Even Though $368,588 Was Substantial Award, It Was Justified.
One of the things many respondents want during an appeal is a bond or undertaking to “secure” the judgment while the matter is winding its away through the appellate process. That makes sense from several perspectives, but there is a downside as the next case illustrates: if respondent loses, that party may face substantial exposure for appellant’s expenses in paying the bond premium and expenses incurred in securing the bond issued by the surety.
In Barrese v. Murray, Case No. B242276 (2d Dist., Div. 8 Aug. 16, 2013) (unpublished), the trial court granted a party’s motion for new trial, even though the appellant had appealed and secured an appellate surety bond. The new trial decision was appealed, but the appealing party dismissed the appeal. Later, the lower court awarded the new trial winner $256,380 for the appellate bond and $94,044 for a letter of credit insisted on by the surety for purposes of securing the bond.
The appellate costs determinations were affirmed on appeal. Even though the party-appellant at the time could have used different methods to secure the appellate bond (such as depositing cash in lieu of a bond which would have obviated the costs being claimed), such alternatives are not mandatory and do not show the bond was unnecessary--for example, many appellants do not have liquid cash assets in order to post cash as “security.” Beyond that, the lower court clearly credited that the $94,044 was charged for purposes of obtaining a letter of credit to secure the bond. Even though this amount was high, CRC 8.278 allows recovery of such funds and nothing demonstrated the amount claimed was unreasonable.