Cross Complaint

Cal. Super. - 6th Dist.November 13, 2020

LAW OFFICES OF JOHN L. FALLAT JOHN L. FALLAT (State Bar No. 114842) TIMOTHY J. TOMLIN (State Bar No. 142294) 68 Mitchell Blvd, Suite 135 San Rafael, CA 94903-2046 Telephone: (415) 457-3773 Facsimile: (415) 457-2667 Attorneys for Defendant/Cross-Complainant GREAT AMERICAN INSURANCE COMPANY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A & D AUTOMATIC GATE COMPANY, a California corporation, Plaintiff, vs. SILICONESAGE CONSTRUCTION, INC., a California corporation, et al., Defendants. GREAT AMERICAN INSURANCE COMPANY, an Ohio corporation, Cross-Complainant, vs. A & D AUTOMATIC GATE COMPANY, a California corporation; MARBLE PALACE, INC., a California corporation; UNITED RENTALS (NORTH AMERICA), INC., a California corporation; BRUCE FREDERICK, an individual; ROES 1 through 100, inclusive, Cross-Defendants. Cross-Complainant GREAT AMERICAN CASE NO. 20CV373830 VERIFIED CROSS-COMPLAINT IN INTERPLEADER INSURANCE COMPANY (hereafter "GAIC") VERIFIED CROSS-COMPLAINT IN INTERPLEADER - 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/4/2021 3:55 PM Reviewed By: D Harris Case #20CV373830 Envelope: 5782917 20CV373830 Santa Clara - Civil D Harris alleges as follows: 2 GENERAL ALLEGATIONS l. At all times herein mentioned GAIC was and is a corporation organized and existing under the laws of the State of Ohio authorized to conduct business in the State of California. 10 2. GAIC is the surety under a $ 15,000.00 Contractor's Bond No: E385882 in which SiliconSage Construction, Inc. (hereinafter "SSC") is named as principal (see attached Exhibit 1- copy of bond). 3. Cross-complainant is informed and believes and thereon alleges that cross-defendant A & D Automatic Gate Company (hereinatter "A & D") is a California corporation and is a claimant on the bond. 12 13 14 15 17 18 19 20 21 22 23 24 25 4. Cross-complainant is informed and believes and thereon alleges that cross-defendant Marble Palace, Inc. (hereinafier "MPI") is a corporation operating in the State of California and is a claimant on the bond. 5. Cross-complainant is informed and believes and thereon alleges that cross-defendant United Rentals (North America), Inc., (hereinafter "UR") is a corporation operating in the State of California and is a claimant on the bond. 6. Cross-complainant is informed and believes and thereon alleges that cross-defendant Bruce Frederick (hereinafier "BF") is an individual residing in the State of California and a claimant on the bond. 7. Cross-complainant is informed and believe and thereon allege that cross-defendants ROES 1 through 100, inclusive, are sued herein under such fictitious names, and that their true names and capacities, whether individual, partnership, corporate or otherwise, are unknown to cross- complainants, and when such information is obtained, cross-complainants will seek leave of the court to amend their Cross-Complaint accordingly. Cross-complainants are informed and believe and thereon allege that each of the cross-defendants sued under. fictitious names are claimants or are responsible in some manner for the events and happenings hereinafter set fort'n. 28 VERIFIED CROSS-COMPLAINT IN INTERPLEADER - 2 1 FIRST CAUSE OF ACTION IN INTERPLEADER 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 (Against All Cross-Defendants and ROES 1-100) 8. Cross-complainant realleges paragraphs 1 through 7 above as though fully set forth herein. 9. Cross-complainant is informed and believes that the cross-defendants have claims on the subject bond in excess of the $ 15,000.00 total bond proceeds. 10. Cross-complainant is depositing the sum of $ 15,000.00 which is the amount it holds as the surety for SSC concurrently with the filing of this cross-complaint. 11. Cross-defendants have made conflicting demands upon cross-complainant to the aforesaid money or property for damages allegedly caused by SSC. 12. Cross-complainant is unable to determine the validity of the conflicting demands made by cross-defendants as aforesaid and cannot determine to whom said money or property belongs, or whether it belongs to said claimants at all. Consequently, cross-complainant hereby submits said claims before the Court for a determination as to the validity of said claims and the extent of liability, if any, that cross-complainant could be held responsible for. 13. Cross-complainant claims an interest in the money or property aforesaid to whatever extent that cross-defendants fail to establish their right to recover said money or property through this interpleader action. 