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

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MOTION FOR STAY OF JUDGMENT/EXECUTION PENDING APPEAL
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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.
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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:

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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

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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
By:
__________________________________________
Frances M. Campbell
Attorney for Defendant Eurasian Auto
Body, Inc.

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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

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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

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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

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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.

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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

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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
By:
__________________________________________
FRANCES M. CAMPBELL
Attorneys for Defendant Eurasian Auto
Body, Inc.

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DECLARATION OF FRANCES M. CAMPBELL
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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

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DECLARATION OF JOE MERDKHANIAN
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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.
__________________________________

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JOE MERDKHANIAN

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PROPOSED ORDER
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Submitted by:
Frances M. Campbell (SBN 211563)
Law Office of Frances M. Campbell,
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.
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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.

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PROPOSED ORDER
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DATED: _______________________
_________________________________________
THE HON. LESLIE E. BROWN
JUDGE OF THE SUPERIOR COURT

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

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