L.A. Unified School Dist. v. Torres Construction Corp.

Filed 10/26/20 Certified for Publication 11/17/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LOS ANGELES UNIFIED B291940

SCHOOL DISTRICT,

(Los Angeles County

Plaintiff and Respondent, Super. Ct. No. BC485280)

v.

TORRES CONSTRUCTION

CORP. et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Robert L. Hess, Judge. Affirmed.

SMTD Law, Jonathan J. Dunn, Andrew C. Harris;

AlvaradoSmith, Raul F. Salinas and William M. Hensley for

Defendants and Appellants.

Orbach Huff Suarez & Henderson, David M. Huff, Colin E.

Barr, Kelly Houle-Sandoval; Mark A. Miller for Plaintiff and

Respondent.

_________________________

SUMMARY

Appellant Torres Construction (Torres) agreed to renovate

school cafeterias for the Los Angeles Unified School District

(LAUSD). Appellant Western Surety Company (Western) bonded

Torres’s performance on the project. The project encompassed

three phases. LAUSD ended up filing a civil complaint against

appellants for breach of contract arising out of all three phases of

the cafeteria renovations.

This appeal is from a judgment entered after an

encyclopedia of partial adjudications of the causes of action in

LAUSD’s complaint against appellants. The parties brought

motions for summary judgment, motions for judgment on the

pleadings, motions for summary adjudication, and motions for

directed verdicts; a few remaining claims survived these motions

and were decided by jury verdict. Ultimately, LAUSD prevailed

on its claims for breach of contract and was awarded $3,941,829

in damages. Western was found liable on its bonds. The parties

settled Torres’s offset claims for withheld payments on other jobs

in the amount of $556,296.89 plus $151,958.47 in interest.

LAUSD was awarded prejudgment interest of $1,232,887.88 and

costs in the amount of $88,716.97. LAUSD’s net recovery was

$4,555,178.49. In addition, LAUSD was awarded $2.1 million in

attorney fees against Western alone.

This appeal is from the final judgment, but appellants do

not directly challenge every court ruling. Torres focuses on 1) the

denial of appellants’ motion for summary judgment; 2) the grant

of LAUSD’s motion for summary adjudication on about half of the

job orders it issued to Torres; and 3) the award of prejudgment

interest. Torres contends its summary judgment motion should

have been granted because LAUSD elected to sue on the overall

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job order contracts, which were merely agreements to negotiate,

rather than on the individual job orders for the school

renovations, which were the final agreements. Torres also

contends the trial court erred in granting LAUSD’s motion

because 1) the trial court abused its discretion when it admitted

evidence offered by LAUSD in reply to Torres’s opposition to

summary judgment; 2) Torres’s offset affirmative defense

rendered LAUSD’s damages uncertain; 3) LAUSD failed to obtain

independent cost estimates, which were a statutory condition

precedent to Torres’s performance; and 4) there were triable

issues of material fact about waiver. Torres contends the trial

court abused its discretion in awarding prejudgment interest

because LAUSD’s damages were uncertain.

Western joins Torres’s claims, and adds additional claims

based on three of its affirmative defenses related to suretyship:

1) the statute of limitations on the bonds had run; 2) notice to the

surety was deficient; and 3) LAUSD’s damages were not

recoverable under the bond. Western contends LAUSD’s motion

for summary adjudication should have been denied because

LAUSD failed to negate these three affirmative defenses related

to suretyship. Western also challenges the denial of its motions

for directed verdict on these three affirmative defenses.

Additionally, Western contends the trial court abused its

discretion in awarding attorney fees in the absence of more

detailed information about the work of each attorney.

Some of appellants’ claims have been forfeited on this

appeal due to appellants’ 1) failure to provide adequate, or, in

some cases, any record citations; 2) failure to fully develop their

arguments; and 3) failure to cite supporting relevant California

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legal authority.1 As for the remaining claims, we find no error.

The judgment is affirmed.

BACKGROUND

Beginning in 2003, California statutorily authorized

LAUSD to use an alternative procedure for bidding of public

works projects. (Assem. Bill No. 14 (2003-2004 Reg. Sess.) § 1

(AB14).) This procedure, known as job order contracting, was

defined in former Public Contracts Code sections 20919 through

20919.15.2 The Legislature stated that “[t]he benefits of a job

order contract project delivery system include accelerated

completion of the projects, cost savings, and reduction of

construction contracting complexity.” (§ 20919, subd. (c).) The

Legislature stated the procedure should be used to reduce project

costs and expedite project completion. (Id., subd. (d).)

Under this system, a job order contract (JOC) is

competitively bid and awarded to the lowest responsible qualified

bidder. (§ 20919, subd. (g).) A JOC is defined as a contract “in

which the contractor agrees to a fixed period, fixed unit price, and

1 See United Grand Corp. v. Malibu Hillbillies, LLC (2019)

36 Cal.App.5th 142, 153 (United Grand Corp.).

2 All further statutory references are to that version of the

Public Contract Code unless otherwise indicated.

The code was revised in 2012, after the events in this case

had occurred. All citations to section 20919 et seq. are to the pre-

2012 version of the code, as shown in AB 14.

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indefinite quantity contract that provides for the use of job orders

for public works or maintenance projects.” (§ 20919.1, subd. (e).)3

For each JOC up for bid, LAUSD was required to provide

potential bidders with a set of documents which include a

construction task catalog and the JOC technical specifications,

which in turn include General Conditions. (§§ 20919.4, subd.

(a)(1); 20919.1, subds. (b) & (f).) The General Conditions set forth

all the terms and conditions of the JOC, including pricing

formulas, audit rights, insurance requirements, and payment

obligations. The 2005 and 2007 General Conditions for the JOCs

at issue in this appeal average about 90 pages. The bidders use

the JOC documents to bid an adjustment factor that the bidder

will charge for unit prices listed in the construction task catalog.

LAUSD awards the JOC to the lowest responsible prequalified

bidder. (§20919.4, subd. (b)(1).) The construction task catalog

and General Conditions are incorporated into the JOC as

contract documents.

Once a JOC is awarded, LAUSD may order the contractor

to perform work by issuing individual job orders under the JOC,

using the procedures outlined in the General Conditions. LAUSD

first notifies the contractor that work is necessary. The

contractor is required by the JOC to participate in a “joint scope

meeting” at the project site, as a result of which they develop a

Detailed Scope of Work. LAUSD then issues a Request for

Proposal (RFP) to the contractor, who is contractually required to

prepare a Job Order Proposal (proposal) which sets forth the cost

of performing the work.

3 “ ‘Indefinite quantity’ means one or more of the

construction tasks listed in the catalog of construction tasks.”

(§ 20919.1, subd. (c).)

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By statute a proposal is defined as “the job order contractor

prepared document quoting those construction tasks listed in the

catalog of construction tasks that the job order contractor

requires to complete the project scope of work, together with the

appropriate quantities of each task. The pricing of each task

shall be accomplished by multiplying the construction task unit

price by the proposed quantity and the contractor’s competitively

bid adjustment factor.” (§ 20919.1, subd.(l).) Under the JOCs at

issue here, the proposal must be prepared using either the

statutory method or, if the task cannot be found in the

construction task catalog, using a non-prepriced (NPP) work

formula set forth in the General Conditions. (See § 20919.1,

subd. (l).) If the proposal is approved, it becomes part of the job

order. A job order is defined as “a firm, fixed price, lump-sum

order issued by [LAUSD] to a job order contractor for a definite

project scope of work as compiled from the catalog of construction

tasks to be performed pursuant to a job order contract.” (Id.,

subd. (d).) Job orders are incorporated into the master JOC as

contract documents.

As relevant here, Torres was the successful bidder on five

JOCs for general contracting services, which LAUSD referred to

in its complaint as JOC Contract No. 1 and two JOCs for

electrical services, which LASUD referred to as JOC Contract

No. 2. The earliest contract date is December 21, 2005 and the

latest is February 5, 2008.

In March 2008, LAUSD began a program to modernize

middle and high schools as part of LAUSD’s district-wide Café

LA program. The work was scheduled to occur in three phases.

Phase I involved the purchase of a uniform set of kitchen

equipment for schools. Phase II involved the purchase of

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additional kitchen equipment which varied by school. Phase III

involved the installation of the Phase I and II equipment and

electrical upgrades. Torres submitted proposals for this work,

and ultimately was awarded 19 Phase I Job Orders, 18 Phase II

Job Orders and 18 Phase III Job Orders.

Torres installed kitchen equipment and made electrical

upgrades in the schools covered by its Job Orders. LAUSD made

the required payments on those Job Orders.

At some point prior to October 2011, LAUSD began a

contractually authorized audit of Torres’s job orders for the Café

LA project. The General Conditions provide that LAUSD has the

right to review, obtain, inspect, audit and copy all contractor

records pertaining to the contract work. Under the 2005 General

Conditions, the contractor agreed to maintain such records and to

submit to an audit for a period of up to four years following the

date the Notice of Completion is recorded; under the 2007

General Conditions, the contractor agreed to the audit without

reservation. If the audit “discloses overpricing or overcharges of

any nature by the CONTRACTOR to [LAUSD] in excess of one

percent (1%) of the total Contract Amount, then, in addition to all

other LAUSD rights and remedies, and in addition to making

adjustments for the overcharges and/or overpricing,” [LAUSD]

would be reimbursed for the costs of the audit.

In the final audit dated October 24, 2011, the LAUSD

auditor found what it believed were substantial irregularities in

Torres’s pricing of the Phase I and II Job Orders and in Torres’s

billing for the Phase III Job Orders. For the Phase I Job Orders,

the audit found LAUSD had directed Torres to purchase

equipment in the catalog of its subcontractor Trimark, and

Torres had supplied LAUSD with that required equipment but

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“the pricing and description of the equipment in the Contractor’s

detailed cost proposal did not reflect the equipment it supplied or

the equipment required in the scope of work.” The audit found

“Torres supplied the District with equipment it purchased from

Trimark but its cost proposal consisted of unrelated equipment

and prices from the Construction Task Catalog (CTC).” The

equipment Trimark actually suppled should have been priced

using the NPP work formula in the contract, but Torres did not

use this methodology.

