CACI 4523 Contractor’s Claim for Additional Compensation—Abandonment of Contract

California Civil Jury Instructions CACI

4523 Contractor’s Claim for Additional Compensation—Abandonment of Contract

The contract between the parties provided for certain procedures to be followed if [name of plaintiff] wanted to be paid for changed or additional work that was not initially required by the contract. These procedures are called “change-order requirements.”

[Name of plaintiff] claims that [name of defendant] required many changes and that the parties consistently ignored the contract’s change-order requirements. Therefore, [name of plaintiff] claims that the contract was abandoned and that the change-order requirements no longer applied.

To establish this claim, [name of plaintiff] must prove the following:

1.That the parties through their conduct consistently disregarded the contract’s change-order requirements; and

2.That the scope of work under the original contract had been altered by the changes so much that the final project was significantly different from the original project.

Directions for Use

This instruction is a contractor’s response if the owner asserts that the contractor is not entitled to additional compensation for changed or additional work. (See CACI No. 4521, Owner’s Claim That Contract Procedures Regarding Change Orders Were Not Followed.) It should be given if the contractor claims that through their conduct, the parties acted in a manner that indicated that they had entirely abandoned their original contract.

For instructions on damages after it has been established that the contract was abandoned, see CACI No. 4541, Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra Work—Total Cost Recovery, and CACI No. 4542, Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit Recovery.

This instruction may not be used against a public entity. A contractor may not claim that a public entity has abandoned the applicable contract change order procedures on a project subject to competitive bidding in such a way as to increase the contract price because doing so would violate the public policy regarding competitive bidding. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 239 [115 Cal.Rptr.2d 900, 38 P.3d 1120].)

Sources and Authority

“[T]his court has not generally allowed quantum meruit recovery for extra work performed beyond the contract requirements.” (Amelco Electricsupra, 27 Cal.4th at p. 234.)

“[W]hen an owner imposes upon the contractor an excessive number of changes such that it can fairly be said that the scope of the work under the original contract has been altered, an abandonment of contract properly may be found.” (C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d 628, 640 [218 Cal.Rptr. 592].)

“Abandonment of a contract may be implied from the acts of the parties. Abandonment of the contract can occur in instances where the scope of the work when undertaken greatly exceeds that called for under the contract. … In the instant case the parties consistently ignored the procedures provided by the contract for the doing of extra work.” (Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 156 [92 Cal Rptr. 120], internal citation omitted.)

“Under the abandonment doctrine, once the parties cease to follow the contract’s change order process, and the final project has become materially different from the project contracted for, the entire contract—including its notice, documentation, changes and cost provisions—is deemed inapplicable or abandoned, and the plaintiff may recover the reasonable value for all of its work. Were we to conclude such a theory applied in the public works context, the notion of competitive bidding would become meaningless.” (Amelco Electricsupra, 27 Cal.4th at p. 239.)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1037
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5, Private Contracts: Disputes and Remedies, § 5.56
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6, Public Contracts: Disputes and Remedies, § 6.71
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9, Handling Disputes During Construction, §§ 9.81–9.87
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, ¶  3.10 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, §§ 104.15, 104.230 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.470 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:66, 27:87 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 1:48 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:72 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 4:14 (Thomson Reuters)