Opinion
Civ. No. 2:14-1666 WBS EFB
12-09-2015
PLATTE RIVER INSURANCE COMPANY, a Nebraska corporation, Plaintiff, v. PREMIER POWER RENEWABLE ENERGY, INC., a California corporation; DEAN RICHARD MARKS, an individual; and SARILEE MARKS, an individual, Defendants.
ORDER RE: MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Platte River Insurance Company brought this action against defendants Premier Power Renewable Energy, Inc., Dean Richard Marks, and Sarilee Marks, asserting claims for breach of an indemnity contract, specific performance, injunctive relief, and quia timet. (Compl. (Docket No. 1).) Plaintiff now moves for partial summary judgment on its claim for breach of the indemnity contract against defendants Dean Richard Marks and Sarilee Marks ("defendants") pursuant to Federal Rule of Civil Procedure 56. (Docket No. 48.)
Defendant Premier Power Renewable Energy, Inc. has failed to file a responsive pleading and plaintiff has separately moved for default judgment against it. (Docket No. 49.) --------
The indemnity contract required defendants to indemnify plaintiff "against all demands, claims, loss, costs, damages, expenses and fees including any attorneys' fees" that plaintiff incurred as a result of issuing a certain payment bond. (Wills Decl. ¶¶ 8-12, Ex. 1 § 2, Ex. 2 (Docket No. 48-3).) The contract also entitled plaintiff to twelve percent per annum interest on any unpaid amounts. (Id. ¶ 40, Ex. 1 § 10, Ex. 2.)
Plaintiff contends that it incurred $1,217,078.56 in losses and attorney's fees as a result of claims made against the payment bond, plus $117,622.58 in interest pursuant to the twelve percent contractual rate. (Id. ¶¶ 28-41, Exs. 4-5.) As a result, plaintiff moves for a total judgment of $1,334,701.14. (Id. ¶ 42; Mem. at 15 (Docket No. 48-1).) Plaintiff also contends that there is no evidence to support any of defendants' affirmative defenses. (Wills Decl. ¶ 42; Mem. at 15.)
Defendants filed a statement of non-opposition to plaintiff's summary judgment motion. (Docket No. 52.) A statement of non-opposition is filed by "[a] responding party who has no opposition to the granting of the motion." E.D. Cal. L.R. 230(c).
Accordingly, good cause appearing, IT IS HEREBY ORDERED that plaintiff's motion for partial summary judgment on its first cause of action for breach of the indemnity contract be, and the same hereby is, GRANTED. The hearing set for December 14 at 1:30 p.m. is hereby VACATED. Dated: December 9, 2015
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE