CACI No. 4523. Contractor’s Claim for Additional Compensation - Abandonment of Contract

Judicial Council of California Civil Jury Instructions (2023 edition)

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4523.Contractors 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 contractors response if the owner asserts that the contractor is
not entitled to additional compensation for changed or additional work. (See CACI
No. 4521, Owners 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, Contractors Damages for Breach of Construction
Contract - Change Orders/Extra Work - Total Cost Recovery, and CACI No. 4542,
Contractors Damages for Abandoned Construction Contract - Quantum Meruit
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].)
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 (11th ed. 2017) Contracts, § 1037
1 California 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)
Miller & Starr, California Real Estate 4th, §§ 27:66, 27:87 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 1:48 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:72 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 4:14 (Thomson Reuters)

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