Judge: Douglas W. Stern, Case: BC638290, Date: 2023-03-13 Tentative Ruling

Case Number: BC638290    Hearing Date: March 13, 2023    Dept: 68

Quante Adger vs. Loyola Marymount University, Case No. BC638290

Motion to Quash Writ of Execution

MOVING PARTY’S POSITION

This is a personal injury case that was resolved at trial by Plaintiff obtaining a judgment.  However, Defendant Loyola won a judgment for costs against Plaintiff Quante Adger as he had rejected a settlement offer under Code of Civil Procedure § 998 that proved to be more favorable than the judgment he obtained at trial.  Plaintiff is appealing that judgment.  After Plaintiff filed his appeal, Defendant obtained a writ of execution on December 16, 2022, for the total amount due on the judgment; $30,359.03.  Plaintiff argues in his motion that a judgment for costs only is automatically stayed pending an appeal.  Plaintiff claims that no undertaking is necessary in such a situation.  (Code of Civil Procedure § 917.1(d).)

[As Defendant notes, Plaintiff also mentions the abstract of judgment, but did not provide any argument relating to that.  He focuses on the writ of execution.  Since there does not yet appear to be any asset of Plaintiff impacted by the abstract of judgment, the Court shall not address that.  The Court has not been presented any authority that a stay prevents obtaining an abstract of judgment.]

Defendant/Judgment Creditor argues that the automatic stay does not apply to the entirety of the judgment in this case because Plaintiff had rejected Defendant’s Offer to Compromise pursuant to Code of Civil Procedure § 998, and such a rejection negates the automatic stay for a judgment of § 998 costs when there has been no undertaking. (Code of Civil Procedure § 917.1(a)(2).)  Since there has been no undertaking, Defendant argues that it can enforce the costs awarded pursuant to Code of Civil Procedure § 998 in the amount of $11,642.43.

ANALYSIS

It is true that the entirety of a judgment for costs would be stayed pending appeal with or without an undertaking under ordinary circumstances (Code of Civil Procedure § 917.1(d)).  That is not the case here.  In this case, costs were awarded pursuant to Code of Civil Procedure § 998 because of Plaintiff’s rejection of the offer of compromise.  Under Code of Civil Procedure § 917.1(a)(2), the perfecting of an appeal shall not stay enforcement of the judgment when costs were awarded pursuant to § 998 unless an undertaking is given.

“The Legislature’s 1993 amendment of section 917.1 codified the holding in Bank of San Pedro that an award of section 998 costs must be bonded.  (§ 917.1, subd. (a)(2).)  But, contrary to the dicta in Bank of San Pedro, as we have noted, the 1993 amendment of section 917.1 made clear that routine costs are not to be included along with section 998 costs in determining the amount of undertaking required to effect a stay of execution pending appeal.  (§ 917.1, subd. (d).)”  Gallardo v. Specialty Restaurants Corp. (2000) 84 Cal.App.4th 463, 470.

Thus, Defendant/Judgment Creditor may enforce the portion of the judgment covering the costs subject to Code of Civil Procedure § 998.  Neither party had addressed how to properly limit the enforcement to the amount of $11,642.43, which are the Code of Civil Procedure § 998 awarded costs. The Court assumes that the proper mechanism may be to quash the existing writ of execution and direct that a new and different writ be issued by the Clerk of the Court for the amount of $11,642.43.  The parties are invited to address this issue at the hearing.