Filed 7/9/15 Freeman v. Friedman CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


BARRY FREEMAN,                                                       B250005

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC470137)
         v.

REBECCA FRIEDMAN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E.
Chavez, Judge. Affirmed.
         Freedman+Taitelman, Bryan J. Freedman, Jesse A. Kaplan and September Rea for
Defendant and Appellant.
         Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Plaintiff and
Respondent.
                                             _________________________
                                       INTRODUCTION
       Rebecca Friedman filed a dissolution action against her husband, Marc Friedman,1
in Orange County Superior Court. A receiver was appointed in the dissolution action to
investigate businesses Rebecca claimed were community assets. Dr. Barry Freeman,
however, claimed to own those businesses, and he therefore filed a complaint in the
Los Angeles Superior Court against Rebecca seeking a declaration he was the sole owner
of the businesses. The Los Angeles Superior Court granted judgment in Barry’s favor.
Rebecca (defendant and appellant) appeals, contending that the Los Angeles Superior
Court lacked jurisdiction to issue that judgment in favor of Barry (plaintiff and
respondent). We disagree and affirm the judgment.
                                     BACKGROUND
       On May 11, 2010, Rebecca filed, in Orange County Superior Court, a petition for
dissolution of her marriage to Marc.2 Marc submitted a schedule of assets indicating he
had a partnership or business interest in various medical businesses.3 After Marc failed
to comply with support orders, Rebecca moved to have a receiver appointed. The hearing
on Rebecca’s motion was scheduled for September 23, 2011.
       The day before Rebecca’s motion was heard, Barry filed, on September 22, 2011,
a complaint against Rebecca in Los Angeles Superior Court seeking a declaration he




1
       Because of similarities in surnames, we use first names.
2
      In re Marriage of Rebecca and Marc Friedman (Super. Ct. Orange County, 2010,
No. 10D004435).
3
       West Coast Surgery Center; Motion Analysis, Inc.; American Medical Solutions,
Inc.; Beverly Hills Plastic Surgery Physicians, Inc.; State of the Art Surgery Center, Inc.;
L.A. Beautiful, Inc.; El Monte Foot Clinic, Inc.; Greater Continental Financial Group;
and RX Consulting. Rebecca also claimed that Marc had an interest in Downey Multi
Specialty Clinic, Inc., and San Gabriel Valley Podiatry Group.


                                             2
owned the businesses.4 Barry referenced the motion for appointment of a receiver, and
he attached a copy of the Orange County dissolution action to his complaint.
       The day after Barry filed his declaratory relief action in Los Angeles Superior
Court, Rebecca’s motion for appointment of a receiver was heard in the Orange County
dissolution action, on September 23, 2011. At that hearing, Barry moved ex parte to
intervene in the dissolution action. Rebecca’s counsel objected to the ex parte notice.
The court denied Barry’s application: “Well, the ex parte request is denied. This can be
done other ways: they can do a separate civil suit, some other action. It’s not going to
drag this proceeding along any farther than it already has been. . . . [¶] So if there’s other
ways that this can be done, I’m just suspicious about the timing, so that’s denied. And
I’m not going to set a hearing on that. If someone has to file something in the regular
notice channels, that’s fine; but ex parte relief is denied.” The court then appointed a
receiver and, on October 21, 2011, issued an order authorizing the receiver to “take
possession and control of all income, rents, issues and profits generated” by the medical
businesses.5
       Rebecca’s dissolution action in Orange County and Barry’s declaratory relief
action in Los Angeles proceeded, with both courts aware of the other and with Barry
participating in some of the proceedings in the dissolution action. Then, on August 9,
2012, the Los Angeles Superior Court lifted any “stay” imposed, allowed full discovery
to commence, and ordered the parties to prepare for trial on Barry’s complaint for
declaratory relief. Rebecca was ordered to file a responsive pleading. According to the




4
       The complaint also stated causes of action for injunctive relief and tortious
interference with contractual relations and with prospective business advantage. Those
causes of action were later dismissed.
       Barry filed, in the dissolution action in Orange County, a notice of related case.
5
       By orders dated November 10, 2011, October 10, 2012, and February 7, 2013, the
receiver’s powers were expanded. Barry filed objections to the receiver’s requests for an
expansion of power.


