Judge: James L. Crandall, Case: 19-1060953, Date: 2022-11-03 Tentative Ruling

1.    Motion to Tax Costs

Both the motion and cost memorandum suffer from various defects.

The motion is arguing generally that the requested costs are excessive without going into enough specifics as to why.

The memorandum of costs, meanwhile, is unsigned and includes no receipts or other justification for the costs requested.

Notice of Stay 10-24-22

On 10-24-22, Defendant filed a Notice of Stay Pending Appeal pursuant to Code of Civil Procedure section 916.

Code of Civil Procedure section 916, subdivision (a) provides that the perfecting of an appeal stays proceedings in the trial court upon the order appealed from or upon the matters embraced by the order appealed from or affected thereby.

It also provides that the trial court may proceed upon any other matter embraced in the action and not affected by the order. (Ibid.)

“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.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190 (Varian).)

“The fact that the . . . postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to ‘enforce, vacate or modify [the] appealed judgment or order.’ [Citation.] Or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal. [Citation.] [¶] A trial court proceeding also affects the effectiveness of an appeal if the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable.” (Varian, supra, 35 Cal.4th at pp. 189-190.) A proceeding also affects the effectiveness of the appeal if the very purpose of the appeal is to avoid the need for that proceeding. (Id. at p. 190.) “[A]n appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal’ even though the proceedings may render the appeal moot. [Citation.]” (Id. at p. 191.)

The court notes that the defendant has not filed an opposition to this motion, presumably based on the assumption that the appeal would stay the hearing on this motion.

The motion may be moot based on the ruling of the court of appeal. The court therefore stays the ruling on any further post-trial motions pending the decision of the court of appeal.

2.    Case Management Conference

Future hearing dates

No future hearing dates