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OPINION

THOMPSON, J.

This case arises out of construction of a swimming pool by defendant and cross-complainant Scott Crawford for plaintiff and cross-defendant Tony Le. After a dispute between the parties, with the pool not completed, plaintiff sued defendant for breach of contract. Defendant cross-complained to recover unpaid sums. The jury found in favor of defendant on both the complaint and the cross-complaint, awarding him $92,000. Plaintiff appeals, claiming the swimming pool construction contract and amendments thereto were void, barring any right to recover on the contract or in quantum meruit. He also maintains defendant cannot recover as a subcontractor or agent. Defendant appeals from the denial of his motion for attorney fees.

We agree defendant may not recover damages for his work on the swimming pool but affirm the $24,000 award for work not related to the swimming pool. We also affirm the order denying attorney fees.

FACTS AND PROCEDURAL HISTORY

When plaintiff purchased property from Eric Holt for $1.1 million, a remodeling project was in progress. Plaintiff and Holt entered into an oral agreement for Holt to act as the general contractor or a superintendent to complete the project; plaintiff paid him more than $1 million. Holt continued to live at the property while plaintiff lived in Las Vegas.

Plaintiff wanted to add a swimming pool and Holt referred him to defendant. After negotiations, the parties agreed to a price of $205,000 as set out in a written Scope of Work. Neither party signed that document and there was no written construction contract but plaintiff believed he and defendant had an agreement. Holt told defendant Holt would interact with and direct him during construction and plaintiff would pay the bills. That is what transpired.

During the design phase and construction there were many changes made to the original proposal. Holt directed defendant to change the shape and design and make the pool larger and deeper than originally agreed. In addition, during the year defendant worked on the project Holt made several requests for additional work on the pool, which defendant performed. There were no written change orders. Plaintiff paid for the changes and additional work.

Holt also asked defendant to perform other services not connected to the pool, namely excavation for an underground equipment vault and an underground parking structure. The work for the vault cost $11,650. Based on the time he put in and the equipment he had to rent, defendant estimated he was owed $24,000 for excavating the parking structure.

In November 2008, the City of Mission Viejo (City) stopped work on the pool because existing utilities were insufficient to accommodate the additions to the property. Once they were upgraded in the spring construction was again stopped because other parts of the remodel had been done without permits. Once City released the property, defendant and plaintiff met to discuss completing the pool. Defendant gave plaintiff an invoice for an additional $101,000 of work on the pool he had already performed and for work necessary to finish the pool. Plaintiff offered to pay a portion but refused to pay it all; defendant rejected the offer, seeking the entire amount. Plaintiff told defendant he would "see [him] in court" and defendant understood that to mean he was "off the job."

Plaintiff then filed a complaint for breach of contract and negligence, the latter claim being dismissed before trial. In the breach of contract cause of action plaintiff alleged he and defendant had entered into a written contract, i.e., the Scope of Work dated January 25, 2008, for defendant to construct the pool for $205,000. He further alleged the two change orders that added an additional $78,000 to the project for a total price of $283,000. He pleaded that although he had paid $267,000, defendant refused to complete the pool without payment of another $100,000, thereby breaching the contract. Plaintiff sought damages in excess of $150,000.

Defendant filed a cross-complaint for breach of oral and implied contract, quantum meruit, and foreclosure of a mechanic's lien. In the common count he alleged the reasonable value of labor and material was at least $326,674, and, with credit for what plaintiff had paid, he was owed $59,674. This sum was not for work done under the Scope of Work but was based on additional work done pursuant to change orders. At trial defendant also sought $24,000 for the "non-pool related work," i.e., the excavation. Although not stated in the record, we assume defendant's motion to conform to proof included a request for these sums.

After trial, the jury found in favor of defendant on both the complaint and the cross-complaint, awarding him $92,446, including $24,000 for work not related to the pool. Plaintiff filed motions for new trial and for judgment notwithstanding the verdict on several grounds, which the court denied. It found defendant had sought to recover for his additional work in quantum meruit, not on the basis of an unenforceable contract, and that such recovery was allowed under Business and Professions Code section 7167, subdivision (b). (All further statutory references are to this code, unless otherwise stated.)

