Court of Appeal, First District, Division 3, California.
PACIFIC COAST CONTAINER, INC., Plaintiff, Cross-defendant, and Appellant,
v.
ZIM AMERICAN INTEGRATED SHIPPING SERVICES COMPANY, Inc., Defendant, Cross-complainant, and Respondent.
No. A128208.
(Alameda County Super Ct. No. RG07330657).
Oct. 24, 2011.
Michael Alfred Broad, Oakland, CA, for Plaintiff and Appellant.
William Dahill Carey, Kaye, Rose & Partners, San Diego, CA, Bradley Michael Rose, Frank C. Brucculeri, Kaye, Rose & Partners, LLP, Los Angeles, CA, for Defendant and Respondent.
McGUINESS, P.J.
Pacific Coast Container, Inc., appeals from a judgment, filed on February 11, 2010, which, in pertinent part, awarded the sum of $1,395 to Zim American Integrated Shipping Services Company, Inc., on its cross-complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken, in part, from the trial court’s statement of decision, and the testimony and exhibits admitted at the bench trial. We construe any disputed facts in the light most favorable to Zim as the prevailing party at trial.
Pacific Coast Container, Inc. (PCC) is a certificated motor carrier. Zim American Integrated Shipping Services Company, Inc. (Zim) is a vessel-owning ocean common carrier. For several years, PCC has hauled Zim-owned containers from the marine terminals in Oakland to shipping customers. The parties operated pursuant to (a) the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA), a standard form contract in the industry for international marine cargo trade and motor carrier interchange, and (b) a related carrier-specific addendum (Zim Addendum). Pursuant to UIIA, Zim granted PCC possession of Zim-owned equipment for the sole purpose of completing an “[i]nterchange of equipment” for a certain number of days in return for PCC’s agreement to pay per diem charges for the retention of the equipment beyond the agreed return date. UIIA’s Section E “Equipment Use”, subsection 6, provided, in pertinent part: “a. Interchange of equipment is on a compensation basis. Provider may permit some period of uncompensated use and thereafter impose use charges, as set forth in its Addendum. [¶] b. Motor Carrier shall be responsible for use and/or storage charges set forth in the Addenda. [¶] c. Provider shall invoice Motor Carrier for use and/or storage charges within sixty (60) days from the date on which Equipment was returned to Provider by Motor Carrier. [¶] … [¶] e. Provider shall provide the Motor Carrier documentation as is reasonably necessary to support its invoice. [¶] f. Motor Carrier shall respond in writing to Provider’s invoices within thirty (30) days, documenting with appropriate evidence its disagreement with any of Provider’s invoices it believes to be incorrect. [¶] g. Motor Carrier will participate in good faith in Provider’s established method of dispute resolution, as set forth in its Addendum.”
At trial, Zim’s Vice President West Coast, Philip Wright, explained that Zim collected per diem charges because it needed the equipment back to use for other opportunities, and it did not want importers to use the equipment as a warehouse. The per diem charges were “a revenue stream,” of a punitive nature because Zim was not in the business of leasing equipment to its clients, and it cost Zim money to have its containers and equipment out of circulation. Research showed that by reducing the turn around time of equipment by just one day, Zim could save a million dollars per year.
The Zim Addendum sets forth the motor carrier’s additional responsibilities and liabilities, a table of per diem charges, the computation of per diem charges for use of the equipment beyond the agreed return date, and a dispute resolution process concerning invoices. In pertinent part, Section 2 “Motor Carrier Responsibility and Liability” provided in paragraph E that “[t]he Motor Carrier may not transfer possession of the interchanged equipment to any other carrier without the express written authorization of Zim or its agent, and in any event, the Motor Carrier shall always remain primarily responsible for all provisions in the Agreement and this Addendum, including any penalties or charges which may accrue on the equipment.” Section 8, “Dispute Resolution”, provided: “Before litigation is instituted, Motor Carrier shall advise Zim in writing of any disputed items on Zim’s invoices within 30 days of the receipt of such invoice(s). Zim will undertake to reconcile such disputed items within 30 days of receipt of Motor Carrier’s notice and will either provide verification of the charges as invoiced or will issue a credit to the Motor Carrier’s account for any amount not properly invoiced. Such disputes do not constitute valid grounds for withholding or delaying payments of undisputed charges as required by the Terms of this Agreement. In the event that charges have been verified by Zim and are again rejected and disputed by the Motor Carrier for whatever reasons, Zim and Motor Carrier reserve their rights and remedies under the law regarding payment of such charges.”
