Judge: William D. Claster, Case: 19-01114045, Date: 2023-09-01 Tentative Ruling

Judgment Creditor City of Buena Park's Notice of Motion and Motion to Enforce Liability on Appeal Bonds ROA 1207

The City of Buena Park’s motion to enforce liability on the appeal bonds taken out by BA Hotel, LLC and Mona10, Inc. (“Debtors”) from American Contractors Indemnity Company (“Surety”) is GRANTED. Judgment shall be entered against Debtors and Surety, and in favor of the City, in the amount of $156,299.34.

The City’s request for judicial notice is GRANTED.

In September 2022, the Court entered judgment in favor of the City against Debtors. (RJN, Ex. 1.) Shortly thereafter, Debtors filed a notice of appeal. (RJN, Ex. 2.) On Debtors’ motion, the Court ordered an undertaking of $253,671. (RJN, Ex. 4.) In December 2022, the Court ordered an additional undertaking of $67,340. (RJN, Ex. 6.) Debtors obtained two bonds from Surety to satisfy these orders. (RJN, Exs. 5, 7.) On June 29, 2023, the Court of Appeal dismissed Debtors’ appeal at their request. (RJN, Exs. 8-9.) The remittitur issued the same day. (RJN, Ex. 10.)

The beneficiary on a surety bond may enforce the liability against both the principals (here, Debtors) and the surety (here, Surety). (CCP § 996.410(a).) A motion to enforce liability may not be brought until after final judgment is entered and the time to appeal has expired, or, if an appeal is taken, until the appeal is finally determined. (CCP § 996.440(b).) Here, Debtors’ appeal was dismissed at their request, and the remittitur issued the same day.

The moving party (here, the City) must “state the amount of the claim” and support the claimed amount “by affidavits setting forth the facts on which the claim is based.” (CCP § 996.440(c).)

Here, the City puts on evidence from the Orange County Treasurer-Tax Collector’s records showing that $115,979.34 in property taxes came due during the 288 days the appeal was pending (from September 14, 2022 to June 29, 2023). (RJN, Exs. 11-15.) In addition, the Court set the rental value of the properties at $140 per day in its December 2022 order, which works out to $40,320 in lost rent during the time the time the appeal was pending. The City sufficiently makes out a claim to $156,299.34.

If the moving party presents sufficient evidence to support its claim, the Court must enter judgment “against the principal and sureties in accordance with the motion unless the principal or sureties serve and file affidavits in opposition to the motion showing such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact,” in which case the Court must conduct a trial on that issue. (CCP § 996.440(d).) Surety has not filed an opposition to this motion, but Debtors have.

In their opposition, Debtors do not contest any of the foregoing facts. The sole issue presented is a question of law: whether unpaid property taxes constitute “waste” that must be covered by a bond under CCP § 917.4. In their motion to determine the undertaking, Debtors argued that because property taxes were not “waste” as used in the statute, they should not be included in the undertaking. The Court rejected that argument, and the Court-ordered undertaking included property taxes expected to accrue during the pendency of the appeal. (ROA 971) Debtors’ opposition simply seeks to relitigate this question. As such, it is an untimely motion for reconsideration under CCP § 1008, and the Court will not consider it. In any event, Debtors identify no new authority or new facts that would justify reconsideration.

For these reasons, the motion is granted. Judgment shall be entered against Debtors and Surety, and in favor of the City.