Defendant made a motion for attorney fees pursuant to § 7168, which provides for an award of such fees to a prevailing party in an action arising from a swimming pool contract. The court denied the motion because defendant had prevailed on a quantum meruit claim, not breach of a swimming pool contract and because the swimming pool contract was unenforceable.

Additional facts are set out in the discussion.

DISCUSSION

1. Quantum Meruit Recovery

a. Introduction

Plaintiff challenges the monetary award to defendant on two grounds. First, he argues the recovery for additional pool work violates the statutory requirements for swimming pool contracts. Second he claims defendant cannot recover for the excavation services because he failed to establish the existence of a contract with plaintiff to perform it. Specifically, he asserts defendant's contract was with Holt and defendant failed to prove Holt was plaintiff's agent. Defendant maintains he is entitled to the full amount awarded on a quantum meruit theory. We conclude defendant is barred from recovery on the swimming pool change orders but is entitled to the $24,000 quantum meruit award for the excavation.

"`Quantum meruit refers to the well-established principle that "the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered." [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that "the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made" [citations].' [Citations.]" (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1150.) "`[A] quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice. [Citation.]'" (Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289, 314.)

b. Additional Work on Swimming Pool

Plaintiff disputes the award for defendant's additional work on the swimming pool. He claims the original agreement was void because it did not comply with statutory requirements for the form and content of a swimming pool contract. As a result, he concludes, the statute precludes recovery for the add-ons to the swimming pool.

Section 7159 directs, that for home improvement contracts, there must be a specific font size and type, and the contract must include, among other things, information about the contractor, a description of the work to be done, the price, and the terms of payment, with restrictions on the downpayment and progress payments. (§ 7159, subds. (c)(2), (3)(B)(ii), (d).) It also requires a contract provision stating the contractor will provide unconditional releases as progress payments are made. (§ 7159, subd. (c)(4).) Change orders must be written. (§ 7159, subd. (c)(5).)

A swimming pool contract is a home improvement contract and subject to the requirements of section 7159. (§§ 7150.1, 7151, 7167.) Section 7167, subdivision (a) requires a swimming pool contract to comply with certain provisions of section 7159, including those delineated above. Failure to do so makes the contract "void and unenforceable by the contractor as contrary to public policy." (§ 7167, subd. (a).)

This public policy was expressed in the original swimming pool contract legislation, which provided, in part, that there was "a need . . . for a more complete understanding between customers and contractors engaged in the swimming pool construction business regarding the content and conditions of transactions for swimming pool construction; that many misunderstandings have arisen because of the lack of a standard body of requirements relating to such transactions, and that certain sales and business practices, and construction practices, have worked financial hardship upon the people of this state; . . . and that the provisions of this title relating to the swimming pool construction business are necessary for the public welfare." (Former Civ. Code § 1725, added by Stats. 1969, ch. 583, § 1, repealed by Stats. 1979, ch. 747, § 3, and reenacted with minor revisions as §§ 7165-7173, Stats. 1979, ch. 747, § 2.) Legislative history revealed "consumer complaints . . . about swimming pool construction were proportionately higher than for other types of construction." (King v. Hinderstein (1981) 122 Cal.App.3d 430, 439-440, fn. 16.)

The swimming pool contract at issue plainly did not meet the statutory requirements. Among other things, there was no evidence of a fully signed contract and the Scope of Work contained no language regarding lien releases or a payment schedule, including a delineation of a downpayment and progress payments. In addition, there were no written change orders. Thus, the contract to construct the pool was void and unenforceable by defendant.

Defendant argues he did not sue on the original contract but sought to recover only for additional work done pursuant to change orders. He relies on section 7167, subdivision (b), which provides that failure to have written, signed change orders "does not preclude the recovery of compensation for work performed based on . . . quantum meruit . . . or other similar legal or equitable remedies designed to prevent unjust enrichment." He claims this allows him to recover the value of work done beyond that provided in the Scope of Work.

