On June 29, 2018 a
Appellate Materials
was filed
involving a dispute between
Baganarol, Sheila,
Bagnarol, Anthony,
Bagnarol, Francis,
Bagnarol, Mary,
and
A Family Affair Elder Care, Llc,
Bagnarol, Carolina,
Bagnarol, Nadine,
Deutsche Bank National Trust Company,
Does 1-25,
Does 26-50,
Internal Revenue Service,
Midland Funding Llc,
Mortgage Electronic Registration Systems, Inc.,
Najarian Loans Inc.,
Thirkell Law Group,
for (26) Unlimited Other Real Property
in the District Court of San Mateo County.
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Case Number: 18-CIV-03397
SUPERIOR COURT OF SAN MATEO COUNTY
400 County Center 1050 Mission Road
Redwood City, CA 94063 South San Francisco, CA 94080
www.sanmateocourt.org
Minute Order
FRANCIS BAGNAROL, et al vs. CAROLINA BAGNAROL, et al 18-CIV-03397
11/10/2021 2:00 PM
Motion to Stay
Hearing Result: Held
Judicial Officer: Weiner, Marie S. Location: Courtroom 2E
Courtroom Clerk: Andrea Daley Courtroom Reporter: Rhonda Guess
Parties Present
AKAY, DOUGLAS N. Attorney
WAILES, W. GEORGE Attorney
Minutes
Journals
- Argument presented by counsel. Matter submitted.
The Court adopts the tentative ruling.
Mr. Wailes shall prepare formal order consistent with order herein.
Case Events
- Party appeared by audio and/or video; Attorney: AKAY, DOUGLAS N.; Attorney: WAILES, W. GEORGE
- Tentative ruling adopted and becomes order:
DEFENDANTS CAROLINA BAGNAROL AND NADINE BAGNAROL'S MOTION TO STAY ENFORCEMENT OF
JUDGMENT PENDING APPEAL UNDER CODE OF CIVIL PROCEDURE SECTION 995.240
Judgment Debtors' Motion to Stay Enforcement of Judgment Pending Appeal, which seek to have the
Court waive appellate undertaking, is DENIED.
A. Judgment Debtors Fail to Demonstrate that Either of them Is Indigent.
The court may waive the bond requirement when the appellant "is indigent and is unable to obtain
sufficient sureties . . . ."
(Code of Civ. Proc. 995.240.) Nadine Bagnarol presents no evidence of her
financial state. The Court cannot find that she is indigent for purposes of Section 995.240.
Carolina Bagnarol claims that her only assets are her interest in the LLC, her interest in the Canyon and
Vera properties, and an IRA in the amount of approximately $16,000. Defendant's counsel attests that at
least four surety companies would not post a bond for the appeal. Three sureties declined because of
Carolina's inability to post sufficient collateral, and additional sureties declined because of the amount
requested exceeded their limits. (Decl. of Berry 3-6.)
However, the requests to sureties were "based on the information provided by Carolina Bagnarol
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Case Number: 18-CIV-03397
regarding her financial conditions." (Decl. of Berry 3-5.) The evidence suggests that Carolina's
representation of her assets might not have been fully candid. The opposing declarations of Sheila
Bagnarol and Francis Bagnarol attest to a history of Carolina's misappropriation and misuse of LLC funds
and the possibility that Carolina might have funds or assets that she has hidden or otherwise not
disclosed. The Arbitrator made similar findings. (Arbitration Award at 14-22.) Judgment Creditors'
evidence outweighs Carolina's evidence of indigence.
A "weak and incomplete showing of indigency" justifies denying a motion for relief from the
undertaking. (Baltayan v. Est. of Getemyan (2001) 90 Cal. App. 4th 1427, 1434-35.) The evidence does
not support a finding that Carolina is indigent for purposes of waiving an appellate undertaking pursuant
to Code of Civil Procedure section 995.240.
B. Other Relevant Factors Weigh Against Waiver of Bond.
In addition to indigence, section 995.240 requires that the Court consider "all factors it deems relevant,
including . . . the character of the action or proceeding, the nature of the beneficiary, whether public or
private, and the potential harm to the beneficiary if the provision for the bond is waived."
The character of this action is Carolina's breach of fiduciary duty to and fraud against her fellow LLC
members. She essentially misappropriated LLC profits from Franco and Tony; she caused the LLC to incur
$580,000 in unnecessary costs. (Arb. Award at 16.)
The beneficiaries (Franco and Tony) are individuals, not public entities or business entities.
Mary and Franco Bagnarol present evidence of their financial distress if the appeal proceeds without a
bond or other security being posted.
Carolina contends that she and Nadine will become "homeless" if the judgment is not stayed, but the
evidence supporting that claim is scant.
These factors, if considered, weigh against Caroline.
C. Transfer of Licenses/Certifications
The judgment calls for the nursing homes' licenses and certifications to be transferred. (Arbitration
Award at 24 6.) Carolina argues that nursing home licenses and certifications cannot be transferred.
Even if Carolina is correct, then a failure to stay enforcement of judgment does not affect Carolina
because that part of the judgment would be unenforceable.
D. Inability to Pay $4.0 Million Judgment
Carolina's final argument is that she cannot satisfy the monetary part of the judgment. Section 995.240
allows a waiver if the appellant shows indigence. It does not allow a waiver based on inability to satisfy
the judgment.
E. Conclusion
Judgment Debtors Carolina Bagnarol and Nadine Bagnarol do not present sufficient evidence to establish
that either of them is indigent for purposes of waiving the undertaking requirement. The motion to
waive appellate undertaking is denied.
2
Case Number: 18-CIV-03397
Others
Comments:
Future Hearings and Vacated Hearings
3
Document Filed Date
November 10, 2021
Case Filing Date
June 29, 2018
Category
(26) Unlimited Other Real Property
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Case Number: 18-CIV-03397 SUPERIOR COURT OF SAN MATEO COUNTY 400 County Center 1050 Mission Road Redwood City, CA 94063 South San Francisco, CA 94080 www.sanmateocourt.org Minute Order FRANCIS BAGNAROL, et al vs. CAROLINA BAGNAROL, et al 18-CIV-03397 11/10/2021 2:00 PM Motion to Stay Hearing Result: Held Judicial Officer: Weiner, Marie S. Location: Courtroom 2E Courtroom Clerk: Andrea Daley Courtroom Reporter: Rhonda Guess Parties Present AKAY, DOUGLAS N. Attorney WAILES, W. GEORGE Attorney Minutes Journals - Argument presented by counsel. Matter submitted. The Court adopts the tentative ruling. Mr. Wailes shall prepare formal order consistent with order herein. Case Events - Party appeared by audio and/or video; Attorney: AKAY, DOUGLAS N.; Attorney: WAILES, W. GEORGE - Tentative ruling adopted and becomes order: DEFENDANTS CAROLINA BAGNAROL AND NADINE BAGNAROL'S MOTION TO STAY ENFORCEMENT OF JUDGMENT PENDING APPEAL UNDER CODE OF CIVIL PROCEDURE SECTION 995.240 Judgment Debtors' Motion to Stay Enforcement of Judgment Pending Appeal, which seek to have the Court waive appellate undertaking, is DENIED. A. Judgment Debtors Fail to Demonstrate that Either of them Is Indigent. The court may waive the bond requirement when the appellant "is indigent and is unable to obtain sufficient sureties . . . ." (Code of Civ. Proc. 995.240.) Nadine Bagnarol presents no evidence of her financial state. The Court cannot find that she is indigent for purposes of Section 995.240. Carolina Bagnarol claims that her only assets are her interest in the LLC, her interest in the Canyon and Vera properties, and an IRA in the amount of approximately $16,000. Defendant's counsel attests that at least four surety companies would not post a bond for the appeal. Three sureties declined because of Carolina's inability to post sufficient collateral, and additional sureties declined because of the amount requested exceeded their limits. (Decl. of Berry 3-6.) However, the requests to sureties were "based on the information provided by Carolina Bagnarol 1 Case Number: 18-CIV-03397 regarding her financial conditions." (Decl. of Berry 3-5.) The evidence suggests that Carolina's representation of her assets might not have been fully candid. The opposing declarations of Sheila Bagnarol and Francis Bagnarol attest to a history of Carolina's misappropriation and misuse of LLC funds and the possibility that Carolina might have funds or assets that she has hidden or otherwise not disclosed. The Arbitrator made similar findings. (Arbitration Award at 14-22.) Judgment Creditors' evidence outweighs Carolina's evidence of indigence. A "weak and incomplete showing of indigency" justifies denying a motion for relief from the undertaking. (Baltayan v. Est. of Getemyan (2001) 90 Cal. App. 4th 1427, 1434-35.) The evidence does not support a finding that Carolina is indigent for purposes of waiving an appellate undertaking pursuant to Code of Civil Procedure section 995.240. B. Other Relevant Factors Weigh Against Waiver of Bond. In addition to indigence, section 995.240 requires that the Court consider "all factors it deems relevant, including . . . the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived." The character of this action is Carolina's breach of fiduciary duty to and fraud against her fellow LLC members. She essentially misappropriated LLC profits from Franco and Tony; she caused the LLC to incur $580,000 in unnecessary costs. (Arb. Award at 16.) The beneficiaries (Franco and Tony) are individuals, not public entities or business entities. Mary and Franco Bagnarol present evidence of their financial distress if the appeal proceeds without a bond or other security being posted. Carolina contends that she and Nadine will become "homeless" if the judgment is not stayed, but the evidence supporting that claim is scant. These factors, if considered, weigh against Caroline. C. Transfer of Licenses/Certifications The judgment calls for the nursing homes' licenses and certifications to be transferred. (Arbitration Award at 24 6.) Carolina argues that nursing home licenses and certifications cannot be transferred. Even if Carolina is correct, then a failure to stay enforcement of judgment does not affect Carolina because that part of the judgment would be unenforceable. D. Inability to Pay $4.0 Million Judgment Carolina's final argument is that she cannot satisfy the monetary part of the judgment. Section 995.240 allows a waiver if the appellant shows indigence. It does not allow a waiver based on inability to satisfy the judgment. E. Conclusion Judgment Debtors Carolina Bagnarol and Nadine Bagnarol do not present sufficient evidence to establish that either of them is indigent for purposes of waiving the undertaking requirement. The motion to waive appellate undertaking is denied. 2 Case Number: 18-CIV-03397 Others Comments: Future Hearings and Vacated Hearings 3