By September 2006, PCC was delinquent in paying several of Zim’s invoices for per diem charges. PCC disputed some of the invoices on the ground it had no record of moving the equipment listed in the invoices. Although Zim provided documentation supporting its invoices, PCC contended the documents were insufficient to support the invoices. When PCC continued to refuse to pay the invoices, Zim precluded or “shut out” PCC from hauling Zim-owned equipment from the Port of Oakland. Through negotiations and the payment of some, but not all, of the delinquent invoices, Zim lifted its shut out of PCC in early November 2006.
On June 13, 2007, PCC filed a complaint against Zim seeking recovery of compensatory and punitive damages, interest, costs, and reasonable attorney fees, for, among other things, breach of UIIA. The complaint was premised on Zim’s alleged failure to provide sufficient documentation verifying the delinquent invoices and Zim’s shut out of PCC while the dispute resolution process was ongoing.
Zim filed a cross-complaint seeking to recover monetary damages, interest, costs, and reasonable attorney fees, for breach of UIIA, an account stated, and an open book account. The cross-complaint was premised on PCC’s failure to pay all delinquent invoices even though Zim had verified the per diem charges and lifted its shut out of PCC from the Port of Oakland.
At a bench trial, the parties presented both testimonial and documentary evidence relating to their pleadings. At issue here is that portion of the trial concerning Zim’s request for PCC’s payment of Invoice No. DA 149450 for the use of container ZCSU2323276. On May 25, 2006, PCC picked up the Zim-owned container from Marine Terminals at the Port of Oakland. On June 1, 2006, PCC sent a “Steamship/Outside Carrier Trucker Equipment Interchange Release” preprinted form to AB Trucking. By signing the release, AB Trucking agreed as follows: “We, the undersigned, accept full and complete responsibility for the payments of any and all per diem charges which may accrue against the equipment listed above, from the date of pick up from the original terminal by PCC, Inc. or it[s] agents. We, the undersigned, agree to pay all billing costs resulting from the per diem charges and any other related charges accrued against the equipment listed above. We, the undersigned, after interchange out from PCC, Inc. accept full and complete responsibility for any liability and damage to this equipment while it is in our possession. We, the undersigned, to provide PCC, Inc. a copy of the in-gate interchange equipment back to steamship terminal via fax immediately upon receipt.” AB Trucking’s employee signed the release form and faxed it back to PCC.
PCC then faxed the release form to Zim. A portion of the PCC release form read: “PCC Inc. requests your permission to effect an equipment interchange to AB Trucking for the above mentioned container. PCC, Inc. will not be held responsible for any per diem charges occurring from originating pier once you have a signed trucker responsibility form, and will not be responsible for any equipment damage or liability occurring after this container and chassis are interchanged.” This portion of PCC’s release form was signed by Zim’s “AVP of Operations,” Michael Cress, and was dated June 1, 2006. After Cress signed the release form, Zim faxed the release form back to PCC. Rosa Deanda, PCC’s business unit manager, testified that PCC did not send Zim a form titled, “trucker responsibility form.” She further conceded that while PCC and its employee’s name “Sharon” appeared on the release form, there was no PCC signature on the release form. After receipt of Zim’s authorization, on June 2, 2006, PCC allowed AB Trucking to take possession of the container for delivery to its customer. On June 9, 2006, AB Trucking picked up the empty container from its customer, and returned the container to Marine Terminals on June 16, 2006.
On July 3, 2006, within 60 days of the return of the container, Zim sent an invoice to AB Trucking seeking payment for per diem charges for the retention of the container for 15 days beyond the agreed return date in the aggregate sum of $1,395. The invoice indicated the container had been taken out on May 25, 2006 and returned on June 16, 2006. AB Trucking’s owner testified that he did not pay the invoice because the firm was “incorrectly billed” for the charges. The invoice reflected that AB Trucking had taken possession of the container on May 25, 2006, while AB Trucking actually took possession on June 2, 2006. AB Trucking sent a written dispute to Zim, but Zim never responded to the dispute.
When AB Trucking failed to pay the invoice, Zim sent Invoice No. DA 149450 for the same per diem charges to PCC on October 18, 2006. PCC did not pay the invoice. In a letter dated November 2, 2006, PCC complained that Invoice No. DA 149450 had been sent during the parties’ dispute about other delinquent invoices. Additionally, the new invoice sought payment for per diem charges from May 25th through June 16th, even though the equipment had been “interchanged to” AB Trucking on June 1, 2006, with Zim’s authorization. PCC also presented evidence that it had first received the invoice by facsimile on October 26, 2006, which was more than 60 days after the container had been returned by AB Trucking.
The trial court issued an amended statement of decision, granting judgment in favor of Zim on PCC’s complaint, and granting judgment in favor of Zim on its cross-complaint in the sum of $1,395, plus costs. As to PCC’s complaint, the trial court found, in pertinent part, that Zim had not breached UIIA. As to Zim’s cross-complaint, the trial court found that PCC was responsible for Invoice No. DA 149450 in the sum of $1,395.
Addressing PCC’s complaint, the trial court stated, in pertinent part: “The Zim Addendum required PCC to dispute items on Zim’s invoices within 30 days of PCC’s receipt of said invoice(s). If PCC did not dispute items, PCC was obligated to pay all items invoiced by Zim within 30 days of receipt of said invoice(s). The Court finds that PCC did not dispute or pay the following [nine] invoices within 30 days of receipt…. Since these nine invoices were the basis for the shut out on October 4, 2006, Zim’s shut out of PCC was authorized under the UIIA. [¶] On October 10, 2006, PCC paid seven of the nine foregoing invoices excluding invoice nos. DA 146256 and DA 146257. PCC remained shut out until November 3, 2006, because it continued to refuse payment on [invoice nos.] DA 146256 and DA 146257. These invoices had not been paid or disputed within 30 days of receipt, so Zim did not breach the UIIA.” The trial court also found that “PCC was using the dispute resolution process contained in the UIIA and the Zim Addendum regarding invoice nos. DA 146256 and DA 146257 at the time of the shutout. The Court notes that even though PCC disputed those invoices after the expiration of the 30–day time period specified in the Zim Addendum[,] Zim nevertheless undertook to reconcile them. [¶] However, seven of the nine invoices used as the basis for the shutout were not disputed at the time of the shutout and were subsequently paid by PCC…. Since PCC withheld and delayed payment on undisputed invoices, the shutout was authorized by the UIIA…. [¶] … Zim’s invoices used as the basis for PCC’s shutout were not disputed by PCC and were more than 30 days delinquent at the time of the shutout. Therefore, Zim could shut PCC out.”
As to Zim’s cross-complaint, the trial court stated, in pertinent part: “After weighing all the evidence, the Court finds that PCC was responsible for container ZCSU2323276 (Invoice No. DA 149450) until its Trucker Equipment Interchange Release had been signed by both parties…. The Trucker Equipment Interchange Release was never signed by PCC. Further, the Trucker Equipment Interchange Release was not effective until PCC provided Zim with a ‘ trucker responsibility form.’ No such document was ever provided to Zim. PCC is therefore responsible for the charges reflected on Invoice No. DA 149450 for container ZCSU2323276. The Court’s finding is not altered by the language in UIIA, Section E(6)(c) [], which does not provide a sanction for non-compliance.”
