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 |
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.DefendantShell 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, plaintiffHayter 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, defendantShell Western E & P, Inc., a Delaware corporation, conducted oil field operations in Kern County.DefendantShell 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 ORDERNO. 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 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.
Purchase order No. AFSB-823087-CA, 2 as amended by the fifth alteration, stated in relevant part:
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:
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:
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