Filed 3/30/23 Certified for Partial Pub. 4/21/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SUFFOLK CONSTRUCTION 

COMPANY, INC.,

Plaintiff, Cross-defendant

and Appellant;

FISK ELECTRIC COMPANY,

Plaintiff and Appellant,

v.

LOS ANGELES UNIFIED 

SCHOOL DISTRICT,

Defendant and Appellant;

R.J. DAUM CONSTRUCTION 

COMPANY,

Defendant, Crosscomplainant and Respondent.

 B285400

 (Los Angeles County

 Super. Ct. No. BC541085)
2

APPEAL from judgments of the Superior Court of Los 

Angeles County, Lisa Hart Cole & Maren E. Nelson, Judges. 

Affirmed in part, reversed in part.

K&L Gates, Pierce Kavcioglu Espinosa & Cesar, 

Timothy L. Pierce, Hector Espinosa and Samira F. Torshizi for 

Plaintiff, Cross-defendant and Appellant.

Nida & Romyn, Robert Nida and Matthew J. Luce for 

Plaintiff and Appellant.

David R. Holmquist, Devora Navera Reed, Mark Fall; 

Theodora Oringher, Kevin A. Dorse, Jon-Jamison Hill, Helen M. 

Cho, Panteha Abdollahi and Andrew B. Breidenbach for 

Defendant and Appellant.

Lubka & White, Laurence P. Lubka, Ronald E. White; 

Nemecek & Cole, Benedon & Serlin and Mark Schaeffer for 

Defendant, Cross-complainant and Respondent.

* * * * * *

This appeal arises from litigation involving a public 

construction project to build the Central Region 9th Street Span 

K-8 school in downtown Los Angeles. The Los Angeles Unified 

School District (LAUSD or District) and Suffolk Construction 

Company, Inc. (Suffolk), entered into a development and 

construction agreement dated September 13, 2011 (contract), for 

the development and building of the school. Suffolk later entered 

into subcontracts with various subcontractors, including R.J. 

Daum Construction Company (Daum) for structural concrete 

work and Fisk Electric Company (Fisk) for electrical work. 

Throughout the project, various problems arose, which caused 

delay and disruption and resulted in increased costs to Suffolk, 

Daum and Fisk. One major delay occurred after LAUSD 
3

discovered significant cracks in the concrete foundation for the 

elementary school building. Suffolk submitted time impact 

analyses (TIA) to LAUSD seeking compensation on its own behalf 

and on behalf of the affected subcontractors due to the cost 

overruns resulting from delays, which Suffolk claimed were a 

result of LAUSD’s faulty plans.

Suffolk sued LAUSD on April 1, 2014, alleging breach of 

the contract, implied contractual indemnity, and seeking 

declaratory relief.1 Suffolk’s first amended complaint pled 

substantially similar claims against LAUSD and added a claim 

against Daum for breach of contract.

Trial proceeded in phases. The first phase (phase 1) 

commenced on January 30, 2017, and focused on whether LAUSD 

breached the contract by providing Suffolk with plans and 

specifications for the concrete foundations that were not correct 

(TIA 5). It was LAUSD’s position that the delays were 

attributable to Suffolk’s mismanagement of the project and that 

1 On February 28, 2014, Fisk submitted to Suffolk a certified 

claim in the amount of $1,908,157.61 for overtime acceleration 

and productivity impacts resulting from the various delays on the 

project. Suffolk passed through Fisk’s claim in its lawsuit 

against LAUSD. The notion of a pass-through claim is described 

as follows:

“When a public agency breaches a construction contract 

with a contractor, damage often ensues to a subcontractor. In 

such a situation, the subcontractor may not have legal standing 

to assert a claim directly against the public agency due to a lack 

of privity of contract, but may assert a claim against the general 

contractor. In such a case, a general contractor is permitted to 

present a pass-through claim on behalf of the subcontractor 

against the public agency.” (Howard Contracting, Inc. v. G. A. 

MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 60.)
4

the cracking of the concrete was attributable to Daum’s means 

and methods rather than LAUSD’s plans and specifications. The 

jury found that Suffolk substantially performed its contract and 

that LAUSD breached the implied warranty of correctness by 

providing plans and/or specifications for the concrete footing 

design that were not correct.

The second phase (phase 2) proceeded with a different 

judge and jury and determined Suffolk’s damages for the concrete 

issue decided in phase 1 (TIA 5). The phase 2 jury also 

considered whether LAUSD had a good faith basis to withhold 

$111,714 in retention from Suffolk, and whether LAUSD 

breached the implied warranty of correctness by providing 

incorrect plans and/or specifications for various other problems 

(TIA’s 2, 3, and 4). The phase 2 jury determined, among other 

things, that LAUSD had a good faith basis to withhold the 

retention from Suffolk. Suffolk challenged the phase 2 verdict 

with a motion for new trial and motion for a judgment 

notwithstanding the verdict (JNOV). Suffolk’s motion for new 

trial was denied but its JNOV motion was granted. The trial 

court found that, contrary to the jury’s findings, LAUSD did not 

withhold the retention amount of $111,714 in good faith.

The third phase (phase 3) of the proceedings was 

determined by cross-motions for summary adjudication. The 

central question posed by the cross-motions was whether Suffolk 

could require LAUSD to pay Daum’s attorney fee award. The 

trial court determined that LAUSD was not liable to Suffolk for 

Daum’s fees under either a theory of implied contractual 

indemnity or as damages for breach of contract.

LAUSD appeals from the phase 1 judgment, arguing that 

there was insufficient evidence to support the phase 1 jury 

verdict, that the trial court committed instructional error, and 
5

that the evidence did not support the jury’s verdict. LAUSD also 

appeals from the phase 2 judgment, arguing that the trial court 

erred in granting Suffolk’s motion for JNOV on the issue of good 

faith, erred in excluding LAUSD’s expert witness on the issue of 

good faith, and erred in refusing LAUSD’s proposed jury 

instructions on LAUSD’s licensing defense.

Suffolk cross-appeals, claiming various errors in phases 2 

and 3. Suffolk challenges the jury award of damages in phase 2 

on TIA 5, arguing that the jury awarded insufficient damages 

and the trial court erred by denying its motion for new trial on 

this issue. Suffolk further challenges for lack of sufficient 

evidence, the jury verdict on TIA 2, and argues that there was an 

irreconcilable inconsistency in the jury verdicts on TIA’s 3 and 4. 

Suffolk claims that the trial court erred in granting summary 

adjudication in favor of LAUSD in phase 3. As to its attorney fee 

request, Suffolk argues the trial court abused its discretion in 

excluding certain amounts from the fee request.

Suffolk also appeals from the trial court’s award of attorney 

fees in favor of Daum. Suffolk challenges the trial court’s 

decision to award Daum fees based on a contractual provision 

first raised in Daum’s reply brief. Suffolk argues that the 

decision was procedurally incorrect and that the contractual 

provision does not support an award of fees. Suffolk further 

argues that even if the contractual provision did support an 

award of fees, the trial court erred in failing to apportion the 

award between Suffolk and LAUSD. Finally, Suffolk challenges 

the award of damages it was found liable to pay Daum.

Fisk also appeals, arguing that the trial court erred in 

denying Fisk’s motion for attorney fees and in denying Fisk 

prejudgment interest for the portion of its award payable from 

Suffolk.
6

As set forth below, we find that the phase 1 verdict must be 

reversed and remanded for retrial on the ground that the special 

jury instruction based on Public Contract Code section 1104 was 

improper, and it is reasonably probable that the error affected

the verdict. The reversal of the phase 1 liability verdict requires 

that the phase 2 trial of damages for TIA 5 (related to the 

concrete cracking issue) must also be reversed and remanded for 

retrial. All attorney fee issues surrounding liability and damages 

for TIA 5 must also be reconsidered upon remand. Finally, the 

trial court erred in granting JNOV on the phase 2 jury verdict on 

the question of whether LAUSD had a good faith basis for 

retention of fees. Thus, the decision granting the JNOV is 

reversed with direction to reinstate the jury verdict on that issue.

The subcontractors’ claims for attorney fees and 

prejudgment interest must also be reconsidered on remand. The 

jury verdicts on TIA’s 2, 3, and 4 are affirmed.

FACTUAL BACKGROUND

LAUSD entered into the contract with Suffolk on 

September 13, 2011. Through the contract, Suffolk agreed to 

construct a work of improvement for LAUSD in a project known 

as the Central Region 9th Street Span K-8 school located near 

the downtown Los Angeles Fashion District (project). The 

contract price was $39,479,112. The contract included a number 

of documents, such as general conditions, supplementary 

conditions, design plans and drawings, technical specifications for 

each phase of work, a geotechnical report, and other ancillary 

documents (collectively contract). KPFF Consulting Engineers 

(KPFF), LAUSD’s structural engineers of record (SEOR), put 

together the specifications and structural drawings for the 

project. The project included an elementary school (ES) building, 
7

a middle school building, a multi-purpose room/locker room, and 

parking structure.

Suffolk entered into various subcontracts in connection 

with the project, including a subcontract with Daum to perform 

structural concrete work, and a subcontract with Fisk to perform 

electrical work.

Work on the project commenced in October 2011.

The January 31, 2012 concrete pour

The concrete footings for the school buildings were to be 

constructed below ground to serve as foundations for the 

buildings at the project site. By January 31, 2012, the project 

was already two months behind schedule due to delays in placing 

the concrete footings. The first pour of concrete on January 31, 

2012, for the footings consisted of 1,450 cubic yards of concrete.2

Suffolk asserts that the concrete mix for the pour had been 

approved by the LAUSD design team. However, LAUSD points 

to conflicting evidence in the record, showing that LAUSD’s 

design team stamped Suffolk’s submittal: “This document has 

been reviewed for general conformance with design concept only 

and does not relieve the fabricator of responsibility for 

conformance with design drawings and specifications.”

Suffolk points out that the January 31 pour was observed 

by KPFF and LAUSD’s inspector of record (IOR), Donald Shirley. 

Also present were third party inspectors from Koury Engineering 

2 The jury found that Suffolk was responsible for the delay 

surrounding the over-excavation of the concrete footings, which 

was at issue in TIA 2. LAUSD took the position that Suffolk 

asked Daum to perform the concrete pour in one large event, 

rather than spread over two nonconsecutive days as originally 

planned, in order to make up for the delay caused by Suffolk.
8

& Testing, Inc. (Koury), who observed the pour. Koury 

contemporaneously issued a series of inspection reports stating 

that the work met the requirements of the contract drawings and 

specifications. The inspection report noted that the mix design 

met the requirements of approved drawings and that “[a]ll 

concrete placed was mechanically vibrated and placed within 

tolerance for slump as specified on approved mix designs.” 

Koury’s deputy inspector, Jorge Delgado, testified that no 

problems with the contractor’s performance were noted. No 

notice of noncompliance for the pour procedures was issued by 

any party.

Again, LAUSD points to conflicting evidence in the record: 

that there was evidence in the record that KPFF engineers and 

inspectors were not concrete experts, nor were they tasked with 

“signing off” on the contractor’s means and methods to achieve 

nondefective results. Further, LAUSD points out that section 

13.4 of the general conditions of the contract provides that 

inspections or observations “shall not, in any way, relieve 

CONTRACTOR from responsibility for full compliance with all 

terms and conditions of the Contract Documents.” The document 

added, “IOR is not authorized to make changes in the Contract 

Documents . . . nor shall IOR inspection of the Work and methods 

relieve the CONTRACTOR of responsibility for the correction of 

subsequently discovered defects, or from its obligation to exactly 

comply with the Contract Documents.”

Three days after the January 31, 2012 pour, the District’s 

IOR alerted Suffolk and Daum that some parts of the foundation 

had subsided and showed checkerboard cracking patterns of the 

reinforcement bars (or rebar) inside the foundations. This 

subsidence cracking was referred to as plastic settlement 

cracking, or settlement cracking, because the concrete would 
9

settle under the stiff rebar while it was in a wet or plastic state. 

On February 3, 2012, Shirley e-mailed photographs of the 

cracked foundation to KPFF. Shirley noted that in his experience 

the cracks were an odd occurrence. Ghanem Garawi, LAUSD’s 

owner authorized representative (OAR), had concern that Suffolk 

did not respond with urgency to investigate and correct the 

problem, for which there were safety concerns posed by the 

cracked concrete.3

LAUSD asserts that because Suffolk and Daum did not 

take any action to rectify the cracking problem, LAUSD took the 

lead in attempting to determine the cause of the cracking and to 

assess whether the foundations were safe. KPFF investigated 

the concrete cracking through visual inspections and core 

samples to determine whether the concrete and rebar had 

debonded, which would affect the structural integrity of the 

foundation. The core samples revealed significant gaps between 

the rebar and the concrete.

Given the safety concerns, KPFF’s principal engineer on 

the project, Gary Duncan, engaged the Division of State 

Architects (DSA), the governmental entity that oversees and 

monitors public building safety, to assess how to proceed.

LAUSD points out that Suffolk initially blamed Daum for 

the cracking problem. Suffolk demanded that Daum “respond in 

writing . . . outlining what actions RJ Daum will take in order to 

achieve compliance with the Contract Document requirements.” 

Suffolk warned Daum that it “consider[ed] RJ Daum responsible 

for all cost and time impacts related to this issue.” In response, 

Daum disagreed that it was responsible for the failure. Neither 

3 The OAR is LAUSD’s principal point of contact for 

contractor communications.
10

Suffolk nor Daum made any proposals to rectify the problem in 

February or early March 2012.

In early March 2012, LAUSD instructed Suffolk to perform 

mock pours designed to identify the causes of the problem. The 

purpose of the mock pours was to observe the procedures used by 

Suffolk and Daum and evaluate the results. The parties 

ultimately performed four mock pours to test possible alterations 

that might allow for an acceptable outcome. The fourth mock 

pour resulted in a test area that did not exhibit cracking, and 

using that process, the parties were able to pour the balance of 

the foundations.

Mock 1—March 16, 2012

The first mock pour occurred on March 16, 2012 (mock 1). 

Mock 1 used the same concrete mix from the same supplier as 

was used in the original pour. LAUSD’s internal structural 

engineer, Doc Nghiem, testified that LAUSD provided oversight 

at the mock pour, including “two, three engineers [and] three, 

four inspectors.” Also present were the SEOR’s Duncan and 

Aldrin Orue of KPFF.

Daum prepared a written pour procedure, which KPFF 

approved prior to mock 1. KPFF report 8 confirmed that the pour 

followed the written pour procedure. Suffolk asserts that LAUSD 

did not request that Daum perform a procedure known as 

“revibration” of the concrete in mock 1. Further, Suffolk asserts 

that the contract did not require re-vibration of the concrete.

LAUSD provided contrary evidence of its position on 

revibration. LAUSD points to evidence that prior to mock 1 

KPFF requested that Daum consider revibration as a potential 

way to mitigate cracking. Further, LAUSD takes issue with 

Suffolk’s claim that the contract did not require revibration. 

LAUSD points out that specification 03300 mandates that the 
11

contractor at a minimum comply with “ACI 309 – Recommended 

Practice for Consolidation of Concrete.”4 ACI 309 discusses 

revibration and states, “[t]o eliminate [subsidence] cracking, the 

concrete should be revibrated at the latest time at which the 

vibrator will sink into the concrete under its own mass.” LAUSD 

asserts that KPFF asked Daum to consider ACI 309 when 

recommending revibration, but Daum refused to consider the 

suggestion “since it was RJ Daum’s opinion that these 

recommendations did not apply to foundations and footing 

conditions.” At a March 15, 2012 meeting involving 

representatives of KPFF, LAUSD, Suffolk, Daum, and Koury, 

KPFF “inquire[d] about re-vibration of the top lift near the time 

of initial set. R.J. Daum (JM) indicate[d] that they do not intend 

to perform re-vibration as not part or [sic] their common practice 

for foundations.”

The results of the mock 1 pour were better than the 

original pour, but still exhibited cracking.

On the same day as mock 1, concrete footings were poured 

at an area designated as the “[l]ocker [r]oom [a]rea.” Nghiem 

directed the contractor to revibrate a section of the pour in the 

locker room area to compare it to the unrevibrated concrete in 

mock 1. The concrete cracks in the locker room area in the small 

revibrated portion were cracked to a lesser degree than mock 1, 

though there was not much difference. Nghiem could not 

conclude that revibration was a factor that affected the cracking. 

Orue agreed that they would “not require [revibration],” but 

would “leave it up to the contractor to decide on their own if 

4 ACI is the American Concrete Institute, the leading 

authority on concrete construction.
12

revibration is appropriate to mitigate this particular condition as 

part of their means and method procedure for the next pour.”5

Mock 2—April 19, 2012

Following mock 1, KPFF recommended an “engineering 

investigation” to diagnose further issues and also recommended, 

“in addition to this, an additional mock-up with this same mix be 

poured on a section with a rat slab at the bottom of the footing,”6

which would “allow for a side by side comparison and assist us in 

evaluating the resulting effects of the different conditions if any.” 

Suffolk also suggested the use of a rat slab for mock 2. Garawi

did not approve of the use of a rat slab for mock 2 because Suffolk 

did not provide a proposal of what procedures Suffolk intended to 

follow.

