I. BACKGROUND 

Plaintiff Gaurav Pahwa (“Plaintiff” or “Pahwa”) filed this action against defendants L.A. Models, Inc., Heinz Holba, Karine Roman and Does 1-100 arising from his employment with L.A. Models, Inc. The complaint sets forth seven causes of action for (1) Wrongful Constructive Termination In Violation of Public Policy, (2) Harassment and Retaliation in Violation of The Fair Employment And Housing Act, (3) Failure to Prevent Harassment And Retaliation In Violation of The Fair Employment And Housing Act, (4) Intentional Infliction of Emotional Distress, (5) Labor Code § 210 Penalties for Failure to Timely Pay All Wages Due on Designated Paydays, (6) Failure to Furnish Accurate Itemized Wage Statements, and (7) Unfair Competition. 

Defendants L.A. Models, Inc. (“L.A. Models”), Heinz Holba (“Holba”), Karine Roman (“Roman”) (collectively, “Defendants”) now demur to the complaint seeking to abate the action pursuant to a statutory plea in abatement. Defendants argue they filed an earlier action in federal court that involves the same parties and facts as to the validity of the employment agreement, and that there is a substantial risk for inconsistent rulings. Defendants further move to strike portions of Plaintiff’s complaint on the grounds of relevance and falsity. 

Plaintiff, in opposition, argues mandatory abatement is not applicable because the actions are pending in courts of different jurisdiction. Plaintiff contends his causes of action are grounded in alleged violations of California state law, and that his FEHA claims is the primary concern of the complaint, and that the validity of his employment agreement for the wage and hour violations is a minor part of the case. As to the motion to strike, Plaintiff argues that the allegations re pertinent to the legal issues. 

Defendants, in reply, reassert that the claims between this action and the Federal Action are intertwined. Defendants contend that trial courts have discretion to stay an action when a federal action has been filed covering the same subject matter, and that the United States Court for the Central District of California is not incapable of applying California law to the matters before it. Defendants reassert that the complaint contains immaterial allegations for disparagement purposes. 

II. REQUEST FOR JUDICIAL NOTICE 

Defendants request the Court to take judicial notice of (1) the complaint filed in United States District Court in Central District of California (Case No.: 2:24-cv-4107), and (2) Plaintiff’s complaint in this action. 

The requests are GRANTED. (Cal. Evid. Code § 452(d).) 

III. PROCEDURAL REQUIREMENTS 

Before filing a demurrer and/or motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41(a); 435.5(a).) 

Defense counsel declares he telephonically met and conferred with Plaintiff’s counsel regarding the demurrer and motion to strike, and the parties were unable to come to an agreement. (Dem. Wootton Decl. ¶ 9.) The Court finds Defendants fulfilled the meet and confer requirement prior to filing the demurrer and motion to strike.¿¿¿¿ 

IV. DEMURRER 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)¿ 

Defendants seek to stay the action on the grounds that Defendants first filed an against Plaintiff in federal court. Code of Civil Procedure section 430.10, subdivision (c) allows demurrer to be sustained when “[t]here is another action pending between the same parties on the same cause of action.” This statute appears to be a codification of the common law principle of plea in abatement. (See Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787.) The statutory plea in abatement requires (1) that both actions are pending in the courts of the same state (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575); (2) “absolute identity of parties” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788); and (3) identical cause of action in both suits, so that a judgment in the first action would be res judicata on the claim in the present lawsuit (Bush v. Sup.Ct. (Rains) (1992) 10 Cal.App.4th 1374, 1384). 

“An order of abatement issues as a matter of right [i.e., mandatory] not as a matter of discretion [i.e., discretionary] where the conditions for its issuance exist. [Citation.] This is the case whether a right to abatement exists under the statutory plea in abatement [citation] or the judicial rule of exclusive concurrent jurisdiction [citation].” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770-771; see also Tinney v. Tinney (1963) 211 Cal.App.2d 548, 552 [“Abatement is available as a matter of right only where the following two conditions are met: (1) that both suits are predicated on the same cause of action, and (2) that both suits are pending in the same jurisdiction.”].) “Where abatement is required, the second action should be stayed, not dismissed.” (People ex rel. Garmendi, supra, 20 Cal.App.4th 771.)¿ 

