Judge: Latrice A. G. Byrdsong, Case: 23STLC01432, Date: 2024-05-01 Tentative Ruling
Case Number: 23STLC01432 Hearing Date: May 1, 2024 Dept: 25
Hearing Date: Wednesday, May 1, 2024
Case Name: American
Contractors Indemnity Company vs Kira Dee Wiscomb
Case No.: 23STLC01432
Motion: Motion for Summary Judgment
Moving Party: Plaintiff
American Contractors Indemnity Company
Responding Party: None.
Notice: OK
Tentative Ruling: Plaintiff
American Contractors Indemnity Company’s Motion for
Summary Judgment is GRANTED.
Judgment is granted in favor of Plaintiff and against
Defendant in the amount of $13,630.05 plus interest ($4,126.44), and costs of the suit to be established by
a memorandum of costs.
Plaintiff is ordered to serve and electronically submit a
proposed judgment consistent with this Court’s ruling within 10 days of this
hearing.
BACKGROUND
On March 1,
2023, Plaintiff American Contractors Indemnity Company (“Plaintiff” or “ACIC”) filed a complaint against
Defendant Kira Dee Wiscomb aka Kira Hinesly aka Kira Lambert (“Defendant”) and Does 1 through 75 for breach of
contract.
Plaintiff
asserts a claim for breach of contract. Plaintiff seeks damages against Defendant
in the amount of $13,630.05. Defendant filed an Answer on March 27, 2023. ACIC propounded Special Interrogatories and Request
for Admissions to Defendant on June 6, 2023.
On September
15, 2017, Defendant, executed a Bond Application/Indemnity Agreement
(“Indemnity Agreement”) with Plaintiff ACIC. (Undisputed Material Facts “UMF”
No. 1.) ACIC issued Contractors License Bond No. 100362476 for Buildworx
Corporation as principal, and the State of Washington as obligee (“Bond”). (UMF
No. 2.)
Pursuant to
the Indemnity Agreement, Defendant agreed to, among other things: “2. To
indemnify Surety against all losses, liabilities, costs, damages, attorneys’
and consultants’ fees and expenses the Surety may incur or has incurred due to
the execution and issuance of the bond on, before or after this date including
any modifications, renewals or extensions of the bond or the enforcement of the
terms of this indemnity agreement.” (UMF No. 3.)
On April 17,
2019, ACIC sent a letter to Defendant requesting she fulfill her Indemnity
Agreement obligations since ACIC was served with a lawsuit by Scott Sloan and
Rebecca Sloan against the Bond, which included Scott Sloan and Rebecca Sloan’s
documents supporting the license law violations. (UMF No. 4.)
On May 31,
2019, ACIC again sent a letter to Defendant requesting she fulfill her
Indemnity Agreement obligations since ACIC was served with an additional
lawsuit by Jeff Rice and Leslie Wolgamott-Rice against the Bond, which included
Jeff Rice and Leslie Wolgamott-Rice’s documents supporting the license law
violations. (UMF No. 5.)
On June 25,
2021, a Stipulation and Order Authorizing Tender and Exoneration of Bond was
entered in the Superior Court of Washington, King County Case No. 19-2-13448-8
SEA, entitled Jeff Rice and Leslie Wolgamott-Rice v. Buildworx Corporation,
et al. (UMF No. 6.)
On June 30,
2021, ACIC deposited $12,000.00 from the penal sum of the BOND with the King
County Superior Court Clerk pursuant to the June 25, 2021 Stipulation and
Order. (UMF No. 7.) As a result of the lawsuit from Scott Sloan and Rebecca
Sloan and the lawsuit from Jeff Rice and Leslie Wolgamott-Rice, ACIC was
required to retain counsel, the law firm of Williams Kastner & Gibbs PLLC,
to defend itself and the BOND and incurred $1,630.05 in attorney’s fees and
court costs. (UMF No. 8.)
