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socrateaser
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 38910
Experience:  Retired (mostly)
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CSLB is giving me the option to use their industry expert.

Customer Question

CSLB is giving me the option to use their industry expert. But I have been told by the CSLB investigator that the IE often gives a cost to correct that is below market value. I already have letters from contractors with actual bids to correct. Should I use the IE or just go to arbitration with the contractor letters and bids I already have?
Submitted: 2 years ago.
Category: Business Law
Expert:  socrateaser replied 2 years ago.
Hello, The problem that you face is that the contractor may decide to use the IE. Then, you will have a battle of experts -- and the judge is likely to prefer the IE's report -- especially if you do not have your contractor(s) subpoenaed to appear and testify as witnesses to explain their bids. So, if your bids are very detailed, or you can get a contractor to show up and testify, then you can use the contractor. Otherwise, I would use the IE. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!
Customer: replied 2 years ago.
I think it's unlikely that my contractors will be able to come to the arbitration hearing, but I do have detailed bids from them. I also need to prove that the original contractor's work is faulty. So:Option 1: Bring cost bids and signed letters from my contractors to the hearing to show fault and cost to correct, but no live witness, just paperwork.Option 2: Use IE (who I think will agree work is faulty) but risk that his cost to correct will be less than market value.Which option? Also, what exactly do you mean by a "detailed" bid? What would that include specifically?
Expert:  socrateaser replied 2 years ago.
If I were the arbitrator, I would want to see more than merely a line-item bid. I would want to see an explanation of the problems observed and the reasons why they are unworkmanlike (e.g., the framing violates the California residential building code Section 1-208.B (not an actual code number); or, the stonework has no sealant, so it will quickly stain and/or leak water into the underlayment -- blah, blah, blah). Now, I'm not a construction expert, whereas your arbitrator may be extremely accomplished regarding the relevant codes and requirements of construction work. But, when I go into a court or arbitration, I like to have my case in a condition so that my opponent is painted into a corner, and cannot rebut my arguments or evidence. Many lawyers are very happy to "wing it," and try to argue around the problems in their case. And, some attorneys are very convincing. I'm not that kind of attorney -- so, I want the paperwork to be rock-solid. So, if you're bids are simply line item and fairly simple statements of how the work will be done, then I believe you may be setting yourself up to lose, and that you would be better off winning with the IE, and getting less, than using your bids and potentially losing, or getting even less than you would from the IE's report. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!
Customer: replied 2 years ago.
Am I right in thinking that I need to prove two things:1. faulty workmanship
2. cost to correct damagesIf so, would a written opinion by my contractor be accepted as evidence for both #1 and #2?Or is there something else I need to prove as well to win?Also, can I ask for other financial damages during CSLB arbitration (e.g., lost work time, pain/suffering) suffered as a result of the contractor's violation of the B&P Code?
Expert:  socrateaser replied 2 years ago.
Is this a voluntary or mandatory arbitration procedure?
Customer: replied 2 years ago.
mandatory
Expert:  socrateaser replied 2 years ago.
