1 William M.

Samoska; SBN 112305

SAMOSKA LAW FIRM
2
960 N. Tigertail Rd.
3 Los Angeles, CA 90049
Tel. (310) 998-7366
4 Fax (310) 202-0767
5
Email wsamoska@mindspring.com
Attorney for Defendants
6 Martin Gallo Berraz and
Maria Carmen Rodriguez
7

8 SUPERIOR COURT OF CALIFORNIA

9
COUNTY OF LOS ANAGELES—CENTRAL DISTRICT
10

11
MARIA F. SIME, an individual ) Case No.: BC 581 603
12 )
) EX PARTE APPLICATION FOR ORDER
13 ) STAYING THE COURT’S ORDERS OF
Plaintiff, ) SEPTEMBER 13, 2016 AND DECEMBER
14 v. ) 8, 2016 OR IN THE ALTERNATIVE, FOR
) A HEARING DATE FOR A NOTICED
15 ) MOTION TO STAY THE COURT’S
) ORDERS OF SEPTEMBER 13, 2016 AND
16 MARTIN GALLO BERRAZ, an individual; )
MARIA CARMEN RODRIGUEZ, an DECEMBER 8, 2016 AND AN ORDER
) STAYING THE COURT’S ORDERS OF
17 individual; All Persons Unknown, Claiming ) SEPTEMBER 13, 2016 AND DECEMBER
Any Legal Or Equitable Right, Title, Estate, ) 8, 2016 UNTIL SUCH TIME AS THE
18 ) NOTICED MOTION CAN BE HEARD;
Lien, or Interest in the Property Described in )
the Complaint Adverse to Plaintiff’s Title, or ) MEMORANDUM OF POINTS AND
19
AUTHORITIES; DECLARATION OF
Any Cloud on Plaintiff’s Title Thereto and ) MARIA CARMEN RODRIGUEZ
20 DOES 1 through 10, inclusive, )
) Certificate Re: Notice of Ex Parte
21 ) Application; and [Proposed] Order Filed
) Concurrently Herewith]
22 Defendants )
_____________________________________ )
23
Date: January 9, 2017
24
Time: 8:30 a.m.
Dept: 71
25
Action Filed: May 11, 2015
26
Action Dismissed: January 14, 2016

27

28 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

1
 1 PLEASE TAKE NOTICE that on January 9, 2017, at 8:30 a.m., or as soon thereafter as
2
counsel may be heard, in Department “71” of the Los Angeles Superior Court, located at 111
3
N. Hill St., Los Angeles, California 90012, the Honorable Monica Bachner presiding,
4

5
defendants Martin Gallo Berraz and Maria Carmen Rodriquez will and hereby do apply ex

6 parte for the following orders:

7 Requested Relief
8
(1) For an Order Staying the Court’s Orders of September 13, 2016 and December 8, 2016
9
on an ex parte basis; or in the alternative,
10

11 (2) For a hearing date for a noticed motion to stay the Court’s Orders of September 13, 2016

12 and December 8, 2016 and an Order Staying the Court’s Orders of September 13, 2016
13
and December 8, 2016 until such time as the noticed motion can be heard.
14
Grounds for Relief
15
Notices of Appeal of the two Court Orders that are the subject of this Application were timely
16

17 filed by these moving Defendants. California Code of Civil Procedure §916 mandates that
18 enforcement of the Orders be stayed pending the appeal.
19
Grounds for Ex Parte Relief
20
Relief is requested on an Ex Parte basis because the Court’s December 8, 2016 Order permits the
21

22 Receiver, Hon. Joyce Fahey, ret., to evict Defendants from their residence as of January 8, 2017.

23 Statement of Notice of Ex Parte Application

24
William M. Samoska, counsel for Martin Gallo Berraz and Maria Carmen Rodriguez specially
25
appearing for purpose of this application, provided written notice of this ex parte application to
26
Plaintiff’s counsel and to the Receiver prior to 10:00 a.m. on January 6, 2017. (See Certificate
27

