American Buildings Co. v. Bay Commerical Construction, Inc.

Defendants Bay Commercial Construction, Inc., and AmWest Surety Insurance Co., appeal from a judgment rendered after the trial court granted plaintiff American Buildings Company’s motion for summary judgment.

Plaintiff brought this action to recover $41,775 on a contractor’s payment bond for materials supplied to a now bankrupt subcontractor on a public works project commissioned by the City of Roseville.

Civil Code section 3098 requires that a person, within 20 days of furnishing labor or materials for a public work, must serve a “preliminary 20-day notice” in order to assert a claim for payment against a payment bond. Section 3252, subdivision (b), provides an exception if notice “was not given as provided in Section 3098,” providing written notice was given the surety and bond principal within 15 days after recordation of the notice of completion.

Plaintiff filed a notice entitled “Preliminary Notice on Payment Bond” more than 20 days after furnishing the materials, except for the minor amount of $625, and was precluded from asserting a claim under section 3098 for the balance of $41,150. However, the trial court ruled the preliminary notice complied with the notice…