BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2154 (Jones)
As Amended April 2, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Appeals in civil actions: stay of enforcement
DESCRIPTION
Existing law provides that the perfecting of an appeal generally
stays enforcement of the judgment or order of the trial court,
with specified exceptions, including circumstances in which an
undertaking is required in order to stay the enforcement of a
judgment or order on appeal.
This bill would provide that the perfecting of an appeal shall
not stay enforcement of the judgment or order of the trial court
awarding attorney's fees or costs, or both, if the judgment or
order appealed from was rendered in a proceeding under the
Family Code, unless an undertaking is given in a sum and upon
conditions fixed by the trial court.
BACKGROUND
Under California law, the right to appeal in a civil case exists
only upon a judgment, except there may be an appeal from an
interlocutory judgment that is made final and conclusive. (See
Code Civ. Proc. Sec. 904.1.) Further, as a general rule,
appeals may only be taken from such judgments or orders as are
made appealable by statute. Conversely, the existence of an
appealable judgment operates as a court's jurisdictional
prerequisite to hearing an appeal. (Code Civ. Proc. Sec. 904.1;
see also 4 Cal. Jur. Appellate Review Sec. 24.)
When an appeal is successfully taken by one party, enforcement
of the portion of the underlying judgment or order from which
(more)
AB 2154 (Jones)
Page 2 of ?
that appeal was taken is generally "stayed" (suspended) pending
the appeal. The stay thus operates to protect the appellate
court's jurisdiction by preserving the status quo at the time
the appeal is taken until the appeal is decided. It also
operates to prevent any future change in the parties' situation
by preserving their rights as they were prior to the entry of
judgment and to prevent the appellant from being prejudiced by
enforcement of the judgment.
Notably, a stay of proceedings on a judgment is incident to the
appeal in which it is sought and, therefore, there can be no
stay where the appeal is void-i.e. where the order from which
the appeal is taken is not appealable; the appeal is prematurely
taken; the appeal is fatally defective; or the appeal is not
timely filed. When an appeal has been perfected (i.e. the
appeal does not have any of the aforementioned deficiencies),
the nature of the judgment determines the appropriate method of
obtaining a stay of execution-for example, certain judgments may
be stayed on the giving of an undertaking (i.e. bond), whereas
other judgments are subject to stay just by the perfection of
the appeal alone. (4 Cal. Jur. Appellate Review Secs. 395-397,
400.) In this regard, California's Code of Civil Procedure
provides that, subject to specified exceptions (some of which
require that an undertaking be given), the perfecting of an
appeal stays the proceedings in the trial court, including
enforcement of the judgment or order. (See also Code Civ. Proc.
Sec. 916 et seq.)
This bill would provide that the perfecting of an appeal shall
not stay enforcement of the judgment or order of the trial court
awarding attorney's fees or costs, or both, if the judgment or
order appealed from was rendered in a proceeding under the
Family Code, unless an undertaking is given in a sum and upon
conditions fixed by the trial court.
CHANGES TO EXISTING LAW
Existing law provides that, with specified exceptions, the
perfecting of an appeal stays proceedings in the trial court
upon the judgment or order appealed from or upon the matters
embraced therein or affected thereby, including enforcement of
the judgment or order, but the trial court may proceed upon any
other matter embraced in the action and not affected by the
judgment or order. (Code Civ. Proc. Sec. 916(a).)
Existing law provides that the perfecting of an appeal generally
does not stay enforcement of the following judgments or orders
AB 2154 (Jones)
Page 3 of ?
on appeal:
a judgment for money or directing payment of money, unless an
undertaking is given, as specified;
a judgment or order relating to hazardous waste;
a judgment directing the assignment or delivery of personal
property, unless an undertaking is given, as specified;
a judgment directing the execution of one or more instruments;
a judgment directing sale, conveyance, or delivery of real
property, unless an undertaking is given, as specified;
a judgment appointing a receiver;
a judgment directing performance of two or more acts, as
specified;
a right to attach order, unless an undertaking is given;
a judgment affecting custody of a minor; or
a writ against a party guilty of usurping or unlawfully
holding public office. (Code Civ. Proc. Secs. 917.1-917.8.)
Existing law requires the court to first determine that the
party has or is reasonably likely to have the ability to pay
before it orders a party to pay attorney's fees or costs under
the Family Code. (Fam. Code Sec. 270.)
