Judge: Ashfaq G. Chowdhury, Case: 23GDCV00603, Date: 2023-12-08 Tentative Ruling
Case Number: 23GDCV00603 Hearing Date: December 8, 2023 Dept: E
TENTATIVE RULING ON
MOTION TO CONSOLIDATE
Moving
Party: Plaintiff, Zaruk Hacikian
Responding
Party: Defendants, Tadeh Matousi and Saro Matousi
Moving
Papers: Notice/Motion; Declaration of Varand Vartanain; Proposed Order
Opposing
Papers: Opposition filed on 11/27/2023 and Amended Opposition filed 11/28/2023
Reply
Papers: Reply
Proof
of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Correct Address (CCP §1013, §1013a, §1013b): Ok
RELIEF
REQUESTED
Plaintiff,
Zaruk Hacikian, in the herein action (stylized Hacikian v. Matousi, et
al. [Case No. 23GDCV00603]), who is also the Defendant in the small claims
matter stylized Matousi v. Hacikian (Case No. 22PDSC02404), will move
the Court for an order consolidating the following actions:
1.
Tadeh Matousi, et al. v. Zaruk Hacikian: Los Angeles Superior Court
Small Claims Case No. 22PDSC02404 (Plaintiffs: Tadeh Matousi and Saro Matousi;
Defendant: Zaruk Hacikian); and
2.
Zaruk Hacikian v, Tadeh Matousi, et al.: Los Angeles Superior
Court Unlimited Case No. 23GDCV00603 (Plaintiffs: Zaruk Hacikian; Defendants:
Tadeh Matousi aka Tod the Builder and Saro Matousi).
This
motion is made on the ground that most of the issues of fact and law are common
to both actions and many of the same witnesses will testify in both actions. A
single trial of the issue of (1) Breach of Contract (Written) (2) Breach of
Contract (Oral) and (3) Common Counts will avoid unnecessary costs and delays
and will serve the interests of economy and convenience. Consolidation is
requested for all purposes.
This
Motion is made on grounds that (1) the parties in both of these actions are the
same; (2) the actions involve common questions of law and fact; (3)
consolidation would avoid duplication of efforts, unnecessary costs and delay,
and inconsistent verdicts.
BACKGROUND
In
the instant matter, 23GDCV00603, Plaintiff, Zaruk Hacikian filed a Complaint on
03/27/2023 against Tadeh Matousi an individual aka Tod the Builder and Saro
Matousi an individual. This Complaint alleges
three causes of action – (1) Breach of Written Contract, (2) Breach of Oral Contract,
and (3) Common Counts.
Plaintiff’s breach of
contract claims stem from allegations that Defendants breached the Agreement by
providing sub-standard workmanship in relation to the Agreement, failing to
complete the terms and services as contemplated by the Agreement, and purchasing
materials unrelated to the parties’ Agreement in relation to the home
improvement project at the Subject Property. (Compl. ¶BC-2, p. 3.) Plaintiff
also alleges that Plaintiff has thus far paid Defendants $15,000.00 for
sub-standard workmanship and that Plaintiff has spent at least $12,900.00
hiring other contractors to correct Defendants’ sub-standard workmanship at the
Subject Property, and to finish the home improvement project Defendants failed
to complete.
On 05/11/2023,
Defendants/Cross-Complainants, Tadeh Matousi and Saro Matousi filed a
Cross-Complaint against Roes 1-100 for: (1) Declaratory Relief, (2) Implied
Indemnity, (3) Comparative Equitable Indemnity, and (4) Contribution.
MOVING ARGUMENTS
Movant
(Plaintiff, Zaruk Hacikian) provides further background about the instant
case/motion. Movant states that previously filed on or about 11/15/2022,
Defendants Tadeh Matousi and Saro Matousi filed a Claim and Order to Go To
Small Claims Court. Movant states that the gravamen of the Small Claims claim
was the alleged failure to pay for certain labor performed at the Subject
Property arising from the very same Agreement at the center of Plaintiff’s
Complaint herein.
Movant also states that
“Although the Small Claims non-jury trial was held on January 23, 2023 in
Department A of the Pasadena Courthouse located at 300 East Walnut St.,
Pasadena, CA 91101, Plaintiff subsequently filed a timely Appeal to the
foregoing judgment. Said Appeal is currently scheduled for hearing in
Department S of the Pasadena Courthouse on September 27, 2023 at 8:30am.” (Pl.
Mot. p. 3.)
Movant argues that CCP
§1048 allows for consolidation of cases involving a common question of law or
fact and that consolidation is appropriate to avoid unnecessary costs or delay.
