Filed 1/10/14 Sharifpour v. Le CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


SINA SHARIFPOUR et al.,

     Plaintiffs and Appellants,                                        G048249

         v.                                                            (Super. Ct. No. 30-2008-00111427)

TAM LE et al.,                                                         OPINION

     Defendants and Respondents.



                   Appeal from an order of the Superior Court of Orange County, Franz E.
Miller, Judge. Reversed.
                   Randall A. Spencer; and Alexander H. Escandari for Plaintiffs and
Appellants.
                   Donna Bader for Defendants and Respondents.
                                          *                  *                  *
               Sina and Shekoufeh Sharifpour obtained a $712,682.89 judgment against
Tam and Kim Le. In this appeal, we determine whether the court erred in staying
enforcement of the judgment pending appeal, without the requirement of an undertaking.
We reverse.
                                               I
                                            FACTS
               The facts of this case are set forth more fully in our opinion in Case No.
G047481, being filed concurrently herewith.
               The court ordered that enforcement of the Sharifpours’ judgment against
the Les be stayed pending trial against other defendants. The Sharifpours then settled
with the remaining defendants. At a November 27, 2012 status conference, the Les
informed the court of their intention to file a motion for stay of enforcement of the
judgment pending appeal. The court extended the existing stay until January 31, 2013.
               The Les then filed a motion for a postjudgment setoff of amounts paid by
three settling defendants and a stay of enforcement of the judgment. The Les argued the
enforcement of the judgment should be stayed until the court ruled on their setoff motion
and the appellate proceedings were concluded.
               The court denied the setoff without prejudice, explaining that it could not
grant the request while the appeal from the judgment was pending. It granted the request
for a stay of enforcement of the judgment and did not require an undertaking. The court
noted in its minute order that the Sharifpours had not filed an opposition to the request for
a stay and that it construed their failure to file an opposition as their consent.
                                               II
                                        DISCUSSION
A. Mootness:
               The Les contend that the appeal from the order granting the stay without an
undertaking is moot, assuming this court is about to issue an opinion on the appeal from

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the judgment.1 The Sharifpours argue that the appeal from the order granting the stay is
not moot, because this court’s opinion in the companion appeal will not be final before
the remittitur issues. They also say that if this court affirms the judgment, the Les could
file a petition for review in the Supreme Court, which could delay the matter for an
unknown period of time. During these delays, they assert, the Les could further dissipate
or otherwise transfer their assets so as to make themselves judgment proof.
              Inasmuch as the opinions in the two appeals are being filed concurrently,
the only issue at this point is the further passage of time given the theoretical possibility
that the Les will file a petition for review in the Supreme Court and that the Supreme
Court will grant review. Because we cannot completely discount these possibilities, we
do not construe the appeal from the order granting the stay to be moot.


B. Merits:
              (1) Background—
              At the hearing on the Les’ motion, the Sharifpours orally opposed the
granting of the request for a stay without the requirement of an undertaking. They argued
that, pursuant to Code of Civil Procedure section 917.1, subdivision (a), the giving of an
undertaking was required in order to stay enforcement of the judgment.
              However, the Les argued that the Sharifpours had no standing to argue the
point, because they had failed to file an opposition to their motion. The Les pointed out
that they had filed their motion on November 27, 2012 and that no opposition had been
filed as of the date of the hearing on January 29, 2013.
              The Sharifpours apologized for the failure to file an opposition. Their
counsel explained that one of their attorneys had left and they were unable to get an
opposition on file because they were short staffed.

1     The Sharifpours filed a writ petition challenging the order granting the stay
without an undertaking, but the request for relief was denied.

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              The court replied: “Although I accept your apology for not having filed the
opposition, the fact is you did not file an opposition and, as noted, there has not been an
undertaking in place. Therefore, the court will grant the further stay of execution pending
the appeal without requiring the posting of a bond.”
              (2) Analysis—
              Code of Civil Procedure section 917.1, subdivision (a)(1) provides:
“Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of
the judgment or order in the trial court if the judgment or order is for any of the
following: (1) Money or the payment of money . . . .” The judgment in the matter before
us is a money judgment, so section 917.1, subdivision (a)(1) requires the giving of an
undertaking to stay enforcement.
              Code of Civil Procedure section 918, subdivision (b) provides: “If the
enforcement of the judgment or order would be stayed on appeal only by the giving of an
undertaking, a trial court shall not have power, without the consent of the adverse party,
to stay the enforcement thereof pursuant to this section for a period which extends for
more than 10 days beyond the last date on which a notice of appeal could be filed.”
(Italics added.) So, the court here did not have the power to stay enforcement of the
money judgment without the consent of the Sharifpours. However, the Sharifpours did
not give their consent. To the contrary, they objected at the hearing to the stay of the
enforcement of the judgment without the giving of an undertaking.
              The questions before us are whether the court abused its discretion in
characterizing the failure to file an opposition as the giving of consent and whether the
court exceeded its powers in staying enforcement of the judgment when the Sharifpours
objected. We answer both questions in the affirmative.
              In their motion for postjudgment setoff and stay of enforcement of
judgment, the Les argued that they would suffer irreparable harm if the Sharifpours were
allowed to execute on the judgment when the amount thereof had not been finally

                                              4
determined, given the $89,999 in setoffs requested. They stated that the court had the
power to order a stay under Code of Civil Procedure section 918.
              The only thing the Les said in their motion with regard to the requirement
of an undertaking was: “In the event a bond or undertaking will be required, Defendants
request a reasonable period of time to investigate the availability of [the] same and
attempt to qualify for [a] bond.” They did not request that the court stay the enforcement
of the judgment without the requirement of an undertaking. Had they requested that the
court order a stay without the requirement of an undertaking, the court might have had
some arguable basis for concluding that the failure to file an opposition was tantamount
to the giving of consent—a matter we do not decide. However, there is not even an
arguable basis for concluding that the failure to file an opposition to a request that was
never made should be construed as consent to that never-made request.
              None of the Les’ authorities convince us otherwise. This is neither a case
where a statute dictates the result for failure to file an opposition (see, e.g., Code Civ.
Proc., §§ 430.80, 437c(b)(3)) nor a case where the opposing party stood in court and
manifested implied consent to a particular course of action (see Stanley v. Superior Court
(2012) 206 Cal.App.4th 265, 269-270). Furthermore, Civil Code section 1581, pertaining
to contract formation, does not support the Les’ position. It states that consent may be
communicated through an act or omission “which necessarily tends to” communicate
consent, or by which the contracting party intends to communicate consent. (Civ. Code,
§ 1581, italics added.) As we have indicated, the failure to file an opposition did not
necessarily communicate consent, where the motion did not request that the statutory
requirement of an undertaking be waived.
              Because we conclude the court abused its discretion in construing the
failure to file an opposition to be a consent to the ordering of a stay without the
requirement of an undertaking, and further conclude that the court exceeded its powers in
so ordering, we do not need to address the Sharifpours’ additional argument that the court

                                               5
could have imposed a lesser sanction, such as a monetary sanction, for the failure to file
an opposition.
              (3) Prejudice to Les—
              The Les argue that, without a stay, they could suffer prejudice because the
Sharifpours could collect the entire amount of the judgment without reference to the
setoffs, which have not yet been determined. But the only question before us is the
correct procedure for obtaining a stay. That procedure requires the Les to give an
undertaking, as we have already stated.
              The amount of the undertaking is clearly specified in Code of Civil
Procedure section 917.1, subdivision (b). The Les have not argued that the amount
should have been reduced because of their pending request for setoffs against the
judgment and they have cited no authority that would permit the setting of an undertaking
in a reduced amount due to the circumstances of this case. Consequently, it is not a
matter we address.
                                            III
                                      DISPOSITION
              The order is reversed. The Sharifpours shall recover their costs on appeal.




                                                  MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.


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