Oldcastle Precast v. Pinner Construction

Filed 5/11/06 Oldcastle Precast v. Pinner Construction CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment and a postjudgment order of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Reversed.

Braun & Melucci and Kerri M. Melucci for Plaintiff and Appellant.

Kellam & Biedebach, Newton W. Kellam and James W. Biedebach for Defendants and Respondents.

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INTRODUCTION

Plaintiff Oldcastle Precast Inc., doing business as Utility Vault Company, appeals from the judgment following a jury trial, and from a postjudgment order on a motion for attorney fees and costs. At trial, plaintiff sought payment under a payment bond issued on a public works project pursuant to Civil Code section 3247, by the general contractor's surety after a subcontractor failed to pay plaintiff for supplies provided for the project. (All further statutory references are to the Civil Code unless otherwise specified.)

Plaintiff contends the trial court erred by concluding, as a matter of law, that the defense of equitable estoppel was available to the surety solely based on the general contractor's reliance on a release signed by plaintiff, which release incorrectly stated that plaintiff was owed nothing for supplies it provided through June 2002. Plaintiff also argues that even assuming the general contractor's equitable estoppel defense could inure to its surety under such circumstances, substantial evidence did not support the jury's finding that plaintiff intended for anyone to rely on the incorrect release. Finally, plaintiff contends the trial court erred by awarding the general contractor attorney fees.

We reverse. The trial court erred by concluding that the surety could assert equitable estoppel in defense against plaintiff's action on the payment bond, based solely on the general contractor's reliance on an incorrect release. We therefore do not need to reach plaintiff's other two arguments in this appeal.

FACTS[1]

In February 2002, general contractor Pinner Construction Company, Inc. (Pinner), and the Orange County Sheriff's Department entered into a public works construction contract for a project known as the â€