Preview
ELECTRONICALLY FILED
Superior Court of California
1 County of Santa Barbara
SEED MACKALL LLP Darrel E. Parker, Executive Officer
1332 ANACAPA STREET, SUITE 200
2 POST OFFICE BOX 2578 3/24/2021 11:24 AM
SANTA BARBARA, CALIFORNIA 93120 By: Terri Chavez, Deputy
3 TELEPHONE: (805) 963-0669
TELEFAX: (805) 962-1404
4 Alan D. Condren, Bar No. 180624
Elan A. Shpigel, Bar No. 324586
5 Attorneys for Petitioner Jonas Svensson
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8 SUPERIOR COURT, STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA, ANACAPA DIVISION
10
11 JONAS SVENSSON, individually, ) Case No. 20CV04285
)
12 ) (Assigned For All Purposes To The
Petitioner, ) Honorable Thomas P. Anderle)
13 )
vs. ) PETITIONER JONAS SVENSSON'S
14 ) OPPOSITION TO DEMURRER TO
) VERIFIED PETITION FOR WRIT OF
15 iO73 INVESTMENTS, INC., and ) MANDAMUS
TRISTAN STRAUSS. )
16 ) Date: April 6, 2021
Respondents. ) Time: 10:00 a.m.
17 _______________ ) Dept.: 3
18
I. THE DEMURRER IS BASED ON ONE GROUND
19 ONLY - "ANOTHER ACTION PENDING"
20 Respondents iO73 Investments, Inc. ('iO73) and Tristan Strauss ("Strauss") demur to Jonas
21 Svensson's ("Svensson") Petition for Writ of Mandamus on one ground only- that there is another
22 action pending between the parties, citing Code of Civil Procedure § 430.10(c ), which provides:
23 "430.10 Demurrer of defendant to complaint or cross-complaint
24 The party against whom a complaint ... has been filed may object,
by demuITer ... on any one or more of the following grounds:
25 * * *
(c) There is another action pending between the same parties on
26 the same cause of action.'' (Emphasis added.)
27 Respondents misunderstand the law regarding "another action pending."
28
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PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS
1 II. ALTHOUGH THERE IS ANOTHER RELATED CASE PENDING, THERE
IS NOT "ANOTHER ACTION PENDING" WITHIN THE
2 MEANING OF CODE OF CIVIL PROCEDURE § 430.lO(c)
3 It is certainly true that there is a related case currently pending between Svensson, on the
4 one hand, and iO73, Strauss, and Brian Casey, on the other hand, in Judge Sterne's department of
5 this Court. Svensson pointed this out in his Petition.
6 But a "related case" is not the same thing as "another action pending" within the meaning of
7 Code of Civil Procedure§ 430.l0(c). "Another action pending" has a very well-defined, and
8 narrow meaning - the other action must involve (1) the same parties, and (2) the same cause of
9 action. The related case does not fall within this narrow definition.
10
A. What Does It Mean To "Involve The Same
11 Cause Of Action?" - Res Judicata Test
12 In order for a prior action to involve the "same cause of action" within the meaning of Code
13 of Civil Procedure§ 430.l0(c), the test applied is whether a final judgment in the first action could
14 be pleaded in bar as a former adjudication. The test is based on res judicata principles:
15 "A plea in abatement pursuant to section 430.10, subdivision (c),
may be made by demurrer or answer when there is another action
16 pending between the same parties on the same cause ofaction . ...
In determining whether the causes of action are the same for purposes
17 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
18 complete bar to the second action." (Italics in original.) (Bold
added.)
19
Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788.
20
"Generally, a demurrer will be sustained or a motion to abate a
21 pending action will be granted if there is another action pending
between the same parties in which the issues are the same. . . . The
22 limitations on this rule are, however, stated in Trickey v. City of Long
Beach, 101 Cal.App.2d 871, wherein the court says at pages 881, 882
23 [226 P.2d 694]: "In order that a second action be abated because of
the pendency of a prior action, it is elementary that the issues in the
24 two actions must be substantially the same. In determining this
question, the test applied is whether a final judgment in the first
25 action could be pleaded in bar as a former adjudication."
