Judge: Theodore R. Howard, Case: 21-1232447, Date: 2022-11-10 Tentative Ruling

The unopposed Demurrer by Defendant Glenn M. Horan to the Plaintiff John R. Widly’s complaint is SUSTAINED IN PART and the Court orders Widly v. JCP LP, et. al. (Case No. 2021-01232447) filed 11/22/21 (“Widly 2”), stayed until such time as Widly v. Tucker Realty, et. al.(Case No. 2020-01133955) filed 2/25/20 (Widly 1), is terminated.

The Court GRANTS Horan’s Request for Judicial Notice pursuant to Evidence Code §452(d) as to the complaints filed in Widly 1 and Widly 2.

A demurrer is proper when “There is another action pending between the same parties on the same cause of action.” (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.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 CA3d 781, 789 (emphasis in original))  “The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff's primary right.” Bush v. Superior Ct. (1992) 10 Cal. App. 4th 1374, 1384)   “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. v. Fibreboard Corp. (1990) 224 Cal. App. 3d 781, 788)  “Where a demurrer is properly sustained on the ground of another action pending, the proper order is one abating further proceedings pending termination of the prior action, not an order of dismissal.”  (Franchise Tax Bd. v. Firestone Tire & Rubber Co. (1978) 87 Cal.App.3d 878, 884)

Here, it is apparent that the plaintiff is alleging a violation of the same primary right in the complaints filed in Widly 1 and Widly 2.

Court orders moving party to give notice.