Judge: Mark C. Kim, Case: NC061264, Date: 2022-11-22 Tentative Ruling

Case Number: NC061264    Hearing Date: November 22, 2022    Dept: S27

1.     Trial History

This action was scheduled to go to trial on 10/27/22.  On 10/27/22, Plaintiff’s attorney appeared and sought a continuance of the trial on the basis that Plaintiff was ill.  The Court continued the trial to the next day and ordered Plaintiff to provide medical documentation.  On 10/28/22, Plaintiff’s attorney appeared and stated Plaintiff had filed bankruptcy and therefore sought a stay of the entire action.  The Court stayed the action and set an OSC re: stay for 11/22/22, as well as a status conference re: bankruptcy also for 11/22/22.

2.     11/03/22 Hearing on Motion to be Relieved as Counsel

On 11/03/22, the Court heard Plaintiff’s attorney’s motion to be relieved as counsel.  The Court ruled:

On calendar today is a motion to be relieved as counsel.  The Court is not inclined to hear the motion in light of the stay of the entire action that was imposed on 10/28/22.  The Court is therefore continuing the hearing on the motion to 11/22/22, to be heard with the OSC and status conference.

3.     10/03/22 Order re: Scheduling of Future Events

On 10/03/22, the Court issued the following order re: scheduling of future events:

The Court advises the parties that its preliminary research indicates the filing of a bankruptcy petition by a plaintiff in an action does NOT implicate the automatic stay.  See In re Merrick (9^th Cir. BAP 1994) 175 BR 333, 337, which holds that filing bankruptcy does not preclude a plaintiff from bringing or continuing to pursue an action as a plaintiff.  Unless the parties are able to cite authority to the contrary, the stay will be lifted on 11/22/22.

The Court is concerned that the bankruptcy was an act intended solely to obtain a further trial continuance in this matter when the Court had made clear that trial would go forward.  For that reason, the Court is rescheduling the trial date for 11/22/22, to go forward immediately after the OSC and status conference.  If Plaintiff shows cause why the BK stay should continue to be imposed, the Court will not go forward with the trial.  If, however, the BK stay does not apply to this case, the parties should be appeared to go forward with the trial immediately after the OSC is discharged. 

Assuming the OSC is discharged and trial goes forward, the Court will hear the motion to be relieved AFTER the trial, as that is how the motion was originally scheduled. 

4.     Today’s Proceedings

On 11/08/22, Defendants filed a joint brief wherein they provide additional authority for the position that Plaintiff’s complaint is not stayed in light of her filing of bankruptcy proceedings.  To date, Plaintiff has filed nothing to the contrary.  The Court therefore denies the motion to stay the entire action in light of the BK, discharges the OSC re: BK, and will go forward with the trial on Plaintiff’s complaint today.

As indicated in the 11/03/22 order, the Court will hear the motion to be relieved as counsel at the conclusion of trial if it remains necessary to do so.