28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

2
 1 Re: Notice of Ex Parte Application, ¶ 2 and Exs. A and B). Neither Plaintiff’s counsel or the
2
Receiver has indicated whether they intend to oppose this Application. (Id., ¶ 3).
3
Rule 3.1202 Compliance
4

5
Counsel for Plaintiff is J. David DiJulio; 330 N Brand Blvd #702, Glendale, CA 91203; Tel.

6 (818) 502-1700;
7 Counsel for Defendants is William M. Samoska; 960 N. Tigertail Rd., Los Angeles, CA 90049;
8
Tel. (310) 998-7366; Email wsamoska@mindspring.com
9
The Receiver (although not a Party) is Hon. Joyce Fahey, ret.; 1875 Century Park East, Suite
10

11 450, Los Angeles, CA 90067; Tel. (310) 284-8224

12

13
Dated: January 7, 2017
14

15 SAMOSKA LAW FIRM

16

17
By: ______________________________
18 William M. Samoska
Attorney for Defendants
19 Martin Gallo Berraz and
Maria Carmen Rodriguez
20

21

22

23

24

25

26

27

28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

3
 1 MEMORANDUM OF POINTS AND AUTHORITIES
2
This action arose from a dispute between the parties regarding an alleged oral contract
3
involving the purchase of and title to a single-family residence located in Reseda (the
4

5
“Property”). Since April 2015, Moving Defendants have resided in the Property as their personal

6 residence and have made regular monthly mortgage payments. (Rodriguez, ¶ ). Prior to the
7 Court’s dismissal of this action on January 14, 2016, the Court made two orders dated
8
respectively, September 13, 2016 (the “September Order”)1 and December 8, 2016 (the
9
“December Order”).2
10

11
1
12 IT IS ORDERED TIIAT the Ex Parte Application of Plaintiff is granted in its entirety
1. Defendants MARTIN GAILO BERRAZ (BERRAZ) and MARIA CARMEN
13 RODRIGUEZ (RODRIGUBZ") have repeatedly breached the January l 4. 2016 written
Settlement Agreement regarding the subject real property located at 18655 Stagg Street, Reseda,
14
California (''PROPERTY'') by (1) failing to tender the PROPERTY keys to the Court appointed
15 realtor Megan Meyer, (2) failing to turn on the utilities as required by 1he Court appointed
realtor Megan Meyer, (3) unilaterally cancelling the listing with the Court appointed realtor
16 Megan Meyer on May 18, 2016, (4) allowing third parties to move into the PROPERTY, (5)
refusing to sign the listing agreement with realtor Larry Weiner after he was chosen by the
17
parties on July 7, 2016 a.net ( 6) giving notice that they wish to rescind the· Settlement
18 Agreement
Accordingly, the Clerk of the Court shall sign any and all documents necessary to sell the
19 subject real property to a third party. Plaintiff SIME may bring an Ex Parte Application for an
20 Order to Appoint the Clerk of the Court as an Elisor to sign said documents.

21 2. Retired Judge Joyce Fahey is appointed as a Receiver to take over and act as the
Receiver for the sale of the subject real property located at 18655 Stagg Street. Reseda,
22
California. Judge Fahey shall take all control from the parties in regards to the sale. Judge
23 Fahey’s bills shall be paid first and foremost after the sale.
2
24 NOTICE OF ENTRY OF RULING ON THE FOLLOWING:
DEFENDANTS MARIA RODRIGUEZ and MARTIN BERRAZ MOTION TO
25
RESCIND SETTLEMENT AGREEMENT; DECLARATIONS OF WILLIAM H. DAILEY,
26 ESQ. CARMEN RODRIGUEZ and MARTIN BERRAZ MEMORANDUM OF POINTS AND
AUTHORITIES
27 DEFENDANTS CARMEN RODRIGUEZ AND MARTIN BERRAZ MOTION FOR
RELIEF FROM ORDER PURUSANT TO THE PROVISIONS OF CODE OF CIVIL
28
PROCEDURE SECTION 473(b);

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

4
 1 The September Order inter alia, appointed Hon. Joyce Fahey to act as a Receiver for the
2
Property. The December Order inter alia, required Moving Defendants to pay certain sums by
3
January 8, 2017 and empowered the Receiver to evict Moving Defendants from the Property if
4

5
they failed to move out by January 8, 2017.

