Zigman-Shields Gen. Contractors v. Kirk Paving CA4/1

Filed 2/25/15 Zigman-Shields Gen. Contractors v. Kirk Paving CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ZIGMAN-SHIELDS GENERAL D062854
CONTRACTORS, INC.,

Plaintiff, Cross-defendant and
Appellant, (Super. Ct. No. 37-2010-00060415-
CU-BC-NC)
v.

KIRK PAVING, INC.,

Defendant, Cross-complainant and
Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Earl Maas

III, Judge. Affirmed in part; reversed in part; and remanded with directions.

Boudreau Williams and Jon R. Williams for Plaintiff, Cross-defendant, and

Appellant.

Law Offices of Gary M. Letchinger and Gary M. Letchinger for Defendant, Cross-

complainant, and Respondent.
 General contractor Zigman-Shields General Contractors, Inc. (Contractor) sued its

paving subcontractor, Kirk Paving, Inc., alleging Kirk Paving performed defective work.

Kirk Paving cross-complained for amounts due under the contract. After a four-day

bench trial, the court found each party proved certain of its claims, and awarded Kirk

Paving a net recovery of $8,351.13 plus attorney fees and costs.

Contractor appeals, contending the court erred in ruling that it breached the

contract by failing to pay Kirk Paving for: (1) paving work known as an F-cap

installation; and (2) paving work on a portion of the project known as the north parking

lot. We agree with the first contention and disagree with the second. We remand for a

limited retrial on the issue of damages relating to Kirk Paving's F-cap installation work.

FACTUAL AND PROCEDURAL SUMMARY

Subcontract Agreement

The Evangelical Formosan Church (Church) retained Contractor to perform work

at its facility. In August 2008, Contractor and Kirk Paving entered into a written

subcontract agreement (Subcontract Agreement) in which Kirk Paving agreed to perform

subcontract work on two matters: (1) grade and pave the Church parking areas, which

consisted of north and south parking lots with an intersecting causeway; and (2) apply a

thin asphalt top layer (known as F-cap) to a concrete base on a public street next to the

Church parking lot.

Parking Lot Work

After Kirk Paving completed the parking lot work, various portions of the asphalt

surface were uneven and had drainage issues, particularly in the south parking lot. Kirk

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Paving performed repair work, but Contractor was not satisfied with this work and

refused to pay Kirk Paving for the work until it completed additional work to correct the

problems. Kirk Paving believed the work was satisfactory and met contract standards,

and refused to perform any additional work without payment for the work already

performed. Contractor thereafter paid another subcontractor to complete the work on the

north and south parking lots, and the connecting causeway.

F-cap Work

F-cap is a type of asphalt that is composed of sand and oil and serves as a top

coating on a street surface. At the time of the Subcontract Agreement, the City of San

Diego (City) required F-cap to be installed on public streets and City approval was

necessary for the finished installation. In the Subcontract Agreement, Kirk Paving agreed

to perform the F-cap installation work on a street adjacent to the parking lots, and agreed

to satisfy City requirements.

On the day the F-cap was to be installed, Kirk Paving waited until about 10:00

a.m. to begin because the product could not be installed until the ground temperature

reached 60 degrees. This meant that Kirk Paving did not finish the work until 3:30 p.m.,

shortly before the City reopened the street to traffic. Within a few days, it became

apparent that the F-cap installation had failed, as it was peeling and was obviously

deficient. The City refused to approve the work.

Contractor then requested that Kirk Paving reinstall the F-cap work in a

satisfactory manner. Kirk Paving responded that the F-cap problem arose from a defect

in the product and expressed substantial doubt as to whether F-cap would ever be

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effective in this location. But Kirk Paving agreed to reinstall the F-cap if Contractor

(and/or the City) placed additional funds in escrow and agreed to pay for all the work (the

first and second installation) even if the second installation failed. Contractor refused to

agree to this, and after numerous attempts to reach a resolution, Contractor retained

another subcontractor to perform the work. After the second subcontractor completed the

F-cap installation, the City approved the work.

Complaint and Cross-complaint

Contractor then filed a breach of contract complaint against Kirk Paving, alleging

it had paid $185,870.04 to Kirk Paving, but that Kirk Paving had performed "defective

and substandard work" and refused to make requested repairs. Contractor alleged Kirk

Paving had abandoned the project and/or failed to pay its material suppliers. Contractor

claimed it had sustained damages of $62,368.86.

