Leo F. Piazza Paving Co. v. Foundation Constructors, Inc.

• Decision Date: 06 October 1981
• Docket Number: No. 46613,46613
• Citation: 177 Cal.Rptr. 268,128 Cal.App.3d 583
• Court: California Court of Appeals Court of Appeals
• Parties: LEO F. PIAZZA PAVING COMPANY, Cross-Complainant and Appellant, v. FOUNDATION CONSTRUCTORS, INC., Cross-Defendant and Respondent. Civ.

Page 268

177 Cal.Rptr. 268

128 Cal.App.3d 583

LEO F. PIAZZA PAVING COMPANY, Cross-Complainant and Appellant, v. FOUNDATION CONSTRUCTORS, INC., Cross-Defendant and Respondent.

Civ. No. 46613.

Court of Appeal, First District, Division 2, California.

Oct. 6, 1981.

James D. Biernat, Richard B. Barrett, Law Offices of Richard B. Barrett, Burlingame, for cross-complainant and appellant.

Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Michael J. Brady, Redwood City, for cross-defendant and respondent.

TAYLOR, Presiding Justice.

Leo F. Piazza Paving Company (Piazza), one joint venturer on prime contract, appeals from summary judgment ¹ granted to Foundation Constructors, Inc. (Foundation), a subcontractor, on Piazza's first amended cross-complaint seeking express indemnity in a personal injury action filed by Searls (Foundation's employee) against Piazza and Lew Jones (the other joint venturer). The only question on appeal is whether Piazza was a party to the express indemnity clause of the subcontract between Jones and Foundation. For the reasons set forth below, we have concluded that Piazza was not; therefore, the summary judgment must be affirmed.

The facts as set forth in Foundation's affidavits are as follows:

On June 27, 1972, Santa Clara County (County), as owner, entered into a prime contract with Jones, a joint venture, for the improvement of the Almaden Expressway. The prime contract defined the "contractor" as Piazza-Jones. Subsequently, on August 2, 1972, Piazza and Jones entered into a joint venture agreement. Paragraph 2 divided the work so that Jones was to perform bid items 40 through 57, other bid items as specified and supplemental work as assigned, as well as all of the structural concrete work; Piazza was to perform the balance. Paragraph 3 provided for a division of payments so that each joint venturer was to receive payment for the items allocated by Paragraph 2.

Paragraph 4 provided that each was to hold the joint venture harmless for any and all liability or responsibility as to the bid items so divided. Each joint venturer was bound between itself and the other joint venturer to the performance of its bid items. Profits and losses were to be strictly applied between the joint venturers as if each were a single unit. Neither was entitled to share in any overall profit or the profit of the other. Paragraph 4 further provided: "Neither shall be entitled to share in any overall profit or any profit made by the other, and each Joint Venturer shall bear its own loss, if any." (Emphasis added.)

Paragraph 8 stated that the joint venture would carry comprehensive bodily injury and other insurance. Each joint venturer was to pay its portion of the premium in the proportion that the amount of its work bore to the total paid by the County. Each joint venturer was also to carry its own workmen's compensation insurance.

Paragraph 13 provided that within the limits prescribed by the County, each joint venturer may subcontract any particular bid items and "shall remain fully responsible therefor " (emphasis added).

On August 25, 1972, Jones entered into a standard form subcontract with the Foundation for the performance of prime contract item numbers 47 and 48, the furnishing and driving of concrete piling. The prime contract was incorporated by reference. The subcontract designated Jones as "contractor" and Foundation as "subcontractor." The subcontract obligated Foundation to strict conformance with the conditions of the prime contract "that are familiar to the subcontractor." Paragraph I provided that Foundation would indemnify, save harmless and defend the owner and contractor for any occurrence, fault or negligence of the subcontractor.

On May 16, 1974, Arden B. Searls, a Foundation employee, was injured when he fell from an auger at the construction site. Searls instituted the underlying civil action against Piazza and Jones, individually, and as joint venturers. Pursuant to its subcontract, Foundation undertook its contractual obligations to indemnify Jones for any liability.

On October 15, 1976, Piazza filed a first amended cross-complaint for indemnity against Foundation predicated on the theory that the subcontract created a direct contractual relationship between Piazza and Foundation. Piazza alleged that it was entitled to the benefit from the express indemnity provisions, as the term "contractor," as used in Paragraph I of the subcontract referred to the joint venture.

In its motion for summary judgment, Foundation urged that express contractual indemnity was owed only to Jones, who was the "contractor" specified by the terms of the subcontract. No counteraffidavits were filed, ² and the trial court granted Foundation's motion for summary judgment.

As there are no counteraffidavits, we are relegated, therefore, to a determination of whether Foundation's affidavits are sufficiently supportive of the summary judgment (Goldstein v. Hoffman, 213 Cal.App.2d 803, 810, 29 Cal.Rptr. 334.) ³

In the absence of counteraffidavits, the court is required to grant a motion for summary judgment where the affidavits of the moving party satisfy the following requirements: 1) the affidavits must contain facts sufficient to entitle the moving parties to a judgment, i. e., facts establishing every element necessary to sustain a judgment; 2) the facts must be set forth with particularity, all requisite evidentiary facts must be stated, and not the ultimate facts or conclusions of law; and 3) each of the affiants must show that if sworn as a witness he can testify competently to the evidentiary facts contained in the affidavit (Goldstein, supra, p. 811, 29 Cal.Rptr. 334). Neither the trial court nor the appellate court may weigh evidence (Freidberg v. Freidberg, 9 Cal.App.3d 754, 763, 88 Cal.Rptr. 451). Therefore, affidavits need only disclose evidence supporting a possible cause of action, they need not prove it (McHugh v. Howard, 165 Cal.App.2d 169, 174, 331 P.2d 674).

When no affidavits are filed in opposition to a motion for summary judgment, the court is entitled to accept as true the facts alleged in the movant's affidavits, provided they are within the personal knowledge of the affiant and are facts to which he could competently testify (Beech Aircraft Corp. v. Superior Court, 61 Cal.App.3d 501, 520, 132 Cal.Rptr. 541; Kimball v. County of Santa Clara, 24 Cal.App.3d 780, 784, 101 Cal.Rptr. 353; Goldstein v. Hoffman, supra, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334).

Where no triable issues of fact are presented, and the sole remaining question is one of law, it may appropriately be determined on a motion for summary judgment (Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725; Rader v. Thrasher, 22 Cal.App.3d 883, 887, 99 Cal.Rptr. 670; Burke Concrete Accessories, Inc. v. Superior Court, 8 Cal.App.3d 773, 775, 87 Cal.Rptr. 619).

In reviewing a summary judgment, we are limited to the facts shown in the affidavits and those admitted and uncontested in the pleadings. We determine only whether the facts so shown give rise to a triable issue of fact (Albertini v. Schaefer, 97 Cal.App.3d 822, 828, 159 Cal.Rptr. 98; Jacobs v. Retail Clerks Union, Local 1222, 49 Cal.App.3d 959, 966-977, 123 Cal.Rptr 309; Lord v. County of Marin, 214 Cal.App.2d 25, 28, 29 Cal.Rptr. 248; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 598, 334 P.2d 968). Further, a motion for summary judgment is addressed to the sound discretion of the trial court. In the absence of a clear showing of abuse of discretion, the judgment will not be disturbed on appeal (Brewer v. Home Owners Auto Finance Co., 10 Cal.App.3d 337, 341, 89 Cal.Rptr. 231).

The record indicates that Foundation's affidavits included the relevant portions of depositions of its president, L. F. Cavin, its attorney, R. G. Simpson, and construction manager, J. L. Hilton, as well as Piazza's president at the time of the accident, J. P. Silvestri and Piazza's project supervisor, G. A. Wynn.

Silvestri testified that the joint venture agreement with Jones explicitly segregated the duties of the joint venturer so that Piazza was responsible only for its own work. Piazza had no obligation or responsibility for the work performed by any of Jones' subcontractors. Piazza had no knowledge of, and had never seen, the subcontract executed by Jones and Foundation. Wynn indicated that he was not familiar with Foundation and had no contact with any of Foundation's employees, as they "were Jones sub and were completely under Jones supervision."

Cavin, who negotiated the subcontract for Foundation with Jones, averred that: 1) no representations were made that Jones entered the subcontract on behalf of the joint venture; 2) Piazza was not a party to the subcontract; and 3) Foundation entered no agreement with Piazza and never intended that Piazza be a party to the subcontract. Hilton confirmed Foundation's understanding that the subcontract was only with Jones.

Piazza argues that the trial court erroneously relied on the above quoted extrinsic evidence to construe the ambiguous term "contractor" as used in Paragraph I of the subcontract. However, here there was no conflict in the extrinsic evidence or any indication that there was any ambiguity in the term as used in the subcontract. As Piazza failed to file any counteraffidavits, the trial court was entitled to accept Foundation's facts as true.

Here, the requisite evidentiary facts were stated with sufficient particularity to indicate that the facts are within the personal knowledge of the affiants who could competently testify to those facts if called as witnesses (Coyne v. Krempels, 36 Cal.2d 257, 262, 223 P.2d 244; Goldstein v. Hoffman, supra, 213 Cal.App.2d 803, 814, 29 Cal.Rptr. 334).

Piazza erroneously attempts to rely on its complaint to counter Foundation's affidavits in support of the motion for summary judgment. Failure to file affidavits cannot be remedies by resort to the pleadings (...