Marco Crane & Rigging v. Jensen Enterprises
Filed 2/14/13 Marco Crane & Rigging v. Jensen
Enterprises CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
MARCO CRANE & RIGGING CO.,
Cross-complainant and Appellant,
v.
JENSEN ENTERPRISES, INC.,
Cross-defendant and Respondent.
G046386
(Super. Ct.
No. 07CC00066)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Charles Margines, Judge. Affirmed.
Haight Brown &
Bonesteel, Morton G. Rosen, Carol Salmacia, Jules S. Zeman and Jeffrey A.
Vinnick for Cross-complainant and Appellant.
Carlson, Calladine &
Peterson, Asim K. Desai and Christopher J. Weber for Cross-defendant and
Respondent.
*
* *
In 2008, the trial court
granted the motion of cross-defendant and respondent Jensen Enterprises, Inc.
dba Jensen Precast (Jensen) for summary adjudication of the causes of action
for express indemnity and breach of
written contract in cross-complainant and appellant Marco Crane and Rigging
Co.’s (Marco) cross-complaint. The
complaint was dismissed in 2011 at plaintiffs Gail and Gene Gran’s
request. Marco appeals from that
dismissal, seeking to reverse the order granting adjudication on the
cross-complaint. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In 2005, Jensen entered
into a contract with S.C. Signs to provide K-rail (concrete barriers) on a
construction site. Because it did not
have a crane, Jensen telephoned Marco and orally arranged for a crane and
operator.
On June 13, 2005, Marco sent its crane operator
Blaine Curtis to the job site. Before
the job began, Curtis and the ground crew held a safety meeting. Curtis believed the ground crew was employed
by All American Asphalt and that he was working for that company as well. He did not expect anyone from Jensen to be at
the job site.
As part of his job,
Curtis was required to obtain a signature on a document he referred to as a
“job ticket†but was actually entitled Short Term Lease Agreement
(agreement). (Capitalization
omitted.) He believed the foreman from
All American Asphalt signed the document, but an employee of S.C. Signs, Jason
Barrett, actually did so. Jensen later
paid Marco’s invoice, which contained no indemnity language or reference to the
agreement.
While Curtis was
operating the crane, it came into contact with the overhead electrical
wires. Plaintiffs sued Marco for
injuries allegedly sustained as a
result
and Marco cross-complained against S.C. Signs and Jensen for equitable
indemnity, express indemnity, and breach of written contract, negligence,
contribution, and declaratory relief as to the duties to defend and
indemnify.
Jensen moved for
action for express indemnity and breach of contract on the ground there was no
enforceable contract between it and Marco.
In its opposition, Marco argued Barrett was Jensen’s ostensible agent
and a contract existed because the language in the agreement was identical to
that in at least 89 prior Short Term Lease Agreements provided to Jensen.
The court granted the
motion, finding no enforceable agreement given the absence of evidence Barrett
signed the agreement on Jensen’s behalf and that Barrett could not be deemed
Jensen’s ostensible agent because Curtis believed Barrett was working for an
entity other than Jensen. It declined to
rule on Jensen’s written evidentiary objections to, among other things, the 89
prior agreements.
DISCUSSION
Appealable Timely Judgment
Our first task is to
determine if we have jurisdiction to consider this appeal. Although an order granting summary
adjudication is a non-appealable interlocutory order, it is generally
reviewable on appeal from the final judgment in the action. (Jennings
v. Marralle (1994) 8 Cal.4th 121, 127-128.)
Here, Marco appealed from the dismissal dated December 22, 2011 “and all [o]rders related
thereto,†including the order granting Jensen’s summary adjudication motion on
the express indemnity and breach of contract claims. But the dismissal entered on December 22, 2011 was as to the
complaint and did not mention the cross-complaint. Although the record indicates the cross-
complaint
was “disposed with disposition of [c]ourt-ordered dismissal†on January 9, 2012, no appeal has been
taken from that dismissal.
