Judge Cynthia A Freeland, Case Number: 37-2021-00015644-CU-FR-NC, Date: 2024-05-24 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00015644-CU-FR-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Fraud Motion Hearing (Civil) 37-2021-00015644-CU-FR-NC DEEN VS FITZGERALD YAP KREDITOR [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/02/2024

Cross-Defendants Isha Deen and Kevin Khwaja (collectively, 'Cross-Defendants')'s motion to stay action is denied.

Cross-Defendants' request for judicial notice is granted. See Cal. Evid. Code � 452(d).

Cross-Defendants ostensibly seek to stay this action on separate yet related grounds: (1) by way of a renewed motion to stay under California Code of Civil Procedure ('CCP') � 1008(b), which request originally was denied on January 13, 2023 (see ROA Nos. 202, 203), and (2) under the court's inherent authority to stay proceedings. Toward that end, CCP � 1008(b) provides that: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

Cal. Code Civ. P. � 1008(b). A party filing a renewed motion under CCP � 1008(b) 'is seeking a new result in the trial court based upon 'new or different facts, circumstances, or law.'' Global Protein Products, Inc. v. Le (2019) 42 Cal. App. 5th 352, 364 (quoting Tate v. Wilburn (2010) 184 Cal. App. 4th 150, 160). A renewed motion must include, among other things, 'an affidavit showing what 'new or different facts, circumstances, or law' are claimed to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier.' Even Zohar Construction & Remodeling, Inc. v. Belaire Townhouses, LLC (2015) 61 Cal. 4th 830, 833 (internal quotation omitted).

Additionally, the court 'has inherent power, in its discretion, to stay proceedings when such stay will accommodate the ends of justice.' St. Paul Fire and Marine Insurance Company v. AmerisourceBergen Corporation (2022) 80 Cal. App. 5th 1, 6-7 (quoting People v. Bell (1984) 159 Cal. App. 3d 323, 329).

See also OTO, L.L.C. v. Kho (2019) 8 Cal. 5th 111, 141 ('the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.'). 'Granting a stay in a case where the issues in two actions are substantially identical [citations] is a matter addressed to the sound discretion of the trial court. 'In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts Calendar No.: Event ID: TENTATIVE RULINGS

3093217 CASE NUMBER: CASE TITLE: DEEN VS FITZGERALD YAP KREDITOR [IMAGED] 37-2021-00015644-CU-FR-NC of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.' Thomson v. Continental Ins. Co. (1967) 66 Cal. 2d 738, 746, fn. 4.

Cross-Defendants contend that a stay is warranted pending: (1) resolution of Cross-Defendants' motion to vacate the order of dismissal in Orange County Superior Court Case No.

30-2018-01022313-CU-PO-CJC (the 'First Malpractice Action'), and (2) the final resolution of Deen v. Deen (San Diego County Superior Court Case No. 37-2016-00022636-CU-OR-CTL) (the 'Underlying Action') and the related federal action Deen v. Federal Insurance (Southern District of California Case No. 3:22-cv-01351-JO-SBC) (the 'Federal Action'). The court respectfully disagrees and finds that Cross-Defendants have failed to demonstrate that a stay of proceedings is warranted under CCP � 1008(b) or the court's inherent authority.

To start, it is undisputed that on September 11, 2020, Judge Howard dismissed the First Malpractice Action without prejudice for failure to properly serve the defendants. A judgment of dismissal of the First Malpractice Action was entered on November 3, 2020. On August 11, 2022, the Court of Appeal issued a decision affirming the judgment of dismissal of the First Malpractice Action (the 'Court of Appeal Decision'). The Court of Appeal Decision is final and now the law of the case. See, e.g., Lucky United Properties Investment, Inc. v. Lee (2013) 213 Cal. App. 4th 635, 651. At best, the pending motion is premature given that the hearing on the motion to vacate in the First Malpractice Action is not set to be heard until July 25, 2024. Regardless, Cross-Defendants, by way of a motion to stay proceedings, cannot collaterally attack the judgment in the First Malpractice Action for non-jurisdictional errors as the judgment is final pending the outcome of the motion to vacate. Ibid.; Adoption of Matthew B. (1991) 232 Cal. App. 3d 1239, 1268-1269; Murphy v. Murphy (2008) 164 Cal. App. 4th 376, 407; Jones v. World Life Research Institute (1976) 60 Cal. App. 3d 836, 840, 844.

Second, Cross-Defendants' contention that a stay will prevent conflicting judgments and/or confusion amongst the various proceedings is not well taken. As the court noted in its January 13, 2023 Order, issues pertaining to the parties' bankruptcy matter have no bearing on the court's ability to proceed in the present action. Furthermore, as Defendant/Cross-Complainant Fitzgerald Yap Kreditor LLP ('Cross-Complainant') correctly argues, Cross-Complainant is not a party to either the Underlying Action or the Federal Action. Consequently, those matters are too remote to impact the court's ability to proceed in this case. Moreover, Cross-Defendants fail to identify a related action from which a conflicting judgment can arise as the First Malpractice Action remains in a dismissed procedural posture.

Third, the rule of exclusive concurrent jurisdiction is inapplicable because there is only one pending case to which Cross-Complainant and Cross-Defendants are parties.

Finally, Cross-Defendants' argument that the court should stay the present action owing to the bankruptcy court's remand of the First Malpractice Action is without merit and ignores the fact that the bankruptcy court entered an order on April 9, 2024 indicating that the remand had been entered erroneously. See O'Connor Decl., Ex. 2.

In light of the foregoing, the court denies Cross-Defendants' motion to stay this action.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, May 24, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of May 24, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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