For the Phase II Job Orders, Torres did use the correct

method of pricing (NPP work) but did not apply the correct mark-

up amount, resulting in a total overpricing of about 11 percent.

For the Phase III Job Orders, “Torres did not provide all

the services listed in the scope of work, but billed the District for

the entire service required in the scope of work.” “For example,

Torres billed for larger size transformers than supplied, thicker

wires than installed, larger quantities of electrical, piping and

ductwork materials than supplied and some HVAC work was not

performed.”

On May 23, 2012, LAUSD filed this action against Torres

and Western, alleging breach of the JOC’s and breach of the

bonds. After the trial court granted summary adjudication in

LAUSD’s favor on all 19 Phase I Job Orders and 9 Phase II Job

Orders, the case proceeded to jury trial. At the close of evidence,

the trial court granted LAUSD’s motions for directed verdict on

all the remaining Phase II Job Orders and 15 of the 18 remaining

Phase III Job Orders. Following a jury verdict on the remaining

three Job Orders, the court awarded prejudgment interest and

attorney fees. This appeal followed.

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DISCUSSION

We review an order granting or denying summary

judgment or summary adjudication independently. (Wiener v.

Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142

(Wiener); Buss v. Superior Court (1997) 16 Cal.4th 35, 60 (Buss).)

“ ‘ “First, we identify the issues raised by the pleadings, since it is

these allegations to which the motion must respond; secondly, we

determine whether the moving party’s showing has established

facts which negate the opponent’s claims and justify a judgment

in movant’s favor; when a summary judgment motion prima facie

justifies a judgment, the third and final step is to determine

whether the opposition demonstrates the existence of a triable,

material factual issue.” ’ ” (Claudio v. Regents of University of

California (2005) 134 Cal.App.4th 224, 229 (Claudio).)

“ ‘Declarations of the moving party are strictly construed, those of

the opposing party are liberally construed, and doubts as to

whether a summary judgment should be granted must be

resolved in favor of the opposing party. The court focuses on

issue finding; it does not resolve issues of fact.’ ” (Assilzadeh v.

California Federal Bank (2000) 82 Cal.App.4th 399, 409

(Assilzadeh).)

“ ‘[D]e novo review does not obligate us to cull the record for

the benefit of the appellant in order to attempt to uncover the

requisite triable issues. As with an appeal from any judgment, it

is the appellant’s responsibility to affirmatively demonstrate

error and, therefore, to point out the triable issues the appellant

claims are present by citation to the record and any supporting

authority. In other words, review is limited to issues which have

been adequately raised and briefed.’ ” (Claudio, supra,

134 Cal.App.4th at p. 230.)

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In motions for summary judgment or adjudication, “ ‘all

material facts must be set forth in the separate statement. “This

is the Golden Rule of Summary Adjudication: if it is not set forth

in the separate statement, it does not exist.” ’ [Citation.] Thus,

when the ‘fact’ is not mentioned in the separate statement, it is

irrelevant that such fact might be buried in the mound of

paperwork filed with the court, because the statutory purposes

are not furthered by unhighlighted facts.” (North Coast Business

Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22,

30-31.) “The corollary for an opposing party, unless it wishes to

advance additional disputed or undisputed material facts, is that

it clearly indicate which of the facts contained in the moving

party’s separate statement it disputes. ([Code Civ. Proc.,] § 437c,

subd. (b)(3).) Each party also must supply a ‘reference to the

supporting evidence’ in its separate statement ([Code Civ. Proc.,]

§ 437c, subd. (b)(1), (3)).” (Parkview Villas Assn., Inc. v. State

Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1214.)

“ ‘If, in deciding this appeal, we find there is no issue of

material fact, we affirm the summary judgment if it is correct on

any legal theory applicable to this case, whether or not that

theory was adopted by the trial court, and whether it was raised

by the [defendant] in the trial court or first addressed on

appeal.’ ” (Assilzadeh, supra, 82 Cal.App.4th at p. 409.)

I. Appellants’ Motion For Summary Judgment Was

Properly Denied Because A JOC Is An Enforceable

Contract, Not Just An Agreement To Negotiate.

Appellants’ Motion for Summary Judgment was the first

potentially dispositive motion to be heard by the trial court.

Appellants sought judgment in their favor on the ground that

JOCs are contracts to negotiate further contracts and could not

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support LAUSD’s claims for damages. Appellants argued

because LAUSD did not allege Torres failed to negotiate, which

was the only cognizable breach of the JOCs, it was not entitled to

expectation damages. Appellants took the position that each Job

Order was a separate contract from the JOC, and LAUSD should

have sued for breach of the Job Orders rather than the JOCs.4

Thus, appellants’ arguments were essentially legal arguments

based on the pleadings and the face of the contracts. The trial

court and the parties agreed that these two grounds for summary

judgment were the functional equivalent of motions for judgment

on the pleadings. The trial court denied the motion.

To prevail on its motion, a defendant moving for summary

judgment must conclusively negate a necessary element of the

plaintiff’s case or establish a complete defense thereto. (Frank

and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 468.)

When a motion for summary judgment challenges the sufficiency

of the pleadings rather than the evidence supporting the

allegations therein, it is tantamount to a motion for judgment on

the pleadings and may be treated as such by the trial court. “The

practical effect of this procedure is that in granting judgment on

the pleadings, the trial court may give the plaintiff the

opportunity to amend the complaint even when no motion to

amend has been filed.” (Taylor v. Lockheed Martin Corp. (2000)

78 Cal.App.4th 472, 479.) “The standard for granting a motion

4 In an attempt to persuade us, Torres resorts to poetry here,

referring to Robert Frost’s poem “The Road Not Taken” to

characterize LAUSD’s “conflicted” choice. We find that all roads

led back to the General Conditions. Thus, if poetry is called for,

“the end of our exploring/ Will be to arrive where we started/And

know the place for the first time.” (Eliot (1942) “Four Quartets.”)

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for judgment on the pleadings is essentially the same as that

applicable to a general demurrer, that is, under the state of the

pleadings, together with matters that may be judicially noticed, it

appears that a party is entitled to judgment as a matter of law.”

(Schabarum v. California Legislature (1998) 60 Cal.App.4th

1205, 1216 (Schabarum).)

The standard of review for a motion for summary judgment

and a motion for judgment on the pleadings is essentially the

same: we independently review the trial court’s order. (Wiener,

supra, 32 Cal.4th at p. 1142; Buss, supra,16 Cal.4th at p. 60;

Schabarum, supra, 60 Cal.App.4th at p. 1216.) We agree with

the trial court that appellants’ motion was much closer to a

motion for judgment on the pleadings than for summary

judgment, but however the motion is characterized, we find the

motion was properly denied.

Appellants first contend that the legislative history of the

bill enacting job order contracting shows that JOC’s are merely

agreements to negotiate.5 Appellants quote two documents from

that history which state that after the bidding process, the

contractor and the owner/LAUSD enter into “a contract defining

the overall relationship.” Appellants understand this to mean

that the JOC only establishes a relationship which lacks any

specifics and simply establishes that the parties will agree to

specifics in the future.

There is nothing to indicate what the writer meant by the

phrase “overall relationship.” The term can mean either

“involving only main features” or “including everything.”

5 Having received no opposition from LAUSD, we grant

appellants’ request that we take judicial notice of the legislative

history. (Evid. Code, §§ 452, 453.)

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(<https://www.vocabulary.com/dictionary/overall> [as of Oct. 26,

2020].) It is far more accurate and useful to look at the JOCs,

which incorporate the General Conditions. Those terms are very

detailed, and describe far more than the main features of the

relationship. To give just one example (apart from the pricing

related provisions), the General Conditions contain an elaborate

and detailed discussion of the notice required upon the

occurrence of specific events, as we discuss in some detail, post, in

our analysis of Western’s motion for directed verdict on this topic.

Looking at the 90 pages of General Conditions, it is simply not

reasonable to view the JOCs as only defining the broad or main

features of the relationship.

Appellants next turn to Copeland v. Baskin Robbins U.S.A.

(2002) 96 Cal.App.4th 1251, a case which they cited in the trial

court, but which is not dispositive. The contract at issue in

Copeland involved a potential agreement by defendant to

purchase ice cream and, when the defendant broke off

negotiations, the parties had not reached agreement on key terms

of the ice cream purchase agreement, such as flavor, quantity,

quality, pricing, trademark protection, and liability for spoilage.

(Id. at p. 1254.) Both parties agreed on appeal that no ice cream

purchase contract had been formed. The issue in Copeland

was not whether a binding agreement to purchase had been

formed but whether and what kind of damages were available for

breach of an agreement to negotiate. Plaintiff sought lost profits.

As the court explained, “damages for breach of a contract to

negotiate an agreement are measured by the injury the plaintiff

suffered in relying on the defendant to negotiate in good faith.

This measure encompasses the plaintiff’s out-of-pocket costs in

conducting the negotiations and may or may not include lost

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opportunity costs. The plaintiff cannot recover for lost

expectations (profits) because there is no way of knowing what the

ultimate terms of the agreement would have been or even if there

would have been an ultimate agreement.” (Id. at pp. 1262–1263,

fns. omitted, italics added.)

Copeland does not offer any support for appellants’

argument that the JOCs are, in fact, just contracts to negotiate.

