Superior Court of California County of Orange

Case Number: 30-2010-0037S208-CU-BC-C]C

~'" ..l!il=-

j~~11 .a"f::l;7;~ =~"'I&I:S 1.51]--:s =~ .,!~~a =.loIr.:3g Jl .. fa •• ; of :r§.·~ E~~~&: O&iE-o ~S;;

.!3 ....

1 LAW OFFICES OF HAUSMAN & SO SA, LLP Carlos E. Sosa, Esq., Bar No. 94387

FILED SUPERIOR COURT OF CALIFORNIA

COUNTY OF ORANGE CENTRAL JUSTICE CENTER 2 Larry D. Stratton, Esq., Bar'No. 116955

18757 Burbank Boulevard, Suite 305 Tarzana, California 91356-6329 Telephone: (818) 654-9000

MAY 25 2010

ALAN C~L.SO:. ~otthe Court 4

5

6

7

8

9

10

11

12,; ;

13 ! I

14

15

16

17

18

19

20

21 i :

22i

23

24

25

Facsimile: (818) 654-9050

Attorneys for: Plaintiff, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, as successor

~!J

in interest to SEABOARD SURETY COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE COUNTY, CENTRAL JUSTICaO=201RO

TRAVELERS CASUALTY AND SURETY ) COMPANY OF AMERICA, as successor in ) interest to SEABOARD SURETY ) COMPANY, )

Plaintiff,

-vs-

ROBERT 1. MACLEAN, an individual; and DOES 1 through 20, inclusive,

Defendants.

) ) ) ) ) ) ) ) )

----------~-------------)

CASE NO. 00375208 UNLIMITED CIVIL

COMPLAINT FOR: 1. BREACH OF INDEMNITY 2. REIMBURSEMENT

JUDGE DAVlO 1. MCEACHEN DEPT. C21

Plaintiff, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, as

successor in interest to SEABOARD SURETY COMPANY ("TRAVELERS"), alleges:

COMMON ALLEGATIONS

1. IDENTIFICATION OF THE PARTIES

(a) Plaintiff, TRAVELERS, is now and at all times mentioned herein was a

corporation, and at all times mentioned has been and continues to be authorized to transact a general

surety business in the State of California.

26

27

1/1

/II

28;; 1//

1 COMPLAINT

T ravelers\Maclean\Pldg\Com plaint

"'Ill ~~O'.

1i~l~ OCS..iI'l .... ; .: .. ;~ '" £ '" 1j--; 6C 6C == ...... =.j~~e ~a"Q '; -= 8:::: ,g ~-&.Ei Bl:!aI .. -S

~~!i!~ is:&;~ .!3'"

1 (b) Plaintiff is informed and believes and thereon alleges that defendant,

2 ROBERT J. MACLEAN, is an individual residing in the County of Orange, State of California, and

3 who has executed written contracts of indemnity in favor of plaintiff as will be more fully described

4 hereinafter.

5 2. VENUE

6 ; Venue is proper in the Orange County Superior Court in that plaintiff is informed and

7 believes and thereon alleges that defendant, ROBERT 1. MACLEAN, resides at 20 Waltham Road,

8 Ladera Ranch, California 92694.

9

10

11

12

13'; I' ;'

14

15

16

17

18

19 ; :;

20

21

22

23

24 , ',' 1

25

3. AGENCY ALLEGATION

At all times herein mentioned, the defendants and each of them, were the agents,

servants and employees of each of the remaining defendants. and were at all times acting within the

purpose and scope of said agency and employment.

4. DOE ALLEGATION

The true names and capacities, whether individual, corporate, associate, or otherwise

of the defendants Do~s 1 through Does 20 inclusive, are unknown to plaintiff at this time and,

plaintiff therefore sues said defendants by such fictitious names. When the true names and

capacities of said defendants are ascertained, plaintiff will amend this Complaint accordingly.

Plaintiff is informed and thereon believes and alleges thereon that each of the said defendants

designated as a Doe is in some manner responsible for the events and happenings herein referred to

and caused injury and damage proximately thereby to the plaintiffs as herein alleged.

