Sweeney

The claimants against a contractor’s license bond (Bus. & Prof. Code, §§ 7071.5-7071.14) appeal from an order awarding the interpleading surety its costs and attorneys’ fees out of the penal sum of the bond.

Plaintiff Sweeney, as administrator of five labor-management trust funds for operating engineers, sued defendant McClaran, a contractor, for employee fringe benefit payments which McClaran, as employer, allegedly failed to pay into the trust funds as required by a collective bargaining agreement. The complaint included a cause of action against defendant Surety Company of the Pacific (“Surety”) to enforce Surety’s liability on a $2,500 contractor’s license bond issued by it in favor of the State of California, as obligee, naming McClaran as principal. Such a bond (or a cash deposit) is required by Business and Professions Code sections 7071.5 and 7071.6 as a condition precedent to the issuance, reinstatement, reactivation, or renewal of a contractor’s license.

*827 Pursuant to section 386 of the Code of Civil Procedure, Surety filed a first amended cross-complaint in interpleader against Sweeney, McClaran and other claimants on the bond. The other claimants were…

I concur in the judgment insofar as it reverses the trial court’s order and remands the case for redetermination of attorney fees and costs. The application to this case of Code of Civil Procedure section 386.6 creates obvious inequities; their repetition can be prevented only by the Legislature.

I disagree with the majority’s conclusions (reached without discussion) concerning the litigation activities which the trial court may properly consider in fixing the amount of attorney fees and costs to be recovered by Surety. The trial court should not be required to limit its award to those of Surety’s attorney fees and costs which are attributable to the interpleader cause of action in Surety’s amended cross-complaint. Section 386.6 expressly allows the interpleading party his reasonable costs and attorney fees “incurred in such action.”

The “action” mentioned in section 386.6 is not limited to an action commenced by a complaint in interpleader but includes also actions commenced against a defendant who—as here—subsequently files a cross-complaint in interpleader. (See Code Civ. Proc., §§ 386, 386.5.) In other words, section 386.6 authorizes a discretionary award of attorney fees…

Lazar, Giannini & Gurney, Guy T. Gurney and Janet M. Holland for Cross-defendants and Appellants.

Acret & Perrochet and Geoffrey R. Hudson for Defendant, Cross-complainant and Respondent.

No appearance for Defendant, Cross-defendant and Respondent.

OPINION

PARAS, J.

The claimants against a contractor's license bond (Bus. & Prof. Code, §§ 7071.5-7071.14) appeal from an order awarding the interpleading surety its costs and attorneys' fees out of the penal sum of the bond.

Plaintiff Sweeney, as administrator of five labor-management trust funds for operating engineers, sued defendant McClaran, a contractor, for employee fringe benefit payments which McClaran, as employer, allegedly failed to pay into the trust funds as required by a collective bargaining agreement. The complaint included a cause of action against defendant Surety Company of the Pacific ("Surety") to enforce Surety's liability on a $2,500 contractor's license bond issued by it in favor of the State of California, as obligee, naming McClaran as principal. Such a bond (or a cash deposit) is required by Business and Professions Code sections 7071.5 and 7071.6 as a condition precedent to the issuance, reinstatement,…