C. L. Smith Co. v. Roger Ducharme, Inc.

Decision Date06 January 1977
Citation135 Cal.Rptr. 483,65 Cal.App.3d 735
PartiesC. L. SMITH COMPANY, INC., a California Corporation, Plaintiff and Appellant, v. ROGER DUCHARME, INC., a California Corporation and Roger Ducharme, Individually, et al., Defendants and Respondents. Civ. 17047.
CourtCalifornia Court of Appeals Court of Appeals
Elvin R. Meek, Rialto, and Alan E. Spears, San Bernardino, for plaintiff and appellant
OPINION

McDANIEL, Associate Justice.

INTRODUCTION

The action in the trial court was for breach of a masonry subcontract and also for what plaintiff titled 'Negligence--Breach of Statutory Duty' with reference to sections 4100 et seq. of the Government Code, the Subletting and Subcontracting Fair Practices Act. The suit was against a general contractor who had been awarded the prime contract on a school construction project after relying on a bid submitted by the plaintiff subcontractor in compilation of the total bid. However, in submitting the bid, the defendant inadvertently failed to list plaintiff as the masonry subcontractor. As a consequence of such failure, the school district, which had awarded the prime contract, refused, per section 4106 of the Government Code, 1 to allow the defendant to utilize the plaintiff on the project, and so the defendant did not sign the subcontract agreement tendered by the plaintiff.

The defendant demurred to the complaint, but the demurrer was never argued. Instead, defendant made a motion for summary judgment. 2 This motion was granted, and it is from the judgment entered thereon that plaintiff has appealed. We agree with the trial court that the declarations filed in support of the motion contained sufficient facts to support the judgment and that the declarations filed in opposition raised no triable issues of fact. The judgment is therefore affirmed.

SYNOPSIS OF THE DECLARATIONS

In support of its motion for summary judgment, the defendant filed the declarations of Roger Ducharme and William Brown. Ducharme's declaration is summarized as follows:

On January 31, 1974, defendant submitted a bid to San Diego School District to perform the work called for on a project known as Logan Elementary School Replacement. On February 5, 1974, the school district accepted the defendant's bid and awarded it the contract.

The bid proposal was submitted on a form which was furnished by the school district. Pertinent to the litigation here, one of the pages of the form was entitled 'Division of Work' and provided spaces on which the bidder could list those subcontractors who would perform in excess of one-half of 1 percent of the total amount of the bid. In listing the subcontractors, the defendant 'inadvertently' failed to include a listing for the masonry work.

After learning that the bid had been awarded to it, the defendant prepared and mailed out to the proposed subcontractors, including plaintiff, a standard form of subcontract agreement for the purpose of determining the terms and conditions of their respective offers and performances. At this same time, in compliance with the general conditions contained in the prime contract, the defendant prepared and submitted a list of proposed subcontractors to the architects on the project. This list included the plaintiff as the proposed masonry subcontractor.

Soon after the prime contract was awarded, there was an exchange of papers and correspondence between plaintiff and defendant for the purpose of adjusting various terms and conditions in the proposed subcontract agreement. Finally on March 4, 1974, defendant sent the subcontract back to plaintiff along with a letter stating that defendant had no objections to the changes in the terms of performance proposed by plaintiff and that plaintiff should further reply without delay with its submittals and other terms for a written contract.

Then on March 6, 1974, defendant was informed by the architects that the list of proposed subcontractors which had been submitted for approval was returned and marked unapproved for the reason that the plaintiff had been scheduled as the proposed masonry subcontractor while not having been listed on the bid proposal as one who would do this work. Thereafter, a representative of the defendant made an effort to persuade the architects and the construction supervisor for the San Diego School District to permit the use of plaintiff as the masonry subcontractor on the project. The school district refused to agree to this change in the bid. As a consequence, the masonry portion of the project was not performed by plaintiff.

