Judge Bruce G. Iwasaki, Case 22STCV35007 2023-01-26 Tentative Ruling

Opposing Party: Plaintiffs Giuliana Romano; Tullio Mamolo; Alma Mamolo, as trustee of the First Restatement of the Mamolo Living Trust dated March 11, 1992

This is an action to partition real property located in Burbank, California. Giuliana Romano, Tullio Mamolo, and Alma Mamolo, as trustee of the First Restatement of the Mamolo Living Trust dated March 11, 1992 (collectively Plaintiffs) sued Ruggero Terzuolo (Roger), and Ida P. Terzuolo (Ida), both as trustees of the Ruggero Terzuolo and Ida P. Terzuolo 1980 Trusts dated January 24, 1980 (Defendants), and City National Bank for Partition of Real Property, ejectment, and accounting. Plaintiffs allege that the Property is equally divided into four shares of 25% each between: Giuliana, Tullio, Alma, and Roger and Ida. Plaintiffs allege Defendants refuse to sell the Property as originally agreed.

Defendants demur to the Complaint, arguing that there were prior cases filed in a different court and this action should be abated because the earlier court has exclusive concurrent jurisdiction.

Plaintiffs oppose the demurrer, contending that there are no other actions pending because those cases settled, and that Defendants have not shown how this case is connected to the claims in the other case. Moreover, they argue, Defendants did not seek to enforce the settlement that disposed of the earlier cases. Defendants reiterate their arguments in reply and assert that while the earlier cases were disposed, the case is still pending because the court reserved jurisdiction to enforce the settlement.

Plaintiffs argue there was no meaningful meet-and-confer efforts. Nevertheless, the lack of such efforts “shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)

Defendants’ request for judicial notice of the records in two cases, BC567430 and BC577464, is granted. However, the Court denies the request for the settlement agreement, which did not appear to be filed with the Court in either of those cases.

The Court finds that the cases do not arise from the same transaction or events and overrules the demurrer.

A “plea in abatement” under Code of Civil Procedure section 430.10, subdivision (c) “may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789, emphasis in original.) “The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff’s primary right.” (Bush v. Superior Court (1992) 10 Cal. App. 4th 1374, 1384) “[U]nder the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 798.)

“Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions.” (Plant Insulation Co., supra, 224 Cal.App.3d at p. 788) “The established rule of exclusive concurrent jurisdiction provides that where two or more courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all other courts. In essence, the rule renders concurrent jurisdiction exclusive with the first court . . . exactitude is not required. That the parties in the two actions are not entirely identical, and that the remedies sought by the two actions are not precisely the same, is not controlling. Instead, it is sufficient for the exercise of equitable jurisdiction that the issue in both actions is the same and arises out of the same transaction or events.” (County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89.)

The rule of exclusive concurrent jurisdiction and the statutory plea in abatement under section 430.10, subdivision (c) are separate issues. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771.) Both “should be raised by demurrer where the issue appears on the face of the complaint.” (Ibid.) They should be raised by answer, however, “where factual issues must be resolved.” (Ibid.)

Here, the other “action[s] pending” are the two cases, BC567430 and BC577464. In BC567430, Giuliana Romano and Tullio Mamolo sued Ugo Mamolo and Ruggero Terzuolo for dissolution of partnership and accounting, declaratory relief, breach of partnership agreement/fiduciary duty, constructive fraud, and conspiracy. The plaintiffs in that case alleged that Ugo and Ruggero misused and mismanaged partnership assets.

In BC577464, Viktor Benes Continental Pastries, Inc. sued Giuliana Romano, Mamolos Continental Baker, LLC, Frank Romano, and Frank Romano Inc. for breach of written and oral agreements, and trademark infringement. The issue there involved licensing fees that Giuliana reportedly failed to pay the company.

These two cases were consolidated under BC567430. The parties are not identical in either of those cases. In BC567430, Plaintiff Alma Mamolo was not named, nor was Defendant Ida. In BC577464, several parties in this case were not named: Tullio Mamolo, Roger, and Ida. Defendants do not address this issue in their reply, instead diverting the issue that the “four owners of the property that are the subject of the partition action, and the property itself . . . are identical to their composition at the time of the settlement agreement.” But they fail to address the fact that there were different parties and different causes of action in each of the two prior cases. The statute is unambiguous that the other action pending must be between the “same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) Thus, abatement does not apply.

Defendants’ reliance on Silver v. Shemanski (1949) 89 Cal.App.2d 520, 530 is misplaced. There, the brother of a decedent sued the widow for declaratory relief that the widow waived her interest in community property. (Id. at p. 524.) The parties settled. However, the wife then filed an answer and cross-complaint, asserting fraud and lack of consideration in the settlement. The Court of Appeal affirmed the lower court’s refusal to “try the issues as to the existence and character of the waiver until it had determined the legal effect of the compromise agreement.” The issue was not, as Defendants seem to argue, whether another action was pending between the parties. Further, the parties in that case were presumably identical. (See 89 Cal.App.2d at p. 531.)

Defendants alternatively argue that the earlier court has concurrent exclusive jurisdiction. This argument is unpersuasive given the underlying facts in each case. Neither of the BC cases dealt with partitioning the Property specifically; instead, each dealt with unique factual circumstances such as breach of fiduciary duty and breach of contract based on failure to pay royalties.

Much of Defendants’ argument relies upon a settlement agreement, of which this Court declined to take judicial notice because it is not a court document and is insufficiently authenticated. Moreover, the argument is attenuated. Defendants contend that the sale of the Property was the “fourth step” in a series of contemplated actions delineated in the agreement. These steps required a third-party (Frank Romero) taking over the franchise agreements to allow the bakeries to operate inside Gelson’s market, allowing Frank to purchase the assets of the bakery business, winding up/dissolving the distribution company, and then finally selling the Property. In addition, there were twelve parties to that settlement agreement, and which did not include Defendant Ida.

Thus, the Court does not find that both cases “arises out of the same transaction or events.” Here, Plaintiffs allege that Defendants are holding out in selling the Property whereas those other cases involve different parties allegedly breaching their duties.