Howard Contracting Inc. v. G.A. MacDonald Construction Co., Inc

In Howard Contracting Inc. v. G.A. MacDonald Construction Co., Inc. (1998) 71 Cal.App.4th 38, the general contractor did not appeal the trial court's decision disallowing the pass-through claim; rather, the aggrieved subcontractor appealed that ruling. Division Seven of this District Court of Appeal concluded that the subcontractor, although not initially a party to the action, became a party of record by moving to vacate the judgment under Code of Civil Procedure section 663. Thus, as an aggrieved party, the contractor had standing to appeal the trial court's ruling. The court continued: "Further, any entity that has an interest in the subject matter of a judgment and whose interest is adversely affected by the judgment is an aggrieved party and is entitled to be heard on appeal. However, the aggrieved party's interest must be immediate, pecuniary and substantial, and not merely a nominal or remote consequence of the judgment. ( Slaughter v. Edwards (1970) 11 Cal. App. 3d 285, 291, 90 Cal. Rptr. 144.)" ( Howard Contracting, Inc. v. G.A. MacDonald Construction Co., supra, 71 Cal.App.4th at p. 58.) Howard Contracting summarized the status of pass-through claims, as follows: "As a matter of law, a general contractor can present a subcontractor's claim on a pass-through basis. ( Maurice L. Bein, Inc. v. Housing Authority (1958) 157 Cal. App. 2d 670, 321 P.2d 753.) When a public agency breaches a construction contract with a contractor, damage often ensues to a subcontractor. In such a situation, the subcontractor may not have legal standing to assert a claim directly against the public agency due to a lack of privity of contract, but may assert a claim against the general contractor. In such a case, a general contractor is permitted to present a pass-through claim on behalf of the subcontractor against the public agency. (D. A. Parrish & Sons v. County Sanitation Dist. (1959) 174 Cal. App. 2d 406, 344 P.2d 883.) As a subcontractor, the appellant had no standing to sue the City directly, particularly on a breach of contract theory, because the subcontractor and the City were not in privity of contract.The settlement and litigation agreement was predicated on the availability of the pass-through claim process. If the process is not available to the parties, the general contractor has potential exposure to the subcontractor through an action for rescission of the agreement based on a failure of consideration. From a public policy standpoint, the initiation of separate litigation against a general contractor should not be compelled merely to enable a subcontractor to obtain standing when the general contractor previously agreed to pursue the subcontractor's damages claim against the public agency on a pass-through basis. To hold otherwise would be to insist on needless additional and duplicative litigation." ( Howard Contracting, Inc. v. G.A. MacDonald Construction Co., supra, 71 Cal.App.4th at p. 60.)