Legal Question in Construction Law in California

reposted from Oct 1.

In 2007 I hired a contractor, licensed in California, to build a small pond at our Sunnyvale home. The contractor specified all materials, hired labor and did all work associated with the pond. Approximately a year after the pond was built (could have been after a year), the painted-on liner/barrier of the pond began to peel. After repeated attempts to get the contractor to fix the problem, I blogged the problem on a popular koi site. The manufacturer of the film has responded in private emails to me as well as public postings to this site that the contractor did not apply the material to the mfg specification; the contractor denies this. The contractor has since reapplied the film (this time the process looked much more thorough since the contractor used a detection method to ensure the base material had the appropriate pH before painting. The contractor asked me to reimrurse him (no written contract was provided for this work) for over $1000. I have refused to pay since the original film was incorrectly applied and failed due to defective workmanship. From a legal perspective, am I obligated to pay for incorrectly applied material, eventhough my contractor claims his responsibility ends after a year?.


Asked on 10/14/09, 1:21 pm

2 Answers from Attorneys
Benjamin Berger Berger-Harrison, A Professional Corporation

Unless there was a written agreement in 2007 in which you agreed to limit his liability and/or shorten the statute of limitations, do not pay him. Even if there was such a contract, it is likely that your claims were still valid.

If you ask him to provide you with a thorough written explanation as to why he was no longer responsible after one year, he won't be able to do it. That may make it less adversarial.

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Answered on 10/14/09, 1:35 pm

Further to Mr. Berger's answer: it is a breach of contract to fail to perform construction work correctly. You have four years to make that claim against the contractor, and the contractor has the right to repair or pay damages. He chose to repair his work. So unless, as Mr. Berger says, there is a written agreement limiting the time the film was supposed to be good, you don't owe the contractor.

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Answered on 10/14/09, 2:53 pm


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