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Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co.

January 23, 2009

OLDCASTLE PRECAST, INC., PLAINTIFF AND RESPONDENT,
v.
LUMBERMENS MUTUAL CASUALTY COMPANY ET AL., DEFENDANTS AND APPELLANTS.



Appeal from a judgment of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Affirmed. Motion to dismiss. Denied. Motion for sanctions. Denied. (Super. Ct. No. 03CC05649).

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

Defendants Lumbermens Mutual Casualty Company (Lumbermens) and Safeco Insurance Company of America (Safeco) (collectively, defendants) appeal from a summary judgment entered in favor of plaintiff Oldcastle Precast, Inc., doing business as Utility Vault Company (plaintiff). In granting the motion for summary judgment, the trial court found no triable issue of material fact existed as to Lumbermens' liability, as surety, on a payment bond in favor of plaintiff or Safeco's liability, as surety, on a stop notice bond release for plaintiff.

We affirm the judgment. We publish this opinion because of our analysis of the substantive deficiencies of defendants' opposition to plaintiff's motion for summary judgment and the trial court's proper exercise of discretion in denying defendants' requests for a continuance of the hearing on the motion and the opportunity to submit a revised responsive separate statement. Parties opposing a motion for summary judgment are not entitled to an automatic do-over of their opposition to the motion. Nothing in Code of Civil Procedure section 437c or in the well-reasoned opinion of Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197 (Parkview Villas) required the trial court in this case to continue the hearing on the summary judgment motion and permit defendants to file a revised responsive separate statement.

FACTS SHOWN BY MOVING PAPERS

General contractor Pinner Construction Company, Inc. (Pinner), and the Orange County Sheriff's Department entered into a public works construction contract for a project known as the "'OCSD - Theo Lacy Jail Expansion, Phase Three, Building B Project'" (the project). Pinner and Intra-American Foundation & Drilling Company, Inc. (Intra-American), entered into a written subcontract agreement, under the terms of which Intra-American agreed to furnish and install the concrete pilings for the project. Pursuant to Civil Code sections 3247 and 3248, Lumbermens, as surety, posted a "Labor and Materials Payment Bond" (the payment bond) with the County of Orange for the project.

Intra-American and plaintiff entered into a sub-subcontract under which plaintiff agreed to supply concrete piling materials to Intra-American for the project. The payment bond posted by Lumbermens, as required by Civil Code section 3248, stated that Lumbermens would pay plaintiff for materials it provided for the project if Intra-American failed to pay plaintiff.

Between May 28 and August 8, 2002, plaintiff furnished prestressed concrete piling materials to Intra-American for use on the project. These materials satisfied the contract documents and were neither defective nor deficient. On July 3, 2002, a release stating plaintiff was owed nothing through June 30, 2002 ($0 release) was mistakenly created. Within 25 to 30 minutes of the $0 release's creation, plaintiff and Intra-American agreed to rescind the $0 release and agreed to a new replacement release reflecting the sum of $46,909.01. Despite assurances it would discard the $0 release, Intra-American sent it to Pinner. Plaintiff itself never sent the $0 release to Pinner.

Plaintiff supplied Intra-American materials totaling $369,974.47, but was paid only $221,443.97, leaving an unpaid balance of $148,530.50. On January 22, 2003, plaintiff filed a stop notice with the County of Orange in the amount of $148,530.50. Safeco, as surety, posted a stop notice release bond in the amount of $185,663.13 (125 percent of the amount of the stop notice filed by plaintiff) and the County of Orange released money otherwise withheld from Pinner as a result of the stop notice filed by plaintiff. Plaintiff prepared a written notice on bond claim which was received by Lumbermens on October 30, 2003.

PROCEDURAL BACKGROUND

Plaintiff sued to recover the outstanding balance Intra-American had failed to pay it under their contract. Plaintiff's first amended complaint alleged the following claims: (1) breach of written and oral contracts against Intra-American; (2) open book account against Intra-American; (3) account stated against Intra-American; (4) common counts for "Work, Labor, Services and/or Materials Furnished" against Intra-American; (5) action on a payment bond against Lumbermens; (6) action on a contractor's license bond against Star Insurance Company; and (7) action on a stop notice release bond against Safeco. The complaint prayed for judgment in the total amount of $148,530.50.*fn1

No cause of action was alleged against Pinner, although it was identified as a defendant in the caption and in the body of the first amended complaint. Pinner participated in the lawsuit, however, through trial and postjudgment motions. Pinner, Lumbermens, and Safeco filed an answer containing a general denial and affirmative defenses.

Before trial, plaintiff argued that evidence of Pinner's reliance on the $0 release was inadmissible because it did not support an equitable estoppel defense for the sureties as a matter of law. The trial court rejected plaintiff's argument; the court concluded the doctrine of equitable estoppel was available as a defense to the sureties under the circumstances of this case, and approved a special verdict form asking the jury to make findings of fact relevant to whether the defense had been proven.

The jury found in favor of Pinner, Lumbermens, and Safeco, and made the special finding that Pinner reasonably relied on the $0 release. Judgment was entered in favor of Pinner, Lumbermens, and Safeco. The court granted Pinner, Lumbermens, and Safeco's motion for prevailing party attorney fees and costs.

Plaintiff appealed from both the judgment and the postjudgment order awarding Pinner attorney fees and costs, arguing (1) the trial court erred by concluding, as a matter of law, that the defense of equitable estoppel was available to Lumbermens on the payment bond claim, based solely on Pinner's reliance on the $0 release; (2) substantial evidence did not support the jury's finding plaintiff intended that others rely on the $0 release; and (3) the trial court erred by awarding Pinner attorney fees and costs.