On June 22,
2022, August 2, 2022, and February 21, 2023, ACIC sent Notices of Reimbursement
Due to Defendant. (UMF No. 9.) ACIC incurred a net loss of $13,630.05 plus
interest, attorneys’ fees, and costs with regard to the instant action as a
result of the ACIC’s issuance of the Bond. (UMF No. 10.) Interest accruing on the $13,630.05 principal
loss and expenses totals $4,126.44 through the May 1, 2024, hearing date. (UMF
No. 11.)
MOVING PARTY
POSITION
Plaintiff
argues that it has established the elements of its breach of contract claim.
(Not. of Mot. p. 2.) For instance, a contract exists because the parties signed
an Indemnity Agreement, Plaintiff performed its duties pursuant to the
Agreement obligations, and Defendant breached by not reimbursing Plaintiff
which led to Plaintiff’s damages. (Mot. pp. 5-6.) Plaintiff ACIC also argues
that Defendant’s Answer filed on March 27, 2023, to the complaint fails to set
forth any facts sufficient to support any defense to ACIC’s complaint. (Mot.
p.7.)
OPPOSITION
None filed
as of April 26, 2024.
ANALYSIS
I.
Judicial Notice
Plaintiff American Contractors
Indemnity Company requests that the Court take Judicial Notice of the following
documents pursuant to Evidence Code, sections 452 and 453.
1. ACIC’s Complaint for breach of contract
filed March 1, 2023 (Exhibit 1, ACIC0001- ACIC0005).
2. Defendant’s Answer to
Plaintiff’s Complaint filed March 27, 2023 (Exhibit 2, ACIC0006- ACIC0009).
The Court GRANTS the request
pursuant to Evidence Code, sections 452 and 453.
II.
Motion for Summary Judgment
A. Legal Standard
A party seeking summary judgment
has the burden of producing evidentiary facts sufficient to entitle him/her to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v.
Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative
showing that he/she is entitled to judgment irrespective of whether or not the
opposing party files an opposition. (Villa v. McFerren (1995) 35
Cal.App.4th 733.)
When a Defendant or
Cross-Defendant seeks summary judgment, he/she must show either (1) that one or
more elements of the cause of action cannot be established; or (2) that there
is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd.
(p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she
must produce admissible evidence on each element of each cause of action on
which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving
party’s “affidavits must cite evidentiary facts, not legal conclusions or
‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d
629, 639.) Section 437c, subdivision (p)(1), states that a
plaintiff has met its burden of showing that there is no defense if it proves
each element of its cause of action. Once that is accomplished, the burden of
proof shifts to the defendant “to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.”
The opposing party on a motion for
summary judgment is under no evidentiary burden to produce rebuttal evidence
until the moving party meets his or her initial movant’s burden. (Binder v.
Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial
movant’s burden is met, then the burden shifts to the opposing party to show,
with admissible evidence, that there is a triable issue requiring the weighing
procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party
may not simply rely on his/her allegations to show a triable issue but must
present evidentiary facts that are substantial in nature and rise beyond mere
speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any
alternative request for summary adjudication of issues, such alternative relief
must be clearly set forth in the Notice of Motion and the general
burden-shifting rules apply but the issues upon which summary adjudication may
be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A
motion for summary adjudication shall be granted only if it completely disposes
of a cause of action, an affirmative defense, a claim for damages, or an issue
of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
B. Discussion
Plaintiff moves for summary judgment
on the basis that there are no triable issues of material fact concerning the
essential elements of Plaintiff’s cause of action because Defendant fails to
set forth any facts sufficient to support any defense. (Mot., p. 5.) In support of its Motion for Summary Judgment, Plaintiff provides the
executed Indemnity Agreement, the Complaint, Defendant’s Answer to the
Complaint, the declaration of Suzanne Baciocco (ACIC’s Vice President,
Subrogation Manager), the declaration of Amber N. Kim (Plaintiff’s counsel), propounded
discovery and Defendant’s responses, and other evidence showing Defendant’s
alleged breach. (See Plaintiff’s Exhibit
List.)
