Filed 8/21/20 LNSU #1, LLC v. Aven CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LNSU #1, LLC,

Plaintiff and Appellant,

v.

MARCUS AVEN et al.,

Defendants and Respondents.

 D075329

 (Super. Ct. No. 

 37-2017-00004042-CU-BC-CTL)

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

Randa Trapp, Judge. Affirmed.

Knottnerus & Associates and Wilford Knottnerus, Mark Beal Simpkins; 

Friedhofer and James Friedhofer for Plaintiff and Appellant. 

Sepahi Law Group and Sage S. Sepahi for Defendants and 

Respondents. 

Plaintiff and appellant LNSU #1, LLC (LNSU) appeals from a 

judgment in favor of defendants and respondents Marcus Aven, Green Life

Construction, Inc. (Green Life) and American Safety Casualty Insurance 

Company following a bench trial on LNSU’s operative complaint for breach of 

contract, negligence and recovery on a contractor’s bond. The lawsuit 

stemmed from Aven and Green Life’s work for LNSU in refinishing hardwood 

flooring. After LNSU served its expert witness designation on Aven and 
2

Green Life, but not the attorney who had been specially appearing for them, 

the trial court excluded from trial LNSU’s expert witness on the industry 

standard of care for flooring installation and finishing. The court thereafter 

found LNSU failed to meet its burden of proof on all of its causes of action; as 

to negligence specifically because it had not presented evidence from an 

expert that defendants fell below the standard of care in their work. LNSU 

contends the court erred as a matter of law by excluding its expert, 

warranting the judgment’s reversal and remand for new trial on all causes of 

action. LNSU further contends that the court prejudicially erred by failing to 

address its pleaded theory that defendants breached an implied covenant to 

perform their work in compliance with the manufacturer’s specifications, and 

find in LNSU’s favor on that theory. 

We need not decide whether LNSU’s counsel timely served its expert 

designation on Aven and Green Life, or whether the court erred by excluding 

LNSU’s standard of care expert witness. Assuming error, we hold it would be

harmless in light of the fact LNSU’s expert was not designated to testify on 

causation and damages, and the record is otherwise absent competent, 

nonspeculative evidence establishing defendants’ conduct forced LNSU to 

hire another contractor to refinish the flooring, that the refinishing was 

necessitated by defendants’ substandard work, or that LNSU suffered 

damages, including in diminution in the floor’s value or loss of its warranty. 

We reject LNSU’s claim that the trial court prejudicially erred by failing to 

rule on an implied contract breach theory related to the floor’s warranty. We 

therefore affirm the judgment in defendants’ favor.

FACTUAL AND PROCEDURAL BACKGROUND
3

Many of the basic facts concerning the parties’ underlying dispute are 

uncontested, so we take those from the trial court’s statement of decision.1 

At LNSU’s request, Aven installed Junckers-brand merbau hardwood 

flooring at LNSU’s property. Some of the wood was repurposed from LNSU’s 

other properties and the rest was purchased new. LNSU, which had used 

Aven for other floor installations, was pleased with his work on the property. 

A third party later damaged the upstairs floor’s finish. LNSU asked Aven to 

repair the third party’s damage, so he provided an estimate to which LNSU 

agreed, and Aven issued an invoice. Aven’s finish failed. After attempts to

test with other products, Aven agreed to repair the finish at no additional 

1 When reviewing a judgment following a bench trial, we typically infer 

that the court impliedly made every factual finding necessary to support its 

decision. (McPherson v. EF Intercultural Foundation, Inc. (2020) 47 

Cal.App.5th 243, 257; Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) A 

proper request for a statement of decision, however, may change that 

standard. (Thompson, at p. 981.) Under Code of Civil Procedure sections 632 

and 634, the court on a party’s proper request must issue a statement of 

decision “ ‘explaining the factual and legal basis for its decision as to each of 

the principal controverted issues at trial.’ ” (Thompson, at p. 981.) “[I]f the 

statement of decision does not resolve a controverted issue or is ambiguous, 

and the omission or ambiguity was brought to the attention of the trial court, 

‘it shall not be inferred on appeal . . . that the trial court decided in favor of 

