CACI No. 4510. Breach of Implied Covenant to Perform Work in a Good and Competent Manner - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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4510.Breach of Implied Covenant to Perform Work in a Good and
Competent Manner - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] failed to [perform the
work for the [project/describe construction project, e.g., kitchen remodeling]
competently/ [or] use the proper materials for the [project/ e.g., kitchen
remodeling]]. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] failed to [perform [his/her/nonbinary
pronoun/its] work competently/ [or] provide the proper materials]
by [describe alleged breach, e.g., failing to apply suffıcient coats of
paint or failing to complete the project in substantial conformity with
the plans and specifications]; and
2. That [name of plaintiff] was harmed by [name of defendant]’s
failure.
New December 2010; Revised June 2011, December 2014
Directions for Use
This instruction is for use if an owner claims that the contractor breached the
contract by failing to perform the work on the project competently so that the result
did not meet what was expected under the contract. This is sometimes referred to as
the implied covenant that the work performed will be fit and proper for its intended
use. (See Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d 552].) The
implied covenant encompasses the quality of both the work and materials. (See Aced
v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 582-583 [12 Cal.Rptr. 257,
360 P.2d 897].)
Also give CACI No. 303, Breach of Contract - Essential Factual Elements.
The word “project” may be used if the meaning will be clear to the jury.
Alternatively, describe the project in the first paragraph, and then select a shorter
term for use thereafter.
This instruction is based on CACI No. 325, Breach of Covenant of Good Faith and
Fair Dealing - Essential Factual Elements. It should be given in conjunction with
CACI No. 4530, Owner’s Damages for Breach of Construction Contract - Work
Does Not Conform to Contract, which provides the proper measure of damages
recoverable for a breach of the implied covenant to perform work fit for its intended
use.
This instruction may be adapted for use with a claim by a homeowner who
purchased the property from the developer-owner against the contractor for
construction defects. The claim would be based on the homeowner’s status as a
third-party beneficiary of the builder-developer contract. (See Burch v. Superior
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Court (2014) 223 Cal.App.4th 1411, 1422-1423 [168 Cal.Rptr.3d 81], disapproved
on other grounds in McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241,
258 [227 Cal.Rptr.3d 191, 408 P.3d 797]; see also Gilbert Financial Corp. v.
Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 69-70, 145 Cal.Rptr. 448
[homeowner can be beneficiary of contractor-subcontractor contract].)
Sources and Authority
• “[A]lthough [general contractor] . . . had a contractual relationship with the
City, it also had a duty of care to perform in a competent manner.” (Willdan v.
Sialic Contractors Corp. (2007) 158 Cal.App.4th 47, 57 [69 Cal.Rptr.3d 633].)
• “The defect complained of and the alleged breach of the warranty relate solely
to fabrication and workmanship - the seams opened and the edges raveled. The
failure of the carpet to last for the period warranted was occasioned by the
defective sewing of the seams and binding of the edges, constituting a breach of
the warranty as it related to good workmanship in assembling and installing it,
but not as to the quality of the carpet itself.” (Southern California Enterprises,
Inc. v. D. N. & E. Walter & Co. (1947) 78 Cal.App.2d 750, 753-754 [178 P.2d
785], superseded by statute as stated in Cardinal Health 301, Inc. v. Tyco
Electronics Corp. (2008) 169 Cal.App.4th 116, 132 [87 Cal. Rptr. 3d 5].)
• “[Subcontractor] agreed to perform the waterproofing and drainage work on the
retaining walls built by [contractor] and had the duty to perform those tasks in a
good and workmanlike manner.” (Stonegate Homeowners Assn. v. Staben (2006)
144 Cal.App.4th 740, 749 [50 Cal.Rptr.3d 709].)
• “ ‘Accompanying every contract is a common-law duty to perform with care,
skill, reasonable expedience, and faithfulness the thing agreed to be done, and a
negligent failure to observe any of these conditions is a tort as well as a breach
of the contract.’ The rule which imposes this duty is of universal application as
to all persons who by contract undertake professional or other business
engagements requiring the exercise of care, skill and knowledge; the obligation
is implied by law and need not be stated in the agreement.” (Kuitems,supra, 104
Cal.App.2d at p. 485.)