14. Cross-complainant has incurred costs and reasonable attorney's fees in connection with this proceeding in an amount according to proof at trial, and requests an award of same to be deducted from the bond pursuant to CCP g 386.6. WHEREFORE, cross-complainant prays for relief as follows: 1. That the cross-defendants be ordered to interplead snd litigate their claims to the SSC bond proceeds described in this Verified Cross-Complaint; That any other filed civil proceeding against the bond be stayed pending the outcome of this interpleader; That GAIC be discharged Rom liability to each of said cross-defendants with respect to said money or property, the bond be exonerated, and that cross- 28 VERIFIED CROSS-COMPLAINT IN INTERPLEADER - 3 complainant retain any portion of the interpled money or property remaining after the claims are resolved; 4, That cross-complainant be awarded costs and reasonable attorney's fees to be paid to cross-complainant from the interpled funds not to exceed $ 15,000.00 with the Court Clerk as aforesaid; and 5. For such other and further reliefas the Court may deem just. DATED: February 3, 2021 LAW OFFICES OF JOHN L. FALLAT 10 12 JO@ L/F LAT Counsel for De dant/Cross-Complainant GREAT AMERICAN INSURANCE COMPANY 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 VERIFIED CROSS-COMPLAINT IN INTERPLEADER - 4 THIS BOND SHALL BE FILED WITH THE REGISTRAR OF CONTRACTORS STATE OF CALIFORNIA CONTRACTORS STATE LICENSE BOARD Contractor's Bond PslsINEss ANDF~ OME AEOTICMs tatf s-tatt to The premium on this bond is $ 450.00--- SURETY CODE A43 soND No. E385882 LICENSE NO N/A OR APP. FEE No for the term 12/16/2019 12/15/2020 KNOWALLBVTHESE PRESENTS: That SiliCOnSeae COnStruCtian InC BUSINESS NAME SHOWN CN APPLICATION OR UCENSE whose address for service is 560 S Mathilda Ave ¹307 ETREETADORESS as Principal, snd Great Ame6icen Insurance Comaanv NAME OF SURETY Sunnvvale OOY CA 94086 STATE ZIP CODE a corporation organized under the laws of Ohio snd authorized to transact a general surety business in the State of California, as Surety, are held and fir mly bound unto theState of California, for the penal sum of FiReen Thousand Dollars ($15,000) for the payment of which well snd truly to bemade we bind ourselves, our heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, The provisions of Sections 7071.6 and 7071.8, Business snd Professions Code, require that the Principal file orhave on file with the Registrar a bond issued by sn admitted surety in the sum of $15,000 and this bond is executed andtendered in accordance therewith. NOW THEREFORE, The conditions of the foregoing obligation are that if the Principal shall comply with and be subject to theprovisions of Division 3, Chapter 6 (commencing with Section 7000) of the Business and Professions Code, then this obligation shallbe null and void; otherwise to remain in full force and etfect. PROVIDED HOWEVER, This bond is issued subject to the following express conditions: 1. This bond may be cancelled by the Surety in accordance with the provisions of Sections 996.310 et seq. of the Code of Civil Procedure. 2. This bond shall be deemed continuous in form snd shall remain in full force and effect and shall run concurrently with the licenseperiod for which license is granted and each and every succeeding license period or periods for which said Principal may belicensed, aRer which liability hereunder shall cease except as to any liability or indebtedness therefore incurred or accrued hereunder. 