December 29, 2025  • By Dennis Beaver

There is an age when self-doubt — questioning our decisions, seeking approval of family and trusted friends for our choices — can prevent us from becoming victims of financial abuse, consumer fraud or even ourselves.

Like three-quarters of Americans over the age of 50, “Walter” and “Patty,” both in their late 70s, decided to “age in place” — remaining in the home they had lived in for many years, where they’ve formed friendships, have good neighbors and access to health care resources and much more.

Patty deals with severe mobility and dexterity challenges that require their primary bathroom to be remodeled. Watching a local television commercial for a company I will call Nightmare Bathroom Remodeling set the stage for the kind of financial elder abuse and consumer fraud we often see on the news.

If, before ever contacting Nightmare, they had read the negative Yelp reviews — which far outnumber the positive ones — I doubt you would be reading this story.

There were giant red flags

Walter described the first red flag they saw, though they didn’t grasp its significance at the time:

“We visited their showroom on July 22, 2025, to discuss bathroom renovations and met with the owner, ‘Bill,’ who gave us a rough estimate of $90,000. We gave him a retainer fee of $3,000. No contract was signed.”

In California, a home improvement contractor can charge only 10% of the contract price to a maximum of $1,000 as a down payment. Contracts over $500 must be in writing and signed before any money is accepted from the customer.

Violations can result in criminal charges and disciplinary action by the Contractors State License Board in California.

Other states have specific limits on the maximum down payment a contractor can charge. Some set a percentage, while a combination of a percentage and a dollar amount is used in others. To find information for your state, you can check out this website provided by Angi.

That $3,000 down payment clearly violated the law in California. It is Nightmare’s MO. But wait, it gets worse.

Additional huge deposit paid, though no work done or materials delivered

On September 12, 2025, the couple met with customer service rep “Ima” (as in I’m a Thief) and signed a $120,000 contract.

Three weeks later, Nightmare illegally had them pay an additional $90,000. No work on the job had been started, no materials had been delivered, and nothing justified this payment.

Additionally, Nightmare failed, in virtually all respects, to comply with the terms and specifications that must be in a home improvement contract.

And then a shocking call from their bank

Near the end of October 2025, Walter was informed by their bank that multiple charges had been made from their checking account, and Ima had set up an autopay arrangement for health insurance and dental insurance premiums. She had forged Walter’s signature on counterfeit checks.

“I called Ima about it,” Walter said. “She first claimed to have no idea what I was talking about, then she emailed to tell me not to contact her boss — because she needed the job, as she was a single mother with a son.”

The bank replaced the money Ima had stolen from their account.

Angry and disappointed, Walter reached out to friend and neighbor Mark Novak, professor of sociology at California State University, Bakersfield. Novak referred him to me. (Readers might remember meeting Novak in my 2019 Kiplinger article Needing to Hire? Think Wrinkles.)

Walter asked Novak if he should inform Ima’s employer, and Novak felt that he should — to at least protect other customers. Walter did and then was surprised to learn that Ima remained employed at Nightmare.

I tried to reach Nightmare’s owner, but he refused to take my call.

The couple needed to cut ties with this crooked company, but what came next made me worry about their reasoning and decision-making abilities.

Self-doubt can be your greatest friend

Walter emailed me right before Thanksgiving: “Thanks for your advice, but we are continuing to work with Nightmare.”

I replied, “Folks, the fact that an employee forged your signature on counterfeit checks should have scared the pants off of you, and had I been notified at the time, I would have personally helped you file a criminal complaint with the police. I urge that you immediately demand a refund of what they illegally charged you. …

“I have learned over the years that if we have close, responsible family members and friends, major financial/life decisions we make when we get older should be discussed with them. We should get their opinions and ask them to review contracts or anything that puts our money or well-being at risk. And, most of all, we should never feel embarrassed.

“Your decision to remain with this company deeply worries me. This is the time for self-doubt! Am I missing something? Maybe. Let’s discuss this with our kids, accountant or family lawyer — someone whose advice we trust — before we do something that could wind up hurting us.

“Please show this email to your most responsible children. Have them call me to get a referral to an elder law attorney. Yes, you need to do that. And when you are near my office, please drop in. I’d love to meet you both in person.”

