Filed 8/25/26 Chen v. Ramsey Asphalt Construction Corp. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ISABEL B. CHEN, 2d Civ. No. B345739 (Super. Ct. No. 23CV04636)
Plaintiff and Appellant, (Santa Barbara County)
v.
RAMSEY ASPHALT CONSTRUCTION CORP.,
Defendant and Respondent.
Isabel B. Chen appeals from the judgment for Ramsey Asphalt Construction Corp. (Ramsey Asphalt) after a court trial on her complaint for breach of contract, negligence, and unfair and unlawful business practices. She also appeals from the award of attorney’s fees.
Chen contends undisputed evidence established each of her causes of action, and the trial court erred when it “prejudged” the case by issuing a proposed statement of decision immediately at the end of trial. We affirm.
FACTUAL AND PROCEDURAL HISTORY First contract
Chen’s residence was accessed by an uphill 300-foot S-shaped driveway. Chen believed it was a safety hazard because she had children and young nieces and nephews, and a full-sized fire truck would not be able to get through the curve. Chen’s husband, Bryan Hofmeister, contacted Ramsey Asphalt to make the driveway more accessible.
Ramsey Asphalt provided a written proposal (the first contract). Hofmeister was listed as the customer. The existing lower portion of the driveway would be abandoned and replaced with a new L-shaped portion to the west, to be connected to the existing upper portion. Approximately three inches of asphalt would be removed (“milled”) from the existing lower portion, ground up, and used as base for the new lower portion. The new lower portion would be surfaced with asphalt, and the upper portion would be resurfaced. An asphalt berm would be installed along a portion of the driveway. A retention pond also would be created for water runoff. The total cost was to be $55,244.12, with payment “Due Upon Completion.” Chen signed her acceptance of the proposal.
Ramsey Asphalt’s principal, Scott Ramsey (Ramsey), is a licensed contractor and had been grading and paving road surfaces for 25 years. Chen testified that Ramsey never mentioned increasing the elevation or grade of any part of the driveway. She did not believe an elevation change was needed because the new lower portion had at one time been used as a driveway, and just needed resurfacing. Ramsey testified that most of his communications had been with Hofmeister; he discussed with Hofmeister the need to move dirt to increase the
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elevation.
The County of Santa Barbara (the County) informed Ramsey, Chen, and Hofmeister that no permit was required. Ramsey testified he did not tell the County he was increasing the grade, but that would have been evident from the pictures it reviewed. He testified, “They knew there was grading involved, but to the extent of the grading, I don’t really think anybody knew at that point until we get into the job.” Ramsey did not provide the County with more information than necessary because he did not want to “throw up red flags” that might result in the homeowners having to get a permit, which would cost them tens of thousands of dollars.
Ramsey testified that “extensive grading” was required for the new lower section. He testified he could not change the elevation of the two end points of the driveway—where it met the street and at the house. He used a “string line” to determine the grading between those points. He estimated how much fill was needed but did not know the exact amount before work began.
Building inspector Carl Lindberg testified that many projects do not require permits, and it is often difficult for people to determine if a permit is needed. Sometimes the County advises that no permit is required, but many projects “creep and morph as they go along.” Once a “threshold” of 50 cubic yards of dirt or a vertical “cut” of three feet is exceeded, a grading permit is required.
Construction begins
Work began in January 2022. Ramsey Asphalt “ground up”
the asphalt in the old lower portion and deposited it to level part of the new lower portion. The retention pond was dug and the dirt was used as fill for the driveway. As dirt was added to the
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new lower portion, each layer was compacted and tested.
Chen testified that on the second day of work, “things had drastically changed” and “[t]he elevation was high.” She found a “severe dip and raise” in the new lower portion, “like . . . riding a roller coaster.” She also found the retention pond was an “enormous pit that looks like a meteor came down and smashed into [her] property.” She testified this was “not according to plan.” Ramsey told her the grade and the pond needed to be that size to retain all the water in case of a rainstorm or flood.
During the work, dirt was pushed against the trunk of an oak tree. Ramsey removed the dirt with a shovel.
Pursuant to the schedule set by Hofmeister, Ramsey Asphalt paused working after the second day to allow an electrician and gate contractor to access the property the following day, with paving to occur later. Hofmeister texted Ramsey stating, “ ‘Looks good so far, but we have a few issues we need to discuss.’ ” For reasons discussed below, Ramsey Asphalt did no further work on the project.
