Judge Michael J. Strickroth, Case 2022-01288500 2023-08-21 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2022-01288500, Date: 2023-08-21 Tentative Ruling

Motion to Strike Portions of Complaint

Demurrer to Complaint

Case Management Conference

Defendants Law Offices of Ivan P. Cohen and Ivan Paul Cohen demurrer and motion to strike portions to the Complaint of Plaintiff Berstein Law, PC. Are ordered off calendar.

Code of Civil Procedure section 916, subsection (a) 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.”

An appeal is perfected when the notice of appeal is filed. Kroger Co. v. W.C.A.B. (2012) 210 Cal.App.4^th 952. An anti-SLAPP appeal automatically “stays all further trial court proceedings on the merits upon the causes of action affected by the motion.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186. “The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Id. at 189.) “The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.” Elsea v. Saberi (1992) 4 Cal. App. 4th 625, 629.

On August 4, 2023, Defendants filed a Notice of Appeal. (ROA No. 75.) According to the Notice of Appeal, Plaintiff is appealing the Order entered on July 7, 2023. (Id.) The only order entered by the Court on July 7, 2023, was an order continuing the Demurrer, Motion to Strike and Case Management Conference. (ROA No. 64.) The date on the Notice of Appeal appears to be a typographical error and Defendants appear to be appealing the Court’s Order entered on July 11, 2023, granting in part and denying in part, Defendants’ anti-SLAPP motion. (ROA No. 68.) The Court of Appeal received the Notice of Appeal on August 9, 2023, assigning number G062946.

Pursuant to section 916, the Court is without jurisdiction to rule on the demurrer and motion to strike while the appeal is pending since the demurrer and motion to strike involve the same causes of action that are the subject of the appeal. Therefore, the demurrer and motion are taken off calendar.

For the reasons discussed above, the Case Management Conference is off calendar. The Court schedules a Status Conference re Appeal for March 18, 2024, at 8:30 AM in Department C15.

Plaintiff to give notice.