My next column will cover why a consultation with an elder law attorney can be the best investment children of aging parents can make.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post As We Age, Embracing Our Own Self-Doubt Can Be a Gift: A Cautionary Tale About Elder Financial Abuse appeared first on Dennis Beaver.

If you are in a line of work that requires a written contract — such as painting and wall coverings, flooring or remodeling — today’s story will help keep you out of hot water.

Let’s talk about contracts. On any reality television courtroom show, such as Judge Judy, we’ve all heard, “No matter what you thought, expected or were promised, if it’s not in the contract, it’s not there.”

The reason is that courts have to rely on what’s written and cannot consider oral evidence that varies from its terms, with few exceptions.

Lawyers often hear, “‘Well, I assumed that we would have this, or they should have known that.'”

Making assumptions about what a customer would know, understand and find acceptable, combined with failing to describe the actual appearance of $30,000 in reclaimed wood flooring, is the basis of our story.

Loved hardwood floors

“Martha” and her husband of 60 years, “Thomas,” loved the appearance and feel of their Douglas fir floors in the kitchen and family room of the house where they had lived for over 50 years. Like the couple, the Douglas fir had aged beautifully.

One weekend when they were out of town, a water pipe in the wall behind their kitchen cabinets began leaking, flooding the house.

Martha hired a restoration company to oversee the replacement of the floor. The owner, “Santos,” told me, “Dennis, if it had just been a few hours, we would have had a chance to save the flooring, but it only takes 24 hours for warping damage to become permanent, requiring replacement.”

He added, “(Martha and Thomas’) insurance company could not have been nicer to them, immediately approving replacement of all wood floors in the entire house. We seldom hear about the good things claims adjusters do.

“Here, she could have denied coverage on the basis that it was a slow leak that went on for days and was therefore not covered. Instead, she helped this couple.”

But that left a question: What kind of wood floors? Reclaimed or distressed wood?

Reclaimed wood is often the most pleasing choice

Reclaimed (salvaged) Douglas fir ideally would be used to replace what had been destroyed. That is any wood that has served its original purpose — for example, old buildings, barns, factories, bowling alleys, gym floors and fences.

Reclaimed hardwood flooring has an aged and worn look that is pleasantly warm with a rich patina. Typically, it has developed a unique character, durability and was often sourced from old-growth trees over a century ago.

Also, it can be far more stable than newly harvested lumber that is “distressed” and artificially made to resemble old wood.

Drawbacks of reclaimed wood

I phoned reclaimed wood dealers across the country and asked, “What are some of the drawbacks, if any, of using salvaged wood for kitchen and family room floors?”

They listed these imperfections that could render the flooring unacceptable:

• Nails and staples, which could cause cuts, scrapes and the risk of a tetanus infection

• Termites, which could spread an infestation to the entire home

• Mold and mildew could expose the family to harmful spores

There also could be knot and bolt holes. Every dealer I talked to cautioned that, while there is no one standard, bolt and knot holes greater than one-quarter inch in diameter that go completely through a plank can be a structural weakness, especially if there are too many, if they’re in high-traffic areas or if they’re near cracks.

They can also pose a tripping hazard.

One dealer said that consumers need to make sure that they see photos of the actual planks they’re buying so they know what they are getting.

The contract

Floor-Co (not the actual name of the company) submitted a proposal to Santos to do the replacement, which Santos accepted and then let Floor-Co do their thing, which is standard operating procedure.

Now, picture yourself as the owner of Floor-Co. Your customers are in their 80s. You install the flooring. Weeks later, a guest trips and falls when the heel of their shoe catches on a large hole in the flooring and suffers a hip fracture.

Is your company at risk of being sued because of the hole the guest tripped over?

You bet!

So, wouldn’t it make sense to state, right in the contract, “Customer is aware and understands this reclaimed wood flooring has multiple knot and bolt holes over one-quarter inch in diameter, which create a stability risk and danger of tripping and falling.”

But that requires something that is always in short supply: common sense in taking the time to alert your customer to a risk with your product.

Floor-Co’s contract stated: “Reclaimed Douglas fir stained and custom-finished to match as close as possible control sample of existing floor.” There was no mention of or any photos shown to the customers of what turned out to be a wooden Swiss cheese of bolt holes, some well over half an inch in diameter.

