Sanders Inc. Architecture v. Trustees

Filed 9/26/07 Sanders Inc. Architecture v. Trustees CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed.

I.

INTRODUCTION

Sanders Inc. Architecture/Engineering (Sanders) filed a complaint alleging one count of breach of contract against the Trustees of the California State University (CSU). In its complaint, Sanders alleged that the parties entered into a contract (Agreement) for Sanders to provide services related to the design and construction of a telecommunications infrastructure upgrade on the campus of San Diego State University (Agreement). Sanders alleged that CSU breached the Agreement in various ways, including failing to provide Sanders with documents that accurately reflected the condition and configuration of the existing voice, data and video systems on the campus and failing to pay Sanders for the work Sanders performed pursuant to the Agreement.

CSU filed a motion for summary judgment in which it claimed that it was entitled to judgment as a matter of law because Sanders could not establish all of the elements of its breach of contract cause of action. CSU argued in the alternative that Sanders's claim was barred by the applicable statute of limitations. The trial court granted CSU's motion for summary judgment on the ground that there was no triable issue of material fact with respect to whether CSU had breached the Agreement, or as to whether Sanders suffered damages as a result of CSU's claimed breach. The trial court rejected CSU's alternative argument that the action was barred by the statute of limitations. The trial court entered a judgment in favor of CSU.

On appeal from the judgment, Sanders claims that the trial court erred in granting CSU's motion for summary judgment. We conclude that CSU has established as a matter of law that it did not breach the Agreement. Accordingly, the trial court did not err in granting summary judgment in favor of CSU.^[1]

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Sanders's complaint

In September 2003, Sanders filed a first amended complaint alleging one count of breach of contract. In its complaint, Sanders claimed that, pursuant to the Agreement, "CSU was obligated to provide the supporting documentation necessary for SANDERS to determine the existing condition and configuration of the voice, data, and video systems from which SANDERS could then create documents reflecting the desired improvements, and to pay SANDERS for the work it performed under the contract." Sanders further alleged that CSU breached the Agreement in the following ways:

"CSU breached the [Agreement] by, inter alia, all of the following: failure to provide the necessary as-built information and documentation; failure to provide as-built documentation that was accurate and up to date as to floor plan layout; failure to provide as-built documentation that was drawn to scale; unreasonable delay in providing the as-built information it did possess; unilaterally termination [sic] of the contract;^[[2]] and failure to pay SANDERS for the work performed, including the refusal to pay SANDERS the full amount of its final invoice[.]"

B. CSU's motion for summary judgment

1. CSU's claim that it did not breach the Agreement by failing to provide

accurate floor plans

In December 2005, CSU filed a motion for summary judgment. In its brief in support of its motion, CSU argued that the Agreement required only that it provide Sanders with thefloor plan documentation that was presently in its possession, and did not require CSU to create new floor plan drawings for Sanders's use. The Agreement provides in relevant part:

"The design shall provide new inter-building and intra-building voice, data, and video telecommunications distribution services to the facilities according to the scope defined in the existing campus preliminary design package. Campus will provide all existing preliminary design package including floor plans to the design provider for his use. Design provider will revise these documents and prepare a revised preliminary design submittal package." (Italics added.)

CSU argued, "Nothing in this clause can be read to mean CSU had an obligation to provide Sanders with accurate designs or drawings of anything, but rather only with the existing documentation, the revision of which would then be Sanders'[s] obligation." The Agreement provides in relevant part:

"The following services are not covered by Article II, Architect/Engineer's Basic Services, of this agreement. If any of these Extra Services are authorized in writing by the Trustees, they shall be provided by the Architect/Engineer and shall be paid for by the Trustees as provided in Article IV.2.

[] . . . []

"3. Making measured drawings of existing construction as required for planning additions or alternations if adequate as-built drawings are not available."

CSU further noted that Sanders submitted to CSU a "Proposal for Extra Services" in which it proposed to provide such as-built drawings, and that CSU declined the proposal.

CSU submitted a statement of undisputed facts in which it stated the following:

"24. The Agreement required only that CSU provide to Sanders the then-existing floor plans and design package. [] 25. The Agreement specifically defines 'extra services' to include: 'Making measured drawings of existing construction as required for planning additions or alternations if adequate as-built drawings are not available.' However, CSU would only be obligated to pay for such 'extra services' if it provided written authorization to Sanders to perform such services. [] 26. Sanders submitted a Proposal for Extra Services to provide as-built drawings, which CSU rejected."

