Judge: Robert B. Broadbelt, Case: 18STCV06655, Date: 2022-12-05 Tentative Ruling

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Case Number: 18STCV06655    Hearing Date: December 5, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

Order to Show Cause re: (1) why the court should not modify its 10/28/22 order on Defendant Danny Wimmer Presents, LLC’s motion to vacate trial, and (2) why the court should not exercise its discretion to stay this entire action  

On November 9, 2022, the court set an Order to Show Cause (1) why the court should not modify its October 28, 2022 order on defendant Danny Wimmer Presents, LLC’s motion to vacate trial date, hearings on motion for summary adjudication, and hearings on discovery motions, to grant all or part of the relief requested by Defendant in that motion, and to make findings that this action is stayed by the appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike pursuant to Code of Civil Procedure section 916, as to the claims listed on page 4, lines 11 through 22 of the court’s October 28, 2022 order, and as to the issue of whether plaintiff AEG Presents Productions, LLC and defendant Danny Wimmer Presents, LLC owed a fiduciary duty to each other, based on the existence of a partnership between the parties, and (2) why the court should not exercise its discretion to stay this entire action pending the Court of Appeal’s ruling on Defendant’s appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike.

Plaintiff AEG Presents Productions, LLC (“Plaintiff”) and defendant Danny Wimmer Presents, LLC (“Defendant”) each filed responses to the court’s Order to Show Cause on November 18, 2022.

After considering the responses filed by Plaintiff and Defendant, the court rules as follows.

A.    Modification of the court’s October 28, 2022 order

On August 26, 2022, Plaintiff filed its motion for summary adjudication re: duty owed by defendant and cross-complainant Danny Wimmer Presents, LLC, requesting that the court adjudicate the issue of whether Defendant, as Plaintiff’s partner with regard to Rock on the Range and Carolina Rebellion, “owed a fiduciary duty of loyalty to [Plaintiff] to account to each of the Rock on the Range and Carolina Rebellion partnerships and to hold as a trustee for each of them any property, profit, or benefit derived by [Defendant] in the conduct and winding up of each of the partnerships’ business or derived from a use of [Defendant] of each of the partnerships’ property or information, including the appropriation of partnership opportunities.”  (Notice of Pl. Motion for Summary Adjudication, filed August 26, 2022, p. 1, ¶ 1.) 

On November 9, 2022, the court issued an order finding that the issue of duty sought to be adjudicated by Plaintiff in its motion was stayed by Defendant’s appeal of the court’s August 25, 2022 order denying its special motion to strike pursuant to Code of Civil Procedure section 916, and therefore took the hearing on the motion off calendar. 

“[T]he 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…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).)  Whether a matter is embraced in or affected by an appealed judgment or order depends on whether the proceedings “would have any effect on the ‘effectiveness’ of the appeal.  [Citation.]  ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’”  (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.)  

In the court’s November 9, 2022 order, the court noted that Defendant filed a special motion to strike portions of Plaintiff’s First Amended and Supplemental Complaint pursuant to Code of Civil Procedure section 425.16, and “based its motion, in part, on the argument that Plaintiff could not establish a probability of prevailing on the challenged claims, as alleged in the first and fourteenth causes of action for breach of fiduciary duty, on the ground that Plaintiff could not establish the existence of a fiduciary relationship between the parties.”  (Nov. 9, 2022 Order, p. 3:21-26.)  The court acknowledged that, “[i]n ruling on Defendant’s motion to strike, the court addressed this contention and concluded that Plaintiff had met its burden to establish the probability of prevailing as to the first and fourteenth causes of action, because Plaintiff had met its burden of establishing that it could prove the existence of a fiduciary relationship between Plaintiff and Defendant.”  (Id. at p. 4:1-5.)  The court concluded that Plaintiff’s motion sought summary adjudication of an issue that the court ruled on “in connection with Defendant’s special motion to strike in order to determine whether Plaintiff met its burden of establishing that there was a probability that Plaintiff would prevail on the challenged claims.”  (Id. at p. 4:16-19.)  Because the court found that a ruling on Plaintiff’s motion could potentially conflict with a contrary decision by the Court of Appeal, the court found that “any proceedings on the issue of whether Defendant owed Plaintiff a fiduciary duty based on the existence of a partnership could have ‘an[] effect on the “effectiveness” of [Defendant’s] appeal’ of the court’s denial of Defendant’s motion to strike.”  (Id. at p. 4:19-27.)  The court therefore took Plaintiff’s motion off calendar and set the pending Order to Show Cause.

After considering the arguments made by Plaintiff and Defendant in their responses to the court’s Order to Show Cause, the court orders that the October 28, 2022 order is modified as follows.

First, the court modifies its October 28, 2022 order to vacate and remove the following rulings, which are inconsistent with the findings and rulings made in the court’s November 9, 2022 order on Plaintiff’s motion for summary adjudication, as set forth above: (1) “The court therefore finds that the issue of whether there exists a fiduciary relationship between Plaintiff and Defendant, as alleged in the claims and causes of action that Defendant did not move to strike, are not embraced in or affected by Defendant’s appeal.  (Code Civ. Proc., § 916, subd. (a)[,]” at page 4, lines 3 through 6 of the court’s October 28, 2022 order, and (2) “The court denies Defendant’s motion to vacate the November 9, 2022 hearing on Plaintiff’s motion for summary adjudication as to the issue of whether Defendant owed a fiduciary duty to Plaintiff, since the issue of duty as to all nonchallenged claims is not stayed for the reasons set forth above[,]” at page 4, line 27 through page 5, line 2 of the court’s October 28, 2022 order.

