On 02/13/2019 AMERICAN CONTRACTORS INDEMNITY COMPANY, A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against MARTIN JOHN FARRELL-ARAQUE. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
AMERICAN CONTRACTORS INDEMNITY COMPANY A CALIFORNIA CORPORATION
FARRELL-ARAQUE MARTIN JOHN
8/25/2020: Notice (name extension) - Notice of Entry of Judgment or Order
8/20/2020: Judgment - Judgment Amended
10/2/2019: Notice (name extension) - Notice of Continuance of Motion for Summary Judgment
12/10/2019: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)
1/27/2020: Memorandum of Costs (Summary) - Memorandum of Costs (Summary)
1/28/2020: Abstract of Judgment - Civil and Small Claims - Abstract of Judgment - Civil and Small Claims
4/21/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
4/23/2020: Notice (name extension) - Notice of Continuance of Motion for Attorney Fees
7/15/2019: Motion for Summary Judgment - Motion for Summary Judgment
7/15/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
7/15/2019: Declaration (name extension) - Declaration of Suzanne Baciocco in Support of Motion for Summary Judgment
7/15/2019: Separate Statement - Separate Statement
7/15/2019: Declaration (name extension) - Declaration of Tracy A. Stevenson in Support of Motion for Summary Judgment
4/10/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court) GRANTED
2/13/2019: Summons - Summons on Complaint
2/13/2019: First Amended Standing Order - First Amended Standing Order
2/13/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
2/13/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
DocketNotice of Entry of Judgment or Order; Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff)Read MoreRead Less
DocketJudgment Amended; Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff); As to: Martin John Farrell-Araque (Defendant)Read MoreRead Less
DocketUpdated -- Judgment amended on 08/20/2020 ; Attorney Fees: 6,590.33 ; Costs: 934.63 ; Principal changed from 6,101.60 to 6,104.60 ; Status Date changed from 12/10/2019 to 08/20/2020 ; Status changed from Entered to AmendedRead MoreRead Less
DocketUpdated -- Judgment Amended: Status changed from Filed to Signed and FiledRead MoreRead Less
DocketMinute Order (Hearing on Motion for Attorney Fees)Read MoreRead Less
DocketHearing on Motion for Attorney Fees scheduled for 08/06/2020 at 09:00 AM in Spring Street Courthouse at Department 26 updated: Result Date to 08/06/2020; Result Type to HeldRead MoreRead Less
DocketNotice of Continuance of Motion for Attorney Fees; Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff)Read MoreRead Less
DocketUpdated -- Notice Re: Continuance of Hearing and Order: Result: Voided; Result Date: 04/21/2020; As To Parties: removedRead MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketCase reassigned to Spring Street Courthouse in Department 26 - Hon. Serena R. Murillo; Reason: Transfer for ReassignmentRead MoreRead Less
DocketAnswer; Filed by: Martin John Farrell-Araque (Defendant); As to: American Contractors Indemnity Company, a California corporation (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff); As to: Martin John Farrell-Araque (Defendant); Proof of Mailing Date: 02/26/2019; Service Cost: 99.67; Service Cost Waived: NoRead MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/16/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketNon-Jury Trial scheduled for 08/12/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketSummons on Complaint; Issued and Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff); As to: Martin John Farrell-Araque (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff); As to: Martin John Farrell-Araque (Defendant)Read MoreRead Less
DocketComplaint; Filed by: American Contractors Indemnity Company, a California corporation (Plaintiff); As to: Martin John Farrell-Araque (Defendant)Read MoreRead Less
Case Number: 19STLC01576 Hearing Date: August 06, 2020 Dept: 26
ACIC v. Farrell-Araque, et al.
MOTION FOR ATTORNEY’S FEES
(CCP §§ 1032, 1033.5; Civil Code § 1717)
PLAINTIFF AMERICAN CONTRACTORS INDEMNITY COMPANY’S MOTION TO BE DEEMED PREVAILING AND FOR ATTORNEYS’ FEES AND COSTS IS GRANTED IN THE AMOUNT OF $6,590.33 ATTORNEY’S FEES AND $934.63 COSTS.
Plaintiff American Contractors Indemnity Company (“Plaintiff”) filed the instant action for breach of contract and common counts arising out of claims made on a contractor’s bond against Defendant Martin John Farrell-Araque (“Defendant”) on February 13, 2019. The court granted Plaintiff’s motion for summary judgment on December 10, 2019. On January 6, 2020, the court entered judgment in Plaintiff’s favor in the amount of $6,104.60 00, plus accrued interest at the
statutory rate of 10% in the amount of $3,343.75, plus costs of suit and attorneys’ fees to be determined by bill of costs and motion, as provided by law.
