Judge: Margaret L. Oldendorf, Case: 22AHCV00173, Date: 2022-12-15 Tentative Ruling

Case Number: 22AHCV00173    Hearing Date: December 15, 2022    Dept: P

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

MUI PHUNG LIENG, AN INDIVIDUAL, MUI PHUNG LIENG IN THE CAPACITY AS SUCCESSOR TRUSTEE OF THE RED LIENG LIVING TRUST DATED 2/23/21,

 

                                            Plaintiff,

vs.

 

DON JACKIMOWICZ, AN INDIVIDUAL, AND DOES 1 THROUGH 20, INCLUSIVE,

 

                                            Defendants.

 

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Case No.: 22AHCV00173

 

[TENTATIVE] ORDER OVERRULING DEFENDANT’S DEMURRER

 

Date:   December 15, 2022

Time:  8:30 a.m.

Dept.:  P

 

            I.         INTRODUCTION

            This case and a second case pending before Dept. 76 of the Mosk Courthouse concern ownership of real property located at 208 Highland Place in Monrovia. In the Dept. 76 action (LASC No. 22STCV009697), Donald Jackimowicz alleges that before his wife of 25 years (Red Lieng) passed away from metastatic breast cancer, her family (and especially her sister Mui Phung Lieng) exerted undue influence on her such that she altered her estate plans in their favor and to the exclusion of her husband. In this action, Mui Phung Lieng, as trustee of her sister’s trust, sues for partition of the real property Red Lieng owned with her husband.

            For ease of reference (and with no disrespect intended) these parties are referred to herein as Don, Red, and Mui.

            Don responded to this partition action by filing a demurrer, arguing the action should be abated per Code Civ. Proc. §430.10(c). That demurrer was overruled because the parties and causes of action were not identical. The September 6, 2022 Minute Order, issued by Judge Lofton in Dept. X in Alhambra, concludes: “Defendant’s demurrer is overruled without prejudice. 30 DAYS to answer. Defendant’s request for an order of abatement is denied. Both parties are ordered to immediately file a notice of related case in 22STCV009697.” The minute order also granted Don’s motion to expunge the lis pendens for failure to properly serve it and awarded Don fees as the prevailing party on that motion.

            Before the Court is a new demurrer by Don to this partition action, again arguing for abatement. The demurrer is procedurally improper, and on that basis it is overruled. Mui’s request for Code Civ. Proc. §128.5 sanctions is denied.

            However, in light of the circumstances the Court sets an OSC re: why this action should not be stayed pending the outcome of Don’s fraudulent conveyance claim in the Dept. 76 action.

 

II.        LEGAL STANDARD

Code Civ. Proc. §430.10(c) provides for a demurrer on the basis that there is another action pending between the parties on the same cause of action.

Where a demurrer is sustained with leave to amend as to some causes of action and overruled without prejudice as to others, as to any amended pleading a demurring party may renew the demurrer argument that was previously overruled. Clausing v. San Francisco Unified School District (1990) 221 Cal.App.3d 1224, 1232.

California Rules of Court, rule 3.1320(g) provides that when a demurrer is overruled, “unless otherwise ordered, leave to answer or amend within 10 days is deemed granted.”

 

            III.      ANALYSIS

            Don’s current demurrer is fatally defective. When a demurrer has been overruled, the losing party has essentially two choices: seek a writ or file a motion for reconsideration with the trial court issuing the order. See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022), ¶7:152- ¶7:155.4. In this case, Don did neither.  Citing Code Civ. Proc. §1008 in the closing paragraph of his demurrer, and urging that the order declining to relate these actions is a new fact entitling Don to reconsideration, does not transform this demurrer into a motion for reconsideration. This motion was not filed within 10 days of the prior ruling, and it does not meet the other procedural requirements for a motion for reconsideration. What is more, an application for reconsideration must be made before the judge who issued the challenged order.

            There is no legal basis for simply re-demurring to the same pleading, and Don cites none. This is especially so since the September 6, 2022 Minute Order orders Don to answer. The order generously granted him 30 days rather than the default 10 days that the Rules of Court provide.

            The demurrer seems to imply that it is based on “new” legal grounds, namely, the doctrine of exclusive concurrent jurisdiction. Even if this were a new basis there is no procedural vehicle for successive demurrers. But, this is not a new argument as the original demurrer also mentions exclusive concurrent jurisdiction. For all these reasons, the demurrer must be overruled.

            Mui’s opposition argument that the second demurrer amounts to “res judicata” is not well taken. For res judicata to apply there must have been a final judgment on the merits. Ronald F. v. State Department of Developmental Services (2017) 8 Cal.App.5th 84, 93. And, the case Mui cites in support of her res judicata argument does not concern res judicata but involves splitting causes of action. Wulfjen v. Dolton (1944) 24 Cal.2d 891.

            Despite the demurrer being procedurally improper, the Court takes judicial notice of the Dept. 76 action, as Don requests. The Court is concerned with the fact that the Dept. 76 action contains a claim for fraudulent transfer of real property based on undue influence (Complaint at ¶¶28, 39, 42, 43, 103, 105, 111, 112, and others); and prays for the court to award title exclusively in Don’s name (Prayer, ¶9). In other words, legal title to the real property is at issue in both actions.

Because of these circumstances, the Court is considering a stay of this partition action until the title issues are resolved in the Department 76 case. “‘[A] court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.’ (People v. Bell (1984) 159 Cal.App.3d 323, 329, 205 Cal.Rptr. 568.) As the court in Landis v. North American Co. (1936) 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 explained, ‘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.’” OTO L.L.C. v. Kho (2019) 8 Cal.5th 111, 141; St. Paul Fire and Marine Insurance Company v. AmerisourceBergen Corporation (2022) 80 Cal.App.5th 1, 13.

            Mui’s request for monetary sanctions pursuant to Code Civ. Proc. §128.5 is denied. Although procedurally improper, the Court declines to find that this demurrer was made in bad faith, that it was frivolous, or that it was solely intended to cause unnecessary delay.

 

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IV.      CONCLUSION AND ORDER

            The demurrer is overruled. Don is granted 5 days to file an answer only.

            An order to show cause why this action should not be stayed pending resolution of the Dept. 76 action is set for ___________________________________. Simultaneous briefs of no more than 7 pages are to be filed and served by __________________.  

            Plaintiff is ordered to give notice.

           

 

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT