Filed 8/24/22 R & J Sheet Metal v. Joseph Karscig CA2/1

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

R & J SHEET METAL, INC.,

Plaintiff, Cross-defendant and

 Appellant,

v.

JOSEPH KARSCIG, INC.,

Defendant, Cross-complainant

 and Appellant.

 B301918

 (Los Angeles County

 Super. Ct. No. BC596858)

APPEAL from a judgment and an order of the Superior 

Court of Los Angeles County, Monica Bachner, Judge. Affirmed.

Law Offices of Alex P. Aghajanian, Alex P. Aghajanian,

Gary P. Simonian; Benedon & Serlin, Gerald M. Serlin and 

Melinda W. Ebelhar for Plaintiff, Cross-defendant and Appellant.

Finch, Thornton & Baird, Jason R. Thornton and Scott M. 

Bennett for Defendant, Cross-complainant and Appellant.

_________________________
2

Cross-defendant and appellant R & J Sheet Metal, Inc. 

(R&J) was the subcontractor responsible for furnishing and 

installing sheet metal for a project for the City of Long Beach (the 

City). R&J purchased materials, including certain sheet metal

panels and column covers, from cross-complainant and appellant 

Joseph Karscig, Inc., doing business as Architectural Systems, 

Inc. (ASI), which was the distributor but not the manufacturer of 

those materials. After the City observed rusting on certain 

panels supplied by ASI, R&J sued ASI, asserting breach of 

contract. More specifically, R&J alleged that ASI had failed to 

provide all the required materials and to tender to R&J required

written warranty documentation for the materials. ASI filed a 

cross-complaint asserting breach of contract claims against R&J

based on R&J’s failure to pay for certain panels. ASI sought 

summary adjudication of its breach of contract claim and of 

R&J’s breach of contract claim against ASI, which the trial court 

granted in ASI’s favor. The trial court denied R&J’s motion for

reconsideration of the order based on new documents obtained 

from the manufacturer of the materials, finding that the new 

documents reflected facts already known to the parties. 

Following ASI’s motion for attorney fees, the trial court awarded 

ASI $328,914 in fees, approximately $67,000 less than ASI 

requested, finding that the fees incurred were excessive.

R&J appeals the trial court’s grant of summary 

adjudication of the breach of contract claims and the order 

denying its motion for reconsideration. ASI appeals the trial 

court’s order on its motion for attorney fees. We conclude that 

there are no triable issues of material fact as to either R&J’s or 

ASI’s breach of contract causes of action and that the trial court 

properly granted judgment in ASI’s favor. We further conclude 
3

that the trial court did not abuse its discretion in denying R&J’s 

motion for reconsideration or in reducing the amount of ASI’s fee 

award.

Accordingly, the judgment and order of the trial court are 

affirmed.

BACKGROUND

A. The Project

In 2013, the City solicited bids for the construction of two 

buildings at the Port of Long Beach (the Project). W.E. O’Neil 

Construction Co. of California (WEO) was the general contractor 

that was awarded the Project. WEO selected R&J as the 

subcontractor for the furnishing and installation of sheet metal. 

WEO and R&J entered into the subcontract on September 30, 

2013. 

The Project called for sheet metal column covers and panels

and specified that these materials were to be covered by a 

standard two-year manufacturer’s warranty against material 

defects and a special panel finish warranty of 20 years. The 

Project specifications also provided that Centria Architectural 

Systems (Centria) was an acceptable manufacturer of these 

materials. ASI is an authorized distributor of Centria products.

B. The Bidding Process

In response to a request from R&J, ASI submitted its first 

bid on April 25, 2013. Because the initial bid included

engineering services, which R&J did not require, R&J requested 

a bid for only the materials, which ASI provided on September 

20, 2013. The total bid price was approximately $225,000. This 

bid included bold text on the second page stating, “All warranties, 

express or implied, are excluded unless specifically noted above.” 
4

Under this text, the bid stated, “Centria warrants its material 

against defects in material and workmanship for a period of two 

year[s] from shipment. All other expressed and implied 

warranties are excluded.” The bid also stated in bold text on the 

second page that that “All bids are good for 30 days” and

similarly stated on the fourth page, “This proposal shall 

terminate thirty (30) days from date hereof.”

On November 13, 2013, ASI submitted another bid to 

provide panels made by Centria and column covers made by a

different manufacturer in exchange for approximately $150,000.

This bid stated that “[a]ll warranties, express or implied, are 

excluded unless specifically noted above.” With respect to the 

panels, the bid specified, “Centria warrants its material against 

defects in material and workmanship for a period of two year[s]

from shipment,” that “[a]ll other expressed and implied 

warranties are excluded,” and that “[p]aint warranty must be 

reviewed and approved by Centria prior to order.” With respect 

to column covers, the bid included a quote indicating that a 

certain type of finish would be used and provided that the “finish 

will be warranted with manufacturer’s standard 20[-]year coastal 

warranty on a pass through basis.” This bid contained the same 

note in bold text on the second page stating that “[a]ll bids are 

good for 30 days,” as well as a statement on the fourth page that 

“[t]his proposal is valid for 30 days from the date of submission.” 

C. R&J’s First Order of Panels

Four months later, on March 13, 2014, R&J sent a 

purchase order for panels to ASI at a price of $71,703.56, which 

stated “20[-]year COASTAL finish warranty required.” The order 

also stated that the figures provided were approximate and that 

ASI expected to provide a “final cut list” by April 11, 2014. The 
5

order further requested that warranties be provided at the time 

of invoicing where applicable.

On April 23, 2014, R&J sent another purchase order to ASI

for panels, specifying a price of $69,303.53, which was

accompanied by a “final cut list.” This purchase order once again 

noted, “20[-]year COASTAL finish warranty required.” ASI 

responded with an acknowledgment dated April 23, 2014, which 

stated a price of $69,247.94, not including freight. This 

acknowledgment further provided, “Centria warrants its material 

against defects in material and workmanship for a period of two 

year[s] from shipment. All other expressed and implied 

warranties are excluded.” On the final page of this form, above 

the line stating, “Confirmed and Accepted by,” a representative of 

R&J stamped the document “APPROVED By Jesse Calvert at 

5:14 pm, Apr 24, 2014.” The materials covered by this 

acknowledgment were delivered and ASI was paid in full. 

