Bailey-Sperber, Inc. v. Yosemite Insurance

Opinion

KINGSLEY, Acting P. J.

Plaintiff appeals from an order dismissing its complaint after a demurrer thereto had been sustained without leave to amend. For the reasons set forth below we reverse the order.

Plaintiff, doing business as Century Landscape Contractors (Century), received a contract to perform certain work, including landscaping, for Pierce College, a public entity. It entered into a subcontract with S. J. Pensanti Masonry Contractor to perform part of the work called for under that contract. Thereafter, Mr. Pensanti died; no work was performed under the subcontract; and Centuiy relet the subcontract at a loss to itself of over $5,000. Century sued Angela, the administratrix of

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Mr. Pensanti’s estate, S. J. Pensanti Masonry Contractor, and Yosemite Insurance Company (Yosemite). The first cause of action, against the administratrix and Masonry Contractor,

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set forth a cause of action for breach of the subcontract. No question concerning that cause of action is involved in this appeal. The second cause of action alleges that Yosemite had issued, on behalf of Pensanti and his contracting company, the statutory bond required by section 7071.5 of the Business and Professions Code,

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and sought recovery of the amount ($2,500) of that bond. Yosemite demurred; the demurrer was sustained without leave to amend

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and dismissal followed. We reverse.

Section 7071.5 reads as follows: “The contractor’s bond or cash deposit required by this article shall be a bond issued by an admitted surety in favor of the State of California, in a form acceptable to the registrar and filed with the registrar by the licensee or applicant, or in lieu thereof a cash deposit posted with the registrar. Such contractor’s bond or cash deposit shall be for the benefit of (a) any person damaged as a result of a violation of this chapter by the licensee, (b) any person damaged by fraud of the licensee in the execution or performance of a contract, and (c) any employee of the licensee damaged by the licensee’s failure to pay wages or fringe benefits.”