Demurrer, or in the Alternative, Motion to Stay
Case No.: VCU329734 Date: June 25, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Demurrer, or in the Alternative, Motion to Stay Tentative Ruling: To overrule the demurrer; to grant the motion to stay
Facts In this matter (the "Aegis Action"), Plaintiff Aion brings causes of action against Defendants Frank G. Borba, Jr. Family Partnership and Borba Dairy (formerly Doe 1) for: 1. Failure to Pay Minimum Wages; 2. Failure to Pay Overtime Wages; 3. Failure to Provide Meal Periods; 4. Failure to Permit Rest Breaks; 5. Failure to Reimburse Business Expenses; 6. Failure to Provide Accurate Itemized Wage Statements; 7. Failure to Pay All Wages Due Upon Separation of Employment; 8. Violation of Business and Professions Code Sec.Sec. 17200, et seq.; and 9. Enforcement of Labor Code Sec. 2698 et seq. ("PAGA") (FAC P.P.4, 5.)
Defendant Borba Dairy demurrers on the theory of abatement based on an earlier filed complaint in Case No. VCU333662 entitled Jesus Sanchez v. Borba Dairy filed by Bokhour Law Group (the "Bokhour Action"). Defendant Borba Dairy notes the Bokhour Action names, after the second amended complaint, only Borba Dairy, and alleges the same first 8 causes of action as in the Aegis Action. The Bokhour Action, however, does not include the PAGA claim. Alternatively, Defendant seeks to stay the Aegis Action pending the outcome of the Bokhour Action.
The Court notes that on June 11, 2026, Plaintiff filed a request for dismissal as to Defendant Frank G. Borba, Jr. Family Partnership. In opposition, Plaintiff argues a lack of a proper meet and confer process, that the parties are not the same and that the causes of action are not the same.
Authority and Analysis "A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint.[Citations.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)
Defendant specially demurs on the ground of another pending action, pursuant to Code of Civil Procedure section 430.10, subdivision (c). "A single cause of action cannot be the basis for more than one lawsuit." (Pitts v. City of Sacramen to (2006) 138 Cal.App.4th 853, 856.) A plaintiff may not "split" a cause of action by filing multiple lawsuits based on the violation of the same primary right. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682
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In accordance with the language of section 430.10(c), the demurring party must show: (1) another action is "pending;" (2) the pending action involves "the same parties;" and (3) the pending action involves "the same cause of action." If these requirements are met, abatement of the second filed action is mandatory. (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460.)
The statutory plea of 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 Co. v. Is Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789 (Plant Insulation).) "In determining whether the causes of action are the same for purposes of pleas 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 pp. 787-788.)
Whether a cause of action is identical is based on the harm suffered. (See Bay Cities Paving & Grading, Inc. v. Lawyers' Mut. Ins. Co. (1993) 5 Cal.4th 854, 860, fn. 1.) To be the "same cause of action," each complaint must allege invasion of the same "primary right." (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) Here, the Bokhour Action is pending, having been filed November 14, 2025, while this action, the Aegis Action, was filed December 30, 2025.
Additionally, after the dismissal of Defendant Frank G. Borba, Jr. Family Partnership, the parties appear to be the same on the face of the pleadings. However, as noted by the Defendant, the Aegis Action contains a PAGA claim. A PAGA claim "is fundamentally a law enforcement action designed to protect the public and not to benefit private parties." (Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595, 603.) PAGA plaintiffs seek to recover penalties that would otherwise be sought by the state. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.) PAGA claims and class actions necessarily involve different sets of potential penalties and damages. As such, the Court does not find that the matters involve the same parties nor the same causes of action. As such, the Court overrules the demurrer on the abatement theory.
Motion to Stay Our Supreme Court has stated that the "first-filed rule in California means that when two courts of the same sovereignty have concurrent jurisdiction, the first to assume jurisdiction over a particular subject matter of a particular controversy takes it exclusively, and the second court should not thereafter assert control over that subject matter." (Advanced Bionics Corp. v. Medtronic, Inc. (2002) 29 Cal.4th 697, 707.)
The statutory plea in abatement rule is similar in effect to the "exclusive concurrent jurisdiction rule," which requires courts to abate a later-filed suit in favor of an earlier suit in a different court. The exclusive concurrent jurisdiction rule is broader, however, than the statutory plea of abatement because it does not require absolute identity of parties, causes of action, or remedies sought in the initial and subsequent action. (Plant Insulation, supra, 224 Cal.App.3d at p. 789.)
In Plant Insulation, the Court of Appeal held that: "[i]f 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. Moreover, the remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings." (Id. at p. 788.)
Here, the two Actions involve the same underlying facts and Labor Code violations, are both brought against Defendant Borba Dairy and therefore satisfy the requirements of exclusive concurrent jurisdiction. As such, the Court grants the motion to stay and stays the Bokhour Action pending the resolution of the Aegis Action.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Citibank, N.A. vs. Minguela, Victor