Preview
1 GREGORY M. FINCH (SBN 091237)
SIGNATURE LAW GROUP, LLP
2 3400 Bradshaw Rd., Suite A-4A
Sacramento, California 95827 2/14/2022
3 Telephone: (916) 856-5800
Facsimile: (916) 880-5255
4 GFinch@signaturelawgroup.com
5 Attorney for Plaintiff
13290 CONTRACTORS LANE, LLC
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8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF BUTTE
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11 13290 CONTRACTORS LANE, LLC, a ) Case No. 21UD02707
California limited liability company, )
12 ) SUPPLEMENTAL BRIEF OBJECTING
Plaintiff, )
) TO AUTOMATIC STAY
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v. )
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)
15 )
BRIAN HOWE, an individual, )
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Defendant. )
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)
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)
19 )
20 INTRODUCTION
21 My understanding of the Court's concerns are 1) whether the decision to stay this matter
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is affected by the fact that there was a preliminary injunction not a permanent injunction in the
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underlying action; and 2) is staying this matter appropriate given that an unlawful detainer action
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is a summary proceeding.
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26 I re-researched the statutory and case law regarding automatic stays and have concluded
27 the approach set out in my object remain applicable and, herein, I will augment those positions.
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SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY
1 SUPPLEMENTAL STATEMENT OF FACTS
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Defendant BRIAN HOWE maintains that evicting him prevents Wishbone Ranch, LLC,
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Plaintiff in the underlying case, from collecting rents from him that would be credited to the
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down payment of the purchase of the subject property under the option to purchase.
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6 It is clear that the collection of rents to be credited to the purchase price terminated after
7 two years (2019)
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ARGUMENT
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1. As to Brian Howe, the Preliminary Injunction in Underlying Action is not
10 Mandatory and there therefore not subject to an automatic stay
11 Adding to the points raised in my initial objection, in August 2021 California provided a
12 definitive statement on what is a mandatory or prohibitory injunction. A "prohibitory" injunction is
13 not automatically stayed by appeal but the operative effect of the injunction, not the label given it,
14 determines the automatic stay issue: Notwithstanding its label, an injunction is considered mandatory,
15 and thus subject to the automatic stay, if it changes the status quo by requiring performance of an
16 affirmative act. [Daly v. San Bernardino County Bd. ofSupervisors, 11 C5th at 1030. The California
17 Supreme Court further stated that A mandatory injunction, "by definition, commands some change
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in the parties' positions." [Daly v. San Bernardino County Bd. ofSupervisors, supra, 11 C5th at
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1030].
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An order enjoining action by a party is "prohibitory" in nature if its effect is to leave the parties in the
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same position they were in prior to entry ofthe judgment (preserving the status quo); but the order is
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"mandatory" in nature if its enforcement would change the parties'positions and compel them to act in
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accordance with the judgment rendered [Daly v. San Bernardino County Bd. ofSupervisors, supra, 11
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C5th at 1030]
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In this instance, Eric Benik's position in the underlying case has not changed. He has
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secured two years credit toward the down payment of the subject property under the option to
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purchase
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2. For various reasons, this Court does not have the authority to grant a stay.
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SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY
1 A stay pending appeal does not suspend enforcement of the judgment or order against a
2 party who did not appeal. IKenffield v. Kenyield (1935) 4 C2d 585, 587,—portion of judgment
3 directed to nonappealing trustees not stayed by trust beneficiaries' appeal (but stay by writ of
4 supersedeas was warranted under the facts)]
5 Only the trial Court has jurisdiction over the issuance of the Stay. Civil Code of Procedure
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916(b) mandates, "When there is a stay of proceedings other than the enforcement of the
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judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the
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judgment as well as any other matter embraced in the action and not affected by the judgment or
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order appealed from."
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3. The Analogy to CCP Section 1176(a), as an Unlawful Detainer remains persuasive.
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I was unable to find case law on point as to the facts in this matter. However, it is
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counter-intuitive that Mr. Howe would not be subject to appellate procedures for Unlawful
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Detainer actions. Again, the appellate Court in Selma Auto Mall II v. Appellate
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Department (1996) 44 Cal.App.4th 1672 at page 1681 instructed,
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16 "Section 1178 states that the general Code of Civil Procedure sections governing stays of
enforcement in civil appeals (§§ 916-923) apply to appeals in unlawful detainer
17 proceedings, except insofar as they are inconsistent with the unlawful detainer provisions
(§§ 1161-1179a). Section 1176(a), the statute addressing stays of enforcement pending
18 appeal in unlawful detainer actions, is inconsistent with the general provision, section
19 917.4, which addresses judgments directing the delivery of real property"
20 CCP Section 1176(a), in part, states,
21 "(a) An appeal taken by the defendant shall not automatically stay proceedings upon the
22 judgment. Petition for stay of the judgment pending appeal shall first be directed to the
judge before whom it was rendered. Stay of judgment shall be granted when the court
23 finds that the moving party will suffer extreme hardship in the absence of a stay and that
the nonmoving party will not be irreparably injured by its issuance. If the stay is denied
24 by the trial court, the defendant may forthwith file a petition for an extraordinary writ
25 with the appropriate appeals court. If the trial or appellate court stays enforcement of the
judgment, the court may condition the stay on whatever conditions the court deems
26 just..."
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SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY
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Dated: January 13, 2022 SIGNATURE LAW GROUP, LLP
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4 By:
GREGORY M. FINCH
5 Attorneys for Defendant
13290 CONTRACTORS LANE, LLC
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SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY
1 PROOF OF SERVICE
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I, SHEILA M. BROWN, declare:
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4 I am over the age of eighteen (18) years and not a party to the within action. I am an
employee of Signature Law Group, LLP, and my business address is 3400 Bradshaw Road, Suite
5 A-4A, Sacramento, CA 95827
6 On February 11, 2022, I caused to be served the foregoing document(s):
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• SUPPLEMENTAL BRIEF OBJECTING TO AUTOMATIC STAY
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On the parties involved and addressed as follows:
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10 Louis A. Gonzalez, Jr.
Attorneys for Plaintiffs
11 Weintraub, Tobin, Chediak, Coleman & Grodin
400 Capitol Mall, 11th FL
12 Sacramento, CA 95814
Louis A. Gonzalez, Jr. (lgonzalez@weintraub.com) with cc to
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Tracy Thome (tthorne@weintraub.com)
14 Kavan J. Jeppson (kieposon@weintraub.com) with a cc to
Elizabeth Netemeyer enetemeyeraweintraub.corn
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16 ( X ) BY ELECTRONIC SERVICE I caused an email to be sent to the stated email addresses
Per CCP 1010.6,
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I declare under penalty of perjury under the laws of the State of California, that the
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foregoing is true and correct. Executed at Sacramento, California on February 11, 2022.
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SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY
Preview
1 GREGORY M. FINCH (SBN 091237) SIGNATURE LAW GROUP, LLP 2 3400 Bradshaw Rd., Suite A-4A Sacramento, California 95827 2/14/2022 3 Telephone: (916) 856-5800 Facsimile: (916) 880-5255 4 GFinch@signaturelawgroup.com 5 Attorney for Plaintiff 13290 CONTRACTORS LANE, LLC 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF BUTTE 10 11 13290 CONTRACTORS LANE, LLC, a ) Case No. 21UD02707 California limited liability company, ) 12 ) SUPPLEMENTAL BRIEF OBJECTING Plaintiff, ) ) TO AUTOMATIC STAY 13 v. ) 14 ) ) 15 ) BRIAN HOWE, an individual, ) 16 ) Defendant. ) 17 ) 18 ) ) 19 ) 20 INTRODUCTION 21 My understanding of the Court's concerns are 1) whether the decision to stay this matter 22 is affected by the fact that there was a preliminary injunction not a permanent injunction in the 23 underlying action; and 2) is staying this matter appropriate given that an unlawful detainer action 24 is a summary proceeding. 25 26 I re-researched the statutory and case law regarding automatic stays and have concluded 27 the approach set out in my object remain applicable and, herein, I will augment those positions. 28 SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY 1 SUPPLEMENTAL STATEMENT OF FACTS 2 Defendant BRIAN HOWE maintains that evicting him prevents Wishbone Ranch, LLC, 3 Plaintiff in the underlying case, from collecting rents from him that would be credited to the 4 down payment of the purchase of the subject property under the option to purchase. 5 6 It is clear that the collection of rents to be credited to the purchase price terminated after 7 two years (2019) 8 ARGUMENT 9 1. As to Brian Howe, the Preliminary Injunction in Underlying Action is not 10 Mandatory and there therefore not subject to an automatic stay 11 Adding to the points raised in my initial objection, in August 2021 California provided a 12 definitive statement on what is a mandatory or prohibitory injunction. A "prohibitory" injunction is 13 not automatically stayed by appeal but the operative effect of the injunction, not the label given it, 14 determines the automatic stay issue: Notwithstanding its label, an injunction is considered mandatory, 15 and thus subject to the automatic stay, if it changes the status quo by requiring performance of an 16 affirmative act. [Daly v. San Bernardino County Bd. ofSupervisors, 11 C5th at 1030. The California 17 Supreme Court further stated that A mandatory injunction, "by definition, commands some change 18 in the parties' positions." [Daly v. San Bernardino County Bd. ofSupervisors, supra, 11 C5th at 19 1030]. 20 An order enjoining action by a party is "prohibitory" in nature if its effect is to leave the parties in the 21 same position they were in prior to entry ofthe judgment (preserving the status quo); but the order is 22 "mandatory" in nature if its enforcement would change the parties'positions and compel them to act in 23 accordance with the judgment rendered [Daly v. San Bernardino County Bd. ofSupervisors, supra, 11 24 C5th at 1030] 25 In this instance, Eric Benik's position in the underlying case has not changed. He has 26 secured two years credit toward the down payment of the subject property under the option to 27 purchase 28 2. For various reasons, this Court does not have the authority to grant a stay. 2 SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY 1 A stay pending appeal does not suspend enforcement of the judgment or order against a 2 party who did not appeal. IKenffield v. Kenyield (1935) 4 C2d 585, 587,—portion of judgment 3 directed to nonappealing trustees not stayed by trust beneficiaries' appeal (but stay by writ of 4 supersedeas was warranted under the facts)] 5 Only the trial Court has jurisdiction over the issuance of the Stay. Civil Code of Procedure 6 916(b) mandates, "When there is a stay of proceedings other than the enforcement of the 7 judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the 8 judgment as well as any other matter embraced in the action and not affected by the judgment or 9 order appealed from." 10 3. The Analogy to CCP Section 1176(a), as an Unlawful Detainer remains persuasive. 11 I was unable to find case law on point as to the facts in this matter. However, it is 12 counter-intuitive that Mr. Howe would not be subject to appellate procedures for Unlawful 13 Detainer actions. Again, the appellate Court in Selma Auto Mall II v. Appellate 14 Department (1996) 44 Cal.App.4th 1672 at page 1681 instructed, 15 16 "Section 1178 states that the general Code of Civil Procedure sections governing stays of enforcement in civil appeals (§§ 916-923) apply to appeals in unlawful detainer 17 proceedings, except insofar as they are inconsistent with the unlawful detainer provisions (§§ 1161-1179a). Section 1176(a), the statute addressing stays of enforcement pending 18 appeal in unlawful detainer actions, is inconsistent with the general provision, section 19 917.4, which addresses judgments directing the delivery of real property" 20 CCP Section 1176(a), in part, states, 21 "(a) An appeal taken by the defendant shall not automatically stay proceedings upon the 22 judgment. Petition for stay of the judgment pending appeal shall first be directed to the judge before whom it was rendered. Stay of judgment shall be granted when the court 23 finds that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance. If the stay is denied 24 by the trial court, the defendant may forthwith file a petition for an extraordinary writ 25 with the appropriate appeals court. If the trial or appellate court stays enforcement of the judgment, the court may condition the stay on whatever conditions the court deems 26 just..." 27 28 3 SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY 1 Dated: January 13, 2022 SIGNATURE LAW GROUP, LLP 2 3 4 By: GREGORY M. FINCH 5 Attorneys for Defendant 13290 CONTRACTORS LANE, LLC 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY 1 PROOF OF SERVICE 2 I, SHEILA M. BROWN, declare: 3 4 I am over the age of eighteen (18) years and not a party to the within action. I am an employee of Signature Law Group, LLP, and my business address is 3400 Bradshaw Road, Suite 5 A-4A, Sacramento, CA 95827 6 On February 11, 2022, I caused to be served the foregoing document(s): 7 • SUPPLEMENTAL BRIEF OBJECTING TO AUTOMATIC STAY 8 On the parties involved and addressed as follows: 9 10 Louis A. Gonzalez, Jr. Attorneys for Plaintiffs 11 Weintraub, Tobin, Chediak, Coleman & Grodin 400 Capitol Mall, 11th FL 12 Sacramento, CA 95814 Louis A. Gonzalez, Jr. (lgonzalez@weintraub.com) with cc to 13 Tracy Thome (tthorne@weintraub.com) 14 Kavan J. Jeppson (kieposon@weintraub.com) with a cc to Elizabeth Netemeyer enetemeyeraweintraub.corn 15 16 ( X ) BY ELECTRONIC SERVICE I caused an email to be sent to the stated email addresses Per CCP 1010.6, 17 I declare under penalty of perjury under the laws of the State of California, that the 18 foregoing is true and correct. Executed at Sacramento, California on February 11, 2022. 19 20 21 WN 22 23 24 25 26 27 28 5 SUPPLEMENTAL TO OBJECTION TO AUTOMATIC STAY