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1 C. Athena Roussos (#192244)
Attorney at Law
2 9630 Bruceville Road, Suite 106-386
3 Elk Grove, CA 95757
Telephone: (916)670-7901
4 Facsimile: (916)670-7921
Email: athena@athenaroussoslaw.com
5
6
Attorney for Plaintiffs
7 Rodney and Florentine Abbott
8
9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT, et al., Case No. 07AS04450
13 Plaintiffs, PLAINTIFFS' MEMORANDUM OF
vs. POINTS AND AUTHORITIES IN
14 OPPOSITION TO DEFENDANT CA
15 RONALD PAUL BRITSCHGI, et al.. CONSTRUCTION'S MOTION FOR
ORDER COMPELLING PLAINTIFFS
16 Defendants. TO OBTAIN A BOND ON APPEAL
17 Date: August 9, 2011
18 Time: 1:30 p.m.
Dept.: 43
19
20 I. Introduction
21 The Court should deny the motion by Defendant CA Construction to compel Plaintiffs
22 Rodney and Florentine Abbott to obtain a bond on appeal for two reasons. First, there is no
23 evidence that the Abbotts are "dumping" properties as claimed by CA Construction in an
24 attempt to evade the judgment for attorney's fees and costs. The transfers and attempted
25 bankruptcy in February 2011 occurred well before the Court awarded fees and costs to CA
26 Construction on April and May 2011, before the amended judgment issued in June 2011, and
27 before notice of entry in July 2011. Second, the Abbotts simply do not have the resources
28 currently to obtain a bond on appeal.
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 1
1 Alternatively, if the Court is inclined to order a bond. Plaintiffs request that the Court
2 provide them with a reasonable amount of tkne, at least 30 days, to attempt to secure a bond or
3 other undertaking. If Plaintiffs are unable to obtain a bond, the Court should make clear in its
4 order that failiare to obtain a bond simply means that execution of the judgment is not stayed
5 pursuant to Code of Civil Procedure § 917.9. A bond is not a prerequisite to an appeal nor may
6 Plaintiffs be held in contempt for failure to obtain a bond, yet it appears that is what Defendant
7 CA Construction is attempting, based on the language of its proposed order.
8 II. Factual Summary
9 The trial took place in January and early February 2011; the jury returned its verdict on
10 February 3, 2011 in favor of Defendants. On April 13, 2011, the Court issued an order
11 awarding costs to CA Construction and denying Plaintiffs' motion to tax costs. {See Decl. of
12 Gregory K. Federico, Ex. A.) CA Construction filed its motion for attorney's fees on February
13 16, 2011. The Court continued the motion until May 2011 to allow for supplemental briefing,
14 because CA Construction's motion sought fees for work performed on behalf of another party,
15 some work was "duplicative and unnecessary," and some work was related to bankruptcy
16 proceedings and not related to Plaintiff's claims. {See id. at pp. 4-5.) Following the hearing,
17 the Court issued an order awarding fees to CA Construction on May 27, 2011. {See Decl. of
18 Gregory K. Federico, Ex. B.) The Court entered the amended judgment with the costs and fees
19 on June 6, 2011. CA Construction gave notice of entry a month later, on July 7, 2011.
20 Plaintiffs have owned several pieces of real property in the Sacramento area. (Decl. of
21 Rodney Abbott, ^ 4; Decl. of Florentine Abbott, \ A.) Because of the economic downturn,
22 nearly all of the properties they currently own or have owned in the past several months have
23 negative equity. {Id.) The amount of debt for all the properties exceeds the total value, and this
24 has been the case for some tune. {Id.)
25 Plaintiffs have attempted to sell some properties due to the high debt and negative
26 equity; they have not sold or transferred any properties in an attempt to evade the judgment for
27 attorney's fees and costs. (Decl. of Rodney Abbott, f 5; Decl. of Florentine Abbott, 5.) In
28 February 2011, Plaintiffs transferred two properties to an entity they own called The Way
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 2
1 Enterprises, LLC. (Decl. of Rodney Abbott, ^ 6; Decl. of Florentine Abbott, ^ 6.) The recorded
2 transfers are included as Exhibit A and B to Defendant CA Construction's Request for Judicial
3 Notice. The two properties, one in Sacramento (the "Stonybeck Circle Property") and one in
4 Rancho Cordova (the "Lincoln Village Lot"), were transferred to The Way Enterprises LLC.
5 The Way Enterprises is not a company in Southern California. {Id.) The Abbotts still own the
6 Stonybeck Circle Property through The Way Enterprises. {Id.) They recently sold the Lmcoln
7 Village Lot, which is an undeveloped lot. The Lincoln Village Lot was sold for fair market
8 value but at a loss because of the downturn in the real estate market. {Id.)