the prevailing party as to those facts or on that issue.’ ” (Ibid.) As we 

summarize below, LNSU requested a statement of decision from the trial 

court and prepared a proposed statement of decision that did not comport 

with the court’s rulings, but it did not object to the court’s own statement of 

decision. LNSU’s sole challenge on appeal relating to the court’s statement of 

decision is only to the court’s asserted failure to address a theory that 

defendants breached an implied covenant not to void the floor manufacturer’s 

warranty. It does not challenge the court’s findings on the basic facts of the 

parties’ dispute or any other fact at issue. LNSU does not challenge the 

court’s ruling sustaining defendants’ objections to its own proposed statement 

of decision. In short, we are not prevented from inferring in favor of the 

judgment that the court impliedly made every factual finding necessary to 

support its decision. (McPherson, at pp. 257-258.) 
4

cost to LNSU. LNSU, however, terminated Aven and hired another 

contractor, Hugh Staley, who sanded the floor to bare wood and refinished it.

LNSU sued Aven and his company for breach of contract and 

negligence. After LNSU filed a first amended complaint, Aven, representing 

himself, filed a general denial with affirmative defenses. In August 2017, the 

parties appeared for a case management conference at which the trial court 

advised Aven that Green Life had to be represented by counsel. By 

stipulation and leave of court, LNSU filed its second amended complaint, 

adding Aven and Green Life’s contractor’s bonding company as a party as 

well as a claim for recovery on a contractor’s bond. 

Representing himself and Green Life, Aven answered LNSU’s second 

amended complaint. In early December 2017, at the continued case 

management conference, attorney Sage Sepahi specially appeared for Aven. 

In its minute order, the court again noted that Aven had answered the 

operative complaint on behalf of himself and Green Life, and that Green Life 

must be represented by counsel. It set an order to show cause as to why 

Green Life’s answer should not be stricken for the absence of legal 

representation, and again continued the case management conference to 

December 8, 2017. Days later, attorney Sepahi filed a case management 

conference statement on Aven and Green Life’s behalf.2 On December 8, 

2017, Sepahi advised the court he would be representing Aven and Green 

2 The caption lists only Green Life as the client, but the statement states 

elsewhere it was submitted jointly by both Green Life and Aven. 
5

Life.3 The court ordered the first expert exchange to occur on April 20, 2018, 

and set the matter for trial in July 2018. On December 29, 2017, Sepahi filed 

an amended answer to the second amended complaint on Aven and Green 

Life’s behalf. 

On April 12, 2018, LNSU’s counsel Mark Simpkins served LNSU’s first 

expert witness declaration and designation on Aven and Green Life but not 

Sepahi. The document identified David Newman as LNSU’s expert witness 

on, among other things, the industry standard of care for installing and 

finishing merbau flooring. 

On July 6, 2018, the parties filed a verified joint trial readiness 

conference report with attached exhibit and witness lists. The witness list 

included Newman as LNSU’s expert. In part, the parties reported that 

Sepahi was Aven and Green Life’s trial counsel. They reported that they had 

not conducted discovery or exchanged experts pursuant to the court’s 

deadlines. In mid-July 2018, American Safety Casualty Insurance Company 

filed a substitution of attorney form substituting attorney Sepahi in as its 

counsel. 

At some point, the trial date was continued to September 4, 2018. At 

the trial call in late August, Sepahi raised an issue concerning LNSU’s expert 

witness designation. LNSU’s counsel conceded he had not served it on 

Sepahi. 

On August 28, 2018, attorney Simpkins applied ex parte for an order to 

permit Newman to testify at trial on LNSU’s behalf, on grounds he timely 

3 The minute order for that hearing identifies Sepahi as counsel present 

for defendants and provides: “Upon the Court’s inquiry, Attorney Sepahi 

informs the Court he will be representing Aven . . . and the business entity 

Green Life Construction Inc.” The minute order is unsigned and concludes: 

“Parties waive notice.” 
6

served the expert designation on Aven and Green Life, his failure to serve 

Sepahi was excusable warranting relief under Code of Civil Procedure4

section 473, and defendants had no standing to object as they had failed to 

comply with expert exchange requirements. Simpkins submitted a 

declaration averring that on April 12, 2018, he had timely served Aven and 

Green Life with the expert designation, but not attorney Sepahi, because 

Aven had been representing himself and Green Life and thus Simpkins did 

not believe Sepahi was counsel of record because Aven and Green Life had 

not served a substitution of attorney indicating Sepahi was an attorney of 

record. 

In opposition, defendants argued the court could not grant LNSU’s 

requested relief under section 473, subdivision (b), and the application failed 

to establish good cause because LNSU’s failure to serve an expert designation 

was unreasonable. Attorney Sepahi stated his clients would be prejudiced in 

the event the court permitted expert testimony when trial was to commence 

in less than a week. Aven submitted a declaration stating he had not 

received LNSU’s expert designation and did not recall ever seeing it. 

The trial court denied LNSU’s application. The matter proceeded to 

trial, after which the trial court ruled LNSU failed to meet its burden of proof 

on its causes of action. It found Aven to be the more credible witness. It

accepted Aven’s testimony that he agreed to remedy the problems with the 

flooring at no additional cost to LNSU and was in the process of doing so 

when LNSU terminated him. 

LNSU asked for a statement of decision addressing 29 “controverted 

issues,” including procedural and legal questions pertaining to attorney 

4 Undesignated statutory references are to the Code of Civil Procedure.
7

Sepahi’s appearance as counsel of record in the case, the court’s order 

excluding LNSU’s expert evidence, and LNSU’s expert disclosure. LNSU also 

asked the court to address whether defendants breached the contract, 

whether any breach was excused, whether LNSU performed its contractual 

obligations, if a breach occurred whether it caused LNSU damages, the 

amount of LNSU’s contract damages and whether the court precluded LNSU 

from offering expert opinion or evidence that defendants breached the 

standard of care. LNSU asked the court to address similar questions as to 

defendants’ negligence: whether defendants were negligent, if their 

negligence caused LNSU damages, and the amount of LNSU’s damages. 

LNSU thereafter filed a lengthy proposed statement of decision addressing 

“findings of fact common to all dispositive procedural issues,” as well as 

conclusions of law regarding LNSU’s expert witness designation and 

defendants’ representation by attorney Sepahi. The proposed statement of 

decision included findings and rulings of fact and law on the substantive trial 

issues but in LNSU’s favor, contrary to the court’s ruling after trial. 

Defendants objected to the proposed statement of decision in part on grounds 

it sought to circumvent the court’s findings and rulings. 

Sustaining defendants’ objections, the court issued its own statement of 

decision. In part, it found LNSU failed to prove the elements of breach of 

contract, particularly the element of breach: “To the contrary, the evidence 

presented showed that defendant [Aven] was ready, willing and able to 

perform but was prevented from doing so because of plaintiff’s unwarranted 

termination of defendant’s services.” As to negligence, the court found 

“[t]here was no evidence presented that defendant [Aven] fell below the 

standard of care in his efforts to correct the defect in the upstairs finish that 

was damaged by an unrelated third party. Neither party provided expert 
8

testimony to establish the standard of care let alone that defendant fell below 

the standard of care. Thus, the court was left with the testimony of the . . . 

parties and lay witnesses—none of whom could testify to the standard of 

care.” The court further ruled that because LNSU’s breach of contract and 

negligence claims failed, so did the surety cause of action against American 

Safety Casualty Insurance Company. 

LNSU filed this appeal from the ensuing judgment. 

DISCUSSION

I. Exclusion of Expert Witness

LNSU contends the trial court erred by excluding its expert flooring 

standard-of-care witness Newman from testifying at trial. It rests its claim 

on two grounds: First, LNSU argues it validly served its first expert witness 

designation on Aven and Green Life because they had not yet taken steps to 

substitute attorney Sepahi as their counsel. Second, LNSU argues 

defendants could not object to Newman’s trial testimony because they did not 

make a complete and timely section 2034.260 designation, and the trial court 

did not have the ability to exclude Newman sua sponte. 

We need not reach these arguments. Even if we were to conclude the 

trial court abused its discretion in excluding Newman as an expert, that 

would not by itself be sufficient to reverse the judgment. (ABM Industries 

Overtime Cases, supra, 19 Cal.App.5th at p. 293; Grail Semiconductor, Inc. v. 

Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799.) 

“Rather, the ‘judgment of the trial court may not be reversed on the basis of 

the erroneous [exclusion] of evidence, unless that error was prejudicial.’ 

[Citations.] Article VI, section 13, of the California Constitution further 

provides that ‘a judgment may not be set aside based on the erroneous 

[exclusion] of evidence “unless, after an examination of the entire cause, 
9

including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.” ’ [Citations.] ‘In civil 

cases, a miscarriage of justice should be declared only when the reviewing 

court, after an examination of the entire cause, including the evidence, is of 

the opinion that it is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the error.’ 

[Citation.] Thus, our task on appeal is to determine whether an abuse of 

discretion has occurred and, if so, whether it is reasonably probable that a 

result more favorable to [LNSU] would have been obtained absent the error.” 

(ABM Industries, at p. 293; see Evid. Code, §§ 353, 354; Ajaxo, Inc. v. 

E*Trade Financial Corporation (2020) 48 Cal.App.5th 129, 185.) “In making 

this assessment ‘we are not to look to the particular ruling complained of in 

isolation, but rather must consider the full record in deciding whether a 

judgment should be set aside.’ [Citation.] The appellant bears the burden of 

establishing that the error was prejudicial.” (Grail Semiconductor, at p. 799.)

Presuming error, we conclude LNSU cannot meet its burden to show 

prejudice. LNSU’s operative complaint alleged that defendants breached 

their duty to plaintiff by failing to do the project work “in a good and 

workman-like manner, in compliance with governing building codes and 

regulations, the manufacturer’s specifications and recommendations, and in 

compliance with industry customs, practices, and standards . . . .” It alleged 

more specifically that defendants installed the flooring crooked in at least one 

room, used an improper finish not manufacturer-approved or recommended, 

improperly applied the finish leaving fibers, bubbles and other imperfections, 

then damaged the factory finish of the wood by attempting to sand off the 

improper finish. 
10

LNSU’s proffered expert declaration stated that Newman had been 

installing and refinishing wood floors for over 20 years and was very familiar 

with the type of merbau flooring installed in the home as well as the industry 

standard of care for installing and finishing the wood. It provided that 

Newman would testify that defendants’ refinishing work was below the 

standard of care in both the selection and application of finishing material 

and the manner in which the work was performed. Newman’s inspection 

report detailed the problems with photographs.

Concededly, defendants did not object to Newman’s qualifications to 

testify on the standard of care in response to LNSU’s request for leave to 

present him and Newman disclosed sufficient knowledge of the subject to 

entitle his opinion to go to the trier of fact. (See Chadock v. Cohn (1979) 96 

Cal.App.3d 205, 209 [where expert has sufficient knowledge of a subject, the 

degree of his knowledge goes more to the weight of the evidence than its 

admissibility].) His testimony was required on the industry standard of care 

and its breach—factual questions for LNSU to prove negligence. (Unigard 

Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239 

[whether party failed to conform to standard of care is a question of fact if 

reasonable minds can differ]; Frantz v. San Luis Medical Clinic (1978) 81 

Cal.App.3d 34, 39.) “In negligence cases arising from the rendering of 

professional services, as a general rule the standard of care against which the 

professional’s acts are measured remains a matter peculiarly within the 

knowledge of experts. Only their testimony can prove it, unless the 

layperson’s common knowledge includes the conduct required by the 

particular circumstances.” (Unigard Ins. Group, at p. 1239.) 

However, LNSU was not merely required to show breach, but also that 

defendants’ negligent acts or omissions proximately caused damage. (See 
11

Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1370.) To establish

legal causation, a plaintiff must show that a defendant’s act or omission “was 

a ‘substantial factor’ in bringing about the injury”; requiring evidence of 

“some substantial link or nexus between omission and injury.” (Saelzler v. 

Advanced Group 400 (2001) 25 Cal.4th 763, 778; Sanchez v. Kern Emergency

Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 [“Regarding 

causation, ‘the plaintiff must offer an expert opinion that contains a reasoned 

explanation illuminating why the facts have convinced the expert, and 

therefore should convince the jury, that it is more probable than not the 

negligent act was a cause-in-fact of the plaintiff’s injury’ ”].) Expert 

testimony is required to establish causation where the complexity of that 

issue is beyond common experience. (Garbell v. Conejo Hardwoods, Inc.

(2011) 193 Cal.App.4th 1563, 1569; see Inouye v. Black (1965) 238 Cal.App.2d 

31, 34 [esoteric negligence causation demands expert testimony].) “A plaintiff 

cannot recover damages based upon speculation or even a mere possibility 

that the wrongful conduct of the defendant caused the harm. [Citations.] 

Evidence of causation must rise to the level of a reasonable probability based 

upon competent testimony. [Citations.] ‘A possible cause only becomes 

“probable” when, in the absence of other reasonable causal explanations, it 

becomes more likely than not that the injury was a result of its action.’ ” 

(Williams v. Wraxall (1995) 33 Cal.App.4th 120, 133.) It was LNSU’s burden 

to establish causation by competent evidence. (Thompson v. Sacramento City

Unified School Dist. (2003) 107 Cal.App.4th 1352, 1371.)

Here, Newman’s expert declaration did not state he would testify how 

Aven’s deficient work (versus some defective product) caused LNSU’s 

damages, or even about LNSU’s damages in general. The declaration does 

not state that Newman would render opinions on depreciation in the 
12

flooring’s value, or that he was familiar with the Junckers warranty and the 

impact of the work on any flooring warranty. Nor does Newman’s report 

address any such issues or opinions.5 LNSU’s expert witness declaration 

was required to provide, among other things, “[a] brief narrative statement of 

the general substance of the testimony the expert is expected to give.” 

(§ 2034.260, subd. (c)(2); see Bonds v. Roy (1999) 20 Cal.4th 140, 148.) If 

LNSU wished to expand the scope of its expert’s testimony beyond the 

standard of care issue identified in the declaration, it was required to move 

for leave to amend its expert witness declaration. (§ 2034.610, subd. (a)(2); 

see Bonds, at p. 145.) Otherwise, an opinion offered by any party who has 

“unreasonably failed” to comply with these requirements “shall be excluded.” 

(§ 2034.300; see Bonds, at pp. 146-147; see DePalma v. Rodriguez (2007) 151 

Cal.App.4th 159, 164 [“It is well[-]settled that an expert may be precluded 

5 Newman’s report documented his inspection of the flooring in May 

2017. LNSU manager Doug Grimes was present. Newman’s report relates 

that Grimes was “concerned with a white or hazy appearance to the finish 

flooring surface.” According to Newman, Grimes also told him that for 

unknown reasons, the contractor refinished the floor with a high gloss finish 

rather than the matte finish applied by the manufacturer. Newman 

reported: “Upon completion of the refinish process bumps, bubbles, hairs, 

and streaks were visible in the finish surface. The contractor came out to 

refinish the floor a 2nd time via the screen and recoat process. [Grimes] 

halted this process after hairs bubbles and streaks were visible in rooms that 

had been completed during the 2nd refinish.” Newman concluded that the 

hairs, bumps and bubbles were “a refinishing technician concern” that 

“should be correctable via a screen and recoat refinishing process.” He stated 

the affected planks were due to a “substance or contaminant preventing the 

applied finish from curing properly,” another refinishing technician concern, 

and that planks “may need to be replaced rather than refinished.” Newman’s 

report stated that “the screening portion of the refinishing process needed to 

be completed, the floor cleaned, and new finish applied to correct the 

appearance to these affected areas. This too is a refinishing technician 

concern as the refinishing process has not been completed.”
13

from testifying at trial on a subject that was not described in his expert 

witness declaration”].) An expert declaration that omits or inaccurately 

describes the substance of an expert’s expected testimony is akin to a failure 

to disclose the expert at all. (Bonds, at pp. 146-147.) 

Further, the trial court acts as a gatekeeper to exclude expert 

testimony based on reasons unsupported by the material on which the expert 

relies, or that is speculative. (Sargon, supra, 55 Cal.4th at pp. 771-772; Apple 

Inc. v. Superior Court (2018) 19 Cal.App.5th 1101, 1118.) Given the limited 

scope of Newman’s opinion and the materials relied upon by him—his

personal inspection, photographs and the minimal observations of LNSU 

manager and witness Doug Grimes—any opinions from Newman on 

causation and damages—particularly warranty damages—would have been 

speculative and lacking factual foundation. 

Apart from the absence of expert testimony, the record contains no 

competent, nonspeculative evidence from LNSU’s nonexpert witnesses on 

causation and damages. Though the evidence need only be such as to afford a 

reasonable basis to conclude it is more likely than not Aven’s conduct was the 

cause in fact of LNSU’s damage (see Viner v. Sweet (2003) 30 Cal.4th 1232, 

1243; City of Modesto v. Dow Chemical Co. (2018) 19 Cal.App.5th 130, 154), 

the evidence at trial here permitted a trier of fact to conclude the 

unsatisfactory result stemmed from a defective finish or other environmental 

conditions. Aven testified that the finish LNSU demanded he use did not 

perform as well as the finish he had used originally to successfully install the 

flooring or other commercial grade finishes. He also testified that the 

environmental conditions were unsuitable for the finish application. Aven 

testified that he believed the Junckers finish was the problem and told 

LNSU’s manager, who insisted that he continue to use it. LNSU’s witnesses 
14

testified about their dissatisfaction with the result but did not negate the 

possibility of defective materials or environmental conditions as a factor. 

Indeed LNSU’s witness Grimes testified that upon seeing the result, “I didn’t 

know what the error was caused by, whether it was the wrong material or a 

bad batch or whatever, but, obviously—I mean, everyone who went up there 

would say, ‘What’s wrong with this floor?’ ” (Italics added.) On this record, 

LNSU did not establish it was more likely than not Aven was the cause in 

fact of the poor result. 

We reach the same conclusion on damages. LNSU’s damages claims at

trial differed significantly from its pleadings. Its operative complaint alleged 

it had incurred damages, including damage to the merbau flooring, estimated 

to exceed $200,000. In opening statements, LNSU’s counsel admitted LNSU 

had not suffered actual damages from any warranty issues.6 Following trial, 

however, counsel asked the court to award LNSU $19,2717 in damages. 

Counsel argued LNSU’s damages were caused not by any defective product, 

but by Aven’s incompetence as evidenced by his violation of laws governing 

home improvement contracts, and the fact Aven did nothing to advise LNSU 

that his actions “could have negative impacts on the warranty.” LNSU 

6 Counsel argued: “[I]t’s hard to quantify, but another important 

element of damages was because of the finishing—the refinishing that Mr. 

Aven did, he voided the warranty—the manufacturer’s warranty on the 

product. That is something hard to quantify, because we don’t have any 

actual damages. We haven’t had to go back for warranty repairs yet, if at all. 

[¶] But because of what he did and because he didn’t check with the 

manufacturer and because he didn’t get the manufacturer’s approval to use 

different products in the finish, he actually voided the warranty.” (Italics 

added.) 

7 Counsel’s calculation of LNSU’s damages was off by one dollar.
15

sought $5,596 for its cost of repair ($8,325 invoiced by Staley, minus $2,728 it 

would have paid Aven for a “screen and recoat”); $10,035 in diminution of the 

flooring’s value, calculated by discounting the cost of the wood 50 percent for 

the loss of its factory finish and part of the wood; and $3,640 for lost warranty 

value. 

This record does not contain evidence proving these elements of 

damage to a reasonable certainty. “ ‘Whatever its measure in a given case, it 

is fundamental that “damages which are speculative, remote, imaginary, 

contingent, or merely possible cannot serve as a legal basis for recovery. 