Kirk Paving cross-complained, alleging a breach of contract claim against

Contractor. Kirk Paving alleged it substantially and satisfactorily performed all of its

required work under the Subcontract Agreement, and that Contractor breached the

Subcontract Agreement by refusing to pay the contract balance.

Trial

In February 2012, the court conducted a four-day bench trial. Several witnesses

testified, including the president of each party (Joshua Zigman for Contractor and Jon

Kirk for Kirk Paving), other party representatives, the owner representative, and expert

witnesses. Numerous photographs of the work and other documentary evidence were

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admitted into evidence. The main focus of the trial was on the parking lot paving issues

and the F-cap installation work.

On the parking lot paving issues, the evidence was conflicting as to whether the

parking lot work (and repair work) was performed satisfactorily, and if not, which party

caused the problems. Additionally, the evidence showed two types of claimed problems.

First, the parking lot in some areas was not even and had "undulations" (high and low

points). Second, there was a claimed problem with water drainage, sometimes resulting

in water remaining on the property in small ponds known as "bird baths."

On the F-cap installation work, it was undisputed that Kirk Paving's installation

failed by "unraveling" and peeling almost immediately and that it did not pass the City's

inspection. But the evidence was conflicting as to the cause of the failure. Kirk Paving's

president testified that the F-cap failed because of a faulty design and that "an F-cap is

not meant to be applied on locations where you have excessive traffic index." He also

stated that the City opened the street to traffic too soon. The City inspector testified the

installation failed because Kirk Paving did not apply the product in the correct manner

(perpendicular to the street) and/or that the area was opened to traffic before the material

sufficiently adhered to the ground. Kirk Paving's expert, Harry George, testified that the

F-cap failed because "[t]raffic . . . [was] opened up prematurely," and/or that the area may

have heavy traffic loads that are inappropriate for the F-cap material.

Regarding damages on the parking lot and F-cap issues, Kirk Paving argued and

presented evidence that it satisfactorily performed all the work under the contract and/or

that any defects were outside its control, and thus it was entitled to $50,393.13, the total

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unpaid balance for the work performed. Contractor countered by arguing and presenting

evidence that Kirk Paving was not entitled to this amount because its work was defective

and it was responsible for the defective work. Contractor sought damages as

compensation for payments it made to a second subcontractor to complete the work and

for related costs and contract penalties.

Court's Ruling

At the conclusion of the trial, the parties submitted written closing arguments and

then, at the court's request, supplemental briefing. After considering the evidence and

arguments, the court issued a statement of decision, concluding that each of the parties

proved some of its claims. In the decision, the court initially observed that "Neither party

disputed the existence of a valid contract, or its terms." The court then identified the

applicable legal standard: "Where [Contractor] proved by a preponderance of the

evidence that the work performed by [Kirk Paving] was substandard, the withholding [of

contract payments] was appropriate. However, where [Contractor] failed to prove by a

preponderance of the evidence that the work was substandard, the withholding was a

breach of contract by [Contractor]."

In applying this standard, the court stated its conclusions were based "mainly on

the credibility of the witnesses," and discussed its witness evaluations, including that it

found the Contractor's president, Zigman, to be "combative" and that his propensity to be

argumentative on cross-examination "reflected poorly on his credibility." The court also

found Kirk Paving's president to be "combative," but said his testimony was credible and

"more persuasive" than Zigman's testimony. The court found Kirk Paving's expert, Harry

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George, to be the "most persuasive" witness, and identified various other credible

witnesses, including Michael Tan, the owner representative, and Bob Hargraves, Kirk

Paving's production manager.

The court then discussed its conclusions on the two primary issues (the F-cap

work and the parking lot asphalt work).

On the F-cap issue, the court stated "the court is persuaded the problems with the

'F-Cap' were caused by the early opening of the area to traffic, and this was not within the

control of [Kirk Paving]. As such, [Kirk Paving] was in compliance with the contract,

and [Contractor's] withholding of payment was in breach of contract."

On the parking lot issue, the court found: (1) insufficient evidence that there were

problems with water ponding in any area of the parking lot; (2) Kirk Paving breached the

contract with respect to its paving work in the "swale" area and south parking lot because

there were numerous " 'undulations' " in the pavement; and (3) Kirk Paving did not

breach the contract with respect to its work in the north parking lot.

