Aguilar v. Millot

Filed 6/25/07 Aguilar v. Millot CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Tricia Bigelow, Judge. Affirmed.

Gilberto Millot, in pro. per., for Defendant, Cross-complainant and Appellant.

ORourke, Fong & Manoukian, Roderick D. Fong and Marina Manoukian for Plaintiff, Cross-defendant and Respondent.

______________________________

Plaintiff and respondent Ramon Aguilar was awarded damages of $209,179 following a court trial on his complaint alleging breach of contract and common counts against defendant and appellant Gilberto Millot. Judgment was also entered in favor of Aguilar on Millots cross-complaint^[1]against Aguilar, Alvaro L. Banegas, and Bancomer Construction and Development,^[2]alleging foreclosure of a mechanics lien, breach of contract, common counts, and declaratory relief.

In this timely appeal from the judgment, Millot raises the following issues: (1) the oral contract was entered into between Millot and Banegas, and because Aguilar was not a party to the oral contract, he could not bring this action; (2) if Aguilar was a party to the oral contract, he was in breach due to his failure to pay the amount due, which excused Millots performance; (3) the statute of limitations on the oral contract expired in March 2004, but Aguilar did not file the instant action until October 2004; (4) the trial court erred in awarding damages in excess of those set forth in the written contract at $100 per day for late performance; (5) Aguilar did not prove that Millot materially breached the contract; (6) Aguilars payment of $3,700 after the alleged breach constituted a waiver of the breach; (7) the trial court awarded damages based upon loan costs not incurred in Aguilars name; and (8) the trial court abused its discretion by not allowing oral argument before filing its tentative and final statements of decision.

We find no reversible error and affirm the judgment in its entirety.^[3]

PROCEDURAL HISTORY

Aguilars October 8, 2004 Complaint

In his breach of contract cause of action, Aguilar alleged that on or about March 5, 2002, he entered into a written contract with Millot, who is a civil engineer. Under the contract, Millot was to draft and design the architectural plans for construction of four single family residences on Thomas Street in Los Angeles. Between January 2003 and September 2004, Millot breached the contract by failing to deliver the designs and drawings in a timely fashion. Millots untimely delivery of plans and drawings, and the failure to deliver drawings, caused construction to be delayed. Aguilar performed all of his obligations under the contract, except for those Millot prevented or which were excused by Millots nonperformance. Under the terms of the contract, Millot agreed to pay liquidated damages of $100 for each day of delay. Aguilar suffered damages as a result of Millots breach of contract.

The common count cause of action alleged Millot was indebted to Aguilar for the sum of $21,032.84 within the past two years. Aguilar demanded payment by his complaint, but no payment was received from Millot.

Millots Cross-complaint

Millot alleged he entered into a contract to perform work in connection with the development of the Thomas Street properties by Aguilar, Banegas, and Bancomer. He also alleged Aguilar, Banegas, and Bancomer were each a partner, agent, joint venturer, employee or otherwise connected with each of the other [cross]-[d]efendants. Millot performed all acts required except for those excused by breach by the developers. The developers failed to pay Millot under the contract and have demanded that he perform work for which they do not wish to pay. They have demanded that Millot perform additional work at no cost. Millot alleged he had filed a proper mechanics lien and was entitled to foreclose on the lien. The developers breached their contract with Millot, entitling him to damages. As to the common count cause of action, Millot provided valuable services to the developers who have failed to pay a reasonable value for his services. Declaratory relief was requested to resolve the dispute between the parties.

STATEMENT OF FACTS^[4]

Banegas and Aguilar purchased four lots on Thomas Street in February 2000, intending to develop four single family residences. Banegas and Aguilar entered into an oral agreement with Millot, calling for Millot to prepare a grading plan, street plan, and design for the Thomas Street homes for $11,600. Payments totaling $6,000 were made on the oral contract by Aguilar and Banegas.^[5] A change in the lot lines to make all four lots buildable was approved on May 22, 2001. Because of Millots delays in performing under the oral agreement, Aguilar and Banegas decided to reduce the agreement with Millot to writing, which was done on March 5, 2002.

The written contract set forth the parties obligations, including payment of an additional $12,596 by Aguilar and Banegas. Aguilar negotiated the contract with Millot, because Banegas was frustrated with Millots delays. Millot agreed to complete the grading plan and provide a copy of it to the structural engineer within seven days after signing the contract.

The contract contemplated that Millot would complete the job in a reasonable amount of time. The contract provided for damages of $100 per day if Millots work was not performed in a timely fashion; if Aguilar failed to pay in a timely fashion, he would also be penalized $100 per day. Banegas explained the $100 per day penalty was required because Millot had a habit of not performing while claiming that payments were late. The purpose of the $100 per day penalty, according to Banegas, was to secure performance.

Aguilar testified that the $100 per day penalty was reciprocal, and the result of contract negotiation with Millot. Millot testified he insisted that each side be subject to the $100 per day penalty because he was not being paid. Millot wanted to put pressure on Aguilar to pay on time by means of the penalty. Millot did not consider the $100 per day penalty for late payment as covering his out of pocket loss, because to complete this project he had to pay my people to work on these plans and had to put jobs aside, bring other people, stay late, making sure that I complied with the contract.

Aguilar and Banegas paid Millot on time, although they were never given invoices as work was completed. A total of $9,000 was paid to Millot on the written contract. An additional $1,810 was paid to Millot for work not included in the written contract.

Grading plans were submitted to the City of Los Angeles more than seven days after the contract was signed. Millot was to resubmit the grading plans after corrections, but he failed to do so. The street plans were submitted on January 15, 2003, but never completed or approved. The city wanted a plan for Thomas Street as well as Ashland Street, which abutted the property by approximately 50 feet. A plan for Ashland Street was not extra work because Millot knew the property bordered on Ashland Street, and he had been hired to prepare the street plan.

The building plans were to be completed and ready for submittal 17 working days after structural calculations were received from the structural engineer. Mynor Zelada was the structural engineer doing the calculations for the homes to be built on Thomas Street. Millot was to prepare designs or architectural drawings, send them to Zelada, who would do the structural calculations. The plans were not completed within the 17-day deadline. After Zelada received the drawings for two of the houses, he completed the structural calculations on April 15, 2002, and May 30, 2002. He completed the structural calculations on the other two houses on November 11, 2002, and June 11, 2003. Normally, it should not take more than 30 days after corrections to plans to obtain approval from the city. No one complained that Zelada took too long. He never received a request for corrections.

The plans for 2810 Thomas Street were submitted to the city on May 16, 2002. Corrections were issued on May 28, 2002, but approval was not obtained until April 29, 2003, due to Millots tardy nonperformance.

The building plans for 2816 Thomas Street were submitted to the city on January 7, 2003, and corrections issued January 14, 2003. The plans were not approved until August 18, 2003. Again, the delay was due to Millots nonperformance.

The plans for 2822 Thomas Street were submitted to the city on January 7, 2003, although structural calculations had been completed on May 30, 2002. Corrections were issued January 13, 2003, but approval was not obtained until August 18, 2003, with the delay occasioned by Millots untimely performance.

As to 2828 Thomas Street, plans were submitted to the city on January 7, 2003, and corrections issued January 21, 2003. Approval was given on September 5, 2003. The delay was attributable to Millot.

As the delays grew, Aguilar complained to Millot that his work was so late he had accumulated $16,000 in penalties. Millot apologized, said he was very busy, and promised to get the work done as quickly as possible.

The property was purchased for $100,000, with a $50,000 down payment, and the owners carrying the balance for one year. Aguilar and Banegas obtained a bridge loan on June 16, 2001, to pay off the $50,000 debt to the owners, while carrying it over for one year at a monthly payment of $625. In June 2002, they did not have blueprints so the bridge loan was extended, resulting in loan fees in the amount of $1,887. Construction loans between $185,000 and $190,000 were obtained on each of the four lots in January 2003, resulting in monthly payments of between $2,004 and $2,058. Because Aguilar and Banegas did not receive their permits due to Millots delays, they paid on these loans before construction. The delays resulted in an increase of $155,000 in construction costs. The increased costs were approved by the company monitoring disbursal of the construction funds.

George Lightner testified as an expert witness on behalf of Aguilar. He expressed the opinion that Millot should have had a set of plans completed within six months of the oral contract. However, the first grading plans were not submitted until 12 months later, which was an unreasonable amount of time. Lightners calculation of the cost of the delays, due to Millot, were based upon the increased costs after the initial six-month period. These costs included money spent on the bridge loans. Lightner found fault in Millots lack of a timely response to the citys March 2002 suggested corrections to the grading plan. In Lightners experience, it should have taken no more than 30 days to make the corrections.

Lightner also believed that Millot was responsible for unreasonable delays because some plans were submitted May 16, 2002, and within 12 days, corrections were suggested. The permit was not issued for grading until April 2003. Structural calculations were given to Millot on May 30, 2002, but building plans were not submitted until January 7, 2003.

