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Fireman's Insurance Company of Newark v. Johnson2/8/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This action arises from a residential remodel. Fireman's Insurance Company of Newark, New Jersey (Fireman's Insurance), the plaintiff below and a respondent on appeal, sought declaratory relief and indemnification in regard to a claim on a $5,000 contractor's bond. (See Bus. & Prof. Code, § 7071.5 et seq.) The complaint alleged the following. Fireman's Insurance executed the bond on behalf of Ronald G. Johnson, the defendant and the cross-complainant below and the appellant. Homeowner Dorothy V. Montgomery, the other named defendant and the cross-defendant below and a respondent on appeal, made a claim against the bond. Fireman's Insurance was entitled to assert "all defenses enjoyed by JOHNSON, including the claimed defenses of res judicata and collateral estoppel."
Appellant Johnson filed a motion for summary judgment, arguing that Fireman's Insurance had no obligation to Montgomery on the $5,000 bond because a judgment in a small claims action adjudicating claims arising from the remodeling had res judicata and collateral estoppel effect. The trial court denied appellant's motion for summary judgment.
Johnson then successfully moved to amend his general denial to add the affirmative defenses of res judicata and collateral estoppel. The case proceeded to trial. The court, in its judgment after trial, ordered that Montgomery shall recover $5,000 from Fireman's Insurance and that Fireman's Insurance shall recover "indemnity limited to five thousand dollars ($5,000.00)" from Johnson.
The sole issue on appeal is whether the trial court erred in denying appellant Johnson's motion for summary judgment. The trial court found there were "triable issues of material fact with respect to the basis of Defendant Montgomery's claim for payment from Plaintiff Fireman's Insurance Company on the surety bond."
We affirm the judgment.
A. Summary Judgment
A 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).) Rulings on summary judgment motions, including denials, are examined de novo by appellate courts. (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531; Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) We consider "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, . . . ." (Code Civ. Proc., § 437c, subd. (c).)
B. Evidence on Summary Judgment
Johnson filed a small claims action against Montgomery and her husband, alleging that they owed him money for a bathroom remodel. Montgomery's husband also filed a claim, asserting that Johnson owed them money because his charges exceeded his bid, workmanship was shoddy, and Johnson did not complete the remodel of the bathrooms.
On March 15, 1995, Montgomery filed a consumer complaint against Johnson with the Contractors' State License Board. She complained that that Johnson had not completed the bathrooms, his work was shoddy and not up to code, and he had behaved unprofessionally and caused excessive dirt and dust.
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