Conrad v. Superior Court

California Court of Appeal Jun 9, 1988 No. B029452Published

Before: Boren

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Holding. The court held that an order setting aside a default judgment is not stayed pending an appeal of that order unless the party seeking to enforce the vacated judgment posts a bond. The trial court retains jurisdiction to hear a motion for the return of property seized under the vacated judgment.

Issues

Does the filing of a notice of appeal from an order setting aside a default judgment stay the enforcement of that order?
Does the trial court have jurisdiction to hear a motion for the return of property after an appeal of an order setting aside a default judgment has been filed?

Disposition. remanded

Quotations verified verbatim against the opinion

“The judgment remains alive for these limited purposes alone and is not enforceable during the appeal period; the judgment no longer exists ‘so far as the assertion of any rights under it is concerned.’”

“If the bond is not posted, the order setting aside the default judgment is not stayed.”

Opinion

BOREN, J.

Petitioner successfully moved to have a default judgment against him set aside. Real parties appealed that ruling. Petitioner moved the respondent court to have returned to him certain property which was the subject of the judgment. The respondent court denied the motion, stating that it had no jurisdiction over the matter because real parties had filed a notice of appeal. In our opinion filed September 25, 1987, we held that the court had jurisdiction to entertain the motion, and suggested that it would be appropriate for the court to set bond in this case.

The Supreme Court granted real parties’ petition for review and transferred the case to us for reconsideration in light of

Bulmash

Davis

(1979) 24 Cal.3d 691, 697 [157 Cal.Rptr. 66, 597 P.2d 469], and

Estate of Crozier

[1364]

(1884) 65 Cal. 332, 333 [4 P. 109]. We conclude that those cases compel a modification of our opinion but no change in our ruling.

Facts

Benton and Marjorie Allen, both psychologists, owned the Pomona Valley Psychological Center (the Center). They sold the Center to petitioner Dr. Rex Conrad pursuant to an agreement which provided, among other things, that the Allens could continue to treat their patients at the Center.

Matters soon deteriorated to the point where Dr. Conrad accused the Allens of stealing his patients and the Allens accused Dr. Conrad of not paying them fees that were owed and making disparaging remarks about them, informing their patients that they were “no longer in practice and their whereabouts were unknown.” Dr. Conrad sought an injunction to prevent the Allens from attempting to lure patients from the Center, and the Allens responded with a cross-complaint seeking rescission of the agreement and damages based upon breach of contract, conspiracy to interfere with business, slander, fraud, conversion and breach of trust. The Allens also sought an injunction and an accounting.

Conrad v. Superior Court

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BOREN, J.

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