Roy Brothers Drilling Co. v. Jones

• Decision Date: 28 August 1981
• Citation: 123 Cal.App.3d 175,176 Cal.Rptr. 449
• Parties: ROY BROTHERS DRILLING COMPANY, a Corporation, Plaintiff, Cross-Defendant and Appellant, v. Robert E. JONES and Beverly A. Jones, Defendants, Cross-Complainants andRespondents. Civ. 60171.
• Court: California Court of Appeals Court of Appeals

Page 449

176 Cal.Rptr. 449

123 Cal.App.3d 175

ROY BROTHERS DRILLING COMPANY, a Corporation, Plaintiff, Cross-Defendant and Appellant, v. Robert E. JONES and Beverly A. Jones, Defendants, Cross-Complainants andRespondents.

Civ. 60171.

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

Aug. 28, 1981.

John A. Weyl, Hollywood, for plaintiff, cross-defendant and appellant.

Robert E. Jones and Beverly A. Jones, in pro. per.

POTTER, Acting Presiding Justice.

Plaintiff and cross-defendant Roy Brothers Drilling Company appeals from a judgment that it "take nothing by way of its Complaint" rendered after the motion of defendants and cross-complainants Robert E. Jones and Beverly A. Jones for summary judgment was granted.

The complaint sought recovery of $26,139.65 for services rendered in the construction of improvements upon real property of defendants at "agreed and reasonable" prices for various services described as "to drill and insert casing and related works of improvement." Appellant's opening brief states that said services were "in connection with the building of a residence in Malibu, California, to drill holes in connection with the foundation work of such residence." As required, the complaint alleged that plaintiff was "duly licensed as a contractor under the laws of the State of California at all times herein mentioned during the performance of its contract with the Defendants." In their answer, defendants denied this allegation and concurrently moved the court for a summary judgment based upon plaintiff's lack of the required license.

In his declaration in support of the motion for summary judgment, defendant Robert E. Jones testified that the services performed by plaintiff were limited to "the drilling of caisson holes, excavation for the installation of the basement and the drilling of holes for the installation of retaining walls" and specifically did not relate to "the installation of the sanitation system installed in connection with the construction of the residence on the property."

Attached to the Jones declaration as exhibits were: (1) a statement dated October 2, 1978, from plaintiff corporation, showing contractor's license number 273804 for the claimed balance of $26,139.65; (2) a certified statement from the Contractors' State License Board showing that license number 273804 was issued to Roy Brothers Drilling Company, a corporation, on January 31, 1972, and that the sole class of license held was "C-42 (Sanitation System)"; (3) Jones' November 30, 1978 letter inquiry to the contractors' State License Board regarding "the specific specialty contractor's license required" to drill "holes for caissons for foundations," and for "the setting of steel casings for later installation of steel reinforced caissons" involving "the use of a rotary drilling rig, and, occasionally, a bulldozer to remove boulders and cobbles"; and (4) the Registrar's response of December 27, 1978, stating: "It is our administrative interpretation of the Contractors License Law and the Rules and Regulations of the Contractors' State License Board that the C-61, Drilling, classification is proper to engage in the work as you describe it."

In opposition to the motion, plaintiff filed a declaration of its president, Herbert Darrell Roy. Roy's declaration alleges that he personally has held a C-42 contractor's license since in or about the year 1954, and that the predecessor partnership of plaintiff corporation, called Roy Brothers Drilling Company, was similarly licensed. While so licensed, the partnership received a letter, dated February 28, 1957, from an examiner with the Registrar of Contractors responding to a prior partnership inquiry as follows: "In reply to your letter of February 25, 1957, your C-42 license would cover any type of drilling except water well drilling. You may drill test holes, draining holes, etc." Mr. Roy agreed that the plaintiff was hired "to drill holes in connection with the foundation work to be performed" in the construction of defendants' home, and averred (1) that all such work was done at the request of defendant Robert E. Jones, and (2) that neither defendant complained about the work performed.

After submission of the motion, the court rendered its memorandum opinion. The court noted the apparently conflicting letter opinions from the Contractors' State License Board personnel, relied upon by the opposing parties, but found the applicable provisions of the California Administrative Code determinative, and ruled: "Motion for summary judgment on complaint is granted."

Prior to the rendition of the memorandum opinion, defendants filed a cross- complaint against plaintiff for breach of contract and fraud arising out of the contract between them and the performance thereof, ¹ and plaintiff answered generally denying its allegations. In its opinion, the court referred to the cross-complaint as follows: "The cross-complaint does not lend itself to summary judgment and is not involved in the decision."

Despite the fact that the cross-complaint remained pending and at issue, the court entered the judgment upon the complaint that plaintiff "take nothing." This appeal followed.

The judgment was premature and in violation of the one-judgment rule. As stated 6 Witkin, California Procedure (2d ed. 1971) Appeal, section 46, page 4060:

"If the court attempts a piecemeal disposition of each claim or issue by rendering a number of 'final judgments,' the earlier judgments are premature, void and nonappealable.

"Thus, an appeal will be dismissed where a purported final judgment is rendered on a complaint without adjudicating the issues raised by a cross-complaint." (Citations.)

Besides noting that the judgment was premature, this court recognized that "(t)he effect of the one judgment rule has ... been avoided in several cases 'in the interests of justice and to prevent unnecessary delay ... by amending the judgment on appeal as needed and then construing the notice of appeal as from the judgment, as amended, ...' (Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 418 (123 Cal.Rptr. 669); see also Gombos v. Ashe (1958) 158 Cal.App.2d 517, 524 (322 P.2d 933).)." (DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 432, 160 Cal.Rptr. 899.)

The court also was cognizant of the fact that in Williams v. Travelers Ins. Co. (1975) 49 Cal.App.3d 805, 808, footnote 1, 123 Cal.Rptr. 83, such an amendment was found appropriate on the basis of the court's conclusion that a cross-complaint, the pendency of which destroyed the finality of the judgment, could on the basis of the record be "deemed abandoned."

In view of Williams, the court advised the parties of the jurisdictional defect and suggested the possibility that defendants had abandoned their cross-complaint and would consent that it be deemed abandoned so that the purported judgment could be amended to make it dispose of the cross-complaint as well as the complaint. In response to this inquiry, defendants and cross-complainants filed their written consent that the judgment be so amended.

In view of such consent, the judgment below, if affirmed, can be amended so as to dispose of the cross-complaint and thus finally determine the action. So amended, it is an appealable final judgment. (Ibid.) The merits of the appeal have been thoroughly briefed and unnecessary delay would result from a dismissal of the appeal. Accordingly, we address the merits.

Contentions

Plaintiff contends that: (1) defendants' moving papers are insufficient in that they fail to state that the facts are within the personal knowledge of declarant and consist mostly of inadmissible hearsay; (2) plaintiff was properly licensed to perform the work contracted for, and (3) plaintiff substantially complied with the license requirement and defendants would be unjustly enriched if recovery were denied.

Defendants controvert all of plaintiff's contentions.

Discussion

Summary

Defendants' declarations showed the declarants' personal knowledge of the nonhearsay matters therein stated. Insofar as it showed the license status of the plaintiff, the certificate of the registrar was not hearsay and what it shows is admitted by plaintiff in any event. The admitted facts establish that plaintiff was not duly licensed to perform the work contracted for and that plaintiff did not substantially comply with the license requirement. Under the circumstances, the summary judgment was properly granted.

Defendant's Declaration Adequate

The declaration of Robert E. Jones contains no statement in accordance with Los Angeles Superior Court Law and Motion Policy Memorandum, section 72, stating that "the facts set forth are personally known to the declarant and that he has firsthand knowledge of the same." The requirement of the law in this respect is stated in Code of Civil Procedure, section 437c, as follows:

"Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The requirement of this section is not that the declarant recite the conclusion that he can competently testify but that he allege facts showing his competence. The declaration of Robert E. Jones clearly shows his competence to testify with respect to the negotiation of the contract with plaintiff which he "personally handled" and to establish the foundation for documents comprising: (1) a bill for services which he "received" from plaintiff, (2) letter inquiries sent by him to the Contractors' State License Board, and (3) replies which he "received" from the board. The only valid objection to the exhibits, therefore, is to any hearsay contained therein.

The Jones declaration is likewise sufficient to establish the agreed scope of the work. Certainly, a party who "personally handled all of the negotiation by which plaintiff...