SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

APPELLATE DIVISION

STUBBLEFIELD PROPERTIES, et al

Appellate Division: ASIAS1500049

Plaintiff/Respondent

SBSC: UDDS1204130

v.
BONNIE SHIPLEY,
Defendant/Appellant

APPEAL FROM AN ORDER in San Bernardino Superior Court, Dept. S-29

Staying Enforcement of Attorney Fee Judgment Without Posting a Bond
Hon. Janet M. Frangie
_________________________________________________

APPELLANTS OPENING BRIEF

________________________________________________
Nancy Duffy McCarron #164780
950 Roble Lane
Santa Barbara, CA 93103
805-450-0450 fax 805-965-3492
nancyduffysb@yahoo.com
Attorney for Appellant, Bonnie Shipley
1

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

TABLE OF AUTHORITIES ........................................................................................ 3-4

STATEMENT OF THE CASE ............................................................................................ 5
STATEMENT OF APPEALABILITY ........................................................................ 6
ISSUE FOR REVIEW ..................................................................................................... 6
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?

SR

SF

ARG

STANDARD OF REVIEW (de novo) ......................................................................... 6

STATEMENT OF FACTS ......................................................................................... 6
ARGUMENT .......................................................................................................................8

I. It Was Reversible Error to Enjoin Enforcement Without Requiring a Bond... ...................... 8

RevErr

A. History of Appellate Court Conflicts Prior to 1992 ........................................................8

ARGA

B.
C.
concl

CO

ARGB

ARGC

Supreme Court Grants Review to Resolve Conflicts in Appellate Courts in 1992...........9

Post 1992 Appellate Conflicts Necessitating a New Supreme Court Review ...............13

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
POS

PROOF OF SERVICE .................................................................................................Last

2

TO BE FILED I N THE COURT OF APPEAL

I

COURT OF

APPEAL, SanBernardin APPELUTE

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Nancy Duf@ M&at-rob

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Roble Lane
Santa Barbaw dt

(NW,

164780

DISTRICT, DMSIOH

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FOR COWtTUSEONLY

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805-450-0450

fMm.D*a: 805-965-3492
nancyduffysb@yahoo.com
hmRNEYFO~IHjmex
Petitioner [Writ of Mandate. Prohibition and Review]

E-U*lL*DwESS@&ul:

~\PPELJANT&ITI~NER:

Bonnie Shipley

RESPONDENT^ ELL PARTY IN INTEREST:Michael Sachs, Stubblefield Properties

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one):

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
motion o r appliCation in the Court o f Appeal, and when you file a petitlon for a n extraordinary writ. You may
a k o use thlS fohn as a supplemental certificate when you learn of changed or addltional information that must
be disclosed.
1. ThiSfDrm IS belng submitted on behalf otthe follwring party (name):Petitioner

2. a.

0There ate no Wrested e m e s or pemns that must be ~~sted

inth~scertificate under rule 8.208.
Interested entitles or persons required to be listed under rule 8 208 are as follows:

b.

Fqll name of Interested

entity or person

Nature of interest
IEYDlaln):
-

(1)

Sfubblefield Pmperties, Partners

Business BankcorplCA; see more- SEC filing Attachment 2

(2)

~tubblefieldQuail Point Company

D. William Bader; Neal Baker; William Cozzo, Alan J Lane

(3) Eva Stubt)LefieldHazard, partner

(4)

Arnold HStubbletield, Gen Partner

(5) Thomas Panish, General Partner

John E. Duckworth; Joh~iRiddell; Robert L Nottjngham;

John L Ridell; James W Andrews; Ruth E Adell
Neil Dcrry,SB Cty Suprrace; Bill Postmus;Dale Stubblefield

Conhnded on attachment2
The underelgned certifies that the above-llsted persons or entltks (corponUona, partnershipa, finns, or any other
easoclion, but not including government e d e s or thelr agencies) have either ( I )an ownership interest c4 10 percent or
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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 THE CASE

The court erred by failing to follow Bank of San Pedro v. Superior Court
(1992) 3 Cal.4th 797, 803 directing lower courts to distinguish non-routine
from routine costs in deciding if a bond is required to perfect an appeal.
CCP 916 stays judgment enforcement and related routine costs during
appeal with limited exceptions set forth in CCP 917.1-917.9 and 1141.21.
CCP 917.1 stays enforcement only if a bond is posted to secure judgments
for: 1) money; 2) costs under CCP 998 which otherwise would not have
been awarded as costs under CCP 1033.5; and 3) costs under CCP 1141.21,
which otherwise would not have been awarded as costs under CCP 1033.5.
Prior to 1992 Appellate Districts disagreed as to whether attorney, expert
witness, and referee fees were routine costs under 1033.5---stayed under CCP 916;
or were non-routine costs---enforceable unless a bond is posted to secure satisfaction.
Non-routine costs can be stayed on appeal by court order, but only if a bond is posted.
This is because attorney, expert witness, and referee fees often exceed the amount
of a judgment, which is usually zero if defendant prevails. Many appellate courts
failed to distinguish routine costs, which are recoverable by all prevailing litigants,
from non-routine costs---which are recoverable only where a statute or contract
provides a special basis for an attorney, witness or referee fee award.
The case involves a prevailing defendants attorney fee award. It is based on
a fee-shifting statute [Civil 798.85] and a contract clause governed by Civil 1717.
The court stayed enforcement without a bond despite the $197,857.50 fee award
was a non-routine cost requiring a bond, as mandated under Bank of San Pedro.

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].

Shipley also argued

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.

It Was Reversible Error to Enjoin Enforcement Without Requiring a Bond.

A. History of Appellate Court Conflicts Prior to 1992
In 1933 the Cunningham

Panel expressed its rationale for requiring undertakings

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

Cunningham v. Reynolds (1933) 133 Cal.App. 148, 150-151

Chamberlin v. Dale's Rentals, Inc. (1986) 188 Cal.App.3d 356, 361-362
6
Allen Grant v. Superior Court of Stanislaus County (1990) 225 CA.3d. 929, 934-935
5

Petitioners' proposed limitation on the court's power ignores the condition

for the undertaking set out in section 917.1. Subdivision (b) of section 917.1
clearly states that the undertaking may be used to satisfy not only the amount
of the judgment and costs accrued below, but also post-judgment interest and
costs awarded on appeal. Thus, concurrence with petitioners' argument would
accept that a statute whose purpose was to assure collection of the money
judgment, accrued interest and costs upon remittitur, prescribes a limit to
the protection. In effect, if due to passage of time, delay or other reasons,
the appeal languished unresolved, the mounting interest to which respondent
is legally entitled would not be assured. With a judgment debtor in conceivable
financial straits, and the accrued interest exceeding the amount of the undertaking,
success on appeal might well result in a Pyrrhic victory. Grant, supra @ 935
In 1991, a panel in Banks v. Manos 7 held the entire judgment costs, attorney fees
imposed as sanctions, and attorney fees awarded to the prevailing parties pursuant to a
contractwas required to be bonded in order to stay execution pending the appeal.
Some panels disagreed with Cunningham and its progeny, lumping attorneys' fees with
routine costs---which were always automatically stayed pending appeal under 916. 8
In 1992 the Supreme Court Granted Review to Resolve Appellate Conflicts
In 1992 the Supreme Court resolved the conflict in Bank of San Pedro 9 by adopting
Chamberlin and directing courts to distinguish between routine and non-routine costs.
Although the issue was expert witness fees it lumped attorneys' fees into the analysis,
finding expert witness fees like attorney fees are non-routine costs not automatically
stayed under CCP 916 but were exempted as judgments for money under 917.1(b)(1).
In 1993, the Legislature amended 917.1, removing undertaking for costs awarded
under Chapter 6 of the CCP, but requiring bonds on appeals of awards under CCP 998.
This led to some confusion as to whether attorney fee awards were still considered
to be exempt from the automatic stay pending appeal under CCP 916 because the
Supreme Courts lumping of attorney fees with expert witness fees under CCP 998,
was only dicta because expert witness fees were the sole issue in that 1992 appeal.
7

Banks v. Manos (1991) 232 Cal.App.3d 123

Nielsen v. Stumbos (1990) 226 CA.3d 301, 304; Pecsok v. Black (1992) 7 CA.4th 456, 459
9
Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 803
9
8

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

We agree with Presiding Justice Kremer's analysis in Chamberlin v. Dale's

R.V. Rentals, Inc., supra, 188 Cal.App.3d at page 362 that ". . . attorney
fees are not the type of costs involved in virtually every case" and "are
awarded only in limited situations." OGrady @ 1029
Further, to interpret section 917.1 to provide that the automatic stay
does not apply to an award of attorney fees in the sum of $46,025.00 is
entirely consistent with well-established statutory interpretation principles.
In Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at pages 803804, our Supreme Court held: "We must not lose sight of the fact that we
are dealing with a statutory question and that we must attempt to reach
a result comporting with the Legislature's intent. [Citation.] The Court of
Appeal's decision in this case achieves this goal in several respects. [P] First,
a judgment directing the payment of expert witness fees is--by any practical
or semantic measure--a judgment directing the payment of money and is
therefore consistent with the language of section 917.1, subdivision (a)
which provides that such a judgment is not automatically stayed.
A judgment within the plain language of the statute is presumptively
within the Legislature's intent absent a showing to the contrary." (italics.)
In the present case, the Civil Code, section 1717 attorney fee award
in the sum of $46,025.00 is "by any practical or semantic measure-a judgment directing the payment of money . . .." (3 Cal.4th at p. 804.)
As such, it is "consistent with the language of section 917.1, subdivision
(a) which provides that such a judgment is not automatically stayed."
( Id. at p. 804, original italics.)
OGrady @ 1029
There is nothing in the legislative history of Civil Code, section
1717 which suggests that the Legislature intended that an attorney
fee award would be automatically stayed.
OGrady @ 1029
Quite obviously, a sound argument can be made that because Civil Code,
section 1717 awards are recoverable as costs, the Legislature therefore
inferentially intended that they be stayed pending appeal. OGrady @ 1029
11

The argument in this regard is as follows. Section 1032, subdivision (b),

states, "Except as otherwise expressly provided by statute, a prevailing party
is entitled as a matter of right to recover costs in any action or proceeding."
Section 1033.5, subdivision (a)(10) states, "The following items are
allowable as costs under Section 1032: [P] . . . (10) Attorney fees, when
authorized by either of the following: [P] (A) Contract." The second
paragraph of section 1033.5, subdivision (c)(5) states, "Attorney's fees
awarded pursuant to Section 1717 of the Civil Code are allowable costs
under Section 1032 as authorized by subparagraph (A) of paragraph (10) of
subdivision (a)." It can be logically asserted that the presence of attorney fee
awards pursuant to Civil Code, section 1717 in section 1033.5 is indicative
of a legislative intent to treat such matters as costs. OGrady @ 1029-1030
However, it must be remembered that expert witness fees are specifically
identified in section 1033.5, subdivision (a)(8) as an allowable costs when
"ordered by the court." In Bank of San Pedro, our Supreme Court held that
expert witness fees were "a judgment that 'directs the payment of money'
within the scope of section 917.1, subdivision (a) and that such judgment is
therefore not automatically stayed by the perfecting of an appeal." (Bank of
San Pedro v. Superior Court, supra, 3 Cal.4th at p. 805.) OGrady @ 1030

The mere presence of expert witness fees in section 1033.5 did

not transform them into routine costs subject to the automatic stay.
Accordingly, the fact that Civil Code, section 1717 attorney fees are
likewise set forth in section 1033.5 does not mandate the conclusion
that they are ordinary costs which are automatically stayed on appeal.
OGrady @ 1030
To sum up, Civil Code, section 1717 attorney fee awards are not
ordinary costs. They are non-routine costs. As such, they are not subject
to the automatic stay provisions of section 917.1. Accordingly, defendant
is entitled to the issuance of a writ of execution. 4
OGrady @ 1030
It is clear the Supreme Court held [in dicta] that an attorney fee award is a judgment
for moneylike an expert fee award---requiring an undertaking to perfect an appeal.
12

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

Whelan v. Rallo (1997- 4th Dist-Div3) 52 Cal.App. 4th. 989, 929

12
Lewin v. Anselmo (1997-1st Dist -Div4) 56 CA4th. 694, 700
13
City of Lodi v. Randtron (1997-1st. Dist. Div. 4) 118 Cal.App.4th 337, 355
11

14
15

Gallardo v. Specialty Restaurants Corp. (2000) 84 Cal.App.4th 463, 469

Dowling v. Zimmerman (2001- 4th Dist - Div1) 85 CA4th. 1400, 1431
13

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

Behniwal v. Mix (2007) 147 Cal. App. 4th. 621

Chapala v. Stanton (2010-4th Dist.-Div 1) 186 CA 4th. 1532, 1542
Auto Equity v. Superior Court (1962) 57 Cal. 2d 450
14