                                              3
case summary, Rebecca answered the complaint in pro per on September 10, 2012. The
answer does not appear to be a part of the record on appeal.
       A court trial was held on April 8, 2013 on Barry’s complaint, Judge Victor E.
Chavez presiding.6 Rebecca appeared in pro per and testified, as did Matthew Eandi,
counsel for the receiver. The trial was not reported. The Los Angeles Superior Court
granted declaratory relief to Barry.7 On May 7, 2013, the Los Angeles Superior Court
issued an amended judgment declaring Barry to be the lawful owner of West Coast
Surgery Center; Motion Analysis, Inc.; American Medical Solutions, Inc.; Beverly Hills
Plastic Surgery Physicians, Inc. dba L.A. Beautiful, Inc.; State of the Art Surgery Center;
Downey Multi Specialty Clinic, Inc.; El Monte Foot Clinic, Inc.; and San Gabriel Valley
Podiatry Group, Inc.8 Judgment was entered on May 22, 2013.


6
      The matter was transferred for trial to Judge Chavez, who was not the status
conference judge.
7
       After obtaining a judgment on his declaratory relief action, Barry, on April 25,
2013, filed, in connection with the Orange County dissolution action, a petition for writ
of mandate/prohibition in the Court of Appeal, Fourth District, Division Three asking it
to vacate orders establishing the receivership and giving the receiver power of the
businesses. The Court of Appeal summarily denied Barry’s petition.
8
        After the Los Angeles Superior Court issued its judgment on Barry’s declaratory
relief action, the family law court in the dissolution action issued an order, on April 26,
2013, stating it “maintains exclusive jurisdiction and control over Byron Z. Moldo, State
Court Receiver, . . . in his official capacity as Receiver as defined by the orders of the
Appointing Court. The Appointing Court’s exclusive jurisdiction extends to all property,
assets and funds in the Receivership Estate as may be defined by the existing and future
orders of this Appointing Court. [¶] . . . [T]he Receiver shall act only in accordance with
the Orders of the Appointing Court and that no person or entity shall take any action
against the Receiver or property, assets or funds of the Receivership Estate, as defined by
the Appointing Court, without obtaining permission, authorization, or further order(s)
from the Appointing Court. Any judgment or orders obtained in contravention to the
orders of this Appointing Court are ineffective as to the Receiver and the Receivership
Estate. [¶] . . . [A]t the time of entry of this Order, no person or entity has been granted
permission by this Appointing Court to take any action, whether in law or equity, against
the Receiver, the Receivership Estate, or the assets and property that are included in the
Receivership Estate . . . .” The court crossed out proposed language regarding an OSC

                                             4
       After trial, Barry moved for injunctive relief in the Los Angeles Superior Court.
The receiver opposed the motion on the ground that the family law court in Orange
County had exclusive jurisdiction and the receiver had not been joined in the Los Angeles
Superior Court declaratory relief action. Judge Chavez issued a temporary restraining
order restraining Rebecca and the receiver from, for example, distributing funds from the
businesses or liquidating the businesses’ assets. The court set a hearing for a preliminary
injunction, which Rebecca opposed on the same jurisdictional grounds. At the hearing on
the preliminary injunction, the issue of jurisdiction was discussed. On May 9, 2013, the
court issued a preliminary injunction on the same terms as the temporary restraining
order and ordered Barry to post a bond.9
       This appeal followed.
                                       DISCUSSION
I.     The Los Angeles Superior Court had jurisdiction to hear Barry’s declaratory
relief action.
       Because Rebecca’s dissolution action was filed before Barry’s declaratory relief
action, Rebecca claims that the Los Angeles Superior Court lacked “jurisdiction.”
Rebecca appears to rely on two doctrines of jurisdiction—subject matter jurisdiction and
exclusive concurrent jurisdiction—as bars to Barry’s declaratory relief action.
       “Subject matter jurisdiction . . . is the power of the court over a cause of action or
to act in a particular way.” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th
1028, 1035; see also Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 503, 512.)
“The California Constitution confers broad subject matter jurisdiction on the superior


against Barry and restraining Barry from taking action against the Receiver and assets of
the Receivership estate, including the medical businesses.
9
       Barry had also filed an application for an order to show cause re contempt against
Rebecca and the receiver for violating the preliminary injunction, which the court denied.
       Rebecca filed motions for (1) reconsideration of the court’s order granting the
preliminary injunction; (2) to set aside the judgment; and (3) objecting to the amount of
the bond. The motions were denied.


                                              5
court. [Citation.] The subject matter jurisdiction of the superior court is limited in
certain circumstances, however, such as in areas of exclusive federal jurisdiction
[citation], matters within the exclusive jurisdiction of an administrative agency [citation],
and where jurisdiction is vested in a reviewing court as a result of the filing of a notice of
appeal [citation].” (Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th
1014, 1029.)
       To the extent Rebecca challenges the Los Angeles Superior Court’s “subject
matter jurisdiction” to hear Barry’s declaratory relief action, we reject any challenge on
this ground. None of the circumstances limiting a superior court’s subject matter
jurisdiction are present here. This is not, for example, a matter of exclusive federal
jurisdiction or a case within the exclusive jurisdiction of an administrative agency.
Which action—the dissolution action or the declaratory relief action—was filed first is
irrelevant to determining subject matter jurisdiction. The Los Angeles Superior Court
had subject matter jurisdiction over Barry’s declaratory relief action.
       The second jurisdictional doctrine is “exclusive concurrent jurisdiction.”
“Exclusive concurrent jurisdiction” provides that when two or more courts have subject
matter jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the
exclusion of the others. (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising
(2000) 85 Cal.App.4th 1168, 1175; see also Levine v. Smith (2006) 145 Cal.App.4th
1131, 1135 [“Under the doctrine of priority of jurisdiction, the first superior court to
assume and exercise jurisdiction in the case acquires exclusive jurisdiction until the
matter is disposed of”]; People ex rel. Garamendi v. American Autoplan, Inc. (1993)
20 Cal.App.4th 760, 770 (Garamendi).) “That the parties in the two actions ‘are not
entirely identical’ and ‘that the remedies sought by the two actions are not precisely the
same’ is not controlling. [Citation.] It is sufficient for the exercise of a protective
equitable jurisdiction that the” issue in both suits “arises out of the same transaction or
events.” (Franklin & Franklin, at p. 1175; see also Garamendi, at p. 770.) The rule rests
on practical considerations; namely, avoiding the unfortunate result of conflicts.
(Franklin & Franklin, at p. 1175.)

                                               6
       The rule is a “judicial rule of priority or preference and is not jurisdictional in the
traditional sense of the word,” in that it does not divest a court, which “otherwise has
jurisdiction of an action, of jurisdiction.” (Garamendi, supra, 20 Cal.App.4th at pp. 764-
765, 769.) Hence, a failure to comply with the rule renders subsequent proceedings
voidable, not void. (Id. at p. 772.) The rule is “similar to an affirmative defense and the
remedy for its applicability is a stay of the second action. Prior to an appropriate
pleading requesting such a stay, the trial court in the second action properly exercises its
jurisdiction.” (Id. at p. 769.) Exclusive concurrent jurisdiction therefore should be raised
“by demurrer where the issue appears on the face of the complaint and by answer where
factual issues must be resolved.” (Id. at p. 771.) If raised by answer, the party asserting
the rule may raise it by way of a motion to dismiss or to abate or a motion for summary
judgment. (Ibid.) If not raised, the jurisdictional “defense” is subject to waiver and
estoppel. (Sea World Corp. v. Superior Court (1973) 34 Cal.App.3d 494, 500-502.)
       We will assume here that the rule of exclusive concurrent jurisdiction applies and
that the Orange County Family Law Court in the dissolution action potentially had
“priority.” (See Garamendi, supra, 20 Cal.App.4th at p. 770 [“Ordinarily, ‘[p]riority of
jurisdiction resides in the tribunal where process is first served’ ”].) The problem,
however, is that, on this record, Rebecca failed to raise properly and in a timely manner
exclusive concurrent jurisdiction in the lower courts. In his complaint, Barry alleged that
the dissolution action was pending, and he attached the dissolution action as an exhibit.
A defense based on exclusive concurrent jurisdiction was therefore apparent on the face
of Barry’s complaint, rendering the complaint subject to attack. (Id. at p. 771; Code Civ.
Proc., § 430.10, subd. (a).) Although a minute order from a status conference indicates
that the Los Angeles Superior Court was aware of the dissolution action, nothing in the
record shows that Rebecca raised the jurisdictional bar by demurrer, in her answer or by
motion.10 Indeed, it is unclear, because the trial proceedings were unreported, whether
Judge Chavez, to whom the declaratory relief action was transferred for trial, was aware

10
       The Appellant’s Appendix does not contain either a demurrer or an answer.


                                               7
of the issue before conducting the trial.11 Jurisdiction may have first been raised in the
Los Angeles Superior Court at a post-trial hearing on May 9, 2013 in connection with
Barry’s motion for a preliminary injunction. But an opposition to a preliminary
injunction, filed after a trial on the merits, is not an appropriate vehicle to raise the
defense. (See Garamendi, supra, 20 Cal.App.4th at p. 774.)
       Nor does the record show that the Orange County Family Law Court issued any
order establishing its exclusive concurrent jurisdiction or joining Barry as a party to the
dissolution action, although the court could have done so, before the Los Angeles case
proceeded to trial. (See generally Fam. Code, § 2021, subd. (a) [a third party who has an
interest in a family law proceeding may be joined as a party]; Schnabel v. Superior Court
(1994) 30 Cal.App.4th 758, 762-763 [trial court abused its discretion by denying wife’s
request in a dissolution action to join third party corporation in which the community
owned an interest]; Cal. Rules of Court, rule 5.24 [a “person who claims or controls an
interest in any matter subject to disposition in the proceeding may be joined as a party to
the family law case”]; Cal. Rules of Court, rule 5.24(c)(1) [petitioner or respondent may
request joinder of a party possessing or controlling property subject to the jurisdiction of
the court in the proceeding]; Cal. Rules of Court, rule 5.24(e)(2) [court may order a
person joined to a family law proceeding if joinder is appropriate to determine a
particular issue, and the person to be joined is either indispensable to a determination of
that issue or necessary to the enforcement of any judgment rendered on that issue].)
       In Glade v. Glade (1995) 38 Cal.App.4th 1441 (Glade), for example, wife filed a
dissolution action. Husband’s parents then filed a separate action to foreclose on the
community property residence, because parents held the deed of trust securing a loan on
the property. (Id. at p. 1445.) Wife moved in the dissolution action to (1) consolidate the
matters, (2) to join the parents to the dissolution action, and (3) for a stay of the
foreclosure action. (Id. at p. 1446.) The judge in the dissolution action granted the


11
      In fact, Rebecca has stated that the issue “was not fully briefed for the
[Los Angeles Superior] Court when the matter was called to trial.”


                                               8
joinder motion12 and stayed the foreclosure action. (Id. at p. 1447.) Before wife’s
attorneys could inform the foreclosure court of the orders issued by the dissolution court,
the foreclosure court granted the parents’ motion for summary judgment. (Id. at
pp. 1447-1448.) The foreclosure court then denied wife’s motion for reconsideration,
which was based on the joinder and stay orders.
       Glade found that the dissolution court had priority jurisdiction, given “the family
law court’s broad jurisdictional authority where the right to and disposition of community
property are concerned.” (Glade, supra, 38 Cal.App.4th at p. 1450.) The court therefore
found that the family law court had the authority to stay the foreclosure action. (See also
Askew v. Askew (1994) 22 Cal.App.4th 942, 962 [husband’s separate civil action, filed
after dissolution, “usurped the power and obligation of the family law court to determine
the character of the . . . properties. . . . Given that the family law court already had
subject matter jurisdiction to divide the community property, the civil trial court had no
jurisdiction to so act”].)13
       Unlike in Glade, the record on appeal here does not demonstrate that the family
law court exercised any right it had to exclusive concurrent jurisdiction. The family law
court, for example, denied Barry’s ex parte application to intervene. True, the court did
so primarily on notice grounds and Barry could have filed a properly noticed motion. But
this record does not conclusively show that either the family law court or Rebecca took
any action, for example, to join Barry to the dissolution action, to stay the declaratory
relief action or to consolidate the two actions. “When a case is filed with the court and
jurisdiction of the parties has been obtained, the court does not thereby assume exclusive
jurisdiction of that case and its subject matter, even if under the pecking order it has a

12
        The joinder issue was more complex, involving the parents as individuals and a
trust, of which they were trustees.
13
       The wife in Askew demurred to husband’s civil action and sought its consolidation
with her dissolution action. (Askew v. Askew, supra, 22 Cal.App.4th at p. 948.) The
motions were denied, and the parties then agreed that the property issues in the
dissolution action would be resolved after the civil action. (Ibid.)


