Procedural Posture

In a proceeding in mandate the court was presented with the question of whether Cal. Civ. Proc. Code § 489.220 allowed or forbid the Superior Court of Los Angeles County (California), hearing a defendant's motion to increase the amount of an attachment undertaking, to consider the probability that the plaintiff would not prevail in the action.

Overview

Plaintiff supplier sued defendant marble company for breach of contract, account stated, and open book account for money allegedly owed by defendant for marble and granite supplies defendant ordered and received from plaintiff. Defendant filed an answer to the verified complaint denying that a balance due existed in the amount alleged or that it breached any obligation to plaintiff. Plaintiff obtained a right to attach order directing the marshall to seize from defendant's place of business any and all inventory, equipment, materials, and supplies to the value of plaintiff's claim. Plaintiff gave an initial undertaking as required under Cal. Civ. Proc. Code § 489.220(a) and defendant filed an application to increase the amount of the attachment undertaking, to consider the probability that the plaintiff would not prevail in the action. The court denied plaintiff's application, holding that, under the construction urged by defendant, in situations where the remedy of attachment was most needed to protect a plaintiff from dissipation of the assets of a financially distressed defendant, the remedy would prove too costly to obtain or too costly to be of advantage.

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The court discharged the alternative writ and denied defendant's peremptory writ of mandate for the reason that defendant marble company had no legitimate basis to ask the trial court increase plaintiff supplier's undertaking for the purpose of protecting against wrongful attachment.

Procedural Posture

Petitioner trustee filed a writ of mandate which challenged the denial of her motion by respondent Superior Court of Los Angeles County (California). Petitioner's motion had requested an order directing the issuance of a writ of execution because Cal. Civ. Proc. Code § 917.1 did not provide for a stay of attorney fees pending an appeal.

Overview

In a breach of contract action, petitioner trustee's motion for summary judgment was granted and petitioner filed a motion for attorney fees pursuant to an attorney fees clause in the lease agreement. Petitioner sought to have the attorney fee award enforced and filed a writ of execution which the trial court denied due to plaintiff's appeal of the award pursuant to Cal. Civ. Proc. Code § 916(a). The court granted petitioner's writ and directed that respondent Superior Court of Los Angeles County issue a writ of execution, because the award of attorney fees was not ordinarily associated with litigation, and as such attorney fees were nonroutine costs and were not stayed upon appeal by Cal. Civ. Proc. Code § 917.1. The court found that nonroutine costs like attorney fees and expert witness fees were not subject to the automatic stay provision of § 916(a), because they were not ordinarily part of costs awarded at trial and they usually involved an issue that was directly litigated as opposed to being incidental to the case.

Outcome

The court granted petitioner trustee's writ of mandate and directed respondent Superior Court of Los Angeles County to issue petitioner's writ of execution because attorney fees were nonroutine costs and were not stayed pending appeal.

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