5. IDENTIFICATION OF DOCUMENTS

Application and Indemnity Agreement ("INDEMNITY AGREEMENT',). Attached

hereto and labeled Exhibit" I" is an Application and Indemnity Agreement and said Application and

Indemnity Agreement is incorporated by reference as iffully set forth into this Complaint wherever

referenced.

26 1/ /

27 1/ /

28 II/

2 COMPLAINT

T ravelers\Maclean\Pldg\Complaint

1

2· I

3

4 6.

FIRST CAUSE OF ACTION

BREACH OF INDEMNITY AGREEMENT,

DIRECTED AGAINST ALL DEFENDANTS

Paragraphs 1 through 5 ofthe Common Allegations are incorporated by reference as

5 though set forth in full at this point.

6 7. On or about January 31, 1995, defendants, ROBERT 1. MACLEAN, an individual;

7 and DOES 1 through 20, inclusive (hereinafter referred to collectively as "INDEMNITORS"), made

8 written application to TRAVELERS, as surety for a Bond Upon Qualifying in the matter of The

91: Conservatorship of Maria Luisa Hevia-Suarez, conservatee, Santa Clara Superior Court Case No.

10 PR131386.

11 8. . In consideration for the payment of a premium and in consideration of the execution ~'"

~ ~ ~ 12 of the INDEMNITY AGREEMENT by these defendants, TRAVELERS SURETY issued its l~~I5! ~"Cif"l.J,! 13 Conservator Bond No. 293012-95. Said Bond was issued at the express request of defendants, I'I:;;::S~

11'~ ~ ~ 14 INDEMNITORS. A true and correct copy of the Bond is attached hereto marked as Exhibit "2" and CII=~,-"e =.:.l;;~ .. "Q=uo=e~ . b tl of <i i. .- 15' Y this reference is incorporated herein. Ej~~~ o to- CIS Eo< 16 9. The penal sum of the Conservator Bond referenced herein above is $4,000,000.00. ~&l'" j ...

17 The Bond was issued on or about February 7, 1995.

18 10. INDEMNITORS have also failed to pay past due premiums in the amount of

19 $7,220.00. A premium in the amount of $3,610.00 is due on the seventh day of February of each I

2 a year commencing on February 7, 2008. Consequently, TRAVELERS will seek recovery for any

21 additional unpaid premiums according to proof at time of trial.

22 11. TRAVELERS received various claims against its Conservator Bond from SALLY

23 CICERONE, as Successor Conservator of the Conservatorship Estate of Maria Luisa Hevia-Suarez,

24, who alleged that the principal on the above-named Conservator Bond failed to honor their

25 obligations pursuant to California law.

26 12. TRAVELERS made several demands upon defendants, INDEMNITORS, and each

27 of them, to honor their obligations and protect TRAVELERS and hold it harmless from all loss and

28 i' expense.

3 COMPLAINT

Travelers\Maclean\Pldg\Complaint

1 l3. Defendants, INDEMNITORS, have refused and continue to refuse to honor their

2 obligations under the Indemnity Agreement, Exhibit "1," to this Complaint.

3 14. Following an independent investigation of the claims received, TRAVELERS

4 I proceeded to enter into a good faith settlement by issuing its check number 1657639 dated

5: i December 16, 2009 in the sum of $250,000.00 payable to SALLY CICERONE, as Successor 1 ~

61: Conservatorship of Maria Luisa Hevia-Suarez. A true and correct copy of said settlement check is

7 attached hereto marked as Exhibit "3" and by this reference are incorporated herein.

8 15. Defendants, INDEMNITORS, and each of them, are obligated pursuant to the

9 INDEMNITY AGREEMENT to reimburse TRAVELERS for the losses it has sustained plus

10 interest, at the maximum rate allowed by law, from the date the check was issued.

11 16. TRAVELERS was required and did employ counsel to protect its interests as set forth es~ -: ~ ~ 12 within this complaint. l~~~:7: o1J ~:::l ~ ~ 13 17. Defendants, INDEMNITORS, are obligated to TRAVELERS in the sum of !i~'!:~~

~! i ~~ 14 $250,000.00, attorney's fees and costs in the sum of $13,030.99 incurred in the investigation and =.111:;"'.!! ... ~= j ~ l:§ 15 i i defense of the claims received prior to commencement of this action, along with attorney's fees a I: .!! ~

r:cl ~ ., r: ~ E ~ Eo< 16 incurred in the prosecution of this action, investigation fees, accounting fees, court costs, interest, .:3~

1 7 and past due premiums in the sum of $7,220.00, as wen as any additional premiums that may

18 become due and owing based upon an anniversary date of February 7,2008 according to proof at

19 time of trial.

20 SECOND CAUSE OF ACTION

21 REIMBURSEMENT

22i: DIRECTED AGAINST ALL DEFENDANTS

23 18. Plaintiff refers to paragraphs 1 through 17, inclusive, of the Common Allegations and

24 First Cause of Action and incorporates the same as though set forth in full at this point.

25 19. Pursuant to Civil Code §2847, defendants, INDEMNITORS, and each of them, are

26 obligated to reimburse TRAVELERS for its loss, costs and expenses, including counsel fees,

27,' incurred as a result ofthe execution of the Conservator Bond and the losses sustained as a result of

28 claims received against said bond.

4 COMPLAINT

Travelers\Maclean\Pldg\Complaint

1 20. Defendants, INDEMNITORS, agreed to pay TRAVELERS upon demand, an amount

2 sufficient to discharge any daim made against TRAVELERS on account of claims made against

3 TRAVELERS. Defendants, INDEMNITORS, have failed to pay TRAVELERS as required by the

4 contract of indemnity resulting in an express breach of the INDEMNITY AGREEMENT attached

5 hereto as Exhibits" 1."

6

7

8

11

18

19

20

21

22j

23

24

21. California Civil Code Section 2847 states in pertinent part:

"If a surety satisfies the principal obligation,

or any part thereof whether with or without legal

proceedings, the principal is bound to reimburse what

he has disbursed, including necessary costs and

expenses; ... "

22. TRAVELERS is also incurring attorney's fees, costs, and expenses in the prosecution

of this lawsuit and pursuant to the INDEMNITY AGREEMENT and Civil Code Section 2847 is

entitled to recover the full amount ofthese damages against defendants, INDEMNITORS, and each

of them. TRAVELERS will ask leave of Court at time of trial to prove-up the total amount of its

attorney's fees, costs, and expenses incurred in the prosecution of this action for indemnity and

reimbursement.

WHEREFORE, Plaintiff, TRAVELERS CASUALTY AND SURETY COMPANY OF

AMERICA, as successor in interest to SEABOARD SURETY COMPANY, prays for judgment as

follows:

ON ALL CAUSES OF ACTION:

1.

2.

3.

For damages in the sum of $250,000.00;

For interest at the maximwn rate allowed by law from the date of each payment;

Past due premiums in the amount 0[$7,220.00.; plus all additional premiums which

25 may become due on each successive anniversary date of February 7, 2008;

26 4. For costs, expenses and attorney's fees incurred in investigating the claims against

27 ! i the Conservator Bond prior to commencement of this action;

28 / /I

5 COMPLAINT

Travelers\Maclean\Pldg\Complaint

~tI} ...:I~O\ ~ ~ N

J~~~&l <i!li:=l~; =OICI'o il>-s ..!lE~1iC =~ co ..... t! §-e

,0(- ....

-s=a8] ~.! cf-a·-E~~~! O&le= ~so j ....

