This case was last updated from Los Angeles County Superior Courts on 05/06/2019 at 13:15:54 (UTC).

ANNETTE C BARAJAS VS ANGEL MARIE TRIOLA ET AL

Case Summary

On 06/06/2016 ANNETTE C BARAJAS filed a Property - Other Real Property lawsuit against ANGEL MARIE TRIOLA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2774

  • Filing Date:

    06/06/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

BARJAS ANNETTE C.

Defendants and Respondents

BANK OF AMERICA N.A.

TRIOLA ANGEL MARIE

WELLS FARGO BANK N.A.

DOES 1 - 50

THIRD CAREER INVESTMENTS LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ARMO LANCE E.

ARMO LANCE EDWARD

Defendant Attorneys

PARSONS ROBERT BRUCE ESQ.

MALCOLM WILLIAM GUY ESQ.

 

Court Documents

Minute Order

3/12/2018: Minute Order

Minute Order

4/16/2018: Minute Order

NOTICE OF UNAVILABILITY OF COUNSEL

5/2/2018: NOTICE OF UNAVILABILITY OF COUNSEL

MEMO OF COSTS

6/14/2018: MEMO OF COSTS

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

7/3/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL

9/24/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL

Proof of Service by Mail

10/1/2018: Proof of Service by Mail

RESPONSE TO DECLARATION IN SUPPORT OF OPPOSITION TO MOTION SEEKING TO FIX AND AWARD ATTORNEYS FEES

10/2/2018: RESPONSE TO DECLARATION IN SUPPORT OF OPPOSITION TO MOTION SEEKING TO FIX AND AWARD ATTORNEYS FEES

Declaration

3/18/2019: Declaration

Memorandum of Points & Authorities

5/2/2019: Memorandum of Points & Authorities

Declaration

5/2/2019: Declaration

VERIFIED COMPLAINT FOR: 1. PARTITION (REAL AND PROPERTY); ETC

6/6/2016: VERIFIED COMPLAINT FOR: 1. PARTITION (REAL AND PROPERTY); ETC

AMENDMENT TO COMPLAINT

9/2/2016: AMENDMENT TO COMPLAINT

ANSWER BY THIRD CAREER INVESTMENTS, LLC TO VERIFIED COMPLAINT FOR PARTITION AND DECLARATORY RELIEF

10/4/2016: ANSWER BY THIRD CAREER INVESTMENTS, LLC TO VERIFIED COMPLAINT FOR PARTITION AND DECLARATORY RELIEF

CASE MANAGEMENT ORDER

10/4/2016: CASE MANAGEMENT ORDER

BANK OF AMERICA, N.A.'S VERIFIED ANSWER TO VERIFIED COMPLAINT

11/17/2016: BANK OF AMERICA, N.A.'S VERIFIED ANSWER TO VERIFIED COMPLAINT

Minute Order

3/17/2017: Minute Order

NOTICE OF CONTINUED TRIAL FINAL STATUS CONFERENCE AND FURTHER DATES

5/26/2017: NOTICE OF CONTINUED TRIAL FINAL STATUS CONFERENCE AND FURTHER DATES

102 More Documents Available

 

Docket Entries

  • 05/02/2019
  • Declaration (OF ATTORNEY LANCE E. ARMO IN SUPPORT OF MOTION FOR ATTORNEY FEES); Filed by Annette C. Barjas (Plaintiff)

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  • 05/02/2019
  • Memorandum of Points & Authorities; Filed by Annette C. Barjas (Plaintiff)

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  • 05/02/2019
  • Motion for Attorney Fees; Filed by Annette C. Barjas (Plaintiff)

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  • 04/24/2019
  • Declaration ( of Attorney Lance E. Armo Re Nominate Referee for Sale of Property); Filed by Annette C. Barjas (Plaintiff)

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  • 04/22/2019
  • at 08:30 AM in Department 78; Order to Show Cause Re: (Judgment) - Held

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  • 04/22/2019
  • Judgment (- Court Finding - After Court Trial - 04/22/2019 entered for Plaintiff Annette C. Barjas against Defendants, Marie Triola and Third Career Investments, LLC.); Filed by Clerk

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  • 04/22/2019
  • Notice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk

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  • 04/22/2019
  • Minute Order ( (Order to Show Cause Re: Judgment)); Filed by Clerk

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  • 04/22/2019
  • Notice of Entry of Judgment / Dismissal / Other Order; Filed by Clerk

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  • 04/22/2019
  • Judgment; Filed by Clerk

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185 More Docket Entries
  • 07/05/2016
  • Answer; Filed by Angel Marie Triola (Defendant)

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  • 07/05/2016
  • ANSWER BY ANGEL TRIOLA TO VERIFIED COMPLAINT FOR PARTITION AND DECLARATORY RELIEF

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  • 06/08/2016
  • Proof-Service/Summons

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  • 06/08/2016
  • PROOF OF SERVICE SUMMONS

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  • 06/06/2016
  • SUMMONS

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  • 06/06/2016
  • NOTICE OF PENDENCY OF ACTION (LIS PENDENS)

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  • 06/06/2016
  • VERIFIED COMPLAINT FOR: 1. PARTITION (REAL AND PROPERTY); ETC

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  • 06/06/2016
  • Complaint; Filed by Annette C. Barjas (Plaintiff)

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  • 01/06/2016
  • Case Management Statement; Filed by Defendant/Respondent

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  • 09/21/2013
  • Proof-Service/Summons

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Tentative Rulings

Case Number: BC622774    Hearing Date: January 02, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

ANNETTE C. BARAJAS:

Plaintiff,

vs.

ANGEL MARIE TRIOLA, et al.;

Defendants.

Case No.:

BC622774

Hearing Date: 

January 2, 2020

PLAINTIFF ANNETTE C. BARAJAS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

Plaintiff Annette C. Barajas’ Motion for Attorney’s Fees is DENIED without prejudice.

FACTUAL ALLEGATIONS

This is an action for partition. The Complaint alleges as follows. Plaintiff Annette C. Barajas (“Barajas”) and Defendant Angel Marie Triola (“Triola”) each own one-half interests in certain real property in Torrance.  (Compl. ¶¶ 1, 14.)  Barajas repeatedly asked Triola to sell the real property but he refused.  (Compl. ¶ 1.)

PROCEDURAL HERTORY

Barajas filed the Complaint on June 6, 2016 alleging two causes of action:

  1. Partition (Real and Property)

  1. Declaratory Relief

On May 10, 2017 Barajas and Triola entered into a settlement agreement regarding two of the three real properties at issue and several vehicles. (4/16/18 Ex Parte App., Exh. A.)

On April 16, 2018, the Court granted Triola’s Ex Parte Application for an Order Enforcing Settlement, or in the Alternative, Specially Setting Hearing on Order Enforcing Settlement, and issued an order for Barajas to provide documents to allow Triola to refinance certain real property, and ordered Barajas to deliver “the hard top to the 1977 Corvette automobile” referenced in the settlement agreement. The Court also found Triola to be the prevailing party on the proceeding and ruled that she is entitled to seek attorneys’ fees by separate motion. Barajas made no appearance at the April 16, 2018 hearing.

On November 20, 2018, the Court entered a Final Statement of Decision.

On April 22, 2019, the Court entered Judgment in this case, finding that the remaining property is owned 50% by Barajas and 50% by Defendants Triola and her wholly owned company, Third Career Investments, LLC. The Court found that the sale of property and division of the proceeds would be more equitable than division of the property. The Court ordered the sale of the property using a prescribed procedure. 

Barajas filed the present Motion for Attorneys’ Fees on May 2, 2019.

On June 6, 2019, Defendants filed a Notice of Appeal. 

Triola filed an Opposition on August 7, 2019.

Barajas filed a Reply on August 12, 2019.

On August 23, 2019, the Court continued the hearing to the present date to allow Triola an opportunity respond to Barajas’ more recently supplied monthly invoices for attorney services.

Triola filed a Supplemental Opposition on October 8, 2019.

On October 23, 2019, the Court continued the instant Motion for counsel to submit a supplemental declaration.

On November 7, 2019, Defendants filed a Motion for Order Fixing Amount of Appeal Bond. The Court held that the entire judgment, entered April 22, 2019, and any proceedings related thereto, shall be stayed pending appeal upon the giving of a bond in the amount of $10,000 from an admitted surety insurer.

On November 18, 2019, Plaintiff’s attorney filed a supplemental declaration in support of the Motion for Attorneys’ Fees. 

DISCUSSION

  1. MOTION FOR ATTORNEYS’ FEES AND COSTS

Parties to litigation must generally bear their own attorney’s fees, unless they otherwise agree. (Code Civ. Proc. § 1021.) However, Code of Civil Procedure § 874.040 provides that the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable. The costs of partition include “[r]easonable attorney's fees incurred or paid by a party for the common benefit. (Code Civ. Proc. §874.010, subd. (a).)¿

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.”¿ (Melnyk¿v. Robledo¿(1976) 64 Cal.App.3d 618, 623.)¿ In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.¿ (See¿id.)¿¿¿

In determining the proper amount of fees to award, courts use the lodestar method.¿ The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.¿ “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”¿ (Serrano v. Priest¿(1977) 20 Cal.3d 25, 48 (Serrano¿III).)¿ A reasonable hourly rate must reflect the skill and experience of the attorney.¿ (Id.¿at p. 49.)¿ “Prevailing parties¿are compensated for hours reasonably spent on fee-related issues.¿ A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”¿ (Serrano v. Unruh¿(1982) 32 Cal.3d 621, 635 (Serrano IV).)¿ The¿Court in¿Serrano IV¿also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable.¿ (See¿id. at p. 624.)¿

Barajas originally asked for $94,500.00 in attorney's fees. (Motion at p. 4.) Triola filed an original Opposition on August 7, 2019. The Court continued the hearing because Barajas provided in the Reply attorney monthly invoice statements, which Triola had not been given the opportunity to review and address before the Court.

Triola’s Supplemental Opposition, filed on October 8, 2019 reiterated several  arguments previously addressed by the Court in its August 23, 2019 order. 

As in her original Opposition, Triola objected that the requested attorneys’ fees are improper because after a partial settlement in May 2017, the remaining issues concerned the parties’ respective interests in a remaining property, and as such was an action for quiet title, not partition under Code of Civil Procedure § 874.040.  (Supplemental Opposition at p. 3.) However, the Court addressed this argument in its Statement of Decision, as well as in its previous Order, by noting that statute specifically empowers the Court to determine the interests of the parties in partition actions, not just actions for quiet title. (See 11/20/2018 Statement of Decision at pp. 4-5; Code Civ. Proc. § 872.610 [“The interests of the parties, plaintiff as well as defendant, may be put in issue, tried and determined in the action.”].)

Triola further reiterates her argument in the original Opposition, contending that there can be no award of attorneys’ fees while an appeal is pending because there is no “prevailing party.” (Supplemental Opposition at pp. 3--4.) However, as the Court noted in the previous Order, courts regularly award fees despite possible or pending appeals. A separate appeal may be filed pursuant to the relevant requirements to contest the award of attorneys’ fees. (See, e.g., Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693.)

In her Supplemental Opposition, Triola also argue that the invoices for dates prior to the May 10, 2017 settlement should be disregarded because the settlement changed the case from a partition case to a quiet title case. (Supplemental Opposition at p. 4.)  However, as the Court addressed above, the case did not become a quiet title action, and the argument is without merit.  (See 11/20/2018 Statement of Decision at pp. 4-5.)

On October 23, 2019, the Court continued the Motion for Barajas’ counsel to submit a supplemental declaration and Triola’s counsel to submit a Reply.

In the Supplemental Declaration, attorney Lance Armo declares that Barajas now asks for $93,397.00 in attorneys’ fees. (Armo Decl. ¶ 7.) Armo declares that the legal fees post-mediation from May 2017 to the present are 290.2 hours totaling $85,609.00 in fees, plus $7,788.00 in fees for pre-settlement work, which Armo calculated as 1/3 of the overall pre-settlement fees for a sum total of $93,397.00. (Armo Decl. ¶ 6.) Included with the Declaration are invoice statements listing services performed and the amount of time expended on those services. 

In Reply, Triola argues that there is a legitimate question as to whether Barajas is the prevailing party. (Reply at p. 3.) However, as to the third property, the Court has previously found that Barajas is the prevailing party and Triola’s own Notice of Appeal provides is “from the Judgment entered April 22, 2029 in favor of Plaintiff Annette C. Barajas, and against Defendants Angel Marie Triola and Third Career Investments, LLC.” (Notice of Appeal 6/6/19.) 

The Court finds the hourly rate requested by Barajas to be reasonable. However, Barajas has failed to correct the Court’s previous issues with the invoices she has provided. The Court does not find the invoices to be sufficiently descriptive of the work performed.  The invoices do not state on which date each activity was performed, only the date that the invoice was issued.  (Armo Decl., Exh. 1.) Further, the invoices do not provide enough detail for the Court to determine whether the hours represent work performed only with regards to the issues that remained after the May 2017 settlement. That settlement resolved all issues in the case relating to several other properties in contention other than1133 West 225th Street.  Attorney work on issues relating to these properties that should not be included in the present calculations. The only attorney work that is compensable at this point is attorney work relating to 1133 West 225th Street. 

Armo proposes to resolve this issue by claiming exactly one third of the attorneys’ fees invoiced for pre-settlement attorney work. (Armo Decl. ¶ 6.) However, this calculous does not necessarily yield a correct result. For example, in Armo’s own provided invoices, the final entry prior to the settlement agreement (which Armo has denoted on the invoices with a hand drawn line) is “Prepare settlement agreement following mediation for 2 properties” in the amount of $885. (Armo Decl. Exh. 1, 5/29/17 Invoice.) This settlement agreement is unrelated to the remaining third project at issue, here, and 1/3 of the $885 attorney’s fees should not be included in the award here

As discussed above, the Barajas’ invoices are thus not sufficiently specific for the Court to make a line-by-line determination of whether each entry includes work done for the third property or not. The inclusion of settlement entry in the invoice leads the Court to determine that entries have been included in Armo’s 1/3 calculation, which should not be included. Barajas must provide an accurate breakdown of the work that was performed for the third property only. A blanket 1/3 calculation over-simplifies the equation and will yield an inappropriate result. 

Accordingly, Barajas’ Motion is DENIED without prejudice.

Defendants to give notice.

DATED:  January 2, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC622774    Hearing Date: December 06, 2019    Dept: 78

Superior Court of the State of California

County of Los Angeles

Department 78

ANNETTE C. BARAJAS:

Plaintiff,

vs.

ANGEL MARIE TRIOLA, et al.;

Defendants.

Case No.:

BC622774

Hearing Date:

December 6, 2019

[TENTATIVE] RULING RE:

DEFENDANTS ANGEL MARIE TRIOLA AND THIRD CAREER INVESTMENTS, LLC’S MOTION FOR ORDER FIXING AMOUNT OF APPEAL BOND

To the Motion of Defendants Angel Marie Triola and Third Career Investments, LLC For an Order Fixing Amount of Appeal Bond, the Court finds that the entire judgment entered April 22, 2019, and any proceedings related thereto, including enforcement thereof, shall be stayed pending appeal upon the giving of a bond or undertaking or bond in the amount of $525,000 from an admitted surety insurer.

FACTUAL ALLEGATIONS

This is an action for partition. The Complaint alleges as follows. Plaintiff Annette C. Barajas (“Barajas”) and Defendant Angel Marie Triola (“Triola”) each own one-half interests in certain real property in Torrance. (Compl. ¶¶ 1, 14.) Barajas repeatedly asked Triola to sell the real property but he refused. (Compl. ¶ 1.)

procedural history

Barajas filed the Complaint on June 6, 2016 alleging two causes of action:

  1. Partition (Real and Property)

  2. Declaratory Relief

On May 10, 2017 Barajas and Triola entered into a settlement agreement regarding two of the three real properties at issue and several vehicles. (4/16/18 Ex Parte App., Exh. A.)

On April 16, 2018, this Court granted Triola’s Ex Parte Application for an Order Enforcing Settlement, or in the Alternative, Specially Setting Hearing on Order Enforcing Settlement, and issued an order for Barajas to provide documents to allow Triola to refinance certain real property, and ordered Barajas to deliver “the hard top to the 1977 Corvette automobile” referenced in the settlement agreement. This Court also found Triola to be the prevailing party on the proceeding and ruled that she is entitled to seek attorneys’ fees by separate motion. Barajas made no appearance at the April 16, 2018 hearing.

On November 20, 2018, the Court entered a Final Statement of Decision.