In an unpublished opinion, this court reversed the judgment, holding the trial court erred by concluding that Lumbermens could assert equitable estoppel as a defense against plaintiff's action on the payment bond, based solely on Pinner's reliance on an incorrect release. (Oldcastle Precast Inc. v. Pinner Construction Company, Inc. (May 11, 2006, G035133 [nonpub. opn.].) In light of our holding, we did not reach plaintiff's other arguments regarding the sufficiency of the evidence plaintiff intended others to rely on the $0 release or the award to Pinner of attorney fees and costs.

Following remand, plaintiff filed a motion for summary judgment, or for summary adjudication, of three specified causes of action: (1) the breach of written contract claim against Intra-American; (2) the action for recovery on the payment bond against Lumbermens; and (3) the action for recovery on the stop notice release bond against Safeco. In support of the motion, plaintiff filed a separate statement setting forth 46 proposed undisputed material facts. Plaintiff relied on proposed undisputed material facts Nos. 1 through 11 in seeking judgment against Intra-American, Nos. 12 through 33 in seeking judgment against Lumbermens, and Nos. 34 through 46 in seeking judgment against Safeco. Plaintiff also filed: (1) plaintiff's attorney's declaration which authenticated certain documents plaintiff lodged with the court; (2) a notice of lodgment with attached exhibits (including certain trial documents and testimony); (3) the declaration of plaintiff's regional product manager and attached exhibits; and (4) a request that the court take judicial notice of certain documents filed earlier in the case to which the pertinent documents were attached. The separate statement cited portions of those filed documents as supporting evidence for plaintiff's proposed undisputed material facts.

In opposing the motion, defendants filed a responsive separate statement of disputed material facts, which only listed plaintiff's proposed undisputed material facts Nos. 26, 27, 28, and 32; plaintiff had relied upon those four facts in the portion of its separate statement addressing its claim against Lumbermens. As to each of those proposed undisputed material facts, the responsive separate statement stated the nature of defendants' dispute and cited to pages 246 through 252 of the trial testimony of Intra-American's president, Salvador Altamirano. Those seven pages of trial testimony were authenticated by defendants' attorney, Newton Kellam, in his declaration, also filed in opposition to plaintiff's motion. Defendants did not propose any additional material facts (disputed or undisputed) in the responsive separate statement.

Defendants did not file or otherwise assert any evidentiary objections to the evidence relied upon by plaintiff in its motion. Plaintiff, however, filed objections to Altamirano's trial testimony relied on by defendants on the grounds they misstated his testimony and Altamirano lacked personal knowledge of the assertions attributed to him.

The trial court sustained plaintiff's evidentiary objections and granted plaintiff's motion. The trial court's notice of ruling stated, in relevant part: "1. The Motion . . . for Summary Judgment/Summary Adjudication on its 1st, 5th & 7th Causes of Action of its operative complaint: [¶] A. Granted as requested as to the 1st Cause of Action for Breach of Contract against Intra-American Foundation & Drilling Company. Moving Party has met its initial burden, and there is no Opposition by Intra-American. There are no triable issues of material fact raised in Undisputed Material Facts Nos. 1-11. [¶] B. Granted as requested as to the 5th Cause of Action for Recovery on the Payment Bond as against Lumbermens Mutual Casualty Company. [¶] (1) The Objections to the Evidence in the Opposition by Lumbermens Mutual are Sustained. [¶] (2) The Requests for Judicial Notice are Granted. [¶] (3) Moving Party has met its initial burden, and there are no triable issues of material fact raised in Undisputed Facts Nos. 12-23. [¶]

C. Granted as requested as to the 7th Cause of Action for Recovery on the Stop Notice

Release Bond as against Safeco Insurance Company of America. [¶] (1) The Objections to the Evidence are Sustained. [¶] (2) The Requests for Judicial Notice are Granted. [¶] (3) Moving Party has met its initial burden, and there are no triable issues of material fact raised in Undisputed Facts Nos. 34-46. [¶] D. The Motion for Summary Adjudication as to the 1st, 5th, and 7th Causes of Action is also Granted as a matter of law based upon the holding recently made on this case by the District Court of Appeal."

An amended judgment was entered, awarding judgment in favor of plaintiff and against Intra-American and defendants, jointly and severally, for (1) a principal amount of $148,530.50; (2) $147,007.18 in prejudgment interest; (3) $120,610 in attorney fees; and (4) $11,490.46 in costs.

Defendants appealed.*fn2 This court granted defendants' request that we take judicial notice of the joint appendix and reporter's transcript contained in our appellate record in the earlier appeal (Oldcastle Precast Inc. v. Pinner Construction Company, Inc., supra, G035133).

DISCUSSION

Defendants contend the trial court erred by granting summary judgment against Lumbermens on plaintiff's claim for action for recovery on the payment bond and against Safeco on plaintiff's claim for recovery on a stop notice release bond. As we explain in detail post, plaintiff met its initial burden of proof on its claims against defendants. Neither Lumbermens nor Safeco, however, met its burden of establishing a triable issue of material fact as to any element of the claim asserted against it or as to any available affirmative defense. The trial court, therefore, did not err by granting summary judgment against defendants.

I. STANDARD OF REVIEW AND BURDENS OF PROOF

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

Section 437c, subdivision (p)(1) of the Code of Civil Procedure provides: "For purposes of motions for summary judgment and summary adjudication: [ΒΆ] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a ...


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