Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV015722
SIMS, Acting P. J.This is the second appeal in a lawsuit arising from property owners’ failure to pay for construction work on real estate projects. In the first appeal, we affirmed a money judgment (1) in favor of a subcontractor against a contractor and the property owners’ surety, and (2) in favor of the contractor against the property owners and the surety. Upon remand, the surety paid the amount of the construction bond, which went to satisfy in full the judgment in favor of the subcontractor (including attorney fees, costs, and interest) and to satisfy in part the judgment in favor of the contractor. The contractor prevailed on a motion to enforce the balance of its judgment against John C. Williams (controlling owner of the companies which own the property) and Louise Williams, as personal sureties who filed an undertaking in the first appeal making themselves personally liable on the judgment. (Code Civ. Proc., § 996.440.) The trial court entered a “JUDGMENT” in the amount of $193,493, against the Williamses as personal sureties. The Williamses (appellants) now appeal from that judgment against them as personal sureties.
Undesignated statutory references are to the Code of Civil Procedure. Section 996.440 states in part, “If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action. [¶]... [¶] [The motion] shall be supported by affidavits setting forth the facts on which the claim is based. [¶]... [¶] Judgment shall be entered against the principal and sureties in accordance with the motion unless the principal or sureties serve and file affidavits in opposition to the motion showing such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact [which shall be tried by the court]....”
Although the Williamses were already parties to the action as cross-defendants, a postjudgment order to enforce a judgment against personal sureties is denominated a “judgment” pursuant to section 996.440, fn. 1, ante.
Appellants contend the trial court erred, because their obligation on the judgment was satisfied in full when the surety paid the full amount of the construction bond, and the contractor acted at its own peril in using part of that money to pay not only for the subcontract work, but also the subcontractor’s attorney fees award, costs, and postjudgment interest. For reasons that follow, we disagree with appellants.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Preston Pipelines, Inc. (subcontractor), filed this lawsuit to recover for subcontracting work. The subcontractor sued the contractor (Ross F. Carroll, Inc. or RCI), the property owners (JCW-Dutra and Bella Vista) and a surety (American Motorists Insurance Company) which issued a bond for the JCW project. In January 2004, the trial court entered judgment in favor of the subcontractor (1) against the contractor for breach of contract, (2) against the owners on a quantum meruit theory, and (3) against the surety on the payment bond for the JCW project. The court also entered judgment in favor of the contractor on its cross-complaint against the owners and the surety. The trial court also awarded attorney fees (1) in favor of the subcontractor against the contractor, the owners, and the surety and (2) in favor of the contractor against the owners and surety.
The owners appealed the judgment and attorney fees award, and an undertaking on appeal (§ 917.1) was filed by appellants, John C. Williams (controlling owner of JCW) and Louise Williams, stating as follows: “WHEREAS defendant JCW-Cypress Home Group, and American Motorist Insurance Company desire to give an undertaking for appeal pursuant to [] section 917.1, [¶] NOW THEREFORE, the undersigned sureties hereby obligate themselves, jointly and severally to Preston Pipelines, Inc. under the aforesaid statutory obligations, in the amount of $397,732.51 plus interest, costs and attorney fees, and to Ross F. Carroll, Inc. in the sum of $900,911.68 plus interest, costs and attorney fees. [¶] IN TESTIMONY WHEREOF, the said surety, has caused his name to be hereunto affixed at Modesto, California on January 05, 2004. [¶] This undertaking is executed under penalty of perjury under California law on this 05 day of January, 2004 at Modesto, California by the undersigned. [¶] [Signature] [¶] John C. Williams [¶] Personal Surety [¶] [Louise Williams] [¶] Personal Surety.”
In the first appeal, on April 28, 2006, we issued an unpublished opinion, Preston Pipelines, Inc. v. JCW-Cypress Home Group, (Apr. 28, 2006, C046055 & C047730 [nonpub. opn.]) in which we reversed the judgment (and corresponding attorney fees award) with respect to the subcontractor’s quantum meruit claim against the owners, because lack of privity prevented the subcontractor from prevailing on a quantum meruit theory directly against the owners. We otherwise affirmed the judgment and attorney fee award.
