Opinion
NOT TO BE PUBLISHED
PROCEEDINGS in mandate after superior court required replacement bond executed by admitted surety. Eddie C. Sturgeon, Judge. San Diego County No. 37-2009-00063539-CU- OR-EC
McINTYRE, J.
FACTUAL AND PROCEDURAL BACKGROUND
Michael LaPorte filed a complaint for cancellation of instruments and declaratory and injunctive relief against Pacific Shores Development, Inc. (Pacific) and others, and obtained a temporary restraining order against the trustee's sale. The court later granted LaPorte a preliminary injunction against the sale conditioned on his posting a $250,000 undertaking. LaPorte submitted an undertaking in the amount of $250,000 executed by three personal sureties—his wife Cheryl and sons Greg and Brian—accompanied by, among other things, a declaration from Cheryl stating that she is worth $625,000 based on her separate property interests in the Julian Veterinary Hospital and Town & Country Veterinary Hospital and that there were no liens against the hospitals.
Pacific filed a motion to declare the undertaking inadequate, excepting to the fair market value of the businesses, the nonexistence of liens, and Cheryl's ownership of the businesses. After hearing, the court issued a minute order stating "the 'veterinary' businesses are not acceptable as undertaking" and a "bond must be posted by admitted surety . . . [by] 03/03/09," and directing Pacific to prepare a formal order. LaPorte did not post the bond.
LaPorte filed this petition faulting the court for granting the motion without specifying in what way the bond was insufficient or estimating the value of the businesses, and for ordering him to replace the bond with one executed by an admitted surety. He also claims that the court abused its discretion in finding the undertaking insufficient arguing, among other things, that he conveyed the businesses to his wife Cheryl two days before posting the personal surety undertaking and there was no substantial evidence contradicting Cheryl's estimation of fair market value.
We stayed the lower court's order and requested a response. Pacific provided a copy of the March 11 order in which the court found the veterinary businesses were worth the $50,000 LaPorte declared on his October 2008 bankruptcy schedules and are subject to tax and other liens of record. Pacific argues the order defeats Pacific's principal complaints, and contends the court properly exercised its discretion in requiring a bond from an admitted surety in light of LaPorte's conduct. We issued Palma notice with respect to the requirement for a bond by an admitted surety. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
DISCUSSION
Code of Civil Procedure section 995.960, subdivision (b)(1), requires the court to allow a party to replace an insufficient bond with one "with sufficient sureties and in a sufficient amount . . . within five days." (All further statutory references are to the Code of Civil Procedure.) Section 995.310 further provides that "[u]nless the statute providing for the bond requires execution by an admitted surety insurer, a bond shall be executed by two or more sufficient personal sureties or by one sufficient admitted surety insurer or by any combination of sufficient personal sureties and admitted surety insurers." (Italics added.) Because section 995.960, subdivision (b)(1), does not require a bond executed by an admitted surety, the bond may be executed by personal sureties, an admitted surety, or combination of both. Pacific's citation to River Trails Ranch Co. v. Crites (1980) 111Cal.App.3d 562, does not alter this result: the case acknowledges the trial court's authority to determine the sufficiency of a proposed surety, but does not give the court the power to usurp the Legislature's prerogative in determining that only a bond by an admitted surety insurer will suffice. (§ 995.310.)
Because the relevant facts are not in dispute, the statutory language is unambiguous, and LaPorte's entitlement to relief is clear, we conclude a peremptory writ in the first instance is proper. (§ 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate the minute order of February 24, 2009, and formal order filed on March 11, 2009, to the extent those orders require execution of a replacement undertaking by an admitted surety and enter an order consistent with this opinion. In all other respects, the petition is denied. LaPorte is entitled to costs in the writ proceeding. The stay issued on March 9, 2009, is vacated. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
WE CONCUR: NARES, Acting P. J., AARON, J.