Lightner opined that Millot had an obligation to perform in a timely fashion. Millot had an obligation under the contract to determine what street design was required. Millots first failure was the delay of seven or eight months in producing and submitting grading plans and structural plans, while costs on the bridge loan were accruing at the rate of $625 per month. Plans were submitted on three lots in January 2003. Lightner concluded that delay damages amounted to $54,000.

Lightner also calculated that there were additional damages of $155,000 resulting from increased construction costs. Industry costs increased 30 to 40 percent during the period of delay; Lightner used only a 15 percent increase in calculating damages. Lightners figures were corroborated by the amount of additional money borrowed to finish the job. He did not use the $100 per day contract penalty in calculating damages.

DISCUSSION

I

AGUILAR WAS A PARTY TO THE ORAL CONTRACT

Millots first argument is that Aguilar had no standing to file an action for breach of the oral contract because Aguilar was not a party to the contract. The record does not support Millots position.

When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment. (Scottv. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Western States Petroleum Assn.v. Superior Court (1995) 9 Cal.4th 559, 571; Crawfordv. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)

Banegas testified that he and Aguilar were parties to the oral contract with Millot. In addition, Banegas and Aguilar were co-owners of the property and parties to the subsequent written contract. Aguilar testified he made payments on the oral contract. This testimony constitutes substantial evidence that Aguilar was a party to the oral contract. Moreover, the trial court found that any oral contract was incorporated in and superseded by the written contract, and Aguilar was the party to that contract.

Moreover, Millot alleged in his cross-complaint that Aguilar, Banegas, and Balcomer were partners, agents, joint venturers, and employees of each other. Given the testimony at trial, as well as the language of Millots own pleading, his claim that Aguilar lacked standing is without merit.

II

AGUILARS FAILURE TO PERFORM BY PAYMENT IN FULL

ON THE ORAL CONTRACT DID NOT CONSTITUTE A BREACH

Millot argues that if Aguilar was a party to the oral contract, Aguilars failure to pay the full amount on the oral contract bars relief. We disagree.

Aguilar and Banegas testified Millot did not fully perform on the oral contract, and as a result, they paid only $6,000 of the $8,700 due. The trial court expressly found that Millot did not fully perform under the oral contract. Where there is a conflict in the evidence as to which party to a contract is in breach, and the trial courts finding of breach by one of the parties is supported by substantial evidence, the appellate court will not reweigh the evidence and is bound by the trial courts findings. (Crag Lumber Co. v. Crofoot (1956) 144 Cal.App.2d 755, 774.)

Aguilar, Banegas, and Lightner each testified to Millots failure to complete the grading and design plans within a reasonable period of time under the oral contract. It was Millots delays that caused Banegas and Aguilar to obtain a written contract setting forth Millots obligations. The testimony of these three witnesses constitutes substantial evidence to support the judgment of the trial court that Millot was in breach of the oral contract.

III

THE STATUTE OF LIMITATIONS ON THE ORAL CONTRACT

Millot next argues the two-year statute of limitations on the oral contract under Code of Civil Procedure section 339 expired as of March 2004, but the instant action was not filed until October 2004. As a consequence, Millot contends no damages could be awarded for breach of the oral agreement. We disagree.

The trial court found that the written contract was intended to incorporate and supersede the oral contract, and Millot does not challenge this aspect of the trial courts finding on appeal. Aguilar did not file this action on the oral contract; instead, the complaint was based on the written contract. Because the written contract incorporated the oral contract, and because this action was based solely on the written agreement, the applicable statute of limitations is the four-year statute of limitations found in Code of Civil Procedure section 337. The two-year statute of limitations on an oral contract does not apply in this action.

IV

THE AWARD OF DAMAGES IN EXCESS OF $100 PER DAY

Millot argues the written contract contained a liquidated damages clause fixing damages at $100 per day in the event of a failure of either party to perform in a timely fashion. Millot contends the amount of damages awarded to Aguilar must be reversed because the damages exceeded the liquidated damages provision. We hold the trial court correctly found that the penalty provision was not intended to be a liquidated damages clause.

The written contract included a provision described as penalties. The contract provided that if Millot did not perform his obligations in the time specified in the contract, his compensation would be reduced by $100 per day. Similarly, if Aguilar did not pay his obligations under the contract in a timely fashion, he would pay the sum of $100 per day. The trial court ruled, based upon the trial testimony, that the parties did not intend the penalty provision to be a liquidated damages clause. In light of the trial testimony, the trial courts finding was correct. (Wright v. Rodgers (1926) 198 Cal. 137, 140-141 [the court should first interpret a contract to determine whether it was the intention of the parties to the agreement that the sum fixed upon as damages for the breach thereof by either should be a penalty, and if so, the provision is void].)

