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06+ex+parte+app+to+stay+judgment 06+ex+parte+app+to+stay+judgment Document Transcript

  • 1 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Frances M. Campbell (SBN 211563) Anthony Carr, Of Counsel (SBN 123011) Law Office of Frances M. Campbell, a Professional Corporation 8050 Melrose Avenue, 2nd Floor Los Angeles, CA 90046 Tel: (323) 863-5290 Fax: (323) 944-0952 Attorney for Defendant Eurasian Auto Body, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, WEST DISTRICT BEVERLY HILLS COURTHOUSE PETE’S AUTO, INC., SIMON SIMONYAN, Plaintiffs, v. EURASIAN AUTO BODY INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 10U00096 [ASSIGNED TO THE HON. LESLIE E. BROWN, DEPT. 6] EX PARTE MOTION FOR STAY OF EXECUTION OF JUDGMENT FOR POSSESSION PENDING APPEAL [C. CIV. PROC. §§ 1176(A) / 918]; MEMORANDUM OF POINTS AND AUTHORITIES [[PROPOSED] ORDER LODGED CONCURRENTLY HEREWITH] Date: May 5, 2010 Time: 1:30 p.m. Dept.: 6 Trial date March 5, 2010 Judgment entered April 2, 2010 Notice of Appeal filed May 4, 2010 TO THE COURT, AND TO THE PLAINTIFFS AND THEIR ATTORNEY OF RECORD:
  • 2 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that Defendant Eurasian Auto Body, Inc. hereby respectfully applies for an Order directed to Plaintiffs and to the Sheriff’s Department of the County of Los Angeles, and to any other person acting on behalf of, or in concert with Plaintiff, staying execution of the judgment for possession entered on April 2, 2010 in this matter and the writ of possession issued on April 22, 2010. The application is made pursuant to Code of Civil Procedure sections 1176(a) and 918 on the grounds that (1) Judgment was entered against Defendant on April 2, 2010; (2) the writ of possession was issued on April 22, 2010; (3) Notice of Appeal was filed on May 4, 2010. Therefore, the April 2, 2010 judgment may be reversed, or the matter may be remanded to the Court with instructions to take some other action affecting the rights of Defendant. (4) Defendant will suffer considerable hardship if the judgment is not stayed pending appeal, in that it will incur over $200,000.00 if it is forced to move, only to potentially have the judgment against it vacated; and (5) Plaintiff will suffer no hardship at all so long as the Order staying execution of the Judgment is conditioned on Defendant’s payment of rent during the period of the stay, in accordance with Medford v. Superior Court, 140 Cal. App. 3d 236 (1983). The application is based on the Memorandum of Points and Authorities attached hereto, the declarations of Frances M. Campbell and Joe Merdkhanian, upon the Notice of of Appeal filed
  • 3 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on May 4, 2010, and upon such other evidence and argument as the Court may consider at the hearing. Dated: August 25, 2013 Respectfully submitted, LAW OFFICE OF FRANCES M. CAMPBELL a Professional Corporation By: __________________________________________ Frances M. Campbell Attorney for Defendant Eurasian Auto Body, Inc.
  • 4 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A. Relief Sought This is a motion for stay of execution of the judgment for possession and writ of possession pending appeal. The writ of possession was issued on April 22, 2010. The lock-out date is imminent. On May 4, 2010, Defendant filed an appeal from the Judgment entered against it on April 2, 2010. This application is made on the basis that Defendant will suffer extreme hardship if such a stay is not granted, because it will have to expend $200,000.00 in moving costs if it is forced to vacate pending appeal. See Declaration of Joe Merdkhanian (the “Merdkhanian decl.”). The stay is necessary to maintain the status quo pending the hearing on the 663 Motion. B. Background Defendant Eurasian Auto Body, Inc. leased the premises at 7500 Santa Monica Boulevard on March 1, 2000. The lease was for five years, at the rate of $4,500.00 per month, with two five-year options to renew. The lease provided that upon the exercise by the lessee of the option to renew after five years, the rent would increase as follows: Year 6 $4,612.50 per month Year 7 $4,727.81 per month Year 8 $4,846.00 per month Year 9 $4,967.15 per month Year 10 $5,091.32 per month
  • 5 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At the trial, Defendant testified through its principal that it gave the Plaintiff notice that he was renewing the lease, and further testified that it paid rent according to the schedule set out in the lease for years six through 10, although Defendant never received a notice of rent increase. /// In December, 2009, Plaintiff prepared a Three-Day Notice to Pay or Quit, claiming entitlement to rent in the amount of $2,273.96. The Three-Day Notice was given contrary to the terms of the lease agreement, which provided for a period of two months to cure any default in rent. While the Court found that Defendant did not exercise its first option, since Plaintiff never served a notice of rent increase, Plaintiff accepted $32,937.36 in excess rent paid by Defendant over the years. Because this excess payment is more than the amount stated in the notice, Defendant contended that no rent was due to Plaintiff and in fact that Plaintiff had been paid approximately six months in advance. II. ARGUMENT A. THE COURT HAS THE POWER TO STAY ENFORCEMENT OF THE JUDGMENT FOR POSSESSION PENDING APPEAL All courts have the power to stay enforcement of any judgment or order. Code of Civil Procedure section 918 provides as follows: (a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order. If there is no stay of execution pending appeal, then the Sheriff’s Department will evict Defendant, causing Defendant to
  • 6 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incur approximately $200,000 in moving costs. Then, even if the Defendant prevails on appeal, Defendant would have to expend more money to reoccupy the premises. B. CODE OF CIVIL PROCEDURE SECTION 1176(a) PROVIDES THAT JUDGMENT MAY BE STAYED PENDING APPEAL WHERE DEFENDANT WILL SUFFER EXTREMENT HARDSHIP IF A STAY IS NOT GRANTED. Code of Civil Procedure section 1176(a) provides in pertinent part as follows: An appeal taken by the defendant shall not automatically stay proceedings upon the judgment. Petition for stay of the judgment pendingi appeal shall first be directed to the judge before whom it was rendered. Stay of judgment shall be granted when the court finds that the moving paty will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance. In this case, the Declaration of Joe Merdkhanian shows that Eurasian Auto Body, Inc. will suffer extreme hardship if a stay of execution pending outcome of the appeal is not issued by this court, because the business will expend approximately $200,000.00 to move its location. See Merdkhanian Declaration. In addition, if there is no stay of execution pending the appeal, then Plaintiff will be free to, and most likely will, rent the subject premises to new tenants. Then, even if the Defendant prevails on appeal, it will not likely be able to be restored to possession of the premises. C. EVEN IF THE COURT DOES NOT FIND EXTREME HARDSHIP HAS BEEN SHOWN BY DEFENDANT, THE COURT HAS THE POWER TO GRANT A STAY OF EXECUTION PENDING APPEAL. Even if the Court does not find that the Defendant has demonstrated extreme hardship, the Court still has the power to
  • 7 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stay execution of the Judgment and Writ of Possession where a “substantial question will be raised on appeal,” the appellant will suffer irreparable injury by an eviction prior to determination of the appeal, and that the landlord will not be “sorely prejudiced.” See Mehr v. Superior Court, 139 Cal. App. 3d 1044, 1050 (1983). Nothing in Code of Civil Procedure section 1176(a) limits the discretion of the Court in granting a stay even if no exreme hardship is shown. While in many appeals, reversal for the tenants might be a remote possibility it is not so in this appeal. There are many issues of law to be decided by the Appellate Department in this case, for instance: 1. The issue of whether the notice correctly stated the exact amount of rent due, when the Defendant had been been paying stepped-up lease payments pursuant to its belief that it had exercised its option, is not an issue that has been directly addressed on appeal in any case. As the Court will recall, this is not a case where the Plaintiff estimated the amount of rent due—in this case Plaintiff posted a three-day notice that purported to state the exact amount of rent due. 2. In addition, there is no published authority on whether stepped-up rent provisions stated in a lease agreement that become effective only upon the lessee executing an option can be fairly applied to a tenant that has not exercised the option, or whether the landlord is then required to give a 30 day notice of rent increase if he wishes to increase the rent on what has become a month-to-month tenancy.
