Judge: Anne Richardson, Case: 22STCV09953, Date: 2024-05-15 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV09953    Hearing Date: May 15, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff SL Retail Owner LLC (SL Retail) sues Christopher Au and Does 1 through 20 pursuant to a May 26, 2022, First Amended Complaint alleging two breach of guaranty claims.

The claims arise from allegations that Keisuke LLC leased commercial mall space from SL Retail and that Keisuke LLC defaulted on its two lease agreements—the Keisuke Lease and the Ushi Ushi Lease—with Defendant Au, Keisuke LLC’s guarantor, subsequently failing to compensate SL Retail following Keisuke LLC’s default.

On May 26, 2022—the same day on which the FAC was filed by SL Retail—SL Retail filed a request for dismissal without prejudice in relation to Defendant Keisuke LLC.

On May 31, 2022, the Clerk entered the dismissal of Keisuke LLC.

B. Related Case

On February 28, 2024, Christopher Au filed a notice of related case in relation to Keisuke SC LLC et al. v. SL Retail Owner LLC, LASC No. 24STCV00971.

In LASC No. 24STCV00971, Keisuke LLC and Ushi Ushi LLC (Ushi Ushi) sue SL Retail and Does 1-10 pursuant to a January 12, 2024, Complaint alleging claims of (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, and (3) Declaratory Relief.

The claims arise from the following allegations, as summarized by the moving papers before the Court. After SL Retail found more desirable tenants to occupy the restaurant spaces rented by Keisuke LLC and Ushi Ushi, SL Retail deliberately acted to prevent Keisuke LLC and Ushi Ushi from fulfilling their contractual obligations and from operating their businesses. For example, SL Retail failed to provide the requisite paperwork in order for Keisuke LLC and Ushi Ushi to secure the necessary permits to establish their businesses, and as a result, hindered Keisuke LLC’s and Ushi Ushi’s ability to launch or open their businesses. SL Retail also prematurely charged rent from Keisuke LLC and Ushi Ushi at a time when Keisuke LLC and Ushi Ushi had not yet opened for business.

On March 1, 2024, the Court related this action (LASC No. 22STCV09953) and the later-filed action (LASC No. 24STCV00971) for all purposes. This action was designated the Lead Case, and all hearings other than in the Lead Case were taken off calendar.

C. Motion Before the Court

On April 2, 2024, Christopher Au, Keisuke LLC, and Ushi Ushi filed a motion to consolidate the two actions discussed above. The motion also includes a request to continue trial in the Lead Case, which appears in the motion’s notice and points and authorities.

On May 2, 2024, SL Retail filed an opposition.

On May 8, 2024, Christopher Au, Keisuke LLC, and Ushi Ushi filed a reply.

Christopher Au, Keisuke LLC, and Ushi Ushi’s motion is now before the Court.

II. Motion to Consolidate: DENIED.

A. Request for Judicial Notice

Per the request of Christopher Au, Keisuke LLC, and Ushi Ushi, the Court takes judicial notice of filings made with this Superior Court in four distinct actions involving the above parties. (Mot., RJN, p. 2, Exs. A-F; Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

B. Legal Standard

When cases involving a common question of law or fact are pending in the same superior court, i.e., in the same county, the cases can be consolidated on a party’s motion or on the court’s own motion under Code of Civil Procedure section 1048, subdivision (a).

Cases can be consolidated for (1) all purposes (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147; see Code Civ. Proc., § 1048, subd. (a)), (2) for trial (Stubblefield Constr. Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 701; see Code Civ. Proc., § 1048, subd. (a)), or (3) for limited purposes, e.g., discovery or pretrial matters (see Code Civ. Proc., § 1048, subd. (a); see, e.g., State v. Altus Fin., S.A. (2005) 36 Cal.4th 1284, 1293 [cases consolidated for discovery and pretrial matters]; Austin B. v. Escondido Un. Sch. Dist. (2007) 149 Cal.App.4th 860, 870 [cases consolidated for discovery and trial]; Frieman v. San Rafael Rock Quarry, Inc. (2004) 116 Cal.App.4th 29, 33 [cases consolidated for discovery and pretrial determinations]).

