Filed 10/9/13 Harmon v. Abdulzahra CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



STUART J. HARMON et al.,

      Plaintiffs, Cross-defendants and                                   E055089
Respondents,
                                                                         (Super.Ct.No. TEC097457)
v.
                                                                         OPINION
HAZIM ABDULZAHRA,

      Defendant, Cross-complainant and
Appellant.



         APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         Mario Alvarado for Defendant, Cross-complainant and Appellant.

         Hales & Associates and Brent J. Hales for Plaintiffs, Cross-defendants and

Respondents.




                                                             1
       On July 24, 2009, Stuart Harmon dba Harmon Excavating (plaintiff) filed a

complaint for breach of contract against Hazim Abdulzahra (defendant).1 A court trial

was held September 26 and 27, 2011.

       The trial court decided that “plaintiff was in the process of performing the contract

here at issue on May 21, 2009, when defendant called him off the job and ordered him to

take his equipment and leave the site.”

       The trial court therefore found that defendant had breached the contract and

awarded plaintiff damages of $25,455, costs of $3,253.15, and $30,000 in attorney fees.

Defendant appeals.

                                STANDARD OF REVIEW

       We apply a substantial evidence standard of review to the trial court’s factual

determinations. Each party cites the rule as stated in Bowers v. Bernards (1984) 150

Cal.App.3d 870 (Bowers). In that case, the court defines substantial evidence as evidence

of ponderable legal significance, reasonable in nature, credible, and of solid value. (Id. at

p. 873.) The Bowers court stated: “[T]he existence of such ‘substantial evidence’ will be

determined as follows: When a trial court’s factual determination is attacked on the

ground that there is no substantial evidence to sustain it, the power of an appellate court

begins and ends with the determination as to whether, on the entire record, there is

substantial evidence, contradicted or uncontradicted, which will support the


       1 The complaint is not in our record because defendant failed to ask that it be
included in the record on appeal.


                                              2
determination, and when two or more inferences can reasonably be deduced from the

facts, a reviewing court is without power to substitute its deductions for those of the trial

court. If such substantial evidence be found, it is of no consequence that the trial court

believing other evidence, or drawing other reasonable inferences, might have reached a

contrary conclusion. [Citations.]” (Id. at pp. 873-874.)

       We apply the substantial evidence rule to the trial court’s determination of the

factual issues in this case.

                                           FACTS

       Defendant owned property adjacent to Highway 74 in Lake Elsinore. He planned

to improve the vacant land by constructing a car wash and other buildings. In April 2009,

defendant entered into a grading contract with plaintiff. The contract called for rough

grading on the project for a price of $21,875. Payments were to be made in four

installments at unspecified times. The contract specifically lists grading of 290 feet of

keyway, 15 feet wide and two feet deep. Subsequently, defendant signed a change order

for the keyway, which contained hourly and daily rates for equipment needed for three to

five days of work.

       The parties agree that the contract was breached. Plaintiff testified that, after a

disagreement on May 21, 2009, defendant told him, “that’s it, and . . . said get off my job

or I’m going to call the police.” Two witnesses also testified that they had heard plaintiff

and defendant’s conversation: a surveyor on the property and one of plaintiff’s

employees.



                                              3
          Defendant denied the conversation occurred and argued that plaintiff walked off

the job after a dispute with the soil engineer technician, Berdge Jolakian (Jolakian).

Jolakian testified that his job was to observe and test the work performed by plaintiff and

to report any deficiencies he found to both the contractor (plaintiff) and the owner of the

property (defendant). Jolakian further testified that once he informed plaintiff about the

deficiencies he had found, “that’s when things became ugly.” Jolakian testified that on

May 21, 2009, Jolakian gave a copy of his report to defendant. He then testified that

defendant gave a copy of the report to plaintiff, and that’s when plaintiff left the property.

Jolakian testified that he did not remember hearing defendant and plaintiff talk about why

plaintiff was leaving.

          As noted ante, the trial court believed plaintiff’s version of events and found in his

favor.2

                                   BREACH OF CONTRACT

          Defendant contends that plaintiff failed to follow contract guidelines and refused

to complete the work, thereby breaching the contract before the alleged ejectment from

the job. Despite his citation to the Bowers’ substantial evidence rule, defendant argues

that: “The Court specifically found that [defendant] breached the contract with

[plaintiff]. The weight of evidence demonstrated no breach by [defendant].”

          2
         The trial court’s credibility determination was not surprising. For example,
defendant testified that he had not had any discussion with plaintiff about the change
order regarding the depth of the keyway. Defendant was then impeached with his
deposition testimony. In that testimony, defendant described discussions with plaintiff
about the keyway and the change order.


                                                4
         Defendant’s first argument is that plaintiff failed to follow the plans and

specifications, as approved by the county, and as agreed to by plaintiff. However, any

such agreement is not stated in any of the three documents signed by defendant. The first

document specifically provides for rough grading of 290 feet of a keyway, 15 feet wide

and two feet deep. Plaintiff explained that it was standard practice to excavate to a two-

foot depth for a keyway. Soil conditions generally required a deeper excavation, and

further excavation requires a change order. Plaintiff testified that he explained this

practice in detail to defendant before the first document was signed. After work began,

he excavated two feet and then spent a week excavating approximately six additional feet

on an hourly basis as stated in the change order. The total amount on the change order

was $25,455.