Defendant contends that the plain, ordinary meaning of the language reveals the Legislature's intent to avoid a "harsh application" of section 7167, subdivision (a), which makes unenforceable a swimming pool contract that fails to meet the designated provisions of the home improvement contract statute. He points particularly to section 7167, subdivision (b)'s purpose is "to prevent unjust enrichment."

In interpreting a statute our primary function is to determine the intent of the Legislature, first looking at the statute's language. (McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110.) "`The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.' [Citation.]" (Ibid.)

Reviewing section 7167, subdivisions (a) and (b) together, defendant's interpretation makes no logical sense. Subdivision (a) is explicit in its requirement of a writing. Subdivision (b) is subordinate to subdivision (a) and must be read in that context.

"`"We construe the words of a statute in context, and harmonize the various parts of an enactment by considering the provision at issue in the context of the statutory framework as a whole. [Citations.]" [Citation.] When statutory language is capable of more than one construction, courts must "`"give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity."' [Citations.]" [Citation.]' [Citation.]" (Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 693.)

It is quite clear that section 7167, subdivision (b)'s allowance for a quantum meruit suit on change orders presumes that the original swimming pool contract met all the statutory requirements. Defendant's interpretation ignores the larger public policy intended to curb abuses in swimming pool construction contracts.

We reject defendant's argument plaintiff is estopped from appealing this issue because he failed to raise it in the trial court or object to the quantum meruit instruction. As defendant acknowledges, whether section 7167 governs is a pure question of law. Thus, it may be raised for the first time on appeal. (Cal Sierra Construction, Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 850-851.) And jury instructions are deemed by law to have been objected to, even if the error was invited. (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 984.)

c. Non-Pool Related Excavation

By contrast, the excavation work defendant performed for the underground equipment vault and parking structure is not subject to section 7167 and the swimming pool statutes do not prevent recovery in quantum meruit. Defendant introduced evidence he did the work and what he was owed. Plaintiff points to no contrary evidence. Thus, there is substantial evidence to support defendant's award.

Plaintiff argues that defendant failed to prove the existence of a contract to perform the work, which was required since plaintiff sued only for breach of contract and that is how the jury was instructed. But the record does not support his assertion. One instruction stated: "[Defendant] contends [plaintiff] through his agent Eric Holt increased or changed the scope of the pool construction project beyond what was required by the parties' contract. If you find [defendant] is entitled to compensation for this extra work, you may award damages to [him] based on the reasonable value of the extra work." Plainly, this is a quantum meruit instruction (Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1673 [amount of quantum meruit recovery is reasonable value of work performed]; see CACI No. 371 (2012 ed.)), to which plaintiff did not object.

Plaintiff also challenges the $24,000 award on the ground defendant acted as a subcontractor to Holt in his capacity as a general contractor. He points to defendant's testimony to that effect and his lawyer's similar claim. He characterizes this as an "admission [defendant] had a contract with Holt, not [plaintiff], for the excavation work" and argues this legally barred the jury from awarding damages to defendant. We do not agree defendant admitted he had no contract with plaintiff.

In addition to testifying Holt was a subcontractor, defendant also testified defendant was "working at [Holt's] direction" and that Holt "supervised" the work. At another point defendant stated he "assum[ed plaintiff and] Holt . . . were partners." And he also said Holt was plaintiff's agent, which was "a similar assumption." In addition, he testified that Holt, "whatever his role was, . . . was authorized to speak on behalf of [plaintiff]," and defendant was never told anything to the contrary. And, as defendant points out, plaintiff put on no evidence defendant knows the legal difference between these terms.

Further, during the year defendant worked on the project Holt made several requests for additional work on the pool. Defendant submitted invoices for the work and plaintiff paid them. At no time did plaintiff advise defendant Holt had no authority to act on his behalf. So, whatever capacity Holt occupied, defendant could reasonably believe that plaintiff had authorized the work because plaintiff paid for it.

