Judge: Yolanda Orozco, Case: 22STCV09400, Date: 2023-03-15 Tentative Ruling
Case Number: 22STCV09400 Hearing Date: March 15, 2023 Dept: 31
REQUEST FOR ENTRY
OF DEFAULT JUDGMENT
TENTATIVE RULING
Plaintiff’s
request for default judgment against Defendant Jason A. Tomlinson in the amount
of $19,983.62 is GRANTED.
On March 17, 2022, Plaintiff the
North River Insurance Company, filed a Complaint against Defendants Jason A.
Tomlinson; Todd C. Williams; Kevin Smith; David Schneider; Michael Salerno; and
Does 1 to 50 for:
1)
Express Indemnity;
2)
Implied Indemnity;
3)
Statutory Reimbursement;
4)
Contribution; and
5) Interpleader.
The Complaint seeks claims against the Bond due to Defendant Tomlinson’s alleged violations of Business and Professions Code §§ 7071.5-7071.11, et seq., at the penal limit of $15,000.00, plus additional losses, attorneys’ fees and costs in excess of $15,00.00.
Defendants Tami Smith, Kevin Smith,
and Michael Salerno were dismissed on April 26, 2022.
Defendant Todd C. William was dismissed on July 01, 2022.
Defendant David Schneider filed an Answer on June 22, 2022. Defendant Schneider was dismissed from the action on January 12, 2023.
Doe 26 was amended to add Sarah Zolriasatain on July 19. 2022. Defendant Zolriasatain filed an Answer on October 28, 2022. Defendant Zolriasatain was dismissed from the action on January 20, 2023.
On February 20, 2023, Does 1 to 25 and 27 to 50 were dismissed.
Default was entered against
Defendant Jason A. Tomlinson.
LEGAL STANDARD
Code
of Civil Procedure section 585 permits entry of a judgment after a Defendant
has failed to timely answer after being properly served. A party seeking judgment on the default by
the Court must file a Request for Court Judgment, and: (1) a brief summary of
the case; (2) declarations or other admissible evidence in support of the
judgment requested; (3) interest computations as necessary; (4) a memorandum of
costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of
all parties against whom judgment is not sought; (7) a dismissal of all parties
against whom judgment is not sought or an application for separate judgment
under CCP § 579, supported by a showing of grounds for each judgment; (8)
exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute
or by the agreement of the parties. (Cal.
Rules of Court, rule 3.1800.)
DISCUSSION
Plaintiff seeks a judgment of $19,983.62 against
Defendant Jason A. Tomlinson, for $15,000.00 in damages, $3,833.00 in
attorney’s fees, and $1,150.62 in costs.
Plaintiff
asserts that Defendant applied for a Contractor’s License Bond from Plaintiff.
(Compl. ¶ 8; Baker Decl. ¶ 3, Ex. 1.)
On
November 13, 2021, Plaintiff issued Bond No. 04-CF602066 to Plaintiff, naming
Plaintiff as the principal and the State of California as obligee, pursuant to
the provisions of the Business and Professions Code §§ 7071.5-7071.11, et seq.
(Complaint ¶ 9; Baker Decl. ¶ 4, Ex. 2.) The bond was issued for the penal sum
of $15,000.00. (Compl. ¶ 9, Baker Decl. ¶ 6, Ex. 2.)
Defendant was required to execute an indemnity
agreement in favor of Plaintiff in order to apply for the Bond, wherein
Defendant was required to indemnify Plaintiff for any losses incurred by
Plaintiff by reason as acting as surety on the Bond. (Compl. ¶ 15; Baker Decl.
¶ 5, Ex. 1)
Paragraph 4 of the Indemnity Agreement states:
“(4) To perform all
the conditions of said Bond(s), to reimburse Surety for all payments made for
or on account of any Bond(s), and to defend, indemnify, and save Surety
harmless from and against any and all demands, claims, liabilities, losses,
costs, damages, penalties and expenses of whatever nature or kind, including
attorney’s and counsel fees, which Surety may sustain or incur by reason of (a)
the issuance of such Bond(s), (b) obtaining a release of or evidence of
termination under such Bond(s), or (c) in enforcing any provision of this
agreement, whether Surety shall have paid out any such sums;”
(Baker
Decl., ¶ 5, Ex. 1.)
Plaintiff
asserts that under the Indemnity Agreement and Code of Civil Procedure section
2847, Defendant is obligated to indemnify Plaintiff.
Defendants
Todd C. Williams; Tami and Kevin Smith; Michael Salerno, David Schneider, and
Sara Zolriasatain had made claims against Defendant Tomlinson’s Bond due to
violations of Business and Professions Code §§ 7071.5- 7071.11, et. seq. (Baker
Decl. ¶ 7.) Plaintiff filed this Complaint which contained a cause of action
for Interpleader.
Defendants
Williams, Smith, and Salerano withdrew their claims against the Bond and were
dismissed from the action. (Howard Decl. ¶ 4.) Plaintiff settled with Defendant
Schneider for $5,000.00 and Defendant Zolriasatain for $10,000.00. (Baker Decl.
¶ 8.)
Now Plaintiff seeks to recoup the $15,000.00
paid to Defendants Schneider and Zolriasatain pursuant to the Bond and the
Indemnity Agreement, in addition to attorney’s fees and costs.
Plaintiff attached copies of the Indemnity
Agreement signed by Defendant, along with the Contractor’s Bond, and Proof of
Service and Entry of Default against Defendant. (Baker Decl. Ex. 1, 2; Howard Decl.
Ex. 3, 4.)
The Court is satisfied that Plaintiff has
provided sufficient evidence of damages in the amount of $15,000.00.
Plaintiff points to paragraph 4 of the Indemnity Agreement as evidence that it is entitled to attorney’s fees and costs. (Baker Decl. ¶ 12, Ex. 1.) Plaintiff asserts that due to claims against the Bond, Plaintiff retained the law firm of Anderson, McPharlin & Conners LLP to protect its interest and has incurred $3,833.00 in attorney’s fees and $1,150.62 in costs. (Baker Decl. ¶¶ 9, 10.)
The Court is satisfied that Plaintiff has shown it is entitled to $3,833.00 in attorney’s fees and $1,150.62 in costs.
Plaintiff’s Motion is GRANTED.
Conclusion
Plaintiff’s
request for default judgment against Defendant Jason A. Tomlinson in the amount
of $19,983.62 is GRANTED.