Homeowners involved in construction disputes are often told to “be patient” when a contractor falls behind schedule. Sometimes the contractor responds with a detailed plan, a long spreadsheet, or a multi-page “cure packet” promising future progress.
But under California construction law, a plan is not a cure.
This article explains a real-world scenario we see frequently:
a contractor misses deadlines, receives a formal notice to cure, and responds with paperwork—but no actual work. We’ll break down why that matters legally, what rights homeowners have, and how to protect yourself from lien exposure and cost-overrun leverage.
The Scenario: Paid Materials, Missed Deadlines, and a ‘Cure Packet’
In this case, a homeowner hired a licensed California contractor under a fixed-price contract to complete a pool and extensive landscaping project. The contract included:
- A firm completion deadline
- A notice-and-cure provision
- A fixed total price
Over time, the project stalled. Despite substantial payments—including over $100,000 paid directly by the homeowner for materials—the work remained far from complete.
After repeated delays, the homeowner issued a formal Notice to Cure, giving the contractor a final opportunity to correct the default.
The contractor responded with a lengthy “Schedule & Cure Response Packet” outlining:
- Lists of unfinished work
- Assumptions and dependencies
- A proposed future schedule
What the contractor did not do was restart work.
Why a ‘Plan’ Is Not a Legal Cure in California
Under California law, cure provisions are interpreted based on conduct, not promises.
A valid cure generally requires the contractor to:
- Commence corrective work within the cure period, and
- Diligently continue performance, not merely plan for it.
Courts do not consider spreadsheets, schedules, or future mobilization dates to be a cure if no work actually resumes.
If a contractor admits—especially in writing—that work will not restart until after the cure deadline, that response typically confirms the breach instead of curing it.
In short:
Paperwork does not cure nonperformance. Performance does.
The Lien Trap: ‘You Paid, But You’re Still at Risk’
One of the most misunderstood aspects of California construction disputes involves mechanics liens.
Even when a homeowner pays for materials in full, lien exposure can still exist if:
- Materials were ordered under the contractor’s supplier accounts
- Statutory lien waivers were not issued
- Suppliers’ internal records do not clearly reflect job-specific payment
This surprises many homeowners. Payment alone does not eliminate lien rights. Only proper statutory lien waivers do.
That’s why, in situations like this, experienced counsel often recommends that homeowners:
- Contact suppliers directly
- Obtain zero-balance confirmations
- Secure unconditional lien waivers for paid materials
This step can often be taken without the contractor’s cooperation.
‘The Remaining Money Isn’t Enough’ — A Common Contractor Tactic
Another frequent move in stalled projects is the contractor signaling that:
“The remaining contract balance is insufficient.”
In fixed-price contracts, this argument is legally weak.
Under California law:
- Cost overruns are typically the contractor’s risk
- Contractors cannot unilaterally reprice base scope work
- Unsigned change orders do not excuse delay or nonperformance
When a contractor raises cost sufficiency before completing the base scope, it can actually support a claim of anticipatory breach—an admission that the contractor cannot or will not perform as agreed.
What About Small, Unsigned Change Orders?
In many projects, homeowners direct small changes during construction. When those changes are not documented with signed change orders, the legal impact is usually limited.
At most, the contractor may later seek compensation for specific, proven extra work—often evaluated under a “reasonable value” standard.
What unsigned changes do not do:
- They do not convert a fixed-price contract into cost-plus
- They do not excuse months of delay
- They do not eliminate the homeowner’s right to terminate for cause
A Smart Middle Ground: Third-Party Assessment of Extras
In some cases, homeowners choose to take an even stronger position by offering to pay for legitimate extra work—but only after an independent third-party assessment.
This approach:
- Demonstrates good faith
- Neutralizes arguments about underpayment
- Prevents inflated or retroactive claims
- Keeps base-scope performance and termination rights intact
Importantly, this offer must be clearly separated from any obligation to continue a stalled contract.
Mediation Clauses and the ‘Procedural Trap’
Many California construction contracts require mediation before litigation or arbitration. Contractors sometimes argue that a homeowner cannot terminate without first mediating.
That’s not quite correct.
California law generally distinguishes between:
- Stopping ongoing breach (termination for cause), and
- Resolving disputes for damages (mediation or arbitration)
While homeowners should never refuse mediation outright, they are not required to allow continued nonperformance just to satisfy a mediation clause. A properly framed mediation invitation—without delaying termination—can preserve rights while avoiding procedural defenses.
Key Takeaways for California Homeowners
If you’re facing a stalled construction project:
- A “cure plan” without resumed work is usually not a cure
- Paying for materials does not automatically eliminate lien risk
- Fixed-price contracts place cost risk on the contractor
- Unsigned change orders rarely justify delay
- Lien exposure can often be neutralized directly with suppliers
- Independent assessment of extras can strengthen—not weaken—your position
Most importantly, timing and documentation matter. Acting decisively and strategically can prevent a bad project from becoming a long, expensive legal battle.
Need Help With a California Construction Dispute?
Bay Legal, PC represents homeowners in complex construction disputes throughout California, including:
- Contractor delay and abandonment
- Mechanics lien exposure
- Fixed-price contract disputes
- Termination for cause
- Replacement contractor strategy
If your contractor has stopped work—or responded with paperwork instead of progress—we can help you regain control.
Call Bay Legal, PC at (650) 668 8000 to discuss your situation with our team or schedule a consultation directly via our booking calendar at a time that suits your schedule.