Mock 2 was performed on April 19, 2012, changing only the 

concrete supplier to determine whether there was a problem with 

the material. Cracking still occurred but not as severely as with 

the original pour. Witnesses from LAUSD’s design team testified 

that mock 2 was designed to determine if changing the concrete 

mix supplier made a difference. The only thing that changed in 

mock 2 was the concrete supplier, not the concrete mix recipe. 

LAUSD points out that mock 2 showed that when Daum slowed 

5 In phase 2, Michael Holliday, Daum’s project manager, 

testified about a KPFF report indicating that the locker room 

area pour, which occurred on the same day as mock 1, and where 

Ngheim had “asked for some additional vibration or revibration,” 

showed “no visible signs of concern . . . , and the foundations 

appeared to be in conformance with the project specifications 

requirements.”

6 A rat slab is shorthand for a thin layer of concrete placed 

directly on the soil in advance of the pour to act as a barrier 

between the soil and the concrete for the footing.
13

its work and paid closer attention to the pour, the cracking was 

less pronounced

Events following mock 2

LAUSD retained concrete expert Goeffrey Hichborn from 

the concrete consulting firm Building Forensics International 

(BFI) to assist with determining the cause of the concrete 

cracking. BFI issued a preliminary report dated April 24, 2012, 

which noted a “likelihood that the reduction in concrete volume is 

specifically due to the loss of water from the fresh concrete into 

the soil . . . . This condition is commonly referred to as 

‘subsidence cracking’ . . . .”

7 Hichborn stated that the “cracking 

situation is mainly the result of the means and methods the 

concrete installer elected (or failed) to employ in the original 

placement.” As a possible solution, Hichborn’s preliminary report 

proposed the use of an admixture to reduce the loss of water.

On May 2, 2012, Hichborn memorialized plans for a mock 3 

pour after a call with Garawi, Nghiem, and KPFF engineers 

(Duncan and Orue). Hichborn stated that subsidence occurs after 

vibration, thus he opined that “the vibration itself is irrelevant to 

the subsidence because it is occurring after you vibrated it.” 

Hichborn recommended the use of an accelerant admixture, as 

well as a “barrier to moisture transport . . . between the concrete 

and soils.”

On the same date, Orue of KPFF presented Garawi with a 

proposal and revised plans for incorporating the use of a rat slab 

7 Subsidence is the gradual caving or sinking of the poured 

concrete.
14

and Visqueen layer for mock 3.8 Nghiem was in favor of following 

KPFF’s recommendation of using a rat slab and Visqueen layer 

for mock 3. 

LAUSD rejected Hichborn’s and KPFF’s proposal to use a 

rat slab or Visqueen layer for mock 3 and asked KPFF to revise 

the mock 3 plans to exclude them. Instead, Garawi instructed 

KPFF to include the use of an admixture as proposed by 

Hichborn. However, that solution turned out to be unworkable 

because the proposed admixture was not an approved chemical 

product for use on a school site.9

Mock 3—May 10, 2012

Garawi then decided mock 3 should proceed with the 

higher strength concrete mixture that had been used for an 

adjacent parking structure. Mock 3 was poured on May 10, 2012, 

and was unsuccessful. The same level of scrutiny was present at 

mock 3 as at earlier mock pours, and Daum poured strictly in 

accordance with the pour procedures. Mock 3 exhibited cracking 

similar to mock 1 and mock 2.

Mock 4—May 21, 2012

On May 14, 2012, during a call among LAUSD and its 

consultants, the parties agreed on “a rat slab with [V]isqueen

8 Visqueen is a plastic sheeting used to isolate the sides of 

the foot excavation from the concrete and block water from 

traveling from the concrete into the vertical earth surfaces.

9 There was conflicting testimony on the reason the 

admixture proposed by Hichborn (called Polarset) was not used. 

While Garawi testified that it was because it was not an 

approved chemical, Duncan testified that there was insufficient 

data suggesting that this particular admixture had been used 

elsewhere and “the concrete would still come up to strength and 

perform the way we expected it to.”
15

sides for the mockup as a way to best insure favorable results on 

the next mock-up.” On the same day, KPFF issued a 

memorandum requiring that “[t]he mud slab shall be poured a 

minimum of 3 days prior to placement of foundation concrete. 

Contractor to submit the mud slab mix design for review.”10 

Suffolk submitted a mud slab mix design to LAUSD, which was 

approved by LAUSD, KPFF and Koury, and used in mock 4. The 

KPFF memorandum also included new structural sketches (SSK) 

showing “exactly how to install the water barrier.”

Mock 4 took place on May 21, 2012, and was successful. As 

directed, Daum installed the rat slab and Visqueen to isolate the 

concrete from the adjacent soil and the cracking did not occur. 

Mock 4 used the same concrete mix used in the January 31, 2012 

pour.

After mock 4, Nghiem concluded that the moisture barrier 

(i.e., the rat slab and Visqueen) prevented the water from 

escaping and the “concrete [had] a chance to harden.” Thus, “the 

cracks didn’t appear.” Nghiem’s ultimate conclusion was that 

“the adverse effects of the concrete [were] due to a rapid loss of 

water from fresh concrete into the soil.” Duncan of KPFF agreed 

that the use of water barriers had eliminated the “subsidence 

that [they] had seen in the first three mock-ups.” KPFF report 12 

confirmed mock 4’s success and “the pour plan and procedures 

used for . . . mock-up [#4] appear to be acceptable for use on the 

remainder of the [foundations of the project].”

On October 18, 2012, KPFF sent a letter summarizing the 

events surrounding the mock pours, concluding: “[T]he 

foundation issues encountered at this site extended from an 

10 The term “mud slab” is a term used interchangeably with 

the term rat slab on this project.
16

unfavorable reaction between the concrete and the soils. This is 

evident from the favorable results of Mock-up #4 where a barrier 

was placed between two materials. It is likely that the adverse 

effect on the concrete is due to the rapid loss of water from the 

fresh concrete into the soil.”

Suffolk and Daum later claimed that the mock pour process 

proved the cracking was the result of a design error, because the 

rat slab and Visqueen sketches KPFF provided for mock 4 

constituted a design change that was necessary to “correct” a 

design error.

LAUSD takes issue with Suffolk’s portrayal of the rat slab 

and Visqueen additions in mock 4 as design changes, noting that 

the SSK produced by KPFF simply showed the placement of the 

Visqueen and mud slab on the original design sheet. KPFF’s 

engineer testified that he issues supplementary drawings like 

SSK’s for many reasons, and providing a diagram like the mock 4 

SSK does not constitute a design change. Other KPFF engineers 

also testified that the SSK did not constitute a design change.

In addition, LAUSD points out that the use of Visqueen

was not a design change because specification 03000 permits the 

use of Visqueen. LAUSD argues that the mud slab and Visqueen

were remedial, but not probative, of the underlying cause of the 

cracking.

LAUSD’s alternate theories for the cause of the concrete 

cracking

Prior to the mock pours, KPFF had identified inadequate or 

improper vibration techniques as a common cause of the type of 

cracking observed. For the mock pours, KPFF recommended that 

Daum reconsider its vibration techniques, specifically, the failure 
17

to perform revibration. Daum did not act on this suggestion 

during the mock pours.11

LAUSD also presented evidence suggesting that Daum’s 

concrete mix was faulty.12 In support of this argument, LAUSD 

presented testimony from a concrete engineering and concrete

mix expert, Mateusz Radlinski, Ph.D. Radlinski’s analysis 

showed that Daum’s concrete mix used more water than was 

necessary. Radlinski testified that “the vast majority of the 

batches with maybe the exception [of] two, . . . significantly 

exceeded” the maximum water limit.” Avi Mor, Daum’s concrete 

expert, affirmed that the concrete mix Daum selected exceeded 

the water content maximum specified in the contract.

LAUSD also presented evidence that Daum could have 

mitigated the effects of the excess water by adjusting other 

components of the concrete mix.13 The contract specifications 

gave Daum the option to use admixtures to reduce the potential 

11 In a field report prepared on March 16, 2012, KPFF 

engineers Orue and Duncan noted that revibration had not 

occurred, despite KPFF’s suggestion and referral to the ACI 

Standard Practices manual.

12 Garawi testified that the contractor was responsible for 

creating the concrete mixture.

13 In phase 2, LAUSD argued that it had a good faith basis to 

withhold retention funds because of its good faith belief that the 

concrete cracking was caused by contractor means and methods.

LAUSD took the position that its good faith belief was based, in 

part, on Suffolk’s failure to adjust its concrete mix through the 

use of an admixture or by adjusting the water content. LAUSD’s 

expert, Hichborn, also testified that the water content in the 

mixture Daum used exceeded the maximum water content set by 

contract specifications.
18

for excess water bleeding. Daum could have offset excessive 

water with an air entraining admixture, which is a chemical that 

“generate[s] and introduce[s] small microscopic air bubbles into 

the concrete [and] increases the volume.” Admixtures are 

“broadly recognized in the industry [to] significantly 

reduce[]bleeding of concrete.” Radlinksi concluded that Daum 

should have modified the mix it selected to account for the 

excessive water.

Radlinski also testified that Daum’s selected concrete mix 

failed to use the required aggregate composition.14 Radlinski 

testified that Daum “used incorrect size of the aggregate. Not the 

size that was specified in the concrete specification.” Daum’s own

expert conceded that Daum failed to comply with the contract 

aggregate requirements.

In phase 2, LAUSD presented testimony that during the 

initial January 2012 pour, there were “many areas at the 

elementary school [where] there was not cracking and there was 

no mud slab.” LAUSD points out that, had a mud slab or 

Visqueen been necessary to ensure a proper foundation pour, all 

of the ES foundations would have exhibited the same cracking 

that occurred elsewhere.

Other delay and TIA claims

During the project, Suffolk submitted four requests to 

extend the contract completion date, each submitted in the form 

of a TIA.

TIA 2—over-excavation

Early in the project, Suffolk submitted to LAUSD request 

for clarification (RFC) 62, dated October 25, 2011, to confirm 

direction to deepen or over-excavate certain areas of the footing 

14 Aggregates are small rocks or pebbles in the mix.
19

excavation and then refill to the original five-foot excavation 

depth in areas where the soil was not sufficiently stable. On 

October 26, 2011, LAUSD responded, citing the geotechnical 

specifications: “[I]n accordance with the project geotechnical 

report, where the recommended lateral overexcavation of 5-feet 

beyond footings could not be performed, and footings were not 

designed for passive resistance, the footing excavation should be 

deepened to the competent alluvium found at or below a depth of 

5 feet . . . .”

This response to RFC 62, which directed Suffolk to perform 

the over-excavation work, was approved and signed by the OAR, 

the SEOR, and Geocon West, Inc. (Geocon), the geotechnical 

engineer of record.

Suffolk asserts that uncertainty remained as to which 

areas of the footing the response to RFC 62 applied. In a 

supplemental response to RFC 62, KPFF and Geocon revised 

structural drawing sheet S201, giving more details on areas that 

required additional excavation work.

Suffolk’s project manager, Armin Mumper, testified that 

the revised S201 drawing confirmed Geocon’s direction and 

clarified the specific locations along the property line that 

required over-digging and then filling of the footings back to the 

designed five-foot depth. Mumper attested that the information 

in the RFC 62 supplement was necessary to proceed with and 

finish the open trenches where the footings would be poured.

On October 28, 2011, Suffolk provided to LAUSD an “Initial 

Notice of Issue/Event/Condition/Circumstance/Cause of Perceived 

Delay . . .” regarding the over-excavation issue, which it referred 

to as “Event Number 1.” On November 15, 2011, Suffolk 

retracted the “Initial Notice Event No. 1,” stating: “This 

transmittal will serve as a formal notice the Initial Notice Event 
20

No1 dated Oct 28, 2011 for the additional over-ex, will be 

retracted by Suffolk. RFC0062 provide[s] sufficient direction to 

proceed with the over-ex at the footing. Please void the Initial 

Notice of Event No. 1 from your files.”

LAUSD explains that the retraction was significant 

because the contract required Suffolk to submit an initial notice 

in order to assert a claim of delay. By voiding and retracting its 

Initial Notice No. 1, Suffolk communicated that it did not view 

RFC 62 as causing any delays.

Suffolk submitted contingency allocation proposal (CAP)15

16 for direct cost to over-excavate beyond five feet and backfill 

the areas of the footings as specified by the response to RFC 62. 

Suffolk also submitted CAP 36 for additional payment for the 

extra time and delay required to get extra direction to perform 

the extra work. In response, LAUSD issued a change order in the 

form of contingency disbursement authorization (CDA) 12, 

approving $18,750 for the direct cost to perform the extra work 

related to the over-excavation issue (CAP 16), but did not approve 

CAP 36 for associated delays.

Suffolk submitted TIA 2 to request a time extension related 

to CAP 36. TIA 2 was submitted in August 2012 for work that 

had been performed in November 2011. LAUSD repudiated a 

negotiated change order for TIA 2 by never returning a copy 

executed by LAUSD management. Suffolk’s TIA 2 delay claim at 

trial alleged that the plans and specifications were incorrect 

because Suffolk was required to perform over-excavation that 

was not described in the plans.

15 A CAP was a change order request, which Suffolk would 

submit for additional payments when extra work outside of the 

contract was necessary.
21

At trial, LAUSD pointed to evidence that the contract 

documents expressly stated that Suffolk should perform overexcavation at the property lines. Specifically, section 7.1.6 of the 

geotechnical investigation report required the depth of 

excavations along property lines to be increased: “Where 

excavation and compaction cannot be performed, such as adjacent 

to property lines, foundation should be deepened as necessary to 

bear in the undisturbed competent alluvium at or below a depth 

of five feet.” The provision is repeated in section 7.4.6.

LAUSD claims the contract made it clear that the design 

drawings did not encompass every detail of potential overexcavation. Sections 3.1 and 3.2 of the general conditions state: 

“Any item of Work mentioned in the Specifications and not shown 

on the Drawings . . . shall be provided by Contractor as if shown 

or mentioned in both,” and “it is not the intent . . . to show on the 

Drawings all items of the Work described or specified in the 

Specifications even if such items could have been shown and/or 

specified.” Thus, LAUSD states it was not necessary for the 

drawings to delineate the specific property lines where overexcavation should be completed.

In addition, LAUSD presented evidence that undercut the 

credibility of Suffolk’s TIA 2 claim by pointing out that Suffolk 

belatedly submitted TIA 2 in August 2012 for events that 

occurred in November 2011. Further, Suffolk claimed in TIA 2 

that it had been unable to perform any foundation excavations for 

17 days in November 2011 because it could not “proceed with 

excavation” absent “formal direction” on excavation 

requirements. Garawi responded to TIA 2 on September 5, 2012, 

providing photographs showing Suffolk had performed the very 

work it claimed it could not perform. On September 7, 2012, 

Garawi further responded to TIA 2, indicating “Contrary to 
22

Contractor’s statement . . . that Contractor ‘cannot proceed with 

excavation of the concrete foundations without formal direction’,

on 10/28/11 concrete was paced at the two footings in question . . . 

and Contractor continued to progress with the excavation of 

footing[s] for lockers/MPR . . . .” (Boldface and italics omitted.)

On September 12, 2012, Suffolk responded to Garawi that,

while it continued with excavations in that area, it did not do so 

at the property line where the deepening of footings was in 

question. On September 14, Garawi responded with more 

photographs refuting Suffolk’s claims, writing, “[T]ake a look at 

the attached photos on progress of footing excavation on 

11/15/11 . . . and let me know if you will be dropping this 

argument . . . .” Garawi testified at trial that the photographs 

showed that Suffolk was excavating the foundations along the 

property lines. Though Suffolk did not respond to Garawi, it 

instead resubmitted the same narrative in a revised TIA 2 claim 

approximately one year later.

TIA’s 3 and 4—plumbing issues

At trial Suffolk asserted that it also encountered conflicts 

in LAUSD’s drawings related to the plumbing underneath the 

floor slab for the ES. Mumper testified that the conflict was in 

LAUSD drawings, which showed plumbing pipes and concrete 

occupying the same spaces: “the plumbing pipes were going 

through the concrete foundations and the plans didn’t make 

allowances for that to take place.” Mumper testified he could not 

resolve this because “[w]e basically put the work in place as it’s 

shown on the drawings.”

Suffolk asserts that it submitted a number of RFC’s 

seeking clarification on how LAUSD wanted to resolve the 

conflicts in the plans. For example, RFC 191 sought clarification 

for the “[w]ater closet [to be] relocated to clear the footing.” 
23

Mumper testified that the designers “actually moved the entire 

toilet to get rid of the conflict,” a solution that could only be made 

by the licensed designers for the project. In addition to changes 

in the various RFC’s, LAUSD also issued a “bulletin” that showed 

changes to the underground plumbing system. Bulletin 2 was 

issued to resolve numerous issues, including all of the plumbing 

issues defined in the bulletin.16

Suffolk submitted CAP 106 for approximately $62,000 for 

direct costs for additional plumbing work required to address the 

changes in bulletins 1 and 2, among others. LAUSD approved 

CAP 106.17

Suffolk submitted TIA’s 3 and 4 to support time extension 

requests for the delay necessary to resolve and implement the 

underground plumbing changes, claiming it was unnecessary for 

Suffolk to divide the conflicts in plumbing drawings into two 

separate TIA’s, but it did so based on the relevant time periods. 