“We assumed they knew what ‘reclaimed wood’ meant,” Floor-Co’s angry owner told me after Santos refused to pay for the wood.

Before installation, Floor-Co never showed the material or photos to either the homeowners or Santos, and that wasn’t required according to the contract.

I saw photos and a video of the flooring. It scared me. Holes everywhere — big holes — just waiting to catch someone’s toe or shoe. No one in their right mind would ever accept such flooring material. And Martha and Thomas are not cognitively impaired.

“Can you imagine their grandchildren walking barefoot, and one of them gets their toe caught in a hole? Bad fall and loses a toe!” Santos said, “They never even told us when the installation was planned! They just did it over a couple of days. The couple ordered us to remove it when Floor-Co refused.”

Customer’s right to reject the installation

Since the contract did not disclose the presence, size or frequency of bolt holes, the flooring would likely be considered “nonconforming goods” under the Uniform Commercial Code (UCC), allowing the buyer to reject goods that do not conform in any way.

Floor-Co expects to be paid. Santos and the couple refuse but are agreeable to the installation of distressed wood, or safe reclaimed wood. Thus far, Floor-Co has refused.

Luckier than they realize

Karl Susman, a Southern California insurance broker and expert witness in insurance coverage cases (and also a Kiplinger.com contributor), said, “Floor-Co made the classic mistake of assuming their customers knew the reclaimed wood could have all of these defects, yet they failed to show them photos of what was about to be installed.

“That negligence could wind up biting Floor-Co on the nose if someone got hurt. Instead of complaining, they should thank Santos and the couple for saving their bacon,” because since the floor has been removed, no one else is at risk of being injured in a fall.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post This Is Why Judge Judy Says Details Are Important in Contracts: This Contract Had Holes appeared first on Dennis Beaver.

“Mr. Beaver, my wife and I are very active 85-year-old semiretired architects. We are still running our own business, but on a greatly reduced basis. We have no full-time employees. Once in a while, if we have to be out of town or if one of us is ill, I will have a former employee come in to answer the phone. Other than that, it is just the two of us.

“I believe that we should still have workers’ compensation insurance in the event that the part-time employee somehow gets hurt or is in an auto accident driving to our office, but my wife says that it is a waste of money. The insurance would cost about $700 a year. I’ve read your column for years, and you always say, ‘Happy wife, happy life,’ so who’s right? Thanks, ‘Walter’ and ‘Rosemary.’”

Who needs workers’ comp insurance? Three basic questions

I ran the following questions by labor and employment attorneys Jay Rosenlieb and Jerry W. Pearson with Southern California-based KDG Law.

• Who needs workers’ compensation insurance?

• Who doesn’t?

• Should you consider having it even if you do not have any employees right now?

Here’s what they said.

Pearson: In all states, workers’ compensation (WC) insurance is generally mandatory, with the exception of Texas, where an employer can opt out.

However, and this varies by state, if your only employees are immediate family members — defined as spouse and children — WC might not be required. Therefore, if in doubt, absolutely speak with an employment lawyer to obtain an accurate answer.

In the situation your readers describe — someone working in the office on occasion — WC is required in most states. If the employer does not have coverage, the penalties are significant.

Rosenlieb: The reality is that the older we are, sometimes things happen, and one of the couple could be hospitalized for a few days. So, by covering for them — even for a few hours — there is now an employer/employee relationship, and WC should be considered as obligatory.

If you need WC and do not have it, in many states, this is a crime and can lead to a jail sentence, in addition to heavy fines.

What if my employees are independent contractors?

I had a client who was engaging in work requiring a general contractor’s license — that he did not have — and over my warning that he was flirting with jail time, he boasted, “I save a lot on taxes and WC by classifying everyone as independent contractors.”

He said they signed an agreement stating that they were an independent contractor (IC) and agreeing that they were responsible for their own taxes and deductions. (You can read more about his situation in my article How to Spot a Contractor Who’s Not Playing by the Rules.)

Pearson: It doesn’t matter what you agree on. Merely classifying someone as an IC regardless of how the law views what he does and his relationship with the employer is not determinative.

While the federal test for IC status is fairly broad and looks at the right to control how the work is performed, several states — including California — have adopted the strict “ABC test.”

Rosenlieb: Under these ABC tests, the worker must have the right to control how the work is done. The work accomplished is outside the usual course of the company’s business, and the worker is customarily engaged in an independently established trade of the same nature as that involved in the work performed.