UIIA, section E, subsection (6)(c), provided: “Provider shall invoice Motor Carrier for use and/or storage charges within sixty (60) days from the date on which Equipment was returned to Provider by Motor Carrier.”
After entry of judgment in favor of Zim on both the complaint and cross-complaint, PCC filed a timely notice of appeal.
DISCUSSION
On appeal PCC challenges only that portion of the judgment on Zim’s cross-complaint awarding Zim the sum of $1,395 as payment for Invoice No. DA 149450. In seeking to set aside that portion of the judgment, PCC makes no arguments addressing the trial court’s findings that PCC remained primarily responsible for the per diem charges reflected in Invoice No. DA 149450, and that PCC’s release form was not effective to relieve PCC of its liability for payment of the accrued per diem charges reflected in the invoice. PCC attacks only the trial court’s finding that Zim’s right to payment of Invoice No. DA 149450 was not “effected by” its noncompliance with the contractual obligation to send an invoice within 60 days of the return of the equipment (invoice provision) because the invoice provision did not include a sanction for noncompliance. As we now discuss, we conclude PCC’s various arguments challenging the trial court’s ruling do not require reversal.
PCC initially contends the trial court erred by failing to determine whether Maryland or California law applied to resolve the parties’ dispute. The UIIA governing the parties’ 2006 dispute provided: “The laws of the state of Maryland, the location at the principal place of business of the Intermodal Association of North America shall govern the validity, construction, enforcement and interpretation of this Agreement without regard to conflicts of law principles.” In its posttrial brief, PCC raised the issue as to which state law (Maryland or California) should be applied to the parties’ dispute. The trial court did not explicitly rule on the matter apparently because PCC took the position at trial that the law on contract interpretation is the same in each state. Although PCC argues California law should be used to resolve this appeal, we agree with the parties that a conflict of law analysis is not necessary as the applicable law is the same in California and Maryland.
Despite UIIA’s provision regarding the law governing contract interpretation, this litigation was properly pursued in California, pursuant to another UIIA provision that allows an action to enforce or interpret the agreement regarding the monetary obligations between the parties by reason of equipment usage charges to be brought “at the situs of the transaction giving rise to the requested damages.”
In the absence of extrinsic evidence, the interpretation of a contract is a question of law for this court under de novo review. ( Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333; Sy–Lene of Washington, Inc. v. Starwood Urban Retail II, LLC (2003) 376 Md. 157, 163 [829 A.2d 540, 544] [under Maryland law, “[t]he interpretation of a contract … is a question of law, subject to de novo review”].) According to PCC, the trial court “should have interpreted the UIIA provision according to a reasonable interpretation, based on the objective intent of the parties evidenced by the words of the contract itself, not based on the absence of words that otherwise would expressly provide for a ‘sanction’ for Zim’s failure to comply with the [invoice provision].” PCC also argues that “the contractual obligation imposed on Zim by the UIIA, to invoice PCC within 60 days after return of equipment, should not disappear merely because the court noted that the text of the section imposing that obligation lacks reference to a ‘penalty.’ “ Based on our independent review, we conclude the trial court correctly ruled that UIIA’s invoice provision had no bearing on the parties’ rights and obligations regarding the payment of Invoice No. DA 149450.
Our analysis is based on UIIA, effective June 2, 2005, and Zim Addendum, effective February 1, 2005, and revised February 6, 2006, which documents were admitted into evidence as Defendant’s Exhibit A. At the trial held in 2009, PCC did not dispute that its relationship with Zim was governed by Defendant’s Exhibit A, and presumably proffered no other contractual documents. However, in its opening brief, PCC informs us that in 2008 UIIA’s invoice provision had been modified to read: “If motor carrier is not invoiced within the established time frame, the right of the Provider to recover any associated charges will be lost.” PCC concedes that neither party asked the trial court to consider whether the 2008 amendment should be applied retroactively to the parties’ dispute regarding an invoice that was sent in October 2006. Because PCC presents no substantive appellate argument on the matter, we do not further address and express no opinion regarding any retroactive effect of the amendment. Nor do we express any opinion on the effect of the amendment on any current disputes between the parties.
