CIV 528482 TONY CHEN, ET AL. VS. STANDARD FIBER, LLC

TONY CHEN GREGORY K. KLINGSPORN

STANDARD FIBER, LLC MORTIMER H. HARTWELL

DEMURRER TO COMPLAINT of CHEN BY STANDARD FIBER, LLC

· Demurrer on the ground that the Complaint fails to allege an enforceable agreement under Code of Civil Procedure section 664.6 is OVERRULED. “Section 664.6 is not the exclusive means of enforcing a settlement agreement; it is simply a summary procedure available when certain prerequisites are satisfied. . . . Even when the summary procedures of section 664.6 are not available, a settlement agreement might be enforceable by . . . a suit for breach of contract . . . .” (Robertson v. Chen (1996) 44 Cal.App.4th 1290, 1293.) The present action is not a motion to enforce a settlement or enter judgment under section 664.6. It is an action on a contract. The Complaint sufficiently alleges facts which, if true, would establish an enforceable agreement. (Complaint ¶¶ 9, 36-38.)

· Demurrer on the ground that the rule of exclusive concurrent jurisdiction bars this action is OVERRULED. The rule of exclusive concurrent jurisdiction does not apply here. The rule requires that the two actions address the same subject matter. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) The test “considers whether the first and second actions arise from the same transaction.” (Id.) The underlying action concerns claims that Defendant wrongfully denied Plaintiffs of their right to participate in equity ownership. (Complaint ¶¶ 1-8 [allegations describing underlying action]; see also First Amended Complaint in underlying action, Exhibit A to Demurrer’s RJN].) In contrast, the present action concerns an alleged settlement agreement that was to resolve the underlying action. The present action has nothing to do with Plaintiffs’ substantive claims concerning the equity sharing agreement; the underlying action has nothing to do with Plaintiffs’ claims that Defendant breached the settlement of that action.

· Defendant shall file and serve an Answer no later than July 21, 2014.

· Demurring party is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Elizabeth K. Lee, Department 17.