California Civil Jury Instructions (CACI) (2017)

4542. Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit Re- covery

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4542.Contractor’s Damages for Abandoned Construction
Contract—Quantum Meruit Recovery
[Name of plaintiff] claims that the parties consistently disregarded the
contract’s change-order process and that the final project was
significantly different from the original project. If you find that the
parties abandoned the contract, [name of plaintiff] is entitled to recover
the reasonable value of all of [his/her/its] work on the project rather
than the contract price.
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner if
the contractor’s claim is that the parties effectively abandoned the contract and that
the contractor should therefore receive a quantum meruit measure of damages for
the reasonable value of its work. (See CACI No. 4523, Contractor’s Claim for
Additional Compensation—Abandonment of Contract.)
Contract abandonment cannot be alleged with regard to a public works contract.
(Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 238–239 [115
Cal.Rptr.2d 900, 38 P.3d 1120].)
For additional instructions on contract damages generally, see CACI No. 350 et
seq. in the Contracts series.
Sources and Authority
• “[O]nce the parties cease to follow the contract’s change order process, and the
final project is materially different from the project contracted for, the contract
is deemed inapplicable or abandoned and is set aside. The plaintiff may then
recover the reasonable costs for all of its work.” (Amelco Elec.,supra, 27
Cal.4th at p. 238.)
• “The contractor was . . . entitled, under the factual circumstances of this case
[abandonment], to recover the reasonable value of the work it performed on a
quantum meruit basis, without being limited by the original contract amount.”
(C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d
628, 639 [218 Cal.Rptr. 592].)
• “In the specific context of construction contracts . . . , it has been held that
when 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.
In these cases, the contractor, with the full approval and expectation of the
owner, may complete the project. Although the contract may be abandoned, the
work is not.” (C. Norman Peterson Co.,supra, 172 Cal.App.3d at p. 640,
1166
0054
original italics, internal citations omitted.)
• “There was a triable issue of fact as to whether these changes for which
plaintiff was seeking compensation were required. Moreover, because of the
tremendous number of changes, there was an issue as to whether the contract
had been abandoned by the parties and they proceeded apart from the contract.
There was evidence that the job was completely redesigned after the contract
was entered into.” (Daugherty Co. v. Kimberly-Clark Corp. (1971) 14
Cal.App.3d 151, 156 [92 Cal.Rptr. 120].)
• “[A]bandonment requires a finding that both parties intended to disregard the
contract, and abandonment may be implied from the acts of the parties.” (C.
Norman Peterson Co.,supra, 172 Cal.App.3d at p. 643, original italics.)
• “ ‘Once the plaintiff has established the amount which he has been induced to
expend, the defendant must show that the expenses of the party injured have
been extravagant and unnecessary for the purpose of carrying out the
contract.’ ” (C. Norman Peterson Co.,supra, 172 Cal.App.3d at p. 647.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 1000, 1036
1California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.50
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.85–9.86
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.03 (Matthew
Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.12 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§ 104.224 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.05 et seq.
10 Miller & Starr, California Real Estate (Thomson Reuters West 3d ed.) Ch. 27,
Construction Law and Contracting, § 27:87
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 1, Contracts, §§ 1:48, 1:98
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 7, Public Contracts, § 7:72
6 Bruner & O’Connor on Construction Law (Thomson Reuters West 2002) Ch. 19,
Remedies and Damage Measures, § 19:39
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