At most, Copeland discusses that determining whether the

specific contract at issue is an agreement or merely an agreement

to negotiate depends on the terms of the agreement and the

relationship of the terms to the work to be performed or services

rendered under the ultimate contract.6

To determine whether the JOCs in this case are

agreements or merely agreements to negotiate, we look at the

terms of the contracts, and at the various documents

incorporated in those contracts. “Where a contract is clear and

unambiguous, it is interpreted by the language therein without

resort to extrinsic evidence. [Citations.] Such interpretation is a

question of law [citations], which may be resolved on summary

judgment.” (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485,

1499.)

Here, LAUSD is not suing on an agreement that never

materialized. The JOCs are valid executed agreements, and the

6 Similarly, in Cedar Fair, L.P. v. City of Santa Clara (2011)

194 Cal.App.4th 1150, the court looked to the contents of the

term sheet at issue to determine whether the parties had an

agreement, or merely an agreement to negotiate. (Id. at

pp. 1169–1171.) The court concluded that “although the term

sheet is extremely detailed, it expressly binds the parties to only

continue negotiating in good faith.” (Id. at p. 1171, italics added.)

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parties agreed to far more than simply to negotiate future job

orders. Under the General Conditions of the JOCs, the parties

agreed to every key term of future job orders except one: the

Scope of Work for any projects which LAUSD would assign to

Torres.

LAUSD is not suing on a Scope of Work that never

materialized. There is no claim that the required Scope of Work

for each job order was not established as required by the General

Conditions of the JOCs. Under the General Conditions, once the

Scope of Work is properly established, LAUSD issues its RFP,

and the contractor is required to respond with a proposal which

prices the work using the applicable formulas in the General

Conditions. This is arithmetic, not negotiations.

Appellants argue that even after the Scope of Work is

established, and a proposal is required, there is still only an

agreement to negotiate because the General Conditions provide

for termination of the contractor if it fails to provide the required

proposal. In fact, the General Conditions provide LAUSD can

terminate the Contract for cause if the contractor fails to timely

submit a proposal. We fail to see how this agreed-upon remedy

supports appellants’ argument that the JOCs are not binding

agreements to perform work. How is this different from a

provision which would permit an owner to terminate a contract if

the contractor falls behind the construction schedule or simply

fails to show up at the work site? “We may and do ‘disregard

conclusory arguments that are not supported by pertinent legal

authority or fail to disclose the reasoning by which the appellant

reached the conclusions he wants us to adopt.’ ” (United Grand

Corp., supra, 36 Cal.App.5th at p. 153.)

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Appellants further argue there was no binding agreement

even after the Scope of Work was determined and a proposal

submitted, because “there could be no expectation Torres would

build or bill for anything until the [job order] issued.” They are

mistaken. Once a contractor submits a proposal, he is “expected”

to do the work. As Torres itself noted, under the 2005 General

Conditions, once the contractor submits a proposal, LAUSD can

issue a notice to proceed in lieu of a job order. The contractor will

be paid according to the pricing formulas for work actually

performed. This requirement is less direct under the 2007

General Conditions, but when a contractor submits its proposal,

it is “agreeing to accomplish the Work as defined in the Job Order

Proposal Scope of Work.” (Art. 6.28.4.3.) The ability to issue a

Notice to Proceed without a Job Order does not appear to have

been carried over, but LAUSD may direct the contractor to

modify the proposal by, for example, adjusting quantities and

then resubmitting it. (Art. 6.28.5.) Thus, a contractor is bound

by its proposal before a job order issues. The JOCs are binding

agreements.

Alternatively, and for the first time on appeal, appellants

argue the JOCs are “too indefinite on price and quantity” to allow

a court to award expectation damages. Appellants’ only example

suggests this is a factual question which cannot be raised for the

first time on appeal, particularly since this is an appeal from a

motion for summary judgment and appellants did not identify

this as a fact in their separate statements. Appellants claim:

“Pricing for a light bulb installation has to be different if the

locale is a domed cathedral, hundreds of feet overhead.” Even

setting aside the extreme unlikelihood that LAUSD owns a

domed cathedral hundreds of feet tall, appellants fail to explain

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what such pricing is different from. Is it the price to install a

light bulb in a classroom? Are appellants claiming that the

construction task catalog only has one price for installing a light

bulb despite significantly varying conditions throughout LAUSD

schools? It is impossible to tell and, in any event, even if

appellants had identified a specific task description, we would not

be able to resolve the adequacy of the task description without

reference to evidence such as the varying conditions in LAUSD

buildings, and how such conditions affect light bulb installation,

if at all. “ ‘In order to demonstrate error, an appellant must

supply the reviewing court with some cogent argument supported

by legal analysis and citation to the record.’ ” (United Grand

Corp., supra, 36 Cal.App.5th at p. 153.) We may and do

disregard arguments that “ ‘fail to disclose the reasoning by

which the appellant reached the conclusions he wants us to

adopt.’ ” (Ibid.)

Finally, as the trial court correctly found, even if a

completed Job Order were necessary for damages, Job Orders are

not separate agreements: they are expressly incorporated into

and part of the JOC. A cause of action alleging breach of a JOC

is thus sufficient to include a breach of a Job Order issued under

the authority of the JOC.

II. Western Has Forfeited Its Claims Challenging Denial

Of Appellants’ Motion For Summary Judgment.

One of appellants’ affirmative defenses was that LAUSD

itself breached the contract by failing to independently price the

Job Order, one of its obligations under the JOCs. Western

appears to contend separately that when the trial court denied

appellants’ motion for summary judgment it erroneously

foreclosed this key affirmative defense, which, it contends, would

17

have relieved them of liability for their own alleged contractual

breaches. This argument has been forfeited by Western’s failure

to supply record citations or a fully developed argument, without

which we are unable to understand Western’s claim of

foreclosure. As we understand the record, the trial court denied

summary judgment because it found there was a material issue

of fact as to whether the JOCs were contracts to build or

contracts to negotiate. This ruling does not foreclose anything: it

simply finds a disputed material fact over the nature of the JOCs,

leaving that issue and the issue of affirmative defenses to be

decided later. “ ‘In order to demonstrate error, an appellant must

supply the reviewing court with some cogent argument supported

by legal analysis and citation to the record.’ ” (United Grand

Corp., supra, 36 Cal.App.5th at p. 153.) We are not required to

develop appellants’ arguments for them. (Ibid.) “We may and do

‘disregard conclusory arguments that are not supported by

pertinent legal authority or fail to disclose the reasoning by

which the appellant reached the conclusions he wants us to

adopt.’ ” (Ibid.)

III. LAUSD’s Motions For Summary Adjudication Were

Properly Granted In Whole And In Part.

Shortly after the trial court denied appellants’ Motion for

Summary Judgment, LAUSD filed two Motions for Summary

Adjudication against appellants, one for the Phase I Job Orders

and another for the Phase II Job Orders. The motions were made

on the ground that Torres breached the JOCs by failing to price

its proposals in accordance with the formulas in the General

Conditions. The trial court granted LAUSD’s motions as to all

Phase I Job Orders and some Phase II Job Orders. The partial

denial was based on disputed factual issues over the amount of

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engineering and site inspection services for some Phase II Job

Orders.

Appellants contend the trial court’s decision to admit and

consider additional evidence submitted in LAUSD’s reply was

erroneous and violated their rights to due process. They contend

this alone requires reversal of the court’s ruling granting

summary adjudication.7 They also contend the trial court erred

in granting the motion because 1) Torres’s affirmative defense of

offset rendered LAUSD’s damages uncertain; 2) independent

estimates are a condition precedent under the General

Conditions and LAUSD failed to obtain such estimates; and

3) there were triable issues of fact over waiver.

A. The Trial Court Did Not Abuse Its Discretion In

Admitting The Gap Filler Documents Submitted By

LAUSD In Reply.

In support of its Motion for Summary Adjudication on the

Phase I Job Orders, LAUSD submitted a computer printout of

Torres’s Phase I proposals. The printout shows dates which

might have reflected the dates the proposals were printed out,

rather than the dates they were initially submitted. In

opposition, appellants claimed that the proposals could not be the

basis of the Job Orders because they were dated after the Job

Orders and did not show that the scope of work included

engineering and site investigation work. In reply, LAUSD

7 Appellants appear to have submitted a joint Opposition to

LAUSD’s Motions for Summary Adjudication: the document uses

the plural term “defendants” and counsel are listed as counsel for

both Torres and Western. The Opposition does not, however,

raise any claims specific to Western.

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submitted a printout from the computer system contractors use

to submit bids to LAUSD, showing the dates Torres’s proposals

were submitted. LAUSD also submitted a revised damages chart

which reduced the damages claimed by the amount of the

engineering and site investigation work, conceding for purposes

of the motion that those charges were proper.

A trial court has discretion to consider new evidence in

reply papers supporting a summary judgment motion as long as

the opposing party has notice and an opportunity to respond.

(Wall Street Network, LTD. v. New York Times Co. (2008)

164 Cal.App.4th 1171, 1183.) Evidence which is used to fill gaps

in the original evidence created by the opposition is particularly

appropriate to consider in a reply. (Jay v. Mahaffey (2013)

218 Cal.App.4th 1522, 1538.)

Here, appellants claim the evidence was more than a gap

filler and they were improperly denied the opportunity to present

new evidence. They suggest LAUSD changed its theory by

“shift[ing] to subcontractor costs” and that LAUSD’s recalculated

damages created inconsistencies which raised triable issues of

material fact. The record on appeal does not support appellants’

contentions. LAUSD’s theory of recovery was and remained that

subcontractor costs were the appropriate basis for calculations for

Phase I and II. LASUD’s new damages figures simply reflected

the subtraction of the amount of the engineering and site

investigation services correctly identified by appellants. This is

basic arithmetic, not an unexplained inconsistency.

