Judge Robert B. Broadbelt, Case Number: BC617750, Date: 2023-10-05 Tentative Ruling

RESPONDING PARTIES: Defendants Linda Schermer, individually, as trustee of the Surviving Trustor’s Trust under the Schermer Family Trust, and as trustee of the Marital Trust under the Schermer Family Trust

The court considered the moving, opposition, and reply papers filed in connection with this motion.

Plaintiff Bonnie Duboff (“Plaintiff”) moves the court for an order requiring defendants Linda Schermer, individually, as trustee of the Surviving Trustor’s Trust under the Schermer Family Trust, and as trustee of the Marital Trust under the Schermer Family Trust (“Defendants”) to post a bond on appeal as to the portion of the judgment that expelled and disassociated Defendants.

Except as otherwise provided by statute, “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.” (Code Civ. Proc., § 916, subd. (a).) “‘The purpose of the automatic stay provision of section 916, subdivision (a) “is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” ’” (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 881.)

On October 9, 2023, the court entered judgment in favor of Plaintiff and against Defendants on, inter alia, Plaintiff’s third through seventh causes of action for expulsion and dissociation, ordering that defendant Linda Schermer, individually and as trustee of various trusts, as a general partner and limited partner “is expelled and dissociated from 245 Spaulding Partners L.P. . . . .” (Oct. 9, 2023 Judgment, pp. 3-5.) Thereafter, on October 18, 2023, Defendants filed (1) a “Notice of Appeal,” stating that Defendants filed an appeal from the October 9, 2023 judgment, and (2) a “Notice of Automatic Stay Pending Appeal,” asserting that, because they filed a Notice of Appeal from the October 9, 2023 judgment, the judgment was stayed insofar as it ordered that Defendants were expelled and dissociated from 245 Spalding Partners L.P. (Oct. 18, 2023 Notice of Automatic Stay, p. 2, ¶¶ 1-5.)

Plaintiff asserts that the portion of the judgment expelling and dissociating Defendants is not subject to the automatic stay because the exceptions set forth in Code of Civil Procedure sections 917.9 and 917.4 apply.[1] Thus, Plaintiff contends that the court should exercise its discretion to require Defendants to post a substantial bond pursuant to those statutes.

First, the court finds that Code of Civil Procedure section 917.9 does not apply and does not support Plaintiff’s request for an order requiring Defendants to post a bond on appeal.

“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: [¶¶] (2) Appellant is required to perform an act for respondent’s benefit pursuant to judgment or order under appeal.” (Code Civ. Proc., § 917.9, subd. (a)(2).)

Plaintiff has not pointed to any provision of the judgment regarding the expulsion and dissociation of Defendants that requires Defendants “to perform an act for [Plaintiff’s] benefit[.]” (Code Civ. Proc., § 917.9, subd. (a)(2).) Instead, the judgment (1) finds in favor of Plaintiff on the expulsion and dissociation causes of action, and (2) states that Defendants are “expelled and dissociated from 245 Spalding Partners L.P. . . .” (Oct. 9, 2023 Judgment, pp. 3:15-5:2.) These provisions of the judgment do not require Defendants to perform any act for the benefit of Plaintiff.

Thus, the court finds that it does not have the discretion to order Defendants to post an undertaking pursuant to Code of Civil Procedure section 917.9. (Code Civ. Proc., § 917.9, subd. (a)(2).)

Second, the court finds that Code of Civil Procedure section 917.4 does not apply and does not support Plaintiff’s request for an order requiring Defendants to post a bond on appeal.

“The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given. . . .” (Code Civ. Proc., § 917.4.)

Plaintiff contends that the judgment “has the effect of ordering the delivery of possession and control of real property, namely, the Spalding Building from [Defendants] to a new general partner.” (Mot., pp. 7:26-7:1.) The court disagrees. As set forth above, the judgment as to Plaintiff’s expulsion and dissociation causes of action is limited to finding in favor of Plaintiff and ordering that Defendants are expelled and dissociated from 245 Spalding Partners, L.P. (Oct. 9, 2023 Judgment, pp. 3:15-5:2.) The judgment does not “direct[] the sale, conveyance or delivery of possession of real property” controlled or possessed by Defendants. (Code Civ. Proc., § 917.4.)

Thus, the court finds that it does not have the discretion to order Defendants to post an undertaking pursuant to Code of Civil Procedure section 917.4. (Code Civ. Proc., § 917.4.)

For the reasons set forth above, the court finds that Plaintiff has not shown that the court may order Defendants to post a bond on their appeal of the portions of the October 9, 2023 judgment expelling and dissociating Defendants from 245 Spalding Partners, L.P. (Code Civ. Proc., §§ 917.4, 917.9.) The court therefore denies Plaintiff’s motion. (Ibid.)

The court denies plaintiff Bonnie Duboff’s motion to require defendants to post a bond on appeal.

The court orders defendants Linda Schermer, individually, as trustee of the Surviving Trustor’s Trust under the Schermer Family Trust, and as trustee of the Marital Trust under the Schermer Family Trust to give notice of this ruling.

[1] The court notes that Plaintiff expressly does not bring this motion as to the portions “regarding the monetary component (or any other component) of the Judgment” and instead is brought solely as to “the expulsion and dissociation portion of the Judgment.” (Mot., p. 3:12-14.)

bonnie duboff ; Plaintiff, vs. linda schermer , et al.; Defendants.	Case No.:	BC617750

	Hearing Date:	January 29, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion to require defendants to post bond on appeal