  • 8 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Finally, there will be an issue on appeal of whether a 60-day cure period for non-payment of rent, which applied to the first five years of the lease and not only upon the execution of an option to renew, automatically become inapplicable if a tenant does not exercise an option to renew. The Appellate Division could very well rule differently from this Court on these issues of law. D. PLAINITFF WILL SUFFER NO HARM IF THE STAY IS GRANTED. Despite the extreme hardship that Defendant will suffer if the stay sought herein is not granted, Plaintiff will suffer no harm. Defendant is willing to pay the monthly rental value into court, or directly to the Plaintiff, pending the outcome of the appeal. Thus, Plaintiff would be protected from any adverse monetary consequences resulting from the issuance of a stay. E. THE COURT HAS NO POWER TO CONDITION THE STAY ON PAYMENT OF THE JUDGMENT. During yesterday’s hearing, the Plaintiff argued that any stay ought to be conditioned on an Order that the Defendant pay the Judgment issued by the Court on April 2, 2010 (presumably including attorneys’ fees). However, while it is appropriate for the Court to condition the stay on payment of future rent during the stay, it would be inappropriate for the Court to condition a stay on Defendant satisfying the Judgment from which it is appealing. See Medford v. Superior Court, 140 Cal. App. 3d 236 (1983). The payment of going-forward rent is rationally related to protecting the landlord from delay incident to the Court’s imposition of a stay. See id. at 240. Requiring the deposit of disputed back rent and accrued damages is not, because it is “not
  • 9 MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a consequence of granting such relief to the tenant.” See id. at 240-241. “The landlord gains sufficient protection from the deposit of the contract rent as it becomes due.” Id. at 241. III. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court issue a stay of execution of the judgment for possession and writ of possession pending the outcome of Defendant’s appeal of the Judgment. Dated: August 25, 2013 Respectfully submitted, LAW OFFICE OF FRANCES M. CAMPBELL a Professional Corporation By: __________________________________________ FRANCES M. CAMPBELL Attorneys for Defendant Eurasian Auto Body, Inc.
  • 1 DECLARATION OF FRANCES M. CAMPBELL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF FRANCES M. CAMPBELL I, Frances M. Campbell, declare: 1. I am an attorney duly licensed to practice before all the courts of this State and before this Honorable Court. I am the attorney for Defendant Eurasian Auto Body, Inc. I represented Defendant at the trial of this matter. 2. This hearing date was set by the Court on May 4, 2010, with both counsel present. All parties waived notice of the hearing. 3. On May 4, 2010, I filed a Notice of Appeal in this matter. A true and correct copy of the Notice of Appeal is attached hereto as Exhibit A. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 5, 2010, at Los Angeles, California. _______________________________________ FRANCES M. CAMPBELL
  • 1 DECLARATION OF JOE MERDKHANIAN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOE MERDKHANIAN I, Joe Merdkhanian, declare as follows: 1. I am over the age of 18. I am the president of Eurasian Auto Body, Inc. 2. I started Eurasian Auto Body, Inc. at 7500 Santa Monica Boulevard in March of 1999, and am in charge of its operations. The property was essentially an empty shell. I had all of the equipment installed at that location. Since Judgment was entered against me in this action, I have priced new locations, moving charges and assembly costs by telephoning different vendors. Based on that experience, I have estimated the cost of moving the business to a different location. All of these costs are approximated based on my research: a. Cost of rent and deposit at new location: $24,000.00 b. Cost of disassembling and moving equipment and set- up at new location: $20,000.00 c. Cost of obtaining new permits and licenses: $2,500.00 to $5,000.00; d. Bins and movers: $2,000.00; e. Loss of business (approx. 2 weeks): $150,000.00. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 5, 2010, at Los Angeles, California. __________________________________
  • 2 DECLARATION OF JOE MERDKHANIAN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOE MERDKHANIAN
  • 1 PROPOSED ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Submitted by: Frances M. Campbell (SBN 211563) Law Office of Frances M. Campbell, a Professional Corporation 8050 Melrose Avenue, 2nd Floor Los Angeles, CA 90046 Tel: (323) 863-5290 Fax: (323) 944-0952 Attorney for Defendant Eurasian Auto Body, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, WEST DISTRICT, BEVERLY HILLS COURTHOUSE PETE’S AUTO, INC., SIMON SIMONYAN, Plaintiffs, v. EURASIAN AUTO BODY INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 10U00096 [ASSIGNED TO THE HON. LESLIE E. BROWN, DEPT. 6] [PROPOSED] ORDER GRANTING STAY OF EXECUTION OF JUDGMENT FOR POSSESSION PENDING APPEAL Date: May 5, 2010 Time: 8:30 a.m. Dept.: 6 Trial date March 5, 2010 Judgment entered April 2, 2010 On May 5, 2010, Defendant Eurasian Auto Body, Inc., through counsel, moved for a stay of execution of the judgment for possession entered on April 2, 2010, and the writ of possession issued on April 22, 2010. Upon review of the moving [and opposing] papers, and good cause appearing therefor, IT IS ORDERED that the execution of the judgment and writ of possession is stayed pending outcome of the appeal filed on May 4, 2010.
  • 2 PROPOSED ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: _______________________ _________________________________________ THE HON. LESLIE E. BROWN JUDGE OF THE SUPERIOR COURT