There are various formulations of what constitutes the “same cause of action” under section 430.10. The Second District stated that the test is “whether a final judgment in the first action could be pleaded in bar as a former adjudication.” (Kamei v. Kumamoto (1967) 256 Cal.App.2d 381, 384.) More recently, the Third District stated that “the analysis focuses on identifying a primary right of the plaintiff and the defendant's breach of a corresponding primary duty” while simultaneously observing that the issue of what constitutes a single cause of action is a “highly abstract formulation” that “no one really understands.” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 854, 856.) The First District put it simply: abatement of the second action is appropriate when “the court determines there is another action pending raising substantially the same issues between the same parties.” (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.)¿ 

The Court reviews the two judicially noticed complaints. 

On May 16, 2024, plaintiffs LA Models, NYC Management Group, Inc., Holba, and Roman filed an action (“the Federal Action”) against defendants Guarav Pahwa and Ganexa LLC. Neither NYC Management Group, Inc. nor Ganexa LLC are parties to the current action. The basis for the federal action against the named defendants there is grounded in allegations that Pahwa used inside information to perpetrate fraud. More particularly, the federal complaint alleges that Pahwa misrepresented material facts, which resulted in a revised employment agreement that allegedly unjustifiably benefited Pahwa. The federal complaint further alleges that Pahwa used confidential information for secret purchases of interest in a company, and induced others to sell the shares at a price lower than the fair market value. The complaint sets forth eight claims for (1) Violation of Rule 10b-5 of The Securities Exchange Act, (2) Fraud in Factum, (3) Fraudulent Concealment, (4) Violation of California Welfare and Institutions Code §15610.30 as to Employment Agreement, (5) Violation of California Welfare and Institutions Code §15610.30 as to Purchase of Securities, (6) Breach of Fiduciary Duty, (7) Breach of Fiduciary Duty, and (8) Declaratory Relief. 

On May 28, 2024, Pahwa as the Plaintiff in this current action filed a complaint against LA Models, Holba and Roman arising from his employment with La Models. The primary allegations of Plaintiff’s complaint concern his resignation from the company due to a hostile work environment created by Roman, which resulted in Holba’s alleged retaliation against Plaintiff through litigation in federal court against Plaintiff. As a result of intolerable working conditions, such as discriminatory commentary, the complaint alleges Plaintiff was constructively terminated. The complaint sets forth eight causes of action grounded in allegations of a hostile work environment, namely (1) Wrongful Constructive Termination In Violation of Public Policy, (2) Harassment and Retaliation in Violation of The Fair Employment And Housing Act, (3) Failure to Prevent Harassment And Retaliation In Violation of The Fair Employment And Housing Act, (4) Intentional Infliction of Emotional Distress, (5) Labor Code § 210 Penalties for Failure to Timely Pay All Wages Due on Designated Paydays, (6) Failure to Furnish Accurate Itemized Wage Statements, and (7) Unfair Competition. 

Plaintiff’s complaint references the Federal Action by alleging that it is “bogus”, but these allegations are irrelevant to Plaintiff’s causes have action and will be struck pursuant to Defendants’ motion to strike. Here, a side-by-side comparison of the two complaints do not demonstrate identicalness of the same causes of action. (CCP § 430.10 (c).) Defendants’ Federal Action is premised on claims of fraud and use of the company’s confidential information for purchases, whereas Plaintiff’s action is premised on the specific working environment during his employment leading to his alleged constructive termination. Defendants argue that the validity of Plaintiff’s Employment Agreement is the subject of the second, third, fourth, sixth and eighth counts asserted in the Federal Action; however, the validity of the Employment Agreement does not have any bearing on Plaintiff’s FEHA discrimination and harassment claims.  

Because both suits are not predicated on the same causes of action, Defendants’ demurrer on the grounds of plea in abatement is overruled. 

Defendants seek to stay the proceedings in this case under the doctrine of exclusive concurrent jurisdiction and under the court’s inherent authority. 

An issue of exclusive concurrent jurisdiction is properly raised on demurrer. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771.) The rule of exclusive concurrent jurisdiction “is a judicial rule of priority or preference and does not divest a court, which otherwise has jurisdiction of an action, of jurisdiction. The rule is similar to an affirmative defense and the remedy for its applicability is a stay of the second action.” (Id. at 769.) Thus, where two superior courts have concurrent jurisdiction over the subject matter and all parties involved in the 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.’” 

