By Daily Press staff
Sometimes a judge just shrugs and splits the difference. After small claims Commissioner Roberta Kyman heard a particularly contentious case involving a pool contractor and an excavator last week, she announced she “would make both sides unhappy” by splitting the amount in dispute.
She awarded half of it, potentially miffing both sides, who’d already appeared relatively immovable by the prospect of settling.
Kyman really didn’t have much on which to base her decision except her notation that both sides had handled themselves unprofessionally and should bear equal responsibility. The evidence in the case was complex and conflicting.
Margarita Plascencia, whose outfit, Building Consensus, digs dirt, ended up billing Bill Rigdon and Carmen Olson almost twice the amount of her $2,300 estimate for excavating for a new pool at a Pacific Palisades home. Plascencia said that Rigdon and Olson, who operate J&M Pool Contractors, left her with a work project more complicated than the one for which she’d bid.
Plascencia sent a contract to Rigdon and Olson outlining her terms, but they did-n’t sign it before she began work last September. But she’d telephoned Rigdon advising him of the additional work — a call which both sides admit was a bit scrambled by his cell phone reception.
“He said it was OK, just go ahead. He said they always paid their bills, and not to worry about it,” Plascencia told Commissioner Kyman, while noting that his cell phone kept “breaking up.”
But Rigdon said the phone call was about digging for a fountain, and had nothing to do with the pool job. The fountain job was left unfinished, both sides agreed. But Plascencia sent Rigdon and Olson a bill for $4,480. The defendants refused to pay it, noting that they’d never approved a change order, which is always done in writing.
Rigdon and Olson blamed themselves for failing to negotiate the contract and get the change orders in writing, but blamed Plascencia for not clearly communicating the cost and purpose of additional work. They said if they’d known the job was going to result in a cost overrun of 95 percent, they’d have used a different excavator.
Kyman blamed them all. Both sides were negligent, Kyman found, admonishing them particularly since both were professional contractors. She found they should have taken particular care to get their agreement in writing.
Then she split the $2,180 in dispute down the middle, awarding only half of it to Plascencia. Kyman noted there were few other logical ways to judge a case in which both sides bore some responsibility.
Originally published in the Santa Monica Daily Press print edition on March 3, 2003. Read the original PDF.