(Emphasis added.)
26
Kamei v. Kumamoto (1967) 256 Cal.App.2d 381,384.
27
28 ///
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PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS
1 B. A Cause Of Action, For Res Judicata Purposes, Is Determined
According To The "Primary Right Theory."
2
"California's res judicata doctrine is based on the primary right
3 theory.... As far as its content is concerned, the primary right is
simply the plaintiffs right to be free from the particular injury
4 suffered. . . . It must therefore be distinguished from the legal theory
on which liability for that injury is premised: 'Even when there are
5 multiple legal theories upon which recovery might be predicated, one
injury gives rise to only one claim for relief."'
6
Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648,657;
7
"A single cause of action cannot be the basis for more than one
8 lawsuit. . . . A demurrer raising this objection to a second action
between the same parties "is strictly limited so that the defendant
9 must show that the parties, cause of action, and issues are identical,
and that the same evidence would support the judgment in each case .
10 . . . In the highly abstract formulation for what constitutes a single
cause of action ... the analysis focuses on identifying a primary right
11 of the plaintiff and the defendant's breach of a corresponding primary
duty." (Emphasis added.)
12
Pitts v. City ofSacramento (2006) 138 Cal.App.4th 853, 856
13
"The essence of a cause of action is the existence of a primary right
14 and one violation of that right, i.e. it arises out of an antecedent
primary right and corresponding duty, and a breach of such primary
15 right and duty by the person upon whom the duty rests. . . . The
primary right and duty and the delict or wrong constitute the cause of
16 action in the legal sense. . . . The cause of action is simply the
obligation sought to be enforced." (Emphasis added.)
17
Colvig v. RKO Gen. (1965) 232 Cal.App.2d 56, 65-66.
18
19 C. In The Present Situation, The Two Cases Do
Not Involve The Same Primary Rights.
20
1. The Related Case.
21
In the related case, Svensson's operative affirmative pleading is his First Amended
22
Complaint (the "FAC"). In the FAC, Svensson has pleaded "causes of action" labeled as follows 1:
23
( 1) Breach of Contract - Employment Agreement;
24
(2) Breach of Contract - Employment Agreement - Alternative;
25
(3) Breach of Contract - Stock Award Agreement;
26
27
As Wade points out, these "causes of action" are more properly referred to as "legal
28 theories." Svensson refers to them as causes of action simply because this is the generally
accepted manner in which to plead them.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 3_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS
1 (4) Violation of California Labor Code;
2 (5) Derivative Claim - Breach of Fiduciary Duty;
3 (6) Breach of Contract - Shareholders' Agreement; and
4 (7) Declaratory Relief - Shareholders' Agreement.
5 By doing so, Svensson has asserted a violation of five separate primary rights, as follows:
6 * Rights under his employment contract (Causes of Action ## 1 and 2);
7 * Rights under his stock award agreement (Cause of Action# 3);
8 * Rights under California employment law (Cause of Action# 4);
9 * Rights as a shareholder to sue on behalf of the company to remedy
malfeasance by Strauss and Brian Casey (Cause of Action # 5); and
10
* Rights under his shareholders agreement (Causes of Action ## 6 and 7).
11
12 In the Related Case Svensson has not alleged a cause of action seeking to enforce his rights
13 as a director and shareholder to obtain information about the operations, management, and finances
14 of iO73. It is true that he has sought such information through the discovery process in the related
15 case. But this discovery is simply part of the litigation process in Svensson' s efforts to vindicate
16 his primary rights, as discovery is part of every litigated matter. The right to discovery IS NOT not
17 one of Svensson' s five primary rights he seeks to vindicate.
18 So, in other words, the fact that Svensson is seeking information through discovery does not
19 transform the related case into the "same cause of action" as this mandamus proceeding for
20 purposes of Code of Civil Procedure § 430.10(c)' s "another action pending" rule.
21 2. This Mandamus Proceeding.
22 In this proceeding, the primary rights Svensson seeks to enforce ARE his rights to
23 infonnation about the operations, management, and finances of iO73 in his capacity as a director
24 and shareholder. This is a different primary right than the five primary rights at issue in the related
25 case.
