Mungia v. Superior Court for Los Angeles County

Decision Date03 March 1964
Citation37 Cal.Rptr. 285,225 Cal.App.2d 280
CourtCalifornia Court of Appeals Court of Appeals
PartiesFred MUNGIA, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Lillian A. MUNGIA, Real Party in Interest. Civ. 27892.

Edwin W. Wilson, Bakersfield, for petitioner.

No appearance for respondent.

William T. Brandlin, Los Angeles, for real party in interest.

FILES, Justice.

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 be 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, § 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 be held on November 20, 1963, regarding suit money, temporary support and child custody. It is 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. (Figgs v. Superior Court, 204 Cal.App.2d 231, 22 Cal.Rptr. 199; Apartments, Inc. v. Trott, 172 Cal.App.2d 7, 14, 342 P.2d 32; M. H. Golden Const. Co. v. Superior Court, 98 Cal.App.2d 811, 221 P.2d 218. See Cade v. Superior Court, 191 Cal.App.2d 554, 12 Cal.Rptr. 847; Gorman v. Superior Court, 23 Cal.App.2d 173, 72 P.2d 774; De Brincat v. Mogan, 1 Cal.App.2d 7, 36 P.2d 245. Cf. Scott v. Industrial Accident Commission, 46 Cal.2d 76, 293 P.2d 18.)

In the present case the showing made in connection with Fred's demurrer demonstrated that the Kern County action was entitled to priority, and that Fred objected to further proceedings in Los Angeles. It was and is, therefore, the duty of the Los Angeles court to desist. The critical facts--that the Kern County action is one for divorce between the same parties and that process was first served in the Kern action--have never been in dispute.

There is no reason to doubt that an action for divorce and an action for separate maintenance between the same parties involve the same subject matter, within the meaning of the above stated rule. (Cf. Rilcoff v. Superior Court, 50 Cal.App.2d 503, 123 P.2d 540.) It would be absurd to permit these parties to carry on the two actions between them in different counties.

Lillian argues that the authorities cited above for the rule of priority are inapplicable here because they all involve actions in personam, while a divorce action is in part an action in rem. Her theory is that where the jurisdiction is in rem, jurisdiction attaches when the complaint is filed.

Preliminarily, we may note and pass by Lillian's unstated assumption that an action for separate maintenance is, like a divorce case, an action in rem (see 1 Witkin, California Procedure, Jurisdiction, § 110, p. 375), because in our view the fact that matrimonial litigation has some of the characteristics of an action in rem should not be determinative here.

The California cases cited for the rule giving priority to the court whose process is served first recognize that both courts have jurisdiction over the subject matter. Each attains jurisdiction over the person by the service of process. The issue in a situation of this kind is not which court has jurisdiction, but which shall have priority. These decisions rely in part upon the provisions of Code of Civil Procedure, § 416, which provides, 'From the time of the service of the summons and of a copy of the complaint in a civil action, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of the parties, and to have control of all subsequent proceedings.'

The theory of the cases is that the first court to acquire jurisdiction over the...

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17 cases
  • Stearns v. Los Angeles City School Dist.
    • United States
    • California Court of Appeals Court of Appeals
    • September 8, 1966
    ...597, 599--600, 46 Cal.Rptr. 153; Padula v. Superior Court (1965) 235 Cal.App.2d 567, 571, 45 Cal.Rptr. 500; Mungia v. Superior Court (1964) 225 Cal.App.2d 280, 283, 37 Cal.Rptr. 285; Figgs v. Superior Court (1962) 204 Cal.App.2d 231, 233, 22 Cal.Rptr. 199; Robinson v. Superior Court (1962) ......
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    • January 26, 2007 The case that first acquires jurisdiction of the parties is entitled to retain exclusive jurisdiction. (Mungia v. Superior Court (1964) 225 Cal. App.2d 280, 283 Father then filed a writ petition requesting this court to order the superior court to remove Maternal Grandmother as guardi......
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    • July 17, 1997 that California law requires priority of the actions to be determined by the order of service, citing Mungia v. Superior Court, 225 Cal.App.2d 280, 283, 37 Cal.Rptr. 285, Robinson v. Superior Court, 203 Cal.App.2d 263, 267, 21 Cal.Rptr. 475 and Burch v. Slamin, 137 Cal.App.2d 1, 289 P.2d......
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1 books & journal articles
  • Winning the "race to the courthouse": the principle of priority.
    • United States
    • Florida Bar Journal Vol. 83 No. 11, December 2009
    • December 1, 2009
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