Judge: David A. Hoffer, Case: 30-2022-1254499, Date: 2022-11-21 Tentative Ruling

The Demurrer by Defendant CAM Real Estate XIA, LLC to plaintiff Urbana P. Foote’s First Amended Complaint is SUSTAINED and the Court orders Foote v. CAM Real Estate XIA, LLC (Case No. 2022-01254499) stayed until such time as CAM Real Estate XIA, LLC v. Urbana P. Foote and Glen A. Foote, (Case No. 2022-01240203) and Foote v. JPMorgan Chase Bank, et. al. (Case No.: 2021-01188818) are concluded.

The Court GRANTS CAM Real Estate XIA, LLC’s request for judicial notice as to items 1-16 as described in its requests filed on 7/20/22 and 10/12/22.   The Court GRANTS plaintiff’s request for judicial notice as to Item 1 in plaintiff’s RJN filed on 11/7/22.

A demurrer is proper when “There is another action pending between the same parties on the same cause of action.” (CCP § 430.10(c))  “A plea in abatement pursuant to 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 CA3d 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 Ct. (1992) 10 Cal. App. 4th 1374, 1384)   “Thus, under 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. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 788)  “Where a demurrer is properly sustained on the ground of another action pending, the proper order is one abating further proceedings pending termination of the prior action, not an order of dismissal.”  (Franchise Tax Bd. v. Firestone Tire & Rubber Co. (1978) 87 Cal.App.3d 878, 884)

Here, it is apparent that the plaintiff is alleging a violation of the same primary right to not be wrongfully deprived of possession/ownership of the Almira property in the complaints filed in Foote v. CAM Real Estate XIA, LLC, CAM Real Estate XIA, LLC v. Urbana P. Foote and Glen A. Foote,  and Foote v. JPMorgan Chase Bank, et. al.

Court orders moving party to give notice of this ruling.