Magnum Defense, Inc. v. Frontier Insurance

MEMORANDUM *

Magnum Defense, Inc. (“Magnum”) appeals from the district court’s grant of summary judgment in favor of Frontier Insurance Company (“Frontier”). Frontier cross-appeals the district court’s denial of attorneys fees. We affirm in part, reverse in part and remand for further proceedings.

*904 The district court correctly construed the bond as an advance payment bond, rather than as a performance bond. The terms of the bond, although not a model of clarity, do not bear the traditional hallmarks of a performance bond, and contain only passing references to the underlying contract. This is insufficient, as a matter of California law, for the bond to be construed as a performance bond. Under California law, for one document to incorporate another document by reference, “the reference to the incorporated document must be clear and unequivocal and the terms of the incorporated document must be known or easily available to the contracting parties.” Cariaga v. Local No. 1184 Laborers Int’l Union of N. Am., 154 F.3d 1072, 1074 (9th Cir.1998). If the reference is amorphous or fails to guide the reader to the incorporated document, there is no incorporation by reference. Chan v.…