Judge: David B. Gelfound, Case: 22CHCV00289, Date: 2024-02-28 Tentative Ruling

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Case Number: 22CHCV00289    Hearing Date: February 28, 2024    Dept: F49

Dept. F49

Date: 2/28/24

Case # 22CHCV00289

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR STAY OF EXECUTION PENDING APPEAL

Motion filed: 8/17/23

MOVING PARTY: Defendants Carles M. Johnson and Sheila S. Johnson (collectively “Defendants”)  

RESPONDING PARTY: None

NOTICE: Proof of Service filed concurrently with the instant motion lacks the name and signature of the declarant. Therefore, the proof of service is defective under Code of Civil Procedure section 1013b. ¿¿ 

RELIEF REQUESTED: An order staying the execution of the order issued on May 30, 2023, which granted Plaintiff’s motion for summary adjudication on possession only.

TENTATIVE RULING: The motion is TAKEN OFF CALENDAR AS MOOT.

BACKGROUND

On April 25, 2022, Plaintiff Dunn Investment Properties, Inc. (“Plaintiff”) filed this action against Defendants Carles M. Johnson; Sheila S. Johnson; and Does 1 to 25, for unlawful detainer at 24773 Avenue Rockefeller, Santa Clarita, CA 91355 (the “Premises”).

On January 26, 2023, Plaintiff filed its Third Amended Complaint (“TAC”), which serves as the operative pleading. Subsequently,

On May 30, 2023, the Court granted Plaintiff’s motion for summary adjudication on possession only. (5/30/23 Minute Order). Subsequently, on June 2, 2023, on June 2, 2023, Plaintiff applied for a Writ of Possession.

On June 30, 2023, Defendants filed their Notice of Appeal.

On August 18, 2023, the Court denied Defendants’ Ex-Parte Application to Stay Pending Appeal. (8/18/23 Minute Order).

On October 5, 2023, the Writ of Possession was fully satisfied for Plaintiff’s possession. (10/5/23 Return on Execution).

On January 17, 2024, the Second Appellate District issued an Appellate Order dismissing Defendants’ appeal filed on June 30, 2022.

 The instant motion was filed on August 17, 2023. No opposing papers or replying papers were filed.

Trial for monetary damages is set for April 29, 2024.

ANALYSIS

Code of Civil Procedure section 1176, subdivision (a) states, in part:

“An appeal taken by the defendant shall not automatically stay proceedings upon the judgment. Petition for stay of the judgment pending appeal shall first be directed to the judge before whom it was rendered. Stay of judgment shall be granted when the court finds that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance....”

Here, Defendants have requested that the Court stay the execution pending Defendants’ appeal of its summary adjudication, dated May 30, 2023, which awarded Plaintiff possession only of the Premises. (Mot. at 2.)

However, the Court of Appeal issued its Appellate Order, dismissing Defendants’ appeal, on January 17, 2024. Consequently, there is no longer any pending appeal, which serves as a fundamental basis for the instant motion. Moreover, Plaintiff’s possession of the Premises was satisfied on October 5, 2023, subsequent to Defendants’ filing of the instant motion. The Court also noted a defect in Defendant’s proof of service of the motion.

Accordingly, the Court deems Defendants’ Motion for Stay of Execution Pending Appeal is TAKEN OFF CALENDAR as MOOT.

CONCLUSION

Defendants’ Motion to Stay Execution Pending Appeal is TAKEN OFF CALENDAR as MOOT.

Moving party to provide notice.