3. The limitation of the liability of the surety and the conditions of the bond are as set forth in Sections 7071.5 and 7071.6, Business endProfessions Code and any person claiming against said bond may bring an action in a proper court on this bond for the amount of thedamage he may suffer as a result of such acts or omissions by the Principal except that such action must be brought within two (2)years after the expiration of the license period during which the act or omission occurred, or within two (2) years of the date of licenseof active licensee was inactivated, canceled or revoked, whichever occurs 5 rst, except provided further that a claim for fringe benefits shall be brought within six (6) months after the date the fringe benefi t delinquencies were discovered, and any civil action thereonshall be fi led within two (2) years after the date the fringe benefi t contributions were due. 4. This bond is executed by the Surety to comply with the provisions of Division 3, Chapter 9, (commencing with Section 7000) of theBusiness snd Pmfessions Code and of Part 2, Title 14, Chapter 2 (commencing with Section 995.010) of the Code of Civil Procedureand said bond shall be subject to all of the terms and provisions thereof. 5. This bond to become effective 12/16/2019 Great Ame6icen Insurance Companv IMME OF SURETY 301 East 4th Street Cincinnati, OH 45202 ADDRESS FOR SERVICE I certify (or declare) under penalty of perjury under the laws of the State of California that I have executed the foregoing bond under an unrevokedpower of attorney. Executed in San Carlos. CA 94070-4131 CnY AND STATE on 12/16/2019, under the laws of the State of California. Certificate of Authority ¹ 3597 ii )lllllllllllllllllIlllIIllllllIIIIIIIIIIIIlllllliII Signature ofAttorney-in-Fact Printed or Typed Name of Attorney-in-Fact Jessica Huana AddreSS Of Attarney-in-FaCt 11CD indnsidai Road, Suite 3 San Carlos, CA SECTS-4) SI Telephone Number of Attorney-in-Fact 650-592-7333 EXHiBIT ISILI ITSIE) VERIFICATION 0 Iamapstytothisacfian. Ihavereadtheattachd~in, ardtbe same ishueof myownknowledge, exceptas to thsmathxs that me stahxltbrseinupanmyinfarmafion andbdicf, and as to those mattem ibdievetbcmtobetrue. 0 I am an otlicer, diremar or managing agent ofthepsty~ and am~ to make ibis vaificalian fitr and on its behalf; and I make this vaificalian fiIr that reason. I have read tbe attadxd~ i.e., 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I amaneofihe~ thrtheparty(ies) named intbe attached '); saidparty(ies) is absrstt iu th CountyofMaan, whrse Ibavemyotlice, andImakeKis venficafian for and anbdmlfofpsty(ies) fitr thatreasarr, ibavereadtbeattacbrd~s),ie„VERIFIED CROSS-COMPLAINT IN INTERPLEADER ardknow the ccatents thereof Iam in&nnedandbdieveandon that gwundallege that tbe matters slated thereinaretine. 0 Iamoneoftheathsrteysfirrtheparty(les)namedintbeattacbrd~s),i', I amaneof the attorneys fi3rthepartycarpamhco(s)named intbeattached~s), is., saidcarpamhanhas~me as its agrntfirrfitepurpss: ofservingandvedfying answer to intenogatades on itslxhalf,by~gmnhdinwriling ardImakethis~fitrthatreasarr, Ibavereadthe attadxd onnnent(s), ardknawtbe cantenmtbrseof Iamhtfismed andbdieve ardonthatgrourd allcgethatthemathss therein slated mehue. ~Fchruary3,2021 at SanRafird, QiEfamin Idedareunda pstaltyofperturyurdcrthelaws ofthe StateofCalifarnmtbat the fixegaingistrue ard conect AW ss-Complainant RICAN INSURANCE COMPANY 'Ibefirrts alleged in said ') arewithinmyownlmowledge, ardlmake this verification fitr that reasa the fircts therein stahd ar true ofmyownkuowledg, except as to thosemattem that are slated thereinuponmy infannahanardbdicf, and as to tbosemathxslbdievetbrsntobetrue. 0 27 28 VERIFIED CROSS-COMPLAINT IN INTERPLEADER - 5 1 PROOF OF SERVICE BY MAIL [CCP $1013(a)} I, ROXANNE CULLEN, declare that I am not a party to this action, am over the age of 18 years, 4 maintain a business address at 68 Mitchell Boulevard, Suite 135, San Rafael, CA 94903-2046, County of Marin, and that on the date shown below, I caused to be served the documents listed below on the persons listed herein by placing the envelopes for collection and mailing following our ordinary business practices. 7 I am readily familiar with this business'ractice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. The envelope(s) were addressed and mailed as follows:10 11 DOCUMENTS SERVED. VERIFIED CROSS COMPLA1ÃTINIlVTEIIPLEADER 12 SERVED UPON: 13 SERVED UPON: 14 Dennis G. Cosso, Esq. Law Offices of Dennis G. Cosso 16 345 Oxford Drive Arcadia, CA 91007 Tel: (626) 574-8000 Fax: (626) 574-8081 Email: denniscossolawRmnail.corn 19 Counsel for PlalntlffA 4 D Automatfe Gate Comoanv 20 I declare under penalty of perjury that the foregoing is true and correct and that this proof of service was executed on the date stated below, at San Rafael, California 22 23 DATED: February 4, 2021 24 25 ROXANNE CULLEN 26 27 28