Judge: Lisa R. Jaskol, Case: 22STCV16701, Date: 2023-10-17 Tentative Ruling

Case Number: 22STCV16701    Hearing Date: October 17, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On May 20, 2022, Plaintiff Ian Nel (“Plaintiff”) filed this action against Defendants Edward Matias (“Matias”) and Does 1-20 for strict liability under Civil Code section 3342. 

On June 16, 2022, Matias filed an answer. 

On August 11, 2022, Plaintiff amended the complaint to include Defendant Danilo Velozo as Doe 1 (“Velozo”). 

On September 30, 2022, the clerk entered default against Velozo. 

On December 29, 2022, Velozo filed an answer. 

On May 3, 2023, Plaintiff amended the complaint to add Joel Manwarren as Doe 2 (“Manwarren”).  On June 9, 2023, Manwarren filed an answer. 

On June 22, 2023, Velozo filed a notice of appeal.  The appeal is currently in default but has not been dismissed. 

On June 26, 2023, Plaintiff filed a first amended complaint. 

On August 10, 2023, the Court stayed the case in its entirety due to Velozo’s appeal. 

On August 17, 2023, Matias and Manwarren filed an answer to the first amended complaint. 

On September 19, 2023, Plaintiff filed a motion to lift the stay, strike Velozo’s answer and set a new trial date, to be heard on October 17, 2023. On October 9, 2023, Plaintiff filed a notice of non-opposition. 

No trial date is currently scheduled. 

PARTY’S REQUESTS 

Plaintiff requests that the Court lift the stay, strike Velozo’s answer, and set a trial date within 90 days of November 17, 2023. 

LEGAL STANDARD 

          Code of Civil Procedure section 916 provides: 

“(a) [With exceptions that do not apply here], 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. 

“(b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from.” 

(Code Civ. Proc., § 916.) 

DISCUSSION 

A.   Request to lift stay 

Plaintiff asks the Court to lift the stay imposed on August 10, 2023 based on Veloso’s June 22, 2023 notice of appeal.  Plaintiff argues the Court should lift the stay because the order that Veloso is appealing is not appealable. 

The Court of Appeal decides questions of appealability, not this Court.  The Court denies the request to lift the stay.  

However, the Court can correct the August 10, 2023 minute order, which erroneously states that the notice of appeal required the Court to stay “the case in its entirety.”  Code of Civil Procedure section 916 provides that 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.”  (See also J. Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (Rutter 2022) Chapter 7: Stays and Supersedeas.)  The Court corrects the August 10, 2023 minute order accordingly. 

B.   Request to strike Veloso’s answer 

On December 29, 2022, the Court accepted Veloso’s answer for filing even though the clerk had previously entered Veloso’s default (on September 30, 2022) and Veloso had not moved to set aside the default. 

The default and answer are matters embraced in or affected by the order Veloso has appealed.  Therefore, the stay pending appeal prevents the Court from considering Plaintiff’s request to strike Veloso’s answer. 

C.   Request to set a new trial date and related dates 

Plaintiff asks the Court to set a new trial date within 90 days of November 17, 2023 (the previous trial date), and to set related dates. 

The Court cannot set a trial date that includes Plaintiff’s claims against Veloso because those claims are subject to the stay. 

The Court denies the request to set a new trial date and related dates. 

CONCLUSION 

The Court DENIES Plaintiff Ian Nel’s motion to lift the stay pending appeal. 

The Court MODIFIES the August 10, 2023 minute order as follows:   

The following language is deleted: The Court hereby stays the case in its entirety.  

The following language is added: Code of Civil Procedure section 916 provides that 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.”  (See also J. Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (Rutter 2022) Chapter 7: Stays and Supersedeas.) 

The Court DENIES the motion to strike Danilo Velozo’s answer without prejudice. 

The Court DENIES Plaintiff Ian Nel’s motion to set a new trial date without prejudice. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.