Case Number: 12. GC013083    Hearing Date: August 22, 2014    Dept: B

12. GC013083
AMWEST SURETY INS. CO vs. K.C. PERRY, INC.
Motion for Release of Funds

This case arose from the Plaintiff’s claim that the Defendants breached a contract by failing to pay $120,000 arising from construction work. The Internal Revenue Service than made a claim on the money allegedly owed by the Defendant, K.C. Perry, to the Plaintiff. The Defendant, K.C. Perry, then filed a Cross-Complaint in Interpleader regarding the $55,067.88 that was claimed by the Plaintiff and the IRS.

This hearing concerns the motion of a non-party, Wayne Seminoff Co., to obtain the money. The papers submitted, however, are defective.
First, the motion is defective because it is not accompanied by any admissible evidence. The moving papers include a number of documents attached as exhibits. Under Evidence Code section 1401, authentication of a writing is required before it may be received in evidence. Evidence Code section 1400 provides that authentication of a writing means

a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or
b) the establishment of such facts by any other means provided by law.

A review of the motion reveals that it does not include any evidence to authenticate the writings in the exhibits. Accordingly, the Court declines to receive the documents attached to the papers into evidence.
Second, there is no basis to recognize Wayne Seminoff Co. in this Court. It purports to act on behalf of the Plaintiff, Amwest Surety Insurance Company. However, there is no evidence that the Plaintiff assigned its rights in the case or that Wayne Seminoff Co. was substituted in place of the Plaintiff. The inadmissible document in exhibit I indicates that Wayne Seminoff Co. is an agent. There is no evidence that it is an agent, and further, there is no basis to permit an agent to appear on behalf of a party.
Third, the papers offer no legal authority to release the funds to Wayne Seminoff Co. K.C. Perry, Inc. deposited the funds when it filed its Cross-Complaint in Interpleader to plead that there were numerous claims to the funds. A review of the Court file reveals no trial or adjudication to determine the proper recipient of the claims.
The pending motion appears to be an attempt to adjudicate the Cross-Complaint in Interpleader through a noticed motion based on evidence, i.e., as of it is a motion for summary judgment on the Cross-Complaint in Intervention. The motion does not comply with the procedures in CCP section 437c to obtain a summary judgment on the Cross-Complaint-in-Intervention.

Therefore, the Court denies the motion. Further, the Court decline to recognize Wayne Seminoff Co. to appear in this Court, unless it presents evidence that it was assigned the right to these claims or it substitutes in place of Amwest Surety Insurance.