Judge: William A. Crowfoot, Case: 23AHCV01622, Date: 2024-01-19 Tentative Ruling

Case Number: 23AHCV01622    Hearing Date: April 15, 2024    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On July 14, 2023, plaintiff Zixuan An (“Plaintiff”) filed this action against defendants American Franchise Regional Center, LLC (“American Franchise”), Americana Hesperia Retirement Funding LLC (“Ameriana Hesperia”), Agnes Sinclair aka Agnes Yen, John Deyong Hu, Hu & Associates, LLC, Sylvia Young, and Universo Holdings, Inc.

On January 19, 2024, the Court sustained the demurrer filed by American Franchise, Yen, and Americana Hesperia (collectively, “Defendants”). The demurrer was sustained without leave to amend on the grounds that Plaintiff’s action was barred by the statute of limitations.

On January 30, 2024, the Court entered a judgment of dismissal.

On February 6, 2024, Plaintiff filed this motion. The caption page states that this is a motion for leave to amend the complaint, but the notice of motion states that it is brought pursuant to Code of Civil Procedure section 473(b).

The Court lacks jurisdiction to consider Plaintiff’s motion. On April 5, 2024, Plaintiff filed a notice of appeal. Unless a listed exception applies, “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), emphasis added; see Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 [“[S]ection 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”]; In re Anna S. (2010) 180 Cal.App.4th 1489, 1499 [The “filing of a notice of appeal deprives the trial court of jurisdiction of the cause and vests jurisdiction with the appellate court until the reviewing court issues a remittitur”].)

The notice states that it is an appeal from the judgment of dismissal after an order sustaining a demurrer. To consider Plaintiff’s motion would require the Court to consider whether to relieve Plaintiff of the same order that is currently pending on appeal. Therefore, the motion asks the Court to consider matters which are squarely encompassed by Code of Civil Procedure section 916.

In light of the foregoing, the Court continues the hearing on Plaintiff’s motion for six months and sets a status conference for October 15, 2024, at 8:30 a.m. in Department 3 of the Alhambra Courthouse. The parties are to submit a joint statement no later than 5 days before the hearing informing the Court about the status of the appeal.

Dated this 15th day of April, 2024

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.