17-CIV-05803 ROBERT LINDOW vs. DARREN WALLACE, et al.

ROBERT LINDOW Pro/per

Darren Wallace jesse ruiz

5. Demurrer

AND

6. motion to strike

TENTATIVE RULING AS TO BOTH LINES:

The Demurrer brought by defendant Darren Wallace (individually and in his capacity as Conservator of the Estate of Carl E. Lindow) (the “Professional Fiduciary”) is sustained in part on the grounds that the rule of “exclusive concurrent jurisdiction” requires that this Court stay the present proceedings. Pursuant thereto, the instant case is stayed pending the outcome of:

· the conservatorship filed in Santa Clara County (Case No. 17 PR 180772) and any related appeal; and

· the civil litigation filed in Santa Cruz County (17 CV 02111).

To the extent that the instant demurrer raises issues beyond the “exclusive concurrent jurisdiction” doctrine, those matters are stayed and may be raised again when the stay is lifted. The Motion to Strike brought by the Professional Fiduciary is likewise stayed and may be raised again when the stay is lifted.

Requests for Judicial Notice. The Professional Fiduciary submits two separate requests for judicial notice requesting judicial notice of numerous filings in other courts. The Court denies the request to take judicial notice with respect to Exhibits F, H, and J. Exhibit F because they either lack a file stamp from the court in which they were purportedly originally filed (i.e. a file stamp from federal court does not prove that a document was filed in state court). The remaining documents in the respective requests for judicial notice are file-stamped court filings, and thus the Court grants the request for judicial notice as to all remaining documents. Evidence Code § 452(d).

Merits of Motion. The Professional Fiduciary jointly raises the issues of res judicata (claim preclusion), collateral estoppel (issue preclusion), and the “exclusive concurrent jurisdiction” rule. See Demurrer and Motion to Strike, p. 12:15-13:21. Before the doctrines of res judicata or collateral estoppel can apply, a final judgment on the merits must be reached. DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824–825. Here, there are three cases on which such a theory could be based:

· a conservatorship proceeding in Santa Clara County (17 PR 180772),

· a civil case in the federal District Court in San Jose (5:17-cv-02782-HRL), and

· a civil case in Santa Cruz County (17 CV 02111).

There is also an unlawful detainer judgment that was rendered in Santa Cruz County (17 CV 01497) awarding $16,711.80 to the Professional Fiduciary against plaintiff Robert Lindow and against Deborah Olinyk (the wife of Robert Lindow).

The federal case has been dismissed. See Request for Judicial Notice, Ex. E. Though an order has been issued in the Santa Clara Conservatorship Proceeding (see Request for Judicial Notice, Ex. N), that order appears to be on appeal (see Request for Judicial Notice, Exs. P and Q). The civil case in Santa Cruz appears to be stayed. See Request for Judicial Notice, Ex. K. At present, it does not appear that any of these cases (except for the unlawful detainer judgment which is for the narrow issue of possession) have reach final judgment on the merits, which is necessary before the doctrines of res judicata or collateral estoppel can be applied.

However, the Professional Fiduciary also raises the rule of “exclusive concurrent jurisdiction” in the demurring papers. See Demurrer and Motion to Strike, p. 13:16-13:21, citing Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1170, 1175-1176.

The established 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.” {Citations.} The rational supporting the rule is a highly practical one. As Witkin has it, ‘Justification for the rule [of exclusive concurrent jurisdiction] rests on practical considerations. If the identical cause of action is asserted by the same plaintiff in two suits, there is no doubt that the first court has priority, but this can rarely happen. What does happen is that parties to the same controversy or transaction… file separate suits on their individual causes of action, usually against each other. Although their claimed rights and therefore their alleged causes of action are distinct, the issues are substantially the same, and individual suits might result in conflicting judgments. The rule of priority is designed to avoid the unfortunate results of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached. [Citations.]’

Id. at 1175-1475 (italics in original) (citations omitted). Here, there is sufficient overlap between the instant case and the Santa Clara Conservatorship Case (Case No. 17 PR 180772). There is also overlap between the instant case and the Santa Cruz Civil Case (17 CV 02111). Because both of those cases were filed prior to the instant case, the doctrine of exclusive concurrent jurisdiction applies.

Because this case should be stayed pending the outcome of prior related cases, and because the specific purpose of the “exclusive concurrent jurisdiction” rule is to prevent conflicting rulings, this Court expressly declines to address any of the merit-based arguments (quasi-judicial immunity, the litigation privilege, the merits of the causes of action to produce a duplicate deed, for negligence, and for civil conspiracy, and the merits of the motion to strike) raised in the demurrer and motion to strike. Today’s ruling is without prejudice to those arguments being re-raised when the above-referenced prior litigation is resolved and the stay in this case lifted.