California Civil Jury Instructions (CACI) (2017)

4544. Contractor’s Damages for Breach of Construction Contract—Inefficiency Because of Owner Conduct

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4544.Contractor’s Damages for Breach of Construction
Contract—Inefficiency Because of Owner Conduct
[Name of plaintiff] claims that [name of defendant] breached the parties’
contract by [delaying/disrupting/ [or] interfering with] [name of
plaintiff]’s work, causing [name of plaintiff]’s work to be less efficient
than it would have been. If you find that [name of defendant] [delayed/
disrupted/ [or] interfered with] [name of plaintiff]’s work, you may
award damages to [name of plaintiff] for all harm caused by the [delay/
disruption/ [or] interference].
You may also award damages for lost profits that [name of plaintiff]
would have received from other jobs but for the [delay/disruption/ [or]
interference]. To recover damages for lost profits, [name of plaintiff]
must prove the following:
1. That it is reasonably certain that [name of plaintiff] would have
earned those profits but for [name of defendant]’s
[delay/disruption/ [or] interference]; and
2. That it was [actually foreseen/reasonably foreseeable] at the time
the parties entered into the contract that [name of plaintiff] would
have earned those profits.
The amount of lost profits must be proved to a reasonable certainty.
Damages for lost profits that are speculative or remote cannot be
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner for
economic loss incurred because the owner delayed, disrupted, or interfered with the
contractor’s work in a way that caused the contractor calculable economic loss.
Lost profits from other work that the contractor could have earned but for the
owner’s breach are special damages, which must have been either actually foreseen
or reasonably foreseeable to the parties at the time when the contract was entered
into. (Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist.
(2004) 34 Cal.4th 960, 977 [22 Cal.Rptr.3d 340, 102 P.3d 257].) In element 2,
select either “actually foreseen” or “reasonably foreseeable” depending on what
was communicated when the contract was signed.
For additional instructions on contract damages generally, see CACI No. 350 et
seq. in the Contracts series. See particularly CACI No. 351, Special Damages.
Sources and Authority
• “Lost anticipated profits cannot be recovered if it is uncertain whether any profit
would have been derived at all from the proposed undertaking. But lost
prospective net profits may be recovered if the evidence shows, with reasonable
certainty, both their occurrence and extent. It is enough to demonstrate a
reasonable probability that profits would have been earned except for the
defendant’s conduct. The plaintiff has the burden to produce the best evidence
available in the circumstances to attempt to establish a claim for loss of
profits.” (S. C. Anderson v. Bank of America (1994) 24 Cal.App.4th 529, 536
[30 Cal.Rptr.2d 286], internal citations omitted.)
• “Unearned profits can sometimes be used as the measure of general damages
for breach of contract. Damages measured by lost profits have been upheld for
breach of a construction contract when the breaching party’s conduct prevented
the other side from undertaking performance. The profits involved in [the cases
cited], however, were purely profits unearned on the very contract that was
breached.” (Lewis Jorge Construction Management, Inc.,supra, 34 Cal.4th at p.
971, internal citations omitted.)
• “Lost profits, if recoverable, are more commonly special rather than general
damages, and subject to various limitations. Not only must such damages be
pled with particularity, but they must also be proven to be certain both as to
their occurrence and their extent, albeit not with ‘mathematical precision.’
‘When the contractor’s claim is extended to profits allegedly lost on other jobs
because of the defendant’s breach’ that ‘claim is clearly a claim for special
damages.’ ” (Lewis Jorge Construction Management, Inc.,supra, 34 Cal.4th at
p. 975, original italics, internal citations omitted.)
• “It is indisputable that the [defendant]’s termination of the school construction
contract was the first event in a series of misfortunes that culminated in
[plaintiff]’s closing down its construction business. Such disastrous
consequences, however, are not the natural and necessary result of the breach of
every construction contract involving bonding. Therefore, . . . lost profits are
not general damages here. Nor were they actually foreseen or foreseeable as
reasonably probable to result from the [defendant]’s breach. Thus, they are not
special damages in this case.” (Lewis Jorge Construction Management, Inc.,
supra, 34 Cal.4th at p. 977.)
• “As to the reasonableness of the assumptions underlying the experts’ lost profit
analysis, criticisms of an expert’s method of calculation is a matter for the
jury’s consideration in weighing that evidence. ‘It is for the trier of fact to
accept or reject this evidence, and this evidence not being inherently improbable
provides a substantial basis for the trial court’s award of lost profits . . . .’ ”
(Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47
Cal.App.4th 464, 489–490 [54 Cal.Rptr.2d 888], internal citations omitted.)
• “Overhead expense allocable to the period of delay is allowed to the extent the
evidence shows an increase in overhead because of the breach; or where other
jobs, but for the delay, would have been obtained to absorb such overhead.” (A.
A Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal.App.3d 144, 158 [88
Cal.Rptr. 842], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 882
3Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.21 (Matthew
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 1, Contracts, § 1:82
6 Bruner & O’Connor on Construction Law (Thomson Reuters West 2002) Ch. 19,
Remedies and Damage Measures, §§ 19:87–19:90
4545–4549. Reserved for Future Use