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Procedural Posture

In a construction defect case involving waterproofing of walls, plaintiff homeowners association sued defendants, a general contractor and a subcontractor, for negligence. During a jury trial, the Superior Court of Los Angeles County, California, granted a nonsuit for the subcontractor and granted summary judgment for the subcontractor on the general contractor’s cross-complaint for indemnity. The general contractor and association sought review.

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The trial court precluded expert testimony on the subcontractor’s standard of care, ruling that the relevant issue was not the standard of care, but the oral contract between the two contractors and what the subcontractor was told to do under that agreement. In reversing, the court found that the trial court erred in narrowing its focus to the words of the oral agreement, to the exclusion of evidence on the standard of care. An owner ordinarily had a cause of action against a subcontractor arising from the subcontractor’s defective work, even if there was no privity of contract between the owner and subcontractor. In the case at bar, the subcontractor had a duty to perform the agreed tasks in a workmanlike manner, and the expert testimony was relevant to whether the subcontractor met the standard of care expected within the industry. The court also found that it was error to grant summary judgment on the general contractor’s cross-complaint for indemnity because there were triable issues of fact as to whether the subcontractor was negligent. The general contractor’s satisfaction with the work did not absolve the subcontractor of liability if the work was negligently performed.


The court reversed the judgment in favor of the subcontractor, the summary judgment on the general contractor’s cross-complaint for indemnity, and the trial court’s post judgment cost orders.

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