Plaintiff now moves for a determination that it is the prevailing party in this action, and for an award of attorneys’ fees and costs. To date, no opposition has been filed.
A prevailing party in entitled to recover costs, including attorneys’ fees when authorized by contract. (Code Civ. Proc., § 1032, subd. (a)(4); § 1033.5, subd. (a)(10)(A).) Similarly, Code of Civil Procedure section 1717 provides that attorneys’ fees and costs shall be awarded to the prevailing party in an action on a contract, where the contract specifically provides for attorneys’ fees and costs. (Code Civ. Proc., § 1717, subd. (a).)
A motion for attorneys’ fees must be filed and served with the time for filing a notice of appeal under Cal. Rules of Court Rule 8.822. (Cal. Rules of Court Rule 3.1702(a).) Cal. Rules of Court Rule 8.822 states that an attorneys’ fees motion must be filed within either (1) 30 days after the trial court clerk served the party filing the motion with notice of entry of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(1).) Here, judgment was entered on July 12, 2018 and the instant motion was timely filed on August 13, 2018.
It is undisputed that Plaintiff is the prevailing party in this action, as the party in whose favor the summary judgment was granted. (See Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, it is entitled to recover its attorneys’ fees and costs if so provided in the contract at issue.
The parties’ contract provides for recovery of attorneys’ fees by the prevailing party. (Motion, Stevenson Decl., ¶4 and Exh. 1, “Indemnity Agreement,” ¶7.) Plaintiff’s counsel billed its attorneys’ work at between $250.00 and $310.00 per hour, and its law clerks’ and paralegals’ time between $130.00 and $175.00 an hour. (Id. at ¶¶12-13 and Exh. 2.) Plaintiff has incurred attorneys’ fees of $6,590.33 (Id. at ¶13 and Exh. 2.) Although the supporting declaration and billing ledgers do not indicate exactly how many hours of time Plaintiff’s counsel billed on this action, Attorney Tracy Stevenson performed the majority of the work. (Id. at ¶16.) At the billing rate of approximately $310.00, Plaintiff’s counsel billed approximately 22 hours on this matter. (Id. at Exh. 2.)
This is a reasonable amount of time to spend on a case that has been litigated for over a year and involved a motion for summary judgment. In failing to oppose the instant motion, Defendant offers no reason to find this amount of time was excessive or unreasonable. The request for an additional $1,860.00 in fees to review the opposition and prepare a reply, however, should be denied as no opposition or reply were filed. (See id. at ¶14.)
Plaintiff also requests costs of $934.63 for its filing fees in this action. (Memorandum of Costs, filed 1/27/20.) To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) The filing and service fees appear reasonable and are not challenged by a motion to tax costs.
Based on the foregoing, Plaintiff’s Motion for Attorneys’ Fees and Costs is granted in the amount of $6,590.33 attorney’s fees and $934.63 costs.
Moving party to give notice.
Case Number: 19STLC01576 Hearing Date: December 10, 2019 Dept: 94
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
(CCP § 437c)
Plaintiff American Contractors Indemnity Company’s Motion for Summary Judgment as to the Complaint is GRANTED.
American Contractors Indemnity Company (“ACIC”) (“Plaintiff”) is a surety company who issued and executed a Contractor’s License Bond , Bond No. 100250211 (the “Bond”) in the penal sum of $12,500 in June 2014. (Plaintiff’s UMF, No. 2.) The Bond named Rocky Road General & Electrical Contractors, Inc. (“Rocky”) as the principal. (Id.) In exchange for the bond, ACIC and Martin John Farrell-Araque (“Defendant”) executed an Indemnity Agreement (the “Agreement”) on May 21, 2014. (Plaintiff’s UMF Nos. 1, 2.)
The Agreement stated the following:
“IN CONSIDERATION of the execution of such bond, the undersigned, individually and, if applicable, on behalf of the above-named business entity, hereby agree, for themselves, their personal representatives, successors and assigns, jointly and severally, as follows:
To reimburse [Plaintiff]..., upon demand for all payments made for, and to indemnify [ACIC] from, all loss, claim payments, costs and expenses, including attorneys’ and construction consultants’ fees, which [ACIC] may incur;
[Plaintiff] shall have the right, in its sole and absolute discretion, to determine whether any claims shall be paid, compromised, adjusted, defended, prosecuted, or appealed; and
In the event of any litigation arising out of or relating to this agreement, [Plaintiff] shall be entitled to recover its attorneys’ fees incurred therein.”
(Indemnity Agreement, Plaintiff’s Ex. List, Exh. No. 2) (Italics added.)
