Administrative Management Services, Inc. v. Fidelity & Deposit Co.

Appellant William Cartwright appeals from an order granting a motion to strike his “special answer” which he filed as a third party defendant pursuant to Code of Civil Procedure section 428.70. We conclude the appeal lies and that the trial court erred in striking the answer.

In 1971, in connection with the marriage dissolution proceedings of Adeline and Joseph Zamot, appellant Cartwright was appointed by the superior court to act as a receiver of the Zamots’ private convalescent hospital. A receiver’s bond (Code Civ. Proc., § 567) was provided by the defendant in this case, Fidelity and Deposit Company of Maryland (F&D). In his capacity as receiver, Cartwright apparently caused the hospital to breach a contract with the plaintiff in this case, Administrative Management Services, Inc. (AMS). In 1973 AMS obtained a default judgment against Cartwright for approximately $13,000. The judgment recites that Cartwright, as receiver, failed and refused to faithfully execute the duties of his trust according to law.

On March 14, 1977, plaintiff AMS filed the instant action against defendant F&D to recover, on the receiver’s bond, the judgment against Cartwright which remained…