So, in a nutshell, if the person does the same kind of work as the company, merely calling them an IC is meaningless.

As it is an elements test, failure to satisfy any one of the elements means that the worker does not qualify as an IC.

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It is important to stress that the business and the worker cannot simply decide between themselves that the worker is going to be an IC.

Penalties for failing to have WC

I asked Pearson and Rosenlieb to describe the penalties if an employer does not carry workers’ compensation insurance.

Pearson: The penalties for employers who fail to provide WC coverage are substantial and can include:

A stop order issued by, for example, a state’s labor commissioner, halting all business operations until WC is obtained.

Fines and imprisonment, as operating a business without WC is considered a criminal offense in most states — this means large fines and potential jail time. Additionally, each day without WC can incur fines that accumulate over time.

Rosenlieb: Other consequences can include:

Personal liability. Employers without WC are personally liable for any costs related to workplace injuries or illnesses that occur during the period of noncompliance. This includes medical treatment, loss of income and other damages that would otherwise be covered by a WC insurance policy. Also, the employer is open to being sued civilly.
Damage to business reputation. When word gets out that a certain business owner failed to carry WC, damage to their reputation for being trustworthy spreads, creating long-lasting negative consequences among possible employees and the general public.

There’s a moral aspect, too

Both attorneys stressed that having workers’ compensation insurance is a moral duty to your employees.

“After all,” Rosenlieb said, “these are the people who generate income for your business. If they are hurt on the job, then basic morality requires you to help care for them.”

“Also,” Pearson notes, “you owe this duty to yourself, your family and all those who depend on you, to do the right thing, and that means having this important insurance.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post The High Price of Skipping Workers’ Comp Insurance appeared first on Dennis Beaver.

Anyone who has ever played Monopoly is familiar with those two sentences, which mean: You’ve been caught. There is no appeal. You are not wiggling out this time. Accept your punishment.

While Monopoly is considered primarily a game of chance with zero consequences in the real world, contracting without a license is not so benign, as “Ricky” would discover.

Worked Together

He was hired right out of high school by “Antonio” in his electrical and general contracting business, as an apprentice. “He is very likeable and he got us a lot of business,” Antonio said.

They worked well together for years. “Looking forward to the time that Ricky would go out on his own, I helped prepare him to run his own business, getting him enrolled in an electrician training school that led to obtaining his license.

I stressed the importance of having liability and workers compensation insurance for employees, deducting taxes, Social Security, how to write a contract that complies with state law, and to never take on a job that you are not licensed for. A zoom meeting with my office was arranged where we went over the same important legal requirements, and consequences for violating the law.

However, before Ricky joined the session, Antonio admitted that he was worried.

“He and his wife have three children. I have a feeling that he is in too much of a hurry to make money and that can lead to bad things.”

General Contracting by Ricky

Shortly after Antonio retired, Ricky opened his own shop. However, being licensed as an electrician did not stop him from holding himself out as a general contractor.

He ran ads in newspapers and online, falsely claiming to be a licensed general contractor, bonded, insured, that his employees had workers compensation insurance, and that he had 5 star ratings. Ricky hired employees, and as he made a good impression, became very busy, very fast, sending his people out on jobs in uninsured company vehicles. Not only did he lack the proper licenses for most of the work he took on, but his contracts failed to meet state law requirements.

It all worked beautifully until the Contractor’s License Board ran a sting. Ricky was arrested, charged with misdemeanors for contracting without a license, in addition to false and misleading advertising.

Penalties vary by state, and often include six months in jail, a $5,000 fine, as well as an administrative charge up to $15,000. False advertising could include fines into the thousands of dollars.

Later I would hear from his customers – many of whom fully paid for jobs that were never completed which could be seen as criminal fraud.

Our Brief Conversation

“I have three kids. I don’t want a misdemeanor on my record. I need you to represent me.” He was calling from home and had just been released from jail.

“We talked about all of this, remember? Both Antonio and I went over all of these things, Do You Remember? I warned that you can lose much of what you hold dear, Remember? “People who willfully refuse to follow my advice are not welcome as clients. Call someone else.”

