Wells Fargo Bank v. Beard

Opinion

DEVINE, P. J. Appellants seek writ of supersedeas to stay execution of an order terminating and distributing the corpus of a $2 million testamentary trust, pending an appeal from the order. The trial court granted a stay on condition that appellants execute and file an undertaking of $175,000. Appellants contend that they are entitled to an automatic stay without an undertaking and that supersedeas should issue as a corrective measure. (Estate of Dabney, 37 Cal.2d 402, 408 [232 P.2d 481].) The issue before us is whether Code of Civil Procedure section 917.91 authorizes an undertaking as a condition for a stay when the judgment appealed from does not require performance by appellants.

The problem is to determine the intent of the Legislature in its 1968 recodification of statutory provisions for stays pending appeal, in which former sections 942-949a were replaced by present sections 916-923. (Stats. 1968, ch. 385, §§ 1-2, pp. 816-820.) Former section 949, the counterpart of present section 917.9, provided that except as provided in sections 942, 943, 944, and 945,2 none of which is applicable here, “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.” It was held that the language “conditioned for the performance of the judgment” in section 949 meant that the trial court could require an undertaking only in cases where the appellant was adjudged to have money or other property in his possession belonging to the [567]respondent, or was required under the judgment to perform some act for the benefit of the respondent; in all other cases, section 949 provided for an automatic stay without bond. (Jensen v. Hugh Evans & Co., 13 Cal.2d 401, 406 [90 P.2d 72]; see also, Comment, Discretionary Requirement of Bond for Stay of Execution in California, 23 Cal.L.Rev. 602.) Decrees of distribution which require no performance by the appellant were stayed without bond. (Estate of Dabney, 37 Cal.2d 402, 407 [232 P.2d 481], and cases cited therein.)

The 1968 recodification retained the general statutory plan for stays by the trial court. Former sections 942-945 were replaced by present sections 917.1-917.5. Section 949 was replaced by section 917.9, but with a significant change in language. Section 917.9 reads: “The perfecting of an appeal shall not stay enforcement of the judgment or order in cases not provided for in Sections 917.1 through 917.8 if the trial court, in its discretion, requires an undertaking and such undertaking is not given. The undertaking shall be in a sum fixed by the court and shall provide that if the judgment or order appealed from or any part of it is affirmed, or the appeal is withdrawn or dismissed, the appellant will pay all damages which the respondent may sustain, by the taking of such appeal, but not to exceed the amount of the undertaking.”