California Civil Jury Instructions (CACI) (2017)

4523. Contractor’s Claim for Additional Compensation—Abandonment of Contract

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4523.Contractor’s Claim for Additional
Compensation—Abandonment of Contract
The contract between the parties provided for certain procedures to be
followed if [name of plaintiff] wanted to be paid for changed or
additional work that was not initially required by the contract. These
procedures are called “change-order requirements.”
[Name of plaintiff] claims that [name of defendant] required many
changes and that the parties consistently ignored the contract’s change-
order requirements. Therefore, [name of plaintiff] claims that the
contract was abandoned and that the change-order requirements no
longer applied.
To establish this claim, [name of plaintiff] must prove the following:
1. That the parties through their conduct consistently disregarded
the contract’s change-order requirements; and
2. That the scope of work under the original contract had been
altered by the changes so much that the final project was
significantly different from the original project.
New December 2010
Directions for Use
This instruction is a contractor’s response if the owner asserts that the contractor is
not entitled to additional compensation for changed or additional work. (See CACI
No. 4521, Owner’s Claim That Contract Procedures Regarding Change Orders
Were Not Followed.) It should be given if the contractor claims that through their
conduct, the parties acted in a manner that indicated that they had entirely
abandoned their original contract.
For instructions on damages after it has been established that the contract was
abandoned, see CACI No. 4541, Contractor’s Damages for Breach of Construction
Contract—Change Orders/Extra Work—Total Cost Recovery, and CACI No. 4542,
Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit
Recovery.
This instruction may not be used against a public entity. A contractor may not
claim that a public entity has abandoned the applicable contract change order
procedures on a project subject to competitive bidding in such a way as to increase
the contract price because doing so would violate the public policy regarding
competitive bidding. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th
228, 239 [115 Cal.Rptr.2d 900, 38 P.3d 1120].)
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Sources and Authority
• “[T]his court has not generally allowed quantum meruit recovery for extra work
performed beyond the contract requirements.” (Amelco Electric,supra, 27
Cal.4th at p. 234.)
• “[W]hen an owner imposes upon the contractor an excessive number of changes
such that it can fairly be said that the scope of the work under the original
contract has been altered, an abandonment of contract properly may be found.”
(C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d
628, 640 [218 Cal.Rptr. 592].)
• “Abandonment of a contract may be implied from the acts of the parties.
Abandonment of the contract can occur in instances where the scope of the
work when undertaken greatly exceeds that called for under the contract. . . .
In the instant case the parties consistently ignored the procedures provided by
the contract for the doing of extra work.” (Daugherty Co. v. Kimberly-Clark
Corp. (1971) 14 Cal.App.3d 151, 156 [92 Cal Rptr. 120], internal citation
omitted.)
• “Under the abandonment doctrine, once the parties cease to follow the
contract’s change order process, and the final project has become materially
different from the project contracted for, the entire contract—including its
notice, documentation, changes and cost provisions—is deemed inapplicable or
abandoned, and the plaintiff may recover the reasonable value for all of its
work. Were we to conclude such a theory applied in the public works context,
the notion of competitive bidding would become meaningless.” (Amelco
Electric,supra, 27 Cal.4th at p. 239.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 1000
1California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.56
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.71
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.81–9.87
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, ¶ 3.10
(Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.15, 104.230 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.470 (Matthew Bender)
10 Miller & Starr, California Real Estate (Thomson Reuters West 3d ed.) Ch. 27,
Construction Law and Contracting, §§ 27:66, 27:87
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 1, Contracts, § 1:48
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
CONSTRUCTION LAW CACI No. 4523
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Ch. 7, Public Contracts, § 7:72
1 Bruner & O’Connor on Construction Law (Thomson Reuters West 2002) Ch. 4,
Contract “Changes” and “Extras,” § 4:14
CACI No. 4523 CONSTRUCTION LAW
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