Judge: H. Jay Ford, III, Case: 23SMCV05253, Date: 2024-11-14 Tentative Ruling

Case Number: 23SMCV05253    Hearing Date: November 14, 2024    Dept: O

 Case Name:  Diaz Plastering, Inc., v. Sarlan Builders, Inc., et al.

SUBJECT:                 MOTION TO DEPOSIT BOND FUNDS PURSUANT TO CCP §§ 386, 386.5, EXONERATION AND DISMISSAL OF WESTERN SURETY, AND FOR ATTORNEYS’ FEES AND COSTS

MOVING PARTY:   Defendant/Cross-Complainant Western Surety Company

RESP. PARTY:         Defendants/Cross-Complainants/Cross-Defendants Stacey Wisnom individually, and as trustee of the Living Trust of Stacey Wisnom and John Baltz

TENTATIVE RULING

            Defendant/Cross-Complainant Western Surety Company Motion to Deposit Bond Funds, Exoneration and dismissal of Western Surety, and for Attorneys’ Fees and Costs is GRANTED. The Court finds that Western Surety Company has incurred reasonable attorneys’ fees and costs in the amount of $13,554.66 (49.7 hrs. @ ~$244.25/hr. + $1,415.66 in costs).

            Western Surety Company is ordered to deposit the remaining balance of the Bond in the sum of $11,445.34 (the $25,000 penal sum of the Bond minus court-ordered attorneys’ fees in the amount of $13,554.66) with the Los Angeles County Superior Court Clerk, West District, within 30 days of the entry of this Order.

            Pursuant to California Code of Civil Procedure Section 386.6, Western Surety Company is awarded $13,554.66, which reflects reasonable attorneys’ fees and costs incurred in bringing this action in interpleader. This amount is to be deducted from the $25,000 penal sum of the Bond.

            Upon deposit of the Bond funds with the Los Angeles County Superior Court Clerk, the following shall be effective:

(a) The Bond is exonerated and Western Surety Company is fully and forever released, discharged and acquitted of and from any and all liability of any kind or nature whatsoever, whether known or unknown, arising from the Bond, including any amounts due and owing or claimed to be due and owing from the Bond;

(b) Pursuant to CCP § 386(f), the Court finds it appropriate to restrain and prohibit the prosecution of any further legal action against Western Surety Company regarding said Bond;

(c) The Court will dismiss Western Surety Company as a party from the present action with prejudice; and

(d) The Court will deposit said Bond funds in an interest-bearing account until a final determination is made as to how the Bond funds will be distributed.

REASONING

Pursuant to CCP § 386(b) and (f):

(b) 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.

 . . . .

(f) After any such complaint or cross-complaint in interpleader has been filed, the court in which it is filed may enter its order restraining all parties to the action from instituting or further prosecuting any other proceeding in any court in this state affecting the rights and obligations as between the parties to the interpleader until further order of the court.

(Code Civ. Proc., § 386, subd. (b), (f).)

Pursuant to CCP § 386.5:

Where the only relief sought against one of the defendants is the payment of a stated amount of money alleged to be wrongfully withheld, such defendant may, upon affidavit that he is a mere stakeholder with no interest in the amount or any portion thereof and that conflicting demands have been made upon him for the amount by parties to the action, upon notice to such parties, apply to the court for an order discharging him from liability and dismissing him from the action on his depositing with the clerk of the court the amount in dispute and the court may, in its discretion, make such order.

(Code Civ. Proc., § 386.5.)

Pursuant to CCP § 386.6(a):

A party to an action who follows the procedure set forth in Section 386 or 386.5 may insert in his motion, petition, complaint, or cross complaint a request for allowance of his costs and reasonable attorney fees incurred in such action. In ordering the discharge of such party, the court may, in its discretion, award such party his costs and reasonable attorney fees from the amount in dispute which has been deposited with the court. At the time of final judgment in the action the court may make such further provision for assumption of such costs and attorney fees by one or more of the adverse claimants as may appear proper.

(Code Civ. Proc., § 386.6, subd. (a).)

“An interpleader action is traditionally viewed as two suits: one between the stakeholder and the claimants to determine the stakeholder's right to interplead, and the other among the claimants to determine who shall receive the funds interpleaded.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 612.)

            Defendant/Cross-Complainant Western Surety Company (“Western”) filed a Cross-Complaint for Interpleader on 12-11-23 (See 12-11-23 Cross-Complaint.) Western declares that the Interpleader Defendants BNS Marble & Granite, Inc. (“BNS Sarble”), Diaz Plastering, Inc. (“Diaz”), Sol Tile & Marble, Inc. (“Sol Tile”), Stacey Wisnom Trustee Of The Living Trust Of Stacey Wisnom And John Baltz (“Wisnom”), and Sandy Boffill (“Boffill”) (collectively “Interpleader Defendants”) have made claims to the Bond issues by Western in excess of the maximum bond amount of $25,000. (Willemain Decl., ¶ 5; Ordonez Decl., ¶ 3; Ex. 2.)

            Western declares:

WESTERN cannot determine which claim or claims take priority, and is exposed to liability in excess of the penal sum of the Bond. WESTERN is a mere stakeholder with no interest in the amount or any portion of the Bond. In addition to the claims asserted by the Interpleader Defendants, WESTERN fears that it may face additional claims or suits against its Bond. Having no other alternative, WESTERN filed the subject Cross-Complaint for Interpleader solely based on its role as surety for SARLAN BUILDERS INC. Through the interpleader action and to prevent WESTERN from continuing to incur further unnecessary attorneys’ fees and costs, WESTERN seeks an order (1) to deposit the subject Bond funds to allow the Court to determine its proper distribution; (2) restraining and prohibiting the prosecution of any further legal action against said Bond; and (3) exonerating the Bond.

(Willemain Decl., ¶ 6.)

            Western argues that all parties to the interpleader action, and any future claimants, should be restrained from either instituting or further prosecuting any other proceeding against Western arising out of claims against the Bond pursuant to CCP § 386(f). (See Motion, p. 7.)

            Western requests $1415.66 in costs comprising of $716.61 in court filing fees and $699.05 in service fees which includes the “first appearance fee, amendments to cross complaint, notice and acknowledgment of receipts, requests for dismissals, proof of service, case management statements, and proof of service.” (Willemain Decl., ¶ 7; Ordonez Decl. ¶ 4.) Wisnom does not dispute these costs in her opposition.

            Western requests a total of $12,139 (49.7 hrs @ ~$244.25/hr.) in attorneys’ fees connected with the Interpleader action and include billing invoices attached to the motion. (Willemain Decl., ¶ 8; Ordonez Decl. ¶ 5; Ex. 3, “Billing Invoices”.) Jennifer Ordonez declares her hourly rate is $245/hr. (Ibid.) The approximate hourly rate for a total of $12,139.00 comprising of 49.7 hours of work is roughly $244.25, a slightly lower rate than Ordonez’s declared hourly rate. Thus, Western requests a total of $13,544.66 in attorneys’ fees and costs to be deducted from the $25,000 bond. (Willemain Decl., ¶ 9.)\

            Wisnom argues then requested fees are “grossly excessive” and “eviscerates nearly half of the proceeds of the bond intended to indemnify and cover losses sustained by victims of the bond principle.” (Oppo., pp. 5–6.) Wisnom, however, does not point to any specific instance within Western’s detailed billing invoices that are excessive, or unreasonable. The opposing party must identify the particular charges it considers objectionable. “[I]n challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 18.; see also,

 (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44. )

            Western argues that when preparing an Interpleader  “time must be spent determining the identity of the claimants, the location of the defendants for purposes of determining the appropriate venue, and obtaining the necessary documents for filing,” plus when any new claims are filed they “must be reviewed, added to the action, and the parties served.” (Reply, pp. 2–3.) Additionally, it appears from the billing invoices that Western billed a total of $12,825, making the requested total of $12,139 in attorneys’ a slight discount from the actual fees incurred. (See Motion, Ex. 3.) Additionally, Western has supported their requested fees and costs by two declarations and attached invoices. Without Wisnom pointing to specific entries of the invoices for overbilling, double billing, excessive billing, etc. the Court finds the time pent and hourly rates charged by counsel for Western is reasonable.

            Thus, Western’s Motion to Deposit Bond Funds, Exoneration and dismissal of Western Surety, and for Attorneys’ Fees and Costs is GRANTED.