Appellants claim on appeal that the declaration LAUSD

submitted in support of the new evidence contradicted the Blanca

Sanchez declaration they submitted. Appellants cite only to the

Sanchez declaration and then only to an excluded portion of her

20

declaration. We do not consider this evidence. (Yanowitz v.

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) More generally,

appellants had ample opportunity to object to LAUSD’s new

evidence, and did so. The trial court did not abuse its discretion

in considering this gap filler evidence.

B. Torres’s Setoff Defense Did Not Create A Triable Issue

Of Material Fact Over The Amount Of LAUSD’s

Damages.

Torres alleged a setoff affirmative defense, and also

claimed a setoff in its cross-complaint. In Opposition to

Summary Adjudication, appellants claimed Torres’s setoff

defense precluded summary adjudication because the defense

created a triable issue of material fact concerning the amount of

LAUSD’s damages. More specifically, they contend that by

introducing evidence of payments withheld by LAUSD on other

jobs, they shifted the burden to LAUSD to disprove these setoffs.

Appellants claim the trial court misunderstood the burden of

proof and erroneously found the setoff was not applicable because

Torres did not file a cross-motion for summary adjudication.

To support their claim, appellants quote the trial court as

saying: “Where is the motion? Where is the motion for summary

adjudication? Where is the motion for summary judgment in

which you establish your entitlement to these offsets?”

Appellants have taken the trial court’s remarks out of context.

The trial court stated the amount of the offset had not yet been

adjudicated, and that absent a motion for summary adjudication

by Torres, the amount of the offset would be determined at the

end of the case. When Torres claimed the amount of the offset

was undisputed, the court replied: “If it really was undisputed, if

they admitted it in their answer to your cross-complaint, then

21

you reduce the judgment.” The court even noted that the

affirmative defense itself read “ ‘In the event this answering

defendant is found liable in any manner, . . . this answering

defendant would be entitled to offsets and credits against any

purported damages, if any, allegedly sustained by plaintiff.’ ”

(Italics added.)

The court’s comments as a whole show a correct

understanding of the law.8 A setoff “occurs at the end of

litigation.” (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th

853, 860.) Generally, “a setoff procedure simply eliminates a

superfluous exchange of money between the parties.” (Jess v.

Herrmann (1979) 26 Cal.3d 131, 137; see Code Civ. Proc.,

§ 431.70 [where cross-demands for money exist between plaintiff

and defendant, defendant “may assert in the answer the defense

of payment.”] The affirmative defense of setoff is equitable in

nature (see Granberry v. Islay Investments (1995) 9 Cal.4th

738, 743–744) and so would not ordinarily be decided by the jury

which decides the amount of damages. Thus, LAUSD would not

have been required to disprove the affirmative defense of setoff at

a jury trial, and Torres would not have been entitled to prove it

as an affirmative defense at such trial.

8 Appellants focus on the trial court’s comments at the

hearing. The trial’s written ruling and order more clearly state:

“Torres is not entitled to these offsets at this juncture because

they have not yet been adjudicated, either through trial or some

other mechanism such as a motion for summary adjudication or

summary judgment. Even if Torres were entitled to an offset, it

would be at the end of trial if they can prove the offsets, and such

would not defeat the District’s MSAs.”

22

Moreover, a setoff defense does not negate or change the

plaintiff’s damages. (See Fullington v. Equilon Enterprises,

LLC (2012) 210 Cal.App.4th 667, 685-687 [even where a party’s

award of compensatory damages is completely offset, the

requirement of actual damages as prerequisite for punitive

damages is satisfied]; see also McMillin Companies, LLC v.

American Safety Indemnity Co. (2015) 233 Cal.App.4th 518,

534-535 [equitable offset arising from settlement does not affect

amount of damages awarded, only right to recover full amount of

damages awarded].)

In some instances, a defendant’s offset claim may be

directly related to and intertwined with the claims asserted in

plaintiff’s complaint, and deciding one will necessarily decide the

other. This appears to have been the situation, at least in part,

in the case appellants rely on, Cal. Lettuce Growers v. Union

Sugar Co. (1955) 45 Cal.2d 474. In such cases, summary

adjudication on the plaintiff’s claim may not be possible unless

the defendant’s offsetting counterclaim can also be resolved.

Further, as LAUSD points out, Cal. Lettuce involved summary

judgment which necessarily disposed of the entire action

including the offset claim. Here, Torres’s offset defense and

counterclaim did not arise from the jobs that were the source of

LAUSD’s claims, and resolution of LAUSD’s claims would in no

way decide the merits of Torres’s claim for withheld payments on

unrelated and undisputed jobs. Thus, the trial court could decide

Torres’ offset defense after summary adjudication and before

entering a final judgment in the matter.

Relatedly, the trial court excluded the declaration of Marcia

Amos, offered by appellants to show the claimed amount of

offsets. The court excluded the declaration on the ground that

23

Amos lacked personal knowledge; Amos offered an improper legal

conclusion; and the declaration was barred by the best evidence

rule. Appellants contend this was an abuse of discretion.

However, LAUSD had also objected to the declaration on

the ground it was not relevant, and in light of our conclusion that

an offset defense does not defeat summary adjudication,

LAUSD’s objection was, and remains, valid. Put differently, even

assuming for the sake of argument that the trial court erred in

excluding the declaration, any error would be harmless in light of

our ruling that an offset defense or claim does not defeat

summary adjudication in favor of LAUSD on the issues raised.

C. An Independent Estimate Is Not A Statutory

Condition Precedent.

Appellants contend that an independent price estimate by

LAUSD is a statutory condition precedent before Torres’s

performance could be required.

Section 20919.11 provides that “[i]n order to prevent fraud,

waste, and abuse,” a school district using JOCs shall “(a) Prepare

for each individual job order developed under a job order contract

an independent unified school district estimate. The estimate

will be prepared prior to the receipt of the contractor’s offer to

perform work and will be compared to the contractor’s proposed

price to determine the reasonableness of that price before

issuance of any job order.” (§ 20919.11, subd. (a).)

“A condition precedent is one which is to be performed

before some right dependent thereon accrues, or some act

dependent thereon is performed.” (Civ. Code, § 1436.) Provisions

“ ‘are not to be construed as conditions precedent unless such

construction is required by clear, unambiguous language; and

particularly so where a forfeiture would be involved or

24

inequitable consequences would result. [Citations.]’ [Citations.]

Because ‘such conditions are not favored by the law, [they] are to

be strictly construed against one seeking to avail [it]self of them.

[Citations.]’ ” (JMR Construction Corp. v. Environmental

Assessment & Remediation Management, Inc. (2015)

243 Cal.App.4th 571, 594.)

There is no language in the statute expressly conditioning a

contractor’s duty to prepare a correctly priced proposal on

LAUSD obtaining an independent estimate. There is nothing at

all in section 20919.11, subdivision (a) requiring a contractor to

properly price its proposal. The contractor’s statutory duty to

price a proposal is found in section 20919.1, subdivision (l). This

formula is repeated in the General Conditions and supplemented

by NPP formula. It is an independent duty.

Further, as LAUSD argues, construing the statutory

estimate requirement as a condition precedent would mean

transforming a step intended “to prevent fraud, waste and abuse”

into a complete bar on seeking recovery for such fraud, waste or

abuse. In other words, treating an estimate as a condition

precedent would be construing the requirement in favor of

Torres, shielding him from liability for any fraud, waste or abuse.

The law requires this to be construed against Torres.

Appellants also claim, for the first time on appeal, that the

independent estimate requirement is a contractual duty and

LAUSD has not shown it performed, or was excused from

performing, that duty. Appellants contend that we may consider

this claim for the first time on appeal because it involves a pure

question of law based on undisputed facts. (See C9 Ventures v.

SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1491.) We do not

agree.

25

LAUSD presented evidence that it had performed its

contractual obligations by issuing Job Orders and paying Torres

for the Job Orders that were the subject of the motions. As

appellants acknowledge, in the trial court they did not contest

this evidence or argue that LAUSD had failed to fully perform its

contractual duties by failing to obtain an independent cost

estimate.9

Generally, “ ‘in reviewing summary judgment, the appellate

court must consider only those facts before the trial court,

disregarding any new allegations on appeal. [Citation.] Thus,

possible theories that were not fully developed or factually

presented to the trial court cannot create a “triable issue” on

appeal.’ [Citation.] ‘A party is not permitted to change his

position and adopt a new and different theory on appeal. To

permit him to do so would not only be unfair to the trial court,

but manifestly unjust to the opposing litigant.’ ” (Expansion

Pointe Properties Limited Partnership v. Procopio, Cory,

Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54–55.)

Here, the necessary facts to support appellants’ claim were

either not before the trial court at all or were not fully developed

and factually presented to the court. LAUSD argues on appeal it

does not owe such a duty to Torres, and only a breach of a

material obligation would excuse Torres’s performance or prevent

recovery. Whether an obligation is material is a question of fact.

(Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.)

9 Appellants did submit evidence which they contend showed

LAUSD had not performed independent cost estimates, but the

trial court ruled the evidence was irrelevant because an estimate

was not a statutory condition precedent.

26

In addition, LAUSD’s position on appeal is that if an

estimate were required, the Trimark proposals would be

sufficient to constitute an estimate for Phases I and II.

Appellants ridicule this idea, but provide no legal authority or

record citations to show that the proposals would not qualify. As

appellants note in Torres’s reply brief, LAUSD’s auditor used

pricing provided by Trimark for Phase I and II equipment as part

of its audit, comparing those prices to the Job Order pricing. “We

may and do ‘disregard conclusory arguments that are not

supported by pertinent legal authority or fail to disclose the

reasoning by which the appellant reached the conclusions he

wants us to adopt.’ ” (United Grand Corp., supra, 36 Cal.App.5th

at p. 153.)

D. There Were No Triable Issues Of Material Fact As To

Torres’s Waiver Defense.

Appellants claim they raised triable issues of fact as to the

affirmative defense of waiver. “The gist of Defendants’ waiver

defense is by accepting Torres’ job proposals, via the [job orders],

the District accepted the contractual terms, even if they were at

variance from the [General Conditions].” Appellants did not

clearly make this argument in their Opposition to the Motions for

Summary Adjudication in the trial court. In fact, the trial court

found Torres’s affirmative defense of waiver “was raised in the

moving papers, and the Court finds it was not addressed by

Torres in its opposition.”

Through its submission of the Blanca Sanchez and

McGallian declarations, appellants attempted to argue that

LAUSD had instructed Torres to use a different pricing procedure

than the one in the General Conditions, which might be

characterized as a waiver argument. However, the trial court

27

excluded those declarations. On appeal appellants do not

challenge that ruling, so we do not consider the content of those

declarations. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th

at p. 1037 [we take the facts from the record that was before the

trial court when it ruled on the motion].)

Turning to the issue of waiver as a matter of law,

appellants referred to their affirmative defense of waiver only

once in their memorandum, in the section discussing the estimate

requirement, contending “LAUSD’s failure to perform its [cost

estimate] duties also creates a genuine dispute of material fact

precluding summary adjudication on . . . Torres’ affirmative

defense of waiver.” Appellants’ argument is not clear, but it

appears to have been that LAUSD’s failure to obtain an estimate

meant that Torres did not have to comply with the pricing

requirements of the General Conditions, and LAUSD could not

waive the estimate requirement and thereby negate its failure to

obtain an estimate/restore Torres’s pricing duties. However, the

trial court correctly found that the estimate requirement was not

a statutory condition precedent to Torres’s independent duty to

correctly price the work, and so this argument was not relevant.

The closest argument in their Opposition to the argument

appellants now make on appeal is their contention that once a

Job Order was signed, it took precedence over any conditions in

the General Conditions. They based this contention on provisions

that in the event of a conflict or ambiguities between the contract

documents, the job orders take priority. It was only in the

Opposition’s separate statement that appellants used the term

waive, and then only in connection with the argument that the

Job Orders trumped the General Conditions. They stated:

“LAUSD entered into a written contract that specifically agreed

28

to waive any prior pricing breaches in the proposal because the

Job Order is a contract and [General Conditions] §§3.3 and 3.14

in tandem provide that for a JOC and for a Job Order, the terms

of the Job Order prevail over conflicting, different, or discrepant

terms in the [General Conditions] and the pricing terms alleged

by LAUSD as the basis for breaches are such conflicting,

different, or discrepant terms with the terms of the Job Orders

and because [General Conditions] 11.2 constitutes written

agreement that the Job Order Amount cannot be changed except

by Change Order.”

This was not really a waiver argument, however. “Waiver

requires the intentional relinquishment of a known right upon

knowledge of the facts. The burden is on the party claiming a

waiver of right to prove it by clear and convincing evidence that

does not leave the matter to speculation. As a general rule,

doubtful cases will be decided against the existence of a waiver.”

(Ringler Associates Inc. v. Maryland Casualty Co. (2000)

80 Cal.App.4th 1165, 1188.)

Appellants rely on a 35-year-old case, which itself relies on

a 20-year-old case, for the proposition that “ ‘A waiver may occur

(1) by an intentional relinquishment or (2) as “the result of an act

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.” ’ ” (Freshman, Mulvaney,

Marantz, Comsky, Kahan & Deutsch v. Superior Court (1985)

173 Cal.App.3d 223, 233–234, italics added.) We question

whether inconsistent conduct is a form of waiver, at least where

the conduct must induce a “reasonable belief that such right has

been relinquished.” The Freshman court considered the

“reasonable belief” of the party asserting waiver, making this

29

standard much closer to estoppel than waiver. (Id. at p. 234.)10

Nonetheless even this broad definition does not help appellants.

The anti-waiver provision of the General Conditions

provides: “No action or failure to act by [LAUSD] shall constitute

a waiver of a right, remedy, or duty afforded to [LAUSD] under

the Contract Documents, nor shall such action or failure to act

constitute approval of or acquiescence in a breach thereunder,

except as may be specifically agreed to in writing.” The provision

thus prohibits waiver by conduct.

Further, in order for appellants to prevail, LAUSD would

have to have waived two rights: 1) the right to have a proposal

prepared in accordance with the pricing formulas; and 2) the

right to later audit the job order and recover overcharges.

Appellants have not pointed to any admissible evidence showing

that LAUSD personnel were aware that Torres’s proposals

violated the General Conditions pricing formulas or that LAUSD

expressly relinquished the right to require those formulas.

Appellants point to the conduct of LAUSD personnel in approving

and signing the job orders. Even assuming for the sake of

argument that signing a job order without checking for pricing

conformity could be viewed as conduct inconsistent with an intent

to enforce the General Conditions pricing formula and that such

waiver was not prohibited by the express terms of the anti-waiver

10 “Waiver refers to the act, or the consequences of the act, of

one side. . . . Waiver does not require any act or conduct by the

other party.” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum

Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59.) Estoppel

is applicable where the conduct of one side has induced the other

to take such a position that it would be injured if the first should

be permitted to repudiate its acts. (Ibid.)

30

provision, this conduct would only be inconsistent with an intent

to enforce the pricing formulas through the job order issuance

process. The conduct is not inconsistent with a belief that a

subsequent audit could and would make a compliance

determination and that any overcharges could be recovered.

Thus, for waiver purposes, LAUSD’s conduct is not inconsistent

with an intent to enforce the pricing formulas.

Appellants also fail to show that waiver would be

permissible in a public works contract, specifically a waiver

which would operate to modify the JOC process by removing the

requirement that a contractor follow the pricing formulas in the

General Conditions in preparing its proposal.

“[P]ublic works contracts are the subject of intensive

statutory regulation and lack the freedom of modification present

in private party contracts.” (Amelco Electric v. City of Thousand

Oaks (2002) 27 Cal.4th 228, 242 (Amelco).) Appellants cite

Amelco for limitations on a court’s power to make a new contract,

but ignore this important limitation on the parties’ ability to

modify the contract. At most, a public entity may waive only

inconsequential deviations from contract requirements. (See

Ghilotti Construction Co. v. City of Richmond (1996)

45 Cal.App.4th 897, 900 (Ghilotti) [requirements for competitive

bids].) Appellants cite Ghilotti for the proposition that a public

entity can waive contractual rights, but they ignore this

important limiting caveat on waiver.

What is inconsequential may vary by the specific procedure

or requirement at issue. Broadly, to be considered

inconsequential, “a deviation must neither give the bidder an

unfair competitive advantage nor otherwise defeat the goals of

31

insuring economy and preventing corruption in the public

contracting process.” (Ghilotti, supra, 45 Cal.App.4th at p. 900.)

Here, the JOC procedure was authorized both to enable

school districts to complete projects more rapidly, to reduce costs,

and to reduce complexity. A JOC is defined as “a competitively

bid contract . . . in which the contractor agrees to a fixed period,

fixed unit price, and indefinite quantity contract.” (§ 20919.1,

subd. (e).) Indefinite quantity means “one or more of the

construction tasks listed in the catalog of construction tasks.”

(Id., subd. (c).) A JOC contractor has a statutory duty to price its

job order proposals using a formula based on the construction

task catalog where applicable. (Id., subd. (l).)

A job order which waives the use of the statutorily

prescribed pricing formula which defines job order contracting is

not an “inconsequential” deviation from contract requirements as

a matter of law.11 These pricing formulas are the heart of the

JOC process. It defeats the statute’s goal of ensuring both speed

and low costs by prepricing tasks (or if no such task is found in

the catalog of tasks, using a specified formula for NPP work).12

More concretely, in this case the deviations did result in

significantly higher costs.

11 Here, we are faced with a waiver claim that applies to the

entire JOC order. We do not consider whether a waiver of the

price formula for a small portion of a job order would be

consequential or inconsequential.

12 The Legislature intended that a more traditional method of

job delivery be used only when it results in greater cost savings.

(§ 20919, subd. (f).) Appellants’ waiver argument is contrary to

that intent.

32

There is no evidence of corruption here, but it must be

recognized that deeming a complete waiver of the pricing

formulas inconsequential defeats the goal of preventing

corruption in the public contracting law. Corruption spans a

wide range of conduct, including collusion and favoritism, as well

as fraud. (Amelco, supra, 27 Cal.4th at p. 240.) A contractor is

awarded a JOC on the basis on its low adjustment factor bid; the

statute specifies the factor be applied to construction task unit

prices. If LAUSD could waive the unit pricing provisions, a

contractor could bid an unreasonably low adjustment factor, in

the hope or knowledge that LAUSD would waive the requirement

that the contractor follow the pricing formulas which use the

adjustment factor. That would also give the contractor a unfair

competitive advantage.

IV. To Prevail On Its Motions LAUSD Was Not Required

To Disprove Western’s Boilerplate Affirmative

Defenses.

Western separately contends the trial court erred in

granting LAUSD’s motion for summary adjudication because

LAUSD did not disprove Western’s affirmative defenses of lack of

contractually required notice, bar by the statute of limitations

and damages not recoverable under bond.

This argument was not raised in appellants’ Opposition to

LAUSD’s motion. There are no references to these affirmative

defenses at all. The trial court specifically noted that Torres’s

“oppositions made no challenge to Western’s liability under the

bond.”

Western now attempts to claim that LAUSD was required

to disprove these defenses as part of showing performance under

the bonds. Western has characterized these issues, accurately, as

33

affirmative defenses, not as elements of LAUSD’s performance

obligations. (See Standard Oil Co. v. Houser (1950)

101 Cal.App.2d 480, 488 [statute of limitations, conditions

precedent, exoneration and similar claims are affirmative

defenses which must be pled in the answer].) A plaintiff moving

for summary judgment is not required to disprove affirmative

defenses not sufficiently put at issue by the defendant’s answer.

