California Civil Jury Instructions (CACI) (2017)

4522. Waiver of Written Approval or Notice Requirements for Changed or Additional Work

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4522.Waiver of Written Approval or Notice Requirements for
Changed or Additional Work
The contract between the parties required [name of plaintiff] [to obtain
[name of defendant]’s written approval/to give written notice to [name of
defendant]] in order to be paid for changed or additional work that [he/
she/it] performed.
[Name of defendant] claims that [name of plaintiff] failed to comply with
the contract’s [written approval/ notice] requirements, and that
therefore [name of plaintiff] is not entitled to payment for the changed or
additional work that [he/she/it] performed. [Name of plaintiff] claims
that [he/she/it] was not required to comply with the contract’s [written
approval/notice] requirement because [name of defendant] gave up [his/
her/its] right to insist on [written approval/notice]. Giving up a contract
right is called a “waiver.”
To succeed on this waiver claim, [name of plaintiff] must prove [by clear
and convincing evidence] that [name of defendant] freely and knowingly
gave up [his/her/its] right to require [name of plaintiff] to follow the
contract’s [written approval/notice] requirements.
A waiver may be oral or written or may arise from conduct that shows
[name of defendant] clearly gave up that right.
New December 2010; Revised June 2011
Directions for Use
This instruction is a variation of CACI No. 336, Affırmative Defense—Waiver. Use
of this instruction is almost certainly limited to private contract disputes. (See P&D
Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1344 [119
Cal.Rptr.3d 253] [public contract change-order requirements not subject to oral
modification or modification by conduct]; cf. Weeshoff Constr. Co. v. Los Angeles
County Flood Control Dist. (1979) 88 Cal.App.3d 579, 589 [152 Cal.Rptr. 19]
[public agency may waive written change order requirements].)
When a contractor asserts a claim for compensation for changed or additional work
(see CACI No. 4520, Contractor’s Claim for Changed or Extra Work), the owner
may assert that the contractor is not entitled to payment because it failed to obtain
the owner’s written approval or failed to give written notice before performing the
changed or additional work. (See CACI No. 4521, Owner’s Claim That Contract
Procedures Regarding Change Orders Were Not Followed.) The contractor is
entitled to counter this defense by showing that the owner expressly or impliedly
waived the contract’s requirements.
The general rule of contract law is that waiver must be proved by clear and
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convincing evidence. (Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108 [48 Cal.Rptr.
865, 410 P.2d 369].) Some construction law cases, however, have not mentioned
this requirement, though there was no discussion of the burden of proof. (See
Healy v. Brewster (1967) 251 Cal.App.2d 541, 552 [59 Cal.Rptr. 752]; Howard J.
White, Inc. v. Varian Associates (1960) 178 Cal.App.2d 348, 353–355 [2 Cal.Rptr.
871].) If the clear-and-convincing-evidence requirement is included, also give
CACI No. 201, More Likely True—Clear and Convincing Proof.
Sources and Authority
• Modification of Contract. Civil Code section 1698.
Enforceability of Change Orders. Business and Professions Code section 7159.6
(applicable to “home improvement contractors” as defined in Business and
Professions Code section 7150.1).
• “ ‘[W]aiver is the intentional relinquishment of a known right after knowledge
of the facts.’ . . . The burden . . . is on the party claiming a waiver of a right
to prove it by clear and convincing evidence that does not leave the matter to
speculation, and ‘doubtful cases will be decided against a waiver.’ . . . The
waiver may be either express, based on the words of the waiving party, or
implied, based on conduct indicating an intent to relinquish the right.” (Waller
v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 [44 Cal.Rptr.2d 370, 900
P.2d 619], internal citations omitted.)
• “It is settled law that the parties may by their conduct waive the requirement of
a written contract that no extra work shall be done except upon written
order. . . . [¶¶] ‘Waiver may be shown by conduct, and it may be the result of
an act which, according to its natural import, is so inconsistent with the intent
to enforce the right in question as to induce a reasonable belief that such right
has been relinquished.’ ” (Howard J. White, Inc.,supra, 178 Cal.App.2d at pp.
353–355.)
• “Where the terms of a written contract require that extra work be approved in
writing, such provision may be altered or waived by an executed oral
modification of the contract.” (Healy,supra, 251 Cal.App.2d at p. 552, internal
citations omitted.)
• “[Defendant] places reliance on the provision of the subcontract which provides
that any work involving extra compensation shall not be proceeded with unless
written authority is given by [defendant]. But under section 1698 of the Civil
Code, an executed oral agreement may alter an agreement in writing, even
though, as here, the original contract provides that extra work must be approved
in writing. The oral request for and approval of extra work by [defendant] was,
when fully performed, an oral modification of the written June 8th
subcontract. . . . [¶] Whether a written contract has been modified by an
executed oral agreement is a question of fact, and the finding, in the instant
case, is supported by substantial evidence. . . . [¶] Defendant cannot be heard
to say that a written order was not first obtained as required under the
subcontract. [Defendant] by its acts and conduct waived and is estopped to rely
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upon the subcontract provision requiring its prior written approval before
proceeding with work involving extra compensation.” (MacIsaac & Menke Co.
v. Cardox Corp. (1961) 193 Cal.App.2d 661, 669–670 [14 Cal.Rptr. 523],
internal citations omitted.)