1 5. For Plaintiff's costs, expenses and attorney's fees incurred in prosecuting this action

2 in an amount not less· than $50,000; and

3

4

5i I'

6 11

7

8

9

10

11

12

13 ,

14

15

16

17

18

19

20!1

21

22

23

24

25 i

26\j

27

28

6. For such other and further relief as the Court deems appropriate.

Dated: May 21,2010 ~l

LAW OFFlOES OF HA

By: J..-~~~~~~=-----

successor in COMPANY

6 COMPLAINT II Travelers\Maclean\Pldg\Complaint

EXHIBIT . I

EXHIBIT" 1"

8l!A ... JA SOIUlTYCOMPANY NewYotlc,New Yorle

ST. PAUL PlRB AND MAlUNBINstlRANCB COMPANY ST. PAUL GUARDIAN INSURANCBCOMPANY

ST. PAVLMERCURY lNSURANCB COMPANY St. Paul, MUu\l$Ota

Capital Stock Companiea

LlablJlUea of _lal.; nalu ... of debt and IIft1OlW,"' ________________ _

Ill. Plea~ erunpl,' ~h " .)1~owlD8 ftyou are acting as' A. .IINISTRATOR or EXECUTOR

Name 01 decta'G Date of dteedent'a death .... __ _ Ar' Utlme of death Oc<:lIpalim.t lil'M oId .. thL...-____________ ~

J. there I wJlI? a . 'til. Cl No (II Y'" pl'alll! .t~h a copy.) Ooea the wJll mue , tniJt? 0 'ttl Q No Nlmt the pmOlll who have had pOAtNlon of the .,uta ollha IIIlattt.

How muehllYOllrahareln lh'eall"1, ___________________ _

Lilt billow all pard .. Intensttd u helra at law, deYi8tet, Iegll ... or dlstrlbuillil: (Ull a aeparllte theet of paper IE nllllded.) Nama Agll Relatll:'lllhtp to deeeaHd AddltH

. Anyknowndlllpuia amOl'l8 thellelta1 Ifyu. pleaaeexplaln. o y~ ONO __ ~~~~~~~ __ ----~----~~~~~~--------IV. Pleue co~plete the following if you are Acting a9 a CONSBRVATOR or

GUARDIAN

Nameol.lncomplllcnlormlnol(.~)?,~\lh l .. \l\Slb y.§;.\)\j),,-$JMtAA As-. ll~ U8t thUlmei and addrli88ti of lh.~ h.lr. 01 the taOOmpetel\t or minor: (\118 a ~ep;trate theat if~.ry.)

. "." NaI~\J 'HK!Au RelJtlONhiM~PIl~ 5 C:A-~a~~~~ ~~ 3QtJ :m::a~t==42 == , . V. Please complete the fonowlng if you are adlng as a TRl]STEIl

Title of eM&!! ~.aWKh~.-w-P-1-0~i-~--~-.-ta~I~---w-I~~tM-.-.p-p~UQ--fl~--·------------------------~--

P4 trUilee, will you be Hling oceoa.ntlngl with tll. court? 0 Y. Q No

VI. Please complete the ~ollowJns if you are acting a8 a RBCBlVBR or RBPBRBB

captionofc ... "--_-:--~--------------------_---Nalurtofbuslneatlnvolv.d ... : ~~--:....,..-:-......,.... _____ -----~-~------Sleta if .... Ire to be eClnverted '1'110 cam Cor dlaltlbuUon Q\'\OJ\8 eredltor., or If reorganl2ation of eompany I. elqlectod.

The tutdmlpld wlmnlll the ansWBtl and InfonMtlon glveXl hmlA to be!J11I, Uui in CONlderation 01 the SURBn' extcutfm the bond herein appUtd lor ao hereby ape llIloIlowa: To pay 11\ advanca the pleMIum of $ ~ 9 D~. ere> and tM annual p.t8mlum tharaaEtar IUIIIlIIw SURB'lY if fundahad wIth conclu&1ve evidence of tn. tlrmlllltton of IlIllabllttyl to lurn!IIh JUch nldenca and cople. of &aeb pilp. toncemlris the,.8Itala whlclt the stnmTY May In lfa dlacl:eKon dtB!tt; to indeniN£y and keep indemnified the SURB'l'Y ULCl holc1.M ft'Vall hum1eN £tOM and _saINt fI\Iery dlIlm" dma~ JlabWly, lots. com, dam ... , expenn., and attorney'll ree, whatever, and any .nd .11 UabJ8ty thwetore 'Whlth the stlRiT'i' thall or m~y lot '''1 ClUae, at any lima, .u.tllnorJneurlotorbyrtalOl\orlnCOJlMqlWlCtofthtSURJTYluivhlgexecWd.*ldbcmdoranyadditlolll1bonda