(See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d

367, 384-385 [defendant’s laundry list of 16 affirmative defenses

which essentially stated the name of the defense and that it

barred recovery did not raise any issues of material fact that

plaintiffs were required to disprove].) Western alleged 35 such

affirmative defenses in such boilerplate fashion, and provided no

facts during discovery to support any defense. LAUSD had no

burden to disprove the listed defenses.

V. The Trial Court Properly Awarded LAUSD

Prejudgment Interest.

Appellants contend the trial court erred in awarding

prejudgment interest from the date of the last retention payment

on each Job Order because the amount of the damages was

uncertain. Appellants also contend the trial court erred by

awarding such interest before adjudicating its offset affirmative

defense. Appellants contend that at most the trial court had

discretion to award prejudgment interest from the filing of the

complaint, and that it abused its discretion in this case by

making that award.

Prejudgment interest may be awarded where damages are

certain or capable of being made certain by calculation. (Civ.

Code, § 3287, subd. (a).) Prejudgment interest may also be

awarded for unliquidated damages in breach of contract causes of

34

action, but such interest may begin no earlier than the action was

filed. (Id., subd. (b).) “Generally, the certainty required of Civil

Code section 3287, subdivision (a), is absent when the amounts

due turn on disputed facts, but not when the dispute is confined

to the rules governing liability.” (Olson v. Cory (1983) 35 Cal.3d

390, 402.)

On appeal appellants now contend the damages were

uncertain because ascertainment of the amount of damages

required expert trial testimony. Appellants do not provide record

citations showing they argued for some alternative calculation of

damages. Indeed, in the trial court, appellants generally claimed

LAUSD had agreed to the amounts in the Job Orders and so had

not suffered damages. A claim that damages is $0 is not a

dispute which renders the amount of damages uncertain; it is

effectively an argument for no liability.13 A defendant’s denial of

liability does not make damages uncertain for purposes of Civil

Code section 3287. (Stein v. Southern Cal. Edison Co. (1992)

7 Cal.App.4th 565, 572.)

Appellants then argue that their offsets made LAUSD’s

damages uncertain. Not so. “[O]nly the claimant’s damages

themselves must be certain. Damages are not made uncertain by

the existence of unliquidated counterclaims or offsets interposed

by the defendant.” (Howard v. American National Fire Ins. Co.

(2010) 187 Cal.App.4th 498, 536.)

13 In Torres’s reply brief, appellants contend that damages

“required a judicial determination based on conflicting evidence

that ultimately re-wrote the firm, fixed-price JO amounts.” This

reinforces our conclusion that appellants’ only “conflicting”

evidence about the amount of damages was that damages should

be $0.

35

VI. The Trial Court Properly Denied Western’s Motions

For Directed Verdict.

Western unsuccessfully moved for directed verdicts based

on three of its affirmative defenses. These motions applied only

to the Job Orders which had survived summary adjudication and

made it to trial. The trial court denied all three motions, and

stated that in the alternative it would strike the motions for

abuse of discovery. Western contends the trial court erred in

denying the three motions, and in striking the defenses as a

discovery sanction. Because we affirm the trial court’s

substantive rulings on the motions, we need not and do not reach

the discovery sanction issue.

“Like a motion for nonsuit, a motion for a directed verdict is

in the nature of a demurrer to the evidence. [Citations.] In

determining such a motion, the trial court has no power to weigh

the evidence, and may not consider the credibility of witnesses.

It may not grant a directed verdict where there is any substantial

conflict in the evidence. [Citation.] A directed verdict may be

granted only when, disregarding conflicting evidence, giving the

evidence of the party against whom the motion is directed all the

value to which it is legally entitled, and indulging every

legitimate inference from such evidence in favor of that party, the

court nonetheless determines there is no evidence of sufficient

substantiality to support the claim or defense of the party

opposing the motion, or a verdict in favor of that party.”

(Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629–630

(Howard).)

A directed verdict is subject to de novo appellate review.

(Brassinga v. City of Mountain View (1998) 66 Cal.App.4th

195, 210.)

36

A. Western Failed To Identify Evidence Of A Key Date

Needed To Prevail On Its Statute Of Limitations

Motion.

Western contends “[e]ach of the bonds contained express

contractual limitations periods providing . . . ‘Any action on this

Bond shall be commenced within three (3) years of the date of

Substantial Completion.’ (27AA10034:20-10035:3.)” This record

citation, the only one purporting to be to the bonds, is to the

argument sections of Western’s motion, not the bonds

themselves. It is Western’s responsibility to provide a record

citation to the bonds at issue which contains the language upon

which it relies; Western’s previous quotations in a motion are not

sufficient. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246

(Nwosu) [party’s argument deemed forfeited if not supported by

necessary citations to the record].) This is particularly true as

LAUSD contends only two of the five bonds that were the subject

of Western’s motion had such limitations periods.

A motion for directed verdict is in effect a demurrer to the

evidence, and cannot be granted where there are any substantial

conflicts in the evidence. (Howard, supra, 72 Cal.App.4th at

p. 629.) Here, there are no facts, undisputed or otherwise, in

Western’s Opening Brief, reciting the dates that the statutes of

limitations began to run for each job order. Western contends the

statute begins to run on the date of Substantial Completion, but

does not provide any citations to the record on appeal where

evidence of the date of Substantial Completion can be found.

Western refers to testimony in a reporter’s transcript which is not

part of the record on appeal.14 Western then states LAUSD “had

14 As described by Western, LAUSD’s expert James Becica

testified that LAUSD had three opportunities to discover

37

no obligation to issue a Certificate of Substantial Completion or

file a Notice of Completion until ‘all of the requirements of the

Job Order are completed.’ (27AA10041:1-3.)” This is a citation to

the last page of its motion.

Western has forfeited this claim by failing to provide record

citations to the documents which it claims show the dates of

Substantial Completion. (Nwosu, supra, 122 Cal.App.4th at

p. 1246.) Further, as LAUSD points out, the Certificates of

Substantial Completion upon which Western relied in its motion

were not trial exhibits, were not admitted into evidence, and are

not part of the appendix or other appellate record.

In its reply brief, Western narrows its argument to a single

bond and to Notices of Completion for nine job orders which it

asserts were admitted at trial. We decline to consider these

documents, provided for the first time in the reply brief,

particularly in light of Western’s overstatement in its Opening

Brief. Western’s carelessness has deprived LAUSD of the

opportunity to address these specific documents and Western’s

related arguments. (See American Indian Model Schools v.

Oakland Unified School Dist. (2014) 227 Cal.App.4th 258,

275-276 [“Fairness militates against allowing an appellant to

raise an issue for the first time in a reply brief because

consideration of the issue deprives the respondent of the

problems with Torres’s proposals, the last of which was the audit.

Western suggests the audit occurred within the limitations

period, but does not further develop this argument. “We may and

do ‘disregard conclusory arguments that are not supported by

pertinent legal authority or fail to disclose the reasoning by

which the appellant reached the conclusions he wants us to

adopt.’ ” (United Grand Corp., supra, 36 Cal.App.5th at p. 153.)

38

opportunity to counter the appellant by raising opposing

arguments about the new issue.”].)

We briefly note that a Notice of Completion alone would not

appear to be sufficient to show the date of substantial completion.

The purpose of such notices is “to protect property owners by

shortening the time period in which lien notices may be filed

against them.” (Kray Cabling Co. v. County of Contra Costa

(1995) 39 Cal.App.4th 1588, 1594.) Given the number of

published appellate opinions discussing issues related to

premature filing of notices of completion (see, e.g., Fontana

Paving, Inc. v. Hedley Brothers, Inc. (1995) 38 Cal.App.4th 146,

154–155; Scott, Blake & Wynne v. Summit Ridge Estates, Inc.

(1967) 251 Cal.App.2d 347, 357 (Scott); Otis Elevator Co. v.

Brainerd (1909) 10 Cal.App. 229, 232), filing a premature notice

of completion appears common.15 Thus, a notice of completion is

not necessarily proof the work has in reality been substantially

completed.

B. LAUSD Was Not Required To Provide Notice Of

Torres’s Improper Pricing.

Western contends LAUSD never gave the required notice

making a demand upon the bonds until it filed this lawsuit, and

that this lack of notice constitutes a material breach of the bonds

and renders them null and void. Western contends “[e]ach bond

15 In Scott, for example, the owner filed a premature notice of

completion and the court explained that, notice notwithstanding,

the work was not in fact complete until the plaintiff, whose

services were basic to the scheme of improvement, had completed

its services under the contract. (Scott, supra, 251 Cal.App.2d at

pp. 357–358.)

39

at issue contained its own express notice requirements prior to

triggering the liability of Western’s.”

Western fails to provide record citations for these bonds.

Further, Western does not quote any notice language from the

bonds and does not explain how such language applied to the

facts of this case. Accordingly, Western has forfeited any claim

based on the language of the bonds. (Nwosu, supra,

122 Cal.App.4th at p. 1246; United Grand Corp., supra,

36 Cal.App.5th at p. 153.)

Western does rely on language from the General Conditions

to support its claim. It appears to be undisputed that LAUSD did

not give notice before the commencement of this action; LAUSD’s

position was that notice was not required. Thus, we will consider

this portion of Western’s argument.

Western relies on Articles 15.5.10, 15.5.11 and 15.5.12.

Article 15.5.10 provides that if, in the opinion of LAUSD, certain

failures occur, “then [LAUSD] shall give notice as required by

Article 15.5.11 or Article 15.5.12, as applicable.” Article 15.5.11

concerns safety violations and is not applicable here.

Article 15.5.12 provides: “[B]efore [LAUSD] can proceed

under Articles 15.5.15 and/or 15.5.16, [LAUSD] shall first send a

written notice to CONTRACTOR and its performance bond

surety . . . .”

