Legal Question in Construction Law in California

fraud and theft

I am building a custom home. The general contractor ordered the windows for the house and some of them did not fit. He ordred additional windows (18) to replace the ones which did not fit. The windows did not fit because of errors in the plans that were drawn by the draftsman that he brought us to. The bill from the draftsman has the general contractor's name and the draftsman's name on it.

We were charged for the original set of windows (18 of which were the incorrect size) and the 18 replacement windows. The builder was issued a check by the bank in error. He never advised me of the problem. I identified the problem 2 months after the fact, while reviewing the invoices. Does this represent grand theft and fraud? The windows that were the incorrect size have not been returned to the supplier for a refund. The window supplier indicated to me in writing that my contractor was going to use the windows in another project.


Asked on 5/03/02, 6:07 pm

2 Answers from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: fraud and theft

I can't tell whether all the elements of either fraud or theft are present, but you certainly have a case against someone for negligence.

The question of theft depends upon the defendant having the requisite criminal intent, i.e. to deprive you of your property permanently and unlawfully. If only negligence is involved, no crime. By the way, the term 'theft' now generally includes larceny, embezzlement and taking by false pretenses. Only the people (acting through a district attorney) can prosecute a crime such as theft, although victims may be entitled to restitution from a convicted criminal.

Civil fraud also requires an intent to deceive, actual deception of the victim, facts showing that the victim's reliance on the deception was not unreasonable in the circumstances, and actual damages in consequence thereof. In some cases where the defendant had a duty to the deceived party, the deception need not be intentional; a negligent failure to inform the injured party is sufficient. See Civil Code sections 1572 and 1573 defining actual and constructive fraud. See also Civil Code sections 1709 and 1710 on deceit.

Who is responsible for the bank's error?

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Answered on 5/03/02, 7:15 pm
D. Alexander Floum, Esq.

Re: fraud and theft

You have a potential lawsuit for fraud, conversion, breach of contract, negligence and "common counts".

Theft is a criminal term (only the D.A. can bring a lawsuit for theft), so not relevant for your recovery of money.

You should hire an attorney to write a letter demanding full repayment. If the general contractor/builder don't pay, you should then file a lawsuit.

NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication

without first presenting ALL relevant details to a competent attorney in your jurisdiction

and then receiving the attorney�s individualized advice for you.

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Answered on 5/03/02, 7:23 pm


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