Beruflich Dokumente
Kultur Dokumente
STUBBLEFIELD PROPERTIES, et al
Plaintiff/Respondent
SBSC: UDDS1204130
v.
BONNIE SHIPLEY,
Defendant/Appellant
TABLE OF CONTENTS
(ctrl+click mouse on hyperlink to left of entries below to jump to destination in the brief)
Certificate of Interested Parties/Entities ..................................................................... First
TOA
SC
SA
IR
SR
SF
ARG
B.
C.
concl
CO
ARGB
ARGC
CONCLUSION ..................................................................................................................16
CERTIFICATE OF COMPLIANCE ...............................................................................17
Exhibit A8/17/15 Order Granting Enforcement Stay Without Posting a Bond
Exhibit B-10/2009 Gilchrist & Rutter Article-Why Conflict is Ripe for Review
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nancyduffysb@yahoo.com
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Petitioner [Writ of Mandate. Prohibition and Review]
E-U*lL*DwESS@&ul:
~\PPELJANT&ITI~NER:
Bonnie Shipley
INITIAL CERTIFICATE
0SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing thls form. You may use this form for the innla1
certificate in anappeal when you file your brlef or a prebriefing motion, application, or opposltlon t o such a
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TABLE OF AUTHORITIES
CASES
Aagistics Intern. v. Dept. of Gen. Serv., (2007-3rd. Dist.) 150 CA.4th 581, fn 8 .......... 14
Allen Grant v. Supr Court Stanislaus County (1990) 225 CA.3d. 929, 934-935 ........... 8
Auto Equity v. Superior Court (1962) 57 Cal. 2d 450 .................................................. 14
Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800 .......................... passim
Banks v. Manos (1991) 232 Cal.App.3d 123 .................................................................. 8
Behniwal v. Mix (2007) 147 Cal. App. 4th. 621 ............................................................ 14
Brydon v. City of Hermosa Beach (1928) 93 CA 615, 620 ............................................ 5
Chamberlin v. Dale's Rentals, Inc. (1986) 188 Cal.App.3d 356, 361-362 ...................... 7, 10
Chapala Mgmt. Corp. v. Stanton (2010) 186 CA.4th 1532 ................. 6, 8, 10, 14, 15, 16
City of Lodi v. Randtron (1997) 118 CA.4th 337, 355 ................................................ 13
Cunningham v. Reynolds (1933) 133 Cal.App. 148, 150-151 ........................................ 7
Dickey v. Rosso (1972) 23 Cal.App.3d 493, 498 .......................................................... 14
Dowling v. Zimmerman (200-4thDist-Div1) 85 CA4th. 1400, 1431 ............................. 13
Gallardo v. Specialty Restaurants Corp. (2000) 84 Cal.App.4th 463, 469 .................. 13
Lewin v. Anselmo (1997-1st Dist -Div4) 56 CA4th. 694, 700 ....................................... 13
Lockheed Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096, 1106 .................... 5
Nielsen v. Stumbos (1990) 226 CA.3d 301, 304 .............................................................. 8
OGrady v. Superior Court (1994) 21 Cal. App. 4th 1021 ....................................... 9, 14
Pecsok v. Black (1992) 7 CA.4th 456, 459 ..................................................................... 8
Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 73........................ 5
Whelan v. Rallo (1997- 4th Dist-Div3) 52 Cal.App. 4th. 989, 929 ............................... 13
STATUTES
CCP 1033.5 ........................................................................................................ 6, 7, 15
CCP 1141.21 ................................................................................................................. 5
CCP 904.1 ..................................................................................................................... 6
CCP 904.2 ..................................................................................................................... 6
CCP 906 ........................................................................................................................ 6
CCP 916 .............................................................................................................. passim
CCP 917.1 ........................................................................................................... passim
CCP 917.1 - 917.9 ....................................................................................................... 5
CCP 998 .............................................................................................................. 5, 9, 13
Chapter 6 of the Code of Civil Procedure ...................................................................... 9
Civil Code 1717 ................................................................................................... passim
Civil Code 798.85 ......................................................................................................... 5
MISCELLANEOUS
de novo............................................................................................................................ 6
STATEMENT OF APPEALABILITY
An order granting injunction (enjoining debt collection) is immediately appealable. 1
Upon an appeal pursuant to CCP 904.1 or 904.2, the Panel may review the verdict
or decision and any intermediate ruling, proceeding, order or decision which involves
the merits or necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party CCP 906. [see 8/17/15 Order Exh. A]
ISSUE FOR REVIEW
Did the court err by ignoring a Supreme Court directive to distinguish attorney fees
as a non-routine cost--requiring an undertaking to stay enforcement pending appeal?
STANDARD OF REVIEW
Statutory interpretation is always a question of law reviewed de novo. 2
Whether stare decisis was applied is a question of law reviewed de novo.
STATEMENT OF FACTS
On 6/16/15 the court entered a post judgment order for attorney fees after Shipley
prevailed on the underlying case. [CT 99:3] See Order on Attorney Fees. [CT 105-112].
On 7/10/15 Stubblefield appealed the attorney fee award entered on 6/16/15 [CT 99:5].
On 7/31/15 a writ of execution was issued by a court clerk on the award [CT 99:13].
On 8/3/15 Stubblefield noticed ex parte motion for 8/4/15 [CT 96:14] seeking to stay
enforcement on the grounds that the Order was treated as a routine cost under Code of
Civil Procedure 1033.5(a)(10)(b)which is automatically stayed by 916 [CT 97:13]
without posting a bond as required for non-routine cost awards.
CCP 904.1 (a) (6); Brydon v. City of Hermosa Beach (1928) 93 CA 615, 620
Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800; see also
Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 73
3
Lockheed Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096, 1106
6
2
On 8/11/15 Shipley filed OPPOSITION [CT 155:16] arguing that her attorney fee
award was a non-routine cost (order for payment of money) under 917.1(a)(1)-requiring undertaking to perfect appeal [CT 158:11]. Shipley cited Bank of San Pedro,
supra---directing courts to distinguish non-routine costs from routine costs to decide
if undertaking is required on appeal. Shipley argued it is not whether a discretionary
award of non-routine expert witness or attorney fees is a cost defined in CCP
1033.5((a)(10)(b) --- but rather---whether that cost was non-routine governed
by 917.1(a)(1)--requiring a bond on appeal [CT 158:22].
Stubblefield filed a frivolous appeal soley to delay having to pay the fee award. Id
On 8/13/15 Stubblefield filed a REPLY to OPPOSITION re-arguing that a post
judgment attorney fee award is a routine costs governed by 1033.5(a)(10)(b)--and automatically stayed by CCP 916, citing Chapala Mgmt. Corp. v. Stanton (2010)
186 CA.4th.1532 (4thDist, Div 1). [CT 166: 13]. Stubblefield never offered a scintilla of
evidence to show why posting a bond would cause irreparable harm to him or result in
no harm to Shipley, whose award is not protected by the required security. A decision
to issue an injunction always requires a balancing of alleged harm to the moving party
against alleged harm to the non-moving party. Where a movant fails to allege any
irreparable harm by having to post a bond to perfect appeal, it is inconceivable that a
court would issue a stay without requiring an undertaking. But, this is what occurred.
On 8/17/15 the court issued a stay without requiring an undertaking. [Exhibit A]
On 9/1/15 Shipley filed a Notice of Appeal [CT 175]. On 9/8/15 Shipley filed a Notice
of Designation of Record. [CT 178]. Resolution of this appeal rests on whether the
reviewing panel characterizes the attorney fee award entered on 6/16/15 as a routine cost
automatically stayed by CCP 916, or a non-routine cost governed by CCP917.1(a)(1).
Shipley contends this panel is required to apply the Supreme Courts directives in the
Bank of San Pedro and distinguish attorney fees as a non-routine cost requiring a bond.
7
ARGUMENT
I.
to ensure the prevailing party can actually collect a judgment after appeal is concluded.
In 1986 the Panel in Chamberlin v. Dale's Rentals, Inc . 5 held the reason for staying
enforcement of routine costs is because they are always awarded to prevailing litigants.
The Panel reasoned attorney's fees differed from routine costs incidental to all victories,
because they are not routinely awarded to all prevailing litigants. They are awarded only
where a fee-shifting statute governs, or there is an existing contract clause for attorney fees.
Chamberlin held attorney fees are a separately litigated issue, invoking a post-judgment
mini-trial, whereas routine costs are merely incidental to judgment under CCP 1033.5,
and are routinely awarded by filing a Memo of Costs --- resulting in an additional
amount being added to the judgment by a clerk--- unless the loser moves to tax costs.
If so, costs are either entered as requested, or entered as reduced by a trial court order.
In 1990, citing Cunningham, the Grant 6 Panel expanded protection to accrued interest:
We conclude petitioners take too narrow a view of section 917.1.
The statute is clearly designed to protect the judgment won in the trial court
from becoming uncollectible while the judgment is subjected to appellate
review. [citing Cunningham] A successful litigant will have an assured
source of funds to meet the amount of the money judgment, costs and postjudgment interest after postponing enjoyment of a trial court victory.
Grant @ 934
4
OGrady Applied Bank of San Pedro holdings in 1994 to an Attorney Fee Award
In January 1994, the OGrady 10 panel explained why attorney fees under a clause
in a contract governed by Civil Code 1717 are not routine costs subject to a stay,
and applied Supreme Court directives in Bank of San Pedro, supra to attorney fees:
In 1992, our Supreme Court issued its opinion in Bank of San Pedro v.
Superior Court, supra, 3 Cal.4th at pages 802-805. The Supreme Court
disapproved of Pecsok insofar as it was "contrary to our decision in the
present case." ( Id. at p. 803, fn. 4.) Our Supreme Court approved of the
distinction between "routine" and "non-routine" costs. The court in Bank
of San Pedro concluded that a "non-routine" cost would not be subject to
the automatic stay of section 916. (3 Cal.4th at p. 802.) Further, while
discussing the Court of Appeal opinion, which was the subject of the grant
of review, in Bank of San Pedro, our Supreme Court made the following
comment: "The Court of Appeal in this case correctly explained that,
'Expert witness fees, like attorneys' fees, are not ordinarily a part of
costs awarded at trial. OGrady @ 1028
Our Supreme Court could not have made it clearer that it viewed
attorney fees as non-routine costs just like expert witness fees, neither
of which are subject to the automatic stay. OGrady @ 1028
Civil Code, section 1717 costs are not routine. They only arise in
situations where a contract is involved. Further, they are limited to cases
where the contract provides for attorney fees. That is not a routine event
occurring in California litigation. The general rule is that attorney fees
are not awarded in civil litigation. {cites omitted} An award of
attorney fees pursuant to Civil Code, section 1717 never occurs in tort
litigation. {cite omitted} . Moreover, the amount of fees is not
automatic. The sum to be paid is left to the court's discretion. {cites
omitted} Also, Civil Code, section 1717 provides only one of several
avenues by which attorney fees can be awarded. OGrady @ 1028-1029
Additionally, in the present case, the issue of fees was separately
and directly litigated. After the summary judgment request was resolved, a
separate noticed motion for attorney fees was the subject of a post-judgment
hearing. (Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at p. 803.)
10
OGrady v. Superior Court (1994) 21 Cal. App. 4th 1021 [the Downey Venture]
(rehearing ordered, but then cancelled due to OGradys subsequent settlement)
10
B. Post 1992 Appellate Court Conflicts Necessitating a New Supreme Court Review
Because 1993 legislative amendments to CCP 917.1 were unclear, conflicts arose
again among courts on how to apply the legislative amendments to directives issued
by our Supreme Court in Bank of San Pedro. Many courts applied Bank of San Pedro,
Cunningham, Chamberlin, and Grant to attorney, expert witness, and referee awards.
In 1997 a panel in Whelen v. Rallo 11 citing Grant, held that although defendant died
before an appeal of punitive damages concluded the court still required a security bond
to protect a money judgment against "passage of time, delay, or other reasons."
A petition for review was denied 5/14/97 creating an inference the high court agreed.
In 1997 a panel in Lewin v. Anselmo 12 citing Grant, held that security undertaking
requirements under CCP 917.1 were designed to protect the judgment from becoming
uncollectible while it is under review and must be required by courts during appeals.
In 1997 a panel in Randtron 13 citing Grant and Lewin, held the purpose of a bond is
to protect the judgment while appeal is pending and prevailing party is entitled to it.
In 2000 a panel in Gallardo 14 held costs awarded under CCP 998 must be included
in computing the amount of bond under 917.1(c) but routine costs are not included.
In 2001 a panel in Dowling v. Zimmerman 15 followed Bank of San Pedro holding:
we interpret section 917.1(d) as requiring an appeal bond or
undertaking to stay enforcement of a judgment for reasonable
attorney fees and costs awarded to a prevailing SLAPP defendant
14
15
Ten years later, in 2007, courts were still citing Grant---holding that requiring a bond
to stay enforcement of a money judgment pending appeal was no less reasonable than
requiring a bond for a preliminary injunction pending outcome of a case on the merits.16
In 2007 a panel in Behniwal v. Mix 17 held attorney fee awards were exempt from
the automatic stay, following Supreme Court directives in Bank of San Pedro, supra.
Although the issue on appeal was whether a contractual fee award was incidental
to a specific performance judgment, the court engaged in a detailed discussion of
the prior history regarding attorney fee issues, and reasoned that expert witness fees
and surely we can add, attorney fees are always a matter of trial court discretion,
even if awarded as a matter of right. In so finding, the panel reiterated the distinction
between routine costs and non-routine costs, such as attorney fee awards, as explained
in Chamberlin and mandated by our high court in Bank of San Pedro.
In October 2009 Gilchrist & Rutter published an article entitled, Post Judgment
Execution on Attorneys Fees: Navigating an Area That Is Ripe for Review[Exh. B]
It outlined historical conflicts, Supreme Court directives in Bank of San Pedro, and the
confusion created by ambiguous amendments to 917.1 codifying Bank of San Pedro.
In 2010 more conflicts arose when a panel in Chapala v. Stanton 18 expressly found
that attorney fee awards were routine costs automatically stayed under CCP 916.
Although the panel cited Bank of San Pedro they did not follow it. This was error, not
only because they failed to apply stare decisis 19 but also because they adopted flawed
reasoning. They misinterpreted Bank of San Pedro. They adopted the same flawed
argument the OGrady panel rejected in 1994, explaining why and how it was flawed:
16
Aagistics Intern. v. Dept. of Gen. Serv., (2007-3rd. Dist.) 150 Cal.App.4th 581, fn 8
[citing Dickey v. Rosso (1972) 23 Cal.App.3d 493, 498] (rehearing denied 5/4/2007)
17
18
19
The court clearly erred in failing to apply stare decisb (Bank of San Pedro),
following an inferior court's erroneous decision, and in failing to balance equities
between the parties, as required before issuing an injunction.
GLOBAL EFFECT OF ENJOINING ENFORCEMENT WITHOUT A BOND
Enjoining enforcement without requiring an appellant to post a bond will result in
a tsunami of appeals. There is no incentive not to "roll the dice" on appeal, where the
appellant is given an entire year, or several years in protracted appeals, to liquidate
assets and transfer funds out of the country to avoid ever having to satisfy a judgment.
It is an abuse of discretion for a court to leave a prevailing party completely unprotected
without any security during an appeal.
Shipley asks the Panel to reverse the erroneous decision and order the lower court
to require a bond pending outcome of the appeal of the fee award entered on 6/6/15.
Shipley asks the court to award her costs and attorney fees for this appeal.
I?./
ellant/Respondent
CERTIFICATE OF COMPLIANCE
The undersigned certifies this Opening Brief consists qf 4;5689 words as shown
in Microsoft Word 2010 used to produce the brief in Tinies Roman Font, 13 points.
The word count was entered before adding Table of Authorities. The undersigned
certifies this is true under penalty of perjury. Executed on 12/9/15.
v@&
8,10,
TENTATIVE
The Court hereby rules as follows on Plaintiffs Motion for Stay Pending Appeal
and for other Orders:
The motion is granted. Execution on a judgment for costs alone is
automatically stayed on appeal under California Civil Procedure Code 5 816(a)
and, therefore, no bond is required. Vadas v. Sosnowski(1989) 210 Cal.App.3d
471,472. See further Chspafa Management Corp. v Stanton (2010) 186
Cal.App.4 1532')
2. The Writs of Execution issued by the Clerk of the Court on July 31,
2015 are quashed and unenforceable.
' Contrary to Dsfandank's unfoundedaccusation. WIs case was pmlded lo both parties at the ex
parte heanng so that each could address its holding (which the Court believes is on all fours with
the issue presented) at the time of the hearing on the motion.
'
'
Gikhrist 8 Rutter 1299 Ocean Ave. Suite 900, Santa Mon~caCA 90401, phone (310) 393-4000, fax (310) 394-4700. www g~lchristruttercorn
.
'
PROOF OF SERVICE
STATE OF CALIFORNIA,
COUNTY OF SAN BERNARDINO
Stubblefield v. Shipley ASIAS 1500049 UDFS1204130
Undersigned is counsel for Bonnie Shipley: 950 Roble Ln, Santa Barbara, CA 93 103
cell 805-450-04 0 tellfax 805-965-3492
The undersigned served appellee plaintiff with the follo, ing documents:
I
iI
[ ] (By Fax) The fax machine used complied with Rule 2003(3) and no error was
reported by machine, pursuant to Rule CRC, 2008 [c](4) I caused the machine to
maintain a record of same.
[ ] (By Electronic) to address below (ameement) & nancyduffysb@yahoo.com
rwilliamson@hartkinglaw.com
[XI (By US Mail) 1013a, 52015.5 CCP. I deposited documents in a pre-paid
stamped envelope to:
Robert G. Williamson, Attorney for AppelleeIPlaintiff
HARTJKING
4 Hutton Center Drive, Suite 900
Santa Ana, CA 92707
[XI(STATE) I declare under penalty of perjury and California law the above is true.
Executed in Santa Barbara, CA on the date indicated below.
7qdn;?L
L/
Nancy DU& ~ k a r r o nAttorney
,
for Appellant