         Since the trial court found that defendant breached the contract by ordering

plaintiff off the job, it cannot be determined whether plaintiff would have completed the

contract in accordance with the plans and specifications. If the argument relates to the

keyway, the evidence shows that plaintiff did the necessary work under the contract and

the change order. Nevertheless, defendant failed to pay the amount due under the change

order.

         Although he signed the change order, defendant’s complaint seems to be that he

was charged extra for the work, i.e., that plaintiff agreed to do all the work in the plans,

including all work on the keyway, for the contract price. The difficulty with this

argument is that the contract specified the amount of keyway excavation (two feet deep),

and it does not specify that the work includes all the grading in the plans. For example,

                                               5
the contract specifies that it does not include fine grading. The grading plan does,

however, require fine grading. Defendant claims that plaintiff should have done the fine

grading called for in the grading plan. Plaintiff testified that he did the rough grading, not

fine grading, as specified in the contract. Thus, the trial court could conclude that the

contract provisions trumped the plan provisions, i.e., that plaintiff did not agree to do all

the grading provided for in the plan.

       In any event, the trial court could, and did, find that defendant breached the

contract, and substantial evidence supports the trial court’s conclusion. (Evid. Code,

§ 411.)

                                   THE AGENCY ISSUE

       Defendant contends that Jolakian was his agent and, accordingly, Jolakian’s

dispute with plaintiff was, under agency principles, a dispute between defendant and

plaintiff. Defendant states in his brief, “[t]hus, the dispute between Jolakian and

Abdulzahra [sic] could be used to find that Respondent [Harmon] breached the contract.”

While this may be true, if defendant is referring to a dispute between Jolakian and

plaintiff, it doesn’t affect the determination of who breached the contract. As the trial

court stated: “Any dispute between plaintiff and Mr. Jolakian on the same day is

irrelevant to defendant’s breach.”

       Defendant contests this decision by arguing that it was a “major dispute” that

resulted in “further acrimony” between plaintiff and defendant, as Jolakian’s principal.

Defendant contends that the court should have considered the Jolakian dispute but failed

to do so.

                                              6
       There is no evidence to support the argument. The trial court apparently did

consider the evidence but merely found it irrelevant. It was certainly entitled to do so

because the central issue was whether defendant breached the contract by ordering

plaintiff off the job. We agree with the trial court that the number of disputes or the

amount of acrimony on the jobsite is essentially irrelevant to the question of who

breached the contract.

                             AWARD OF ATTORNEY FEES

       Defendant next argues that the trial court’s subsequent attorney fee award of

$30,000 was improper. He points out that the first two documents he signed, the contract

and the conditions and exclusions page, do not provide for attorney fees. The attorney

fee provision is contained in the third document, the change order.

       Defendant argues that the trial court erred in considering the three documents to be

part of one contract, and in applying the attorney fee provision to the entire contract.

       The trial court could find that the change order was part of the contract because, as

plaintiff testified, it was contemplated that there would be a change order after the final

depth of the keyway was established by the soil engineer technician. Defendant testified

that the change order related to another issue, the removal of a pipe and cable found

during excavation, but the result is the same: the trial court could find that all three

documents were part of the same contract for the same project. Defendant has not borne

his burden of demonstrating error.




                                              7
       The change order was signed by defendant. Just under the signature, it states,

“Should suit be commenced to collect this invoice or any portion thereof, such sum, as

the court may deem reasonable, shall be added hereto as attorney fees.”

       Defendant argues that the attorney fee provision was not bargained for and the

change order was merely an invoice “for work already contemplated and performed prior

to the change order.” He does not cite any authority to support his argument.

       Plaintiff cites Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582

(Amtower). In that case, the court considered a cause of action based on an employment

contract with an attorney fee provision in conjunction with tort causes of action.

Although the contract clause of action was eventually dismissed, attorney fees were

awarded because the contract cause of action was an attempt to enforce the contract. (Id.

at p. 1603.) The Amtower court rejected the apportionment argument, citing the leading

case of Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124: “[F]ees need not be

apportioned ‘when incurred for representation on an issue common to both a cause of

action in which fees are proper and one in which they are not allowed.’” (Amtower, at

pp. 1603-1604, quoting Reynolds, at pp. 129-130.)

       The Amtower case goes on to hold: “Where fees are authorized for some causes of

action in a complaint but not for others, allocation is a matter within the trial court’s

discretion. [Citation.] A trial court’s exercise of discretion is abused only when its ruling

‘“‘“exceeds the bounds of reason, all of the circumstances before it being considered.”’”’

[Citation.]” (Amtower, supra, 158 Cal.App.4th at p. 1604.)



                                              8
       In the present case, the allegations of the complaint were apparently made in a

single breach of contract cause of action.3 The trial court did not abuse its discretion in

treating all documents as part of one contract and awarding attorney fees accordingly.

                                      DISPOSITION

       The judgment is affirmed. Plaintiff to recover his costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                McKINSTER
                                                                                              J.

We concur:



RAMIREZ
                         P. J.



KING
                            J.




       3   See footnote 1, ante.


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