Judge Randolph M. Hammock, Case Number: 24STCV18083, Date: 2024-12-19 Tentative Ruling

Judge: Randolph M. Hammock, Case: 24STCV18083, Date: 2024-12-19 Tentative Ruling

Pursuant to Defendant’s request, and without opposition, the court takes judicial notice of Exhibits 1 through 30. The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

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).)

As an initial matter, Plaintiff argues the demurrer is should be stricken because it is untimely. Defendant insists he “personally served” the Defendant “via Certified Mail” on July 29, 2024. (Opp. 4: 10-12.) Therefore, he contends, the time to demurrer to the complaint began running on that date. Plaintiff did not file the demurrer until 45-days later on October 14, 2024.

“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (CCP § 430.40(a).) Here, there is no evidence that the service on Defendant was valid. Plaintiff served the moving Defendant in the same manner he served the other Defendants, which this court previously found insufficient to confer jurisdiction over them. (See 11/14/2024 Minute Order.)

Alternatively, to the extent the demurrer is untimely, it is well-settled that a trial court has discretion to consider an untimely demurrer. (See Jackson v. Doe (2011) 192 Cal. App. 4th 742, 749.) Under the circumstances here—including the apparent absence of valid service and the absence of any prejudice to Defendant if the demurrer is heard at this time—the court exercises is discretion to consider it.

Defendant first demurrers to the entire complaint on the ground that there is another action pending between the same parties. (CCP § 430.10(c).) “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action. [Citation.] In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action. [Citation.] Where a demurrer is sustained on the ground of another action pending, the proper order is not a dismissal, but abatement of further proceedings pending termination of the first action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 787–88.) “[T]he 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.” (Id.) However, “abatement is not appropriate where the first action cannot afford the relief sought in the second.” (Laws. Title Ins. Corp. v. Superior Ct., 151 Cal. App. 3d 455, 459.) The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer. (The Rossdale Grp., LLC v. Walton (2017) 12 Cal. App. 5th 936, 943.)

Federal Court Action: In support of the plea in abatement, Defendant points to a pending federal action filed by Plaintiff in the United States District Court for the Central District of California on July 19, 2024 (the “Federal Action”). (See RJN, Exh. 30.) The Defendants include the same as those in the instant action—Orange Kangaroo, LLC, Harrison S. Won, Yoomi Won, and Yosemite Lopez—as well as additional Defendants Steven D. Silverstein, David Cunningham, Karita Robinson, and Western Progressive, LLC.

The Federal complaint is based on three allegedly fraudulent acts by Defendant that disposed Plaintiff of his property. First, on March 5, 2024, the defendants allegedly conducted “a fraudulent trustee deed upon sale,” thereby “unlawfully transferring ownership of Plaintiff’s property.” [FN 2] (Id.) Second, on May 16, 2024, the defendants “filed a fraudulent unlawful detainer action, leading to the illegal eviction of Plaintiff from his property.” (Id.) Third, on June 27, 2024, the defendants obtained a fraudulent posting order by misrepresentation, “which robbed Plaintiff of due process.” (Id.)

On these allegations, Plaintiff asserts causes of action for (1) Fraud, (2) illegal eviction, (3) violation of civil rights 42 USC § 1983, (4) violation of civil rights 42 USC § 1985, (5) violation of civil rights 42 USC § 1986, (6) 42 USC § 1981 Equal Rights Under Law, (7) RICO, (8) cancellation of written instruments under California Civil Code § 3412, (9) quiet title under California Code of Civil Procedure §§ 760.010-764.080, and (10) Civil Conspiracy. (Id.) As relief, Plaintiff seeks quiet title to the property, a declaratory judgment “to determine the rights and legal relations of the parties,” compensatory damages, punitive damages, injunctive relief, and cancellation of fraudulent instruments. (Id.)

State Court Action: Only a week after filing the Federal Court Action, Plaintiff filed the instant State Court Action on July 25, 2024. Plaintiff asserts claims against Defendants also named in the Federal Court Action: Orange Kangaroo, LLC, Harrison S. Won, Yoomi Won, and Yosemite Lopez. And like the Federal Court Action, Plaintiff alleges Defendants engaged in a “civil conspiracy” to defraud Plaintiff and steal his property. (Compl. p. 7.) In particular, Plaintiff remains focused on the May 1, 2024 trustee deed upon sale and the May 16, 2024 eviction, both of which Plaintiff alleges were fraudulent. (Id.) Plaintiff asserts causes of action for (1) quiet title, (2) fraud, (3) slander of title, (4) cancellation of instruments, and (5) declaratory judgment. As relief, Plaintiff seeks quiet title, a declaratory judgment, cancellation of instruments, compensatory damages, and punitive damages. (Id. pp. 13-14.)

Comparing the actions, it is difficult to discern any substantive differences, aside from the fact that the Federal Court Action names some additional Defendants. However, the Federal Court Action names all of the parties named in the State Court Action. The Actions are otherwise based on identical allegations, namely, the alleged scheme to dispose Plaintiff of his property.

Finally, as far as this court can tell, Plaintiff seeks the same relief in each action. Therefore, it is possible, if not likely, that a judgment in the Federal Court Action would be a complete bar to the State Court Action. (See Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1232 [“[w]here dispositive factual issues are actually litigated and resolved in the federal action, the losing party is estopped to relitigate those issues in a subsequent state action”].) Similarly, to move forward with the actions concurrently would present the real risk of conflicting rulings.

Thus, the action would appear ripe for a plea in abatement. However, the Court of Appeal has held that a plea in abatement under section 430.10(c) “does not lie” where, as here, “one [action] is in state court and the other in federal court.” (Gregg v. Superior Ct. (1987) 194 Cal. App. 3d 134, 136.) Therefore, the demurrer cannot be sustained based on a plea in abatement.

Be that as it may, the closely related doctrine of exclusive concurrent jurisdiction does apply to this matter and functions much the same as a plea in abatement. The “judge-made rule” of exclusive concurrent jurisdiction “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. [Citation.] The rule is ‘a judicial rule of priority or preference and is not jurisdictional in the traditional sense of the word,’ in that it ‘does not divest a court, which otherwise had jurisdiction of an action, of jurisdiction.’ [Citation.] Because it is a policy rule, application of the rule depends upon the balancing of countervailing policies.” (Travelers Indem. Co. v. Lara (2022) 84 Cal. App. 5th 1119.) “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 a statutory plea of abatement do not exist. [Citation.] 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.” (Plant Insulation Co., supra, 224 Cal. App. 3d at 788.)

Here, deciding the claims in this court—particularly that for quiet title, which appears to form the crux of both actions—presents the real risk of conflicting rulings. And as noted, it is very likely that a judgment in the Federal Court Action could have preclusive effect in this suit, as they involve the same primary rights. Thus, staying the State Court Action during the resolution of the Federal Court Action is supported by the parties’ rights, interests, and judicial economy.

Judge of the Superior Court

FN 1 - Plaintiff also filed an unauthorized “Reply to Defendant’s Reply.”

FN 2 - As to the moving Defendant Yosemite Lopez, specifically, Plaintiff alleges Lopez “orchestrated the fraudulent trustee deed upon sale on March 5, 2024” and “played a central role in the fraudulent scheme.” (Id.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.