Los Angeles Local Joint Executive Board of Culinary Workers & Bartenders v. Stan's Drive-Ins, Inc.

VALLÉE, J. This is a companion case to In the Matter of Arbitration between Los Angeles Local Joint Executive Board of Culinary Workers and Bartenders, A. F. of L., and Stan’s Drive-Ins, Inc., ante, p. 89 [288 P.2d 286]. Arbitration was had with respect to wages of union employees of Stan’s Drive-Ins, called Stan’s, and with respect to a health and welfare fund created for such employees. An award was made. On petition to confirm, the court modified and corrected the award and confirmed it as modified and corrected. The modification and correction consisted in part in incorporating in the award a document labeled “Schedule A” which states the amount to be paid each day to various classes of employees employed by Stan’s and the amount to be paid by Stan’s into a health and welfare fund. Judgment was entered on the order.

[97]After the court had made its order confirming the award as modified and corrected and judgment had been entered, and after Stan’s had filed its notice of appeal therefrom, on motion of respondent the court on May 27, 1954, made an order that Stan’s cause to be executed and filed with the court a written undertaking by two or more sureties in the sum of 1-25,000 conditioned for the performance of the “Judgment Order” confirming the award as modified and corrected “if such Judgment Order is affirmed or said appeal dismissed, said bond to be for the protection of all parties entitled to payments under and by virtue of said arbitration award and Judgment Order confirming the same as modified and corrected.” Stan’s appeals from that order.

The contention is that the trial court had no power, authority, or jurisdiction to order an appellant who is not seeking a stay of execution or a stay of proceedings in the trial court, to file an undertaking pursuant to the provisions of section 949 of the Code of Civil Procedure.

Section 949 of the Code of Civil Procedure provides:

“In cases not provided for in sections 942, 943, 944 and 945, the perfecting of an appeal stays proceedings in the court below upon the judgment or order appealed from; but the court in its discretion may require an undertaking in an amount to be fixed by it conditioned for the performance of the judgment or order appealed from if the same is affirmed or the appeal is dismissed; ...” This is a ease not provided for in sections 942-945. It is argued that prior to the trial court exercising its discretion under section 949 a stay of execution or proceedings must be sought by the appellant, and that the right to obtain a stay of execution and the resulting necessity for an undertaking are optional with the appellant.