Judge: Mark C. Kim, Case: 20LBCV00482, Date: 2022-09-13 Tentative Ruling
Case Number: 20LBCV00482 Hearing Date: September 13, 2022 Dept: S27
Plaintiff, Sergio Vasquez filed this
action against numerous defendants for damages arising out of Plaintiff’s contract
with Defendants to perform construction work to convert a garage into a
one-bedroom unit. Plaintiff’s complaint
contains an eleventh cause of action for recovery on contractor’s bond, which
seeks recovery against Suretec due to its execution of a contractor’s bond in connection
with G&A’s license with the CA Contractor’s License Board.
Suretec answered the complaint and
filed a cross-complaint-in-interpleader.
It Suretec’s cross-complaint, it alleges various individuals, including Plaintiff,
Robert Byron Sheffield, Martha R. Sorto Ardon, Patricia Rodriguez, Yaneli
Chung, and Berenice Guerrero, have all made claims on Suretec’s B&A bond. Suretec
alleges its maximum liability on the bond is $15,000, and seeks, by way of the
cross-complaint, to interplead that amount with the Court and be dismissed from
any further action against it. Suretec
later added Jose Ceja as a roe cross-defendant.
Plaintiff, Rodriguez, and Ceja have
filed answers to the cross-complaint. Sheffield,
Chung, Guerrero, and Ardon have had their defaults entered in connection with the
cross-complaint.
a.
Relief Sought
Suretec seeks an order permitting
it to deposit its $15,000 bond with the Court, exonerating it from any further
action in connection with the subject claims, and permitting it to recover its
attorneys’ fees and costs out of the bond amount.
b. Law
Governing Relief Requested
CCP §386(b) provides:
(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.
When the person, firm, corporation,
association or other entity against whom such claims are made, or may be made,
is a defendant in an action brought upon one or more of such claims, it may
either file a verified cross–complaint in interpleader, admitting that it has
no interest in the money or property claimed, or in only a portion thereof, and
alleging that all or such portion is demanded by parties to such action, and
apply to the court upon notice to such parties for an order to deliver such
money or property or such portion thereof to such person as the court shall
direct; or may bring a separate action against the claimants to compel them to
interplead and litigate their several claims. The action of interpleader may be
maintained although the claims have not a common origin, are not identical but
are adverse to and independent of one another, or the claims are unliquidated
and no liability on the part of the party bringing the action or filing the
cross–complaint has arisen. The applicant or interpleading party may deny
liability in whole or in part to any or all of the claimants. The applicant or
interpleading party may join as a defendant in such action any other party
against whom claims are made by one or more of the claimants or such other
party may interplead by cross–complaint; provided, however, that such claims
arise out of the same transaction or occurrence.
CCP §386.5 provides:
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.
CCP §386.6 provides:
(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.
c. Service
Suretec served the moving papers on
Plaintiff by serving him in pro per and by serving his former lawyer. Suretec filed and served the moving papers on
5/11/22. However, on 5/06/22, Plaintiff
filed and served a Substitution of Attorney, pursuant to which Mark S. Martinez
commenced representing Plaintiff. Plaintiff
served the substitution on Suretec’s attorney by mail the same day.
The Court is concerned that Suretec
did not receive the substitution of attorney in time to serve Martinez prior to
filing this motion. In an abundance of
caution, in the event Plaintiff does not appear and waive any service defect,
the Court will continue the hearing for at least sixteen court days, to a date
that is convenient for Suretec, and will require Suretec to serve the papers on
Plaintiff’s new attorney.
d. Analysis
In the event Plaintiff appears and
waives service, and/or submits on the tentative ruling, the Court will grant the
motion. Suretec made a prima facie
showing of all requirements detailed above, and no party has filed timely opposition
to the motion.
The Court is concerned, however,
about the amount of attorneys’ fees sought.
Suretec supports its request for fees with the Declaration of its
attorney, Edwina R. Howard. The
declaration, however, is unsigned. Additionally,
¶¶11-12 briefly mention the amount of attorneys’ fees sought, but there is no
statement of her hourly rate, the number of hours billed, the tasks undertaken,
etc. The Court will hear argument about
the amount, if any, of attorneys’ fees to be awarded at the time of the
hearing. The Court notes that §386.6
makes clear that any award of such fees is discretionary, and the Court expects
detailed information prior to exercising its discretion. The Court finds the amount of costs sought,
$560, to be both supported and reasonable, and will award the requested
costs.
If all parties submit on the tentative,
the motion will be granted, costs will be awarded, and no attorneys’ fees will
be awarded.
Suretec is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the
party’s email must include the case number and must identify the party
submitting on the tentative. If the parties
do not submit on the tentative, they should arrange to appear remotely.