Wednesday, September 27, 2017

Automatic stay in DQ appeal?

In a pub'd opinion from 4/3 here, the court tackles stay issues arising from appeals of orders disqualifying counsel:

Image result for hey wait up     Does an appeal of an order disqualifying counsel result in an automatic stay pursuant to Code of Civil Procedure section 916?1 If so, how far does the automatic stay extend — solely to enforcement of the disqualification order or to all trial court proceedings? Surprisingly, these precise questions have not yet been answered by California courts.
     The trial court ruled that nothing was stayed by the appeal. We conclude the appeal automatically stayed enforcement of the order disqualifying counsel, but not all trial court proceedings.

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An order disqualifying an attorney from continuing to represent a party in ongoing litigation is a mandatory injunction because it requires affirmative acts that upset the status quo at the time the disqualification motion was filed.

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Thus, we hold that an appeal of an order disqualifying an attorney automatically stays enforcement of the order. Our holding has the incidental (but valuable) benefit of creating a bright line rule. [cite] Parties and trial courts now will be on notice that an order disqualifying an attorney is automatically stayed by an appeal. There will be no need for complicated and time-sensitive fights in the trial court or appellate court as to whether a discretionary stay should issue with regard to the disqualification order. And, as discussed in further detail below, there will be less incentive to fight over a discretionary stay as to the remainder of trial court proceedings.

As for the scope of the automatic stay:

     The best outcome in this case (and future similarly situated cases) will be for the parties to stipulate to the terms of a stay of trial court proceedings. Trial courts will undoubtedly be receptive if cooperation proves feasible. Parties in these cases may agree that all or some proceedings should be stayed pending appeal, depending on the particular exigencies of the litigation. For instance, it may be particularly important to depose certain witnesses immediately; a blunt stay of all proceedings by this court would foreclose the parties and trial court from considering such a carve out.
     Should the parties not come to an agreement, they may file a noticed motion for a stay of trial court proceedings (in whole or in part) in the trial court. [cite] Once in possession of a trial court ruling, a dissatisfied party may seek supersedeas or other extraordinary relief from this court.