We requested further
briefing on, and had the parties address during oral argument, “whether the
appeal may proceed in light of appellant’s failure to appeal from the judgment
of dismissal of the cross-complaint.â€
Following oral argument, Marco obtained a judgment in Jensen’s favor
from the superior court. We liberally construe
Marco’s notice of appeal as a premature but valid appeal from that judgment. (Cal. Rules of Court, rules 8.100(a)(2);
8.104(d)(2).)
In its supplemental
brief, Jensen argues Marco’s notice of appeal is untimely because the court
granted Jensen’s and Marco’s motions for determination of good faith settlement
on September 19, 2011, which dismissed “all equitable causes of action,†and
“subsequently signed an [o]rder dismissing
Marco[’s] . . . cross-complaint for equitable indemnity as
against Jensen on October 3, 2011.â€
According to Jensen, the time for Marco to file its notice of appeal ran
from the October 3 order because it disposed of all causes of action between
them and expired on December 2, 2011. (Millsap
v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 430.)
But the register of
actions Jensen cites in support does not contain either the September 19 minute
order or the October 3 order and shows only that an order regarding Jensen’s
good faith motion was entered. Nor is
there any indication in the record the court dismissed all of the remaining causes of action in the cross-complaint at the
time it granted the motions for good faith determination, contrary to Jensen’s
claim. Even assuming the court dismissed
the equitable indemnity claims as Jensen asserts, that leaves the negligence
cause of action, which Jensen contends was “simply a mislabeled claim for
indemnity.†But if that were the case
there would be no need for the court to order the “[c]ross-[c]omplaint disposed
with disposition of [c]ourt-ordered dismissal†on January 9, 2012.
In any event, despite
Jensen’s claim the order granting its motion for determination of good faith
settlement was served on all parties, the record contain no indication when
that was done so as to start the time running for Marco to file its notice of
appeal. (Cal.
Rules of Court, rule 8.104(a) [time to appeal is 60 days after service of
notice of entry of judgment or 180 days after judgment, whichever is
earlier].) Based on the record before us
and absent a showing by Jensen when service was made, even if the court signed
a written order dismissing the entire cross-complaint on October 3, 2011, the notice of appeal, filed on January 20, 2012, was well within the
180 days.
New Argument on Appeal
Marco does not challenge
the court’s findings the document signed by Barrett was not an enforceable
contract or that Barrett was not Jensen’s ostensible agent. Rather, for the first time on appeal it
contends the agreement is enforceable “based on the parties’ long term course
of dealing†evidenced by the 89 prior agreements.
Although our review of a
grant of summary adjudication is de novo (Rosales
v. Battle
(2003) 113 Cal.App.4th 1178, 1182), it “is limited to issues which have been
adequately raised and supported in [the appellant’s] brief. [Citations.]
Issues not raised in an appellant’s brief are deemed waived or
abandoned. [Citation.]†(Reyes
v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Marco has forfeited any error with respect to
the actual grounds upon which the court granted summary adjudication by failing
to address them.
Marco has also forfeited
the course of dealing argument by failing to raise it in the trial court. Despite our de novo review, “we are not
obliged to consider arguments or theories . . . not advanced
by plaintiffs in the trial court. . . . ‘Specifically,
in reviewing a summary [adjudication], the appellate court must consider only
those facts before the trial court, disregarding any new allegations on
appeal. [Citation.] Thus,
possible
theories that were not fully developed or factually presented to the trial
court cannot create a “triable issue†on appeal.’ [Citation.]
‘A party is not permitted to change his position and adopt a new and
different theory on appeal. To permit
him to do so would not only be unfair to the trial court, but manifestly unjust
to the opposing litigant.’
[Citation.]†(
Products, Inc. (2008) 158 Cal.App.4th 666, 676.)
Marco asserts it was
entitled on appeal to rely on a different legal theory based on undisputed
facts. We decline to exercise our
discretion to consider such an argument for the first time on appeal (
208 Cal.App.4th 685, 696) and deem it forfeited (DiCola v. White Brothers Performance Products, Inc.,
litigated on both sides and it would be unfair to Jensen and the trial court to
reverse an order granting summary adjudication over four years ago in 2008 on a
ground not raised in the opposition.