Generally, in interpreting contracts, the court’s “paramount consideration is the intention of the contracting parties,” which is to be “ascertained from the words used, after taking into consideration the entire contract and the circumstances under which it was made. [Citations.] [¶] … [¶] … [I]t is not a court’s prerogative to alter it, to rewrite its clear terms, or to make a new contract for the parties. [Citations.] Courts will not add a term to a contract about which the agreement is silent. [Citations.]” ( Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9; see Fultz v. Shaffer (1996) 111 Md.App. 278, 298 [681 A.2d 568, 578] [Maryland law in accord].)
Pertinent to our analysis is consideration of the well-established law regarding forfeitures applicable in both California and Maryland. ( McNeece v. Wood (1928) 204 Cal. 280, 283–248; Hartford Fire Ins. Co. v. Himelfarb (1999) 355 Md. 671, 682 [736 A.2d 295, 301]; Harris v. Wye Tree Experts, Inc. (1975) 273 Md. 454, 458 [330 A.2d 189, 191] (Harris ).) As explained by our Supreme Court in McNeece v. Wood, supra: “ ‘A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created’ ( [Civ.Code, § 1442] ). Examination of the cases in this state shows that our courts have not hesitated to give this rule of interpretation full application. ‘Forfeitures, as such, are not favored by the courts, and are never enforced if they are couched in ambiguous terms’ [citation]. ‘A forfeiture can be enforced only when there is such a breach shown as it was the clear and manifest intention of the parties to provide for’ [citation]. ‘The burden is upon the party claiming the forfeiture to show that such was the unmistakable intention of the instrument. If the agreement can be reasonably interpreted so as to avoid the forfeiture, it is our duty to do so’ [citation].” ( 204 Cal. 280 at pp. 283–284; Harris, supra, 330 A.2d at p. 191] [under Maryland law “reading [of a contract] which produces a forfeiture will not be favored”].) Additionally, Civil Code section 1442 applies not only to the construction of a contract condition involving a forfeiture, but also to “a determination as to whether a [contract] creates such a condition in the first place,” which latter issue is before us on this appeal. ( Alamo School Dist. v. Jones (1960) 182 Cal.App.2d 180, 187.)
Contrary to PCC’s contention, UIIA and Zim Addendum are classic bilateral contracts, containing multiple promises by each party for “the interchange and use of [e]quipment in intermodal interchange service.” (See Davis v. Jacoby (1934) 1 Cal.2d 370, 378.) The essence of the parties’ agreement was PCC’s possession and use of Zim-owned equipment for “some period of uncompensated use,” and PCC’s obligation to pay per diem charges if the equipment was retained beyond the agreed return date. Our examination of the contracts (UIIA and Zim Addendum) does not disclose any intention of the parties that a breach of the time element in the invoice provision would constitute a forfeiture of Zim’s right to payment. The parties bargained for PCC’s payment of per diem charges for retention of the equipment beyond the agreed return date. PCC’s payment of per diem charges was not predicated on the issuance of an invoice within 60 days of the return of the equipment.
The trial court’s ruling that the invoice provision had no bearing on Zim’s right to collect payment of Invoice No. DA 149450 from PCC because the contract clause did not expressly include a sanction for noncompliance is supported by case law. Contrary to PCC’s argument, in considering whether Zim’s right to collect payment of the invoice was forfeited, the trial court followed well-settled case law requiring consideration of the fact that the contractual invoice provision does not include either a “penalty” ( Nelson v. Schoettgen (1934) 1 Cal.App.2d 418, 423) or “express language” ( Conolley v. Power (1924) 70 Cal.App. 70, 75) providing for forfeiture in the event of a late invoice. The trial court “correctly viewed” the element of time in the invoice provision “as a means to insure prompt” demand for payment of per diem charges “rather than as an indication that failure to perform at the time stipulated would result in an immediate termination and forfeiture” of Zim’s right to payment. ( Henck v. Lake Hemet Water Co. (1937) 9 Cal.2d 136, 144.)