9 In addition, one of the Abbotts' properties in Fair Oaks was taken over by eminent
10 domain. (Decl. of Rodney Abbott, T| 7; Decl. of Florentme Abbott, Tf 7.) Because that property
11 had more debt than equity, the Abbotts do not expect to receive any money from the eminent
12 domain action. {Id.)
13 The Abbotts are struggling financially. (Decl. of Rodney Abbott, If 8; Decl. of
14 Florentine Abbott, ^8.) In the past year, they have had less income and have incurred
15 substantial attorney's fees and costs in connection with this case. {Id.) They have also lost
16 equity in their real properties as noted above. {Id.) It is unlikely they will be able to obtain a
17 bond or undertaking on appeal, due to their present financial situation. {Id.; Decl. of C. Athena
18 Roussos, m 2-3.)
19 III. The Court Should Exercise its Discretion to Deny the Motion.
20 Plaintiffs agree that the Court has discretion in deciding CA Construction's motion
21 pursuant to Code of Civil Procedure § 917.9. Section 917.9(a) provides that "[t]he perfecting of
22 an appeal shall not stay enforcement of the judgment or order in cases not provided for in
23 Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, requires an undertaking and
24 the imdertaking is not given..." when there is a judgment against the appellant solely for costs.
25 Code Civ. Proc. § 917.9(a)(3).'
26
27 ' Contrary to CA Construction's assertion, attorney's fees awards under Civil Code § 1717 are
28 considered "routine" costs and automatically stayed on appeal. See Chapala Mgmt. Corp. v.
Stanton {2010) 186 Cal.App.4th 1532,1545-1546.
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 3
1 A. There is no evidence the Abbotts are evading the judgment.
2 The Court should deny Defendant CA Construction's motion since there is no evidence
3 that the Abbotts are "actively dumping and moving assets to avoid the judgment rendered
4 against them." {See Defendant's Mem. Points & Auth., at 3.) The only evidence CA
5 Construction points to in support of its argument are events that took place in February, months
6 before the fmal judgment that included costs and fees. {See id.)
7 The Court did not enter a judgment including costs and fees against the Abbotts until
8 June 2011. C A Construction did not serve notice of entry until a month later, on July 7,2011.
9 The costs were initially awarded in April 2011 and fees awarded at the end of May 2011. Thus,
10 the Abbotts did not do anything in February to "avoid the judgment rendered against them"
II since they had no liability for fees or costs to CA Construction at that time.
12 Further, the Abbotts have not done anj^hing improper or illegal. Like many in this area,
13 they have real properties with negative equity. They transferred two properties, one an
14 undeveloped property, to an LLC entity that they own. They recently sold the undeveloped
15 Lincoln Village Lot for fair market value, but at a loss due to the downturn in the local real
16 estate market. They still have the Stonybeck Circle Property and other properties as well.
17 Based on the evidence it submitted, CA Construction has not demonstrated any improper
18 conduct or irreparable harm. The Court should deny the motion on this basis alone.
19 B. The Abbotts are struggling financially and cannot afford a bond.
20 The Court should also deny the motion, because the Abbotts are struggling financially
21 and it is highly unlikely they will be able to obtain a bond on appeal. See Code Civ. Proc.
22 § 995.240 (court may, in its discretion, waive bond requirement if principal xmable to give bond
23 because of indigency and unable to obtain sureties; court may consider all factors it deems
24 relevant). In the past year, the Abbotts have had less income and have incurred substantial
25 attorney's fees and costs in connection with this case. They have also lost equity in their real
26 properties as noted above.
27 Based on their situation, it is highly unlikely that the Abbotts will be able to obtain a
28 bond or other undertaking on appeal. It is normally quite difficult for an individual to obtain a
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 4
1 bond from an admitted surety insurer in California, unless that individual is wealthy and can
2 provide sufficient collateral for the bond. (Decl. of C. Athena Roussos, ^3.) Bond companies
3 generally require an irrevocable letter of credit or similar type of collateral as a prerequisite for
4 obtaining the bond. {Id.) They also charge a premium of at least 1% of the value of the bond.
5 {Id.) The Abbotts simply do not have the assets sufficient to provide collateral for a bond or the
6 additional fees associated with it.
7 Accordingly, the Court should deny the motion since the Abbotts cannot afford to obtain
8 a bond at this time, and imposing such a requirement would unduly punish them simply by
9 virtue of theirfinancialposition.
10 C. Alternatively, the Court should give the Abbotts a reasonable
11 amount of time to obtain a bond and should revise the order
12 proposed by CA Construction.
13 If the Court is inclined to order Plaintiffs to obtain a bond. Plaintiffs request that the
14 Court provide them wdth a reasonable amount of time—at least 30 days—^to attempt to secure a
15 bond or other undertaking. Obtaining a bond is also a time consuming process that can take
16 weeks to complete. (Decl. of C. Athena Roussos, Tf 3.)
17 If Plaintiffs are unable to obtain a bond, the Court should make clear in its order that
18 failure to obtain a bond simply means that execution of the judgment is not stayed pursuant to
19 Code of Civil Procedure § 917.9. A bond is not a prerequisite to an appeal, nor may Plaintiffs
20 be held in contempt for failure to obtain a bond, yet it appears that is what Defendant CA
21 Construction is attempting, based on the language of its proposed order. Rather, the bond is
22 only a condition to a stay, which is what the plain language of section 917.9 provides. See
23 Buchwaldv. Katz (1972) 8 Cal.3d 493, 498; Hasendahlv. J.D. Halsted Lumber Co. (1933) 131
24 Cal.App. 224, 225.
25 D. Conclusion
26 For all the foregoing reasons. Plaintiffs respectfully request that the Court deny
27 Defendant CA Construction's motion for an order compelling them to obtain a bond on appeal.
28 ///
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 5
1 Alternatively, if the Court is inclined to order a bond. Plaintiffs request that the Court
2 allow them at least 30 days to attempt to secure a bond or other undertaking. Further, the Court
3 should make clear in its order that failure to obtain a bond simply means that execution of the
4 judgment is not stayed pursuant to Code of Civil Procedure § 917.9.
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6 Dated: August r f , 2 0 1 1 By:_
C. ATHENA ROUSSOS
7
Attorney for Plaintiffs
8 Rodney and Florentine Abbott
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PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 6
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1 C. Athena Roussos (#192244) Attorney at Law 2 9630 Bruceville Road, Suite 106-386 3 Elk Grove, CA 95757 Telephone: (916)670-7901 4 Facsimile: (916)670-7921 Email: athena@athenaroussoslaw.com 5 6 Attorney for Plaintiffs 7 Rodney and Florentine Abbott 8 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT, et al., Case No. 07AS04450 13 Plaintiffs, PLAINTIFFS' MEMORANDUM OF vs. POINTS AND AUTHORITIES IN 14 OPPOSITION TO DEFENDANT CA 15 RONALD PAUL BRITSCHGI, et al.. CONSTRUCTION'S MOTION FOR ORDER COMPELLING PLAINTIFFS 16 Defendants. TO OBTAIN A BOND ON APPEAL 17 Date: August 9, 2011 18 Time: 1:30 p.m. Dept.: 43 19 20 I. Introduction 21 The Court should deny the motion by Defendant CA Construction to compel Plaintiffs 22 Rodney and Florentine Abbott to obtain a bond on appeal for two reasons. First, there is no 23 evidence that the Abbotts are "dumping" properties as claimed by CA Construction in an 24 attempt to evade the judgment for attorney's fees and costs. The transfers and attempted 25 bankruptcy in February 2011 occurred well before the Court awarded fees and costs to CA 26 Construction on April and May 2011, before the amended judgment issued in June 2011, and 27 before notice of entry in July 2011. Second, the Abbotts simply do not have the resources 28 currently to obtain a bond on appeal. PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 1 1 Alternatively, if the Court is inclined to order a bond. Plaintiffs request that the Court 2 provide them with a reasonable amount of tkne, at least 30 days, to attempt to secure a bond or 3 other undertaking. If Plaintiffs are unable to obtain a bond, the Court should make clear in its 4 order that failiare to obtain a bond simply means that execution of the judgment is not stayed 5 pursuant to Code of Civil Procedure § 917.9. A bond is not a prerequisite to an appeal nor may 6 Plaintiffs be held in contempt for failure to obtain a bond, yet it appears that is what Defendant 7 CA Construction is attempting, based on the language of its proposed order. 