I. BACKGROUND This construction defect breach of contract case stems from Plaintiff/Cross-Defendant Douglas Gabriel (“Gabriel”) filing a Complaint on November 18, 2024 alleging five causes of actions concerning defects on remodeling work performed at 1942 Abinante Lane, San Jose, California 95124 (“Subject Property.”). (Complaint). On May 6, 2025, Plaintiff filed a First Amended Complaint. Defendant/Cross Complainant Donna Cutuli (“Cutuli”) filed a Cross-Complaint was filed against Cross Defendant DNG Builders Group LLC (“DNG”).

Cross-Complainant alleges that Defendant The North River Insurance Company (“North River”) are liable to Cutuli in the full amount of a $25,000.00 bond. Cross Defendant DNG, the bond principal disputes the Cross-Complainant’s claims. North River issued a contractor’ licensing bond in the amount of $25,000.00 (No. 04- CF622534)(“Bond”), effective October 4, 2023, with a cancellation date of September 4, 2025 (Declaration of Clair Nail; Exhibit 1).

On January 5, 2026, Defendant Cutuli filed a notice of entry of judgment.

On February 13, 2026, Defendant North River filed this motion to deposition bond amount; cancel and exonerate bond; discharge liability; and for attorney fees and cost; and to be dismissed. The motion was accompanied by a proof of service indicating electronic mail service the plaintiff’s counsel and parties on February 12, 2026. Prior to filing the motion, North River met-and-conferred with Cross-Defendant, bond principal, and counsel for all parties about entering a stipulation rather than incurring time and cost for this present motion. Although Cross- Complainant agreed, North River did not receive a response from the bond principal.

The motion is unopposed. Per Code of Civil Procedure section 1005(b) opposition papers were due on July 29, 2026. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489).

On February 27, 2026, Defendant Cutuli filed a notice of non-opposition of the North River’s motion.

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The Court has carefully reviewed the moving papers, notice and memorandum of points and authorities, and Declaration of Andrew Haas (totaling 11 pages); Declaration of Clarisa Nail and attached Exhibit 1; Defendant Cutuli’s notice of non-opposition (totaling 2 pages); proof of service; and the pleadings.

II. LEGAL STANDARD Pursuant to Code of Civil Procedure section 386.5 provides: 11

Where the only relief sought against one of the defendants is the payment of a stated amount of money alleged to be wrongfully withheld, such defendant may, upon affidavit that he is a mere stakeholder with no interest in the amount or any portion thereof and that conflicting demands have been made upon him for the amount by parties to the action, upon notice to such parties, apply to the court for an order discharging him from liability and dismissing him from the action on his depositing with the clerk of the court the amount in dispute and the court may, in its discretion, make such order.

Code of Civil Procedure section 386.6 provides:

A party to an action who follows the procedure set forth in Section 386 or 386.5 may insert in his motion, petition, complaint, or cross complaint a request for allowance of his costs and reasonable attorney fees incurred in such action. In ordering the discharge of such party, the court may, in its discretion, award such party his costs and reasonable attorney fees from the amount in dispute which has been deposited with the court. At the time of final judgment in the action the court may make such further provision for assumption of such costs and attorney fees by one or more of the adverse claimants as may appear proper.

III. ANALYSIS Here, Defendant North River seeks the following: award of attorney’s fees and cost, order to deposit the full bond penal sum amount in dispute, fully cancel and exonerate the bond and dismiss North River with prejudice from liability upon depositing the bond amount.

A. ATTORNEY’S FEES AND COST Defendant North River seeks attorney’s fees in the amount of $2,743.50 and costs in the amount of $85.13 under Code of Civil Procedure section 386.6. (Motion, p. 4-5). Counsel Andrew Haas attests to have spent 8.3 hours preparing the moving papers at an hourly rate of $295.00. (Declaration of Haas, ⁋4; Exhibit 1). Mr. Haas also anticipates spending an hour to file any necessary reply brief and appearing for the motion. (Id.).

The Court GRANTS awarding attorney’s fees in the amount of $2,448.50 for 8.3 hours of work at the hourly rate of $295.00. The Court DENIES the request for an additional hour of time amounting to $295.00 as there was no opposition or reply brief, and an appearance is prospective.

The Court GRANTS the cost of $85.13 for filing this motion.

B. DEPOSIT North River avers it has met its requirements under Code of Civil Procedure section 386.5 and asserts that it is merely a shareholder with no interest in the penal sum of the $25,000.00 bond. (Declaration of Nail ⁋ 4). Cross-Complainant DNG was provided notice and the motion is unopposed.

The Court GRANTS the request to deposit the full bond penal sum, $25,000 less attorney fees and costs of 2,533.63 equals $22,466.37.

C. DISCHARGE OF LIABILITY UPON DEPOSIT North River seeks to have the bond be fully cancelled and exonerated upon deposit under Code of Civil Procedure section 995.430 and states that the bond “remains in force and effect until the earliest of the following events . . . (b) The purpose for which the bond was given is satisfied . . . .” (Motion, p. 5). On October 4, 2023, North River, License Bond No. 04-CF622534, on behalf of DNG, issued a as bond principal, in the penal sum of $25,000 with a cancellation date of September 4, 2025. (Declaration of Nail, ⁋ 2; Exhibit 1).

Defendant Cutuli claims $25,000.00 in bond, which DNG disputes. (Id., at ⁋ 3). North River has no interest in the amounts claimed and asserts it is merely a stakeholder that is willing and ready to deposit the bond, less attorney’s fees and costs. (Id., at ⁋ 4). Upon depositing the bond, North River argues that it will have satisfied the purpose for which the bond was given. Thus, North River seeks an order discharging it from liability and being dismissed with prejudice upon depositing the bond amount less fees and cost.

The Court GRANTS the request that upon deposit, North River will be discharged from liability in this matter, and dismissed with prejudice.

IV. CONCLUSION Based on the foregoing, the Court GRANTS the request for attorney’s fees and cost in the total amount of $2,533.63 ($2,448.50 in attorney’s fees and $85.13 in cost).

The Court GRANTS the request to deposit the full bond penal sum, $25,000 less attorney fees and costs of 2,533.63 equals $22,466.37.

The Court GRANTS the request that upon deposit the bond will be exonerated and North River will be dismissed in the matter with prejudice.

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