Case Number: VC063679 Hearing Date: May 01, 2014 Dept: SEC

THEE AGUILA, INC. v. ACUNA
CASE NO.: VC063679
HEARING: 05/01/14

#6
TENTATIVE ORDER

Plaintiff THEE AGUILA, INC.’s motion to vacate the stay of the subject action is GRANTED. C.C.P. §128.

All parties are ORDERED to appear on May 8, 2014 at 8:30 a.m. in Department SE-F for a case management/trial setting conference.

Plaintiff THEE AGUILA, INC. filed the subject unlawful detainer complaint on December 5, 2013. As alleged therein, plaintiff served a 30-day notice of default on October 30, 2013 based on the defendant tenants’ alleged failure to provide written proof of cross-liability insurance. Comp., Exh. 1, ¶11, Exh. 2. Plaintiff seeks forfeiture of the lease, and rent for the balance of the lease.

In February 2014, this Court granted defendants’ motion to stay the action pending the outcome of case number BC482246. Subsequently, the Court presiding over the BC action denied defendants’ motion to consolidate this matter with that case. Defendant tenants (who are plaintiffs in the BC case) seek a declaration of rights with respect to the insurance requirements under the lease in the BC action. However, there are also a variety of other issues presented in that action.

Here, in contrast, plaintiff’s unlawful detainer claim is based on the narrow of issue as to whether defendants’ insurance coverage is sufficient under the lease. The action is one for possession of the property, which is not an issue in the BC case. See Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455. Plaintiff’s unlawful detainer action would be frustrated if the stay were to remain in place indefinitely. Childs v. Eltinge (1973) 29 Cal.App.3d 843. To the extent the subject matters overlap, the parties are free to adjudicate the relevant insurance issues in this action. There is no prejudice in litigating those issues first, as such litigation will likely serve to narrow the scope of the BC case.

Plaintiff has established the great possibility if irreparable harm if the stay remains in place and defendants do not have sufficient insurance on the property as it subjects plaintiff to potential liability. Conversely, if defendants do carry insurance as required (as they argue in the opposition), then they are not in default of the lease and will succeed at trial in this action. It is thus in both parties’ interest to expeditiously proceed in this matter.

It also appears that there are significant discovery disputes in the BC action, making it unlikely that the case will go to trial in September 2014 as scheduled.

Judge Brazille’s order denying consolidation of these matters is a new circumstance upon which the Court may revisit the issue of whether this case should be stayed. It finds no basis for the stay to remain.

Defendants have not established that the parties agreed to a settlement conference with Judge Bendix. While they are encouraged to make efforts to resolve their disputes, the potential for a future settlement conference is not ground to deny the motion.

For the reasons set forth above, plaintiff’s motion to lift the stay is granted and the parties are ordered to appear in Department SE-F to obtain a future date as indicated above.