Structural Steel Fabricators, Inc. v. City of Orange

*1208 Opinion

Structural Steel Fabricators, Inc. (Structural), appeals a summary judgment 1 entered against it after the trial court determined its lawsuit was not filed within the time limits prescribed by Civil Code section 3210. The sole issue presented is whether the court was correct in concluding estoppel could not be asserted to extend the statute of limitations.

I.

In February 1988, Structural, as subcontractor, entered into a contract with IDC Construction (IDC), as general contractor, to perform structural steel fabrication for the City of Orange. In October, IDC walked off the job site, and Contractor Surety Bonding Company (CSBC) assumed its role. Structural received partial payment from CSBC; however, CSBC left before Structural was paid in full.

On January 4, 1989, Structural served a stop notice 2 upon the city, demanding that it withhold the sum of $30,086 from CSBC. Instead, the city permitted CSBC to “bond around” the stop notice.

On May 26, Structural filed a lawsuit against IDC and CSBC. In September, Structural obtained a $27,350 default judgment. A month earlier, however, IDC filed a chapter 7 bankruptcy proceeding and CSBC went out of business.…

In its petition for rehearing, the City of Orange contends our opinion contains a misstatement of material fact. It maintains that Structural Steel “expressly and affirmatively stated that it was Not relying upon or asserting an estoppel theory in its Opposition to the Motion for Summary Judgment or on appeal.” Thus, it argues a rehearing is required because our opinion is based on an issue which has neither been raised nor briefed. The city is wrong.

Indeed, respondent’s brief belies this contention. The city in its brief asserted, “In reality, Appellant’s alleged facts speak to an estoppel argument under the guise of a tolling argument. . . . Appellant sets forth facts which speak to potential estoppel, yet Appellant refers to those facts as relating to its tolling argument, apparently in an attempt to steer around the clear holding in the A. J. Setting Co. case which unquestionably provides that not even the estoppel theory can be used to extend the time limitations set forth in the Stop Notice Codes.” Earlier in its brief, the city stated, “Appellant’s [tolling] argument is essentially a different breed of the same animal of estoppel which cannot be used to extend the time…

SONENSHINE, Acting P.J.

Structural Steel Fabricators, Inc. (Structural), appeals a summary judgment [1] entered against it after the trial court determined its lawsuit was not filed within the time limits prescribed by Civil Code section 3210. The sole issue presented is whether the court was correct in concluding estoppel could not be asserted to extend the statute of limitations.

In February 1988, Structural, as subcontractor, entered into a contract with IDC Construction (IDC), as general contractor, to perform structural steel fabrication for the City of Orange. In October, IDC walked off the job site, and Contractor Surety Bonding Company (CSBC) assumed its role. Structural received partial payment from CSBC; however, CSBC left before Structural was paid in full.

On January 4, 1989, Structural served a stop notice [2] upon the city, demanding that it withhold the sum of $30,086 from CSBC. Instead, the city permitted CSBC to "bond around" the stop notice. [3]

On May 26, Structural filed a lawsuit against IDC and CSBC. In September, Structural obtained a $27,350 default judgment. A month earlier, however, IDC filed a chapter 7 bankruptcy proceeding and CSBC went…