Judge Peter A. Hernandez, Case Number: 22PSCP00408, Date: 2023-09-06 Tentative Ruling

Judge: Peter A. Hernandez, Case: 22PSCP00408, Date: 2023-09-06 Tentative Ruling

Case Number: 22PSCP00408 Hearing Date: April 22, 2024 Dept: K

Respondent Spectrum Global Enterprises, Inc.’s Motion to Stay Enforcement of Judgment is DENIED.

Background

On August 18, 2022, Petitioner Creditor’s Adjustment Bureau, Inc. (“Petitioner”), as assignee of SIIC Shanghai International Trade (Group) Co., Ltd., filed a “Petition to Confirm Contractual Arbitration Award” (“First Petition”) as against Respondent Spectrum Global Enterprises, Inc. (“Spectrum”).

On October 27, 2022, the court denied the First Petition without prejudice.

On March 24, 2023, Petitioner filed an “Amended Petition to Confirm Contractual Arbitration Award” (“Amended Petition”). On September 18, 2023, the court granted the Amended Petition.

On November 16, 2023, Respondent filed a “Notice of Appeal” of the court’s September 18, 2023 order. On November 30, 2023, judgment was entered. On December 4, 2023, Petitioner filed (and mail served) a “Notice of Entry of Judgment.”

Legal Standard

“Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.860, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced thereon or affected thereby, including enforcement of the judgment or order. . .” (Code Civ. Proc., § 916, subd. (a)).

“Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order.” (Code Civ. Proc., § 918, subd. (a).) “If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.” (Code Civ. Proc., § 918, subd. (b).) “This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed.” (Code Civ. Proc., § 918, subd. (c).)

Discussion

Respondent moves the court for an order staying enforcement of judgment against Respondent and in favor of Petitioner pending the outcome of the appeal.

At the outset, the court notes that Respondent’s reply brief cites authority that was not set forth in its moving papers (i.e., Code of Civil Procedure § 218). This is not considered. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”].) At any rate, section 218 (entitled “Written excuses of jurors; acceptance by commissioner”) is not applicable here.

The motion is denied. The automatic stay rule set forth in Code of Civil Procedure § 917.1 is subject to the money judgment exception in section 917.1, subdivision (a)(1), which provides that “[u]nless 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. . .” (Code Civ. Proc., § 917.1, subd. (a)(1).) Respondent’s motion is silent on the issue of posting a bond.

Respondent alternatively argues that the court has discretion to stay enforcement of the judgment under Code of Civil Procedure § 918; again, subdivision (b) therein provides that “[if the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.” (Code Civ. Proc., § 918, subd. (b).) Petitioner, in response, asserts that any discretionary stay could not extend beyond February 12, 2024 without its consent based on the December 4, 2023 Notice of Entry of Judgment date.

Respondent, in reply, points out that the appeal was filed before judgment was entered. Respondent does not show, however, that the time period for its alternate Code of Civil Procedure § 918 discretionary stay request has not expired.