Plaintiff, Robert Campbell (“Plaintiff” or “Campbell”), moves for an order staying and consolidating the instant unlimited civil case, Campbell v. Brooks, case no. 30-2022-01286871-CU-BC-WJC (the “Unlimited Action”) and an unlawful detainer case, Brooks v. Campbell, case no. 30-2023-01312405-CL-UD-CJC (the “UD Action”).
On 08/10/23, the Court’s tentative ruling was to deny Plaintiff’s Motion to Consolidate and grant the motion to stay the unlawful detainer action pending the outcome of this Unlimited Action. (ROA 86, 89.) After oral argument, the Court permitted the parties to file simultaneous briefs regarding authority and justification for an undertaking and the amount of an undertaking. Said briefs were due no later than 08/24/2023, with no reply to be filed. (Ibid.)
In his supplemental brief, Campbell contends that there is no statute that authorizes an undertaking or bond such that the Court lacks the authority to require an undertaking or bond; that the Code of Civil Procedure expressly prohibits the court from doing the functional equivalent – issuing a writ of attachment as Code of Civil Procedure section 483.010(c) expressly prohibits prejudgment attachments in the context of an unlawful detainer dispute involving a residential tenant; that the Court cannot require Campbell to post an undertaking or bond under Code of Civil Procedure section 529 because it has not issued an injunction; and that it would not be fair to order Campbell to post an undertaking for rent because if Brooks had not reneged on the sale, Campbell would be the subject property’s owner. Campbell also asserts that if the Court decides to require an undertaking anyway, it should consider the prejudgment writ of attachment statute in determining what dollar amount to require. Campbell contends the Court should consider the following: Campbell does not owe Brooks back rent as of March 17, 2023; the only remaining rent is April 2023 through the trial date in this Action, November 2024, or 19 months at $2,750, but the Court should subtract $525 per month from the rent, so that it is 19 months at $2,225 which totals $42,275; Campbell has paid, or attempted to pay, his rent every single month, and Brooks refused to accept $30,250 so far; Brooks owes attorneys’ fees to Campbell; and Campbell lost the first unlawful detainer case that Brooks filed and following post-judgment practice, Brooks now owes Campbell a total of $32,453.99 which should be subtracted from any undertaking amount.
In his supplemental brief, defendant Lawrence Brooks (“Brooks”) moves for an undertaking for the value of the property–$600,000–pursuant to Code of Civil Procedure section 529(a). Brooks contends that Campbell moved in a separate action for an injunction to stay the UD action so that he may pursue a quiet title action; that an undertaking is required when a Court orders an injunction against real property, as the Court did here; that the property is valued at $600,000; and that Brooks is entitled to the protection of an undertaking in the event that the Court decides that Defendant was not entitled to the injunction.
The Court’s 08/10/23 tentative is now final. The Court’s 08/10/23 tentative ruling is incorporated herein.
As to the issue of an undertaking, Plaintiff’s brief was timely filed and served by electronic service on 08/24/23.
The brief filed by Brooks was late-filed on 08/25/23, and there is no proof of service attached to the brief or concurrently filed. However, the Court will consider the brief.
Brooks cites to Code of Civil Procedure section 529(a), but cites to no authority showing that Code of Civil Procedure section 529(a), which applies to injunctions, applies to the circumstances here.
On the other hand, while Campbell argues that no injunction was issued, also citing to Code of Civil Procedure section 529(a), Campbell does not cite to authority showing that a stay of the UD Action is not tantamount to an injunction.
Section 529 provides that “[o]n granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Within five days after the service of the injunction, the person enjoined may object to the undertaking. If the court determines that the applicant’s undertaking is insufficient and a sufficient undertaking is not filed within the time required by statute, the order granting the injunction must be dissolved.” (Code Civ. Proc. § 529; emphasis added.)