Red Flags When Looking to Hire a Contractor

Surprisingly, not all states require contractors to be licensed – 17 do not in 2024, but there may be local, county licensing requirements. Here are some red flags to watch out for when hiring a contractor for a substantial job:

“I’ll be over in an hour.” Most legit–and busy–contractors are booked for several days and possibly weeks. Someone quickly available should raise questions in your mind.

“I only accept cash payments but can give you a better price that way.” This is how they can avoid paying tax, but without a cancelled check or credit card statement as support, it is your word against theirs in any dispute.

“My truck is my office.” “You don’t need to see my insurance certificates.” No office with an actual address? Forget this person, for if things go south, how are you going to find them?

No written contract, just a handshake: Forget it!

Uninsured contractors are trouble. Take a photo of the insurance certificate or card from their insurance company listing the policy number, agent, expiration date, and driver’s license before signing their contract. If they can’t produce those things or refuse, its bye bye time!

Questions to Ask Potential Contractors

How long have you been in business? Please show me your contractor license. Are permits required for this project? Will you obtain them? How long will this take? What are the payment terms and schedule? (Should be spelled out in the contract.) Show me a cost breakdown of labor and materials. Will you be using sub-contractors? If so, provide their names, addresses, telephone numbers, insurance information, a photo of their driver’s license.

Finally, go slow. Get several bids. Check references but beware of glowing reviews.

Keep your fingers crossed!

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Do not pass ‘Go’, do not collect $200 appeared first on Dennis Beaver.

For a trainee in the general contracting trades, having the benefit of a wise and experienced employer is not always a given, but 25 year-old Mike was fortunate, as he was taken under the wing of 55 year-old Eric, who holds several California licenses.

“Just give me your word that you will show up on-time, pay attention, and you will be the beneficiary of my adult working life as a general contractor and electrician. When you leave me, you will be able to go out on your own and establish your own successful business,” Eric said.

They shook hands, and for the next two years Mike “proved to be my best trainee and then full-time employee ever,” Eric told me.

Then it was time for him to leave the nest, go out on his own and establish his own little company, which he called, “Mike’s” General Contracting and Electrical.”

During those years, they were the most reliable jack of all trades people who did a myriad of small jobs for our office and home.

Hired Family to Work as Independent Contractors

Mike’s business flourished and he dropped by our office recently. “I am so busy and have enough work to hire most of my family members,” he said, adding, “I’ve made them independent contractors, to avoid all the messy paperwork otherwise required.”

“Messy paperwork? Wait a minute. Do they report to your office every day at a fixed time and then are sent out on jobs?” He said, “Of course!”

Next: “Do you provide them with tools or whatever is needed to do the jobs they are assigned?”

Yes.

“Have you got workers compensation insurance for them?”

Only for myself.

“What about obligatory deductions from their paychecks? That’s what is required of an employer,” I replied.

“Look, Mr. Beaver, why can’t I just call them independent contractors — that’s what they want so more money in their paychecks? They even signed an agreement stating they are independent contractors and are responsible for their own taxes. What’s wrong with that?”

Lawyers want to have good thoughts about their friends and clients, but right then I was so disappointed. Clearly, Mike knew what he should have been doing. This father of a 3 year-old had a lot to lose.

No Doubt as to the Trouble He Faces

I asked a friend of this column, Southern California labor lawyer Jay Rosenlieb, “Just how much trouble is Mike facing?”

“He is risking the potential loss of his business, and huge penalties from state and federal taxing agencies. Merely saying, ‘You are an independent contractor,’ does not make you one.

“The IRS has a ‘right-to-control’ test that is used to determine whether an individual is an employee or an independent contractor – and most states follow this test. But there are other tests used by numbers of state and federal agencies to determine if someone truly is an independent contractor.”

California is even more restrictive, with its use of the “A-B-C” test that determines if you are an employee.

“When you are told to report to work daily and sent out on jobs by the employer, furnished with what is needed to do the job, you are an employee.

“When a company contracts with an independent contractor, they inform the person of the scope of work, but has no control over how the contractor achieves the desired result. The contractor may use their own materials and have expenses that aren’t reimbursed.

“Mike is like so many employers who knowingly misclassify employees as independent contractors to avoid:

— The employer’s share of Social Security and Medicare taxes;

— Employee benefits, such as overtime pay, holiday and sick pay;

— Unemployment insurance tax and workers’ compensation insurance.