2. CSU's claim that it did not breach its obligation to pay Sanders for

the work Sanders performed

In CSU's brief in support of its motion for summary judgment,CSU claimed that it had not breached the Agreement by failing to pay Sanders for work that Sanders had performed. CSU argued that Sanders had received authorization to work on only one phase of the project, and that CSU had tendered to Sanders the maximum amount for which Sanders could possibly have been entitled for the work it performed in this phase.

In its statement of undisputed facts, CSU stated that the Agreement called for Sanders to provide its services in phases, including the Preliminary Design Phase and the Construction Document Phase. CSU further stated that the Agreement "required that Sanders obtain 'written notice from [CSU] to proceed' before undertaking work pertaining to the Construction Document Phase" and that CSU had not provided such authorization. In addition, CSU noted that Article IV of the Agreement^[3]set a maximum payment for the Preliminary Design Phase at $63,200, and stated that it had sent Sanders a check for $63,200.

C. Sanders's opposition to CSU's motion for summary judgment

1. Sanders's claim that CSU breached its obligation to provide accurate

floor plans

In February 2006, Sanders filed an opposition to CSU's motion for summary judgment. In its opposition brief, Sanders noted that the Agreement required CSU to provide Sanders with "locations, dimensions, and complete data pertaining to existing buildings, other improvements and trees, and information concerning available service and utility lines both public and private,"^[4]as well as "all existing preliminary design package including floor plans." Sanders argued, "There is an implied term that these plans existed and that the plans would accurately reflect existing conditions." Sanders also claimed that the existence of the "Extra Services" (extra services) provision of the Agreement further demonstrated that such plans were essential to Sanders's performance under the Agreement.

Sanders claimed it could present evidence demonstrating that CSU "failed to provide accurate as-builts." Sanders asserted that the evidence demonstrated that "[t]he plans received by SANDERS were inaccurate and outdated as to the floor plan layout, telecommunications outlet locations and quality, as well as being diagrammatic only and unscaled." Sanders argued that CSU's failure to provide accurate as-built drawings constituted a material breach of the Agreement. Sanders noted that CSU refused to authorize Sanders to make the accurate as-built drawings pursuant to its extra services proposal, and then hired another designer to make the as-built drawings. CSU ultimately terminated Sanders and hired another firm to complete the remainder of the work that Sanders had been hired to perform pursuant to the Agreement.

In its separate statement of undisputed facts, Sanders disputed CSU's contention that the Agreement required CSU to provide only existing floor plans. Sanders stated, "In addition to . . . express contractual obligations, custom and practice in the industry, and an implied term, required CSU to give SANDERS drawings reflecting the current, accurate, or 'as-built' construction conditions." Sanders also noted that the Agreement provides that the information required of the Trustees "shall be furnished as expeditiously as necessary for the orderly progress of work."

In addition to referring to the relevant provisions of the Agreement, Sanders supported its opposition to CSU's motion for summary judgment with a declaration from its president, Jerry Sanders. In his declaration, Jerry Sanders stated: "Custom and practice in the industry, and an implied term, required CSU to give SANDERS drawings reflecting current, accurate, or as 'as-built' construction conditions." Jerry Sanders also outlined the "difficulties [Sanders experienced] in obtaining the necessary as-built information from CSU," and noted that CSU had provided drawings over a five month period. Jerry Sanders stated that these delays precluded Sanders from performing its work within the 90-day schedule contemplated in the Agreement.

2. Sanders's claim that CSU failed to pay Sanders for work that it performed

In opposing CSU's motion for summary judgment, Sanders argued, among other contentions, that the Agreement was ambiguous as to the scope of work required under the Preliminary Design Phase and the Construction Document Phase. Sanders claimed that because of this ambiguity, there were disputed questions of fact "regarding whether or not an authorization to proceed with the Preliminary Design Phase included work to be performed within the Construction Documents Phase."

In its separate statement of undisputed facts, Sanders agreed that it was undisputed that the Agreement called for Sanders to provide its services in phases, including the Preliminary Design Phase and the Construction Document Phase. Sanders further agreed that the Agreement required that it obtain CSU's written authorization for Sanders to proceed with the Construction Document Phase. Sanders did not dispute that it did not receive such written authorization, but claimed that CSU's written authorization to proceed with the Preliminary Design Phase included authorization to proceed with work contained in the Construction Document Phase, due to the ambiguity in the Agreement as to the scope of work required for each phase.

