From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009), a published decision denying a petition for writ of supersedeas. Published opinions on this topic rarely come along, so we might as well grab all the gusto we can from it. First, a synopsis of the facts, then a couple of lessons to take away from the case.
The underlying proceeding was filed by the minority shareholders of a corporation to force its dissolution. The parties stipulated to follow the buy-out procedure of Corporations Code section 2000, under which the corporation would purchase the shares of the minority shareholders. Since the parties could not agree on share value (imagine that!), the majority shareholders were required to post a bond pending a final order.
After independent appraisers submitted a unanimous valuation report to the court, the minority shareholders moved to confirm the appraisal. The majority shareholders fought the motion, contending that the business had been overvalued. The trial court adopted the appraisers’ valuation of the company and entered an alternative decree fixing a share price and setting a date by which the purchasing shareholders had to tender cash payment to the minority shareholders for their shares, and which provided that failure to timely tender cash payment would result in the entry of judgment of involuntary dissolution.
Ten days before payment was due (and without making any payment), the corporation filed its notice of appeal, and three days after that they filed their petition for writ of supersedeas in the court of appeal without first seeking a stay in the trial court.
The court denies the petition, with some lessons along the way, which I present in no particular order.
The issue that I think caused the court of appeal to publish the decision is the first one it tackles: whether the alternative order was automatically stayed upon the filing of the appeal from it. The court holds that the order was not automatically stayed because the proceeding wasn’t really an “action” for purposes of the rules governing stays and undertakings on appeal in a civil “action.” (Code Civ. Proc. secs. 22-23.) In fact, the parties agreed that the involuntary dissolution suit was a “special proceeding” under Code of Civil Procedure section 23. Since the stay provisions (Code of Civil Procedure sections 916 et seq.) of Part 2 of the Code apply only in civil actions, the decree was not automatically stayed.
(This is probably a good time to warn prospective appellants in civil actions against taking comfort in the “automatic stay” of Code of Civil Procedure section 916, under which “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.” There’s a huge “but”: the automatic stay of section 916 is subject to so many exceptions that they swallow the rule, and it is the unusual case that is actually stayed automatically.)
Special proceedings are subject to the stay provisions of Part 2 only if the statute creating the special proceeding expressly incorporates them. The majority shareholders directed the court’s attention to Corporations Code section 2000, subdivision (d), under which, to prevent winding up and dissolution, the purchaing parties “shall pay to the moving parties the value of their shares ascertained and decreed within the time specified pursuant to this section, or, in the case of appeal, as fixed on appeal.“ (Emphasis added.) Unfortunately, they did not make clear what they thought the significance of the provision was.
The court rejects two possible assertions based on the cited language. First, holding firm to the rule that statutory incorporation of Part 2 must be express, it rejects the possibility that the cited language was intended to incorporate the stay provisions of Part 2. Second, it rejects the possibility that the cited language itself imposed a stay. Because there is a stay on appeal from special proceedings only when the implementing statute expressly incorporates Part 2, the language cannot be read to implement a stay independent of Part 2.
I think that’s probably it for the new stuff.
One thing really jumped out at me. Did you note my reference to “possible assertions”? The court began its analysis: “It is unclear how subdivision (d) purports to address the narrow question of whether an automatic stay comes into effect upon the perfecting of an appeal. If the argument is that . . . “ If the argument is? The court was confused what the appellant’s argument was even after hearing oral argument!
Reminder of an old rule: self-executing judgments are not automatically stayed (and supersedeas is usually inappropriate, too). Since failure to tender payment for the minority’s shares would result in a judgment of dissolution without further action by the court, it is self-executing, and thus not stayed.
Another reminder of an old rule: apply for a stay in the trial court before petitioning for supersedeas. Moving on to its discretionary power to issue supersedeas, the court cites appellant’s failure to seek a stay from the trial court as grounds for denying the petition, which ought to serve as an important reminder to appellants that the court of appeal takes this prerequisite seriously:
An application for a stay of a judgment should, wherever possible, be made first in the superior court. [Citation.] The reason is self-evident but it bears repeating. “A trial court’s familiarity with the evolving circumstances of a case normally constitutes it the appropriate forum to weigh the relative hardships on the parties, including the likelihood that substantial questions will be raised on appeal, and its refusal to grant or to continue an injunction during appeal is entitled to great weight.” [Citation.]
Appellant said it did not apply for a stay in the trial court because it did not believe it had any remedy available to it there (remember that Code of Civil Procedure section 918 would not apply). However, Since the trial court’s preliminary decree had specifically allowed that the payment date could be postponed “for good cause,” the court of appeal holds that relief was at least theoretically available in the trial court. Thus, the court denies the petition “on the narrow ground that the [petitioners] should have sought relief in the superior court first.”
Make sure you provide an adequate record when you are seeking supersedeas. Petitions for supersedeas are often filed prior to preparation of the record on appeal, so the petitioner is responsible for submitting documents to the court of appeal sufficient to decide the petition. (Cal. Rules of Court, rule 8.112(a)(4)(B)(iv).) Though appellants argued that it would raise a substantial question on appeal regarding the propriety of the appraisal procedure, it did not even submit its own papers opposing the motion to confirm the valuation. Their failure to do so could only emphasize that the superior court, because of its familiarity with the case, was better suited to first entertain a request for a stay.
By the way, the case is very interesting reading on the subject of involuntary dissolution.