Under Code Civ. Proc. § 529, if a preliminary injunction is granted the court “must” require an undertaking. Because the bond requirement is mandatory, a defendant’s failure to request a bond does not usually waive the requirement. (Abba Rubber Co. v. Seaquest (1991) 235 Cal.App.3d 1, 10. But cf. Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729, 740 (implied waiver or forfeiture found where party to be enjoined consciously chose not to address bond requirement as part of a tactical decision).)
Under Section 529(a), “the trial court’s function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum. [Citations.]” (Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14.) “That estimation is an exercise of the trial court’s sound discretion, and will not be disturbed on appeal unless it clearly appears that the trial court abused its discretion by arriving at an estimate that is arbitrary or capricious, or is beyond the bounds of reason. [Citation.]” (Ibid.) “[T]he first step is to identify the types of damages which the law allows a restrained party to recover in the event that the issuance of the injunction is determined to have been unjustified. The sole limit imposed by the statute is that the harm must have been proximately caused by the wrongfully issued injunction. [Citation.]” (Ibid.) “Case law adds only the limitation that the damages be reasonably foreseeable. [Citations.]” (Ibid.) Attorney’s fees is another type of damage which the undertaking must take into account. (Id. at p. 15.) Thus, in calculating the amount of the undertaking, the trial court should consider “the attorney’s fees and expenses to be incurred in either prosecuting an appeal of the preliminary injunction, or defending at trial against those causes of action upon which the preliminary injunctive relief had been granted.” (Id. at p. 16.)
“If a statute provides for an undertaking, a bond that otherwise satisfies the requirements for the undertaking may be given in its place with the same effect as if an undertaking were given, and references to the statute to the undertaking shall be deemed to be references to the bond.” (Code Civ. Proc. § 995.210(b).
The issue therefore turns on whether consolidating or staying the UD action constitutes an injunction. The parties disagree sharply on this point. However, in reviewing the law in this area, the Court concludes that “Staying the unlawful detainer is in the nature of an injunction and a bond may be required. [See CCP § 526; and discussion at ¶ 7:35].” (Friedman, et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group November 2022 update) ¶ 7:268.)
In particular, Code of Civil Procedure section 526 provides that an injunction may be granted “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action,” or “[w]here the restraint is necessary to prevent a multiplicity of judicial proceedings,” among other circumstances. (Code Civ. Proc. § 526(a)(2), (6).)
After an eviction is transferred to the superior court, one possibility to facilitate accommodating the eviction action with a fraud action “is for the superior court to stay the eviction proceedings until trial of the fraud action, based on the authority of Code of Civil Procedure section 526 which permits a preliminary injunction to preserve the status quo on such grounds as irreparable injury, multiplicity of legal actions, or unconscionable relative hardship. [Citations.]” (Ascunsion v. Superior Court (1980) 108 Cal.App.3d 141, 146-147.) “Bond would be required to obtain such an injunction (Code Civ. Proc., s529), which could be waived for an indigent litigant [citation].” (Id. at p. 147.) “It has been held where foreclosure of a trust deed would moot a claim of right under a deed, and the deed is attached as a fraudulent conveyance, a preliminary injunction is permitted to prevent foreclosure pending trial [Citation].” (Ibid.) “Staying the eviction here is analogous.” (Ibid.)
This Court agrees and follows the binding precedent set forth in the Ascunsion case. It appears to the Court that staying the eviction here is also analogous such that an undertaking should be required. To be certain, Campbell, himself, requested that the Court stay the UD matter and thus delay the eviction proceedings. In his notice of motion, Campbell writes, “Mr. Campbell also requests that the Court stay the UD Action pending the outcome of this Unlimited Action.” (Motion to Consolidate, p. 2 (ROA60)). Accordingly, a bond or undertaking is appropriate.