This action arose from Defendant’s alleged failure to reimburse and indemnify Plaintiff from liability arising from a claim against Defendant’s Bond. (Plaintiff’s UMF, No. 5.) Plaintiff alleges it settled the claim in the amount of $12,500. (Id., No.13.) On or about December 21, 2015, Defendant executed a Terms for Reimbursement document setting out the terms under which Defendant would repay Plaintiff for the expenses incurred as a result of settling the May 2015 claim. (Plaintiff’s Exhibit List, Exh. No. 14.) Plaintiff alleges Defendant only made payments totaling $7,145.40 and that Defendant still owes $6,104.60 plus interest of $3,343.75 accrued at 10% and attorneys’ fees and costs. (Plaintiff’s UMF, Nos. 16, 22.)
On January 19, 2017, the Contractors’ State License Board filed an Accusation with the Department of Consumer Affairs, Accusation No. N2015-437, against Rocky in connection with the May 2015 claim. (Plaintiff’s Exhibit List, Exh. No. 15.) Defendant subsequently executed a Stipulated Revocation of License where he “admits the truth of each and every charge and allegation in Accusation No. N2015-437.” (Id., Exh. No. 16, ¶ 8.)
On February 13, 2019, Plaintiff filed this action breach for contract and common counts action against Defendant to recover damages resulting from Defendant’s failure and refusal to indemnify Plaintiff pursuant to the parties’ written agreement.
On April 8, 2019, Defendant filed a form answer to the complaint. On the answer form, Defendant failed to check any one of the two boxes under Item No. 3 indicating how and whether he denied the allegations contained in the complaint. (4/8/2019 Answer.) Defendant did however, fill in the Affirmative Defenses section, alleging the Agreement was between Rocky, a corporation that no longer exists, and Plaintiff; that Defendant is no longer associated or tied to Rocky; that Plaintiff should never have paid out on the May 2015 claim; and that the amount Plaintiff claims is owed is incorrect. (Id.)
On July 15, 2019, Plaintiff brought the instant Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication (the “Motion”). The Motion was originally set for hearing on October 24, 2019. On October 2, 2019, the hearing was continued to December 10, 2019.
As of December 5, 2019, no opposition or reply briefs have been filed.
II. Legal Standard
“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . .” (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto. [Citation.]” (Welborne v. Ryman-Carroll Foundation (2018) 22 Cal.App.5th 719, 724.) “The party moving for summary judgment bears the initial burden of of production to make a prima facie to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. [Citation.]” (Id.)
“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Citation.]’ [Citation.]” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1282.) “To determine whether the parties have met their respective burdens, the court considers ‘all of the evidence set forth in the supporting and opposition papers, except that to which objections have been made and sustained by the court, and all uncontradicted inferences reasonably deducible from the evidence.’” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 71.) “‘In considering the evidence submitted by the parties, the trial court does not ‘weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact.’ [Citation.] However, ‘it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact . . . . In so doing, it does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself.’” (Aguilar, 25 Cal.4th at p. 856.) “‘In reviewing the evidence, we strictly construe the moving party’s evidence and liberally construe the opposing party’s and accept as undisputed only those portions of the moving party’s evidence that are uncontradicted.’ [Citation.] ‘Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. ‘Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.’’ [Citation.]” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)
III. Judicial Notice
A summary judgment motion can be based on matters of which the court must or may take judicial notice. (Code Civ. Proc., § 437c, subd. (b)(1).) Judicial notice may be taken of records of official acts of the legislative, executive, and judicial departments of the United States or of ay state of the United States. (Evid. Code, § 452, subd. (c).) Judicial notice may also be taken of records of any court of this state or any court of record of the United States or of any state in the United States. (Evid. Code, § 452, subd. (d).)
Plaintiff requests that the court take judicial notice of Plaintiff’s Complaint for breach of contract and common counts filed February 13, 2019 and Defendant’s Answer to ACIC’s Complaint filed April 8, 2019. These documents are records of the Court, and thus can be noticed under Evidence Code section 452, subdivision (d).
Plaintiff also requests the court take judicial notice of the Contractors’ State License Board’s Accusation in case No. N2015-437 dated January 19, 2017, and the Order to Adopt Stipulated Settlement in Case No. N2015-437 dated October 10, 2017. These proceedings qualify as official acts and are can be judicially noticed under Evidence Code, section 452, subsection (c). (See Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)
The request is granted.
“The pleadings play a key role in a summary judgment motion and ‘‘‘set the boundaries of the issues to be resolved at summary judgment.’’’ [Citation.] ‘[T]he scope of the issues to be properly addressed in [a] summary judgment motion’ is generally ‘limited to the claims framed by the pleadings. [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444.)
