Menefee Construction v. Calmat Co. CA5

Filed 5/4/21 Menefee Construction v. Calmat Co. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
MENEFEE CONSTRUCTION et al.,
F076966
Plaintiffs, Cross-defendants and
Respondents, (Super. Ct. No. 11CECG01702)
v.
OPINION
CALMAT COMPANY et al.,
Defendants, Cross-complainants and
Appellants.
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.
Haight Brown & Bonesteel, William O. Martin, Jr., Vangi M. Johnson, for
Defendants, Cross-complainants and Appellants.
Baker Manock & Jensen, Jerry H. Mann, Daniel C. Stein, for Plaintiffs, Cross-
defendants and Respondents.
-ooOoo-
This matter arises from an underlying trial involving fraud claims brought by
Menefee Construction, Western Surety Company, Jerry Menefee, Douglas Menefee, and
Rodney Menefee (collectively, Menefee) against Calmat Co., dba Vulcan Materials
Company – Western Division (Vulcan), and a cross-complaint filed by Vulcan against
Menefee. Here, Vulcan appeals from the superior court’s rulings on its motion for
attorney’s fees and other costs and Menefee’s motion to tax costs, following the
conclusion of the underlying trial.
The underlying case arose from two public works asphalt concrete (AC) paving
projects, namely the Overlays Project and the Academy Project, that Menefee performed
for Fresno County, in 2009 and 2010, respectively. Vulcan supplied the AC for both
projects to Menefee. The matter proceeded to trial on a third amended complaint
(complaint) filed by Menefee against Vulcan, and on a cross-complaint filed by Vulcan
against Menefee. The only claim at issue in Menefee’s complaint, for purposes of trial,
was fraud based on intentional misrepresentations as to both projects. Vulcan’s cross-
complaint concerned the Academy Project only and was essentially a breach of contract
action seeking payment for AC it had supplied to Menefee for this project. The superior
court entered judgment, on Menefee’s complaint, in favor of Vulcan and against
Menefee. On Vulcan’s cross-complaint, the superior court also entered judgment in favor
of Vulcan and against Menefee.
Vulcan’s cross-complaint claims were based, in part, on a 2005 credit agreement
between Menefee Construction and Vulcan, pursuant to which Vulcan supplied AC for
both the Overlays and Academy Projects to Menefee. The credit agreement provided for
recovery of attorney’s fees and certain costs in the event of a dispute between the parties
related to the credit agreement. Vulcan’s claims in its cross-complaint represented a
dispute in which Vulcan sought payment, pursuant to the credit agreement, for AC
supplied to Menefee for the Academy Project.
2.
After judgment was entered in favor of Vulcan on its cross-complaint, Vulcan
brought a motion for attorney’s fees and other costs based primarily on the provisions in
the credit agreement that provided for recovery of attorney’s fees and certain costs.
Specifically, the credit agreement provided, in relevant part: “Applicant [Menefee
Construction] agrees to immediately pay Vulcan on demand any and all court costs,
actual attorney’s fees, recordings fees, cost for title, reports and all other costs, expenses
or charges incurred by Vulcan in enforcing the terms of this Agreement, collecting or
attempting to collect money from Applicant, or enforcing or defending or prosecuting
any claim against bonding companies, or disbursing officers, or claims based on
mechanics liens, stop notices, or payment bonds.” The credit agreement further
provided: “If Vulcan opens a credit account for Applicant, payment for all Applicant’s
purchases shall be due 30 days from date of invoice.”
Vulcan’s motion sought attorney’s fees and costs incurred by Vulcan in defending
against Menefee’s fraud claims and in prosecuting its cross-complaint for breach of
contract. The superior court agreed that Vulcan was entitled to attorney’s fees and
certain costs as the prevailing party on its cross-complaint. In its statement of decision
on the issue, the court noted: “Vulcan contends that the attorneys’ fee provision [in the
credit agreement] is broad enough to encompass Menefee’s tort claims as well as the
parties’ contract claims.” The court ultimately agreed with Vulcan, in light of Civil Code
section 1717, subdivision (a), and Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124,
129 (Reynolds).
The court’s statement of decision set forth the substance of Civil Code section
1717, subdivision (a), as follows: “In any action on a contract, where the contract
specifically provides that attorney’s fees and costs, which are incurred to enforce that
contract, shall be awarded either to one of the parties or to the prevailing party, then the
party who is determined to be the party prevailing on the contract, whether he or she is
the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in
3.
addition to other costs.” The court’s statement of decision also quoted Reynolds, supra,
25 Cal.3d at p. 129, as follows: “ ‘Where a cause of action based on the contract
providing for attorney’s fees is joined with other causes of action beyond the contract, the
prevailing party may recover attorney’s fees under [Civil Code] section 1717 only as they
relate to the contract action.’ [Reynolds, supra, at p. 129.] But ‘[a]ttorney’s fees need
not be apportioned when incurred for representation on an issue common to both a cause
of action in which fees are proper and one in which they are not allowed.’ (Id. at pp. 129-
130.)”
The court ruled that Menefee’s third amended complaint was “ ‘intertwined’ ”
with Vulcan’s cross-complaint. The court further ruled that Vulcan’s claims in its cross-
complaint and Menefee’s affirmative defenses were also “intertwined.” The court
therefore concluded that “all of Vulcan’s attorneys’ fees are ‘on the contract’ and
recoverable.”
The court then proceeded to rule on Vulcan’s motion for attorney’s fees and costs,
as well as a motion to tax Vulcan’s costs filed by Menefee. The court denied attorney’s
fees from two predecessor law firms, in the amount of $237,143.50, incurred by Vulcan,
on grounds that the invoices from the predecessor firms were not properly authenticated.
The court also taxed Vulcan’s expert witness costs in the amount of $179,254.03, on
grounds the credit agreement did not encompass reimbursement of expert costs. The
court denied Vulcan’s subsequent motion, pursuant to Code of Civil Procedure section
473, subdivision (b), to set aside the order on the attorney’s fee award (i.e., the part of the
order denying the attorney’s fees from Vulcan’s predecessor law firms). In this appeal,
Vulcan challenges the court’s rulings as to attorney’s fees from the predecessor law firms
and expert witness costs.
Prior to the filing of this appeal, Menefee had appealed from the underlying
judgments on its third amended complaint and on Vulcan’s cross-complaint. We decided
Menefee’s appeal from the underlying judgments in a separate opinion issued on the
4.
same day as this one. Our opinion in Menefee’s appeal from the underlying proceedings
reverses the judgment as to Vulcan’s cross-complaint and remands that matter for further
proceedings. The reversal of the judgment on Vulcan’s cross-complaint moots the instant
appeal.
Accordingly, the instant appeal is dismissed as moot. (People v. DeLong (2002)
101 Cal.App.4th 482, 486 [as a general rule, appellate review is limited to actual
controversies; a case that involves “ ‘only abstract or academic questions of law cannot
be maintained’ ”]; In re Dani R. (2001) 89 Cal.App.4th 402, 404 [“ ‘[A]n action that
originally was based on a justiciable controversy cannot be maintained on appeal if all the
questions have become moot by subsequent acts or events.’ ”]; Eye Dog Foundation v.
State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [if no effectual relief
can be granted, an appeal will be dismissed as moot]; Cucamongans United for
Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479
[“An appeal should be dismissed as moot when the occurrence of events renders it
impossible for the appellate court to grant appellant any effective relief.”].)
DISPOSITION
The appeal is dismissed as moot.
SMITH, Acting P.J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
5.