Judge: Mark H. Epstein, Case: 22STCV16879, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV16879    Hearing Date: October 12, 2023    Dept: I

The CASE IS STAYED, and as such, the motions are stayed as well. 

Plaintiffs sued defendants for breach of fiduciary duty concerning prior litigation.  Defendants brought a Special Motion to Strike (SMS), which was granted as to all but one cause of action.  Plaintiffs appealed the portion of the order granting the SMS in part and defendants later cross-appealed as to the SMS denial concerning the remaining cause of action.  Defendants have served discovery on plaintiffs relating only to the cause of action for which the SMS was denied.  Plaintiffs objected to the discovery on the ground that the matter is in the Court of Appeal.  Defendants brought the instant motion and plaintiffs oppose on the same ground.

Plaintiffs contend that this court is without jurisdiction over the case because all of the various causes of action are before the Court of Appeal.  Code of Civil Procedure section 916 provides that the appeal of a matter deprives the court of jurisdiction over matters embraced in the judgment or order from which the appeal was taken, but not on other aspects of the case.  (Varian Medical Systems, Inc. v. Delfino (2005) Cal.4th 180.)  Generally, where the aspect of the case in question affects the appeal’s effectiveness, it is within the stay.  Similarly, if the purpose of the appeal is to avoid the proceeding at issue, it is within the stay.  Something is ancillary where the proceeding does not effect the judgment, even though the proceedings might render the appeal moot.  For example, a new trial motion is considered collateral from a judgment such that an appeal of the judgment does not deprive the trial court from considering the new trial motion.  That is true even though the court’s resolution of the new trial motion could moot the appeal from the judgment. 

Here, the court is unsure whether it has jurisdiction or whether the discovery is ancillary.  To the extent plaintiff is right, then of course the motion must be denied on that basis.  But even if plaintiff is wrong, the court believes that, as a prudential matter, a stay makes sense.  If defendants are successful on appeal, then no discovery is appropriate at all.  Under those circumstances the court is not inclined to have everyone go full steam ahead.  (The court notes that it is not commenting on the appeal’s merits.  The SMS was decided by a different court and this court has not reviewed the papers.  As such, this court has no opinion on the strength of the appeal or of the cross-appeal.)

To ensure that the 45 day rule does not bar the motions, the court hereby issues a STAY of the entire case.  The stay will expire 10 days after the remittitur issues.  If appropriate, defendants may seek to re-calendar their motions once the stay is lifted.  Plaintiffs will, of course, be permitted adequate time to file a merits opposition thereto.