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Davis Moreno Construction, Inc. v. Frontier Steel Buildings Corp.

November 2, 2010


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Plaintiff Davis Moreno Construction, Inc. ("Plaintiff") proceeds with this diversity action for damages against Defendant Frontier Steel Buildings Corp. ("Defendant").

Plaintiff filed a motion for summary judgment and motion to dismiss Defendant's counterclaim on May 17, 2010. (Doc. 91). Defendant filed opposition to Plaintiff's motion for summary judgment on August 16, 2010. (Doc. 101). Defendant also filed a cross-motion for summary judgment on August 16, 2010. (Doc. 100).

Plaintiff filed a reply to Defendant's opposition on August 23, 2010. (Doc. 102).


This action concerns a contract between Plaintiff and Defendant related to a public works project for the Kern Unified School District for the construction of its Records Retention Facility (the "Project") in Kern County, California. Plaintiff submitted a bid to the School District and was awarded the prime contract in connection with the Project. As the prime contractor, Plaintiff engaged subcontractors and suppliers, including Defendant.

On October 8, 2007, Defendant submitted a bid to Plaintiff quoting a price for delivery of "the steel structure for the KUSD Office Record Retention Facility." (Stephen Davis Decl., Ex. A.). The facsimile was addressed to "contractors/estimators" and contained a representation by Defendant that "all components in our bid will meet or exceed your specifications and codes for this project." (Id.). The price quoted by Defendants for the steel structure was $145,494.00. (Id.). Defendant's bid also stated "We can assist you in erecting this structure for this price $70,750.00." (Id.). The last page of the bid contained a design drawing. Defendant's bid also contained the following provision under the heading "Standard Notes and Conditions:"

6. Quotation is not a contract, but an offer to sell, which can only be accepted by a timely execution of a purchase order contract. (Id.).

By letter dated December 6, 2007, Plaintiff notified Defendant of its intent to award Defendant a contract for the steel structure. Plaintiff's letter stated: "It is the intent of Davis Moreno Construction, Inc. to issue a subcontract to Frontier Steel Building Corp. in the amount of $145,494.00 for Pre-Engineered Metal Building in accordance with the Plans and Specifications by BFGC Architects Planners Inc., and Addendums No. 1 thru 5. You should receive a contract within the next ten (10) days." (Id., Ex. B).

On or about December 11, 2007, Plaintiff sent Defendant a Purchase Order for pre-fabricated steel to be used in constructing the Project. (Id., Ex. C). Defendant sent Plaintiff a facsimile on January 10, 2008 which contained a version of Plaintiff's purchase order modified by interlineation as well as a separate purchase order authored by Defendant. (Id., Ex. D).*fn1 Plaintiff responded to Defendant's modified Purchase Order in a letter dated January 10, 2008 that indicated which provisions of the modified Purchase Order Plaintiff was agreeable to. (Id., Ex. E). Plaintiff's letter was accompanied by a copy of Defendant's modified Purchase Order signed on behalf of Plaintiff; the signed purchased order contained a handwritten notation which incorporated Plaintiff's January 10, 2008 letter into the agreement. (Id).

Pursuant to the Purchase Order signed by Plaintiff, Defendant agreed to generate "anchor bolt and structural drawings," "shop drawings and engineering calculations," "fabrication drawings," and to deliver the fabricated materials to the job site within time periods specified in the Purchase order. (Id., Ex. E). The materials Defendant agreed to provide included primary and secondary steel, roof panels, steel framing, and other materials. The Purchase Order contains a provision which states:

the supplying of sealed engineering and drawings by FSBC does not imply or constitute an agreement that FSBC or its building design team is acting as the engineer of record or the design professional for any construction project.

(Id. at 3). The Purchase Order further provides: It is the building purchaser's responsibility to obtain experienced personnel, proper tools, and equipment to erect this building in a safe competent and professional manner.

(Id. at 4). The Purchase Order also contains the following provision:

Any corrections of mis-fabrication or material purchases for shortened material must be approved by and/or performed as directed by FSBC in writing prior to work being done or material being purchased. FSBC may, at its option, authorize the work to be performed or material purchased by the metal building purchaser or it may perform the work or provide the material itself. (Id.).

Defendant performed various obligations under the contract, and Plaintiff made several payments to Defendant. In total, Plaintiff paid Defendant $168,025.90.


Summary judgment/adjudication is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) (internal quotation marks omitted).

Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.

When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.


A. Summary Judgment on Plaintiff's Second ...

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