Opinion
F069825
07-31-2018
SWINERTON BUILDERS, Plaintiff and Respondent, v. FRESNO PLUMBING & HEATING, INC. Defendant and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, James P. Wagoner, Geni K. Krogstad, Lejf E. Knutson and Nicholas H. Rasmussen for Defendant and Appellant. Koeller Nebeker Carlson & Haluck, Mark Douglas Newcomb and Megan O'Connell Barnett for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. 12CECG02304)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge. McCormick, Barstow, Sheppard, Wayte & Carruth, James P. Wagoner, Geni K. Krogstad, Lejf E. Knutson and Nicholas H. Rasmussen for Defendant and Appellant. Koeller Nebeker Carlson & Haluck, Mark Douglas Newcomb and Megan O'Connell Barnett for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
The parties are contractors who worked on a medical office project in Merced. While the project was in its latter phases, an arc-flash occurred when one of the plumbing subcontractor's employees caused an object to come in contact with a bus duct. The general contractor incurred various damages as a result of the incident.
The general contractor sued the electrical and plumbing subcontractors, alleging the loss triggered the indemnity provisions in their subcontracts. At a jury trial, the general contractor prevailed against the plumbing contractor only.
The plumbing contractor raises several claims of prejudicial error. We largely reject those claims. However, we conclude that the trial court acted in excess of jurisdiction when it awarded attorney fees to the general contractor while the present appeal was pending. We reverse the award of attorney fees, but note that nothing in this opinion prevents the trial court from re-awarding those fees on remand. In all other respects, we affirm.
BACKGROUND
Prime Contract
Respondent Swinerton Builders entered into a construction contract dated March 3, 2009, to build a healthcare service building in Merced ("the project"). The contract provided that Swinerton "shall be responsible for the protection and safety of all workmen, for the final selection of safety methods, means and safeguards, for the daily inspection of the Work area and for the instruction of all workmen on safety."
2009 Subcontract Between Swinerton and Fresno Plumbing
Swinerton Builders entered into a subcontract agreement with appellant Fresno Plumbing & Heating ("Fresno Plumbing") on March 9, 2009. Fresno Plumbing was to perform plumbing work for the project, including providing domestic water service and distribution piping, sanitary drainage, flashing, storm drainage, etc.
Mechanical Yard
Pursuant to the construction plans, Swinerton built a mechanical yard at the construction site. The mechanical yard - which had no roof - housed hot water heaters, high voltage electrical equipment, etc.
Power to the building came in from outside, and traveled through a transformer to a switchgear, which distributed power throughout the building. To get from the transformer to the switchgear, the power traveled through a "bus duct." The bus duct contained live electrical wires and functioned like an extension cord (though a bus duct is far more "robust" than an extension cord).
2010 Subcontract Between Swinerton and Fresno Plumbing
By January 27, 2010, the building was substantially complete and the bus duct was supplying power to the building. The first, second and third floors of the building were "built out" with a surgery center and several examination areas, but the fourth floor was an empty shell. Eventually, Swinerton planned to build a series of examination rooms and a lobby on the fourth floor. To that end, Swinerton and Fresno Plumbing entered another subcontract on March 18, 2010, pertaining to work on the fourth floor (the "2010 subcontract"). This is the contract that governs the central issues in this appeal.
Under the 2010 subcontract, Fresno Plumbing was to complete rough plumbing, finish plumbing, water lines, drain lines, waste lines, vent lines, gas lines and "all connections as required for a complete plumbing system", among other items.
The 2010 subcontract contained an indemnification provision which provided, in part:
"(a) To the fullest extent permitted by law, Subcontractor specifically obligates itself to protect, defend, indemnify and hold Contractor, Owner and their respective officers, directors, employees, agents and representatives (hereinafter referred to as the 'Indemnitees') harmless against claims, damages, losses, costs, expenses, including any fees or accountants, attorneys, experts or other professionals, or investigation expenses, and liabilities in law or in equity arising out of, resulting from, or in any way connected with the Subcontractor's operations and Work performed under this Agreement. Subcontractor's obligations to protect, defend, indemnify and hold Indemnitees harmless include, but are not limited to, the following: [¶]
"(ii) All liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, (including attorneys' fees) resulting from injury to or death of any person (including Subcontractor's employees) or damage to property of any kind, including Subcontractor's Work under this Agreement or the work of others on the Project, which injury, death or damage arises out of or is in any way connected with the performance of Work under this Agreement; [¶] ... [¶]
"(vii) Damage to property or loss of use thereof.
"(b) Subcontractor's indemnity and hold harmless obligations hereunder shall apply to any acts, omissions, willful misconduct, negligent conduct, or other fault of any person or entity, including but not limited to Subcontractor's agents, employees, subcontractors and suppliers, whether active or passive, and whether or not sole or concurrent with that of any other person or entity; except that this indemnity obligation shall not require that Subcontractor indemnify any of the persons or entities named as Indemnitees herein against claims arising from his, her, or its sole negligence or willful misconduct."
