SIGEL VS SIGEL

Special Demurrer – Statutory Plea in Abatement - A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or judicially noticeable matters outside the pleading. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) A demurrer lies when another action is pending between the same parties on the same cause of action. (Code Civ.

Proc., § 410.30, subd. (c); Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787 (“Plant Insulation”).) The statutory plea in abatement rests on “narrow grounds” as it requires “absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions.” (Plant Insulation, supra, 224 Cal.App.3d at 789, emphasis added.) “The ‘underlying theory of the plea of another action pending is that the first action will normally be an ample remedy, and the second action...is therefore unnecessary and vexatious.’” (Cal.

Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109.) “In determining whether the causes of action are the same for purposes of plea in abatement, the rule is that such a plea may

be maintained only where a judgment in the first action would be a complete bar to the second action.” (Plant Insulation, supra, 224 Cal.App.3d at 787-788.) Although the existence of another substantially similar action will rarely appear on the face of a pleading, a demurrer on this ground may be based upon judicially noticed facts. (See Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 336 n.2; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 191-192.) There must be claim preclusion as issue preclusion is not sufficient. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) “[A]batement is not appropriate where the first action cannot afford the relief sought in the second.” (Lawyers Title Ins. Corp. v. Superior Court (Harrigfeld) (1984) 151 Cal.App.3d 455, 459 (“Lawyers Title”).)

If the Court sustains a demurrer under Code of Civil Procedure section 430.10, subdivision (c), the proper order is not dismissal, but abatement or stay of further proceedings pending termination of the first action. (Plant Insulation, supra, at 788; People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771 (“Garamendi”).) An order of abatement issues as a matter of right, not as a matter of discretion. (Id. at 770-771.)

Another Action Pending - Here, there is another action pending in California relating to the Subject Property in Temecula. (RJN Exh. B; Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575.)

Same Parties - The parties must stand in the same relationship in both suits, as plaintiff or defendant. [See Plant Insulation, 224 Cal.App.3d at 789 [“absolute identities of parties” required in statutory plea in abatement].)

Here, Jerry Sigel is the Plaintiff in the instant lawsuit but is the defendant in the Partition Action. (Compl.; RJN, Exh. B.) Astrid Sigel is the Defendant in the instant lawsuit but is the Plaintiff in the Partition Action. (Compl.; RJN, Exh. B.) The Partition Action is also filed against defendants not named in Plaintiff’s instant lawsuit, to wit: Ashley Sigel, Tax Collector of the County of Riverside, Capital One Financial Corporation, and Austin J. Sigel. Thus, the requisite “absolute identities of parties” is not present here, and abatement does not apply.

Same Cause of Action - Identical causes of action must be involved in both suits so that a judgment in the first action would be res judicata on the claim in the present lawsuit (claim preclusion). (Bush, supra, 10 Cal.App.4th at 1384.) The identity of the causes of action is determined by a comparison of the facts alleged in each complaint. To be the same “cause of action,” each complaint must allege invasion of the same “primary right.” (Ibid.) The fact that some of the same issues are involved so that a finding in either case would give rise to collateral estoppel (issue preclusion) is not enough if in fact different causes of action are involved. (Ibid.)

California follows the primary right theory that every judicial action must involve the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. (Bush, supra, 10 Cal.App.4th at 1384.)

The primary right in this action is Plaintiff’s right to remove Defendant from title and buy out Defendant’s portion of the equity. The primary right in the Partition Act is Defendant’s right to sell the property. Thus, the crux of both complaints involve the same property and the sale of Defendant’s interest. Thus, it appears each complaint alleges invasion of the same “primary right.” (Bush, supra, 10 Cal.App.4th at 1384.)

However, because “absolute identity of the parties” is not present, abatement does not apply.

General Demurrer

1st COA – Declaratory Relief - Declaratory relief is authorized pursuant to Code of Civil Procedure section 1060 – 1062.5. The purpose of declaratory relief is to eliminate uncertainties and controversies that may result in future litigation. (Marina Development Co. v. County of Los Angeles (1984) 155 Cal.App.3d 435, 443.) An action for declaratory relief is authorized only when an actual controversy exists. (Code Civ. Proc., § 1060.) Declaratory relief has two elements a party must satisfy: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party’s] rights or obligations.” (Jolley v.

Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) “[T]he remedy is to be used in the interests of preventative justice, to declare rights rather than execute them.” (Id.) “It is the general rule that, if a complaint shows the existence of a present controversy between the parties of the nature contemplated by section 1060 of the Code of Civil Procedure, it is improper to sustain a general demurrer on a theory that assumes any declaration would necessarily be unfavorable to plaintiff.” (Safeway Stores, Inc. v.

Royal Indemn. Co. (1971) 21 Cal.App.3d 44, 47.)

However, “[w]hile section 1060’s language ‘appears to allow for an extremely broad scope of an action for declaratory relief...In the context of a demurrer, the court will evaluate ‘whether the factual allegations of the complaint for declaratory relief reveal that an actual controversy exists between the parties... Section 1060 must be read together section 1061.” (Cummins Corporation v. United States Fidelity & Guaranty Company (2016) 246 Cal.App.4th 484, 489.) Code of Civil Procedure section 1061 provides that “[t]he court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.”

Here, the Complaint avers a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the parties’ rights in the Property because it seeks a judicial determination that Plaintiff may encumber the property with a reverse mortgage and prevent a sale of the Property. (Compl., ¶¶10-11, 14-15.)

2nd COA – Equitable Accounting / Reimbursement - The elements of accounting are (1) existence of a relationship requiring accounting, such as fiduciary; and (2) some unliquidated and unascertained balance is owed. (St. James Church of Christ Holiness v. Superior Court (1955) 135 Cal.App.2d 352, 359; Raymond v. Independent Growers, Inc. (1955) 133 Cal.App.2d 154, 160; Kritzer v. Lancaster (1950) 96 Cal.App.2d 1, 7 [“a cause of action for accounting need only state facts showing the existence of the relationship which requires an accounting and the statement that some balance is due plaintiff”].)

The Complaint alleges the parties own an undivided 50% interest each in the Property. (Compl., ¶5.) Defendants seek to sell the Property. (Id. at ¶10.) Plaintiff seeks an accounting and equitable adjustment of the parties’ interests to reflect Plaintiff’s expenditures and contributions including the purchase of the 5-acre lot on which the Property sits, payment of delinquent taxes, construction costs, and adjustments relating to the November 2016 first trust deed including sums of that loan used by Defendant personally. (Id. at ¶17.) The Complaint sufficiently pleads a claim for equitable accounting and reimbursement.

3rd COA – Injunctive and Equitable Relief - Although strictly speaking, an injunction is a remedy rather than a cause of action, a cause of action is also commonly used in pleading as applying only to the relief sought, even though separately pleaded claims have origin in the same right or obligation. (McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award.” (Brownsfield v.

Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) To state a cause of action for an injunction, the complaint must plead facts that warrant injunctive relief. (San Francisco v. Market S.R. Co. (1950) 95 Cal.App.2d 648, 656.) The Complaint alleges Plaintiff had the home built for the benefit of his children, has continuously resided at the Property since completion of construction, and now seeks injunctive relief to prevent the sale of the Property. (Compl., ¶¶6.) Plaintiff seeks to remain in the home. (Id. at ¶11.)

Where the Complaint falls short is it fails to allege irreparable injury, if any. However, this appears curable. Thus, the Court willd SUSTAIN the demurrer with leave to amend.

7. CASE # CASE NAME HEARING NAME CVME2600233 SIGEL VS SIGEL MOTION TO STAY PARTITION Tentative Ruling: Motion is denied. Code of Civil Procedure section 872.710, subdivision (b), states that partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

Here, Plaintiff does not dispute Defendant’s ownership in the Property and is prepared to compensate Defendant for her share of the property’s equity. (Mot., pg. 2:23-25.) There is no evidence that Defendant waived her right to partition.

Plaintiff, however, fails to provide any legal authority for the relief sought. If anything, Plaintiff cites to section 872.710 acknowledging Defendant’s right to seek partition of property. Plaintiff argues partition proceedings are equitable in nature and courts retain authority to structure relief in a manner that protects the interests of the parties. However, again, Plaintiff does not provide legal authority for the foregoing argument. A point merely asserted without any authority for the proposition is deemed without foundation and requires no discussion. (See Allen v. Smith (2002) 94 Cal.App.4th 1270, 1281.) “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)

8. CASE # CASE NAME HEARING NAME MOTION TO CONSOLIDATE OR CVME2600233 SIGEL VS SIGEL RELATE CASES Tentative Ruling: Motion to consolidate is granted.