Case Number: BC535204    Hearing Date: September 04, 2014    Dept: 307

I. Introduction

On January 14, 2013, Javier Avila brought a putative class action complaint in Avila v. Marquez Bros. Enterprises, Inc. (BC499086). In the operative first amended complaint in that action, Mr. Avila alleges putative class action claims against Marquez Bros. Enterprises, Inc. for:

(1) Failure to pay wages;
(2) Failure to provide meal periods;
(3) Failure to provide rest periods;
(4) Failure to provide accurate wage statements and maintain required records;
(5) Failure to pay all wages due upon termination; and
(6) Violation of the Unfair Competition Law.

(RJN, Exh. 3.)

On February 4, 2014, Plaintiff Omar Martinez brought the instant putative wage and hour class action complaint against Defendants Marquez Bros., Inc., Marquez Bros. Int’l, Corp., Marquez Bros. Advertising, Inc., Marquez Bros. Enterprises, Inc., Marquez Bros. Enterprises, Inc., Marquez Bros. Entertainment, Inc., Marquez Bros. Foundation, Marquez Bros. Packing & Logistics, Inc., and Marquez Bros. Southern California, Inc. Plaintiff asserts putative class action claims against each Defendant for:

(1) Failure to pay wages for all hours worked;
(2) Failure to pay overtime compensation;
(3) Failure to provide meal and rest periods;
(4) Failure to pay minimum wage for all hours worked;
(5) Failure to provide itemized wage statements;
(6) Failure to pay wages due upon termination;
(7) Conversion; and
(8) Violation of the Unfair Competition Law

Defendants now jointly move to abate the instant action in favor of the earlier-filed Avila action pursuant to Code of Civil Procedure section 430.10(c). In the alternative, Defendants move to stay the action under the “exclusive concurrent jurisdiction” doctrine, or under the Court’s inherent authority to stay the action. The motion is DENIED.

Because this action involves different parties than the Avila action, a plea in abatement will not lie. Moreover, the exclusive concurrent jurisdiction rule applies to actions pending in different courts. These two actions have been deemed related and are pending before the same judge on the same court. There is no risk of inconsistent rulings. For the same reason, the Court declines to impose a discretionary stay of this action.

II. Analysis

A. Plea in Abatement

“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 Cal.App.3d 781, 789.) The requirement that the action be “pending between the same parties” demands an “absolute identity of parties” (Id.), who must “stand in the same relationship (i.e., as plaintiff or defendant) in both suits.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group, 2014), ¶7:75.1.) Here, there is not an “absolute identity of parties” in the two actions. Unlike the Avila action, which is brought solely against Marquez Bros. Enterprises, Inc., this action involves seven additional defendants, none of whom are parties to the Avila action.

And even assuming for the sake of argument that Plaintiff can be considered a “party” to the Avila action despite the fact that no class has yet been certified in that case, Defendants offer nothing to suggest that Plaintiff “stands in the same relationship” in both suits. In the Avila action, Plaintiff is ostensibly a member of an uncertified absent class. In this case, by contrast, Plaintiff is a named class representative before the full jurisdiction of the Court. This difference has substantive consequences. Under Plaintiffs’ UCL cause of action, for example, Plaintiff must demonstrate as the named class representative that he “lost money or property” as a result of Defendants’ alleged conduct to maintain suit. (Bus. & Prof. Code §17204.) As an absent class member in Avila, however, Plaintiff need not make such a showing under the Unfair Competition Law. (In re Tobacco II Cases (2009) 46 Cal.4th 298.)

There is not an “absolute identity of parties” between this action and the Avila action, and a plea in abatement will not lie. (Code Civ. Proc. 430.10(c); Plant Insulation Co. v. Fibreboard Corp., supra, 224 Cal.App.3d at 789.)

B. Exclusive Concurrent Jurisdiction

Defendant next argues that the Court should stay this action under the doctrine of exclusive concurrent jurisdiction. “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.” (Plant Insulation Co. v. Fibreboard Corp., supra, 224 Cal.App.3d at 789.) Importantly here, “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. [Citaton.] 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.” (Id.)

Nonetheless, the 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 others, thus rendering ‘concurrent’ jurisdiction ‘exclusive’ with the first court.” (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175.) “The rule of priority is designed to avoid the unfortunate results of these conflicts [in rulings between different courts] by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached.” (Id. [internal quotes and emphasis omitted].)

Both this action and the Avila action were filed in the same court (the Los Angeles Superior Court). The matters are not pending before “two (or more) courts,” but before a single judge, in a single department, of a single court, and the rule of exclusive concurrent jurisdiction is inapplicable. Under such circumstances, there is no risk of conflicting rulings between the two related actions.

C. Discretionary Stay

Finally, the Court finds no basis to impose a discretionary stay of this action pending disposition of the Avila matter. Defendants’ authorities in support of a discretionary stay (see Mtn., pp. 8-10) merely stand for the proposition that courts may, in their discretion, stay an action where a parallel proceeding is filed in another state or in federal court. (See, e.g. Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746-47.) As already noted, the two actions are pending before the same judge as related cases. Indeed, the entire point of relating this action with the Avila matter was to afford this Court the opportunity and authority to avoid the sorts of inconsistent rulings and duplicative efforts Defendants fear. The Court fully intends to streamline and coordinate the two matters to the fullest extent permitted. The Court can and will, for example, direct all parties in both matters to coordinate their discovery efforts (including a joint protective order), and will not require any party to answer duplicative discovery.

D. Service of the Motion and Opposition.

Plaintiffs late-filed an opposition on August 28, 2014, asserting that they were not served with a copy of the motion until August 21, 2014. Defendants contend that they properly served Plaintiffs. Whether Defendants timely served the motion, and whether Plaintiff timely opposed, is immaterial to the outcome. For the reasons discussed above there is no basis to abate or stay this action. Even if Plaintiffs had entirely failed to oppose the motion, the motion itself fails to establish an identity of parties, an out-of-county parallel action, or any risk of prejudice resulting from litigating these related actions in the same department. However, the dispute about service emphasizes the need for the parties to utilize an electronic service provider in this action. The parties are ordered to jointly select an electronic service provider acceptable to all parties and to submit a proposed order authorizing electronic service to the Court within 5 days.

III. Conclusion

There is not an “absolute identity of parties” between this action and the Avila matter and a plea in abatement will not lie. Nor does the doctrine of concurrent jurisdiction apply where, as here, both actions are pending in the same court (let alone in the same department before the same judge). And given the fact that both actions are related and this Court has full authority to avoid the prejudice that sometimes results from a multiplicity of efforts or conflicting rulings, the Court finds no basis to exercise its discretion to stay this action for an indeterminate period of time until the Avila action is resolved. Accordingly, the motion to abate or stay this action is DENIED. Defendants’ request for judicial notice is GRANTED.