Judge: Christopher K. Lui, Case: 20STCV19835, Date: 2024-03-15 Tentative Ruling

Case Number: 20STCV19835    Hearing Date: March 15, 2024    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that Defendants failed to install an HVAC and plumbing system in accordance with the agreement, and perform substandard work.

            On February 15, 2024, following a jury trial, the jury rendered a verdict in favor of Plaintiff on certain causes of action.

            Defendant American Contractors Indemnity Company moves for judgment against Plaintiff.

            Plaintiff makes a cross-motion for judgment against Defendant American Contractors Indemnity Company.

TENTATIVE RULING

Defendant American Contractors Indemnity Company’s motion for judgment against Plaintiff is DENIED.

            Plaintiff Mei Xi Zhang’s cross-motion for judgment against Defendant American Contractors Indemnity Company is DENIED.

ANALYSIS

Motion For Judgment/Cross-Motion For Judgment

Defendant American Contractors Indemnity Company moves for judgment against Plaintiff pursuant to Civ. Proc. Code, § 630(f), which provides: 

(f) When the jury for any reason has been discharged without having rendered a verdict, the court on its own motion or upon motion of a party, notice of which was given within 10 days after discharge of the jury, may order judgment to be entered in favor of a party whenever a motion for directed verdict for that party should have been granted had a previous motion been made. Except as otherwise provided in Section 12a, the power of the court to act under the provisions of this section shall expire 30 days after the day upon which the jury was discharged, and if judgment has not been ordered within that time the effect shall be the denial of any motion for judgment without further order of the court.

     (Civ. Proc. Code, § 630(f).) 

Defendant argues as follows:

1. Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY is named as a Defendant in the Ninth Cause of Action[1] in Plaintiff’s operative First Amended Complaint on file herein;

2. Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY filed its Answer to Plaintiff’s First Amended Complaint on August 26, 2020, generally denying all material allegations and raising various affirmative defenses;

3. This action proceeded to trial by jury on February 6, 2024;

4. Plaintiff rested her case without mentioning Defendant American Contractors Indemnity Company and without offering any specific evidence relating to said Defendant;

5. The evidence at trial viewed in a light most favorable to Plaintiff is insufficient as a matter of law to support the Ninth Cause of Action for Recovery on Contractor’s Bond against Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY;

6. The jury was discharged on February 15, 2024 without rendering a verdict on any causes action against Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY;

7. Defendant AMERICAN CONTRACTORS INDEMNITY COMPANY is entitled to a judgment in its favor and against Plaintiff, as a matter of law.

            Plaintiff makes an amended cross-motion for judgment against Defendant American Contractors Indemnity Company pursuant to Civ. Proc. Code, § 630(f) and Civ. Proc. Code, § 996.440(a), which provides:

(a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action.

(b) The motion shall not be made until after entry of the final judgment in the action or proceeding in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates.

(c) Notice of motion shall be served on the principal and sureties at least 30 days before the time set for hearing of the motion. The notice shall state the amount of the claim and shall be supported by affidavits setting forth the facts on which the claim is based. The notice and affidavits shall be served in accordance with any procedure authorized by Chapter 5 (commencing with Section 1010).

(d) Judgment shall be entered against the principal and sureties in accordance with the motion unless the principal or sureties serve and file affidavits in opposition to the motion showing such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. If such a showing is made, the issues to be tried shall be specified by the court. Trial shall be by the court and shall be set for the earliest date convenient to the court, allowing sufficient time for such discovery proceedings as may be requested.

(e) The principal and sureties shall not obtain a stay of the proceedings pending determination of any conflicting claims among beneficiaries.

     (Civ. Proc. Code, § 996.440 [bold emphasis added].)

            Plaintiff’s motion pursuant to Civ. Proc. Code, § 996.440 is premature because there has been no final judgment entered in this action with the appeals period having been exhausted. As such, Plaintiff’s motion for judgment is DENIED.

            By that same token, however, it is clear from the language of Civ. Proc. Code, § 996.440 that judgment against the bond and sureties is to be determined by the judge by way of a noticed motion on affidavits or by court trial if there are triable issues. As noted, this determination must be made after final judgment entered in this action with the appeals period having been exhausted. As such, Defendant’s motion for judgment is also DENIED.