Judge Thomas D. Long, Case BC665118 2023-02-23 Tentative Ruling

On May 11, 2022, a jury returned a verdict in favor of Defendants Compton Unified School District and Marco Godinez (collectively, “Defendants”) and against Plaintiff I.C. The same day, the Court entered judgment in favor of Defendants and against Plaintiff.

On November 21, 2022, the Court awarded Defendants $166,821.81 in costs, pursuant to Defendants’ cost memorandum and motion for costs under Code of Civil Procedure section 998.

On January 25, 2023, Plaintiff filed a motion to waive or reduce bond for his appeal.

The perfecting of an appeal stays enforcement of a judgment or order except as otherwise provided by statute. (Code Civ. Proc., § 916, subd. (a).) Costs under Code of Civil Procedure section 998 are not stayed during appeal unless an undertaking is given. (Code Civ. Proc., § 917.1, subd. (a)(2).)

Of the $166,821.81 in costs awarded to Defendants, $123,201.02 were awarded pursuant to Code of Civil Procedure section 998 and are not stayed on appeal unless Plaintiff posts an undertaking. Plaintiff seeks a waiver, or in the alternative, a reduction, of the bond amount.

Defendant argues that the Court is without power to stay enforcement of judgment because when an undertaking is required, the Court cannot, without the consent of the adverse party, stay enforcement for a period that extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (Opposition at pp. 3-4, citing Code Civ. Proc., § 918, subd. (b).)

Plaintiff is not seeking a stay of enforcement for a period of time beyond this period. Instead, he is seeking a waiver or reduction of section 917.1’s required undertaking. Waiver of the bond requirement is not an indefinite stay of enforcement under section 918 without Defendants’ consent. (Sarkany v. West (2022) 82 Cal.App.5th 801, 807.) The Court’s authority to waive bond under section 995.240 is not inconsistent with section 918; section 918’s limitation on staying enforcement applies only to stays issued under that section. (Id. at p. 809.)

The court may, in its discretion, waive the bond requirement if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties. (Code Civ. Proc., § 995.240.) In exercising its discretion, the court shall take into consideration all relevant factors, including but not limited to the character of the action or proceeding, the nature of the beneficiary, and the potential harm to the beneficiary if the provision for the bond is waived. (Code Civ. Proc., § 995.240.) “The party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.” (Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614.)

Plaintiff’s parents are immigrants, his father was deported, and he was raised by his single mother in a lower economic background. (Campos Decl., ¶ 4.) Plaintiff cannot afford to live independently, and he currently lives with his mother. (Campos Decl. ¶ 4.) He received Medi-Cal. (Campos Decl. ¶ 4.) Plaintiff is a part-time college student, and he works part-time earning minimum wage. (Campos Decl. ¶ 6.) He assists with paying rent, food, clothing, gas, car insurance, and phone service. (Campos Decl. ¶ 5.) Plaintiff has no savings account. (Campos Decl. ¶ 9.) His assets are $400 in a checking account and five shares of stock in cryptocurrency valued at a total of approximately $6,000; Plaintiff owns no real estate or other assets. (Campos Decl. ¶ 9.) Plaintiff and his counsel submitted applications for appeal bonds in the amount of $184,801.53, but each application was denied because he did not have 100% collateral. (Campos Decl. ¶ 7 & Ex. D.) Bank of America, Chase, and Wells Fargo also denied Plaintiff’s requests for an Irrevocable Letter of Credit. (Campos Decl. ¶ 8.)

Defendants argue that there is insufficient evidence of indigency. (Opposition at pp. 6-8.) Defendants note that Plaintiff provided only his declaration and no other evidence of assets. (Id. at pp. 6-7.) However, Plaintiff’s receipt of Medi-Cal proves his indigency due to those qualification requirements. Defendants also argue that Plaintiff’s guardian ad litem’s income may be available. (Id. at p. 7.) On April 20, 2021, the Court granted Plaintiff’s motion for termination of guardianship because he was no longer a minor. His prior guardian ad litem is now irrelevant at this stage. Finally, Defendants argue that Plaintiff has provided no evidence that he has no friends or relatives who would assist with posting bond. (Id. at pp. 7-8.) Although this information may assist with the Court’s determination, there is no requirement that Plaintiff provide it. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 435, fn. 10.)

Plaintiff contends that Defendants are self-insured and receive government benefits—facts that Defendants do not dispute—so there will be no harm to them if the bond is waived. (Motion at p. 5.) Defendant argues that its status as a public entity weighs in its favor “as the public would stand to suffer great detriment if no bond is posted, and Plaintiff is permitted to proceed with his appeal, causing Defendants to incur additional costs on appeal.” (Opposition at p. 6.) Plaintiff is already proceeding with his appeal; a waiver of bond will not require Defendants to incur extra costs. Posting bond, waiving bond, or proceeding with the appeal without bond (and thus permitting Defendants’ enforcement) does not change the status of the appeal that is in progress. Defendants do not further explain why the public will be harmed by a waiver of bond and subsequent stay of enforcement of the costs order.

Moreover, even if the Court were not to waive bond, and if Defendants were able to proceed with enforcing the costs judgment, Defendants may not in fact be able to enforce the judgment at this time. Based on Plaintiff’s declaration, he appears to have no assets or wages that could be garnished under Code of Civil Procedure section 706.050. Thus, with or without Plaintiff’s motion, and with or without any posting of bond and stay of enforcement, it does not seem likely that Defendants would be able to collect anything from Plaintiff.

Defendants also argue that Plaintiff did not make a good faith attempt to comply with the bond requirement because he waited until six months after filing his appeal. (Opposition at p. 6.) Plaintiff could not have posted a bond or sought a surety when he first filed his appeal in July 2022 because that judgment had no monetary amount. It was not until the Court issued its November 21, 2022 order that the monetary amount, upon which a bond would be calculated, was determined. Plaintiff thereafter sought sureties and filed this motion without substantial delay.

Based on Plaintiff’s evidence, the Court determines that Plaintiff is unable to give the bond because he is indigent and is unable to obtain sufficient sureties. After considering all of the factors (see Code Civ. Proc., § 995.240), the Court will waive the bond requirement.

The motion is GRANTED. Under Code of Civil Procedure section 995.240, the Court waives the bond requirement. Because no bond is now required, enforcement of the full November 21, 2022 costs award, including costs awarded under section 998, is stayed during appeal.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court