Matsuba v. Superior Court
Filed 7/23/12 Matsuba v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FIVE
YUM MATSUBA et al.,
Petitioners,
v.
THE SUPERIOR COURT
OF LOS ANGELES
COUNTY,
Respondent;
AMIR ZIPORI,
Real
Party in Interest.
B237625
(Los
Angeles County
Super. Ct.
No. LC084222)
ORIGINAL
PROCEEDINGS in mandate. Huey Cotton,
Judge. Petition granted.
Ronald
D. Tym for Petitioners.
No
appearance for Respondent.
No
appearance for Real Party in Interest.
_______________
Petitioners and defendants Yum Matsuba, Owner Management
Service, LLC, and Trust Holding Service Co. (petitioners) seek mandate to
vacate respondent court's order of December 9, 2011, granting real party and
plaintiff Amir Zipori's motion objecting to the sufficiency of undertaking for
appeal by personal sureties, and requiring petitioners to file an undertaking
by an admitted surety insurer in an amount equal to twice the judgment of
$59,368.72, or $118,737.44. Petitioners
contend that under Code of Civil Procedure
section 995.010 et seq., the subject undertaking of the personal sureties
submitted below was sufficient, and that respondent court's requirement that
they file an undertaking by an admitted surety in the amount of twice the
judgment is contrary to and in excess of the amount required by section 917.1,
subdivision (b).
We hold that respondent
court's determination that the undertaking by the personal sureties was not
sufficient under sections 995.510, 995.930 and 995.960, and requirement that an
undertaking be provided by an admitted surety insurer, was not contrary to law
or an abuse of discretion. However, that
part of the court's order requiring an undertaking by an admitted surety
insurer in the amount of twice the judgment was in excess of the amount of one
and one-half times the judgment required by section 917.1,
subdivision (b).
Accordingly, we issue mandate requiring respondent court to modify its
order to require petitioners to file a bond in the amount of one and one-half
times the judgment of $59,368.72, or $89,053.08, and to vacate that part of the
order requiring an undertaking of twice the judgment.
PROCEDURAL HISTORY
On September 29, 2011, after
a bench trial, the court found in favor of Zipori in his lawsuit for breach of
a lease. A judgment of $59,368.72,
including fees and costs, was entered against petitioners on October 31,
2011.
On November 23, 2011,
petitioners filed a personal surety bond of $118,737.44 pursuant to sections
995.010 et seq. and 917.1, to stay enforcement of the judgment pending
appeal. The bond was supported by the
affidavits from Ryu Goeku and Jamie Matsuba, who asserted that they were the
beneficiaries of a trust which owned real property at 8409 Brimfield Avenue,
Panorama City, California (the real property) which had a fair market value of
$392,000, liens of $75,000 and a net value of $317,000. The sureties claimed to be worth at least the
amount of the bond ($118,737) in real or personal property, over all debts and
liabilities, exclusive of property exempt from enforcement, by virtue of being
fifty percent beneficiaries of the trust that is the fee owner of the real
property.
On December 6, 2011, real
party filed a motion objecting to the sufficiency of the undertaking pursuant
to section 995.930 and a request for judicial notice. The motion challenged the sufficiency of the
undertaking because, among other things, the fair market value (FMV) of the
property was exaggerated and consequently failed to adequately protect the real
party's interests. The FMV claimed for
the real property by the sureties was $392,000, while the FMV estimated by
plaintiff based on its purchase price in September 2010 was $210,000. Real party maintained that the sureties'
assertion of a FMV of $392,000 was inherently improbable, as it represented a
near doubling in value over a one-year period, during a time of decline in the
real estate market.
On December 9, 2011, the
surety bond was insufficient under section 995.510, subdivision (a)(3) because,
inter alia, the fair market value of the home listed as collateral for the
bonds bore no relation to the price of $210,000 at which the home sold in
September 2010. The court issued the
following order: "The court, having
determined that the undertaking is insufficient in the amount of $118,737.44,
hereby orders defendant Matsuba to file a bond in the amount of said
deficiency, issued by an admitted surety insurer within 5 days."