D. R&J’s Order of Column Covers

R&J sent a purchase order for column covers to ASI on 

April 23, 2014, at a price of $102,275, including freight and a 20-

year coastal finish warranty. On May 2, 2014, ASI responded 

with an acknowledgment that specified a price of $92,047.50, not 

including freight. In the description box, the acknowledgment 

stated, “see column cover notes for scope clarifications and 

exclusions.” The notes stated: “Scope: [¶] 21 round columns 

with approx. sq.ft. noted below. The plans dated 1/11/13 as 

composed by AECOM and specification 07415 (revised) dated 

10/4/13 shall serve as the basis for ASI material take off. [¶] 

Approx. 2,584 SF of Reynobond 4mm PE Core ACM Metal Panel 

Cladding with custom 3-coat finish . . . to be fabricated and 

shipped in units to the site for attachment to wall substrate by 
6

others. [¶] ASI will provide requested submittal information for 

your use in determining that the material provided meets the 

specifications. The customer is responsible for determining 

material quantities. THIS IS NOT A ‘PER PLANS AND SPECS’ 

order.” The acknowledgment further provided that the finish on 

the panels “will be warranted with manufacturer’s standard 20[-

]year coastal warranty on a pass through basis.” This 

acknowledgment was stamped “APPROVED By Mike Stuver at 

10:53 am, May 07, 2014” on the “Confirmed and Accepted by” line 

on the final page. Stuver was R&J’s Project Manager.

The column covers were delivered in two shipments dated 

August 8, 2014, and August 19, 2014. Gregory Martinkus, R&J’s 

Project foreman, testified that he signed the August 8, 2014,

shipping list and that he believed he made the corrections on the 

left side of the page to show what had actually been received. His 

corrections indicated that 12 vertical joint splices, which were 

accessories to the column covers, had been delivered. With 

respect to the August 19, 2014, shipping list, Martinkus testified 

that he received the shipment and that everything on the packing 

list was there. This included 48 vertical joint splices, which

according to the slip constituted the “Balance of Vertical Joint 

Splices.”

Michael Stuver, R&J’s project manager, testified that

although he did not count the number of joint splices received in 

the August 8, 2014, shipment, he assumed that Martinkus’s

notes correctly reflected the number of joint splices received in 

that shipment. However, Stuver testified that the 48 vertical 

joint splices that were listed on the August 19 shipping list “did 

not make it to the job site.” According to Stuver, these were the 

only materials that R&J contends were not delivered by ASI. In 
7

an email sent months after the August shipments, on

January 20, 2015, Stuver wrote to ASI that “[t]his project is 

missing the majority of the ACM channel filler piece at vertical 

joints.” Stuver testified that this was the first time that R&J 

raised this issue with ASI and that there was no prior oral

communication regarding missing joint splices. ASI responded to 

that email the following day requesting the quantity of joint 

splices received on August 8 and August 19, 2014 “as well as the 

amount you feel you require and why you feel the quantity sent 

will not fulfill your needs.” ASI requested an expedited response 

“as it has already been 5 months since you received these items.” 

Stuver testified that he responded to this email, but no response 

is included in the record. Martinkus also testified that “we didn’t 

get enough” of the joint splices but conceded that “[s]ome may 

have been thrown away” or “lost.”

E. R&J’s Second Order of Panels

In July 2014, R&J emailed ASI stating that the City 

wanted certain Centria panels that had fallen into the harbor to 

be replaced and communicated the types, quantities, and 

dimensions of panels needed. On July 28, 2014, ASI responded 

with an acknowledgment that specified a price of $36,092.21, not 

including freight. This acknowledgment, like the first 

acknowledgment, provided that “Centria warrants its material 

and workmanship for a period of two year[s] from shipment. All 

other expressed and implied warranties are excluded.” Both 

pages of the acknowledgment were stamped “APPROVED By 

Mike Stuver at 5:09 pm, Aug 04, 2014,” including on the 

“Confirmed and Accepted by” line. 

On July 30, 2014, R&J submitted a change order form to 

WEO for the cost of the replacement panels. WEO rejected this 
8

change order contending that R&J should be responsible for the 

cost of the replacement panels.1 ASI delivered the replacement 

panels, and R&J installed them. In January 2015, WEO sent 

ASI a check for the replacement panels made payable jointly to 

ASI and R&J, which R&J did not endorse. It is undisputed that 

R&J has not paid this invoice and that ASI has not received 

payment from anyone else. 

F. Issues With the Panels

In January 2015, the construction manager for the City 

observed evidence of rusting and pitting on certain of the panels 

and informed WEO. The City requested that R&J and Centria

come to the site and provide a report on their findings. The City 

also contacted ASI and requested that a service representative 

come to the site and review the panels. 

In February 2015, William Burt, president of ASI, informed 

the construction manager that ASI had not received payment for 

the replacement panels and would not provide warranty or close 

out documentation until ASI was paid in full. 

On March 6, 2015, R&J emailed ASI concerning its request 

for warranties. ASI responded that it had not been paid in full 

for the materials provided and that, once payment was received, 

the warranties would be processed. 

1 There is an ongoing dispute between WEO and R&J 

concerning this issue and as to whether WEO, R&J or the City is 

responsible for the panels falling into the harbor. 
9

However, at approximately the same time as this request,2

ASI submitted a “Warranty Request Form” directly to Centria, 

providing the February 2015 date of substantial completion of the 

Project as required for the warranty to be effective. 

Notwithstanding that ASI had disclaimed all warranties for the 

panels other than the two-year material defect warranty, ASI 

also requested a 20-year finish warranty for the panels from 

Centria. After inspecting the panels, Centria determined that 

the panels had not been properly stored or protected on site prior 

to installation and that the finish would not be warranted in 

areas where the panels had dents or scratches. However, Centria 

stated that it would warrant the finish for the portions of the 

panels that were not damaged.

The City rejected this limited finish warranty from Centria. 

R&J offered a finish warranty in lieu of Centria’s in order to close 

out the Project. 

G. Procedural History

R&J filed its original complaint against WEO, the City, ASI 

and others on October 5, 2015. As to ASI, R&J alleged a cause of

action for breach of contract based on ASI’s alleged failure “to 

supply all of the required materials and refus[al] to tender to 

R&J the required material warranties.” R&J’s complaint and 

first amended complaint do not specify the contract ASI allegedly 

breached.

In December of 2015, ASI filed a cross-complaint against 

R&J and others, which it amended in April of 2017. In the 

2 ASI states in its briefing that this document was dated 

March 3, 2015, though this date does not appear on the face of 

the document.
10

amended cross-complaint, ASI alleged that the operative contract 

underlying the dispute was the acknowledgment from the second 

purchase of panels, which R&J had approved, and that the 

breach was R&J’s failure to pay for those panels.

In October 2017, ASI provided R&J with separate written 

copies of (1) the two-year warranty for the Centria panels, (2) the 

two-year warranty for the column covers, and (3) the 20-year 

finish warranty for the column covers. ASI filed a motion for 

summary adjudication against R&J and others on June 11, 2018. 

ASI sought adjudication of its claim that R&J had breached the 

agreement by failing to pay for the second order of panels and of 

R&J’s breach of contract claim against ASI for failure to supply 

the required materials and tender warranties. R&J opposed the 

motion. On October 31, 2018, the trial court granted ASI’s 

motion for summary adjudication on its breach of contract cause 

of action against R&J in the cross-complaint and on R&J’s breach 

of contract cause of action against ASI in its complaint. 

On November 9, 2018, R&J filed a motion for 

reconsideration on the ground that R&J had obtained new facts 

relevant to whether ASI was contractually obligated to deliver a 

written warranty issued by Centria that covered paint finish on 

the panels for 20 years. This new information consisted of three 

documents produced by Centria after the hearing on ASI’s motion

but before the court issued its order. One of the three documents 

had already been produced during the litigation. The other two 

documents consisted of a November 1, 2013, email thread

between Centria and ASI about the pricing, specifications, and 

requested warranties for materials for the Project and a February 

2015 email from ASI to Centria inquiring how R&J’s warranty 

request should be handled. The court denied the motion, noting 
11

that, “[w]hile the documents may be new, the underlying facts 

asserted within them were already known by R&J and used by 

R&J in its opposition to ASI’s motion for summary judgment.” 

The court found that “[t]he facts presented seek to again 

demonstrate that ASI was contractually obligated to deliver a 20-

year manufacturer’s warranty regarding the paint finish on the 

panels from Centria because ASI, and by extension, Centria, 

could not expect its bid to be accepted if it did not conform to the 

project specifications,” which constituted “the same arguments it 

made in the underlying motion.” 

On April 18, 2019, ASI filed a motion for attorney fees 

pursuant to Civil Code sections 1717 and 8558 seeking $382,811 

from R&J, WEO and Continental Casualty Company 

(Continental), which had issued a payment surety bond in 

connection with the Project. After the court granted R&J’s ex 

parte request for a continuance of the hearing on ASI’s motion,

ASI filed a second motion for attorney fees on May 21, 2019, in 

which it sought $396,218.50.

The trial court held that ASI was the prevailing party and 

that it was entitled to a reasonable fee award against R&J, WEO, 

and Continental. The trial court considered R&J’s objection that 

certain fees incurred in connection with ASI amending its 

pleadings, its motions for summary adjudication,3 entry of 

judgment, its fee motion, and ADR attempts were unreasonable 

and excessive and reduced ASI’s fee award to $328,914, reflecting 

a reduction of approximately 17 percent of ASI’s request. The

trial court held that R&J, WEO and Continental were jointly and 

3 ASI’s first motion for summary adjudication was denied 

without prejudice due to insufficient notice. 
12

severally liable for $299,443 of this total and that WEO and 

Continental were liable for the remaining $29,471. 

R&J timely appealed the judgment and award of attorney 

fees and ASI timely cross-appealed from the order awarding 

attorney fees. 

DISCUSSION

I. Motion for Summary Judgment

A. Legal Principles

“[T]he elements of a cause of action for breach of contract 

are (1) the existence of the contract, (2) plaintiff’s performance or 

excuse for nonperformance, (3) defendant’s breach, and (4) the 

resulting damages to the plaintiff.” (Oasis West Realty, LLC v. 

Goldman (2011) 51 Cal.4th 811, 821.)

“The interpretation of a contract is a judicial function. 

[Citation.] In engaging in this function, the trial court ‘give[s] 

effect to the mutual intention of the parties as it existed’ at the 

time the contract was executed. [Citation.] Ordinarily, the 

objective intent of the contracting parties is a legal question 

determined solely by reference to the contract’s terms.” (Wolf v. 

Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 

1125-1126.) “When the contract has been ‘reduced to writing,’ the 

parties’ intention ‘is to be ascertained from the writing alone, if 

possible,’ subject to other rules of interpretation.” (Rodriguez v. 

Oto (2013) 212 Cal.App.4th 1020, 1028.)

Summary judgment is proper when all the papers 

submitted on the motion show there are no triable issues of 

material fact, and the moving party is entitled to judgment as a 

matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “[I]n moving 
13

for summary judgment, a ‘defendant . . . has met’ his ‘burden of 

showing that a cause of action has no merit if’ he ‘has shown that 

one or more elements of the cause of action . . . cannot be 

established, or that there is a complete defense to that cause of 

action. Once the defendant . . . has met that burden, the burden 

shifts to the plaintiff . . . to show that a triable issue of one or 

more material facts exists as to that cause of action or a defense 

thereto. The plaintiff . . . may not rely upon the mere allegations 

or denials’ of his ‘pleadings to show that a triable issue of 

material fact exists but, instead,’ must ‘set forth the specific facts 

showing that a triable issue of material fact exists as to that 

cause of action or a defense thereto.’ [Citation.]” (Aguilar, at 

p. 849.) A triable issue of material fact exists “if, and only if, the 

evidence would allow a reasonable trier of fact to find the 

underlying fact in favor of the party opposing the motion in 

accordance with the applicable standard of proof.” (Id. at p. 850, 

fn. omitted.)

In reviewing an order granting a motion for summary 

judgment or summary adjudication, we apply the same de novo 

standard of review that applies to the granting of summary 

judgments. (Smith v. Wells Fargo Bank, N.A. (2005) 135 

Cal.App.4th 1463, 1471; see also Code Civ. Proc., § 437c, 

subd. (f)(2).) Our Supreme Court has described that standard as 

follows: “ ‘Because this case comes before us after the trial court 

granted a motion for summary judgment, we take the facts from 

the record that was before the trial court when it ruled on that 

motion. [Citation.] “ ‘We review the trial court’s decision de 

novo, considering all the evidence set forth in the moving and 

opposing papers except that to which objections were made and 

sustained.’ ” [Citation.] We liberally construe the evidence in 
14

support of the party opposing summary judgment and resolve 

doubts concerning the evidence in favor of that party. [Citation.]’ 

[Citation.]” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 

713, 716-717.)

B. Application

1. Contract at Issue

The parties disagree as to the number of contracts formed 

between R&J and ASI and the terms of any contract between 

them. R&J contends that ASI’s proposal dated November 13, 

2013, was accepted by R&J on March 13, 2014, and that the 

terms of that contract govern. According to R&J, these terms 

include a 20-year finish warranty for the sheet panels. In 

contrast, ASI argues that the November 2013 bid expired by its 

own terms after 30 days, and in any event, it did not include a 20-

year finish warranty for the sheet panels. Thus, according to 

ASI, the contracts between the parties were the three

acknowledgments prepared by ASI that were approved by R&J, 

which do not provide for any such finish warranty.

We agree that the November 13, 2013, bid did not become 

the contract between the parties. The California Commercial 

Code provides: “Unless otherwise unambiguously indicated by 

the language or circumstances [¶] . . . [a]n offer to make a 

contract shall be construed as inviting acceptance in any manner 

and by any medium reasonable in the circumstances.” (Com. 

Code, § 2206, subd. (1)(a).) Here, the unambiguous language of

the bid shows that the bid expired before the purchase order was 

made. The bid states that “[a]ll bids are good for 30 days” in bold 

text on the second page and “[t]his proposal is valid for 30 days 

from the date of submission” again on the fourth page. Civil Code 

section 1587 provides that “[a] proposal is revoked by . . . [¶] . . . 
15

[¶] . . . the lapse of the time prescribed in the proposal for its 

acceptance . . . .” (Id., subd. (b).) Thus, the proposal was revoked 

after December 13, 2013.4

Contrary to R&J’s contention, Drennan v. Star Paving Co.

(1958) 51 Cal.2d 409 does not dictate that ASI be held to the 

terms of the November 13, 2013, bid. In Drennan, the plaintiff 

successfully made his bid to be the general contractor for a school 

construction project on the same day he had received a bid for 

paving work from the defendant subcontractor, relying upon the 

subcontractor’s bid. (Id. at pp. 411–412.) The next day, the 

subcontractor informed the general contractor that it had made a 

mistake and could not do the paving for the price it had bid. (Id.

at p. 412.) The court found that the subcontractor could not 

revoke its bid because the general contractor had reasonably 

relied upon it. (Id. at p. 414.) The court observed that the 

general contractor had “promptly informed [the] defendant that 

[the] plaintiff was being awarded the job and that the subcontract 

was being awarded to [the] defendant” and noted that if a general 

contractor delayed in accepting a subcontract, the outcome might 

be different. (Id. at p. 415.)

This case is distinguishable from Drennan v. Star Paving 

Co., supra, 51 Cal.2d 409. There is no evidence that R&J “used 

[ASI’s] offer in computing [its] own bid” or “bound [itself] to 

4 A provision in the bid stating that, for the goods that ASI 

was purchasing from Centria, “[p]ricing [is] good through 

shipment by 3/31/2014” and that the price would increase 3

percent per quarter thereafter does not support a reading that 

acceptance was invited through March 31, 2014. This language 

concerns pricing terms alone, not when or how acceptance was 

invited.
16

perform in reliance on [ASI’s] terms.” (Id. at p. 415.) Rather, 

R&J entered its subcontract and material contract with WEO on 

September 30, 2013, before the November 13, 2013, bid that R&J 

argues should be considered part of the contract between the 

parties.

5 Unlike the plaintiff in Drennan, R&J waited months 

after the bid’s express expiration date before claiming reliance

upon its terms.

Alternatively, R&J contends that the November 2013 bid

must be read together with the panel and column cover 

agreements under Civil Code section 1642, which provides: 

“Several contracts relating to the same matters, between the 

same parties, and made as parts of substantially one transaction, 

are to be taken together.” “Civil Code section 1642 is simply one 

of the rules referred to in Civil Code section 1637 for aiding in the 

interpretation of a contract when the intent of the parties is 

otherwise doubtful.” (Ahern v. Asset Management Consultants, 

Inc. (2022) 74 Cal.App.5th 675, 694, fn. omitted.)6 “Civil Code 

section 1642 ‘ “is most frequently applied to writings executed 

contemporaneously, but it is likewise applicable to agreements 

executed by the parties at different times if the later document is 

in fact a part of the same transaction.” ’ [Citation.] [¶] ‘Whether 

5 It would not have been reasonable to rely on ASI’s 

original bid, dated April 25, 2013. Like the November 13, 2013, 

bid, the original bid also stated, “[a]ll bids are good for 30 days” 

and “[t]his proposal shall terminate thirty (30) days from date 

hereof.” 

6 Civil Code section 1637 provides: “For the purpose of 

ascertaining the intention of the parties to a contract, if 

otherwise doubtful, the rules given in this Chapter are to be 

applied.”
17

a document is incorporated into the contract depends on the 

parties’ intent as it existed at the time of contracting.’ [Citation.] 