16 LAUSD states that bulletins “may contain numerous 

unrelated design revisions for different areas of the Project.” Also

the revisions in bulletin 2 addressed several separate parts of the 

design and project. LAUSD asserts that in many cases, the 

design revisions in bulletin 2 reduced Suffolk’s scope of work or 

eliminated features from the design, adding that the fact that 

several design issues are grouped into a single bulletin or paid for 

by a single CAP does not indicate those design issues are 

identical.

17 It is LAUSD’s position that CAP 106 paid Suffolk’s net 

increased direct costs for a broad range of changed work, reduced 

scope, and contained design-related clarifications on issues 

unrelated to any of the issues in TIA 3, TIA 4, or bulletin 2. 

Thus, LAUSD states, not all of the issues addressed in CAP 106 

are identical, nor are they related to the same design issue or the 

same area of the project.
24

TIA 3 addressed delays in December 2011 and TIA 4 addressed 

delays in January 2012.

LAUSD repudiated a negotiated change order it drafted for 

TIA’s 3 and 4 by never executing the final change order.

At trial, the jury found that the claim for TIA 3 arose from 

incorrect plans and specifications, while the claim for TIA 4 did 

not. Suffolk asserts on appeal that the jury made inconsistent 

factual determinations based on the same evidence in finding 

that the claim for TIA 3 arose from incorrect plans and 

specifications while the claim for TIA 4 did not.

TIA 5—concrete footing delays

Suffolk submitted TIA 5 to LAUSD seeking a time 

extension for the delay from the discovery of the concrete 

cracking after the January 2012 pour, throughout the 

implementation of the four mock pours. Suffolk submitted CAP’s 

390R2 and 390.1 seeking roughly $3.3 million in additional costs 

and impacts arising from that issue. 

CAP 390.1 included Suffolk’s claims, while CAP 390 and its 

later iterations included subcontractor claims that were being 

passed through to LAUSD, including claims by Daum and Fisk. 

LAUSD rejected TIA 5, CAP 390 and CAP 391.

PROCEDURAL HISTORY

Pleadings and pretrial orders

Suffolk filed the original complaint in this action against 

LAUSD on April 1, 2014, alleging breach of contract, implied 

contractual indemnity and seeking declaratory relief. LAUSD’s 

demurrer to all causes of action was overruled as to the breach of 

contract and indemnity claims.

On July 24, 2014, LAUSD filed its answer and asserted 

affirmative defenses claiming, in part, that Suffolk’s alleged 
25

damages were the result of the conduct of Suffolk and its 

subcontractors. On November 14, 2014, Suffolk filed a first 

amended complaint adding Daum as a defendant and alleging 

contractual indemnity against Daum in the event LAUSD could 

prove its contention that the concrete cracking was caused by 

Daum’s poor workmanship.

On January 2, 2015, Daum filed a cross-complaint against 

Suffolk for breach of contract, quantum meruit, open book 

account, and violation of prompt payment statutes.

On November 7, 2016, the trial court bifurcated trial, 

ordering a phase 1 trial to determine only liability for the 

concrete cracking. Phase 2 of trial was to cover damages for the 

concrete cracking issue, as well as liability and damages for all 

other claims. 

Phase 1 of trial

Phase 1 of trial commenced on January 30, 2017. The jury 

returned a special verdict on February 15, 2017, finding that 

Suffolk did all, or substantially all, of the significant things 

required by its contract with LAUSD and that LAUSD breached 

the implied warranty of correctness of plans and specifications by 

providing project plans or specifications for the concrete footing 

design that were not correct.

LAUSD brought a motion for JNOV and a motion for new 

trial after the phase 1 verdict. In its JNOV motion, LAUSD 

argued that no substantial evidence supported the jury’s special 

verdict on liability. On August 30, 2017, the trial court provided 

a written ruling rejecting this argument and denying the motion 

for JNOV. In its motion for new trial, LAUSD raised numerous 

claims including that the trial court erred by giving Suffolk’s jury 

instruction regarding Public Contract Code section 1104 and 

failing to give LAUSD’s proposed instruction on CACI 4510. The 
26

trial court rejected LAUSD’s arguments and denied the motion 

for new trial.

Phase 2 of trial

Before a different jury and a different judge, phase 2 of the 

trial began on April 11, 2017. Two new parties participated in 

the phase 2 trial: Fisk and Maya Steel Fabrication, Inc. (Maya), 

each making pass-through claims.

On May 4, 2017, the jury rendered its special verdict that 

LAUSD did not breach the implied warranty of correctness of 

plans and specifications as to TIA 2 and TIA 4. The jury did find 

that LAUSD breached the implied warranty of correctness of 

plans and specifications as to TIA 3, but that the breach was not 

a substantial factor in causing harm to Suffolk.

As to LAUSD’s withholding of $111,714 in retention from 

Suffolk, the jury found that in December 2013 LAUSD had a good 

faith basis to withhold the money from Suffolk.

The jury awarded Suffolk a total of $2,296,748.05 for TIA 5, 

which included all amounts properly passed through on behalf of 

subcontractors Fisk, Daum, and Maya. The jury allocated from 

its total award to the various subcontractors: $1,046,479 to Fisk; 

$699,635 to Daum; and $222,055 to Maya. The jury found that 

$624,559.63 of Fisk’s award was not the responsibility of LAUSD. 

Similarly, the jury found that $147,658 of Daum’s award was not 

the responsibility of LAUSD.

Suffolk filed motions for new trial and for JNOV.

The motion for new trial, among other grounds, was made 

on the ground that the phase 2 damage award was contrary to 

the phase 1 verdict and undisputed facts presented in the phase 2 

trial. The trial court denied Suffolk’s motion for new trial.

Suffolk’s JNOV motion was based in part on Suffolk’s 

position that the jury erred in determining that LAUSD had a 
27

good faith basis to withhold the retention of $111,714 in 

professional services. The trial court granted this motion, finding 

that, while at the time of the initial pour there was uncertainty 

as to the cause of the concrete cracking, after the fourth mock 

pour, LAUSD could not reasonably believe that the problem arose 

from the contractor’s means and methods. The trial court 

concluded that on this issue only a JNOV was appropriate.

Posttrial fee motions

Suffolk moved for attorney fees against LAUSD as the 

prevailing party on its prompt payment penalty claim, pursuant 

to Public Contract Code section 7107.

Daum moved for attorney fees against LAUSD and Suffolk 

under Public Contract Code section 7107 and section 8.6.2 of the 

subcontract.

On April 12, 2018, the trial court entered its “Order Re 

Attorneys’ Fees and Prejudgment Interest” (attorney fees order), 

finding that Suffolk was entitled to attorney fees from LAUSD 

under Public Contract Code section 7107, subdivision (f), in the 

amount of $400,000. The court awarded Daum the full amount of 

its requested attorney fees, $775,523, from Suffolk.

Phase 3 of trial

The issue in phase 3 was whether Suffolk could compel 

LAUSD to pay Daum’s attorney fee award pursuant to Suffolk’s 

implied contractual indemnity or breach of contract causes of 

action. The trial court determined that LAUSD was not liable to 

Suffolk for Daum’s fees under either a theory of implied 

contractual indemnity or breach of contract. Accordingly, 

LAUSD’s motion was granted, and Suffolk’s motion was denied.

Notices of appeal

LAUSD filed a notice of appeal following phase 1 and the 

posttrial motions on September 8, 2017. This court stayed the 
28

appeal in a written order on December 15, 2017, to allow the trial 

court to resolve remaining issues.

Suffolk filed a notice of appeal from the April 12, 2018 

phase 2 judgment on May 23, 2018.

On May 7, 2019, the trial court filed a final amended 

judgment on jury verdict and postverdict rulings.

Although both parties had previously appealed, both 

parties filed notices of appeal following the entry of the final 

amended judgment. Suffolk filed a notice of appeal from the 

amended judgment on June 24, 2019. LAUSD filed a notice of 

appeal of the amended judgment on June 26, 2019.

DISCUSSION

I. LAUSD’s direct appeal

LAUSD raises five issues in its appeal from the judgment, 

three issues concerning phase 1 of trial and two issues concerning

phase 2 of trial. As to phase 1, LAUSD argues that the trial 

court erred when it refused to give its modified proposed jury 

instruction based on CACI No. 4510 concerning its affirmative 

defense that Suffolk failed to competently perform its work, and 

instead gave Suffolk’s special Public Contract Code section 1104 

(section 1104) jury instruction concerning a public entity’s 

responsibility for the completeness and accuracy of plans and 

specifications. In addition, LAUSD argues that substantial 

evidence did not support the phase 1 verdict.

As to phase 2, LAUSD argues that the trial court 

improperly precluded it from presenting certain expert testimony 

related to the good faith retention of funds and that the trial 

court erred by granting JNOV in favor of Suffolk on the part of 

the phase 2 verdict related to LAUSD’s good faith retention of 

funds. Further, LAUSD argues that the trial court erred in 
29

declining to give LAUSD’s proposed jury instruction regarding its 

defense related to Suffolk’s licensure status.

We first address the issues concerning phase 1 of trial and 

conclude (1) the special section 1104 instruction was erroneous 

and prejudicial, therefore requiring retrial on the issue of liability 

for the concrete cracking; (2) the CACI No. 4510 instruction, if 

error, constituted harmless error; and (3) LAUSD’s substantial 

evidence claim is moot, as the matter will be remanded for 

retrial.

We next address the issues concerning phase 2 of trial and 

conclude that the trial court erred in granting JNOV in favor of 

Suffolk on the part of the phase 2 verdict related to LAUSD’s 

good faith retention of funds. We find no error in the trial court’s 

refusal to give LAUSD’s proposed jury instruction on Suffolk’s 

licensure status.

A. Instructional error—phase 1

Instructional error is subject to a de novo standard of 

review. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) It 

is primarily a legal inquiry in which we need not give deference 

to the trial court’s decision. (People v. Waidla (2000) 22 Cal.4th

690, 733.) “[W]here it is contended that the trial judge gave an 

erroneous instruction,” we must “view the evidence in the light 

most favorable to the claim of instructional error.” (MizeKurzman v. Marin Community College Dist. (2012) 202 

Cal.App.4th 832, 845 (Mize-Kurzman).)

However, the giving of an erroneous jury instruction should 

not be disturbed unless, “‘after an examination of the entire 

cause, including the evidence, the court shall be of the opinion 

that the error complained of has resulted in a miscarriage of 

justice.’” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 

(Soule).) Instructional error is prejudicial in a civil case where 
30

“‘“‘it seems probable’ that the error ‘prejudicially affected the 

verdict.’”’” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 846.)

1. Suffolk’s special section 1104 jury instruction

a. Relevant factual background

One of LAUSD’s defenses on the concrete cracking issue 

was that Suffolk was responsible for selecting the concrete mix 

using its ingenuity and experience. LAUSD’s position was that if 

nondefective concrete was poured by Suffolk using a different 

concrete mix, the rat slab and Visqueen would have been 

unnecessary. LAUSD argued that Suffolk did not prove that it 

was impossible or impracticable to select a concrete mix that 

would not have cracked in the absence of a rat slab and Visqueen.

In support of this argument, LAUSD presented expert 

testimony from Radlinski, a concrete engineering and concrete

mix expert, who testified that the concrete mix had more water 

than necessary and exceeded the maximum water limit. LAUSD 

also presented evidence that Daum could have used admixtures 

to reduce the cracking and failed to use the correct aggregate 

composition within the mix.

Thus, in avoiding liability on the issue of the concrete 

cracking, LAUSD relied in part on the premise that the selection 

of the concrete mix was Suffolk’s responsibility and that the 

selection of concrete mix was faulty.

b. Special instruction and section 1104

Suffolk’s special instruction No. 13 was based on section 

1104.18 The instruction read: “No local public entity shall require 

18 Section 1104 states: “No local public entity, charter city, or 

charter county shall require a bidder to assume responsibility for 

the completeness and accuracy of architectural or engineering 

plans and specifications on public works projects, except on 
31

a bidder to assume responsibility for the completeness and 

accuracy of architectural or engineering plans and specifications 

on public works projects.”

Section 1104 was enacted to prohibit a public entity from 

transferring design responsibility to the contractor. The 

legislative history shows that the Legislature accepted the longstanding division of responsibilities on public construction 

projects set forth in United States v. Spearin (1918) 248 U.S. 132 

(Spearin).19 However, the Legislature noted a “recent trend by 

local entities to utilize contract provisions to transfer design 

liability from architects to general contractors.” (Sen. Rules 

Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. 

Bill No. 1314 (1999-2000 Reg. Sess.) as amended Sept. 2, 1999, 

p. 3.) The Legislature noted that this trend ran “counter to the 

clearly designated design build projects. Nothing in this section 

shall be construed to prohibit a local public entity, charter city, or 

charter county from requiring a bidder to review architectural or 

engineering plans and specifications prior to submission of a bid, 

and report any errors and omissions noted by the contractor to 

the architect or owner. The review by the contractor shall be 

confined to the contractor’s capacity as a contractor, and not as a 

licensed design professional.”

19 Spearin is regarded as the seminal case setting forth the 

division of responsibilities between a public entity and a 

contractor. Spearin set forth the principle that “if the contractor 

is bound to build according to plans and specifications prepared 

by the owner, the contractor will not be responsible for the 

consequences of defects in the plans and specifications.” 

(Spearin, supra, 248 U.S. at p. 136.) This law is the foundation of 

the cause of action for breach of implied warranty of correctness 

of plans and specifications and is sometimes referred to as the 

Spearin doctrine.
32

long-standing division of responsibilities on construction projects 

which was formally recognized by the U.S. Supreme Court in 

[Spearin].” (Ibid.) Due to this trend of contractual shifting of 

responsibilities, the Legislature enacted section 1104 to prohibit 

public entities from requiring bidders to assume such 

responsibilities. The purpose of section 1104 was thus to prevent 

public entities from attempting to contract around the Spearin 

doctrine.

Case law interpreting section 1104 is sparse. However, the 

few available cases support the premise that section 1104 is not 

relevant to a claim for breach of warranty of the correctness of 

plans and specifications. Instead, its purpose is to prevent public 

entities from attempting to contract around their obligation to 

provide correct plans and specifications. (Thompson Pacific 

Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 

525, 553 (Thompson) [“Section 1104 prevents the public entity 

from placing the risk of accuracy and completeness of the plans 

and specifications upon the contractor. It says nothing about the 

contractor’s burden to prove that the public entity breached the 

warranty [of correctness].”].) In Thompson, a contractor hired by 

a city to construct a public project brought an action against the 

city to recover for extra work. When the city prevailed at trial, 

the contractor appealed, arguing, in part, that the trial court 

erred by declining to give the jury its proposed instruction based 

on section 1104.20 The Thompson court rejected the contractor’s 

20 The contractor’s proposed instruction read, “‘[The city] had 

a duty to provide adequate plans and specifications. [Thompson] 

had no responsibility for the adequacy of [the city’s] plans and 

specifications, nor any duty to supplement any inadequacy of 
33

argument, finding that the trial court did not err in refusing this 

instruction. As the Thompson court noted, section 1104 is not 

relevant to a contractor’s claim that a public entity breached the 

warranty of correctness. (Thompson, at p. 553.)

In Los Angeles Unified School Dist. v. Great American Ins.

Co. (2010) 49 Cal.4th 739 (Great American), the Supreme Court 

addressed in detail the requirements for a contractor’s claim 

against a public entity when the contractor is misled by incorrect 

plans and specifications and, as a result, submits a bid that is 

lower than the contractor would have otherwise made. The Great 

American court held that the contractor need not prove 

affirmative fraudulent intent to conceal in order to recover 

additional compensation for the public entity’s failure to disclose 

material information. (Id. at pp. 753-754.) In explaining the 

effect of section 1104, the Great American court stated, 

“although . . . section 1104 prohibits local public entities from 

requiring bidders to assume responsibility for the completeness 

and accuracy of architectural or engineering plans and 

specifications, public entities retain the power to contractually 

disclaim responsibility for assumptions a contractor might draw 

from the presence or absence of information.” (Great American,

at p. 752.) This language, which concerns a public entity’s 

contractual powers, supports an interpretation of section 1104 

that limits it to a formal or contractual shifting of responsibility.

The language of the statute, the legislative history, and the 

limited case law available suggest that section 1104 is applicable 

only where a public entity attempts, through contractual 

language or other formal means, to require a bidder to assume 

those plans and specifications.” (Thompson, supra, 155 

Cal.App.4th at p. 552.)
34

responsibility for the completeness and accuracy of architectural 

or engineering plans and specifications on a public works project. 

Suffolk has made no such claim in this case.

c. LAUSD’s arguments

LAUSD argues that there was no basis for the trial court to 

give the section 1104 instruction, since LAUSD’s contract did not 

transfer design responsibility to Suffolk. In fact, the instruction 

was irrelevant, as it has no application to a claim for breach of 

the implied warranty of correctness. (Thompson, supra, 155 

Cal.App.4th at p. 553.) LAUSD argues that the broad instruction

allowed Suffolk to argue that requiring Suffolk to competently 

choose an appropriate concrete mix violated section 1104. 