6 Moving Defendants filed Notices of Appeal of the September Order and the December
7 Order on November 10, 2016 and December 20, 2016, respectively. The two Notices of Appeal
8
were timely filed pursuant to California Rules of Court, Rule 8.104, and thus perfected the
9
appeals from the two orders.
10

11

12
PLAINTIFF MARIA F. SIME'S FOURTH EX PARTE APPLICATION FOR ORDER
13 TO ENFORCE SETTLEMENT AND FOR SANCTIONS AGAINST DEFENDANTS AND
THEIR COUNSEL; ICE OF ENTRY OF ORDER;
14

15 For reasons set forth in Plaintiff ' s written support and support presented in oral
argument,
16 1) Defendant's Motion for Relief of Order pursuant to Code of Civil Procedure section
473(b) is denied, 2) Defendant's Motion to Rescind Settlement Agreement is denied.
17
For reasons set forth in supporting documents and at hearing, 1) Plaintiff's fourth ex parte
18 application to enforce the settlement agreement and sanctions is granted (the Court has
previously granted three motions to enforce the settlement agreement), 2) Defendants are ordered
19 to cooperate with the receiver in taking steps to sell the property, 3) the defendants as reflected in
20 the report of the receiver and moving papers to enforce settlement have purposefully stymied
efforts to fix a sale price and place the home on the market for sale, and thus Plaintiff's request
21 for sanctions in the amount of $13,768.00 is granted; Defendants are jointly and severally
ordered to pay Plaintiff's attorney sanctions in the amount of $13,768.00 on or before 01/08/16.
22
The Court adopts the recommendations of the receiver, The Honorable Joyce Karlin
23 Fahey, retired. The report of the receiver is adopted by the Court as its own.
Copy of the Status Report and Recommendations is attached and incorporated as part of
24 this order in full.
Defendants are ordered to vacate the property on or before 01/08/17. Should defendants
25
fail to comply with this order, Receiver shall evict defendants with the assistance of the Sheriff '
26 s Department as requested. In addition, Defendants having failed to comply with the orders of
this Court, the suggestions and work of the receiver and having advised the Court and receiver
27 that they will NOT cooperate with the receiver to sell the house, and thus causing the receiver
wasted hours on 10/19/16, Defendants shall pay the receiver $1 ,600.00 on or before 01/08/16 .
28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

5
 1 California Code of Civil Procedure §916 mandates, subject to certain exceptions stated
2
below, that perfecting an appeal automatically stays enforcement of a judgment or an order from
3
which an appeal is taken. Three of the exceptions noted in §916 are relevant to the September
4

5
and December Orders. §§917.1 and 917.4, and 917.5, address, respectively, orders involving

6 the “payment of money,” orders involving “delivering possession of real property,” and orders
7 appointing a receiver. These three “exception” statutes affirm that a stay must be granted, but
8
condition the stay on the giving of an undertaking by the appellants in a sum fixed by the Court.
9
Accordingly, Moving Defendants request that the Court fix a sum for such undertaking and order
10

11 a stay upon Moving Defendants having given the undertaking. If the Court determines that a

12 noticed motion is required, then Moving defendants request that the Court impose a temporary
13
stay allowing Moving Defendants a reasonable time to bond or otherwise satisfy the undertaking
14
once the Court fixes the amount.
15
A. Code of Civil Procedure §916 Imposes An Automatic Stay to Preserve the Appellate
16

17 Court’s Jurisdiction
18 Code of Civil Procedure §9163 provides that the perfecting of an appeal stays the
19
enforcement of the judgment or order from which an appeal has been taken.
20

21

22
3
23 Code of Civil Procedure Section 916
(a) Except as provided in Sections 917.1to917.9, inclusive, and in Section 116.810, the
24 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
25
judgment or order, but the trial court may proceed upon any other matter embraced in the action
26 and not affected by the judgment or order.
(b) When there is a stay of proceedings other than the enforcement of the judgment, the
27 trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as
well as any other matter embraced in the action and not affected by the judgment or order.
28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

6
 1 Under section 916, “the trial court is divested of ” subject matter
2
jurisdiction over any matter embraced in or affected by the appeal during the
3
pendency of that appeal. (Betz, supra, 16 Cal.App.4th at p. 938.) “The effect of
4

5
the appeal is to remove the subject matter of the order from the jurisdiction of the

6 lower court….” (Stateler, supra, 107 Cal. at p. 539.) [FN 9] Thus, “that court is
7 without power to proceed further as to any matter embraced therein until the
8
appeal is determined.” (Ibid.; see also 2 Witkin, Cal. Procedure (4th ed. 1997)
9
Jurisdiction, § 319, p. 893 [“when the cause is taken over by a reviewing court on
10

11 appeal or other proceeding in review, the trial court is divested of jurisdiction of

12 the subject matter during the period of review, and has no power to vacate or
13
modify the judgment or otherwise to deal with the cause”].) And any
14
“proceedings taken after the notice of appeal was filed are a nullity.” (Davis v.
15
Thayer, supra, 113 Cal.App.3d at p. 912; see also Kinard v. Jordan (1917) 175
16

17 Cal. 13, 16 [finding that the lower court order “must be deemed a nullity”].) This
18 is true even if the subsequent proceedings cure any purported defect in the
19
judgment or order appealed from. (See Sacks v. Superior Court, supra, 31 Cal.2d
20
at p. 541 [” ‘after the appeal was perfected, the lower court lost jurisdiction of the
21

22 cause and could take no step to defeat appellants of the right to prosecute their

23 appeal with effect…. A recognition of any other rule would lead to uncertainty
24
and confusion in litigation, and in effect would enable the lower court to review
25
its own proceedings’ “]; People v. Sonoqui (1934) 1 Cal.2d 364, 367 [reversing a
26
judgment of conviction because the trial occurred before the remittitur issued].)
27

28 Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196, et seq.

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

7
 1 Thus, the general rule is that orders cannot be enforced once an appeal has been
2
perfected. The Legislature did, however, create a number of specific exceptions to the
3
automatic stay afforded by Section 916. Hence, the first sentence of 916(a) states:
4

5
Except as provided in Sections 917.1to917.9, inclusive, and in Section

6 116.810, the perfecting of an appeal stays proceedings in the trial court

7 upon the judgment or order appealed from . . .
8
As stated above, three of the exceptions listed in Section 916 are implicated by the Orders from
9
which appeals were taken.
10

11 1. Code of Civil Procedure Sec. 917.1 Pertains to Orders to “Pay Money”

12 When a stay is sought of enforcement of an order to pay money, Code of Civil Procedure
13
Section 917.14 requires the Court to establish a fixed sum that the appellant has to give as an
14

15

16 4
917.1
(a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement
17
of the judgment or order in the trial court if the judgment or order is for any of the following:
18 (1) Money or the payment of money, whether consisting of a special fund or not, and
whether payable by the appellant or another party to the action.
19 (2) Costs awarded pursuant to Section 998 which otherwise would not have been
20 awarded as costs pursuant to Section 1033.5.
(3) Costs awarded pursuant to Section 1141.21 which otherwise would not have been
21 awarded as costs pursuant to Section 1033.5.
(b) The undertaking shall be on condition that if the judgment or order or any part of it is
22
affirmed or the appeal is withdrawn or dismissed, the party ordered to pay shall pay the amount
23 of the judgment or order, or the part of it as to which the judgment or order is affirmed, as
entered after the receipt of the remittitur, together with any interest which may have accrued
24 pending the appeal and entry of the remittitur, and costs which may be awarded against the
appellant on appeal. This section shall not apply in cases where the money to be paid is in the
25
actual or constructive custody of the court;  and such cases shall be governed, instead, by the
26 provisions of Section 917.2. The undertaking shall be for double the amount of the judgment or
order unless given by an admitted surety insurer in which event it shall be for one and one-half
27 times the amount of the judgment or order. The liability on the undertaking may be enforced if
the party ordered to pay does not make the payment within 30 days after the filing of the
28
remittitur from the reviewing court.

