Judge: Cherol J. Nellon, Case: 19STCV12537, Date: 2025-01-15 Tentative Ruling
Case Number: 19STCV12537 Hearing Date: January 15, 2025 Dept: 14
#7
Case Background
This is a dispute over commercial property which had
become contaminated. Plaintiffs allege Defendant sold them the property and
promised them a letter absolving them of responsibility for cleaning up the
contamination. Defendant failed to get that letter, causing Plaintiffs to incur
the cleanup costs themselves.
Bench Trial commenced in this case on August 2, 2021,
and proceeded until August 9, 2021.
On August 16, 2021, this court entered its statement of
decision. On September 16, 2021, this court heard and overruled counsel’s
objections and adopted its statement of decision as the official ruling in this
case.
On October 26, 2021, this court entered judgment in
favor of Plaintiffs on the Complaint in the amount of $750,700.16, and in favor
of Defendant Moine on the Cross-Complaint in the amount of $61,000.00.
On October 26, 2021, Plaintiffs gave Notice of Entry of
Judgment.
On February 25, 2022, this court issued its written
order awarding Plaintiffs $388,541 in attorney’s fees.
Moine appealed both the judgment and the fee award.
On November 27, 2023, the Court of Appeal issued a
remittitur on the appeal of the judgment, reversing this court’s finding in
favor of Defendant Moine on the Cross-Complaint. Plaintiffs were awarded their
costs on appeal.
On the same date, the Court of Appeal also issued a
remittitur on the appeal of the fee award, directing this court to reconsider
its fee decision in light of the result on the other appeal. Plaintiffs were
again awarded their costs on appeal.
On January 9, 2024, Plaintiffs filed their first motion
for attorney’s fees based on the appeal of the fee award.
On March 26, 2024, the Court granted Plaintiffs’ motion
for attorney’s fees pertaining to the appeal of the judgment. Plaintiffs agreed
to take the motion for attorney’s fees pertaining to the fee award off calendar
until the Court re-examined the fee award.
On July 3, 2024, the Court reassessed the fee award.
On September 17, 2024, the Court granted Plaintiff’s
motion for attorney’s fees in the amount of $40,054.87.
Instant Pleading
Plaintiffs move for entry of judgment against a bond
given by personal sureties, Michael Moine and Virgil Cicoria. Plaintiffs seek a
total of $1,551,887.45, which includes post-judgment interest.
Decision
Plaintiffs’ motion for entry of judgment against
personal sureties Michael Moine and Virgil Cicoria is GRANTED. Plaintiffs are
ordered to submit a proposed judgment within 10 days of this order.
Discussion
Plaintiffs move for entry of judgment against personal
sureties Michael Moine and Virgil Cicoria under Code Civ. Proc., section
996.440.
“If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action.”¿ (Code Civ. Proc., section 996.440(a).) “The motion shall not be made until after entry of the final judgment in the action or proceeding in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates.”¿(Code Civ. Proc., section 996.440(b).) Even if a trial court which issued a preliminary injunction supported by a bond has subsequently rendered judgment in favor of the party enjoined, the party may not enforce liability on the bond while an appeal from the judgment is pending. (Nuclear Electronic Laboratories, Inc. v. William C. Cornell Co. (1965) 239 Cal.App.2d 8, 11.) A bond may be enforced if the party ordered to pay does not make payment within 30 days after the filing of the remittitur from the reviewing court. (Code Civ. Proc., section 917.1(b).)Here, Moine and Cicoria are personal sureties on a bond associated with two appeals connected to this action. (Ellis Decl., Exh. A.) The Court of Appeal issued remittiturs on November 27, 2023. The Court entered a revised judgment in this matter following the Court of Appeal’s instructions on February 21, 2024. This motion was timely filed less than one year after entry of the revised judgment. Moine has not made any payment on the judgment since it was entered more than 30 days ago.
Plaintiffs properly provide a calculation of the amount
to be paid from the bond, which includes the following:
October 26, 2021 Judgment net award: $689,700.16
October 21, 2021 Memorandum of costs: $34,193.38
February 25, 2022 order awarding attorney fees:
$388,541
January 9, 2024 costs awarded on appeal: $3,501.80
January 9, 2024 costs awarded on appeal: $3,504.40
March 26, 2024 attorney fees awarded on appeal:
$82,213.75
September 17, 2024 order awarding attorney fees:
$13,307.48
Post-Judgment Interest 10% per annum: $336,925.64
Plaintiffs meet the requirements of Code Civ. Proc.,
section 996.440 and related sections. Additionally, the motion is unopposed. The
lack of an opposition operates as a concession that the motion has merit. See
California Rules of Court Rule 3.1113(a); see also Rule 3.1320(f); Herzberg
v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Here, Plaintiffs’ motion
for entry of judgment against personal sureties Michael Moine and Virgil
Cicoria is GRANTED.
Conclusion
Plaintiffs’ motion for entry of judgment against
personal sureties Michael Moine and Virgil Cicoria is GRANTED. Plaintiffs are
ordered to submit a proposed judgment within 10 days of this order.