LAUSD argues that there is no legal precedent that prohibits a 

government agency from allowing the contractor the 

responsibility and flexibility to use its expertise to select a 

concrete mix that best suits its methods and the conditions of the 

project.

i. Irrelevance of section 1104

LAUSD argues that the contract specifications for the 

concrete mix, found in specifications 02317 and 03300, did not 

require Suffolk to assume responsibility for the correctness of 

LAUSD’s design.21 Instead, these were proper objective 

21 LAUSD points to numerous contractual provisions that set 

general performance specifications for the concrete mix—not 

specific design formulas. specification 03300, section 1.2A.9, 

required compliance with ACI Publication 309, “Recommended 

Practice for Consolidation of Concrete.” ACI 309.2R-98, section 

2.2 states, “Specifications should be sufficiently broad in scope to 

permit adjustments of mixture proportions . . . Accepted mixture 

proportions may need adjustments to produce the desired 
35

performance standards, which allowed the contractor to select the 

proportions and ingredients in the concrete mix within the 

parameters of LAUSD’s design. This allowed Suffolk, the entity 

with the most extensive expertise in performing concrete work, to 

select the appropriate concrete mix. LAUSD points to federal 

and foreign authority suggesting that the Spearin doctrine does 

not apply to performance specifications, but only to design 

specifications.22 LAUSD presented testimonial evidence that an 

concrete characteristics and to minimize consolidation problems.” 

Daum’s concrete expert, Dr. Mor, testified that such performance 

specifications are preferred and agreed that the contract in this 

case gave parameters for the concrete mix, but still allowed the 

contractor to determine the overall mix. Specification 03300, 

section 1.5A, required Suffolk to use a “registered civil engineer 

with experience in concrete mix design [to] select the relative 

amounts of ingredients to be used as basic proportions of the 

concrete mixes proposed for use under the provisions of ACI 

318 . . . .” Specification 03300, section 2.2D provided that 

“[p]roportions of materials shall provide workability and 

consistency to permit concrete to be placed readily into forms and

around reinforcement under conditions of placement to be 

employed, without segregation or excessive bleeding.” ACI 318-

08, section 5.2.1, provides that concrete mix proportions “shall” 

provide workability “without segregation or excessive bleeding.” 

The specifications also allowed Suffolk to use admixtures in the 

concrete mix and set ranges for the sizes of the aggregates.

22 “While there are two types of specifications, design and 

performance, only a design specification creates an implied 

warranty. [¶] Performance specifications ‘set forth an objective 

or standard to be achieved, and the successful bidder is expected 

to exercise his ingenuity in achieving [it].’” (James Talcott 

Constr. Inc. v. United States (Ct.Cl. Mar. 4, 2019, No. 14-427C)

2019 WL 1040383, *4; see also Aleutian Constructors v. United 
36

experienced contractor will have a wealth of knowledge about the 

performance of different concrete mixes in different 

circumstances and that the contract gave the contractor leeway 

to determine the best mix for the construction. Suffolk did not 

claim that these contractual provisions regarding the parameters 

for the concrete mix violated section 1104.

LAUSD argues that the instruction was not necessary to 

establish any of the elements of Suffolk’s claim for breach of 

implied warranty of correctness of plans and specifications.23 

Instead, as explained above, section 1104 was designed to 

prohibit “local entities [from] utili[zing] contract provisions to 

transfer design liability from architects to general contractors.” 

(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis 

of Assem. Bill No. 1314 (1999-2000 Reg. Sess.) as amended 

Sept. 2, 1999, p. 3.) Thus, LAUSD argues, section 1104 was 

enacted to prevent public agencies from contracting around the 

States (Ct.Cl. 1991) 24 Cl.Ct. 372, 390; Haehn Management Co. v. 

United States (Ct.Cl. 1988) 15 Cl.Ct. 50, 56; District of Columbia 

v. District of Columbia Contract Appeals Bd. (D.C.App. 2016) 145 

A.3d 523, 536; Florida Bd. of Regents v. Mycon Corp. 

(Fla.Dist.Ct.App. 1995) 651 So.2d 149, 153.)

23 The breach of implied warranty of correctness applies 

where plans and specifications include an incorrect 

representation. Under such circumstances, a contractor “‘may 

recover . . . for extra work or expenses necessitated by the 

conditions being other than as represented.’” (Great American, 

supra, 49 Cal.4th at p. 748.) “This rule is mainly based on the 

theory that the furnishing of misleading plans and specifications 

by the public body constitutes a breach of an implied warranty of 

their correctness.” (Souza & McCue Constr. Co. v. Superior Court 

(1962) 57 Cal.2d 508, 510-511.) The Souza court cited the 

seminal 1918 decision in Spearin, supra, 248 U.S. 132, 136-137.
37

implied warranty of correctness. It did not change the 

fundamental elements or scope of a claim for breach of implied 

warranty of correctness. (Thompson, supra, 155 Cal.App.4th at 

p. 553.)

ii. Prejudice

LAUSD argues that Suffolk improperly used the special 

section 1104 instruction in closing argument. Specifically, 

Suffolk argued: “This is a California statute, a code section, so the 

contract can’t override it. Any provision that the school district 

stands up this afternoon and says, well, this requires the 

contractor to adjust the mix to fix this problem is in violation of 

the statute.”

Suffolk continued that, “essentially, now [LAUSD is] saying 

the contractor should have designed the [concrete] mix,” but “the 

public agency cannot transfer this design responsibility to the 

contractor.”

LAUSD argues that Suffolk used its section 1104 

instruction to argue that by not giving Suffolk a precise recipe for 

the concrete mix, LAUSD violated section 1104 by unlawfully 

requiring the contractor to assume responsibility for the 

completeness and accuracy of LAUSD’s plans and specifications. 

LAUSD argues that this premise, and Suffolk’s use of its section 

1104 instruction, were improper and misstated the law.

d. Suffolk’s counterarguments

Suffolk takes a broader interpretation of section 1104, 

arguing that it is not limited to a contractual shifting of 

responsibility for the completeness and accuracy of architectural 

or engineering plans and specifications. Suffolk argues that 

section 1104 places the burden on the public entity to issue 

correct and complete design plans and prohibits the public entity 

from requiring the bidder to assume responsibility for the 
38

completeness and accuracy of such plans and specifications. 

Suffolk takes the position that charging LAUSD with 

responsibility for design errors and omissions is consistent with 

section 1104, and the instruction was relevant to LAUSD’s 

contention that Suffolk should have taken responsibility to 

develop a new concrete mix to solve the cracking problem. 

Suffolk points out that LAUSD argued that Suffolk had a 

responsibility to alter the concrete mix to attempt to fix the 

concrete cracking problem, but the cracking problem ultimately 

was resolved by the addition of a water barrier. Suffolk argues 

that this attempt to shift design responsibility to Suffolk was 

contrary to section 1104 and justified the need for the instruction.

With this argument, Suffolk essentially asks us to adopt its 

view of the facts—that the cracking was caused by a design 

flaw—specifically, the failure of LAUSD to include a rat slab and 

Visqueen in the design. However, it ignores LAUSD’s factual 

argument below, which was that, had Suffolk provided a proper 

concrete mix, the rat slab and Visqueen would have been 

unnecessary. Suffolk cites no law suggesting that section 1104 

rendered the contract provisions regarding Suffolk’s flexibility to 

determine the proper concrete mix unlawful. Nor does it cite any 

law suggesting that placing the ultimate responsibility for the 

concrete mix on the contractor is an improper shifting of 

responsibility under section 1104.

Suffolk further points out that changes to the concrete mix 

in both mock 2 and mock 3 did not eliminate the cracking, thus 

the problem was not remedied by a mix alteration in any event.24

24 Mock 2 changed only the concrete supplier, not the concrete 

mix. Mock 3 used a higher-strength concrete mixture that had 
39

Again, Suffolk asks us to adopt its view of the facts and does not 

address the problem of whether inclusion of the section 1104 

instruction, and Suffolk’s improper use of the instruction, 

prevented the jury from placing the blame on Suffolk’s selection 

of the concrete mix—which was one of LAUSD’s main defenses to 

this factual conclusion.

e. Analysis

The sole issue to be determined in phase 1 of trial was 

whether LAUSD breached the implied warranty. LAUSD is 

arguing that (1) the instruction was irrelevant, as section 1104 is 

not relevant to a claim of breach of implied warranty of 

correctness; and (2) the way that Suffolk used the instruction was 

misleading to the jury, and therefore prejudicial.

i. Relevance

Suffolk did not contend that the contract expressly declared 

Suffolk responsible for any architectural or engineering plans. 

Nor did Suffolk contend that those provisions of the contract,

which gave Suffolk leeway to choose the concrete mix, violated 

section 1104. Instead, the only issue before the jury in phase 1

was whether LAUSD breached the implied warranty of 

correctness. Section 1104 is not relevant to such a claim. 

(Thompson, supra, 155 Cal.App.4th at p. 553.)

A trial court “has the duty to instruct on general principles 

of law relevant to the issues raised by the evidence.” (People v. 

Saddler (1979) 24 Cal.3d 671, 681.) It has “the correlative duty 

‘to refrain from instructing on principles of law which not only 

been used for an adjacent parking structure. However, Suffolk 

points to no evidence in the record that mock 3 addressed the 

concerns set forth by LAUSD’s experts concerning water content, 

possible use of an admixture, and aggregate level of the mix.
40

are irrelevant to the issues raised by the evidence but also have 

the effect of confusing the jury or relieving it from making 

findings on relevant issues.’” (Ibid.)

Section 1104 is not relevant to Suffolk’s claim of breach of 

implied warranty, therefore the trial court committed error in 

giving the instruction. (People v. Guiton (1993) 4 Cal.4th 1116, 

1129 [“It is error to give an instruction which, while correctly 

stating a principle of law, has no application to the facts of the 

case.”].) However, such error is subject to reversal only if it was 

prejudicial to the appealing party. When a jury receives an 

improper instruction in a civil case, “prejudice will generally be 

found only ‘“[w]here it seems probable that the jury’s verdict may 

have been based on the erroneous instruction . . . .”’” (Soule, 

supra, 8 Cal.4th at p. 574.)

ii. Prejudice

Suffolk used section 1104 to declare that LAUSD alone was 

responsible for choosing the concrete mix and was not allowed to 

shift that burden to Suffolk. Suffolk essentially used the 

instruction to argue that LAUSD was breaking the law by 

suggesting Suffolk was responsible for choosing an appropriate 

concrete mix and that such action wrongly transferred design 

responsibility to the contractor.

In its closing argument, Suffolk argued:

“And essentially, now they’re saying the contractor should 

have designed the mix further to make up for the error that was 

left by KPFF. [¶] . . . [¶]

“And there’s a jury instruction that’s right on point.

“‘No local public entity shall require a bidder to assume 

responsibility for the completeness and accuracy of the 

engineering plans.’
41

“In other words, you the public agency cannot transfer this 

design responsibility to the contractor. Why? Because we want 

the smart people doing this. We want the people with the stamps 

doing this, not the contractors. These are public buildings used 

by the public and we don’t want the designers to shirk their 

responsibilities and hand this off to the contractors.

“And this is a California statute, a code section, so the 

contract can’t override it. Any provision that the school district 

stands up this afternoon and says, well, this requires the 

contractor to adjust the mix to fix this problem is in violation of 

the statute.”

Suffolk emphasized again in its rebuttal:

“Clearly, we’ve seen there’s a Public Contract Code section 

that says the contract—the owner can’t shift it. And you know 

why that section exists? Why do we have any statute? It’s to 

prevent people from doing things like they’ve been doing.

“The reason we have that statute is because owners have 

tried for years to shift that design responsibility to the contractor. 

And the state spoke and said you can’t do that. The design must 

stay with the designers, the people with the stamps.”

This argument is at odds with both the language of the 

contract and the testimony at trial—all of which suggested that 

Suffolk, not LAUSD, was responsible for choosing the concrete 

mix within the parameters set by LAUSD’s designers and 

engineers. The testimony at trial, including testimony from 

Daum’s own expert that it was acceptable, indeed “preferred,” 

that the contractor be permitted to choose the specific concrete 

mix, undermines Suffolk’s position on appeal that this 
42

responsibility was wrongly shifted to Suffolk.25 Suffolk’s special 

section 1104 instruction allowed Suffolk to improperly argue that 

LAUSD’s affirmative defense, which shifted blame to Suffolk for 

providing a faulty concrete mix, was in violation of the law.

In reviewing instructional error, we must view the evidence 

in the light most favorable to the claim of instructional error. 

(Mize-Kurzman, supra, 202 Cal.App.4th at p. 845.) Here, the 

dispute between LAUSD and Suffolk was whether LAUSD 

breached the warranty of correctness by providing faulty plans. 

As part of its defense, LAUSD argued to the jury that it was not 

faulty plans, but faulty workmanship on the part of Suffolk, that 

caused the concrete cracking. Among its arguments that 

Suffolk’s workmanship was at fault was LAUSD’s claim that 

Suffolk provided an improper concrete mix. Through the use of 

the irrelevant special section 1104 instruction, Suffolk was 

permitted to argue that shifting responsibility for the concrete 

mix to Suffolk was illegal.

We conclude that it is probable that this error prejudicially 

affected the verdict. (Mize-Kurzman, supra, 202 Cal.App.4th at 

p. 846 [instructional error is prejudicial in a civil case where “‘“‘it 

seems probable’ that the error ‘prejudicially affected the 

verdict’”’”].) We must consider LAUSD’s evidence on this point, 

25 Daum’s expert, Mor, testified that a performance 

specification is one that tells the concrete contractor, “You need to 

provide concrete that will do what—something that we want it to 

do. We don’t tell you how to do that. For example, you can tell 

me, ‘I want concrete that is 4,000 PSI strong.’ I’m not telling you 

how to mix it. That’s up to you.” Mor was then asked, “And you 

believe that a performance specification is a beneficial, preferred 

way to have a concrete specification?” Mor responded, “I believe 

so, yes.”
43

which suggested an improper concrete mix, and view it in the 

light most favorable to LAUSD. (Id. at p. 845 [“Where it is 

contended that the trial judge gave an erroneous instruction,” we 

must “view the evidence in the light most favorable to the claim 

of instructional error.”].) We therefore assume the jury may have 

been persuaded by LAUSD’s argument had it not been informed 

that it was illegal under section 1104. Therefore, not only was 

the instruction improper, we find it reasonably probable that the 

error affected the verdict.

Due to this instructional error, the phase 1 verdict must be 

reversed. However, for the benefit of the parties upon retrial, we 

review the other claimed instructional error in phase 1.

2. LAUSD’s modified CACI No. 4510 instruction

a. Relevant factual background

As part of its phase 1 defense, LAUSD contended that the 

failure by Suffolk and Daum to perform competently and within 

LAUSD’s specifications caused the defective cracked 

foundations.26 LAUSD sought to submit a modified version of 

CACI No. 4510 to the jury explaining its defense that if Suffolk 

26 LAUSD put forth two affirmative defenses based on this 

theory. Its eighth affirmative defense, titled

“Intervening/Superseding Cause,” asserts that “[t]o the extent 

that the alleged injuries and damages sustained by [Suffolk], if 

any, were caused by the intervening and superseding actions of 

others, such intervening and superseding actions bar and/or 

diminish [Suffolk]’s recovery, if any, against LAUSD.” LAUSD’s 

29th affirmative defense, titled “Comparative Fault,” asserts, “To 

the extent any injuries alleged in the Complaint were caused, in 

whole or in part, by [Suffolk] or a third party’s negligent 

performance of the contract, LAUSD’s liability, if any, to [Suffolk] 

must be barred or reduced in proportion to the amount of 

negligence or other fault attributable to [Suffolk] or others.”
44

suffered harm or damage, it was the result of Suffolk’s failure to 

comply with the contract specifications rather than LAUSD’s 

specifications or design.

Normally, CACI No. 4510 is framed as an affirmative 

showing by a plaintiff alleging that a contractor caused a 

construction defect.27 LAUSD’s modified proposed instruction 

read: “As an affirmative defense, LAUSD claims that Suffolk and 

Daum failed to install the concrete competently and failed to use 

the proper materials for the Project. To establish this claim, 

LAUSD must prove all of the following: [¶] (1) That Suffolk 

and/or Daum failed to perform their work competently and/or 

provide the proper materials by pouring concrete that was 

deficient and did not meet contract specifications, and [¶] (2) 

That Suffolk and/or Daum’s failure was a substantial cause of the 

damages claimed by Suffolk and/or Daum.”

The trial court declined to give LAUSD’s special instruction 

No. 4510. The court explained, “that was really in the same 

27 CACI No. 4510 typically reads:

“[Name of plaintiff] claims that [name of defendant] failed 

to [perform the work for the [project . . . ] competently/[or] use the 

proper materials for the [project . . . ]. To establish this claim, 

[name of plaintiff] must prove all of the following:

“1. That [name of defendant] failed to [perform . . . ] work 

competently/[or] provide the proper materials] by [describe 

alleged breach . . . ]; and

“2. That [name of plaintiff] was harmed by [name of 

defendant]’s failure.” (CACI No. 4510 (2023 ed.) p. 1271.)
45

nature as Suffolk’s No. 1. And so the court said it would give 

either both or neither, and LAUSD chose neither.”28

LAUSD argues that the trial court erroneously required 

LAUSD to assent to Suffolk’s improper instruction No. 1 in order 

to have LAUSD’s own instruction given. LAUSD contends that 

tying the two instructions together was error because it violates 

the fundamental rule that a party is entitled to instructions 

supported by the law and facts. (Ayala v. Arroyo Vista Family 

Heath Center (2008) 160 Cal.App.4th 1350, 1358 (Ayala).) 

LAUSD argues that the trial court should have independently 

evaluated the two instructions on their own merits rather than 

forcing LAUSD to compromise its right to receive a proper 

instruction by agreeing to what LAUSD argues is an improper 

instruction.29

b. Applicable law

Parties are entitled to instructions that explain the theories 

advanced in pleadings and supported by the evidence. (Code Civ. 

Proc., §§ 607a, 608; Ayala, supra, 160 Cal.App.4th at p. 1358.) It 

is “improper to give an instruction which lacks support in the 

evidence, even if the instruction correctly states the law.” 

(LeMons v. Regents of University of California (1978) 21 Cal.3d 

869, 875.) In reviewing the evidence supporting the jury 

instruction, “we assume the jury might have believed appellant’s 

28 Suffolk’s proposed Special Instruction No. 1 stated: “Plans 

and/or specifications for a project are not ‘correct’ if the contractor 

follows the plans and/or specifications but still encounters 

difficulty in constructing the project.”

29 Suffolk does not appeal the propriety of the trial court’s 

decision to decline its Special Instruction No. 1, therefore we do 

not directly address the propriety of that instruction.
46

evidence and, if properly instructed, might have decided in 

appellant’s favor.” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 

1087.) Thus, “‘we state the facts most favorably to the party 

appealing the instructional error alleged, in accordance with the 

customary rule of appellate review.’” (Ibid.) However, the 

instructional error is “‘prejudicial reversible error only if it is 

reasonably probable the appellant would have received a more 

favorable result in the absence of the error.’” (Id. at pp. 1087-

1088.)

c. LAUSD’s evidence supporting the 

modified CACI No. 4510 instruction

LAUSD cites several categories of evidence that it 

presented to the jury in support of its defense that Suffolk was 

responsible for the cracked foundations due to errors made by 

Suffolk or Daum. The evidence included the testimony of Mark 

Bogh, an expert concrete contractor. Bogh testified that one of 

Daum’s significant errors was its failure to properly or 

adequately vibrate the concrete during pours. Bogh opined that 

the contractor should systemically vibrate the concrete as soon as 

it is poured and referred to photographs and video footage to 

show that Daum was pumping concrete into place without 

performing sufficient or proper vibration. Bogh testified that the 

concrete work was done haphazardly, conducted “two times too 

fast,” and was not fully performed. Bogh did not believe there 

would have been any significant cracking at all if they had 

vibrated the concrete for a longer period. Bogh also testified that 

Daum understaffed the pour. Due to the rapid pace of the pour, 

and an insufficient number of crew members vibrating, the 

vibrators could not keep up with the pour.

In addition to these problems, Bogh testified that Daum’s 

workers used undersized vibrators. Bogh testified, “I would have 
47

had the bigger vibrators, [and] I would have four people doing 

vibration instead of two.” Bogh also explained that Daum should 

have revibrated after its initial pass.

In addition to vibration, LAUSD provided evidence that 

Daum selected a concrete mix that did not comply with LAUSD’s 

contractual specifications. LAUSD’s concrete engineering and 

concrete mix expert, Radlinski, testified that LAUSD’s failure to 

comply with the contractual specifications caused or contributed 

to the cracking. Radlinski’s analysis showed that Daum’s 

concrete mix used more water than was necessary. Radlinski 

also testified that Daum’s selected concrete mix failed to use the 

required aggregate composition. Finally, Radlinksi testified that 

Daum should have utilized an admixture, which would “allow[]

the contractor to reduce the bleeding.”

Another supporting basis for the CACI instruction was 

LAUSD’s evidence that Suffolk and Daum ignored the 

specifications requiring the use of forms to encase the concrete 

pours. Bogh testified that, based on specification 02317, Daum 

should have used forms for the foundation pours 30 A form “keeps 

the concrete from leaking or touching the soil.” Bogh testified 

that the contractor in this case did not install forms for the 

foundation. In reading the contract and following the chain of 

events, Bogh testified: “So they went from supposed to put forms 

in, didn’t put forms in, had problems, and then at the end of the 

30 Section 3.4A of specification 02317 required the use of 

forms for the sides of slab foundations, stating, “[f]orm sides of 

footings, pads, grade beams, and slab foundations, unless 

otherwise indicated. Provide excavations of sufficient size to 

permit installation and removal of forms and other Work as 

required.”
48

day they put plastic in which replaces a form because a form 

keeps the concrete from leaking or touching the soil. So they 

kind of went full circle all the way back around.” Bogh testified 

that it was the contractor’s decision to pour the concrete against 

the earth instead of using a form in the first place.

Based on this evidence, LAUSD argues that CACI No. 4510 

was crucial to provide the jury with explanation that Suffolk 

could only recover on its breach of implied warranty claim if 

Suffolk performed its concrete work properly. LAUSD argues 

that the trial court’s refusal to give the instruction deprived it of 

the opportunity to have the jury consider this basic theory of the 

case. (Soule, supra, 8 Cal.4th at pp. 573-574.) LAUSD argues 

that the trial court’s failure to give this instruction was 

prejudicial because it was critical to LAUSD’s defense.

In contrast, LAUSD argues, Suffolk’s special instruction 

No. 1 was not supported by the evidence and did not accurately 

reflect the law. LAUSD argues that the word “difficulty” in 

Suffolk’s special instruction No. 1 was hopelessly vague, and the 

instruction improperly attempted to shift responsibility for 

deficient workmanship away from Suffolk by suggesting to the 

jury that any difficulty inherently arose from faulty plans.

d. Suffolk’s arguments

Suffolk agrees that CACI No. 4510 involves breach of an 

implied covenant to perform work in a good and competent 

manner. Suffolk argues that, as modified, the instruction was 

overbroad and confusing with too many conjunctions. Further, 

Suffolk argues, the modified CACI No. 4510 instruction 

presupposed that the plans were correct and did not take into 

account a situation where after following the specifications, the 

concrete does not perform as expected because of a design error. 

To address these shortcomings, Suffolk offered its proposed 
49

special instruction No. 1 to counterbalance CACI No. 4510. 

Suffolk proposed its special instruction No. 1 to be given in 

tandem with CACI No. 4510 so that the contractor could argue 

that the plans cannot be correct if the contractor followed the 

plans and the defect still occurred. Suffolk points out that the 

trial court agreed and properly decided to give either both or 

neither.

Suffolk offers no law suggesting that the trial court’s offer 

that the parties agree to both instructions or neither instruction 

was proper. However, Suffolk argues that any error was 

harmless because the special verdict form already addressed the 

point LAUSD was trying to make. Question 1 in the special 

verdict form asked whether or not Suffolk had substantially 

performed its obligations under the contract to construct the 

footings.31 Suffolk further points to other jury instructions that

instructed the jury on LAUSD’s defenses. Specifically, 

instruction No. 21 stated: “If you find Suffolk has proven the 

elements of its claims by a preponderance of the evidence, you 

must then consider LAUSD’s affirmative defense of mitigation. 

LAUSD must prove mitigation by a preponderance of the 

evidence. [¶] Suffolk is not entitled to recover for harm that 

LAUSD proves Suffolk could have avoided with reasonable efforts 

or expenditures. You should consider the reasonableness of 

Suffolk’s efforts in light of the circumstances facing it at the 

time.”

31 Question No. 1 asked the jury, “Did Suffok . . . do all, or 

substantially all, of the significant things that its Contract with 

[LAUSD] required Suffolk to do to construct the elementary and 

middle school footings?” The jury checked “YES.”
50

Instruction No. 22 informed the jury that “[i]t was Suffolk’s 

responsibility to manage, schedule, coordinate, and supervise the 

work of its subcontractors and Suffolk was responsible for all acts 

and omissions of its subcontractors.”

Suffolk also points to instruction No. 303, which indicates 

that in order to prove its breach of contract claim against 

LAUSD, Suffolk must first prove that it “did all, or substantially 

all, of the significant things that the contract required it to do.” 

Finally, Suffolk points to instruction No. 4500, which sets forth 

the essential factual elements of the breach of implied warranty 

of correctness of plans.

e. Analysis

Suffolk does not disagree that LAUSD was entitled to a 

proper instruction regarding its defense that Suffolk’s errors and 

omissions led to Suffolk’s damages. However, Suffolk argues that 

the proposed statement of the law regarding breach of implied 

covenant to perform work in a competent manner was erroneous 

and needed to be “counterbalanced” with Suffolk’s own opposing 

instruction. Suffolk provides no legal authority that such a 

“counterbalancing” of a purportedly improper instruction is an 

acceptable way to address a flawed instruction. Instead, the 

appropriate strategy would be to propose edits to the instruction 

that would bring it within the realm of legality. (Ayala, supra, 

160 Cal.App.4th at p. 1358 [“‘“[P]arties have the ‘right to have the 

jury instructed as to the law applicable to all their theories of the 

case which were supported by the pleadings and the evidence, 

whether or not that evidence was considered persuasive by the 

trial court.’”’”].)

However, we agree that any error was harmless under the 

circumstances. LAUSD’s affirmative defense that any harm to 

Suffolk should be mitigated by Suffolk’s own failures was 
51

addressed in other instructions. First, in order to find in favor of 

Suffolk at all, the jury was first required to find that “Suffolk did 

all, or substantially all, of the significant things that the contract 

required it to do.” Further, instruction No. 21 instructed the jury 

that if it found that Suffolk proved its claims, the jury “must then 

consider LAUSD’s affirmative defense of mitigation.” The 

instruction further provided that Suffolk could not recover for 

harm “that LAUSD proves Suffolk could have avoided with 

reasonable efforts or expenditures.” While not stated in the 

traditional format for breach of implied covenant to perform work 

in a good and competent manner, these instructions sufficiently 

permitted the jury to find in LAUSD’s favor on its faulty 

workmanship defense.

B. Substantial evidence—phase 1

LAUSD argues that the portion of the phase 1 judgment 

based on the phase 1 verdict is not supported by substantial 

evidence. Because we reverse the phase 1 verdict and remand for 

a new trial on the grounds of prejudicial instructional error, we 

do not need to address this contention of error. (See, e.g., People 

v. Jackson (2022) 75 Cal.App.5th 1, 27.)

C. Grant of Suffolk’s JNOV—phase 232

1. Relevant law and standard of review

JNOV motions are governed by Code of Civil Procedure 

section 629, which provides, in part, that a trial court “shall 

render judgment in favor of the aggrieved party notwithstanding 

the verdict whenever a motion for a directed verdict for the 

32 Although our reversal of the phase 1 verdict and remand 

for retrial will moot some of the issues raised in phase 2, the 

issue of LAUSD’s good faith retention of the $111,714 is separate 

from the liability issue. Therefore we address it.
52

aggrieved party should have been granted had a previous motion 

been made.” (Code Civ. Proc., § 629, subd. (a).) A JNOV acts as a 

demurrer to the evidence. A JNOV “can be sustained only when 

it can be said as a matter of law that no other reasonable 

conclusion is legally deducible from the evidence, and that any 

other holding would be so lacking in evidentiary support that the 

reviewing court would be compelled to reverse it, or the trial 

court would be compelled to set it aside as a matter of law . . . .” 

(Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 

728, 733.) In considering a JNOV motion, the trial court must 

view the evidence in the light most favorable to the party 

securing the verdict. (Sweatman v. Department of Veterans 

Affairs (2001) 25 Cal.4th 62, 68.) The JNOV motion may be 

granted only “if it appears from the evidence, viewed in the light 

most favorable to the party securing the verdict, that there is no 

substantial evidence in support.” (Ibid.)

“The trial court’s discretion in granting a motion for 

judgment notwithstanding the verdict is severely limited.” (Teitel 

v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603 

(Teitel).) “‘“The trial judge cannot reweigh the evidence [citation], 

or judge the credibility of witnesses. [Citation.] If the evidence is 

conflicting or if several reasonable inferences may be drawn, the 

motion for judgment notwithstanding the verdict should be 

denied.”’” (Ibid.)

“‘“As in the trial court, the standard of review [on appeal] is 

whether any substantial evidence—contradicted or 

uncontradicted—supports the jury’s conclusion.”’” (Webb v. 

Special Electric Co., Inc. (2016) 63 Cal.4th 167, 192.)
53

2. Relevant background

At trial Suffolk sought prompt payment penalties pursuant 

to Public Contract Code section 7107, subdivision (f).33 The

phase 2 jury determined, among other things, that LAUSD had a 

good faith basis to withhold $111,714 in retention from Suffolk in 

December 2013.34 The $111,714 represented LAUSD’s 

33 Public Contract Code section 7107, subdivision (c) provides 

that “[i]n the event of a dispute between the public entity and the 

original contractor” the public entity may withhold from the 

contractor’s payment a certain percentage of the disputed 

amount. The “dispute exception excuses payment only when a 

good faith dispute exists over a statutory or contractual 

precondition to that payment, such as the adequacy of the 

construction work for which the payment is consideration.” 

(United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 

Cal.5th 1082, 1085.) Public Contract Code section 7107, 

subdivision (f) provides: “In the event that retention payments 

are not made within the time periods required by this section, the 

public entity or original contractor withholding the unpaid 

amounts shall be subject to a charge of 2 percent per month on 

the improperly withheld amount, in lieu of any interest otherwise 

due. Additionally, in any action for the collection of funds 

wrongfully withheld, the prevailing party shall be entitled to 

attorney’s fees and costs.”

34 Although the phase 1 jury found in favor of Suffolk as to 

liability for the cracking issue, the inquiry into whether LAUSD 

was justified in withholding the payment is a separate issue. 

(FEI Enterprises, Inc. v. Yoon (2011) 194 Cal.App.4th 790, 805

(FEI) [“Whether the nonpaying party might ultimately be 

vindicated is not the issue. The critical question should be the 

legal tenability of the justification for nonpayment that was 

asserted.”].)
54

investigation costs to determine the cause of, and solution for, the 

concrete cracking.

Suffolk challenged the phase 2 verdict with a JNOV 

motion, arguing that “the jury in Phase 2 had no basis upon 

which to find good faith that would be needed to support a verdict 

in [LAUSD’s] favor” on the issue of good faith. Suffolk took the 

position that Garawi’s testimony that LAUSD had a good faith 

basis to withhold the retention was a subjective belief that was 

not reasonable nor supported by objective evidence. Suffolk 

suggested that LAUSD “adopted the subjective opinion of a 

person not present or adequately knowledgeable” in withholding 

the retention. Suffolk also argued that the evidence did not 

support LAUSD’s position that it had a good faith basis for 

retention of funds. In short, Suffolk argued that “[b]y October

2012, KPFF agreed ‘[i]t is likely that the adverse effect on the 

concrete is due to rapid loss of water from the fresh concrete into 

the soil’—not the result of the contractor means and methods.”

The trial court accepted Suffolk’s arguments, finding “it is 

apparent that the jury erred in its conclusions regarding 

LAUSD’s objective good faith in retaining $111,714 for 

professional services it engaged to determine the cause of the 

cracking.” In granting the JNOV, the court noted that it was 

true that “at the time of the initial pour of concrete there was 

uncertainty as to the cause of the cracking.” While there 

continued to be uncertainty until the time of the fourth mock 

pour, the court stated that the addition of the rat slab and 

Visqueen in the fourth mock pour was a design change. The 

court stated: “Although this was not a design change requiring 

the approval of the State Architect, it did require new drawings 

from LAUSD’s engineers (KPFF) . . . . When those new plans 

were followed the cracking did not occur. Further KPFF itself 
55

opined on October 18, 2012 that, ‘the foundation issues resulted 

from an unfavorable reaction between the concrete and the soils, 

which it characterized as a “rare occurrence” and uncommon 

condition.’” After the fourth mock pour and October 18, 2012 

memorandum, the court concluded, LAUSD could not have 

objectively been of the view that the problem arose from the 

contractor’s means and methods. The court stated that LAUSD 

could point to “no objective evidence after KPFF’s October 18, 

2012 report was issued that could support its continued belief 

that the issue lay with the contractor.” The trial court found that 

a JNOV on this issue was appropriate.

3. LAUSD’s arguments and evidence

LAUSD argues that the trial court’s granting of the JNOV 

ran afoul of the narrow review a trial court may conduct (citing

Teitel, supra, 231 Cal.App.3d at p. 1603), adding that the 

evidence presented at trial fully supported the jury’s finding that 

it had a good faith basis in December 2013 to withhold the 

$111,714 in retention from Suffolk. The evidence LAUSD relies 

upon falls into several categories, including (1) improper methods 

of vibrating the concrete and failure to revibrate the concrete; (2) 

failure to use an admixture in the concrete mix; and (3) improper 

water content, which exceeded the maximum water content set 

by contract specifications. Further, LAUSD argues that it 

presented evidence refuting Suffolk’s position that the cracking 

resulted from a design error. We briefly discuss the evidence 

presented to the phase 2 jury below.

The first category of evidence concerned LAUSD’s position 

that Suffolk did not properly vibrate the concrete. LAUSD points 

to evidence showing that it explained to the jury that the project 

specifications gave Suffolk broad responsibility to use Suffolk’s 

preferred means and methods, including selecting its preferred 
56

means and methods for vibrating the freshly poured concrete. 

