Preview
AUG - 2 2017
1 P. Kurt Peterson (SBN 067123)
M. Henry Walker (SBN 184073) DE.niilY CCJRK
2
Angela J. Okamura (SBN 280491)
3 PETERSON MARTIN & REYNOLDS LLP
299 Third Street, Suite 200
4 Oakland, CA 94607
Telephone: (415)399-2900
5 Facsimile: (415)399-2930
6
Attomeys for Defendant
7 SHARON SCOFIELD as Trustee of THE SHARON
SCOFIELD FAMILY TRUST, sued herein as SHARON
8 SCOFIELD FAMILY TRUST
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11 HAMMER LANE R.V. & MINI- CASE NO. 34-2008-00023098
STORAGE LP, a Califomia limited
« "] O 12 DEFENDANT SHARON SCOFIELD AS
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partnership; et al.,
-J U CN TRUSTEE OF THE SHARON SCOFIELD
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Plaintiffs, FAMILY TRUST'S MEMORANDUM OF
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HLMS LLC, a Califomia limited liability
company; et al.,
FOR PROTECTIVE ORDER
DATE: August 17,2017
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TIME: 2:30 p.m.
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17 Defendants. DEPT:
JUDGE:
45
Hon. Judy Hersher
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18
19 Introduction X
20 Plaintiffs oppose the motion for protective order of defendant Sharon Scofieid as Tmstee
21 of The Sharon Scofieid Family Tmst ("Scofieid") based on specious grounds that border on the
22 frivolous. First, Plaintiffs claim the motion should have been brought in another department
23 despite the fact that Plaintiffs set their May 24,2017 AppUcation and Order for Appearance and
24 Examination, which is the subject of this motion, in this very Department. (RJN, Exh. K;
25 Supplemental RJN, Exh. O.) In addition, at the hearing of Scofield's July 3,2017 ex parte
26 application, which Plaintiffs attended, this Court expressly ordered this motion to be heard in
27 Department 45. (Supplemental Request for Judicial Notice ("Supplemental RJN"), Exhs. M and
28
REPLY BRIEF ISO MTN OF DEFT.
SCOFIELD FOR PROTECTIVE ORDER
1 N (July 3, 2017 Order on Defendant Ex Parte Application for Protective Order, etc.; July 3, 2017
2 Order Determining Disposition of Ex Parte Application.)
3 Second, Plaintiffs contend that because Scofieid has not posted a bond, further proceedings
4 in the trial court, including judgment collection actions, are not stayed. This argument fails for
5 two reasons: 1) When Scofieid timely appealed the four orders, including the April 5,2017 stay
6 order, on May 15, 2017 (RJN, Exh. J), the law governing appeals incepted, and that law mandates
7 an automatic stay wdthout bond pending the appeal; 2) the April 5, 2017 stay order (RJN, Exh. I)
8 was limited to a stay pending the conclusion of an entirely separate action, and had nothing to do
9 with, and was not based on, the law governing stays pending appeals generally, or Scofield's May
10 15, 2017 appeal in particular.
11 In its Opposition, Plaintiffs also fail to address or even acknowledge the fact that this
CO "j o 12 Court previously ruled in its May 7, 2014 Order that the September 5, 2013 Judgment for
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J U M 13 Attomeys' Fees and Costs ("the Judgment") was subject to the automatically stay under Section
>- 7 916(a), and that the "money judgment" exception of Code of Civil Procedure section 917.1
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14
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w 3 F.) As also noted above, in denying Plaintiffs' earlier motion to require Scofieid to post a bond,
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15
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^ a.* the Judgment, and that no bond was required. (RJN, Exh. L.)
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16
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UJ LU ^ II. No Exceptions to the Section 916(a) Automatic Stay Rule Apply.
17
of Section 916 (a) provides in part:
18
19 "(a) Except as provided in Sections 917.1 to 917.9, inclusive, and Section
116.810, the perfecting of an appeal stays proceedings in the trial court upon the
20 judgment or order appealedfi-omor upon the matters embraced therein or affected
thereby, including enforcement of thejudgment or order...."
21
(Code Civ. Proc. § 916 (a).)