‘ “ ‘For the terms of another document to be incorporated into the 

document executed by the parties the reference must be clear and 

unequivocal . . . .’ ” ’ [Citation.] ‘The contract need not recite that 

it “incorporates” another document, so long as it “guide[s] the 

reader to the incorporated document.” ’ [Citation.] To be 

construed together, the separate instruments must be ‘so 

interrelated as to be considered one contract.’ [Citation.]” 

(R.W.L. Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 

1027–1028, italics omitted.)

R&J relies on Holguin v. Dish Network LLC (2014) 229 

Cal.App.4th 1310 in arguing that the various documents 

circulated by the parties constitute a single contract as a matter 

of law. In Holguin, the defendants forfeited their contention that 

the trial court improperly instructed the jury using the singular 

“contract,” when the defendants contended that there were 

multiple agreements at issue, as they failed to object to the jury 

instruction. (Id. at pp. 1319–1320.) The appellate court stated 

that, even if the argument had not been forfeited, the trial court’s 

use of the singular “contract” was not erroneous where certain of 

the documents expressly referenced or incorporated by reference 

other documents. Further, the evidence at trial supported the

finding that the initial order form signed by the plaintiffs was for 

a bundle of television services and the remaining documents were 

provided to the plaintiffs at the time their satellite television 

equipment was installed. (Id. at pp. 1320–1321.)

Holguin v. Dish Network LLC, supra, 229 Cal.App.4th 1310

is distinguishable from the present case. None of the agreements 

that were claimed to be part of the transaction in Holguin was an
18

offer that had lapsed. In this case, the mere reference to the 

Project in the acknowledgments from ASI did not clearly and 

unequivocally indicate that the parties intended to incorporate 

the terms of the November 2013 bid. Further, “[w]hether a 

writing is ambiguous is a question of law” (Horning v. Ladd

(1958) 157 Cal.App.2d 806, 810), and we do not find the 

interpretation of the agreements to be “doubtful” such that 

recourse to Civil Code section 1642 is necessary to interpret 

them.

Even if Civil Code section 1642 did apply and an expired 

bid could properly be considered along with the contracts as part 

of the same transaction, it would be inappropriate to construe the 

parties’ agreements to incorporate terms in earlier documents 

that the parties’ later agreements directly contradict. “Where 

there is an inconsistency between two agreements both of which 

are executed by all of the parties, the later contract supersedes 

the former.” (Frangipani v. Boecker (1998) 64 Cal.App.4th 860, 

863.) The two later panel contracts expressly disclaim any 

warranty other than the two-year materials warranty and thus 

would override any prior statement that a 20-year finish 

warranty would be provided with respect to the panels.

7

R&J’s contention that extrinsic evidence supports reading 

an obligation to provide a 20-year finish warranty into the panel 

agreements also lacks merit. “[Extrinsic] evidence of the 

7 Notably, as ASI points out, the November 2013 bid did 

not provide for a 20-year finish warranty for the panels either, 

but instead disclaimed all implied or express warranties other 

than the two-year material and workmanship warranty and 

stated that “[p]aint warranty must be reviewed and approved by 

Centria prior to order.” 
19

meaning the parties gave to the contract language is only 

relevant if the contract language itself is reasonably susceptible 

to that meaning. [Citation.] Thus, extrinsic evidence cannot be 

used to show that when the parties said ‘Bunker Hill Monument’ 

they meant ‘the Old South Church’ or that when they said 

‘pencils’ they really meant ‘car batteries.’ ” (Curry v. Moody

(1995) 40 Cal.App.4th 1547, 1554.) In other words, parol 

evidence is not admissible “to flatly contradict the express terms 

of the agreement.” (Winet v. Price (1992) 4 Cal.App.4th 1159, 

1167.)

Thus, we reject R&J’s arguments that a 20-year finish 

warranty must be read into the panel contracts. We find that in 

determining whether the court properly granted summary 

adjudication in favor of ASI on its and R&J’s breach of contract 

claims, the contracts at issue are (1) the first contract for panels 

entered into in April 2014, (2) the contract for column covers 

entered into in May 2014, and (3) the second contract for panels 

entered into in August 2014.

2. Whether ASI Performed Under the Contracts

To prevail on its motion for summary adjudication as to the 

breach of contract cause of action in the cross-complaint, ASI 

bears the initial burden of proving that it performed under the 

second panel contract and that R&J failed to perform. To prevail 

on its motion for summary adjudication of R&J’s breach of 

contract cause of action, ASI bears the initial burden of proving 

that it performed its obligations under all three contracts.

ASI has met its burden. ASI has shown that the materials 

covered by the April 2014 panel contract were delivered, and ASI 

was paid in full. Regarding the May 2014 column covers 

contract, while the initial shipment did not contain the number of 
20

joint splices listed, the subsequent shipment stated that it 

contained the balance of joint splices. Martinkus personally 

reviewed the shipment and confirmed that it had the number of 

joint splices listed. As to the August 2014 panel contract, there is 

no dispute that ASI delivered the goods to R&J and that ASI has 

yet to receive payment for those goods. 

The burden therefore shifts to R&J to show that a triable 

issue of one or more material facts exists as to both its and ASI’s 

breach of contract claims or a defense thereto. R&J argues that 

ASI failed to fulfill its obligations under the contracts in two 

ways. First, R&J argues that even if ASI did not have to provide 

a 20-year warranty for the finish on the Centria panels, ASI had 

to furnish R&J in a timely manner with “physical documents” 

containing written copies of the other warranties, namely the 

two-year warranty that covered the materials and the 20-year 

warranty for the column cover finish. Second, R&J argues that 

ASI failed to provide sufficient materials under the column cover 

contract. We address these points in turn.

a. Failure to Provide Separate Written 

Warranty Documentation

The panel contracts provide that “Centria warrants its 

material against defects in material and workmanship for a 

period of two year[s] from shipment,” and the column cover 

contract provides that “[t]his finish will be warranted with 

manufacturer’s standard 20[-]year coastal warranty on a pass 

through basis.” There is no dispute that the contracts do not 

contain a provision stating that ASI must provide separate 

written warranty documentation. However, R&J contends that 

this should be an implied term of the parties’ agreements.
21

Civil Code section 1655 provides: “Stipulations which are 

necessary to make a contract reasonable, or conformable to 

usage, are implied, in respect to matters concerning which the 

contract manifests no contrary intention.” Civil Code section 

1656 provides: “All things that in law or usage are considered as 

incidental to a contract, or as necessary to carry it into effect, are 

implied therefrom, unless some of them are expressly mentioned 

therein, when all other things of the same class are deemed to be 

excluded.”

