Not a Lexis+ subscriber? Try it out for free.

Experience a New Era in Legal Research with Free Access to Lexis+

K.G. Mullen, Inc. v. Team Transit Mix, Inc.

Court of Appeal of California, Second Appellate District, Division Two

October 6, 2014, Opinion Filed

B249501

Opinion

After one judge tentatively finds that a plaintiff has proven up its damages following the entry of default, can a second judge to whom the case is later assigned consider additional evidence and enter a smaller damages award? If so, was the second judge's smaller award in this case supported by substantial evidence? The answer to both questions is yes, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Winters-Schram Associates ("Winters") hired Plaintiffs K.G. Mullen, Inc. and Kevin Mullen (collectively, "Plaintiffs") to do the structural concrete work on two jobs—one in Malibu, and another for the Los Angeles Museum of the Holocaust. Plaintiffs sub-contracted with Defendants Team Transit Mix and its owner Tom Nelson (collectively, "Defendants") to mix colored concrete for the Malibu job. Defendants got the color wrong, and their mistake became obvious [*2]  only after the concrete dried. Plaintiffs then spent approximately $158,000 to tear out the mismatched concrete and to pour new concrete. Winters thereafter terminated Plaintiffs on the Malibu job, as well as the Holocaust Museum job, for failing to "fully pay . . . vendors and laborers on the Project[s]" and for "[w]illfully divert[ing] payments made by [Winters] for the express benefit of [Plaintiffs'] vendors and laborers . . . to other purposes."

Plaintiffs sued Defendants for negligence, and sought their costs of remediation and for $2 million in unspecified "lost prospective economic benefits." When Defendants did not respond to the complaint, Plaintiffs sought a default and default judgment from the court. Plaintiffs submitted documentation in support of a request for $158,605 in reimbursement costs and an additional $529,326.27 in consequential damages. Plaintiffs argued that Winters had been withholding $529,326.27 in profits owed to Plaintiffs on the Malibu and Holocaust Museum jobs; that Plaintiffs lost those profits when Winters terminated them; that Winters' termination was due to Plaintiffs' inability to pay its vendors; and that Plaintiffs were unable to pay those vendors because they were forced to [*3]  spend money fixing Defendants' mistake.

The first judge reviewed Plaintiffs' documentation. That judge's order noted that Plaintiffs' "default package sufficiently prove[d] up the damages sought," but directed Plaintiffs to submit "an accurately calculated proposed judgment."

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2014 Cal. App. Unpub. LEXIS 7111 *

K.G. MULLEN, INC., et al., Plaintiffs and Appellants, v. TEAM TRANSIT MIX, INC., et al., Defendants and Respondents.

Notice: NOT TO BE PUBLISHED IN 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 THE PURPOSES OF RULE 8.1115.

Prior History:  [*1] APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC410282, Suzanne G. Bruguera, Judge.

Disposition: Affirmed.

CORE TERMS

default, vendors, terminated, concrete