Sanders did not dispute that the Agreement "set payment for the Preliminary Design Phase at $63,200." However, Sanders claimed that due to the ambiguity in the Agreement regarding the scope of work for each phase, "the set contract payment for each phase was ambiguous and inapplicable." Sanders agreed that CSU had sent it a check in the amount of $63,200, but stated that it had negotiated the check for fear of compromising its claim to recover the $311,970.78 that Sanders claimed CSU owed it under the Agreement.

D. The trial court's ruling granting CSU's motion for summary judgment

In February 2006, after receiving CSU's reply brief and holding a hearing, the trial court granted CSU's motion for summary judgment. The trial court ruled that there was no triable issue of material fact with respect to whether CSU had breached the Agreement, or whether Sanders had suffered damages. The court reasoned as follows:

"The Court finds that Defendant's termination of the Agreement fully complies with the terms of the contract, the validity of which the Plaintiff does not dispute. Therefore, Plaintiff's assertions that Defendant breached the contract by, among other things, failing to provide Plaintiff with complete as-built plans of the premises being modified in a timely fashion, [fail because] Defendant had the right to terminate the contract at any time upon written notice. Accordingly, there is no breach."

Additionally, Plaintiff cannot establish it sustained any damages under this cause of action. The terms of the contract specify that the maximum amount Plaintiff could be paid for work on the Preliminary Phase of project at issue . . . was $63,200. [Citation.] The evidence shows Defendant paid Plaintiff this amount of money despite its belief that Plaintiff's work was incomplete. [Citation.] Based on the terms of the contract, Plaintiff received the agreed upon contract fee, which establishes Plaintiff cannot meet this element of its cause of action."

On February 27, the trial court entered a judgment in favor of CSU that states Sanders is to take "nothing" on its complaint. On March 15, CSU served notice of entry of the judgment.

E. Sanders's postjudgment motion to modify the judgment

On April 3, Sanders filed an application to modify the judgment. In its application, Sanders requested that the trial court modify its judgment to provide that Sanders was entitled to recover $63,200 on its breach of contract claim. Sanders argued that integral to the court's reasoning granting CSU's motion for summary judgment was the understanding that CSU had paid Sanders $63,200. On April 4, the trial court deemed Sanders's application a motion and set a date for a hearing on the motion. CSU opposed the motion to modify the judgment. On April 28, after holding a hearing, the trial court denied Sanders's motion to modify the judgment.

F. Sanders's appeal

On May 9, Sanders filed a notice of appeal. Sanders's notice of appeal states, "[Sanders] appeals to the Court of Appeal of the State of California, Fourth Appellate District, from the Judgment entered by the court on February 27, 2006. Notice of Entry of Judgment was served on March 15, 2006."

III.

DISCUSSION

The trial court did not err in granting summary judgment in favor of CSU

Sanders claims the trial court erred in granting summary judgment in favor of CSU.^[5] Sanders contends that there are triable issues of material fact with respect to whether CSU breached the Agreement by failing to provide it with accurate floor plans, and by failing to compensate it in accordance with the Agreement upon termination. We disagree.^[6]

A. Standard of review

A moving party is entitled to summary judgment when he establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) A defendant may make this showing by establishing that the plaintiff cannot establish one or more elements of its cause of action, or that the defendant has a complete defense to the cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)

On appeal, the reviewing court makes "'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. [Citations.]'" (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1143, quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)

B. CSU did not breach the Agreement by failing to provide Sanders with

accurate floor plans

Sanders claims that there is a triable issue of material fact with respect to whether CSU breached the Agreement by failing to provide Sanders with accurate floor plans.^[7]

1. Governing law

"'A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.' [Citation.]" (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6.)

In order to determine whether a triable issue of material fact exists with respect to whether CSU breached the Agreement, we must interpret the Agreement. "[T]he ordinary rules of contract interpretation," are well established. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) The Santisas court described these rules as follows:

"'Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id.,  1639.) The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" (id., 1644), controls judicial interpretation. (Id.,  1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. [Citations.]' [Citation.]" (Ibid.)

