ZIELLO v. Superior Court

Opinion

EPSTEIN, J.

In this case we decide whether a judgment debtor, who pays and does not appeal the amount of a judgment for damages, but who does appeal from the trial court’s order after judgment assessing costs and attorney’s fees, is required to file an appeal bond to stay execution on the unpaid amounts. We conclude that an appeal bond is not required in this situation.

[653]

Factual and Procedural Summary

This case arises from an ongoing dispute between a mortgagor and mortgagee over proceeds from an earthquake insurance policy. The policy was obtained by the mortgagor without compulsion of the loan agreement. A more detailed discussion of the underlying facts is provided in our decision,

Ziello

v.

Superior Court

(1995) 36 Cal.App.4th 321 [42 Cal.Rptr.2d 251]. In that case we held that the trial court erred in granting summary judgment to the mortgagee, First Federal Bank of California (Bank), and against the mortgagor, Ms. Ziello.

The litigation continued after our remittitur in that case. It was resolved by a judgment signed on October 23, 1998. By that time, Ms. Ziello had filed for bankruptcy under chapter 7 of the Bankruptcy Act (11 U.S.C. § 701). The court awarded her and her chapter 7 representative the sum of $62,101.13 plus statutory interest. The court left the issue of entitlement to costs to be determined at a later date. Following the usual procedure (see Cal. Rules of Court, rule 870), the amount of costs and fees was left blank and was filled into the judgment document at a later date. Those amounts were $19,590 costs and $140,260 attorney’s fees. Those amounts were determined, in a December 23, 1998, order, after both sides claimed to have “prevailed.”

In the meantime, on October 23, 1998, petitioners (Ms. Ziello and the representative of her estate in bankruptcy) filed a notice of appeal from the judgment entered on that date. Bank did not appeal the judgment as such. Bank filed a notice of appeal on January 14, 1999. This appeal was stated to be only from the order awarding attorney’s fees and costs to petitioners, and denying fees and costs to Bank. Petitioners sought an order from this court dismissing Bank’s appeal as untimely. We initially dismissed the appeal, but then vacated our order and denied the motion to dismiss.