22
Accordingly, the only exceptions to the Section 916 (a) automatic stay on appeal mle are
23
to be foimd in Sections 917.1 to 917.9, and 116.810. None of those sections, with the exception
24
of Section 917.1 (d) (to be discussed below) apply.
25
///
26
27
' Section 916(b) does not apply. No stay of proceedings other than for the enforcement of thejudgment has been
28 ordered in this case. In addition, the May 15,2017 perfecting of the appeal herein stays the enforcement of the
Judginent because it is "embraced therein" and "affected thereby", as discussed in Section 111 below.
REPLY BRIEF ISO MTN OF DEFT. .3
SCOFIELD FOR PROTECTIVE ORDER
1 Sections 917.1(a), (b) and (c) are inapplicable. The bond requirements of Section 917.1(a)
2 only apply to either: Section 917.1(a)(1) - an appeal of a "money judgment" (this Court already
3 has repeatedly mled the Judgment is not a "money judgment", and in fact the current appeal is an
4 appeal from four orders relating to the Judgment); Section 917.1(a)(2) - an appeal of "costs
5 awarded pursuant to Section 998" (Section 998 is not involved in this action); Section 917.1(a)(3)
6 - an appeal of "costs awarded pursuant to Section 1141.21" Oudgment on trial de novo following
7 arbitration is not involved in this action). Sections 917.15 through 917.9, and Section 116.810 are
8 likewise inapplicable: Section 917.15 (appeals relating to hazardous substances); Section 917.2
9 (appeals involving assignment, delivery or sale of personal property on foreclosure); Section
10 917.3 (appeals involving the execution of instruments); Section 917.4 (appeals directing the sale
11 or delivery of realty; Section 917.5 (appeals involving the appointment of receivers); Section
3 <^
-2 12 917.6 (appeals involving the performance of two or more acts specified in 917.1 to 917.5);
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J y CM 13 Section 917.65 (appeals ofrightto attach orders); Section 917.7 (appeals involving custody
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w :3 — 14 issues); Section 917.75 (appeals involving Family Code proceedings); Section 917.8 (appeals
s: 2 5
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16 abatements of buildings, and governmental Health and Safety Code restraining orders or
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« 17 injunctions); Section 116.810 (relating to small cleiims court actions).
18 While Section 917.1(d) does apply to the instant appeal, as this Court has previously
19 mled, Section 917.1(d) expressly excludes the requirement of a bond. (RJN, Ex. F.) As this Court
20 noted in its May 7, 2014 Order, "(h)owever, no imdertaking shall be required pursuant to this
21 section solely for costs awarded under Chapter 6 (commencing with section 1021) of Title 14".
22 (RJN, Ex. F.)
23 Plaintiffs argue that Section 917.9(a)(3) operates to require the posting of a bond on the
24 instant appeal.^ Plaintiffs' argument is wrong and has been previously rejected by this Court. In
25 its earlier mling, this Court determined that Section 917.9(a)(3) does not apply to the Judgment in
26 this case. In his Order denying Plaintiffs' Motion to Require Posting of Bond to Stay
27 Enforcement of Judgment for Fees and Costs, Judge Abbott specifically found that: "The
28
Plaintiffs have not argued that Section 917.9(a)(1) and (2) do apply to the Judgment in this case.
REPLY BRIEF ISO MTN OF DEFT. 4
SCOFIELD FOR PROTECTIVE ORDER
1 judgment in this action is one comprised of an award of declaratory relief, and an award of fees
2 and costs." (RJN, Exh. L, p.2.) (Emphasis added.) In his order, he went on to state:
3
"Code of Civil Procedure section 917.9 provides in part: "(a) The perfecting of an
4 appeal shall not stay enforcement of the judgment or order in cases not provided
for in Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion,
5
requires an undertaking and the undertaking is not given, in any of the following
6 cases: (3) The judgment against the appellant is solely for costs awarded to
respondent by the trial court pursuant to Chapter 6 (commencing with Section
7 1021) of Title 14."
