California Civil Jury Instructions (CACI) (2017)

4521. Owner’s Claim That Contract Procedures Regarding Change Orders Were Not Fol- lowed

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4521.Owner’s Claim That Contract Procedures Regarding
Change Orders Were Not Followed
The contract between the parties provided for certain procedures that
had to be followed if [name of plaintiff] wanted to be paid for changed
or additional work that was not required by the contract. These
procedures are called “change-order requirements.” [The change-order
requirements of the contract provide as follows: [specify].]
[Name of plaintiff] seeks additional compensation beyond that provided
for in the contract for [specify, e.g., fill and grading] because [specify, e.g.,
the soil conditions at the project site were not as represented]. [Name of
defendant] claims that [name of plaintiff] failed to comply with the
contract’s change-order requirements, and that therefore [he/she/it] is
not entitled to payment for the changed or additional work that [he/she/
it] performed.
To obtain additional compensation, [name of plaintiff] must prove that
[he/she/it] [followed/was excused from having to follow] the change-
order requirements.
New December 2010
Directions for Use
This instruction should be given if the owner claims that the contract required the
contractor to request a change order for any claimed changed or additional work
before performing the work as a condition precedent to being permitted to assert a
claim for additional compensation. It is an adaptation of CACI No. 321, Existence
of Condition Precedent Disputed, and CACI No. 322, Occurrence of Agreed
Condition Precedent.
The owner’s claim for strict compliance with the contract’s change-order
procedures is potentially subject to several recognized defenses, including waiver
(see CACI No. 4522, Waiver of Written Approval or Notice Requirements for
Changed or Additional Work), estoppel, and oral modification (see CACI No. 313,
Modification; Civ. Code, § 1698; Girard v. Ball (1981) 125 Cal.App.3d 772, 785
[178 Cal.Rptr. 406].) If one of these defenses is asserted, select “was excused from
having to follow” in the last paragraph and give the appropriate instruction on the
excuse from performance that is at issue.
Sources and Authority
• Modification of Contract. Civil Code section 1698.
“California courts generally have upheld the necessity of compliance with
contractual provisions regarding written ‘change orders’.” (Weeshoff Constr. Co.
v. Los Angeles County Flood Control Dist. (1979) 88 Cal.App.3d 579, 589 [152
Cal.Rptr. 19].)
• “It is frequently provided that change orders for extra work must be in writing.
In the absence of a waiver or modification, no recovery can be had for
alterations or extra work performed without compliance with such a provision.”
(G. Voskanian Construction, Inc. v. Alhambra Unified School Dist. (2012) 204
Cal.App.4th 981, 987 [139 Cal.Rptr.3d 286], original italics.)
• “Compliance with contractual provisions for written orders is indispensible in
order to recover for alleged extra work.” (Acoustics, Inc. v. Trepte Construction
(1971) 14 Cal.App.3d 887, 912 [92 Cal.Rptr. 723].)
• “It is elementary a plaintiff suing for breach of contract must prove it has
performed all conditions on its part or that it was excused from performance.
Similarly, where defendant’s duty to perform under the contract is conditioned
on the happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524], internal citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 155
1California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.44
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.65, 6.67
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.68
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, ¶ 3.05
(Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§ 104.15 (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)
Matthew Bender Practice Guide: California Contract Litigation, Ch.15, Attacking or
Defending Existence of Contract—Failure to Comply With Applicable Formalities,
10 Miller & Starr, California Real Estate, Ch. 27, Construction Law and
Contracting, §§ 27:61, 27:65 (Thomson Reuters 3d ed.)
Acret, California Construction Law Manual, Ch. 7, Public Contracts, § 7:34
(Thomson Reuters 6th ed. 2005)
1 Bruner & O’Connor on Construction Law, Ch. 4, Contract “Changes” and
“Extras,” §§ 4:35–4:47 (Thomson Reuters 2002)
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause,
pp. 100–103