Thus, by refusing to impose the severe penalty of declaring Zim’s right to payment forfeited for noncompliance with the time element of the invoice provision, the trial court correctly performed its duty to construe the contract “so as to avoid a forfeiture.” ( Nelson v. Schoettgen, supra, 1 Cal.App.2d at p. 423.) “This construction … is in harmony with the settled policy of the law not to enforce a forfeiture in the absence of a clear statement to that effect.” ( Universal Sales Corp. v. California Press Mfg. Co. (1942) 20 Cal.2d 751, 771.)
We note that PCC mentions in the fact portion of its opening brief that in response to the cross-complaint, it alleged that Zim waived its right to payment of per diem charges by failing to send an invoice to PCC within the time limits prescribed in UIIA. However, “ ‘ “[w]aiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver.” ‘ [Citations].” ( DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60; see Food Fair Stores, Inc. v. Blumberg (1964) 234 Md. 521, 531–532 [200 A.2d 166, 172] [party’s failure to formally demand rent payment in accordance with parties’ agreement was held not to constitute waiver of rent].) PCC cites no authority, and we have found none, that would support an argument that Zim’s act of sending an untimely invoice, standing alone, constitutes a waiver of its right to payment of the invoice as a matter of law. Because PCC presents no other argument regarding its waiver defense, we do not further address the issue.
Additionally, we need not consider the parties’ arguments addressing whether Zim proffered a valid excuse for its noncompliance with the time requirement in UIIA’s invoice provision because we are not required to determine whether Zim is entitled to “relief from express and unmistakable [contractual] language compelling a forfeiture.” ( Ballard v. MacCallum (1940) 15 Cal.2d 439, 444.) “The problem here is much simpler. We have two possible constructions, one of which leads to a forfeiture and the other avoids it. In such a case the policy and rule are settled, … in the interpretation of ordinary contracts … the construction which avoids forfeiture must be made if it is at all possible. [Citations.]” (Ibid.) Also, we agree with PCC that an analysis of the law regarding “time is of the essence” contractual provisions is not necessary to resolve this appeal.
As a premise for the argument that judgment in favor of Zim on its cross-complaint was unfair, PCC asks us to consider the trial court’s adverse findings against it on the complaint. According to PCC, the trial court improperly excused Zim’s breach of contract, but chose to sanction PCC for its breach of contract by upholding Zim’s right to shut out PCC because PCC failed to pay or dispute per diem charges within 30 days of receipt of the invoice. However, contrary to PCC’s contention, the trial court was not required to treat each party’s breach in the same manner. (See Fresno Canal & Irrigation Co. v. Perrin (1915) 170 Cal. 411, 416 [“Where the covenants of the respective parties are to be performed at different times they are held to be independent and the breach by one party of his covenant does not excuse the performance by the other of his covenant or relieve him of liability for damages for a breach thereof.”].) Because PCC does not present any other substantive arguments expressly challenging the trial court’s ruling in favor of Zim on PCC’s complaint, we do not consider whether the trial court correctly ruled in favor of Zim on PCC’s complaint. We hold only that PCC’s argument based on the trial court’s ruling in favor of Zim on the complaint does not require reversal of the judgment in favor of Zim on the cross-complaint.
We see no significance to PCC’s reliance on the legal maxim that “the first party who breaches a time requirement in a contract is barred from subsequently complaining of the other party’s breach of a time requirement in their contract.” Zim sought only to recover the amount of the accrued per diem charges reflected in Invoice No. DA 149450. Zim did not seek additional damages because PCC did not timely pay or dispute the invoice.
