Judge: Monica Bachner, Case: 19STCV45587, Date: 2023-01-25 Tentative Ruling

Case Number: 19STCV45587    Hearing Date: January 25, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Cross-Complainant Western Surety Company’s unopposed motion for deposit of stakeholder, restraining order, and interpleader, is granted. Western Surety Company’s motion for attorneys’ fees is granted in the amount of $1,500.00.

          Cross-Complainant Western Surety Company (“Western”) (“Cross-Complainant”) moves unopposed for an order of deposit, restraining order, interpleader, and attorneys’ fees.  (Notice of Motion, pgs. 1-3; C.C.P §§386(f), 386.6.)  Cross-Complainant moves for an order that (1) Western deposit with the Court the full penalty of Bond No. 63123296 in the sum of $7,500 issued on behalf of A&R Corporation, Inc., (“A&R”) in accordance with Business and Professions Code §7071.6, less those sums that the Court may award Western in reasonable attorneys’ fees and costs; (2) upon the deposit of said funds, Western be discharged from all liability asserted against it with respect to said bond by the claimants designated herein and by all other persons; (3) upon deposit of said funds, all claimants designated herein, and all persons be ordered to interplead their claims in this action and be further restrained from instituting or prosecuting in any other court any proceedings affecting the rights and obligations of Western with respect to all claimants under Bond No. 63123296 issued on behalf of A&R; (4) any legal actions pending against the proceeds of said bond on behalf of any claimant be dismissed as to Western; and (5) Western be awarded its reasonable attorneys’ fees and court costs in the sum of $1,500 as allowance for its expenses incurred in this proceeding by the filing of its Cross-Complaint in Interpleader and in preserving the penalty of said bond for all claimants on an equal basis.  (Notice of Motion, pg. 2.)

          Background

On December 19, 2019, LSG Las Tunas, LP (“LSG”) filed its initial complaint against A&R alleging causes of action for (1) breach of contract, (2) negligence, (3) breach of implied warranty, (4) indemnity, and (5) fraud by deceit and omission based on A&R’s alleged breach of an August 8, 2016 written contract pursuant to which A&R agreed to provide construction services as a general contractor toward a construction project improving real property located at 704-712 W. Las Tunas Dr., San Gabriel, California (“Property”), comprised of 35 condominium units, subterranean parking, and retail space.  (Complaint ¶¶4-16.)  On April 10, 2020, LSG filed its first amended complaint (“FAC”).

A&R filed its initial Cross-Complaint on July 14, 2020, alleging 10 causes of action against LSG, Lim Chang & Associates, Inc., My Engineering, Inc., EGL Associates, Inc., Energy Design, Inc., Park’s Engineering Construction Services, and Does 1 through 100. A&R filed its first amended cross-complaint (“FACC”) on March 16, 2022.  On May 5, 2022, Schindler Elevator Corporation filed its Cross-Complaint.  On May 20, 2022, Ply Gem Pacific Windows, Corp. filed its Cross-Complaint. On August 5, 2022, Coast Glass Co., Inc. filed its Cross-Complaint.  Western filed the instant motion on August 8, 2022. As of the date of this hearing, Western’s motion is unopposed.

Interpleader

C.C.P. §386.5 provides, “[w]here 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.”

          Western submitted an affidavit in support of its motion establishing the ground for interpleader.  (C.C.P. §§386(a), 386.5.)  Western declares the subject matter of this motion is a $7,500 Contractor’s State License Bond issued to A&R as principal, issued pursuant to Business and Professions Code §7071.6 and is in the penal sum of $15,000.  (Decl. of Pagan ¶2.)  The maximum liability for all non-homeowner claims is $7,500 as provided for by the bond and provisions of Business and Professions Code §7071.6(b).  Western declares its verified cross-complaint in interpleader was served on A&R and LSG on April 4, 2022, and March 24, 2022, respectively.  (Decl. of Pagan ¶¶3-5.)  Western declares notice of the motion was served on each of the adverse claimants to the funds.  (Decl. of Pagan ¶ 7.)

The Court finds interpleader appropriate. Western has presented sufficient evidence to establish that it is only a stakeholder without interest in the disputed funds.  (Decl. of Pagan ¶8.)

Restraining Order

C.C.P. §386(f) provides, “[a]fter 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 proceedings in this State affecting the rights and obligations as between the parties to the interpleader until further order of the Court.”

Western requests the Court enter a restraining order preventing the parties from prosecuting other actions “affecting the rights and obligations as between the parties to the interpleader until further order of the Court.” (Decl. of Pagan ¶9; C.C.P. §386(f).)  The Court grants this request.

Attorneys’ Fees

Western may recover its attorneys’ fees and costs from the disputed funds per C.C.P. §386.6(a).  Western requests the Court award a “statutory allowance” of $1,500.00 to cover costs and attorney’s fees. Western provides an accounting of attorney’s fees and costs incurred.  (Decl. of Pagan, Exh. 1.)  Western may recover its identified costs in the amount of $1,500.00.  (Decl. Pagan ¶6, Exh. 1.)

Based on the foregoing, Western’s motion for deposit of stakeholder is granted.

Dated:  January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court