Williams v. Thomas

Opinion

KAUS, P. J.

Appeal from the order granting Thomas’ “Motion to Vacate Notice of Exception to Sureties and Demand for Justification.”

In 1978, the Williams obtained a Nevada money judgment in the sum of $105,487.50 against Thomas. The judgment was entered in California pursuant to the sister state money judgments act (Code Civ. Proc. §§ 1710.10-1710.65.) Thomas’ motion to stay enforcement of the judgment was granted pending the finality of Nevada litigation regarding the underlying judgment, on condition that Thomas file an undertaking in the amount of $140,000. (Code Civ. Proc., § 1710.50.)

On October 5, 1978, after a hearing, the court accepted an amended undertaking filed on behalf of Thomas by individual sureties Pat Benton, William Grant, James Hobley and James Taylor. The court also “approved” the justification of each of the individual sureties; however, on November 16, 1978, the court granted the Williams’ motion to vacate the October 5 order and the stay of the proceedings.

On February 23, 1979, Thomas obtained a peremptory writ of mandate from Division Four of this court ordering the superior court to vacate its November 16 “order vacating stay” and requiring it to make a new order granting a stay of execution pending the final determination of the Nevada lawsuit. The stay was ordered conditioned on Thomas’ providing, within 15 days, a new undertaking which met the approval of the superior court. Division Four’s order further stated: “If [Thomas] desires to use the sureties who executed the undertaking for the stay heretofore granted, those sureties must execute a new confirmation of their undertaking as applicable to the continuation of the stay.”

[84]

On March 9, 1979, individual sureties Benton, Taylor and Grant— but not Hobley—filed declarations of qualification as individual sureties in which they declared their respective personal net worths to be $120,000, $300,000 and $120,000. On that same date, the three sureties filed on Thomas’ behalf an undertaking in the sum of $215,000.

1

The Williams’ filed a “Notice of Exception to Sureties and Demand for Justification” on March 26, 1979. On April 12 Thomas, in turn, filed a “Motion to Vacate Notice of Exception to Sureties and Demand for Justification and for Sanctions” on the ground that exception to sureties must be made “within ten days of the date that undertaking is filed”