Judge Olivia Rosales, Case 19NWCV00244 2022-10-06 Tentative Ruling

Judge: Olivia Rosales, Case: 19NWCV00244, Date: 2022-10-06 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 19NWCV00244 Hearing Date: October 6, 2022 Dept: SEC

VIVERA PHARMACEUTICALS, INC. v. BLAINE HOLDING & DEVELOPMENT, LLC

CASE NO.: 19NWCV00244

HEARING: 10/06/22

TENTATIVE RULING

Defendants’ ROBERT C. BLAINE; BLAINE HOLDING & DEVELOPMENT, LLC; and BLAINE LABORATIRES, INC.’s Demurrer to Plaintiff’s Third Amended Complaint is SUSTAINED. This action (Case No. 19NWCV00244) is STAYED in abatement pending disposition of Vivera’s claim in the earlier-filed breach of contract action (Case No. 19STCV05281).

Moving Party to give Notice.

Defendants’ Request for Judicial Notice is GRANTED. (Cal. Ev. Code §452.)

On March 15, 2019, VIVERA PHARMACEUTICALS, INC. (“Vivera”) filed a complaint against BLAINE HOLDING & DEVELOPMENT, LLC (“Blaine Holding”) for (1) Forcible Entry; and (2) Forcible Detainer (“Forcible Detainer Action”) (Case No. 19NWCV00244). Vivera sought possession of a portion of leased property at 11037 Lockport Place (“Building One”) and 1110 Greenstone Avenue (“Warehouse”) (collectively “Subject Premises”) and alleged that Blaine Holding engaged in unlawful self-help actions by changing the locks on the Subject Premises. On April 19, 2019, summary judgment was granted against Blaine Holding, finding that Vivera was entitled to possession of the Subject Premises. On August 12, 2019, the Court granted BLAINE LABORATORIES, INC.’s (“Blaine Labs”) Claim of Possession, and expressly stated “It is…clear that Blaine Labs was not named in the judgment of possession. The Court’s judgment specifically stated that the Court has not adjudicated the rights or interests of Blaine Labs….” (Order, 08/12/19.)

On December 6, 2019, Vivera filed its Second Amended Complaint (“SAC”) against Defendants BLAINE HOLDING & DEVELOPMENT, LLC; BLAINE LABORATORIES, INC.; and DR. ROBERT C. BLAINE. The SAC alleges, in pertinent part, “This action arises out of a certain Commercial Lease Agreement effective June 8, 2018 (the ‘Lease’), whereby defendant Blaine Holding & Development, LLC…leased Vivera the following real property: (1) 21,412 square feet (SF) located at 11037 Lockport Place, Santa Fe Springs, California 90670 (‘Building One’); (2) 14,670 square feet (SF) of the North warehouse space located at 11100 Greenstone Avenue, Santa Fe Springs, California, 90670 (‘Building Two’); and (3) 11,450 square feet (SF) South warehouse space located at 11100 Greenstone Avenue, Santa Fe Springs, California, 90670 (the ‘Warehouse,’ and with Building One and Building Two, collectively referred to herein as the ‘Premises’). This action arises out of the unlawful interference with Vivera’s right to peaceful possession of the Premises, as defendants Blaine Holding, Blaine Laboratories, Inc. and Dr. Robert C. Blaine…unlawfully changed the locks to the Premises to prevent Vivera’s possession.” (SAC ¶1.) The SAC asserted claims for: (1) Forcible Entry; and (2) Forcible Detainer.

On January 27, 2022, Vivera’s Motion for Leave to File a Third Amended Complaint (“TAC”), wherein Vivera sought leave to convert the forcible detainer action into a breach of contract and tortious interference action, was granted. The operative TAC, filed on February 9, 2022, alleges, in pertinent part: “This action arises out of the unlawful interference with Vivera’s right to peaceful possession of the Premises and breach of the Lease, as defendants Blaine Holding, Blaine Laboratories, Inc. (‘Blaine Labs’), and Dr. Robert C. Blaine (‘Blaine,’ and collectively ‘Defendants’) unlawfully changed the locks to the Premises to prevent Vivera’s possession.” (TAC ¶1.)

The TAC asserts the following causes of action: (1) Breach of Contract (against Blaine Holding); (2) Breach of the Covenant of Quiet Enjoyment (against Blaine Holding); and (3) Tortious Interference with Contract (against Blaine Labs and Blaine).