Duncan, a KPFF engineer, testified that KPFF raised improper 

vibration as a potential issue with respect to the cracking. As a 

result, Duncan testified, KPFF provided citations to ACI about 

concrete vibration. Holliday, Daum’s project manager, also 

testified that KPFF cited certain provisions of the ACI regarding 

vibration to him at a meeting, and he agreed to review them. 

Holliday also acknowledged that Daum did not make any 

changes to the concrete vibration or installation techniques after 

reviewing the pertinent provisions of the ACI regarding 

vibration. This evidence provided LAUSD with a good faith basis 

for believing that the subsidence cracking that occurred stemmed 

from poor contractor means and methods, particularly by 

inadequate vibration of the concrete.

In an e-mail dated May 2, 2012, Hichborn, LAUSD’s chosen 

consultant, opined that “the subsidence cracking situation is 

mainly the result of the means and methods the concrete 

installer elected.” Hichborn also suggested, among other things, 

that “the informed use of accelerating admixtures” could alleviate 

the cracking. LAUSD also presented to the jury trial testimony 

showing that the amount of water in Daum’s selected concrete 

mix exceeded the amount of water permitted in LAUSD’s 

contract specifications. This evidence provided further reason for 

the jury to believe that LAUSD’s retention was withheld on the 

grounds of a good faith dispute as to the cause of the cracking.

In addition to this affirmative evidence suggesting that 

Daum’s means and methods were at fault, LAUSD also provided 

evidence refuting Suffolk’s position that the foundation design 

itself was defective. Both KPFF and LAUSD’s geotechnical 

engineer, Neal Berliner, reviewed and verified that the designs 

were accurate and sound. Both Duncan and Orue testified that 
57

the remedial measures ultimately adopted to help prevent 

cracking in later pours—namely the use of a mud slab and 

Visqueen, were not design changes. They also confirmed that 

KPFF did not believe there was anything unusual about the soils 

that would have required the use of a mud slab or Visqueen. 

Other evidence suggested that there was no clear correlation 

between the use of a mud slab and nondefective concrete pours. 

In some areas where a mud slab had been placed for other 

reasons, the concrete still exhibited cracking. This evidence 

highlighted for the jury why LAUSD might have a good faith 

belief that contractor means and methods, rather than design 

flaws, led to the problems.

In addition to the evidence described above, LAUSD 

explained to the jury its decisionmaking process involved with 

the retention of the disputed funds. Garawi, LAUSD’s OAR for 

the project, provided much of the testimony on this subject. 

Garawi had direct involvement with the investigation of the 

concrete cracking problem and provided input for LAUSD’s 

decision to withhold the $111,714 in investigation expenditures. 

Garawi testified that he relied on the engineers’ verification of 

the propriety of the original design. Both the soil engineer and 

the structural engineer told Garawi, “This is a problem [that] has 

nothing to do with the design.” Garawi also testified to some of 

his own observations. He observed that there was much more 

severe cracking on the day when the concrete workers had a 14-

hour day. “In this area, we had much more severe cracking 

[than] in the [other] area, so that was a 14-hour day. The 

contractor[s] were experiencing fatigue. Their level of quality 

control was going down. And that area experienced much more 

cracking than the earlier.”
58

However, the most important aspect of Garawi’s analysis 

was improper vibration, specifically “the lack of vibration.” 

Garawi’s opinion had not changed over time. He testified that “I, 

to this date, confirm and actually became much more confident in 

the fact that the vibration was the main cause of the cracking to 

the concrete.” LAUSD’s assessment that the cracking was caused 

by contractor means and methods was confirmed by the mock 

pour process, because critical aspects of contractor means and 

methods, such as vibration, were not tested and thus not 

eliminated as a cause of the cracking.

The jury was shown Garawi’s written summary of his 

thoughts as to what caused the problem. Garawi testified that 

the document was his “best effort at the time to tell [his] team at 

[LAUSD] what [his] issues and concerns and thoughts were as to 

what had caused the problem.” Garawi mentioned improper 

vibration. He opined that “the lack of contractor’s quality control 

and worker fatigue are the most probable causes of the 

inconsistent vibration during the pour that caused the 

cracking . . . .” Garawi testified that he had not changed his 

opinion since the time he wrote the document in October 2012. 

This was Garawi’s “best judgment on the issue and how it 

happened and what it is and what caused it.”

David Tatevossian, LAUSD’s deputy director of facilities 

project execution and head of construction projects, also testified 

about LAUSD’s response to the concrete cracking. He confirmed 

that once the concrete cracking was discovered, LAUSD 

instructed Geocon and KPFF to review their work and verify that 

the underlying design was correct. Neither reported that a 

design flaw led to the concrete cracking. LAUSD relied on 

Geocon’s and KPFF’s assessments when making payment 

decisions. Tatevossian also confirmed that Suffolk had the 
59

discretion to use moisture barriers as part of its means and 

methods to construct the foundations. He further confirmed that 

the mud slab and Visqueen were not structural design changes.

The above evidence was presented to the phase 2 jury in 

order to show LAUSD’s good faith belief that it was justified in 

withholding the retention funds. LAUSD argues that the trial 

court was required to accept this evidence as true. (Jones & 

Matson v. Hall (2007) 155 Cal.App.4th 1596, 1607.) It had no 

authority to weigh evidence or judge credibility. (Hansen v. 

Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) 

However, instead of following these directives, LAUSD argues 

the trial court improperly inserted its own view of the evidence 

over the jury’s, drew adverse inferences and reweighed the 

evidence. LAUSD further argues that the trial court improperly 

interpreted a letter prepared by KPFF in October 2012 which 

stated that “the foundation issues encountered at this site 

extended from an unfavorable reaction between the concrete and 

the soils.” The court relied heavily on this letter in concluding 

that “[t]he plain evidence was that the soil conditions were 

unusual” and thus that LAUSD “could not, in good faith, have 

concluded that the blame [for the concrete cracking] was thus 

shifted to Suffolk and Daum.” LAUSD argues that the trial court 

misinterpreted the document and erroneously relied on it given 

other contradictory evidence in the record,

35 and it also wrongly 

35 LAUSD argues that undisputed evidence showed that the 

soil was not, in fact, unusual. Duncan testified as follows:

“Q Was there anything unusual about the soils in the soils 

report that you saw?

“A No.
60

interpreted evidence, such as the mock pours and Hichborn’s 

letter, to preclude contractor means and methods as a cause of 

the cracking. LAUSD argues that the trial court thus substituted 

its own conclusions based on its interpretations of evidence.

4. Suffolk’s arguments

Suffolk’s position is that Garawi’s decision was subjective, 

but was not objectively reasonable. Suffolk cites FEI, supra, 194 

Cal.App.4th at page 806 for the proposition that “the proper 

standard to be applied to the question of whether there was a 

‘good faith dispute’ is . . . objective, not subjective.” The FEI court 

clarified, “Certainly, a party who has no reasonable, objective 

justification for withholding payment under a construction 

contract, but ‘believes,’ by reason of delusion, ignorance, 

negligence of legal counsel or otherwise, that the money is not 

owed should not be able to avoid penalty interest on such 

ground.” (Ibid.)

Moreover, Suffolk argues, the good faith must exist at the 

time of the withholding. (Citing Fassberg Construction Co. v. 

Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 

720, 733 [“the Housing Authority was entitled to withhold the 

retention proceeds more than 60 days after the date of completion 

because there was a dispute between the parties at that time, 

pursuant to Public Contract Code section 7107, subdivision (c)”].) 

“Q Okay. Even in comparison to the other school projects 

you’ve worked on?

“A There was—no, nothing unusual.

“Q And did anybody at KPFF, including you, come to the 

conclusion that anything about the actual soil differed from what 

was in the soils report?

“A No.”
61

Suffolk argues that nearly all the evidence cited by LAUSD 

predates mock 4. Suffolk asserts, without citation to the record, 

that mock 4 “ruled out contractor means and methods.” Suffolk 

sums up its position as follows: “The relevant inquiry is the 

objective reasonableness of Garawi’s personal opinion that 

contractor means and methods were the cause of the cracking, 

even after the results of the four mock pours and evidence from 

LAUSD’s own consultants and personnel during the Project had 

ruled out that possibility leading to a change in the design.” 

With this statement, Suffolk makes it clear that its 

interpretation of the results of mock 4 and the words of LAUSD’s 

consultants differs from LAUSD’s interpretation of the same 

evidence. Suffolk’s argument thus relies upon its own factual 

spin on the evidence. The dispute between LAUSD and Suffolk is 

ultimately one that comes down to the interpretation of the facts 

presented to the jury.

5. Analysis

Both LAUSD’s opening brief and Suffolk’s respondent’s 

brief on this issue contain pages and pages of analysis of the 

evidence, each party’s spin on that evidence, and arguments as to 

why the other party’s interpretation of the evidence is incorrect. 

The question of LAUSD’s good faith in retaining the funds was 

ultimately one of intense observation of, consideration of, and 

weighing of a multitude of facts.

We decline to reweigh or reanalyze these facts. Instead, we 

note that there was ample evidence to support the jury’s verdict. 

Despite Suffolk ultimately winning the issue of liability for the 

concrete cracking, the jury was still well within its power to 

conclude also that LAUSD’s belief that the contractor was 

responsible was reasonable. We note that LAUSD maintains 

that belief even now, as it has launched a substantial evidence 
62

challenge to the phase 1 verdict on liability. We conclude that 

the trial court overstepped its role in granting Suffolk’s JNOV 

motion on the issue of good faith.

As set forth above, a JNOV “can be sustained only when it 

can be said as a matter of law that no other reasonable conclusion 

is legally deducible from the evidence.” (Moore v. City & County 

of San Francisco, supra, 5 Cal.App.3d at p. 733.) That is not the 

case here, where LAUSD has set forth at least 15 pages of 

evidence presented to the phase 2 jury in support of its position 

that the withholding of funds was done in good faith. Rather 

than accept the jury’s analysis of the evidence, the trial court 

undertook its own analysis of the evidence, setting forth in detail 

its conclusions as to the outcomes of the four mock pours. While 

acknowledging LAUSD’s position that the addition of the rat slab 

and Visqueen was not a design change, the court disagreed with 

this position.36 The court further concluded, with no apparent 

evidence, that the soil conditions were “unusual,” stating: “Nor 

could [LAUSD] and its senior team justify its decision by reason 

of the fact that its engineers and designers did not admit to a 

design flaw. The plain evidence was that the soil conditions were 

unusual. While LAUSD’s engineers and designers may not have 

36 It is Suffolk’s position that the phase 1 verdict confirmed 

that the addition of rat slab and Visqueen was a design change, 

stating, “LAUSD re-litigates the Phase [1] jury’s verdict 

contending the addition of the Visqueen layer was not a ‘design 

change.’” The issue in phase 2 was not whether LAUSD’s design

plans and specifications were correct or not, but whether LAUSD 

had a good faith belief that they were correct at the time they 

withheld payment. Thus, LAUSD was permitted to present to 

the phase 2 jury evidence supporting its belief that the addition 

of rat slab and Visqueen were not design changes.
63

been ‘at fault,’ LAUSD could not, in good faith, have concluded 

that the blame was thus shifted to Suffolk and Daum.”

In carrying out its own lengthy analysis of the evidence, the 

court erred. The court was not permitted to reweigh the evidence 

or judge the credibility of witnesses. (Teitel, supra, 231 

Cal.App.3d at p. 1603.) It did both of these things in granting 

Suffolk’s JNOV. In light of the plethora of conflicting evidence on 

the issue of LAUSD’s good faith, the motion for JNOV should 

have been denied. (Ibid.)

Substantial evidence supported the jury’s conclusion as to 

good faith. (Webb v. Special Electric Co., Inc., supra, 63 Cal.4th at 

p. 192.) The trial court’s grant of Suffolk’s JNOV on good faith is 

reversed, and the court is directed to reinstate the jury’s verdict 

on this issue.

D. Exclusion of LAUSD’s expert on good faith—

phase 2

LAUSD argues that the trial court abused its discretion in 

excluding its expert testimony on objective good faith in phase 2. 

LAUSD sought to present testimony from its concrete expert, 

Bogh, to support its position that there was a good faith dispute 

over the retention money. The trial court found the testimony to 

be inadmissible because it was unknown to LAUSD as of the date 

of the withholding, which was December 2013. Bogh was 

retained in March 2016. A trial court’s exclusion of evidence is 

normally reviewed for abuse of discretion. (Tudor Ranches, Inc. 

v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.)

Because we have reversed the trial court’s grant of JNOV 

on the issue of good faith, and reinstated the jury verdict in favor 

of LAUSD on this issue, we find that the issue is moot, and we 

need not address it.
64

E. Instructional error—unlicensed contractor—

phase 2

The final issue in LAUSD’s direct appeal is the trial court’s 

denial of LAUSD’s proposed jury instructions explaining the 

statutory bar to an unlicensed contractor bringing an action. The 

first instruction explained the statutory bar contained in 

Business and Professions Code former section 7031 (former 

section 7031). The second instruction explained the responsible 

managing employee (RME) requirements required of Suffolk 

under Business and Professions Code sections 7068 and 7068.1 

(RME instruction).

The trial court refused to give LAUSD’s proposed 

instructions, finding that the RME instruction “overstates the 

law and provides the jury with unnecessary information.”37 

37 LAUSD’s proposed instruction read:

“A corporation such as Suffolk qualifies for a contractor’s 

license by the use of a Responsible Managing Officer (‘RMO’) or a 

Responsible Managing Employee (‘RME’). A RMO or RME is a 

bona fide officer or employee of Suffolk who is actively engaged in 

the operation of the contracting business. To meet the definition 

of a ‘bona fide employee,’ an individual must be permanently 

employed by Suffolk and actively engaged in the [sic] Suffolk’s 

contracting business for at least 32 hours per week or 80 percent 

of the total hours of the business per week, whichever is less.

“Suffolk’s RME or RMO also must have actually applied his 

knowledge and skill in managing the project involved in this case 

and must have been ‘responsible for exercising direct supervision 

and control’ over the [sic] Suffolk’s construction operations. The 

term ‘direct supervision and control’ can encompass the following 

activities: supervising construction, managing construction 

activities by making technical and administrative decisions, 
65

Specifically, the trial court found that section 7068.1 does not 

“stand for the proposition that employing an RME who does not 

directly oversee a particular project results in an automatic 

license suspension.” However, the trial court offered to give a 

modified version of the instruction, omitting the language 

informing the jury that “[i]f you find that Suffolk’s RME or RMO 

did not provide direct supervision or control over Suffolk’s work 

on the Project, then you must find that Suffolk was not a properly 

licensed contractor.”

LAUSD asserts that the trial court’s refusal to give the 

proposed RME instruction, as written, effectively precluded 

LAUSD from presenting any evidence or argument on this 

issue.38 LAUSD cites case law supporting the proposition that 

checking jobs for proper workmanship, and directly supervising 

on construction job sites.

“If you find that Suffolk’s RME or RMO did not provide 

direct supervision or control over Suffolk’s work on the Project, 

then you must find that Suffolk was not a properly licensed 

contractor.”

38 Greg Hescock was Suffolk’s designated RME for the 

relevant period of construction. As factual support for its defense 

that Suffolk was not a properly licensed contractor due to an 

inadequate RME, LAUSD provided the following excerpt from the 

deposition of Mumper, Suffolk’s project manager:

“Q Okay. So was Mr. Hescock involved in the supervision or 

management of this project?

“A No.

“Q And as a—as the senior project manager, you were the one 

that was on the ground interacting with Suffolk and other 

personnel involved in the project?
66

failure to instruct the jury to make a finding on a critical issue 

constitutes prejudicial error. (Citing Moore v. Wal-Mart Stores, 

Inc. (2003) 111 Cal.App.4th 472, 479-480; Sutter Health v. 

UNITE HERE (2010) 186 Cal.App.4th 1193, 1211.)

1. Applicable law

A corporation qualifies for a contractor’s license through an 

RME. (Bus. & Prof. Code, § 7068, subd. (b).) An RME is defined 

as “an individual who is a bona fide employee of the applicant 

and is actively engaged in the classification of work for which 

that responsible managing employee is the qualifying person on 

behalf of the applicant.” (Bus. & Prof. Code, § 7068, subd. 

(c)(1).)39 The statute in effect at the time of the project provided 

that the RME “shall be responsible for exercising that direct 

supervision and control of his or her employer’s or principal’s 

construction operations as is necessary to secure full compliance 

with this chapter and the rules and regulations of the board 

relating to the construction operations.”40 (Former § 7068.1.) 

“‘[D]irect supervision and control’ includes any one or any 

combination of the following activities: supervising construction, 

managing construction activities by making technical and 

“A Correct.”

At the hearing on the issue, LAUSD also pointed out that 

Hescock was not present in California during the construction at 

issue, and instead was working in Massachusetts.

39 “‘Classification’ is a term of art which refers to various 

specialty licenses.” (Buzgheia v. Leasco Sierra Grove (1997) 60 

Cal.App.4th 374, 384 (Buzgheia).)

