IN THE SUPREME COURT OF CALIFORNIA
MW ERECTORS, INC.,
Plaintiff and Appellant,
S123238
v.
Ct.App. 4/3 G030681, GO30825
NIEDERHAUSER ORNAMENTAL AND )
METAL WORKS COMPANY, INC., et al., )
) Orange
County
Defendants and Respondents. )
Super. Ct. No. 01CC00661
To protect the public, the Contractors’ State License Law (CSLL; Bus. &
Prof. Code, § 7000 et seq.)1 imposes strict and harsh penalties for a contractor’s
failure to maintain proper licensure. Among other things, the CSLL states a
general rule that, regardless of the merits of the claim, a contractor may not
maintain any action, legal or equitable, to recover compensation for “the
performance of any act or contract” unless he or she was duly licensed “at all
times during the performance of that act or contract.” (§ 7031, subd. (a) (section
7031(a)), italics added.)
Earlier case law softened the severity of this scheme by allowing
contractors, though technically unlicensed at the time of performance, to show
they had substantially complied with licensure requirements. However, the CSLL
1
All further unlabeled statutory references are to the Business & Professions
Code.
1
has since limited the availability of the substantial compliance exception. In
particular, the statute specifies that “[t]he judicial doctrine of substantial
compliance shall not apply” unless the contractor “had been duly licensed as a
contractor in this state prior to the performance of the act or contract” for which
licensure was required. (§ 7031, subd. (e), italics added; cf. id., former subd. (d),
Stats. 1994, ch. 550, § 1, p. 2803 (hereafter, references to section 7031, former
subdivision (d) are to this version, unless otherwise noted).)
Here we address several questions about the application of these CSLL
provisions. Our most significant conclusions are these: (1) Where applicable,
section 7031(a) bars a person from suing to recover compensation for any work he
or she did under an agreement for services requiring a contractor’s license unless
proper licensure was in place at all times during such contractual performance.
(2) Section 7031(a) does not allow a contractor who was unlicensed at any time
during contractual performance nonetheless to recover compensation for
individual acts performed while he or she was duly licensed. (3) The statutory
exception for substantial compliance is not available to a contractor who had not
been duly licensed at some time before beginning performance under the contract.
(4) However, if fully licensed at all times during contractual performance, a
contractor is not barred from recovering compensation for the work solely because
he or she was unlicensed when the contract was executed.
To resolve this particular case, we further determine that the doctrine of
judicial estoppel does not bar defendant, by virtue of allegedly inconsistent
positions it took in related litigation, from contesting plaintiff’s licensure.
These conclusions require that we affirm in part, and reverse in part, the
Court of Appeal’s judgment.
2
FACTS
The pertinent facts, as developed on defendant’s motion for summary
judgment, are essentially undisputed. Owner Disney Corporation (Disney)
constructed a hotel, with Turner Construction Company (Turner) as the general
contractor. Turner contracted with defendant Niederhauser Ornamental and Metal
Works Company, Inc. (Niederhauser) to perform specialized metal work on the
project.
Niederhauser, in turn, awarded two subcontracts to plaintiff MW Erectors,
Inc. (MW). On or about October 11, 1999, Niederhauser and MW executed a
contract for MW’s performance of “structural” steel work (structural contract).
On or about November 12, 1999, the same parties entered a second contract for
MW’s performance of “ornamental” steel work (ornamental contract).
MW began work under the structural contract on or before December 3,
1999, but did not obtain a C-51 structural steel contractor’s license (see Cal. Code
Regs., tit. 16, § 832.51) until December 21, 1999. Work on the ornamental
contract began in early January 2000.
MW subsequently sued Niederhauser and Niederhauser’s payment bonds,
seeking alleged amounts due of $955,553 for work under the structural contract
and $366,694 for work under the ornamental contract.2 Niederhauser moved for
summary judgment, alleging that MW’s claim was barred under section 7031(a),
because MW had not been properly licensed at all times during the performance of
its contracts. Niederhauser asserted that MW had no C-51 license when it began
2
Niederhauser and its bonding companies, Fidelity and Guaranty Insurance
Company and United States Fidelity and Guaranty Company, were joint
respondents on appeal and continue to submit joint briefing in this court. We
hereafter refer to these defendants collectively as Niederhauser.
3
performance of the structural steel contract, and that MW never obtained a C-23
ornamental metals license, which Niederhauser asserted was required for
performance of the ornamental contract. Niederhauser also averred that MW
could not demonstrate its substantial compliance with the C-51 license
requirement because it had never held a California contractor’s license before
beginning work under the contracts in December 1999.
In its response to Niederhauser’s motion, MW admitted that it needed a
C-51 license for its work under both contracts, and that this license was not
technically in place when MW began work on the structural contract. MW also
admitted it never obtained a C-23 license. However, MW claimed there were
triable issues that it was in substantial compliance with the C-51 license
requirement at all times during its performance of both contracts, and that no C-23
license was necessary for work under the ornamental contract. In its own
subsequent motion, MW asserted that Niederhauser was judicially estopped to
contest licensure in any event because, in related litigation, Niederhauser had
benefited by its implicit reliance on MW’s proper licensing.
The superior court granted summary judgment for Niederhauser and
dismissed MW’s action.3 MW appealed, urging that (1) it had shown substantial
compliance with the C-51 license requirement, (2) it did not need a C-23 license,
and (3) Niederhauser was judicially estopped to question licensure. In its
respondent’s brief, Niederhauser disputed these points, and also argued, for the
first time, that both contracts were illegal, void, and unenforceable ab initio
because MW was unlicensed when they were executed.
3
The superior court noted in its order that all of MW’s evidentiary
objections were overruled, but the court did not otherwise mention or discuss the
issue of judicial estoppel.
4
The Court of Appeal for the Fourth Appellate District, Division Two,
reversed. The Court of Appeal first concluded that Niederhauser was not
judicially estopped to contest MW’s licensure. On the merits, however, the court
reasoned as follows: The contracts were not void ab initio because of MW’s
unlicensed status when they were executed. Instead, MW’s right to recover
depended on its licensure during its performance of the contracts. Under section
7031(a), a contractor must be duly licensed at all times during performance of the
“act or contract” for which compensation was sought. Thus, MW could not
recover for work it performed under the agreements during the relatively short
time before it had secured either a C-51 or C-23 license. Nonetheless, section
7031(a) allowed MW to obtain court-ordered compensation for every individual
act it performed under its contracts after all necessary licensure was in place.
Thus, MW was entitled to prove amounts due for its work on the structural
contract after the C-51 license was issued. MW had a valid C-51 license at all
times during performance of the ornamental contract. While MW never sought or
obtained a C-23 license, MW raised a triable issue that the C-51 license was
sufficient.
Niederhauser sought review, urging that section 7031(a) required due
licensure at all times during performance of a contract, and that both contracts
were void ab initio because MW was not licensed when they were executed. In its
answer to the petition, MW asserted, as additional issues (Cal. Rules of Court, rule
28.1(c)), its claims of substantial compliance and judicial estoppel. We granted
review.4 We now conclude that the Court of Appeal’s judgment must be affirmed
in part and reversed in part.
4
Niederhauser did not reraise the C-23 license issue in its petition for
review, and has given that issue no meaningful discussion in its opening and reply
(Footnote continued on next page.)
5
(Footnote continued from previous page.)
briefs. We therefore do not address it. (Cal. Rules of Court, rules 28.1(b)(1),
29(b)(1), 29.1(b)(2)(B), (3).)
6
DISCUSSION
1. Judicial estoppel.
MW renews its contention that Niederhauser is judicially estopped to raise
MW’s nonlicensure as a bar to MW’s recovery because, in related litigation,
Niederhauser took, and benefited from, the opposite position. MW asserts that in
a lawsuit against the project’s owner, Disney, and its general contractor, Turner,
Niederhauser obtained money by implicitly representing that MW was fully
licensed. Under these circumstances, MW insists, Niederhauser may not now
assert MW’s nonlicensure as a bar to MW’s recovery of money due to MW from
Niederhauser. For reasons we explain below, we agree with the Court of Appeal
that application of the judicial estoppel doctrine is not appropriate here.
The evidence bearing on MW’s judicial estoppel argument is sketchy. The
record reflects that when MW sued Niederhauser for monies due under the two
contracts between these parties, Niederhauser cross-complained against Turner
and Disney for sums allegedly due and unpaid by Turner to Niederhauser.
Niederhauser also noticed a mechanic’s lien against the project for the sums it
claimed it was owed by Turner. MW represents, and Niederhauser apparently
does not dispute, that Niederhauser subsequently settled its claims against Disney
and Turner for a substantial amount.
Neither Niederhauser’s cross-complaint nor its mechanic’s lien mentioned
MW, its work, or its licensure. Nonetheless, MW asserts that a significant portion
of the sums sought and obtained by Niederhauser from Turner and Disney were
attributable to MW’s work under its contracts with Niederhauser. MW urges that
Niederhauser’s claim of entitlement to such amounts implicitly relied on MW’s
due licensure because, even if itself licensed, a contractor may not use the courts
to recover sums attributable to the work of an entity that lacked proper licensure.
(Citing Loving & Evans v. Blick (1949) 33 Cal.2d 603, 612-613; and Holm v.
7
Bramwell (1937) 20 Cal.App.2d 332 (Holm).) Accordingly, MW maintains,
Niederhauser is estopped to deny such licensure against MW itself.
“ ‘ “Judicial estoppel precludes a party from gaining an advantage by
taking one position, and then seeking a second advantage by taking an
incompatible position. [Citations.] . . . ” ’ [Citation.] The doctrine [most
appropriately] applies when: ‘(1) the same party has taken two positions; (2) the
positions were taken in judicial or quasi-judicial administrative proceedings; (3)
the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and
(5) the first position was not taken as a result of ignorance, fraud, or mistake.’ ”
(Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987 (Aguilar); Scripps Clinic v.