In explaining these conclusions, the court stated it found "the photographs to be

helpful, but also troubling" and discussed at length the conflicting evidence regarding the

water drainage issues. The court then stated that "[b]ased upon the photographs provided

and the evidence submitted, the court is not persuaded, by a preponderance of the

evidence, that the . . . pictures of water draining off the parking lot shortly after the water

was applied, somehow suggests that the water was not draining. This argument and

evidence was not persuasive. In this regard, [Kirk Paving] was not in breach of contract,

and [Contractor's] withholding of payment was improper." But the court stated it was

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"persuaded, by a preponderance of the evidence" that the asphalt work "provided near the

swale" and "the undulations in the south parking lot" were unacceptable and that Kirk

Paving "was in breach of contract" regarding its work in these areas. (Italics added.)

Regarding damages, the court found Kirk Paving proved entitlement to

$50,393.13, reflecting the entire unpaid balance for its work on the contract. The court

found Contractor proved damages of $42,042, consisting of: (1) $32,305 paid to a

second paving contractor to repair the south parking lot and the connecting causeway;

plus (2) $2,730 paid to a third party for a survey of the south parking lot; plus (3) $7,007,

reflecting 20 percent additional damages under a contract provision providing for such

damages in the event the contractor is "required to complete" the subcontractor's work.

In the final judgment, the court awarded Kirk Paving $50,393.13 and awarded

Contractor $42,042, and thus determined Kirk Paving was entitled to a net recovery of

$8,351.13. The court further awarded Kirk Paving $55,613.63 in costs and attorney fees

pursuant to a prevailing-party contractual provision in the Subcontract Agreement.

Contractor appeals.

DISCUSSION

I. Review Standards

Contractor contends the court erred in finding in Kirk Paving's favor regarding its

work on the F-cap installation and the north parking lot. In considering these

contentions, we apply two different review standards.

First, assessing the parties' respective obligations under the Subcontract

Agreement is a matter of contract interpretation. In the absence of extrinsic evidence on

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the meaning of the contract provisions, contract interpretation is a question of law. (See

Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866; Badie v. Bank of

America (1998) 67 Cal.App.4th 779, 799.)

Second, whether either party breached obligations under the Subcontract

Agreement is a question of fact, to which we apply the familiar substantial evidence test.

(Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1268.) " 'Substantial

evidence . . . is not synonymous with "any" evidence.' Instead, it is ' " 'substantial' proof

of the essentials which the law requires." ' [Citations.]" (Roddenberry v. Roddenberry

(1996) 44 Cal.App.4th 634, 651.) We view the evidence in the light most favorable to

the prevailing party and draw all reasonable inferences and resolve all conflicts in its

favor. (Hub City Solid Waste Services, Inc. v. City of Compton (2010) 186 Cal.App.4th

1114, 1129.)

Under these review standards, we first set forth the relevant contractual provisions,

and then analyze Contractor's arguments that the court erred in its findings regarding Kirk

Paving's F-cap installation work and north parking lot work.

II. Subcontract Agreement Provisions

Under the Subcontract Agreement, "If within one (1) year of . . . completion . . .

any work by [Kirk Paving] is found to be defective, [Kirk Paving] shall correct it at [Kirk

Paving's] expense promptly after receipt of written notice from [Contractor] to do so."

Additionally, "If in the judgment of [Contractor] the work of [Kirk Paving] is not

proceeding in accordance with the Contract Documents or [Kirk Paving] has breached

any other provision of this contract, [Contractor] may, after giving twenty-four (24) hours

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notice to [Kirk Paving] of its breach, proceed to have the work done in the manner most

expedient to [Contractor] and charge the cost including any incidental expenses and those

additional costs set out in the agreement to [Kirk Paving]. . . . In the event [Contractor] is

required to complete the work of [Kirk Paving] in accordance with the provisions of this

agreement, [Kirk Paving] agrees to reimburse [Contractor] for all costs and expenses

including consequential damages plus an additional twenty percent (20%) of costs and

expenses as overhead."

Further, "[Contractor] may withhold payment . . . in part in order to protect the

[Contractor] from loss because of . . . defective work not remedied . . . unsatisfactory

progress of the Work . . . [or] failure to obtain approvals required by any authority having

jurisdiction . . . ." "Notwithstanding the foregoing, [Contractor] may refuse to make

payment on any invoice or Certificate of Payment . . . for any default under the Contract

Documents. The [Contractor] shall not be deemed in default by reason of withholding

payment while any of such defaults remain uncured."

