Nat. Tech. Systems v. Comm'l Contractors

Ramseyer & Kuhlman, David B. Kuhlman, Craig A. Ramseyer, San Diego and Laura K. Gantney, for Objector and Respondent.

Plaintiff and appellant National Technical Systems (plaintiff or the subcontractor) appeals a postjudgment order denying its motion to summarily enforce a judgment against United Pacific Insurance Company (the surety), the surety on a stop notice release bond.

The essential question presented is whether plaintiff is entitled to enforce a money judgment against the surety pursuant to the summary proceedings provided by the Bond and Undertaking Law (Code Civ. Proc, §§ 995.010 et seq., 996.440) [1] for recovery on the bond.

Summary enforcement may be had only if a bond is "given in an action or proceeding." (§ 996.440, subd. (a).) Here, the stop notice release bond was not given in an action or proceeding because the bond was issued prior to the filing of the lawsuit. Because the issuance of the bond preceded the filing of the lawsuit, the surety should have been joined as a party to the action. (§ 996.430, subd. (a).)

Because the instant bond was not "given in an action or proceeding" in that it preceded the filing of the action, the trial court…