40 The phrases “as necessary” and “relating to the 

construction operations,” and the word “full” have been deleted 

from the statute’s current version. (§ 7068.1)
67

administrative decisions, checking jobs for proper workmanship, 

or direct supervision on construction job sites.” (Cal. Code Regs., 

tit. 16, former § 823, subd. (b).)41 “Personal presence is not 

necessary.” (Buzgheia, supra, 60 Cal.App.4th at p. 381.)

Business and Professions Code section 7068.2 provides in 

part that “upon failure to replace the RME or notify the registrar 

of disassociation of the RME within 90 days, ‘the license shall be 

automatically suspended or the classification removed.’” 

(Buzgheia, supra, 60 Cal.App.4th at p. 381.)

2. No trial court error in declining LAUSD’s proposed 

instruction as written

The last sentence of LAUSD’s proposed instruction 

provided, “If you find that Suffolk’s RME or RMO did not provide 

direct supervision or control over Suffolk’s work on the Project, 

then you must find that Suffolk was not a properly licensed 

contractor.” The trial court did not err in concluding that this 

sentence overstates the law.

The relevant statutes and regulation, taken together, do 

not require that an RME exercise direct supervision and control 

over any given project. Instead, the RME was “responsible for 

exercising that direct supervision and control of his or her 

employer’s or principal’s construction operations as is necessary to 

secure full compliance with this chapter and the rules and 

regulations of the board relating to the construction operations.” 

(Former § 7068.1, italics added.) The requirement that the RME 

provide direct supervision and control does not mandate such 

direct supervision control over every project, but over the 

41 California Code of Regulations, title 16, section 823 was 

repealed June 2, 2022, pursuant to section 100, title 1 of the 

California Code of Regulations.
68

employer’s “construction operations” as a whole, to the extent 

necessary to ensure compliance with the rules and regulations of 

the board. Thus, the RME’s supervision and control is not tied to 

any particular job site. As the Buzgheia court noted, an RME’s 

“[p]ersonal presence” on a job site “is not necessary.” (Buzgheia, 

supra, 60 Cal.App.4th 374, 381.)

LAUSD’s proposed instruction informed the jury that the 

RME was required to “provide direct supervision or control over 

Suffolk’s work on the Project.” (Italics added.) As set forth above, 

an RME is required to exercise supervision and control over his 

or her employer’s construction operations—not any one particular 

job. Contrary to LAUSD’s instruction, the RME’s focus was 

required on the company’s construction operations as a whole, 

and could have been satisfied through making technical and 

administrative decisions, or checking jobs for proper 

workmanship. (Cal. Code Regs., tit. 16, former § 823, subd. (b).) 

LAUSD’s suggestion that the RME was required to provide direct 

supervision or control over this particular job overstated the law 

as written.

LAUSD’s instruction told the jury that if it found that 

Suffolk’s RME did not provide direct supervision or control over 

this particular project, the jury “must” find that Suffolk was not a 

properly licensed contractor. The parties disagree over whether a 

violation of former section 7068.1, subdivision (a), results in 

automatic suspension of the contractor’s license. No such 

language exists in the statute itself. As Suffolk points out, case 

law suggests that automatic suspension should not be imposed in 

the absence of a statute expressly providing for that penalty. 

(Citing Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694; MW 

Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co. 

(2005) 36 Cal.4th 412, 426.)
69

Former section 7031, subdivision (a), provided that no 

contractor “may bring or maintain any action, or recover in law or 

equity in any action, in any court of this state . . . without 

alleging that he or she was a duly licensed contractor at all times 

during the performance of that act or contract regardless of the 

merits of the cause of action brought by the person . . . .” Thus, 

former section 7031 does not provide for automatic suspension. 

Instead, it essentially prohibits a contractor from bringing a 

lawsuit unless that contractor is duly licensed. However, even 

where a contractor alleges licensure, a party may “challenge the 

bona fides of a contractor’s RME in a civil suit.” (Buzgheia, 

supra, 60 Cal.App.4th at p. 386.) This is what LAUSD proposed 

to do in this matter. In such a case, the party challenging the 

RME takes the position that the RME was a “sham.” “If the RME 

was a sham, the contractor is barred from recovery because he or 

she is, in effect, acting outside the license, just like a specialty 

contractor who labors at a task for which he or she has no 

expertise nor license.” (Ibid.) Thus, the language of LAUSD’s 

proposed instruction, which directed the jury to find that Suffolk 

was not a properly licensed contractor, was not technically 

correct. Instead, the presence of a “sham” RME would result in a 

finding that Suffolk was acting outside of its license.

The results to Suffolk—inability to collect on a judgment in 

court—may be the same. However, Suffolk could have cured this 

technical misstatement by keeping the language of its instruction 

more in line with the statute. In its reply brief on this issue, 

LAUSD insists it “never argued use of a sham RME resulted in 

automatic suspension of Suffolk’s license. Instead, LAUSD 

insists its “actual position is that when a contractor’s RME is a 

sham (i.e., the RME fails to perform statutorily required 

functions), then the contractor is ‘barred from recovery because 
70

[it] is, in effect, acting outside the license.’” Thus LAUSD 

concedes there is a difference between a company that is not 

properly licensed and one that is acting outside of its licensure. 

However, the language LAUSD used in its instruction was that 

the jury was required to find Suffolk was “not a properly licensed 

contractor.” The language was inaccurate.

LAUSD’s proposed instruction on the licensing issue 

misstated the law and improperly informed the jury that an RME 

was required to directly supervise that particular job. Thus, we 

find no error with the trial court’s overall analysis that the 

instruction overstated the law.

3. LAUSD was not prejudiced by the trial court’s 

action

LAUSD complains that the trial court’s proposal that it 

give the instruction without the last line of the proposed jury 

instruction “effectively precluded” LAUSD “from presenting any 

evidence or argument on this issue.” We find that LAUSD 

suffered no such prejudice. The court was willing to give an 

instruction on this issue that followed the language of the 

statute. LAUSD was therefore not precluded from presenting 

evidence or argument on this issue. Thus, even if the trial court 

had acted in error, LAUSD was not prejudiced as the trial court 

offered to give an instruction in keeping with the law.

II. Suffolk’s cross-appeal

Suffolk raises five issues in its cross-appeal against 

LAUSD. It raises three issues concerning phase 2 of trial; it 

challenges the trial court’s decision by cross-motions for summary 

judgment in phase 3; and it challenges the trial court’s decision to 

reduce the amount of attorney fees awarded to Suffolk.

As to phase 2, Suffolk first argues that the damages the 

jury awarded for TIA 5 were not supported by the record and 
71

were inadequate as a matter of law. Suffolk raises two other 

issues challenging the jury’s findings in phase 2. First, Suffolk 

argues there was insufficient evidence to support the jury’s 

verdict on TIA 2, which involved over-excavation of footings. 

Suffolk takes the position that the over-excavation on certain 

foundations were extra work requiring a change in LAUSD’s 

plans and specifications. The jury found that LAUSD did not 

breach the warranty of correctness of plans and specifications as 

to TIA 2.

Next, Suffolk argues that the phase 2 verdict is 

inconsistent as to TIA’s 3 and 4. Both TIA 3 and TIA 4 related to 

plumbing issues. TIA 3 addressed delays in December 2011, and 

TIA 4 addressed delays in January 2012. The jury found that 

LAUSD breached the warranty of correctness of plans and 

specifications for TIA 3, but not for TIA 4. Suffolk argues that 

the jury was required to find that the plans and specifications for 

TIA’s 3 and 4 were either both correct or both incorrect and that 

the jury’s findings were inconsistent and against the law, 

requiring a new trial.

Phase 3 of trial was decided by cross-motions for summary 

adjudication on the question of whether LAUSD was liable to 

Suffolk for Suffolk’s obligation to pay attorney fees to Daum 

under a theory of contractual indemnity. The trial court granted 

LAUSD’s motion for summary adjudication on this issue on the 

ground that LAUSD was not a party to the subcontract between 

Suffolk and Daum. Suffolk challenges this determination, 

arguing that the attorney fees were recoverable from LAUSD as a 

form of damages.

Finally, Suffolk challenges the trial court’s final award of 

attorney fees to Suffolk, arguing that the trial court erred in 

reducing its requested fees. Given that there will be a retrial of 
72

phase 1, the issue of Suffolk’s entitlement to attorney fees will 

also need to be reconsidered on remand.

We first address Suffolk’s challenges to phase 2 of trial and 

conclude that the damages for TIA 5 will be subject to reversal 

and retrial along with the liability issue from phase 1. As to the 

jury verdict on TIA’s 2, 3, and 4, they are affirmed, as set forth in 

detail below.

As to Suffolk’s challenge to the outcome of phase 3, we 

conclude that this issue is best addressed following retrial below.

A. Damages awarded for TIA 5—phase 2

In phase 2, the jury was charged with assessing Suffolk’s 

damages resulting from the concrete cracking problem. Suffolk 

now challenges the phase 2 jury’s award, arguing it was 

insufficient.

The jury in phase 1 found LAUSD liable for the concrete 

cracking having received an erroneous instruction and related 

argument based on section 1104. The phase 2 jury was tasked 

with awarding damages on the phase 1 liability. As such, the 

phase 2 jury was required to accept the phase 1 jury’s finding 

that LAUSD was liable for the concrete cracking. As the phase 1

liability determination will be remanded for retrial, the phase 2 

liability issue will also need to be retried. Thus, we decline to 

address this issue.

B. Sufficiency of the evidence regarding TIA 2—

phase 2

TIA 2 concerned time extensions and costs for the delay 

related to over-excavation of the footings along the project 

property line. Since LAUSD did not approve Suffolk’s request for 

additional time and costs for TIA 2, the jury was instructed to 

determine whether LAUSD breached the implied warranty of 

correctness of plans and specifications for the designs implicated 
73

in TIA 2. The jury found that LAUSD did not breach the implied 

warranty as to the designs implicated in TIA 2. Suffolk 

challenges this finding on the ground that no reasonable jury 

could have found that no breach occurred based on the record as 

a whole.

We review this issue for substantial evidence. Under this 

standard, we must “‘accept as true the evidence supporting the 

verdict, disregard conflicting evidence, and indulge every 

legitimate inference to support the verdict.’” (Cochrum v. Costa 

Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1044.) 

Thus, our only role is to determine if substantial evidence exists 

in the record to support the verdict in favor of the prevailing 

party. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582 

(Schmidt).)

1. Evidence and arguments

In October 2011, Suffolk requested clarification on whether 

foundations along an adjacent property line required overexcavation. E-mails between the parties show that Suffolk asked 

LAUSD to “identify foundations that must be deepened” and 

provide “some clarification on which footings will need to be 

deepened.” It was requested that KPFF “mark up the foundation 

plan to identify foundations that must be deepened.” LAUSD 

complied and provided a “sketch on the subject matter.” The 

revised drawings were provided to Suffolk in a supplemental 

response to RFC 62. The response provided, in part: “[i]n 

accordance with the project geotechnical report, where the 

recommended lateral overexcavation of 5-feet beyond footings 

could not be performed, . . . the footing excavation should be 

deepened to the competent alluvium found at or below a depth of 

5 feet . . . .”
74

Suffolk also points to its CDA No. 12, initiated in 

August 2012. The CDA requested contingency funds for “labor, 

material, and equipment to over-excavate and backfill with 

concrete approximately 2’ deep at building footings.” The request 

specified, “NO CHANGE TO DSA APPROVED DOCUMENTS.” 

Mumper testified that the information in RFC 62 and revised 

S201 drawing, which was provided to clarify the over-excavation 

work, was necessary to proceed with and finish the overexcavation work.

Suffolk admits that the geotechnical investigation report, 

prepared by Geocon, already informed Suffolk of the potential for 

over-excavation “at or below a depth of five feet.” Suffolk also 

acknowledges other evidence in the record suggesting that the 

over-excavation was part of the original plan and did not require 

a design change. For example, Garawi testified that the revised 

S201 drawing was “voluntary information” he provided to 

Suffolk, and that Suffolk would have been able to excavate 

without the revised drawings. Further, as LAUSD points out, 

there was pushback from Garawi within the TIA 2 narrative. 

Garawi responded to TIA 2 in September 2012 with photographic 

evidence, noting that the contractor had proceeded with the overexcavation “without formal direction.” (Boldface and italics 

omitted.) At Suffolk’s suggestion that they only proceeded in 

certain areas, Garawi responded with additional photographs, 

stating, “take a look at the attached photos . . . and let me know if 

you will be dropping this argument . . . .” Garawi testified at trial 

that Suffolk was over-excavating the property lines, in 

contradiction to their position that they could not do so without 

direction from LAUSD.

Despite the contradictory evidence in the record, Suffolk 

argues that “a reasonable jury could only have found the plans 
75

for the footing excavation addressed in TIA 2 were incorrect and 

had to be corrected via CDA 12.” Suffolk draws a distinction 

between plans that contemplated over-excavation might be 

necessary, and plans that allow a contractor to accurately 

prepare its bid. Suffolk argues plans that allow a contractor to 

further excavate “as necessary” do not satisfy a public owner’s 

obligation to provide correct plans and specifications. Suffolk 

contends CDA 12 provided undisputed evidence that a change 

was required and was made.42

2. Substantial evidence supports the jury verdict

Ample evidence in the record supported the jury’s 

determination that LAUSD did not breach the implied warranty 

of correctness of plans and specifications as to the overexcavation issue in TIA 2. As set forth above, Garawi testified 

that Suffolk was falsely claiming that it could not proceed with 

the over-excavation work absent revised drawings. He testified 

that LAUSD provided the revised drawings voluntarily and that 

they were not necessary design changes. Further, documentary 

evidence showed that the changes did not require any deviation 

from the original design documentation. The jury was entitled to 

consider, and give weight to, LAUSD’s evidence suggesting that 

no design change was necessary for Suffolk to implement the 

over-excavation.

42 LAUSD argues that CDA 12 did not refer to design 

modifications and in fact specified “NO CHANGE TO DSA 

APPROVED DOCUMENTS.” Thus, the jury was free to 

interpret CDA 12 as not requiring design modifications. Even if 

the jury could not consider CDA 12 as not requiring design 

modifications, the jury was free to believe Garawi’s testimony 

suggesting that the revised drawings were not necessary to 

Suffolk’s over-excavation work.
76

Suffolk asks that we interpret the evidence differently from 

the jury to support its version of the facts. However, our role is 

“not to determine whether substantial evidence might support 

the losing party’s version of events.” (Schmidt, supra, 44 

Cal.App.5th at p. 582.) Because substantial evidence supported 

the jury’s determination that LAUSD did not breach the implied 

warranty of correctness of plans and specifications on TIA 2, we 

affirm the jury verdict on TIA 2.

C. Consistency of verdicts as to TIA’s 3 and 4—

phase 2

Suffolk argues that TIA’s 3 and 4 relate to the same 

underlying issue—alleged conflicts between the underground 

plumbing and concrete footings. Both TIA’s sought respective 

time extensions necessitated by Suffolk’s need to wait for revised 

drawings so the underground work could be completed and 

concrete poured. Suffolk states that the parties unnecessarily 

divided the delays arising from the conflicts in the plumbing 

drawings into two TIA’s covering different time periods. TIA 3 

addressed delays in December 2011 and TIA 4 addressed delays 

in January 2012. Suffolk contends that the jury made 

inconsistent factual determinations in finding that the claim for 

TIA 3 arose from incorrect plans and specifications while the 

claim for TIA 4 did not.43 Suffolk raised this issue in its motion 

43 The jury verdict form was set up as follows:

“Special Interrogatory No. 1(a) Regarding Suffolk’s Claim 

for Implied Warranty of Correctness of Plans and Specifications 

Against LAUSD: Did LAUSD breach the implied warranty of 

correctness of plans and specifications in the Contract by 
77

for new trial following phase 2. The trial court denied the 

motion, stating: “the jury could have found that the plans 

underlying RFC 266 and 297 [in TIA 4] were materially correct 

and still found the plans underlying the RFC in TIA 3 to have 

been incorrect, even though they all related generally to the same 

plans and specifications regarding plumbing and CMU joints.” 

1. Standard of review

“‘A special verdict is inconsistent if there is no possibility of 

reconciling its findings with each other.’” (Markow v. Rosner 

(2016) 3 Cal.App.5th 1027, 1048 (Markow).) This court generally 

reviews a special verdict de novo to determine whether its 

findings are inconsistent. (Zagami, Inc. v. James A. Crone, Inc. 

(2008) 160 Cal.App.4th 1083, 1092.) “A court reviewing a special 

verdict does not infer findings in favor of the prevailing party 

[citation], and there is no presumption in favor of upholding a 

special verdict when the inconsistency is between two questions 

in a special verdict.” (Ibid.) The appellate court is not permitted 

to choose between inconsistent answers, but “[i]f a verdict is not 

‘hopelessly ambiguous,’ the court may ‘“interpret the verdict from 

its language considered in connection with the pleadings, 

evidence and instructions.”’” (Ibid.)

Where inconsistency is alleged, reversal is warranted 

“[w]here the findings are so inconsistent, ambiguous, and 

providing Project plans and/or specifications for the designs 

implicated in TIAs 2, 3, or 4 to Suffolk that were not correct?

“A. TIA 2: __YES or __NO

“B. TIA 3: __YES or __NO

“C. TIA 4: __YES or __NO”

The jury checked “YES” for TIA 3 and “NO” for TIA 4.
78

uncertain that they are incapable of being reconciled . . . .” 

