Filed 1/22/14 Nixon v. Lafler CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


LARRY NIXON,                                                            B247679

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                         Super. Ct. No. BC467290)
         v.

ADRIENNE LAFLER et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michelle R. Rosenblatt, Judge. Affirmed.
         C. Timothy Lashlee for Plaintiff and Appellant.
         Young & Young and George W. Young for Defendants and Respondents.
                                  INTRODUCTION
      Plaintiff and appellant Larry Nixon appeals from the judgment entered on
his claims for breach of contract and negligence against his neighbors Adrienne
Lafler and Marvin Bucholz (collectively, respondents) and on respondents’ cross-
claims against Nixon for breach of contract. This dispute among neighbors arose
out of the rebuilding of a wall between their adjacent properties. The project was
subject to a written agreement between the neighbors. Nixon contends that the
trial court erred in denying his claims based on respondents’ failure to remove dirt
left on his property, and in granting respondents’ breach of contract claim based on
Nixon’s refusal to allow them to access his property to retrieve the dirt which they
needed to replace on their own property. He also contends that the trial court
erroneously awarded respondents damages for their costs to purchase replacement
dirt. We find that substantial evidence supported the trial court’s findings and thus
affirm the judgment.


               FACTUAL AND PROCEDURAL BACKGROUND1
      The parties entered into a “Fence Line Agreement” (the agreement) dated
August 12, 2010, and prepared by Nixon, whereby respondents agreed to replace
an existing chain link fence separating the parties’ neighboring residential
properties in La Puente with a new block wall, and agreed to use their best efforts
to complete the construction by November 1, 2010. Nixon agreed that during the
construction, the excavated dirt could be stored on his property, and respondents
would remove the dirt after the wall was constructed and regrade and they would
restore his property to its original state. Respondents assumed liability for “[a]ny

1
        The factual background is taken from the facts and evidence in the record and the
trial court’s statement of decision.

                                            2
damage done to humans, animals, or loss of material items due to theft or damage
while the property is unsecured because of the construction,” and assumed
responsibility for the well being and confinement of the farm animals on Nixon’s
property.
       The agreement further provided: “The following omissions to Exhibit 1[2]
must be corrected: [¶] a. In order to be valid the engineer’s signature must be in
RED ink. [¶] b. Need name and address of engineer and plot/site plan showing
the elevation and wall configuration. [¶] c. Need certificate of insurance.”
       The contractor S&H Cement and its agents provided evidence of vehicle
insurance and workers’ compensation insurance to Nixon. In addition, Nixon
talked to the city building department and was told that S&H had liability
insurance. Nixon was satisfied with the proof of insurance and permitted
construction of the wall to go forward, which involved, in part, use of a “Bobcat”
tractor to dig and transport dirt onto Nixon’s property.
       On September 12, 2010, Nixon sent a letter to respondents, asserting that
they were responsible for the theft of his saddle, for damage to his dog run caused
by the Bobcat, and for a missing survey stake. In addition, the letter demanded
that Nixon be provided with certificates of liability and worker’s compensation
insurance before workers could enter his property again to complete the job.
Thereafter, Nixon refused access to workers attempting to remove the soil from his
property.
       On November 26, 2010, Nixon wrote another letter, this time to
respondents’ counsel, stating that he was anxious to have the soil removed from his
property but that there was a significant problem remaining to be resolved

2
       The document referred to as Exhibit 1 was not in evidence at trial, and the court
inferred that it was the plans and specifications for the construction project.

                                             3
involving soil sinking around the footing of the wall. He wrote: “I am willing to
allow any licensed, insured excavation engineers access to my property for the
purpose of evaluating and remedying this problem. Any heavy equipment
involved must be operated by a licensed, insured and capable operator and a copy
of the insurance and license must be provided two business days prior to access to
the property.”
      On March 29, 2011, respondents’ counsel sent a letter to Nixon stating, “I
believe the best situation to resolve this is that we hire a contractor who is licensed
and insured to move the dirt back onto my clients’ property. . . . [¶] When the dirt
is moved it will also give the contractor an opportunity to fix the grade issues that
resulted from the moving of the dirt.” The letter also asked Nixon to provide a
recommendation for a contractor if he had one.
      According to Bucholz’s testimony, Nixon never recommended a contractor
and respondents were unable to find another one to move the dirt from his
property. Bucholz testified that on April 18, 2011, he spoke to Nixon and told him
that respondents needed the soil, and that if Nixon did not grant them access, they
would purchase replacement soil and sue Nixon for the costs. Nixon continued to
refuse access and soon afterwards, respondents purchased replacement soil from
another source and neither removed the soil from Nixon’s property nor regraded
his land.
      Nixon sued respondents for breach of written contract, breach of oral
contract, and negligence. In particular, he alleged that respondents breached the
agreement by failing to remove the excavated soil and regrade his property, which
required him to hire someone to do so at a cost of at least $15,800. Nixon also
alleged that during construction respondents’ agents had damaged his property,
including a block wall, a horse corral, a survey stake, and the bumper of his truck,
that they had left a gap between the new wall and his fence that allowed two goats
                                           4
to escape, and that they had left his property unsecured resulting in the theft of a
saddle from his property. He also sued for breach of oral contract, alleging that the
parties orally agreed that respondents would rent Nixon’s RV truck for $124 a
month for use as a bathroom facility during the construction period.
      Respondents cross-complained for breach of contract, alleging that Nixon
had committed a breach by refusing to allow respondents access to his property in
order to remove the dirt, and alleging that they suffered damages by having to
purchase replacement dirt and pay to get it onto their property.
      The trial court conducted a two-day bench trial, after which the parties
stipulated to a “joint summary of testimony” that outlined the substance of the
witnesses’ testimony. The trial court issued a lengthy and detailed statement of
decision. The court concluded that the agreement “requires a certificate of
insurance” and found that Nixon was shown proof of vehicle insurance by an agent
or employee of S&H and worker’s compensation insurance by S&H, and that
Nixon knew that S&H had provided proof of liability insurance to the County
building department for the purpose of obtaining a permit for the construction
project.
      The court further found that once the permit was issued, Nixon allowed
S&H to work and drive heavy equipment on his property, dump the dirt from
respondents’ property onto his, move items around, care for the animals, and use
his RV’s bathroom, and did not express a lack of satisfaction with the proof of
insurance that he had been shown. Based on these facts, the court concluded that
Nixon “accepted the proof of insurance shown to him as meeting the ‘need
certificate of insurance’ requirement and that he waived the right to demand a
certificate of insurance as he let the job move forward.” The court further found
that “Nixon’s conduct was inconsistent with the intent to enforce ‘need certificate
of insurance’ and induced a reasonable belief that the condition was fulfilled or
                                           5
extinguished.” Although the court found most of Nixon’s testimony to be credible,
it deemed “disingenuous” his testimony regarding his reasons for demanding proof
of insurance for the dirt removal and regrading phase, “given that he let S&H’s
[B]obcat operator onto his property in the first instance and the evidence shows
that he also allowed another [B]obcat operator onto his property without any
knowledge or concern about the insurance status of that other [B]obcat operator.”
The court found that evidence of Nixon’s waiver of the term requiring a certificate
of insurance was “clear and convincing.”
      The court further found that “there is no term in the contract requiring that
the certificate of insurance be shown again before the removal of dirt and regrading
phase. Nixon drafted the contract. If this was material, he should have put it in the
contract.”
      Having found that Nixon had no contractual right to demand a certificate of
insurance before permitting respondents access to his property to remove the soil,
the court found that respondents had not breached the agreement by failing to
remove the dirt and regrade Nixon’s land, given that Nixon prevented them from
doing so. Further, the court concluded that Nixon breached or anticipatorily
breached the agreement by not allowing respondents back onto his property to
remove the dirt.
      With respect to damages on respondents’ cross-complaint, the court awarded
them $18,250 for their cost in replacing the soil. On Nixon’s complaint, the court
awarded him $2,160 to replace the corral, $3,820 to fix the damaged wall, $250 to
close the gap between the wall and the fence, and $124 for use of the RV, for a
total damages award of $6,354.
      Nixon timely appealed from the judgment.




                                           6
                                   DISCUSSION
      Nixon contends that the trial court erred in concluding that respondents were
excused from their responsibility to remove the dirt from his property and regrade
his land based on Nixon’s refusal to grant access until a certificate of insurance
was provided to him. He further contends that the court erroneously found him in
breach of contract and erroneously denied his claims based on respondents’ failure
to move their dirt. He also challenges the court’s award of damages on
respondents’ cross-claim for breach of contract.
      Our review of the judgment is conducted in view of the trial court’s issuance
of a detailed statement of decision following the bench trial. We review the trial
court’s express factual findings in the statement of decision for substantial
evidence. (Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1009
(Apex).) Findings of fact are liberally construed to support the judgment. (Axis
Surplus Ins. Co. v. Reinoso (2012) 208 Cal.App.4th 181, 189.) Further, the
ultimate facts found in the court’s statement of decision necessarily include
findings on the intermediate evidentiary facts that sustain them, and any conflict in
the evidence is resolved in support of the trial court’s decision. (Community Youth
Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1407.) We
review legal issues under a de novo or independent standard. (Apex, supra, 206
Cal.App.4th at p. 1009.) Thus, in interpreting contractual terms, “‘[w]hen no
extrinsic evidence is introduced, or when the competent extrinsic evidence is not in
conflict, the appellate court independently construes the contract.’ [Citation.]”
(Fink v. Shemtov (2012) 210 Cal.App.4th 599, 608.)


   I. Nixon’s Waiver of Term Requiring Certificate of Insurance
      “‘A cause of action for breach of contract requires pleading of a contract,
plaintiff’s performance or excuse for failure to perform, defendant’s breach and
                                          7
damage to plaintiff resulting therefrom.’ [Citation.]” (Hale v. Sharp Healthcare
(2010) 183 Cal.App.4th 1373, 1387.) “‘[P]revention of performance by one party
to a contract excuses performance by the other [party].’ [Citation.]” (Id. at p.
1387.)
        Any contractual term is “subject to waiver by the party for whose benefit [it
is] made. [Citation.]” (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1339, fn.
omitted.) Contractual provisions may be waived by conduct. (Pease v. Brown
(1960) 186 Cal.App.2d 425, 428; Savaglio v. Wal-Mart Stores, Inc. (2007) 149
Cal.App.4th 588, 598 (Savaglio) [“waiver may stem from conduct ‘which,
according to its natural import, is so inconsistent with an intent to enforce the right
as to induce a reasonable belief that such right has been relinquished.’
[Citations.]”); see Bohman v. Berg (1960) 54 Cal.2d 787, 795 [when party to a
contract accepts other party’s performance without objection it is assumed the
performance was that contemplated by the agreement].) “‘The burden . . . is on the
party claiming a waiver of a right to prove it by clear and convincing evidence that
does not leave the matter to speculation, and “doubtful cases will be decided
against a waiver” [citation].’ [Citation.]” (Waller v. Truck Ins. Exchange, Inc.
(1995) 11 Cal.4th 1, 31.)
        “Whether there has been a waiver is a question of fact. [Citations.] We
review the trial court’s finding of waiver under the deferential ‘substantial
evidence’ standard.” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1052-
1053, superseded by statute on another ground as stated in DeBerard Properties,
Ltd. v. Lim (1999) 20 Cal.4th 659, 668; see Savaglio, supra, 149 Cal.App.4th at p.
598.)
        Nixon’s chief contention is that the evidence the trial court relied upon to
find a waiver was not strong enough to satisfy the “clear and convincing” standard.
The trial court found that the following facts established a waiver by Nixon:
                                            8
Nixon was shown proof of vehicle insurance and worker’s compensation insurance
by S&H, and Nixon was informed by the city building department that S&H had
provided proof of liability insurance. In response, Nixon did not express a lack of
satisfaction with the proof of insurance that he had been shown, and instead
allowed S&H to access and work on his property, including using Bobcats,
dumping the dirt from respondents’ property onto his, moving things around,
caring for the animals, and using the bathroom on his RV. In light of the fact that
Nixon previously had permitted S&H’s Bobcat operator onto his property and also
allowed another Bobcat operator to work his property without any proof of
insurance, the court did not credit Nixon’s testimony that he refused access for the
dirt removal phase out of a legitimate concern over the status of the insurance held
by respondents’ contractor.
      Where, as here, the substantial evidence test applies and “the evidence gives
rise to conflicting reasonable inferences, one of which supports the finding of the
trial court, the trial court’s finding is conclusive on appeal. [Citation.] That rule
applies even where the standard of proof in the trial court was ‘clear and
convincing evidence’ rather than ‘a preponderance of the evidence.’ [Citations.]”
(Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 298
(Rubin); see Brookview Condominium Owners’ Assn. v. Heltzer Enterprises-
Brookview (1990) 218 Cal.App.3d 502, 513 [“The existence or nonexistence of a
waiver involved issues of fact determined by the lower court. Where different
inferences might fairly and reasonably have been drawn the choice made by the
trial court, in the absence of an abuse of discretion, is binding on appeal.”].) The
court’s finding that a waiver occurred based on the above facts was not an
unreasonable inference. Therefore, under the applicable standard of review, we
will not disturb its finding.


                                           9
      Nixon also makes conclusory arguments that the trial court erred in finding
that a waiver had occurred because there was no consideration provided, because
the waiver was not in writing, and because there was no evidence that respondents
detrimentally changed their position. However, Nixon’s arguments are incorrect
under the law. (See Knarston v. Manhattan Life Ins. Co. (1903) 140 Cal. 57, 67
[no consideration required for waiver as opposed to estoppel]; 13 Williston on
Contracts (4th ed. 2013) § 39:26, p. 675 [“It is well settled that a party to a written
contract may orally, or by implication from conduct, waive performance of a
contract term or condition inserted in the contract for its benefit and that the waiver
does not require a writing.”]; Rubin, supra, 159 Cal.App.3d at p. 298
[“[D]etrimental reliance is not a necessary element of waiver, only of estoppel.”].)
Civil Code section 1541, upon which Nixon relies in arguing that consideration or
a writing are required, governs the requirements of a release, not a waiver implied
from conduct. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 31, fn. 7 [“an
agreement to discharge from liability previously incurred is more normally
denominated a release [than a ‘waiver’]. Civil Code section 1541 permits the
extinction of an obligation, unsupported by consideration, provided that the release
is in writing. The writing must, however, expressly show the creditor’s intent to
extinguish the obligation.”])
      In sum, substantial evidence supported the trial court’s determination that
Nixon waived his contractual right to demand a certificate of insurance.


   II. Trial Court’s Finding of Material Breach
      The trial court found that Nixon’s refusal to grant access to his property for
the dirt removal phase constituted a material breach. “‘[I]n contract law a material
breach excuses further performance by the innocent party. [Citations.]’
[Citations.] ‘Normally the question of whether a breach of an obligation is a
                                          10
material breach, so as to excuse performance by the other party, is a question of
fact. [Citations.]’ [Citation.]” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590,
1602-1603; see Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.) Substantial
evidence supported the trial court’s conclusion that Nixon’s refusal to allow
respondents onto his land constituted a material breach that in turn excused
respondents’ failure to remove the soil and regrade Nixon’s property, and also
justified damages on respondents’ cross-claim.
      We reject Nixon’s contention that any breach by Nixon was “nullified by the
subsequent actions” of the parties. Nixon contends that he retracted his refusal to
permit access to his property when respondents agreed on March 29, 2011 that
they would hire a licensed and insured contractor to remove the soil and fix the
grading issues. In its statement of decision, the trial court took note of the fact that
the March 29, 2011 letter upon which Nixon relies led him to believe that
respondents would hire a different licensed contractor to remove the dirt and fix
the grading issues. However, ultimately, the trial court found that Nixon denied
access to his property, in breach of the agreement. Because we must imply “all
necessary findings supported by substantial evidence” and “‘construe any
reasonable inference in the manner most favorable to the judgment, resolving all
ambiguities to support an affirmance’” (Lewis v. Fletcher Jones Motor Cars, Inc.
(2012) 205 Cal.App.4th 436, 443 (Lewis)), we conclude that the trial court
necessarily credited two facts to which Bucholz testified: first, that respondents
tried to hire another contractor other than S&H to remove the soil from Nixon’s
property but could not get one; and second, that on April 18, 2011, several weeks
after the March 29, 2011 letter was sent, Nixon was still prohibiting access to his
property even after Bucholz spoke to him and stated that respondents needed the
dirt and if Nixon did not grant them access, they would purchase dirt and sue him
for the costs. Thus, there was substantial evidence presented at trial that Nixon
                                           11
returned to his stance that he would not permit S&H access to his property in order
to remove the dirt. Accordingly, we will not disturb the court’s conclusion that
Nixon breached the agreement by failing to permit respondents access to his
property.