Existing law requires the court, in a proceeding for dissolution
of marriage, nullity of marriage, or legal separation of the
parties, and in any proceeding subsequent to entry of a related
judgment, to ensure that each party has access to legal
representation, including access early in the proceedings, to
preserve each party's rights by ordering, if necessary based on
the income and needs assessments, one party, except a
governmental entity, to pay to the other party, or to the other
party's attorney, whatever amount is reasonably necessary for
attorney's fees and for the cost of maintaining or defending the
proceeding during the pendency of the proceeding. (Fam. Code
Sec. 2030(a)(1).)
Existing law , when a request for attorney's fees and costs is
made, requires that the court make findings on whether an award
of attorney's fees and costs is appropriate, whether there is a
disparity in access to funds to retain counsel, and whether one
party is able to pay for legal representation of both parties.
If the findings demonstrate disparity in access and ability to
pay, the court shall make an order awarding attorney's fees and
costs. Existing law allows a party who lacks the financial
ability to hire an attorney to request that the court order the
other party, if that other party has the financial ability, to
pay a reasonable amount to allow the unrepresented party to
AB 2154 (Jones)
Page 4 of ?
retain an attorney in a timely manner before proceedings in the
matter go forward. Existing law provides that attorney's fees
and costs within this section may be awarded for legal services
rendered or costs incurred before or after the commencement of
the proceeding. (Fam. Code Sec. 2030(a)(2)-(b).)
Existing law requires that the court augment or modify the
original award as may be reasonably necessary for the
prosecution or defense of the proceeding, or any proceeding
related thereto, including after any appeal has been concluded.
(Fam. Code Sec. 2030(c).)
Existing law contains similar attorney's fee provisions other
family law proceedings, including child custody proceedings;
proceedings relating to the enforcement of child support,
spousal support, or penalties for child support delinquency; and
proceedings to establish physical or legal custody of a child or
a visitation order under the Uniform Parentage Act. (Fam. Code
Secs. 3121, 3557, 7605.)
This bill would provide that the perfecting of an appeal shall
not stay enforcement of the judgment or order of the trial court
awarding attorney's fees or costs, or both, if the judgment or
order appealed from was rendered in a proceeding under the
Family Code, unless an undertaking is given in a sum and upon
conditions fixed by the trial court.
COMMENT
1. Stated need for the bill
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 rationale for doing so 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
AB 2154 (Jones)
Page 5 of ?
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.
In support of the bill, the Executive Committee of the Family
Law Section of the State Bar (FLEXCOM) writes:
In Family Law matters the trial court is permitted to issue
orders for different types of fees for different reasons at
various times during the life of the litigation. Some awards
are "need-based" and are made at the outset of the action;
some awards are made at the trial of the action and are based
on the relative ability of the parties to pay fees; some
awards are made in the midst of the action and are
sanction-based. Because the various types of awards are made
at various times, and all types are available throughout the
litigation, trial courts often combine the awards into one
undifferentiated amount, which complicates the bonding issues
on appeal.
Many (if not most) times, the trial court does not make a
specific finding as to which part of an award is need-based
(e.g, Family Code section 2030) and which part is
sanction-based (e.g., Family Code section 271.) The bill
would clarify the law and provide the trial court the
discretion to determine the nature and amount of bond
necessary to secure the parties' judgment pending appeal.
2. Attorney's fees awards in family law cases are
distinguishable from other case types
As noted in the Background, usually, the perfection of an appeal
(i.e. where the person has done all the things necessary to
appeal a case) stays enforcement of the judgment or order of the
trial court pending the outcome of that appeal. This rule,
however, is subject to specified exceptions wherein the appeal
would not stay enforcement, or wherein the appeal would not stay
enforcement unless an undertaking is given. These exceptions
include, for example: where a judgment for money or directing
payment of money, unless an undertaking (i.e. bond) is given, as
specified; a judgment directing the execution of one or more
instruments; a judgment directing the assignment or delivery of
personal property, unless an undertaking is given, as specified;
AB 2154 (Jones)
Page 6 of ?
a judgment directing performance of two or more acts, as
specified; and a judgment affecting custody of a minor. (See
Code Civ. Proc. Secs. 917.1-917.8.)
This bill seeks to prevent the stay of enforcement of a judgment
or order of the trial court awarding attorney's fees or costs,
or both, in Family Code-related proceedings, unless an
undertaking is given in a sum and upon conditions fixed by the
trial court. As a practical matter, preventing a stay of these
awards in family law proceedings would mean that when the court
has awarded attorney's fees to a party in a family law case, the
appeal of the award does not suspend the obligation to
immediately pay those fees. Should the award of the attorney's
fees be reversed on appeal, the obligation would no longer exist
and the needy party would bear his or her own costs.
Under existing law, California's Family Code requires courts, in
specified proceedings (including any dissolution proceedings,
child or spousal support enforcement proceedings, and child
custody proceeding) where one party has requested that the other
party pay attorney's fees, to make findings on whether an award
of attorney's fees is appropriate, whether there is a disparity
in access to retain counsel, and whether one party is able to
pay for legal representation for both parties. If the findings
so demonstrate, California law requires the court to award
attorney's fees and costs. (See Fam. Code Secs. 2030, 3121,
3557, 7605.) Existing law also requires courts to augment or
modify the original award as may be reasonably necessary for the
prosecution or defense of the proceeding, or any proceeding
related thereto, including after any appeal has been concluded.
Such provisions have particular importance in family law cases
where, for example, at least one party is unrepresented in more
than 70 percent of child custody and dissolution cases. Indeed,
the Elkins Task Force (a task force appointed in May 2008 for
the purpose of conducting a comprehensive review of family law
proceedings in order to make recommendations that would increase
access to justice for family law litigants; ensure fairness and
due process; and provide for more effective and consistent
family law rules, policies, and procedures) had found that the
average family law attorney in California charges more than $300
per hour and requires a retainer of approximately $5,000. As a
result of such high costs and the recent recession, few
litigants have the resources to hire and maintain legal
representation for the duration of their family law matter.
AB 2154 (Jones)
Page 7 of ?
This Committee has previously recognized that cases in which one
party is represented and the other is not tend to be the most
problematic cases in terms of fair access to justice. Prior to
the enactment of AB 939 (Committee on Judiciary, Ch. 352, Stats.
2010), which required the courts to make specific determinations
when a request for needs-based attorney's fees is made, many
courts were reluctant to rule on attorneys fees until much later
in the case, potentially denying one party effective
representation for most of the proceedings. (See Sen. Judiciary
Com., analysis of AB 939 (2009-2010 Reg. Session), pp. 8-9.)
Arguably, to allow an order for attorney's fees to be
automatically stayed pending an appeal would undermine the
intent of existing statutes providing for attorney's fees in
family law cases on a needs-basis. To this end, the sponsor of
this bill, the Conference of California Bar Associations (CCBA),
writes:
The intent of these needs-based fee award sections is to level
the playing field by equalizing the parties' ability to obtain
legal representation and pay expenses of litigation. That
purpose would be defeated if these need-based cost and
attorney fee awards were automatically stayed by appeal. The
party ordered to pay costs and fees could stay the award by
simply filing a notice of appeal and impede, if not cripple,
the needy party's ability to obtain legal representation and
pay litigation expenses.
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.
Staff notes that the ability to take an undertaking, however,
may curb the benefits of this proposal as the money would not
reach the needy party until (and if) the needy party succeeds on
appeal. This, however, would be consistent with existing law.
Even where a party takes an undertaking so as to stay the award
AB 2154 (Jones)
Page 8 of ?
pending appeal, the sponsor argues that attorneys would be
encouraged to defend the needy party in the appeal because there
is a very good probability of the attorney's fees being
recovered as district court of appeals reverse decisions only in
roughly one in five cases (or approximately 20 percent of
cases). Moreover, CCBA argues that the requirement of an
undertaking to stay the award pending appeal can actually work
to curb the enthusiasm to appeal.
As a matter of public policy, given that attorney's fees are
limited to needs-based fee situations in family law, and given
that existing law requires the courts to first determine that
the party has or is reasonably likely to have the ability to pay
before it orders a party to pay attorney's fees or costs under
the Family Code, it would appear appropriate to ensure that such
fees are not stayed during an appeal in these matters. Such a
stay would defeat the underlying statutory intent to ensure that
each party has access to legal representation, including access
early in the proceedings and access throughout appeals in family
law cases.
Support : Executive Committee of the Family Law Section of the
State Bar (FLEXCOM)
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation : AB 939 (Committee on Judiciary, Ch. 352,
Stats. 2010) See Comment 2.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************
AB 2154 (Jones)
Page 9 of ?