Judge: Armen Tamzarian, Case: 21STCV19845, Date: 2024-11-15 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 21STCV19845    Hearing Date: November 15, 2024    Dept: 52

Plaintiff Perry Lazar’s Motion to Deem Cases Related and to Consolidate Actions

            Plaintiff Perry Lazar, individually and as trustee of the Plone Trust, moves to consolidate the trials of three actions: (1) Plone Trust, et al. v. Kalousd Pandazos, et al., No. 21STCV19845; (2) Perry Lazar v. Brad Korb, et al., No. 21STCV34102; and (3) Perry Lazar, et al. v. First American Title Insurance Company, et al., No. 22STCV11182.  This court found the first two cases related.  The court has not yet determined whether the third case is related to the others.      

Relating Cases

            The court finds Perry Lazar, et al. v. First American Title Insurance Company, et al., No. 22STCV11182, is related to the other two actions.  Cases are related when they “[i]nvolve the same parties and are based on the same or similar claims” (Cal. Rules of Court, rule 3.300(a)(1)), “[a]rise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact” (rule 3.300(a)(2)), or “[a]re likely for other reasons to require substantial duplication of judicial resources if heard by different judges” (rule 3.300(a)(4)). 

These three cases arise from a dispute over real estate transactions involving two intersecting parcels of land in the County of Los Angeles, APN 5867-0011-35 and -036.  Lazar’s action against First American Title Insurance Company and First American Title Company (collectively, First American) includes unique claims regarding title insurance coverage.  But resolving each case involves determining whether any of several parties, including First American, is responsible for damages to Lazar arising from erroneous legal descriptions used in the real estate transactions.  The cases arise from the same events.  They require determination of some substantially identical questions of law or fact.  Having a different judge hear the case between Lazar and First American would require substantial duplication of judicial resources.

Consolidation

Lazar shows good cause to consolidate the three actions for trial.  Code of Civil Procedure section 1048, subdivision (a) provides, “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”  Generally, consolidation is done “ ‘to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions.’ ”  (Estate of Baker (1982) 131 Cal.App.3d 471, 485.)

As discussed above, the three cases involve significant common questions of fact and law.  Consolidating the actions for trial will serve the interest of judicial economy.  If the cases are tried separately, there will likely be substantial duplication of evidence.

First American argues consolidation will prejudice it.  Courts should not consolidate cases where “undue confusion or prejudice [is] likely to result from the consolidation.”  (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 979.) 

First American contends consolidation will cause prejudice because Lazar refuses to testify at deposition in case No. 22STCV11182.  First American filed a motion to compel Lazar’s deposition on April 30, 2024.  Consolidating the cases will not interfere with the determination of First American’s motion. 

First American also argues Lazar unduly delayed bringing this motion.  Lazar could have brought the motion significantly earlier.  First American, however, does not demonstrate significant prejudice resulting from that delay.  Regardless of when Lazar filed this motion, consolidation will serve the interest of judicial economy. 

Disposition

Plaintiff Perry Lazar’s motion to deem cases related and consolidate cases is granted. 

The court finds the three cases are related.   Perry Lazar, et al. v. First American Title Insurance Company, et al., No. 22STCV11182 is hereby reassigned to Department 52 at Stanley Mosk Courthouse.   

The court hereby consolidates the trials in the following three cases: (1) Plone Trust, et al. v. Kalousd Pandazos, et al., No. 21STCV19845; (2) Perry Lazar v. Brad Korb, et al., No. 21STCV34102; and (3) Perry Lazar, et al. v. First American Title Insurance Company, et al., No. 22STCV11182.

The court does not decide with this order whether trial in this case should be bifurcated.

On or before December 3, 2024, plaintiff Perry Lazar, individually and as trustee of the Plone Trust, is ordered to file a report with the court setting forth all the claims at issue in this consolidated action.  The report shall include the following four columns:

Name of plaintiff    Name of defendant    Cause of action         Pleading

The terms “plaintiff” and “defendant” include cross-complainants and cross-defendants.  The “Cause of action” column shall state the number and title of the cause of action.  The “Pleading” column shall identify the operative pleading and the action in which it was filed.

Cross-Defendant Odalis C. Suarez’s Motion to Set Aside Order

Cross-defendant Odalis C. Suarez moves under Code of Civil Procedure section 473 to set aside the order granting in part the motion to tax costs by cross-complainant In Action Realtors, Inc. (In Action).  Code of Civil Procedure section 473, subdivision (b) provides, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” 

Courts liberally apply this provision for discretionary relief.  “Because the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’ ”  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)  “Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.”  (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.)  “In such cases, the law ‘looks with [particular] disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’ ”  (Ibid.)

On July 24, 2024, the court granted in part In Action’s motion to tax Suarez’s memorandum of costs.  Suarez adequately shows that order resulted, in part, from her mistake or excusable neglect.  In its minute order, the court found Suarez did not submit any admissible evidence of the costs she incurred.  Suarez’s declaration in support of this motion states, “After receiving In Action’s reply, I realized there was an error in our opposition that I had inadvertently failed to attach the supporting documents to the memorandum of cost on Exhibit 6 to the opposition an exhibit to my declaration.”  (Suarez Decl., ¶ 3.) 

Suarez also shows she acted with reasonable diligence in seeking relief.  She testifies, “On July 19, 2024 and prior to the hearing of this matter I attempted to file an errata to the opposition, however the court-approved electronic service provider was not functional.”  (Suarez Decl., ¶ 3.)  She and her counsel also unsuccessfully attempted to attend the hearing on July 24 via LA Court Connect.  (Id., ¶ 4.)  The court takes judicial notice of the fact that a cyberattack on the court on July 19 greatly interfered with court systems beginning that day and continuing for several days after.  Suarez then filed this motion on July 30.  Suarez’s mistake in not submitting the evidence did not prejudice In Action.  It had ample time to respond to Suarez’s new evidence when opposing this motion. 