“ ‘Implied terms are not favored in the law, and should be 

read into contracts only upon grounds of obvious necessity. 

[Citation.] A court may find an implied contract provision only if 

(1) the implication either arises from the contract’s express 

language or is indispensable to effectuating the parties’ 

intentions; (2) it appears that the implied term was so clearly 

within the parties’ contemplation when they drafted the contract 

that they did not feel the need to express it; (3) legal necessity 

justifies the implication; (4) the implication would have been 

expressed if the need to do so had been called to the parties’ 

attention; and (5) the contract does not already address 

completely the subject of the implication. [Citations.]’ 

[Citations.]” (Grebow v. Mercury Ins. Co. (2015) 241 Cal.App.4th 

564, 578–579; see Abers v. Rounsavell (2010) 189 Cal.App.4th 

348, 361 [“ ‘We do not have the power to create for the parties a 

contract that they did not make and cannot insert language that 

one party now wishes were there’ ”].)

The parties do not appear to dispute that the language of 

the panel contracts and column cover contract was sufficient to 

create enforceable express two-year warranty for the materials 

and a 20-year warranty for the column cover finish. It is also 
22

undisputed that no claim was made against any warranty 

covered by the two panel contracts or the column cover contract,

and there is no evidence that, had R&J sought to enforce a 

warranty prior to receiving the written warranty documentation

in 2017, it would have been unable to do so. R&J does not point 

to evidence in the record supporting that it was an established 

custom in the industry to provide separate written warranty 

documentation or that separate written warranty documentation 

was necessary to effectuate the intention of the parties.

R&J contends that an obligation to provide separate 

written warranty documentation can be inferred from the fact 

that the City was the ultimate customer and that it should be 

assumed that the City would want such documentation given the 

cost of the project. “ ‘ “[W]hen opposition to a motion for 

summary judgment is based on inferences, those inferences must 

be reasonably deducible from the evidence, and not such as are 

derived from speculation, conjecture, imagination, or guesswork.”

[Citation.]’ [Citation.]” (Annod Corp. v. Hamilton & Samuels

(2002) 100 Cal.App.4th 1286, 1298–1299.) There is no evidence 

to show that the City expected separate written warranty 

documentation. Rather, it appears that the City believed that it 

could enforce a warranty without any separate written 

documentation of that warranty, as evidenced by the fact that it 

raised rusting issues that it believed were covered by a finish 

warranty to ASI.

The trial court supported its conclusion that there was no 

breach by finding that ASI ultimately provided the separate 

written warranty documentation in October 2017 and that “R&J 

did not cite to on-point case law or authority to suggest ASI had 

to provide the warranties within a reasonable time after 
23

substantial completion of the project.” However, “[w]here no time 

limit is specified for the performance of an act, a reasonable time 

is allowed.” (Consolidated World Investments, Inc. v. Lido 

Preferred Ltd. (1992) 9 Cal.App.4th 373, 381.) “What constitutes 

a ‘reasonable time’ for performance is a question of fact.” (Henry 

v. Sharma (1984) 154 Cal.App.3d 665, 669, 670.) Factual 

questions may only “be decided as a question of law if, under the 

undisputed facts, there is no room for a reasonable difference of 

opinion.” (Powell v. Standard Brands Paint Co. (1985) 166 

Cal.App.3d 357, 363.) We cannot conclude that there is no room 

for a reasonable difference of opinion as to whether providing 

written warranty documentation in October 2017, after the twoyear material warranty expired, was within a reasonable time. 

Nevertheless, we agree with the trial court’s further conclusion 

that “ASI was not required to provide a physical warranty and 

‘the materials are warranted by the manufacture [sic] against 

defects in material and workmanship for a period of two years

regardless of whether any physical warranty documentation is 

delivered by ASI.’ ”

Because failure to provide separate written warranty 

documentation was R&J’s only defense to its failure to pay ASI 

under the second panel contract, we affirm summary adjudication

in favor of ASI on its breach of contract claim in the crosscomplaint. Moreover, R&J’s only claim for breach as to the panel 

contracts was ASI’s failure to provide separate warranty 

documentation under them. Thus, summary adjudication of 

R&J’s claim for breach of contract as to two of the parties’ three 

agreements must also be affirmed. We consider next whether 

R&J can succeed on its claim for breach of contract as to the 

column cover agreement.
24

b. Failure to Provide Sufficient Column 

Cover Materials

R&J asserts that ASI failed to perform its obligations

under the column cover contract because it failed to supply 

sufficient materials. In their briefing below and on appeal, the 

parties did not tie their contentions concerning a breach of 

contract due to a failure to deliver sufficient joint splices to any 

specific language in the contract. As R&J acknowledges, the 

parties’ agreement “did not list individual pieces as the order for 

panels had done”—in other words, the contract did not state a

specific quantity of joint splices or other materials that ASI was 

obligated to provide in connection with the column cover contract. 

Rather, the contract provided for, among other things, an 

approximate square footage of “Metal Panel Cladding”; that “ASI 

will provide requested submittal information for [R&J’s] use in 

determining that the material provided meets the specifications”; 

that “[t]he customer is responsible for determining material 

quantities”; and that “THIS IS NOT A ‘PER PLANS AND 

SPECS’ order.” 

