Chodos v. Insurance Co. of North America

Opinion

RALPH, J.

*

Plaintiff below appeals from an order made July 11, 1980, which granted an ex parte application for stay of a writ of execution and the recall of a writ of execution.

Appellant contends that the court below erred in that it failed to recognize that the surety bond posted by respondent was not legally sufficient because it was issued by a wholly owned subsidiary of the respondent.

We do not agree that the court below erred.

The order is affirmed.

Background

The contested order was made after judgment was entered in the action of

Chodos

v.

Insurance Co. of North America

(1981),

post,

page 86 [178 Cal.Rptr. 831] the subject of a related appeal. After trial by jury

[83]

May 5, 1980, a judgment was entered in favor of plaintiff/appellant herein. Respondent subsequently moved for judgment notwithstanding the verdict and for a new trial, both of which were denied.

Prior to respondent’s filing of the appeal in the related case, appellant levied on respondent’s bank account. Respondent, on July 10, 1980, filed a notice óf appeal in the related case and an undertaking under section 917.1 of the Code of Civil Procedure. Thereafter, on July 11, 1980, respondent, without notice to appellant, moved for the ex partestay of the writ of execution and for an order that the writ of execution be recalled. These requests were granted resulting in the order under attack.

Discussion

Appellant does not base his appeal on the no-notice ex parte procedure utilized below but complains of the insufficiency of the surety bond because it is issued by a wholly owned subsidiary of respondent. Appellant, however, did not follow the prescribed statutory formula for objections to the sufficiency of the surety and the record is devoid of any factual information to review.