III. F-cap Installation

Contractor contends the court erred in concluding that it breached the Subcontract

Agreement by declining to pay Kirk Paving for the defective F-cap installation and by

finding that Kirk Paving did not breach the contract by refusing to repair this defective

installation.

At trial, most of the issues regarding the F-cap installation were undisputed. It

was undisputed that the F-cap installed by Kirk Paving needed replacement because it did

not adhere to the pavement and began peeling shortly after the installation, and that the

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City refused to approve the work because it was defective. The undisputed evidence also

showed Kirk Paving was willing to perform the necessary repair work only if Contractor

placed funds in an escrow account that compensated Kirk Paving for the initial and

second installation even if the second installation failed. It was also undisputed that

Contractor declined this offer and retained a second contractor to perform a proper

installation of the F-cap; this second installation received City approval; and Contractor

paid the second subcontractor for this work.

But one issue was disputed: the cause of the initial F-cap failure. Upon

considering this disputed evidence, the court made a factual finding that the F-cap

installation failed because the street was opened to traffic immediately after the

installation, and that Kirk Paving had no control over the street opening. Contractor

argues that even assuming it is true that the defective F-cap installation was not Kirk

Paving's fault, Kirk Paving was obligated under the contract terms to replace it at its own

cost.

This argument has merit. The contract unambiguously provides that Kirk Paving

is obligated to correct any defects at "SUBCONTRACTOR'S expense" and that

Contractor "may withhold payment . . . in part in order to protect [Contractor] from loss

because of . . . defective work not remedied" or "failure to obtain approvals required by

any authority having jurisdiction . . . ." Kirk Paving does not point to any language in the

Subcontract Agreement providing that it was excused from correcting or repairing paving

defects if a third party's actions (here, the City's decision to open the street for traffic

immediately after the work was performed) was the actual cause of the problem.

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 On appeal, Kirk Paving does not challenge that it was responsible for correcting

the F-cap problem under the Subcontract Agreement, but argues that the "Trial Court

clearly had the power to set aside any contract provisions that produce[d] an unjust and

unfair result." Kirk Paving asserts that "it would be unjust to hold [it] responsible for the

action of another party entirely outside of [its] control. If Kirk [Paving] were responsible

for the actions of the City, the result would 'undermine the sense of security for

individual rights.' "

Kirk Paving's argument is inconsistent with well-settled contract principles.

Where, as here, two business entities execute a contract defining their rights and

responsibilities, a court cannot disregard the parties' agreement merely because the court

may believe the agreement terms constituted a bad bargain or the outcome was "unjust."

Our sole judicial function is to enforce a contract according to its terms. (Civ. Code,

§ 1638; see Tanner v. Title Ins. & Trust Co. (1942) 20 Cal.2d 814, 824; Everett v. State

Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 656; Schwab v. Bridge (1915) 27

Cal.App. 204, 207.) Where the language is clear, there is no room for judicial

interpretation or modification of the agreement. (Tanner, supra, 20 Cal.2d at p. 824;

Carr Business Enterprises, Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 25, 30; see

Jones v. Pollock (1950) 34 Cal.2d 863, 866.) It is not the role of courts to rule on the

wisdom, desirability, or propriety of a particular contractual bargain.

Kirk Paving contends a court may refuse to enforce a contract term if the term

violates public policy, citing Safeway Stores, Inc. v. Retail Clerks Internat. Assn. (1953)

41 Cal.2d 567 and Altschul v. Sayble (1978) 83 Cal.App.3d 153. We agree with this

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general principle, but there is no basis to find the Subcontract Agreement violated public

policy. There is no public policy providing that a contractor, rather than a subcontractor,

must bear the risk of loss resulting from a factor outside the parties' control. This matter

is a proper subject of contract negotiations. The circumstances here are unlike those of

Altschul, in which a court found unenforceable an attorney referral fee contract that has

"long been condemned and disapproved" by the legal profession (Altschul, supra, at p.

160); and Safeway Stores where the court upheld a preliminary injunction to enjoin

certain union strike activities that were not in "furtherance of any proper labor objective"

and thus violated the state's labor relations policies (Safeway Stores, supra, at pp. 574-

576).

We also reject Kirk Paving's argument that we may alternatively uphold the court's

determination based on an unconscionability defense. First, Kirk Paving never made this

argument in the court below. He directs us to his trial brief attached as an appendix to his

respondent's brief. However, materials attached to a brief do not become part of the

appellate record without proper designation or proper augmentation of the record. (See

Cal. Rules of Court, rule 8.204(d).) Moreover, the discussion in the trial brief relates

solely to the parking lot issue and whether Kirk Paving should be held responsible for

defects in the parking lot. There was nothing at trial, including the written closing

arguments, suggesting that Kirk Paving was asserting an unconscionability defense to the

Contractor's breach of contract claim regarding the F-cap issue. In its statement of

decision, the court stated that neither party disputed the validity of the contract, and

neither party challenged this statement.

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 Additionally, there is no factual or legal support showing that the Subcontract

Agreement provisions were unconscionable. California unconscionability law requires

an evaluation of procedural and substantive elements. (Pinnacle Museum Tower Assn. v.

Pinnacle Market Development (2012) 55 Cal.4th 223, 246-247.) "The procedural

element addresses the circumstances of contract negotiation and formation, focusing on

oppression or surprise due to unequal bargaining power. [Citations.] Substantive

unconscionability pertains to the fairness of an agreement's actual terms and to

assessments of whether they are overly harsh or one-sided. [Citations.] . . . [¶] . . .

[¶] . . . Both procedural unconscionability and substantive unconscionability must be

shown, but 'they need not be present in the same degree' and are evaluated on ' "a sliding

scale." ' [Citation.] '[T]he more substantively oppressive the contract term, the less

evidence of procedural unconscionability is required to come to the conclusion that the

term is unenforceable, and vice versa.' [Citation.]" (Ibid.)

The only evidence presented regarding the contract negotiations or the formation

of the agreement was Zigman's testimony that Kirk Paving did not request any changes to

its standard subcontract agreement before it was signed and Jon Kirk's testimony that he

did not negotiate any of the "fine print or boilerplate language." There was no evidence

the standard provisions were oppressive or surprising and/or that the parties had unequal

bargaining power. Further, there was no evidence that the provisions were overly harsh

or one-sided. "[U]nconscionability doctrine is concerned not with 'a simple old-

fashioned bad bargain' [citation], but with terms that are 'unreasonably favorable to the

more powerful party.' [Citation.]" (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th

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1109, 1145.) There was no evidence that the Subcontract Agreement was unreasonably

unfavorable to Kirk Paving such that it was unenforceable under California law.

IV. Parking Lot Paving Work

Contractor also challenges the court's conclusion that it was not entitled to

damages for its repairs to the north parking lot. The court made a factual finding that

Kirk Paving's work on the south parking lot was defective, but that the work on the north

parking lot was satisfactory. Contractor's challenge to this factual finding is reviewed on

a substantial evidence review standard. Applying this standard, we find this challenge

lacks merit.

First, Contractor forfeited its right to challenge the court's factual findings by

failing to designate all the relevant evidence and discuss all the relevant facts. When an

appellant contends the evidence is insufficient to support a finding, the appellant must set

forth all the evidence material to that finding, including the evidence unfavorable to its

position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "[T]he appellant

has the duty to fairly summarize all of the facts in the light most favorable to the

judgment." (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) An

appellant must state fully, with transcript citations, the evidence (including exhibits)

claimed to be insufficient to support the trial court's findings. (In re Marriage of Fink

(1979) 25 Cal.3d 877, 887.) "An appellate court will consider the sufficiency of the

evidence to support a given finding only after a party tenders such an issue together with

a fair summary of the evidence bearing on the challenged finding, particularly including

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evidence that arguably supports it." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th

400, 409-410.)

In this case, Contractor relies solely on its own evidence to summarize the facts

related to the parking lot paving issues. In so doing, Contractor ignores much of the other

relevant evidence, including the testimony of Jon Kirk and numerous photographs of the

parking lot areas and witness testimony about those photographs. The court specifically

found these photographs helpful, but Contractor did not designate these photographs to

be part of the appellate record, or discuss the photographs in its appellate briefs. Kirk

Paving's expert witness George (who the court found particularly credible) was shown

several photographs and offered opinions regarding the work on various portions of the

parking lot. However, because Contractor did not designate those photographs, we do

not have the benefit of evaluating this evidence. By failing to summarize all the

evidence, including the evidence that supported Kirk Paving's case, the asserted challenge

is waived. (See Foreman & Clark, supra, 3 Cal.3d at p. 881.)