8 His mling, based on the subject Judgment being one both for declaratory relief and
9 for fees and costs, then followed:
10
"The limited discretion provided to the trial court to condition stay of enforcement
< 11
z upon defendant's posting of undertaking under Section 917.9(a)(3), extends only
CO 1 o 12 to a judgment against defendant which is 'solely for costs awarded to respondent
D < S by the trial court pursuant to Chapter 6 (commencing with Section 1021) of Title
Z z S 13 14.' As explained above, the judgment in this matter is not "solely for costs"
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14 awarded to Plaintiffs."
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Accordingly, as this Court has previously mled, Section 917.9(a)(3) does not apply to the
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17 Judgment in this case because the Judgment is one both for declaratory judgment and costs.
18 Therefore, as the Court recognized, it has no discretion to require a bond in contravention of the
19 automatic stay of Section 916(a).
20 Furthermore, and just as significantly, this Court's April 5, 2017 stay order did not
21 condition the stay on posting an appeal bond to stay the case pending an appeal in the case, but
22 instead stayed the case pending the outcome of an entirely different case [Case No. 34-2012-
23 00124071] conditioned on an unspecified bond. (RJN Exh. 1) Thus, this Court has not acted
24 under Section 917.9(a)(3) to condition the stay of enforcement of the Judgment pending the
25 appeal of this case upon Scofield's posting of an appeal bond, nor, as the Court has already mled,
26 could it do so imder governing Section 917.9(a)(3).
27
28
REPLY BRIEF ISO MTN OF DEFT.
SCOFIELD FOR PROTECTIVE ORDER
1 Accordingly, Section 916 (a) operates here to impose an automatic stay of the
2 enforcement ofthe subject Judgment following Scofield's timely filing of her notice of appeal on
3 May 15, 2017of the four orders, eind no exceptions apply to require the posting of a bond.
4 III. The Section 916(a) Automatic Stay Applies to All Matters Embraced Within or
5 Affected by the Orders Appealed From.
As provided in Section 916(a), the perfecting of an appeal stays proceedings in the trial
6
court upon the judgment or order appealed from and upon the matters embraced therein or
7
affected thereby. Here the enforcement of the Judgment is a matter manifestly embraced within
8
or affected by the orders appealed firom.
9
The four orders appealedfromall relate to the satisfaction ofthe Judgment in whole or in
10
part, and were necessitated by, among other evidence of satisfaction of judgment. Plaintiffs' June
11
10, 2015, Acknowledgement of Full Satisfaction of Judgment filed by Plaintiffs in this case.
12
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the Full Satisfaction filing was devoid of limiting language, and on its face shows that one of the
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As stated in the Varian Medical Systems case cited in Scofield's moving papers:
17
"[W]hether a matter is 'embraced' in or 'affected' by a judgment [or order] within the meaning of
18
[section 916] depends on whether postjudgment [or postorder] proceedings on the matter would
19
have any effect on the 'effectiveness' of the appeal." (Varian Medical Systems v. Delfino, (2005)
20
35 Cal. 4"' 180, at 189.) Here, it could not be more clear that an enforcement of the Judgment
21
against Scofieid at this time would render a successfiil appeal by Scofieid a meaningless Pyrrhic
22
victory, and would cause irreparable harm to her in the meantime.
23
24 IV. This Court's April 5,2017 Order Staying Enforcement of the Judgment Has
no Bearing on the Current Stay on Appeal and is Unenforceable.
25 The Court's April 5, 2017 Order Granting Motion to Stay Enforcement of Judgment did
26 not relate to any appeal of this case. To the contrary, the April 5,2017 Order stayed the case
27 pending the outcome of an entirely different case, not pending the appeal of this case. (RJN,
28 Exhibit I.) In the May 5, 2017 Order, the Court found that, if Scofieid was successfiil in Case No.
REPLY BRIEF ISO MTN OF DEFT. 6
SCOFIELD FOR PROTECTIVE ORDER
1 34-2012-00124071 against Plaintiffs herein, "her recovery could be significant, such that any
2 damages award could equal or even eclipse thejudgment entered in this case." The Court further
3 found that, "... refusing to stay enforcement of a judgment may ultimately deprive a judgment
4 debtor of the right to offset, or even the ability to recover at all. These equitable principles are
5 dispositive here. It is imfair to enforce a judgment against Scofieid while another action is
6 pending against the same Parties who hold thejudgment against Scofieid in this case." (RJN,
7 Exhibit I, pp.3:21 to 4:3.) Accordingly, the Court's April 5, 2017 Order was not issued as a stay
8 order pending the appeal in this case, but was issued as a stay order pending the conclusion of an
9 entirely separate case.
10 While the April 5, 2017 Order also conditions the stay on a bond, that portion of the Order
11 is in any event unenforceable. The bond is not an appeal bond, and is unsupported by any
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12 statutory authority. It is for an unspecified amount, unspecified type and unspecified time for
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14 pending the conclusion of the other case. Plaintiffs raised the issue of a bond for thefirsttime,
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3 5 " g 15 without notice, at oral argument at the hearing of the four motions. Not only was Scofield's due
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uj w -a- 17 conditioning a stay having nothing to do with an appeal on the posting of an appeal bond. In
18 addition, in those instances where a bond has been required on appeal, the statutes require that the
19 court state the sum ofthe undertaking, when the bond is to be posted (for an appellate bond, for
20 example, it is upon the "perfecting of the appeal"), the damages to be covered by the bond, and,
21 inter alia, other relevEint terms ofthe bond. (For example, see Sections 917.65 and 917.9(c), and
22 CCP 917.65 regarding fixing appellate bond terms.)
23 Here, in the Court's April 5, 2017 Order did not specify any terms whatsoever for the
24 bond. It is on that basis and because Plaintiffs did not move to request a bond in the trial court
25 pursuant to notice, that Scofieid has appealed the Court's April 5, 2017 Order to the extent it
26 purports to require a bond. Moreover, in that the bond conditions are entirely unspecified, there is
27 no basis in any event to enforce a bond requirement against Scofieid.
28
REPLY BRIEF ISO MTN OF DEFT.
SCOFIELD FOR PROTECTIVE ORDER
1 However, because the April 5, 2017 Order is one of four orders currently on appeal,
2 fiirther trial court proceedings with respect to that Order and the others, including enforcement of
3 Judgment proceedings, have been automatically stayed pursuant to Section 916(a), all as
4 demonstrated in the sections above.
5 Conclusion
6 The appeal in this matter was perfected on May 15, 2017. Section 916 (a) mandates that
7 the appeal automatically stays fiirther proceedings in this Court on all matters embraced within or
8 affected by thejudgment or orders on appeal. No exceptions to the automatic stay rule on appeal
9 apply. No requirements for bonding the appeal apply. The Court's April 5, 2017 stay of the
10 enforcement of the Judgment under Section 918.5 is a red herring. That stay order had to do with
11 a stay pending the outcome of another case, not the appeal in this case, and was conditioned on an
5-
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16 fundamental question is pending before the Court of Appeal.
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t- £ 17 Accordingly, Scofieid urges this Court to issue a protective order confirming the automatic
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X 18 stay under Section 916(a) of all Judgment enforcement actions pending the current appeal.
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19
20 Respectflilly submitted.
21
22 Dated: August 2. ,2017 PETERSON MART YNOLDS LLP
/ )/
23
24
By
25 P. KURT PETERSON
Attomeys for Defendant
26 SHARON SCOFIELD as Tmstee of THE
SHARON SCOFIELD FAMILY TRUST
27
28
REPLY BRIEF ISO MTN OF DEFT.