Plaintiff
asserts a cause of action for breach of contract. “To
establish a cause of action for breach of contract, the plaintiff must plead
and prove (1) the existence of the contract, (2) the plaintiff’s performance or
excuse for nonperformance, (3) the defendant’s breach, and (4) resulting
damages to the plaintiff.” (Maxwell v. Dolezal (2014) 231
Cal.App.4th 93, 97-98 [internal citation omitted].) For a written contract, the
plaintiff may “plead the legal effect of the contract rather than the price
language.” (Ibid.) To “plead a contract by its legal effect, plaintiff
must ‘allege the substance of its relevant terms. This is more difficult, for
it requires a careful analysis of the instrument, comprehensiveness in
statement, and avoidance of legal conclusions.’” (McKell v. Washington
Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
Existence
of Contract
Here, there
is a written Indemnity Agreement, and the conduct of both parties is also
sufficient to show the existence of an Indemnity Agreement between the parties.
(UMF Nos. 1-3, Compl. ¶¶ 3,5, Ex. A, Baciocco Decl. ¶ 4.) For instance, the
Indemnity Agreement lists Defendant’s information for the “indemnitor
information” and includes her signature. (Compl. Ex. A, p.5.) “An indemnity
agreement is to be construed like any other contract with a view to determining
the actual intention of the parties; no artificial rules apply.” (citation
omitted.) (Fidelity & Deposit Co. v. Whitson (1960) 187
Cal.App.2d 751, 756.) Therefore, the existence of an Indemnity Agreement for
the issuance of the bond to Defendant cannot be refuted. Additionally, the
terms of the parties’ agreement cannot be disputed. The Indemnity Agreement
entered into between ACIC and Defendant identifies the indemnity owed to ACIC. (UMF
No. 3.) Therefore, Plaintiff has satisfied its burden in showing that a
contract exists, and its terms govern. The burden now shifts to Defendant.
As of April
26, 2024, Defendant failed to file an opposition. Nevertheless, the Court will
analyze her Answer to find any triable issues of material fact. Here, the
Answer states “Defendant admits that all of the statements of the complaint or
cross-complaint are true EXCEPT: Defendant claims the following statements are
false: 9. Deny. Defendant does not have appropriate documentation to reflect
the amount of $13,630.05.” (PLD-C-010 Item 3(b)(1).) Defendant further states
“Defendant has no information or belief that the following statements are true,
so defendant denies them: 1. Defendant without knowledge, 6. Deny.
Documentation does not reflect nor notifies defendant of incurred damages; 7. Deny.
Defendant is unaware of ACIC performing conditions and obligations under the
agreement of the bond; 8. Deny. Defendant is unaware of money needing to be
reimbursed to ACIC for all payments made and to indemnify and keep ACIC from
loss, liability, and expense.” (PLD-C-010 Item 3(b)(2).) Defendant also states
her affirmative defense as follows: “Defendant has no documentation from the
plaintiff to indicate that an original claim was made against the bond.
Defendant would like an Alternative Dispute Resolution or to settle directly
with plaintiff on an agreed amount. (PLD-C-010 Item 4.) Defendant’s conclusory
allegations fail to meet her burden.
Therefore,
there are no triable issues of material fact as to the existence of a contract.
ACIC’s
Performance
Here, ACIC
performed its obligations under the terms of the Indemnity Agreement. (UMF Nos.
2, 7.) Specifically, ACIC issued the Bond in consideration of Defendant’s
execution of the Indemnity Agreement and made payments from the Bond to certain
parties in accordance with the terms of the Bond and as required by law. (UMF
No. 2.) Here, ACIC deposited $12,000.00 from the Bond with the King County
Superior Court Clerk pursuant to a court order (UMF Nos. 6-7; Ex. 7,8.) ACIC
reminded Buildworx Corporation and Defendant of their indemnity obligations to
indemnify and to hold ACIC harmless and requested reimbursement of the Bond
loss. (UMF No. 9.) Therefore, Plaintiff’s evidence is sufficient to establish
that Plaintiff performed its part of the Agreement. Plaintiff satisfied its
burden. The burden now shifts to Defendant.