What could it Cost Him?

Jay made it clear that he has seen countless cases where the employees – people just like Mike’s family – are “happy to be to be classified as independent contractors, because it does, at first, mean more money in their paycheck, as all those “nasty deductions” aren’t taken out.

“But if found out, the government would expect to be paid what the employee should have paid through proper payroll deductions in the first place.”

And, just as I told Mike during our office chat, Jay notes that, “The employer’s world turns upside down when a worker — who has been misclassified as an independent contractor – files for unemployment benefits and is disqualified as no record of payments to EDD can be found, or is injured on the job and tries to file a workers’ compensation claim.

“Generally, then, the state Uninsured Employees Trust will pay for medical care, and then come after the employer for reimbursement.

“What he is risking can easily run into the thousands to hundreds of thousands of dollars, including the very real possibility of being criminally prosecuted,” Jay underscores.

For the Love of Money

I phoned Eric to urge that he talk some sense into Mike before things go south.

“Dennis, I have had this conversation with him several times. I am saddened and so worried, because sooner or later someone is going to get hurt on the job, and then all that he holds dear – his wife, child, and respect from the community – will come crashing down. And all for a few dollars more!”

The moral to this story is that anyone going into business needs to consult an accountant, a business lawyer, and follow their advice. What it will cost is money well spent.

The post Recipe for failure: Love money, refuse to follow sound advice appeared first on Dennis Beaver.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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If a plumber is hired to fix a leaky bathtub faucet but is unable to completely stop the leak without very significant expense to the homeowner, does he still have the right to be paid for his time and effort in trying? That was the interesting question that “Art” emailed.

“I was hired by an elderly couple to repair a leaky bathtub faucet in their 60-year-old house. The couple’s handyman who referred them, explained this was not going to be an easy job. He said the homeowners are aware that you might not be able to fix the leak without them spending a great deal of money.

“There are many reasons why a faucet will leak, but the most difficult to repair is a corroded valve seat. Water sediments create corrosion, which leads to leakage around the spout area. Often, over-tightening the faucet when turning it off damages the washer that protects the valve. A bad washer will let in enough water to cut a channel through the valve seat and you wind up with a leak.

“So, I needed to replace the valve seat, but there was so much corrosion, and evidence that some other plumber tried to remove it and stripped the threads. No matter what I tried, it would not budge.

“I made three trips to the home, even purchased a special tool, without success. The only other remedy would have been to tear into the wall, damaging tiles, and re-plumbing the tub and shower. That would have been very, very costly.

“However, I succeeded in reducing the leak by at least 90% which will result in saving water. Am I entitled to some compensation for the time and effort that I spent which, while not 100% effective, did result in a significant benefit to the homeowner?

“I believe they will agree to pay me something, but how much is the question?”

A law professor’s opinion

I ran Art’s question by a friend of this column, Loyola University (Los Angeles) School of Law contracts professor Bryan Hull, who offered his analysis of “what would make for an interesting final exam or bar exam question.”

“There are two ways of looking at this. First, a contract with a plumber to fix something is a service contract — like one would have with a lawyer or a doctor — and results are not necessarily guaranteed.

“It could be, however, that the plumber agreed to stop the leak, meaning that he was essentially guaranteeing he would fix it before being paid. Whatever he spends on tools is part of his business expenses and the homeowners wouldn’t be responsible for that unless they agreed to pay.

“Some repair people charge a fee just to come out and look at a problem and then a further price is negotiated to fix it. Under those circumstances, I wouldn’t expect to pay anything more than the estimate and I wouldn’t pay any more than that unless the problem was fixed.

“But in this situation where going in everyone was aware of major problems and where the leak isn’t fixed, I think the plumber is entitled to a reasonable amount for coming out and trying to fix it.”

Did the plumber perform?

It seemed clear that Art had not guaranteed fixing the leak, but in good faith, would attempt to. Had he said, “If I can’t fix it, you don’t owe me a cent,” Professor Hull believes. “If he assumed the risk of not being able to repair it, and did not, he wouldn’t be owed anything. But what we have is something different, what the law calls substantial performance:

“1. Art made a good faith attempt at performance.

“2. Given that completely stopping the leak wasn’t practical or cost effective, he did not materially breach his agreement. He substantially performed, greatly reducing the leak.”