Nor do we see any merit to PCC’s suggestion, in effect, that the trial court should have treated this case as one concerning mutual defaults for which neither party may recover, as the court held in Westinghouse Electric Corp. v. Garrett Corp. (4th Cir.1979) 601 F.2d 155, 158. As we have discussed, the main purpose of the parties’ agreement was the interchange of equipment for which PCC was to pay per diem charges for the retention of equipment beyond the agreed return date. The time within which Zim was to send the invoice for per diem charges was incidental to the main purpose of the agreement. The trial court correctly ruled that Zim’s failure to submit a timely invoice did not constitute a breach that would trigger a forfeiture and thereby relieve PCC of its obligation to pay for the accrued per diem charges. (See also Karz v. Department of Professional & Vocational Standards (1936) 11 Cal.App.2d 554, 557 [“a person is not entitled to rescind or abandon a contract for an alleged breach of that contract when the breach does not go to the root of the consideration”]; Sachs v. Regal Sav. Bank (1998) 119 Md.App. 276, 283 [705 A.2d 1, 4] [under Maryland law “a breach of contract will be deemed material if it affects the purpose of the contract in an important or vital way”], aff’d sum nom. Regal Sav. Bank v. Sachs (1999) 352 Md. 356, 363 [722 A.2d 377, 380].) PCC’s reliance on Penn Oil Co. v. Triangle Petroleum & Gasoline Co. (1920) 136 Md. 559 [111 A. 482] (Penn Oil ), and Barker v. Borzone (1878) 48 Md. 474 (Barker ), is misplaced. Those cases concern a party’s right to terminate or rescind a contract based on an allegation that the element of time “ ‘goes to the root of the contract’ “ ( Barker, supra, 48 Md. at p. 489) or the “essence of the contract” ( Penn Oil, supra, 111 A. at p. 488).
Finally, PCC argues the judgment in favor of Zim on its cross-complaint should be reversed because Zim presented no evidence supporting its causes of action for relief based on an “account stated,” or an “open book account.” PCC’s argument is based on the premise that “Zim’s cross-complaint is based solely on an alleged ‘open book account,’ and an alleged ‘account stated,’ [and] not on an alleged failure to pay an invoice.” We conclude PCC’s argument is unavailing. “In defining the relief that may be awarded to a plaintiff where an answer in the action has been filed, [Code of Civil Procedure, section] 580 provides that the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issues. [Citation.]” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 32, p. 96.) “[T]he name of the action is of no consequence provided [a] plaintiff has stated sufficient facts to show a right of recovery.” ( Bartlett v. Federal Outfitting Co. (1933) 133 Cal.App. 747, 750; see also Sears v. Rule (1945) 27 Cal.2d 131, 148–149 [court rejected appellant’s argument that money judgment against him was improper because certain sums were included based on issues not raised by the pleadings].) Zim’s cross-complaint’s cause of action for breach of contract included allegations encompassing Zim’s claim for payment of Invoice No. DA 149450. Because the judgment may be sustained based on the cross-complaint’s breach of contract cause of action, we do not further address the parties’ arguments regarding the validity of claims for relief based on an account stated or an open book account.
Specifically, under the “First Claim for Relief (Breach of Contract),” Zim incorporated its allegations regarding the circumstances of the parties’ disputes regarding all outstanding invoices, including the one at issue on appeal. It was then alleged, in pertinent part, that “PCC has refused to and continues to refuse to pay its outstanding per diem charges, and has refused and continues to refuse to remedy its breach;” and “[a]s a proximate result of PCC’s breach, as explained above, Zim has been damaged.”
Because PCC has failed to demonstrate prejudicial error, or that a different result would be probable were the matter to be remanded to the trial court (Code Civ. Proc. § 475), we see no reason to set aside that portion of the judgment in favor of Zim on its cross-complaint.
In light of our determination, we do not address Zim’s argument that it would remain the prevailing party even if we reversed the judgment on its cross-complaint or remanded the matter to the trial court for further consideration.
DISPOSITION
The judgment filed on February 11, 2010 is affirmed. Defendant and cross-complainant Zim American Integrated Shipping Services Company, Inc., shall recover costs on appeal.
We concur: POLLAK and SIGGINS, JJ.