.IGSUed. irl't or 01\ be\alt of thlJ ~ fOI' the ~.relSMd applicant. TIl, undtrelgnfd further agrel.lb&t if Ih9IU1\O\11lI 01 theprllDliwn lor lha bond here'" appUed ItJr .II nolexpNlled abovlln the.pace In~ed therefote, to W'ldere1aned ~ 10 pay ptemiUIM amlpUltd upon 1haSURBl'Y'I c:umntraill all ofUt. date oIbond. The UlIdereI3ntd exprlUly WalV", .110 th1a obligatio1\, the banefit 01 ~Il ~tmn., or the MntBllteJd provlllon, to which dw 1Il'IIWIIi&t*l.ll, or may b, entitled to under the law, 01 any State 01 tilt Unlt.d Stat ...

:u day of 9Mtu~y

EXHIBIT a

EXHIBIT "2"

Sl JOAltD SURETY COMPANY lfOME OFfiCI. BBDfrllNST.I!R,NJ,

IN 11tEaUPEAIOR COtJRTOFTHE8T~TS""OALIFORNIA.

FOR TH ... E __________ ,COwrN Of" ';aaHti\ CLUA .

INTHI MAT11A OF

'mE eONS!JtVATonSKIP OJ{ MARIA T.U1SA UlVtA .. SUIUUc-z, CQn/uu:ntoe.

I<Miw AU: Mill 8JTIII .. PlIllltnt:

) e .... No. PBUU86

~ .xx.... BolldtipOll QUalUylnQ

) _McI/IIOnlII fJlmd

TIlltw.. ,IOStR'!' g. MaCLaAN uPllndpll(1)

IUldIh.SEABOARD$URmCOMPANV •• 8w.IV .... hlllcfandlull~boundUllloMARI~ r.UrSA REVX1\ .. SUA1U~~ ___________________________ .. Obll; .. (.j

IftlhuulDci lour HUlion and MlJOO ... --..................... _ .. _ ..... _- Ddl ... ($.4,OOQ,OOO.pO for plYDlwwll1 ~d IN)'to bt ~. w.1l1nd our ..... clIIlltltt.JIQII rapr ..... IIw., 'UCO.teOTtllld IMlallt, JoInItf encIMYV· ally, ft/llllyb)' ..... pN ... 1a.

W1unw,on P'.bruu-y 1, 1~\)!5 bywllrot\hubovunUhdCOVItlM Pllncfpal[.) hi. (lIan) ~ , ,

'fJ~(r8CIllillo ix~. til 1IdIa1io1l" t!oMIII 1hI.\IIIInamtCl.

Now ... OR~TtllCUIDmcIN()fIlHiAI<WIO_IMTJlNli811Ct41't14~1t .... _'dPdnCipli(.tthdlallhluqrlX-.III ..... o,1hI 1M' ~ tQ.'IIW',1h1l1l1Nf 1IIIap •• .u bovolds~1O ~ In U forge llICI.frKt.

8Ionl\tlt Sari Jose (laIIIo(lll~~ t.b _ ....... ''''''''''"'-=~ __ ... ,1~.

800DN~~2~9_3~Ql~a_~~9~5 __________ ___ '-

'''W/lHdl~ 7II'00IJI0I'$·.ealllt8li ... tJl'II"IIIIIltUaMclJIII")'dtcl .. ~nd4rP41IlJl~o'p'I/U'1IhalIIlDIII.llIhwGd atIDm*Y'!lI>tal:l oleNboId ,ultliOompany dll(l Ulldar til 1II11'*W1kt<J pow., of altO/l\ay en II, \\ill 1M Clerk of thl 00ImIy In wNd) abo.,. 1"lIIItd Oolilt It !potted.