On April 22, 2019, the Court entered Judgment in this case, finding that the remaining property is owned 50% by Barajas and 50% by Defendants Triola and her wholly owned company, Third Career Investments, LLC. The Court found that the sale of property and division of the proceeds would be more equitable than division of the property. The Court ordered the sale of the property using a prescribed procedure.

On June 6, 2019, Defendants filed a Notice of Appeal.

On July 19, 2019, Defendants filed an Ex Parte Application for Order Fixing Amount of Appeal Bond or, in the Alternative, For Order Specially Setting Hearing on Application, which the Court denied without prejudice. The Court further ordered that there be no further action to sell the property or evict the tenants.

On November 7, 2019, Defendants filed the instant Motion for Order Fixing Amount of Appeal Bond.

Plaintiff did not file an Opposition.

On November 26, 2019, Defendants filed a Reply.

DISCUSSION

  1. MOTION FOR ORDER FIXING AMOUNT OF APPEAL BOND

Here, Defendants seek an order fixing the amount of the appeal bond, on the grounds that “but for C.C.P. § 917.4, all aspects of this action would be stayed pending appeal.” (Motion at p. 6.) Defendants contend that the bond addressed by Code of Civil Procedure section 917.4 only regards the “the issue of waste during the pendency of appeal and no other subject.” (Motion at p. 6.) Defendants argue that waste is not a concern in this action because both parties have equal incentive to maximize and preserve the value of the property during appeal, and taxes and insurance are current on the property. (Motion at pp. 5-6.) Defendants request that the Court “satisfy the concerns of C.C.P. § 917.4 by maintaining the status quo under Mr. Lesser’s watchful eye, subject only to a nominal bond[.]” (Motion at p. 6.)

Generally, the perfecting of an appeal stays the proceedings in the trial court upon the judgment or order appealed from: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, 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., § 916(a).) However:

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 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 fixed by the trial court is given that the appellant or party ordered to sell, convey or deliver 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 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 the taking of the appeal until the delivery of the possession of the property. If the judgment or 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.

(Code Civ. Proc., § 917.4.)

The plain language of section 917.4 suggests that the sum should be fixed to cover any waste or the value of the use and occupancy of the property or payment of any deficiency. (See Code Civ. Proc., § 917.4.) “While it is the function of the trial judge to fix the size of the appeal bond, this discretion must be exercised in a manner compatible with the potential injury which respondents might suffer during the period of appeal.” (Vangel v. Vangel (1953) 116 Cal.App.2d 615, 632.)

Here, Defendants request an appeal bond in an amount no greater than $2,805.00 on the grounds that the amount is equivalent to 3-months’ rent, and that the property has been continuously occupied for two decades such that there is little risk of lack of rental income. (Motion at pp. 9-10.)

Plaintiff’s Opposition was not filed with the Court, although Defendants’ Reply addresses it. Plaintiff appears to request, in Opposition, a bond amount of $625,000. (Reply at p. 2.)

The purpose of the undertaking statutes is to protect the judgment won in the trial court from becoming uncollectible while the judgment is subjected to appellate review, such that a successful litigant will have an assured source of funds to meet the amount of the money judgment, costs and postjudgment interest after postponing enjoyment of a trial court victory. (Grant v. Superior Court (1990) 225 Cal.App.3d 929, 934.)

Defendants have not provided sufficient support for why three months of rent protects both parties’ interest in the property from becoming uncollectible. The value of the property extends beyond the amount of rent that may be collected during the pendency of the appeal, and the waste on the property during such time could extend far beyond lack of rent/occupancy including deterioration and other risks of time.

The amount requested by Plaintiffs is the alleged value of the property, although such value of $625,000 is unsubstantiated. The property was appraised in April 2017 for $525,000, unless the parties can provide a more recent appraisal. (Motion, Exh. F.) A bond in the amount of the property would serve to protect the both parties’ 50% interest in the property for whatever length of time the case is pending on appeal.

Accordingly the entire judgment entered April 22, 2019, and any proceedings related thereto, including enforcement thereof, shall be stayed pending appeal upon the giving of a bond or undertaking or bond in the amount of $525,000 from an admitted surety insurer.

Plaintiff to give notice.

DATED: December 6, 2019

________________________________

Hon. Robert S. Draper

Judge of the Superior Court