C. W. SWEENEY, as Administrator, etc., Plaintiff, Cross-defendant and Appellant, v. BILLY DEAN McCLARAN, Defendant, Cross-defendant and Respondent; SURETY COMPANY OF THE PACIFIC, Defendant, Cross-complainant and Respondent; DIVISION OF LABOR LAW ENFORCEMENT et al., Cross-defendants and Appellants.
Civ. No. 14923
Third Dist.
June 1, 1976
June 24, 1976
130 Cal. Rptr. 205 | 58 Cal. App. 3d 824
McCarthy, Johnson & Miller and William R. Shepard for Plaintiff, Cross-defendant and Appellant.
Lazar, Giannini & Gurney, Guy T. Gurney and Janet M. Holland for Cross-defendants and Appellants.
Acret & Perrochet and Geoffrey R. Hudson for Defendant, Cross-complainant and Respondent.
No appearance for Defendant, Cross-defendant and Respondent.
OPINION
PARAS, J.—The claimants against a contractor‘s license bond (
Plaintiff Sweeney, as administrator of five labor-management trust funds for operating engineers, sued defendant McClaran, a contractor, for employee fringe benefit payments which McClaran, as employer, allegedly failed to pay into the trust funds as required by a collective bargaining agreement. The complaint included a cause of action against defendant Surety Company of the Pacific (“Surety“) to enforce Surety‘s liability on a $2,500 contractor‘s license bond issued by it in favor of the State of California, as obligee, naming McClaran as principal. Such a bond (or a cash deposit) is required by
Pursuant to
Disclaiming any interest in the $2,500 and offering to deposit that amount in court, Surety thereafter noticed a motion under
Sweeney, Rebeiro and Walters, and the Division, having all appealed from the order, do not now challenge the portion of it which discharged Surety from liability and dismissed it from Sweeney‘s action. They seek review of the order only to the extent that it awarded Surety costs and attorneys’ fees out of the sum deposited in court.
I
Surety contends that the order appealed from was not an appealable order. We have already decided that issue adversely to Surety in denying its earlier motion to dismiss the appeals. Lincoln Nat. Life Ins. Co. v. Mitchell (1974) 41 Cal.App.3d 16 [115 Cal.Rptr. 723], upon which Surety relies, is not persuasive. Although in Lincoln the interpleading insurer was awarded attorneys’ fees from the funds it deposited with the court, the appellate court did not discuss whether such award had any effect on the appealability of the judgment of interpleader. In holding that the judgment was interlocutory, Lincoln limited its analysis to the
II
We reject appellants’ contention that the award in any amount by the trial court of costs and attorney‘s fees from the penal sum of the bond constitutes an abuse of discretion.
Appellants argue that no matter what the circumstances the court‘s discretion under
Nonetheless, in support of their argument, appellants emphasize the small amount of the license bond. They assert that to permit Surety to deduct its costs and attorney‘s fees from such a small sum would allow it seriously to deplete an already inadequate fund by transferring a part of its ordinary cost of doing business to persons expressly protected under section 7071.5; they also assert that this would give the surety preferential status, in the face of section 7071.11, which expressly gives preference to the plaintiffs. Appellants ascribe to the aforementioned sections of the Business and Professions Code the character of special statutes which, they contend, supplant the general provisions of
In assessing these contentions, we initially point out that “[c]ourts do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature” (Estate of Horman (1971) 5 Cal.3d 62, 77 [95 Cal.Rptr. 433, 485 P.2d 785])—here,
Appellants alternatively argue that the trial court‘s award of attorneys’ fees and costs to Surety constituted an abuse of discretion because, in opposition to Surety‘s motion for that award, appellants filed a stipulation for the pro rata distribution among them of the $2,500 penal sum of the bond. The contention has no merit. Obviously, appellants’ stipulation among themselves did not constitute conclusive evidence binding on Surety of the legitimacy of their claims, nor did it deprive Surety of its right for its own protection to a court-determined stakeholder discharge under
We reverse the award of attorney fees, however, because it appears that the trial court improperly calculated the amount. Our reading of the interpleader statutes leads us to conclude that fees must be limited to those incurred only in pursuit of the stakeholder‘s remedy, whether by complaint or cross-complaint. The amended cross-complaint alleged four causes of action, but one of which was in interpleader (the others sought declaratory relief and indemnification). To the extent that fees were awarded for legal work in connection with the other three causes of action, the award was improper. We note also that the original complaint herein against the Surety was filed on April 10, 1973; it was answered on June 20, 1973, and a cross-complaint was filed on the same day, seeking declaratory relief and indemnity. Not until November 15, 1973, was the cross-complaint amended to include interpleader. Prior to November 15, attorneys’ fees were incurred, as shown by a computer print-out of costs and fees incurred by Surety to its attorneys (which print-out was attached to Surety‘s points and authorities accompanying the § 386.6 motion) dating back to the time when it first undertook to defend the action. It is apparent to us that fees were allowed for the entire legal representation of Surety in the action.
To the extent that fees were allowed for legal work on the original defense and cross-complaint, the court committed error. Fees incurred for such activities as negotiations, investigation, dispute over validity of claims (or their amount), cross-complaints for affirmative relief, and the like, are not properly allowable under
The order is reversed with directions to the trial court to redetermine costs and attorneys’ fees in conformity with this opinion. The parties shall bear their own costs on appeal.
Puglia, P. J., concurred.
JANES, J., Concurring and Dissenting.—I concur in the judgment insofar as it reverses the trial court‘s order and remands the case for redetermination of attorney fees and costs. The application to this case of
I disagree with the majority‘s conclusions (reached without discussion) concerning the litigation activities which the trial court may properly consider in fixing the amount of attorney fees and costs to be recovered by Surety. The trial court should not be required to limit its award to those of Surety‘s attorney fees and costs which are attributable to the interpleader cause of action in Surety‘s amended cross-complaint. Section 386.6 expressly allows the interpleading party his reasonable costs and attorney fees “incurred in such action.”
The “action” mentioned in section 386.6 is not limited to an action commenced by a complaint in interpleader but includes also actions commenced against a defendant who—as here—subsequently files a cross-complaint in interpleader. (See
Another matter bears mention. The award of $1,061.30 is excessive in a respect not mentioned in claimants’ briefs or by the majority opinion; it includes attorney fees and costs incurred by Surety not only in this action but also in other related actions. The instant action was commenced against McClaran and Surety on April 10, 1973; Surety answered and cross-complained for declaratory relief and for indemnification against McClaran on June 20, 1973. By an amended cross-complaint, an interpleader count was added November 15, 1973. In support of its subsequent motion for attorney fees and costs, Surety
The computer print-out did not differentiate between Surety‘s attorneys’ fees and costs incurred in this action and those incurred in the three independent—albeit related—actions. Nevertheless, since the court awarded $61.30 in costs and $1,000 in attorneys’ fees after a hearing at which no additional evidence was submitted, the conclusion is inescapable that the court relied heavily upon the print-out and supplemented it with attorneys’ fees attributable to counsel‘s giving notice of and argument of the motion itself. The award therefore included attorneys’ fees and costs incurred by Surety in the three other actions, whereas
A petition for a rehearing was denied June 24, 1976.