[Citations.]” [Citations.] However, recovery is allowed if claimed benefits are 

reasonably certain to have been realized but for the wrongful act of the 

opposing party.’ ” (Moore v. Teed (2020) 48 Cal.App.5th 280, 292, quoting 

Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989.) At trial, LNSU’s 

manager Ponani Sukumar testified that after Aven unsuccessfully attempted 

to repair the upper floor and performed three different tests in further efforts 

to correct the repair, Sukumar told Aven he was going to hire someone else to 

correct the work. Grimes testified that Aven had “no hesitation” that it was 

his responsibility to fix the floor at Aven’s own expense. Aven confirmed he 

never refinished the floor; he had micro-abraded it, prepared it for recoat and 

was in “mid system” when Grimes dismissed him from the project. The trial 

court, which credited Aven’s testimony over that of LNSU’s witnesses, found 

that defendants were prevented from performing repairs because LNSU 

terminated them and hired someone else. The evidence shows LNSU took it 

upon itself to hire and pay its new contractor, Staley. 

Nor is there evidence about the value of the Junckers warranty or the 

terms of the warranty itself. Staley did not address warranty issues. Aven 

testified that while he was in process of attempting to test products at 
16

Grime’s request, he contacted Junckers, who informed him that as long as 

the factory finish was on the floor, it would not void the flooring warranty. 

Though LNSU’s counsel questioned Aven about the warranty and purported 

to read portions of it, counsel’s questions are not evidence (Cuenca v. Safeway 

San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 998), 

and Aven did not admit that his work voided any warranty. Nor is there 

testimony from any party as to the value of such a warranty. 

Finally, there is no competent evidence as to the diminution in value of 

that portion of the upper flooring refinished by Staley. Admittedly, 

California law requires only that a party present some reasonable basis for 

computing damages, and damages may be approximated. (SCI California 

Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 

570; Sargon, supra, 55 Cal.4th at p. 775.) But the record still must contain 

evidence of the existence and fact of damage by which to make such an 

approximation. (See Sargon, supra, 55 Cal.4th at p. 774 [fact of damage 

must be certain]; Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921 

[once cause and existence of damages has been so established, recovery will 

not be denied because damages are difficult of ascertainment]; Acree v. 

General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 389.) Here, 

LNSU did not present evidence from which a trier of fact could conclude 

LNSU’s flooring diminished in value, much less reasonably calculate the 

amount of such diminution. 

II. LNSU’s Implied Contract Claim

Apart from the court’s exclusion of its expert witness, LNSU contends 

the trial court separately prejudicially erred by failing to rule on its contract 

breach theory that Aven and Green Life’s flooring work voided LNSU’s 25-

year warranty from Junckers. LNSU argues the court was bound to rule on 
17

the question after LNSU requested a statement of decision having such a 

finding under section 632. It maintains the evidence is undisputed on the 

point, compelling a verdict in its favor. 

We are unpersuaded. First, the trial court sustained in full defendants’

objections to LNSU’s proposed statement of decision, which improperly made 

findings in its favor contrary to the court’s oral ruling after trial. The court’s 

ruling effectively struck LNSU’s proposed statement of decision, and LNSU 

presents no argument as to why that ruling was incorrect. Second, LNSU did 

not object to the court’s final statement of decision or point out any asserted 

omissions, and it cannot be heard to complain about the court’s final 

statement of decision for the first time on appeal. (In re Marriage of Arceneax 

(1990) 51 Cal.3d 1130, 1134, 1138 [when court issues a statement of decision, 

a party claiming deficiencies therein must bring such defects to the trial 

court’s attention; it is “unproductive to deprive a trial court of the opportunity 

to correct such a purported defect by allowing a litigant to raise the claimed 

error for the first time on appeal”]; see Damiani v. Albert (1957) 48 Cal.2d 15, 

18 [“points not urged in the trial court may not be urged for the first time on 

appeal”].) Third, we disagree with LNSU that Aven’s testimony—in which he 

stated he was not a nationally-approved Junckers contractor and did not tell 

LNSU that fact—established that the Junckers warranty had been voided by 

his work. In sum, LNSU has not demonstrated error in connection with any 

implied contract claim based on a voided warranty.
18

DISPOSITION

The judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.