BILL ANALYSIS Ó
AB 2154
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2154 (Jones) - As Amended: April 2, 2014
PROPOSED CONSENT
SUBJECT : Appeals in Civil Actions: Stay of Enforcement
KEY ISSUE : Should existing law be clarified to ensure that, in
family law matters, orders for payment of attorney's fees and
costs shall not be stayeD upon appeal?
SYNOPSIS
As a general rule, when a party makes a successful appeal from a
decision by a trial court, the enforcement of any judgment or
order issued by the trial court is stayed (or halted) during the
appeal. However, the law also provides a number of statutory
exceptions to this general rule if justice would be better
served by enforcing the judgment or order. Attorney's fees and
costs awarded in family law cases, for example, are not
generally subject to a stay when there is an appeal. The
rationale for treating family law cases differently is that the
withholding of payments pending appeal may adversely impact
children, especially where awards are based upon need. In other
words, in most non-family law cases the judgment or order is
automatically stayed upon appeal, unless a bond (or
"undertaking") is given by the party who benefits from the stay.
Under this bill - and arguably under existing law - it is just
the opposite: in a family law case, an order for attorney's fees
and costs would not be stayed upon appeal unless a bond or
undertaking is given. While this is apparently already the
practice in most family law cases, the author and sponsor
contend that when there is an award that is solely for
attorney's fees and costs in a family law matter, there is some
uncertainty as to whether or not the order should be stayed.
This bill seeks to remove any uncertainty by adding a new
section that expressly states that, in cases arising under the
Family Code, an appeal will not stay the enforcement of a
judgment or order unless the court grants the stay upon the
giving of an adequate bond or undertaking. The bill is
sponsored by the Conference of California Bar Associations.
There is no known opposition to the bill.
AB 2154
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SUMMARY : Provides that an appeal shall not stay the enforcement
of a judgment or order for attorney's fees or costs, or both, if
the underlying judgment or order appealed from was rendered in a
proceeding under the Family Code, unless an undertaking
(security) is given in a sum and upon conditions fixed by the
trial court.
EXISTING LAW :
1)Provides that the perfecting of an appeal shall stay the
proceedings in the trial court, including enforcement of the
judgment or order appealed from, unless another statute
provides otherwise. However, the trial court may proceed upon
any other matter embraced in the action and not affected by
the judgment or order. (Code of Civil Procedure Section 916.)
2)Provides, subject to certain conditions, that the perfecting
of an appeal shall not stay enforcement of a judgment or order
for any of the following:
a) A judgment for money or directing payment of money,
unless an undertaking is given.
b) A judgment that directs the assignment or delivery of
personal property.
c) A judgment directing the execution of one or more
instruments.
d) A judgment directing sale, conveyance, or delivery of
real property.
e) A judgment appointing a receiver.
f) A judgment directing performance of two or more acts, as
specified.
g) A right to attach order, unless an undertaking is given.
h) A judgment affecting custody of a minor.
i) A writ against a party guilty of usurping or unlawfully
holding public office. (Code of Civil Procedure Sections
917.1- 917.8.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : According to the sponsor - the Conference of
California Bar Associations - "there currently exists
uncertainty as to whether an order solely awarding attorney's
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fees in a family law action is automatically stayed [upon
appeal]." This bill is intended to remove that certainty by
adding a new section to the Code of Civil Procedure expressly
stating that the perfecting of an appeal shall not stay
enforcement of a judgment or order arising under the Family Code
unless a bond or some other security is given. The trial court
would fix the sum and any conditions of the security.
As a general rule - outside of the family law context - when a
party makes a successful appeal from a decision by a trial
court, the enforcement of any judgment or order of the trial
court is stayed (or halted) during the appeal. However, the law
also provides several statutory exceptions to this general rule.
Under existing law, for example, the enforcement of a judgment
or order requiring "money or the payment of money" is not stayed
unless an "undertaking" (i.e. a bond) is given to secure the
amount of the contested award. Yet, according to the sponsor,
there is some uncertainty as to whether an order that solely
awards fees and costs in a family law case is stayed or not. As
a policy matter, there seems to be consensus that, in family law
matters, enforcement of a judgment or order should not be
stayed, even if solely for attorney's fees and costs. The
rationale for treating family law cases differently is that the
withholding of payments pending appeal may impact children,
especially where such awards are based upon need.
In other words, in most non-family law cases the judgment or
order for fees and costs, like any other order, is automatically
stayed upon appeal unless there is an undertaking. Under this
bill - and arguably under existing law - it is just the
opposite: enforcement of a judgment or order for attorney's fees
and costs in a family law case will not be stayed unless there
is an undertaking. While this apparently is already the
practice in most family law cases, the author and sponsor hope
to remove any uncertainty by adding a new section that expressly
states that, in cases arising under the Family Code, an appeal
will not stay the enforcement of an order for fees and costs
unless the court grants the stay upon the giving of an adequate
bond or undertaking.
ARGUMENTS IN SUPPORT : According to the author: "Current law is
unclear as to whether the award of attorney's fees on the basis
of need in a family law action is stayed upon the filing of an
appeal until the appeal has been decided. Although fee awards
in most civil cases are stayed in such circumstances, the usual
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rationale for doing so cases should not apply in these
particular family law cases, where the awards are based on need.
Not only does failure to receive these awards hurt the
divorcing spouse, it very likely also hurts the children of the
marriage, for whom the awards may be essential to provide
medical and psychological care or other professional assistance
to deal with the highly charged emotional issues related to
custody. In addition, a divorcing spouse (many of whom have
very limited means), can find her- or himself financially
incapacitated by a stay. In cases where money is tight,
freezing a fee award with an appeal can be used as an offensive
litigation weapon. This is inappropriate when the well-being of
children is at issue, and AB 2154 will help prevent this abuse."
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334