Legal Question in Construction Law in California

My question is, in the California judicial system what is the trend in rulings on three day right to cancel concerning a home improvement contract.

To explain it further, my wife and I were given the contract to build a pool, which did not include the Federal or California three day right of cancellation clauses. The agreement also did not include several other inclusions required by the business and professions code of California.

To make the story short, we never saw a licensed contractor. Not at signing, not on the job, not even at required building inspections. We did not even have a licensed home improvement sales person.

From the dig on dimensions were wrong brought to their attention, we were told they would be repaired, but they weren't.

So after six months all that was completed was a cement shell, some plumbing and electrical (not hooked up), and they left the job site.

Since it was not in the original pool contract, we were able to contract out for decking and landscaping and due to the many problems with construction defects and quality control plus the company abandoned the job site so we also had to sub out for plaster, tile and final pool set up.

Despite bringing in the best of contractors to finish the swimming pool ,the bones of the pool (dimensions, symmetry, structure, electrical not up to code, plumbing not to

our specifications plus equipment is not what is specified in contract.

We do not owe any money to this company, we have documents stating we are paid up to the point to where labor was last completed.

Still they have filed a lien against us.

And then they have the gall to sue us in small claims court.

We were always debating the idea of rescinding our contract (quality) but now we want to proceed. We spoke to one attorney experienced in contract law and liens and he advised us against it stating the courts will not refund or make us whole as the judicial system works towards an equitable solution in contract rescission.

We would like to hear your opinions, I know you cannot predict a judges ruling, that is why I am asking for the trend in in rulings.

We are looking for an attorney or a firm to handle this case.

I cannot give any further information, as to tip off our strategy to the other party.

Thank you in advance


Asked on 9/08/10, 2:05 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The three-day right of rescission will not help at this point; it is too late to rescind the contract, at least on that basis. The omission of a required provision in the contract could be a factor in a court's determination of whether the contractor's overall conduct showed a pattern of bad faith and deception.

The given facts raise an interesting question as to whether the contractor is or is not, in fact, licensed. You do not quite go so far as to say "the contractor was unlicensed," but only that you never saw a licensed contractor. If indeed the contractor is unlicensed, he/she/it can't lawfully file a mechanic's lien. That would be a defense to a suit to enforce the lien and a ground for damages and restitution.

When a contract is found to be unenforceable because of some kind of defect, there is a tendency of courts to allow the contractor a payment based on the actual value of the work done, as measured by the value of the work to the owner. So, if there were a $50,000 contract that couldn't be enforced for some reason, the owner had made an initial payment of $10,000, and the court found the owner's benefit from the work done was $17,000, the court might award the contractor $7,000 on a theory of "quantum meruit" or "quasi contract" or "unjust enrichment."

I believe, but do not know, that courts are far less likely to award anything to a truly unlicensed contractor than to a licensed contractor who breaches the contract, whose contract is unenforceable, or who abandons the job short of completion.

So, I would agree that courts work toward an equitable resolution of contract disputes where the contractor is licensed, but that "contract rescission" is not a factor here, and that unlicensed contractors don't get much sympathy, especially on pool jobs.

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Answered on 9/16/10, 9:26 am


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