The court therefore will vacate its order granting In Action’s motion to tax costs and reconsider the order after accounting for Suarez’s additional evidence. 

Recoverable Costs

Suarez presents adequate evidence supporting most of the costs she claims.  “ ‘If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.’ ”  (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)  After an adverse party moves to strike or tax the “memorandum of costs, the burden shift[s] to” the prevailing party “to prove his costs.”  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.)  “Once costs claimed in the memorandum are challenged via a motion to tax, ‘[d]ocumentation must be submitted’ to sustain the burden.”  (Ibid.)

Settlement

In Action argues Suarez cannot collect costs because, after she filed this motion, In Action entered a settlement agreement with Perry Lazar that required Suarez to dismiss this motion.  In Action acknowledges Suarez is not a party to that settlement agreement but contends the parties’ intent was to require Suarez to dismiss this motion and her claim for costs.  (Supp. Brief., pp. 3-4.) 

The settlement agreement provides, “Except as herein set forth, each Party shall bear his, hers or its own costs and attorney’s fees and as such, any pending motion or request for relief of the Court in connection with any fees and/or costs previously awarded, whether by motion for reconsideration or otherwise, shall be withdrawn with prejudice.  No Party shall be deemed a prevailing party.”  (Plotkin Decl., Ex. A, ¶ 2.)  The agreement further provides that the parties release one another, “including their attorneys, agents, insurers, servants, successors, heirs, executors, administrators and all other such persons, firms, corporations, associations or partnerships associated with them) from and against any and all claims, demands, causes of action, obligations as well as any and all damages, liabilities, losses, costs and/or expenses, including attorney’s fees.”  (Id., ¶ 3.)

These provisions do not apply to Suarez.  In Action filed a cross-complaint against Suarez.  Though Suarez acted as Lazar’s attorney in litigation and as his agent in the real estate transaction giving rise to the litigation, she incurred these costs and filed this motion in her capacity as a cross-defendant.  Given that she is not a party to the settlement agreement, the agreement did not release Suarez’s personal claim for costs in her capacity as cross-defendant.

Specific Expenses

Suarez’s memorandum of costs claimed $10,618.03 in costs.  She submits admissible evidence detailing the costs she incurred.  (Suarez Decl., Ex. C.)  In Action challenges several specific expenses Suarez claims.  In her reply brief, Suarez conceded to some of In Action’s objections and asserts she should recover $9,193.75 in costs.

Filing Fees

Suarez concedes she should recover $900 in filing fees.  (Supp. Opp., pp. 5 & 6; Reply, p. 8.) 

Deposition Costs

The parties dispute the amount of recoverable deposition costs.  In her reply brief, Suarez seeks to recover $5,515.40 for the following costs of depositions and transcripts: (1) Michelle Pascual, $583; (2) David Farrell, $808; (3) Sean Anders, $1,090.20; (4) In Action’s person most knowledgeable #1, $1,287.15; (5) In Action’s person most knowledgeable #2, $1,118.10, and (6) a copy of Suarez’s deposition transcript, $628.95.  (Reply, p. 8.)  The evidence Suarez she submitted in support of this motion, however, does not include the $628.95 for her deposition transcript.  (Suarez Decl., Ex. C.)  Suarez had multiple opportunities to submit evidence in support of her costs.  The court will not permit her to present additional evidence months after filing this motion. 

            In Action disputes the $808 for the deposition of David Farrell, person most qualified for the County of Los Angeles.  In Action argues that expense does not pertain to its cross-complaint but instead is only relevant to the claims by Lazar and Plone Trust against the County.  The issues overlap.  In the cross-complaint against Suarez, In Action asserted a claim for indemnity against Suarez on the basis that she was responsible for any damages to Lazar because of her conduct as Lazar’s real estate agent in purchasing the subject property in 2004.  Deposing David Farrell was reasonably related to her defense of showing she was not at fault based on her investigation of the property. 

            Suarez therefore shall recover $4,886.45 in deposition costs.

Service of Process

            In her reply brief, Suarez seeks $453.40 for service of process.  (Reply, p. 8.)  Her memorandum of costs claimed only $291.15 for service of process.  She cannot seek extra expenses via her reply brief on this motion. 

Fees for Electronic Filing or Service

Suarez concedes she should recover $1,249 in fees for electronic filing or service.  (Supp. Opp., pp. 5 & 6; Reply, p. 8.)

Other Costs

            In Action argues Suarez cannot recover the costs for copying records from Crescenta Valley Water District.  Like the deposition of David Farrell, this discovery was intertwined with claims by Lazar and Plone Trust against the Water District.  These expenses were also reasonably related to Suarez’s defense of showing she was not at fault in the property transaction in 2004. 

Suarez therefore shall recover $1,075.95 in other costs.

Total

            Suarez’s recoverable costs total $8,402.55.

Disposition

Cross-defendant Odalis C. Suarez’s motion to set aside order pursuant to Code of Civil Procedure section 473 is granted.  The court hereby sets aside its order ruling on cross-complainant In Action Realtors, Inc.’s motion to strike or tax costs on July 24, 2024. 

The court hereby grants in part cross-complainant In Action Realtors, Inc.’s motion to strike or tax costs.  Cross-defendant Odalis C. Suarez shall recover $8,402.55 in costs from cross-complainant In Action Realtors, Inc.