Hayter Trucking, Inc. v. Shell Western E&P, Inc.
Decision Date | 25 August 1993 |
Docket Number | No. F016359,F016359 |
Citation | 18 Cal.App.4th 1,22 Cal.Rptr.2d 229 |
Court | California Court of Appeals Court of Appeals |
Parties | HAYTER TRUCKING, INC., Plaintiff and Appellant, v. SHELL WESTERN E & P, INC., Defendant and Respondent. |
Klein, Wegis, DeNatale, Hall, Goldner & Muir, David J. Cooper and Barry E. Rosenberg, Bakersfield, for plaintiff and appellant.
Borton, Petrini & Conron and Mark A. Jones, Bakersfield, for defendant and respondent.
Plaintiff transportation firm appeals from a defense judgment in an action for termination of a contract for vacuum truck services. 1
On January 31, 1991, plaintiff filed a complaint for breach of written contract, naming Shell Western E & P, Inc., and 50 Does as defendants and praying for compensatory damages according to proof. Defendant Shell Western demurred to the complaint on the grounds it did not state facts sufficient to constitute a cause of action (Code Civ.Proc., § 430.20, subd. (a)) and, after a contested hearing, the trial court sustained defendant's demurrer with 20 days leave to amend.
On April 18, 1991, plaintiff filed a first amended complaint for breach of written contract. The first amended complaint pleaded the same cause of action but in greater detail. Defendant again demurred, alleging the pleading did not state facts sufficient to constitute a cause of action.
On June 4, 1991, the court conducted a contested hearing and sustained the demurrer without leave to amend, and on June 11, 1991, the court filed a formal order on demurrer to the first amended complaint.
On or about June 14, 1991, plaintiff moved for reconsideration (Code Civ.Proc., § 1008) of the order sustaining demurrer to the first amended complaint. Plaintiff alleged a different state of facts supporting the motion and attached a proposed second amended complaint to its pleading. On July 2, 1991, the court conducted a contested hearing and denied the motion by minute order and, on July 16, 1991, filed a formal order denying plaintiff's motion for reconsideration.
Plaintiff filed a timely notice of appeal.
In 1987, plaintiff Hayter Trucking, Inc., a California corporation, performed vacuum truck services for oil industry clients from its principal place of business in Taft, California. That same year, defendant Shell Western E & P, Inc., a Delaware corporation, conducted oil field operations in Kern County. Defendant Shell Western, an affiliate of Shell Oil Company, operated the Kernridge Production Division at Highway 33 and 7th Standard Road, 12 miles north of McKittrick.
In the fall of 1987, defendant requested bids on vacuum truck services to be rendered on its Kernridge Production Division facility. Plaintiff submitted a bid on a Shell proposal form and defendant eventually selected plaintiff as the successful bidder. On December 2, 1987, plaintiff and defendant entered into a separate written contract entitled "PURCHASE ORDER NO. AFSB-823087-KD." Pursuant to that contract, plaintiff agreed to provide defendant with vacuum truck services at Shell's facilities in Kern County from December Purchase order No. AFSB-823087-CA, 2 as amended by the fifth alteration, stated in relevant part:
3, 1987, through January 31, 1989. Plaintiff and defendant agreed to four alterations to the purchase order during the term of the contract. The alterations occurred on January 19, 1988, July 21, 1988, August 22, 1988, and January 10, 1989. On January 22, 1990, plaintiff and defendant entered into a fifth alteration of the purchase order. The terms of the alteration were effective from February 1, 1990, through January 31, 1992.
On February 6, 1990, Charles E. Beard, president of plaintiff corporation, signed a written acceptance of the fifth alteration of the purchase order. Pursuant to that acceptance, plaintiff approved the face of the purchase order, the general and work order conditions printed on the back of the purchase order, and applicable attachments and specifications. These attachments included the "SHELL WESTERN E & P, INC. PURCHASE AND BLANKET ORDER STANDARD TERMS AND CONDITIONS." The standard terms and conditions stated in relevant part:
"1.1 BUYER [defendant] reserves the right to suspend services immediately at any time and/or terminate the order immediately if, in BUYER's opinion, serious harm would otherwise result to BUYER's operations due to activity of CONTRACTOR or quality of product. BUYER would then be free to engage "1.2 This order is issued subject to BUYER's option to reduce or cancel purchase commitment in the event of a noncompetitive price increase, quality deficiency, failure to deliver as scheduled or other unsatisfactory service.
the services of another contractor if necessary for continuity of operations.
On November 8, 1990, defendant sent plaintiff a copy of alteration No. 9 to purchase order No. AFSB-823087-CA. The ninth alteration was designed to "[p]rovide thirty (30) days notice that, effective 12/9/90, this Order is cancelled in its entirety." Plaintiff's president subsequently signed, but did not date, an acceptance letter as to the ninth alteration.
Plaintiff's first amended complaint alleged in relevant part:
Defendant demurred to the first amended complaint, arguing:
"In its original complaint, plaintiff alleged that its understanding of the termination clause was that the provision could be exercised only for 'good cause.' Plaintiff further asserted that this understanding was in accordance with an alleged trade, custom and usage that contracts for services similar to those to be provided under the Shell/Hayter contract could be terminated only for 'good cause.' The Kern County Superior "The sole difference between plaintiff's original complaint and...
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