Judge Elaine Lu, Case Number: 23STCV03367, Date: 2023-12-04 Tentative Ruling

On February 15, 2023, Plaintiffs Lucy West and Harold West (jointly “Plaintiffs”) filed the instant action for fraud and elder abuse against Defendants Elite Home Remodeling, Inc. (“Elite”) and Solar Mosaic, LLC (“Mosaic”) (jointly “Defendants”). On March 27, 2023, Elite filed a cross-complaint against Plaintiffs and Deon West for breach of contract.

On May 23, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) against Defendants. The FAC asserts nine causes of action for (1) Fraudulent Misrepresentation, (2) Fraudulent Concealment, (3) Negligence, (4) Violations of the Consumers Legal Remedies Act, (5) Violations of the Rosenthal Fair Debt Collection Practices Act, (6) Violations of the Elder Abuse and Dependent Adult Civil Protection Act, (7) Violations of the Home Solicitation Sales Act, (8) Violation of Business and Professions Code § 7150, et seq., and (9) Violations of the Unfair Competition Law.

On June 21, 2023, Defendant Solar Mosaic LLC filed a motion to compel arbitration.[1]

Approximately three months later -- on September 20, 2023 -- Plaintiffs filed the instant motion for trial preference under Code of Civil Procedure section 36.

On November 3, 2023, the Court denied Defendant Mosaic’s motion to compel arbitration and advanced the instant motion for trial preference to December 4, 2023. (Order 11/3/23.) On November 13, 2023, Defendant Mosaic filed a notice of appeal of the November 3, 2023 Order denying arbitration.

“Under [Code of Civil Procedure] section 916, ‘the trial court is divested of’ subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196–197.) “The purpose of the automatic stay under section 916 is to preserve ‘the status quo until the appeal is decided’ [Citation], by maintaining 'the rights of the parties in the same condition they were before the order was made[.]” [Citation]. Otherwise, the trial court could render the ‘appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’” (Id. at p.198.)

“Here [Defendant Mosaic] appealed the order denying arbitration. That appeal affects the entire case. Thus, further trial court proceedings are stayed under Code of Civil Procedure section 916.” (Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925.) Therefore, the Court cannot set a trial date or entertain any further proceedings until the remittitur issues. Accordingly, as the instant action is stayed in its entirety pending the appeal, the Court cannot issue an order setting the instant action for trial preference under Code of Civil Procedure section 36.

Based on the foregoing, Plaintiffs Lucy West and Harold West’s motion for trial preference is CONTINUED to July 25, 2024 at 8:30 am pending issuance of the remittitur of the appeal.

If a remittitur issues prior to the July 1, 2024 status conference, either party may bring an ex parte application to advance the status conference to an earlier date.

[1] On October 5, 2023, Elite filed a brief stating its position that the Court should grant Mosaic’s motion to compel arbitration as to all of Plaintiffs’ claims, as well as Elite’s related counter-claims and that Elite would participate in such arbitration.

Superior Court of California

County of Los Angeles

Department 26