Lozano-Garcia's Account of the September 20, 2010, Incident
On September 20, 2010, there was an incident in the mechanical yard involving an employee of Fresno Plumbing named Rene Lozano-Garcia. When Lozano-Garcia arrived at work that day, his superior Manuel Valdez told him to "pick up the impact gun" and "tighten[] screws, making sure all the hangers [on the fourth floor] are right." Lozano-Garcia understood that Valdez wanted him to go down to the mechanical yard to pick up the impact gun and bring it back up to the fourth floor. Lozano-Garcia described the incident as follows: "I ... just went to grab my - my drill from the tool bag. And as I was turning around, I happened to hit the - I don't know if it was - I think it was the side the bus - I mean, the duct. And it just exploded. A big flash."
The "hangers" were holding up gas lines.
Lozano-Garcia was not aware of any warning signs on the bus duct. He estimated the bus duct was two feet off the ground. Lozano-Garcia testified that if he had seen a warning sign, he would have been more careful.
Litigation
As a result of the incident, Swinerton claimed damages for, among other things, having to replace the bus duct and provide alternative power while awaiting installation of the new bus duct.
Swinerton filed suit against Fresno Plumbing and Access Electric, alleging causes of action against both entities for express indemnity, equitable indemnity, breach of contract, negligence and declaratory relief. Fresno Plumbing and Access Electric cross-complained against one another alleging several causes of action, including equitable indemnity and negligence.
The case proceeded to jury trial. The parties submitted proposed special verdict forms to the trial court. The court refused the parties' special verdict forms, but noted it would "make sure they're part of the record so everybody is preserved on that." The court's own special verdict form asked six questions, including the following:
"2. Did the arc-flash incident arise out of, result from, or was that incident in any way connected with Fresno Plumbing & Heating, Inc.'s "Work?" [¶] ... [¶]
"5. Did the arc-flash incident arise out of, result from, or was that incident relating to Access to Power, Inc.'s "Work?"
In its special verdict dated February 27, 2014, the jury answered question No. 2 affirmatively and question No. 5 negatively. Consequently, on March 14, 2014, the court entered judgment in favor of Swinerton against Fresno Plumbing, and in favor of Access Electric against Swinerton.
Swinerton initially cross-appealed the portion of the judgment rendered in favor of Access Electric, but that cross-appeal was subsequently dismissed.
Fresno Plumbing filed a motion for a new trial, which was denied. Fresno Plumbing now appeals.
Fresno Plumbing's notices of appeal, as well as trial court proceedings concerning costs and attorney fees are discussed below in connection with the appellate issues to which they pertain.
DISCUSSION
I. This Court has Jurisdiction to Hear the Appeal
As a threshold matter, Swinerton argues this court lacks jurisdiction to hear this appeal because Fresno Plumbing's notice of appeal was untimely.
The jury rendered its verdict on February 27, 2014. On March 7, 2014, Swinerton filed and served a "Notice of Entry of Judgment or Order" and attached (1) the minute order describing jury instructions and deliberations; and (2) the jury's verdict.
On March 14, 2014, the court entered judgment on the jury's verdict. On March 28, 2014, Access Electric filed a "Notice of Entry of Judgment or Order" and attached the March 14, 2014, judgment.
The proof of service for Access Electric's Notice of Entry of Judgment was executed on March 27, 2014.
On April 11, 2014, Fresno Plumbing filed a notice of intention to move for a new trial. The trial court denied Fresno Plumbing's motion for new trial on May 23, 2014.
On June 20, 2014, Fresno Plumbing filed its first notice of appeal. The notice of appeal referenced (1) "the February 27, 2014 Judgment entered ... on March 7, 2014" and (2) the "Notice of Entry of Judgment" ... served by mail by attorneys for Plaintiff on March 7, 2014."
Fresno Plumbing also filed subsequent notices of appeal.
As explained below, a jury verdict is not a judgment. Thus, Fresno Plumbing's notice of appeal incorrectly refers to the February 27, 2014, jury verdict as "the February 27, 2014, judgment." The notice of appeal should have identified the actual judgment, which was entered on March 14, 2014. However, this error does not warrant dismissal of the appeal. It is a "general and well-established rule that a notice of appeal which specifies a nonappealable order but [i]s timely with respect to an existing appealable order or judgment will be construed to apply to the latter judgment or order. [Citations.]" (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669, original italics.)
Because Fresno Plumbing's new trial motion was denied, the time to appeal was extended until "30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order." (Cal. Rules of Court, rule 8.108(b)(1).) Fresno Plumbing filed its notice of appeal on June 20, 2014, less than 30 days after the superior court clerk served the order denying the new trial motion on May 23, 2014. Consequently, Fresno Plumbing's notice of appeal was timely, unless we accepted Swinerton's contention that the intent to file a new trial motion was untimely.
As relevant here, a notice of intent to file a new trial motion must be filed within "15 days of ... service upon him or her by any party of written notice of entry of judgment ...." (Code Civ. Proc., § 659, subd. (a)(2).) Swinerton argues that Fresno Plumbing's notice of intention to move for new trial was untimely because it was filed on April 11, 2014, more than 15 days after Swinerton filed and served a notice of entry of judgment on March 7, 2014. However, judgment was entered on March 14, 2014 - a week before Swinerton's purported notice of entry of judgment. Swinerton's notice of entry attached the jury's verdict, which is not the same as a judgment. (See Code Civ. Proc., § 664 [distinguishing a jury verdict from a "judgment ... entered ... in conformity to the verdict"].) Consequently, "[t]he notice of entry of judgment was premature and ineffectual for any purpose, since there could be no valid notice of the existence of something which did not in fact exist. [Citation.]" (Grimes v. Lamar (1923) 60 Cal.App. 623, 624.)