To prevail on a motion to consolidate, a movant must establish that (1) the cases are pending before the same court, (2) the cases share a common question of law or fact, and (3) the benefits of consolidation outweigh the burdens. (See Code Civ. Proc., § 1048, subd. (a).)

C. Analysis

A party moving for consolidation must establish that the cases being consolidated are pending in the same superior court, i.e., in the same county. (Code Civ. Proc., § 1048, subd. (a).) In the Los Angeles Superior Court, “[c]ases may not be consolidated unless they are in the same department.” (Super. Ct. L.A. County, Local Rules, rule 3.3(g)(1).)

Here, the Lead Case and LASC No. 24STCV00971 are both pending before Department 40.

A party moving for consolidation must also establish that the cases sought to be consolidated involve a common question of fact or law. (See Code Civ. Proc., § 1048, subd. (a).) The more predominant and significant the common questions are to the litigation, the more likely the motion will be granted. (Cf. Code Civ. Proc., § 404.1 [factors considered for coordination].)

Here, the pleadings in both actions—the Lead Case and LASC No. 24STCV00971—arise from obligations between the parties in relation to the Keisuke Lease and Ushi Ushi Lease. A resolution of SL Retail’s FAC’s breach of guaranty claims against Christopher Au would dispose of the claims raised by Keisuke LLC and Ushi Ushi in their Complaint. This is because the breach of guaranty claims in this action (22STCV09953) arise from allegations that Keisuke LLC breached its two tenancy agreements with SL Retail through nonpayment, leading to a default, for which Christopher Au was responsible as guarantor, but with Christopher Au failing to compensate SL Retail in any fashion. The claims in LASC No. 24STCV00971 arise from allegations that it was SL Retail, not Keisuke LLC, that breached the agreements between these two parties. If Keisuke LLC and Ushi Ushi prevail on their Complaint, then the claims in SL Retail’s FAC fail because if Keisuke LLC never breached its lease agreements with SL Retail, then Chistopher Au is not responsible for any non-existing default on those loans.

Moreover, “SL Retail does not dispute that Keisuke’s and Ushi’s Complaint involves common questions of law or fact to SL Retail’s Amended Complaint.” (Opp’n, p. 5, fn. 1.)

Last, a party moving for consolidation should establish that the benefits of consolidation outweigh the burdens. (See Code Civ. Proc., § 1048, subd. (a).) To establish this, the movant should argue that consolidation will, for example: (1) save time (i.e., length of time to conclude one suit versus multiple suits) or money (see Code Civ. Proc., § 1048, subd. (a) [“costs” and “delay]); or (2) help prevent the inconsistent adjudication of common and factual legal issues, lessen the burden on judicial resources, or promote the convenience of the parties, witnesses, and attorneys (see Sunrise Fin., LLC v. Superior Court (2019) 32 Cal.App.5th 114, 121; cf. Code Civ. Proc., § 404.1 [factors considered for coordination]).

And while the decision rests in the discretion of the trial judge, the court ordinarily considers prejudice, the timeliness of the motion (i.e, whether consolidation will delay the trial in any of the cases involved or whether discovery has proceeded without all parties present) and complexity, such as whether joining the actions would make the trial too confusing or complex. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶12:362, page 12(I)-71.)

It is here where the parties have a legitimate difference. In its opposition to the motion to consolidate, SL Retail argues that prior unlawful detainer actions between SL Retail and Keisuke LLC and between SL Retail and Ushi Ushi disposed of the substance of the claims alleged in LASC No. 24STCV00971 by Keisuke LLC and Ushi Ushi, and that the timing of this motion, 26 months after the filing of the lead case and set to be heard only two months before trial, shows bad faith.

