California Civil Jury Instructions (CACI) (2017)

4520. Contractor’s Claim for Changed or Extra Work

Download PDF
4520.Contractor’s Claim for Changed or Extra Work
[Name of plaintiff] claims that [name of defendant] required [him/her/it]
to perform [changed/ [or] extra] work beyond that required by the
contract. [Name of plaintiff] claims that [[he/she/it] should be
compensated/ [and] should have been given a time extension] [under the
contract].
To succeed on this claim, [name of plaintiff] must prove all of the
following:
1. That the [changed/ [or] extra] work was [not included in/ [or] in
addition to that required under] the original contract;
2. That [name of defendant] directed [name of plaintiff] to perform
the [changed/ [or] extra] work;
3. That [name of plaintiff] performed the [changed/ [or] extra]
work; and
4. That [name of plaintiff] was harmed because [name of defendant]
required the [changed/ [or] extra] work.
New December 2010
Directions for Use
This instruction may be used for claims for changed or extra work by the
contractor against the owner, or for analogous claims asserted by a subcontractor
against the general contractor.
Most construction contracts allow the owner to direct changes in the work and
provide that the contractor will be paid and sometimes receive a time extension for
performing the changed or extra work. Under certain circumstances, extra or
changed work may be priced in the contract (e.g., by unit price or agreed labor
rates and material costs). If so, include “under the contract” in the opening
paragraph.
This instruction is based on CACI No. 303, Breach of Contract—Essential Factual
Elements, and CACI No. 350, Introduction to Contract Damages. If the claim is
based on an implied contract for the work, also give CACI No. 305, Implied-in-
Fact Contract.
Sources and Authority
• “Extra work as used in connection with a building contract means work arising
outside of and entirely independent of the contract—something not required in
its performance, not contemplated by the parties, and not controlled by the
contract.” (C.F. Bolster Co. v. J.C. Boespflug Constr. Co. (1959) 167 Cal.App.2d
143, 151 [334 P.2d 247].)
1133
0021
• “Where the extra work and materials furnished are of the same character as the
work and materials named in the contract, the general rule is that they are to be
paid for according to the schedule of prices fixed by the contract.” (Frank T.
Hickey, Inc. v. Los Angeles Jewish Community Council (1954) 128 Cal.App.2d
676, 684 [276 P.2d 52].)
• “Where the extras are of a different character from the work called for in the
contract and no price is agreed on for extra work, their reasonable value may be
recovered.” (C.F. Bolster Co.,supra, 167 Cal.App.2d at p. 151.)
• “What Coleman [Coleman Engineering Co. v. North American Aviation, Inc.
(1966) 65 Cal.2d 396 [55 Cal. Rptr. 1, 420 P.2d 713]] does not expressly
address is whether a contractor faced with a substantial change in its originally
contracted scope of work, who is unable to successfully negotiate a price for
that additional work, may elect to continue to work and reserve its right to
subsequently obtain a judicial determination as to the value of the changes. The
trial court concluded that it may and we agree. So long as the other contracting
party continues to demand performance of the increased scope of work, and in
the absence of any conflicting provision of the contract, the contractor may
continue to work after unsuccessful negotiations and subsequently recover the
value of that work. To hold otherwise would compel a contractor to walk off
the job in the face of what it believes to be major changes in the scope of work
required of it, with significant consequences if its judgment is later proven
wrong, or alternatively forfeit any right to seek compensation for that work,
regardless of the extent of the additional burdens imposed. . . . The
interpretation urged by [defendant] is also impractical and economically
inefficient. Construction projects pose complex time management challenges,
requiring multiple contractors and subcontractors to coordinate their efforts as
numerous design revisions and change orders inevitably arise. To complete
these projects efficiently, the parties must be able to continue working despite
contract disputes with reasonable assurances of the ability to ultimately obtain a
fair resolution of those disputes. (Ted Jacob Engineering Group, Inc. v. The
Ratcliff Architects (2010) 187 Cal.App.4th 945, 966 [114 Cal.Rptr.3d 644].)
Secondary Sources
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.38 et seq.
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.62 et seq.
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.66 et seq.
1 Stein, Construction Law, Ch. 4, Modification and Termination of Construction
Contracts, ¶ 4.06 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
CACI No. 4520 CONSTRUCTION LAW
1134
0022
§§ 104.15, 104.215 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.40 (Matthew Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts,
§ 30D.14 (Matthew Bender)
10 Miller & Starr, California Real Estate (Thomson Reuters West 3d ed.) Ch. 27,
Construction Law and Contracting, §§ 27:61, 27:69
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 7, Public Contracts, § 7:34
1 Bruner & O’Connor on Construction Law (Thomson Reuters West 2002) Ch. 4,
Contract “Changes” and “Extras,” §§ 4:23, 4:41
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause
CONSTRUCTION LAW CACI No. 4520
1135
0023