Don’t forget basic morality

“The law does not like to see people taken advantage of,” Hull points out. “If the homeowners realize the plumber did the best that he could under the circumstances, basic morality should lead them to compensate him in some way for the reasonable value of his services.

“This might be what he normally charges per hour — whether or not he is legally entitled to be paid. From a practical perspective, treating Art decently will assure that the next time they need a plumber, he will go the extra mile to help them, and maybe, cut them a discount. Or perhaps give a good deal to people referred by the homeowners.

“We must never forget to ask, ‘What is the right thing, the fair thing to do?’ ” Hull underscores.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Danny” purchased an older home from a couple who fell in love with the game of shuffleboard from the many cruises they took over the years. In fact, they were so enthusiastic about shuffleboard that they had a court built in their back yard.

If you’ve never seen one, a regulation shuffleboard court takes up a lot of space. Typically, it is a slab of concrete at least 52-feet long, 10-feet wide and from 3 to 4 inches deep. Stencils are used to apply the game lines.

Danny’s family never played shuffleboard, and over the years as the game lines faded, the concrete became discolored. He jokingly referred to it as “A landing strip for Martians.” Interestingly, this large concrete slab had no cracks, no cracks at all – a telltale sign of trouble ahead went un-noticed.

“As no Martians ever landed,” he said with a broad smile, “we decided it was time to remove what had become a concrete eyesore.” A $600 bid was obtained from licensed contractor “Mario,” who inspected the slab before submitting the bid. Danny had worked with him before and was always impressed with his ethics, competence and honesty.

No Small Task Removing Concrete

Removing concrete that has not been reinforced only requires a shovel, a 12 to 20 pound sledgehammer, wheelbarrow, hearing, dust and eye protection.   However, reinforced concrete is different sort of animal and you need a jack hammer, electric saw and other tools, raising the cost significantly.

Both Danny and Mario were under the impression this was a simple job. The possibility of it being reinforced was never even considered even though the absence of cracks was an indication of how the slab was built.
 
The Job Begins

“What is this?” Mario yelled after trying to break up the concrete with his sledgehammer.

“It doesn’t budge! I don’t get it!”

The explanation would quickly become clear.  After digging around the slab, he discovered that the shuffleboard court could sail through a major earthquake or resist major ground settling. It was over 6 inches deep and incorporated 3/8th inch diameter #3 re-bar.

For Mario to complete the job would require many more hours, renting concrete-breaking equipment, and he would wind up losing a great deal of money, all because he was mistaken about how the shuffleboard court was constructed.

But Mario is a deeply religious and told Danny, “I am a man of my word and must honor the price quoted.” Danny said, “No, we both made a mistake and it would be unfair to hold you to your bid. Just finish the job and give me a revised bill.”

Who is right?

The Legal Question – Does The Mistake Excuse Mario’s Performance?

I ran these facts by a friend of this column, contracts professor Bryan Hull at Loyola University School of Law in Los Angeles.

“If Danny had refused to pay more, Mario could have argued that he didn’t have to perform because of either mutual mistake or unilateral mistake.  It was clear both had the same basic assumption that the concrete slab was built to customary specifications and could be removed with a certain amount of effort and expense. In fact, it was built to different specifications that made it much harder.
  
“Danny could argue that Mario assumed the risk of error because he is an experienced contractor, but it may be that it was impossible for him to tell until he got into it and it is such unusual situation that he wouldn’t have thought to do more thorough inspection before making his bid.
 
“Unilateral mistake would apply if only Mario was the mistaken party. A court could grant relief under that theory that making him perform would be unconscionable. The issue would be how much more expense he would incur than estimated.

“In one case involving the sale of a car, the court held that a 30% error in setting the price due to a failure to proofread an advertisement for the car was sufficient to grant an excuse.
 
“As with mutual mistake, there would be an issue of negligence. But courts hold that simple negligence is not enough to impose risk.  He would probably have to have been reckless in making his bid, engaging in willful blindness, before a court would assign the risk to him. 

“If relief is granted on the basis of mistake, performance under the contract is excused, so Mario would not have to perform.”

The Result?

“Mario felt that it was his mistake and he would accept the consequences. But when I explained the law to him, he agreed, and now the Martians need to find a new landing site!” Attorney Danny told me!

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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