Prudential-Bache Securities, Inc. v. Superior Court (Downs) (1988)

PRUDENTIAL-BACHE SECURITIES, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THOMAS L. DOWNS, Real Party in Interest

(Opinion by Todd, J., with Kremer, P. J., and Wiener, J., concurring.)

COUNSEL

Keesal, Young & Logan, Geraldine L. Darrow and Timothy N. Will for Petitioner.

No appearance for Respondent.

Paul Newberry for Real Party in Interest.

OPINION

TODD, J.

The opinion filed May 11, 1988, is ordered published.

Real party, Thomas Downs, filed suit against petitioner, Prudential-Bache Securities, Inc. (Bache). Bache brought a motion to compel arbitration which was denied. On July 14, 1987, Bache filed a timely notice of appeal.

In December 1987, real party was ordered to court for failure to file an at issue memorandum. After a hearing real party was ordered to file an at issue memorandum and the case has been set for trial on June 22, 1988.

Code of Civil Procedure section 916 provides that "the perfecting of an appeal stays proceedings in the trial court ... upon the matters embraced therein or affected thereby ...." [1] Here Bache appealed the order denying arbitration. That appeal affects the entire case. Thus, further trial court proceedings are stayed under Code of Civil Procedure section 916. The fact that this is a "fast track" case does not annul or make inoperative previous statutes and case law.

An alternative writ or order to show cause would add nothing to the presentation. A peremptory writ is proper. (Code Civ. Proc., § 1088; United Nuclear Corp. v. Superior Court (1980) 113 Cal. App. 3d 359 [169 Cal. Rptr. 827]; Goodenough v. Superior Court (1971) 18 Cal. App. 3d 692, 697 [96 Cal. Rptr. 165].) [201 Cal. App. 3d 926]

Let a peremptory writ issue directing the superior court to vacate the trial date of June 22, 1988, and to entertain no further proceedings until the remittitur issues.

Kremer, P. J., and Wiener, J., concurred.