Judge: Anne Richardson, Case: 23STCV19298, Date: 2024-10-18 Tentative Ruling

Case Number: 23STCV19298    Hearing Date: October 18, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff DuPont Clinic, PC, a California professional corporation; and Consultants in Obstetric and Gynecologic Ultrasonography and Surgery, PLLC, a District of Columbia professional limited liability company (collectively, DuPont) sues Defendants DE BHMC, LLC, a Delaware limited liability company; Douglas Emmett Management, LLC a Delaware limited liability company; Douglas Emmett, Inc., a Maryland corporation (collectively, Douglas Emmett); and Does 1 through 10, inclusive pursuant to an August 14, 2023 Complaint alleging causes of action for: (1) Breach of Contract; (2) Recovery of Damages for Rescission Pursuant to Cal. Civ. Code § 1692; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; (4) Inducing Breach of Contract; (5) Intentional Interference with Contractual Relations; (6) Intentional Interference with Prospective Economic Relations; (7) Negligent Interference with Prospective Economic Relations; (8) False Promise; (9) Intentional Misrepresentation; and (10) Negligent Misrepresentation.

The claims arise from the following allegations.

In 2021, DuPont began planning to open a clinic providing reproductive healthcare in California, specifically in the Los Angeles area. DuPont chose California as the site of its second office because of California’s official state stance protecting abortion rights. In mid-2022, DuPont entered negotiations with Douglas Emmett for premises located at 8920 Wilshire Boulevard, Beverly Hills, California, 90211 (the Premises.)

On June 24, 2022, the United States Supreme Court issued the decision in the case Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. __ (2022). In the Dobbs decision, the Supreme Court overturned fifty years of precedent establishing a constitutional right to choose to have an abortion, including Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992).

On May 10, 2022, after the draft Dobbs decision leaked, the Beverly Hills City Counsel unanimously adopted a resolution in support of abortion rights. Given the City’s published stance on abortion and public embrace of a woman’s right to choose, DuPont felt that its clinic would not just be permitted but would be protected and embraced by the City.

Amidst this political landscape, DuPont and Douglas Emmett were actively negotiating a lease for the Premises. On June 30, 2022, DuPont sent a Letter of Intent to Douglas Emmett summarizing its offer to rent, including a description of proposed use to perform reproductive health services at the Premises, including abortion. Between July and September 2022, DuPont and Douglas Emmett exchanged multiple drafts of the proposed lease agreement, including edits to the Specified Use provision describing the medical procedures, including abortion, that DuPont would perform at the Premises. Throughout the negotiation process, DuPont also had multiple meetings with officials from the City of Beverly Hills regarding permits and zoning. The lease was executed on September 27, 2022, and DuPont formally announced that the clinic would open in October 2023.

In late 2022 and early 2023, anti-abortion protesters began appearing at the Premises, at Beverly Hills City Council meetings, and organizing online petitions to stop DuPont from opening its Beverly Hills clinic. In the next months, DuPont alleges that the City of Beverly Hills and Douglas Emmett engaged in various efforts to delay DuPont from obtaining necessary permits, turn other tenants against DuPont, and generally obstruct DuPont from opening the clinic.  

On June 12, 2023, Douglas Emmett issued a letter to DuPont rescinding the lease agreement. As a result, DuPont has been forced to cease construction, evacuate the Premises, and pursue legal action on behalf of a clinic that may never open. Plaintiffs filed their complaint against Douglas Emmett Management, LLC and other entities on August 14, 2023.

B. Relevant Procedural History

On October 5, 2023, DuPont filed a Complaint against the City of Beverly Hills and various Beverly Hills city officials (23STCV24271; the Beverly Hills Action). The Beverly Hills Action alleges claims of (1) Inducing Breach of Contract, (2) Intentional Interference with Contractual Relations, (3) Intentional Interference with Prospective Economic Relations, (4) Negligent Interference with Prospective Economic Relations, (5) False Promise, (6) Intentional Misrepresentation, and (7) Negligent Misrepresentation.

On October 6, 2023, DuPont filed a Notice of Related Case in both the instant action (23STCV19298; the Douglas Emmett Action) and the Beverly Hills Action indicating that both Actions “arise[] from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact.” The Beverly Hills Action was therefore designated as related to the Douglas Emmett Action and also assigned this Department.

C. Motion Before the Court

On September 12, 2024, Douglas Emmett filed the instant motion to consolidate the two actions discussed above.

