Stanislaus Pump, MacHinery & Construction Corp. v. City of Modesto

[1444]

Opinion

BROWN (G. A.), J.

*

Respondent, Stanislaus Pump, Machinery & Construction Corporation (contractor), filed a complaint seeking damages for breach of contract against appellant, City of Modesto (City), arising out of a work of public improvement relating to a municipal sewer system. In its answer to the complaint, the City included as an affirmative defense that it had withheld sums from contractor representing the cost of the traffic pavement markers which it had deleted from the contract, and the amount paid to S & H Insurance Company (Surety), the surety on the payment and performance bond furnished by contractor to City. The City also filed a cross-complaint seeking recovery from contractor for an item not at issue in this appeal and indemnity from Surety pursuant to a hold harmless agreement between them. The cross-complaint was bifurcated to the extent it sought relief against Surety and is not an issue in this appeal.

Following a court trial, it was ordered that contractor recover judgment against City in the amount of $59,524.39, plus interest. Pursuant to the City’s request, a statement of decision was proposed and, after a hearing on City’s objections, was adopted as modified. Thereafter, the court denied the City’s motions for a new trial and to set aside the judgment. The appeal is from the underlying judgment and the order denying the two motions after judgment.

Facts

Contractor bid on and was awarded the contract for the repiping of the Rose-Celeste lift station for $179,079. Under this contract, contractor was to install a pipeline, a wet pit for the purpose of containing raw sewage, and a dry pit or lift station. Additionally, an existing wet pit was to be connected to the new wet pit.

Shoring was required for the excavation of the wet and dry pits, and the trench needed to connect the existing wet pit to the new wet pit. At a preconstruction conference, the City approved the use of steel sheet piling for shoring all of the excavations.

The work was conducted in three phases: (1) installation of the pipeline along Rose Avenue; (2) installation of the wet and dry pits at the intersection of Rose and Celeste; and (3) connection of the existing wet pit to the new wet pit. Construction of the first phase proceeded without incident.