Judge: Elaine W. Mandel, Case: 19SMCV01066, Date: 2023-10-24 Tentative Ruling

Case Number: 19SMCV01066    Hearing Date: October 24, 2023    Dept: P

Tentative Ruling

Zeta Global Corp. v. Socialcom, Inc., Case No. 19SMCV01066

Hearing Date October 24, 2023

Plaintiff Zeta’s Motion to Increase Bond

On February 15, 2023 after court trial, the court issued a net judgment in favor of Zeta for $1,682,652. Defendant AudienceX appealed on February 28, 2023. On June 16, 2023 AudienceX noticed and executed an appeal bond of $2,373,978, one and a half times the judgment, as required under Code of Civ. Proc. §917.1. On July 18, 2023 the court issued a minute order awarding Zeta $731,817.10 in attorney’s fees. Zeta moves to increase the bond to reflect the attorney fees award.

Under Cal. Code of Civ. Proc.§917.1, an appeal stays enforcement of a judgment if the appellant posts a bond for one and one-half times the amount of the judgment if it is given by an admitted surety insurer. In an action where a bond is given, the court may order the bond increased if the bond has “become insufficient because the sureties are insufficient or because the amount of the bond is insufficient.” Cal. Code of Civ. Proc. §996.010.

When a motion for new bond is made under section 996.010, moving party is not “entitled to have a new undertaking which is in its aggregate one and one-half times (or two times) the amount of the judgment, and accumulated appellate costs and post judgment interest,” but “the amounts of such interest and costs are proper factors for the trial court to consider in ruling on a motion pursuant to section 996.010.” Grant v. Superior Court (1990) 225 Cal.App.3d 929, 938. A party moving for a new bond must “demonstrate a real, substantial possibility, not just speculation, that the current bond ‘is or has from any cause become insufficient[.]’” Id.

Since attorney’s fees are considered extraordinary costs, a motion to increase an undertaking to reflect an award of attorney’s fees after the initial judgment is properly granted. E.g., Chamberlin v. Dale’s R. Rentals, Inc. (1986) 188 Cal.App.3d 356, 362.

Zeta argues the bond is insufficient because, after the court’s attorney fees award, it no longer represents 1.5 times the judgment.

Socialcom cites grant Grant, arguing the attorney’s fee award alone cannot constitute “good cause” for an increased bond. Socialcom argues the 150% undertaking requirement already factors in post-judgment accumulation of costs and interest, and the attorneys fee award – as a cost—need not be calculated when determining the amount of the bond.

A party moving under §996.010 is not entitled to a new undertaking of one-and-one-half times the judgment amount whenever new costs accumulate. However, per Chamberlin, an award of attorney’s fees is not a typical or incidental cost. Since the attorney’s fees award becomes part of the underlying judgment, per Chamberlin, this is good cause to increase the bond under §996.010. GRANTED. Bond increased to a total of $3,471,703.65.