Red tag
Two weeks later, in response to a neighbor’s complaint, County inspector James Wright came onto the property. He found the ground was cut and dug away, exposing more than three vertical feet of a hill. The county “red-tagged” the project, which required that work stop. The County later issued a notice of violation because more than 50 cubic yards had been graded without a permit.
Ramsey billed Chen for the work he had completed. When Chen did not pay, Ramsey filed a mechanic’s lien.
Second contract
Chen hired a civil engineer, Braun and Associates, to
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prepare a grading and drainage plan to meet the County’s requirements. The principal, Mark Braun, recommended removing and recompacting 24 inches of soil in some areas, and 12 inches in another area. Braun stated a laboratory must certify that the soil compaction met County requirements. He also recommended stormwater management features and measures to accommodate the existing oak tree.
The County approved Braun’s plan and issued land use and grading permits. Ramsey staked out the project and found his plan and Braun’s plan “virtually match[ed] up identically,” with the driving surfaces, curbs, etc. in the same locations. This proved to Ramsey that he had done nothing wrong. Braun confirmed Ramsey’s calculations that the amount of dirt to be removed and the amount to be filled elsewhere on the project were equal, meaning that no dirt would have to be imported or exported (“net zero”). Chen still wanted Ramsey to do the project.
In June 2023, Ramsey provided a new proposal to complete the work as outlined by Braun (the second contract). Hofmeister was again listed as the customer. Ramsey testified they were “starting fresh with a new job.” The amount quoted was $62,375, with payment “Due Upon Completion.” This amount included the “Balance from 2022” of $10,918. Chen signed her acceptance, and added in handwriting, “All other contracts are void.” Ramsey agreed to this addition.
Chen testified, “The reason I put that line in there was to protect myself from him charging me the 56K [sic] in addition to the 62,375 that is on this contract.” She further testified that she did not intend to release him from “any liability related to the first contract.”
Starting around July 2023, Ramsey asked Chen to pay him
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$10,918, which was the balance for the work performed on the first contract. Chen refused to pay that amount because the contract said payment was due on completion, she was unwilling to pay for work she never asked for, and she had no confidence Ramsey would complete the job. Chen paid Ramsey $5,832 for the completed work of removing the asphalt from the old lower section.
Ramsey did not respond to Chen’s request to provide completion dates for 10 steps in the project. Chen also asked him to “provide for our review a reasonable milestone payment schedule that corresponds to the successful completion of each inspection step.” Ramsey responded that he would remove the lien on her property if she “paid for the old invoice that was done last year,” and he would then “get the remaining job done on schedule.” He asked Chen to agree to future payments of $17,500 when the “subgrade and base grade is established and signed off by inspectors,” and the remaining $34,000 when the final work was approved by the County.
Chen interpreted this to mean that “[h]e was abandoning the project.” Ramsey testified that when Chen refused to pay the balance for work previously completed, and kept stating he had done something wrong, he “didn’t feel comfortable moving forward.” No work was performed on the second contract.
Expert testimony
Chen’s expert was general building contractor Chris Joyce.
He had not done any paving work since 2013. He estimated the cost of completing Braun’s plans as $333,422. He was not retained to opine whether Ramsey Asphalt was negligent or violated any codes. The court found his estimates “vastly overpriced and clearly not helpful,” and declined to consider his
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opinions.
Ramsey’s asphalt expert, Monty Wilde, testified that at the onset of “a small project like this,” a contractor probably would not know if a permit was required or have an accurate measurement of the elevation gain before construction started. Nothing from the County stated that “Ramsey’s work on the project fell below the standard industry practice.” And based on Wilde’s review of photographs of the project, none of the work Ramsey performed “fell below the industry standard of care.”
Rulings
On the last afternoon of trial, several witnesses testified.
Immediately after counsel gave closing arguments, the court emailed them a 32-page proposed statement of decision. Chen timely filed objections. The trial court then issued judgment in favor of Ramsey Asphalt on all causes of action.
The court found that Chen did not prove any cause of action by preponderating evidence. The court found Ramsey’s and Wilde’s testimony “[v]ery creditable” and “believable.” The court further found: “There was a different perception between Ramsey and Chen about what should have been done on the First Contract, a contract which was voided by Chen in the Second Contract. [¶] Ramsey’s testimony established that his perception was accurate and correct; he had done nothing wrong; the defense testimony was very persuasive.”