The testimony at trial evidences a clear intent to create a penalty and no intent to create a liquidated damages clause. The parties were angry about what both sides viewed as untimely performance under the oral contract, and it was out of this anger that the penalty provision arose. Aguilar and Banegas wanted the $100 per day penalty to motivate Millot to perform his engineering duties in a timely fashion. The amount of the penalty was not related to potential damages if construction of the four residences did not take place. On the other hand, Millot was concerned about late payment by Aguilar, and in order to compel performance by Aguilar, Millot insisted on a reciprocal penalty. Millots own testimony establishes that he did not consider the penalty to be an approximation of damages, because it did not take into account extra pay for his employees and other work that he put aside.

Having concluded, as a matter of contract interpretation, that the penalty provision was never intended to be a liquidated damages clause, it follows that it was an unenforceable penalty provision. As our Supreme Court explains, A liquidated damages clause will generally be considered unreasonable, and hence unenforceable under [Code of Civil Procedure] section 1671[, subdivision] (b), if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach. The amount set as liquidated damages must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained. [Citation.] In the absence of such relationship, a contractual clause purporting to predetermine damages must be construed as a penalty. [Citation.] A penalty provision operates to compel performance of an act [citation] and usually becomes effective only in the event of default [citation] upon which a forfeiture is compelled without regard to the damages sustained by the party aggrieved by the breach [citation]. The characteristic feature of a penalty is its lack of proportional relation to the damages which may actually flow from failure to perform under a contract. [Citations.] [Citation.][] In short, [a]n amount disproportionate to the anticipated damages is termed a penalty. A contractual provision imposing a penalty is ineffective, and the wronged party can collect only the actual damages sustained. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 931; see also Ebbert v. Mercantile Trust Co. (1931) 213 Cal. 496, 499 [[A]ny provision by which money or property would be forfeited without regard to the actual damage suffered would be an unenforceable penalty.].) (Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, 977-978.)

The $100 penalty in this case bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach. (Ridgley v. Topa Thrift & Loan Assn., supra, 17 Cal.4th at p. 977.) There was no reasonable endeavor by the parties to estimate a fair average compensation for any loss that could be anticipated by late performance of either party to the contract. (Ibid.) As a result, the provision was an unenforceable penalty, which the trial court correctly did not enforce.

Our Supreme Court long ago recognized that costs are easily ascertained in advance by practical engineers or contractors engaged in establishing and doing such work. (Leslie v. Brown Brothers Incorporation (1929) 208 Cal. 606, 616.) The $100 penalty in this case did not represent an effort at approximating actual costs or damagesas noted above, the figure merely arose from the emotional frustration of the contracting parties. The trial courts conclusion that the contracting parties did not intend to create a liquidated damages clause is amply supported by the record.

The legal measure of damages for breach of contract is defined in Civil Code section 3300: For the breach of an obligation arising from contract, the measure of damages . . . is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. (Fisher v. Hampton (1975) 44 Cal.App.3d 741, 747.) The damages were properly calculated by the trial court.

V

MILLOTS BREACH OF THE CONTRACT

Millot argues he did not breach the written contract. Our review of the record demonstrates substantial evidence of a material breach by Millot, and the trial courts findings that Millot did not perform within a reasonable period of time within the meaning of Civil Code section 1657^[6]are supported by substantial evidence.

The trial courts detailed statement of decision identified material contract breaches by Millot. As to the oral contract, Lightner testified Millot should have completed a full set of design plans within six months, which was not accomplished. The trial court, as it was free to do, gave great weight to Lightners testimony. Among the material breaches of the written contract found by the trial court were the following: failure to complete the grading plans within a reasonable timeone set being approved in March 2003 and the other three in August 2003; complete failure to obtain approval for the street improvement plans; and failure to promptly deliver design plans to Zelada for structural calculations. The trial court also credited testimony that Millot admitted being late in his work.

This summary of evidence easily satisfies the requirement of substantial evidence of a material breach of contract by Millot.

VI

WAIVER OF THE BREACH BY AGUILARS PAYMENT OF $3,700

Millot contends any breach by Millot was waived when Aguilar paid $3,700 on the contract in April 2003. We conclude there was no waiver.

A right of action for breach of contract is not necessarily waived by payment on the contract with knowledge of the other partys breach. (Leonard v. Home Builders (1916) 174 Cal. 65, 68.) In order to recover for breach of contract, the nonbreaching party must prove that it has substantially performed the conditions of the breaching partys performance (or that performance was excused). If it fails to do so, it obtains no recovery. If it does establish this predicate, it is entitled to recover all damages forseeably caused by the other partys breach. [Citations.] (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1051.) A breach by one party to a contract does not absolve another party to the contract of the duty of good faith and fair dealing. (Gruenberg v. AetnaIns. Co. (1973) 9 Cal.3d 566, 578.) Whether a party has waived a breach by performance depends upon the factual showing, and there is no proof as a matter of law of any express or implied waiver, which would warrant setting aside the contrary finding of the trial court. (California Milling Corp. v. White (1964) 229 Cal.App.2d 469, 479.) It is elementary that when there are two parties to a contract and one of them does not do all that he is required to do under the agreement, the other party may nevertheless fully perform his part of the bargain and then hold the defaulting party liable for damages. (Ibid.)

The record supports the inference that Aguilar did not waive Millots breach by making a contract payment. As noted above, Aguilar was required to perform his contractual obligations in order to be able to pursue a damage claim against Millot. Partial payment on the contract thus satisfied this requirement. In addition, there is substantial evidence Aguilar and Banegas did not intend to waive any breach by Millot by making a payment. They testified to their ongoing dissatisfaction with Millots late performance, but still believed they were better off continuing with Millot rather than starting from scratch with a new engineer. This is not evidence of an intent to waive Millots breach. Because we review the record for substantial evidence and view the evidence in the light most favorable to the judgment, we find no merit to Millots waiver contention.

VII

LOAN COSTS NOT INCURRED IN AGUILARS NAME

Millot contends the trial court erred in awarding construction loan costs not incurred in Aguilars name, but rather in the name of Bancomer. Because this issue was not presented in the trial court, we deem it forfeited.

[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. Thus, we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.] (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fns. omitted.) Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) 

Aguilars relationship to Bancomer was not raised as an issue in the trial court by Millot. Millots answer to Aguilars complaint, his cross-complaint, and his written arguments to the court at the conclusion of trial did not suggest an argument that Aguilar could not recover because construction loans were in the name of Bancomer. Because both Aguilar and the trial court were denied the opportunity to address this issue at trial, we decline to hear it on appeal. The issue is forfeited.

VIII

THE LACK OF ORAL ARGUMENT

At the end of trial, the trial court and counsel agreed that arguments would be submitted in writing. The trial court said it would consider any oral argument that [it] need[s] after reading the written arguments. After submission of the written arguments, the trial court issued a tentative statement of decision. Millot filed a response to the tentative statement of decision, in which he objected to the outcome and to the fact the trial court did not consider further oral arguments after reading the written arguments. The trial court ruled that Millot did not make a timely request for further oral argument. Millot now argues the trial courts failure to allow oral argument requires reversal.

We again find that the issue was waived. The parties agreed that arguments would be made in writing. The trial court stated it would consider oral argument if it were needed. Millot did not ask the court for the opportunity to make an oral argument until after issuance of the tentative statement of decision. In the absence of a timely request for oral argument, the issue is waived.

In any event, Millot had no right to oral argument after a bench trial. Oral argument in a civil proceeding tried before the court without a jury[] is a privilege, not a right, which is accorded to the parties by the court in its discretion. [Citations.] (Gillette v. Gillette (1960) 180 Cal.App.2d 777, 781-782.) Here, the trial court allowed thorough written arguments. Millot fails to demonstrate the need for additional oral argument, or that there was a reasonable probability of a more favorable result had he been allowed to present oral argument. (Cal. Const., art. VI, 13.)

DISPOSITION

The judgment is affirmed. Aguilar is to recover his costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] Additional cross-complainants were M. I. LLOT GROUP, M. I. LLOT, and M. I. LLOT Group, a business entity form unknown. We refer to these entities and appellant collectively as Millot.

^[2] Banegas and Bancomer are not parties to this appeal.

^[3] Millots motion to augment the record with documents not presented at trial is denied.

^[4] [I]n summarizing the facts on appeal we must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citation.] (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 642, fn. 3.)

^[5] Millot testified he was owed an additional $5,000 on the oral contract.

^[6] Under Civil Code section 1657, performance of a contract within a reasonable period of time is an implied term of the agreement. (Henry v. Sharma (1984) 154 Cal.App.3d 665, 669.)