CACI 4520 Contractor’s Claim for Changed or Extra Work

California Civil Jury Instructions CACI

4520 Contractor’s Claim for Changed or Extra Work

[Name of plaintiff] claims that [name of defendant] required [him/her/nonbinary pronoun/it] to perform [changed/ [or] extra] work beyond that required by the contract. [Name of plaintiff] claims that [[he/she/nonbinary pronoun/it] should be compensated/ [and] should have been given a time extension] [under the contract].

To succeed on this claim, [name of plaintiff] must prove all of the following:

1.That the [changed/ [or] extra] work was [not included in/ [or] in addition to that required under] the original contract;

2.That [name of defendant] directed [name of plaintiff] to perform the [changed/ [or] extra] work;

3.That [name of plaintiff] performed the [changed/ [or] extra] work; and

4.That [name of plaintiff] was harmed because [name of defendant] required the [changed/ [or] extra] work.

Directions for Use

This instruction may be used for claims for changed or extra work by the contractor against the owner, or for analogous claims asserted by a subcontractor against the general contractor.

Most construction contracts allow the owner to direct changes in the work and provide that the contractor will be paid and sometimes receive a time extension for performing the changed or extra work. Under certain circumstances, extra or changed work may be priced in the contract (e.g., by unit price or agreed labor rates and material costs). If so, include “under the contract” in the opening paragraph.

This instruction is based on CACI No. 303, Breach of Contract—Essential Factual Elements, and CACI No. 350, Introduction to Contract Damages. If the claim is based on an implied contract for the work, also give CACI No. 305, Implied-in-Fact Contract.

Sources and Authority

“Extra work as used in connection with a building contract means work arising outside of and entirely independent of the contract—something not required in its performance, not contemplated by the parties, and not controlled by the contract.” (C.F. Bolster Co. v. J.C. Boespflug Constr. Co. (1959) 167 Cal.App.2d 143, 151 [334 P.2d 247].)

“Where the extra work and materials furnished are of the same character as the work and materials named in the contract, the general rule is that they are to be paid for according to the schedule of prices fixed by the contract.” (Frank T. Hickey, Inc. v. Los Angeles Jewish Community Council (1954) 128 Cal.App.2d 676, 684 [276 P.2d 52].)

“Where the extras are of a different character from the work called for in the contract and no price is agreed on for extra work, their reasonable value may be recovered.” (C.F. Bolster Co.supra, 167 Cal.App.2d at p. 151.)

“What Coleman [Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396 [55 Cal.Rptr. 1, 420 P.2d 713]] does not expressly address is whether a contractor faced with a substantial change in its originally contracted scope of work, who is unable to successfully negotiate a price for that additional work, may elect to continue to work and reserve its right to subsequently obtain a judicial determination as to the value of the changes. The trial court concluded that it may and we agree. So long as the other contracting party continues to demand performance of the increased scope of work, and in the absence of any conflicting provision of the contract, the contractor may continue to work after unsuccessful negotiations and subsequently recover the value of that work. To hold otherwise would compel a contractor to walk off the job in the face of what it believes to be major changes in the scope of work required of it, with significant consequences if its judgment is later proven wrong, or alternatively forfeit any right to seek compensation for that work, regardless of the extent of the additional burdens imposed. … The interpretation urged by [defendant] is also impractical and economically inefficient. Construction projects pose complex time management challenges, requiring multiple contractors and subcontractors to coordinate their efforts as numerous design revisions and change orders inevitably arise. To complete these projects efficiently, the parties must be able to continue working despite contract disputes with reasonable assurances of the ability to ultimately obtain a fair resolution of those disputes. (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945, 966 [114 Cal.Rptr.3d 644].)

Secondary Sources

1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5, Private Contracts: Disputes and Remedies, § 5.38 et seq.
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6, Public Contracts: Disputes and Remedies, § 6.62 et seq.
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9, Handling Disputes During Construction, § 9.66 et seq.
1 Stein, Construction Law, Ch. 4, Modification and Termination of Construction Contracts, ¶ 4.06 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, §§ 104.15, 104.215 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.40 (Matthew Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts, § 30D.14 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:61, 27:69 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:34 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 4:23, 4:41 (Thomson Reuters)
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13, Everything You Ever Wanted to Know About Extra Work and the Changes Clause