Continental Const. Co. v. Thos. F. Scollan Co.

• Decision Date: 08 July 1964
• Citation: 228 Cal.App.2d 385,39 Cal.Rptr. 432
• Court: California Court of Appeals Court of Appeals
• Parties: CONTINENTAL CONSTRUCTION COMPANY et al., Plaintiffs and Appellants, v. THOS. F. SCOLLAN CO., etc., Defendant and Respondent. Civ. 10848.

Page 432

39 Cal.Rptr. 432

228 Cal.App.2d 385

CONTINENTAL CONSTRUCTION COMPANY et al., Plaintiffs and Appellants, v. THOS. F. SCOLLAN CO., etc., Defendant and Respondent.

Civ. 10848.

District Court of Appeal, Third District, California.

July 8, 1964.

Robert M. Cole, Davis, for appellants.

Wilson Craven, Sacramento, for respondent.

MOOR, Justice pro tem.

Appellants, who are general contractors, brought this action to recover for property damage caused by fire at a construction site. Respondent was one of several subcontractors named defendants. Respondent was granted a summary judgment and appellants appeal.

According to the complaint the Continental-Heller Construction Company, a joint venture, was the general contractor for the construction of the Weinstock-Lubin store located at El Camino and Watt Avenue in Sacramento. On September 22, 1960, a fire occurred which damaged appellants in the amount of $4,620.24. The complaint alleges that the fire was caused by the negligence of Jack H. Broughton, a welder, and various Does; and that at the time of such negligent acts Broughton and the various Does were employed by each of the several named subcontractors, including respondent. Respondent answered denying that Broughton was an employee and denying that any of its employees were negligent.

At the pretrial conference the court resolved the contentions of the parties and the issues of the case. Because the pretrial conference order becomes the key to the solution of the questions involved the pertinent portions thereof are set out in full:

'The fictitious defendants may be and they are hereby dismissed, with the exception of White Company I; Jack Dymond Lathing Company having been sued herein as White Company I.

'This is an action brought by plaintiff general contractor against various subcontractors or employees of subcontractors, all being engaged in the construction of the Weinstock-Lubin store premises at Country Club Centre.

'It is contended by the plaintiff that defendants or agents of defendants negligently started a fire in the premises while under construction. Plaintiff contends that the fire was started through negligence of the defendant Jack H. Broughton and contends that he was an agent, servant, or employee of each of the other defendants. Each of and all of the other defendants deny that Broughton was an employee and further denies he was acting within the course and scope of any agency or employment for the denying defendant.

'The issues to be determined upon trial are therefore as follows:

'1. Negligence of the defendant Broughton.

'2. Agency or employment of defendant Broughton by or for any of the other defendants.

'3. Whether he was acting within the course and scope of any agency or employment if it is established he was an agent of any defendant.'

There was no request for correction or modification of the pretrial conference order prior to this appeal, and this court accepts the pretrial conference order as defining and limiting the issues in the case. (Rule 216, California Rules of Court; Baird v. Hodson, 161 Cal.App.2d 687, 327 P.2d 215.)

Following the pretrial conference respondent filed its motion for summary judgment and offered in support of the motion an affidavit by its foreman, stating that its men were working on the east side of the building on the second floor; that none of them had any occasion to be or were near the area where the fire originated; that in the plastering operations no welding was being done or tools used which would cast off sparks; that Scollan's employees had not smoked in or around the point of origin of the fire on the day in question; and that Jack H. Broughton was not the employee of respondent Scollan Company.

Respondent's affidavit, while dealing with evidentiary matters not raised as issues by the pretrial conference order, nevertheless, squarely met the issue of Jack H. Broughton's employment by denying that employment. Respondent's foreman on the job could testify directly to that fact from the nature of his position. Therefore, the affidavit contains 'facts sufficient to entitle * * * defendant to a judgment in the action' (Code of Civ.Proc. sec. 437c), and clearly supports the action of the trial court in granting summary judgment to respondent.

'* * * A summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counteraffidavits do not proffer competent and sufficient evidence to present a triable issue of fact. (Burke v. Hibernia Bank, 186 Cal.App.2d 739, 740, 9 Cal.Rptr. 890.) Accordingly, in order to determine whether the instant summary judgment will stand, we must consider, in the light of the applicable legal principles, whether the defendant's affidavits meet the test of sufficiency. As stated in Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 333 P.2d 133, 'there first must be a sufficiently supportive affidavit before the defects of any counteraffidavit, either of form or substance, need be examined; * * *.' (Page 366 [of 166 Cal.App.2d], 333 P.2d [133 page 141]; emphasis added.)' (Kramer v. Barnes, 212 Cal.App.2d 440, 445-446, 27 Cal.Rptr. 895, 898.)

To create a triable issue in the case, appellants' counteraffidavit must, by its contents, set forth alleged facts concerning the employment of Jack H. Broughton which would contradict or in some manner disprove respondent's affidavit in that respect.

The trial court properly refused to consider appellants' affidavit in opposition to the motion for summary judgment.

Section 437c of the Code of Civil Procedure sets forth the minimum requirements which the affidavit in opposition to the motion for summary judgment must possess before the court can consider the affidavit for the purposes for which it was submitted. '* * * The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can...