8 II. Factual Summary 9 The trial took place in January and early February 2011; the jury returned its verdict on 10 February 3, 2011 in favor of Defendants. On April 13, 2011, the Court issued an order 11 awarding costs to CA Construction and denying Plaintiffs' motion to tax costs. {See Decl. of 12 Gregory K. Federico, Ex. A.) CA Construction filed its motion for attorney's fees on February 13 16, 2011. The Court continued the motion until May 2011 to allow for supplemental briefing, 14 because CA Construction's motion sought fees for work performed on behalf of another party, 15 some work was "duplicative and unnecessary," and some work was related to bankruptcy 16 proceedings and not related to Plaintiff's claims. {See id. at pp. 4-5.) Following the hearing, 17 the Court issued an order awarding fees to CA Construction on May 27, 2011. {See Decl. of 18 Gregory K. Federico, Ex. B.) The Court entered the amended judgment with the costs and fees 19 on June 6, 2011. CA Construction gave notice of entry a month later, on July 7, 2011. 20 Plaintiffs have owned several pieces of real property in the Sacramento area. (Decl. of 21 Rodney Abbott, ^ 4; Decl. of Florentine Abbott, \ A.) Because of the economic downturn, 22 nearly all of the properties they currently own or have owned in the past several months have 23 negative equity. {Id.) The amount of debt for all the properties exceeds the total value, and this 24 has been the case for some tune. {Id.) 25 Plaintiffs have attempted to sell some properties due to the high debt and negative 26 equity; they have not sold or transferred any properties in an attempt to evade the judgment for 27 attorney's fees and costs. (Decl. of Rodney Abbott, f 5; Decl. of Florentine Abbott, 5.) In 28 February 2011, Plaintiffs transferred two properties to an entity they own called The Way PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 2 1 Enterprises, LLC. (Decl. of Rodney Abbott, ^ 6; Decl. of Florentine Abbott, ^ 6.) The recorded 2 transfers are included as Exhibit A and B to Defendant CA Construction's Request for Judicial 3 Notice. The two properties, one in Sacramento (the "Stonybeck Circle Property") and one in 4 Rancho Cordova (the "Lincoln Village Lot"), were transferred to The Way Enterprises LLC. 5 The Way Enterprises is not a company in Southern California. {Id.) The Abbotts still own the 6 Stonybeck Circle Property through The Way Enterprises. {Id.) They recently sold the Lmcoln 7 Village Lot, which is an undeveloped lot. The Lincoln Village Lot was sold for fair market 8 value but at a loss because of the downturn in the real estate market. {Id.) 9 In addition, one of the Abbotts' properties in Fair Oaks was taken over by eminent 10 domain. (Decl. of Rodney Abbott, T| 7; Decl. of Florentme Abbott, Tf 7.) Because that property 11 had more debt than equity, the Abbotts do not expect to receive any money from the eminent 12 domain action. {Id.) 13 The Abbotts are struggling financially. (Decl. of Rodney Abbott, If 8; Decl. of 14 Florentine Abbott, ^8.) In the past year, they have had less income and have incurred 15 substantial attorney's fees and costs in connection with this case. {Id.) They have also lost 16 equity in their real properties as noted above. {Id.) It is unlikely they will be able to obtain a 17 bond or undertaking on appeal, due to their present financial situation. {Id.; Decl. of C. Athena 18 Roussos, m 2-3.) 19 III. The Court Should Exercise its Discretion to Deny the Motion. 20 Plaintiffs agree that the Court has discretion in deciding CA Construction's motion 21 pursuant to Code of Civil Procedure § 917.9. Section 917.9(a) provides that "[t]he perfecting of 22 an appeal shall not stay enforcement of the judgment or order in cases not provided for in 23 Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, requires an undertaking and 24 the imdertaking is not given..." when there is a judgment against the appellant solely for costs. 25 Code Civ. Proc. § 917.9(a)(3).' 26 27 ' Contrary to CA Construction's assertion, attorney's fees awards under Civil Code § 1717 are 28 considered "routine" costs and automatically stayed on appeal. See Chapala Mgmt. Corp. v. Stanton {2010) 186 Cal.App.4th 1532,1545-1546. PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 3 1 A. There is no evidence the Abbotts are evading the judgment. 2 The Court should deny Defendant CA Construction's motion since there is no evidence 3 that the Abbotts are "actively dumping and moving assets to avoid the judgment rendered 4 against them." {See Defendant's Mem. Points & Auth., at 3.) The only evidence CA 5 Construction points to in support of its argument are events that took place in February, months 6 before the fmal judgment that included costs and fees. {See id.) 7 The Court did not enter a judgment including costs and fees against the Abbotts until 8 June 2011. C A Construction did not serve notice of entry until a month later, on July 7,2011. 