There is nothing in the legislative history of Civil Code, section

1717 which suggests that the Legislature intended that an attorney
fee award would be automatically stayed. Quite obviously, a sound
argument can be made that because Civil Code, section 1717 awards are
recoverable as costs, the Legislature therefore inferentially intended that
they be stayed pending appeal. OGrady, supra @ 1029
The argument in this regard is as follows. Section 1032, subdivision
(b), states, "Except as otherwise expressly provided by statute, a prevailing
party is entitled as a matter of right to recover costs in any action or
proceeding." Section 1033.5, subdivision (a)(10) states, "The following
items are allowable as costs under Section 1032: [P] . . . (10) Attorney fees,
when authorized by either of the following: [P] (A) Contract." The second
paragraph of section 1033.5, subdivision (c)(5) states, "Attorney's fees
awarded pursuant to Section 1717 of the Civil Code are allowable costs
under Section 1032 as authorized by subparagraph (A) of paragraph (10) of
subdivision (a)." It can be logically asserted that the presence of attorney
fee awards pursuant to Civil Code, section 1717 in section 1033.5 is
indicative of a legislative intent to treat such matters as costs.
However, it must be remembered that expert witness fees are specifically
identified in section 1033.5, subdivision (a)(8) as an allowable costs when
"ordered by the court." In Bank of San Pedro, our Supreme Court held that
expert witness fees were "a judgment that 'directs the payment of money'
within the scope of section 917.1, subdivision (a) and that such judgment
is therefore not automatically stayed by the perfecting of an appeal."
The mere presence of expert witness fees in section 1033.5 did
not transform them into routine costs subject to the automatic stay.
Accordingly, the fact that Civil Code, section 1717 attorney fees are
likewise set forth in section 1033.5 does not mandate the conclusion
that they are ordinary costs which are automatically stayed on appeal.
To sum up, Civil Code, section 1717 attorney fee awards are not
ordinary costs. They are non-routine costs. As such, they are not subject
to the automatic stay provisions of section 917.1. Accordingly, defendant
is entitled to the issuance of a writ of execution. OGrady @ 1029-1030
15

An appellate panel is not authorized to infer legislative intent. Their function is to

apply stare decisis to the facts. In this case, the Chapala panel improperly inferred
legislative intent to consider attorney fee awards as a component of routine costs under
CCP 1033.5 --- automatically stayed by CCP 916contra to the Bank of San Pedro.
The Chapala panel misinterpreted legislative intent in CCP 917.1(d). Subdivision (d)
only governs how to add costs to the amount of security required under subdivision (c).
The court below erred by applying Chapala, supra instead of Bank of San Pedro, supra.
Shipleys attorney presented the above arguments in her Opposition [CT 155-163].
After being served with a Reply Shipley formulated points to rebut the erroneous
arguments in the Reply, which she presented at the hearing on 8/17/15. [RT 1-12].
After the court orally adopted its tentative decision, applying Chapala instead of the
Bank of San Pedro, Shipley asked for a stay on it pending appeal, which was denied.
[RT 11:23 through 12:13]. Shipley exhausted her administrative remedies at that time.
CONCLUSION
Plaintiff failed to provide even a scintilla of evidence to show any irreparable harm
would occur if he had to post a bond pending appeal. Stubblefield is a wealthy developer
who can afford a bond for $197,857.50. He is not indigent. Stubblefield could have
written off the cost of a bond as a regular business expense. The court did not even
consider the irreparable harm to Shipley in that she has no security to collect her award.
Stubblefield has months to transfer assets and money in his sham entity to avoid paying
$197,857.50 +10% interest when a mandatory attorney fee award is affirmed on appeal.
A court is required to weigh the benefits and burdens before issuing an injunction.
There are no burdens to Stubblefield and severe burdens to Shipley as there is no
security to collect her award. There are only benefits to Stubblefield in that he can delay
paying the judgment and transfer assets over the next year to avoid paying. Shipley has
no bond to cover risks of a potentially significant loss. There are no benefits to Shipley.
16

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.

Respectfully submitted 12/9/15

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@&

Nancy Duffy McCarron, Attorney for Appellant

8,10,

S~Vbbl$ddProperliest el d r Bonnie ShipIeY'

'CASE No. UDDS 1204 130

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')

The Chapala decision was not overruled by Sharifpour v. Le (2014) 223

~ a L ~ p p . 730
4 ' ~where the Court in dealing strictly with a moneyjudgment held.
inter a h , that the Court abused its discretion in construing the failure to file an
opposition to be a consent to the ordering of a stay without the requirement of an
undertaking. The Chepala decision was neither discussed nor overruled by that
holding.
CCP g 916 is applicable to unlawful deteiner proceedings. (CCP 551177.
1178)

The Court therefore makes the following Orders:

1. A stay is granted pending appeal without the posting of a bond;

2. The Writs of Execution issued by the Clerk of the Court on July 31,
2015 are quashed and unenforceable.

3. The Abstract of Judgment issued June 25, 2015 is vacated and of no

force and effect:
Plaintiff is directed to give notice of ruling.

