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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.