Judge: Gail Killefer, Case: BC635250, Date: 2022-10-11 Tentative Ruling
Case Number: BC635250 Hearing Date: October 11, 2022 Dept: 37
HEARING DATE: October 11, 2022
CASE NUMBER: BC635250
CASE NAME: Michael Thabet et al v. Yamaha Motor
Corporation, et al.
MOVING PARTY: Defendant, Yamaha Motor Corporation, U.S.A.
OPPOSING PARTIES: Plaintiffs, Michael Thabet ,
Kathy Thabet and Georget Thabet
TRIAL DATE: Judgment
filed—Stayed Pending Appeal
PROOF OF SERVICE: OK
MOTION: Defendant’s
Motion for an Undertaking to Require Plaintiffs to Post Bond
OPPOSITION: October
4, 2022
REPLY: October
6, 2022.
Tentative: YMUS’ motion is denied. Plaintiffs
are to give notice.
This case arises out of a watercraft versus watercraft
collision which occurred on May 25, 2015, near Big Bend State Park in Laughlin,
Arizona.
In connection with this collision, Michael Thabet ,
Kathy Thabet and Georget Thabet as successors in
interest to Magdy Thabet (“Plaintiffs”) filed this action against
Yamaha Motor Corporation, U.S.A. (“YMUS”), Yamaha Motor Company, LTD (“YMLTD”),
Watercraft Adventures Rentals, LLC (“Watercraft”), Harrah Laughlin, LLC
(“Harrah”), John Envieh (“Envieh”), an individual, and does 1-100 (“Defendants”), alleging
causes of action for (1) product liability, (2) negligence, (3) breach of
warranty, (4) failure to warn and (5) survival action.
This wrongful
death case was tried to a jury on theories of product liability against
defendant Yamaha Motor Corporation, U.S. (YMUS) and negligence against
Defendant and Cross-Complainant Envieh and non-party Watercraft Adventures
Rentals (WAR). The jury reached a verdict
on May 27, 2022, finding, among other things, in favor of Plaintiffs Michael
Thabet; Kathy Thabet; George Thabet; Nicholas Thabet; Kristina Thabet; and
Ilham Chaouir and against Defendant John Envieh and awarded damages to
Plaintiffs. Envieh claimed he was
entitled to indemnity, contribution, and declaratory relief from YMUS on a
theory that it was responsible for the accident and Plaintiffs’ injuries. The
jury disagreed and found YMUS to be 0% at fault. Given the verdict, the Court
dismissed Envieh’s cross-complaint against YMUS. Notice of Judgment was
promptly given and then amended.
On August 16, 2022, the court granted Plaintiffs’
motion to tax costs in part and allowed costs to Defendant in the amount of
$149,972.62.
On August 29, 2022, Plaintiffs appealed the awarding
of costs.
Now YMUS moves for an undertaking to stay enforcement
of the judgment pending appeal and to require Plaintiffs to post a bond in
order to stay execution of the judgment entered against them. Plaintiffs oppose
the motion.
Discussion
I.
Legal
Authority
“As a general rule (the automatic stay rule), the
perfecting of an appeal automatically stays proceedings in the trial court both
upon the judgment or order appealed from, and upon the matters embraced therein
or affected thereby, including enforcement of the judgment or order. The
automatic stay rule is codified in section 916, subdivision (a)…” (Dowling
v. Zimmerman (2001) 85 Cal.App.4th 1400, 1427-1428.)
C.C.P. §916(a) provides, as follows: “Except as
provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the
perfecting of an appeal stays proceedings in the trial court upon the judgment
or order appealed from or upon the matters embraced therein or affected
thereby, including enforcement of the judgment or order, but the trial court
may proceed upon any other matter embraced in the action and not affected by
the judgment or order.”
In certain cases
where an appeal does not trigger an automatic stay, the trial court has the
discretion to condition the stay on filing a bond or undertaking. CCP §
917.9(a). Perfecting an appeal does not automatically stay enforcement in
cases not provided for in CCP §§ 917.1-917.8. The trial court's
discretion to require security is limited to the situations outlined in Section
917.9(a)(1) to (3). Here, the instant action is one where the
appellant is required to perform an act for respondent's benefit pursuant to
the appealed judgment or order. CCP § 917.9(a)(2). The amount
of the bond or undertaking is fixed by the trial court “in an amount sufficient
to cover all damages which the respondent may sustain by reason of the stay in
the enforcement of the judgment or order.” CCP § 917.9(c).
The “trial 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, 144-145, review denied
(July 12, 2017).) CCP § 917.9 provides:
“(a) The perfecting of an appeal shall not stay enforcement
of the judgment or order in cases not provided for in Sections 917.1 to 917.8,
inclusive, if the trial court, in its discretion, requires an undertaking and
the undertaking is not given, in any of the following cases:
(1) Appellant was found to possess money or other property
belonging to respondent.