The court also found no preponderating evidence of damages. The court rejected some of the claimed damages because they pertained to the first contract, which was voided, including Chen’s payment of $5,832 to Ramsey, and payment to another company to trim the oak tree and remove a neighboring olive tree. The court rejected other claimed damages because the
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work “must be done anyway,” including the costs of pouring concrete footings for the gate, restaking the property, Braun’s engineering drawings, and grading and land use permits. Following briefing by the parties, the trial court awarded Ramsey Asphalt contractual attorney’s fees and costs.
DISCUSSION
Duties of appellate counsel The briefs of both parties fail to comply with the appellate rules and are of little help to the court in determining the operative facts. Appellant contends the trial court’s findings are erroneous based on “undisputed evidence.” But appellant presents only facts that support her position and fails to comply with the duty to “ ‘fairly set forth all the significant facts, not just those beneficial to the appellant.’ ” (Perry v. Kia Motors America, Inc. (2023) 91 Cal.App.5th 1088, 1096; see Cal. Rules of Court, rule 8.204(a)(2)(C).)
Respondent’s brief is also deficient. It cites only the trial court’s statement of decision and the judgment without citing any testimony or exhibits to establish that the trial court’s findings were supported by substantial evidence. Respondent thus fails to “provide specific page citations to the record to support their factual recitations in their briefs.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406.)
We struck respondent’s brief and ordered respondent to “file a revised respondent’s brief that complies with the California Rules of Court.” Perhaps misunderstanding our order, respondent filed a revised brief that again cites only the statement of decision and the judgment, adding only the specific page numbers within those documents.
“The court is not required to make an independent search
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of the record and may disregard any claims when no reference is furnished.” (Jumaane v. City of Los Angeles, supra, 241 Cal.App.4th at p. 1406.) Because sufficient evidence supports the judgment, we affirm. (Jarvis v. O’Brien (1957) 147 Cal.App.2d 758, 759.)
Standard of review
“A reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.” (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 518.) Under “the well-settled principles governing our review,” we determine “ ‘whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 63–64.)
“ ‘It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact.’ ” (Estate of O’Connor (2017) 16 Cal.App.5th 159, 163.) “ ‘[W]e defer to the trier of fact on issues of credibility.’ ” (Ibid.) “ ‘Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact.’ ” (Id. at pp. 163–164.)
Breach of contract
The trial court concluded Chen was not entitled to damages for purported breaches of the first contract because, as Chen wrote on the second contract, “[a]ll other contracts are void.” Chen testified that in adding this language, she did not intend to release Ramsey Asphalt from “liability related to the first contract.” But “ ‘ “[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of
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the parties, that controls interpretation” [citation]. The parties’ undisclosed intent or understanding is irrelevant to contract interpretation.’ ” (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 8.)
“A contract may be rescinded if all the parties thereto consent.” (Civ. Code, § 1689.) “Novation is the substitution of a new obligation for an existing one.” (Civ. Code, § 1530, subd. (a).) A novation includes “the substitution of a new obligation between the same parties, with intent to extinguish the old obligation.” (Civ. Code, § 1531, subd. 1.) Because the parties here voided the first contract, “ ‘it necessarily follows that the old agreement has been entirely abrogated or extinguished.’ [Citation.] In consequence of such novation, the rights and duties of the parties must be governed by the new agreement alone.” (Alexander v. Angel (1951) 37 Cal.2d 856, 862; Tufeld Corp. v. Beverly Hills Gateway, L.P. (2022) 86 Cal.App.5th 12, 29–30.)
Moreover, substantial evidence supports the trial court’s finding there was no material breach of the first contract. Chen contends the first contract did not provide for grading, and was breached when dirt was moved that necessitated a grading permit. But Ramsey discussed the need to move dirt to increase the elevation with Hofmeister, who had negotiated the first contract and was listed as the customer on both contracts.
A “ ‘contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner.’ ” (Aas v. Superior Court (2000) 24 Cal.4th 627, 643.) Work pursuant to the first contract was halted after two days to allow other contractors to access the property. That the new section of driveway had a “dip” at that preliminary stage, or the retention pond was larger than Chen had envisioned, did not establish a breach of contract. The trial court
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credited Ramsey’s and Wilde’s testimony that Ramsey did nothing wrong, and that his work corresponded to Braun’s plan.
Nor does substantial evidence establish a breach of the second contract. Ramsey Asphalt performed no work on the second contract, and Chen paid them nothing for it. Ramsey sought payment for the work previously performed, as carried forward in the second contract, and offered to remove the mechanic’s lien if it was paid. Chen paid only about half of that amount and demanded a schedule for anticipated phases of the project, which Ramsey did not provide. Each party lost confidence in the other. As the trial court found, “[a]t best there is a stalemate.” Chen did not establish that the second contract was breached.
Negligence
“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “Typically, the existence of negligence (the failure to exercise reasonable care) is regarded as a question of fact, and a finding of negligence is reviewed on appeal under the substantial evidence standard.” (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 32.)
Substantial evidence supports the trial court’s finding that Ramsey Asphalt was not negligent and did not cause damages. Neither a dip in the driveway before the project was completed nor Chen’s surprise at the size of the retention pond established that Ramsey Asphalt failed to exercise reasonable care. Nor did the failure to obtain permits require a finding of negligence.
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Before work began, the County advised that no permits were required. Lindberg, Ramsey, and Wilde testified that the amount of dirt to be moved, and the resulting need for a permit, is often not evident until work begins. Substantial evidence supports the conclusion that Chen’s payments for Braun’s services, permits, inspections, etc., were necessary based on the evolving nature of the project, and not by any negligence of Ramsey Asphalt.
Unfair competition
Unfair competition “include[s] any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) The unfair competition law (UCL) “ ‘ “borrows” violations of other laws and treats them as unlawful practices.’ ” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)
On appeal, Chen contends Ramsey Asphalt engaged in unfair competition by failing to obtain a grading permit. We are not persuaded. Under the UCL, “[a] restitution order against a defendant . . . requires both that money or property have been lost by a plaintiff, on the one hand, and that it have been acquired by a defendant, on the other.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 336.) Substantial evidence supports the conclusion that the nature of the project, not the failure to obtain permits, was the cause of Chen’s expenditures. Nor is there evidence that Ramsey Asphalt acquired the money Chen expended for consultants, permits, etc.
Statement of decision
On the last day of trial, immediately after additional testimony of several witnesses and arguments by counsel, the trial court provided counsel with a 32-page proposed statement of decision. (Code Civ. Proc., § 632; Cal. Rules of Court, rule
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3.1590(c)(1).) It stated it would become the statement of decision unless a party objected within 15 days. Chen timely filed objections. (Cal. Rules of Court, rule 3.1590(g).) The court thereafter issued judgment in favor of Ramsey Asphalt on all causes of action.
Chen contends the trial court prejudged the case and failed to consider all the evidence based on the timing of issuing its proposed statement of decision. We are not persuaded. The statement of decision was issued after the trial court heard all the evidence. The parties had the opportunity to object, and the court thereafter issued judgment. The statement of decision and judgment were properly “ ‘based upon actual observance of the witnesses and the evidence given during the trial,’ ” and the trial court’s resolution of conflicting evidence. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219–1220.)
Chen also contends the absence of a summary of Braun’s deposition testimony in the statement of decision demonstrates that the court failed to “meaningfully consider” it. The parties stipulated that the deposition testimony be “enter[ed] . . . in lieu of trial testimony,” supplemented by in-court cross-examination. The statement of decision states that the court read the deposition, and summarized the cross-examination. “ ‘ “A trial court rendering a statement of decision under Code of Civil Procedure section 632 is required only to state ultimate rather than evidentiary facts. A trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence.” ’ ” (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 163.) No error has been shown.
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Attorney’s fees and costs The trial court awarded Ramsey Asphalt contractual attorney’s fees of $78,342.90 and costs of $25,141.74. (Civ. Code, § 1717, subd. (a).) Chen’s sole contention regarding the fees is that if the judgment regarding the contract claim is reversed, the fee award must be vacated. (See Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 547.) Because we affirm the judgment on the contractual claim, the attorney fee award is also affirmed. But based on the deficiencies in both parties’ appellate briefs and in the interests of justice, we deny costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
DISPOSITION
The judgment is affirmed. Each party shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
CODY, P. J. MCKAIG, J.
Judge of Ventura County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
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Ferguson Case Orr Paterson and Joshua S. Hopstone for Plaintiff and Appellant.
Williamson Law Office and Airene Williamson for Defendant and Respondent.