Our opinion expressly stated that, although the subcontractor had no viable quantum meruit claim against the owners that would allow the subcontractor to recover directly from the owners, “the owners remain liable for the same monies in the award in favor of the contractor”; and “the judgment makes [the owners] liable to RCI [the contractor] for amounts that include the money owed to plaintiff [the subcontractor].”
Thus, as affirmed by this court, the judgment awarded to the subcontractor, against the contractor and American Motorists, $397,732.51 plus prejudgment interest of $155,594.88, plus attorney fees. The judgment awarded to the contractor, against the owners (JCW-Dutra) and American Motorists, $747,833.75 (which included the subcontractor’s work) plus prejudgment interest of $144,565.88, plus additional amounts for the Bella Vista project, plus attorney fees.
The California Supreme Court denied review and the case returned to the trial court.
The subcontractor sent a demand letter for the total amount owed to it as of October 31, 2006 -- $880,072.34, which consisted of the judgment amount of $553,327.39 ($397,732.51 for its subcontract work plus $155,594.88 prejudgment interest), plus postjudgment interest, attorney fees and costs awarded by the court, and postjudgment interest on the attorney fees and costs. The demand letter specified it did not include attorney fees for the appeal, which were the subject of a pending motion.
Similarly, the contractor calculated the total amount owed to it (which would include the $397,732 for the subcontracting work). The total for the JCW-Dutra project (to which the American Motorists surety bond applied) was $1,519,420.98, which included the judgment amount, postjudgment interest, attorney fees and costs, and postjudgment interest on attorney fees and costs through October 31, 2006. The total did not include attorney fees for the first appeal which was the subject of a pending motion.
On December 1, 2006, American Motorists sent a check for $1,530,000, payable jointly to the contractor and subcontractor. American Motorists stated in its accompanying letter that, by paying out the full amount of its bond, it discharged all liability to any and all claimants, subject to a contrary ruling by the trial court on pending motions for attorney fees and costs in excess of the penal sum of the bond. American Motorists’s letter also said, “It is our understanding that [the contractor’s attorney] will be disbursing to Mr. Naegele, as counsel for [the subcontractor], those sums set forth in Mr. Naegele’s demand letter....”
The American Motorists check was deposited in the trust account of the contractor’s lawyer, who then issued a check to the subcontractor for $885,817.34 to satisfy in full the subcontractor’s judgment and attorney fee award, except for the pending matter of attorney fees on appeal as against American Motorists.
The balance of the American Motorists check -- $644,182.66 -- went to the contractor in partial satisfaction of its judgment against the owners and American Motorists. The contractor executed a partial satisfaction of judgment.
The contractor filed a motion to enforce its judgment against appellants as personal sureties (based on their filing of the undertaking for the appeal) pursuant to section 996.440.
Section 996.440 states in part, “(a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action.”
Appellants opposed the contractor’s motion to enforce the judgment, arguing the American Motorists payment had satisfied in full the contractor’s judgment, and the contractor acted at its own peril in paying the subcontractor’s entire judgment, because the appellate court reversed the $397,732.51 damages judgment in favor of the subcontractor against the owners on a quantum meruit theory, and the judgment specifically stated that if either the owners or American Motorists paid the contractor the judgment amount plus interest, both will have discharged their obligation to the contractor. Thus, appellants apparently did not feel responsible for the subcontractor’s attorney fees, costs, and postjudgment interest.
However, the actual wording of the original judgment was, “If [the owners] and/or AMERICAN MOTORISTS pay the sum of $397,732.51 plus interest as specified in the judgment to [the subcontractor] for the subcontract work performed by [the subcontractor], [the owners] and/or American Motorists shall have discharged their judgment obligation to [the subcontractor] (except as to costs and attorney fees) and the payor(s) shall be entitled to a credit in the sum of $397,732.51 against the damages [the contractor] is entitled to recover[] from [the owners] and/or AMERICAN MOTORISTS pursuant to this judgment. [¶]... [¶]... If either [the owners] or AMERICAN MOTORISTS pay [the contractor] the sum of $900,911.68, plus additional interest..., [the owners] and AMERICAN MOTORISTS will have discharged their judgment obligation to [the contractor], except as to costs and attorney fees.” (Italics added.)
