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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 08/26/2011 TIME: 09:30:00 AM DEPT: 43
JUDICIAL OFFICER PRESIDING: Brian Van Camp
CLERK: A. Brown
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: None
CASE NO: 07AS04450 CASE INIT.DATE: 09/24/2007
CASE TITLE: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion - Other - Civil Special Sets
APPEARANCES
PROCEEDINGS: Defendant's Motion to Compel Plaintiffs Rodney Abbott and Florentine Abbott to Give
an Undertaking or
Obtain a Bond on Appeal
The above-indicated hearing came before this Court on this day.
The Court, having received, read and considered all papers submitted in this matter, published its
tentative ruling via the court's website, a copy of which is fully incorporated within this Minute Order.
There being no request for oral argument, the Court AFFIRMS its tentative ruling which is now the order
of the Court.
Court was adjourned.
TENTATIVE RULING:
Defendant's Request of Judicial Notice is granted as to Exhibits A, B, C, and D.
Defendant Richard Ruybalid, individually, and DBA CA Construction ("Defendant"), seek an order to
compel Plaintiffs Rodney Abbott and Florentine Abbott("Plaintiffs") to give an undertaking or obtain a
bond on appeal in the amount of $376,557.75 or in an amount fixed by the Court. Plaintiffs are
appealing the Court's order awarding litigation costs and attorney's fees to Defendant in the total amount
of $265,213.56 as follows: $14,175.06 for CCP § 1033.5 costs; $70,380 for CCP § 998 expert witness
fees and $180, 658.50 for contractual attorney's fees. For the reasons set forth below, the motion must
be denied.
In certain cases where an appeal would normally be stayed automatically, the trial court has discretion to
condition the stay on filing a bond or undertaking. (Code Civ. Proc., § 917.9(a).) The trial court's
discretionary power to require security where security would not otherwise be required pursuant to Code
of Civil Procedure sections 917.1 to 917.8 is limited to cases described in subdivision (a) of section
917.9. In this case, section 917(a)(3) is applicable, as Plaintiffs are appealing a judgment against them
solely for costs awarded to Defendant pursuant to Code of Civil Procedure section 1021 et seq.
DATE: 08/26/2011 MINUTE ORDER Page 1
DEPT: 43 Calendar No.
CASE TITLE: Rodney Abbott, et al vs. Ronald Paul CASE NO: 07AS04450
Britschgi, et al
A judgment solely for costs of suit pursuant to Code of Civil Procedure section 1021 et seq. (as
distinguished from money judgments consisting of damages and costs) is automatically stayed on
appeal. (Code Civ. Proc., § 917.1(d).) In contrast, costs awarded pursuant to section 998, including
expert witness fees, are not stayed pending appeal. (Code Civ. Proc. § 917.1(a)(2); Bank of San Pedro
v. Superior Court (Goodstein) (1992) 3 Cal.4th 797, 805; Gallardo v. Specialty Restaurants Corporation
(2000) 84 Cal.App.4th 463, 468-470.) Defendant cites Bank of San Pedro, supra, and Chamberlin v.
Dale's R.V. Rentals, Inc. (1986) 188 Cal.App.3d 356, 360, for the proposition that an attorney's fee
award, like section 998 costs, is also not automatically stayed pending appeal and is subject to the
money judgment bonding requirement of Code of Civil Procedure section 917.1. (See also Behniwal v.
Mix (2007) 147 Cal. App. 4th 621, 632-634 [treating attorney's fees like expert fees by following rationale
of Bank of San Pedro].)
While Defendant makes the argument that costs awarded pursuant to Code of Civil Procedure section
998 and an attorney's fee award are subject to the money judgment bonding requirement, Defendant
has also demonstrated that these costs and fees are not stayed pending appeal. As such, Defendant
may utilize the tools available under the Enforcement of Judgments Law (commencing with Code Civ.
Proc., § 680.010 et al.) to presently seek enforcement of the judgment for Section 998 costs and
attorney's fees. The only portion of the judgment automatically stayed is the $14, 175.06 for ordinary
costs awarded under section 1033.5. (Code Civ. Proc., § 917.1(d).)
In seeking an order to compel Plaintiff to obtain a bond pursuant to Code of Civil Procedure section
917.9, Defendant contends that Plaintiffs are actively dumping and moving assets in an effort to avoid
the judgment rendered against them. (Declaration of Gregory Federico, p. 4, l. 3-4.) Defendant
contends that Plaintiffs were gifting away their valuable real property assets just two weeks after the jury
returned a defense verdict and after judgment was entered on February 3, 2011. Defendant further
contends that Plaintiff Rodney Abbott filed a petition for bankruptcy on February 16, 2001, which was
dismissed on March 7, 2011. As proof of these contentions, Defendant relies on the Federico
Declaration and RJN A, B, C, and D. While RJN A and B shows that Plaintiffs deeded property to Way
Enterprises, LLC, the declaration, as based on information and belief, fails to show that Gregory
Federico has personal knowledge to know that Plaintiffs are dumping property to avoid the judgment.
While it may be true that Plaintiff Rodney Abbott filed a petition for bankruptcy, that petition has been
dismissed.
In Opposition, Plaintiffs submit the separate but identical declarations of Rodney Abbott and Florentine
Abbott, to the effect that CA Construction's claims that they were "dumping" properties to evade
judgment are untrue. Plaintiffs further state that they are struggling financially, so have attempted to sell
some properties due to the high debt and negative equity caused by this economic downturn. Plaintiffs
warrant that they did not sell or transfer any properties in an attempt to evade the said judgment for
attorney's fees and costs.
While Defendant may argue that it will suffer irreparable harm and that it faces imminent danger of
having no financial recourse to satisfy its judgment, Defendant has presented insufficient evidence to
demonstrate that Plaintiffs are in fact hiding assets or dumping and moving assets in an effort to avoid
judgment. The Court further questions why Defendant has not yet moved to enforce its money
judgment, since the judgment is not automatically stayed as a matter of law as to Section 998 expert
witness fees or attorney's fees.
In the exercise of its discretion, given the facts presented, the Court therefore denies Defendant's motion
for an order to compel Plaintiffs to obtain a bond pending appeal. The Court finds insufficient reason to
compel Plaintiffs to obtain a bond, when Defendant is free to utilize the usual and ordinary Enforcement
of Judgment Law to satisfy its money judgment.
DATE: 08/26/2011 MINUTE ORDER Page 2
DEPT: 43 Calendar No.
CASE TITLE: Rodney Abbott, et al vs. Ronald Paul CASE NO: 07AS04450
Britschgi, et al
DATE: 08/26/2011 MINUTE ORDER Page 3
DEPT: 43 Calendar No.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 08/26/2011 TIME: 09:30:00 AM DEPT: 43 JUDICIAL OFFICER PRESIDING: Brian Van Camp CLERK: A. Brown REPORTER/ERM: None BAILIFF/COURT ATTENDANT: None CASE NO: 07AS04450 CASE INIT.DATE: 09/24/2007 CASE TITLE: Rodney Abbott, et al vs. Ronald Paul Britschgi, et al CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion - Other - Civil Special Sets APPEARANCES PROCEEDINGS: Defendant's Motion to Compel Plaintiffs Rodney Abbott and Florentine Abbott to Give an Undertaking or Obtain a Bond on Appeal The above-indicated hearing came before this Court on this day. The Court, having received, read and considered all papers submitted in this matter, published its tentative ruling via the court's website, a copy of which is fully incorporated within this Minute Order. There being no request for oral argument, the Court AFFIRMS its tentative ruling which is now the order of the Court. Court was adjourned. TENTATIVE RULING: Defendant's Request of Judicial Notice is granted as to Exhibits A, B, C, and D. Defendant Richard Ruybalid, individually, and DBA CA Construction ("Defendant"), seek an order to compel Plaintiffs Rodney Abbott and Florentine Abbott("Plaintiffs") to give an undertaking or obtain a bond on appeal in the amount of $376,557.75 or in an amount fixed by the Court. Plaintiffs are appealing the Court's order awarding litigation costs and attorney's fees to Defendant in the total amount of $265,213.56 as follows: $14,175.06 for CCP § 1033.5 costs; $70,380 for CCP § 998 expert witness fees and $180, 658.50 for contractual attorney's fees. For the reasons set forth below, the motion must be denied. In certain cases where an appeal would normally be stayed automatically, the trial court has discretion to condition the stay on filing a bond or undertaking. (Code Civ. Proc., § 917.9(a).) The trial court's discretionary power to require security where security would not otherwise be required pursuant to Code of Civil Procedure sections 917.1 to 917.8 is limited to cases described in subdivision (a) of section 917.9. In this case, section 917(a)(3) is applicable, as Plaintiffs are appealing a judgment against them solely for costs awarded to Defendant pursuant to Code of Civil Procedure section 1021 et seq. DATE: 08/26/2011 MINUTE ORDER Page 1 DEPT: 43 Calendar No. CASE TITLE: Rodney Abbott, et al vs. Ronald Paul CASE NO: 07AS04450 Britschgi, et al A judgment solely for costs of suit pursuant to Code of Civil Procedure section 1021 et seq. (as distinguished from money judgments consisting of damages and costs) is automatically stayed on appeal. (Code Civ. Proc., § 917.1(d).) In contrast, costs awarded pursuant to section 998, including expert witness fees, are not stayed pending appeal. (Code Civ. Proc. § 917.1(a)(2); Bank of San Pedro v. Superior Court (Goodstein) (1992) 3 Cal.4th 797, 805; Gallardo v. Specialty Restaurants Corporation (2000) 84 Cal.App.4th 463, 468-470.) Defendant cites Bank of San Pedro, supra, and Chamberlin v. Dale's R.V. Rentals, Inc. (1986) 188 Cal.App.3d 356, 360, for the proposition that an attorney's fee award, like section 998 costs, is also not automatically stayed pending appeal and is subject to the money judgment bonding requirement of Code of Civil Procedure section 917.1. (See also Behniwal v. Mix (2007) 147 Cal. App. 4th 621, 632-634 [treating attorney's fees like expert fees by following rationale of Bank of San Pedro].) While Defendant makes the argument that costs awarded pursuant to Code of Civil Procedure section 998 and an attorney's fee award are subject to the money judgment bonding requirement, Defendant has also demonstrated that these costs and fees are not stayed pending appeal. As such, Defendant may utilize the tools available under the Enforcement of Judgments Law (commencing with Code Civ. Proc., § 680.010 et al.) to presently seek enforcement of the judgment for Section 998 costs and attorney's fees. The only portion of the judgment automatically stayed is the $14, 175.06 for ordinary costs awarded under section 1033.5. (Code Civ. Proc., § 917.1(d).) In seeking an order to compel Plaintiff to obtain a bond pursuant to Code of Civil Procedure section 917.9, Defendant contends that Plaintiffs are actively dumping and moving assets in an effort to avoid the judgment rendered against them. (Declaration of Gregory Federico, p. 4, l. 3-4.) Defendant contends that Plaintiffs were gifting away their valuable real property assets just two weeks after the jury returned a defense verdict and after judgment was entered on February 3, 2011. Defendant further contends that Plaintiff Rodney Abbott filed a petition for bankruptcy on February 16, 2001, which was dismissed on March 7, 2011. As proof of these contentions, Defendant relies on the Federico Declaration and RJN A, B, C, and D. While RJN A and B shows that Plaintiffs deeded property to Way Enterprises, LLC, the declaration, as based on information and belief, fails to show that Gregory Federico has personal knowledge to know that Plaintiffs are dumping property to avoid the judgment. While it may be true that Plaintiff Rodney Abbott filed a petition for bankruptcy, that petition has been dismissed. In Opposition, Plaintiffs submit the separate but identical declarations of Rodney Abbott and Florentine Abbott, to the effect that CA Construction's claims that they were "dumping" properties to evade judgment are untrue. Plaintiffs further state that they are struggling financially, so have attempted to sell some properties due to the high debt and negative equity caused by this economic downturn. Plaintiffs warrant that they did not sell or transfer any properties in an attempt to evade the said judgment for attorney's fees and costs. While Defendant may argue that it will suffer irreparable harm and that it faces imminent danger of having no financial recourse to satisfy its judgment, Defendant has presented insufficient evidence to demonstrate that Plaintiffs are in fact hiding assets or dumping and moving assets in an effort to avoid judgment. The Court further questions why Defendant has not yet moved to enforce its money judgment, since the judgment is not automatically stayed as a matter of law as to Section 998 expert witness fees or attorney's fees. In the exercise of its discretion, given the facts presented, the Court therefore denies Defendant's motion for an order to compel Plaintiffs to obtain a bond pending appeal. The Court finds insufficient reason to compel Plaintiffs to obtain a bond, when Defendant is free to utilize the usual and ordinary Enforcement of Judgment Law to satisfy its money judgment. DATE: 08/26/2011 MINUTE ORDER Page 2 DEPT: 43 Calendar No. CASE TITLE: Rodney Abbott, et al vs. Ronald Paul CASE NO: 07AS04450 Britschgi, et al DATE: 08/26/2011 MINUTE ORDER Page 3 DEPT: 43 Calendar No.