Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCS-027081
OPINION
Pollak, Acting P. J.
Fusion Bonding Coating Systems, Inc. (FBC) appeals from an adverse summary judgment in favor of Regional Steel Corporation (Regional Steel), a subcontractor for steel rebar on the construction of the new Benicia Martinez Bridge. Regional Steel subcontracted with FBC and with a second company to epoxy coat portions of the rebar that Regional Steel was providing to the project. The original contract documents between Regional Steel and FBC specified approximate quantities of different configurations of rebar that would be coated at specified unit prices. After a lengthy delay on the project that was the fault of neither Regional Steel nor FBC, FBC provided Regional Steel with a series of increased unit prices necessitated by the passage of time. Regional Steel paid FBC the higher unit prices for the rebar that FBC coated subsequent to the submission of the higher prices, but sent the bulk of the remaining rebar to FBC’s competitor, which agreed to perform the epoxy coating at lower unit prices. FBC sued Regional Steel for breach of contract in failing to provide it with the approximate quantities of work to perform specified in the original agreement. Following discovery, the trial court granted Regional Steel’s motion for summary judgment. Finding no error, we shall affirm.
Background
The following facts appear without dispute in the papers supporting and opposing the motion for summary judgment. Regional Steel was a subcontractor of Kiewit Pacific Company (Kiewit), the general contractor for the California Department of Transportation’s (Caltrans) project to construct the new Benicia-Martinez Bridge (the project). Regional Steel subcontracted the epoxy coating of portions of the reinforcing steel, or “rebar,” that it was to supply the project to FBC and to a competitor, Fletcher Coating Company (Fletcher). The contract with FBC consisted of Regional Steel’s purchase order number 21915, dated January 17, 2002, with an attachment dated January 31, 2002, which states, “Approximate quantities are: [¶] straight bar 10,000,000 pounds imperial[;] [¶] bent bar 4,250,000 pounds imperial . . . .” The attachment also states that “price is based on FBC quote dated 25-Jan-02 (copies attached) for unit price invoicing.” The attached quotation, on an FBC form entitled “Job Estimate Sheet,” specified $23 per hundredweight for “Straight Bar” and $26 per hundredweight for “Bent Bar.” The job estimate sheet lists somewhat greater quantities for each of these two configurations, and for other configurations for which zero quantities are stated on the attachment to Regional Steel’s purchase order. In February 2002, the parties revised the agreement to reflect that “T-heads,” a modified form of straight bar, would be billed at the same rate as bent bar. FBC began epoxy coating for Regional Steel in January 2002.
The attachment also states, among other things: “FBC to provide epoxy coating of rebar in accordance with the plans, specifications and addenda of” the Benicia Martinez Bridge project. “FBC to provide adequate [resources] to comply with the project schedule (available upon request). Total duration shall be approximately 14 to 16 months beginning January 2002,” and that “Failure to comply with any of these provisions may result in alteration of the approximate quantity and/or termination of this purchase order at the option of Regional Steel.” Another attachment to the purchase order, entitled “Epoxy Coating Rebar Scope for Fabricators,” states that it “outlines the minimum requirements required by [FBC] to insure that FBC can comply with Caltrans Special Provisions . . . .” Nothing in this document refers to the quantity of steel to be coated.
In late 2002 Caltrans suspended work on the project and work did not fully resume until the latter part of 2004. During the shutdown, FBC performed some epoxy-coating work for which it was fully paid. When work resumed in 2004, both FBC and Fletcher submitted new proposals for the remaining epoxy coating work. FBC submitted a series of proposals on job estimate sheets dated March 5, 2004, July 16, 2004 (two proposals), July 20, 2004, and August 30, 2004, all of which were for various “escalated” prices. The parties disagree as to whether any agreements were reached concerning FBC’s requests for escalated prices, but there is no dispute that FBC indicated it was demanding price increases and did not agree to continue performing the work at the unit prices specified in the 2002 documents. It is also undisputed that Regional Steel delivered additional rebar to FBC for epoxy coating and paid FBC for that work at the unit prices requested by FBC in its March 5, 2004 proposal. The major portion of the remaining epoxy coating, however, was performed by Fletcher at lower prices than proposed by FBC.
The interaction is characterized by Regional as follows: “As work for this phase of the Project resumed in 2004, FBC submitted new proposals to Regional Steel to epoxy coat rebar for the Project at various unit prices with various estimated quantities. Regional Steel did not accept any of said proposals.” FBC disputes this characterization, asserting, “As a result of the lengthy time period occasioned by the Caltrans ordered work stoppage, FBC analyzed its anticipated increases in costs to epoxy coat the steel for the Project, known as ‘escalation,’ and provided this analysis to Regional so that the increases in its future labor, materials, and overhead could be factored into pricing for the future work and passed up the chain to Caltrans for payment. . . . On March 5, 2004, FBC submitted written updated pricing to Regional, agreed to by Fabrice Brugere, that included this escalation ‘to increase original prices after delay period per Fabrice.’ . . . Because the escalation in price was the only term being modified by the parties, the document memorialized the agreed price escalation and included no ‘Quantity’ information whatsoever. . . . It is undisputed that thereafter, Regional shipped numerous loads of steel for coating to FBC at the escalated prices reflected in the March 5, 2004 confirming document. . . . It is further undisputed that Regional paid each and every such invoice submitted by FBC that included this escalation.”
FBC’s first amended complaint alleges a single cause of action against Regional Steel for breach of contract. The complaint alleges that “[o]n January 17, 2002, . . . Regional Steel issued Purchase Order RSC 21915 (‘the agreement’) and thereby entered into a written contract with FBC . . . to provide labor, services and materials on the Project as a subcontractor to Regional Steel which included application of epoxy coating to rebar.” The complaint alleges that under the contract, Regional Steel was “obligated to deliver to FBC ‘Coatable Steel’ both in T-head bars and Bent forms to FBC’s facility. The quantities due under the Agreement were as follows: T-heads — 8,600,000 lbs, and Bent — 4,250,000 lbs. Regional Steel made a partial delivery of its contractual obligation in the following amounts: T-heads — 2,131,703 lbs., and Bent — 2,878,867 lbs., resulting in shortages of 6,468,297 lbs. of T-heads and 1,371,133 lbs. for Bent. Despite the written demand made by FBC on October 25, 2005 for payment of losses incurred by plaintiff, defendant has refused and continues to refuse payment of same.”
The record does not clearly indicate the explanation for the discrepancy between the quantities estimated in the attachment to Regional Steel’s purchase order and the allegedly agreed upon quantities as set forth in the complaint, but the discrepancy is not material to the conclusions we reach.
Regional Steel denied the allegations, asserted a number of affirmative defenses and, ultimately, moved for summary judgment. Although the court’s tentative ruling was to deny the motion because of several disputed factual issues, following argument the court granted the motion. In its order the trial court stated: “1. . . . [¶] The contract called for plaintiff to coat an approximate quantity of steel. Plaintiff has presented no evidence that the contract at issue is anything other than a unit price contract. There is no evidence that the contract called for a lump sum to be paid to plaintiff, or that there was a guaranteed minimum amount of steel to be coated by plaintiff. . . . [¶] Plaintiff has been paid for all work performed under the contract at the specified unit prices. There is no breach by defendant. [¶] 2. There are no triable issues as to any material fact, and defendant Regional Steel . . . is therefore entitled to summary judgment in its favor as to all causes of action . . . .”
The trial court also sustained three of Regional Steel’s objections to FBC’s evidence submitted in opposition to the motion for summary judgment: an “excerpt from the Caltrans Specifications, Section 4,” and two documents that are not at issue in this appeal.
