Continental Construction Co. v. Thos. F. Scollan Co.

California Court of Appeal Jul 8, 1964 No. Civ. No. 10848Published

Before: Moor

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Holding. The court held that summary judgment for the respondent was proper because the respondent's affidavit sufficiently negated the issue of employment, while the appellants' counter-affidavit failed to meet the statutory requirements of personal knowledge and competence.

Issues

Whether the respondent's affidavit was sufficient to support a summary judgment regarding the employment of the alleged tortfeasor.
Whether the appellants' counter-affidavit met the requirements of Code of Civil Procedure section 437c to create a triable issue of fact.
Whether the appellants could raise new issues regarding the pretrial conference order for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Respondent’s affidavit, while dealing with evidentiary matters not raised as issues by the pretrial conference order, nevertheless, squarely met the issue of Jack H. Broughton’s employment by denying that employment.”

“The trial court properly refused to consider appellants’ affidavit in opposition to the motion for summary judgment.”

MOOR, J. pro tem.* Appellants, who are general contractors, brought this action to recover for property damage caused by fire at a construction site. Respondent was one of [387]several subcontractors named defendants. Respondent was granted a summary judgment and appellants appeal.

According to the complaint the Continental-Heller Construction Company, a joint venture, was the general contractor for the construction of the Weinstoek-Lubin store located at El Camino and Watt Avenue in Sacramento. On September 22, 1960, a fire occurred which damaged appellants in the amount of $4,620.24. The complaint alleges that the fire was caused by the negligence of Jack H. Broughton, a welder, and various Does; and that at the time of such negligent acts Broughton and the various Does were employed by each of the several named subcontractors, including respondent. Respondent answered denying that Broughton was an employee and denying that any of its employees were negligent.

At the pretrial conference the court resolved the contentions of the parties and the issues of the case. Because the pretrial conference order becomes the key to the solution of the questions involved, the pertinent portions thereof are set out in full:

“The fictitious defendants may be and they are hereby dismissed, with the exception of White Company I; Jack Dymond Lathing Company having been sued herein as White Company I.

“This is an action brought by plaintiff general contractor against various subcontractors or employees of subcontractors, all being engaged in the construction of the Weinstoek-Lubin store premises at Country Club Centre.

“It is contended by the plaintiff that defendants or agents of defendants negligently started a fire in the premises while under construction. Plaintiff contends that the fire was started through negligence of the defendant Jack H. Broughton and contends that he was an agent, servant, or employee of each of the other defendants. Each of and all of the other defendants deny that Broughton was an employee and further denies he was acting within the course and scope of any agency or employment for the denying defendant.

“ The issues to be determined upon trial are therefore as follows:

“1. Negligence of the defendant Broughton.

Continental Construction Co. v. Thos. F. Scollan Co.

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