Case Number: BC475350 Hearing Date: March 19, 2018 Dept: 47

Robert Baral v. David Schnitt

MOTION TO RECALL AND/OR QUASH WRIT OF EXECUTION

MOVING PARTY: Plaintiff Robert Baral

RESPONDING PARTY(S): Defendant David Schnitt

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant sold Plaintiff’s interest in a company, IQ, which they co-owned without Plaintiff’s authorization, although Defendant retained an interest in the company.

Plaintiff moves to recall and/or quash writ of execution as to the anti-SLAPP attorneys fees award, pursuant to which writ Plaintiff’s bank account has been levied upon. Alternatively, Plaintiff seeks an order in the Court’s equitable discretion staying enforcement of the fee award until Plaintiff has had an opportunity to appeal from the fee award, subject to Plaintiff posting an undertaking and/or bond in connection with the fee award.

TENTATIVE RULING:

Plaintiff Robert Baral’s motion to recall and/or quash the writ of execution is CONTINUED to April 19, 2018, at 8:30 a.m. The same terms and condition stipulated by the parties at the recent ex parte hearing shall remain in full force and effect, absent further written agreement of the parties and/or by court order.

The motion to stay enforcement of the November 14, 2017 order awarding $279,197.80 in attorney’s fees and $2,440.60 in costs in favor of Defendant David Schnitt and against Plaintiff Robert C. Baral is GRANTED. This temporary stay shall remain in effect pending this Court’s determination under CCP § 918.5 whether such enforcement shall be stayed until final judgment is entered in this action.

A further hearing re: stay of enforcement of the attorney’s fee award pursuant to CCP § 918.5 is set for April 19, 2018. Plaintiff’s further brief, including supporting evidence, is due April 4, 2018. Defendant’s further brief, including supporting evidence, is due April 11, 2018. Plaintiff’s further reply, with no additional evidence permitted, is due April 16, 2018. Courtesy copies of all pleadings are to be delivered concurrently to D47 Chambers.

DISCUSSION:

Motion To Recall and/or Quash Writ of Execution

Plaintiff moves to recall and/or quash writ of execution as to this Court’s November 14, 2017 anti-SLAPP attorneys fees award, pursuant to which writ Plaintiff’s bank account has been levied upon. Alternatively, Plaintiff seeks an order in the Court’s equitable discretion staying enforcement of the fee award until Plaintiff has had an opportunity to appeal from the fee award, subject to Plaintiff posting an undertaking and/or bond in connection with the fee award.

“A writ of execution may be recalled and quashed where the issuance was improperly or inadvertently made.” Meyer v. Meyer (1952) 115 Cal.App.2d 48, 49. A motion to recall and quash a writ of execution and release any liens lies where the judgment was not enforceable by execution. California Practice Guide: Enforcing Judgments and Debts, Ahart, The Rutter Group, § 6:613.

When distilled to its essence, Plaintiff’s motion seeks to advance the proposition that only “money judgments” which are appealable orders (i.e., those requiring immediate payment and thus constituting collateral orders) may be enforced by a writ of execution and, because the Court of Appeal determined that the order awarding attorneys’ fees to Defendant pursuant to the anti-SLAPP statute was not an appealable order, Defendant cannot enforce that order by way of a writ of execution. Yet, Plaintiff does not cite any case which directly holds as much and the Court does not find this argument to be persuasive. Plaintiff’s citation to Hyundai Motor America v. Superior Court (2015) 235 Cal.App.4th 418, 425 for the proposition that the Enforcement of Judgments law does not automatically convert every statutory minute order into an enforceable judgment” is inapposite. The issue in Hyundai Motor America was whether the orders at issue bore postjudgment interest as final judgments. Id. at 424-26. Because accrual of postjudgment interest is not at issue here, the Court does not find Hyundai Motor America to support the relief Plaintiff seeks by way of the instant motion.

Be that as it may, the court will not issue its final ruling on the motion to recall and/or quash the writ of execution until it has decided what to do on the stay issue, discussed infra.

However, due to the fact that some causes of action remain pending in the third amended complaint, CCP § 918.5 provides grounds for the Court to exercise its discretion to stay enforcement of the anti-SLAPP attorney’s fees order pending the determination of Plaintiff’s remaining claims in the third amended complaint, i.e, “the judgment debtor (Plaintiff herein) has another action pending on a disputed claim against the judgment creditor (Defendant herein):

(a) The trial court may, in its discretion, stay the enforcement of a judgment or order if the judgment debtor has another action pending on a disputed claim against the judgment creditor.

(b) In exercising its discretion under this section, the court shall consider all of the following:

(1) The likelihood of the judgment debtor prevailing in the other action.

(2) The amount of the judgment of the judgment creditor as compared to the amount of the probable recovery of the judgment debtor in the action on the disputed claim.

(3) The financial ability of the judgment creditor to satisfy the judgment if a judgment is rendered against the judgment creditor in the action on the disputed claim.

CCP § 918.5.

A court has the power to stay execution of a judgment where the judgment debtor has another action pending on a disputed claim against the judgment creditor. ( Erlich v. Superior Court (1965) 63 Cal.2d 551 [47 Cal.Rptr. 473, 407 P.2d 649].) The rationale for this rule is based on equitable principles for to hold otherwise unfairly deprives the judgment debtor of not only his right of set-off, but with an impecunious creditor, the right to receive any recovery whatsoever. (Id., at p. 555.) In exercising its discretion, the court must consider the likelihood of the judgment debtor prevailing in the other action and the financial ability of the judgment creditor to satisfy a judgment on the disputed claim if such should be rendered.

Airfloor Co. of California, Inc. v. Regents of University of California (1979) 97 Cal.App.3d 739, 741 (bold emphasis added).

The Court hereby stays enforcement of the November 14, 2017 order awarding $279,197.80 in attorney’s fees and $2,440.60 in costs in favor of Defendant David Schnitt and against Plaintiff Robert C. Baral pending a determination under CCP § 918.5 whether such enforcement shall be stayed until final judgment is entered in this action.

The parties are to brief the factors under CCP § 918.5(b)(1) – (3). For purposes of CCP § 918.5(b), reference to “the other action” means reference to Plaintiff Baral’s remaining claims against Defendant Schnitt in the operative third amended complaint.

The motion to stay enforcement of the November 14, 2017 order awarding $279,197.80 in attorney’s fees and $2,440.60 in costs in favor of Defendant David Schnitt and against Plaintiff Robert C. Baral is GRANTED. The temporary stay shall remain in effect pending this Court’s determination under CCP § 918.5 whether such enforcement shall be stayed until final judgment is entered in this action.

A further hearing re: stay of enforcement of the attorney’s fee award pursuant to CCP § 918.5 is set for April 19, 2018. Plaintiff’s further brief, including supporting evidence, is due April 4, 2018. Defendant’s further brief, including supporting evidence, is due April 11, 2018. Plaintiff’s further reply, with no additional evidence permitted, is due 16, 2018.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 19, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court