Judge: Jon R. Takasugi, Case: BC694779, Date: 2023-09-07 Tentative Ruling

Case Number: BC694779    Hearing Date: September 7, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

The Court concludes that Defendant’s undertaking stays enforcement of the judgment pending appeal, and Plaintiff is not entitled to proceed with an ORAP.

Plaintiff Elinton Gramajo (Plaintiff) filed a first amended complaint (FAC) against Joe’s Pizza on Sunset, Inc. and Joe’s Pizza on Sunset, LLC, alleging: (1) failure to pay minimum wages and overtime wages; (2) failure to provide rest periods and meal periods; (3) failure to pay wages due at time of termination; (4) failure to pay wages due at time of termination; (4) failure to reimburse for business expenses; and (5) unfair business practices.

            Now, the Court considers whether or not Defendant can be compelled to participate in an ORAP pending appeal.

Discussion

            On 2/22/2022, Judgment in this matter was entered in the amount of $7,659.93.

On 5/16/2022, Defendant tendered the full amount of the judgment to the Plaintiff, via check made payable to “Law Office of Alfredo Nava Jr. Client Trust Account and Elinton Gramajo.” The check was mailed and a copy of the check was emailed.

            However, in response, Plaintiff’s counsel claimed to not have received the check in the mail. Moreover, as to the emailed check (which was received), Plaintiff’s counsel stated that he wanted only his law firm to be a payee on the check, that he did not want his client to be a payee on the check. Defendant responded by indicating that if counsel wanted the check to be made payable to just Law Office of Alfredo Nava, Jr. Client Trust Account, an authorization signed by Plaintiff (not an electronic signature) would be required approving of the check being written that way. Plaintiff’s counsel refused to provide Defense counsel with a signed writing authorizing only putting Plaintiff’s counsel’s name on the check.

            This dispute prevented resolution of payment of the judgment for over a year. Then, in May 2023, Plaintiff re-initiated collection efforts, by recording a notice of involuntary lien against Defendant and issuing an ORAP.

            On 6/13/2023, Defendants deposited $12,000, more than 1.5 times the amount of the judgment to stay execution of the judgment.

            CCP section 917.1 provides that the giving of an undertaking stays enforcement of a judgment. The statute applies to any “judgment or order for . . . Money or the payment of money . . . whether payable by the appellant or another party to the action.” (CCP § 917.1 (a)(1).)

            In opposition, Plaintiff presents caselaw which analyzes CCP section 942, an previous version of section 917.1, to argue that a judgment debtor cannot stay a judgment which he is not appealing. Indeed, that provision reads (emphasis added): “If the appeal be from a judgment directing the payment of money, it does not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant, by two or more sureties to the effect that they are bound in double the amount name in the judgment or order.”

            However, as noted by Defendant, when CCP section 917.1, the predecessor to section 942, was drafted, the “on the part of the appellant” language was not retained. Instead, the language was specifically expanded to include parties other than the appellant (emphasis added): “…whether payable by the appellant or another party to the action.” As such, CCP section 917.1 makes clear that an undertaking can stay enforcement of the judgment, even if not posted by the appealing party.

            Here, Plaintiff’s filing of an appeal, on its own, does not stay enforcement of the judgment here because it is a judgment for the payment of money by “…another party to the action.” Thus, in order to stay enforcement of that judgment, an undertaking must be posted by either appellant or another party to the action. Here, Defendant has posted an undertaking of 1.5 the judgment amount. There is nothing in section 917.1 which indicates that this undertaking does not stay enforcement of the judgment pending resolution of the appeal, and the caselaw submitted by Plaintiff does not indicate otherwise.

            Finally, the Court notes that Defendant’s conduct indicates a willingness and ability to pay the judgment sum for over a year.  As such, Plaintiff’s efforts to conduct an ORAP appear to be a continuation of the offensive litigation strategy employed throughout this case, rather than a good faith effort to inspect Defendant’s financial condition.

            Based on the foregoing, the Court concludes that Defendant’s undertaking stays enforcement of the judgment pending appeal, and Plaintiff is not entitled to proceed with an ORAP.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.  

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to tax post-judgment costs in GRANTED.

Plaintiff Elinton Gramajo (Plaintiff) filed a first amended complaint (FAC) against Joe’s Pizza on Sunset, Inc. and Joe’s Pizza on Sunset, LLC, alleging: (1) failure to pay minimum wages and overtime wages; (2) failure to provide rest periods and meal periods; (3) failure to pay wages due at time of termination; (4) failure to pay wages due at time of termination; (4) failure to reimburse for business expenses; and (5) unfair business practices.

             On 2/22/2022, Judgment in this matter was entered in the amount of $7,659.93.

            Now, Defendant moves to tax Plaintiff’s post judgment costs in the amount of $553.06 and post judgment interest in the amount of $990.54.

Discussion

            Defendant argues that Plaintiff should not recover post-judgment costs for the same reasons Plaintiff was denied pre-judgment costs, as well as for the fact that Defendant has attempted to pay the judgment and these costs were only occurred as part of Plaintiff’ harassment campaign.

            After review, the Court agrees.

            In its 6/28/2022 order, the Court denied prejudgment costs pursuant to the discretion afforded by CCP section 1033(a). This decision was based on overwhelming evidence that this case should have never been filed in an unlimited jurisdiction, as well as the fact that counsel had engaged throughout the action in a “disproportionate litigation offensive” with no reasonable relationship to the underlying claims. (Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734.)

            Given that this analysis applies with equal force here, the Court similarly declines to award post-judgment costs. Moreover, this decision is reinforced by facts set forth in Defendant’s motion. Just as Plaintiff’s counsel engaged in a litigation offensive pre-trial, it appears that Plaintiff’s counsel is continuing to engage in abusive practices post-trial. For example, Plaintiff filed an abstract of judgment against Joe’s Pizza on Sunset, Inc., despite the fact that it has not been a legal entity since 5/19/2015 when it was converted into an LLC, a fact which Plaintiff has been made aware of. (See Defendant’s motion, Exh. 10.)

            Based on the foregoing, Defendant’s motion to tax post-judgment costs in granted.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.