2. The Agreement required CSU to provide Sanders only with existing

floor plan drawings

The scope of work portion of the Agreement expressly states that CSUwill provide the "existing preliminary design package including floor plans to the design provider for his use." (Italics added.) Defining "extra services," Article III of the Agreement specifically contemplates that accurate drawings of the "existing construction," on the campus may not be available. Thus, the Agreement unambiguously provides that CSU is required to provide Sanders only with existing floor plan drawings. In light of these provisions, the requirement in Article VII.1 that CSU provide Sanders with a "land survey" of the site, containing among other things, the "locations, dimensions, and complete data pertaining to existing buildings, other improvements and trees, and information concerning available service and utility lines both public and private," cannot reasonably be interpreted as mandating that CSU produce new floor plan drawings for Sanders's use.

We also reject Sanders's contention that the Agreement contained an implied term that CSU provide Sanders with accurate floor plans. We may not interpret the Agreement to contain an implied term that is at variance with the express terms of the Agreement. (See Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374 ["as a general matter, implied terms should never be read to vary express terms"]; Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 808 ["where the contract is unambiguous, the express language is to govern, and '[n]o obligation can be implied . . . which would result in the obliteration of a right expressly given under a written contract'"].)

In addition, we reject Sanders's contention that CSU's action in hiring a third party to prepare accurate as-built floor plans demonstrates that there is a triable issue of material fact with respect to whether the Agreement required CSU to provide Sanders with such drawings. As noted above, the Agreement contemplated that accurate drawings of existing construction might not be available, and provided CSU with the option of requiring Sanders to create such drawings, for an additional fee. The fact that CSU chose not to exercise that option, but rather, chose to hire a third party to create such drawings, does not demonstrate that the Agreement required CSU to provide Sanders with accurate as-built drawings.

We similarly reject Sanders's contention, raised in its reply brief, that we should interpret the Agreement to require that CSU provide accurate floor plans on the ground that courts have "have repeatedly interpreted the production of plans and specifications to require accurate drawings." In support of this argument, Sanders cites Souza & McCue Const. Co. v. Superior Court of San Benito County (1962) 57 Cal.2d 508 (Souza). In Souza, a contractor submitted a bid to a city for the construction of a storm sewer. After the city sued the contractor for breach of contract, the contractor filed a cross-complaint. (Id. at p. 509.) The contractor subsequently moved to amend its cross-complaint to allege: "[The city] knew prior to entering into the June 1958 contract that the soil at the construction site was unstable and failed to inform [the contractor] of the adverse soil conditions and represented in its plans and specifications that the soil at the site was stable with the intent of inducing [contractor] to make a lower bid than it would make on the basis of the actual soil conditions." (Ibid. ) The trial court denied the contractor's motion to amend the complaint. (Ibid.)

The Souza court held that the trial court erred in denying the motion, reasoning, "A contractor of public works who, acting reasonably, is misled by incorrect plans and specifications issued by the public authorities as the basis for bids and who, as a result, submits a bid which is lower than he would have otherwise made may recover in a contract action for extra work or expenses necessitated by the conditions being other than as represented." (Id. at p. 510.)
Unlike in Souza, CSU did not induce Sanders to submit a bid based on inaccurate drawings. Further, Sanders could not have reasonably interpreted the Agreement to provide that CSU had a contractual obligation to provide accurate as-built drawings because, as noted above, the Agreement provided that CSU was required to provide existing drawings, and specifically contemplated that accurate as-built drawings might not be available.

Finally, we reject Sanders's suggestion that evidence of CSU's failure to timely deliver the existing floor plans constitutes evidence of a breach of its contractual promise in the Agreement. Article VIII.1.H of the Agreement provides, "Information required of the Trustees shall be furnished as expeditiously as necessary for the orderly progress of work."

"A promise is a manifestation of an intention to act or refrain from acting in a specified way, so made as to justify the promisee in understanding that a commitment has been made, while a condition is an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due." (13 Williston on Contracts (4th ed. 2000) 38:5.) "Nonoccurrence of a condition prevents the promisee from acquiring a right, or deprives him or her of one, but subjects him or her to no liability." (Ibid.)

In this case, Article VIII.1.H is best interpreted to state that CSU must provide any required reports in a timely fashion before CSU may insist upon Sanders's timely performance. This interpretation is supported by the fact that Article VIII.1 of the Agreement provides, "The Architect/Engineer may terminate this agreement only if the Trustees substantially fail to perform in accordance with Article VII of the Agreement." Therefore, CSU timely providing reports necessary for the orderly progress of work is a condition precedent to Sanders's timely performance, rather than a contractual promise that gives rise to a cause of action for breach, if not fulfilled. Thus, while CSU's failure to timely provide reports to Sanders would excuse Sanders's failure to timely perform under the Agreement, and give it the right to terminate the Agreement, any such failure on CSU's part did not constitute a breach of a contractual promise.

