Case Number: EC062104    Hearing Date: August 01, 2014    Dept: A

Evergreen Building v Funxional Fitness

MOTION FOR STAY

[Continued from July 11, 2014.]

Calendar: 11
Case No: EC062104
Date: 8/1/14

MP: Defendant, Funxional Fitness, Inc. and Jessica Vitanza
RP: Plaintiff, Evergreen Building

RELIEF REQUESTED:
Stay of the enforcement of the judgment.

DISCUSSION:
This case arises from Plaintiff’s claim that the Defendants are unlawfully detaining the Plaintiff’s real property because, after the Plaintiff served a notice to pay rent or quit, the Defendants did not pay the rent due or vacate the property. After the trial on April 28, 2014, the Court found that the Plaintiff is the prevailing party and entitled to possession of the property. The judgment in favor of the Plaintiff and against the Defendant was entered on May 19, 2014.

The Defendants filed a notice of appeal on June 6, 2014. This did not stay the enforcement of the judgment because the Defendants did not post a bond.

On June 11, 2014, the Defendants appeared with an ex parte application for a stay. The Court set the matter for July 3, 2014. The hearing was then continued to July 11, 2014 by stipulation of the parties.

The Defendants seek relief under CCP section 128 and 1176.

CCP section 128 identifies the Court’s general powers, e.g., the power to enforce order in its presence through contempt proceedings. It is not authority to stay an unlawful detainer judgment.

CCP section 1176 identifies the procedures for seeking an appeal of an unlawful detainer judgment. A party seeking to stay the judgment must file a petition and demonstrate that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance. Further, if the trial court stays enforcement of the judgment, the Court may condition the stay on whatever conditions the Court deems just, but in any case it shall order the payment of the reasonable monthly rental value to the court monthly in advance as rent would otherwise become due as a condition of issuing the stay of enforcement.
Case law interpreting CCP section 1176 finds that mere financial injury will not constitute irreparable harm if adequate compensatory relief will be available in the course of litigation. Goldie’s Bookstore, Inc. v. Superior Court of California (9th Cir. Cal. 1984) 739 F.2d 466, 471-472. Further, the findings of harm must be based on factual allegations and not speculation. For example, in Goldie’s the Court rejected claims that the tenant would lose goodwill and customers because they were speculative injury and not based on facts. Id.
In the pending case, the Defendants argue that they will suffer extreme hardship for the reason that it will be difficult to move the fitness equipment to a new location, the construction work done on the property, and the monetary losses that will be suffered. The Defendants provide facts in the declaration of Jessica Vitanza, who states that she has spent $1,500,000 in renovations, that it will be difficult to find a replacement space, and that it will be expensive to transport the fitness equipment to a new location.
There are no specific facts regarding the amount spent on renovations, i.e., bills to support the claim that $1,500,000 in renovations were incurred. Further, this is a financial injury and, as noted above, it does not constitute irreparable harm for the purposes of CCP section 1176.
There are no facts demonstrating that it is not possible to find a similar sized space in the Southern California area. Ms. Vitanza states that she has searched, but she does not offer any facts regarding the manner in which she did her search. For example, Ms. Vitanza does not state that she consulted a real estate agent and she does not identify the areas in which she searched.
This case is not pending in a rural, remote area. Instead, it is pending in the Southern California region. The Defendants offers no specific facts to demonstrate that they cannot find a similar space for a fitness business in this region.
Finally, the fact that it will be expensive to transport the fitness equipment is a financial injury. This is not irreparable harm for the purposes of CCP section 1176.

Accordingly, the Defendants have failed to demonstrate that they will suffer the extreme hardship required under CCP section 1176 to obtain a stay of the judgment during their appeal. Since the Defendants have failed to make an affirmative showing that they will suffer extreme hardship, the Court will deny the Defendants’ motion to stay the enforcement of the judgment.

RULING:
DENY motion for a stay.