Judge: David A. Hoffer, Case: 30-2017-00938142, Date: 2023-05-22 Tentative Ruling

Defendant/Cross-Complainant, Bin Hoang’s (“Hoang”) motion for an order to disburse the $60,000 in interpleader funds to him pursuant to this Court’s judgment entered August 15, 2022 (ROA 620) is GRANTED.  (C.C.P. §§ 917.2, 917.1(b); see also, Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476.)

Here, there is no indication that Plaintiff/Cross-Defendants, Dibatech, Inc. (“Dibatech”) and Alireza Rezazadeh Dibaei dba Elite Builders and Remodeling (“Dibaei”) sought an order fixing the amount of an undertaking, or that Dibatech and Dibaei have actually posted any undertaking with regard to their appeal.  Therefore, Hoang is correct that the appeal did not stay enforcement of the judgment and the interpleaded funds should be disbursed to him pursuant to the Court’s judgment.

Dibatech and Dibaei oppose the motion on the ground that the $60,000 in interpleader funds is Dibatech’s contractor’s bond and the Court’s judgment states that Hoang shall take nothing from Dibatech and the insurance companies.  In their Opposition, Dibatech and Dibaei cite to In re Dunbar (9th Cir. 1999) 235 B.R. 465 and Boliver v. Surety Co. (1977) 72 Cal.App.3d Supp.22.  As an initial matter, these cases are not binding authority.  (See Godfrey v. Oakland Port Services Corp. (2014) 230 Cal.App.4th 1267, 1277 fn 10; Velasquez v. Superior Court (2014) 227 Cal.App.4th 1471, 1477 fn 7.)

In addition, neither of the cases support Dibatech and Dibaei’s argument.  In In re Dunbar, the court held, among other things, that the automatic bankruptcy stay did not enjoin homeowners’ action against surety company to collect from contractor’s bond, which was not estate property.  In Boliver v. Surety Co., the court held that the surety's liability on the contractor's bond incorporated the attorney fees obligation of the construction contract, and thus defendant surety was liable for attorney fees awarded to plaintiff in her action against the contractor even though the surety contract between the contractor and the surety did not provide for attorney fees.  Neither of these cases involved circumstances similar to the present case.  Dibatech and Dibaei fail to explain how these cases support their position, especially in light of the directive in the Court’s judgment and the above authority cited by the Court.

Based on the foregoing, the Court grants the motion.

Counsel for Hoang is to prepare a proposed order and give notice to all parties.