The rule of exclusive concurrent jurisdiction is similar in effect to a statutory plea in abatement but is more expansive. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788.) The rule does not require absolute identity of parties and causes of action sought in the initial and subsequent actions. (Ibid.) The remedies sought in the second action need not be precisely the same as asserted in the first action “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.” (Ibid.) 

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. (BBBB Bonding Corp. v. Caldwell (2021) 73 Cal.App.5th 349, 374 (BBBB Bonding Corp.).) Certain authorities state that the exclusive concurrent jurisdiction rule is mandatory (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460), whereas others state that, as a policy rule, countervailing policy concerns may render the rule inapplicable. (Childs v. Eltinge (1973) 29 Cal.App.3d 843, 854–855; Garamendi, supra, 20 Cal.App.4th at pp. 770, 775; BBBB Bonding Corp., supra, 73 Cal.App.5th at p. 374.)  

Under this more expansive interpretation to prevent multiplicity of suits arising from the same transaction, the court is inclined to agree with Defendants that a stay should be applied. The Federal Action was the first to assume jurisdiction over the subject matter regarding Plaintiff’s employment with Defendants and the issues arising from it. The rule of exclusive concurrent jurisdiction does not require the same causes of action; rather, the first and second actions must arise from the same transaction. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) 

Defendants’ demurrer on the grounds of exclusive concurrent jurisdiction is sustained. The Court need not reach Plaintiff’s arguments concerning forum non conveniens. 

IV. MOTION TO STRIKE 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿ The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subd. (b).)¿¿¿ 

An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.¿ (Code Civ. Proc., § 431.10, subd. (b).)¿The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿(Code Civ. Proc., § 437.) 

Defendants seek to strike paragraphs 3, Subheading A at 4:1-2, 15, 16, Subheading B at 4:20-21, Subheading B.1. at 4:23, 17, Subheading B.2 at 5:7-8, 18, 19, 20, Subheading B.3. at 6:14-16, 21, 22, 23, 24, Subheading D at 8:6, 27, 28, 29, 30, Subheading E at 9:11, 31, 32, 33, 34, portions of 36 at 11:23-28 & 12:1-2, Subheading F.3. at 12:12-13, 38, Subheading G at 14:1-2, 43, 44, and 45 of the complaint on the grounds that the allegations are irrelevant, intended to disparage Defendants, and that it has no nexus to any of Plaintiff’s alleged causes of action. 

The Court agrees that Plaintiff’s complaint contains irrelevant allegations because the behaviors or attitudes alleged are not alleged to be directed toward Plaintiff. Whether it be claims of harassment, discrimination, or hostile work environment, a prima facie claim requires that the conduct be directed at the plaintiff. 

The following are GRANTED: 15, 16, 17, 18, 19, 20, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, portions of 36 at 11:23-28 and 12:1-2, 38, 43, 44, 45, and Subheadings A at 4:1-2, Subheading B at 4:20-21, Subheading B.1. at 4:23, Subheading B.2 at 5:7-8, Subheading D at 8:6, Subheading E at 9:11, Subheading F.3. at 12:12-13, and Subheading G at 14:1-2. 

The following are GRANTED IN PART: 21 [all except the allegation that “Plaintiff tendered his resignation on November 13, 2023”]. 

The following are DENIED: 3, 22, Subheading B.3. at 6:14-16, and Subheading D at 8:6. 

V. CONCLUSION 

Defendants’ demurrer to stay the action is SUSTAINED. The action is STAYED pending resolution of the Federal Action. 

Defendants’ motion to strike the complaint is GRANTED IN PART without leave to amend as to (1) paragraphs 15, 16, 17, 18, 19, 20, 21 [all except the allegation that “Plaintiff tendered his resignation on November 13, 2023”], 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, portions of 36 at 11:23-28 and 12:1-2, 38, 43, 44, 45, and (2) Subheading B.2 at 5:7-8, Subheading D at 8:6, Subheading E at 9:11, Subheading F.3. at 12:12-13, and Subheading G at 14:1-2. 

Moving Party is ordered to give notice. 

DATED: September 25, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

PLEASE TAKE NOTICE: