Stevens v. Superior Court

• Decision Date: 04 October 1972
• Court: California Court of Appeals Court of Appeals
• Parties: Craig STEVENS, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; P. B. LITTLE, Real Party in Interest. Civ. 40411.

Page 369

104 Cal.Rptr. 369

28 Cal.App.3d 1

Craig STEVENS, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

P. B. LITTLE, Real Party in Interest.

Civ. 40411.

Court of Appeal, Second District, Division 4, California.

Oct. 4, 1972.

DeWar & Davis, Los Angeles, for petitioner.

Richards, Watson & Dreyfuss, Los Angeles, for real party in interest.

FILES, Presiding Justice.

This proceeding has been brought in this court to compel the superior court to stay the enforcement of a money judgment upon the giving of adequate security by the judgment debtor. The parties will be referred to hereinafter as they appeared in the superior court.

Plaintiff's assignor obtained a money judgment against defendant in Oklahoma in 1969. Defendant (petitioner here) appealed from that judgment, and that appeal is still pending and undecided in the Supreme Court of Oklahoma.

Following entry of judgment in the trial court in Oklahoma, Plaintiff, as assignee (real party in interest here), brought an action in the Superior Court of Los Angeles County on the Oklahoma judgment. A judgment in favor of plaintiff resulted, which was affirmed on appeal by Division Three of this court on January 26, 1972. (Little v. Stevens (1972) 23 Cal.App.3d 112, 99 Cal.Rptr. 885.) While the California appeal was pending, defendant filed an undertaking of a corporate surety to stay enforcement of the judgment pursuant to Code of Civil Procedure, section 917.1. Following affirmance of the California judgment, plaintiff demanded payment. Defendant moved the superior court for a further stay of execution pending a decision by the Supreme Court of Oklahoma on the underlying judgment, which motion was denied by the superior court in an order of May 4, 1972.

Defendant has given, and is willing to keep in effect, adequate security for payment of the judgment when and if the underlying Oklahoma judgment becomes final in that state. Everything in the law appears to indicate that, as a matter of policy, a judgment debtor may stay execution by giving adequate security pending appellate review. The problem is to find the procedure whereby that policy may be made effective for this party.

An Oklahoma statute, similar to California Code of Civil Procedure, section 917.1, provides that enforcement of a money judgment is stayed pending appeal when an undertaking by an authorized corporate surety is given for the whole amount of the judgment including interest and costs. (12 O.S.1971, § 968.) Since defendant did not have assets subject to levy in Oklahoma, he did not file an undertaking there.

The Uniform Foreign Money-Judgments Recognition Act, which California adopted in 1967 (Code Civ.Proc., § 1713 et seq.), contains this provision:

'If the defendant satisfies the court either that an appeal is pending or that he is entitled and intends to appeal from the foreign judgment, the court may stay the (California) proceedings until the appeal has been determined or until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal.' (Code Civ.Proc. § 1713.6.)

Prior to the California judgment defendant did not ask for a stay of proceedings. It has never been decided in California whether section 1713.6 authorizes a prejudgment stay, and we do not decide it here.

Defendant's contention in the California trial court was that the suit on the Oklahoma judgment was premature. This was the issue which was decided against him in the superior court and in the Court of Appeal. In affirming the California judgment, the Court of Appeal said:

'In holding that the action before us to enforce the Oklahoma money judgment lies, we intimate no opinion on whether the execution of the California judgment under review should be stayed until the appeal from the Oklahoma judgment has been determined.' (Little v. Stevens, Supra, 23 Cal.App.3d at 114, 99 Cal.Rptr. at 887.)

The case law of other jurisdictions reflects the use of a post-judgment stay of execution in a situation such as this. (See Heckling v. Allen (C.C.Colo.1882) 15 F. 196; Ebner v. Steffanson (1919) 42 N.D. 229, 172 N.W. 857, 5 A.L.R. 1261; Piedmont & Arlington Life Ins. Co. v. Ray (1881) 75 Va. 821; Cushman v. Douville (1934) 21 Pa. D. & C. 243; Scott v. Pilkington (Q.B.1862) 2 Best & S. 11, 121 Eng.Reprint 978.)

Ebner v....