Further, on our review of the record before us, we are satisfied there is sufficient

evidence to support the court's factual conclusion that Kirk Paving's work on the north

parking lot was satisfactory, particularly after Kirk Paving repaired the problem areas.

Jon Kirk testified that the parking lot had "smooth and uniform[ ] pavement as required

by the contract." He acknowledged that although there were initially some problems, his

company performed repairs that remedied many of these problems. He also said Kirk

Paving was willing to continue to perform repairs, but could not do so until it received

payments for the work already performed.

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 Additionally, the property owner representative, Tan, testified that he drove over

the south parking lot and found substantial undulations, but there was no evidence he

drove over the north parking lot. Contractor's superintendent (Robert Evert) testified that

the south parking lot had "unevenness" and there were "undulations" throughout the lot,

but acknowledged that the north parking lot "appeared fairly decent" (except for water

issues) and that it "didn't seem to be as bad as the [south] parking lot."1 The evidence

supported that the problems with the south parking lot were more substantial than the

problems with the north parking lot.

On this record, the court could make a reasonable distinction between the north

and south parking lots and conclude Contractor did not prove the north parking lot

pavement work was defective.

Contractor also argues the court erred because it used the "wrong legal criteria" in

determining damages because it improperly focused on the "efficacy of water testing"

and " 'bird baths.' " (Capitalization and boldface font omitted.) The Subcontract

Agreement required Kirk Paving to accomplish two tasks: (1) provide a "pavement

surface, when completed [that is] smooth, dense, well bonded, and of uniform texture and

appearance"; and (2) ensure "[a]ll areas shall drain and be free of ponded or standing

water." In its statement of decision, the court stated that although Kirk Paving did not

breach its contract to provide the area free from "ponded or standing water" or to provide

1 Although Evert's reference was to the north parking lot, Evert later clarified that he
was intending to refer to the north parking lot as the lot with fewer problems. He agreed
that the "south lot was the worst of the two."
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smooth pavement in the north parking lot, Kirk Paving did breach its contract with

respect to the south parking lot because of the many " 'undulations' " in the south parking

lot. These findings reflect that the court understood Kirk Paving was required to provide

a proper surface and ensure proper water drainage. The record does not support that the

court improperly focused solely on the water drainage issues, or believed the claimed

drainage problems were the only issues before it.

We are likewise unpersuaded by Contractor's reliance on the evidence showing the

property owner (and the project architect) found the entire parking lot to be

unsatisfactory. The evidence showed that Tan (the Church's project manager) rejected

the entire parking lot, and requested that all the work be redone. However, the owner's

conclusions do not establish as a matter of law that the work did not meet contract

requirements. In determining whether Kirk Paving breached the contract, the court was

entitled to consider whether the owner's determination was reasonable and to view all the

evidence, including the photographs and the witness testimony, to evaluate whether the

parking lot (or any portion of it) met the contract standards. Although it found Tan's

conclusions were reasonable with respect to the south parking lot, the court did not find

sufficient evidence to show the north parking lot was defective. The court, as the trier of

fact, was entitled to reach these conclusions.

Additionally, the fact that Contractor's expert testified that Kirk Paving's work did

not meet the industry standard of care does not mean the court was required to accept his

opinion with respect to the entire parking lot. A trier of fact is not bound by the opinion

of an expert witness. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204;

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Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.) A factfinder may

disregard the expert's opinion, even if uncontradicted, and draw its own factual

inferences. The court is entitled to accept all or part of a witness's testimony, reject an

uncontradicted expert opinion, and draw its own reasonable inferences from the evidence.

We do not reweigh the evidence nor do we substitute our own reasonable inferences for

those drawn by the trier of fact.

DISPOSITION

Judgment is reversed with directions to conduct a limited retrial only on the issues

of damages (if any) for Kirk Paving's breach of contract relating to the F-cap installation

and/or the amount the Contractor was permitted to withhold for the defective F-cap job.

After the limited retrial, the court shall reevaluate the record to determine whether any

modification to the attorney fees award is warranted. In all other respects, the court's

findings are affirmed and shall be incorporated into the new final judgment. The parties

to bear their own costs on appeal.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

MCDONALD, J.

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