Judge Mark E. Windham, Case Number: 23STLC01433, Date: 2024-04-30 Tentative Ruling

Judge: Mark E. Windham, Case: 23STLC01433, Date: 2024-04-30 Tentative Ruling

Case Number: 23STLC01433 Hearing Date: April 30, 2024 Dept: 26

ACIC v. Wiscomb, et al.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff American Contractors Indemnity Company’s Motion for Summary Judgment is GRANTED. PLAINTIFF IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff American Contractors Indemnity Company (“Plaintiff”) brought this action for breach of an indemnity agreement against Defendant Jeffrey Irvine Wiscomb (“Defendant”) on March 1, 2023. Defendant filed an answer in properia persona on March 27, 2023. On February 5, 2024, Plaintiff filed the instant Motion for Summary Judgment. No opposition has been filed to date.

Discussion

The Complaint alleges a single cause of action for breach of indemnity agreement. Plaintiff alleges that Defendant agreed to indemnify Plaintiff for losses incurred with respect to Contractors License Bond, No. 100153718, issued on behalf of Millworx, LLC (“Millworx”). (Compl., ¶¶3-5.) A copy of the indemnity agreement is attached to the Complaint and provides that in consideration of the execution of the Bond, Defendant agrees to reimburse Plaintiff “upon demand for all payments made for and to indemnify Surety from all loss, claim payments, costs and expenses, including attorneys’ and construction consultants’ fees, which the Surety incurs.” (Compl., Exh. A, ¶1.) Plaintiff allegedly incurred damages over the past four years as a result of its obligations under the Bond. (Id. at ¶6.) Plaintiff allegedly discharged all its obligations under the Agreement and Bond, while Defendant breached the same by failing to take appropriate action to resolve the claims on the Bond and by failing to reimburse Plaintiff for its losses. (Id. at ¶¶6-8.) As a result of Defendant’s breach, Plaintiff has been damaged in the amount of $8,081.95. (Id. at ¶9.)

Plaintiff moves for summary judgment on the Complaint pursuant to Code of Civil Procedure section 437c. On a motion for summary judgment or adjudication of a particular cause of action, a moving plaintiff must show that there is no defense by proving each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden 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. (Code Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)

Request for Judicial Notice

In support of the Motion, Plaintiff requests that the court take judicial notice of (1) the Complaint for breach of contract filed March 1, 2023; and (2) Defendant’s Answer to the Complaint filed March 27, 2023.

Cause of Action for Breach of Indemnity Agreement

The elements of a cause of action for breach of contract are (1) the existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

In support of its Motion for Summary Judgment for breach of the indemnity agreement, Plaintiff presents the following undisputed facts. It issued and executed Contractor’s License Bond No. SC6364438 (“the Bond”), naming Millworx as principal and the State of Washington as obligee. (Motion, Separate Statement, Fact No. 2; Baciocco Decl., ¶5.) In exchange, on February 1, 2011, Defendant entered into an indemnity agreement with Plaintiff as surety. (Motion, Separate Statement, Fact No. 1; Baciocco Decl., ¶4 and Exh. 3.) Pursuant to the indemnity agreement, Defendant agreed to reimburse Surety “upon demand for all payments made for and to indemnify Surety from all loss, claim payments, costs and expenses, including attorneys’ and construction consultants’ fees, which the Surety incurs.” (Motion, Separate Statement, Fact No. 3; Baciocco Decl., ¶6 and Exh. 1, p. 2.)

On April 25, 2019, Plaintiff sent a letter to Defendant asking he fulfill his obligation under the indemnity agreement. (Motion, Separate Statement, Fact No. 4; Baciocco Decl., ¶7.) Plaintiff was served with a lawsuit by Scott Sloan and Rebecca Sloan (“the Sloans”) against the Bond, which included the Sloans’ documents supporting license law violations. (Motion, Separate Statement, Fact No. 4; Baciocco Decl., ¶7 and Exh. 5.) On May 13, 2019, Defendant requested that Plaintiff payout from the bond to a client to whom Defendant was in default. (Motion, Separate Statement, Fact No. 5; Baciocco Decl., ¶8 and Exh. 6.) On May 31, 2019, Plaintiff again asked Defendant to fulfill his obligations under the agreement because it was served with additional lawsuits against the Bond with documents supporting license law violations. (Motion, Separate Statement, Fact No. 6; Baciocco Decl., ¶9 and Exh. 7.) Pursuant to an order in the Superior Court of Washington, Pierce County, Plaintiff deposited $3,551.10 from the penal sum of the Bond with the Pierce County Superior Court Clerk on July 14, 2021. (Motion, Separate Statement, Fact Nos. 7-8; Baciocco Decl., ¶¶10-11 and Exhs. 8-9.) Plaintiff also incurred attorney’s fees and costs of $4,530.85 defending the lawsuits against Defendant. (Motion, Separate Statement, Fact No. 9; Baciocco Decl., ¶12 and Exh. 14.) Plaintiff sent Defendant notices of reimbursement on August 11, 2022, September 26, 2022, November 7, 2022, and February 21, 2023. (Motion, Separate Statement, Fact No. 10; Baciocco Decl., ¶13 and Exhs. 11-13.) Interest accruing on the $8,081.95 total loss amounts to $2,473.37 through the April 30, 2024, hearing date. (Motion, Separate Statement, Fact No. 12; Kim Decl., ¶3 and Exh. 15.)

This evidence carries Plaintiff’s initial burden of proof as to its claim for breach of the indemnity agreement against Defendant. Plaintiff has demonstrated the existence of the indemnity agreement between itself and Defendant, Defendant’s breach by failing to reimburse Plaintiff, and Plaintiff’s resulting damages. The burden now shifts to Defendant to demonstrate that a triable issue of material fact exists as to Plaintiff’s claims. As no opposition has been filed, however, Defendant has failed to demonstrate the existence of any triable issue of material fact.

Conclusion

Therefore, Plaintiff American Contractors Indemnity Company’s Motion for Summary Judgment is GRANTED. PLAINTIFF IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 10 DAYS OF THIS ORDER.

Moving party to give notice.