SCOFIELD FOR PROTECTIVE ORDER
Preview
AUG - 2 2017 1 P. Kurt Peterson (SBN 067123) M. Henry Walker (SBN 184073) DE.niilY CCJRK 2 Angela J. Okamura (SBN 280491) 3 PETERSON MARTIN & REYNOLDS LLP 299 Third Street, Suite 200 4 Oakland, CA 94607 Telephone: (415)399-2900 5 Facsimile: (415)399-2930 6 Attomeys for Defendant 7 SHARON SCOFIELD as Trustee of THE SHARON SCOFIELD FAMILY TRUST, sued herein as SHARON 8 SCOFIELD FAMILY TRUST *• > 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 HAMMER LANE R.V. & MINI- CASE NO. 34-2008-00023098 STORAGE LP, a Califomia limited « "] O 12 DEFENDANT SHARON SCOFIELD AS Q < S partnership; et al., -J U CN TRUSTEE OF THE SHARON SCOFIELD O _ cA Z S£ 13 "1 uj ** Plaintiffs, FAMILY TRUST'S MEMORANDUM OF la r ; J — (J K •» 14 POINTS AND AUTHORITIES IN REPLY TO u. ^ O < ° H o vs. PLAINTIFFS' OPPOSITION TO MOTION -•Si;! Z Crt 3 <^ "2 H «^ 15 16 HLMS LLC, a Califomia limited liability company; et al., FOR PROTECTIVE ORDER DATE: August 17,2017 D9 0^ U — Ml W TIME: 2:30 p.m. E Q a! 17 Defendants. DEPT: JUDGE: 45 Hon. Judy Hersher Tl 18 19 Introduction X 20 Plaintiffs oppose the motion for protective order of defendant Sharon Scofieid as Tmstee 21 of The Sharon Scofieid Family Tmst ("Scofieid") based on specious grounds that border on the 22 frivolous. First, Plaintiffs claim the motion should have been brought in another department 23 despite the fact that Plaintiffs set their May 24,2017 AppUcation and Order for Appearance and 24 Examination, which is the subject of this motion, in this very Department. (RJN, Exh. K; 25 Supplemental RJN, Exh. O.) In addition, at the hearing of Scofield's July 3,2017 ex parte 26 application, which Plaintiffs attended, this Court expressly ordered this motion to be heard in 27 Department 45. (Supplemental Request for Judicial Notice ("Supplemental RJN"), Exhs. M and 28 REPLY BRIEF ISO MTN OF DEFT. SCOFIELD FOR PROTECTIVE ORDER 1 N (July 3, 2017 Order on Defendant Ex Parte Application for Protective Order, etc.; July 3, 2017 2 Order Determining Disposition of Ex Parte Application.) 3 Second, Plaintiffs contend that because Scofieid has not posted a bond, further proceedings 4 in the trial court, including judgment collection actions, are not stayed. This argument fails for 5 two reasons: 1) When Scofieid timely appealed the four orders, including the April 5,2017 stay 6 order, on May 15, 2017 (RJN, Exh. J), the law governing appeals incepted, and that law mandates 7 an automatic stay wdthout bond pending the appeal; 2) the April 5, 2017 stay order (RJN, Exh. I) 8 was limited to a stay pending the conclusion of an entirely separate action, and had nothing to do 9 with, and was not based on, the law governing stays pending appeals generally, or Scofield's May 10 15, 2017 appeal in particular. 11 In its Opposition, Plaintiffs also fail to address or even acknowledge the fact that this CO "j o 12 Court previously ruled in its May 7, 2014 Order that the September 5, 2013 Judgment for Q < s: J U M 13 Attomeys' Fees and Costs ("the Judgment") was subject to the automatically stay under Section >- 7 916(a), and that the "money judgment" exception of Code of Civil Procedure section 917.1 w tn VI 14 lU ^ J — w 3 F.) As also noted above, in denying Plaintiffs' earlier motion to require Scofieid to post a bond, S ptf i i ' C S X 14 E £ O < O H o this Court in its September 24, 2013 Order mled that the Section 916(a) automatic stay applied to 15 z 00 ^ a.* the Judgment, and that no bond was required. (RJN, Exh. L.) H ^ 16 Pfi w - UJ LU ^ II. No Exceptions to the Section 916(a) Automatic Stay Rule Apply. 17 of Section 916 (a) provides in part: 18 19 "(a) Except as provided in Sections 917.1 to 917.9, inclusive, and Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the 20 judgment or order appealedfi-omor upon the matters embraced therein or affected thereby, including enforcement of thejudgment or order...." 21 (Code Civ. Proc. § 916 (a).) 22 Accordingly, the only exceptions to the Section 916 (a) automatic stay on appeal mle are 23 to be foimd in Sections 917.1 to 917.9, and 116.810. None of those sections, with the exception 24 of Section 917.1 (d) (to be discussed below) apply. 25 /// 26 27 ' Section 916(b) does not apply. No stay of proceedings other than for the enforcement of thejudgment has been 28 ordered in this case. In addition, the May 15,2017 perfecting of the appeal herein stays the enforcement of the Judginent because it is "embraced therein" and "affected thereby", as discussed in Section 111 below. REPLY BRIEF ISO MTN OF DEFT. .3 SCOFIELD FOR PROTECTIVE ORDER 1 Sections 917.1(a), (b) and (c) are inapplicable. The bond requirements of Section 917.1(a) 2 only apply to either: Section 917.1(a)(1) - an appeal of a "money judgment" (this Court already 3 has repeatedly mled the Judgment is not a "money judgment", and in fact the current appeal is an 4 appeal from four orders relating to the Judgment); Section 917.1(a)(2) - an appeal of "costs 5 awarded pursuant to Section 998" (Section 998 is not involved in this action); Section 917.1(a)(3) 6 - an appeal of "costs awarded pursuant to Section 1141.21" Oudgment on trial de novo following 7 arbitration is not involved in this action). Sections 917.15 through 917.9, and Section 116.810 are 8 likewise inapplicable: Section 917.15 (appeals relating to hazardous substances); Section 917.2 9 (appeals involving assignment, delivery or sale of personal property on foreclosure); Section 10 917.3 (appeals involving the execution of instruments); Section 917.4 (appeals directing the sale 11 or delivery of realty; Section 917.5 (appeals involving the appointment of receivers); Section 3 <^ -2 12 917.6 (appeals involving the performance of two or more acts specified in 917.1 to 917.5); crt J o Q < S J y CM 13 Section 917.65 (appeals ofrightto attach orders); Section 917.7 (appeals involving custody ggs w :3 — 14 issues); Section 917.75 (appeals involving Family Code proceedings); Section 917.8 (appeals s: 2 5 O H o 15 involving public office holder disputes, access to corporate books and records, nuisance Z D o> " H >A 16 abatements of buildings, and governmental Health and Safety Code restraining orders or Ctf U [ij w « 17 injunctions); Section 116.810 (relating to small cleiims court actions). 18 While Section 917.1(d) does apply to the instant appeal, as this Court has previously 19 mled, Section 917.1(d) expressly excludes the requirement of a bond. (RJN, Ex. F.) As this Court 20 noted in its May 7, 2014 Order, "(h)owever, no imdertaking shall be required pursuant to this 21 section solely for costs awarded under Chapter 6 (commencing with section 1021) of Title 14". 22 (RJN, Ex. F.) 23 Plaintiffs argue that Section 917.9(a)(3) operates to require the posting of a bond on the 24 instant appeal.^ Plaintiffs' argument is wrong and has been previously rejected by this Court. In 25 its earlier mling, this Court determined that Section 917.9(a)(3) does not apply to the Judgment in 26 this case. In his Order denying Plaintiffs' Motion to Require Posting of Bond to Stay 27 Enforcement of Judgment for Fees and Costs, Judge Abbott specifically found that: "The 28 Plaintiffs have not argued that Section 917.9(a)(1) and (2) do apply to the Judgment in this case. REPLY BRIEF ISO MTN OF DEFT. 4 SCOFIELD FOR PROTECTIVE ORDER 1 judgment in this action is one comprised of an award of declaratory relief, and an award of fees 2 and costs." (RJN, Exh. L, p.2.) (Emphasis added.) In his order, he went on to state: 3 "Code of Civil Procedure section 917.9 provides in part: "(a) The perfecting of an 4 appeal shall not stay enforcement of the judgment or order in cases not provided for in Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, 5 requires an undertaking and the undertaking is not given, in any of the following 6 cases: (3) The judgment against the appellant is solely for costs awarded to respondent by the trial court pursuant to Chapter 6 (commencing with Section 7 1021) of Title 14." 