The motion for summary judgment was supported further by the declaration of William Brown, one of the attorneys for the defendant Roger Ducharme, Inc. This declaration does not set forth any prospective testimony concerning events occurring at the time the disputed transaction occurred but, rather, is directed at the declaration filed in opposition and subscribed by one of the attorneys for the plaintiff. In other words, the declaration is essentially argumentative and adds little in the way of disclosing prospective evidence which would be available to the defense should the case have gone to trial.

Turning to the declarations filed in opposition to the motion for summary judgment, there were two. One of the declarations was subscribed by the attorney for the plaintiff and, as in the case of Mr. Brown's declaration, is essentially argumentative in that it summarizes and discusses the significance of various documentary items which were exchanged in the course of the disputed transaction.

The other declaration filed in opposition was subscribed by C. L. Smith, the president of plaintiff. The factual items which are the subject of his declaration are essentially the same as those set out by Mr. Ducharme except that Mr. Smith declared that the plaintiff and the defendant 'orally agreed upon all the terms and conditions of performance as is more particularly set forth in the attached Subcontract Agreement . . .' The subcontract agreement there referred to was signed by C. L. Smith but not by the defendant. The Smith declaration goes on the state '(t)hat at all times plaintiff and defendants . . . considered plaintiff to be obligated to perform under the terms and conditions of said subcontract . . .'

ISSUES, DISCUSSION AND DISPOSITION

In evaluating a motion for summary judgment, there are two basic tasks to be performed. The decision in Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 42 Cal.Rptr. 449, 398 P.2d 785, observes that the law on the subject is well settled, and states, 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.' (Id. at p. 417, 42 Cal.Rptr. at p. 452, 398 P.2d at p. 788.) This exposition of the decisional process in determining motions for summary judgment has been reiterated in the more recent cases of D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 20, 112 Cal.Rptr. 786, 520 P.2d 10, and Cornelison v. Kornbluth, 15 Cal.3d 590, 596, 125 Cal.Rptr. 557, 542 P.2d 981.

Turning to the declarations above summarized for the purpose of testing them against the guidelines prescribed by precedent, the first question to be answered is whether the declaration of Roger Ducharme points to evidence which, if adduced at trial, would support a judgment for the defendant. To answer this question requires an analysis of the pleadings, more precisely, the two theories of action upon which plaintiff sought to recover.

In the first cause of action, plaintiff pleaded a breach of contract. More explicitly plaintiff alleged tht the parties entered into an 'oral and written agreement which provided in legal effect that plaintiff would provide and furnish the masonry work of improvement on that certain project . . .' As to the alleged agreement, plaintiff's complaint alleges that the defendant 'willfully and unlawfully breached the aforesaid agreement by refusing to permit plaintiff to perform thereunder.' These allegations provide a recognizable framework in which to scrutinize the prospective evidence.

What does Ducharme's declaration have to say on this point? Defendant received an unsolicited oral bid for the masonry work from the plaintiff. The figure submitted by plaintiff was used by defendant in compiling its total bid. After defendant was awarded the prime contract, it sent to plaintiff a form of subcontract agreement 'for the purpose of determining the terms and conditions' of its offer of performance. There was then an exchange of writings which led to preparation of the document which was finally sent to plaintiff. Plaintiff signed the agreement and returned it to defendant. Defendant never signed it but instead informed the plaintiff that plaintiff could not proceed with the masonry work because, through defendant's inadvertence, plaintiff had not been scheduled as a subcontractor on the defendant's bid proposal submitted to the school district and therefore could not legally be utilized on the project.

These are the stated facts according to the defendant. Do they support a legal conclusion that no contract was entered into? We hold that they do. From the details of the transaction related by Ducharme, it can reasonably be Inferred that the intent of the parties was that the terms of their agreement were to be reduced to writing. In ruling upon motions for summary judgment, the trial court is now permitted to draw inferences from related facts set forth in the...

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