As a result, the date of Swinerton's misguided notice of entry of judgment is not relevant. The important dates are: March 24, 2014, when the court filed (i.e., "entered") judgment; and March 27, 2014, when Access Electric served a valid notice of entry of judgment. Using these dates, Fresno Plumbing needed to serve its notice of intent to move for new trial by the earliest of: 15 days after March 27, 2014, or 180 days after March 14, 2014. (Code Civ. Proc., § 659, subd. (a)(2).) By filing the notice of intent to move for new trial on April 11, 2014, Fresno Plumbing satisfied these deadlines.
Because Fresno Plumbing's notice of intent to move for a new trial was timely, and the notice of appeal was filed within 30 days after the superior court clerk served the order denying that new trial motion: the June 20, 2014, notice of appeal was timely. (Cal. Rules of Court, rule 8.108(b)(1).)
II. The Indemnity Clause in Fresno Plumbing's Subcontract did not Require Showing that Fresno Plumbing was Negligent
Fresno Plumbing argues that its indemnity obligation under the 2010 subcontract did not apply in the absence of negligence by Fresno Plumbing. Fresno Plumbing contends that the trial court's failure to appreciate this point led it to commit instructional errors and errors concerning the special verdict form. For the reasons explained below, we disagree with Fresno Plumbing's premise, and conclude that the indemnity provision did not require proof of negligence by Fresno Plumbing.
As a result, we need not reach Swinerton's claims that Fresno Plumbing is estopped from asserting this argument on appeal.
A. The Law of Express Indemnity
Indemnity "refers to 'the obligation resting on one party to make good a loss or damage another party has incurred.' [Citation.]" (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) An obligation to indemnify "may arise by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances." (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1735-1736 (Mills Concrete).) This is called express indemnity.
With express indemnity, the scope of the indemnity obligation is governed by the contractual language, not by equitable considerations. (Mills Concrete, supra, 234 Cal.App.3d at p. 1737.) "Express indemnity reflects 'its contractual nature, permitting great freedom of action to the parties in the establishment of the indemnity arrangements while at the same time subjecting the resulting contractual language to established rules of construction.' [Citation.]" (Id. at p. 1736.) For example, the parties are free to require that one indemnify another even for losses caused by acts outside the control of the indemnitor. (Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 505.) In other words, not every "cause of action for indemnity requires a showing of fault on the part of the indemnitor." (Ibid.) Consequently, if the contractual language requires it, a subcontractor must indemnify a general contractor for (1) losses caused solely by the negligence of third-party subcontractors and/or (2) losses caused concurrently by the negligence of the general contractor indemnitee and a third party subcontractor.
The present contract was created in 2010. Construction contracts entered into on or after January 1, 2013, are subject to specialized rules that differ from the law we apply here. (See Civ. Code, § 2782.05, subd. (a).)
B. Analysis
Fresno Plumbing argues that "in order for a contract to impose an indemnity obligation on a non-negligent subcontractor, the law requires specific language to that effect." (Italics added.) That is an accurate statement of the law, which Swinerton does not appear to dispute. (See Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1278.) However, Swinerton argues that its subcontract with Fresno Plumbing does have specific language to that effect.
The indemnity provisions in the 2010 subcontract between Swinerton and Fresno Plumbing say, in pertinent part:
"(a) To the fullest extent permitted by law, Subcontractor specifically obligates itself to protect, defend, indemnify and hold Contractor, Owner and their respective officers, directors, employees, agents and representatives (hereinafter referred to as the "Indemnitees") harmless against claims, damages, losses, costs, expenses, including any fees or accountants, attorneys, experts or other professionals, or investigation expenses, and liabilities in law or in equity arising out of, resulting from, or in any way connected with the Subcontractor's operations and Work performed under this Agreement. Subcontractor's obligations to protect, defend, indemnify and hold Indemnitees harmless include, but are not limited to, the following: [¶]
"(ii) All liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, (including attorneys' fees) resulting from injury to or death of any person (including Subcontractor's employees) or damage to property of any kind, including Subcontractor's Work under this Agreement or the work of others on the Project, which injury, death or damage arises out of or is in any way connected with the performance of Work under this Agreement; [¶] ... [¶]
"(vii) Damage to property of loss of use thereof.
"(b) Subcontractor's indemnity and hold harmless obligations hereunder shall apply to any acts, omissions, willful misconduct, negligent conduct, or other fault of any person or entity, including but not limited to Subcontractor's agents, employees, subcontractors and suppliers, whether active or passive, and whether or not sole or concurrent with that of any other person or entity; except that this indemnity obligation shall not require that Subcontractor indemnify any of the persons or entities named as Indemnitees herein against claims arising from his, her, or its sole negligence or willful misconduct."
We conclude this contractual language makes clear that Fresno Plumbing's indemnity obligation applies even when Fresno Plumbing did not willfully or negligently cause the loss at issue. Specifically, subdivision (b) says the indemnity obligation applies to "any acts, omissions, willful misconduct, negligent conduct, or other fault of any person or entity" and the scope of that provision is expressly "not limited to Subcontractor's [i.e., Fresno Plumbing's] agents, employees, subcontractors and suppliers,..." (Italics added.) Frankly, the language could hardly be clearer on the issue.
For these reasons, we also reject Fresno Plumbing's contention that the court may have been required to instruct the jury on how to determine whether the parties intended the subcontractors' indemnity obligation to arise only if the subcontractor performed negligently.
Fresno Plumbing's assertion that the indemnity obligation is limited to losses caused by its own negligence would essentially invert two phrases in the contract. First, it would effectively change the meaning of the phrase "any person or entity" to "one specific entity: Fresno Plumbing." Second, Fresno Plumbing's interpretation reverses the phrase "but not limited to" to mean its exact opposite: "limited to."
Fresno Plumbing resists this straightforward interpretation, invoking a canon known as ejusdem generis. " 'By the rule of construction known as "ejusdem generis," where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated." (People v. McKean (1925) 76 Cal.App. 114, 119.) Fresno Plumbing argues that because its agents, employees, subcontractors and suppliers are listed, the preceding phrase "any person or entity" must be limited to persons or entities for whom Fresno Plumbing is legally responsible. We disagree.
The principle of ejusdem generis "does not control ... when the whole context dictates a different conclusion." (Norfolk & Western Railway Co. v. American Train Dispatchers' Ass'n (1991) 499 U.S. 117, 129.) Here, context does dictate a different conclusion. Immediately preceding the listing of Fresno Plumbing's "agents, employees, subcontractor's and suppliers," is the phrase "any party or entity, including but not limited to...." (Italics added.) "[T]he phrase 'including[] but not limited to' plainly expresses [an] ... intent" contrary to the ejusdem generis rule. (Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc. (3d. Cir. 1995) 63 F.3d 262, 280 (Cooper Distributing).) Indeed, the phrase " 'including but not limited to' " is often employed specifically "to mitigate ... rigid application of the ejusdem generis rule." (Ramirez, Leal & Co. v. City Demonstration Agency (9th Cir. 1976) 549 F.2d 97, 104.) Because context compels a different result, "the doctrine of ejusdem generis is inapplicable." (Cooper Distributing, supra, 63 F.3d at p. 280; see also In re Forfeiture of $5,264 (1989) 432 Mich. 242, 252, fn. 7 [439 N.W.2d 246, 251]; Attorney General v. Blue Cross & Blue Shield of Michigan (1988) 168 Mich.App. 372, 380-381 [424 N.W.2d 54, 58].)
Fresno Plumbing also argues that the provision limiting its obligation to " 'any acts, omissions, willful misconduct, negligent conduct, or other fault'... clearly indicates that 'negligent conduct' or some 'other fault' must be a cause of the loss...." (Emphases altered.) We disagree. As a matter of plain language, Fresno Plumbing's indemnity obligations clearly applied to "acts" or "omissions" or "willful misconduct" or "negligent conduct" or "other fault." Meaning, if any one of those five categories of causes produced the loss, the clause is satisfied. Instead of this straightforward reading, Fresno Plumbing picks two of the categories in the list (i.e., "negligent conduct" and "other fault") and elevates them above the others, arguing their presence is absolutely necessary. But that is not how disjunctive lists work in the English language. The word "or" designates each term in the list an alternative to the others. (See White v. County of Sacramento (1982) 31 Cal.3d 676, 680; People v. Smith (1955) 44 Cal.2d 77, 78; Ivy v. Plyler (1966) 246 Cal.App.2d 678, 683.)
Moreover, Fresno Plumbing's reading essentially renders the terms "acts" and "omissions" surplusage. If the contract's use of the terms "acts" and "omissions" only refers to such "acts" and "omissions" that constitute "willful misconduct, negligent conduct, or other fault," then their inclusion as separate items in the list is unnecessary. Such an interpretation is to be avoided. (See ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1785.)
In sum, it was not necessary to show Fresno Plumbing negligently caused the loss for which Swinerton sought indemnity.
Fresno Plumbing argues this conclusion is not " 'commercially reasonable.' " (Heppler, supra, 73 Cal.App.4th at p. 1280.) Fresno Plumbing argues that such an interpretation essentially transforms it from a subcontractor to an "insurer." Fresno Plumbing argues it is not commercially reasonable to have multiple subcontractors all indemnify the general contractor for "anything anyone else does whether it's a vagrant or some passerby - anything - to make them the guarantor of safety on the job." But the indemnity clause here is not that broad. Fresno Plumbing's indemnity obligation is not unlimited. In order to trigger Fresno Plumbing's indemnity obligation, the loss must arise out of, result from, or be in some way connected with Fresno Plumbing's operations and work performed under its subcontract. The jury found the arc flash satisfied this requirement.
III. Any Error Concerning the Failure to Submit Issue of Sole Negligence to Jury was Not Prejudicial
Fresno Plumbing next argues the court erred in failing to have the jury determine whether Swinerton was solely negligent in causing the loss at issue.
