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Definition: Contractor

2.  Stipulated Order Against Weisz*

            Weisz asserts the trial court reversibly erred by issuing a “preliminary injunction” against him without satisfying appropriate procedural requirements for granting injunctive relief.  We disagree, as Weisz failed to preserve this ground for appeal.

            At the hearing on the applications, appellants argued that Weisz should not be included in the attachment.  The trial court inquired of appellants’ counsel, “Would your client be willing to accept the restraining order they can’t encumber the house ‑‑”  Interrupting the court, appellants’ counsel replied, “Absolutely.”  The court continued, “‑‑ in the meantime?”  Counsel reiterated, “Absolutely, absolutely.”  The court then turned to respondents’ counsel and asked if respondents would consent, saying, “I think that’s really the safer way to go and your client[s] will be protected.”  The court subsequently explained, “I don’t see why he [Weisz] should lose his house now.”  After additional dialogue on other issues, respondents’ counsel reluctantly consented, stating, “If that’s the recommendation of the court that the one writ [against Barak] would issue” against the corporation and “the other writ [against Weisz] instead would be placed . . . on defendants [sic] pursuant to their [sic] house,” then “I guess we would have to accept what we can get.” 

            The court thereupon ruled:  “Mr. Weisz is restrained.  I should say Mr. Weisz consents to . . . an order prohibiting him from selling, encumbering or diminishing the value of his residence until . . . this case is adjudicated” or “further order of the court.”  Counsel for Barak went along with this ruling, except to raise a “technical” matter that “for the record we didn’t waive our rights to argue that there shouldn’t be an attachment on either [Barak or Weisz].”  (Italics added.)  Counsel’s objection therefore was directed to the granting of any relief to respondents whatsoever rather than the nature of the relief granted as to Weisz.

            Weisz further asserts that there were no grounds for the trial court’s order restraining him from selling, encumbering or diminishing the value of his home pending determination of this action.

            For the same reason the right to attach order was proper as to Barak, it was proper as to Weisz based on the pleadings, declarations and admissions before the court.  The court expressly or impliedly found the claim against Weisz was based on contract, the amount sought for recovery was a fixed or readily ascertainable amount not less than $500, the amount was unsecured and the claim arose from Weisz’s commercial activities.

            Nor do we accept appellants’ claim that Weisz is not individually accountable under the CSLL.  Under the CSLL, “Contractor” is defined as “any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building . . . .”  (§ 7026, italics added.)  Section 7026.1, subdivision (b) further broadly defines the term “contractor” to include “[a]ny person, consultant to an owner-builder, firm, association, organization, partnership, business trust, corporation, or company, who or which undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid, to construct any building or home improvement project, or part thereof.”  (Italics added.)

            Under the evidence, Weisz was a “person” who undertook, offered to undertake or purported to have the capacity to undertake, and who submitted a bid for, the remodeling and improvement of respondents’ home.  The verified complaint and declaration in support of the right to attach order established that Weisz told respondent Goldstein he was personally engaged in the business of residential construction and remodeling, and that Barak was “his” company.  According to the declaration, Weisz told respondents that both he and Barak were licensed California building contractors.  Weisz purportedly made false or misleading statements regarding Barak or the work to be performed, and he signed the contract on behalf of Barak.  Weisz allegedly took an active role in respondents’ project.  He also engaged in actions in derogation of the contract, such as persuading a third party contractor to modify or alter its contracts so that respondents were charged a disproportionate amount, and Barak a lesser amount, of the cost to replace flooring damaged by Barak.  Weisz denied the allegations, but the court was not obliged to believe him.  (Bank of America v. Salinas Nissan, Inc., supra, 207 Cal.App.3d at p. 274.)

            Appellants assert that the “entire basis” of respondents’ application for right to attach order against Weisz was their cause of action for violation of the CSLL ‑‑ a claim asserted in the complaint solely against Barak.  Although Weisz is not named as a defendant in the CSLL cause of action, Weisz was named a defendant to the breach of contract and all other causes of action based upon the same transaction, and the evidence on this record indicates he acted in violation of the CSLL.  In Lewis & Queen, the Supreme Court declared that “[w]hatever the state of the pleadings, when the evidence shows that the plaintiff in substance seeks to enforce an illegal contract or recover compensation for an illegal act, the court has both the power and duty to ascertain the true facts in order that it may not unwillingly lend its assistance to the consummation or encouragement of what public policy forbids.”  (Lewis & Queen, supra, 48 Cal.2d at pp. 147-148.)

            The court determined Weisz acted as an unlicensed contractor and found a sufficient showing of alter ego.  There was sufficient basis for the court to find Weisz was a “contractor” subject to the CSLL.

DISPOSITION

            The orders are affirmed.  Respondents are to recover costs on appeal.

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