Opinion

Brown v. Surety Co. of Pacific

  • 122 Cal. App. 3d 614
  • 176 Cal. Rptr. 143
  • 1981 Cal. App. LEXIS 2054
Court
California Court of Appeal
Filed
Aug 14, 1981
Status
Published
Author
Wiener
On the bench
Staniforth, Wiener
Cited by
5 cases
Authority
More cited than 9.6%

The opinion

WIENER, J.

I respectfully dissent.

The Contractors License Law (Bus. & Prof. Code, § 7000 et seq.) 1 is consumer oriented legislation enacted to protect the public from incompetent and dishonest contractors. (See, e.g., Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 150 [ 308 P.2d 713 ]; Walker v. Thornsberry (1979) 97 Cal.App.3d 842, 848 [ 158 Cal.Rptr. 862 ] (dis. opn. of Reynoso, J.).) Relying on the absence of precedent, the majority narrowly construe the legislation to deny recovery to a person bilked by a building contractor who used his license to borrow funds for a specific construction project. In my view, Brown is entitled to recover against the surety because the actions of Edwards, as a licensed contractor holding himself out as the building contractor of a specific project within the meaning of section 7026, fall within the conduct proscribed by section 7108, i.e., he diverted funds received for the completion of a specific construction project.

The majority reject a common sense interpretation of the statute by adding the condition that a contractor must be the contractor on the job before recovery against the bond will be permitted. Neither the legislative history nor the words of the statute require this interpretation. It is indeed a puzzling anomaly when a member of the public will receive the benefit of the contractor’s license bond only after the contractor has a job, but not before, even though the nature of the fraud may be identical. Presumably, the majority feel that in order to effectuate the purpose of the legislation, it is necessary to terminate the liability of the surety when the contractor’s sting is so successful that he is able to convince an innocent lender not only that he is the contractor on a certain project, but also into advancing funds for that project. I have difficulty understanding why the surety should be the beneficiary of the greater fraud and the defrauded individual, for whom the statute was written, the beneficiary of only the lesser fraud. I would hope if the scam were to reach criminal proportions and the contractor’s license revoked or suspended (see §§ 475 and 490), the majority would have a different opinion. Because the evidence establishes Edwards was acting as a li *624 censed contractor and Brown reasonably relied upon his status within the meaning of the statute, I would affirm the judgment.

A11 statutory references are to the Business and Professions Code unless otherwise specified.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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