$1m+ Appellate Bond Cost Award Affirmed.

Rostack Inv., Inc. v. Sabella, No. B286069 (D2d8 Feb. 5, 2019)

To say enforcement of a money judgment pending appeal, the defendant needs to post an undertaking. Code Civ. Pro. § 917.1(b). (Or if he or she is flush, a cash deposit will do. § 995.710.) To account for postjudgment interest, the undertaking needs to be 150 percent of the judgment, if posted by a licensed surety insurer. Otherwise it’s double. The one mitigator is that the cost of a bond, interest on it, and the costs of financing it are recoverable as an appellate cost if the case gets reversed. Cal. R. Ct. 8.278(d)(1)(F).

Here, Plaintiff won a pretty big judgment—$52 million—in some kind of collections matter. Staying enforcement required Defendant to post a $77 million bond, assuming it was from a licensed surety. The judgment got reversed. So now Defendant is seeking the bond costs—$1.4 million—as costs on appeal. Plaintiff says that’s unreasonable, particularly since Defendant, who is apparently of some means, could have just posted cash, or financed the bond differently. The trial court disagreed and denied a motion to tax. It entered the cost award as a judgment. Plaintiff appealed.

There’s a threshold appealability issue. The underlying case is still ongoing. Plaintiff says the cost award needs to wait to be wrapped into a final judgment. But that’s not right. Unlike trial court costs, which are part of a merits judgment, costs awarded by the Court of Appeal (the amount of which are decided by the Superior Court on remand) are a collateral issue that get entered as an independent judgment. The case law seems pretty clear on that.

On the merits, the question comes down to whether the bond costs were reasonable and necessary. Cal. R. Ct. 8.278(d)(1). The record here contained substantial evidence that Defendant had explored a variety of alternatives. The Court explains that it wasn’t unreasonable for Defendant to account for the opportunity costs of locking up so much cash in deciding to opt for a more financed options. So drawing inferences in favor of the trial court’s ruling, she chose a reasonable path. The fact that there may have been other, cheaper, options—options with potentially problematic consequences for Plaintiff—didn’t make the cost unreasonable.

Affirmed. (With more costs on appeal ….)

The J-Word

Katzenstein v. Chabad of Poway, No. D066340 (D4d1 Jun. 12, 2015)

The trial court in this case struck Defendant’s counterclaim in an unsigned minute order because Defendant failed to comply with some procedures particular to probate court. Defendant appealed. But there’s no appellate jurisdiction because the order striking the claims wasn’t appealable. Under Although § 581d of the Code of Civil Procedure, a signed order that dismisses an action because a motion to strike or demurrer has is granted can be appealed as a final judgment, even if it doesn’t use the j-word. But an unsigned minute order doesn’t cut it. Indeed, in this case, it appears that the trial court didn’t even intend to strike with prejudice, but just to require Defendant to resubmit the claims in accord with Probate court procedure. So an appeal was premature.

Appeal dismissed.

Lost Demurrer Saves the Day

Gallup v. Superior Court of Nevada County, No. C073452 (D3 Mar. 30, 2015)

Not much to see here, decidin’-wise. But it’s pretty rare to see a court reverse the denial of a demurrer when a case has subsequently made it all the way through trial and ended in a plaintiff verdict.

The One True Judgment

Baker v. Castaldi, No F067687 (D5 Mar. 16, 2015)
This appeal follows from a really confusing multi-stage trial that resulted in series of “judgments” being entered. Apparently, the judgment being appealed foresees the trial court holding a further trial on punitive damages.

That isn’t appealable even if the trial court erroneously called it a judgment.

Appeal dismissed.

Supreme Court Puts the Kybosh on Phony-Baloney Appeals

Kurwa v. Kislinger, No. S201619 (SC Oct. 3, 2013)

Resolving a recent split of authority, the Supreme Court holds that parties cannot manufacture jurisdiction for an interlocutory appeal by dismissing pending causes of action without prejudice and agreeing to toll the statute of limitations on them until after the appeal is resolved.