• “Obviously, the statement in the written contract that it contains the entire
agreement of the parties cannot furnish the appellants an avenue of escape from
the entirely reasonable obligation implied in all contracts to the effect that the
work performed ‘shall be fit and proper for its said intended use’ . . . .”
(Kuitems,supra, 104 Cal.App.2d at p. 485.)
• “[N]o warranty other than that of good workmanship can be implied where the
contractor faithfully complies with plans and specifications supplied by the
owner . . . .” (Sunbeam Constr. Co. v. Fisci (1969) 2 Cal.App.3d 181, 186 [82
Cal.Rptr. 446], internal citations omitted.)
• “[T]here is implied in a sales contract for newly constructed real property a
warranty of quality and fitness. . . . ‘[T]he builder or seller of new
construction - not unlike the manufacturer or merchandiser of personalty - makes
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implied representations, ordinarily indispensable to the sale, that the builder has
used reasonable skill and judgment in constructing the building.’ . . . ‘[W]e
conclude builders and sellers of new construction should be held to what is
impliedly represented - that the completed structure was designed and
constructed in a reasonably workmanlike manner.’ ” (Burch,supra, 223
Cal.App.4th at p. 1422, disapproved on other grounds in McMillin Albany LLC,
supra, 4 Cal.5th at p. 258, internal citations omitted.)
• “[A] contract to build an entire building is essentially a contract for material and
labor, and there is an implied warranty protecting the owner from defective
construction. Clearly, it would be anomalous to imply a warranty of quality
when construction is pursuant to a contract with the owner - but fail to recognize
a similar warranty when the sale follows completion of construction.” (Pollard v.
Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378-379 [115 Cal.Rptr. 648, 525
P.2d 88], internal citations omitted.)
• Several cases dealing with construction contracts and other contracts for labor
and material show that ordinarily such contracts give rise to an implied warranty
that the product will be fit for its intended use both as to workmanship and
materials. These cases support the proposition that although the provisions of the
Uniform Sales Act with respect to implied warranty (Civ. Code, §§ 1734-1736)
apply only to sales, similar warranties may be implied in other contracts not
governed by such statutory provisions when the contracts are of such a nature
that the implication is justified. . . . [¶] The reference in the stipulation to
merchantability, a term generally used in connection with sales, does not
preclude reliance on breach of warranty although the contract is one for labor
and material. With respect to sales, merchantability requires among other things
that the substance sold be reasonably suitable for the ordinary uses it was
manufactured to meet. The defect of which [plaintiff] complains is that the
tubing was not reasonably suitable for its ordinary use, and his cause of action
may properly be considered as one for breach of a warranty of merchantability.
There is no justification for refusing to imply a warranty of suitability for
ordinary uses merely because an article is furnished in connection with a
construction contract rather than one of sale. The evidence, if taken in the light
most favorable to [plaintiff], would support a determination that there was an
implied warranty of merchantability.” (Aced,supra, 55 Cal.2d at p. 583, internal
citations omitted.)
• “[P]ublic policy imposes on contractors in various circumstances the duty to
finish a project with diligence and to avoid injury to the person or property of
third parties.” (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1450 [37
Cal.Rptr.2d 790].)
Secondary Sources
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.93
2 Stein, Construction Law, Ch. 5B, Contractor’s and Construction Manager’s Rights
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and Duties, ¶ 5B.01[2][b] (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.42
(Matthew Bender)
29 California Legal Forms, Ch. 89, Home Improvement and Specialty Contracts,
§ 89.14 (Matthew Bender)
11 Miller & Starr, California Real Estate, § 29:5 (Ch. 29, Defective Construction)
(3d ed. 2008) (Thomson Reuters)
Acret, California Construction Law Manual § 5:39 (Ch. 5, Construction Defects)
(6th ed. 2005) (Thomson Reuters)
3 Bruner & O’Connor on Construction Law, §§ 9:67-9:70 (Ch. 9, Warranties)
(Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 5,
Breach of Contract by Contractor, § 5.01
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