Preview
LAW OFFICES OF JOHN L. FALLAT Electronically Filed
JOHN L. FALLAT (State Bar No. 114842) 6/6/2018 12:46 PM
TIMOTHY J. TOMLlN (State Bar No. 142294) Superior Court of California
68 Mitchell B1vd., Suite 135 County of Stanislaus
San Rafael, CA 94903-2046 Clerk of the Court
Telephone: (415) 457-3773 By: Lindsey Stringfellow, Deputy
Facsimile: (415) 457-2667
Attorney for Defendant
HUDSON INSURANCE COMPANY
SUPERIOR COURT 0F CALIFORNIA
COUNTY 0F STANISLAUS
10
ll
FRANCISCO MEDA, Case No. 2022500
12
Plaintiff,
l3 ) OPPOSITION BY HUDSON
vs. INSURANCE COMPANY TO
l4 PLAINTIFF’S MOTION FOR
ZYAD ALI MAADARANI, individually and ATTORNEY FEES AND COSTS
15 dba MACE MOTORS; HUDSON
INSURANCE GROUP, a corporation; ) DATE: June 21, 2018
l6 WESTLAKE FINANCIAL INVESTMENT TIME: 8:30 am.
SERVICES, LLC, a Califomia corporation; DEPT: 21
17 and DOES 1 through 20, inclusive,
)
18 Defendants.
19 i
20
1. Factual and Procedural Backgound
21
Hudson insurance company is the surety on the motor vehicle dealer bond of Mace Motors.
22
Plaintiff sued Hudson in this case pursuant to Vehicle Code §1 171 1(a). In plaintiff‘s inh-Oduction to his
23
motion, it isstated that “Defendants finally ageed to settle this matter for full compensation to Plaintifi‘
24
...”. (Motion, 13.2, lines 13-14). It also states that “the parties agreed that the matter of fees and costs
25
would be submitted to this Court for final detenm'nation. (See Exhibit 1).” (Motion, p.2, lines 15-16).
26
27
28
OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS
1
Exhibit 1 is a copy of a settlement agreement entered into “between Plaintifl‘ FRANCISCO
MEDA and Defendant ZYAD ALI MAADARANI, individually and dba MACE MOTORS (jointly
MN
referred to as “MACE MOTORS”) and Defendant WESTLAKE SERVICES, LLC.”
Hudson Insurance Company is not a Egg to the Settlement Agreement. Paragraph 3 of the
mu‘llh
Settlement Agreement provides that the Parties to the Settlement Agreement agree that Plaintiffs
attorney fees and costs shall be resolved by motion to the Court. Since Hudson was not a party to the
agreement, Hudson did not agee to such a determination by the Court. Also, Hudson did not settle with
Plaintiff. Also, Hudson did not agree plaintiff was the “prevailing party” against it as set forth in
paragaph 3. There is no siglature line for Hudson Insurance Company, nor did anyone sign the
10 ageemcnt on behalf of Hudson Insurance Company. Taken together, these facts show Hudson is not
ll subject to the Settlement Agreement and particularly the terms agreeing that Plaintiff is the prevailing
12 party and that Plaintiffmay seek attorney fees against Hudson by motion.
l3 2. Hudson is not bound by the Settlement Ageement since it is not a party to it.
14 It is b'asic contract law that only parties to an ageement are bound by the agreement. Every
15 contract requires consenting parties. (Sec Civi1.Code §§ 1550, 1565, 1 Witkin, Summary 11th Contracts
16 §116 (2018)).
l7 The Judicial Council ofCalifornia Civil Jury Instruction 309 agrees:
18
309 Contract Formation—Acceptance
Both an offer and an acceptance are required to create a contract. [Name of defendant]
19
contends that a contract was not created because the offer was never accepted. To
overcome this contention, [name ofplaintiff] must prove both of the following:
20
1. That [name of defendant] agreed to be bound by the terms of the offer. [If [name of
21 defendant] agreed to be bound only on certain conditions, or if [he/she/it] introduced a new
term into the bargain, then there was no acceptance]; and
22 2. That [name of defendant] communicated [his/her/its] agreement to [name ofplaintiff].
