BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2154|
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THIRD READING
Bill No: AB 2154
Author: Jones (R)
Amended: 4/2/14 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/10/14
AYES: Jackson, Anderson, Lara, Leno, Monning, Vidak
NO VOTE RECORDED: Corbett
ASSEMBLY FLOOR : 77-0, 4/21/14 (Consent) - See last page for
vote
SUBJECT : Appeals in civil actions: stay of enforcement
SOURCE : Conference of California Bar Associations
DIGEST : This bill provides that the perfecting of an appeal
shall not stay enforcement of a judgment or order of the trial
court awarding attorneys 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.
ANALYSIS : Existing law:
1.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
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embraced in the action and not affected by the judgment or
order.
2.Provides that the perfecting of an appeal generally does not
stay enforcement of certain judgments or orders on appeal.
3.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.
4.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.
5.Requires, when a request for attorney's fees and costs is
made, 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. 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 retain an attorney in a timely manner
before proceedings in the matter go forward. 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.
6.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.
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7.Contains similar attorney's fee provisions of 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.
This bill provides 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. As a
general rule, appeals may only be taken from such judgments or
orders as are made appealable by statute. The existence of an
appealable judgment operates as a court's jurisdictional
prerequisite to hearing an appeal.
When an appeal is successfully taken by one party, enforcement
of the portion of the underlying judgment or order from which
that appeal was taken is generally "stayed" (suspended) pending
the appeal. The stay 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.
A stay of proceedings on a judgment is incident to the appeal in
which it is sought, and 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
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execution, for example, certain judgments may be stayed on the
giving of an undertaking (i.e. bond), other judgments are
subject to stay just by the perfection of the appeal alone. 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/11/14)
Conference of California Bar Associations (source)
Executive Committee of the Family Law Section of the State Bar
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 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 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."
ASSEMBLY FLOOR : 77-0, 04/21/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
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Gorell, Gray, Grove, Hagman, Hall, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Mansoor, Medina, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, V. Manuel Pérez,
Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas,
Skinner, Stone, Ting, Wagner, Waldron, Weber, Wieckowski,
Wilk, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Harkey, Melendez, Vacancy
AL:nl 6/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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