Judge Debra Cole-Hall, Case Number: 21NWCV00583, Date: 2023-12-01 Tentative Ruling

Judge: Debra Cole-Hall, Case: 21NWCV00583, Date: 2023-12-01 Tentative Ruling

Case Number: 21NWCV00583 Hearing Date: December 1, 2023 Dept: SEK

Mccatty v. mkerchyan

CASE NO.: 21NWCV00583

HEARING: 11/30/23

Defendant’s Motion to Stay Execution of in the Alternative to Set an Undertaking Amount is GRANTED pending Defendant posting an undertaking in the amount of $100,000.00.

Moving Party to give NOTICE.

Defendant moves for an order staying execution of the judgment or in the alternative setting an undertaking amount.

Background

This is a residential real property dispute. Judgment was entered for Plaintiff ang against Defendant ordering in part, specific performance of a residential real property sale.

Legal Standard

The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given that the appellant or party ordered to sell, convey or deliver possession of the property will not commit or suffer to be committed any waste thereon and that if the judgment or order appealed from is affirmed, or the appeal is withdrawn or dismissed, the appellant shall pay the damage suffered by the waste and the value of the use and occupancy of the property, or the part of it as to which the judgment or order is affirmed, from the time of the taking of the appeal until the delivery of the possession of the property. (CCP § 917.4)

Discussion

Defendant seeks to stay execution of the judgment for specific performance of a real property sale. Defendant argues that an undertaking is not necessary because he is not in possession of the property because he has rented it. The court in Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24 explained that the undertaking CCP § 917.4 is to “ ‘cover the “suffering” of waste to be committed, so that one with the right to possession, who permits another to possess the property in subordination to his right, comes within its terms; but one with neither possession nor the right to possession is not required to give bond.’ ” Here, Defendant has permitted another to possess the property in subordination to his right by leasing it. Thus, an undertaking is required by CCP § 917.4.

Defendant argues that the undertaking should be set at $5,000.00 because he has property insurance which would cover the damages of any waste while the appeal is pending. However, Plaintiff is not a party to Defendant’s insurance contract, thus, he would be unable to obtain the insurance funds should Defendant decline to submit a claim. Plaintiff argues that an undertaking should be set at $771,499.00 to compensate for the damages awarded to Plaintiff by the judgement. However, the undertaking is to compensate for waste committed during the appeal and the loss of use of the property. Thus, the Court finds that two years of the monthly rent currently being charged plus $42,400.00 to prevent waste is an appropriate undertaking amount during the pendency of the appeal. The current monthly rent is $2,400.00. Therefore, the undertaking shall be set at $100,000.00.

Accordingly, Defendant’s Motion to Stay Execution of in the Alternative to Set an Undertaking Amount is GRANTED pending Defendant posting an undertaking in the amount of $100,000.00. Defendant is to post the undertaking within 20 days of this Order.

Any objections will be heard on Thursday, December 7, 2023, at 9:00 a.m. in Department SE-K. Parties are to be present in person for any oral argument.