The opposition also submitted declarations from appellants, claiming that unresolved issues had to be tried before the court could rule on the motion, i.e., (1) the amount of the judgment, and (2) who is owed money by appellants, the contractor, and American Motorists.
The contractor filed a reply and evidentiary objections to appellants’ declarations on the grounds of legal conclusion and inadmissible opinion.
On May 24, 2007, the trial court sustained the evidentiary objections to appellants’ declarations and issued a written decision to grant the motion in part and deny it in part. The “DECISION” directed the contractor to prepare a formal order.
On August 24, 2007, the trial court issued an “ORDER GRANTING MOTION TO ENFORCE JUDGMENT AGAINST JOHN C. WILLIAMS AND LOUISE WILLIAMS, AS PERSONAL SURETIES” and a “JUDGMENT BY COURT.” The judgment stated that the contractor “shall have and recover from John C. Williams and Louise Williams the principal sum of $183,632.52 plus interest thereon through June 15, 2007 in the sum of $9,860.76 for a total judgment as of June 15, 2007 in the sum of $193,493.28. [The contractor] shall have and recover from [appellants] additional interest on the principal balance due ($183,632.52) at the rate of $50.31 per day.”
The trial court also granted a motion by American Motorists to enforce subrogation rights against appellants as personal sureties on the bond American Motorists issued in favor of the owners.
Appellants filed a notice of appeal. Their appellate brief assigns error only with respect to the judgment on the contractor’s section 996.440 motion.
DISCUSSION
I. No Forfeiture
The respondent’s brief argues the appeal is forfeited and should be summarily dismissed because the appellate record contains only the papers filed in connection with the motion to enforce the judgment against the personal sureties, yet two other motions were filed (the owners’ motion to compel full satisfaction of judgment and American Motorists’ motion to enforce subrogation rights against appellants), and the trial court said it considered all motion papers. We decline to dismiss the appeal, because the record is adequate to affirm the postjudgment order on the contractor’s motion to enforce the judgment against the personal sureties, which is the only assigned error in the appellate brief.
II. Standard of Review
A judgment on a section 996.440 motion is reviewed in a manner similar to a motion for summary judgment, i.e., we determine whether the statute has been correctly applied, whether supporting declarations were sufficient to support the judgment and, if so, whether opposing declarations raised a triable issue of fact. (Simmons v. California Coastal Com. (1981) 124 Cal.App.3d 790, 796 [discussing predecessor statute, former § 1058a].)
III. Contractor’s Judgment Not Fully Satisfied
Appellants contend the payment to the general contractor Ross F. Carroll, Inc., by the surety, American Motorists, satisfied the judgment. Appellants argue Ross F. Carroll, Inc. acted at its peril in paying its subcontractor, Preston Pipelines, out of the money received from American Motorists.
We disagree. There is nothing in equity or logic to sustain appellants’ position.
The amount of the judgment now appealed from, $193.493.28, is well within the amount specified in appellants’ Undertaking on Appeal, which, as to Ross F. Carroll, Inc., was $900,911.68, plus interest, costs and attorney fees.
Ross F. Carroll, Inc., paid the sum of $885,817.34 to its subcontractor, out of funds supplied by American Motorists, because, in its letter transmitting the funds, American Motorists conditioned its payment on Carroll making the payment. Had Carroll refused the sum tendered by American Motorists, appellants would have been obligated for hundreds of thousands of dollars more on their undertaking to Carroll, because Carroll’s damages, which were affirmed on appeal, included amounts due its subcontractor, including attorney fees.
Appellants contend the amount paid by Ross F. Carroll, Inc., to its subcontractor, Preston Pipelines, was in error. The amount was $885,817.34, which did not include attorney fees for the appeal as against American Motorist.
The bulk of this amount is itemized in Preston Pipelines’s demand letter of October 30, 2006, as follows:
The remainder of the $885,817.34 paid to Preston ($5,745) was for attorney fees owed from the appeal and opposing the petition for review to the California Supreme Court. This amount is eminently reasonable.
| 1. | Judgment amount: | $553,327.39 |
| 2. | Post Judgment interest through October 31, 2006:Per Diem: $151.59 | $148,105.81 |
| 3. | Attorney fees awarded to Preston: | $133,050.00 |
| 4. | Post Judgment interest on attorney fees throughOctober 31, 2006: Per Diem: $36.45 | $ 29,743.95 |
| 5. | Costs awarded by Court: | $ 12,655.85 |
| 6. | Post Judgment interest on costs awarded by Court:Per Diem: $3.46 | $ 3,189.34 |
| $880,072.34 |
If the “judgment amount” is correct, then we perceive no error in this computation. The “judgment amount” in this computation correctly reflects the judgment affirmed by this court in the prior appeal. Appellants apparently contend the judgment amount is in error. However, any attack on that judgment should have been made in the prior appeal. Principles of res judicata and law of the case bar an attack on the judgment in this appeal.
In our prior opinion, we said, “The owners remain liable for the same monies in the award in favor of the contractor” and “the judgment makes [the owners] liable to [the contractor] for amounts that include the money owed to [the subcontractor].”
Ross F. Carroll, Inc., acted reasonably and lawfully in paying its subcontractor $885,817.34 out of funds received from American Motorists.
Appellants’ contention to the contrary is not meritorious.
IV. No Hearing Required
Appellants next contend the trial court wrongfully denied them the opportunity to be heard at an evidentiary hearing on the issue of whether Carroll’s judgment was satisfied. We disagree.
The only legal authority cited by appellants is section 996.440, subdivision (d), which they miscite as subdivision (c). It says: “Judgment shall be entered against the principal and sureties in accordance with the motion [to enforce liability on a bond] unless the principal or sureties serve and file affidavits in opposition to the motion showing such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. If such a showing is made, the issues to be tried shall be specified by the court. Trial shall be by the court and shall be set for the earliest date convenient to the court, allowing sufficient time for such discovery proceedings as may be requested.”
Appellants say they submitted declarations in opposition to the motion, in which they explained to the trial court that a dispute existed between the parties as to whether the owners had fully satisfied the contractor’s judgment.
However, appellants fail to address the fact that the trial court sustained evidentiary objections to those declarations on the grounds they consisted of self-serving inadmissible legal conclusions and inadmissible opinion. Appellants fail to address this evidentiary ruling on appeal, and we therefore presume the ruling was proper. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [points not argued are forfeited].) Moreover, appellants’ opening brief offers no factual analysis of a triable issue beyond saying “a dispute existed between the parties.”
Appellants fail to show an evidentiary hearing was required.
In their reply brief, appellants (assertedly responding to the respondent’s brief) set forth detailed mathematical calculations which assertedly show mathematical errors, including a supposed error that the trial court erroneously calculated prejudgment interest twice. Appellants even claim the contractor was overpaid and owes them money. Although we granted appellants’ motion to augment the record with an abstract of judgment, filed concurrently with the reply brief, we decline to consider these points because they were not presented as assignments of error in the opening brief. To the extent the respondent’s brief challenged any math, the matter is unnecessary to our disposition of the appeal, and we therefore need not entertain the reply brief on such matters. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [appellant cannot raise new grounds for reversal for the first time in a reply brief].)
We conclude appellants fail to show grounds for reversal.
DISPOSITION
The trial court’s August 24, 2007, “JUDGMENT BY COURT” ordering enforcement of the contractor’s judgment against appellants is affirmed. Respondent Ross F. Carroll, Inc., shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
We concur: RAYE, J., BUTZ, J.
Appellants John C. Williams and Louise Williams were not parties to the prior appeal. However, JCW-Dutra was a party and John C. Williams was the “principal owner and operator” of JCW and Louise Williams is his spouse. John C. Williams and Louise Williams were and are in privity with JCW for purposes of application of the doctrine of res judicata. (See, e.g., Bernhard v. Bank of America (1942) 19 Cal.2d 807, 811.)