Mark Briggs & Associates, Inc. v. Kinestar, Inc.

Defendants appeal from a judgment against a corporate surety entered pursuant to former Code of Civil Procedure section 1058a (presently Code Civ. Proc., § 996.440). The judgment was the culmination of plaintiff’s efforts to recover damages from defendants for an alleged breach of contract and for services performed. We affirm.

Defendants failed to answer plaintiff’s complaint and on January 21, 1981, a default judgment was entered. On February 6, 1981, plaintiff recorded an abstract of judgment in Sacramento County. On February 10, 1981, defendant Kinestar transferred by deed recorded February 17th certain real property situated in Sacramento County. Plaintiff did not learn of the transfer until March and contacted the title insurer, who requested time to pursue satisfaction from defendants or possibly to “bond around the lien.”

On March 17, 1981, defendants moved to set aside the default and to quash service of the summons. Without advising plaintiff, on April 1, 1981, defendants, or the title insurer who had failed to discover the abstract of judgment, recorded an undertaking with defendant Ohio Casualty as surety for the judgment lien created by plaintiffs abstract…