Ramos v. City of Santa Clara

• Decision Date: 02 November 1973
• Citation: Ramos v. City of Santa Clara, 110 Cal.Rptr. 485, 35 Cal.App.3d 93 (Cal. App. 1973)
• Court: California Court of Appeals
• Parties: Joseph R. RAMOS, Plaintiff and Appellant, v. CITY OF SANTA CLARA, a Municipal corporation, Defendant and Respondent. Civ. 31859.

Page 485

110 Cal.Rptr. 485

35 Cal.App.3d 93

Joseph R. RAMOS, Plaintiff and Appellant, v.CITY OF SANTA CLARA, a Municipal corporation, Defendant and Respondent.

Civ. 31859.

Court of Appeal, First District, Division 3, California.

Nov. 2, 1973.

Hearing Denied Dec. 27, 1973.

Carl B. Shapiro, San Anselmo, for plaintiff and appellant.

Edwin J. Moore, City Atty., M. Van Smith, Asst. City Atty., Michael R. Downey, Deputy City Atty., Santa Clara, for defendant and respondent.

HAROLD C. BROWN, Associate Justice.

RespondentCity of Santa Clara(hereinafter City) was granted a summary judgment in its favor on the ground that appellant's claims against the City pursuant to a construction contract were barred by a provision of the contract to the effect that acceptance of final payment under the contract released all claims.It is undisputed that such a contract provision existed and that appellant had accepted and negotiated the check for final payment.It is concluded that the complaint and supporting documents raised no question of fact to be resolved by a trial and that summary judgment was properly granted.

Two issues are presented on this appeal.(1) Was the City precluded from asserting the defense of release or accord and satisfaction by failing to plead the defenses?(2) Was the motion for summary judgment properly granted on the ground that appellant's acceptance of the final payment operated as a release?

Appellant is a contractor and performed work for the City under a contract calling for installment payments and specifically providing as follows: '26.Acceptance of Final Payment Constitutes Release.The acceptance by the Contractor of final payment shall be and shall operate as a release to the Owner of all claims and all liability to the Contractor for all things done or furnished in connection with this work and for every act and neglect to the owner and others relating to or arising out of this work.No payment, however, final or otherwise, shall operate to release the Contractor or his sureties from any obligations under this contract or the Performance and Payment Bond.'

The total cost of the project was $406,360.00 of which 10 percent or $40,636.00 was withheld for final payment.On a form filled out in connection with the final payment, appellant wrote at the bottom, 'exception of dewatering trench bottom and some extras.'The final payment of $40,636.00 was paid to appellant by warrant dated August 25, 1970, which warrant was negotiated by appellant.

Appellant initially points out that the affirmative defenses of accord and satisfaction and release must be specially pleaded in order to raise them as issues.(SeeBaker v. Ferrel, 78 Cal.App.2d 578, 579, 177 P.2d 973;Owens v. Noble, 77 Cal.App.2d 2098 2158 175 P.2d 241;3 Witkin, Cal. Procedure (2d ed. 1971) Rescission or Release, § 914, Novation or Account Stated, § 915, p. 2502.)It does not follow, however, that failure to raise the defenses in the answer of necessity precludes asserting these defenses on a motion for summary judgment.A trial court has discretion to allow amendment of any pleading at any stage of the proceedings and it has been said that liberality should be particularly displayed in allowing amendment of answers so that a defendant may assert all defenses available to him.(SeeHyman v. Tarplee, 64 Cal.App.2d 805, 813--814, 149 P.2d 453;Gould v. Stafford, 101 Cal. 32, 34, 35 P. 429;61 Am.Jur.2d, Discretion of Court, § 309, p. 712 et seq.)

Since defenses of release or accord and satisfaction may be decided by summary judgment, provided, of course, that there are no triable issues of fact, it was proper for the trial judge here to permit them to be raised by motion.Appellant did not object at the time the motion was made that the defenses had not been raised first in the answer nor does he argue now that failure to plead the defenses took him by surprise or prejudiced him in any way.In opposition to the motion for summary judgment, appellant contended only that the pre-trial conference order terminated law and motion matters 15 days before trial so that the court did not have jurisdiction without a modification of the pre-trial conference order to hear the motion.Although there was no formal written modification of the pre-trial conference order, the court, by hearing and granting the motion, modified its pre-trial conference order.Appellant suggests no rule or principle which would forbid acceptance of the actions of the court in this situation as an amendment of the pre-trial conference order.(SeeGonzales v. Brennan, 238 Cal.App.2d 69, 47 Cal.Rptr. 501.)

In disputing the propriety of granting the motion for summary judgment, appellant takes the position that the case contains questions of fact to be resolved at trial.These questions of fact concern the intentions of the parties in including the language of paragraph 26 in the contract and in tendering and accepting the final contract payment.There is concededly no question that the contract contained paragraph 26 and that the check was accepted and cashed.

It should be noted that paragraph 26 of the contract did not itself release future claims.It merely provided a means of release, i.e., by acceptance of the final payment.It should also be noted that appellant did not file any...