Judge Theresa M. Traber, Case Number: 22STCP03450, Date: 2023-07-20 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCP03450, Date: 2023-07-20 Tentative Ruling

Case Number: 22STCP03450 Hearing Date: July 20, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 20, 2023 JUDGMENT ENTERED: January 3, 2023

CASE: Roxbury MP LLC, et al. v. Brian S. Boxer Wachler, Inc.

CASE NO.: 22STCP03450

MOTION FOR ORDER DEEMING PETITIONERS’ “NOTICE OF STAY” AS VOID

MOVING PARTY: Respondent Brian S. Boxer Wachler, Inc., a Medical Corporation

RESPONDING PARTY(S): Petitioners Roxbury MP LLC; Roxsan Investors LLC; Roxbury Medical Towe, LLC; Roxsan Optimus, LLC, as tenants in common dba Roxsan Tower

CASE HISTORY:

· 09/21/22: Petition filed.

· 01/03/23: Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a dispute regarding an arbitration award arising from a commercial landlord-tenant dispute.

Respondent moves for an order voiding and invalidating a “notice of stay” filed and served on June 1, 2023.

TENTATIVE RULING:

Respondent’s Motion to Deem Petitioners’ “Notice of Stay” as Void is GRANTED.

DISCUSSION:

Respondent moves for an order voiding and invalidating a “notice of stay” filed and served on June 1, 2023.

Procedural Defect

At the outset, Petitioners’ Notice of Stay is procedurally improper in that there is no basis, either in statute or in case law, for a party to unilaterally serve and file a “notice of stay.” A stay of proceedings may be automatic under certain conditions, such as when a matter is ordered to binding arbitration pursuant to Code of Civil Procedure section 1281.4, or it may be a matter within the Court’s discretionary authority to control its proceedings in the interest of fairness, judicial efficiency, and the ends of justice. (See, e.g., Frieberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) Petitioners’ “notice” is therefore invalid on its face in that, at the time it was served, the Court had not ordered a stay of proceedings, nor had it determined that the proceedings were automatically stayed pending appeal.

That said, it is the Court’s view that it would be in the interest of justice and judicial efficiency to set aside this procedural defect and address the underlying dispute about whether this entire proceeding is stayed pursuant to Code of Civil Procedure section 916 et seq pending resolution of Petitioners’ appeal.

Stay Pending Appeal

On May 19, 2023, the Court issued its ruling on cross motions to tax costs and for attorney’s fees filed by Petitioners and Respondent, respectively. (May 19, 2023 Ruling.) In that decision, the Court denied Petitioners motion to tax costs and granted Respondent’s motion for attorney’s fees in part. (Id.) On June 1, 2023, Petitioners perfected an appeal of the Court’s order. (Notice of Appeal)

Code of Civil Procedure section 916(a) provides that, “[e]xcept 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(a).) Ordinarily, under section 917.1, an appeal from an order or judgment for money or for costs not available under Code of Civil Procedure section 1033.5 does not stay enforcement of the judgment unless an undertaking is given. (Code Civ. Proc. § 917.1(a).) However, pursuant to subdivision (d) of that statute, an undertaking is not required if the award is solely for costs under section 1021 et seq. (Code Civ. Proc. § 917.1(d).)

As the moving parties on this motion, Respondents contend that this matter is not subject to Part 2 of the Code of Civil Procedure, which contains sections 916 through 923, because an arbitration is a special proceeding and not an ordinary judicial proceeding governed by those code sections. As Respondents argue, our Supreme Court stated:

“This court long ago held that Part 2 of the Code of Civil Procedure extends generally only to civil ‘actions,’ and not to ‘special proceedings.’ Unless the statutes establishing a ‘special proceeding’ expressly incorporate the appellate stay provisions of Part 2, they are inapplicable, and a final order in the ‘special proceeding’ is not automatically stayed pending appeal.”

(Agricultural Labor Relations Bd. V. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 707 citing Carpenter v. Pacific Mut. L. Ins. Co. (1939) 13 Cal.2d 306, 311.) The California Supreme Court also stated that:

The terms ‘action’ and ‘special proceeding’ have been distinguished loosely in a number of contexts. However, for purposes of applicability of Part 2 of the Code of Civil Procedure, the definitions are those set forth in Code of Civil Procedure sections 22 and 23. There an ‘action’ is defined as ‘an ordinary [judicial] proceeding […] by which one party prosecutes another for the declaration, enforcement, or protection of a right or prevention of a wrong, or the punishment of a public offense.’ (Code Civ. Proc., § 22) ‘[S]pecial proceeding[s]’ include ‘[e]very other remedy […]. (Id., § 23)

(Tex-Cal, supra, 43 Cal.3d at 707.) The California Court of Appeals has also repeatedly stated that arbitration proceedings under Code of Civil Procedure section 1280 et seq, including hearings to confirm arbitration awards, are special proceedings. (See, e.g., Bagration v. Sup. Ct. (2003) 110 Cal.App.4th 1677, 1685 fn.7; Paramount Unified School Dist. V. Teachers Assn. of Paramount (1994) 26 Cal.App.4th 1371, 1387.)

