Judge Richard S. Whitney, Case Number: 37-2019-00051509-CU-OR-CTL, Date: 2024-05-31 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2019-00051509-CU-OR-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2019-00051509-CU-OR-CTL US CONSTRUCTION LAW VS LINCH [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF US CONSTRUCTION LAW'S MOTION TO RELATE, STAY, CONSOLIDATE AND TRANSFER AND REQUEST FOR OSC RE: MONETARY SANCTIONS OF 19,789.71 AGAINST GOLAN AND COUNSEL is GRANTED, in part, and DENIED, in part.

The plaintiffs Jeremy Golan and Tammy Golan ('Judgment Creditors') in the purportedly related matter oppose Plaintiff US CONSTRUCTION LAW's ('Plaintiff') motion. Plaintiff first argues the rule of exclusive concurrent jurisdiction applies. '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.'' (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–87 [Citation omitted].) A court has jurisdiction over the first and second action if they both arise out of the same transaction. (Id. at 789.) 'It is of little moment that the remedies sought in the two actions are not 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 (1973) 29 Cal.App.3d 843, 850.) '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.' (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769–770 citing Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781.) Unlike the statutory plea [in] 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.

[Citations.] 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.'' (Garamendi, supra, 20 Cal.App.4th at p. 770, 25 Cal.Rptr.2d 192.) (Shaw v. Superior Court of Contra Costa County (2022) 78 Cal.App.5th 245, 256.) 'Where the exclusive concurrent jurisdiction rule applies, the second action should be stayed.' (Id. at 257.) Judgment Creditors note that the parties in the two actions are different, as is some of the subject matter. However, there is an overlap of parties, and the same property is the subject in both actions. The public policy of avoiding conflicts between courts will be served by staying the later-filed action.

Judgment Creditors do not demonstrate that this Court does not have the power to bring before it all the necessary parties nor that it could not grant all necessary relief. The Court finds the rule of exclusive concurrent jurisdiction applies such that the second-filed action should be stayed. Plaintiff also requests Calendar No.: Event ID: TENTATIVE RULINGS

3137150 71 CASE NUMBER: CASE TITLE: US CONSTRUCTION LAW VS LINCH [IMAGED] 37-2019-00051509-CU-OR-CTL the action be consolidated but does not cite any authority that supports the rule of exclusive concurrent jurisdiction mandates the actions be consolidated. The Court finds it would not be appropriate to consolidate the matters based on the rule of exclusive concurrent jurisdiction.

Plaintiff also asserts the other action should be enjoined and stayed because necessary and indispensable parties were not included in the other action. Plaintiffs fail to cite any authority that the failure to name indispensable parties in another action permits a court in the first-filed action to stay the other action. 'Failure to join an indispensable party is a ground for demurrer.' (Code Civ. Proc., §§ 430.10, subd. (d); 389.).' (Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 791.) Plaintiff is not demurring to the complaint with which he takes issue. Whether or not Judgment Creditors failed to include necessary and indispensable parties, the Court will stay the other action based on the rule of exclusive concurrent jurisdiction.

Defendants also cites California Rules of Court, Rule 3.300, which, inter alia, imposes a duty on a party in a civil action who knows or learns that the action or proceeding is related to another action or proceeding pending 'must serve and file a Notice of Related Case.' (CA ST CIVIL RULES Rule 3.300(b).) Judgment Creditors failed to comply with California Rules of Court, Rule 3.300. Plaintiff filed a notice of related cases on February 7, 2024. Under California Rules of Court, Rule 3.300(h)(2), which applies when the related cases are pending in different superior courts, 'the judge to whom the earliest filed case is assigned may confer informally with the parties and with the judges to whom each related case is assigned, to determine the feasibility and desirability of joint discovery orders and other informal or formal means of coordinating proceedings in the cases.' Plaintiff did not request this occur. This informal conferring should occur.

Plaintiff also cites California Rules of Court, Rule 3.500, which addresses '[t]ransfer and consolidation of noncomplex common-issue actions filed in different courts.' 'This rule applies when a motion under Code of Civil Procedure section 403 is filed requesting transfer and consolidation of noncomplex cases involving a common issue of fact or law filed in different courts.' (CA ST CIVIL RULES Rule 3.500(a).) 'A party that intends to file a motion under Code of Civil Procedure section 403 must first make a good-faith effort to obtain agreement of all parties to each case to the proposed transfer and consolidation.' (CA ST CIVIL RULES Rule 3.500(b).) CCP section 403 provides, in part: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action.

(Code Civ. Proc., § 403.) CCP section 404 provides, in part: When civil actions sharing a common question of fact or law are pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council, by the presiding judge of any such court, or by any party to one of the actions after obtaining permission from the presiding judge, or by all of the parties plaintiff or defendant in any such action. A petition for coordination, or a motion for permission to submit a petition, shall be supported by a declaration stating facts showing that the actions are complex, as defined by the Judicial Council and that the actions meet the standards specified in Section 404.1.

(Code Civ. Proc., § 404.) CCP section 404.1 provides: Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing Calendar No.: Event ID: TENTATIVE RULINGS

3137150 71 CASE NUMBER: CASE TITLE: US CONSTRUCTION LAW VS LINCH [IMAGED] 37-2019-00051509-CU-OR-CTL all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.

(Code Civ. Proc., § 404.1.) The Court finds Plaintiff has not demonstrated compliance with California Rules of Court, Rule 3.500 and CCP section 403. Plaintiff does not even assert the actions are non-complex. Plaintiff's requests as to transfer and/or consolidation are denied. Plaintiff is encouraged to meet and confer, in good faith, with counsel. Further, this Court will informally confer with the other court and the parties 'to determine the feasibility and desirability of joint discovery orders and other informal or formal means of coordinating proceedings in the cases.' (CA ST CIVIL RULES Rule 3.300(h)(2).) The Court agrees Plaintiff's counsel continued inflammatory language and accusations have become tiresome. The Court admonishes Plaintiff's counsel to act more professionally. As to Plaintiff's request for sanctions, they are denied. Plaintiff did not demonstrate good faith attempts to meet and confer, Plaintiff did not provide a safe harbor period, and Plaintiff did not file a separate motion as is required under CCP sections 128.5 and 128.7.

As discussed above, the motion is granted, in part, and denied, in part. The motion is granted as to the request to stay the other matter. The motion is denied as to all other requests.

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