We conclude that CSU established as a matter of law that it did not breach the Agreement by failing to provide Sanders with floor plans.

C. CSU did not breach the Agreement by failing to pay Sanders for the work

Sanders performed

Sanders claims there are triable issues of material fact with respect to the amount CSU was required to pay Sanders upon termination of the Agreement.

1. CSU was not required to pay Sanders any amount in excess of $63,200

Article VIII.2 of the Agreement provides the following:

"In the event the Trustees terminate this agreement . . . the Trustees shall pay to the Architect/Engineer as full payment for all services performed and all expenses incurred under this agreement as follows: (1) the sum due under Article IV as shall have become payable under Article V because of the progress in the work plus a pro rata portion of the next succeeding and uncompleted step, if any, as the services actually rendered hereunder by the Architect/Engineer bear to the total services necessary for the full performance of the next succeeding uncompleted step, plus any sums due the Architect/Engineer for Extra Services or (2) the Documents Development Cost, whichever is less."

We consider the maximum amount to which Sanders could be entitled pursuant to the first method of calculating post termination compensation, namely the "sum due under Article IV . . . ." It is undisputed that the Agreement called for Sanders to provide its services in phases, including the Preliminary Design Phase and the Construction Document Phase. Further, it is undisputed that the Agreement "required that Sanders obtain 'written notice from CSU to proceed' before undertaking work pertaining to the Construction Document Phase." It is also undisputed that CSU did not provide, any such written authorization.

It is further undisputed that, pursuant to Article IV,^[8]the Agreement set the amount of the maximum payment for the Preliminary Design Phase at $63,200. The Agreement further provides that the maximum payment for work completed pursuant to the Construction Document Phase would be $344,700. Within the Construction Document Phase, Sanders would be entitled to be paid $103,410 upon completion of 30 percent of the work in that phase, an additional $103,410 upon completion of 60 percent of the work in that phase, an additional $103,410 upon completion of 90 percent of the work in that phase, and $34,470 upon completion of 100 percent of the work for that phase. Article V specified that "[p]ayment under this agreement shall be made in arrears of the completion of services, upon the submittal of accurate invoice submitted on CSU provided invoice forms . . . ."

Sanders claims that the Agreement was ambiguous with respect to whether certain work was to be performed pursuant to the Preliminary Design Phase or rather, pursuant to the Construction Document Phase. Sanders argues "[t]his created a factual question as to exactly what work was completed by Sanders, and whether that completed work fell within the Preliminary Design Phase, entitling Sanders to payment of $63,200 or a part thereof, or the Construction Document[] Phase, entitling Sanders to payment of $344,700or a part thereof."

We assume for the sake of argument that the Agreement was ambiguous with respect to whether Sanders was required to perform certain work pursuant to the Preliminary Design Phase or pursuant to the Construction Document Phase and that Sanders in fact performed work beyond the Preliminary Design Phase. However, the fact that Sanders did not receive written authorization to perform such work, as the Agreement requires, demonstrates as a matter of law that CSU did not breach the Agreement by failing to pay Sanders for work Sanders performed in excess of the Preliminary Design Phase. Further, the phrase in Article VII that provides for payment of "a pro rata portion of the next succeeding and uncompleted step," can only mean that Sanders would be entitled to a pro rata portion of authorized work completed within a phase, and cannot reasonably be construed to mean that the Agreement provided that, upon termination, CSU was required to pay Sanders for unauthorized work completed outside of an authorized phase. Therefore, the maximum amount CSU was required to pay Sanders pursuant to Article IV of the Agreement was $63,200.^[9]

Sanders also claims that some unspecified "questions of fact" remain concerning the amount of money it might have been entitled to be paid pursuant to the alternative "Documents Development Cost" method of calculating post-termination compensation in Article VIII. Article VIII provides that CSU must pay "whichever is less" of the two compensation calculations. We have determined that the most Sanders was entitled to under the "due under Article IV" method of calculation was $63,200. Therefore, CSU was not required to pay Sanders an amount greater than $63,200.