• “The written contract provided that the defendant should not be charged for
‘extras’ unless ordered in writing. Upon this basis defendant contends that
recovery for the ‘extras’ furnished by plaintiff is barred. The provision in a
building contract that an owner may be charged only for ‘extras’ which are
ordered in writing may be waived or modified by an executed oral agreement.
As a consequence, recovery by the contractor for the reasonable value of
‘extras’ has been upheld where they have been furnished at the request of the
owner, became a part of the construction work generally described in the
building contract, and are accepted by him, even though the request therefor
was oral and the building contract provided that he should be chargeable only
for such ‘extras’ as were requested in writing.” (1st Olympic Corp. v. Hawryluk
(1960) 185 Cal.App.2d 832, 841 [8 Cal.Rptr. 728], internal citations omitted.)
• “Defendants concede that the labor for which payment is sought was actually
performed and that the backfill was supplied. They accept the finding that the
charges were reasonable, and the record discloses that the benefits of the labor
and material have accrued to the premises. Defendants rest their contentions on
the provision of the contract requiring written change orders. The parties may,
by their conduct, waive such a provision with the result that the subcontractor
does extra work without a written order. If the circumstances indicate that the
parties intended to waive the provision, the subcontractor will be protected.”
(Frank T. Hickey, Inc. v. Los Angeles Jewish Community Council (1954) 128
Cal.App.2d 676, 682–683 [276 P.2d 52], internal citations omitted.)
• “The record shows that extras were ordered and approved by [cross-defendant]
in the amount of $8,097.50. Under the law this amounted to a modification of
the written contract. [Cross-defendant] places great reliance on the provision of
the contract which provides that alterations must be in writing, and points out
here that he only approved one alteration in writing. But under section 1698 of
the Civil Code, an executed oral agreement may alter an agreement in writing,
even though, as here, the original contract provides that all changes must be
approved in writing. This is so because the executed oral agreement may alter
or modify that provision of the contract as well as other portions.” (Miller v.
Brown (1955) 136 Cal.App.2d 763, 775 [289 P.2d 572], internal citation
omitted.)
• “The evidence showed that the extra work on the building was done with the
knowledge and consent of defendant and his agent, and that they waived the
written stipulation that a separate written estimate of extra work should be
submitted, by orally agreeing to and countenancing the work without written
estimates. Had it not been for defendant’s consent thus given, the work would
not have been thus done. He will not now be permitted to repudiate work done
in the manner that he consented to, on any ground that it was not done in
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accordance with a previous written agreement.” (Wyman v. Hooker (1905) 2
Cal.App. 36, 41 [83 P. 79].)
• “Unlike private contracts, public contracts requiring written change orders
cannot be modified orally or through the parties’ conduct. Thus, even if
[plaintiff]’s evidence pertaining to the oral authorizations of a city employee for
extra work is fully credited, [plaintiff] cannot prevail.” (P&D Consultants, Inc.,
supra, 190 Cal.App.4th at p. 1335.)
• “California courts generally have upheld the necessity of compliance with
contractual provisions regarding written ‘change orders.’ . . . However,
California decisions have also established that particular circumstances may
provide waivers of written ‘change order’ requirements. If the parties, by their
conduct, clearly assent to a change or addition to the contractor’s required
performance, a written ‘change order’ requirement may be waived.” (Weeshoff
Constr. Co.,supra, 88 Cal.App.3d at p. 589, internal citations omitted.)
• “In addition to being factually inapposite, the continuing viability of Weeshoff is
questionable. In pronouncing that ‘California decisions have also established
that particular circumstances may provide waivers of written “change order”
requirements,’ and ‘[i]f the parties, by their conduct, clearly assent to a change
or addition to the contractor’s required performance, a written “change order”
requirement may be waived,’ the court cited cases involving private parties, not
public agencies . . . . Since its publication 28 years ago, no case has cited
Weeshoff for this point. This is understandable as it is contrary to the great
weight of authority, cited above, to the contrary.” (Katsura v. City of San
Buenaventura (2007) 155 Cal.App.4th 104, 111 [65 Cal.Rptr.3d 762], internal
citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 969
1California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, §§ 5.44–5.47
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.69
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, § 3.02
(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, § 50.522 et seq. (Matthew
Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts,
§ 30D.14 (Matthew Bender)
10 Miller & Starr, California Real Estate (3d ed. 2008) Ch. 27, Construction Law
and Contracting, §§ 27:61, 27:65–27:66 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed. 2005) Ch. 1, Contracts,
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§§ 1:40–1:47 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed. 2005) Ch. 7, Public Contracts,
§ 7:71 (Thomson Reuters)
1 Bruner & O’Connor on Construction Law, Ch. 4, Contract “Changes” and
“Extras,” §§ 4:39–4:40 (Thomson Reuters)
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. 103–106
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 16,
Written Extra Work Order Gotcha
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