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Womack v. Lovells

California Court of Appeals, Fourth District, Third Division

June 15, 2015

ART WOMACK, Plaintiff, Cross-defendant and Respondent,
DAVID ANGUS LOVELL et al., Defendants, Cross-complainants and Appellants MARK CABALLERO, Cross-defendant, Cross-complainant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, No. 30-2011-00438896 Derek W. Hunt, Judge.

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[Copyrighted Material Omitted]

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Law Offices of Lenore Albert and Lenore L. Albert for Defendants, Cross-complainants and Appellants.

Law Office of Mitchell B. Hannah, Mitchell B. Hannah and Hallie D. Hannah for Plaintiff, Cross-defendant and Respondent, and for Cross-defendant, Cross-complainant and Respondent.




In his rock and roll standard, “End of the Innocence, ” Bruce Hornsby and Don Henley note that “The lawyers dwell on small details.” That’s true. We have to. The devil isn’t the only resident in the details; sometimes truth and fairness lodge there as well.

In this case, we address a “detail” that was lost or hidden and resulted in what we consider an injustice. Fortunately, as is usually the case, painstaking attention to other small details enables us to correct this injustice. If you dwell on small details with an eye to fairness, the law works well.

Here, a homeowner sued a general contractor for allegedly shoddy and incomplete work in connection with a major home remodeling contract. The homeowner’s complaint also contained a cause of action against the general

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contractor’s license bond company, seeking to recover for the contractor’s having “grossly deviated” from the plans and specifications for the job. To support his action, the homeowner explicitly alleged in the complaint that the contractor was licensed at all times.

For his part, the general contractor responded with a cross-complaint against the homeowner for unpaid work. The cross-complaint included a copy of their written contract which showed the contractor’s license number. To that, the homeowner simply filed a general denial of all allegations.

When the case came to trial, the homeowner – contrary to the applicable local rule requiring plaintiffs to identify all controverted issues – did not identify licensure as a controverted issue. The contractor’s attorney seeing no issue, did not obtain a verified certificate from the Contractors’ State License Board (the License Board) showing the contractor was licensed at all times during his performance. But when the contractor was about to rest his case on the cross-complaint, the homeowner’s attorney made a motion for nonsuit based on the absence of such a verified certificate as required under Business and Professions Code section 7031, subdivision (d), when the issue of licensure is “controverted.”[1]

The trial judge was also surprised the licensure issue was raised. He had not been expecting the issue either. He deferred immediate ruling on the homeowner’s nonsuit motion. As the contractor learned to his chagrin, it presently takes at least six days to obtain a verified certificate from the License Board even if one drives overnight to Sacramento to pick it up in person. While the contractor was eventually able to obtain a verified certificate of licensure from the License Board, he could not do so until after the close of the trial, in which he prevailed on his claim for unpaid work from the homeowner. Because no certificate of licensure could be produced, the trial judge reluctantly granted the homeowner’s nonsuit motion, by then denominated a motion for judgment notwithstanding the verdict (JNOV), and this appeal ensued.

We reverse the judgment in favor of the homeowner, with instructions to the trial judge to grant judgment in favor of the general contractor as against

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the homeowner. We conclude this is one of those relatively rare cases where a party can be bound by a judicial admission made in an unverified complaint. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836-837 [69 Cal.Rptr. 321, 442 P.2d 377] (Reichert) [circumstances of case justified holding party to admission made in unverified complaint].) Here, the judicial admission that the general contractor was licensed, compounded by the homeowner’s failure to comply with the local rule requiring identification of all controverted issues, rendered the question of licensure assuredly uncontroverted for purposes of section 7031. Because of the judicial admission, the rule of Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621 [63 Cal.Rptr.3d 195] (Advantec) does not apply.


This litigation arises out of a 2010 Laguna Hills home remodel undertaken by Art Womack. Womack hired a general contractor named Aztec Sunpower (Aztec).[2] Aztec, in turn, hired a pool subcontractor, Caballero Pools and Spas (Caballero). By the end of 2010, the relationships had broken down to the point where litigation was imminent.

Womack filed first in January 2011, his complaint alleging breach of contract by Aztec. His first amended complaint, filed in July 2011, alleged Aztec had done an incomplete and sloppy job and thus forced him to incur extra expenses to make things right.

In his first amended complaint, Womack alleged twice that Aztec “at all times” relevant to the suit, “acted in the capacity as a licensed contractor.” The first time was in the standard list of parties often given at the beginning of a complaint. The second time was in connection with a fourth cause of action “on contractor’s license bonds” against American Contractors License Indemnity Company (American Contractors). In that cause of action Womack alleged that “upon application” by Aztec “to the Registrar of Contractors of the Contractor’s State License Board of the State of California for a contractor’s license or renewal thereof, and in accordance with the provisions of section 7071.6 of the Business and Professions Code of State of California, ” Aztec had “filed with the Registrar bonds issued by” American Contractors, “bond number 1000112982 in the sum of $12, 500, conditioned upon full compliance” by Aztec “with all the provisions of Division 3, Chapter 9, of the Business and Professions Code of the State of California inuring to the benefit of any person damaged as a result of a violation of the Chapter by the Defendant’s licensees.” The pleading was unverified.

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About a year later, in February 2012, Aztec responded with a cross-complaint against both Womack and Caballero, alleging they unfairly cut Aztec out of the job. Aztec’s cross-complaint alleged it had been a licensed contractor continuously in good standing with the License Board for the past 20 years.

In April 2012, both Womack and Caballero, represented by the same law firm, filed answers to Aztec’s cross-complaint. Each answer generally denied all of Aztec’s allegations, which necessarily included the allegation Aztec had been a licensed contractor at all relevant times, a small detail that went unnoticed.

Also in April 2012, Caballero filed his own cross-complaint against Aztec, alleging damages arising out of its breach of contract. In contrast to Womack’s earlier complaint, however, Caballero’s cross-complaint did not allege Aztec was at all times a licensed contractor. Caballero ...

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