Judge: Elaine W. Mandel, Case: 24SMCV03872, Date: 2025-05-20 Tentative Ruling

Case Number: 24SMCV03872    Hearing Date: May 20, 2025    Dept: P

Tentative Ruling

Lebovic v. Affordable Building Solutions, Case no. 24SMCV03872

Hearing date May 20, 2025

Plaintiff Leboivc’s Motions to Compel Discovery

Defendant/Cross-Complainant ACIC’s Motion for Order of Discharge

Plaintiff Lebovic sues defendants Affordable Building Solutions, Inc. (“ABS”), Somoza, Rhynes, Hudson Insurance and American Contractors Indemnity Company (“ACIC”) for breach of contract and disgorgement. Plaintiff paid ABS $321,852.09 to complete work on his home and alleges ABS failed to complete the work, failed to pay subcontractors and caused plaintiff to incur additional costs fixing shoddy work.

Plaintiff moves to compel discovery responses from ABS, Somoza and Rhynes to form interrogatories, set one, request for production of documents, set one and requests for admissions, set one. Plaintiff requests $1,710 against responding defendants and their counsel, Duran. Plaintiff moves to compel responses from ABS, Somoza and Rhynes to special interrogatories, set one. Plaintiff requests an additional $1,160 in sanctions against defendants and counsel Duran. Plaintiff files this motion following IDC on 4/24/25 at which defendants failed to appear. See Min. Order 4/24/25. The motion is unopposed.

Defendant/cross-complainant ACIC moves for an order that: (1) ACIC be discharged from all liability regarding the rights and obligations of the parties action arising out of the issuance by ACIC of a Contractor’s License Bond, bond no. 100510269 to which ABS and Lebovic have made adverse and conflicting claims; (2) ABS and Lebovic and counsel be restrained from instituting or further prosecuting any other proceeding in any court in California for recovery against the bond against ACIC; (3) ACIC be awarded fees and costs in the amount of $2,000.00 from the penal sum of the bond; and (4) ACIC be dismissed. The motion is unopposed.

Plaintiff Lebovic’s Motions to Compel Discovery and for Sanctions

“If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply... (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.” Cal. Code Civ. Proc. §2030.290. If a party to whom requests for admission have been served fails to serve timely responses the propounding party can move for an order to deem admitted. Cal. Code Civ. Proc. §2033.280(b). If a party to whom a demand for documents is served fails to timely respond, the propounding party may move to compel responses. Cal. Code Civ. Proc. §2031.300.

Plaintiff served form interrogatories, set one, request for production of documents, set one and requests for admissions, set one on ABS  12/12/24 and served special interrogatories, set one on ABS 2/14/25; ABS failed to respond to any of the discovery. Decl. Stanton paras. 2-3. An order compelling discovery is proper.

Plaintiff requests sanctions of $1,710 for the 12/12/24 discovery requests and an additional $1,160 for the 2/14/25 discovery. Plaintiff requests sanctions against ABS and counsel, asserting ABS counsel Duran failed to respond to plaintiff’s inquiries. Decl. Stanton para. 2. Duran failed to appear at IDC 4/15/25. Duran’s failure to communicate rendered the motions necessary; joint and several sanctions are appropriate.

Plaintiff requests $550/hour x 3 hours for work on the motions, plus 2 hours for anticipated oppositions and hearing. Decl. Stanton para. 3, 4. No opposition was filed; both motions will be heard concurrently. The court awards 3 hours for drafting the motions, plus 1 hour for hearing, all at the requested $550/hour, plus $120 in costs. The court awards $550/hour x 4 hours plus $120, totaling $2,320. GRANTED; sanctions against defendant and counsel, payable within 30 days.

Defendant/Cross-Complainant ACIC’s Motion for Order of Discharge

An action in interpleader has traditionally been the appropriate method of resolution in instances where multiple claims may give rise to double or multiple liability against the stakeholder. Cal. Code Civ. Proc. §386(b) states: “Any person, firm, corporation, association, or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims.” ACIC offers the declaration of bond claim litigation representative Hayes. At issue is a bond for $17,943.38; an action for interpleader is proper. Decl. Hayes exh. A.

The Contractor’s License Bond provides the limitation of liability of the surety, and the conditions of the bond are set forth in Cal. Bus. & Prof. Code §§7071.5, 7071.6 and 7071.11. Decl. Hayes exh. A. Accordingly, the aggregate liability of a surety on claims shall not exceed the $25,000.00 bond. See Cal. Bus. & Prof. Code §§7071.5, 7071.6 and 7071.11.

ACIC issued a bond as surety 8/19/20. Decl. Hayes exh. A. ACIC made a payment from the bond of $7,056.62 to an unrelated claimant February 2025. Decl. Hayes para. 7. The remaining bond value is $17,943.38. Id. ACIC deposited the remaining value of the bond with the court 1/14/25. Decl. Hayes para. 13. ACIC moves to be dismissed, asserting no other claims are pled against it. The motion is unopposed, and the funds have been deposited with the court. Dismissal is proper.

ACIC requests a statutory allowance for attorney’s fees and costs to implement the remedy of interpleader, preserve the bond penalty and join all claimants in the same forum, in accordance with Cal. Code Civ. Proc. §386.6.

ACIC incurred fees of $4,987.35 plus costs of $325 on the instant motion. Decl. Kim para. 4-5; exh. 1. ACIC seeks a statutory allowance of $2,000, to be deducted from the penal sum of the bond. Decl. Kim para. 11. ACIC was brought into this action by way of being bondholder; no claims are pled against ACIC aside from the bond. ACIC is entitled to recoup a portion of its fees following dismissal. A statutory allowance of $2,000 is reasonable. The motion is not opposed.

ACIC’s motion is GRANTED; $2,000.00 to be deducted from the penal sum of the bond as reasonable attorney’s fees and costs for ACIC and be re-issued to ACIC, care of Lanak & Hanna, P.C.