Movant argues the two cases here involve common questions of law and fact and
that resolution of these two cases as a single case promotes the efficient use
of judicial resources. Movant argues that by resolving the issues at the same
time, in front of one judge, the parties involved will save time and money on
costly litigation.
Further, Movant argues:
Defendants’ Small
Claims matter is based on alleged non-payment of labor based on contract
performance entered between Plaintiff and Defendants. Plaintiff's complaint
herein arises out of the same relationship, set of facts, and relative time
frame with respect to the parties. Plaintiff’s Complaint includes causes of
action for (1) Breach of Contract (Written); (2) Breach of Contract (Oral);
and (3) Common Counts and relies on the same facts and legal questions
regarding contract issues. Plaintiff alleges that Defendants breached the
parties’ agreement by failing to provide the services as represented and by
failing to provide Plaintiff the services promised under the terms if the
Contract. It is apparent that these actions are so similar that the common
legal and factual issues would trump any minor issues not common in both cases.
(Vartanian Decl. 5, Exhibits 1 and 2).
Additionally, as
the cases are so similar and contain so many common questions of law and fact,
complete consolidation of the cases would clearly conserve judicial resources,
avoid duplication of efforts, save time and attorney’s fees to the parties, and
avoid inconsistent verdicts. As shown above, many of the same facts and legal
questions underpin both cases. As a result, Defendants would not suffer any
prejudice as a result of a complete consolidation of the cases. Additionally,
key witnesses and documentary evidence are common to both actions. Such
witnesses include, but are not limited to, other sub-contractors who were hired
to correct Defendants’ defective workmanship (e.g., persons most knowledgeable
for Kings Plumbing & Rooter, personal most knowledgeable for Advantage
Plumbing & Rooter, Luis Rios, etc.). Examples of documentary evidence
includes various photographs of the defective workmanship, combined with
invoices paid by Plaintiff to hire sub-contractors to correct defective
workmanship by defendants.
Second, Cal. Cod.
of Civ. Proc. §116.360(a) states, “The defendant may file a claim
against the plaintiff in the same action in an amount not to exceed the
jurisdictional limits stated in Sections 116.220, 116.221, and
116.231.” Plaintiff, who was the Defendant in the prior Small Claims action,
was not required to file her claim against the plaintiff in the small claims
action; she merely had the option of doing so. Id. Further, Plaintiff's
claim is for $27,900, which exceeded the jurisdictional limits in small claims
court; as such, she could not have properly filed her claim in the small claims
court and necessarily had to file it in the unlimited jurisdiction court.
Finally, Plaintiff did not have the option of conducting discovery in the small
claims action to (which she does in this action) to identify and detail
Defendants’ defective workmanship.
(Pl. Mot. p. 4-5.)
OPPOSITION ARGUMENTS
Opposition
argues that consolidation would severely impair Defendants’ due process rights,
create procedural irregularities, and lead to potential res judicata issues.
Opposition argues that this motion seeks to merge a small claims court
judgment, already decided in the Defendants’ favor, with an unlimited civil
action filed subsequently and strategically by Plaintiff.
Opposition lays out the
procedural background as follows:
On November 15,
2022, Matousis filed a small claims action against Hacikian.
On January 23,
2023, the small claims court held trial. Matousis presented evidence in support
of their claim.
On January 24,
2023, the small claims court found that Hacikian breached the agreement and
entered judgment in favor of Matousis.
On February 17,
2023, Hacikian filed a notice of appeal with regards to the small claim’s
judgment.
On March 27, 2023,
Hacikian filed a breach of contract action against Matousis in this unlimited
civil court. Hacikian also filed a Notice of Related Case in both courts.
A Trial de Novo
has been rescheduled to January 23, 2024.
(Oppo. p. 1-2.)
Opposition further argues
that since consolidation is within the discretion of the trial court, there are
several factors that weigh against consolidation, namely the first two cases
are at different stages of litigation, the small claims case has already gone
to trial and resulted in a judgment while the unlimited civil case is still in
its early stages, and consolidating these cases risks relitigating the issues and
places this Court in the position to potentially violate “the doctrine of Res
Juda Cada [sic] (see below).” (Oppo. p. 2.)
Further Opposition argues
the two cases involves different remedies. Opposition states, “The maximum
recovery in small claims court is $10,000, while there is no limit to the
damages that can be recovered in unlimited civil court. Consolidating the cases
could prejudice Matousis’ ability to defend their small claims award and
subject them to damages that far exceed the jurisdiction of the Trial de Novo
court.” (Oppo. p.2.)
Opposition has a section
titled “Violation of Due Process Rights and Impairment of the Trial de Novo.”
This section in Opposition states:
The consolidation
of these two cases would effectively deny Matousis their due process rights.