Superior Court (2003) 108 Cal.App.4th 917, 943; Jackson v. County of Los
Angeles (1997) 60 Cal.App.4th 171, 183 (Jackson).)
“ ‘ “The doctrine’s dual goals are to maintain the integrity of the judicial
system and to protect parties from opponents’ unfair strategies. [Citation.]” ’ ”
(Aguilar, supra, 32 Cal.4th 974, 986.) Consistent with these purposes, numerous
decisions have made clear that judicial estoppel is an equitable doctrine, and its
application, even where all necessary elements are present, is discretionary. (E.g.,
Aguilar, supra, 32 Cal.4th 974, 986; Koo v. Rubio’s Restaurants, Inc. (2003)
109 Cal.App.4th 719, 735; Tuchscher Development Enterprises, Inc. v. San Diego
Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1245; People ex rel. Sneddon v.
Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 189; Cloud v. Northrop
Grumman Corp. (1998) 67 Cal.App.4th 995, 1016; see M. Perez Co., Inc. v. Base
Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 469;
International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345,
351; Jackson, supra, 60 Cal.App.4th 171, 184, fn. 8.)
8
Here, MW cannot invoke judicial estoppel for the simplest of reasons.
Section 7031(a) expressly provides that, “regardless of the merits,” one may not
“bring or maintain any action, or recover in law or equity in any action, . . . for the
collection of compensation for the performance of any act or contract where a
license is required . . . without alleging that he or she was a duly licensed
contractor at all times during the performance of that act or contract.” (Italics
added.) If the defendant then “controvert[s]” the plaintiff’s proper licensure, the
plaintiff must prove it by producing verified certificates establishing that he or she
held all necessary licenses during performance of the work. (Id., subd. (d).)
“Because of the strength and clarity of this policy” (Hydrotech Systems,
Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 995 (Hydrotech)), the bar of
section 7031(a) applies “[r]egardless of the equities.” (Hydrotech, supra, at
p. 997.) Indeed, it has long been settled that “the courts may not resort to
equitable considerations in defiance of section 7031.” (Lewis & Queen v.
N. M. Ball Sons (1957) 48 Cal.2d 141, 152 (Lewis & Queen).) “ ‘Section 7031
represents a legislative determination that the importance of deterring unlicensed
persons from engaging in the contracting business outweighs any harshness
between the parties, and that such deterrence can best be realized by denying
violators the right to maintain any action for compensation in the courts of this
state [Citation.] . . .’ ” (Hydrotech, supra, at p. 995, quoting Lewis & Queen,
supra, at p. 151, italics in Hydrotech.)
Acceptance of MW’s judicial estoppel argument would contravene this
strong and clear statutory mandate. It would permit MW to disregard the statutory
bar and to recover compensation for work that required a license, even if MW was
not licensed “at all times” during the performance of that work. (§ 7031(a).) We
decline to endorse such a result.
9
We are not persuaded otherwise by the possibility that, in its suit against
Disney and Turner, Niederhauser did recover amounts attributable to MW’s
unlicensed work, and will thus be unjustly enriched if allowed to retain those
funds. We have previously disregarded equitable considerations even though the
result was to permit another entity to retain sums otherwise due to an unlicensed
contractor.
Thus, in Lewis & Queen, the general contractor on a state highway project
was sued by an unlicensed subcontractor for amounts due under the subcontracts.
The subcontractor asserted, among other things, that because the state had paid the
general contractor in full for the project, “justice require[d] that [the general
contractor] be compelled to turn over to plaintiff the proceeds from the state
contracts attributable to plaintiff’s labor.” (Lewis & Queen, supra, 48 Cal.2d 141,
150.) This court disagreed, concluding that the possibility of the defendant’s
unjust enrichment could not overcome the absolute prohibition against use of the
courts to recover for unlicensed contract work. (Id. at pp. 150-151.)
Section 7031(a) will be applied, regardless of equitable considerations,
even when the person for whom the work was performed has taken calculated
advantage of the contractor’s lack of licensure. Thus, it matters not that the
beneficiary of the contractor’s labors knew the contractor was unlicensed.
(Hydrotech, supra, 52 Cal.3d 988, 997; Pickens v. American Mortgage Exchange
(1969) 269 Cal.App.2d 299, 302 (Pickens); Cash v. Blackett (1948) 87 Cal.App.2d
233.) Moreover, a contractor cannot circumvent section 7031(a) by alleging the
beneficiary’s false promise to pay despite the contractor’s lack of licensure.
(Hydrotech, supra, 52 Cal.3d at pp. 997-1002.) Accordingly, we are convinced
that Niederhauser is not estopped, on grounds of bad faith or unjust enrichment,
from asserting a nonlicensure defense against MW.
10
Of course, the equitable doctrine of judicial estoppel targets not only
unfairness between individual parties, but also abuse of the judicial system itself.
Nothing we say here is intended to authorize or condone abusive manipulation of
the courts. And the law provides means of avoiding such abuse, if any occurred,
under the circumstances alleged here. Disney and Turner could have determined
through normal discovery and investigation whether Niederhauser’s cross-
complaint and mechanic’s lien included amounts attributable to the work of an
unlicensed subcontractor. For all that appears, the two cross-defendants did
precisely that before deciding to settle with Niederhauser. On the other hand, if
persuaded that they had no legal obligation to pay such amounts, they were free to
assert the matter as an affirmative defense to Niederhauser’s claims.5
For all these reasons, we conclude that Niederhauser is not judicially
estopped to assert MW’s nonlicensure as a bar to MW’s recovery. Accordingly,
we turn to the merits of the licensure issues.
2. Licensure during performance of “act or contract.”
Since the CSLL was adopted in 1939 (Stats. 1939, ch. 37, § 1, p. 381),
section 7031 has declared that, except as expressly otherwise provided, a
contractor may not sue to collect compensation for performance of “any act or
contract” requiring a license without alleging that he or she was duly licensed “at
5
As noted above, section 7031(a) requires any person suing to recover
compensation for work requiring a contractor’s license to “alleg[e] that he or she
was a duly licensed contractor at all times during performance” of the work.
(Italics added.) If the defendant then “controvert[s]” the plaintiff’s licensure, the
plaintiff must prove it by producing a “verified certificate.” (Id., subd. (d).) Thus,
while the statutory scheme contemplates that nonlicensure must be raised as a
defense, no statutory provision explicitly requires a duly licensed contractor who
is suing for money attributable to the work of another entity to affirmatively allege
that the other entity was duly licensed.
11
all times during the performance of that act or contract.” (§ 7031(a).) In 1989,
section 7031(a) was amended to make clear that the bar extends to actions “in law
or equity” and applies “regardless of the merits of the cause of action.”
(Stats. 1989, ch. 368, § 1, p. 1509.) If licensure is controverted, the suing
contractor must produce a verified certificate establishing that he or she “was duly
licensed . . . during the performance of any act or contract covered by the action.”
(§ 7031, subd. (d).)
MW concedes it needed a C-51 license to perform the work contemplated
by the structural steel contract, but began work thereon before its C-51 license was
formally issued on December 21, 1999. Thus, MW admits it “was [not] . . . duly
licensed . . . at all times during the performance of that . . . contract.” (§ 7031(a).)
The Court of Appeal nonetheless held that, while section 7031(a) bars MW from
recovering compensation for prelicense activities under the structural steel
contract, MW may recover for all performance rendered under that contract after
the C-51 license was issued. We disagree.
At the outset, the Court of Appeal’s interpretation contravenes well-
entrenched case law. Prior decisions express a consistent understanding that one
fails to meet the technical requirements now set forth in section 7031(a), and is
ineligible to recover any compenstaiton under the terms of that statute, if, at any
time during performance of an agreement for contractor services, he or she was not
duly licensed. (Latipac, Inc. v. Superior Court (1966) 64 Cal.2d 278, 280-281
(Latipac); Pacific Custom Pools, Inc. v. Turner Construction Co. (2000)
79 Cal.App.4th 1254, 1259-1260; ICF Kaiser Engineers, Inc. v. Superior Court
(1999) 75 Cal.App.4th 226, 230, fn. 3; Pickens, supra, 269 Cal.App.2d 299, 302;
Bierman v. Hagstrom Construction Co. (1959) 176 Cal.App.2d 771, 776-777;
Harrison v. Butte Steel Buildings, Inc. (1957) 150 Cal.App.2d 296, 302-303; see
Slatkin v. White (2002) 102 Cal.App.4th 963, 968 (Slatkin); Owens v. Haslett
12
(1950) 98 Cal.App.2d 829, 832.) Our close examination of section 7031(a)
confirms that these decisions are correct.
“In construing a statute, ‘ “we strive to ascertain and effectuate the
Legislature’s intent.” [Citations.] Because statutory language “generally
provide[s] the most reliable indicator” of that intent [citations], we turn to the
words themselves, giving them their “usual and ordinary meanings” and
construing them in context. . . .’ (People v. Castaneda (2000) 23 Cal.4th 743,
746-747.) ‘If the language contains no ambiguity, we presume the Legislature
meant what it said, and the plain meaning of the statute governs.’ (People v.
Robles (2000) 23 Cal.4th 1106, 1111.) If, however, the statutory language is
susceptible of more than one reasonable construction, we can look to legislative
history (ibid.) and to rules or maxims of construction (Meija v. Reed (2003)
31 Cal.4th 657, 663). ‘. . . [T]he court may [also] consider the impact of an
interpretation on public policy, for “[w]here uncertainty exists consideration
should be given to the consequences that will flow from a particular
interpretation.” ’ (Ibid., quoting Dyna-Med, Inc. v. Fair Employment & Housing
Com. (1987) 43 Cal.3d 1379, 1387.)” (People v. Smith (2004) 32 Cal.4th 792,
797-798.)
