Preview
I Todd A. Jones (Bar No. 198024)
tjones(§archemorris.com
2 Gregory K. Federico (Bar No. 242184)
gfederico(^archemorris.com
3 ARCHERNORRIS
A Professional Law Corporation .
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attomeys for Defendants
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT,
13 REPLY BRIEF IN SUPPORT OF
Plaintiffs, DEFENDANT CA CONSTRUCTION'S
14 MOTION FOR AN ORDER COMPELLING
PLAINTIFFS FLORENTINE AND
15 RODNEY ABBOTT TO OBTAIN A BOND
RONALD PAUL BRITSCHGI, et al., ON APPEAL
16
Defendants. Action Filed: September 24, 2007
17
Date: August 26, 2011
18 Time: 9:30 a.m.
Dept: 43
19 Judge: Honorable Brian Van Camp
20
21
AND ALL RELATED CROSS-ACTIONS.
22
23
Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
24
("CA CONSTRUCTION") hereby files this reply brief in support ofits Motion for an Order
25
Compelling Plaintiffs FLORENTINE and RODNEY ABBOTT ("PlaintifTs") to Obtain a Bond in
26
connection with their appeal pending in the Court of Appeal of the State of Califomia in and for
27
the Third Appellate District (Appellate Case No. C067866).
28
NIC34I/1209452-1
REPLY BRIEF IN SUPPORTOF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL
1 I.
ARGUMENT
2
A. CA CONSTRUCTION HAS NOT DELAYED IN BRINGING THE
3 PRESENT MOTION
4 During the recent ex-parte hearing to continue the hearing on the bond motion, the Court
5 and parties discussed how the real estate transfers occurred in Febraary, but the motion was not
6 filed until July and therefore CA Constraction has suffered no prejudice. However, CA
7 Constraction could not file this motion until the Judgment wasfinalizedby the Court. As soon as
.8 this occurred, it did not delay in bringing the present motion. A brief recap of dates is pertinent.
9 On Febraary 3. 2011. the Court entered judgment in favor of CA CONSTRUCTION on
10 all causes of action.
11 On Febraary 16.2011. CA Constraction filed its memorandum of costs in the amount of
12 $84,555.06. On or about March 2, 2011, Plainfiffsfileda Motion to Tax Costs.
13 On Febraary 16, 2011. CA Constraction filed its Motion for Attomeys Fees in which it
1*^ originally sought $207,494 in attorneys' fees pursuant to contract.
15 In approximately Februarv or March 2011. CA Constraction began researching its ability
16 to collect on any cost and attomey fee award it ultimately received. Our research involved
11 determining the real property assets of Plaintiffs, which revealed that in approximately January
1^ 2011 (at or near the time of trial). Plaintiffs owned six (6) pieces of real property in various areas
19 of northem Califomia. Our research revealed the Febraary 18, 2011 fi-ee transfers (gifts) of the
20 Fair Oaks and Lincoln properties fiom the Abbotts to "Way Enterprises, LLC." Our research also
21 revealed Rodney Abbott's Febraary 16, 2011 Chapter 13 bankraptcy filing. This bankruptcy
2.2 filing occurred just two (2) days before the properties were gifted away to the LLC for no value.
23 At the time the research was done, the cost and attomey fee judgment had not been finalized.
24 On April 13. 2011. after hearing oral argument, the Court awarded CA Constraction all of
25 its costs, including $70,380.00 in expert witness fees pursuant to Code of Civil Procedure section
26 99g. On the same date, the Court also issued its preliminary raling on the attorneys' fees issue
27 andraledthat CA Constmction was entitied to attomeys' fees and that its hourly rate was
28
NIC341/1209452-1
REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL
1 reasonable. The only issue that was not decided was the total amount of fees for which the Court
2 requested additional briefing. The hearing on this issue was set for May. 13, 2011, continued until
3 May 20th and then continued again until May 27th. Thus, in April 2011, CA Constraction was
4 awarded all of its costs and the Court had acknowledged its right to attomeys fees.
5 On May 3. 2011. prior to the Courtfinalralingon the fee issue, CA Constraction sought
6 to obtain a date for an ex-parte hearing on the bond issue. The request for a bond was based on
7 the recent real estate transfers and bankraptcy filing. CA Constraction feared there woiild be
8 littie to no assets remaining once thejudgment wasfinalized,and a bond may provide the only
9 means of relief for CA Constraction. The Court scheduled an ex-parte hearing on May 9, 2011,
10 but CA Construction took the hearing off calendar after the Court issued its Notice of Ex-
11 Parte Hearing Date indicating such a request was premature given the fact that tbe Court
12 had not issued itsfinalruling on the fee issue.
13 On Mav 27. 2011. the Court awarded CA Construction $ 180,658.50 in contractual
14 attomeys fees pursuant to Civil Code section 1717. Thereafter, the Court's judgment required
15 several amendments and was not issued in its final forra until June 22. 2011. Notice of Entry of
16 Judgment occurred on July 6, 2011. On Julv 15, 2011. CA Constmction filed the present motion.
17 Thus, until CA Constraction received a fmal judgment from the Court for an award of fees
18 and costs, it had no basis to compel Plaintiffs to obtain a bond. Once thejudgment was finalized
19 on June 22, 2011, CA Constraction had an award of fees and costs in hand and it could now seek
20 its requested relief from the Court for a bond, which was again based pn Plaintiffs' efforts to
21 move real property and Mr. Abbott's attempted bankraptcy.
•^^ B. CA CONSTRUCTION'S BELIEF THAT PLAINTIFFS ARE MOVING
23 ASSETS IS REASONABLE AND THE REQUESTED RELIEF IS MADE IN
GOOD FAITH
24 As outlined in the motion. Plaintiffs were moving real property assets just two (2) weeks
25 after their defeat at trial. The outward appearance of these transfers led to the belief that Plainliffs
26 were actively moving and/or dumping assets to limit their potential exposure on anyjudgment
27 rendered against them. This was and continues to be a reasonable belief for several reasons.
28
NIC34I/I209452-I 3
REPLY BRIEF FN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS t O OBTAIN A BOND ON APPEAL
1 First, Plaintiffs' ovm admission in their opposition that the properties were transferred to
2 an LLC they created and own raises serious concems. Thejudgment was rendered against
3 Rodney and Florentine Abbott and not the LLC, so it is reasonable to believe the Abbott's are
4 moving assets off their books to limit their exposure. Their declarations regarding financial
5 difficulty and the negative equity of these properties are self-serving and unsupported by
6 documentation that substantiates the value or lack of value of their properties. Moreover, based
7 on the history of this case, declarations issued by Mrs. Abbott under penalty of perjury, should be
8 viewed cautiously.
9 Second, after an exhaustive search on the Califomia Secretary of State website, "The Way
10 Enterprises, LLC" identified by Plaintiffs and their counsel does not exist. "Way Enterprises,
11 LLC", which is based in southem Califomia, does exist. However, Plaintiffs claim it has no
12 affiliation with these transfers. This lends to the belief that these were sham transfers to an entity
13 that may or may not exist. Regardless, the entity is still apparentiy owned by the Abbott's.
14 Third, Mr. Abbottfiledbankruptcy two (2) days before gifting two (2) properties away.
15 He did ndt file any schedules of assets with his bankraptcy petition and for this reason, it was
16 dismissed. Again, the outward appearance of these transfers just two (2) days after his bankraptcy
17 filing does not appear to be coincidental, but purposeful.
18 Fourth, as discussed at the recent ex-parte hearing to continue the motion on the bond, we
19 advised the Court that Plaintiffs have more recently moved real property assets out of their name.
20 On July 18, 2011, counsel for CA Constraction performed an assert search pertaining to Rodney
21 Abbott and Florentine Abbott. The search report revealed real property located at 147 Gilda
22 Drive, Irwin, Idaho 83428, wherein Rodney Abbott held an interest to the deed. The report also
23 indicates that, on May 20,2011, Rodney Abbott signed a Quitclaim Deed releasing his interest in
24 the property to his father. We did not discover this transfer until after the motion was filed.
25 For all of the reasons outlined above, CA Construction will suffer irreparable harm and
26 prejudice if Plaintiffs are not required to obtain a bond in an amount sufficient to satisfy the cost
27 and attomeys fees award. Regardless of their trae intentions and what they declare. Plaintiffs
28 appear to be actively taking assets out of their own name to make themselves judgment proof In
NIC34 l/l 209452-1 4
REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL
1 order to preserve any remaining assets that can be used to satisfy the judgment. Plaintiffs should
2 be ordered to obtain a bond or undertaking on appeal. A bondraaybe CA Constraction's only
3 tool for recovery at the end of the day.
" C. THE MONETARY REQUIREMENTS ASSOCIATED WITH A
5 I BOND ARE NOT SIGNIFICANT AND SHOULD BE BORNE BY THE
ABBOTT'S, OR IN THE ALTERNATIVE, THE ABBOTT'S SHOULD BE
6 i REQUIRED TO DEMONSTRATE THEIR INABILITY TO PAY VIA
FINANCIAL DISCLOSURES AND MORE DETAILED DECLARATIONS
7
The Abbott's argue thatfinancialprobleras will make it difficult for them to obtain a
8
bond. Also, their counsel argues that it wall be difficult for them to obtain a bond because they are
9
not wealthy and they likely cannot provide sufficient collateral for the bond. The declarations of
10
the Abbott's are self-serving and do not contain factual or documentary support regarding their
11
financial difficulties or inability to obtain a bond. For instance, there are no facts that detail
12
inquiries to sureties regarding the cost of a bond or what sort of collateral is actually required.
13
Recently, counsel for CA Constraction spoke with Greg Franks, an independent bond
14
agent. Based on our conversation, the collateral amount on a bond can rangefromapproximately
15
2.5 - 3.5% of the total bond amount. Based on a requested bond of $376,557.75, it wdll run about
16
$9,413.94 to $13,179.52. As Plaintiffs point out in their opposition, they believe the costs may be
17
even less at approximately 1% of the bond amount, or $3,765.57. Either way, this amount is
18
nominal and the Abbott's have not specifically shown an inability to fund a bond in this range.
19
The Abbott's are not indigent and based on the cursory declarations they submitted, it is
20
unclear whether they face the requisitefinancialdifficulty that qualifies for an exemption. The
21
attoraey fees and costs they have incurred to their own attomeys as a result of this action are of
22
their own doing and could have been avoided during prior settlement discussions. The Abbott's
23
appear to own substantial real property, and they may own other assets not currently known to the
24
Court and CA Constraction. Privacy laws prevent CA Constraction from obtaining more detailed
25
financial information pertaining to vehicles, boats and bank accounts. If the Court is inclined to
26
waive bond, the Abbott's must make a detailed showing of their inability to secure the bond.
27 •
///
28
N1C341/I209452-1 5
REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL
1 D. THE PROPOSED ORDER IS PROPER
2 The language in the proposed order is straightforward. CA Constraction requests that the
3 Court order Plaintiffs to obtain a bond to secure against the award of attomeys fees and non-
4 routine expert costs awarded pursuant to Code of Civil Procedure section 998. It also requires the
5 Court to designate the amount ofthe bond. The proposed order mentions nothing about contempt
6 or fulfilhnent of the bond being a pre-requisite to the appeal. CA Constmction understands that
7 the continuation of the appeal is a distinct issuefromthe bond issue. CA Constmction is only
8 concemed with protecting against what appears to be dwindling assets subject to the judgment.
9. CA Constraction has no objection to the Court removing the stay imposed by the appeal
10 should a bond be ordered and Plaintiffs fail to obtain that bond. Thereafter, it can proceed to
11 execute the judgment it was awarded at trial.
12 Bottom line, CA Construction must receive assurances that it will be able to satisfy its
13 judgment against Plaintiffs and recover all or a portion of the costs and attomeys' fees if and
14 when Plaintiffs' appeal fails. If the Court orders Plaintiffs to obtain a bond, this will provide
15 some assurances that CA Constraction will receive some recovery in this action. Without such
16 bond, it is unclear if any assets will remain after Plaintiffs exhaust their appeal based on what
17 appears to be overt attempts by Plaintiffs to limit their exposure to judgment.
18 H.
19 CONCLUSION
2Q Based on the above and its arguments in its motion, CA Construction hereby requests that
21
22
23
24
25
// •
the Court order Plaintiffs to obtain a bond to secure its award of "non-routine" expert costs and.
attomeys' fees.
///
///
26 ///
27 III
28 III
NIC34I/1209452-1
REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL
1 The bond should be in the amount of $376,557.75 (1.5 times thejudgment), or in the
2 altemative, in an amount to be fixed by the Court in its sound discretion.
3
Dated: August 22, 2011 ARCHERNORRI
4
5
6 Gregory K. Federico
Attomeys for Defendant
7 RICHARD KIRK RUYBALID, individually,
8 and dba CA CONSTRUCTION
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NIC341/1209452-1
REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER
COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL
Preview
I Todd A. Jones (Bar No. 198024) tjones(§archemorris.com 2 Gregory K. Federico (Bar No. 242184) gfederico(^archemorris.com 3 ARCHERNORRIS A Professional Law Corporation . 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attomeys for Defendants 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, 13 REPLY BRIEF IN SUPPORT OF Plaintiffs, DEFENDANT CA CONSTRUCTION'S 14 MOTION FOR AN ORDER COMPELLING PLAINTIFFS FLORENTINE AND 15 RODNEY ABBOTT TO OBTAIN A BOND RONALD PAUL BRITSCHGI, et al., ON APPEAL 16 Defendants. Action Filed: September 24, 2007 17 Date: August 26, 2011 18 Time: 9:30 a.m. Dept: 43 19 Judge: Honorable Brian Van Camp 20 21 AND ALL RELATED CROSS-ACTIONS. 22 23 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 24 ("CA CONSTRUCTION") hereby files this reply brief in support ofits Motion for an Order 25 Compelling Plaintiffs FLORENTINE and RODNEY ABBOTT ("PlaintifTs") to Obtain a Bond in 26 connection with their appeal pending in the Court of Appeal of the State of Califomia in and for 27 the Third Appellate District (Appellate Case No. C067866). 28 NIC34I/1209452-1 REPLY BRIEF IN SUPPORTOF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL 1 I. ARGUMENT 2 A. CA CONSTRUCTION HAS NOT DELAYED IN BRINGING THE 3 PRESENT MOTION 4 During the recent ex-parte hearing to continue the hearing on the bond motion, the Court 5 and parties discussed how the real estate transfers occurred in Febraary, but the motion was not 6 filed until July and therefore CA Constraction has suffered no prejudice. However, CA 7 Constraction could not file this motion until the Judgment wasfinalizedby the Court. As soon as .8 this occurred, it did not delay in bringing the present motion. A brief recap of dates is pertinent. 9 On Febraary 3. 2011. the Court entered judgment in favor of CA CONSTRUCTION on 10 all causes of action. 11 On Febraary 16.2011. CA Constraction filed its memorandum of costs in the amount of 12 $84,555.06. On or about March 2, 2011, Plainfiffsfileda Motion to Tax Costs. 13 On Febraary 16, 2011. CA Constraction filed its Motion for Attomeys Fees in which it 1*^ originally sought $207,494 in attorneys' fees pursuant to contract. 15 In approximately Februarv or March 2011. CA Constraction began researching its ability 16 to collect on any cost and attomey fee award it ultimately received. Our research involved 11 determining the real property assets of Plaintiffs, which revealed that in approximately January 1^ 2011 (at or near the time of trial). Plaintiffs owned six (6) pieces of real property in various areas 19 of northem Califomia. Our research revealed the Febraary 18, 2011 fi-ee transfers (gifts) of the 20 Fair Oaks and Lincoln properties fiom the Abbotts to "Way Enterprises, LLC." Our research also 21 revealed Rodney Abbott's Febraary 16, 2011 Chapter 13 bankraptcy filing. This bankruptcy 2.2 filing occurred just two (2) days before the properties were gifted away to the LLC for no value. 23 At the time the research was done, the cost and attomey fee judgment had not been finalized. 24 On April 13. 2011. after hearing oral argument, the Court awarded CA Constraction all of 25 its costs, including $70,380.00 in expert witness fees pursuant to Code of Civil Procedure section 26 99g. On the same date, the Court also issued its preliminary raling on the attorneys' fees issue 27 andraledthat CA Constmction was entitied to attomeys' fees and that its hourly rate was 28 NIC341/1209452-1 REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL 1 reasonable. The only issue that was not decided was the total amount of fees for which the Court 2 requested additional briefing. The hearing on this issue was set for May. 13, 2011, continued until 3 May 20th and then continued again until May 27th. Thus, in April 2011, CA Constraction was 4 awarded all of its costs and the Court had acknowledged its right to attomeys fees. 5 On May 3. 2011. prior to the Courtfinalralingon the fee issue, CA Constraction sought 6 to obtain a date for an ex-parte hearing on the bond issue. The request for a bond was based on 7 the recent real estate transfers and bankraptcy filing. CA Constraction feared there woiild be 8 littie to no assets remaining once thejudgment wasfinalized,and a bond may provide the only 9 means of relief for CA Constraction. The Court scheduled an ex-parte hearing on May 9, 2011, 10 but CA Construction took the hearing off calendar after the Court issued its Notice of Ex- 11 Parte Hearing Date indicating such a request was premature given the fact that tbe Court 12 had not issued itsfinalruling on the fee issue. 13 On Mav 27. 2011. the Court awarded CA Construction $ 180,658.50 in contractual 14 attomeys fees pursuant to Civil Code section 1717. Thereafter, the Court's judgment required 15 several amendments and was not issued in its final forra until June 22. 2011. Notice of Entry of 16 Judgment occurred on July 6, 2011. On Julv 15, 2011. CA Constmction filed the present motion. 17 Thus, until CA Constraction received a fmal judgment from the Court for an award of fees 18 and costs, it had no basis to compel Plaintiffs to obtain a bond. Once thejudgment was finalized 19 on June 22, 2011, CA Constraction had an award of fees and costs in hand and it could now seek 20 its requested relief from the Court for a bond, which was again based pn Plaintiffs' efforts to 21 move real property and Mr. Abbott's attempted bankraptcy. •^^ B. CA CONSTRUCTION'S BELIEF THAT PLAINTIFFS ARE MOVING 23 ASSETS IS REASONABLE AND THE REQUESTED RELIEF IS MADE IN GOOD FAITH 24 As outlined in the motion. Plaintiffs were moving real property assets just two (2) weeks 25 after their defeat at trial. The outward appearance of these transfers led to the belief that Plainliffs 26 were actively moving and/or dumping assets to limit their potential exposure on anyjudgment 27 rendered against them. This was and continues to be a reasonable belief for several reasons. 28 NIC34I/I209452-I 3 REPLY BRIEF FN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS t O OBTAIN A BOND ON APPEAL 1 First, Plaintiffs' ovm admission in their opposition that the properties were transferred to 2 an LLC they created and own raises serious concems. Thejudgment was rendered against 3 Rodney and Florentine Abbott and not the LLC, so it is reasonable to believe the Abbott's are 4 moving assets off their books to limit their exposure. Their declarations regarding financial 5 difficulty and the negative equity of these properties are self-serving and unsupported by 6 documentation that substantiates the value or lack of value of their properties. Moreover, based 7 on the history of this case, declarations issued by Mrs. Abbott under penalty of perjury, should be 8 viewed cautiously. 9 Second, after an exhaustive search on the Califomia Secretary of State website, "The Way 10 Enterprises, LLC" identified by Plaintiffs and their counsel does not exist. "Way Enterprises, 11 LLC", which is based in southem Califomia, does exist. However, Plaintiffs claim it has no 12 affiliation with these transfers. This lends to the belief that these were sham transfers to an entity 13 that may or may not exist. Regardless, the entity is still apparentiy owned by the Abbott's. 14 Third, Mr. Abbottfiledbankruptcy two (2) days before gifting two (2) properties away. 15 He did ndt file any schedules of assets with his bankraptcy petition and for this reason, it was 16 dismissed. Again, the outward appearance of these transfers just two (2) days after his bankraptcy 17 filing does not appear to be coincidental, but purposeful. 18 Fourth, as discussed at the recent ex-parte hearing to continue the motion on the bond, we 19 advised the Court that Plaintiffs have more recently moved real property assets out of their name. 20 On July 18, 2011, counsel for CA Constraction performed an assert search pertaining to Rodney 21 Abbott and Florentine Abbott. The search report revealed real property located at 147 Gilda 22 Drive, Irwin, Idaho 83428, wherein Rodney Abbott held an interest to the deed. The report also 23 indicates that, on May 20,2011, Rodney Abbott signed a Quitclaim Deed releasing his interest in 24 the property to his father. We did not discover this transfer until after the motion was filed. 25 For all of the reasons outlined above, CA Construction will suffer irreparable harm and 26 prejudice if Plaintiffs are not required to obtain a bond in an amount sufficient to satisfy the cost 27 and attomeys fees award. Regardless of their trae intentions and what they declare. Plaintiffs 28 appear to be actively taking assets out of their own name to make themselves judgment proof In NIC34 l/l 209452-1 4 REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL 1 order to preserve any remaining assets that can be used to satisfy the judgment. Plaintiffs should 2 be ordered to obtain a bond or undertaking on appeal. A bondraaybe CA Constraction's only 3 tool for recovery at the end of the day. " C. THE MONETARY REQUIREMENTS ASSOCIATED WITH A 5 I BOND ARE NOT SIGNIFICANT AND SHOULD BE BORNE BY THE ABBOTT'S, OR IN THE ALTERNATIVE, THE ABBOTT'S SHOULD BE 6 i REQUIRED TO DEMONSTRATE THEIR INABILITY TO PAY VIA FINANCIAL DISCLOSURES AND MORE DETAILED DECLARATIONS 7 The Abbott's argue thatfinancialprobleras will make it difficult for them to obtain a 8 bond. Also, their counsel argues that it wall be difficult for them to obtain a bond because they are 9 not wealthy and they likely cannot provide sufficient collateral for the bond. The declarations of 10 the Abbott's are self-serving and do not contain factual or documentary support regarding their 11 financial difficulties or inability to obtain a bond. For instance, there are no facts that detail 12 inquiries to sureties regarding the cost of a bond or what sort of collateral is actually required. 13 Recently, counsel for CA Constraction spoke with Greg Franks, an independent bond 14 agent. Based on our conversation, the collateral amount on a bond can rangefromapproximately 15 2.5 - 3.5% of the total bond amount. Based on a requested bond of $376,557.75, it wdll run about 16 $9,413.94 to $13,179.52. As Plaintiffs point out in their opposition, they believe the costs may be 17 even less at approximately 1% of the bond amount, or $3,765.57. Either way, this amount is 18 nominal and the Abbott's have not specifically shown an inability to fund a bond in this range. 19 The Abbott's are not indigent and based on the cursory declarations they submitted, it is 20 unclear whether they face the requisitefinancialdifficulty that qualifies for an exemption. The 21 attoraey fees and costs they have incurred to their own attomeys as a result of this action are of 22 their own doing and could have been avoided during prior settlement discussions. The Abbott's 23 appear to own substantial real property, and they may own other assets not currently known to the 24 Court and CA Constraction. Privacy laws prevent CA Constraction from obtaining more detailed 25 financial information pertaining to vehicles, boats and bank accounts. If the Court is inclined to 26 waive bond, the Abbott's must make a detailed showing of their inability to secure the bond. 27 • /// 28 N1C341/I209452-1 5 REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL 1 D. THE PROPOSED ORDER IS PROPER 2 The language in the proposed order is straightforward. CA Constraction requests that the 3 Court order Plaintiffs to obtain a bond to secure against the award of attomeys fees and non- 4 routine expert costs awarded pursuant to Code of Civil Procedure section 998. It also requires the 5 Court to designate the amount ofthe bond. The proposed order mentions nothing about contempt 6 or fulfilhnent of the bond being a pre-requisite to the appeal. CA Constmction understands that 7 the continuation of the appeal is a distinct issuefromthe bond issue. CA Constmction is only 8 concemed with protecting against what appears to be dwindling assets subject to the judgment. 9. CA Constraction has no objection to the Court removing the stay imposed by the appeal 10 should a bond be ordered and Plaintiffs fail to obtain that bond. Thereafter, it can proceed to 11 execute the judgment it was awarded at trial. 12 Bottom line, CA Construction must receive assurances that it will be able to satisfy its 13 judgment against Plaintiffs and recover all or a portion of the costs and attomeys' fees if and 14 when Plaintiffs' appeal fails. If the Court orders Plaintiffs to obtain a bond, this will provide 15 some assurances that CA Constraction will receive some recovery in this action. Without such 16 bond, it is unclear if any assets will remain after Plaintiffs exhaust their appeal based on what 17 appears to be overt attempts by Plaintiffs to limit their exposure to judgment. 18 H. 19 CONCLUSION 2Q Based on the above and its arguments in its motion, CA Construction hereby requests that 21 22 23 24 25 // • the Court order Plaintiffs to obtain a bond to secure its award of "non-routine" expert costs and. attomeys' fees. /// /// 26 /// 27 III 28 III NIC34I/1209452-1 REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL 1 The bond should be in the amount of $376,557.75 (1.5 times thejudgment), or in the 2 altemative, in an amount to be fixed by the Court in its sound discretion. 3 Dated: August 22, 2011 ARCHERNORRI 4 5 6 Gregory K. Federico Attomeys for Defendant 7 RICHARD KIRK RUYBALID, individually, 8 and dba CA CONSTRUCTION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/1209452-1 REPLY BRIEF IN SUPPORT OF DEFENDANT CA CONSTRUCTION'S MOTION FOR AN ORDER COMPELLING PLAINTIFFS TO OBTAIN A BOND ON APPEAL