Defendants now argue that Vivera’s TAC is subject to demurrer under CCP § 430.10(c) because there is another action pending between the same parties on the same causes of action in the earlier filed (unrelated) Case No. 19STCV05281 (“contract action”). Defendants additionally argue that the third cause of action is barred by the statute of limitations.

The operative SAC in the contract action asserts a tenth cause of action for intentional interference with contractual relations (against Blaine and Blaine Labs, etc.); a thirteenth cause of action for breach of contract (against Blaine and Blaine Holding); and a fourteenth cause of action for breach of the implied covenant of quiet enjoyment (against Blaine and Blaine Holding). (RJN Ex. 1, pgs. 28, 31, and 32.)

The Court notes that a Notice of Related Case seeking to relate the instant action with the contract action was filed in the contract action on January 17, 2020. The Notice of Related Case was denied, and the cases at issue here have been deemed “not related.” (See 01/17/20 Ntc. of Ruling).

A special demurrer to a complaint may be brought on the ground that another action is pending between the same parties on the same causes of action. (CCP § 430.10(c); see also People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770 [“plea in abatement”].) The other pending action must involve the same parties in the same relationship, i.e., as plaintiff or defendant (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789), and must involve the identical cause of action in both suits such that a judgment in the first would be res judicata on the claim in the second (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384). “Under the statutory plea in abatement, ‘[t]he pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action.’ A statutory plea in abatement requires that the prior pending action be ‘between the same parties on the same cause of action.’” (emphasis added.) (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.)

The demurrer on the basis of another action pending is SUSTAINED as to the first and second causes of action. Vivera’s first and second claims in the instant action involve the same exact parties and same exact causes of action as the thirteenth and fourteenth causes of action in the contract action.

However, the demurrer to the third cause of action is not sustained pursuant to CCP §430.10(c)—the causes of action are not identical. The parties do not dispute that the facts giving rise to the tortious interference with contractual relations claim arises out Blaine and Blaine Labs’ purported interference with Vivera’s Lease with Blaine Holding. The facts underlying the tenth cause of action in the contract action for intentional interference with contractual relations is based on Defendants’ alleged disruption of sales with third party customers. The third cause of action is not based on another action pending between the same parties on the same cause of action. The requirements for abatement are not met and the demurrer under CCP §430.10(c) is OVERRULED as to the third cause of action.

For the first time in Reply, Defendants alternatively argue that a stay is mandatory because the elements of exclusive concurrent jurisdiction are satisfied. “[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive respondent of an opportunity to counter the argument. [Citations.]” (Jay v. Mahaffey (2013) 128 Cal.App.4th 1522, 1538.) In the interests of justice and judicial efficiency, this matter was continued from September 8, 2022 to October 6, 2022 in order to ensure that neither party is deprived from its ability to respond to potentially dispositive arguments. Consequently, supplemental briefs were filed on September 22, 2022 and September 29, 2022. The supplemental briefs were reviewed and considered, and the issue of exclusive concurrent jurisdiction is now properly before this Court.

Although 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 statutory plea of abatement do not exist. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d. 781, 788.) “The established rule of exclusive concurrent jurisdiction provides that where two or more courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all other courts. In essence, the rule renders concurrent jurisdiction exclusive with the first court…. [E]xactitude is 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. Instead, it is sufficient for the exercise of equitable jurisdiction that the issue in both actions is the same and arises out of the same transaction or events. (County v. Siskiyou v. Sup. Ct. (2013) 217 Cal.App.4th 83, 89-90.)

Here, there is near complete overlap between the causes of action in the instant action and the contract action. The subject matter of the two complaints is identical, and the relief sought by Vivera in the instant action can be obtained in the contract action—there are no issues presented in the instant action that cannot be determined by the contract action. Moreover, the rule of exclusive concurrent jurisdiction is properly raised by demurrer or answer and requires a stay of the action….” (People ex. rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 765.)

The demurrer to the third cause of action pursuant to the rule of exclusive concurrent jurisdiction is SUSTAINED.

This action (Case No. 19NWCV00244) is STAYED in abatement pending disposition of Vivera’s claim in the contract action (Case No. 19STCV05281).

Based on the ruling above, the Court declines to address Defendants’ arguments pertaining to whether the third cause of action is barred by the statute of limitations.