Okay, here's the deal. I've checked the Bus. & Prof. Code and it appears that there are several different claims that CSLB arbitration can resolve. I can't tell you what you need to prove in order to prevail without reviewing your complaint to the CSLB, and any referral or findings by the investigator who referred the matter to arbitration. If I were to tell you that what you have described is sufficient to prove your case, and it turns out that my answer is too general, then you're going to blame me for losing the case. I can review your claims offline and help you prepare the case, but I will have to charge you customary rates, because it could take several hours to evaluate your claims. Since you're here at Justanswer, I assume that's not on your menu -- because customers who come here are looking for the "screamin' deal" on legal advice. Unfortunately, a competent answer to your question is simply impossible to answer in this forum. It's a lot of work and it's what lawyers get paid to do. So, I'll have to pass on your first question, unless you want to take the matter offline and enter into a formal attorney-client relationship. Concerning your question re damages, there are no punitive damages on a breach of contract claim -- not in arbitration, and not in Superior Court -- or in any other court in the USA. Pain and suffering is also outside the scope of any claim where there is no physical impact caused by the defendant upon plaintiff. I assume you haven't been physically injured, so the aforementioned claims are unavailable. Lost wages or profits, (i.e., "consequential damages" which can be traced to the contractor's conduct) is recoverable. However, your time required to prepare and appear to prosecute your case is not recoverable, because that amounts to attorney's fees, and you're not an attorney, so such fees cannot be awarded. Out of pocket costs can be awarded (copying, printing, clerical, filing fees, etc.) are recoverable. Expert witness fees are not recoverable. The cost to remedy the contractor's defective workmanship (general damages for the breach of contract) is, of course, the principal recovery available to you. If you are claiming that the contractor committed a fraud (false statement of fact intended to induce detrimental and justifiable reliance), then you are in the wrong forum, because fraud permits punitive damages, and only the Superior Court can make that type of award. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!
Customer: replied 2 years ago.
sorry for the delay. my internet access was out for several days. regarding your point about consequential damages, can i include my lost profit or wages for the time i had to spend getting his work corrected? that is, meeting with contractors, getting bids, scheduling work, etc? (not the same thing as preparing my case...)
Expert:  socrateaser replied 2 years ago.
A Justanswer Q&A session is intended to provide a general answer to a finite question. You appear to be seeking ongoing assistance. To that end, I will send you an additional services offer, and we can take this matter offline. You may accept or decline the offer at your convenience. Thanks again for using Justanswer!
Customer: replied 2 years ago.
perhaps you are misunderstanding my request. i'm asking for clarification on your answer, as i was invited to do. i also specified the highest level of detail in my initial request.
Expert:  socrateaser replied 2 years ago.
My impression is that you need a lot of assistance, so I was trying to offer it to you, because I have a legal duty to try to formalize the relationship, if it appears that a Q&A session is evolving into an attorney-client relationship. I realize that you may believe that I'm trying to generate "mo money," but that's not why I made the offer. That said, the answer to your question is that you cannot get paid for your time, whether in preparing your case or otherwise. You can get paid for losses (profits, wages, out-of-pocket expenses, property damage, etc.). But, paying for your time represents attorney's fees, and since you're not an attorney, you cannot receive fees as an award.California law is unequivocal on this issue. Interestingly, not even an attorney can receive attorney's fees, or other compensation for his/her time from the court, related to a legal matter, unless the attorney is representing a client other than him/herself. If the attorney is representing him/herself, then no attorney's fees are permitted. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!
Customer: replied 2 years ago.
thanks. one last point of clarification: my time is effectively the same as lost wages. i had to spend time getting the work fixed instead of doing my work (which is hourly). what do i need to bring to arbitration to prove (as best as possible) loss of profits/wages?
Expert:  socrateaser replied 2 years ago.
You would have to show that as a result of your dealing with the case, you actually lost revenue that you would have received under an existing contract. Example: You routinely contract with a materials outlet (e.g., Home Depot; Lowes) to install flooring. You regularly earn ("net" after expenses) $5,000 per month based on the contracts (the $5,000 is your average monthly net earnings over the last 12 months). During July, you earned only $2,500, which is $1,250 less than you earned during any of the previous 12 months. Evidence of all of the above (invoices, bank statements, P&L statement) prove your assertion. You argue that you should be paid $2,500 in lost profits, because your earnings were below average. Defendant argues that you have no more than $1,250 in lost profits, because there is no way to determine if the next 12 months will have a lower average than the previous 12 months. The judge splits the difference, and awards you $1,875 in lost profits. There are enumerable ways to make this argument, dependent upon the unique facts of your case. If you want me to try to make your case, rather than a generalized example, I can only do this lawfully as part of a formal legal services agreement. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using Justanswer!