9 The costs were initially awarded in April 2011 and fees awarded at the end of May 2011. Thus, 10 the Abbotts did not do anything in February to "avoid the judgment rendered against them" II since they had no liability for fees or costs to CA Construction at that time. 12 Further, the Abbotts have not done anj^hing improper or illegal. Like many in this area, 13 they have real properties with negative equity. They transferred two properties, one an 14 undeveloped property, to an LLC entity that they own. They recently sold the undeveloped 15 Lincoln Village Lot for fair market value, but at a loss due to the downturn in the local real 16 estate market. They still have the Stonybeck Circle Property and other properties as well. 17 Based on the evidence it submitted, CA Construction has not demonstrated any improper 18 conduct or irreparable harm. The Court should deny the motion on this basis alone. 19 B. The Abbotts are struggling financially and cannot afford a bond. 20 The Court should also deny the motion, because the Abbotts are struggling financially 21 and it is highly unlikely they will be able to obtain a bond on appeal. See Code Civ. Proc. 22 § 995.240 (court may, in its discretion, waive bond requirement if principal xmable to give bond 23 because of indigency and unable to obtain sureties; court may consider all factors it deems 24 relevant). In the past year, the Abbotts have had less income and have incurred substantial 25 attorney's fees and costs in connection with this case. They have also lost equity in their real 26 properties as noted above. 27 Based on their situation, it is highly unlikely that the Abbotts will be able to obtain a 28 bond or other undertaking on appeal. It is normally quite difficult for an individual to obtain a PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 4 1 bond from an admitted surety insurer in California, unless that individual is wealthy and can 2 provide sufficient collateral for the bond. (Decl. of C. Athena Roussos, ^3.) Bond companies 3 generally require an irrevocable letter of credit or similar type of collateral as a prerequisite for 4 obtaining the bond. {Id.) They also charge a premium of at least 1% of the value of the bond. 5 {Id.) The Abbotts simply do not have the assets sufficient to provide collateral for a bond or the 6 additional fees associated with it. 7 Accordingly, the Court should deny the motion since the Abbotts cannot afford to obtain 8 a bond at this time, and imposing such a requirement would unduly punish them simply by 9 virtue of theirfinancialposition. 10 C. Alternatively, the Court should give the Abbotts a reasonable 11 amount of time to obtain a bond and should revise the order 12 proposed by CA Construction. 13 If the Court is inclined to order Plaintiffs to obtain a bond. Plaintiffs request that the 14 Court provide them wdth a reasonable amount of time—at least 30 days—^to attempt to secure a 15 bond or other undertaking. Obtaining a bond is also a time consuming process that can take 16 weeks to complete. (Decl. of C. Athena Roussos, Tf 3.) 17 If Plaintiffs are unable to obtain a bond, the Court should make clear in its order that 18 failure to obtain a bond simply means that execution of the judgment is not stayed pursuant to 19 Code of Civil Procedure § 917.9. A bond is not a prerequisite to an appeal, nor may Plaintiffs 20 be held in contempt for failure to obtain a bond, yet it appears that is what Defendant CA 21 Construction is attempting, based on the language of its proposed order. Rather, the bond is 22 only a condition to a stay, which is what the plain language of section 917.9 provides. See 23 Buchwaldv. Katz (1972) 8 Cal.3d 493, 498; Hasendahlv. J.D. Halsted Lumber Co. (1933) 131 24 Cal.App. 224, 225. 25 D. Conclusion 26 For all the foregoing reasons. Plaintiffs respectfully request that the Court deny 27 Defendant CA Construction's motion for an order compelling them to obtain a bond on appeal. 28 /// PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 5 1 Alternatively, if the Court is inclined to order a bond. Plaintiffs request that the Court 2 allow them at least 30 days to attempt to secure a bond or other undertaking. Further, the Court 3 should make clear in its order that failure to obtain a bond simply means that execution of the 4 judgment is not stayed pursuant to Code of Civil Procedure § 917.9. 5 Ik. 6 Dated: August r f , 2 0 1 1 By:_ C. ATHENA ROUSSOS 7 Attorney for Plaintiffs 8 Rodney and Florentine Abbott 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR BOND ON APPEAL - 6