Lack of Supporting Admissible Evidence
Even if not forfeited,
the course of dealing issue lacks merit because it is not supported by
admissible evidence that either Jensen or its agent ever signed or received the
89 prior agreements on which Marco relies.
Marco contends it did so by way of the declaration of its vice president
Sam Meyer. We disagree.
Meyer attested that
“based upon [his] personal knowledge, except for those matters stated to be on
information and belief,†the language on the subject agreement “is
least . . . 89[]
previous . . . agreements[] provided to Jensen by Marco,
and for which Jensen was listed as the ‘customer.’†(Capitalization omitted.) He further declared the 89 prior agreements
were attached to Marco’s opposition, “all of which list
Jensen
as the customer, and all of which were provided to Jensen or its agent by
Marco.†(Capitalization omitted.)
Jensen objected to these
statements on the grounds they lacked foundation and personal knowledge. The objections have merit. Contrary to Marco’s claim, the court’s
decision not to rule on these objections did not waive them on appeal. (Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 517, 532 [written evidentiary
objections properly filed before summary judgment hearing not waived by trial
court’s failure to rule].)
Noticeably absent is any
statement Jensen or its agent actually signed any of them. Also missing are foundational facts for
Meyer’s conclusory statement the 89 prior agreements were provided to Jensen or
its agent. (Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 1427
[real estate broker did not affirmatively show personal knowledge to support
the statement in his declaration that a prospective buyer was “ready, willing
and financially able†to purchase property].)
Nothing in the prior agreements themselves shows they were transmitted
to Jensen. Rather, although they
indicate Jensen is the customer/lessee, the documents contain only the
signatures of unidentified individuals, none of whom have been established as
an employee or agent of Jensen.
Marco argues that, as
its “vice president, . . . Meyer is familiar with [its]
day-to-day business operations including the forms it uses when transacting
business with its customers. [His]
declaration makes specific reference to the parties who were the subject of the
[a]greement and he necessarily reviewed them before he executed his
declaration.†But none of this is
contained in his declaration. A
supporting declaration must be made on personal knowledge and “show
affirmatively that the affiant is competent to testify to the matters
stated.†(Code Civ. Proc., § 437c, subd.
(d).) Meyer’s declaration does not make
that showing. He does not attest he was
personally present at the job sites or provide any other foundational basis for
his statement the prior
agreements
were provided to Jensen or its agent.
(See Herrera v. Deutsche Bank
National Trust Co. (2011) 196 Cal.App.4th 1366, 1376 [vice president’s
declaration an assignment indicated all beneficial interest in trust deed was
transferred to a bank held insufficient to show she had personal knowledge bank
was beneficiary].)
We reject Marco’s claim
Jensen’s attorney’s authentication of the subject agreement judicially estops it
from seeking to exclude the 89 prior agreements because the language is
identical. The mere fact the documents
have the same language does not mean the 89 prior agreements were provided to
Jensen or that they were signed by its agent.
Those circumstances
distinguish this case from the ones primarily relied on by Marco for its course
of dealing theory. In both
Contracting and Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1048, 1051,
and Rosendahl Corp. H. K. Ferguson Co. (1962)
211 Cal.App.2d 313, 314, the defendant’s employee signed the agreement
containing the indemnity provision.
Similarly, in Insurance Co. of N.
Am. v. NNR Aircargo Serv. (USA), Inc. (9th Cir. 2000) 201 F.3d 1111,
evidence was presented that identical shipping invoices had been sent to the
hirer of a shipping carrier on 47 occasions.
The court held that constituted a course of dealing sufficient to put
the hirer on notice of the term limiting the carrier’s liability. (Id.
at p. 1114.) No similar admissible
evidence exists in this case.
In its reply brief,
Marco asserts for the first time Jensen’s payment of the invoice “constitutes
Jensen’s acceptance of the indemnification provision.†(Capitalization omitted.) But the invoice contained no indemnity
language or reference to the agreement, and in any event Marco’s failure to
raise this point in its opening brief forfeits the issue. (Julian
v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)
DISPOSITION
The judgment is
affirmed. Respondent is entitled to
costs on appeal.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.