Defendant
failed to file an opposition and did not provide any facts showing that
Plaintiff did not perform. For instance, the Answer only states “7. Deny. Defendant
is unaware of ACIC performing conditions and obligations under the agreement of
the bond.” (PLD-C-010 Item 3(b)(2).) Therefore, Defendant failed to satisfy her
burden.
Therefore,
there are no triable issues of material fact as to the Plaintiff’s performance.
Defendant’s
Breach & Damages
Here, ACIC
incurred a loss in the principal amount of $12,000.00 and incurred expenses in
the form of attorney’s fees and court costs of $1,630.05, which Defendant was
contractually obligated to reimburse under the terms of the Indemnity
Agreement. (UMF Nos. 4-8.) For instance, Suzanne Baciocco states that “[a]s a
result of the lawsuit from Scott Sloan and Rebecca Sloan and the lawsuit from
Jeff Rice and Leslie Wolgamott-Rice, ACIC was required to retain counsel, the
law firm of Williams Kastner & Gibbs PLLC, to defend itself and the BOND
and incurred $1,630.05 in attorney's fees and court costs.” (Baciocco Decl. ¶
11.) Ms. Baciocco further states that “ACIC incurred a net loss of $13,630.05
plus interest, attorneys' fees, and costs with regards to the instant action as
a result of the ACIC's issuance of the Bond.” (Id. at ¶ 13, Ex. 12- Loss
Report.) Plaintiff satisfied its burden. The burden now shifts to Defendant.
Defendant
failed to file an opposition and did not provide any facts showing that she did
not breach the Indemnity Agreement and that Plaintiff’s damages are
unwarranted. For instance, the Answer states “8. Deny. Defendant is unaware of
money needing to be reimbursed to ACIC for all payments made and to indemnify
and keep ACIC from loss, liability, and expense.” (PLD-C-010 Item 3(b)(2).) Thus,
Defendant failed to satisfy her burden.
Therefore,
there are no triable issues of material fact as to Defendant’s breach or
Plaintiff’s damages.
Accordingly,
Plaintiff’s Motion for Summary Judgment is granted.
Plaintiff is
Entitled to Recover Interest Pursuant to the Terms of the Agreement
Pursuant to
California Civil Code §3287 “(a) a person who is entitled to recover
damages certain, or capable of being made certain by calculation, and the right
to recover which is vested in the person upon a particular day, is
entitled also to recover interest thereon from that day,
except when the debtor is prevented by law, or by the act of the
creditor from paying the debt. This section is applicable to recovery of
damages and interest from any debtor, including the state or any county,
city, city and county, municipal corporation, public district, public agency,
or any political subdivision of the state.”
Here,
Plaintiff’s claims against Defendant arise out of the failure to indemnify. As
such, Plaintiff is entitled to recover pre-judgment interest from the date of
its loss payment and expenses. In support, Plaintiff includes Exhibit 13 which is
an Excel spreadsheet detailing the interest calculations. (Ex. 13 – Interest
Calculation p. 142.) The interest calculation is as follows:
(Ex. 13 –
Interest Calculation p.142.)
Since Defendant did not file an opposition
and the parties signed an Indemnity Agreement, the Court finds the interest
calculated above to be warranted pursuant to California Civil Code §3287. The
Complaint also prays for interest. (Compl. ¶ 9.) Therefore, the Court finds
that the interest calculated ($4,126.44) is warranted.
III. Conclusion
In all, Plaintiff’s unopposed Motion for Summary Judgment
is GRANTED. Judgment is granted in favor of Plaintiff
and against Defendant in the amount of $13,630.05 plus interest ($4,126.44), and costs of the suit to be established by a memorandum of
costs.
Plaintiff is ordered to serve and electronically
submit a proposed judgment consistent with this Court’s ruling within 10 days
of this hearing.
The 08/28/2024 Trial is advanced to this date and hereby
vacated/taken off calendar.
Moving party to give notice.