On October 4, 2024, DuPont filed an opposition.

On October 7, 2024, the City of Beverly Hills also filed an opposition.

On October 14, 2024, Douglas Emmett filed separate replies to each opposition.

II. Motion

A. 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. (200) 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).)

B. 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 Douglas Emmett Action and the Beverly Hills Action 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, DuPont does not dispute that the cases involve common questions of fact and law. (“To be sure, the two cases involve related facts and circumstances.” (DuPont Opp., p. 2:12-13.) The City of Beverly Hills asserts that the issues at the center of the Douglas Emmett Action do not overlap with those at the center of the Beverly Hills Action. The City argues that “DuPont’s success or failure in the Douglas Emmet Action depends on whether Douglas Emmett had the right to rescind the Lease” and “[c]onversely, DuPont’s success or failure in the Beverly Hills Action depends first on whether the Court finds that the City’s challenged conduct is privileged, truthful, or otherwise immunized.” (Beverly Hills Opp. pp. 2:20-21, 3:3-4.)

Although both cases arise from the same general fact of DuPont’s signing a lease with Douglas Emmet in the City of Beverly’s involvement in Douglas Emmett’s decision to rescind the lease, there are also many issues of law and fact that are different in the two cases. This factor could tip in either direction.

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, e.g.: (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]). 

Here, Douglas Emmett argues that both actions will require identical fact discovery, the same witnesses and application of the same legal principles and that proceeding as separate actions would heighten the risk of inconsistent outcomes. (Mot. pp. 5-7.) Douglas Emmett further argues that there is no genuine risk of prejudice because both cases are in the early stages of litigation and no party in the Douglas Emmett Action party objects to a continuance of the trial date. (Mot. p. 9.)

Both DuPont and the City oppose the motion on the grounds that the motion to consolidate is not yet ripe and is based in part on a hypothetical filing of a cross complaint, which has not happened yet. DuPont asserts that once Douglas Emmett files its Cross-Complaint, it will not oppose consolidation of the two actions. (DuPont Opp., p. 3.) The City argues that even if Douglas Emmett does file a cross complaint (or cross-claim), the only non-time barred claims would be for eminent domain and violations of 42 U.S.C. § 1983, claims that would not overlap with the case between DuPont and Douglas Emmett. (City Opp., p. 3 n. 1.)

The City of Beverly Hills also argues that consolidation will result in unnecessary costs and delays because of the pending Anti-SLAPP motion, currently scheduled for November 13, 2024 (and subject to an ex parte by plaintiff seeking a 90 day continuance on the hearing.) The City argues that the losing party on the Anti-SLAPP motion will likely appeal and if “the Actions are consolidated, once the Beverly Hills Action is stayed upon the filing of an appeal, the Court will have to sever the two actions so that the January 7, 2025 trial in the Douglas Emmett action can proceed, or stay the trial of those unrelated claims for the approximately eighteen (18) months the Anti-SLAPP motion appeal will be pending.” (Beverly Hills Opp., p. 4:15-28.)

In reply, Douglas Emmett makes the additional argument that a failure to consolidate will burden the witnesses with two sets of duplicative discovery regarding the same set of facts. However, if this was its concern, no explanation is made why Douglas Emmett delayed close to a year after the cases were related, and indeed, close in time to its discovery cut-off date, to bring this motion to consolidate. Moreover, such a problem could be solved by stipulation and order.

The Court concludes that the benefits of granting the motion are outweighed by the likelihood of substantial delay given that an anti-SLAPP motion – which is a motion on the pleadings -- will be heard either right before, or just after, trial is set to begin in the Douglas Emmett action. (Despite some discussion in Douglas Emmett’s papers to continue the trial, no such request has been made, and any continuance of the trial date would have to be based on good case; see Cal. Rules of Court, rule 3.1332 [“trial dates are firm”].) The fact that the cases are in the same department will minimize the possibility of inconsistent rulings. As of the current record, the Court in its discretion denies the motion without prejudice.

            For these reasons, the Court DENIES Defendants DE BHMC, LLC, Douglas Emmett Management, LLC, and Douglas Emmett, Inc.’s Motion to Consolidate. 

III. Conclusion

Defendants DE BHMC, LLC, Douglas Emmett Management, LLC, and Douglas Emmett, Inc.’s Motion to Consolidate is DENIED without prejudice.