Discussion
1. Summary Judgment
FBC argues both that there is a triable issue of fact as to the meaning of the parties’ agreement and that, in all events, the court misinterpreted the contract. As characterized in its brief on appeal, “the breach arose out of Regional Steel’s failure to ship more than 6 million pounds of steel to FBC for coating called for by the purchase contract.” FBC states that “the object of the contract between FBC and Regional Steel was to coat steel of the types and quantities stated in the purchase order, at the agreed upon unit prices. A trier of fact, presented with the issue, could have found that the effect of Regional Steel’s diversion of the substantial amounts of steel to Fletcher was to alter the scope of work called for by the purchase order.” Regional, on the other hand, contends that the contract was a “unit price contract” and as such did “not guarantee . . . any particular amount of work or compensation.”
“[A]fter a motion for summary judgment has been granted [by a trial court], [an appellate court] review[s] the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) On review of an order granting or denying summary judgment, “we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. ’ ” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201.) “Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] ‘ “We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
Although FBC argues that there are triable issues of material fact that preclude summary judgment, nowhere does it refer to any specific fact that is controverted and material to the resolution of its claim. While there is a factual dispute as to whether the parties agreed to the increased unit prices that FBC requested in 2004, there is no dispute that FBC was paid the increased prices it requested for all of the work that it performed after work on the project resumed, and it makes no contention that there was any agreement in 2004 with respect to the quantities of rebar on which it would perform epoxy coating. Rather, FBC contends the agreement entered in 2002 required Regional Steel to furnish approximate quantities that it failed to provide, and that nothing in the subsequent proposals over pricing changed the quantities that Regional Steel was obligated to deliver. The fundamental question on which summary judgment depends is whether the 2002 agreement obligated Regional Steel to provide a greater quantity of rebar to FBC for coating than it in fact delivered. This question in turn depends on whether the approximation of quantities appearing in the attachment to Regional Steel’s purchase order was simply an estimate for purposes of planning and cost-estimating, or whether the approximate quantities were intended to establish minimum quantities that Regional Steel was obligated to furnish and FBC was obligated to perform.
FBC contends that the meaning of the reference to approximate quantities in the 2002 agreement is ambiguous, necessarily requiring a trial to resolve the dispute. While there undoubtedly is an ambiguity, the summary judgment papers disclose no factual issues that must be resolved in order to determine the meaning of the disputed language. Neither party has identified any parol evidence—much less parole evidence that is disputed—bearing on the issue, nor has either suggested that there were any discussions between the parties concerning the intended meaning of the quantity estimates. Thus, the interpretation of the contract presents solely a legal issue for resolution by the court. It is “solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, Sunniland Fruit, Inc. v. Verni (1991) 233 Cal.App.3d 892, 898.) There being no pertinent facts in dispute, the meaning of the contract is properly resolved by summary judgment. (National Auto. & Cas. Ins. Co. v. Underwood (1992) 9 Cal.App.4th 31, 36-37.)
Both parties tend to oversimplify the issue that must be resolved. Regional Steel emphasizes that the contract is a “unit price contract,” which it asserts necessarily means that FBC was entitled to be compensated at the agreed rates for the number of units that it processed and nothing more. FBC contends that the reference to approximate quantities necessarily means that Regional Steel was required to provide it with close to the approximated quantities, and could not divert a major portion of those quantities to another processor to perform the work at a lesser price. Neither view is correct. While the contract admittedly specifies that the epoxy coating was to be performed at unit prices for particular configurations of rebar, rather than for a fixed or “lump sum” amount, there is no reason why such a contract cannot also specify a minimum quantity of work to be performed at the unit prices. On the other hand, the reference to approximate quantities does not necessarily establish either a minimum or maximum quantity.
