Judge: Malcolm Mackey, Case: 20STCV31675, Date: 2022-10-26 Tentative Ruling

Case Number: 20STCV31675    Hearing Date: October 26, 2022    Dept: 55

ROSIAK v. ROSIAK                                                           20STCV31675

Hearing Date:  10/26/22,  Dept. 55

#8:  MOTION TO STAY EXECUTION OF THE WRIT.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiff

Summary

On 8/20/20, Plaintiff filed a Complaint alleging that Defendant’s transfer of the real estate holdings to a trust, owned as Plaintiff’s separate property prior to the parties’ marriage, was a transfer made without consideration to the Plaintiff and to the community property of the marriage.

The causes of action are:

1. FRAUDULENT TRANSFER OF ASSETS;

2. AVOIDANCE OF FRAUDULENT TRANSFER OF ASSETS;

3. BREACH OF FIDICUARY DUTY;

4. QUIET TITLE.

MP Positions

Moving party requests an order staying execution on a writ, on grounds including the following:

·         A Family Court in Nevada is dealing with the real property involved in this case, which rendered an erroneous decision on 9/11/2022.

·         A Notice of Appeal was filed on and 9/30/2022, and Motion For Stay was filed on 10/07/2022.

RP Positions

Opposing party advocates denying, on bases including the following:

·         Admittedly, some of the issues raised in this case are also being raised in the dissolution action in Nevada.

·         The 9/11/22 decision is res judicata in this case.  The Court in Nevada deemed the transfer of all the properties into the RJRP trust are void.

·         Unpaid sanctions ordered are not stayed.  The first money judgment by way of sanctions imposed against Defendant was on July 26, 2021, in the sum of $7,080.00. The second money judgment by way of sanctions against Defendant was on October 28, 2021, in the sum of $2,500.00.

Tentative Ruling

The motion is granted in part, not as prayed.

This action is stayed pending resolution of the appeal or until further of the Court, except as to any unpaid discovery sanctions.

The Court finds that efficiency and consistency would be served by deferring to an appeal in another case involving some issues of this case.

Even where there is no automatic stay pending appeal, judges can exercise discretion to continue or stay proceedings until an appeal is decided.  Reed v. Superior Court (2001) 92 Cal. App. 4th 448, 455.

“[A] judgment is not ‘final’ as long as it remains subject to direct attack by appeal, by motion for a new trial, or motion to vacate the judgment.”  Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 303.

As to another action pending in a sister-state court, “the principle of comity may call for a discretionary refusal of the court to entertain the second suit pending determination of the first-filed action.”  Gregg v. Sup. Ct. (1987) 194 Cal.App.3d 134, 136, 138.  Accord  Simmons v. Sup. Ct. (1950) 96 Cal.App.2d 119, 125-26.

However, the payment of sanctions is an issue collateral to the merits of the case, and severable for enforcement.

"[A]n appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal'...."  Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 191. 

Sanctions orders are enforceable by way of writ of execution.  Newland v. Sup. Ct. (1995) 40 Cal.App.4th 608, 615.