The preamble to Articles 15.5.13 through 15.5.16 states:

“[LAUSD] may, at its sole option and without prejudice to any

other rights and/or remedies [LAUSD] may have at law, under

the Contract, the performance bond(s), and/or in equity, do any

and/or all of the following . . . .” Articles 15.5.13 and 15.5.14

involve revoking the contractor’s prequalification status and/or

declaring him a non-responsive bidder, while Article 15.5.16

40

involves termination of the contractor’s services; none of these

provisions are applicable here.

Article 15.5.15 provides LAUSD may “make good such

deficiencies (i.e., Articles 15.5.1 through 15.5.10, inclusive) by

whatever method [LAUSD] deems most expedient with all costs

and expenses thereof being deducted, and/or drawn down, and/or

charged against, the Contractor, the Contract funds, including

retention, and/or the performance bond . . . .”

Western offers no argument concerning the scope or

meaning of Article 15.5.15. LAUSD contends it refers to

“construction administration tasks during the progress of the

work, such as remedying defective work or failing to pay

subcontractors.”

Article 15.5.10 is broad, and refers to the contractor’s

failure “to adhere to any provision of this Contract.” Thus, in the

abstract, Article 15.5.10 could include Torres’s failure to follow

pricing procedures. Western does not explain what LAUSD did

to make good any such deficiency, however. The only action

LAUSD has taken is this lawsuit, and the language of the

preamble to Articles 15.5.13 through 15.5.16 indicates lawsuits

are not included in those options. Further, the activity described

in Article 15.5.15 -- making good a deficiency and then charging

the contractor, construction or retention funds and/or the

performance bonds for the work -- is not the equivalent of a

lawsuit. Thus, LAUSD was not required to give notice by the

terms of the General Conditions.

Contrary to Western’s suggestion, there is no requirement

under California law requiring notice to the surety. After citing

federal and out-of-state cases, Western contends “California

courts apply this reasoning. Since the bond usually requires the

41

owner to notify the surety of the contractor’s default under the

construction contract, notice of the principal’s default is a

material term of the bond and a condition precedent to the

surety’s liability.” We have no doubt California courts apply the

identified reasoning in cases in which there is an applicable

contractual notice requirement. California law, however,

expressly provides: “A surety who has assumed liability for

payment or performance is liable to the creditor immediately

upon the default of the principal, and without demand or notice.”

(Civ. Code, § 2807.) Thus, “[a]bsent a contract provision, the

surety is not entitled to notice of the principal’s default.”

(9 Miller & Starr, Cal. Real Estate (4th ed.2020) § 32.100.)

Western has not shown there is an applicable notice provision

which LASUD failed to follow and so its claim fails.

C. Western Failed To Show That LAUSD’s Damages

Were Not Recoverable Under Westerns’s Bonds.

Western contends that LAUSD seeks “overpayment”

damages and such damages are not recoverable under the bonds.

Western does not cite any specific provisions of the bonds which

bar such recovery. It spends almost five pages of argument on

general legal principles concerning changes in the relationship

between the contracting parties, the role of contract funds as

security and the effect of premature payments concerning

premature payment of contract funds. It barely explains the

application of these broad principles to the facts of this case.

Western’s first legal discussion states: “Under settled

principals of suretyship, a surety is discharged or exonerated

from its bond obligations when there is a material alteration of

42

the principal obligation. ([Civ. Code, § 2819;16 R. P.] Richards,

Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146,

154 [(R. P. Richards)]). . . . ‘A material alteration is one that

works some change in the rights, interests, or obligations of the

parties to the writing.’ (Hill & Morton, Inc. v. Coughlin (1963)

214 Cal.App.2d 545, 549 [(Hill & Morton)].) [¶] In addition to

any material alteration, ‘Civil Code § 2819 exonerates a surety if

the creditor . . . impairs or suspends the creditor’s “remedies or

rights” against the debtor.’ (Bennett v. Leatherby (1992)

3 Cal.App.4th 449, 452 [(Bennett)].)”

Western does not explain how these general rules apply to

the facts of the case. In R. P. Richards, the promisee (a

subcontractor) and the principal (the general contractor) entered

into a settlement and release of the subcontractor’s claim against

the general without the surety’s knowledge or consent; thereafter

the subcontractor continued to prosecute its claim against the

surety. (R. P. Richards, supra, 83 Cal.App.4th at p. 150.)

Bennett involves a similar settlement of claims and a release.

(Bennett, supra, 3 Cal.App.4th at p. 451.) Hill & Morton involves

a change in method of payment by a retailer so that its

wholesaler lost its right to seek payment directly from the

retailer’s customers. (Hill & Morton, supra, 214 Cal.App.2d at

p. 549.) This case, of course, does not involve a settlement and

release or a loss of assigned payments. Western turns

16 Civil Code section 2819 provides: “A surety is exonerated,

except so far as he or she may be indemnified by the principal, if

by any act of the creditor, without the consent of the surety the

original obligation of the principal is altered in any respect, or the

remedies or rights of the creditor against the principal, in respect

thereto, in any way impaired or suspended.”

43

immediately to a discussion of collateral and “overpayment” so

perhaps it sees a connection there. We do not.

Western discusses the issue of collateral only in general

terms, stating the general proposition that “[c]ontract funds in

the possession of an obligee are collateral security to protect the

surety against loss in the event its principal defaults.” This is an

inaccurate summary of the dicta in Cates Construction, Inc. v.

Talbot Partners (1999) 21 Cal.4th 28 (Cates). The phrase

“collateral security” does not appear in Cates. Perhaps Western

is referring to the court’s statement that “it is common for

construction contracts to contain terms that protect an owner’s

construction funds.” (Id. at p. 55.) If so, Western has not

identified any of the specific terms which it claims protected the

construction funds in this case, or explained how those terms

were intended to protect it.

Western also argues that “overpayment” exonerates a

surety. All California cases cited by Western to support this

argument in fact refer to “premature” payments.17 As Western

recognizes, premature payments occur when money which is

intended to be kept by one party until a specific milestone is

reached, is instead released before that milestone, which is often

completion of some phase of work. (County of Glenn v. Jones

(1905) 146 Cal. 518 [contractor asked owner to alter terms of

contract and pay contractor before all materials were delivered;

17 In its reply brief, Western provides a quote from Cates,

which uses the term “overcharging” but does not explain why it

failed to cite Cates on the topic of overcharging in its opening

brief. In any event, the statement in Cates is dicta, and in

context refers to premature payments. (Cates, supra, 21 Cal.4th

at pp. 55–56.)

44

contractor did so]; Siegel v. Hechler (1919) 181 Cal. 187, 190 [the

contractor “had the right to pay these bills at the time they were

paid” and so the payments were not premature]; Burr v. Gardella

(1921) 53 Cal.App. 377, 387–388 [payments were made

“according to the requirements of the contract as to when certain

payments should be made” and so were not premature]; see

American Insurance Co. v. Heritage Construction Corp. (N.D.Cal.

1966) 268 F.Supp. 336, 343 [premature payment claim involved

alleged premature disbursal of funds from a specified security

fund “which the surety stipulated should be kept on hand

pending the lien filing period”].)

Western does not point to any specific payment milestones

here which were tied to correct pricing of the Job Order, and for

this reason alone its analogy is inapt. We see no similarity

between an owner’s payment of an inflated price contained in the

contract documents, apparently made on the schedule set forth in

those documents, and the payment of a proper sum in disregard

of the payment schedule in the contract documents.

Rather than develop this analogy, Western reverts to its

use of the term “overpayment” and argues that if LAUSD had

followed its own guidelines for job order approval and for owner’s

review and approval of payment applications submitted on the

project, LAUSD would not have made any overpayments.

Western argues it did not bond LAUSD’s errors, omissions,

neglect or mistakes.

Western did bond Torres’s performance of all the terms and

conditions of its contract with LAUSD, and those terms and

45

conditions include properly pricing its proposals. 18 Western does

not point to any evidence, let alone undisputed evidence, that

LAUSD failed to follow its guidelines for job order approval or

that if LAUSD had followed the guidelines, Torres’s breach of

contract in pricing the items would have been discovered.

Western’s references to the owner’s review of payment

applications are made entirely without context. Western’s only

record citation is to its directed verdict on this topic, but those

pages contain only general legal arguments. Western has

forfeited this claim.

Finally, the entire concept of overpayment (or premature

payment) as a bar to recovery of overcharges or overpricing is

inconsistent with the audit provisions of the General Conditions.

Article 6.55 requires a contractor to “maintain . . . records and

allow . . . audits for a period of up to four (4) years following the

date the Notice of Completion is recorded.” If an audit uncovers

overcharging or overpricing in excess of 1 percent of the total

contract amount, that “overpricing or overcharges . . . by the

18 Western’s bonds provide: “The condition of this obligation is

that if the CONTRACTOR shall in a workmanlike manner

promptly, competently, and faithfully perform the Work and all of

the terms, conditions and provisions of the Contract, in strict

conformity therewith, then this Bond shall be null and void;

otherwise, this Bond shall remain in full force and effect.”

Where the bond is “explicit” “in tying [the surety’s]

obligations under the bond to [the contractor’s] performance or

nonperformance of all the covenants, conditions and agreements

of the underlying contract” then the bond does guarantee

performance of all covenants, conditions and agreements.

(Fort Bragg Unified School Dist. v. Colonial American Casualty &

Surety Co. (2011) 194 Cal.App.4th 891, 911-912.)

46

CONTRACTOR . . . shall be reimbursed to [LAUSD] by the

Contractor.” This audit provision, like all terms and conditions of

the contract, was incorporated into the bonds.

