Judge: Lee W. Tsao, Case: VC067198, Date: 2023-05-10 Tentative Ruling

Case Number: VC067198    Hearing Date: May 10, 2023    Dept: C

Tahir v. Shah et al.

CASE NO.:  VC067198

HEARING:  5/10/23 @ 1:30 PM

#11

TENTATIVE RULING

Defendant Rafiq Shah and Palomino Market Incorporated’s motion for assignment is CONTINUED.

Moving Party to give NOTICE.

Defendants Rafiq Shah and Palomino Market Incorporated move for assignment of funds owed to Plaintiff by promissory note under Code of Civil Procedure § 708.510.

Legal Standard

“Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due. . . .” (Code of Civil Procedure (CCP) § 708.510(a).)

CCP § 917.1(a) provides:

Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following:

(1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action . . . .

CCP § 917.1(d) provides:

Costs awarded by the trial court under Chapter 6 (commencing with Section 1021) of Title 14 shall be included in the amount of the judgment or order for the purpose of applying paragraph (1) of subdivision (a) and subdivision (b). However, no undertaking shall be required pursuant to this section solely for costs award under Chapter 6 (commencing with Section 1021) of Title 14.

Defendants Rafiq Shah and Palomino Market (Defendants) are seeking an assignment of funds owed to Plaintiff Abu Tahir (Plaintiff) from a promissory note by H.P. Palomino (H.P.). Defendants obtained a judgment against Plaintiff for $10,930.48 consisting of $1,467.85 for monetary sanction and $8,798.81 for costs. H.P. allegedly owes plaintiff $48,616.22 pursuant to a promissory note from 2013 for $29,932.00. Defendants request an assignment of the $10,930.48 owed to Defendants from the promissory note.

Plaintiff shall post $10,930.48 as undertaking during the pendency of the appeal or Defendants shall be assigned $10,930.48 of the promissory note owed to Plaintiff from H.P. Plaintiff argues that the is stayed pending his appeal filed on February 24, 2023. However, under CCP § 917.1(a) and (d) an appeal does not stay the enforcement of a judgment for money unless Plaintiff gives an undertaking. Costs awarded in a judgment are included in the undertaking unless the judgment is solely for costs. Defendants’ judgment is for sanctions and costs. Thus, the undertaking shall be for both sanctions and costs in the amount of $10,930.48.

Accordingly, Plaintiff is ordered to post $10,930.48 as undertaking during the pendency of the appeal by May 23, 2023. Defendants’ motion for assignment is CONTINUED to May 24, 2023.