As discussed above, parties have broad freedom to craft indemnity provisions of their choosing. However, this freedom does have limits. One such limitation is found in Civil Code section 2782, subdivision (a). Under that statute, a contractual provision purporting to indemnify for losses arising solely from the indemnitee's negligence or willful misconduct is void and unenforceable. (See Civ. Code, § 2782, subd. (a).) "Civil Code section 2782 does not, however, prohibit agreements for indemnification when the loss or injury is due only in part to the indemnitee's negligence or willful misconduct." (Mills Concrete, supra, 234 Cal.App.3d at p. 1738, italics added; but see Civ. Code, § 2782.05, [different rule for certain construction contracts entered into on or after January 1, 2013].)
The 2010 subcontract between Swinerton and Fresno Plumbing reflects this requirement in the following clause:
"... this indemnity obligation shall not require that Subcontractor [i.e., Fresno Plumbing] indemnify any of the persons or entities named as Indemnitees [e.g., Swinerton] herein against claims arising from his, her, or its sole negligence or willful misconduct."
Fresno Plumbing argues that the trial court erroneously "removed the issue of Swinerton's sole negligence from the jury" by failing to instruct on the issue, and failing to allow for the jury to decide the issue in its special verdict form. With admirable candor, the trial judge acknowledged at the hearing on the new trial motion that it "concern[ed]" him most that he did not instruct the jury regarding sole negligence.
It may be that the trial court's failure to submit the issue of sole negligence to the jury was error. "In general, the issue of a defendant's negligence presents a question of fact for the jury ..." (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 971), and only "rarely" may a court "decide comparative negligence questions without submitting them to the jury. [Citation.]" (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 186.) However, we need not conclusively resolve that question because we find any error nonprejudicial.
As a result, we need not reach Swinerton's claims that Fresno Plumbing is estopped from asserting this argument on appeal.
The parties agree that this issue is subject to harmless error analysis. Both parties cite to Soule v. General Motors Corp. (1994) 8 Cal.4th 548. In that case, the Supreme Court held instruction error in a civil case "is prejudicial 'where it seems probable' that the error 'prejudicially affected the verdict.' [Citations.]" (Id. at p. 580.)
Here, we conclude it is not reasonably possible a jury would have found Swinerton solely negligent, even if instructed on the issue and permitted to decide it on the special verdict form. As discussed below, there was a reasonable possibility the jury could have found Swinerton negligent - but not solely negligent.
Fresno Plumbing identifies several theories by which it believes a jury could have found Swinerton solely negligent. For one, Fresno Plumbing argues that Swinerton "provided the plans for the project including the mechanical yard" and that "pursuant thereto" Access Electric installed the bus duct approximately two feet off the ground with its warning stickers underneath. We agree this evidence could give rise to an inference that Swinerton was negligent. However, while Swinerton may have "provided" the plans to subcontractors, the plans were actually created by NTD Architecture. If Swinerton was negligent for providing unsafe plans to Access Electric, then NTD Architecture would be negligent for creating unsafe plans in the first place. In other words, this theory of negligence would necessarily implicate NTD Architecture as well as Swinerton, and therefore cannot give rise to an inference that Swinerton was solely negligent.
Fresno Plumbing also argues "Swinerton failed to properly assess the danger, establish an acceptable safety program ... install safety barriers, fencing or yellow 'caution' or red 'danger' tape around the bus duct ... or follow the customary practice of providing 'connexes' [i.e., shipping containers]." Even assuming these were proximate causes of the incident, they would not establish that Swinerton was solely negligent. As Fresno Plumbing correctly points out, Swinerton's contract with the owner and developer provided that Swinerton "shall be responsible for the protection and safety of all workmen, for the final selection of safety methods, means and safeguards, for the daily inspection of the Work area and for the instruction of all workmen on safety." But Fresno Plumbing's contract with Swinerton provided that Fresno Plumbing must: (1) "provide all proper and sufficient and necessary safeguards against all injuries and damage whatsoever, and to comply with all safety requirements imposed by law"; (2) "comply fully with all ... orders ... rules, regulations, standards ... with respect to occupational health and safety, the handling and storage of hazardous materials, accident prevention, safety equipment and practices including the accident prevention and safety program of Owner and Contractor [i.e., Swinerton]"; and (3) "conduct inspections to determine safe working conditions and equipment exist and accepts sole responsibility for providing a safe place to work for its employees ... for adequacy of and required use of all safety equipment ...." Consequently, if the state of the mechanical yard constituted an unsafe working environment for Lozano-Garcia and a proximate cause of the incident, such a conclusion would implicate both Swinerton and Fresno Plumbing.
Fresno Plumbing also argues Swinerton failed to warn about the bus duct. But Swinerton did advise Fresno Plumbing that the yard contained high voltage electrical equipment which they needed to "stay clear" of.
Fresno Plumbing also says Swinerton failed to supervise "Access [Electric] who installed the bus duct." But if Swinerton negligently failed to supervise Access Electric and, as a result, Access Electric acted negligently, then Swinerton would not be solely negligent.
Fresno Plumbing also contends Swinerton was negligent for failing to "establish an acceptable safety program." But Fresno Plumbing does not dispute that Swinerton held safety training for all subcontractors and weekly safety meetings with the foremen from the subcontractors. Swinerton's Superintendent, George Whitfield, testified he told the subcontractors that there is high voltage electrical equipment in the equipment yard. Whitfield told Fresno Plumbing specifically to "stay clear" of the high voltage equipment, but does not recall identifying the bus duct specifically. While there is no evidence Whitfield individually told every Fresno Plumbing employee about the specific dangers of every piece equipment on the premises, we strongly doubt any jury would have found Whitfield's weekly safety meetings and his specific warning about high voltage equipment in the equipment yard insufficient.