' 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.

Post Judgment Execution on Attorneys' Fees:

Navigating An Area That Is Ripe For Review

present split of authoriry may affect the collection of

cosu and attorneys' fees. As a general rule, an appeal does
not stay enforcement of a moncy judgment. This issue
becomes mote complex however, as ir relates to defendants.
When a parry is sued, defending against the suit can ofren
becomeonly halfthe battle. Normally, thesuccessful defending
parry may recover costs, and sometimes, even attorneys' fees.
But what happens if the losing plaintiff files an appeal? For
recovering costs, thc law is srttled: under California Code of
Civil Procedure Section 9 17.1, thc appealoperates as a stay of
the case, forcing the sl~ccessfuldefending parry to wail until
the conclusion of the case, including the appeal.

A ro attorneys' fees however, the courts have come down

on both sides, making tecovety of these fees without a stay
possible, but a tricky cndeavor. The main issue is whether
attorneys' fees should be considcred costs under Section
917.1, which would postpone recovev until after thc appeal.
Early on, in cases such as Pecrok u. Black, 7 Cal.App.4rh 456,
459-462 (1992) and NieLen u. Stumbor, 226 Cal.App.3d 301,
304-305 (1990), the courts lumped attorneys' fees with costs,
finding that thcse awards were subiect to the automatic stay
pending appeal under Section 917.1. However, the court in
Chamberlirr u. Dale1 R.V Rentah, Izc, 188 Cal.App.3d 356,
361-362 (1986) disagreed. ' h e generally accepted rcason for
requiring a stay for costs is that they are awarded in neatly
every case. The coutt in Chatnberlin?teasoned that attorney's
fees arc no1 like incidental routine costs, in that they are not
routinely awatdcd in wecy case. Additionally, the Chamberlin
court reasoned that attorneys fces are a directly litigated issue,
whereas costs are merely incidental to thc judgn~enr.
In 1992, the court in Bank of San Pedro u. Superior Gvrt, 3
Cal.4th 797 (1992) essenriallyadopted the Chamberlin ruling.
Though the issur ill Bank ofSan Pedro related to the collection
of expert witness fccs, they included attorneys' fees in its

discussion. Specifically, the court in Bank ofSan Pedro found

that expert witness fees "like attorncyr' fees" are non-routine
costs [bat are not subject to the automatic stay of enforcement
pending appeal. The Batrk ofSan Pedro court a1so:criticized a
number of the prior holdings, and for a time, the matter was
serded.

'

Ln 1993, the Legislature amended Section 917.1, re

undertaking requirements for costs awardcd under Ch
of the Code of Civil Procedure, hut permitting rhcm re
costs under Code of Civil Procedure Section 998. This led to
some confusion as to whether awards of attorneys' fees were
still considered to be exempt from the automatic stay pending
appeal.
Most recently, in 2007, the court m Brhsiwul v Mix, 1.47
Cd.App.4th 621 (2007) sided again with the exemption f o ~
attorneys' fee awards from the automatic stay, following the
court in Bank nfSan Pedro. Although the ditect issue in that
casc dcalt with whethera contractual fee awatd isincidental to a
specific performance judgment, the court engaged in a detailed
discussion of the prior history regarding the attorneys' fees
issue, and, following the coutr in Bank ofSan Pedro, reasoned
that expert witness fees "and surely, we can add, attot'ncy fees"
ate always a matter of trial court discretion, even if awarded
as a matter of right. In so finding, the court reitetated the ,
distinction between routing costs and non-routine attorneys'
fees, as set forth in Chatnberlin and Barrk nfSan Pedro.
'

'

Based on this, it is possible to successfully seek to rnforce an

award of attorneys' fees, even where the losing plaintiff appcals
the dec~s~on.
Because the prior cases have not been overruled
(though they have been criticized), it is likely that this issue
will be taken up and setded by the Supreme Courr in the not
too distant future.

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

APPELLANT'S OPENING BRIEF-Appeal 1sshe STAY without a BOND

I

[ ] (By Personal Delivery)

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

I am familiar with mail collection in [ ] San B e m ~ d i n o[XI Santa Barbara.

I deposited the envelope in a US mailbox located in [ ] San Bernardino [x] Santa
Barbara, CA. I am aware on a motion of the party served, service is presumed
invalid if postal cancellation date is more than one day after deposit date on affidavit.

[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