CACI 4542 Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit Recovery

California Civil Jury Instructions CACI

4542 Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit Recovery

[Name of plaintiff] claims that the parties consistently disregarded the contract’s change-order process and that the final project was significantly different from the original project. If you find that the parties abandoned the contract, [name of plaintiff] is entitled to recover the reasonable value of all of [his/her/nonbinary pronoun/its] work on the project rather than the contract price.

Directions for Use

This instruction should be used in an action by the contractor against the owner if the contractor’s claim is that the parties effectively abandoned the contract and that the contractor should therefore receive a quantum meruit measure of damages for the reasonable value of its work. (See CACI No. 4523, Contractor’s Claim for Additional Compensation—Abandonment of Contract.)

Contract abandonment cannot be alleged with regard to a public works contract. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 238–239 [115 Cal.Rptr.2d 900, 38 P.3d 1120].)

For additional instructions on contract damages generally, see CACI No. 350 et seq. in the Contracts series.

Sources and Authority

“[O]nce the parties cease to follow the contract’s change order process, and the final project is materially different from the project contracted for, the contract is deemed inapplicable or abandoned and is set aside. The plaintiff may then recover the reasonable costs for all of its work.” (Amelco Elec.supra, 27 Cal.4th at p. 238.)

“The contractor was … entitled, under the factual circumstances of this case [abandonment], to recover the reasonable value of the work it performed on a quantum meruit basis, without being limited by the original contract amount.” (C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d 628, 639 [218 Cal.Rptr. 592].)

“In the specific context of construction contracts … , it has been held that when 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. In these cases, the contractor, with the full approval and expectation of the owner, may complete the project. Although the contract may be abandoned, the work is not.” (C. Norman Peterson Co.supra, 172 Cal.App.3d at p. 640, original italics, internal citations omitted.)

“There was a triable issue of fact as to whether these changes for which plaintiff was seeking compensation were required. Moreover, because of the tremendous number of changes, there was an issue as to whether the contract had been abandoned by the parties and they proceeded apart from the contract. There was evidence that the job was completely redesigned after the contract was entered into.” (Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 156 [92 Cal.Rptr. 120].)

“[A]bandonment requires a finding that both parties intended to disregard the contract, and abandonment may be implied from the acts of the parties.” (C. Norman Peterson Co.supra, 172 Cal.App.3d at p. 643, original italics.)

“ ‘Once the plaintiff has established the amount which he has been induced to expend, the defendant must show that the expenses of the party injured have been extravagant and unnecessary for the purpose of carrying out the contract.’ ” (C. Norman Peterson Co.supra, 172 Cal.App.3d at p. 647.)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 1037, 1072
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5, Private Contracts: Disputes and Remedies, § 5.50
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9, Handling Disputes During Construction, §§ 9.85–9.86
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.03 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract Remedies, § 440.12 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.224 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.05 et seq.
Miller & Starr, California Real Estate 4th, § 27:87 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 1:48, 1:98, 7:72 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 19:39 (Thomson Reuters)