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

8
 1 undertaking in order for the Court to stay enforcement of an order pursuant to Section 916. Only
2
the December Order contains a requirement to pay money. The sums specified in the December
3
Order are:
4

5
1. A payment of $13,768.00 to Plaintiff; and

6 2. A payment of $1,600 to the Receiver.

7 See footnote 2, supra. Accordingly, the component of the undertaking for Section 917.1 should
8
be the total of the amounts to be paid, which is $15,368.
9
2. An Undertaking is Required to Stay Enforcement of Orders Pertaining to the
10

11 Dispossession of Real Property.

12 Where an Order from which an appeal has been taken requires the appellant to deliver
13
possession of real property, Code of Civil Procedure Section 917.45 requires the Court to set a
14

15

16 (c) If a surety on the undertaking pays the judgment, either with or without action, after
17
the judgment is affirmed, the surety is substituted to the rights of the creditor and is entitled to
control, enforce, and satisfy the judgment, in all respects as if the surety had recovered the
18 judgment.
(d) Costs awarded by the trial court under Chapter 6 (commencing with Section 1021) of
19 Title 14 shall be included in the amount of the judgment or order for the purpose of
20 applying paragraph (1) of subdivision (a) and subdivision (b). However, no undertaking shall be
required pursuant to this section solely for costs awarded under Chapter 6 (commencing with
21 Section 1021) of Title 14.
22 5
917.4
23 The perfecting of an appeal shall not stay enforcement of the judgment or order in the
trial court if the judgment or order appealed from directs the sale, conveyance or delivery of
24 possession of real property which is in the possession or control of the appellant or the party
ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum
25
fixed by the trial court is given that the appellant or party ordered to sell, convey or deliver
26 possession of the property will not commit or suffer to be committed any waste thereon and that
if the judgment or order appealed from is affirmed, or the appeal is withdrawn or dismissed, the
27 appellant shall pay the damage suffered by the waste and the value of the use and occupancy
of the property, or the part of it as to which the judgment or order is affirmed, from the time of
28
the taking of the appeal until the delivery of the possession of the property. If the judgment or

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

9
 1 fixed sum as an undertaking in order to stay enforcement of the order appealed from. The fixed
2
sum of Section 917.1 is set by evaluating
3
[T]he [potential] waste and the value of the use and occupancy
4

5
of the property [during the appellate process]. C.C.P. §917.4

6 As to the potential for waste, the Court is urged to consider that pursuant to the Settlement
7 Agreement, the Defendants share equally with Plaintiff in any profit that is earned on the sale of
8
the residence. (Rodriguez Decl., ¶ 3). It is thus not conceivable that Defendants would cause
9
any waste to the Property in which they have an interest. Moreover, Moving Defendants, who
10

11 have lived in the house since April 2015, have never been accused of waste, would not cause

12 waste of the Property. (Rodriguez Decl., ¶ 5). Moving Defendants urge that factor should not
13
be a consideration of the undertaking pursuant to Section 917.4.
14
3. An Undertaking is Required to Stay an Order Appointing a Receiver
15
Code of Civil Procedure Section 917.56 requires the Court to set a fixed amount of
16

17 damages when a stay of enforcement is sought of an order appointing a receiver. This Section
18 guides the Court to set the undertaking at a sum sufficient to cover “all damages which the
19
respondent may sustain by reason of the stay in the enforcement of the judgment.” In this case,
20

21

22

23 order directs the sale of mortgaged real property and the payment of any deficiency, the
undertaking shall also provide for the payment of any deficiency.
24
6
917.5
25
The perfecting of an appeal shall not stay enforcement of the judgment or order in the
26 trial court if the judgment or order appealed from appoints a receiver, unless an undertaking in a
sum fixed by the trial court is given on condition that if the judgment or order is affirmed or the
27 appeal is withdrawn, or dismissed, the appellant will pay all damages which the respondent may
sustain by reason of the stay in the enforcement of the judgment.
28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

10
 1 we need to consider the potential damages incurred as a result of a stay of enforcement of the
2
September Order, pursuant to which the Receiver was appointed.
3
Moving Defendants submit that no damages would result from a delay in enforcement of
4

5
the September Order. Pursuant to the September Order, the Receiver was charged with selling

6 the Property. See footnote 1, supra. Moving Defendants acknowledge that the parties
7 experienced some difficulties between themselves in selling the Property, which appears to be
8
why the Court chose to appoint a Receiver. However, insofar as the Court retains jurisdiction to
9
implement the Settlement Agreement, including the parties’ decision to sell the Property, the
10

11 appointment of a Receiver, while possibly facilitating the process, is not a sine qua non.

12 Moving Defendant Rodriguez has been making all of the regular monthly mortgage
13
payments of $2,432, without any assistance from Plaintiff. (Rodriguez Decl., ¶ 3). Moving
14
Defendants urge that any damages that could theoretically accrue from a delay in selling the
15
Property are: (a) entirely speculative as it is not certain that the Property would be sold any
16

17 sooner with a Receiver, nor is it certain that if there were any delay the Property would decline in
18 value since the market could just as well increase; and (b) the mortgage is being serviced and
19
thus there exists no threat of foreclosure.
20
CONCLUSION
21

22 Based on the foregoing analysis, Moving Defendants urge that an undertaking be

23 calculated on the following basis:

24
Per Section 917.1 (Sec. A(1), supra.) $15,368
25
Per Section 917.4 (Sec. A(2), supra.) -0-
26
Per Section 917.5 (Sec. A(3), supra.) -0-
27

28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

11
 1 Total Undertaking $15,368
2
Dated: January 7, 2017
3
SAMOSKA LAW FIRM
4

6 By: ______________________________
William M. Samoska
7 Attorney for Defendants
8 Martin Gallo Berraz and
Maria Carmen Rodriguez
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

12
 1 DECLARATION OF MARIA CARMEN RODRIGUEZ
2
I, Maria Carmen Rodriguez, declare:
3
1. I am a Defendant in this case and I am familiar with the facts that I am testifying to
4

5
in this declaration. If called upon and sworn I would testify of my personal

6 knowledge to the facts stated herein.

7 2. Since April 2015, I have lived in the house that is the subject of this lawsuit. The
8
house is located in Reseda. (The “Property”).
9
3. I pay the mortgage of $2,432 on the Property each month from and I do not receive
10

11 any contribution towards the mortgage from the Plaintiff.

12 4. Attached to my declaration as Exhibit “A” is a true and correct copy of the

13
settlement agreement that resulted from a mandatory settlement conference in this
14
case. (The “Settlement Agreement”). The Settlement Agreement states that the
15
parties will sell the house and that Plaintiff and Defendants will equally share in
16

17 the profits of the house.

18 5. I have always taken good care of the house since I own it or at least have an
19
ownership interest in it and I will share in the profits when it is sold. I have never
20
been accused of harming the property or not taking care of it.
21

22 I declare under penalty of perjury under the laws of the State of California that the

23 foregoing is true and correct.

24
Executed this 8th day of January 2017 at Reseda, California.
25

26
____________________________
27
Maria Carmen Rodrigue
28

Ex Parte Application for Order Staying Court’s Orders of September 13, 2017 and December 8, 2016

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