Petitioners filed this
petition for writ of mandate,
contending that they are entitled to rely on personal sureties under sections
995.010 et seq. as well as admitted surety insurers, and that section 917.1,
subdivision (b) requires only one and one-half times the judgment where an
undertaking is filed by an admitted surety insurer, rather than twice the
judgment as is required for personal sureties.
On March 7, 2012, this court
issued an alternative writ of mandate directing respondent court, after
conferring with the parties and considering sections 995.010, 995.510, 995.930,
995.960, and 917.1, subdivision (b), to modify its order of December 9,
2011, granting the motion by real party Zipori objecting to the sufficiency of
bond on appeal. Respondent court was
instructed to affirm that part of the order determining that the undertaking by
petitioners is insufficient, and ordering petitioners to file a bond by an
admitted surety insurer. Respondent
court was to modify the remainder of its order to require petitioners to file a
bond in the amount of one and one-half times the judgment, or in the
alternative to show cause before this court on April 2, 2012. Real party was allowed to file a return to
the petition by March 19, 2012, and petitioner to file a reply to the return by
March 26, 2012. Respondent court failed
to comply with this court's alternative writ of mandate or to show cause, and
neither real party nor petitioner filed a return or reply to the alternative
writ.
DISCUSSION
Section 995.510 provides
that a personal surety on a bond is sufficient if three conditions are
satisfied, including that the surety is worth the amount of the bond in real or
personal property, or both, over and above all debts and liabilities, exclusive
of property exempt from enforcement of a money
judgment. Section 995.930 provides
that an objection to a bond or undertaking shall specify the grounds including
the reason for the insufficiency of the amount of the bond and an estimate of
the amount which would be sufficient.
Section 995.960 provides that the court shall make an order determining
the sufficiency or insufficiency of the bond, and shall specify in what respect
the bond is insufficient and shall order a bond with sufficient sureties and in
a sufficient amount be given within 5 days.
If a sufficient bond is not given within the time required by the order,
all rights by giving the bond immediately cease.
Respondent court's decision
of December 9, 2011, determining that the undertaking in the amount of
$118,737.44 is insufficient is not an abuse of discretion. Respondent court's determination is supported
by substantial evidence including its findings that the personal sureties were
insufficient as to the amount of wealth under section 995.510, subdivision
(a)(3), and the fair market value of the real property was overstated. Respondent court's order that petitioners
file a bond issued by an admitted surety insurer within 5 days is supported by
substantial evidence.
However,
the amount of the bond ordered by respondent court to be filed by an admitted
surety insurer – $118,737.44 – is twice the amount of the $59,368.72
judgment. Section 917.1, subdivision (b)
provides that ". . . . The undertaking shall be for double the amount of
the judgment or order unless given by an admitted surety insurer in which
event it shall be for one and one-half times the amount of the judgment or
order. . . ."
Because the bond must be filed by an admitted surety insurer, the amount
of the undertaking shall be for one and one-half times the amount of the
judgment, or $89,053.08, rather than $118,737.44.
DISPOSITON
Accordingly,
the petition is denied except to the extent that respondent court is directed
to modify its order of December 9, 2011, as to which the requested peremptory
writ of mandate hereby issues.
Respondent court is directed to affirm that part of its order granting
the motion by real party Zipori objecting to the sufficiency of bond on appeal,
and determining that the undertaking by petitioners is insufficient and ordering
petitioners to file a bond by an admitted surety insurer. Respondent court is directed to modify the
remainder of the order to require petitioners to file a bond in the amount of
one and one-half times the judgment of $59,368.72, or $89,053.08, and to vacate
that portion of the order requiring a bond in the amount of twice the
judgment. Each party is to bear its own
costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
J.
We concur:
TURNER, P.
J. MOSK, J.
name="_ftn1" title=""> [1] All further statutory references are to this code
unless otherwise indicated.
