2008-05-16_County_of_Hawaii_Answering_Brief_re_Robert_Nigel_Richards

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a would remain silent,not raise in the state action a plea in abatement or a defense of prior action pending,wait for the entry of the federal judgment, and only then raise the claim-splitting defense in a motion for summary judgment on the ground of res judicata.") Indeed,Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal.App.4th 1168, 1175, 102 Cal.Rptr.2d 770(2000)held that the rule of priority (the second case abates to the first)"is designed to avoid the unfortunate results of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached." Red Mountain, LLC v. Fallbrook Public Utility District, 143 Cal.App.4th 333, 356-57,48 Cal.Rptr.3d 875, 895 (2006) ("Klopping is inapposite because Fallbrook's eminent domain action and Red Mountain's inverse condemnation action were consolidated and proceeded to judgment together, and the two actions did not involve the exact same property, legal issues or damages. In any event,Klopping does not support the proposition that an inverse condemnation action cannot exist contemporaneously with an eminent domain action involving the same property. Mopping contemplates separate, unconsolidated actions pending simultaneously,with one of the actions proceeding to judgment first and precluding a later judgment in the other action on the same issues.") See Shelton, 51 Haw. at 249,456 P.2d at 226 (1969)("Abatement almost always refers to a procedural or jurisdictional defect which can be cured rather than to a substantive issue.") Not surprisingly, the County is unable to locate a case that applied abatement where the cases were consolidated. In this case, if the matters were sufficiently the same such that abatement might apply, consolidation was an appropriate procedural cure (and one that was requested by the Coupes)to achieve the policies underlying the abatement doctrine. While some courts have described abatement in terms applied to the doctrine of res judicata, those courts require strict compliance with the same causes and same relief elements. Horter v. Commercial Bank& Trust Co., 99 Fla. 678, 685, 126 So. 909, 912 (1930) ("The identity of the matters involved must be such that a judgment in the first suit could be pleaded in bar as a former adjudication.") In this case, assuming arguendo that this Court disagrees with the trial court and finds that the causes and relief of the cases are identical, res judicata would not apply to bar Civil No. 05-1-15K or any other case because Civil No. 00-1-181K commenced before the County Council passed Resolution 31-03. Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731, 739 (C.A.Cal. 1984.) ("The rule that a judgment is conclusive as to every matter that might have been litigated `does not apply to new rights 18