(2) Appellant is required to perform an act for respondent's
benefit pursuant to judgment or order under appeal.
(3) The judgment against appellant is solely for costs
awarded to the respondent by the trial court pursuant to Chapter 6 (commencing
with Section 1021) of Title 14.
(b) The undertaking shall be in a sum fixed by the court and
shall be in an amount sufficient to cover all damages which the respondent may
sustain by reason of the stay in the enforcement of the judgment or
order.
(c) The undertaking shall be in the sum fixed by the court.
The undertaking shall be conditioned upon the performance of the judgment or
order appealed from or payment of the sums required by the judgment or order
appealed from, if the judgment or order is affirmed or the appeal is withdrawn
or dismissed, and it shall provide that if the judgment or order appealed from
or any part of it is affirmed, or the appeal is withdrawn or dismissed, the
appellant will pay all damages which the respondent may sustain by reason of
the stay in the enforcement of the judgment.
(d) For the purpose of this section, “damages” means either
of the following:
(1) Reasonable compensation for the loss of use of the money
or property.
(2) Payment of the amounts specified in paragraph (3) of
subdivision (a).”
A judgment for costs and attorney’s fees
awarded under CCP § 1021 qualifies as a judgment “solely for costs” under CCP §
917.9(a)(3). (See Quiles, supra, 10 Cal.App.5th at pp. 140-141,
144.)
The trial court may order an appeal bond
in cases where “the costs judgment is large or the danger of asset dissipation
is acute.” (Quiles, supra, 10 Cal.App.5th at p. 145.)
II.
Analysis
YMUS moves for an
appeal bond as an undertaking because it asserts “there is substantial doubt
that Plaintiffs will be able to satisfy the cost judgment years from now when
their appeal is decided,” since “Plaintiffs have already represented to this
Court that they are not in a financial position to pay the cost judgment.”
(Motion, 5.) In making this claim, YMUS refers to Plaintiffs’ arguments in
their motion to tax costs, in which Plaintiffs argued imposing the memorandum
of costs filed by YMUS would cause significant financial hardship to
Plaintiffs. (Motion, 5-6.) YMUS then continues, “[a]lthough this Court found
that Plaintiffs do, in fact, have the ability to pay the cost award,
Plaintiffs’ assertions to the contrary make clear they will resist any efforts to
enforce judgment once it is affirmed on appeal. And given Plaintiffs’ financial
situation, it is highly probable they will spend the $140,145.57 received from
Envieg before the appeal is resolved.” (Motion, 5-6.) The court here notes YMUS
asks this court to reconsider its earlier analysis, without the proper motion,
and further points to probabilities and speculative assertions regarding the
conduct of Plaintiffs here, with nothing more than mere contentions.
In opposition,
Plaintiffs correctly contend “Yamaha is presumptively not entitled to a bond
against the routine costs that are at issue, under C.C.P. §§ 916 & 917.1.
Under well-known and straightforward case law: ‘[A] judgment for costs alone is
automatically stayed without bond pending appeal.’ Vadas v. Sosnowski
(1989) 210 Cal. App. 3d 471, 475. Therefore, Yamaha is urging the Court to
depart from the baseline law at issue, so as to request special treatment under
§ 917.9, a code section that is by its own terms entirely discretionary.”
(Opposition, 2.) Plaintiffs further cite Sarkany v. West (2022) 82 Cal.
App. 5th 801 to explain “any request for a bond must be evaluated by a trial
court under the discretionary framework of § 995.240,” which instructs the
court to inquire into the ability of an indigent principal to give a bond. (Id.)
Plaintiffs further contend they do not have possession of any sums referred to
by YMUS, and as such any bond requirement should be waived pursuant to section
995.420. (Opposition, 3-4.) Plaintiffs also affirm that no bond or undertaking
is required of a costs-only award on appeal, citing Dowling v. Zimmerman
(2001) 85 Cal. App. 4th 1400, 1430. (Opposition, 5.)
In reply, YMUS
again affirms that the court may in its discretion require plaintiffs to post a
bond, and further contends Plaintiffs have not met their burden to establish a
bond waiver pursuant to CCP § 995.240. (Reply, 2-5.) YMUS cites Quiles,
supra, at 145 to suggest the “the danger of asset dissipation is acute
here.” (Reply, 2-3.) Upon review of the
papers, however, the court finds YMUS has failed to show good cause to require
the posting of a bond during the stay of the judgment. YMUS has only referred
to conclusions and probabilities, and asked this court to join in gleaning
inferences from Plaintiffs’ statements. The court refuses to do so. As YMUS has
correctly explained that the court holds discretion here to require such a
bond, this court now exercises this discretion to find such a bond to be unnecessary.
For these
reasons, YMUS’ motion is denied.
Conclusion
YMUS’ motion is
denied. Plaintiffs are to give notice.