Addressing section 7031’s plain language, we note first its specific
provision that “no person . . . may bring or maintain any action, or recover in law
or equity in any action . . . for the collection of compensation for the performance
of any act or contract [requiring] a [contractor’s] license” unless he or she alleges
(§ 7031(a), italics added), and can prove (§ 7031, subd. (d)), his or her due
licensure “at all times” during such performance (§ 7031(a)). The words “at all
times” convey the Legislature’s obvious intent to impose a stiff all-or-nothing
penalty for unlicensed work by specifying that a contractor is barred from all
recovery for such an “act or contract” if unlicensed at any time while performing
13
it. This all-or-nothing philosophy is directly at odds with the premise that
contractors with lapses in licensure may nonetheless recover partial compensation
by narrowly segmenting the licensed and unlicensed portions of their performance.
To conclude otherwise, the Court of Appeal focused on the words “act or
contract.” In the Court of Appeal’s view, urged here by MW, the disjunctive
phrasing of this passage plainly indicates that a contractor may recover
compensation for either any “act” or any “contract” requiring a license, so long as
he or she was duly licensed at all times during the performance of either the “act”
or the “contract.” Thus, the Court of Appeal reasoned, the contractor may recover
compensation for each and every fully licensed “act,” even if it occurred in
furtherance of a “contract” and the contractor was not licensed “at all times during
the performance of such . . . contract” (italics added). We find this parsing of
section 7031(a) unpersuasive.
Central to the Court of Appeal’s reasoning was its assumption that if the
phrase “act or contract” were construed to mean a contractor could not recover
compensation for any work done under a “contract” unless the contractor was duly
licensed at all times during performance of that “contract,” the disjunctive word
“act” would be superfluous. This, the Court of Appeal insisted, would violate the
maxim against statutory interpretations that render some words surplusage. (E.g.,
Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 850.)
However, the Court of Appeal’s strained construction defies the only
plausible reading of section 7031(a)’s plain language. At the outset, while the
Court of Appeal’s interpretation gives meaning to the word “act,” it violates the
very maxim it seeks to apply by making the word “contract” surplusage. If a
contractor, working to perform an agreement for services that require a license,
may recover for any licensed “act” undertaken in the course of that performance,
even if not duly licensed at other times during the work, there is no separate
14
meaning to, or use for, the explicit statutory proviso that one may not maintain an
action to recover compensation for the performance of any “contract where a
license is required” unless he or she “was . . . duly licensed . . . at all times during
the performance of that . . . contract.” (§ 7031(a), italics added.)6
On the other hand, Niederhauser argues that, contrary to the Court of
Appeal’s assumption, there is a sensible function for both “act” and “contract” as
they appear in section 7031(a). In Niederhauser’s view, “the disjunctive
prohibition against compensation for an ‘act’ exists to deny any sort of recovery
on a theory other than breach of contract.” (Italics added.) Thus, Niederhauser
asserts, “its purpose is to broaden the bar of [s]ection 7031 beyond a ‘contract’ to
any [unlicensed] ‘act’ with or without a contract.” (Italics added.)
We agree. The CSLL does not require contractors to operate exclusively
by formal contract; it simply seeks to deter them from offering or performing
unlicensed services for pay. (See Hydrotech, supra, 52 Cal.3d 988, 995.) As
amended in 1989, section 7031(a) stresses that an unlicensed contractor may not
sue for compensation “in law or equity.” (Italics added). This implies that
licensed contractors have noncontractual remedies to recover for work not covered
by a formal contract. Indeed, parties do sometimes operate without, or beyond the
6
In attempting to explain this difficulty away, MW confirms it. As MW
would have it, section 7031(a)’s disjunctive reference to “act or contract” simply
means that if there was a lapse in licensure at any time during performance of a
“contract,” one cannot sue on the “entire contract,” but may nonetheless invoke
noncontractual remedies to recover the value of all “act[s]” performed on the
project while he or she was duly licensed. Thus, the only penalty for a lapse of
licensure during performance of a “contract” would be loss of compensation for
particular unlicensed “act[s].” But the Legislature could have achieved that result
by omitting all reference to “contract[s]” and simply barring suits to recover
compensation for unlicensed “act[s].”
15
boundaries of, a formal contractual arrangement, under an implicit understanding
that the contractor is working on a quantum meruit basis. (See, e.g., Amelco
Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 237; C. Norman
Peterson Co. v. Container Corp. of America (1985) 172 Cal.App.3d 628, 640;
Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 156, 158.)
It therefore appears clear that the reference to unlicensed performance of
both “acts” and “contracts” was intended to close a loophole, not to open one.
Most reasonably read, this reference ensures that one may not avoid the all-or-
nothing bar against recovery for unlicensed services simply because there is no
formal contract. In other words, one may not recover compensation for work
accomplished under a contract unless duly licensed for the work “at all times
during the performance of that . . . contract.” (§ 7031(a), italics added), and, in
any event, he or she may not recover compensation for any “act” requiring a
license unless duly licensed “at all times during the performance of that act” (ibid.,
italics added).
We confirm this construction by examining section 7031(a) in its statutory
context. Similar “at all times” and “act or contract” language appears throughout
the companion subdivisions of section 7031. (See id., subds. (b) [one may sue to
recover “all” compensation paid to unlicensed contractor “for performance of any
act or contract”], (c) [security interest taken to secure payment for performance of
any “act or contract” requiring a contractor’s license is unenforceable unless
contractor was duly licensed “at all times during the performance of the act or
contract”], (d) [if due licensure is controverted, suing contractor must produce
certificate proving such licensure was in place “at all times during the performance
of any act or contract covered by the action”], (e) [substantial compliance applies
only where contractor “had been duly licensed . . . prior to the performance of the
act or contract,” acted reasonably and in good faith to maintain licensure, neither
16
knew nor should have known he or she was unlicensed “when performance of the
act or contract commenced,” and “acted promptly and in good faith to reinstate his
or her license upon learning it was invalid”].) Together these provisions make
clear the general rule denying recovery of all compensation for work requiring a
contractor’s license if a valid license was not in place when performance began, or
if licensure lapsed at any time during the work.
Our interpretation also conforms to the Legislature’s express understanding
when it amended section 7031 in 1989. The 1989 amendments, contained in
Assembly Bill No. 841 (1989-1990 Reg. Sess.) (Assembly Bill No. 841), modified
section 7031(a) to specify that an unlicensed contractor could not recover
compensation “in law or equity,” “regardless of the merits of the cause of action,”
and also added subdivision (d) (now subdivision (e)) to section 7031, abrogating
the prior judicially developed doctrine of substantial compliance. (Stats. 1989,
ch. 368, § 1, p. 1509; see discussion, post.) Legislative reports and analyses for
Assembly Bill No. 841 uniformly described existing law as “prevent[ing] a person
from pursuing legal action for payment for work requiring a contractor’s license if
the person was not duly licensed . . . at all times during the project.”7 (Assem.
Com. on Gov. Efficiency and Consumer Protection, Rep. on Assem. Bill No. 841,
as amended Apr. 4, 1989, p. 1; Assem. Com. on Gov. Efficiency and Consumer
Protection, 3d reading analysis of Assem. Bill No. 841, as amended Apr. 4, 1989,
p. 1; Dept. of Consumer Affairs, analysis of Assem. Bill No. 841, as amended
7
In Hydrotech, supra, 52 Cal.3d 988, we stressed that the 1989 amendments
“underscored [the Legislature’s] insistence on a strict application of section 7031
despite the balance of equities.” (Id., at p. 997, fn. 6.)
17
Apr. 4, 1989, p. 1; Cal. Dept. of Consumer Affairs, Enrolled Bill Rep. on Assem.
Bill No. 841 (Aug. 31, 1989) p. 1.)8
MW urges that section 7031(a)’s disjunctive phrase “act or contract” cannot
have meant to bar quantum meruit recovery for individual licensed acts as
punishment for a lapse of licensure during other stages of contractual performance,
because use of that phrase in the original CSLL far predated the 1989
8
A similar understanding appears in the legislative history of the most recent
amendments to section 7031. By 2003, the flat no-substantial-compliance rule
adopted in 1989 had been softened to allow contractors to establish substantial
compliance in certain circumstances, and therefore to recover compensation,
despite technical lapses in licensure. (See text discussion, post.) Meanwhile, in
2001, the Legislature, using the same “act or contract” terminology set forth in
other subdivisions of section 7031, including subdivision (a), had added
subdivision (b) to the statute, providing that one who employs an unlicensed
contractor may sue to recover “all compensation paid to the unlicensed contractor
for performance of any act or contract.” (Stats. 2001, ch. 226, § 1, italics added.)
However, the 2001 amendment did not expressly provide contractors with a
substantial compliance defense against such suits. In 2003, Assembly Member
Horton introduced Assembly Bill No. 1386 (2003-2004 Reg. Sess.) (Assembly
Bill No. 1386). The bill, which was ultimately adopted (Stats. 2003, ch. 289, § 1),
amended subdivision (b) of section 7031 to provide explicitly that contractors may
defend disgorgement suits by asserting substantial compliance. Legislative
analyses explained that the defense was deemed necessary because “[c]urrently, a
lapse of license for even a single day could lead to the owner’s recovery of 100
percent of the compensation paid to the contractor for work performed.” (Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No.
1386, as amended July 23, 2003, p. 2, italics added; see also, e.g., Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 1386, as amended June 23, 2003, pp. 2-3.)