Stuver testified that the only materials that were 

purportedly not delivered by ASI were the 48 joint splices listed 

on the August 19, 2014, packing slip that “did not make it to the 

job site.” Stuver did not testify that he personally inspected the 

August 19 shipment. However, Martinkus did. Martinkus

testified that he performed a review of the August 19 shipment of 

panels “to see, if what was listed on the packing list, was actually 

there” and agreed that “everything listed on the packing slip 

[was] actually there.” Notwithstanding that the testimony of 

R&J employees supports the conclusion that all the materials 

were in fact delivered, R&J continues to assert that there was a 
25

breach of contract because the amount received was not sufficient 

to complete the project. Martinkus conceded that some joint 

splices may have been lost or thrown away but asserted that even 

if that were not the case, there were not enough joint splices to 

complete the project. The declaration of William Burt, to which 

R&J objected on evidentiary grounds below, asserted instead that 

the quantity of joint splices that ASI provided to R&J was 

sufficient. 

Even disregarding Burt’s assertions as to the sufficiency of 

the joint splices provided, R&J has failed to create a material 

dispute of fact as to whether ASI met its obligations under the 

contract. The column cover agreement stated that R&J must 

determine the materials required and the record before us does 

not show that R&J ever communicated that quantity it 

ultimately required to ASI. Five months after receiving the two 

shipments of column cover materials, and approximately two 

weeks before the Project’s substantial completion date of 

February 2, 2015, R&J asserted in an email to ASI that “[t]his 

project is missing the majority of the ACM channel filler piece at 

the vertical joints.” The record does not reflect any response to 

ASI’s request that R&J provide the number of joint splices it 

received as well as the amount it believed were required to 

complete the project. R&J argued below and again on appeal

that ASI refused to provide the splices needed to complete the 

installation, but it failed to identify any evidence showing the 

quantity of joint splices that were requested from ASI or evidence 

that ASI refused to provide those materials. The only evidence 

cited in support of ASI’s claimed refusal to supply the materials
26

required is R&J’s own response to an interrogatory, on which it

cannot rely.

8

In the absence of evidence that R&J communicated the 

further materials it required under the column cover contract to 

ASI, R&J’s bare assertion that the number of joint splices 

received was insufficient to complete the Project does not create a 

dispute of material fact as to whether ASI breached the contract.

Accordingly, we affirm the trial court’s order granting summary 

adjudication in favor of ASI on R&J’s breach of contract claim 

under the column cover contract.

II. Motion for Reconsideration

R&J argues that the trial court erred in rejecting its motion 

for reconsideration of the summary adjudication ruling. We find 

no error and affirm.

Pursuant to Code of Civil Procedure section 1008, 

subdivision (a), a motion for reconsideration must be based on 

“new or different facts, circumstances, or law.”9 We may review 

an order denying a timely motion for reconsideration on appeal 

8 “At the trial or any other hearing in the action, so far as 

admissible under the rules of evidence, the propounding party or 

any party other than the responding party may use any answer or 

part of an answer to an interrogatory only against the responding 

party. . . .” (Code Civ. Proc., § 2030.410, italics added.)

9 When a motion is based on new facts or circumstances, 

the moving party must satisfactorily explain why he did not 

earlier produce the new evidence. (Lucas v. Santa Maria Public 

Airport Dist. (1995) 39 Cal.App.4th 1017, 1027.) R&J’s delay in 

obtaining this evidence was not discussed in the tentative order 

or during oral argument, from which we may infer that the trial 

court found R&J’s explanation for its delay to be satisfactory. 
27

from the underlying order or judgment. (See Glade v. Glade

(1995) 38 Cal.App.4th 1441, 1457–1458.) “An abuse of discretion 

standard applies to a court’s denial of a motion for 

reconsideration.” (Hudson v. County of Los Angeles (2014) 232 

Cal.App.4th 392, 408.)

One of the three documents that R&J cited as new evidence 

in its motion had already been produced during the litigation.

The other two documents consist of a November 1, 2013,

communication between Centria and ASI about the Project and a 

February 2015 communication between ASI and Centria in which 

ASI inquired how it should handle the 20-year warranty request 

that R&J submitted. Both documents were relied upon as 

evidence that ASI and Centria were aware that the Project 

required a 20-year finish warranty. The trial court concluded 

that while those two “documents may be new, the underlying 

facts asserted within them were already known by R&J and used 

by R&J in its opposition to ASI’s motion for summary 

adjudication.” 

R&J argues that this conclusion was error, relying on Film 

Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 

Cal.App.3d 824. In Film Packages, Inc., the respondent made 

several attempts to obtain a right to attach order: (1) an 

application that was denied; (2) a motion for reconsideration that 

was denied; and (3) seven months later, after additional discovery 

was completed, a successful renewed motion. (Id. at p. 826.) The 

renewed motion, which was the subject of the decision, was made 

pursuant to Code of Civil Procedure former section 1008, 

subdivision (b), which provided that when a party “makes a 

subsequent application for the same order upon an alleged 

different state of facts, it shall be shown by affidavit . . . what 
28

new facts are claimed to be shown.” (See Film Packages, Inc., at 

p. 827.) The Court of Appeal considered whether the trial court 

could properly consider the renewed application “absent a 

showing of any facts materially different from those presented on 

a prior denied application” and held that it could. (Id. at p. 826.) 

Even though the plaintiff did not make a showing of any facts 

materially different from those presented in its prior denied 

application, the trial court held that “new evidence of the 

meaning of those facts was produced” and that the new 

depositions “shed new light on the case” and “provided ‘many 

subtle nuances and subjective impressions.’ ” (Id. at p. 829.) 

Thus, the appellate court found that “new information was made 

available.” (Ibid.) The court further found that “[w]hile it may be 

error to reconsider a previous final order under [Code of Civil 

Procedure] section 1008, subdivision (a), where there is no 

showing of newly discovered evidence [citation], apart from that 

subdivision a trial court, in a still pending action, is generally 

vested with discretion to grant a renewed motion based on a 

fuller statement of facts previously furnished.” (Id. at p. 830.)

Film Packages, Inc. v. Brandywine Film Productions, Ltd., 

supra, 193 Cal.App.3d 824 does not compel the conclusion that 

the trial court here abused its discretion by failing to grant R&J’s

motion for reconsideration. Indeed, Film Packages, Inc. suggests 

that it would be an abuse of discretion to grant a motion for 

reconsideration brought under Code of Civil Procedure section 

1008, subdivision (a), such as R&J’s motion in this case, based 

only upon new light shed on known facts.

