Judge Keri G. Katz, Case 37-2023-00010767-CU-MC-CTL 2024-01-12 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2023-00010767-CU-MC-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Misc Complaints - Other Motion Hearing (Civil) 37-2023-00010767-CU-MC-CTL MERCER VS BONTA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendants Robert Bonta, in his official capacity as Attorney General of the State of California, and the State of California's request for judicial notice is GRANTED.

The court then rules as follows. Defendants Robert Bonta, in his official capacity as Attorney General of the State of California, and the State of California's demurrer to Plaintiff's First Amended Class Action Complaint is SUSTAINED.

Defendants seek abatement under the common law rule of exclusive concurrent jurisdiction based on the matter titled Michael Ivey, et al. v. Department of Justice for the State of California, et al., Los Angeles Superior Court Case No. 22STCV21530 filed on July 1, 2022, prior to Plaintiff filing the complaint in the case now pending before this court. Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781 summarizes the rule and its applicability as follows.

Under the rule of exclusive concurrent jurisdiction, 'when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.' (California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109 [163 Cal.Rptr. 802] (California Union); see also, Lawyers Title Ins. Corp.

v. Superior Court (1984) 151 Cal.App.3d 455, 460 [199 Cal.Rptr. 1] (Lawyers Title); Myers v. Superior Court (1946) 75 Cal.App.2d 925, 929 [172 P.2d 84]; 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 341, p. 760.) The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy, and preventing vexatious litigation and multiplicity of suits. (Childs v. Eltinge (1973) 29 Cal.App.3d 843, 849, fn. 7 [105 Cal.Rptr. 864]; accord Greene v. Superior Court (1951) 37 Cal.2d 307, 311 [231 P.2d 821]; San Bernardino etc. Water Dist. v. Gage Canal Co. (1964) 226 Cal.App.2d 206, 212-213 [37 Cal.Rptr. 856].) The rule is established and enforced not 'so much to protect the rights of parties as to protect the rights of Courts of co-ordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice.' (Crowley v. Davis (1869) 37 Cal. 268, 269.) The rule of exclusive concurrent jurisdiction may constitute a ground for abatement of the subsequent action. (Lawyers Title, supra, at p. 458; California Union, supra, at pp. 108-109.) (2) 'An order of abatement issues as a matter of right not as a matter of discretion where the conditions for its issuance exist.' (Lawyers Title, supra, at p. 460.) However, abatement is not appropriate where the first action cannot afford the relief sought in the second. (Id., at p. 459; see also Childs v. Eltinge, supra, at pp. 847-848 [168 P.2d 5] [168 P.2d 5].) Calendar No.: Event ID: TENTATIVE RULINGS

3023080 CASE NUMBER: CASE TITLE: MERCER VS BONTA [IMAGED] 37-2023-00010767-CU-MC-CTL Plant Insulation, 224 Cal.App.3d at 786–787. Distinguishing the common law rule of exclusive concurrent jurisdiction from a plea in abatement under CCP § 430.10(c), Plant Insulation explains, [a]lthough the rule of exclusive concurrent jurisdiction is similar in effect to the statutory plea in abatement, it has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist. (Childs v. Eltinge, supra, 29 Cal.App.3d at p. 849.) 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. (Stearns v. Los Angeles City School Dist. (1966) 244 Cal.App.2d 696, 708 [53 Cal.Rptr. 482, 21 A.L.R.3d 164]; Myers v. Superior Court, supra, 75 Cal.App.2d at p. 931.) If the court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the parties in the second action are not identical does not preclude application of the rule. Moreover, the remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has 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; Robinson v. Superior Court (1962) 203 Cal.App.2d 263, 270-271 [21 Cal.Rptr. 475].) Plant Insulation, 224 Cal.App.3d at 788. Plant Insulation also explains, We adopt the more expansive subject matter test applied in recent cases and by the trial court herein, which considers whether the first and second actions arise from the 'same transaction.' (Lawyers Title, supra, at p. 458; California Union, supra, at pp. 108-109.) Plant Insulation, 224 Cal.App.3d at 789.

Under the analysis of Plant Insulation, if 1) the first and second actions arise from the 'same transaction', 2) if the court presiding over the earlier filed action 'has the power to bring before it all the necessary parties' and 3) if the court presiding over the earlier filed action 'has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings' the rule of concurrent exclusive jurisdiction applies and the second action must be abated.

