Judge: Cynthia A Freeland, Case: 37-2023-00005945-CU-CR-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Civil Rights Motion Hearing (Civil) 37-2023-00005945-CU-CR-NC FRYE VS. FORE THE LADIES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Order to Stay Proceedings, 02/26/2024

Defendant Maker Wine Company ('Defendant')'s motion for an order staying this case pending appeal is granted.

On February 8, 2023, Plaintiffs Steve Frye and Alex Maystrenko (collectively, 'Plaintiffs') commenced this action by filing a Complaint for violations of California Civil Code ('CC') §§ 51 and 51.5. See Bellow Decl., Ex. A; ROA No. 1. On September 18, 2023, Defendants Fore The Ladies, Inc. and Abby Liebenthal (collectively, 'FTL') filed a special motion to strike the Complaint under California Code of Civil Procedure ('CCP') § 425.16 (the 'anti-SLAPP Motion'). See ROA No. 33. On November 17, 2023, the court denied the anti-SLAPP Motion, finding that FTL failed to meet its initial burden of demonstrating that the challenged causes of action arise from protected speech (the 'Order'). See ROA No. 121. On December 21, 2023, FTL filed a notice of appeal of the Order. See Bellow Decl., Ex. B; ROA No. 131. Defendant now seeks an order staying this action pending the outcome of FTL's appeal of the Order. Defendants Dog Leg Brewing LLC and Christina Lumsden (collectively, the 'Joining Parties') have filed a joinder to the motion. See ROA No. 215.

CCP § 916(a) provides that: 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.

Cal. Code Civ. P. § 916(a). CCP § 916(a)'s purpose 'is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.' Elsea v. Saberi (1992) 4 Cal. App. 4th 625, 629. To accomplish this purpose, the California Supreme Court has stated: [S]ection 916, subdivision (a) stays all further trial proceedings 'upon the matters embraced' in or 'affected' by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. '[W]hether a matter is 'embraced' in or 'affected' by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the 'effectiveness' of the appeal.' (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, Calendar No.: Event ID:  TENTATIVE RULINGS

3098524 CASE NUMBER: CASE TITLE:  FRYE VS. FORE THE LADIES LLC [IMAGED]  37-2023-00005945-CU-CR-NC 381, 205 Cal.Rptr. 800 (Horowitz).) 'If so, the proceedings are stayed; if not, the proceedings are permitted.' (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938, 20 Cal.Rptr.2d 841 (Betz).) Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 189.

California courts also possess 'both the inherent authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it.' People v. Engram (2010) 50 Cal. 4th 1131, 1146. The court's inherent authority includes 'the power . . . to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.' Briggs v. Brown (2017) 3 Cal. 5th 808, 852 (quoting Landis v. North American Co., 299 U.S. 248, 254-255 (1936)). '[A] stay gives effect to the general rule that a court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.' St.

Paul Fire and Marine Insurance Company v. AmerisourceBergen Corporation (2022) 80 Cal. App. 5th 1, 6-7 (quoting People v. Bell (1984) 159 Cal. App. 3d 323, 329). However, 'convenience of the courts is best served when motions to stay proceedings are discouraged.' Avant! Corp. v. Sup. Ct. (2000) 79 Cal. App. 4th 876, 888. Indeed, courts are 'guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery is unacceptable and should be eliminated.' Alpha Media Resort Investment Cases (2019) 39 Cal. App. 5th 1121, 1132.

The court respectfully must disagree with Defendant that a stay of proceedings is warranted under CCP § 916(a). More specifically, Defendant has not demonstrated that allowing the case to proceed against Defendant and/or the Joining Parties will thwart the effectiveness of FTL's appeal or otherwise touch upon matters embraced by the appeal. The Complaint alleges that all '[d]efendants, and each of them, created, organized, advertised, marketed, promoted, employed, hosted, held, incited, and/or aided in women-only golf events at the golf course commonly known as Goat Hill Park in Oceanside, California[.]' See Complaint, ¶ 21. Toward that end, each Defendant allegedly advertised the women-only golf events online and through social media. Ibid., ¶¶ 22-23. Notably, the Complaint further alleges that Defendant 'sponsored the women-only golf event that took place on June 13, 2021, and on information and belief it provided free alcohol to the women only at the event, and thereby discriminated, aided, and/or incited the discriminatory event.' Ibid., ¶ 31. Consequently, Plaintiffs are correct that it is possible to adjudicate Defendant's potential independent liability for engaging in, aiding, and/or inciting discrimination, all of which is separate and apart from FTL's alleged liability stemming from purportedly protected speech which is the subject of the pending appeal.

However, the court agrees with Defendant that the case should be stayed under the court's inherent authority. Under CCP § 425.16(g), all discovery proceedings are stayed until notice of entry of the order ruling on the motion. See Cal. Code Civ. P. § 425.16(g). Similarly, 'section 916 stays all further proceedings on the merits during the pendency of an appeal from the denial of an anti-SLAPP motion.' Varian Medical Systems, Inc., 35 Cal. 4th at 967. In this case, the case law is clear that this entire action has been stayed as to FTL by virtue of the pending appeal. Consequently, Defendant is correct that FTL is under no obligation to respond to discovery or otherwise participate in this case until its appeal is resolved. The court further agrees with Defendant that FTL's participation in discovery in this action is crucial to Defendant's defense given that: (1) FTL allegedly was the party that created and organized the women-only golf event, and (2) FTL, through Ms. Liebenthal, engaged in the liability-creating conversation with Mr. Frye. Plaintiffs argue in their opposition that FTL has already provided discovery responses and thus its further participation in discovery is unnecessary to Defendant's case. The court respectfully disagrees. The discovery responses attached as Exhibit A to Ms. Bellow's Reply Declaration show that FTL and Ms. Liebenthal did not substantively respond to many, if any, discovery requests.

Their responses consist largely of objections – one of which being that discovery presently is stayed under CCP § 425.16.

In light of the foregoing, the court grants Defendant's motion to stay this action pending the outcome of FTL's appeal. The court notes that the stay is only as to Defendant and the Joining Parties as they are the only parties to have requested such relief in this matter.

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3098524 CASE NUMBER: CASE TITLE:  FRYE VS. FORE THE LADIES LLC [IMAGED]  37-2023-00005945-CU-CR-NC This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 29, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 29, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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