The National Grange of the Order of Patrons of Husbandry v. California State Grange

Filing 284

ORDER re 278 Ex Parte Application to Stay and 282 Court's Order filed 4/17/2019, signed by Senior Judge William B. Shubb on 5/7/2019: The court vacates the hearing set for 5/20/2019 and decides the request without oral argument. See Loc al Rule 230(c). IT IS THEREFORE ORDERED that the stay previously entered on the sale of defendant's name "California Guild" be, and the same hereby is, lifted UNLESS defendant posts a cash supersedeas bond in the amount of $102,7 07.78, in the form of a cashier's check made payable to the Clerk of the United States District Court, by 5:00 p.m. on 5/15/2019. If defendant posts the specified bond, a stay shall last until all appeals in this case are fully resolved. If d efendant fails to provide the specified bond, the sale of defendants name may take place. IT IS FURTHER ORDERED that defendant's Request for Sanctions and Attorneys' Fees be, and the same hereby is, DENIED. [See document for further details.] (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE NATIONAL GRANGE OF THE
ORDER OF PATRONS OF
HUSBANDRY,
Plaintiff,

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No. 2:14-cv-676 WBS DB

ORDER

v.
CALIFORNIA GUILD, formerly
doing business as “California
Stage Grange,”
Defendant.

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On April 17, 2018, this court reopened post-judgment

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proceedings, vacated judgment in the amount of $93,707.78, and

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ordered defendant to pay plaintiff an additional $9,000 in

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sanctions.

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court’s post-judgment order was still pending, plaintiff obtained

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a writ of execution as to the money judgment.

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In connection with execution of judgment, plaintiff filed a

(Docket No. 235.)

While defendant’s appeal of this

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(Docket No. 274.)

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notice of sale of defendant’s personal property in the form of

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its name “California Guild.”

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scheduled to take place on April 18, 2019.

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defendant filed an Ex Parte Application to Stay the Sale of the

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Name (Docket No. 278) and plaintiff then filed an opposition to

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the application (Docket No. 281).

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temporarily staying the sale to allow time for the issues to be

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fully briefed and argued.

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hearing on the stay request and ordered the parties to file

(Docket No. 279.)

The sale was

On April 15, 2019,

The court issued an order

(Docket No. 282.)

The court set a

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supplemental briefs by May 6, 2019.

(Id.)

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supplemental brief by the deadline.

(Docket No. 283.)

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did not.

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20, 2019 and decides the request without oral argument.

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Local Rule 230(c).

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Plaintiff filed a
Defendant

Accordingly, the court vacates the hearing set for May
See

Federal Rule of Civil Procedure 69(a) governs execution

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proceedings in federal court.

Hilao v. Estate of Marcos, 95 F.3d

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848, 851 (9th Cir. 1996).

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execution “must accord with the procedure of the state where the

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court is located.”

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“[e]xcept as otherwise provided by law, all property of the

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judgment debtor is subject to enforcement of a money judgment.”

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Cal. Civ. Proc. Code § 695.010.

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levied a writ of execution pursuant to California Civil Procedure

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Code § 700.170 on defendant’s trade name as a general intangible.

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A notice of sale was served eighteen days prior to the scheduled

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date, on April 1, 2019.

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application, defendant argues that California law does not permit

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the sale of an opponent’s name during pending litigation because

It provides that the procedure on

Fed. R. Civ. P. 69(a).

In California,

On February 8, 2019, plaintiff

(Docket No. 279.)

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In its ex parte

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(1) defendant’s trade name is not a “general intangible” and (2)

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the name is excluded from execution because it is the subject of

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pending litigation.

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For the purposes of enforcement of judgments,

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“‘[g]eneral intangibles’ means ‘general intangibles,’ as defined

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in paragraph (42) of subdivision (a) of Section 9102 of the

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Commercial Code, consisting of rights to payment.”

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Proc. Code § 680.210.

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trade name does not “consist[] of rights to payment” is well-

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taken, the trade name still qualifies as defendant’s personal

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property.

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California law, trade names, like California Guild, are

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intangible property subject to a writ of execution.

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Depot Inc. v. Zuccarini, 596 F.3d 696, 702 (9th Cir. 2010)

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(citations omitted) (holding that “domain names are intangible

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property subject to a writ of execution”)1; see also Cal. Civ.

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Proc. Code § 699.710 (“[A]ll property that is subject to

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enforcement of a money judgment . . . is subject to levy under a

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writ of execution to satisfy a money judgment.”).

Cal. Civ.

Even if defendant’s argument that its

Under relevant Ninth Circuit precedent interpreting

Cf. Office

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Given the strong presumption that all property is

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subject to the enforcement of a money judgment, defendant’s

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Defendant argument that Zuccarini is distinguishable is
unavailing. Like a domain name, defendant’s trade name is a
property right because it is a well-defined interest that
provides defendant with a legitimate claim to exclusivity as no
other entity may claim that same name. See Kremen v. Cohen, 337
F.3d 1024, 1029 (9th Cir. 2003) (explaining that these factors
are relevant to the determination of whether a property right
exists); see also Cal. Bus. & Prof. Code § 14415 (identifying a
presumption that a corporation has the exclusive right to use its
trade name).
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argument that it does not fall into the specific category of

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“general intangibles” does not mean that plaintiff could not

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otherwise dispose of the trade name.

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695.010; see also Office Depot, Inc. v. Zuccarini, 621 F. Supp.

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2d 773, 775 n.2 (N.D. Cal. 2007) (upholding the levy under a writ

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of execution on defendant’s domain names even though the names

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did not clearly fall into a category of property).

See Cal. Civ. Proc. Code §

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Next, defendant relies on two subsections of California

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Civil Procedure Code § 699.720(a), which exclude certain types of

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property from execution, for its argument that plaintiff cannot

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sell its trade name.

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name is “[a] cause of action that is the subject of a pending

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action or special proceeding.”

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defendant maintains that the trade name is “[a] judgment in favor

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of the judgment debtor prior to the expiration of the time for

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appeal from the judgment or, if an appeal is filed, prior to the

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final determination of the appeal.”

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Defendant’s trade name falls into neither one of these categories

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of property.

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given ongoing litigation, the name “California Guild” does not

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appear to be directly implicated in either lawsuit.

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fact that defendant may have to change its name mid-appeal is not

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a reason for why the name is “a cause of action” or “judgment”

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for the purposes of the relevant subsections.

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authority supporting defendant’s interpretation, the court cannot

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find that these provisions of California law affirmatively

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prohibit plaintiff from subjecting defendant’s trade name to

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auction.

First, defendant contends that the trade

Id. § 699.720(a)(3).

Second,

Id. § 699.720(a)(4).

While defendant may have changed its trade name

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The mere

Absent some

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Defendant also urges this court to exercise its

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discretion and stay the sale of its name.

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the judgment plaintiff seeks to collect is subject to a pending

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appeal.

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California Guild’s due process rights” and its ability to

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litigate issues in other pending actions, including the ownership

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of a corporation registered in its name.

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McFarland ¶ 5 (Docket No. 278-2).)

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Defendant argues that

Defendant contends that any sale would “impact the

(See Decl. of Robert

Defendant is free to apply for relief from this court

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under Federal Rule of Civil Procedure 62.

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judgment is entered, a party may obtain a stay by providing a

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bond or other security.”

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rule, defendant could receive the stay “as a matter of right by

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posting a supersedeas bond acceptable to the court.”

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Combined Metals Reduction Co., 557 F.2d 179, 193 (9th Cir. 1977).

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This court has “inherent discretionary authority in setting

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supersedeas bonds.”

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1503, 1505 n.1 (9th Cir. 1987).

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bond is to secure the appellees from any loss resulting from the

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stay in execution of judgment.

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v. Ohio Reinsurance Corp., 935 F.2d 1019, 1027 (9th Cir. 1991).

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“At any time after

See Fed. R. Civ. P. 62(b).

Under this

Matter of

Rachel v. Banana Republic, Inc., 831 F.2d
The purpose of the supersedeas

See Pac. Reinsurance Mgmt. Corp.

While this court may exercise its discretion and “waive

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the bond requirement if it sees fit,” Townsend v. Holman

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Consulting Corporation, 881 F.2d 788, 796-97 (9th Cir. 1989),

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vacated on reh’g on other grounds, 929 F.2d 1358 (9th Cir. 1990)

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(en banc), defendant bears the burden for why it should not have

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to post a full security bond, see Poplar Grove Planting &

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Refining Company v. Bache Halsey Stuart, Inc., 600 F.2d 1189,
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1191 (5th Cir. 1979).

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court with any reason why it cannot post a supersedeas bond, the

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court will not waive the bond requirement.

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has not suggested an amount for the bond nor has it been

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suggested to the court how much defendant’s trade name is worth.

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Therefore, the court must exercise its discretion to determine

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the appropriate amount for a bond.

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discretion sets the amount of the bond at the amount of the

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judgment that plaintiff seeks to enforce.

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Because defendant has not provided this

amount is $102,707.78.

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Defendant likewise

Accordingly, the court in its

In this case, that

(Docket No. 274.)

IT IS THEREFORE ORDERED that the stay previously

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entered on the sale of defendant’s name “California Guild” be,

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and the same hereby is, lifted UNLESS defendant posts a cash

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supersedeas bond in the amount of $102,707.78, in the form of a

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cashier’s check made payable to the Clerk of United States

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District Court, by 5 p.m. May 15, 2019.

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specified bond, a stay shall last until all appeals in this case

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are fully resolved.

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bond, the sale of defendant’s name may take place.

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If defendant posts the

If defendant fails to provide the specified

IT IS FURTHER ORDERED that defendant’s Request for

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Sanctions and Attorneys’ Fees be, and the same hereby is, DENIED.

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Dated:

May 7, 2019

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