The court first considers the issue of whether the Ivey case and this case arise from the same transaction. The Ivey operative complaint is brought by plaintiffs Michael Ivey, Brandon Michaels and Carlos Cortes 'on behalf of themselves and on behalf of all other similarly situated' [Ivey FAC ¶ 58] and names as defendant the Department of Justice of the State of California. The Ivey FAC alleges two causes of action: 1) Negligence and 2) Violations of Information Practices Act Sections 1798.21 and 1798.24 and prays for actual and statutory damages or restitution, attorneys' fees and costs, pre-judgment and post-judgment interest. The Ivey FAC also alleges that plaintiffs are entitled to equitable relief [Ivey FAC ¶ 90]. The Ivey FAC defines the proposed class as: All persons in the United States and its Territories whose Personal Identifying Information was compromised by the Data Breach.

[Ivey FAC ¶ 59.] To define 'Data Breach' the Ivey FAC alleges: 2. DOJ announced the data breach on June 29, 20221. According to the DOJ, during the launch of its 2022 Firearms Dashboard portal, the personal information of individuals who were granted or denied a CCW permit between 2011-2021 was exposed ('Data Breach'). . . .

The operative complaint in the case now pending before this court is brought by Plaintiff James Mercer 'on behalf of other members of the general public similarly situated, which includes an estimated 160,000 persons, all persons who had their private information released by the defendants, without their permission' [Mercer FAC ¶ 3] and names as Defendants Robert Bonta, in his official capacity as Calendar No.: Event ID: TENTATIVE RULINGS

3023080 CASE NUMBER: CASE TITLE: MERCER VS BONTA [IMAGED] 37-2023-00010767-CU-MC-CTL Attorney General of the State of California, and the State of California. As to Bonta, the Mercer FAC alleges: 5. Among its executive offices is the Office of the Attorney General, over which Defendant ROBERT BONTA (hereinafter 'BONTA'), in his capacity as Attorney General, presides as the chief law enforcement officer of the state. Included within the Office of the Attorney General is the Department of Justice (DOJ) . . . .

The Mercer FAC alleges six causes of action: 1) Violation of California Information Practices Act - Civil Code Section 1798, et. seq., damages per sections 1798.47 & 1798.48, 2) Violation of California Information Practices Act - Civil Code Section 1798, et. seq., damages per sections 1798.47, 1798.48 & 1798.53, 3) Violation of the Right to Privacy under Article I, Section 1 of the California Constitution, 4) Public Disclosure of Private Facts - Civil Code section 3333, 5) Negligence and 6) Negligent Infliction of Emotional Harm and prays for, inter alia, general and special damages, mental suffering damages, exemplary/punitive damages 'where allowed under statute', injunctive relief, declaratory relief, attorneys' fees and costs and interest 'including prejudgment interest.' The Mercer FAC defines the proposed class as: All persons whose personal information was improperly published to the general public via the DOJ website http://openjustice.doj.ca.gov on June 27, 2022 through June 28, 2022.

[Mercer FAC ¶ 9.] It is apparent from the allegations that both the Ivey case and the Mercer case arise from the same transaction. As pled, the alleged 'Data Breach' at issue in the Ivey case and the alleged improper publication of personal information at issue the Mercer case are as a result of the same disclosure of information event. The core factual allegations are the same. Both operative complaints assert that the California Department of Justice launched a firearms data web portal on June 27, 2022, and that users of the portal had the ability to download information about CCW permit applicants, including name, date of birth, address, gender, race, and driver's license number [Ivey FAC ¶¶ 13-14; Mercer FAC ¶¶ 21-23].

Both operative complaints rely on the report released by California Department of Justice regarding investigative findings and recommendations concerning the exposure [Ivey FAC ¶¶ 16-22; Mercer FAC ¶¶ 17, 20, 24-25, 27-28, 35, 39, 42] and both allege harm based on the Data Breach/improper disclosure of personal information [Ivey FAC ¶ 30; Mercer FAC ¶ 47]. Plaintiff also concedes that Plaintiff's Negligence cause of action is 'duplicative of Ivey.' The court finds the allegations support a finding that both the Ivey case and the Mercer case arise from the same transaction.

