Judge: Michael E. Whitaker, Case: 22STCV02576, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV02576    Hearing Date: March 5, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a fatal motorcycle accident whereby decedent hit a metal plate in the road while riding his motorcycle.  The metal plate was placed there by virtue of a construction project.  Defendant Helio Group (“Helio”) is the general contractor for the construction work being done at the site where the metal plate was located, and Defendant O.L. Development (“O.L.”) was the subcontractor.  Defendant Simon Lazar (“Lazar”) is the managing director of Helio and the manager of Defendant Venue Residences, LLC (“Venue”), the owner of the construction project. 

On March 20, 2023, before Lazar was named as a defendant, the Court denied Plaintiffs’ motion to compel Lazar’s deposition on the basis that Lazar is an apex witness, and Plaintiffs had not met their burden to depose an apex witness.  (March 20, 2023 Minute Order.)  Specifically, the Court held “Plaintiffs have not shown that [Lazar] has unique or superior knowledge that could be obtained via any other source.  Should Plaintiffs later discover, via the discovery process, that there are certain questions only [Lazar] can answer, Plaintiffs will then be entitled to take [Lazar’s] deposition.”  (Ibid.)

On June 13, 2023, Plaintiffs named Lazar and Venue as Defendants via Doe amendments.  Lazar filed a special motion to strike the complaint as to Lazar, pursuant to Code of Civil Procedure section 425.16 (Anti-SLAPP), arguing that adding Lazar via Doe amendment was an attempt to circumvent the prior ruling, denying Plaintiff’s motion to compel Lazar’s deposition.  The Court denied Lazar’s Anti-SLAPP motion, finding that the addition of Lazar to the complaint did not stem from Lazar’s prior assertion of the Apex doctrine, but rather from Plaintiff’s subsequent discovery that in addition to the subject property, Lazar also owned the construction company he hired to do the construction work on the subject property.  (See October 12, 2023 Minute Order.)

Lazar timely appealed the order denying the Anti-SLAPP motion, effectively staying the case during the pendency of the appeal.  Plaintiffs now move to partially lift the stay, to take the PMQ Deposition for Defendant O.L. Development, the PMQ Deposition for Defendant City of Los Angeles, and “any percipient witnesses associated with Defendants O.L. Development or City of Los Angeles.”

Defendants Helio, Lazar, and Venue have filed an opposition, and Defendant O.L. Development oppose the motion.  Plaintiff replies.

ANALYSIS

Code of Civil Procedure section 425.16, subdivision (g) provides:

All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

Similarly, Code of Civil Procedure section 916 provides:

(a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, 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.

Plaintiffs contend the requested discovery should be permitted because the Court already held the lawsuit does not arise from protected speech, the requested discovery is ancillary to the Anti-SLAPP motion, it will promote judicial efficiency, and there will be no prejudice, because even if Lazar prevails on appeal, the other entities will still be in the case and the requested discovery will go forward eventually anyway, and Lazar’s counsel represents some of the other entities defendants, so Lazar’s interests will be adequately protected in his absence.

Defendants argue that because all causes of action are brought against all defendants, the pending appeal affects all causes of action, Lazar’s interests are necessarily implicated, and therefore no discovery should go forward during the pendency of the appeal.

The Court finds that Plaintiffs have not demonstrated good cause to partially lift the stay.  The Court’s prior order denying Lazar’s anti-SLAPP motion is not a basis to lift the stay, because that is precisely the issue currently being appealed.  Moreover, judicial economy will be best served by postponing discovery until all litigants can participate.

CONCLUSION AND ORDER

Because the Court finds Plaintiffs have not met their burden to demonstrate good cause for partially lifting the stay, the Court denies Plaintiff’s motion in its entirety. 

Plaintiffs shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED: March 5, 2024                                                         ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court