It was also noted that the 2003 bill was “similar, but not identical, to [Assembly
Bill No. 2693 (2001-2002 Reg. Sess.) (Assembly Bill No. 2693)], which was
rejected by [the Senate Judiciary Committee in 2002]. Among other things,
[Assembly Bill No.] 2693 sought to limit the consumer’s recovery to the amount
paid during the time the contractor was unlicensed . . . . When [that] bill was
heard, Committee members expressed concern that the bill would go too far in
benefiting unlicensed contractors . . . .” (Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 1386, as amended June 23, 2003, p. 3, italics added.)
18
Legislature’s express decision to preclude such relief. We fail to see the point of
this argument. The Legislature intended its 1989 amendments to narrow a
“loophole” created by the courts’ use of the substantial compliance doctrine to
avoid “apply[ing] the licensing law strictly.” (Assem. Com. on Gov. Efficiency
and Consumer Protection, Rep. on Assem. Bill No. 841, as amended Apr. 4, 1989,
p. 2; Assem. Com. on Gov. Efficiency and Consumer Protection, 3d reading
analysis of Assem. Bill No. 841, as amended Apr. 4, 1989, p. 2.) If anything, the
Legislature’s 1989 action confirms, rather than undermines, the view that the
phrase “act or contract” has never allowed contractors to distinguish, for purposes
or recovery, among individual licensed and unlicensed “act[s]” in furtherance of a
larger contract.
Several amici curiae9 foresee dire consequences unless we affirm the Court
of Appeal’s construction of section 7031(a). These amici curiae predict that
contractors who suffer momentary gaps in licensure while performing agreements
for licensed services may abandon the work, even though by then fully licensed,
because they will realize that they have already forfeited all right to sue for
compensation for both past and future labor and materials expended on the
projects. (Cf., Slatkin, supra, 102 Cal.App.4th 963, 969-971.)
However, as indicated above, it has been understood for decades that
section 7031 precludes court recovery for any work performed under an agreement
for construction services unless the contractor was duly licensed (or met the
applicable standards for substantial compliance with licensure requirements) with
9
The District Council of Iron Workers of the State of California and
Vicinity, the Western Steel Council, and the law firm of Abulaziz & Grossbart
have submitted amicus curiae briefs in support of MW. The League of California
Cities has submitted an amicus curiae brief on behalf of Niederhauser.
19
respect to all the work performed thereunder. Even so, we are not aware that
significant problems of the kind described by amici curiae have surfaced. The
statute’s purpose, to encourage careful adherence to the licensing laws, and to
deter persons from offering or providing unlicensed contractor services for pay,
has apparently been served.10
But even if such problems had arisen, we could not depart from section
7031(a)’s clearly expressed purpose to bar recovery for any work performed under
a construction services agreement unless the provider was duly licensed “at all
times during the performance of that . . . contract.” Here, MW had no valid
California contractor’s license when it began work under the structural contract.
Hence, unless MW can establish substantial compliance with applicable license
requirements, it cannot recover, in its suit against Niederhauser, any compensation
for its work under that contract. We turn to a consideration of the substantial
compliance issue.
3. Substantial compliance with C-51 license requirement.
Because the Court of Appeal concluded that section 7031(a) allowed MW
to recover compensation for the great majority of its “act[s]” under the structural
contract, insofar as a valid C-51 license was in place when MW performed those
“act[s],” the court did not address MW’s theory that it could recover in any event
10
As we noted in Hydrotech, supra, 52 Cal.3d 988, section 7031 “advances
[its] purpose [of protecting the public from the incompetent or dishonest provision
of building and construction services] by withholding judicial aid from those who
seek compensation for unlicensed contract work.” (Hydrotech, supra, at p. 995,
italics added.) But nothing 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.
20
because it was, at all times during its work on the project, in substantial
compliance with the C-51 licensing requirement. We now conclude that MW
cannot establish substantial compliance.
MW entered the structural contract in 1999 and performed its work under
that contract in 1999 and 2000. At those times, section 7031, former subdivision
(d) provided that the doctrine of substantial compliance could apply only when,
among other things, the contractor, despite a later lapse in licensure, “had been
duly licensed as a contractor in this state prior to the performance of the act or
contract” for which compensation is sought. (Stats. 1994, ch. 550, § 1, p. 2803,
italics added.)11
Thus, in order to invoke former subdivision (d)’s substantial compliance
exception, a contractor who was technically unlicensed at any time during
performance was required to establish that he or she had been duly licensed at
some time before performance began. The obvious purpose of the subdivision
was to limit application of the substantial compliance doctrine to those contractors
who, at some time before beginning performance, had held valid California
contractor’s licenses.
11
In 1999 and 2000, section 7031, former subdivision (d) provided in
pertinent part: “The judicial doctrine of substantial compliance shall not apply
under this section where the person who engaged in the business or acted in the
capacity of a contractor has never been a duly licensed contractor in this state.
However, the court may determine that there has been substantial compliance with
licensure requirements under this section if it is shown at an evidentiary hearing
that the person who engaged in the business or acted in the capacity of a contractor
(1) had been duly licensed as a contractor in this state prior to the performance of
the act or contract, (2) acted reasonably and in good faith to maintain proper
licensure, and (3) did not know or reasonably should not have known that he or
she was not duly licensed. . . .” (Stats. 1994, ch. 550, § 1, pp. 2803-2804.)
21
MW concedes it had never held a valid California contractor’s license until,
after commencing performance of the structural steel contract, it received its C-51
license. Hence, MW is ineligible, under section 7031, former subdivision (d), to
invoke the doctrine of substantial compliance.
MW suggests it does qualify to demonstrate its substantial compliance
during the entire period of performance because it was duly licensed before it
completed performance. But again, such an assertion contravenes the plain
statutory language. By specifying that the substantial compliance doctrine applies
only to those who “had been” duly licensed in this state “prior to the performance
of the act or contract” (§ 7031, former subd. (d), italics added), the statute clearly
contemplates that, in order to qualify for this exception, the contractor must have
been duly licensed in California at some time before the performance began.
The trial court rejected MW’s substantial compliance theory on just this
ground. MW argues that, to do so, the trial court improperly “rewrote” section
7031, former subdivision (d) to add the words “the commencement of” between
“prior to” and “the performance.” Not so. The existing statutory language
specifies that due licensure must have existed at some time “prior to” performance.
That language cannot be squared with the notion that the contractor could first
become licensed at some time during performance. The words MW suggests the
trial court added would be superfluous.
MW focuses on the first sentence in former subdivision (d) of section 7031,
which provided that “[t]he judicial doctrine of substantial compliance shall not
apply . . . where the person who [acted as a contractor] has never been a duly
licensed contractor in this state.” (Italics added.) MW insists this means that if a
contractor was duly licensed in California at “some point,” he or she was eligible
to establish substantial compliance with licensure requirements during
22
performance of the work for which compensation is sought. Any other
construction, MW insists, would render meaningless the word “never.”
The argument lacks merit. MW’s theory omits the proviso that, as one
prong of substantial compliance, the contractor must show he or she had been duly
licensed at some time “prior to the performance of the act or contract.” (§ 7031,
former subd. (d), italics added.)
The structure of section 7031, former subdivision (d) also belies MW’s
interpretation. After stating that one could not qualify for substantial compliance
if he or she had “never” been licensed here, the subdivision continued: “However,
the court may [find] substantial compliance . . . if it is shown . . . that the
[contractor] (1) had been duly licensed . . . prior to the performance of the act or
contract. . . .” (Ibid., italics added.) Thus, the subdivision conveyed that a
contractor who had “never” been licensed in this state was one who “had [not]
been duly licensed . . . prior to . . . performance.” (Ibid.)
Though MW argues otherwise, the legislative history of section 7031,
former subdivision (d) confirms this construction. As added in 1989, former
subdivision (d) flatly stated that “[t]he judicial doctrine of substantial compliance
shall not apply to this section.” (Stats. 1989, ch. 368, § 1, p. 1509.) In 1991, this
absolute bar was softened by addition of language stating that a court could find
substantial compliance under certain circumstances. These included that the
person seeking compensation “was a duly licensed contractor during any portion
of the 90 days immediately preceding the performance of the act or contract for
which compensation is sought.” (Stats. 1991, ch. 632, § 1, p. 2937, italics added.)
In 1994, the Legislature rewrote the subdivision to the form it retained in
1999 and 2000. The requirement that the contractor must have had a license
validly in effect at some time within 90 days before performance was dropped in
favor of language requiring simply that the contractor must have been duly
23
licensed “prior to [such] performance.” (Stats. 1994, ch. 550, § 1, p. 2803, italics
added.) Though the 1994 amendment thus expanded the time during which the
necessary previous licensure could have been in place, it retained the concept that
this period must have preceded the performance for which compensation was
sought.12
Finally, the Legislature has recently indicated it intends the substantial
compliance doctrine, now set forth in subdivision (e) of section 7031, to apply in
exactly this way.13 In 2003, the Legislature amended subdivision (e) to provide
that one may establish substantial compliance, despite being unlicensed at some
time during performance, if he or she (1) “had been duly licensed . . . prior to . . .
performance . . . , (2) acted reasonably and in good faith to maintain proper
licensure, (3) did not know or reasonably should not have known that he or she
12
Reports and analyses of Senate Bill No. 1844 (1993-1994 Reg. Sess.)
(Senate Bill No. 1844), which contained the 1994 amendments, illustrate the
Legislature’s understanding that the substantial compliance doctrine was intended
to apply to contractors whose previously valid licenses had lapsed at the time of
performance. Thus, referring to the proposed abandonment of the “90 days
immediately preceding performance” rule in favor of a more flexible “prior to
performance” standard, they commented that the proposed exceptions might
unintentionally broaden the circumstances under which substantial compliance
could be applied. Thus, they asserted, the proposed standards might, “for
example, permit the court to set aside the fact that a contractor’s license may have
been expired for up to two years (contractors are licensed on a biannual
basis) . . . .” (Sen. Bus. & Prof. Com., Rep. on Sen. Bill No. 1844, as introduced
Feb. 27, 1994, p. 4, italics added; Assem. Com. on Consumer Protection,
Governmental Efficiency and Economic Development, Rep. on Sen. Bill No.
1844, as amended July 1, 1994, p. 2; Sen. Rules Com., Off. of Sen. Floor
Analyses, Rep. on Sen. Bill No. 1844, as amended July 1, 1994, p. 4.)
13
In 2001, when the Legislature added current subdivision (b) to section
7031, former subdivision (d) was relettered, without substantive change, as
subdivision (e). (Stats. 2001, ch. 226, § 1.)
24
was not duly licensed when performance of the act or contract commenced, and
(4) acted promptly and in good faith to reinstate his or her license upon learning
it was invalid.” (Stats. 2003, ch. 289, § 1, italics added.)
Thus, as currently worded, the statute explicitly contemplates a situation in
which (1) the contractor had been licensed “prior to” performance, (2) the
previously valid license had expired, or was suspended, at the time “performance
of the act or contract commenced” and (3) the contractor, upon learning of the
lapse, acted diligently to “reinstate” the license (§ 7031, subd. (e), italics added).
In an uncodified section of the 2003 amendments, the Legislature “[found] and
declare[d] that the changes made by this act do not constitute a change in, but are
declaratory of, existing law.” (Stats. 2003, ch. 289, § 2.)
“ ‘[A] subsequent expression of the Legislature as to the intent of [a] prior
statute, although not binding on the court, may properly be used in determining
the effect of [the] prior act.’ [Citation.]” (Western Security Bank v. Superior
Court (1997) 15 Cal.4th 232, 244.) Here, for reasons we have explained, the 2003
amendment seems entirely consistent with the prior statutory expression of the
substantial compliance doctrine. No reason appears to reject the Legislature’s
assurance that the amendment merely clarified, and did not change, existing law.
Hence, we conclude, it governs this case. (Id., at p. 252.)
Because MW was not duly licensed “at all times” during performance of
the structural contract (§ 7031(a)), and cannot alternatively establish its substantial
compliance with the licensure requirements in that it had never held a valid
California contractor’s license “prior to” beginning performance (§ 7031, former
subd. (d); see now id., subd. (e)), MW cannot sue to recover any compensation for
work performed under that contract. Insofar as related to this portion of MW’s
complaint, the summary judgment entered by the trial court was proper.
25
4. Validity of agreement executed by unlicensed contractor.
Niederhauser concedes MW held a valid C-51 structural steel contractor’s
license at all times during MW’s performance of the ornamental contract.
However, Niederhauser notes that MW had no valid California contractor’s
license when it executed the ornamental contract.14 Niederhauser urges that an
agreement for work requiring a contractor’s license is illegal, void, and
unenforceable from the outset if the contractor was unlicensed at the time the
agreement was entered. However, we agree with MW and the Court of Appeal
that one may recover compensation under a contract for work requiring a license if
he or she satisfied licensure requirements at all times while performing the
contract, even if he or she was not licensed when the agreement was signed.
At the outset, we take note that allowing suit and recovery under such
circumstances violates no express term of section 7031(a). That statute prohibits a
contractor from suing “for the collection of compensation for the performance of
any act or contract where a license is required . . . without alleging that he or she
was a duly licensed contractor at all times during the performance of that act or
contract.” (Ibid., italics added.) The “act” of executing an agreement is not one
for which a contractor seeks compensation; rather, he or she pursues payment for
carrying out the contract in a satisfactory manner. (See Vitek, Inc. v. Alvarado Ice
Palace, Inc. (1973) 34 Cal.App.3d 586, 590 (Vitek).) Hence, we conclude, the due
14
As noted above, MW admits it did not actually possess a valid C-51 license
until December 21, 1999, more than a month after it executed the ornamental
contract. Moreover, for reasons explained in the previous section of this
memorandum, MW cannot establish that it was in substantial compliance with
C-51 licensure requirements when it executed the ornamental agreement.
26
licensure of which section 7031(a) speaks is due licensure while the contract itself
is being performed.
Niederhauser points out that, wholly apart from section 7031, the CSLL
makes it a misdemeanor “for any person to engage in the business or act in the
capacity of a contractor within this state without having a license therefor . . . .”
(§ 7028, subd. (a), italics added.) The CSLL defines a “contractor” as one who,
among other things, “undertakes to or offers to undertake to, or . . . submits a bid
to” engage in specified building and construction services. (§ 7026.) MW so
acted in contravention of the CSLL, Niederhauser urges, when, lacking a license,
it agreed to perform the services contemplated by the ornamental contract. The
contract itself, Niederhauser posits, is therefore unlawful.
Generally a contract made in violation of a regulatory statute is void.
Under this general rule, where a law requires, for regulatory rather than revenue
purposes, that one procure a license before offering or performing certain services
and provides a penalty for violation, the contract of an unlicensed person to
perform such services will not be upheld. (E.g., Asdourian v. Araj (1985)
38 Cal.3d 276, 291 (Asdourian); see 1 Witkin, Summary of Cal. Law (9th ed.
1987) Contracts, § 491, p. 436.) “This rule is based on the rationale that ‘the
public importance of discouraging such prohibited transactions outweighs
equitable considerations of possible injustice between the parties.’ [Citation.]”
(Asdourian, supra, at p. 291.)
The CSLL is a regulatory statute. It seeks to “protect the public from
incompetence and dishonesty in those who provide building and construction
services” and to “provide minimal assurance that all persons offering such services
. . . have the requisite skill and character, understand applicable local laws and
codes, and know the rudiments of administering a contracting business.
[Citations.]” (Hydrotech, supra, 52 Cal.3d 988, 995.)
27
Accordingly, any number of cases, including decisions of this court, have
stated that the courts will not enforce an agreement for contractor services
executed by a person who was not duly licensed to perform them. (E.g., Lewis &
Queen, supra, 48 Cal.2d 141, 150-151; Loving & Evans v. Blick, supra, 33 Cal.2d
603, 607-608; Gatti v. Highland Park Builders, Inc. (1946) 27 Cal.2d 687, 689;
Holm, supra, 20 Cal.App.2d 332, 334-337; see General Ins. Co. v. Superior Court
(1972) 26 Cal.App.3d 176, 182.) However, Niederhauser has cited no modern
case under the CSLL, and we have found none, which applied this principle to
deny recovery where a contractor, though not licensed at the time he or she
executed the agreement, was fully licensed at all times during its performance.15
Moreover, the rule expressed by these decisions is not absolute, and many
exceptions have arisen. (Asdourian, supra, 38 Cal.3d 276, 291.) One of these was
stated in Lewis & Queen, supra, 48 Cal.2d 141: “In some cases . . . the statute
making the conduct illegal, in providing for a fine or administrative discipline,
excludes by implication the additional penalty involved in holding the illegal
contract unenforceable.” (Id., at p. 151, italics added.)
In Vitek, supra, 34 Cal.App.3d 586, the court, after examining specific
provisions of the CSLL, applied this principle to conclude that one fully licensed
during performance of a contract may recover even if unlicensed when the
contract was entered. Plaintiff Vitek’s contractor’s license had expired and was
not in effect on the Friday the construction contract was signed. The license was
15
In Holm, supra, 20 Cal.App.2d 332, the court held that a licensed
contractor could not recover, on a mechanic’s lien, money voluntarily advanced to
a subcontractor who was not licensed at the time the subcontract was entered, even
though the subcontractor was perhaps duly licensed at all times during
performance of the subcontract. We discuss Holm in greater detail below.
28
renewed the following Monday, the day the defendant made its first payment
under the contract and Vitek began work. The license remained in effect until
construction was complete. The trial court later awarded Vitek judgment for
amounts due under the agreement. The defendants appealed, urging that recovery
was barred because Vitek had not been duly licensed at all necessary times.
The Court of Appeal affirmed. The court first construed section 7031 as
barring recovery only if the contractor was not duly licensed at all times during
performance of a contract. Because Vitek’s license had been continuously in
effect during the entire period of construction, the court reasoned, section 7031
had been satisfied. (Vitek, supra, 34 Cal.App.3d 586, 590.)
The court then considered whether, “wholly apart from section 7031”
(Vitek, supra, 34 Cal.App.3d 586, 590), the contract was illegal and void, and
therefore unenforceable, because Vitek had no valid license when it was executed,
contrary to the CSLL’s proscription against acting as a contractor while
unlicensed. Acknowledging the general rule that contracts in violation of
regulatory statutes are void, the court nonetheless reasoned that the individual
statute, its provisions, and its purposes, must be examined to determine whether its
deterrent purposes require the voiding of otherwise fair and moral agreements.
(Id., at pp. 592-593.)
In this regard, the Vitek court observed that “[t]he penalty provisions
provided by the Legislature call for imposition of punishment for a misdemeanor
where the party acts in the capacity of a contractor (§ 7028) and deny the party the
right to bring or maintain [an] action [for compensation] based on performance
(§ 7031). Normally, a court will not impose additional penalties for
[noncompliance] with the licensing requirement. [Citations.]” (Vitek, supra,
34 Cal.App.3d 586, 592, italics added.) The court reasoned that where, as here,
the contract’s object is not inherently wrongful or contrary to sound public policy,
29
it will be deemed void “only if it falls within the area which the Legislature
intended as part of deterrence necessary to protect the public interest.” (Id., at
p. 593, fn. omitted.)
The court conceded that the CSLL’s purpose is “to protect the
administration of the licensing law as well as to protect the public from
incompetent and untrustworthy artisans. [Citation.]” (Vitek, supra, 34 Cal.App.3d
586, 594.) However, the court concluded, the Legislature had addressed the
former concern solely by imposing misdemeanor sanctions for unlicensed acts
other than the performance of unlicensed work, and had reserved the bar against
civil suit for cases where the contractor was unlicensed during such performance.
Under these circumstances, the court held, the civil bar should not be expanded
beyond its explicit legislative bounds. (Ibid.)
Gaines v. Eastern Pacific (1982) 136 Cal.App.3d 679 (Gaines), reached a
similar result. Eastern Pacific, acting as a general contractor, subcontracted
concrete work for an apartment complex to Gaines. Gaines began work the next
day, but Eastern Pacific did not receive its contractor’s license until approximately
a month later. Gaines later sued Eastern Pacific for breach of contract. Eastern
Pacific cross-complained for damages arising from Gaines’s alleged improper
performance of its assigned work. Gaines appealed the cross-judgment in Eastern
Pacific’s favor, asserting Eastern Pacific’s lack of licensure when the subcontract
was executed. The Court of Appeal held, among other things, that Eastern
Pacific’s nonlicensure during the agreement’s first month did not void the
contract, thus precluding Eastern Pacific’s recovery, because Eastern Pacific had
not been called upon to perform services under the agreement, related to its
counterclaim for damages, until well after its license was in place. As had Vitek,
supra, 34 Cal.App.3d 586, the Gaines court stressed that section 7031, by its
30
terms, imposes a civil bar only against contractors who were not licensed at all
times during their performance. (Gaines, supra, at p. 682.)
In Asdourian, supra, 38 Cal.3d 276, this court cited Vitek, supra,
34 Cal.App.3d 586, in two respects pertinent to our analysis here. Plaintiff
Asdourian performed three remodeling projects for defendant Araj, a real estate
investor. These included work on converting a garage to a restaurant, and
renovation jobs on a four-flat apartment building and a single-family home.
Asdourian had personally qualified for a contractor’s license, and a license had
been issued to Artko Remodeling and Construction (Artko), his sole
proprietorship, with Asdourian listed on the certificate as the responsible
managing party. However, Asdourian technically violated the CSLL by accepting
and performing the three projects in his own name, not Artko’s. Moreover, in
violation of statutes regulating the sale and provision of home improvements
(§ 7150 et seq.), no written contracts covered the residential work.
Asdourian won judgment for amounts due and unpaid on the three projects.
Araj appealed, asserting that Asdourian’s recovery was barred by his nonlicensure,
and that any agreements for improvement of the residential properties were void,
and thus unenforceable, because not in writing. We affirmed.
Addressing the home improvement violation, the majority acknowledged
the general rule that contracts in violation of regulatory statutes are invalid.
However, the majority invoked Vitek, supra, 34 Cal.App.3d 586, for the premise
that “the rule will not be applied where the penalties imposed by the Legislature
exclude by implication the additional penalty of holding the contract void.”
(Asdourian, supra, 38 Cal.3d 276, 291.)
As the Asdourian majority noted, the statutes in question made violation of
the writing requirement a misdemeanor, but they nowhere expressly declared that
a noncomplying contract was void. Though the Legislature had amended the
31
original statutes to remove a provision explicitly stating that home improvement
contracts were not void solely for failure to put them in writing, the majority
concluded the Legislature had not thereby expressed an intent to invalidate all
noncomplying contracts. The agreements in question, the majority noted, were
not “ ‘intrinsically illegal’ ” (i.e., wrongful in their object) (Asdourian, supra,
38 Cal.3d 276, 293, quoting Vitek, supra, 34 Cal.App.3d 586, 593); thus, they
were not automatically void, but merely voidable “depending on the factual
context and the public policies involved.” (Ibid.) The majority observed that the
requirement of written home improvement contracts was intended to protect
unsophisticated homeowners, but defendant Araj was not unsophisticated,
Asdourian performed the improvement projects fully and honestly, and denying
him recovery under such circumstances would unjustly enrich Araj. (Id., at
pp. 293-294.)
As to the licensing violation, the majority concluded that Asdourian had
substantially complied with licensure requirements, because his personal
qualifications were the basis of Artko’s license, which was in effect at all times
during the relationship between the parties. Under those circumstances, the
majority reasoned, a license issued in Asdourian’s own name would not have
provided Araj with any greater assurance that he was dealing with an experienced,
competent, and qualified contractor. (Asdourian, supra, 38 Cal.3d 276, 286.)16
Noting that Asdourian used his own name when entering the transactions,
in technical violation of section 7028.5 (no member of a licensed contacting
business shall act individually as a contractor without having a valid license), the
16
In this regard, Asdourian, a 1985 decision, applied the judicial doctrine of
substantial compliance, which was abrogated by the Legislature in 1989.
32
majority concluded that this “did not prevent [Araj] from receiving the full and
effective protection of the statute.” (Asdourian, supra, 38 Cal.3d 276, 285, fn.
omitted.) Moreover, the majority observed, “[a]t least two courts . . . have held
that section 7031 does not require a license at the time of execution of a contract.
(Gaines, supra, 136 Cal.App.3d 679; Vitek, supra, 34 Cal.App.3d 586; see also,
General Ins. Co. v. Superior Court, supra, 26 Cal.App.3d 176.) These courts have
noted the statute requires the contractor to prove only that he was duly licensed at
all time ‘during the performance of [the] act or contract.’ (Vitek, supra,
34 Cal.App.3d at p. 590, italics in original.)” (Id., at p. 285, fn. 7.)17
We now confirm that the CSLL does not automatically void all contracts
entered by unlicensed contractors. As indicated in Vitek, supra, 34 Cal.App.3d
586, the statute expresses no such legislative intent. The CSLL imposes
misdemeanor punishment (§§ 7028, 7028.2) and authorizes both injunctive relief
(§§ 7028.3, 7028.4) and civil citations and penalties (§§ 7028.6-7028.14) against
17
As indicated above, an early case, Holm, supra, 20 Cal.App.2d 332, held
that because a subcontractor was unlicensed when the subcontract was executed,
though perhaps fully licensed during performance, the subcontract was illegal,
void, and unenforceable; hence, the general contractor could not recover, under a
mechanic’s lien, compensation attributable to the subcontractor’s work.
Significant in Holm’s reasoning (see id., at p. 336) was the wording of the
predecessor statute to section 7031, as then in effect. Unlike modern section 7031,
this statute did not condition the right to sue for compensation upon licensure
during performance; it more vaguely applied the civil bar based on lack of
licensure “at the time the alleged cause of action arose.” (Stats. 1931, ch. 578,
§ 12, pp. 1262-1263.) Such language could be construed to extend to causes of
action that “arose” by virtue of agreements signed by unlicensed contractors. As
noted below, however, cases construing analogous provisions of the statutes
governing licensure of real estate brokers have concluded, contrary to Holm, that
brokers may recover compensation if licensed at the time of performance, even if
not licensed when they agreed to provide services for which a license was
required. (See text discussion, post.)
33
persons who act as unlicensed contractors. It also expressly bars suits to collect
compensation for unlicensed work (§ 7031(a)), but does not extend the bar to
persons who, though they performed while licensed, were unlicensed when they
agreed to perform the work. This detailed and comprehensive enforcement
scheme thus excludes by implication such an additional penalty.
Indeed, the Legislature has demonstrated, elsewhere in the CSLL, that it
knows how to invalidate the agreements of unlicensed contractors when it wishes
to do so. Section 7028.15, subdivision (e), as amended in 1990 (Stats. 1990,
ch. 321, § 1, p. 1605), expressly provides that “[a]ny contract awarded [by a public
agency] . . . to[ ] a contractor who is not licensed pursuant to this chapter is void.”
(Italics added.) As noted, no CSLL provision similarly treats an unlicensed
contractor’s agreement with a private person or entity.18
An agreement for contractor services has no wrongful object whose
enforcement is forbidden by fundamental public policy (see Civ. Code, §§ 1595,
1596, 1598), merely because the contractor was unlicensed at the moment he or
she executed it. Insofar as unlicensed execution of such a contract violates the
CSLL’s regulatory provisions, the statute provides specified civil and criminal
sanctions for such conduct. (See text discussion, ante.) On the other hand, while
the CSLL denies use of the courts to recover compensation for the unlicensed
performance of contracting work, the statute nowhere extends that disability to a
18
Section 7028, which makes it a misdemeanor to “engage in the business or
act in the capacity of a contractor” without holding a valid license, provides that
for a second or subsequent violation, “the court shall [among other sanctions]
impose a fine of 20 percent of the price of the contract under which the unlicensed
person performed contracting work, or four thousand five hundred dollars
($4,500), whichever is greater . . . .” (Id., subd. (b), italics added.) There is no
suggestion that the contract is necessarily void between the parties; in fact, the fine
is assessed as a percentage of the contract price itself.
34
contractor’s unlicensed agreement with a private entity. As Asdourian, supra,
38 Cal.3d 276, and Vitek, supra, 34 Cal.App.3d 586, make clear, courts will not,
under such circumstances, extend the harsh sanction of forfeiture beyond the
bounds set by the Legislature absent a showing that such a result is essential to
effectuate the statute’s protective purposes.
We see no such necessity here. As indicated, the CSLL expressly provides
multiple means of enforcing the general ban on acting as an unlicensed contractor,
insofar as that prohibition includes the mere execution of contracting agreements
while unlicensed. Though the Legislature barred recovery of compensation by
unlicensed contractors under certain circumstances, it did not impose this bar
against contractors who, though licensed at all times during performance of
contracting work, had executed agreements for the work while unlicensed. No
compelling reason exists to conclude that the public protective purposes of the
CSLL can only be served by deeming such contracts illegal, void, and
unenforceable on that basis alone.
Courts have reached similar conclusions under analogous provisions of the
real estate broker licensing statutes. Where such statutes imposed criminal and
civil penalties for nonlicensure, and also barred suits for compensation for the
performance of acts requiring a license unless the broker was licensed “at the time
the alleged cause of action arose,” the decisions have consistently held that a
broker who was unlicensed when he or she agreed to provide real estate services
may nonetheless recover compensation if duly licensed at the time a buyer was
procured. (Fewel & Dawes, Inc. v. Pratt (1941) 17 Cal.2d 85, 90 [agreeing that
broker may recover if licensed at time contract is performed]; McNichols v. Nelson
Valley Bldg. Co. (1953) 116 Cal.App.2d 266, 271; Brenneman v. Lane (1927)
87 Cal.App. 414, 417; Radich v. Cernokus (1924) 65 Cal.App. 452, 454;
Houston v. Williams (1921) 53 Cal.App. 267, 270-272 [where compensation
35
statute required licensure only when cause of action arose, “[b]y implication any
earlier period was excluded”]; see Estate of Lopez (1992) 8 Cal.App.4th 317, 324
[where, under Probate Code, liability of decedent’s estate for real estate broker’s
commission attached when sale was “consummated,” broker’s cause of action
against estate “arose” at that time; hence, despite prior lapses in licensure, broker
could sue for commission if then licensed].)
It is true that where contractors’ licenses had lapsed during performance,
pre-1989 decisions under the CSLL, applying the judicial doctrine of substantial
compliance, stressed that due licensure at the time of contracting was an important
factor in assuring the statute’s protective purposes had been served. Thus,
Latipac, supra, 64 Cal.2d 278, explained that licensure at the time of contracting
“was crucial to the decisions of the other contracting party and to the prospective
subcontractors and other creditors who might extend credit in reliance upon the
validity of that contract. The key moment . . . when the existence of the license
becomes determinative is . . . when the other party to the agreement must decide
whether the contractor possesses the requisite responsibility and competence and
whether [such other party] should, in the first instance, enter into the relationship.
The license, as an official confirmation of the contractor’s responsibility and
experience, then plays its important role. Then, too, it serves as a basic
determinant in the decision of prospective subcontractors and other creditors as to
whether to extend credit to the contractor on the strength of the contract.” (Id., at
p. 282; see also, e.g., Steinwinter v. Maxwell (1960) 183 Cal.App.2d 34, 37-38
[rejecting substantial compliance where contractor whose license lapsed during
performance was not licensed at the time the contract was executed].)
For several reasons, however, we do not find this analysis dispositive here.
First, while the pre-1989 decisions suggested that nonlicensure at the time of
contracting was an influential factor in assessing substantial compliance, none
36
deemed it crucial. Asdourian, supra, 38 Cal.3d 276, confirmed that Latipac,
supra, 64 Cal.2d 278, had declined to decide if any of the “substantial
compliance” factors discussed therein, singly or in combination, were necessary or
sufficient. (Asdourian, supra, at p. 284.) Asdourian then proceeded to find
substantial compliance although the contractor in that case, who had agreed in his
own name to perform the work for which he sought compensation, had no
personal license then, or at any time during performance. (Id., at pp. 284-286,
289.)19
Moreover, even if due licensure at the time of contracting favors the
conclusion that the other party received the statute’s full protection despite a later
lapse in licensure, this does not mean nonlicensure at the time of contracting
negates such protection where all performance was licensed. After all, as Latipac,
supra, 64 Cal.2d 278, suggested, one contemplating professional dealings with a
contractor—whether as a client, surety, general contractor or subcontractor—
presumably will consider it important to determine at the outset whether the
contractor is then duly licensed. If no valid license is then in place, such a party
may simply decline to enter the relationship.20
19
Indeed, decisions implying that substantial compliance might be found even
where nonlicensure existed at the time the agreement was entered logically
undermine the notion that an agreement executed by an unlicensed person is void
and unenforceable from the outset.
20
In its present form, the CSLL requires all prime contracts (i.e., contracts
between owners and their general contractors), and all home improvement, repair,
or service contracts to caution against use of unlicensed contractors, and to advise
how information about a contractor’s licensure can be obtained. (§ 7030.) These
requirements do not extend to contracts between general contractors and
subcontractors, such as the agreement at issue here, presumably because all parties
to subcontracts should be thoroughly familiar with licensure requirements. We
express no view on the rights and remedies of one who justifiably relied, at the
(Footnote continued on next page.)
37
Post-1989 statutory revisions to the substantial compliance doctrine suggest
the Legislature itself does not consider due licensure at the precise moment of
contracting to be crucial to the CSLL’s protections. As discussed above, section
7031 allows a contractor who suffers a license lapse during performance to
establish substantial compliance, under specified circumstances, if he or she held a
valid California contractor’s license at some time “prior to the performance of the
act or contract” for which compensation is sought. (Id., subd. (e), italics added;
see also id., former subd. (d).) This broad language may include a person whose
previously valid license had lapsed at the time the agreement was entered, or one
who did not first obtain a valid license until after the contract was signed.
Niederhauser urges that upholding MW’s right to recover on the
ornamental steel contract, though MW had no license when that agreement was
executed, would violate principles emphasized in Hydrotech, supra, 52 Cal.3d
988. We disagree. In that case, Hydrotech, a New York manufacturer of wave-
simulation machinery, agreed with defendant Wessman, the general contractor for
a California water park, to design and build a “surfing pool” at the park using
Hydrotech equipment. According to Hydrotech, it expressed concern about
California license requirements, but Wessman and the water park's owner
persuaded Hydrotech to proceed, promising both to arrange for help from a
licensed California contractor and, in any event, to pay for the equipment and
services provided by Hydrotech. Hydrotech performed the agreed work without
securing the necessary California license.
(Footnote continued from previous page.)
time an agreement was entered, on a contractor’s false representation that he or
she was then duly licensed.
38
When a payment dispute arose, Hydrotech sued. The defendants asserted
Hydrotech’s nonlicensure as a bar. Hydrotech urged that the CSLL does not
require a license for “ ‘isolated’ ” or “ ‘exceptional’ ” California transactions.
(Hydrotech, supra, 52 Cal.3d 988, 992.) Alternatively, Hydrotech claimed that,
even if section 7031 eliminates contractual or quasi-contractual claims seeking
compensation for unlicensed work, the statute did not bar a fraud claim based on
the defendants’ false promise to pay despite their understanding that Hydrotech
would do the work without a license.
We rejected both arguments. Confronting the fraud issue, we reasoned that
“[r]egardless of the equities, section 7031 bars all actions, however they are
characterized, which effectively seek ‘compensation’ for illegal unlicensed
contract work. [Citation.]” (Hydrotech, supra, 52 Cal.3d 988, 997, italics added.)
Hence, we concluded, Hydrotech could not circumvent the statute “by alleging
that when the illegal contract was made, the other party had no intention of
performing. Section 7031 places the risk of such bad faith squarely on the
unlicensed contractor’s shoulders. ‘Knowing that they will receive no help from
the courts and must trust completely to each other’s good faith, the parties are less
likely to enter an illegal arrangement in the first place. [Citations.]’ ” (Id., at
p. 998, quoting Lewis & Queen, supra, 48 Cal.2d 141, 150, second italics added
by Hydrotech.)
Addressing the Court of Appeal’s concern that denial of fraud claims would
encourage general contractors to seek out and cheat unlicensed subcontractors,
Hydrotech further observed 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 988, 998.)
39
As Hydrotech suggested, an offer, or acceptance of a solicitation, to
perform unlicensed contract work is illegal. If the work offered or solicited is
performed without a license, the contractor must rely solely on the other party’s
good faith for payment, and a claim for compensation will be disallowed under
section 7031, regardless of the balance of equities or the manner in which the
claim is framed. Proper application of section 7031, and of the other sanctions
provided by the CSLL, thus rightly discourages contractors from entering
arrangements for unlicensed work. But Hydrotech did not consider whether an
agreement for contractor services is void and unenforceable solely because the
contractor, though fully licensed at all times during performance, was not licensed
when the agreement was executed. Nothing in Hydrotech stands for the
proposition that the contractor is barred from recovery in such a case.
Niederhauser notes that courts have concluded, under various other
licensing laws, that contracts for performance of services requiring a license were
illegal and void if executed by unlicensed persons. (E.g., Styne v. Stevens (2001)
26 Cal.4th 42, 51 [Talent Agency Act]; Payne v. De Vaughn (1926) 77 Cal.App.
399, 404 [architect]; see generally 1 Witkin, Summary of Cal. Law, supra,
Contracts, §§ 491-493, pp. 436-439.) Of course, we express no views on statutory
schemes not at issue here. But we know of no modern decision that barred a suit
to recover compensation by one who, though unlicensed when a contract for
services was entered, was fully licensed at all times during performance, under a
statute which expressly barred recovery only for nonlicensure at the latter time.
For reasons we have expressed, we are satisfied that application of the void
contract principle is inappropriate in such cases under the CSLL.
Accordingly, we conclude that MW is not barred from recovering
compensation for its work under the ornamental contract on the sole ground that it
was unlicensed when it executed that agreement.
40
41
CONCLUSION
The Court of Appeal’s judgment is reversed insofar as it permits MW to
sue for compensation for work under the structural contract. In all other respects,
the judgment of the Court of Appeal, reversing the trial court’s grant of summary
judgment for Niederhauser, is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
42
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion MW Erectors v. Niederhauser Ornamental & Metal Works
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 115 Cal.App.4th 512
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S123238Date Filed: July 14, 2005
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: David R. Chaffee
__________________________________________________________________________________
Attorneys for Appellant:
Pine & Pine, Norman Pine, Beverly Tillett Pine; Gibbs, Giden, Locher & Turner, Richard J. Wittbrodt andMarion T. Hack for Plaintiff and Appellant.
Donald K. Struckman for Western Steel Council as Amicus Curiae on behalf of Plaintiff and Appellant.
Law Offices of Abdulaziz & Grossbart, Sam K. Abdulaziz and Bruce D. Rudman as Amici Curiae on
behalf of Plaintiff and Appellant.
Weinberg, Roger & Rosenfeld and David A. Rosenfeld for District Council of Iron Workers for the State
of California and Vicinity as Amicus Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Arter & Haden, Lord, Bissell & Brook, William S. Davis; Arter & Haden, Musick Peeler & Garrett andJack W. Fleming for Defendants and Respondents.
Jones & Mayer, Kimberly Hall Barlow and Elena Q. Gerli for League of California Cities as Amicus
Curiae on behalf of Defendants and Respondents.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Norman PinePine & Pine
14156 Magnolia Boulevard, Suite 200
Sherman Oaks, CA 91423
(818) 379-9710
William S. Davis
Lord, Bissell & Brook
300 S. Grand Avenue, Suite 800
Los Angeles, CA 90071-3119
(213) 485-1500
2
Opinion Information
| Date: | Docket Number: |
| Thu, 07/14/2005 | S123238 |
Parties
| 1 | Niederhauser Ornamental & Metal Works Company, Inc. (Defendant and Respondent) Represented by William S. Davis Lord Bissell & Brook LLP 300 S Grand Avenue, Ste 800 Los Angeles, CA |
| 2 | Niederhauser Ornamental & Metal Works Company, Inc. (Defendant and Respondent) Represented by Jack William Fleming Musick Peeler & Garrett LLP 650 Town Center Drive, Ste 900 Costa Mesa, CA |
| 3 | Fidelity & Guaranty Insurance Company (Defendant and Respondent) Represented by William S. Davis Lord Bissell & Brook LLP 300 S Grand Avenue, Ste 800 Los Angeles, CA |
| 4 | Fidelity & Guaranty Insurance Company (Defendant and Respondent) Represented by Jack William Fleming Musick Peeler & Garrett LLP 650 Town Center Drive, Ste 900 Costa Mesa, CA |
| 5 | United States Fidelity & Guaranty Company (Defendant and Respondent) Represented by William S. Davis Lord Bissell & Brook LLP 300 S Grand Avenue, Ste 800 Los Angeles, CA |
| 6 | United States Fidelity & Guaranty Company (Defendant and Respondent) Represented by Jack William Fleming Musick Peeler & Garrett LLP 650 Town Center Drive, Ste 900 Costa Mesa, CA |
| 7 | Mw Erectors, Inc. (Plaintiff and Appellant) Represented by Richard John Wittbrodt Gibbs Giden et al LLP 2029 Century Park E 34FL Los Angeles, CA |
| 8 | Mw Erectors, Inc. (Plaintiff and Appellant) Represented by Norman Pine Pine & Pine 14156 Magnolia Blvd #200 Sherman Oaks, CA |
| 9 | League Of California Cities (Amicus curiae) Represented by Kimberly Hall Barlow Jones & Mayer 3777 N Harbor Blvd Fullerton, CA |
| 10 | District Counsel Of Iron Workers Of California (Amicus curiae) Represented by David A. Rosenfeld Weinberg, Roger & Rosenfeld 180 Grand Ave #1400 Oakland, CA |
| 11 | Abdulaziz & Grossbart (Amicus curiae) Represented by Sam K. Abdulaziz Abdulaziz & Grossbart 6454 Coldwater Canyon Ave N Hollywood, CA |
| 12 | Western Steel Council (Amicus curiae) Represented by Donald K. Struckmann Attorney at Law 151 N Sunrise #1014 Roseville, CA |
| Disposition | |
| Jul 14 2005 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Mar 9 2004 | Petition for review filed respondents Niederhauser Ornamental and Metal Works Company, Inc., etal |
| Mar 11 2004 | Record requested |
| Mar 15 2004 | Received Court of Appeal record G030681-blue plastic file - also - G030825-file jacket/briefs/transcript |
| Mar 26 2004 | Answer to petition for review filed counsel for appellant MW Erectors, Inc. |
| Apr 2 2004 | Reply to answer to petition filed by counsel for resps Niederhauser Ornamental & Metal Works Company, Inc., et al. |
| Apr 22 2004 | Time extended to grant or deny review to 6-7-04 |
| May 12 2004 | Received: letter from appellant MW Erectors, Inc. |
| May 12 2004 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Brown, and Moreno, JJ. |
| May 24 2004 | Certification of interested entities or persons filed by resps |
| May 27 2004 | Certification of interested entities or persons filed for aplt |
| May 28 2004 | Received additional record two blue plastic files |
| Jun 9 2004 | Opening brief on the merits filed respondents Niederhauser Ornamental and Metal Works, etal |
| Jun 24 2004 | Request for extension of time filed to file answer brief/merits to 8-9-04>>appellant MW Erectors, Inc |
| Jun 30 2004 | Extension of time granted to 8-9-04 for aplt to file the answer brief on the merits. |
| Aug 5 2004 | Request for extension of time filed & request to file an oversize answer brief/merits on behalf of appellants MW ERECTORS, INC. |
| Aug 12 2004 | Extension of time granted to 9-19-04 for appellant to file the answer brief on the merits in excess of 14,000 words. No further extensions of time are contemplated. |
| Aug 20 2004 | Answer brief on the merits filed by aplt MW Erectors (timely per CRC 40k) |
| Aug 31 2004 | Request for extension of time filed resps request to 9-30-04 to file reply brief on the merits & permission to file an oversized reply brief/merits |
| Sep 8 2004 | Extension of time granted to Sept. 30, 2004 for respondents to serve and file the reply brief on the merits in excess of 4,200 words. |
| Sep 24 2004 | Reply brief filed (case fully briefed) respondents, Niederhauser ornamental and Metal Works Co., Inc.,Fidelity and Guaranty Ins., Co., and United Stsates Fidelity and Guaranty Co. |
| Sep 24 2004 | Request for judicial notice filed (granted case) submitted concurrent with reply brief of, Niederhauser Ornamental, etc., |
| Oct 21 2004 | Received application to file Amicus Curiae Brief Abdulaziz & Grossbart, Attys. |
| Oct 22 2004 | Received application to file Amicus Curiae Brief by District Council of Iron Workers of the State of Calif. and Vicinity in support of aplt. |
| Oct 22 2004 | Received application to file Amicus Curiae Brief Western Steel Council |
| Oct 26 2004 | Received application to file Amicus Curiae Brief by League of Calif. Cities in support of resp |
| Nov 3 2004 | Permission to file amicus curiae brief granted by the League of California Cities in support of respondents. Answers may be filed w/in 20 days. |
| Nov 3 2004 | Amicus curiae brief filed by the League of California Cities in support of resps. |
| Nov 3 2004 | Permission to file amicus curiae brief granted by Western Steel Council in support of appellant. Answers may be filed w/in 20 days. |
| Nov 3 2004 | Amicus curiae brief filed by Western Steel Council in support of appellant. |
| Nov 3 2004 | Permission to file amicus curiae brief granted by Abdulaziz & Grossbart in support of appellant. Answers may be filed w/in 20 days. |
| Nov 3 2004 | Amicus curiae brief filed by Abdulaziz & Grossbart in support of appellant. |
| Nov 3 2004 | Permission to file amicus curiae brief granted by District Council of Iron Workers of the State of California and Vicinity in support of appellant. Answers may be filed w/in 20 days. |
| Nov 3 2004 | Amicus curiae brief filed by District Council of Iron Workers, etc, in support of aplt. |
| Nov 19 2004 | Response to amicus curiae brief filed to ac District Council of Iron Workers>>respondents Niederhauser Ornamental and Metal Works, etal |
| Nov 19 2004 | Response to amicus curiae brief filed to ac brief of Western Steel Council>>respondents Niederhauser Ornamental and Metal Works, etal |
| Nov 19 2004 | Response to amicus curiae brief filed to ac brief of Abdulaziz & Grossbart>>respondents Niederhauser Ornamental and Metal Works, etal |
| Nov 24 2004 | Response to amicus curiae brief filed by counsel for aplts. (MW Erectors) to amicus brief of League of Calif. Cities. (40k) |
| Dec 1 2004 | Filed: Letter from appellant MW Erectors, Inc. requesting not to be put on January's 2005 calendar. (recv'd in LA) |
| Dec 6 2004 | Note: Letter sent to counsel informing them that the case will not be sched. for oral arg in January. |
| Apr 1 2005 | Case ordered on calendar 5/5/05 @9am, S.F. |
| May 3 2005 | Request for judicial notice granted The motion of defendants and respondents Niederhauser Ornamental Metal Works Company, Inc. et al., for judicial notice, which was filed on September 24, 2004 is granted. |
| May 5 2005 | Cause argued and submitted |
| Jul 14 2005 | Opinion filed: Affirmed in part, reversed in part Majority opinion by Baxter, J. --------------joined by George, C.J., Kennard, Werdegar, Chin, Moreno JJ. |
| Aug 19 2005 | Remittitur issued (civil case) |
| Briefs | |
| Jun 9 2004 | Opening brief on the merits filed |
| Aug 20 2004 | Answer brief on the merits filed |
| Sep 24 2004 | Reply brief filed (case fully briefed) |
| Nov 3 2004 | Amicus curiae brief filed |
| Nov 3 2004 | Amicus curiae brief filed |
| Nov 3 2004 | Amicus curiae brief filed |
| Nov 3 2004 | Amicus curiae brief filed |
| Nov 19 2004 | Response to amicus curiae brief filed |
| Nov 19 2004 | Response to amicus curiae brief filed |
| Nov 19 2004 | Response to amicus curiae brief filed |
| Nov 24 2004 | Response to amicus curiae brief filed |