Whether references to estimated quantities in unit price contract documents are intended to be more than nonbinding estimates depends on the particular contract in question. “In construing a contract, the primary object is to ascertain and give effect to the intention of the parties. [Citations.] That intention must, in the first instance, be derived from the language of the contract. The words, phrases and sentences employed are to be construed in the light of the expressed objectives and fundamental purposes of the parties to the agreement.” (Hensler v. Los Angeles (1954) 124 Cal.App.2d 71, 77-78.) This issue most often arises in the context of a dispute over whether the contractor is entitled to be compensated for an amount stated in the contract based on specified unit prices and a quantity estimated in the contract documents, or for the actual amount of work performed at the unit prices specified in the agreement. In the single California case and in cases from other jurisdictions relied upon by Regional Steel, the courts have concluded that the specification of unit prices would have been superfluous if the amount payable were not to be determined by the quantity of work actually performed. (McGaw v. Master Craft Homes (1951) 105 Cal.App.2d 304, 306; Prunty Constr., Inc. v. City of Canistota (2004) 2004 S.D. 78 [682 N.W.2d 749]; Professional Serv. Ind., Inc. v. J.P. Constr., Inc. (1992) 241 Neb. 862 [491 N.W.2d 351]; City of Hobart v. Dailey (1934) 170 Okla. 107 [39 P.2d 44]; Platte Valley Ditch & Reservoir Co. v. H. C. Lallier Constr. & Engineering Co. (1932) 91 Colo. 317 [14 P.2d 1079].) In other cases, such as the two California cases on which FBC relies, the issue has arisen when the purchasing party has transferred a portion of the work estimated in the contract documents to another contractor. In both of these cases, the courts concluded that the agreement was intended to encompass all of the covered work for the entire project, so that the purchasing party was not at liberty to transfer portions of the work to another contractor. (Hensler v. Los Angeles, supra, 124 Cal.App.2d 71 ; Boomer v. Abbett (1953) 121 Cal.App.2d 449 (Boomer I); see also Boomer v. Abbett (1957) 154 Cal.App.2d 218 (Boomer II).) In both these cases the court ascertained from the terms of the contract as a whole the intention to engage the contractor to perform the work necessary to achieve a designated finished product.
In Hensler, a subcontractor was hired to construct runways and other structures at the Los Angeles airport. The appellate court noted that the contract stated as its intent “ ‘to prescribe a complete work or improvement,” and that “[t]he contractor shall do all work including such additional, extra and incidental work as may be considered necessary to complete the project in a satisfactory and acceptable manner . . . .’ ” (Hensler v. Los Angeles, supra, 124 Cal.App.2d at p. 76, italics in original.) After the subcontractor had commenced performance, the engineer in charge of the project deleted approximately 20 percent of the work because one worksite was not available. When the site later became available, the engineer hired a different subcontractor at a lower price to complete the work. The appellate court held that although the contract allowed for variances in the quantity of work, “By the terms of the agreement, plaintiff bound himself to deliver the completed work required of him. The corollary duty assumed by the city was to permit plaintiff to consummate the work he had undertaken, subject to its right to make changes, within designated limitations, in order to complete the project more satisfactorily.” (Id. at pp. 78-79.)
Both the language and the undisputed circumstances surrounding the entry of the contract in the present case indicate no such intention here. FBC was not engaged to perform all epoxy coating of rebar necessary to construct the new bridge. To the contrary, FBC was one of two subcontractors retained to perform this work in such quantities as the general contractor assigned to each of them. Although FBC’s job estimate sheet was incorporated into the contract for the unit prices it specified, Regional Steel’s purchase order did not incorporate the quantities specified in the job estimate sheet, but in stead provided different “estimated” quantities. Nowhere do the contract documents indicate that the estimate is to be a minimum or is otherwise binding as to the quantity of work that will be provided. (See Professional Service Industries, Inc. v. J.P. Construction, Inc., supra, 241 Neb. at pp. 866, 868 [491 N.W.2d at pp. 354, 355] [“there is no language in the entire document to indicate that the estimate is either a guaranteed maximum or minimum figure. There is nothing to manifest that the . . . figure is anything more than it states it is: an estimate.” “[W]e find no case law to support the . . . theory that a duty to hold close to an estimate arises simply because an estimated figure is stated. On the contrary, when an estimated figure is a guaranteed maximum or minimum, or when the parties expressly provide otherwise, only then may the court treat the estimate as a fixed amount to which the parties are contractually bound.”].)