If [name ofplaintiff] did not prove both of the above, then a contract was not created.
23
This is also reflected in the law of arbitration ageements:
24
“Generally speaking, one must be a pany to an arbitration ageement to be bound by it.
25 “The strong public policy in favor of arbitration does not extend to those who are not
26 parties to an arbitration ageement, and a party cannot be compelled to arbitrate a dispute
that he has not agreed to resolve by arbitration. [Citation.]” (Benasra v. Marciano (2001)
27 92 Ca1.App.4th 987, 990, 112 Cal.Rptr.2d 358; see also Code Civ. Proc., 1281 [right t0
§
arbitration depends on contract].)
28
OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS
2
Hudson Insurance company is not a party to the settlement agreement, did not accept an offer by
Plaintiff nor “communicate its agreement” to any terms of the contract. The Settlement Agreement
provides in paragraph 17 that the wn'tten provisions are the “entire agreement.” The “entire agreement”
does not include Hudson.
Put simply, Hudson is not and must not be bound by the tenns of this settlement agreement and
requests that, should the Conn issue any order on Plaintiff’s motion for attomey fees and costs, any relief
ordered on the motion not be issued as against Hudson.
3. Actions by the bond principal (MACE), including a judgment against the principal,
do not bind the Surety (Hudson).
10 Sureties on a bond have a legal right to avail themselves of all defenses that would be allowed
ll the principal and are generally in no worse position than he would be if sued separately. Flickinger v.
12 SWedlow Engineering Co. (1955) 45 Ca1.2d 388, 394.
13 “Judgment against the principal in a bond is not conclusive evidence against the surety. [..
.] A
l4 judgment by confession of the principal, or upon the testimony of witnesses, is not conclusive against the
15 sureties, and they may show that the principal was not liable.” Pica v. Webster (1 859) 14 Cal. 202, 203.
16 Even if the Settlement Agreement were equivalent to a confession ofjudgnent against MACE, it
l7 would not equate to a finding of liability against Hudson.
18 4. Conclusion
19 The Court is respectfully requested to refiajn fiom issuing any order on plaiufifi’s motion against
20 Hudson Insurance Company for all the reasons stated herein
21
22
Dated: 6 é ,2018. D4 /
TIMO‘EIKIY J. TOMLIN
23 Attorney for Defendant
HUDSON INSURANCE COMPANY
24
25
26
27
28
OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS
3
PROOF 0F SERVICE BY FACSIMILE AND US MAIL
ONLJ’IpbbJNI—i
[CCP §1013(a)]
I, KARIN S. MIRAL, declare that I am not a patty to this action, am over the age of 18 years,
maintain a business address at 68 Mitchell Blvd., Suite 135, San Rafael, California 94903-2046, County 0f
Marin, and that on the date shown below, I caused to be served the documents listed below on the persons
listed herein via facsimile to the numbers listed below and by placing the envelopes for collection and
mailing following our ordinary business practices. I am readily familiar with this business’ practice for
collecting and processing correspondence for mailing. On the same day that correspondence is placed for
10 and
collection mailing, it is deposited in the ordinary course of business with the United States Postal
ll Service in a sealed envelope with postage fully prepaid. The envelope(s) were addressed and mailed as
12 follows :
l3 DOCUMENTS SERVED: OPPOSITION BY HUDSON INSURANCE COMPANY TO
PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS
l4
15 SERVED UPON:
16 Alicia L. Hinton, Esq.
Law Offices 0f A.L. Hinton
17
1616 W. Shaw Ave., Suite B7
18 Fresno, CA 9371 1
Tel: (559) 691-6900
19 Fax: (559) 421-0373
Email: alicia@alhintonlaw.com
20
21 Jakrun S. Sodhi
Sodhi Law Group
22 1301 K Street, Suite F
23
Modesto, CA 95354
Tel: (209) 900-8200
24 Fax: (209) 900-8205
Email: M’QMbilavx-groupm
25
26
27
28
OPPOSITION BY HUDSON INSURANCE COMPANY T0 PLAINTIFF’S MOTION FOR ATTORNEY FEES AND CO STS
I declare under penalty of perjury that the foregoing is true and correct an t this oof of service was
bwm
executed on the date stated below,
DATED: June 6, 2018
at San Rafael, California
KARIN
.,.
