Judge: Yolanda Orozco, Case: 19STCV05642, Date: 2022-12-15 Tentative Ruling
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Case Number: 19STCV05642 Hearing Date: December 15, 2022 Dept: 31
MOTION FOR AN ORDER ALLOWING DISCOVERY TO BE TAKEN FROM DEFENDANT/CROSS-COMPLAINANT ESPERANZA MOLINA IS GRANTED
Background
On February 19, 2019, Plaintiff Garcia Legal filed the instant action against Esperanza Molina, individually and as Trustee of the Esperanza Molina Trust (“Esperanza”) and Does 1 through 10. The Complaint asserts causes of action for:
1) Breach
of Contract;
2) Common
Counts;
3) Open
Book Account; and
4) Declaratory Relief.
On May 26, 2020, Esperanza filed a Cross-Complaint against Garcia Legal and Roes 1 through 10. The Cross-Complaint asserts causes of action for:
1) Breach
of Contract; and
2) Common Counts.
On August 24, 2020, Garcia Legal filed a Cross-Complaint against Monica R. Molina (“Monica”) and Does 11 through 20. The Cross-Complaint asserts causes of action for:
1) Equitable
Indemnity; and
2) Contribution/Partial Indemnity.
On March 16, 2021, Cross-Defendant Molina’s Motion to Strike Garcia Legal’s entire Cross-Complaint as an unlawful Strategic Lawsuit Against Public Participation (“SLAPP”) was denied.
On April 22, 2021, Monica filed a Notice of Appeal/Cross Appeal.
Plaintiff/Cross-Complainant Garcia
Legal now moves for an Order allowing discovery to be taken from Esperanza
while the appeal is pending.
Legal Standard
California's anti-Strategic
Lawsuit Against Public Participation (SLAPP) statute automatically stays any
discovery upon the filing of a special motion to strike. (Code Civ. Proc., §
425.16(g).) Such a stay remains in effect “until notice of entry of the order
ruling on the motion.” (Code Civ. Proc., § 425.16(g).) Upon the perfecting of
an appeal, an anti-SLAPP motion becomes subject to the automatic stay
provisions under the Code of Civil Procedure section 916 subdivision (a). (See
Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th
1179, 1189-1190.)
Under the Code of Civil Procedure section 916 subdivision (a), “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.”
Subdivision (b) of section 916 further states:
“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.)
Whether a matter is ‘embraced’ in or ‘affected’ by a judgment
within the meaning of section 916 depends upon whether post[order] trial court
proceedings on the particular matter would have any impact on the
‘effectiveness’ of the appeal.” (Betz v. Pankow (1993)16 Cal. App. 4th
931, 938.
Discussion
Garcia Legal seeks an Order authorizing it to depose Esperanza and obtain production of documents responsive to Garcia Legal’s prior discovery requests while Monica’s anti-SLAPP appeal remains pending.
Garcia Legal argues that under Code of Civil Procedure section 425.16, discovery is only stayed “until notice of entry of order ruling on the motion.” (Code Civ. Proc., § 425.16 subd. (g).) “The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Id.) Garcia Legal also argues there has already been a ruling on the anti-SLAPP motion so the stay under section 425.16 no longer applies. (See Min. Or. 03/16/21.)
Plaintiff further argues that the automatic stay on appeal under section 916 does not apply to discovery regarding Esperanza because it is an ancillary or collateral matter. "[A]n appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal'[.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 191. [citation omitted].)
Garcia Legal asserts that its claims against Esperanza are not based on the conduct that gave rise to Monica’s anti-SLAPP motion and appeal. For this reason, Garcia Legal should be able to proceed with discovery as to Esperanza. Furthermore, the discovery sought is not “embraced in” or “affected by” the Anti-SLAPP ruling. (Code Civ. Proc., § 916 subd. (b).) Permitting Garcia Legal to continue discovery as to Defendant/Cross-Complainant Esperanza does not seek to directly or indirectly enforce, vacate, or modify the appealed judgment on the anti-SLAPP; does not substantially interfere with the appellate court’s ability to conduct an appeal; a ruling on this motion would not render the outcome of the appeal futile, and the purpose of the appeal was not to avoid the need for the trial court proceeding. (See Varian, supra, 35 Cal.4th at 189-190.) Under the Varian factors, lifting the discovery stay and permitting discovery as to Esperanza would not affect the pending appeal.
In her opposition, Esperanza has been unable to show that allowing discovery to proceed as to Garcia Legal’s claims against Esperanza will interfere with Monica’s appeal. Moreover, whether Garcia Legal is entitled to its unpaid legal fees from Esperanza or whether Garcia Legal overcharged Esperanza for its services are claims that are not so intertwined with Monica’s equitable indemnity and contribution/partial indemnity claims against Garcia Legal should Esperanza prevail on her Cross-Compliant. Accordingly, Esperanza has failed to show that the discovery at issue embraces or affects the appeal and is not an ancillary or collateral matter. (See Varian, supra, 35 Cal.4th at 191.)
Moreover, Garcia Legal is not required to show good cause and diligence since it is not seeking to reopen discovery or obtain discovery beyond the statutory period. (See Code Civ. Proc., § 2024.050.) The good cause provision of section 425.16 subdivision (g) no longer applies because the notice of entry of order ruling on the motion has already occurred. (See Min. Or. 03/16/22.)
Accordingly, the Motion is GRANTED.
Conclusion
Garcia Legal’s Motion for an Order Allowing Discover to be Taken from Defendant/Cross-Complainant Esperanza Molina is GRANTED and any discovery stay as to Esperanza is lifted.
Moving party to give notice.