Judge: Michael P. Linfield, Case: 23STCV01142, Date: 2023-05-19 Tentative Ruling

Case Number: 23STCV01142    Hearing Date: January 26, 2024    Dept: 34

SUBJECT:        Motion for Order Staying Case During Pendency of Appeal of Orders Denying Anti-SLAPP Motion

Moving Party: Defendant Levi Lesches

Resp. Party:    Plaintiffs James A. Kay, Jr. and Lucky’s Two-Way Radios, Inc.

The Motion to Stay Case Pending Appeal is GRANTED. This case is STAYED IN ITS ENTIRETY pending conclusion of the appeals of Lesches’s Anti-SLAP Motion and Pick’s Anti-SLAPP Motion.

The Court sets a Status Conference re Stay for November 25, 2024.  The parties are to file a Joint Status Conference Report 5 court days prior to the status conference hearing.

BACKGROUND:

        On January 18, 2023, Plaintiffs James A. Kay, Jr. and Lucky’s Two-Way Radios, Inc. filed their Complaint against Defendants Levi Lesches, Lesches Law, Harold Pick, Jay Francis, and Wireless US LC on a cause of action for malicious prosecution.

        On April 12, 2023, Levi Lesches (d.b.a. Lesches Law) filed his Answer to the Complaint.

        On May 8, 2023, the Court denied Defendant Lesches’s Special Motion to Strike Complaint Pursuant to California Code of Civil Procedure § 425.16 (“Lesches’s Anti-SLAPP Motion”).

        On May 9, 2023, Defendant Wireless US LC filed its Answer     to the Complaint.

        On May 11, 2023, Defendant Lesches filed his notice of appeal of the Court’s denial of Lesches’s Anti-SLAPP Motion.

        On May 17, 2023, the Court denied Harold Pick’s Special Motion to Strike Plaintiff’s Complaint (“Pick’s Anti-SLAPP Motion”).

        On May 22, 2023, Defendant Pick filed his notice of appeal of the Court’s denial of Pick’s Anti-SLAPP Motion.

        On June 15, 2023, Defendant Francis filed his Answer to the Complaint.

        On November 21, 2023, the Court took off calendar an ex parte application by Defendant Lesches to stay the case.

        On December 1, 2023, Defendant Lesches filed his Motion for Order Staying Case During Pendency of Appeal of Orders Denying Anti-SLAPP Motion (“Motion to Stay Case Pending Appeal”). Defendant Lesches concurrently filed his Proposed Order.

        On January 2, 2024, Plaintiffs filed their Opposition to the Motion to Stay Case Pending Appeal. 

        On January 8, 2024, Defendant Lesches filed his Reply in support of his Motion to Stay Case Pending Appeal.

ANALYSIS:

I.          Legal Standard

“An order granting or denying a special motion to strike shall be appealable under Section 904.1.” (Code Civ. Proc., § 425.16, subd. (i).)

“An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: . . . (13) From an order granting or denying a special motion to strike under Sections 425.16 and 425.19.” (Code Civ. Proc., § 904.1, subd. (a)(13).)

“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.” (Code Civ. Proc., § 916, subd. (a).)

“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.” (Code Civ. Proc., § 916, subd. (b).)

        “[Code of Civil Procedure] section 916 stays all further proceedings on the merits during the pendency of an appeal from the denial of an anti-SLAPP motion.” (Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal.4th 180, 194.)

        “Indeed, section 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense.” (Varian Med. Sys., Inc., supra, at p. 198.)

        “In light of our holding today, some anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial. . . . Such an assessment is, however, a question for the Legislature, and the Legislature has already answered it.” (Varian Med. Sys., Inc., supra, at p. 196, citation omitted.)

“Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .” (Code Civ. Proc., § 128, subd. (a)(8).)

“It is well established, in California and elsewhere, that a court has both the inherent authority and responsibility to fairly and efficiently administer all of the judicial proceedings that are pending before it, and that one important element of a court's inherent judicial authority in this regard is the power to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” (People v. Engram (2010) 50 Cal.4th 1131, 1146, ellipsis, quotation, and internal quotation marks omitted.)

II.       Discussion

Defendant Lesches moves the Court to stay the entire matter while the appeals on Lesches’ Anti-SLAPP Motion and Pick’s Anti-SLAPP Motion are pending. (Motion to Stay Case Pending Appeal, p. 13:21–22.)

Defendant Lesches argues: (1) that a stay is mandatory here because the discovery Plaintiff seeks affects the ruling on appeal; and (2) that, in the alternative, the Court should order a discretionary stay of the entire matter to preserve judicial resources and avoid conflicting rulings. (Motion to Stay Case Pending Appeal, pp. 8:3–4, 12:7–8.)

Plaintiffs disagree, arguing: (1) that an assertion of the advice of counsel defense waives privilege; (2) that Defendant Francis already waived privilege by choosing to assert advice of counsel as an affirmative defense in his Answer; (3) that California policy discourages litigation stays; and (4) that Defendant Lesches’s arguments lack merit. (Opposition, pp. 3:20, 4:1–2, 5:1, 8:12.)

In his Reply, Defendant Lesches responds to Plaintiffs various arguments.

The Court agrees with Defendant Lesches in his Motion to Stay Case Pending Appeal.

There is only one cause of action in this case: malicious prosecution. (Complaint, pp. 1, 19.) Moreover, there is only one set of allegations of unlawful conduct: that all of the Defendants together drafted and filed a complaint in another matter without probable cause, maintained prosecution of that action, and prosecuted a frivolous appeal of that action. (Id. at ¶¶ 63–64.)

Lesches’ Anti-SLAPP Motion and Pick’s Anti-SLAPP Motion both touched upon the merits of the sole cause of action and the sole set of conduct alleged. Thus, the appeals of these motions must also involves the merits of this case.

Plaintiffs’ arguments do not adequately address how discovery and the other actions they seek would not affect the merits of the case. It appears to the Court that Plaintiffs wish to continue litigating the merits of this matter while the appeals are ongoing.

Our Supreme Court has been clear:  Code of Civil Procedure section 916 “stays all further proceedings on the merits during the pendency of an appeal from the denial of an anti-SLAPP motion. (Varian Med. Sys., Inc., supra, 35 Cal.4th at p. 194.) The Court lacks subject matter jurisdiction to order anything that would affect the merits of this matter. (Id. at p. 198.)

The Court believes it lacks discretion and must stay the entire case.

        However, even if the Court had discretion, the Court would exercise its discretion to stay the case pursuant to Code of Civil Procedure section 128(a)(8) and, independently, under the Court’s inherent judicial authority. (See Engram, supra, 50 Cal.4th at p. 1146.)  Ongoing litigation of this matter while these motions are on appeal could lead to a waste of judicial resources and conflicting rulings.

III.     Conclusion

The Motion to Stay Case Pending Appeal is GRANTED. This case is STAYED IN ITS ENTIRETY pending conclusion of the appeals of Lesches’s Anti-SLAP Motion and Pick’s Anti-SLAPP Motion.

The Court sets a Status Conference re Stay for November 25, 2024.  The parties are to file a Joint Status Conference Report 5 court days prior to the status conference hearing.