As noted above, Swinerton held a weekly safety meeting with the foremen of each subcontractor. Valdez from Fresno Plumbing, attended the meetings. Lozano-Garcia testified at deposition he did not attend the safety meetings. Thus, it is likely that Whitfield issued this warning to Valdez.
Fresno Plumbing also points to its expert's opinion that the arc flash likely resulted from an internal failure in the bus duct. Again, even assuming that is true and that Swinerton's place in the chain of supply renders it liable for such a failure, other entities like the manufacturer of the bus duct would also be considered "negligent" on that theory.
We determine it is not reasonably possible the jury would have utilized any of the theories offered by Fresno Plumbing to conclude Swinerton was solely negligent.
IV. The Trial Court did not Improperly Have the Jury Interpret the Subcontract
Fresno Plumbing claims that by giving CACI Nos. 315 and 317, the trial court improperly "asked the jury to interpret the indemnity provisions of the subcontracts."
The trial court instructed the jury as follows:
"In deciding what the words of a contract means [sic] to the parties, you should consider the whole contract, not just isolated parts. You should use each part to help you interpret the others so that all the parts make sense when taken together. [¶] You should assume that the parties intended the words in their contracts to have their usual and ordinary meaning, unless you decide the parties intended the words to have a special meaning." (See CACI Nos. 315, 317.)
We find no error. The jury was tasked with answering the following question in the special verdict form: "Did the arc-flash incident arise out of, result from, or was that incident in any way connected with Fresno Plumbing & Heating, Inc.'s 'Work'?" Accordingly, trial counsel for Fresno Plumbing and Swinerton both emphasized the core issue of whether, pursuant to the subcontract, the arc-flash incident arose out of Fresno Plumbing's "Work."
In order for the jury to determine whether the incident arose out of, resulted from, or was in any way connected with Fresno Plumbing's "Work" under the subcontract, it needed to first determine what "Work" meant. CACI Nos. 315 and 317 guided the jury on how to do that.
Fresno Plumbing says that trial court failed to interpret the subcontract with respect to the issue of whether Lozano-Garcia was performing "Work" at the time of the accident. But that is not a pure issue of law/contract interpretation, but rather a mixed question involving the application of a contractual term to the facts. (Cf. Brown v. Watt (1967) 256 Cal.App.2d 44, 48 [whether facts come within meaning of contract term is question for the jury].) The issue was properly submitted to the jury, and the trial court did not err in giving guidance.
Fresno Plumbing also observes that "any ambiguity regarding whether the loss arose out of the "Work" of" Fresno Plumbing should have been resolved against Swinerton. But immediately after giving CACI Nos. 315 and 317, the trial court told the jury: "In determining the meaning of a term of a contract, you must first consider all the other instructions I've given you. After considering those instructions, you still cannot agree on the meaning of the term, then you interpret the contract term against Swinerton Builders." Fresno Plumbing has not shown error on this issue.
It is likely the jury found the term unambiguous. (Cf. Vitton Construction Co. v. Pacific Ins. Co. (2003) 110 Cal.App.4th 762, 766-767.)
V. Fresno Plumbing Forfeited its Claim the Special Verdict Form Was Erroneous with Respect to the Wording of Question No. 5
Fresno Plumbing argues that the special verdict form was erroneous because its language differed with respect to Fresno Plumbing and Access Electric. Question No. 2 of the special verdict form was: "Did the arc-flash incident arise out of, result from, or was that incident in any way connected with Fresno Plumbing & Heating, Inc.'s "Work?" (Italics added.) Question No. 5 of the special verdict form was: "Did the arc-flash incident arise out of, result from, or was that incident relating to Access to Power, Inc.'s "Work?" (Italics added.) Fresno Plumbing argues the phrase "in any way connected with" was also in Access Electric's subcontract and therefore should have also been in Question No. 5.
We find the contention forfeited. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226 [failure to raise argument in the trial court forfeits it on appeal].) There is no evidence Fresno Plumbing brought this issue to the attention of the trial court.
Each party submitted its own proposed special verdict form to the trial court. The court refused the parties' special verdict forms, but noted it would "make sure they're part of the record so everybody is preserved on that." The trial court created its own special verdict form, and asked counsel: "Does anybody have any modification they want to make to this [version of the special verdict form], preserving the fact that you submitted your own previously?" Obviously, all parties took exception to the court's special verdict form in the sense that they preferred it would ask their proposed questions instead. That issue was clearly preserved for appeal. But here the trial court was asking about something different: Whether, given the court's rejection of their forms/questions, should any modifications be made to the wording of the court's questions? Thus, the court expressly invited counsel to raise the type of issue Fresno Plumbing now presents on appeal concerning Question No. 5. Yet, counsel for Fresno Plumbing replied to the court: "Nothing further, Your Honor. We're okay with this one." Fresno Plumbing cannot now be heard to complain of the purported error.
VI. Fresno Plumbing has Failed to Show the Trial Court Erred in Granting Expert Fees to Swinerton
Fresno Plumbing challenges the trial court's award of expert fees to Swinerton.