   III. Damages
        Nixon also contends that the trial court erred in awarding respondents
$18,250, their cost to purchase replacement dirt and have it trucked onto their
property. He asserts that it was not reasonable for respondents to buy replacement
dirt.
        A plaintiff may not be awarded damages that could have been mitigated by
reasonable effort or expenditures. The defendant (or here, the cross-defendant
Nixon) bears the burden of proving a plaintiff failed to mitigate damages.
(Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221
Cal.App.4th 867, 884 (Powerhouse).) “‘The fact that reasonable measures other
than the one taken would have avoided damage is not, in and of itself, proof of the
fact that the one taken, though unsuccessful, was unreasonable. [Citation.] “If a
choice of two reasonable courses presents itself, the person whose wrong forced
the choice cannot complain that one rather than the other is chosen.” [Citation.]’”
(Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41.)
        We review for substantial evidence the trial court’s implicit finding that
respondents acted reasonably in purchasing replacement soil in April 2011.
(Powerhouse, supra, 221 Cal.App.4th at p. 884 [“Whether a plaintiff acted
reasonably to mitigate damages . . . is a factual matter to be determined by the trier
of fact, and is reviewed under the substantial evidence test.”]) The permit for the
block wall did not expire until September 2, 2011, but Bucholz testified that the
City building department pressured him to put the soil back on his property and
                                           12
regrade it before May 2011 and told him that otherwise he would have to pull new
permits. He testified that therefore he had no choice but to purchase soil.
However, the court found not credible Bucholz’s testimony that he had no choice
in this regard, given the evidence that the permit for the block wall did not expire
until September 2, 2011, and respondents’ failure to present any evidence that a
different permit applied as to the soil removal and regrading.
       The trial court’s findings could be construed to be ambiguous. On the one
hand, the court did not believe Bucholz’s testimony that respondents had no choice
but to purchase replacement soil. On the other hand, the court found that “Nixon is
liable for the cost of replacing the soil that he wrongfully would not allow
[respondents] to retrieve from his property,” the court thus impliedly finding that
respondents did not fail to mitigate their damages.3 However, Nixon did not assert
either before the entry of judgment or in conjunction with a new trial motion or a
motion to vacate the judgment that the statement of decision was ambiguous in this
regard or request clarification of the decision on this issue. “[W]e therefore must
infer findings to support the judgment.” (Uzyel v. Kadisha (2010) 188 Cal.App.4th
866, 911; Chapala Management Corp. v. Stanton (2010) 186 Cal.App.4th 1532,
1535 [“If the statement of decision is ambiguous or omits material factual findings,
we will infer any factual findings necessary to support the judgment.”].)
       As discussed above, Bucholz testified that respondents tried to hire another
contractor to remove the soil from Nixon’s property but could not get one.
Therefore, sufficient evidence in the record supports the determination that this




3
       In its discussion of the applicable law, the court devoted a section to a plaintiff’s
obligation to mitigate its damages.

                                              13
option was not available to respondents, thus narrowing their remaining options.4
Further, although the trial court did not believe Bucholz’s testimony that he had
“no choice” but to purchase replacement soil in April 2011, the law does not
require that respondents have had no other choice before incurring these costs.
Rather, respondents were required only to make reasonable efforts to avoid
damages. Given the length of the impasse on the matter of the soil on Nixon’s
property, the trial court could reasonably have found that respondents were
justified in concluding that it was unlikely that Nixon was ever going to provide
them access to his property, and that it was not unreasonable to bypass him and
obtain replacement soil without waiting until the expiration date of the permit.
      In sum, substantial evidence supports the trial court’s determination of
respondents’ damages.




4
       Nixon contends that the most obvious mitigation measure respondents could have
taken was to show proof of insurance for S&H to Nixon, in which event he would have
permitted them to retrieve their soil and they would have avoided the cost of purchasing
replacement soil. As respondents point out, however, their obligation to mitigate their
damages did not include acquiescing to Nixon’s demand, which the trial court found to
be unreasonable, that they again provide proof of insurance for their contractor.
                                           14
                                DISPOSITION
            The judgment is affirmed.
            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             WILLHITE, J.




            We concur:




            EPSTEIN, P. J.




            EDMON, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
 to article VI, section 6 of the California Constitution.

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