Lewis v. Arboles Development Co.

8 Cal. App. 3d 812, 87 Cal. Rptr. 539, 1970 Cal. App. LEXIS 2097

• Court: California Court of Appeal
• Decided: June 16, 1970
• Docket: Civ. 35081
• Status: Published

Opinions

Opinion

ROTH, P. J.

In a complaint to foreclose a mechanic’s lien against respondents, plaintiff-appellant, a licensed general contractor, doing business as Curley’s Dry wall Construction Co., sued to enforce payment of a balance of $43,834.78 due on a written contract entered into specifically with Mayfair Development Company, one of respondent co-venturers. The contract required appellant to furnish materials and necessary labor for the installation of drywall in houses to be constructed upon land owned by American Hawaiian Land Company, another of respondents, for the agreed price of $223,661.29.

Appellant alleges in paragraph 7 of his complaint that between June 21, 1966 and May 21, 1967, he furnished labor and material used in said houses as required by the contract and in paragraph 8 he alleges that a balance of $43,834.78 is unpaid and owing.

Respondents, insofar as pertinent here, in paragraph VI of their answer referring to paragraph 7 of the complaint admit “. . . that at the special instance and request of [respondents], plaintiff did furnish and deliver drywall materials and labor for installation in the construction of said improvements . . . and that [respondents] promised and agreed to pay for the same.” In paragraph VII, respondents deny they owe the balance claimed.

Respondents, in addition, plead five affirmative defenses and in a counterclaim assert that appellant “. . . failed to pay his workmen ... As a result. . . another contractor [was] hired to finish the work . . . [and the] . . . additional cost. . . was the sum of $13,400.28).”; none of which are pertinent to the question for decision.

The pertinent parts of the pleadings raise questions of fact which require a trial for their disposition.

Respondents elected to move for and they obtained a summary judgment. Respondents’ motion was bottomed on the ground that appellant was not a licensed contractor at all times during the existence of the contract. Respondents’ legal position on the motion and before this court is that appellant’s general contractor’s license expired 45 days before the contract had been completed and that he was in violation of section 7031¹ of the Business and Professions Code and had no legal right to sue.

The minute order grants the motion “. . . on the grounds that plaintiff was not duly licensed as required by Business & Professions Code Section 7031 at all times during performance of the contract and the case did not fall within the exceptions of the Doctrine of Substantial Compliance of the statute in that it did not meet all or sufficient of the elements in the part relied upon by the Courts.” Appellant appeals from the summary judgment of dismissal predicated on said minute order.

To support the motion for summary judgment respondents filed a single declaration signed by one McHone, secretary-treasurer of one of respondent companies. In pertinent part, McHone declared;

“On or about June 21, 1966, I entered into a written agreement with W. G. Lewis, ....

“After entering into said agreement, and as disclosed by plaintiff’s complaint, he performed drywall installation and at all times held himself out as a duly licensed drywall contractor.”

The page in the clerk’s transcript immediately following the McHone declaration consists of what purports to be a certificate of the Contractors’ State License Board. The McHone declaration does not by reference, nor does anything else in the entire record make the purported certificate of said board a part of the McHone declaration. However, we assume that the purported certificate is intended to be a part of the McHone declaration. The certificate is dated “this 19th day of January, 1968,” is signed by Rita Ward, “Supervising Clerk” and recites in pertinent part: “I Hereby Certify . . . Curley’s Construction Co., Walter Gene Lewis, individual owner, 390 Ventura Avenue, Oak View, California, held contractor’s license No. 239946, classification B-l (General Building Contractor), which license was issued December 20, 1965, and was continuously in effect thereafter to April 3, 1967, when it was suspended pursuant to Section 7071.6 of the Business and Professions Code. Said license No. 239946 has not been in good standing since its suspension April 3, 1967.”

Plaintiff filed two declarations in opposition to the motion. His declaration states in pertinent part:

“. .. At all times mentioned in the Complaint herein I was an individual engaged in the general building contracting business under the fictitious name of Curley’s Drywall Construction Co., also known as Curley’s Construction Co.

“I was licensed as a contractor by the State of California from December 20,1965, through April 3, 1967, as a general building contractor.”

Margaret Hall in the second declaration filed on behalf of appellant says in pertinent part:

“On February 17, 1968, I put the following question to John Heath, Senior Deputy, Contractors’ State License Board, 1945 South LaCienega Boulevard, Los Angeles, California, the following question:

“ ‘Does the Contractors’ State License Board interpret the provisions of Chapter 9, Division 3 of the Business and Professions Code and the rules and regulations of the Board as prohibiting a licensed general building contractor from taking and performing a drywall subcontract in connection with a tract of residential houses, the construction of each .of which involves more than two unrelated trades or crafts, without first obtaining a supplemental C-9 classification?’ and he replied the Board did not.”

The parties concede that a general contractor qualifies to do the work herein contracted for without having a special drywall contractor’s license. Respondents’ position is that appellant has no legal capacity to sue because the McHone declaration supported by the purported certificate of the Contractors’ State License Board shows as a matter of law that there has been no literal compliance with section 7031 of the Business and Professions Code and no substantial compliance with said section as required by Latipac, Inc. v. Superior Court, 64 Cal.2d 278 [49 Cal.Rptr. 676, 411 P.2d 564].)

