Stevens v. Superior Court

Opinion

FILES, P. J.

This proceeding has been brought in this court to compel the superior court to stay the enforcement of a money judgment upon the giving of adequate security by the judgment debtor. The parties will be referred to hereinafter as they appeared in the superior court.

Plaintiff’s assignor obtained a money judgment against defendant in Oklahoma in 1969. Defendant (petitioner here) appealed from that judgment, and that appeal is still pending and undecided in the Supreme Court of Oklahoma.

Following entry of judgment in the trial court in Oklahoma, plaintiff, as assignee (real party in interest here), brought an action in the Superior Court of Los Angeles County on the Oklahoma judgment. A judgment in favor of plaintiff resulted, which was affirmed on appeal by division three of this court on January 26, 1972.

(Little

v.

Stevens

(1972) 23 Cal.App.3d 112 [99 Cal.Rptr. 885].) While the California appeal was pending, defendant filed an undertaking of a corporate surety to stay enforcement of the judgment pursuant to Code of Civil Procedure, section 917.1. Following affirmance of the California judgment, plaintiff demanded payment. Defendant moved the superior court for a further stay of execution pending a decision by the Supreme Court of Oklahoma on the underlying judgment, which motion was denied by the superior court in an order of May 4, 1972.

[3]

Defendant has given, and is willing to keep in effect, adequate security for payment of the judgment when and if the underlying Oklahoma judgment becomes final in that state. Everything in the law appears to indicate that, as a matter of policy, a judgment debtor may stay execution by giving adequate security pending appellate review. The problem, is to find the procedure whereby that policy may be made effective for this party.

An Oklahoma statute, similar to California Code of Civil Procedure, section 917.1, provides that enforcement of a money judgment is stayed pending appeal when an undertaking by an authorized coiporate surety is given for the whole amount of the judgment including interest and costs. (12 Okla. Stat. 1971, § 968.) Since defendant did not have assets subject to levy in Oklahoma, he did not file an undertaking there.