                                               9
right to do so, if another suit involving the same subject matter is filed in a court of
concurrent jurisdiction which proceeds without being interfered with to have a hearing in
which all parties participate.” (Sea World Corp. v. Superior Court, supra, 34 Cal.App.3d
at pp. 500-501.)
       Instead, the record suggests that the family law court in the dissolution action was
waiting for the Los Angeles Superior Court to issue a judgment. At a hearing on
October 30, 2012, the family law court said, “So let’s have the evidentiary hearing and
see what we decide until the L.A. court determines what the – who owns it.” Barry’s
counsel represented to the Los Angeles Superior Court that he’d offered to stipulate to
intervene in the dissolution action, but “my offer was not taken up.” He further
represented that the Orange County court said “on at least four occasions, said on the
record . . . that we are just talking about temporary, and we are going to wait until what
the L.A. court decides and we will see what happens in L.A. we will see what happens on
the other case.” We therefore cannot find, on this record, that jurisdictional precedence
was properly and timely asserted.
       We also cannot find, on this record, that Rebecca has suffered a miscarriage of
justice from the Los Angeles Superior Court’s exercise of jurisdiction and judgment that
Barry owns the medical businesses. (See Garamendi, supra, 20 Cal.App.4th at p. 772
[“[t]rial court error in determining application of the rule of exclusive concurrent
jurisdiction is reversible only where the error results in a miscarriage of justice or
prejudice to the party asserting the rule”]; accord, Stearns v. Los Angeles City School
Dist. (1966) 244 Cal.App.2d 696, 717-718.) First, Rebecca does not challenge the merits
of the declaratory judgment. Second, as the judge in the dissolution action noted, the
declaratory judgment does not necessarily resolve the issues in the dissolution action.14

14
       At a hearing on April 26, 2013, the court in the dissolution action referred to Judge
Chavez’s judgment and noted that “the fact that [Barry’s] the legal owner with Judge
Chavez’[s] order, that still doesn’t solve my problem. That doesn’t mean there isn’t a
partnership interest. He may be the legal owner, but what partnership interest does
[Marc] have, or does he have a lease interest in the fixtures? There are a million other
things. So that order doesn’t do much for me by any stretch of the imagination.”

                                              10
       We therefore conclude that, on this record, Rebecca has not demonstrated either
that the Los Angeles Superior Court lacked jurisdiction to issue the judgment in Barry’s
favor or that a miscarriage of justice has resulted thereby.
II.    The record on appeal is inadequate to address the bond issue.
       Judge Chavez issued a preliminary injunction and ordered Barry to post a $50,000
bond. Rebecca contends that Barry failed to post that bond, and therefore the preliminary
injunction is void. (Code Civ. Proc., § 529, subd. (a) [on granting an injunction, the court
generally must require an undertaking].) The problem again, however, is that the record
on appeal does not show that this issue was raised in the trial court. The record contains
Rebecca’s “notice of objection to bond as insufficient and request to increase bond after
evidentiary hearing.” The record also contains Rebecca’s opposition to Barry’s
“application for [an] order to show cause re contempt” arguing that the application should
be denied because, among other things, a bond had not been posted.
       The record does not contain, for example, a motion to dissolve the injunction
because Barry failed to post the bond. Rebecca has not cited any part of the record
showing that Judge Chavez considered the issue. As the appellant, Rebecca had a duty to
provide an adequate record to demonstrate error. To the extent the record precludes an
adequate review of this and Rebecca’s other contentions, we make all reasonable
inferences in favor of the judgment. (See generally Estrada v. Ramirez (1999)
71 Cal.App.4th 618, 620, fn. 1; Rossiter v. Benoit (1979) 88 Cal.App.3d. 706, 712,
overruled on another ground by Wilson v. Garcia (1985) 471 U.S. 261; Cal. Rules of
Court, rules 8.120(b), 8.134 & 8.137.)15




15
       Barry’s respondent’s brief on appeal includes a motion to dismiss the appeal
because Rebecca failed to designate the reporter’s transcript from the trial. Any failure to
submit a settled or agreed statement (because the trial was unreported) is not a ground to
dismiss the appeal, although, as we have said, it is relevant to the adequacy of the record
to determine the issues Rebecca raises on appeal.


                                             11
                                    DISPOSITION
      The motion to dismiss the appeal is denied. The judgment is affirmed. Plaintiff
and Respondent Dr. Barry Freeman is to recover his costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                       ALDRICH, J.




We concur:




             KITCHING, Acting P. J.




             EGERTON, J.





        Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           12