In Latipac, the plaintiff had a license as required by section 7031 on March 22, 1962, when it entered into a contract with Marin County to grade and fill certain land. The contract price was $740,000, of which more than half remained unpaid at the time the action was brought. On June 30, 1963, 15 months after Latipac had commenced the work during all of which time Latipac performed under its contract, its license expired. Latipac nevertheless continued to perform and completed the job approximately 10 months thereafter, to wit, on April 28, 1964, during all of which 10-month period it was unlicensed. Latipac actually renewed its license on June 26, 1964—two months after it had completed the job.

Speaking in Latipac, the court said at pages 281-282: “Although plaintiff thus failed literally to conform to the commands of section 7031 of the Business and Professions Code, the courts of this state have not insisted upon such strict observance if it would transform the statute into an ‘unwarranted shield for the avoidance of a just obligation.’ [Citation.] If the facts clearly indicate that the contractor has ‘substantially’ complied with the statute and that such compliance has afforded to the obligor the protection contemplated by the statute, we have rejected the obligor’s attempt to escape liability. [Citation.] . . . Examination of the record reveals that the instant case presents each of the elements upon which the courts have in the past relied for the application of the doctrine of substantial compliance. Since all these elements here concur, we need not determine whether any of them, singly or in more limited combination, would constitute ‘substantial compliance.’

• “We proceed to an examination of these elements: (1) the fact that plaintiff held a valid license at the time of contracting, (2) that plaintiff readily secured a renewal of that license and (3) that the responsibility and competence of plaintiff’s managing officer were officially confirmed throughout the period of performance of the contract.”

Summary judgment procedure may be used as a “substitute for open trial. . (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]) but such a judgment may be granted only if facts set forth in the declarations (or affidavits) of the moving party (R. D. Reeder Lathing Co. v. Allen, 66 Cal.2d 373-377 [57 Cal.Rptr. 841, 425 P.2d 785]) those of which the court may take judicial notice and those which are stipulated (Ahmanson Bank & Trust Co. v. Tepper, 269 Cal.App.2d 333, 342 [74 Cal.Rptr. 774]; Martin v. General Finance Co., 239 Cal.App.2d 438, 442 [48 Cal.Rptr. 773]; Goldstein v. Hoffman, 213 Cal.App.2d 803, 814 [29 Cal.Rptr. 334]; Thomson v. Honer, 179 Cal.App.2d 197, 203 [3 Cal.Rptr. 791]) are sufficient to sustain a judgment when the declarations of the opposing party do not show facts sufficient to raise a triable issue of fact. In addition, although a moving party cannot rely upon his pleadings to cure or supplement his declarations (Kimber v. Jones, 122 Cal.App.2d 914, 918 [265 P.2d 922]) he may rely upon admissions contained in the pleadings of his adversary. (Schulze v. Schulze, 121 Cal.App.2d 75, 82 [262 P.2d 646]; Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132, 148 [60 Cal.Rptr. 377, 429 P.2d 889].)

In Stationers, the court says at page 417: “In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Rowland v. Christian, 69 Cal.2d 108, 111 [70 Cal.Rptr. 97, 443 P.2d 561]; Slobojan v. Western Travelers Life Ins. Co., 70 Cal.2d 432, 436-437 [74 Cal.Rptr. 895, 450 P.2d 271].)

Applying the rules governing summary judgment to the Latipac principle of substantial compliance and resolving all doubts as to the propriety of said judgment against respondents the record shows substantial compliance as defined by Latipac and raises several issues of fact

(1) Respondents admit that appellant was a licensed contractor continuously for approximately 10 months during which he performed the contract.

(2) Nothing in the declarations or in the record shows that appellant did not sometime after May 21, 1967 apply for a renewal of his license.

(3) There is no showing that appellant admittedly charged with the responsibility for the performance of the contract did not throughout the entire contractual period and until the final day personally perform and supervise the performance of all the work required by the contract.

(4) Respondents in fact admit, subject to their affirmative defenses and contentions, that the work was performed.

(5) No attempt is made to show, nor is it clear from the record, what work, if any, was done between April 3, 1967, and May 21, 1967.

(6) It has been pointed out that under the rules governing summary judgment a party is permitted to take advantage of admissions made in the pleading of his adversary. (Schulze, supra; Joslin, supra.) Other than the fact that a payment of $43,834.78 was not paid, there is no showing that all the work required under the contract was not performed prior to April 3, 1967.

The evidence may or may not show that labor and materials were supplied after April 3, 1967, or that an amount of labor and material considerably less than the unpaid balance of $43,834.78 was furnished after said date. It would seem that Latipac would automatically apply if all the work required by appellant was rendered prior to the expiration of his contractor’s license on April 3, 1967. If the evidence showed instead that labor and materials were supplied after April 3, 1967 for the full amount of the $43,834.78, or in an amount less than $43,834.78, whether in either such situation there would be substantial compliance with Latipac is a question which we do not now decide.

We are satisfied that the record on its face as now before us shows substantial compliance as that term is defined by Latipac. It should be noted, however, that the Latipac court said at page 281: “Examination of the record reveals that the instant case presents each of the elements upon which the courts have in the past relied for the application of the doctrine of substantial compliance. Since all these elements here concur, we need not determine whether any of them, singly or in more limited combination, would constitute ‘substantial compliance.’ ” (Italics added.)

The judgment is reversed.

Fleming, J., concurred.

1 “No person engaged in the business or acting in the capacity of a contractor, may bring or maintain .any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this chapter without alleging and proving that he was a duly licensed contractor at all times during the performance of such act or contract.”