Judge: Daniel S. Murphy, Case: 18MCV00212, Date: 2023-03-29 Tentative Ruling

Case Number: 18MCV00212    Hearing Date: March 29, 2023    Dept: 32

BACKGROUND

On November 9, 2018, Plaintiffs Hero Dogs Season One LLC (HDS1) and Nuriya Entertainment LLC (Nuriya) commenced this action against Defendants Dean A. Avedon, Bemel, Ross & Avedon, LLP, David Beitchman, and Beitchman & Zekian, a Professional Law Corporation. The operative First Amended Complaint was filed June 11, 2019. The matter came on for a bench trial on October 31, 2022. The Court found in favor of Defendants and entered judgment accordingly on December 6, 2022. Plaintiffs have since appealed the judgment.

            On March 2, 2023, Defendants Dean Avedon and Bemel, Ross & Avedon, LLP filed the instant motion for an order requiring an undertaking to stay enforcement of the judgment pending appeal.

LEGAL STANDARD

            Normally, the filing of an appeal does not stay enforcement of a money judgment, unless an undertaking is posted. (Code Civ. Proc., § 917.1(a)(1).) However, no undertaking is required if the judgment is solely for costs. (Id., subd. (d).) Nonetheless, a court has discretion to require an undertaking as a precondition for staying enforcement, including where a judgment is solely for costs. (Id., § 917.9(a)(3).) “[T]rial courts have discretion to impose an undertaking requirement with regard to a judgment solely for costs.” (Quiles v. Parent (2017) 10 Cal.App.5th 130, 144-45.)

DISCUSSION

            A discretionary undertaking requirement is warranted where “the costs judgment is large or the danger of asset dissipation is acute . . . .” (Quiles, supra, 10 Cal.App.5th at p. 145.) This allows the court to “mitigate any injustices arising from the costs-only judgment rule.” (Ibid.)

            Defendants move for a discretionary undertaking because of the risk that Plaintiffs will not be able to pay the judgment after appeal, pointing out that Plaintiffs have failed to pay discovery sanctions and have admitted to having “no cash on hand.” Plaintiffs do not dispute these facts. Therefore, the “danger of asset dissipation” is more than acute.

            Plaintiffs argue that an undertaking would be futile because they have no money for a bond. However, Plaintiffs cannot avoid a bond requirement by simply claiming that they cannot pay it. If Plaintiffs fail to post an undertaking, the automatic stay would be lifted, and Defendants can proceed with enforcement efforts, including examinations of Plaintiffs’ assets to verify their ability or inability to pay. This does not constitute harassment as Plaintiffs characterize it, nor do Plaintiffs articulate any undue burden.  

            Defendants reasonably request an undertaking in the amount of 150% of the judgment, which is the formula normally imposed by Section 917.1(b).

CONCLUSION

            Defendants’ motion for an undertaking is GRANTED in the amount of $235,582.25 (1.5 x $157,054.83).