As to the other two Plant Insulation requirements for application of the rule of exclusive concurrent jurisdiction, based on the allegations of the Ivey FAC and the Mercer FAC, both complaints seek relief on behalf of the same putative class. Both the Ivey plaintiffs and Plaintiff in Mercer are members of each other's putative class. Also, both the Ivey FAC and the Mercer FAC seek relief against the same defendant – the California Department of Justice. Such circumstances establish that the parties are sufficiently identical so as to support abatement. Moreover, to the extent additional parties are necessary, the Los Angeles Superior Court in Ivey 'has the power to bring before it all the necessary parties' [Plant Insulation, 224 Cal.App.3d at 788]. The Los Angeles Superior Court also has 'the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings' [Plant Insulation, 224 Cal.App.3d at 788]. Plaintiff provides no argument or evidence to the contrary. To the extent any of the issues in Mercer are not resolved in Ivey, these will remain for adjudication in this case following the final disposition of Ivey.

The court is not persuaded by the arguments Plaintiff raises in opposition. Although Plaintiff attempts to differentiate the cases based on allegations and theories of intentional as opposed to negligent conduct in Mercer and based on the additional causes of action and remedies at issue in Mercer, there is no evidence that the Los Angeles Superior Court is without power to litigate such issues. As Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168 explains, Calendar No.: Event ID: TENTATIVE RULINGS

3023080 CASE NUMBER: CASE TITLE: MERCER VS BONTA [IMAGED] 37-2023-00010767-CU-MC-CTL [i]n keeping with both the practical nature of the rule, and the historically flexible remedial powers of equity, exactitude was 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. (Myers v. Superior Court, supra, 75 Cal.App.2d at p. 931.) Franklin & Franklin, 85 Cal.App.4th at 1175. See also, Plant Insulation, 224 Cal.App.3d at 788 citing Stearns v. Los Angeles City School Dist. (1966) 244 Cal.App.2d 696, 708 ['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'].

Plaintiff raises discovery issues and settlement negotiation issues but fails to provide any authority that such considerations are appropriate to an analysis of exclusive concurrent jurisdiction. As to Plaintiff's arguments regarding the timing of Defendants' discovery, the evidence before the court is that Defendants propounded discovery and deposed Plaintiff prior to Plaintiff amending the complaint to add the class action allegations. To the extent Plaintiff argues that Plaintiff's age entitles Plaintiff to priority in trial setting, Plaintiff fails to provide any authority as to the applicable analysis when Plaintiff is pursuing a class action on behalf of a class of individuals which includes individuals who do not meet the CCP § 36 age criteria for trial setting preference. Also, Plaintiff has not filed a motion for trial setting preference.

Plaintiff's reliance on the 10/02/2023 Minute Order in the Ivey case is misplaced. The Minute Orders states that Ivey and Mercer cannot be related because they are not pending in the same superior court.

Such ruling does not preclude a finding of exclusive concurrent jurisdiction – a rule that is specifically applicable to cases pending in different superior courts such as Ivey and Mercer. Plaintiff's reliance on the requirements of CCP § 430.10(c) abatement is also misplaced. As Plant Insulation explains, the narrow grounds for a CCP § 430.10(c) plea in abatement do not apply when relief is sought based on exclusive concurrent jurisdiction ['the fact that the parties in the second action are not identical does not preclude application of the rule . . . the remedies sought in the separate actions need not be precisely the same']. Plant Insulation, 224 Cal.App.3d at 788. Plaintiff also argues that he would 'opt out' if served with a notice of class action settlement in Ivey and that Plaintiff would continue to pursue this case on an individual basis. Such arguments are premature and do not negate the grounds for abatement discussed herein.

The court finds abatement of this action will promote the policy of avoiding conflicts that might arise if Los Angeles Superior Court and this court 'were free to make contradictory decisions or awards relating to the same controversy' and that abatement will also prevent confusion in the administration of justice.

Plant Insulation, 224 Cal.App.3d at 788. Under the analysis in Plant Insulation, 224 Cal.App.3d at 791-792 a stay is appropriate in this case. Accordingly, the court stays this matter until final disposition in Ivey.

The court sets a Status Conference for October 11, 2024 at 10:30am.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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