The next step is determining the appropriate amount. Brooks contends that the undertaking should be for the value of the property which is $600,000. This contention is not supported by evidence or authority. Instead, it appears to the Court that if the stay in the UD Action were wrongfully issued, the damages Brooks may sustain by reason of the stay includes unpaid rent until a month after the trial in the Unlimited Action which is currently set for 11/04/24. The additional month following trial is necessary for a jury trial to occur, and for a judgment to issue (after consideration of objections).
Campbell relies on Code of Civil Procedure section 483.020(a) to determine the amount to be secured by an attachment in an unlawful detainer proceeding. However, in light of the Court’s discussion above, the Court finds Section 483.020(a) inapplicable.
Here, the monthly rent is $2,750. (Declaration of Robert Campbell, ¶ 3, ROA 99.) Campbell asserts the monthly rent should be reduced by $125 due to Brooks’ decision to stop maintaining the landscaping, and $400 due to Brooks’ decision to drain the subject property’s backyard pool. (Id., ¶¶ 7-7.2.) However, Campbell provides no evidence showing that these are the amounts to maintain the property, even though he provides that he pays the landscaper/gardener himself. (Ibid.)
Campbell contends that the rent remaining at issue is April 2023 through trial in this action — November 2024. Although not supported by admissible evidence, the Court accepts Campbell’s representation and calculates that this period equates to 20 months from April 2023 through November 2024 at $2,750 per month for a total of $55,000.
Campbell contends that the Court should consider attorneys’ fees owed by Brooks from the first unlawful detainer case that Brooks filed and lost and from which Brooks now owes Campbell a total of $32,453.99 in post-judgment costs, including attorneys’ fees, which Brooks has not paid. (Declaration of JC Chimoures, ¶¶ 2-5, Exs. 1, 2, ROA 98.) However, that is a separate and independent judgment and fee award not presently before the Court. Nothing prevents Campbell from collecting the attorney fee award in the separate, now-concluded, action regardless of what the Court does in the two cases presently before it. Accordingly, the Court declines Campbell’s invitation to deduct $32,453.99.
The Court adds an additional $2,750 for the reason indicated above bringing the total to $57,750.
Brooks did not submit any evidence of estimated reasonable attorneys’ fees. Therefore, since no evidence concerning attorneys’ fees was presented, no amount for attorneys’ fees is added to the undertaking. This is without prejudice to Brooks in the future later requesting attorneys’ fees.
Based on the foregoing, the Court requires Campbell to file an undertaking in the amount of $57,750 to be posted within 20 days.
Campbell notes that “[a]ttachments against residential tenants are prohibited by Code of Civil Procedure, section 483.010(c).” (Medford v. Superior Court (1983) 140 Cal.App.3d 236, 239-240, overruled on other grounds in Levine v. Pollack (1995) 37 Cal.App.4th 129.) “This prohibition applies whether the claim is based on an unlawful detainer or arises in an ordinary civil action.” (Ibid.) The Court of Appeal in Medford also stated, “[r]equiring a tenant to deposit into court the alleged back rent or accrued damages has the same effect as a prejudgment attachment.” (Ibid.) However, the finding in Medford was that “the trial court abused its discretion in requiring Medford to deposit into court the back rent and accrued damages alleged to be due the landlord as a condition to filing the cross-complaint or as a condition to continuing the trial date to allow time for filing and responding to the cross-complaint.” (Id. at p. 239.) That is not the issue here which is whether the Court may require an undertaking for completely staying the UD Action, as requested by the plaintiff in the civil action.
Additionally, although Campbell contends that there is no statute that authorizes an undertaking or bond such that the Court lacks the authority to require an undertaking or bond, the argument is not sufficiently supported by authority or is contrary to existing authority.
The Court DENIES the Request for Judicial Notice as it is not relevant to a determination of the issue of the undertaking.
The Court DENIES the request to consolidate the UD matter, but GRANTS the request to stay the UD matter, pending further order of the Court.
The Court further ORDERS Campbell to post $57,750 as an undertaking and to file and serve proof of posting within 20 days.