S.
I
?flk/
MIRAL
7/
( f \
ONU'I
10
ll
12
l3
l4
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS
Preview
LAW OFFICES OF JOHN L. FALLAT Electronically Filed JOHN L. FALLAT (State Bar No. 114842) 6/6/2018 12:46 PM TIMOTHY J. TOMLlN (State Bar No. 142294) Superior Court of California 68 Mitchell B1vd., Suite 135 County of Stanislaus San Rafael, CA 94903-2046 Clerk of the Court Telephone: (415) 457-3773 By: Lindsey Stringfellow, Deputy Facsimile: (415) 457-2667 Attorney for Defendant HUDSON INSURANCE COMPANY SUPERIOR COURT 0F CALIFORNIA COUNTY 0F STANISLAUS 10 ll FRANCISCO MEDA, Case No. 2022500 12 Plaintiff, l3 ) OPPOSITION BY HUDSON vs. INSURANCE COMPANY TO l4 PLAINTIFF’S MOTION FOR ZYAD ALI MAADARANI, individually and ATTORNEY FEES AND COSTS 15 dba MACE MOTORS; HUDSON INSURANCE GROUP, a corporation; ) DATE: June 21, 2018 l6 WESTLAKE FINANCIAL INVESTMENT TIME: 8:30 am. SERVICES, LLC, a Califomia corporation; DEPT: 21 17 and DOES 1 through 20, inclusive, ) 18 Defendants. 19 i 20 1. Factual and Procedural Backgound 21 Hudson insurance company is the surety on the motor vehicle dealer bond of Mace Motors. 22 Plaintiff sued Hudson in this case pursuant to Vehicle Code §1 171 1(a). In plaintiff‘s inh-Oduction to his 23 motion, it isstated that “Defendants finally ageed to settle this matter for full compensation to Plaintifi‘ 24 ...”. (Motion, 13.2, lines 13-14). It also states that “the parties agreed that the matter of fees and costs 25 would be submitted to this Court for final detenm'nation. (See Exhibit 1).” (Motion, p.2, lines 15-16). 26 27 28 OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS 1 Exhibit 1 is a copy of a settlement agreement entered into “between Plaintifl‘ FRANCISCO MEDA and Defendant ZYAD ALI MAADARANI, individually and dba MACE MOTORS (jointly MN referred to as “MACE MOTORS”) and Defendant WESTLAKE SERVICES, LLC.” Hudson Insurance Company is not a Egg to the Settlement Agreement. Paragraph 3 of the mu‘llh Settlement Agreement provides that the Parties to the Settlement Agreement agree that Plaintiffs attorney fees and costs shall be resolved by motion to the Court. Since Hudson was not a party to the agreement, Hudson did not agee to such a determination by the Court. Also, Hudson did not settle with Plaintiff. Also, Hudson did not agree plaintiff was the “prevailing party” against it as set forth in paragaph 3. There is no siglature line for Hudson Insurance Company, nor did anyone sign the 10 ageemcnt on behalf of Hudson Insurance Company. Taken together, these facts show Hudson is not ll subject to the Settlement Agreement and particularly the terms agreeing that Plaintiff is the prevailing 12 party and that Plaintiffmay seek attorney fees against Hudson by motion. l3 2. Hudson is not bound by the Settlement Ageement since it is not a party to it. 14 It is b'asic contract law that only parties to an ageement are bound by the agreement. Every 15 contract requires consenting parties. (Sec Civi1.Code §§ 1550, 1565, 1 Witkin, Summary 11th Contracts 16 §116 (2018)). l7 The Judicial Council ofCalifornia Civil Jury Instruction 309 agrees: 18 309 Contract Formation—Acceptance Both an offer and an acceptance are required to create a contract. [Name of defendant] 19 contends that a contract was not created because the offer was never accepted. To overcome this contention, [name ofplaintiff] must prove both of the following: 20 1. That [name of defendant] agreed to be bound by the terms of the offer. [If [name of 21 defendant] agreed to be bound only on certain conditions, or if [he/she/it] introduced a new term into the bargain, then there was no acceptance]; and 22 2. That [name of defendant] communicated [his/her/its] agreement to [name ofplaintiff]. If [name ofplaintiff] did not prove both of the above, then a contract was not created. 23 This is also reflected in the law of arbitration ageements: 24 “Generally speaking, one must be a pany to an arbitration ageement to be bound by it. 25 “The strong public policy in favor of arbitration does not extend to those who are not 26 parties to an arbitration ageement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration. [Citation.]” (Benasra v. Marciano (2001) 27 92 Ca1.App.4th 987, 990, 112 Cal.Rptr.2d 358; see also Code Civ. Proc., 1281 [right t0 § arbitration depends on contract].) 28 OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS 2 Hudson Insurance company is not a party to the settlement agreement, did not accept an offer by Plaintiff nor “communicate its agreement” to any terms of the contract. The Settlement Agreement provides in paragraph 17 that the wn'tten provisions are the “entire agreement.” The “entire agreement” does not include Hudson. Put simply, Hudson is not and must not be bound by the tenns of this settlement agreement and requests that, should the Conn issue any order on Plaintiff’s motion for attomey fees and costs, any relief ordered on the motion not be issued as against Hudson. 3. Actions by the bond principal (MACE), including a judgment against the principal, do not bind the Surety (Hudson). 10 Sureties on a bond have a legal right to avail themselves of all defenses that would be allowed ll the principal and are generally in no worse position than he would be if sued separately. Flickinger v. 12 SWedlow Engineering Co. (1955) 45 Ca1.2d 388, 394. 13 “Judgment against the principal in a bond is not conclusive evidence against the surety. [.. .] A l4 judgment by confession of the principal, or upon the testimony of witnesses, is not conclusive against the 15 sureties, and they may show that the principal was not liable.” Pica v. Webster (1 859) 14 Cal. 202, 203. 16 Even if the Settlement Agreement were equivalent to a confession ofjudgnent against MACE, it l7 would not equate to a finding of liability against Hudson. 18 4. Conclusion 19 The Court is respectfully requested to refiajn fiom issuing any order on plaiufifi’s motion against 20 Hudson Insurance Company for all the reasons stated herein 21 22 Dated: 6 é ,2018. D4 / TIMO‘EIKIY J. TOMLIN 23 Attorney for Defendant HUDSON INSURANCE COMPANY 24 25 26 27 28 OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS 3 PROOF 0F SERVICE BY FACSIMILE AND US MAIL ONLJ’IpbbJNI—i [CCP §1013(a)] I, KARIN S. MIRAL, declare that I am not a patty to this action, am over the age of 18 years, maintain a business address at 68 Mitchell Blvd., Suite 135, San Rafael, California 94903-2046, County 0f Marin, and that on the date shown below, I caused to be served the documents listed below on the persons listed herein via facsimile to the numbers listed below and by placing the envelopes for collection and mailing following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for 10 and collection mailing, it is deposited in the ordinary course of business with the United States Postal ll Service in a sealed envelope with postage fully prepaid. The envelope(s) were addressed and mailed as 12 follows : l3 DOCUMENTS SERVED: OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS l4 15 SERVED UPON: 16 Alicia L. Hinton, Esq. Law Offices 0f A.L. Hinton 17 1616 W. Shaw Ave., Suite B7 18 Fresno, CA 9371 1 Tel: (559) 691-6900 19 Fax: (559) 421-0373 Email: alicia@alhintonlaw.com 20 21 Jakrun S. Sodhi Sodhi Law Group 22 1301 K Street, Suite F 23 Modesto, CA 95354 Tel: (209) 900-8200 24 Fax: (209) 900-8205 Email: M’QMbilavx-groupm 25 26 27 28 OPPOSITION BY HUDSON INSURANCE COMPANY T0 PLAINTIFF’S MOTION FOR ATTORNEY FEES AND CO STS I declare under penalty of perjury that the foregoing is true and correct an t this oof of service was bwm executed on the date stated below, DATED: June 6, 2018 at San Rafael, California KARIN .,. S. I ?flk/ MIRAL 7/ ( f \ ONU'I 10 ll 12 l3 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPPOSITION BY HUDSON INSURANCE COMPANY TO PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS