to the
judgment. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849–850.) We do
not reweigh the evidence or second-guess the credibility of a witness. (In re
Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 (Balcof).)
II. Contract Issues
A. Failure to Pay
Nieto claims that RSF breached the contract first by failing to pay
Heyden Landscaping after July 2017.
4
1. Applicable Law
Nieto was entitled to be paid for substantial performance, but RSF
could reduce the amount owed to compensate for defects in performance.
(Magic Carpet Ride LLC v. Rugger Investment Group, L.L.C. (2019) 41
Cal.App.5th 357, 364; Kossler v. Palm Springs Developments, Ltd. (1980) 101
Cal.App.3d 88, 102 [party to a contract entitled to reduction in contract price
to compensate for deficiencies].) Substantial performance of the terms of the
contract requires “ ‘that the defects be such as may be easily remedied or
compensated, so that the promisee may get practically what the contract calls
for.’ ” (Magic Carpet Ride, at p. 364.) Whether Nieto substantially performed
in accordance with the terms of the contract is a question of fact that is left to
the factfinder. (Ibid.) We affirm the court’s ruling on deficiencies in
substantial performance if the court’s findings were supported by substantial
evidence. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 1002
(Schellinger).)
2. Background
Nieto’s cross-complaint sought about $9,400 from RSF for work
completed for which it was not paid. The court found that Nieto was not
entitled to recover any money from RSF because Nieto failed to perform as
required by the contract.
As a preliminary matter, RSF contends that no money was owed to
Nieto because the contract attached to the cross-complaint stated that
payment would be due upon completion of the project. Nieto counters that an
attachment to the contract, page 15, provided for monthly payments as work
progressed. The court granted leave to admit page 15 as an exhibit, but
stated that the outcome was the same even with that page included as part of
5
the contract.1 The court stated its “decision on the merits of the case does
not turn on whether the parties’ contract contained ‘page 15.’ ” We assume
there was a provision for monthly payments, as RSF paid Heyden
Landscaping monthly from June through July, but, like the trial court, our
review does not depend on the existence of the payment schedule.
3. Substantial Evidence Supports the Court’s Finding
Substantial evidence supported the court’s finding that Nieto was not
entitled to payment for work performed because Nieto failed to comply with
the terms of the contract. A landscape inspector for the City testified that
Heyden Landscaping installed the irrigation pipes incorrectly and did not
comply with city plans and material requirements that the City had
discussed with Nieto in April and in later communications. A representative
from the landscaping company hired to complete the work testified that 80
percent of the work done by Heyden Landscaping was out of place or done
incorrectly. It was necessary to tear out all the existing lines and start anew.
The landscaping was being done at too slow of a pace, and Nieto was bringing
too few crew members, according to Andrew Regan, RSF’s construction
superintendent, and Donald Jack, one of the owners of RSF. In Jack’s
experience as a property developer, landscape companies typically brought in
a crew of 20 to 30 people and completed the landscaping within two to three
weeks. Jack expected that Nieto would do the same and finish quickly,
especially because this property was a small lot. Instead, Nieto usually sent
only two or three crew members to work each day, and was far from
completion after four months of work.
1 Plaintiff requested that “Page 15” be included in the clerk’s transcript,
but it was not. None of the exhibits admitted at trial are included in the
appellate record.
6
Jack testified that Heyden Landscaping did not complete the job with
quality workmanship and in a timely manner; it abandoned the job before the
work was completed; the City rejected the work that Heyden Landscaping
had performed; and Heyden Landscaping did not complete the job in
conformance with the contract, plans, drawings, and City requirements.
Nieto contends that Heyden Landscaping could not have finished the
job until an incorrectly installed backflow valve was corrected. The court
rejected this claim. This ruling is supported by testimony from Jack and
Regan that Heyden Landscaping could have proceeded with other work
before the backflow valve was corrected. Further, Heyden Landscaping could
not connect to the backflow valve until its other work and material were
approved by the City. The City never approved the work performed or
materials used by Heyden Landscaping. The backflow valve did not prevent
Heyden Landscaping’s performance.
Substantial evidence supports the court’s finding that RSF did not owe
any money to Nieto because the work performed by Heyden Landscaping did
not comply with the contract. (Magic Carpet Ride, supra, 41 Cal.App.5th at
p. 364; Schellinger, supra, 2 Cal.App.5th at p. 1002.)
B. Requirement to Hire Cash Laborers
Nieto also alleges that RSF breached the contract by ordering Nieto to
use “cash laborers” on the job. The court found not credible Nieto’s claims
that RSF tried to force him to use cash laborers. Even if RSF wanted Nieto
or tried to persuade Nieto to use cash laborers to speed up the work, Nieto
was not required to hire such laborers. Nieto could have continued working
on the job with a sufficient number of his own workers to promptly complete
the work.
7
Nieto testified that RSF insisted that he use and pay a worker who was
present at the site on September 18, the day of the argument and Nieto’s
leaving the worksite. Regan testified that the person identified by Nieto
showed up onsite looking for work but RSF did not hire him. Nieto admitted
that he never hired or paid any cash laborers for the project.
We accept the court’s determination that Nieto was not credible in
stating that RSF required that he use cash laborers. (Balcof, supra, 141
Cal.App.4th at p. 1531.) Nieto could have–and was obligated to–provide
enough of his own workers to timely complete the project. Substantial
evidence supports the court’s finding that RSF did not breach the contract by
forcing Nieto to hire cash laborers. (Fladeboe, supra, 150 Cal.App.4th at
pp. 60–62.)
III. Attorney Fees
Nieto contends the trial court erred in awarding attorney fees to RSF,
arguing that he prevailed and that RSF was required to mediate the
attorney-fee dispute before pursuing legal action for the fees. He also
contends the amount of attorney fees awarded was unreasonable and should
be reduced.
We lack jurisdiction to review the attorney fees award because Nieto
failed to timely appeal that award. We therefore dismiss this portion of his
appeal.
“ ‘ “An appellate court has no jurisdiction to review an award of
attorney fees made after entry of the judgment, unless the order is separately
appealed.” [Citation.] “ ‘ [W]here several judgments and/or orders occurring
close in time are separately appealable (e.g., judgment and order awarding
attorney fees), each appealable judgment and order must be expressly
specified—in either a single notice of appeal or multiple notices of appeal—in
8
order to be reviewable on appeal.” ’ [Citations.] Indeed, ‘ “ [w]hen a party
wishes to challenge both a final judgment and a postjudgment costs/attorney
fee order, the normal procedure is to file two separate appeals: one from the
final judgment, and a second from the postjudgment order.’ ” [Citation.]
‘ “ ‘ “[I]f a judgment or order is appealable, an aggrieved party must file a
timely appeal or forever lose the opportunity to obtain appellate review.” ’ ” ’
[Citation.]” (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4
Cal.App.5th 982, 1007–1008.)
Nieto’s notice of appeal, filed July 30, 2019, specified that he was
appealing only from the judgment after the court trial, filed June 28, 2019.
Nieto’s notice of designation of record contains no pleadings relating to the
motion for attorney fees. Nieto did not file an additional notice of appeal
after the amended judgment, including costs and attorney fees, was filed on
September 18, 2019, and failed to supplement the record with the pertinent
pleadings and argument. He failed to appeal the postjudgment order for
attorney fees, and we have no jurisdiction to consider that issue.
Even if we had jurisdiction, we could not address his claims of error
because none of the pleadings related to the attorney fees are included in the
record. There would be no basis for overruling the order of the judge. The
appellant “ ‘has the burden of providing an adequate record. [Citation.]
Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594,
608–609.) We cannot rule on the issue of attorney fees.
9
DISPOSITION
We affirm the judgment. Costs awarded to plaintiff and cross-
defendant RSF Associates, LLC.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
10