26 As a result, this mandamus proceeding does not involve the same cause of action as the
27 related case. The Demurrer must be overruled.
28 Ill
___________________4_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS
1 III. CONCLUSION
2 Based on the foregoing, Svensson respectfully requests that this Court overrule the
3 Respondents' Demurrer.
4
5 DATED: March li, 2021. SEED MACKALL LLP
6 u
By: _ _,,
-l,
(J -
:c.....__;r-.r
__ L--
_ _ _ _ _ _ _ _ _ _ __
7 Alan D. Condren
Elan A. Shpigel
8 Attorneys for Petitioner Jonas Svensson
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PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA:
3
I am employed in the County of Santa Barbara, State of California. I am over the age of 18
4 years and not a party to the within action; my business address is 1332 Anacapa Street, Suite 200,
Santa Barbara, CA 93101.
5
6 On March 24, 2021, I served the foregoing document described as PETITIONER JONAS
SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF
7 MANDAMUS on interested parties in this action by placing true copies thereof enclosed in a
sealed envelope addressed as follows:
8
9 Selna Partners LLP Attorneys for Respondents
70 Washington Street, Suite 303 i073 Investments, Inc.
10 Oakland, CA 94607 Tristan Strauss
11 Steven M . Selna
Robert W. Selna
12
13
(BY MAIL) I deposited such envelope in the mail at Santa Barbara, California. The
14 envelope was mailed with postage thereon fully prepaid.
15 (BY MAIL) I am "readily familiar" with the firm's practice of collecting and processing
correspondence for mailing. Under that practice it would be deposited with the U.S . Postal
16 Service on that same day with postage thereon fully prepaid at Santa Barbara, California in
17 the ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after
18 date of deposit for mailing in affidavit.
19 ___x (BY OTHER OVERNIGHT DELIVERY) I deposited such envelope in a box or other
facility regularly maintained by the express service carrier, or delivered to an authorized
20
courier or driver authorized by the express service carrier to receive documents, in an
21 envelope or package designated by the express service carrier with delivery fees paid or
provided for.
22
23
X (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on March 24, 2021, at Santa Barbara, California.
24
25
Elan A. Shpigel
26
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28
Preview
ELECTRONICALLY FILED Superior Court of California 1 County of Santa Barbara SEED MACKALL LLP Darrel E. Parker, Executive Officer 1332 ANACAPA STREET, SUITE 200 2 POST OFFICE BOX 2578 3/24/2021 11:24 AM SANTA BARBARA, CALIFORNIA 93120 By: Terri Chavez, Deputy 3 TELEPHONE: (805) 963-0669 TELEFAX: (805) 962-1404 4 Alan D. Condren, Bar No. 180624 Elan A. Shpigel, Bar No. 324586 5 Attorneys for Petitioner Jonas Svensson 6 7 8 SUPERIOR COURT, STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA, ANACAPA DIVISION 10 11 JONAS SVENSSON, individually, ) Case No. 20CV04285 ) 12 ) (Assigned For All Purposes To The Petitioner, ) Honorable Thomas P. Anderle) 13 ) vs. ) PETITIONER JONAS SVENSSON'S 14 ) OPPOSITION TO DEMURRER TO ) VERIFIED PETITION FOR WRIT OF 15 iO73 INVESTMENTS, INC., and ) MANDAMUS TRISTAN STRAUSS. ) 16 ) Date: April 6, 2021 Respondents. ) Time: 10:00 a.m. 17 _______________ ) Dept.: 3 18 I. THE DEMURRER IS BASED ON ONE GROUND 19 ONLY - "ANOTHER ACTION PENDING" 20 Respondents iO73 Investments, Inc. ('iO73) and Tristan Strauss ("Strauss") demur to Jonas 21 Svensson's ("Svensson") Petition for Writ of Mandamus on one ground only- that there is another 22 action pending between the parties, citing Code of Civil Procedure § 430.10(c ), which provides: 23 "430.10 Demurrer of defendant to complaint or cross-complaint 24 The party against whom a complaint ... has been filed may object, by demuITer ... on any one or more of the following grounds: 25 * * * (c) There is another action pending between the same parties on 26 the same cause of action.'' (Emphasis added.) 27 Respondents misunderstand the law regarding "another action pending." 28 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS 1 II. ALTHOUGH THERE IS ANOTHER RELATED CASE PENDING, THERE IS NOT "ANOTHER ACTION PENDING" WITHIN THE 2 MEANING OF CODE OF CIVIL PROCEDURE § 430.lO(c) 3 It is certainly true that there is a related case currently pending between Svensson, on the 4 one hand, and iO73, Strauss, and Brian Casey, on the other hand, in Judge Sterne's department of 5 this Court. Svensson pointed this out in his Petition. 