(Renfer v. Skaggs (1950) 96 Cal.App.2d 380, 383.)

2. Relevant factual background and arguments

Suffolk acknowledges that the information regarding the 

plumbing delays was split into two TIA’s and the claims were 

presented to the jury in that manner. However, Suffolk asserts 

that the evidence showed that the errors and design conflicts in 

TIA’s 3 and 4 arose from the same set of underground plumbing 

drawings. As support for this argument, Suffolk points to 

evidence that LAUSD approved one change order (CAP 106) for 

the direct cost of performing the changes to the underground 

plumbing conflicts spanning from December 2011 through 

January 2012. Of the multiple RFC’s addressed in CAP 106 were

RFC’s 192, 193, and 195 (covered in TIA 3) and RFC 297 (covered 

in TIA 4). Simply put, Suffolk argues, the RFC’s that are split 

between TIA 3 and TIA 4 are included in a single change order 

that LAUSD paid for. CAP 106 also included many of the 

plumbing changes that were formalized in bulletin 2. Bulletin 2 

was a collection of design revisions addressing several separate 

parts of the overall design and project, including many of the 

plumbing changes.44 Bulletin 2 was dated December 30, 2011. 

Further responses to RFC’s 172 and 297 were provided on 

January 17 and 26, 2012. Suffolk argues that because the RFC’s 

listed in the TIA’s overlap with those included in CAP 106, the 

verdict must be inconsistent.

Suffolk also points out that TIA 4 focused primarily on the 

changes to the plumbing design made in response to RFC’s 172 

and 297. RFC 172 is addressed in both TIA 3 and TIA 4. RFC 

44 We note that bulletin 2 is a three-page chart containing 

reference to over 35 drawings. 
79

297 was also addressed in both TIA’s because it superseded RFC 

193, which was covered in the TIA 3 narrative. Bulletin 2 was 

also referenced in both TIA’s. Suffolk asserts that TIA 4’s 

inclusion of bulletin 2, which listed changes to the plumbing 

through December 31, 2011, shows that TIA 4 was simply a 

continuation of delay arising from the same set of plumbing 

issues. Finally, Suffolk asserts that TIA 3 included language 

indicating further changes to the underground plumbing 

resulting in delay in the following month would be addressed in a 

subsequent claim: “TIA 3.1 impact continues into January 2012 

and will be provided in a month-by-month analysis as required by 

LAUSD.” 

Suffolk points out that in instructing the jury, the trial 

court collectively referred to TIA’s 3 and 4 as “the plumbing 

conflict issue.”

LAUSD argues that simply because there were a few 

commonalities between TIA 3 and TIA 4 does not mean that the 

jury was required to find that the plans and specifications for 

TIA’s 3 and 4 were either both correct or both incorrect. While 

there was some overlap, LAUSD argues, TIA 3 involved design 

issues unique to it and not at issue or implicated in TIA 4. First, 

in TIA 3 Suffolk claimed design issues raised in RFC’s 169, 190, 

191, and 195 delayed the project.

45 None of these alleged design 

45 In RFC 169, for example, Suffolk asked for further 

information regarding the location of plumbing sleeves to permit 

a waste line to run through concrete footings at the ES building. 

LAUSD responded to RFC 169 on December 23, 2011. Suffolk 

claimed the plumbing subcontractor installed the two sleeves on 

December 27, 2011. Thus, this design issue underlying RFC 169 

was resolved and no longer at issue in January 2012. Evidence 
80

changes were at issue in TIA 4. These RFC’s dealt with alleged 

design conflicts involving plumbing lines and foundations at 

specific locations. There was no overlap between TIA 3 and TIA 4 

on these issues. In addition, TIA 3 and TIA 4 have distinct time 

frames, as Suffolk admits.

LAUSD points out that just because several design issues 

are grouped into a single bulletin, such as bulletin 2, or paid for 

through a single CAP, does not mean that those design issues are 

identical or that they all stem from the same part of the project’s 

design. LAUSD challenges Suffolk’s suggestion that CAP 106 

proves that the verdict is inconsistent. CAP 106 paid Suffolk’s 

net increased direct costs for a broad range of changed work, and 

contained design-related clarifications on issues unrelated to any 

of the issues in TIA 3, TIA 4, or bulletin 2. For example, CAP 106 

included payment for changes set forth in bulletin 1. This was 

unrelated to the plumbing issues in the ES. In addition, bulletin 

2 provided dozens of design updates, revisions, and clarifications, 

many of which were unrelated to the plumbing issues.

Finally, LAUSD argues that even if the jury verdict were 

inconsistent as to its findings on TIA’s 3 and 4, any such error is 

harmless, as the jury found that LAUSD’s breach as to TIA 3 was 

not a substantial factor in causing harm to Suffolk. Thus, 

because Suffolk failed to prove causation, a new trial is not 

necessary, and any inconsistency is harmless and moot.

at trial suggested that the sleeves were not actually installed 

until January 26, 2012, a month later than Suffolk represented, 

due to delays attributable to Suffolk. Garawi testified that 

Suffolk waited a month after getting a response before doing the 

work. Garawi testified that LAUSD did not hold up the work, 

thus the fault was with Suffolk.
81

3. Analysis

Suffolk bears a heavy burden of showing that the jury 

verdict is impossible to reconcile. (Markow, supra, 3 Cal.App.5th 

at p. 1048.) Based on the evidence described above, we find that 

Suffolk has failed to meet this burden. Suffolk admits that the 

two TIA’s covered different time frames. In addition, the two 

TIA’s were presented to the jury as two separate issues to be 

resolved. And on the jury form, the jury was given the option of 

providing different answers to the question of whether LAUSD 

breached the implied warranty of correctness as to the two

TIA’s.46

At best, Suffolk has shown that there were some common 

issues that spanned the two TIA’s. The record shows that 

unrelated issues were grouped together into documents such as 

CAP 106 and bulletin 2 during the project. Suffolk points to no 

testimony or argument in the record requiring that jury treat the 

two TIA’s as inextricably linked. Suffolk does not dispute that 

the two TIA’s were not identical, thus allowing room for the jury 

to determine that while the plans underlying the claims in TIA 3

were incorrect, the plans underlying the claims in TIA 4 were 

correct.

Suffolk argues that the jury’s responses to the question of 

breach for TIA 3 and TIA 4 were required to be the same because 

“it took two months to correct the collective errors in the

46 The parties have not raised the issue, but we note that 

where the special verdict form allows for two different answers on 

the same issue, a party may be foreclosed from objecting to an 

inconsistent verdict under the doctrine of invited error. 

(Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 

1685-1687.)
82

plumbing drawings.” Suffolk contends this point is “undisputed,” 

despite Garawi’s testimony that the blame for the delay lay at 

least partially with Suffolk. Suffolk suggests that the jury 

suffered some “confusion or lack of understanding” that led to the 

purportedly inconsistent verdicts. Again, we note that the 

manner in which the evidence was presented, as well as the 

questions on the jury verdict, invited different answers to the two 

questions. Given the voluminous and diverse evidence the 

parties presented on TIA’s 3 and 4, we decline to find that Suffolk 

has shown an irreconcilable verdict. The verdicts are affirmed 

and retrial is not required.

III. Cross-motions for summary adjudication—phase 3

In November 2014, Suffolk sued its concrete subcontractor, 

Daum, for breach of contract. Suffolk prayed for attorney fees 

against Daum. Daum cross-complained against Suffolk for 

breach of contract and related claims. In its answer to Daum’s 

cross-complaint, Suffolk requested attorney fees. 

After phase 2, Daum made a motion for attorney fees 

against both LAUSD and Suffolk. The trial court found that 

Daum was entitled to recover its fees against Suffolk only under 

their subcontract and awarded Daum $775,523 against Suffolk. 

Thereafter, LAUSD and Suffolk filed cross-motions for summary 

adjudication on the issue of whether LAUSD was liable to 

Suffolk, under Suffolk’s implied contractual indemnity or breach 

of contract cause of action, for Suffolk’s obligation to pay attorney 

fees to Daum.

The trial court granted LAUSD’s motion for summary 

adjudication and denied Suffolk’s motion for summary 

adjudication. The trial court denied Suffolk’s claim on the ground 

of contractual indemnity, finding that Suffolk failed to establish 

that LAUSD had a joint legal obligation to compensate Daum for 
83

its fees. The trial court also found that Suffolk failed to establish 

that LAUSD was liable for the attorney fees as an element of 

damages based on breach of contract. Suffolk argues that the 

trial court erred.

The attorney fees at issue in phase 3 were fees that the 

trial court awarded to Daum for expenses Daum incurred in 

litigating the concrete cracking issue (phase 1). As the concrete 

cracking issue will be retried, the issue of liability may be 

resolved differently. Thus, we find that we need not resolve this 

issue at this time. Particularly because Suffolk casts the issue as 

a “question of first impression,” we find that it is better addressed 

when there exists an actual controversy.

IV. Suffolk’s appeal versus Daum

In its appeal against Daum, Suffolk challenges the trial 

court’s award of attorney fees to Daum. Suffolk challenges the 

award on several grounds. First, Suffolk challenges the award on 

procedural grounds, arguing that the trial court erred in granting 

Daum attorney fees based on an argument Daum presented in a 

supplemental brief following oral argument. Suffolk also argues 

that the trial court erroneously interpreted the contract between 

Suffolk and Daum, and erroneously failed to apportion 

recoverable fees.

As set forth above, Daum’s fees were related to the concrete 

cracking issue. As that issue will be retried, we decline to 

address Suffolk’s arguments regarding attorney fees at this time.

V. Fisk’s appeal versus Suffolk

Fisk was a subcontractor hired by Suffolk to perform work 

on the project. Due to the problems encountered during the 

building process, Fisk expended additional manpower and 

resources to complete its work on the project. Fisk provided 

notice to Suffolk as to how the delays would adversely affect 
84

Fisk’s performance and the increased costs associated with Fisk’s 

efforts. On February 28, 2014, Fisk submitted to Suffolk a 

certified claim in the amount of $1,908,157.61. Suffolk treated 

Fisk’s claim as a pass-through claim.

Fisk’s damages were only associated with TIA 5, which 

involved the concrete cracking issue. At trial, Fisk presented its 

damage calculations to the jury through an employee, Jennifer 

Sears, and an expert, Ted Scott. The two witnesses provided 

different totals for Fisk’s damages. As the trial court noted, Fisk 

originally claimed $2,084,683 in damages, and the jury awarded 

$1,721,038.63. The jury broke down Fisk’s award as follows: 

$1,046,479 against LAUSD, and $674,559.63 against Suffolk.

While there was no suggestion that Fisk was at fault for 

any of its losses, the jury was required to determine the amount 

of Fisk’s damages and the question of which party—LAUSD or 

Suffolk—was ultimately responsible for paying Fisk’s claim. 

Because no party on appeal challenges the jury’s determination of 

Fisk’s claim of damages, that number has been conclusively 

determined by the jury and need not be retried in the remand of 

the damages trial for TIA 5. However, the allocation of Fisk’s 

damage award between LAUSD and Suffolk is an issue that will 

need to be retried on remand. For this reason, as set forth in 

more detail below, we conclude that we need not address the 

specific issues presented in Fisk’s appeal: (1) whether the trial 

court erred in denying Fisk’s motion for attorney fees on 

procedural grounds and (2) whether the trial court erred in 

declining to award Fisk prejudgment interest on the portion of its 

award payable from Suffolk.

A. Attorney fee award

Following phase 2, Fisk sought attorney fees against 

Suffolk under a theory that it was the prevailing party under the 
85

subcontract as well as under the terms of Suffolk’s performance 

bond.47 The trial court acknowledged that Fisk would be entitled 

to attorney fees from “the Payment Bond Defendants,” provided 

the fees were shown to be reasonable. However, the trial court 

found that Fisk failed to provide sufficient evidence in its moving 

papers supporting its fee request and failed to use an appropriate 

method to show that its fees were reasonable. Fisk appeals this 

discretionary decision.

Given that damages for TIA 5 will be retried, we decline to 

address this issue. While Fisk’s damages have been determined 

by the jury, Fisk will be required to present evidence to a new 

jury on remand concerning the allocation of liability for those 

damages as between LAUSD and Suffolk. As such, Fisk will 

incur additional attorney fees. As all attorney fee issues as to 

damages for TIA 5 will be reconsidered at a later date, the award 

of attorney fees to Fisk should also be decided at that time.

B. Prejudgment interest against Suffolk

The trial court awarded Fisk prejudgment interest against 

LAUSD at the rate of 10 percent from and after February 15, 

2017.48 However, the trial court denied Fisk prejudgment 

interest on the portion of its award that it was awarded against 

Suffolk. Fisk had asserted a right to prejudgment interest 

against Suffolk pursuant to Civil Code section 3287, subdivision 

47 Suffolk’s performance bond contained an attorney fee 

provision. The parties did not dispute that an obligee is entitled 

to recover its attorney fees pursuant to a claim made on a 

performance bond containing an attorney fee provision. (Mepco 

Services, Inc. v. Saddleback Valley Unified School Dist. (2010) 

189 Cal.App.4th 1027, 1048-1049.)

48 February 15, 2017, was the date of the phase 1 verdict.
86

(a) (section 3287), which provides for mandatory prejudgment 

interest where damages are “certain, or capable of being made 

certain by calculation.” The trial court reasoned that because the 

jury had to determine Fisk’s damages, “the amount was neither 

liquidated [n]or capable of calculation so as to entitle Fisk to 

interest under section 3287(a).” The court also denied Fisk 

discretionary interest against Suffolk, as the liability of Suffolk 

was not established until after the phase 2 trial was concluded.

Fisk appeals, arguing that because no party contested 

Fisk’s entitlement to its claim, the date upon which prejudgment 

interest should be calculated was the date of the filing of Fisk’s 

complaint, which was May 22, 2014.

We agree with the trial court that Fisk’s claim was 

uncertain. While the parties did not provide contradictory 

evidence undermining Fisk’s claims, the jury was required to 

determine the amount owed to Fisk based on the varied evidence 

presented at trial. While it is true that the jury awarded Fisk an 

amount close to what it sought, the jury was not required to do 

so. The jury was presented with Fisk’s records, the testimony of 

Fisk’s employee and the testimony of an expert witness, each of 

whom came up with different numbers. It was for the jury to 

decide, based on the evidence, the amount of Fisk’s damages. The 

question of the amount of Fisk’s damages was a factual question 

to be resolved at trial.49

49 Leff v. Gunter (1983) 33 Cal.3d 508, 520, is distinguishable. 

In Leff, the calculation of damages was calculated “mechanically, 

on the basis of uncontested and conceded evidence of the value of 

the IRS Center upon its completion, the balance due on the 

indebtedness to which it was subject, and the extent of plaintiff’s 

interest in the original joint venture.” (Ibid.) Under those 
87

Thus, section 3287, subdivision (a), is inapplicable. While 

the trial court denied Fisk discretionary interest as to the 

amount owed from Suffolk on the ground that Suffolk’s liability 

was not determined until the phase 2 trial was concluded, the 

issue of discretionary prejudgment interest will be subject to 

reconsideration upon motion of Fisk following retrial of the TIA 5 

damages.

DISPOSITION

The phase 1 verdict is reversed and remanded for retrial, as 

is the damages phase of trial for TIA 5, which was held in 

phase 2. The JNOV on the retention of funds issue is reversed, 

and the trial court is directed to enter judgment on that issue in 

keeping with the jury verdict. The remaining issues arising out 

of phase 2 are affirmed. The phase 3 judgment is reversed, to be 

reconsidered following the retrial of damages, as are the trial 

court’s orders regarding attorney fees and prejudgment interest.

Each party is to bear its own costs of appeal.

________________________

CHAVEZ, J.

We concur:

________________________ ________________________

LUI, P. J. ASHMANN-GERST, J.

circumstances, the plaintiff was “‘entitled, as a matter of right, to 

recover prejudgment interest on the sum awarded from the time 

such sum became due.’” (Ibid.) In the matter before us, as shown 

from the varying evidence at trial, no such simple “mechanical” 

calculation was possible.
Filed 4/21/23

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SUFFOLK CONSTRUCTION 

COMPANY, INC.,

Plaintiff, Cross-defendant

and Appellant;

FISK ELECTRIC COMPANY,

Plaintiff and Appellant,

v.

LOS ANGELES UNIFIED 

SCHOOL DISTRICT,

Defendant and Appellant;

R.J. DAUM CONSTRUCTION 

COMPANY,

Defendant, Crosscomplainant and Respondent.

 B285400

 (Los Angeles County

 Super. Ct. No. BC541085)

 ORDER CERTIFYING

 OPINION FOR PARTIAL

 PUBLICATION
2

THE COURT:*

The opinion in the above-entitled matter filed on March 30, 

2023, was not certified for publication in the Official Reports. 

Pursuant to California Rules of Court, rules 8.1105(b) and 

8.1110, this opinion is certified for publication with the exception 

of the Discussion parts I.A.2 through V.

There is no change in judgment.

The requests to publish by the Los Angeles Unified School 

District, the Metropolitan Water District of Southern California, 

the San Bernardino County Transportation Authority, the Los 

Angeles County Metropolitan Transportation Authority and the 

Contra Costa Transportation Authority are granted as specified 

above.

* LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.