Judge: David A. Hoffer, Case: 30-2022-1259844, Date: 2022-10-07 Tentative Ruling

Defendant Bryan Kerns’ (“Defendant”) demurrer to the First Amended Complaint is SUSTAINED in part and OVERRULED in part.

Defendant’s request for judicial notice (ROA 61) is GRANTED as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

First Cause of Action – Partition

The demurrer to this cause of action is sustained, as this claim concerns partition of certain alleged community property at issue in Defendant Kerns’ divorce proceeding, Bryan Kerns, Jr. v. Denine Kerns, Case No. 22D003250, currently pending in the family law court of the Orange County Superior Court.

Once a marital dissolution action is underway, the family law court acquires jurisdiction over the characterization and division of all alleged marital property, including alleged community property in the hands of third parties, and a civil trial court has no jurisdiction to act in a later-filed suit involving ownership of the same property. (McMillin v. Eare (2021) 70 Cal.App.5th 893, 919-920; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1454-1455—after a family law court acquires jurisdiction to divide community property in a dissolution action, no other department of a superior court may make an order adversely affecting that division.)

Thus, based on the above authority, the Court lacks jurisdiction to act on the partition claim because the family law court has acquired jurisdiction over the division of the property that is the subject of said claim.

Accordingly, the Court will SUSTAIN the demurrer to the partition cause of action. (C.C.P. § 430.10(a).) The partition cause of action is stayed pending resolution of the family law issues concerning the subject property.

Second Cause of Action – Elder Abuse

The demurrer to this cause of action is overruled. Defendant Kerns offers no argument or authority to support his contention that the Court lacks jurisdiction of the subject matter of the elder abuse claim. Thus, the demurrer pursuant to C.C.P. § 430.10(a) is not well-taken.

Defendant Kerns also argues that Welf. & Inst. Code § 15657.6 is not applicable to the present matter because Plaintiff Alice Blume was allegedly of sound mind when the parties entered into their agreement for a shared living arrangement at the subject property. However, this fact has no bearing on the applicability of Welf. & Inst. Code § 15657.6 because that section involves situations in which a person takes property from an elder lacking capacity and the elder demands the property be returned. Defendant Kerns fails to explain how Welf. & Inst. Code § 15657.6 would apply to the agreement for a shared living arrangement. Thus, the demurrer on this ground is not well-taken.

Defendant Kerns also demurs to the elder abuse claim pursuant to C.C.P. §430.10(c). A party may demur to a complaint on the grounds that “[t]here is another action pending between the same parties on the same cause of action.” (Cal. Civ. Proc. Code §430.10(c).) The parties must stand in the same relationship (i.e., as plaintiff or defendant) in both suits. (See Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788-789—“absolute identity of parties” required in statutory plea in abatement.) The identical cause of action must be involved in both suits, so that a judgment in the first action would be res judicata on the claim in the present lawsuit (claim preclusion). (Bush v. Sup.Ct. (Rains) (1992) 10 Cal.App.4th 1374, 1384.) The identity of the “causes of action” is determined by a comparison of the facts alleged in each complaint. To be the same “cause of action,” each complaint must allege invasion of the same “primary right.” (Id.)

In his demurrer, Defendant Kerns cites Plaintiff’s prior elder abuse restraining order action, Alice Blume v. Bryan Kerns, Orange County Case No. 30-2022-01261799, to support his contention that the demurrer should be sustained under CCP §430.10(c). In his reply brief, although unclear, he appears to assert that the dissolution proceeding and his own two elder abuse restraining order actions also support his demurrer. Notwithstanding the fact that he did not raise the latter three cases as supportive in his initial papers and thus the court may disregard that argument, none of the four referenced actions supports Defendant Kerns’ demurrer.

The dissolution proceeding clearly is not an action “between the same parties on the same cause of action,” as the dissolution proceeding does not in any way involve Plaintiff Alice Blume’s claim for elder abuse. (See Petition for Dissolution of Marriage, Ex. A to Demurrer.)

Defendant Kerns’ elder abuse restraining order actions, Bryan D. Kerns v. Denine Blume Kerns, Orange County Case No. 30-2022-01258367 and Bryan D. Kerns v. Alice Blume, Orange County Case No. 30-2022-01258363, also do not support the demurrer because the parties do not stand in the same relationship (i.e., as plaintiff or defendant) in both suits.

Plaintiff’s elder abuse restraining order action, Alice Blume v. Bryan Kerns, Orange County Case No. 30-2022-01261799, filed on May 27, 2022, is an action seeking a restraining order under Welf. & Inst. Code § 15657.03. (Ex. C to Demurrer.) Although the parties stand in the same relationship in both suits and the facts and circumstances underlying both claims are very similar, the restraining order action cannot afford Plaintiff the relief sought in the present action and is thus not the same cause of action. The present action seeks compensatory damages and punitive damages for elder abuse (see FAC at p. 8:19-27). Such damages are not available in the restraining order action (see Welf. & Inst. Code § 15657.03). While Defendant Kerns is correct that Plaintiff may seek attorney’s fees and costs pursuant to Welf. & Inst. Code § 15657.03(t), there is no provision in section 15657.03 providing for recovery of compensatory or punitive damages. (See Id.)

Abatement is not appropriate where the first action cannot afford the relief sought in the second. (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 459; see also, Williams v. State of California (1976) 62 Cal.App.3d 960.) Similarly, here, Plaintiff would be unable to recover monetary damages for elder abuse in the restraining order action. Thus, a judgment in the restraining order action would not be res judicata on the claim in the present lawsuit. C.C.P. §430.10(c) is therefore inapplicable.

Further, as Plaintiff notes in the opposition, section 15657.03(x) states in pertinent part: “This section does not preclude a petitioner's right to use other existing civil remedies.” This is precisely what Plaintiff has done by pursuing the present elder abuse action.

Defendant Kerns also raises for the first time in his reply brief, a new argument – that the demurrer to the elder abuse claim should be sustained based on the rule of exclusive concurrent jurisdiction. Although the Court could decline to consider this argument because it was raised for the first time in the reply brief (see Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38), Defendant Kerns’ own cited authority makes clear that the rule of exclusive concurrent jurisdiction does not apply in the present matter.

Defendant Kerns cites Childs v. Eltinge (1973) 29 Cal.App.3d 843 and Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781. Both matters hold that, in order for the rule of exclusive concurrent jurisdiction to apply, the court exercising original jurisdiction should have the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings. (Childs v. Eltinge, supra, at p. 850; Plant Insulation Co., supra, at p. 788.)

As discussed above, the restraining order action cannot afford Plaintiff the same relief sought in the present elder abuse action. Thus, the court in the restraining order action does not have “the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings.” (Id.) Therefore, the rule of exclusive concurrent jurisdiction does not apply in the present matter.

Accordingly, the demurrer to the second cause of action is OVERRULED.  The defendant is ordered to answer the complaint within 10 days.

Counsel for plaintiffs is ordered to give notice of these rulings.