California
Appeals
Evidence Admissibility
Objection Waived

Evidence Admissibility-Objection Waived-failed to object to the evidence in the trial court deemed waived-Goldstein v. Barak Construction
 

C.  Respondents Established the Probable Validity of Their Claim*

            Appellants contend the evidence submitted by respondents in support of their attachment applications in general was “incompetent,” “inadmissible,” “self-serving” or “argumentative.”  They further contend respondents’ evidence was controverted by the declaration of Weisz in support of appellants’ opposition to the applications for a right to attach order.  The arguments are meritless.

            Appellants failed to object to the evidence in the trial court and are deemed to have waived the objection.  (People v. Zambrano (2007) 41 Cal.4th 1082, 1139 [defendant waived objections to evidence by failing to raise claim in trial court]; Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260-1261 [party must object in the trial court, “ ‘specifically stating the grounds of the objection, . . . directing the objection to the particular evidence that the party seeks to exclude’ ”]; Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1390 [party must make clear and specific objection in trial court].)  A finding may not be set aside, or a decision based thereon reversed, due to the erroneous admission of evidence absent a clear and timely objection or motion to exclude or strike the evidence.  (Evid. Code, § 353.)

            Even if appellants had properly and timely asserted objections to respondents’ evidence, they cite no case authority supporting their claim that the court improperly considered respondents’ evidence.  We find the court did not abuse its discretion in considering such evidence.

            We further reject appellants’ argument that the court erred in granting relief because respondents’ evidence was controverted by Weisz’s declaration in support of appellants’ opposition to the applications.  The trial court appropriately exercised its discretion to disbelieve Weisz.  (Bank of America v. Salinas Nissan, Inc., supra, 207 Cal.App.3d at p. 273.)

            Appellants additionally claim that, notwithstanding section 7031, subdivision (b), respondents’ voluntary payment under the contract precludes any action to recoup such payments.  They rely on a footnote in MW Erectors, in which the court stated:  “[N]othing in the statute precludes the satisfied beneficiary of such work from paying for it voluntarily.  Business considerations may persuade the beneficiary to ignore license lapses it deems insignificant, and to continue compensating the contractor, in order to avoid disruption of progress on the project.”  (MW Erectors, supra, 36 Cal.4th at p. 430, fn. 10.)  Nothing in the court’s language suggests that when there are license lapses by the contractor the beneficiary does deem significant he or she is not entitled to seek relief under section 7031, subdivision (b).  And nothing in such language permits the unlicensed contractor to defend on the basis any payments made by a dissatisfied beneficiary were “voluntarily” made.

            In discussing subdivision (a) of section 7031, our Supreme Court has stated that “the statutory disallowance of claims for payment by unlicensed subcontractors is intended to deter such persons from offering their services, or accepting solicitations of their work.  That policy applies regardless of whether the other party’s promise to pay for the work was honest or deceitful.”  (Hydrotech, supra, 52 Cal.3d at p. 998; see also Construction Financial, supra, 53 Cal.App.4th at p. 181.)  The same policy underlying subdivision (a) of section 7031 of deterring unlicensed persons from engaging in the contracting business infuses subdivision (b).  If unlicensed contractors are barred from recovery for unlicensed services, the beneficiary of such services correspondingly must be entitled to recover any payments made to the unlicensed contractor whether the beneficiary knowingly or unknowingly paid for unlicensed work or made such payments voluntarily.  And, as our Supreme Court has abundantly made clear, this is so even if such recovery results in unjust enrichment to the beneficiary.  (See MW Erectors, supra, 36 Cal.4th at p. 424; Hydrotech, supra, at p. 995; Lewis & Queen, supra, 48 Cal.2d at pp. 150-152.)

            Moreover, section 7031, subdivision (b) provides that the “person who utilizes the services of an unlicensed contractor may bring an action . . . to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”  (Italics added.)  The statute allows recovery of all compensation paid to the unlicensed contractor, and it contains no exception for any “voluntary” payments.  The court, therefore, did not err in basing the attachment order on all payments claimed to have been made by respondents.

eBook Master Table of Contents   
Standard of Review-Table of Contents
Briefs-Legal Argument-Table of Contents