Moreover, the trial court’s opinion here indicates that the 

new documents did not cast circumstances in a new light or 

provide any “subtle nuances” in its view. Rather, the trial court
29

found the information in the new documents to be immaterial to 

its determination. (See New York Times Co. v. Superior Court

(2005) 135 Cal.App.4th 206, 214 [immaterial facts cannot support 

a motion for reconsideration].) The trial court stated that the 

November 1, 2013, communication reflecting knowledge of the 

Project’s specifications was ultimately irrelevant because a later 

email from ASI to R&J stated that Centria could not provide the 

desired warranty. Similarly, the trial court observed that the 

February 2015 request from ASI to Centria did not support R&J’s 

conclusory allegation that ASI never intended to exclude the 

finish warranty. Rather, it demonstrated that ASI received 

R&J’s request for a 20-year warranty and inquired how to 

proceed. We find no obvious showing of abuse in these 

conclusions and therefore affirm the trial court’s denial of the 

motion for reconsideration.

III. Motion for Attorney Fees

On cross-appeal, ASI contends that the reductions the trial 

court made to ASI’s request for $396,218.50 in attorney fees 

constituted reversible error. We disagree and affirm.

An order granting an award of attorney fees is generally 

reviewed for an abuse of discretion. (See MHC Financing 

Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 

1372, 1397.) In particular, “[w]ith respect to the amount of fees 

awarded, there is no question our review must be highly 

deferential to the views of the trial court,” since “an experienced 

trial judge is in a much better position than an appellate court to 

assess the value of the legal services rendered in his or her 

court.” (Children’s Hospital & Medical Center v. Bontá (2002) 97 

Cal.App.4th 740, 777, 782; see also PLCM Group, Inc. v. Drexler

(2000) 22 Cal.4th 1084, 1095 [recognizing trial court’s broad 
30

discretion in determining amount of reasonable attorney fees 

because experienced trial judge is in the best position to decide 

value of professional services rendered in court].) An appellate 

court will interfere with a determination of “what constitutes the 

actual and reasonable attorney fees” “only where there has been 

a manifest abuse of discretion” (Fed-Mart Corp. v. Pell 

Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228) that “shocks the 

conscience or is not supported by the evidence” (Jones v. Union 

Bank of California (2005) 127 Cal.App.4th 542, 550).

ASI challenges the trial court’s reduction of its requested 

fees in connection with its two motions for summary adjudication, 

the first of which was denied without prejudice due to insufficient 

notice. ASI contends that the court determined that the fees for 

the two motions were duplicative even though R&J in its second 

opposition raised “an array of novel factual and legal arguments 

not raised in its first opposition.” However, the trial court’s order 

acknowledged that, “in addition to incorporating the first [motion 

for summary adjudication’s] arguments, the second [motion for 

summary adjudication] involved additional issues . . . and 

preparing replies to new arguments raised by [c]ross-[d]efendants 

in opposition.” It nevertheless found it appropriate to reduce the 

$60,623 requested by ASI in connection with both motions by 

$27,655, or approximately 45 percent. We do not find this 

reduction to exceed the bounds of reason, particularly as it is 

undisputed that there would have been no second motion had the

first motion been sufficiently noticed.

ASI similarly challenges reductions to the fees incurred in 

preparing its fee motion and in its settlement efforts. The trial 

court found the $36,905 in fees incurred in connection with the 

fee motion to be excessive and reduced the fees to $18,000. The 
31

trial court also reduced the $35,196 in fees incurred engaging in 

ADR to $20,196 on the grounds that the fees were excessive, 

though not incurred in bad faith. ASI contends that its requested 

fees were necessary and reasonable and that the trial court’s 

reductions were “[b]izarre[ ]” and “penalized ASI.” We disagree.

“[T]he trial court has wide discretion in making reductions 

based on its estimate of time spent on activities that are 

noncompensable in whole or in part.” (Chavez v. Netflix, Inc.

(2008) 162 Cal.App.4th 43, 64.) Here, the trial court cited clear 

examples of what it found to be excessive amounts of time spent 

on activities such as preparing charts for the fees motion and 

preparing mediation briefs. The mere fact that the trial court did 

not award ASI the full figure sought does not mean that it acted 

irrationally or punitively. “[C]ounsel ‘are not automatically 

entitled to all hours they claim in their request for fees. They 

must prove the hours they sought were reasonable and 

necessary.’ ” (Concepcion v. Amscan Holdings, Inc. (2014) 223 

Cal.App.4th 1309, 1320.) We do not find the trial court’s 

conclusion that ASI had not shown all its hours to be reasonable

or necessary to be beyond the bounds of reason.

In sum, we will not substitute our own opinion for the 

evaluation made by the experienced judge who presided over the

proceedings below for years. (See Denham v. Superior Court

(1970) 2 Cal.3d 557, 566 [“ ‘The burden is on the party 

complaining to establish an abuse of discretion, and unless a 

clear case of abuse is shown and unless there has been a 

miscarriage of justice a reviewing court will not substitute its 
32

opinion and thereby divest the trial court of its discretionary 

power’ ”].)

10

DISPOSITION

The judgment and order are affirmed. The parties are to 

bear their own costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J. BENDIX, J.

10 R&J also contends that the cross-appeal must be 

dismissed because WEO and Continental were not served with 

the briefs despite being necessary parties to the appeal because 

they have a “ ‘vital and real interest’ ” in the issue of attorney 

fees. However, the only case upon which R&J relies to assert 

that WEO and Continental are necessary parties, Slaughter v. 

Edwards (1970) 11 Cal.App.3d 285, is distinguishable as it did 

not involve jointly and severally liable defendants, against which 

a plaintiff is typically “entitled to pursue . . . claims in separate 

actions.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 

822.) We have not located, nor has R&J directed us to, any case 

in which jointly and severally liable defendants were held to be 

necessary parties to an appeal such as this one. Further, as we 

have found that the trial court did not abuse its discretion in its 

attorney fees award, there is no need to speculate about the 

indirect effects on WEO and Continental of an increased award 

as to ASI.