FBC emphasizes that the purchase order attachment required it to provide adequate resources to comply with the project schedule and that failure to do so “may result in alteration of the approximate quantity and/or termination of” the purchase order. While the need for FBC to be in position to epoxy coat sufficient quantities of rebar to meet the project schedule does suggest that FBC was expected to place some reliance on the quantities estimated in the purchase order, that expectation did not convert the estimate into a guaranteed minimum, and FBC does not suggest that the estimate was not given in good faith. Moreover, the provision in the general contract specifications incorporated in the contract that FBC unsuccessfully attempted to bring before the court (see section 2, infra) suggests that changes in estimated quantities were not unanticipated, and at most might justify an adjustment in the amount of overhead assigned to the work that was performed. There is no indication that FBC was denied such an adjustment to the unit pricing for the work that it did perform. To the contrary, FBC has acknowledged that it was paid in full for all of the epoxy coating it did perform.
The Caltrans specifications at issue provide that “If the total pay quantity of any item of work required under the contract varies from the Engineer’s Estimate therefor by more than 25 percent, in the absence of an executed contract change order specifying the compensation to be paid, the compensation payable to the Contractor will be determined in accordance with Sections 4-1.03B(1), 4-1.03B(2), or 4-1.03B(3), as the case may be.” Specification section 4-1.03B(2) provides, “Should the total pay quantity of any item of work required under the contract be less than 75 percent of the Engineer’s Estimate therefor, an adjustment in compensation pursuant to this Section will not be made unless the Contractor so requests in writing. If the Contractor so requests, the quantity of the item performed, unless covered by an executed contract change order specifying the compensation payable therefor, will be paid for by adjusting the contract unit price as hereinafter provided, or at the option of the Engineer, payment for the quantity of the work of the item performed will be made on the basis of force account as provided in Section 9-1.03, provided however, that in no case shall the payment for that work be less than that which would be made at the contract unit price. [¶] The adjustment of the contract unit price will be the difference between the contract unit price and the actual unit cost, which will be determined as hereinafter provided, of the total pay quantity of the item, including fixed costs. . . . [¶] The payment for the total pay quantity of the item of work will in no case exceed the payment which would be made for the performance of 75 percent of the Engineer’s Estimate of the quantity for the item at the original contract unit price.”
Any possible doubt as to the parties’ intentions is dispelled by the manner in which they treated their agreement following the extended suspension of work on the project. (Kitty-Anne Music Co. v. Swan (2003) 112 Cal.App.4th 30, 36-37.) Whether or not the initial agreement had expired of its own terms, because work resumed well beyond the 14 to 16 months from January 2002 stated as the duration of the contract, neither party suggested that FBC was obligated to perform in 2004 at the unit prices established in 2002. FBC did not demand the right to perform under the terms of the initial contract but submitted new prices to Regional Steel. When these new, higher prices were rejected, FBC submitted additional sets of prices. By their conduct, the parties acknowledged that the terms of the original agreement were no longer binding. If the unit prices were to change in a manner not governed by a formula or mechanism specified in the original contract, Regional Steel certainly was entitled to redistribute the work among its two subcontractors depending on the price that each agreed to charge for the same work. FBC provides no theory, and cites no authority, under which it would be entitled to hold Regional Steel hostage to a demand for higher unit prices while adhering to quantity estimates based on lower prices.
