Utility Dist. v. FCC Corp.
Filed 8/2/12 Sacramento Mun. Utility Dist. v. FCC Corp. CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
SACRAMENTO MUNICIPAL UTILITY
DISTRICT,
Plaintiff and Appellant,
v.
FCC CORPORATION formerly named
FRU-CON CONSTRUCTION CORPORATION,
Defendant and Appellant.
C064248
(Super.
Ct. No. 05AS00862 )
ORDER
MODIFYING OPINION AND DENYING REHEARING
[NO
CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above matter, filed July 9, 2012, is
of the first full paragraph on page 46, as follows:
In
a petition for rehearing, Fru-Con argues that we must grant rehearing because
we affirm the summary adjudication on a ground not relied upon by the trial
court without having given Fru-Con the opportunity to address that new ground
in supplemental briefing. Specifically,
Fru-Con contends our conclusion that the section C work was not a separable
part of the construction project lies at odds with the trial court’s finding
the section C concrete work was separable.
We reject Fru-Con’s contention.
Code
of Civil Procedure section 437c, subdivision (m)(2), requires us to grant
rehearing if we affirm summary adjudication “on a ground not relied upon by the trial court.” (Italics added.) Section 437c does not compel supplemental
briefing if we happen to disagree with a finding that was not relied upon by
the trial court in granting summary adjudication.
Fru-Con
acknowledges that the trial court “held that GC-36 authorized SMUD to terminate
the entire contract . . . .” As the
trial court explained: “Under GC-36,
SMUD could terminate Fru-Con’s ‘right to proceed with the work’ if Fru-Con
refused or failed ‘to prosecute the work, or any separable part thereof, with
such diligence as will insure [sic]
its completion within the time specified in’ the parties’ agreement. It is undisputed that on December 22, 2004, more than two months
after SMUD had informed Fru-Con of its default, Fru-Con adamantly stated that
it would not remove Section C of the cooling tower foundation as directed by
SMUD.”
We
affirm on the same ground, namely that General Condition 36 allowed SMUD to
terminate Fru-Con’s right to continue work on the construction project for
refusal to comply with the project’s technical specifications. Whether refusal to comply with the technical
specifications pertained to a separable or nonseparable part of the
construction makes no difference because General Condition 36 did not have a
materiality condition. Our agreement
with the trial court that General Condition 36 allowed SMUD to terminate
Fru-Con under the construction contract renders inapplicable subdivision (m)(2)
of Code of Civil Procedure section 437c.
The remaining footnotes in the decision are
to be renumbered accordingly.
This modification does
not change the judgment.
The petition for
rehearing is denied.
RAYE
, P.J.
ROBIE , J.
HOCH , J.