On the one hand, the Court agrees with Defendants that SL Retail has not properly requested judicial notice of all the relevant documentation from the unlawful detainer proceedings to show that res judicata applies here. This Court cannot determine from the current pleadings whether or not the allegations in the Complaint in LASC No. 24STCV00971 were in fact dispositively addressed in the unlawful detainer actions. This order makes no determination on res judicata for the purposes of LASC No. 24STCV00971 one way or the other.

The Court also agrees that even if there are defects with the claims brought by Christopher Au, Keisuke LLC, and Ushi Ushi, that does not preclude consolidation. The appropriate motion to strike, demurrer or summary judgment, among others, can be filed if SL Retail believes the claims are defective. Indeed, a demurrer was filed in that case and is set to be heard on July 8, 2024.

On the other hand, SL Retail raises prejudice if that means continuing the trial date in the lead case. Indeed, the motion to consolidate is accompanied by a request to continue the trial date in the lead case, which is set for July 23, 2024, with a Final Status Conference on July 12, 2024. This matter has been pending since March 22, 2022, and is thus more than two years old.

Further, the Court has questions regarding the “consolidated” discovery. Often, when matters are consolidated, it occurs either at the beginning of the case, before substantial discovery has taken place, or right before trial, where the Court can see that the two cases should be tried together.

Here, given that virtually the entire life of the lead case has passed prior to potential consolidation, a number of logistical issues arise. Ordinarily, there is only one deposition of any given deponent, absent leave of the court. (Code of Civil Procedure § 2025.290.) Are Keisuke and Ushi content to abide by the discovery that has already transpired since the Lead case was filed? Or will they contend that they get to start discovery fresh, take new depositions and engage in new discovery? If so, isn’t there little advantage to consolidation? Even if new discovery was allowed, won’t they have to limit themselves to questions that were not asked previously, and won’t that require additional oversight by the Court? Finally, if they believed that their claims needed to be heard alongside SL Retail, then why weren’t their claims filed as cross-claims? Even if not filed as cross-claims, couldn’t the complaint in the later case have been filed much sooner? This last question begs the question posed by SL Retail as to whether this motion is in fact intended to delay, rather than expedite, final resolution.

Had this motion been brought at the outset of the lead case, the Court very likely would have granted it, as the matters are certainly related (hence why this Court related the two cases to begin with). However, brought on the eve of the trial in the first matter, this Court believes that the prejudice from the continuance of the trial and the confusion that would arise regarding the discovery outweigh the benefits of consolidation.

For these reasons, the Court DENIES Christopher Au, Keisuke LLC, and Ushi Ushi’s motion to consolidate.

III. Request to Vacate or Continue Trial: DENIED.

A. Legal Standard

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (Cal. Rules of Court, rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez v. Superior Court, supra, at p. 1246.)

The Court bears in mind the factors listed in California Rules of Court, rule 3.1332 subdivisions (c) and (d).  

B. Court’s Determination

Here, Christopher Au, Keisuke LLC, and Ushi Ushi seek to vacate or continue the trial in the lead case in order to permit them to conduct discovery in the LASC No. 24STCV00971 action (the Related Action).

Having denied the motion to consolidate, the Court finds no basis to continue the trial in the lead case. The claim that the Tenants need time to conduct discovery in the Related Action in order to defend against the lead action is perplexing. They themselves point out that they were not named defendants in the First Amended Complaint after Keisuke was dismissed. And there is no explanation as to why they did not file their claims earlier if they believe that a decision as to the guarantor Christopher Au will affect their rights in the Related Action. As a result, the moving parties have made no showing that they acted diligently during the two-year period this case has been pending to both get their claims on file and obtain necessary discovery for the lead action. 

IV. Conclusion

Christopher Au, Keisuke SC LLC, and Ushi Ushi LLC’s Motion to Consolidate is DENIED.

The Court also DENIES Christopher Au, Keisuke SC LLC, and Ushi Ushi LLC’s request to continue trial.