Byson v. City of Los Angeles

• Decision Date: 27 March 1957
• Citation: 308 P.2d 765,149 Cal.App.2d 469
• Court: California Court of Appeals Court of Appeals
• Parties: C. G. BYSON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation; Service Construction Co., a California corporation, et al., Defendants. City of Los Angeles, a municipal corporation, Respondent. Civ. 21906.

Page 765

308 P.2d 765

149 Cal.App.2d 469

C. G. BYSON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation; Service Construction Co., a California corporation, et al., Defendants City of Los Angeles, a municipal corporation, Respondent.

Civ. 21906.

District Court of Appeal, Second District, Division 3, California.

March 27, 1957.

Rehearing Denied April 19, 1957.

Hearing Denied May 22, 1957.

Grant & Popovich, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Alfred E. Rogers and John F. Feldmeier, Deputy City Attys., Los Angeles, for respondent.

SHINN, Presiding Justice.

The present action is against the City of Los Angeles to recover $13,042.51 damages allegedly sustained due to the city's breach of a construction contract awarded plaintiff under authority of the City Charter and the Improvement Act of 1911, Streets and Highways Code, section 5000 et seq. The gravamen of the amended complaint is that the city wrongfully compelled plaintiff to perform certain repair work not contemplated by his contract; recovery is sought for $11,741.23, the cost of said repairs, and for $1,301.28 interest which plaintiff paid for the use of money he was obliged to borrow in order to complete said repairs. Trial was to the court. Before the introduction of any evidence, defendant made motions to exclude evidence, for summary judgment and for judgment on the pleadings; the court granted these motions and ordered a nonsuit. Plaintiff appeals.

The amended complaint contains two causes of action. The material allegations of the first cause of action are the following: Plaintiff, a licensed contractor, entered into a written agreement on March 31, 1952 with the Board of Public Works of the City of Los Angeles whereby he agreed to grade and construct concrete sidewalks, curbs, driveways and a roadway within the 116th Street and Anza Avenue Improvement District in accordance with detailed plans and specifications which were made a part of the agreement; plaintiff performed the work in the presence of city inspectors in accordance with the plans and specifications and all of said work was accepted by them. On August 19, 1953 he notified defendant that the work had been completed in accordance with the plans and specifications and requested a final inspection; defendant thereupon informed him that his work would not be accepted until he made certain repairs; plaintiff at first refused to comply with this demand on the ground that he had fully performed all the requirements of the contract, but since the contract provided that he could not obtain compensation until the job was accepted as complete, plaintiff made the repairs under protest informing defendant that he reserved the right to seek additional compensation for the repair work he was wrongfully required to do; its cost was $11,741.23, which plaintiff was obliged to borrow; interest on the loan totaled $1,308.28. On December 21, 1953, plaintiff filed a claim for the cost of the repair work with the city clerk pursuant to the provisions of sections 362, 363 and 376 of the City Charter; the clerk referred the claim to the city council, which rejected it on April 16, 1954. On May 21, 1954, plaintiff filed a claim for the interest he paid on the loan; this claim was rejected by the city council after the commencement of the present action. On February 19, 1954 all the construction work was accepted by the city.

The second cause of action is a common count for work, labor and materials furnished. The answer denies that plaintiff had completed the work according to the terms of the contract at the time he requested a final inspection; it also denies that the instruments filed with the city clerk constitute claims as required by the City Charter.

Defendant's motions to exclude evidence, for summary judgment and for judgment on the pleadings were predicated on the following grounds, viz.: The city is exonerated from liability for damages by the terms of the contract; the amended complaint does not allege any breach of contract by the city; plaintiff is a volunteer and is not entitled to recover for the additional work; the original complaint alleged that plaintiff's damages were occasioned by the fault of a subcontractor and he is bound by his former pleading; defendant is not liable in quantum meruit; and that if acceptance of plaintiff's work was wrongfully refused, his remedy was an appeal to the city council from such unjustified refusal. Streets and Highways Code, sections 5366-8.

Inasmuch as defendant's motions were tantamount to a general demurrer, our review is limited to the question whether, under the facts pleaded, the amended complaint states the substance of a cause of action on any theory. Bice v. Stevens, 136 Cal.App.2d 368, 289 P.2d 95; Miller v. McLaglen, 82 Cal.App.2d 219, 186 P.2d 48, and cases therein collected.

The first question to be considered is the sufficiency of the complaint to allege a breach of contract on the part of the city. Defendant argues that the complaint does not state a cause of action for the reason that the contract, in conformity with the requirements of the Improvement Act, exempts it from liability for any portion of the expenses incurred by a contractor in the performance of his contract. In this connection, the city relies on section 5285 of the Streets and Highways Code. That section provides: 'The contract shall contain express notice that, in no case, except when it is otherwise provided by law or by charter will the city, or any officer thereof, be liable for any portion of the expense, nor for any delinquency of persons or property assessed.'

The exemption from liability is not a bar to the maintenance of the present action. The statute does not purport to relieve the city from liability for breach of contract; it simply states that the city may not be held accountable for the payment of the original contract price. Sec McBean v. City of San Bernardino, 96 Cal. 183, 186, 31 P. 49; Conlin v. Board of Supervisors, 99 Cal. 17, 23, 33 P. 753, 21 L.R.A. 474. The complaint does not seek recovery for sums alleged to be due under the contract. On the contrary, it proceeds on the theory that plaintiff is entitled to the damages occasioned by defendant's refusal to accept work which had been completed in accordance with the contract and its demand that he do other work not required by the agreement.

When a contractor has fully complied with the plans and specifications at the time he notifies the city of the completion of his job, it becomes the duty of the street superintendent or the engineer to accept his work, prepare an assessment for the sum specified in the contract, and file the assessment with the city clerk for action thereon by the legislative body. Streets and Highways Code, §§ 5360-5. If plaintiff had fully performed his contract on August 19, 1953, the date of his notice to defendant, defendant's refusal of his work and its...