Plaintiff's claim there is no evidence he asked defendant to perform the excavation is also unsupported. Plaintiff knew defendant was carrying out the excavation work. Plaintiff was on the property while defendant was excavating, and he attended "a few" city council meetings where neighbors protested construction of the parking lot. Thus, while plaintiff's request might not have been direct, his knowledge of the work and failure to stop it constitutes an implied request.

This disposes of the claim defendant did not prove Holt was plaintiff's agent. Van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, on which plaintiff relies, supports a finding of agency. It instructs that "`"[a]gency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." [Citation.] "The principal must in some manner indicate that the agent is to act for him. . . ."'" (Id. at p. 571; see also Civ. Code, § 2307 ["An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification"].)

We also reject plaintiff's alternative argument Holt was not his ostensible agent. "An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him." (Civ. Code, § 2300.) Plaintiff does not direct us to any evidence Holt was not his agent, but, even if he was not, plaintiff's conduct in paying for work Holt asked defendant to perform and allowing defendant to continue the excavation Holt requested is sufficient to show ostensible agency.

Nor is recovery barred by the equal dignities rule. It provides that "[a]n oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing." (Civ. Code, § 2309.) Plaintiff relies on the statutes requiring swimming pool contracts to be written. But he cites nothing to show an excavation contract is governed by those statutes or is subject to the same requirements.

2. Attorney Fees

In denying defendant's motion for attorney fees, the court noted defendant's claim he sought to recover only under a quantum meruit theory in his cross-complaint. It found the swimming pool contract was unenforceable under the applicable home improvement and swimming pool construction sections and thus "`there [was] no need for a mutual right to attorney fees, since neither party can enforce the agreement.'"

Defendant claims he is entitled to attorney fees based on his successful defense against the cross-complaint. He relies on section 7168, which provides, "In any action between a person contracting for construction of a swimming pool and a swimming pool contractor arising out of a contract for swimming pool construction, the court shall award reasonable attorney's fees to the prevailing party."

Defendant suggests the trial court's ruling was based on an incorrect interpretation that section 7168 required a written contract. He claims that because the language of the statute makes no mention of a writing, the Legislature did not intend a written contract to be a prerequisite to recovery. He points to section 7151.2 that defines a home improvement contract to encompass both written and oral contracts. (Accord § 7159, subd. (b).)

But section 7167, governing swimming pool contracts requires them to be in writing. Swimming pool contracts are a subspecies of home improvement contracts and section 7167 controls. (See Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1049 ["Under settled rules of statutory construction, a specific statute controls over a more general statute"].) Based on section 7167's requirement of a written contract, section 7168 dealing with attorney fees in an action "arising out of a contract for swimming pool construction" must presume the underlying contract is written. Otherwise the statutory scheme is internally inconsistent, an interpretation we must avoid. (Alatriste v. Cesar's Exterior Designs, Inc. (2010) 183 Cal.App.4th 656, 664 [courts should interpret statute within entire statutory scheme to harmonize provisions].)

This defeats defendant's additional argument that an award of fees under section 7168 was mandatory because the statute states the court "shall award" attorney fees. Again, the statute's application is predicated on a written contract.

Denial of attorney fees and reversal of defendant's recovery for additional work on the swimming pool is not necessarily the result we would have chosen had there been another option. The record supports the jury's verdict defendant performed the work, and defendant completely prevailed on both the complaint and the cross-complaint. But the Legislature put the public policy of protecting consumers contracting for swimming pools ahead of protecting the rights of individual contractors who fail to comply with the statutory requirements. Our decision is constrained by the swimming pool statutes, whether or not it seems equitable that defendant will not be paid for some of his work.

DISPOSITION

We reverse the judgment awarding defendant damages except for that portion awarding him $24,000, which we affirm. We also affirm the denial of defendant's motion for attorney fees. The parties shall bear their own costs on appeal.

BEDSWORTH, ACTING P. J. and ARONSON, J., concurs.