6 But a "related case" is not the same thing as "another action pending" within the meaning of 7 Code of Civil Procedure§ 430.l0(c). "Another action pending" has a very well-defined, and 8 narrow meaning - the other action must involve (1) the same parties, and (2) the same cause of 9 action. The related case does not fall within this narrow definition. 10 A. What Does It Mean To "Involve The Same 11 Cause Of Action?" - Res Judicata Test 12 In order for a prior action to involve the "same cause of action" within the meaning of Code 13 of Civil Procedure§ 430.l0(c), the test applied is whether a final judgment in the first action could 14 be pleaded in bar as a former adjudication. The test is based on res judicata principles: 15 "A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action 16 pending between the same parties on the same cause ofaction . ... In determining whether the causes of action are the same for purposes 17 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 18 complete bar to the second action." (Italics in original.) (Bold added.) 19 Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788. 20 "Generally, a demurrer will be sustained or a motion to abate a 21 pending action will be granted if there is another action pending between the same parties in which the issues are the same. . . . The 22 limitations on this rule are, however, stated in Trickey v. City of Long Beach, 101 Cal.App.2d 871, wherein the court says at pages 881, 882 23 [226 P.2d 694]: "In order that a second action be abated because of the pendency of a prior action, it is elementary that the issues in the 24 two actions must be substantially the same. In determining this question, the test applied is whether a final judgment in the first 25 action could be pleaded in bar as a former adjudication." (Emphasis added.) 26 Kamei v. Kumamoto (1967) 256 Cal.App.2d 381,384. 27 28 /// _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS 1 B. A Cause Of Action, For Res Judicata Purposes, Is Determined According To The "Primary Right Theory." 2 "California's res judicata doctrine is based on the primary right 3 theory.... As far as its content is concerned, the primary right is simply the plaintiffs right to be free from the particular injury 4 suffered. . . . It must therefore be distinguished from the legal theory on which liability for that injury is premised: 'Even when there are 5 multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief."' 6 Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648,657; 7 "A single cause of action cannot be the basis for more than one 8 lawsuit. . . . A demurrer raising this objection to a second action between the same parties "is strictly limited so that the defendant 9 must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case . 10 . . . In the highly abstract formulation for what constitutes a single cause of action ... the analysis focuses on identifying a primary right 11 of the plaintiff and the defendant's breach of a corresponding primary duty." (Emphasis added.) 12 Pitts v. City ofSacramento (2006) 138 Cal.App.4th 853, 856 13 "The essence of a cause of action is the existence of a primary right 14 and one violation of that right, i.e. it arises out of an antecedent primary right and corresponding duty, and a breach of such primary 15 right and duty by the person upon whom the duty rests. . . . The primary right and duty and the delict or wrong constitute the cause of 16 action in the legal sense. . . . The cause of action is simply the obligation sought to be enforced." (Emphasis added.) 17 Colvig v. RKO Gen. (1965) 232 Cal.App.2d 56, 65-66. 18 19 C. In The Present Situation, The Two Cases Do Not Involve The Same Primary Rights. 20 1. The Related Case. 21 In the related case, Svensson's operative affirmative pleading is his First Amended 22 Complaint (the "FAC"). In the FAC, Svensson has pleaded "causes of action" labeled as follows 1: 23 ( 1) Breach of Contract - Employment Agreement; 24 (2) Breach of Contract - Employment Agreement - Alternative; 25 (3) Breach of Contract - Stock Award Agreement; 26 27 As Wade points out, these "causes of action" are more properly referred to as "legal 28 theories." Svensson refers to them as causes of action simply because this is the generally accepted manner in which to plead them. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 3_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS 1 (4) Violation of California Labor Code; 2 (5) Derivative Claim - Breach of Fiduciary Duty; 3 (6) Breach of Contract - Shareholders' Agreement; and 4 (7) Declaratory Relief - Shareholders' Agreement. 5 By doing so, Svensson has asserted a violation of five separate primary rights, as follows: 6 * Rights under his employment contract (Causes of Action ## 1 and 2); 7 * Rights under his stock award agreement (Cause of Action# 3); 8 * Rights under California employment law (Cause of Action# 4); 9 * Rights as a shareholder to sue on behalf of the company to remedy malfeasance by Strauss and Brian Casey (Cause of Action # 5); and 10 * Rights under his shareholders agreement (Causes of Action ## 6 and 7). 11 12 In the Related Case Svensson has not alleged a cause of action seeking to enforce his rights 13 as a director and shareholder to obtain information about the operations, management, and finances 14 of iO73. It is true that he has sought such information through the discovery process in the related 15 case. But this discovery is simply part of the litigation process in Svensson' s efforts to vindicate 16 his primary rights, as discovery is part of every litigated matter. The right to discovery IS NOT not 17 one of Svensson' s five primary rights he seeks to vindicate. 18 So, in other words, the fact that Svensson is seeking information through discovery does not 19 transform the related case into the "same cause of action" as this mandamus proceeding for 20 purposes of Code of Civil Procedure § 430.10(c)' s "another action pending" rule. 21 2. This Mandamus Proceeding. 22 In this proceeding, the primary rights Svensson seeks to enforce ARE his rights to 23 infonnation about the operations, management, and finances of iO73 in his capacity as a director 24 and shareholder. This is a different primary right than the five primary rights at issue in the related 25 case. 26 As a result, this mandamus proceeding does not involve the same cause of action as the 27 related case. The Demurrer must be overruled. 28 Ill ___________________4_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS 1 III. CONCLUSION 2 Based on the foregoing, Svensson respectfully requests that this Court overrule the 3 Respondents' Demurrer. 4 5 DATED: March li, 2021. SEED MACKALL LLP 6 u By: _ _,, -l, (J - :c.....__;r-.r __ L-- _ _ _ _ _ _ _ _ _ _ __ 7 Alan D. Condren Elan A. Shpigel 8 Attorneys for Petitioner Jonas Svensson 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 5 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ PETITION JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDAMUS 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA: 3 I am employed in the County of Santa Barbara, State of California. I am over the age of 18 4 years and not a party to the within action; my business address is 1332 Anacapa Street, Suite 200, Santa Barbara, CA 93101. 5 6 On March 24, 2021, I served the foregoing document described as PETITIONER JONAS SVENSSON'S OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF 7 MANDAMUS on interested parties in this action by placing true copies thereof enclosed in a sealed envelope addressed as follows: 8 9 Selna Partners LLP Attorneys for Respondents 70 Washington Street, Suite 303 i073 Investments, Inc. 10 Oakland, CA 94607 Tristan Strauss 11 Steven M . Selna Robert W. Selna 12 13 (BY MAIL) I deposited such envelope in the mail at Santa Barbara, California. The 14 envelope was mailed with postage thereon fully prepaid. 15 (BY MAIL) I am "readily familiar" with the firm's practice of collecting and processing correspondence for mailing. Under that practice it would be deposited with the U.S . Postal 16 Service on that same day with postage thereon fully prepaid at Santa Barbara, California in 17 the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after 18 date of deposit for mailing in affidavit. 19 ___x (BY OTHER OVERNIGHT DELIVERY) I deposited such envelope in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized 20 courier or driver authorized by the express service carrier to receive documents, in an 21 envelope or package designated by the express service carrier with delivery fees paid or provided for. 22 23 X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 24, 2021, at Santa Barbara, California. 24 25 Elan A. Shpigel 26 27 28