KAUFMAN v.PERFORMANCE PLASTERING, INC.,
KAUFMAN v.PERFORMANCE PLASTERING, INC.,
02:10:2006
KAUFMAN v.PERFORMANCE PLASTERING, INC.,
Filed 1/31/06 (third opn. under this docket number)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
KAUFMAN & BROAD COMMUNITIES, INC., et al.,
Cross-complainants and Respondents,
v.
PERFORMANCE PLASTERING, INC.,
Cross-defendant and Appellant.
C049391
(Super. Ct. No. 03AS03133)
APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Dismissed.
Farmer, Murphy, Smith & Alliston, George E. Murphy and Suzanne M. Nicholson for Cross-defendant and Appellant.
Cooper, White & Cooper, Kathleen F. Carpenter, Dee A. Ware and Dafna G. Levi for Cross-complainant and Respondent.
In this case we hold when an insurance company seeks to provide a defense in pending litigation for a corporation that has been suspended for nonpayment of its taxes, the insurance company must intervene in the action to protect its own interests and those of its insured. The insurance company may not answer and litigate the lawsuit in the name of the suspended corporation without intervening in the case. Here, because its insured is barred from exercising corporate powers, rights, and privileges (Rev. & Tax. Code,[1] § 23301) and the insurance company is not a party, the insurance company's failure to intervene barred any application for fees and costs, even though the insurance company and insured were successful in persuading Kaufman & Broad Communities, Inc., to dismiss its lawsuit. We shall dismiss this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
After it was sued by homeowners in a construction defect case, Kaufman & Broad Communities, Inc. (Kaufman) filed a cross-complaint against Performance Plastering, Inc. (Performance Plastering). In its cross-complaint, Kaufman sued Performance Plastering for contractual and equitable indemnity, breach of contract, and declaratory relief. The Franchise Tax Board had previously suspended Performance Plastering because it failed to pay its taxes.
Performance Plastering's insurance company, CalFarm Insurance Company (CalFarm), employed a law firm, Read & Aliotti, (Read) to file an answer to the cross-complaint. The answer to the cross-complaint Read filed designated the responding party as â€
02:10:2006
Filed 1/31/06 (third opn. under this docket number)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
KAUFMAN & BROAD COMMUNITIES, INC., et al.,
Cross-complainants and Respondents,
v.
PERFORMANCE PLASTERING, INC.,
Cross-defendant and Appellant.
C049391
(Super. Ct. No. 03AS03133)
APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Dismissed.
Farmer, Murphy, Smith & Alliston, George E. Murphy and Suzanne M. Nicholson for Cross-defendant and Appellant.
Cooper, White & Cooper, Kathleen F. Carpenter, Dee A. Ware and Dafna G. Levi for Cross-complainant and Respondent.
In this case we hold when an insurance company seeks to provide a defense in pending litigation for a corporation that has been suspended for nonpayment of its taxes, the insurance company must intervene in the action to protect its own interests and those of its insured. The insurance company may not answer and litigate the lawsuit in the name of the suspended corporation without intervening in the case. Here, because its insured is barred from exercising corporate powers, rights, and privileges (Rev. & Tax. Code,[1] § 23301) and the insurance company is not a party, the insurance company's failure to intervene barred any application for fees and costs, even though the insurance company and insured were successful in persuading Kaufman & Broad Communities, Inc., to dismiss its lawsuit. We shall dismiss this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
After it was sued by homeowners in a construction defect case, Kaufman & Broad Communities, Inc. (Kaufman) filed a cross-complaint against Performance Plastering, Inc. (Performance Plastering). In its cross-complaint, Kaufman sued Performance Plastering for contractual and equitable indemnity, breach of contract, and declaratory relief. The Franchise Tax Board had previously suspended Performance Plastering because it failed to pay its taxes.
Performance Plastering's insurance company, CalFarm Insurance Company (CalFarm), employed a law firm, Read & Aliotti, (Read) to file an answer to the cross-complaint. The answer to the cross-complaint Read filed designated the responding party as â€
| Description | A decision on intervention of insurance company in suspended corporations. |
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