A plaintiff is enjoined from bringing a second action based on the same subject matter, facts and issues of a prior action.  When “there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory between the same parties involving the same or substantially the same subject matter and cause of action in which prior action the rights of the parties may be determined and adjudged” the second action is generally abated.[i]

However, the mere fact that a second suit was commenced by the plaintiff while the first suit was pending does not show that the second suit was essentially vexatious.[ii]  The rule of abatement is envisaged to prevent injustice resulting from harassment by having to defend several suits on the same cause of action at the same time.  Hence the court may inquire and determine whether the second suit was vexatious or was necessary to protect and secure the plaintiff’s full rights.[iii]  In case of conflict between courts of concurrent jurisdiction the one first exercising jurisdiction acquires control to the exclusion of the other.[iv]

The defendant may assert the pending action as a bar either by demurrer, or where fact issues must be resolved, by answer.[v]  The court will enter the interlocutory judgment barring the second action and when such a judgment is entered, “no trial of other issues shall be had until the final determination of that other action.”

While “abatement” and a “stay of proceedings” are in somewhat similar, they are not identical.  “To abate a suit is to put an end to its existence.” [vi]  Abatement of the second action is a matter of right and a trial court has no discretion to allow the second action if the court finds that the controversy in the first and second action between the same parties is substantially the same.[vii]

It is to be noted that abatement is required only where the multiple actions are pending in courts of the same state and prior suit in one state cannot be pleaded as a bar to a subsequent suit in another state even though both suits are between the same parties and upon the same cause of action.[viii]

Also where the actions are pending in different state courts, the determination whether to stay the second action is discretionary, not mandatory.  Where the actions are filed in different state courts, the defendant should raise the pendency of prior action by motion and not by a demurrer. [ix]  The burden of proof rests on the party who files a motion for abatement. 

[i] Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541 (Mo. Ct. App. 1998)

[ii] Fontaine v. Peddle, 144 Me. 214, 217 (Me. 1949)

[iii] Id.

[iv] Martinez v. Martinez, 153 Fla. 753, 757 (Fla. 1943)

[v] Lord v. Garland, 27 Cal. 2d 840 (Cal. 1946)

[vi] Dodge v. Superior Court of County of Los Angeles, 139 Cal. App. 178 (Cal. App. 1934)

[vii] Lawyers Title Ins. Corp. v. Superior Court, 151 Cal. App. 3d 455 (Cal. App. 1st Dist. 1984)

[viii] Simmons v. Superior Court of Los Angeles County, 96 Cal. App. 2d 119 (Cal. App. 1950)

[ix] Engle v. Superior Court of San Joaquin County, 140 Cal. App. 2d 71 (Cal. App. 3d Dist. 1956)