You did the right thing by withholding payment until the work is complete. Be care though. You cannot withhold the entire payment if the work is "substantially" complete. Staining and sealing concrete is a subjective concept in terms of "completion" Have a third party review the work to determine if the work is finished from an "objective" standpoint. Next, get a bid from another contractor to re-stain and seal the concrete. That is the maximum you will be able to withhold from the contractor - regardless of your satisfaction with the work.
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The notice of breach you send to the contractor is critical in case the dispute ends up in court. There are certain things that you must include in the letter in order to have a strong position. But foremost, you must determine if the breach is material (vs. minor).
Since the contract was oral and there is no "time is of the essence" clause, then a reasonable amount of time suffices. 18 days is a reasonable amount of time.
The purpose of awarding damages in contract cases is to make the plaintiff whole, that is, to put the plaintiff in a position s/he would have been in had the parties performed their obligations under the contract. Based on this, you may sue the contractor for the difference in value between his or her services and a subsequent contractor's services.
If you need specifics, feel free to contact me at www.TaslakianLaw.com.
Hope this helps!
Armen Taslakian. 818. 937.3590. www.TaslakianLaw.com. Note: Armen Taslakian is an attorney licensed in the State of California. The answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney/client relationship is created unless an Agreement is signed by the attorney and the client.
First, make sure your contractor has as specialty license for concrete/flatwork. Not just a GC license. Something tells me you might have a better case on licensing. They seem to go hand in hand with your complaints. Second, send a certified letter of cancelation and basis of why your witholding payment. Give a written statement of damages with the offset of actual work completed. If the amount of damages exceeds the value of work performed, withold the full amount. Third, your contractor has 60 days to file a Mechanic's lien from the date of cancellation of work. If the contractor proceed with a Mechanic's lien, there are complain procedures available through the CSLB to resolve informally and cost effectively for claims under $50,000. Although this contract amount is only $2,200 in y our mind, this contractor may feel differently on the lien amount. You may need an attorney to defend you later including claims procedures with the CSLB, or other insurance by the contractor.
Tim Broussard, Esq
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