Judge: Upinder S. Kalra, Case: 23STCV10724, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV10724    Hearing Date: October 18, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   October 18, 2023                                           

CASE NAME:           Rhayeka C. Stewart v. Eric Robbins

CASE NO.:                23STCV10724

MOTION TO DISMISS FOR LACK OF JURISDICTION

MOVING PARTY:  Defendant Eric Robbins

RESPONDING PARTY(S): Plaintiff Rhayeka C. Stewart

REQUESTED RELIEF:

1.      An order dismissing this action.

TENTATIVE RULING:

1.      Motion to Dismiss for Lack of Jurisdiction is DENIED. The action is STAYED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Rhayeka C. Stewart (Plaintiff) filed a Complaint on July 21, 2023 against Defendant Eric Robbins, an individual and Successor Trustee of the Barbara Jean Powell Trust, Dated March 22, 2007 (Defendant). The Complaint has seven causes of action for: (1) Order Invalidating Purported Amendment to Trust Based on Lack of Capacity, Undue Influence, and Fraud; (2) Elder Abuse; (3) Conversion; (4) Unjust Enrichment; (5) Recovery of Personal Property; (6) Declaratory Relief and Constructive Trust; and (7) Cancellation of Instrument.[1]

According to the Complaint, Plaintiff is the niece of decedent Barbara J. Powell (Decedent) and a rightful beneficiary of the Barbara J. Powell Trust dated March 22, 2007. Plaintiff alleges that Defendant used undue influence over Decedent to prepare and execute an amendment to the Trust that benefited him.

Defendant timely filed the instant motion on July 21, 2023.

Plaintiff filed timely an opposition on October 3, 2023.

Defendant timely filed a reply on October 6, 2023.

ANALYSIS:

Procedural Issues – Failure to File a Demurrer

Under California Code of Civil Procedure (CCP) § 430.10(c), a defendant may seek the abatement of an action by demurrer when “there is another action pending between the same parties on the same cause of action.”  (See People ex rel. Garamendi v. Am. Autoplan (1993) 20 Cal.App.4th 760, 770 (Garamendi) [“Under the statutory plea in abatement the 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”]; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 192 [“an objection to a complaint on the basis that a substantially similar lawsuit is pending is properly raised by demurrer provided the defect appears on the face of the pleading or from judicially noticed facts”].)

A demurrer is also the proper method of seeking dismissal or stay of a subsequently filed action based on the rule of exclusive concurrent jurisdiction.  (See Garamendi, supra, at p. 771 [“Since the rule of exclusive concurrent jurisdiction and the statutory plea in abatement are mandatory and not discretionary judicial actions, these issues should be raised by demurrer where the issue appears on the face of the complaint and by answer where factual issues must be resolved”].)  Mandatory actions of the trial court should be raised by demurrer or answer; discretionary actions should be raised by appropriate motion.  (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.)  Because the rule of exclusive concurrent jurisdiction is a mandatory and not discretionary judicial action, these issues should be raised by demurrer where the issue appears on the face of the complaint and by answer where factual issues must be resolved.  (Ibid.)

If not raised by demurrer (or answer), objection on the grounds of another action pending is deemed waived.  (Code Civ. Proc., § 430.80(a).) 

Here, Defendant filed a Motion to Dismiss for Lack of Jurisdiction but relies exclusively on case authority that refers to abatement actions. (See, e.g., California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104; Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455; Plant Insulation Co. v. Fireboard Corp. (1990) 224 Cal.App.3d 781; Wulfjen v. Dolton (1944) 24 Cal.2d 891.)[2]  Without directly citing statutory authority to support his position, the court can only infer from the cited case law that Defendant intended to file a demurrer under CCP § 430.10(c).[3]

Plaintiff did file an Opposition to this motion and apparently sought to challenge the merits.

Accordingly, the court will consider the merits of Defendant’s motion.

Exclusive Concurrent Jurisdiction

“It is clearly established that a party may not split up a single cause of action and make it the basis of separate suis, and in such case the first action may be pleaded in abatement of any subsequent suit on the same claim.” (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894. (Wulfjen).)[4] “The rule against splitting a cause of action is based upon two reasons: (1) That the defendant should be protected against vexatious litigation; and (2) that it is against public policy to permit litigants to consume the time of the courts by relitigating matters already judicially determined, or by asserting claims which properly should have been settled in some prior action.” (Id. at pp. 894-95.)

“The violation of one primary right constitutes a single cause of action, though it may entitled the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” (Id. at pp. 895-96.) The primary right theory is “invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 682.)[5] “[I]f the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement.” (Ibid.) (citing to CCP § 430.10(c).)

Here, the court agrees with Defendant that the instant action concerns the same single cause of action alleged in the suit filed in Orange County Superior Court. For instance, the first, second, and seventh cause of action seek the same relief as the Petition Plaintiff field in Orange County Superior Court. (Defendant’s Exhibit A.) Upon reviewing the Complaint, the remaining causes of action that topically appear to be torts still concern the underlying Trust Amendment’s validity.[6] The third cause of action for conversion pertains to Decedent’s property that was allegedly converted due to the Trust Amendment. (Compl. ¶¶ 36, 37) Similarly, the fourth cause of action for unjust enrichment and the fifth cause of action for recovery of personal property also concerns trust assets. (Compl. ¶¶ 40, 41, 44.) Finally, the sixth cause of action for declaratory relief and constructive trust asks this court to determine the validity of the Trust Amendment. (Compl. ¶¶ 49, 50.) Taken together, and without any authority indicating otherwise, these causes of action can, and should be, properly be resolved by the Court in Orange County.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

The action is STAYED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             October 17, 2023                    __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court