Bezaire v. Fidelity & Deposit Co.

[891]

Opinion

GUSTAFSON, J.

In a prior action in the municipal court, plaintiff sought to recover $1,145.41 for labor and services rendered. A writ of attachment was issued against two defendants, one a corporation and one a partnership, each bearing the name of Computer Graphics, and assets of the defendants were seized. Those assets were released when the defendant in this action (Fidelity and Deposit Company of Maryland, hereinafter referred to as the surety) provided the attaching officer with an undertaking pursuant to section 540 of the Code of Civil Procedure. Plaintiff ultimately recovered judgment in the amount of $1,145.43 against the two defendants whose assets were attached, levied execution against those defendants which was returned unsatisfied, made demand upon the surety for payment of the judgment pursuant to the undertaking and filed this action when the demand was refused.

Three purported causes of action were embodied in the complaint against the surety. The first, for declaratory relief, is of no moment in this appeal. The second was for payment of the judgment pursuant to the undertaking. The third was for damages for fraud. It sought recovery of $1,147.43 (the amount of the judgment which the surety had undertaken to pay), $1,000 for attorney fees for bringing the instant action and $100,000 for punitive damages.

Plaintiff obtained summary judgment against the surety on the second cause of action. At the same time, judgment was entered on the third cause of action in favor of the surety. This was the result of the court’s having previously stricken the entire third cause of action on motion of the surety. Plaintiff appeals from the judgment entered with respect to his third cause of action.

Preliminarily we note that the surety defends the judgment from which the appeal is taken on the ground that the third cause of action did not state a cause of action. The surety’s motion to strike was not made on that ground and the surety did not interpose a general demurrer. A general demurrer, not a motion to strike, is the appropriate method of attacking the sufficiency of a pleading.

(White Lighting Co.

v.