By specifying that LAUSD could recover for overcharging

or overpricing up to four years after the Notice of Completion, the

provision clearly contemplates an audit may occur well after the

physical work on the project is complete. This provision would be

meaningless if, as Western’s argument would require, LAUSD

could only recover for overcharges or overpricing if it had

somehow presciently not paid those amounts before undertaking

an audit. The audit provision contains no requirement for

LAUSD to withhold funds or final payment until it completes an

audit of a project for overcharging or overpricing.

VII. The Trial Court Did Not Abuse Its Discretion In

Awarding Attorney Fees To LAUSD.

LAUSD sought a total of $2,123,277.20 in attorney fees for

its six years of work on this case. The fee motion was supported

by the declaration of lead attorney David Huff and very heavily

redacted billing statements. Western claims that the Huff

declaration does not have enough detail to permit an evaluation

of or opposition to the fee request and the bills are so heavily

redacted as to be meaningless. Western contends the trial court

abused its discretion by “rubber stamping” the fee request and

violated Western’s right to due process.

We review the trial court’s determination of a reasonable

attorney fee for abuse of discretion. (Syers Properties III, Inc. v.

Rankin (2014) 226 Cal.App.4th 691, 697 (Syers Properties III).)

“ ‘[T]he “ ‘experienced trial judge is the best judge of the

value of professional services rendered in his court, and while his

judgment is of course subject to review, it will not be disturbed

47

unless the appellate court is convinced that it is clearly

wrong.’ ” ’ ” (Syers Properties III, supra, 226 Cal.App.4th at

p. 698.) Generally “the trial judge [who] presided over the entire

matter . . . [is] well able to evaluate whether the time expended

by counsel in this case, given its complexity and other factors,

was reasonable.” (Id. at p. 700.)

LAUSD submitted only one declaration in support of its fee

motion, the declaration of David Huff, its lead attorney. Mr. Huff

described his own work as follows: “I was the primary trial

attorney; developed strategy in this litigation and for trial;

prepared witnesses and exhibits for trial; and prepared for and

attended the mediation and hearings for most motions in this

case.” Mr. Huff billed 734.5 hours.

The Huff declaration also described the work of other

attorneys:

“Mr. Barr responded to the voluminous discovery

propounded by Defendants; opposed motions to compel;

propounded discovery on Defendants; and took or defended over

thirty depositions in this case. Mr. Barr also prepared witnesses

for trial, attended the trial, and opposed the motions for directed

verdict brought by Defendants.” Barr billed 2266.4 hours.

“Ms. Houle-Sandoval worked to develop the discovery and

trial· strategy; assisted in the production of tens of thousands of

documents for the District; responded to the voluminous

discovery propounded by Defendants and drafted discovery

propounded by the District; assisted in preparing for numerous

depositions; reviewed the thousands of documents produced by

Defendants; identified and prepared the witnesses and exhibits

for trial; drafted and opposed the 18 total motions in limine;

prepared the joint long cause binders submitted to the Court on

48

behalf of all parties; prepared the three motions for summary

adjudication brought by the District and opposed the two motions

for summary adjudication/summary judgment; opposed the

motions to compel brought by Defendants; attended the trial;

drafted motions to exclude witnesses during trial; drafted the

District’s motion for directed verdict; and prepared for the bench

trial on Defendants’ offset claims.” Ms. Houle-Sandoval billed

3731.8 hours.

“Niv Davidovich assisted in drafting the District’s motions

for summary adjudication on its claims, as well as opposing

Defendants’ motions for summary adjudication/motion for

summary judgment, and assisted in developing general litigation

strategy.” He billed 634.4 hours.

The Huff declaration also described the work of the head

paralegal, Kelly Lucas: “Ms. Lucas was instrumental in

organizing and maintaining the large litigation files; scheduling

and attending site inspections at the cafeterias; reviewing and

organizing documents during the discovery process; assisting

with the production of expert documents; reviewing and

organizing documents and voluminous exhibits for the trial;

preparing the exhibit list for trial; preparing and assembling key

information for use during depositions and witness examinations

at trial; and assisting in the preparation of this Motion.”

Ms. Lucas billed 2223.3 hours.

At the hearing on the fee motion, Western indicated it did

not have a problem with the fees for Huff, Barr and Sandoval,

whom Western described as the three principal attorneys for

LAUSD. LAUSD lead attorney Huff then pointed out that

attorney Niv Davidovich was very involved in the summary

adjudications motions and “appeared at the hearing as reflected

49

in the court’s minute order.” The court then noted that those four

attorneys plus lead paralegal Kelly Lucas accounted for about

$1.95 million of the $2,123,277.20 sought by LAUSD.19 The

court’s calculation of the total fees for those five persons indicates

it accepted all their work as necessary.20 That left $174,430.08 in

miscellaneous fees. The trial court awarded a total of $2.1

million in attorney fees. That $23,277.20 decrease represents a

13 percent reduction of the $174,430.08 in miscellaneous fees.

The trial court was not asked for and so did not provide a

statement of decision. Western contends that where a trial court

does not explain how and why it reached its fee award, a

heightened sense of arbitrariness is inescapable.

The court revealed some of its reasoning and concerns

during the hearing. The court explained: “I have a moderately

intimate familiarity with the history of this case because it’s been

before me its entire duration. And I have been through multiple

summary judgment or summary adjudication motions as to

various portions of this and also presided at trial.”

Turning to the merits of the motion. the court stated:

“There seem to be two principal objections raised. One is the

number of people who at one time or another have worked on

different pieces of this.” The court explained that “[h]aving in my

own practice been involved in . . . similarly-intense, dollar-heavy,

19 The fees for David Huff ($181,954.02), Colin Barr

($557,221.20), Kelly Houle-Sandoval ($846,743.30), Niv

Davidovich ($140,233.50) and Kelly Lucas ($222,695.10) total

$1,948,847.12.

20 Defense counsel did not discuss the hours for paralegal

Lucas.

50

highly-contested litigation, and including substantial and

prolonged jury trials, I do have a familiarity with what it takes.”

The court concluded: “I understand why people would be pulled

in here and there to help with little pieces of it. But I do see

there is only . . . three attorneys, who are doing the bulk of this.

So the number of people involved really doesn’t bother me.”

The court then identified “the other question which really is

the substantive issue is we have all these billing statements.

Great, I love billing statements. I like to see what is there, but

some of these are so heavily redacted that . . . it’s very, very, very

difficult to tell how much time was spent and for what.” The

court stated: “This makes it difficult for me to analyze. Given the

stakes in this case, given the intensity with which it was

litigated, given the duration of the case, given the volume of

discovery that was involved in this case. I am hardly shocked by

the dollar total.” The court added: “In the best of all possible

worlds, I would be a lot happier to see a set of bills that only

redacted the subject of attorney-client communications.” The

court then asked if there was another way to approach the fees.

Mr. Huff replied: “What I would say is that, you know, the

heartland of the court’s inquiry today is does [the] value of the

services rendered does that equate to the fee requested.” The

court nevertheless expressed concern that the redacted bills

might conceal inadvertent duplicate billing. Turning to one set of

task entries for one of the principal attorneys, the court stated:

“Now I appreciate that the time for different tasks has been

broken out. But we have several of these that are for the same

amount of time, and I have in the past reviewing attorneys’ fees

bills found things that are essentially duplicate entries that were

51

not caught. And one of the things that this makes it very difficult

to do is say are any of these duplicate entries.”

Western agreed that potential duplication was a concern,

and also expressed concern that it was not possible to tell if the

work was “reasonably necessary [and] was efficient.” The court

expressed some reservations about these additional concerns,

replying “I don’t know.”

These remarks show the court was familiar with the

amount of work and cost of a case like this, found the total

amount of LAUSD’s attorney fees reasonable, and had some

concerns about duplicate time entries. Western effectively

conceded the $1.95 million billed by four attorneys and the head

paralegal. Its concern was with the other attorneys who billed

smaller amounts of time but whose fees still totaled about

$174,000. While the trial court did not share all of Western’s

concerns, the court was concerned about duplicative billing based

on its own reading of the bills. The court reduced the remaining

fees by about 13 percent, which is a substantial amount. It is

reasonable to infer that this reduction reflected the trial court’s

concern about potentially duplicative entries. We see no abuse of

discretion in the trial court’s decision.

We see no merit in Western’s claim that it was denied due

process because it was unable to effectively challenge the

attorney fees amount due to the redacted billing. Western and

Torres shared counsel, and so that counsel was familiar with all

the defense work involved in the case and could have used those

numbers as a base to evaluate the overall hours billed by

LAUSD, and, in many cases, the appropriate hours for particular

tasks. Western had, or should have had, copies of all the

pleadings in the case, a record of the volume of discovery, and the

52

deposition and trial transcripts. Western could have hired an

expert to use that information to estimate the appropriate hours

for the work involved. Presumably that is what an expert would

have done even if the bills were complete. Significantly, this is

not a case with a great variation in the attorney’s hourly rates,

and an expert could have simply categorized the work into one of

two hourly rates ($259 or $240)21

DISPOSITION

The judgment is affirmed. LAUSD is awarded costs on

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

21 A few attorneys billed a small number of hours at $205 per

hour.

53

Filed 11/17/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LOS ANGELES UNIFIED B291940

SCHOOL DISTRICT,

(Los Angeles County

Plaintiff and Respondent, Super. Ct. No. BC485280)

v. ORDER CERTIFYING OPINION

FOR PUBLIATION

TORRES CONSTRUCTION

CORP. et al., [NO CHANGE IN JUDGMENT]

Defendants and Appellants.

THE COURT:

The opinion in the above-entitled matter filed on October 26, 2020, was

not certified for publication in the Official Reports. For good cause, it now

appears that the opinion should be published in the Official Reports and it is

so ordered.

There is no change in the judgment.

________________________________________________________________________

GRIMES, Acting P. J. STRATTON, J. WILEY, J.