Defendant has demurred to the first cause of action of the plaintiff's first amended complaint. Responding to defendant's notice of "non-opposition," plaintiff asserts that the action is stayed pending the outcome of plaintiff's appeal of the order dismissing a different cause of action of the original complaint. Plaintiff cites CCP § 916(a) in support of this position.
A stay under CCP § 916(a) only stays superior court proceedings "upon the judgment or order appealed from or upon the matters embraced therein or affected thereby ... ." As the instant demurrer relates to a separate and distinct cause of action than that involved in the appeal, it is not a foregone conclusion that the hearing on the demurrer is stayed. (See Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180.) The parties should come to the hearing prepared to discuss this issue.
If the court determines that proceedings on the pending demurrer are not stayed, it intends to continue the hearing to another day to a