Second, the court modifies its October 28, 2022 order to find that this action is stayed by the appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike pursuant to Code of Civil Procedure section 916, (1) as to the claims listed on page 4, lines 11 through 22 of the court’s October 28, 2022 order, and (2) as to the issue of whether plaintiff AEG Presents Productions, LLC and defendant Danny Wimmer Presents, LLC owed a fiduciary duty to each other, based on the existence of a partnership between the parties.

B.    Discretionary stay of action

“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.)

After considering the arguments made by Plaintiff and Defendant in their responses to the court’s Order to Show Cause, the court finds that it is in the interests of justice and that it will promote judicial efficiency to stay this action pending completion of the appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike.

Although it appears that the entire action is not stayed by Defendant’s appeal from the court’s August 25, 2022 order denying its special motion to strike pursuant to Code of Civil Procedure section 916, the court finds that it is in the interests of justice and will promote judicial efficiency to stay this entire action pending completion of the appeal because (1) it would not serve the interest of judicial economy to bifurcate the claims not stayed by Code of Civil Procedure section 916 for trial separate from the claims that are stayed by section 916, and it would not serve the interests of the parties to prepare for and conduct trial two separate trials on bifurcated claims which would involve overlapping witnesses and evidence, and (2) it would reduce the burden on the parties to continually brief issues regarding whether claims at issue on various motions are stayed by Defendant’s appeal from the court’s August 25, 2022 order denying its special motion to strike, and it would reduce the burden on the court to make such findings as to each motion that comes before the court.

The court therefore exercises its discretion to stay this entire action pending the Court of Appeal’s ruling on Defendant’s appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike and issuance of a remittitur on that appeal.   

ORDER

The court orders that its October 28, 2022 order is modified to vacate and remove the following ruling, at page 4, lines 3 through 6 of the court’s order:  “The court therefore finds that the issue of whether there exists a fiduciary relationship between Plaintiff and Defendant, as alleged in the claims and causes of action that Defendant did not move to strike, are not embraced in or affected by Defendant’s appeal.  (Code Civ. Proc., § 916, subd. (a).)”

The court orders that its October 28, 2022 order is modified to vacate and remove the following ruling, at page 4, line 27 through page 5, line 2 of the court’s order:  “The court denies Defendant’s motion to vacate the November 9, 2022 hearing on Plaintiff’s motion for summary adjudication as to the issue of whether Defendant owed a fiduciary duty to Plaintiff, since the issue of duty as to all nonchallenged claims is not stayed for the reasons set forth above.”

The court orders that its October 28, 2022 order is modified to find that this action is stayed by the appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike pursuant to Code of Civil Procedure section 916, (1) as to the claims listed on page 4, lines 11 through 22 of the court’s October 28, 2022 order, and (2) as to the issue of whether plaintiff AEG Presents Productions, LLC and defendant Danny Wimmer Presents, LLC owed a fiduciary duty to each other, based on the existence of a partnership between the parties.

The court orders that this action is stayed pending the Court of Appeal’s ruling on Defendant’s appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike and issuance of a remittitur on that appeal.   

The court orders the December 12, 2022 hearing on the “Motion to Seal Exhibits re Motion to Compel Defendant/Cross-Complainant Danny Wimmer Presents, LLC: (1) to Produce Documents in Response to Second Document Request in Accordance with Statement of compliance; and (2) to Provide Further Responses/First Set/Admissions etc” is taken off calendar because the court ruled on that motion on November 7, 2022.

The court orders that the following hearings are taken off calendar, subject to being rescheduled if the stay is lifted: (1) Motion to Compel Defendant and Cross-Complainant Danny Wimmer Presents, LLC to Produce Documents in Response to Certain Requests in First Document Request in Accordance with Statement of Compliance, scheduled for hearing on December 13, 2022; (2) Motion to Compel Defendant and Cross-Complainant Danny Wimmer Presents, LLC to Provide Further Responses to Certain Requests in First Document Request and to Produce Documents, scheduled for hearing on December 13, 2022; (3) Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Second Amended Cross-Complaint of Defendant and Cross-Complainant Danny Wimmer Presents, LLC, scheduled for hearing on January 10, 2023; (4) Motion to Seal Exhibits Re Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Second Amended Cross-Complaint of Defendant and Cross-Complainant Danny Wimmer Presents, LLC, scheduled for hearing on January 10, 2023; and (5) Motion to Compel Further Discovery Responses, scheduled for hearing on May 12, 2023.

The court orders that the Final Status Conference set for March 24, 2023, is vacated.   

The court orders that the trial set for April 5, 2023, is vacated. 

The court sets a Status Conference re appeal from the court’s August 25, 2022 order denying Defendant’s special motion to strike pursuant to Code of Civil Procedure 425.16, for hearing on _____________________, 2023, at 11:00 a.m., in Department 53.

The court orders defendant Danny Wimmer Presents, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  December 5, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court