Nielsen v. Stumbos

[303]

Opinion

PUGLIA, P. J.

Appellant (plaintiff) seeks a writ of supersedeas barring respondents (defendants) from attempting to execute on that portion of the trial court’s judgment awarding respondents attorney fees, We are called upon to determine whether enforcement of the award of attorney fees, together with other costs, is automatically stayed by the taking of an appeal. Resolution of that question hinges on whether attorney fees recovered pursuant to a contractual provision are an element of costs when, as here, respondent has not recovered money damages. We conclude that in such a case the fees are costs, and that filing of a notice of appeal stays execution without the posting of an undertaking.

Plaintiff brought an action for an accounting against defendants, his former law partners. The partnership agreement provided that in the event of litigation concerning the contract or the rights and liabilities of the parties, the prevailing party “shall be entitled to reasonable attorney’s fees.”

After the court announced its decision in favor of defendants, they submitted a memorandum of costs which included a request for attorney fees in addition to the other generally allowable costs of litigation. Under the terms of the formal judgment signed by the court, plaintiff" took nothing, and defendants were granted their costs and attorney fees in the total amount of $33,270.21.

After entry of judgment, defendants threatened to enforce the award of attorney fees unless plaintiff" posted an undertaking to stay the judgment during the pendency of his appeal. Plaintiff" seeks relief by this petition for writ of supersedeas, arguing that the filing of a notice of appeal stays enforcement of the judgment in its entirety. Supersedeas is the appropriate remedy when it appears that a party is refusing to acknowledge the applicability of statutory provisions “automatically” staying a judgment while an appeal is being pursued. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 219, pp. 225-226.)

Under Code of Civil Procedure section 916, subdivision (a), “Except as provided in [Code of Civil Procedure sections] 917.1 through 917.9 and in [Code of Civil Procedure section] 117 [.7], the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order . . . .” The first exception to this general principle is set forth in Code of Civil Procedure section 917.1, which states that the taking of an appeal shall not stay enforcement of a judgment or order if it is “for money or directs the payment of money . . . .” A