In opposition, Petitioners argue that Respondent is judicially estopped from denying that this matter was an “action” or “litigation” or a “court proceeding,” based on representations in previous filings. Judicial estoppel applies when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Jackson v. Cty. of L.A., 60 Cal.App.4th (1997)171, 183.) Here, Petitioners’ argument for judicial estoppel fails because Respondents’ claims, as noted in Respondent’s reply brief, are not “totally inconsistent.” As stated above in Tex-Cal, the terms “action” and “special proceeding” have loose definitions in multiple contexts, (Tex-Cal, supra, 43 Cal.3d at 707), and none of the numerous examples cited by Petitioners address the nature of this proceeding with respect to the applicability of Part 2 of the Code of Civil Procedure specifically.

Petitioners also argue that Tex-Cal is inapplicable because that opinion concerned an appeal from an administrative proceeding to enforce an order from the Agricultural Labor Relations Board, and did not concern arbitration. (See Tex-Cal, supra, 43 Cal.3d at 700-701.) Although Petitioners’ observations of the procedural history of Tex-Cal are correct, the holding of the opinion is one of general application by its plain language. (Id. at 707.) The Court is thus not persuaded by this argument.

Petitioners further argue that Respondent, in arguing that this matter is not subject to Part 2 of the Code of Civil Procedure, has ignored Code of Civil Procedure section 1287.4, which states that judgments confirming arbitration awards are “subject to all of the provisions of law relating to, a judgment in a civil action.” (Code Civ. Proc. § 1287.4.) Petitioners rely on the Court of Appeal’s interpretation of this statute in Rubin v. Western Mutual Ins. Co., in which the Court of Appeal stated that “[t]he express language of section 1287.4 requires that a judgment imposed after confirmation of an arbitration award be treated as one in an ordinary civil action.” (Rubin v. Western Mutual Ins. Co. (1999) 71 Cal.App.4th 1539, 1547.) However, as Respondent states in reply, Petitioners ignore that the Rubin opinion expressly limits its holding “to the appealability of a judgment imposed pursuant to section 1287.4 confirming an arbitration award where the resolution of the merits of the complaint remain unresolved.” (Id.) Further, Rubin also states that the phrase “subject to” in the statute “is not synonymous with ‘according to’ or ‘consistent with’; it means conditioned upon, limited by, or subordinate to.” (Id. at 1548, citing Swan Magnetics Inc. v. Superior Court (1997) 56 Cal.App.4th 1504, 1510-11.) It is thus not apparent from the language of the Rubin opinion that section 1287.4 should be construed as explicitly incorporating Part 2 of the Code of Civil Procedure.

What is more, even if Petitioners’ arguments concerning the application of Part 2 to judgments on arbitration proceedings have merit, they are, as Respondent argues, immaterial to the order that is on appeal in this case. Code of Civil Procedure section 1294 enumerates the orders which may be appealed in an action under the California Arbitration Act:

An aggrieved party may appeal from:

(a) An order dismissing or denying a petition to compel arbitration.

(b) An order dismissing a petition to confirm, correct or vacate an award.

(d) A judgment entered pursuant to this title.

(e) A special order after final judgment.

(Code Civ. Proc. § 1294.) As Respondent correctly states, this Court’s May 19, 2023 order was not a judgment under subdivision (d), but rather a special order after final judgment under subdivision (e). The Court’s judgment was entered separately on January 3, 2023, and is not the subject of Petitioners’ appeal. (See January 3, 2023 Judgment; June 1, 2023 Notice of Appeal.) As Code of Civil Procedure section 1281.4 expressly applies to judgments, and not to other orders under the California Arbitration Act, the May 19 order on the fee motions is, by the express language of both statutes, not subject to section 1281.4’s provisions. Thus, even if the Court accepts Petitioners’ contention that section 1281.4 incorporates Part 2 of the Code of Civil Procedure, that incorporation does not apply to the ruling that is currently on appeal.

In sum, the Court finds that this action, which is a petition to confirm an arbitration award, is a special proceeding that is not ordinarily subject to Part 2 of the Code of Civil Procedure, and that the particular order from which Petitioners appeal is not encompassed within those statutory provisions. Petitioners’ Notice of Stay is therefore invalid.

Petitioners’ final argument is that no undertaking is required to stay the order currently on appeal because it is a separate judgment under Code of Civil Procedure section 917(d). However, as the Court has found that the order is not a separate judgment, the Court declines to consider this argument further.

CONCLUSION:

Accordingly, Respondent’s Motion to Deem Petitioners’ “Notice of Stay” as Void is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: July 20, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.