A. The Law of Offers to Compromise
During the course of litigation, a party may serve an offer in writing to allow judgment be taken in accordance with the terms and conditions stated therein. (Code Civ. Proc., § 998, subd. (b).) This is called an offer to compromise. If an offer to compromise is not accepted, and the party rejecting the offer fails to subsequently obtain a more favorable judgment, the court may require that party to pay a reasonable sum to cover postoffer costs of the services of expert witnesses for the offering party. (Code Civ. Proc., § 998, subds. (d)-(e).)
B. Background
On August 23, 2013, during the course of litigation, Swinerton served an offer to compromise, which Fresno Plumbing did not accept. After Swinerton obtained its judgment against Fresno Plumbing, it filed a memorandum of costs which sought $191,691.89 in costs, including $132,492.98 for expert fees pursuant to Code of Civil Procedure section 998.
Swinerton used Judicial Council form MC-010 (Rev. July 1, 1999) for its memorandum of costs. At the bottom of the form, preprinted text above the signature line reads: "I am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case." Swinerton's counsel executed that verification.
The offer to compromise was not attached to the cost memorandum. Fresno Plumbing moved to tax the costs sought by Swinerton. (See Cal. Rules of Court, rule 3.1700(b).) Fresno Plumbing argued that "no C.C.P. § 998 offer was attached to the Memorandum of Costs" and that "[e]ven in the event a C.C.P. § 998 Offer was made, it has not been demonstrated that any of the $132,562.98 in expert fees allegedly incurred are 'postoffer' costs recoverable under C.C.P. § 998." Swinerton opposed Fresno Plumbing's motion, arguing that it was not required to provide the offer of compromise until after Fresno Plumbing moved to tax costs. Along with its opposition, Swinerton provided the trial court a copy of the offer to compromise and invoices from its expert witnesses.
The court taxed the fees of experts David Little and Naresh Kar for $687.50 and $1,060, respectively, "for the billing of apparent clerical work." The court taxed the fees of expert John Loud "by 15% or $8,464" due to "the vagueness of the billing entries" on his invoices. The court also taxed other various costs apart from expert witness fees.
C. Analysis
1. Swinerton was not Required to Attach the Offer to Compromise to its Cost Memorandum
Fresno Plumbing reiterates on appeal its argument to the trial court that Swinerton's request for expert witness fees in the cost memorandum was fatally flawed because it did not attach the offer to compromise.
Fresno Plumbing misunderstands the procedure on a memorandum of costs. A cost memorandum "must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case." (Cal. Rules of Court, rule 3.1700(a)(1).) This "[i]nitial verification ... suffice[s] to establish the reasonable necessity of the costs claimed. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. [Citation.]" (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 (Jones).)
The proper procedure was followed here. Swinerton's cost memorandum was verified, which is all that was needed initially. Once Fresno Plumbing subsequently filed its motion to tax, Swinerton properly provided the offer to compromise and the expert's invoices. No error occurred.
Fresno Plumbing argues that without the offer to compromise being attached to a cost memorandum, court clerks will not be able to determine whether the requested costs are appropriate. "But '[a] "verified memorandum of costs is prima facie evidence of [the] propriety" of the items listed on it,...' " (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989, italics added.) Therefore, in the absence of a motion to tax, the clerk can rely on the verification as a sufficient showing the requested costs are appropriate.
Fresno Plumbing cites Behr v. Redmond (2011) 193 Cal.App.4th 517. In that case, Behr filed a cost memorandum but failed to "support her memorandum of costs with a written offer to compromise." (Id. at p. 538.) As a result, the Court of Appeal reversed the award of expert witness fees. (Ibid.) However, the court observed that Behr herself did "not dispute" that the court improperly denied a motion to strike her requested fees. (Ibid.) It is unclear why Behr did not dispute the issue. Perhaps, she never provided the offer to compromise even after the other party filed a motion to tax. If so, Behr would be distinguishable from the present case. But even if Behr is properly read to suggest an offer to compromise must be initially attached to a cost memorandum, we would decline to follow that approach. Instead, we follow the procedure outlined in Jones, which only requires supporting documentation to be provided after the requested costs are challenged. (Jones, supra, 63 Cal.App.4th at p. 1267.)
2. Fresno Plumbing Failed to Raise Below its Challenge to $2,291 in Expert Fees
Fresno Plumbing argues that the expert fees of John Loud should be reduced by $2,291 because those fees were incurred before Swinerton served its offer to compromise. Swinerton argues, and we agree, that Fresno Plumbing cannot be heard to complain on this ground because it failed to raise the issue below. Fresno Plumbing responds by pointing out that, in the trial court, it challenged all $132,562.98 in expert fees on the grounds that Swinerton had "not ... demonstrated" they were incurred "postoffer" But that argument was based on Fresno Plumbing's assertion Swinerton wrongfully failed to attach the offer to compromise to cost memorandum. Fresno Plumbing argued that as a result of the failure to attach the offer to compromise, Swinerton had not shown any of the requested fees to be "postoffer" fees. On appeal, Fresno Plumbing makes a different argument: that John Loud's invoice #231235 in the amount of $2,291, dated August 16, 2013, was incurred before Swinerton made its offer to compromise. We see no evidence this latter argument was raised in the trial court.
Swinerton argues Fresno Plumbing is "estopped" from making the argument. As a matter of semantics, we find forfeiture for failing to raise below, not estoppel.
Fresno Plumbing contends that Swinerton's position on this issue is disingenuous. Fresno Plumbing argues it was unable to specifically identify the $2,291 in its motion to tax because Swinerton did not submit the expert invoices until its opposition to the motion. But Fresno Plumbing ignores the fact that it submitted a reply to Swinerton's opposition. Fresno Plumbing could have raised the issue in its reply, but did not. Indeed, Fresno Plumbing's reply specifically addressed Loud's fees, yet did not raise the issue of the $2,291 purportedly incurred prior to the offer of compromise. Because Fresno Plumbing had a clear opportunity to raise the issue it presses on appeal and failed to do so, we find the contention forfeited.
VII. The Trial Court Lacked Jurisdiction to Grant Swinerton's Motion for Attorney's Fees During the Pendency of this Appeal
A. Background
After the jury rendered its verdict, the trial court entered judgment on March 14, 2014. The judgment provided that Swinerton would recover "the principal sum of $264,508.77, plus interest at the legal rate of 10% per annum from the date of this judgment, and costs of suit pursuant to a timely filed memorandum of costs
On April 17, 2014, Swinerton moved for an order granting attorney fees as the prevailing party against Fresno Plumbing.
On June 20, 2014, Fresno Plumbing filed a notice of appeal from "the February 27, 2014 Judgment entered ... on March 7, 2014."
It was actually the jury's verdict that was dated February 27, 2014, not the judgment which was entered on March 14, 2014. See Discussion part I., supra.
On August 6, 2014, the trial court awarded Swinerton attorney fees in the amount of $399,854.90.
The court issued its tentative ruling on the issue on June 18, 2014, and adopted the tentative ruling with modifications on August 6, 2014.
On August 25, 2014, the trial court filed a document entitled "Nunc Pro Tunc Second Amended Judgment on Jury Verdict." The document purported to enter judgment nunc pro tunc as of March 14, 2014. The document further provided that Swinerton would recover the principal sum of $264,508.77, as well as costs of suit in the amount of $170,114.39 and attorney fees in the amount of $399,854.90 pursuant to Civil Code section 1717.
Fresno Plumbing points out that the numbering of this document was incorrect, as no First Amended Judgment was ever entered.
B. Analysis
Fresno Plumbing contends the trial court's attorney fee award on August 6, 2014, and the second amended judgment on August 25, 2014, violated the automatic stay that arises on perfection of an appeal. (Code Civ. Proc., § 916, subd. (a).) We agree.
With certain inapplicable exceptions, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby ... but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." (Code Civ. Proc., § 916, subd. (a).)
By its plain language, Code of Civil Procedure section 916, subdivision (a) sets up a clear dividing line. The following proceedings are stayed during the pendency of an appeal: (1) proceedings "upon the judgment or order appealed from"; (2) proceedings upon "matters embraced" in the appealed judgment or order; and (3) proceedings upon "matters ... affected" by the appealed judgment or order. (Code Civ. Proc., § 916, subd. (a).) In contrast, an appeal does not stay proceedings upon matters that are "not affected" by the appealed judgment or order. (Ibid.)
The trial court held there was no dispute Swinerton was entitled to attorney fees pursuant to, inter alia, Civil Code section 1717. That statute provides for an award of attorney fees to a "prevailing party" in a contract action where the contract provided for attorney fees. (Civ. Code, § 1717, subd. (a).) As a result, Swinerton's entitlement to attorney fees depended on whether it "prevailed" in the action. The judgment in Swinerton's favor against Fresno Plumbing is what makes Swinerton a prevailing party for purposes of attorney fees. (See Civ. Code, § 1717, subd. (b)(1).) Consequently, "proceedings ... upon the matter[]" of contractual attorney's fees are clearly "affected" by the judgment appealed from. (Code Civ. Proc., § 916, subd. (a).) Because such proceedings are stayed pending appeal, the trial court lacked jurisdiction to act on the issue.
Because the flaw is jurisdictional, our " 'jurisdiction is limited to reversing the trial court's void acts.' [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-198, 200.) Consequently, we reverse the August 6, 2014, award of attorney fees and the August 25, 2014, second amended judgment.
As a result, we do not address other claims of irregularity concerning the second amended judgment.
However, we are aware of nothing that will prevent the trial court from re-awarding attorney fees on remand.
VIII. We Have Addressed the Issues Raised by Fresno Plumbing with Respect to its Motion for New Trial
Fresno Plumbing argues the trial court erred in denying its motion for new trial because Swinerton was required to prove Fresno Plumbing was negligent to obtain indemnification; there was substantial evidence Swinerton was solely negligent; and any ambiguity as to whether the loss arose out of Fresno Plumbing's "Work" should have been resolved against Swinerton. We analyzed each of those issues above and find no reversible error.
DISPOSITION
The March 14, 2014, judgment is affirmed.
The August 6, 2014, award of attorney fees to Swinerton and the August 25, 2014, "Nunc Pro Tunc Second Amended Judgment on Jury Verdict" are reversed for lack of jurisdiction. The matter is remanded for proceedings consistent with this opinion.
Swinerton is awarded appellate costs. (See Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.