8 His mling, based on the subject Judgment being one both for declaratory relief and 9 for fees and costs, then followed: 10 "The limited discretion provided to the trial court to condition stay of enforcement < 11 z upon defendant's posting of undertaking under Section 917.9(a)(3), extends only CO 1 o 12 to a judgment against defendant which is 'solely for costs awarded to respondent D < S by the trial court pursuant to Chapter 6 (commencing with Section 1021) of Title Z z S 13 14.' As explained above, the judgment in this matter is not "solely for costs" lU ' ' j J — oc i^ TT 14 awarded to Plaintiffs." z 5 =^ u. S O < ° H o ^ . a: o uj ° 15 "The motion is DENIED." ^ ^ M z ^ S «« » 16 o: u ~ Accordingly, as this Court has previously mled, Section 917.9(a)(3) does not apply to the rjl W ^ 17 Judgment in this case because the Judgment is one both for declaratory judgment and costs. 18 Therefore, as the Court recognized, it has no discretion to require a bond in contravention of the 19 automatic stay of Section 916(a). 20 Furthermore, and just as significantly, this Court's April 5, 2017 stay order did not 21 condition the stay on posting an appeal bond to stay the case pending an appeal in the case, but 22 instead stayed the case pending the outcome of an entirely different case [Case No. 34-2012- 23 00124071] conditioned on an unspecified bond. (RJN Exh. 1) Thus, this Court has not acted 24 under Section 917.9(a)(3) to condition the stay of enforcement of the Judgment pending the 25 appeal of this case upon Scofield's posting of an appeal bond, nor, as the Court has already mled, 26 could it do so imder governing Section 917.9(a)(3). 27 28 REPLY BRIEF ISO MTN OF DEFT. SCOFIELD FOR PROTECTIVE ORDER 1 Accordingly, Section 916 (a) operates here to impose an automatic stay of the 2 enforcement ofthe subject Judgment following Scofield's timely filing of her notice of appeal on 3 May 15, 2017of the four orders, eind no exceptions apply to require the posting of a bond. 4 III. The Section 916(a) Automatic Stay Applies to All Matters Embraced Within or 5 Affected by the Orders Appealed From. As provided in Section 916(a), the perfecting of an appeal stays proceedings in the trial 6 court upon the judgment or order appealed from and upon the matters embraced therein or 7 affected thereby. Here the enforcement of the Judgment is a matter manifestly embraced within 8 or affected by the orders appealed firom. 9 The four orders appealedfromall relate to the satisfaction ofthe Judgment in whole or in 10 part, and were necessitated by, among other evidence of satisfaction of judgment. Plaintiffs' June 11 10, 2015, Acknowledgement of Full Satisfaction of Judgment filed by Plaintiffs in this case. 12 Q < s; ^ U r4 (RJN, Exhibit H.) As pointed out in the Scofield's and Diversified Foundation's moving papers, O Q - •^ VI 122 5 a! ^ the Full Satisfaction filing was devoid of limiting language, and on its face shows that one of the z ^ 14 B. S O 5 OS O H o < co-defendants in the action, Panakosta Partners LP, has heretofore satisfied the joint and several < < rM 15 z Judgment in full. o 16 UJ As stated in the Varian Medical Systems case cited in Scofield's moving papers: 17 "[W]hether a matter is 'embraced' in or 'affected' by a judgment [or order] within the meaning of 18 [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would 19 have any effect on the 'effectiveness' of the appeal." (Varian Medical Systems v. Delfino, (2005) 20 35 Cal. 4"' 180, at 189.) Here, it could not be more clear that an enforcement of the Judgment 21 against Scofieid at this time would render a successfiil appeal by Scofieid a meaningless Pyrrhic 22 victory, and would cause irreparable harm to her in the meantime. 23 24 IV. This Court's April 5,2017 Order Staying Enforcement of the Judgment Has no Bearing on the Current Stay on Appeal and is Unenforceable. 25 The Court's April 5, 2017 Order Granting Motion to Stay Enforcement of Judgment did 26 not relate to any appeal of this case. To the contrary, the April 5,2017 Order stayed the case 27 pending the outcome of an entirely different case, not pending the appeal of this case. (RJN, 28 Exhibit I.) In the May 5, 2017 Order, the Court found that, if Scofieid was successfiil in Case No. REPLY BRIEF ISO MTN OF DEFT. 6 SCOFIELD FOR PROTECTIVE ORDER 1 34-2012-00124071 against Plaintiffs herein, "her recovery could be significant, such that any 2 damages award could equal or even eclipse thejudgment entered in this case." The Court further 3 found that, "... refusing to stay enforcement of a judgment may ultimately deprive a judgment 4 debtor of the right to offset, or even the ability to recover at all. These equitable principles are 5 dispositive here. It is imfair to enforce a judgment against Scofieid while another action is 6 pending against the same Parties who hold thejudgment against Scofieid in this case." (RJN, 7 Exhibit I, pp.3:21 to 4:3.) Accordingly, the Court's April 5, 2017 Order was not issued as a stay 8 order pending the appeal in this case, but was issued as a stay order pending the conclusion of an 9 entirely separate case. 10 While the April 5, 2017 Order also conditions the stay on a bond, that portion of the Order 11 is in any event unenforceable. The bond is not an appeal bond, and is unsupported by any o 12 statutory authority. It is for an unspecified amount, unspecified type and unspecified time for 6 -i O z 13 posting. Moreover, Plaintiffs never filed a motion to require a bond on Scofield's motion for stay u 14 pending the conclusion of the other case. Plaintiffs raised the issue of a bond for thefirsttime, Ez5 O t- o < < " 2 3 5 " g 15 without notice, at oral argument at the hearing of the four motions. Not only was Scofield's due ^ <^ Z 3 a. s; (rt OS 16 processrightsviolated, but neither Plaintiffs nor the court have cited any legal authority for =2 ^ •A U ~ uj w -a- 17 conditioning a stay having nothing to do with an appeal on the posting of an appeal bond. In 18 addition, in those instances where a bond has been required on appeal, the statutes require that the 19 court state the sum ofthe undertaking, when the bond is to be posted (for an appellate bond, for 20 example, it is upon the "perfecting of the appeal"), the damages to be covered by the bond, and, 21 inter alia, other relevEint terms ofthe bond. (For example, see Sections 917.65 and 917.9(c), and 22 CCP 917.65 regarding fixing appellate bond terms.) 23 Here, in the Court's April 5, 2017 Order did not specify any terms whatsoever for the 24 bond. It is on that basis and because Plaintiffs did not move to request a bond in the trial court 25 pursuant to notice, that Scofieid has appealed the Court's April 5, 2017 Order to the extent it 26 purports to require a bond. Moreover, in that the bond conditions are entirely unspecified, there is 27 no basis in any event to enforce a bond requirement against Scofieid. 28 REPLY BRIEF ISO MTN OF DEFT. SCOFIELD FOR PROTECTIVE ORDER 1 However, because the April 5, 2017 Order is one of four orders currently on appeal, 2 fiirther trial court proceedings with respect to that Order and the others, including enforcement of 3 Judgment proceedings, have been automatically stayed pursuant to Section 916(a), all as 4 demonstrated in the sections above. 5 Conclusion 6 The appeal in this matter was perfected on May 15, 2017. Section 916 (a) mandates that 7 the appeal automatically stays fiirther proceedings in this Court on all matters embraced within or 8 affected by thejudgment or orders on appeal. No exceptions to the automatic stay rule on appeal 9 apply. No requirements for bonding the appeal apply. The Court's April 5, 2017 stay of the 10 enforcement of the Judgment under Section 918.5 is a red herring. That stay order had to do with 11 a stay pending the outcome of another case, not the appeal in this case, and was conditioned on an 5- w ° 12 unenforceable bond requirement. Q < S J (J M O _ ci Z " tJ* 13 On June 10, 2015, Plaintiffsfiledan Acknowledgement of Full Satisfaction of Judgment in €Z 3 s^; 14 in this case. The question on appeal is whether the Judgment has been satisfied in whole or in ^ o < << 15 part. Pursuant to Section 916(a), Scofield's appeal stays enforcement ofthe Judgment while that 7 o- t : c". «^ O °~ 16 fundamental question is pending before the Court of Appeal. OS u 2 (IJ t u t- £ 17 Accordingly, Scofieid urges this Court to issue a protective order confirming the automatic " a OS X 18 stay under Section 916(a) of all Judgment enforcement actions pending the current appeal. H 19 20 Respectflilly submitted. 21 22 Dated: August 2. ,2017 PETERSON MART YNOLDS LLP / )/ 23 24 By 25 P. KURT PETERSON Attomeys for Defendant 26 SHARON SCOFIELD as Tmstee of THE SHARON SCOFIELD FAMILY TRUST 27 28 REPLY BRIEF ISO MTN OF DEFT. SCOFIELD FOR PROTECTIVE ORDER