Case Number: BC600745??? Hearing Date: July 25, 2016??? Dept: 34
SUBJECT: Motion to stay action pending appeal
Moving Party: Defendants 4Sports & Entertainment AG and Claude Lemieux
Resp. Party: Plaintiffs Ritch Winter and Wintersports Ltd.
Defendants? motion to stay is DENIED.
BACKGROUND:
Plaintiff commenced this action on 11/10/15 against defendants for: (1) fraud; (2) breach of contract; (3) breach of implied covenant of good faith and fair dealing; (4) intentional interference with prospective economic advantage; and (5) declaratory relief.
On 4/15/16, the Court denied defendants? motion to disqualify plaintiffs? counsel. On 5/20/16, defendants filed a notice of appeal of the order denying the motion to disqualify.
ANALYSIS:
Defendants seek to stay the instant action pending the appeal of the order denying the motion to disqualify.
For the most part, the instant motion argues that the Court erred in denying the disqualification motion. (See Motion, p. 6:18 ? p. 9:26.) To the extent that defendants are seeking reconsideration of the order denying disqualification, this is not well taken because the motion is untimely and does not provide any new or different facts or circumstances. (See Code Civ. Proc., ? 1008; New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)
An appeal of an order denying disqualification of counsel does not automatically stay the action on the merits. (Reed v. Superior Court (2001) 92 Cal.App.4th 448, 453.)
If the trial court denies a motion to disqualify counsel, the unsuccessful moving party can seek immediate appellate review, either by petitioning the reviewing court for a writ of mandamus, asserting that the remedy by appeal is not adequate [citation] or by filing a notice of appeal from the order denying disqualification. [Citation.] If the moving party desires that the trial be stayed pending appeal, the party may first ask the trial court in its discretion to continue or stay the underlying proceedings until the appeal is decided. [Citation.][Fn. omitted.]
(Id. at p. 455.)
Defendants argue that they will suffer irreparable injury if a stay is not granted. This argument assumes that the appeal is meritorious and there were grounds for disqualification. The Court has already determined that defendants have not sufficiently established that plaintiffs? counsel should be disqualified.
Defendants assert that ?[i]f the Court declines to exercise its discretion to stay this matter, Defendants will likely file a writ of supersedeas with the Court of Appeals. There, Defendants would have to show that the appeal has merit. It is Defendants? position that the appellate court will find that there is a sufficient showing of merit to justify staying the action pendency of the appeal.?
The Court DENIES the instant motion. Defendants, of course, have an absolute right to file a writ of supersedeas; should they do so, the Court of Appeal will be able to decide whether or not to issue a stay of the proceedings.