Judge Matthew C. Braner, Case Number: 37-2023-00041548-CU-BT-CTL, Date: 2024-04-12 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00041548-CU-BT-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Business Tort Motion Hearing (Civil) 37-2023-00041548-CU-BT-CTL VALLEY GREENS RETAIL OUTLET INC VS SAVAGE ENTERPRISES [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The demurrers of Defendants Tre Wellness and Binoid LLC are OVERRULED as moot.

Defendant Canably, Inc.'s motion to stay civil proceedings pending resolution of criminal matter is GRANTED.

Demurrers '[T]he filing of an amended complaint renders moot a demurrer to the original complaint.' (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [citing Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054]; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 ['[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.'].) Here, Plaintiffs served a first amended complaint on March 18, 2024. (ROA #53.) Plaintiffs had the right to file the FAC without leave of court and did so by the date for filing an opposition to Defendants' demurrers. (Code Civ. Proc., � 472, subd. (a) ['A party may amend its pleading once without leave of the court at any time . . . after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.'].) Accordingly, Defendants' demurrers are overruled as moot.

Motion to Stay Civil Proceedings 'Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.' (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79 [courts have inherent power, derived from the state Constitution, to control litigation before them].) Where, as here, the court's decision rests on the existence of parallel criminal proceedings, it 'should be made in light of the particular circumstances and competing interests involved in the case' and the court should consider 'the extent to which the defendant's fifth amendment rights are implicated.' (Keating v. Office of Thrift Supervision ('Keating') (9th Cir. 1995) 45 F.3d 322, 324; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885-86 [citing to and using the factors set forth in Keating].) Factors the court should consider when evaluating a request for a stay include: '(1) the interest of the Calendar No.: Event ID: TENTATIVE RULINGS

3065408 17 CASE NUMBER: CASE TITLE: VALLEY GREENS RETAIL OUTLET INC VS SAVAGE ENTERPRISES 37-2023-00041548-CU-BT-CTL plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.' (Keating, supra, 45 F.3d at p. 325.) Here, application of the Keating factors weighs in favor of staying the case as to Defendant Canably.

First, Plaintiff will suffer minimal prejudice if the case is stayed as to Defendant Canably; the case was only recently filed (and a first amended complaint filed even more recently) and is not yet at issue, and it is unclear whether all defendants have been served. Conversely, the prejudice to Defendant Canably if it is forced to participate in discovery would likely be substantial, given its small size and the intertwined nature of the criminal charges against its only officer and director, and agent for service of process, Valeria Jeanina Rada, and its former CEO, Jose Delahoz. (ROA #29, Bailey Dec., Exs. 2-3, 6.) Although Defendant Canably does not itself hold a fifth amendment constitutional right, the best (and potentially only) persons who can speak on its behalf as to its practices do hold that privilege and will almost certainly exercise it while the criminal case is ongoing.

As to the remaining Keating factors, the court agrees it will be a more efficient use of judicial resources to await clarity from the conclusion of the criminal matter before allowing extensive and potentially costly discovery to proceed against Defendant Canably. The criminal defendants are also technically third parties in this action, and they plainly have an interest in staying discovery as to Defendant Canably.

Finally, it does not appear the public interest will be undermined if a stay as to Defendant Canably is in place until the criminal matter is resolved. In sum, the balance of the Keating factors favors a stay as to Defendant Canably.

Accordingly, Defendant Canably's motion is granted. The case is STAYED as to Defendant Canably, including all discovery-related matters, until the resolution of Ms. Rada and Mr. Delahoz's criminal matter, Case No. CD301485, in San Diego Superior Court.

The minute order is the order of the court.

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