The small claims court has already rendered a decision in Matousis’ favor, and
they are entitled to defend this judgment in the scheduled Trial de Novo. By
attempting to consolidate this matter with an unrelated unlimited civil case,
Hacikian seeks to circumvent the established judicial process, thereby
infringing upon Matousis’ fundamental due process rights. “Policy of the law
favors preservation of right of appeal and hearing of appeals on their merits.”
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Board (Cal. App. 2d Dist. 1959), 169 Cal. App.2d 785. Consolidating
these cases infringes on Matousis’ due process rights to have Hacikian’s appeal
heard on the merits.
The Trial de Novo
in small claims court is a critical step in the judicial process, providing an
opportunity for a re-hearing of the case. Consolidation would nullify this
process, depriving Matousis of their rightful opportunity to defend their win
in the small claims court.
(Oppo. p. 2-3.)
Opposition has a
section titled “Strategic Delay and Misuse of Judicial Process by Hacikian.”
This section in Opposition states, “Hacikian 's decision to initiate an
unlimited civil action after the small claim’s judgment suggests a strategic
attempt to bypass the outcome of the small claims court. This approach not only
undermines the finality of small claims court judgments but also indicates a
misuse of the judicial process for strategic gains.” (Oppo. p. 3.)
Opposition has a
section titled “Jurisdictional and Procedural Incongruity.” This section in
Opposition states, “Small claims courts and unlimited civil courts operate
under fundamentally different jurisdictional rules and procedures. These
differences are designed to address the specific nature and scope of cases that
each court handles. Consolidation would blur these jurisdictional lines,
creating procedural confusion and potentially unfair outcomes.” (Oppo. p. 3.)
Opposition has a
section titled “Timeliness, Forum Shopping, and Potential Res Judicata Issues.”
This section in Opposition states:
Hacikian had the
opportunity to file the unlimited civil action in this court before judgment
was rendered in the small claims case. Rather, Hacikian deliberately chose to
wait until after the judgment to file this unlimited civil lawsuit. Hacikian
appears to be forum shopping: she did not like the results of the small claims
judgment, and instead of allowing the Trial de Novo due process to play out,
she is attempting to circumvent these procedures and bring the case to the
present Court.
Consolidation also
raises the potential for res judicata concerns, as it could lead to conflicting
judgments on issues already decided by the small claims court. This could
result in an impermissible re-litigation of settled matters, contrary to the
principles of finality and judicial efficiency.
(Oppo. p. 3-4.)
Opposition has a
section titled “Impact on Trial De Novo and Judicial Efficiency.” This section
in Opposition states, “The consolidation would effectively eliminate the Trial
de Novo, a fundamental right of the parties in the small claims process. This
negation not only undermines the small claims court system but also impacts
judicial efficiency by complicating and prolonging litigation that could have
been resolved through the small claims process.” (Oppo. p.4.)
REPLY ARGUMENTS
The
Court will not rehash all of Plaintiff’s arguments in Reply as they do not
affect the Court’s ruling.
LEGAL STANDARD – MOTION TO CONSOLIDATE
As stated in CCP §1048:
a) 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.
(b) The
court, in furtherance of convenience or to avoid prejudice, or when separate
trials will be conducive to expedition and economy, may order a separate trial
of any cause of action, including a cause of action asserted in a
cross-complaint, or of any separate issue or of any number of causes of action
or issues, preserving the right of trial by jury required by the Constitution
or a statute of this state or of the United States.
(CCP
§1048(a)-(b).)
Under California Rules of Court Rule
3.350(a)(1), a notice of motion to consolidate must: (A) List all named
parties in each case, the names of those who have appeared, and the names of
their respective attorneys of record; (B) Contain the captions of all the cases
sought to be consolidated, with the lowest numbered case shown first; and (C) Be
filed in each case sought to¿be consolidated.
Under California Rules of Court Rule
3.350(a)(2), the motion to consolidate: (A) Is deemed a single motion for the
purpose of determining the appropriate filing fee, but memorandums,
declarations, and other supporting papers must be filed only in the lowest
numbered case; (B) Must be served on all attorneys of record and all non-represented
parties in all of the cases sought to be consolidated; and (C) Must have a
proof of service filed as part of the motion.¿
Under the Los
Angeles County Court Rules, rule 3.3(g):
(1) Cases may not
be consolidated unless they are in the same department. A motion to consolidate
two or more cases may be noticed and heard after the cases, initially filed in
different departments, have been related into a single department, or if the cases
were already assigned to that department. (2) Upon consolidation of cases, the
first filed case will be the lead case, unless otherwise ordered by the court.
After consolidation, all future papers to be filed in the consolidated case
must be filed only in the case designated as the lead case. (3) Before
consolidation of a limited case with an unlimited case, the limited case must
be reclassified as an unlimited case and the reclassification fee paid.
