Legal Question in Construction Law in California

We had a very expensive gate & fence installed, it was custom. The contractor who built it had it powder coated, and within a few weeks the finish started rusting.

He has spent over a month claiming it is our environment, we have a salt pool 10' from the fence. It never splashes the fence or gate. He did offer to come out and take it down and re-work it. He initially was going to remove the entire fence & gate, but wouldn't tell us who was going to sandblast it and powder coat it. He claims this is confidential information to him. We are not willing to let him take it without telling us who will be working on it. Now, he only wants to take some sections, however are concerned that the rest of the fence will also start to rust. Since we started talking with him the gate has developed problems where the powder coating is actually chipping off.

He continues to offer to work on it, however will not tell us who. I know he used a young guy to powder coat it that used his fathers shop. I suspect it was a side job, and I want to ensure that a licensed powder coater does the work.

So we are at a stale mate, he says no, we say no. At this point we have called in a 3rd party to give us a quote on taking it down, then we will have the work done and bill him for it.

If he refuses to pay I will take him to small claims.

We have a contract but there wasn't a warrenty on anything. However I feel, this rework should be covered, and done right.

We are at a stalemate after 6 weeks.


Asked on 9/06/16, 2:26 pm

1 Answer from Attorneys

I'm afraid I have to tell you that he's right and you're wrong on this, at least legally. First off, there is no such thing as a "licensed" powder coater. Powder coating operations require certain permits to protect the environment and workers, but that is not something you as the customer have any rights in. There is no type of contractors license for a powder coating shop; they are considered suppliers.

Second, unless you have a contractual provision that calls for you to approve the contractor's suppliers (which you really only see in major public works, and large scale private building and infrastructure projects) you have no right to decide who he uses in the first place or to correct defective work. Absent any express warranty, there is an implied warranty in a construction project that the work will be done in a good and workmanlike manner and the materials and supplies used and consumed in the work of improvement will be of good quality and free of defects in materials and workmanship. Unless and until the contractor refuses to take steps to correct defects, or has conclusively and objectively taken so long without success that he clearly cannot correct the defects, he has a right to fix what's wrong as he sees fit. So if you have it taken down and redone by a 3rd party, it will be at your expense. You will not legally be entitled to back charge him.

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Answered on 9/06/16, 3:53 pm


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