Here, Plaintiff argues that Defendant does not dispute the breach of contract claim and that Defendant’s answer sets forth no factually supported defenses to Plaintiff’s claims.
A. Breach of Contract (1st Cause of Action)
“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. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)
Here, Plaintiff alleges Defendant executed an Agreement on or about May 21, 2014. (Complaint, ¶ 3.) In consideration for that Agreement, Plaintiff alleges it provided a bond which named Rocky as the Principal. (Id., ¶ 5.) Plaintiff alleges it performed all the conditions and obligations on its part under the Agreement and the Bond. (Id., ¶ 7.) Plaintiff further alleges that as a direct and proximate cause of Defendant’s breach, it suffered $6,104.60 in damages, plus interest, attorneys’ fees, and costs. (Id., ¶ 9.)
In his form answer, Defendant did not deny Plaintiff’s allegations. Any material allegation in the complaint that is not effectively denied is deemed admitted. (Code Civ. Proc., § 431.20, subd. (a).)
Thus, all of Plaintiff’s allegations are deemed admitted.
2. Affirmative Defenses
“A pleading may be defective in failing to allege an element of a cause of action or in failing to intelligibly identify a defense thereto. In such a case, the moving party need not address a missing element or, obviously, to respond to assertions which are unintelligible or make out no recognizable legal claim.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.) “The summary judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings. In these circumstances it has been said that a defendant's ‘motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings.’ [Citation.] Similarly, a plaintiff’s motion for summary judgment necessarily includes a test of the sufficiency of the answer.” (Id.)
“It is incumbent upon a moving party plaintiff not only to show there is no material factual dispute with respect to its caused of action but also to show that there is no material factual dispute with respect to the defenses proffered by the defendant. [Citation.]” (Id., at p. 381-382.)
A defect in the answer may entitle a moving plaintiff to summary judgment if the only matter in dispute is a defense that has not been intelligibly asserted in the answer. (Id., at p. 382.) “If the answer has made out some intelligible but defectively plead claim, in the absence of an appropriate challenge, we will examine the defendants’ showing, treating it as supplementing the pleading where it is plausibly connected to the claim, to determine whether a cognizable defense has been made out.” (Id., at p. 383.)
If the allegations of an affirmative defense read in light of facts presented in the summary judgment proceeding gave notice to a plaintiff of a potentially meritorious defense, granting a plaintiff’s summary judgment motion would be improper. (Id., at p. 385.)
Here, Defendant alleges four defenses, which he believes are affirmative defenses. He alleges that the Agreement was between Plaintiff and Rocky. (4/8/2019 Answer.) However, the Agreement is executed by Defendant as Rocky’s “Authorized Representative and Individually.” (Indemnity Agreement, Plaintiff’s Ex. List, Exh. No. 2.) Defendant also argues he is no longer associated or tied to Rocky (4/8/2019 Answer), but this does not negate any of the four elements of a breach of contract action. Defendant further argues that Plaintiff should never have paid out on the May 2018 claim because there was no construction defect. (4/8/2019 Answer.) However, in the Stipulated Revocation of License executed by Defendant, he admits the construction defect allegations were true. (Plaintiff’s Exhibit List, Exh. No. 16, ¶ 8.) Lastly, he alleges the amount Plaintiff claims is owed is incorrect. (4/8/2019 Answer.) However, by failing to deny Plaintiff’s allegations in the complaint, Defendant essentially admitted the amount Plaintiff alleged in his complaint is true.
Furthermore, Defendant did not file an opposition to this Motion, and thus the Court does not have any additional facts that can supplement Defendant’s defective answer. Had Defendant done so, the Court could have read his answer in light of any facts presented in the summary judgment proceeding to determine whether Plaintiff had notice of a possible meritorious defense, which would make granting a motion for summary judgment improper.
As noted above, the Motion is unopposed and thus Defendant has not met his burden.
B. Common Counts (2nd Cause of Action)
“‘A common count is not a specific cause of action . . .; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness . . . .’ [Citation.]” (Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690.)
Defendant does not dispute it owes Plaintiff $6,104.60 plus interest. (Plaintiff’s UMF No. 16, 18, 22.) Based on the undisputed evidence, the Court finds Plaintiff has met its burden of showing that it is undisputedly entitled to judgment on the common count cause of action.
Thus, Plaintiff’s Motion for Summary Judgment is GRANTED.
V. Summary Adjudication
Because Plaintiff’s Motion for Summary Judgment is GRANTED, Plaintiff’s Motion for Summary Adjudication is DENIED AS MOOT.
VI. Conclusion & Order
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is GRANTED, and as a result, Plaintiff’s Motion for Summary Adjudication is DENIED AS MOOT.
Moving Party is to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.