(Los Angeles
County Court Rules, Rule 3.3(g)(1)-(3).)
ANALYSIS
Movant
does not appear to address several of the procedural issues listed above in the
Court’s section titled “Legal Standard – Motion to Consolidate.” However, the
Court will not address all the procedural issues that Movant may face.
Upon the Court’s own research, the Court found the
following except from Acuna v. Gunderson Chevrolet, Inc.:
We note, in this
regard, that the only circumstances under which a small claims case may be
transferred to another court are set forth in Code of Civil Procedure
section 116.390 as follows: “If a defendant has a claim
against a plaintiff that exceeds the jurisdictional limits [of small claims
court] ... and the claim relates to the contract, transaction, matter, or event
which is the subject of the plaintiff's claim, the defendant may
commence an action against the plaintiff in a court of competent jurisdiction
and request the small claims court to transfer the small claims action to that
court.” (Italics added.) The defendant's request must be filed “at or before
the time set for the hearing of [the small claims] action” (Code Civ. Proc., §
116.390, subd. (b)), but the transfer shall not be made “until after a
judgment is rendered unless the ends of justice would be served.” (Code Civ.
Proc., § 116.390, subd. (c).) This grant to a small claims defendant of
the right to request transfer, and the absence of any similar provision for a
small claims plaintiff, demonstrates that the Legislature did not
intend the plaintiff to have such a privilege. (See Martinez v.
Traubner (1982) 32 Cal.3d 755, 759 [187 Cal.Rptr. 251, 653 P.2d
1046].)
(Acuna v.
Gunderson Chevrolet, Inc. (1993) 19 Cal.App.4th 1467, 1472-1473.)
Further, as stated
in CCP §116.390:
(a) If a defendant
has a claim against a plaintiff that exceeds the jurisdictional limits stated
in Sections 116.220, 116.221, and 116.231, and the claim relates to the
contract, transaction, matter, or event which is the subject of the plaintiff’s
claim, the defendant may commence an action against the plaintiff in a court of
competent jurisdiction and request the small claims court to transfer the small
claims action to that court.
(b) The
defendant may make the request by filing with the small claims court in which
the plaintiff commenced the action, at or before the time set for the hearing
of that action, a declaration stating the facts concerning the defendant’s
action against the plaintiff with a true copy of the complaint so filed by the
defendant against the plaintiff. The defendant shall cause a copy of the
declaration and complaint to be personally delivered to the plaintiff at or
before the time set for the hearing of the small claims action.
(c) In ruling
on a motion to transfer, the small claims court may do any of the following:
(1) render judgment on the small claims case prior to the transfer; (2) not
render judgment and transfer the small claims case; (3) refuse to transfer the
small claims case on the grounds that the ends of justice would not be served.
If the small claims action is transferred prior to judgment, both actions shall
be tried together in the transferee court.
(d) When the
small claims court orders the action transferred, it shall transmit all files
and papers to the transferee court.
(e) The
plaintiff in the small claims action shall not be required to pay to the clerk
of the transferee court any transmittal, appearance, or filing fee unless the
plaintiff appears in the transferee court, in which event the plaintiff shall
be required to pay the filing fee and any other fee required of a defendant in
the transferee court. However, if the transferee court rules against the
plaintiff in the action filed in that court, the court may award to the
defendant in that action the costs incurred as a consequence of the transfer,
including attorney’s fees and filing fees.
(CCP
§116.390(a)-(e).)
Therefore, it appears as if any attempt to
consolidate this matter must be made before the small claims court, and not
this Court.
TENTATIVE RULING
Under the Los Angeles County Court Rules,
rule 3.3(g):
(1) Cases may not
be consolidated unless they are in the same department. A motion to consolidate
two or more cases may be noticed and heard after the cases, initially filed in
different departments, have been related into a single department, or if the
cases were already assigned to that department. (2) Upon consolidation of
cases, the first filed case will be the lead case, unless otherwise ordered by
the court. After consolidation, all future papers to be filed in the
consolidated case must be filed only in the case designated as the lead case.
(3) Before consolidation of a limited case with an unlimited case, the limited
case must be reclassified as an unlimited case and the reclassification fee
paid.
(Los Angeles
County Court Rules, Rule 3.3(g)(1)-(3).)
Here, the instant two cases are not in the same
department and have not been related. Further, based on CCP §116.390, it
appears that any attempt to transfer the small claims action to this department
must be made before the small claims court and not this Court. Therefore, any
procedural or substantive issues the parties want to dispute with respect to
whether consolidation is appropriate, they should do so before the small claims
court.
Plaintiff’s motion to consolidate is DENIED.