Attorney Sanctions for Violating Appellate Stay (But the Stay Was Probably Void)

Timothy Kowal, Esq.
February 23, 2022

This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over $27,000. The court stayed the sanctions order pending appeal. Undaunted, the respondent’s attorney, Ester Adut, applied for a writ of execution anyway. The trial court imposed $1,050 in sanctions under Code of Civil Procedure section 177.5, and the sanctions were affirmed on appeal.

So the appellate stay was vindicated. That is the good news.

(But don’t get too excited: the stay was explicitly ordered by the trial court. The general rule — that an appeal stays enforcement of the order pending appeal — is meant to operate automatically. The biggest problem with an automatic rule is that automatic rules are not self-enforcing. You have to run to the trial court to get an order saying, yes, the automatic stay is in place. It would be helpful if a court would vindicate the automatic stay by holding violation of the automatic stay is sanctionable.)

What is dismaying about Stupp is the court ignored the rule that requires a bond to effect a stay of a money judgment on appeal. Code of Civil Procedure section 918 states that a trial court may not stay an order pending appeal if the bond statutes require that the order be bonded to effect the stay. In other words, in the case of money judgments, the most the trial court can do is issue a temporary stay. The temporary stay can only extend until 10 days after the deadline to file a notice of appeal.

Here, the sanctions order was a money judgment. (Banks v. Manos (1991) 232 Cal.App.3d 123, 129 [holding a sanctions award issued under § 128.5 is akin to a money judgment which must be bonded to impose a stay on appeal].) The sanctions order was entered April 23, 2019. Assuming the 180-day deadline to appeal applied here, the maximum stay the trial court could impose here would extend until October 31, 2019. Adut did not seek the writ of execution until nearly three months later, at the end of January 2020.

By operation of law, then, the stay order had expired. And where it concerns the requirement to bond a preliminary injunction, the court’s failure to impose that requirement makes the order void. ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10, held that an “undertaking is an indispensable prerequisite to the issuance of a preliminary injunction, regardless of whether the party to be restrained has reminded the court to require the applicant to post one, the restrained party does not waive its right to that statutorily mandated protection by failing to affirmatively request it.”

But the appellant did not raise that argument in her brief. And the court did not address it, either.

The Upshot: Pay close attention to the appellate bond and stay rules. They are complicated. And you cannot rely on the courts to understand them for you.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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