San Clemente, CA asked in Foreclosure, Contracts, Real Estate Law and Construction Law for California

Q: GC filing small claims 4 nonPmt of $10K. Defense argues improper HI contract. How do I find case law that backs me?

2 bathrooms 95% complete (punchlist, barn doors and faucets left). Materials were not in yet (this was the 2nd or 3rd time we were waiting on her), but temps were installed. Left job for 2 weeks due to previously scheduled out-of-town job. Client fired us and refuses to pay for the 2nd bathroom or add'l water main and moving HVAC duct. There is ~$10K owed. We gave informal notice (eml) then filed lien. We have repeatedly tried to negotiate and are told she will not sue us if we remove lien. The 90-day to foreclose time ended and we believe she re-financed around lien...due to the "improper" home improvement contract argument she has used with us. We are filing in small claims court and would like to have a defense to her agrument based on prior case law where it was ruled contractors should be paid for work completed, regardless of one term or condition. Any past cases assisting the contractor would be helpful. How do I find it? Is it a keyword search?

1 Lawyer Answer
Donald M Barker
Donald M Barker
Answered
  • Construction Law Lawyer
  • irvine, CA
  • Licensed in California

A: "Substantial Performance" is the term you seek: "I ordered 100 flowers and you only brought me 95. I am not paying you." If a party "Substantially Performs" terms of contract, then payment is due, but payment may be prorated fairly.

Here's a link to the CA Jury Instruction, and all kinds of examples of when it does and does not apply.

I suggest you send homeowner a writing, NOW, seeking the chance to complete/repair any issues she has with your work.

File in Small Claims.

Here's link:

https://www.justia.com/trials-litigation/docs/caci/300/312/

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