2. CSU did not breach the Agreement by failing to pay Sanders $63,200

Sanders claims that the trial court erred by entering a judgment that provides that Sanders "shall take nothing from CSU," because the trial court should have entered a judgment requiring that CSU pay Sanders $63,200. In light of the undisputed fact that "CSU sent Sanders a check for $63,200," CSU is not in breach of any obligation it had to pay Sanders this amount. (See Com. Code 3301.) Thus, the trial court did not err in entering a judgment that provided that Sanders was to take nothing on its breach of contract claim.^[10]

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1] In light of our conclusion affirming the trial court's judgment on the ground that CSU established as a matter of law that it did not breach the agreement, we need not consider the trial court's conclusion that Sanders could not establish the damages element of its breach of contract claim. Nor need we consider CSU's argument that it was entitled to summary judgment on the ground that the statute of limitations barred Sanders's breach of contract cause of action.

^[2] Sanders does not dispute the trial court's conclusion that CSU validly exercised its contractual right to terminate the Agreement.

^[3] To be precise, Article IV of the Agreement referred to Exhibit B of the Agreement; Exhibit B specified the payments due for each of the phases.

^[4] This provision is contained in Article VII of Agreement, which is entitled "Trustees' Responsibilities." Article VII.1 provides in relevant part: "The following services, information, surveys and reports shall be provided to the Architect/Engineer as required, at the Trustees' expense: [] . . . [] A land survey of the site, giving, when applicable, grades and lines of streets, alleys, pavements, and adjoining property; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions, and complete data pertaining to existing buildings, other improvements and trees, and information concerning available service and utility lines both public and private."

^[5] Sanders also claims that the trial court erred in denying its postjudgment motion to modify the judgment. This court has held that an order denying a motion to modify the judgment is not an appealable order. (Wickware v. Tanner (1997) 53 Cal.App.4th 570, 574; but see Bernardi v. City Council (1997) 54 Cal.App.4th 426, 434, fn. 9 ["The trial court's ruling it lacked jurisdiction to modify the 1977 judgment is appealable as an order after judgment"].) Assuming the court's denial of Sanders's motion to modify the judgment is an appealable order, we lack jurisdiction to consider such an appeal because Sanders's May 9, 2006 notice of appeal refers only to the trial court's February 27, 2006 judgment, and makes no reference to the trial court's April 28, 2006 postjudgment order denying its motion to modify the judgment. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 [appellate courts lack jurisdiction to review an appealable postjudgment order from which a party has not filed an appeal].) In any event, to the extent Sanders's claim that the trial court erred in denying its postjudgment motion is reviewable on appeal from the judgment, we reject it for the reasons stated in part III.C.2., post.

^[6] Sanders also claims that the trial court erred in concluding that CSU did not breach the Agreement by failing to provide Sanders with floor plans because CSU validly exercised its right to terminate the Agreement. In light of our conclusion that the trial court's grant of summary judgment in favor of CSU may be affirmed because CSU has established that it did not breach the Agreement by failing to provide floor plans, we need not consider this claim. Although we are affirming the summary judgment on a different theory from that relied on by the trial court, the parties addressed this issue in their briefing in this court. Accordingly, we have not requested supplemental briefing pursuant to Code of Civil Procedure section 437c, subdivision (m)(2).

^[7] In its reply brief, Sanders claims that CSU forfeited its claim that it did not have an obligation under the Agreement to produce accurate floor plans by failing to raise this contention in the trial court. As is made clear by our recitation of the factual background, CSU clearly raised this claim in its brief in support of its motion for summary judgment. Therefore, Sanders's forfeiture argument is without merit.

^[8] To be precise, Article IV of the Agreement referred to Exhibit B of the Agreement. Exhibit B specified the payments due for each of the phases.

^[9] Sanders does not claim that it is due any payment pursuant to the extra services portion of the calculation.

^[10] We emphasize that nothing in this opinion should be construed as expressing an opinion with respect to whether CSU had an obligation to pay Sanders $63,200. Rather, Sanders is simply not entitled to a judgment in this case that orders CSU to pay Sanders $63,200, since it is undisputed that CSU paid Sanders this amount, and thus CSU is not in breach of any such obligation. However, if Sanders were to be unable to negotiate the $63,200 check, a new factual circumstance would be presented that is not encompassed within the facts of this case. Therefore, we express no opinion with respect to whether Sanders would be entitled to prevail on a subsequent action in which it alleged that CSU had failed to tender the $63,200 payment.