2. Evidence
FBC argues that the trial court erred by excluding evidence of portions of the Caltrans specifications. These portions, submitted by FBC in opposition to the motion for summary judgment, provide the procedure by which a contractor may object to a change order, and the standards for payment if there are significant increases or decreases in quantity. As indicated above, we find nothing in these portions of the specifications that would alter the conclusion that the contract between Regional Steel and FBC did not guarantee minimum quantities of rebar coating to be performed by FBC. The specifications provide for an adjustment in the price to be paid for work performed if there are substantial decreases in quantity, but they do not suggest that the contractor is to be compensated for work that is not performed, much less do they provide a mechanism for determining compensable lost profits.
In all events, we see no basis to conclude that the court erred in rejecting the evidence as improperly authenticated because the attorney who ascribed the declaration under which the specifications were submitted lacked personal knowledge and provided no other foundation to establish that the document was the Caltrans specifications (Evid. Code, § 401). “We review the trial court’s evidentiary rulings on summary judgment for abuse of discretion. [Citations.] As the parties challenging the court’s decision, it is plaintiffs’ burden to establish such an abuse, which we will find only if the trial court's order exceeds the bounds of reason. [Citation.] ‘Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court.’ [Citation.] We will only interfere with the lower court’s judgment if appellant can show that under the evidence offered, ‘ “no judge could reasonably have made the order that he did.” ’ [Citation.] Plaintiffs’ showing will be ‘insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.’ ” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679-680.)
FBC argues that “[t]he declaration of FBC’s counsel, made on personal knowledge . . . was sufficient to authenticate these excerpts from the Caltrans specifications. . . . These specifications, moreover, were self-authenticating public records maintained on the agency’s website . . . . The authenticity of this two-page excerpt could be readily ascertained by reference to the Caltrans website.” These assertions are unaccompanied by citation to authority. Regional Steel does cite authority in support of the trial court’s ruling in its brief and FBC makes no response in its reply brief. “ ‘Where a point is merely asserted by counsel without any argument or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ ” (People v. Callegri (1984) 154 Cal.App.3d 856, 865.)
Assuming that FBC has not abandoned this argument, Code of Civil Procedure section 437c, subdivision (d) provides that “Supporting and opposing affidavits or declarations shall be made by any person on a personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. . . .” “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.” (Roy Brothers Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, 182.) Nothing in the declaration of FBC’s counsel establishes his personal knowledge of the Caltrans specifications. The statement that the document is “self-authenticating” likewise fails. “Certain writings are presumed to be authentic (so-called ‘self-authenticating” writings).” (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2008) ¶ 8:360, p. 8C-27.) Examples of such self-authenticating writings are “Acknowledged writings,” e.g., deeds, mortgages, grants of easements; documents bearing the seal of a public entity; documents bearing an official or corporate signature; “ancient writings,” defined as a writing that is over 30 years old and with certain other indicia of reliability; regularly published newspapers, and “[p]rinted representations of computer information.” (Id. at ¶¶ 8:361-8:368.1, pp. 8C-27−8C-30.) The document submitted in support of FBC’s opposition to the motion for summary judgment fits none of these categories.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.
In Boomer, the subcontractor was hired to perform excavation for and installation of approximately 225 transmission towers at a certain price per tower. When the general contractor discovered that excavation for 16 of the towers would be substantially less costly than the unit price listed in the contract it sought a new bid from the subcontractor. When the subcontractor refused to submit a new bid the general contractor hired another subcontractor at a lower price to perform the work. The appellate court found that the removal of the 16 towers breached the parties’ agreement because the contract did not “as a matter of law, authorize[] the deletion of the 16 towers without liability . . . . There can be no doubt that the prime contract contemplated that some towers might be deleted during construction, and that such deletion could be made without liability. But the contract also contemplated and provided that the transmission line was to be constructed. It is a contract to construct a transmission line, not to construct 225 towers. It is one thing to delete towers found to be unnecessary in the construction of the transmission line. It is quite another to delete an integral part of the work that results in the transmission line not being constructed.” (Boomer, supra, 121 Cal.App.2d at p. 464.)