Mungia v. Superior Court of Los Angeles County

FILES, J.

Petitioner seeks a writ of prohibition to stop further proceedings in a separate maintenance action now pending in Los Angeles County upon the ground that the divorce action filed by petitioner in Kern County is entitled to priority.

On October 18, 1963, real party in interest (who will be referred to as Lillian) filed in the Superior Court of Los Angeles County a complaint for separate maintenance against petitioner (who will he referred to as Fred).

On October 24, 1963, Fred filed an action for divorce against Lillian in Kern County. Summons and complaint in the Kern County action were served upon Lillian on the same day.

On October 31, 1963, summons and complaint in the Los Angeles action were served upon Fred. He thereupon filed a demurrer upon the ground that there is another action pending between the same parties for the same cause, invoking Code of Civil Procedure, section 430, subdivision 3. The demurrer was accompanied by an affidavit stating that the divorce action had been filed in Kern County and that summons had been served on October 24. This demurrer was overruled on November 15,1963.

It also appears that on October 18, 1963, in the Los Angeles action the court issued an order to show cause giving notice of a hearing to he held on November 20, 1963, regarding suit money, temporary support and child custody. It is

[283]

admitted that the Los Angeles Superior Court will proceed to exercise its jurisdiction in the separate maintenance action unless restrained from doing so.

The ground of demurrer set forth in subdivision 3 of section 430 of the Code of Civil Procedure is ‘ ‘ That there is another action pending between the same parties for the same cause.” Taken literally, this ground of demurrer is not applicable here. Fred’s cause of action is not Lillian’s cause of action.

Notwithstanding the lack of an applicable statute, the case law provides a remedy. It is now well established that where two tribunals of this state have concurrent jurisdiction over the same parties and subject matter, the tribunal which first acquires jurisdiction of the parties is entitled to retain it exclusively. The other must respect the priority of the first and must desist from further proceedings so long as the matter is pending before the first. In applying this rule it is the tribunal where process is served first which has priority, regardless of which action was filed first. If the other refuses to abate its proceedings on demand, the remedy is by writ of prohibition.