Judge: David A. Rosen, Case: 22GDCV00586, Date: 2023-05-19 Tentative Ruling
Case Number: 22GDCV00586 Hearing Date: May 19, 2023 Dept: E
TENTATIVE RULING ON MOTION TO CONSOLIDATE
Moving Party: Plaintiffs, CJ Prime Investment, LLC; Marvin C. Hur; Connie Kim Hur; Jonathan Hur; and Jennifer Hur
Responding Party: No Opposition submitted
Moving Papers: Motion; Proposed Order; Declaration of Connie Kim Hur; Declaration of Gohari
Opposing Papers: No opposition submitted
Reply Papers: No Reply submitted
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): No – this motion was not served on all Defendants. There appear to be three Defendants – Loma Vista LLC, Albert Ahdoot, and Special Default Services Inc. Two Defendants, Loma Vista and Albert, were served because the proof of service notes that Loma Vista and Albert’s counsel was served. However, there is no indication that this motion was served on Special Default Services’ counsel.
RELIEF REQUESTED
Plaintiffs – CJ Prime Investment, LLC; Marvin C. Hur; Connie Kim Hur; Jonathan Hur; and Jennifer Hur – move this Court for the issuance of an Order to Consolidate the Unlawful Detainer case #23GDCV00481 (filed on March 10, 2023) with the within lead case 22GDCV00586 which was filed on or about November 29, 2022.
[The notice of motion states that this lead case (22GDCV00586) is filed in Department E, but the Unlawful Detainer Case (23GDCV00481) is filed in Department D of the Glendale Courthouse. The Court notes that moving party is incorrect. Both cases are in Department E of the Glendale courthouse.]
The Motion will be made on the grounds that the two actions involve very similar operative facts and law, the same primary right, and involve the same parties and the same real property. In order to avoid unnecessary duplication, to promote judicial economy and to avoid the substantial danger of inconsistent adjudications, the later-filed unlawful detainer action, avoid same witnesses testifying on common issues in all actions as well as promote judicial economy and convenience, LASC No: ##23GDCV00481 should be consolidated for trial with this lead case.
This Motion is based on cited applicable case law and statutes, including but not limited to section 1048 (a) of the CCP that gives this Court the power to consolidate actions, upon the Memorandum of Points and Authorities attached hereto, upon the declarations attached hereto, upon the contents of the Court’s file, records and pleadings (including without limitation the Notice of Related Cases filed on or about March 16, 2023) and upon such oral argument as may be offered at the time of hearing of this Motion.
BACKGROUND
In matter number 22GDCV00586 [lead case], on 09/07/2022, Plaintiffs filed their original Complaint and alleged five causes of action against two Defendants – Loma Vista Investment LLC and Albert Ahdoot. On 11/29/2022, Plaintiffs filed an Amended Complaint alleging six causes of action against three Defendants – Loma Vista Investment LLC, Albert Ahdoot, and Special Default Services Inc. In matter number 23GDCV00481, on 03/09/2023, one Defendant in the lead case - Loma Vista Investment LLC – filed an unlawful detainer action against Plaintiffs. On 03/23/2023, in the lead case, Plaintiffs filed a motion to consolidate. On 03/24/2023, in the lead case, the hearing on Loma Vista Investment and Albert Ahdoot’s demurrer and motion to strike as to Plaintiffs’ Amended Complaint took place.
On 03/27/2023, in the lead case, Plaintiffs filed a Second Amended Complaint against three Defendants – Loma Vista Investment, LLC, Albert Ahdoot, and Special Default Services Inc. In Plaintiffs’ SAC in the lead case, Plaintiffs alleged seven causes of action – (1) Negligent Misrepresentation, (2) Fraudulent Concealment, (3) Unfair Business Practices in Violation of CA Businesses & Professions Code Section §17200 et seq., (4) Cancellation of Written Instruments, (5) Breach of the Implied Covenant of Good Faith and Fair Dealing, (6) Wrongful Foreclosure, and (7) Breach of Contract.
As to the lead case, it deals with Plaintiffs’ allegations of the Subject Property being wrongfully foreclosed. As to the unlawful detainer matter (23GDCV00481), Defendant Loma Vista Investment alleges that it lawfully purchased the Subject Property and Plaintiffs are unlawfully in possession.
MOVING ARGUMENTS
Plaintiffs argue that the lead case and the unlawful detainer action should be consolidated because they involve overlapping issues, the same parties, the same premises, and the same primary right, the right of possession.
OPPOSITION ARGUMENTS
No Opposition was submitted. Naturally, no Opposition was submitted by the Defendant Special Default Services Inc. because this Motion to Consolidate was not served on them. However, the Court notes that in Defendants’ – Loma Vista and Albert Ahdoot – Opposition to Plaintiffs’ motion to disqualify, Defendants attempt to explain their failure to oppose the motion to consolidate apparently on the basis that: (1) Plaintiffs filed a motion to disqualify Loma Vista and Albert’s counsel after Plaintiffs filed this motion to consolidate, but before Loma Vista and Albert’s Opposition to the Motion to Consolidate was due, and (2) because of the sequence in (1), Loma Vista and Albert could not oppose the instant motion to consolidate. [See Oppo to Motion to Disqualify, p.6. lines 10-11.] The Court notes that Loma Vista and Albert cite no legal authority in support of this proposition.
LEGAL STANDARD – MOTION TO COMPEL 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
Preliminary Matters
Plaintiffs state the lead case and the unlawful detainer matter are in different departments. Plaintiffs are incorrect. Both cases are before Department E of the Glendale courthouse.
Plaintiffs also state that the unlawful detainer matter is a limited civil case. Plaintiffs are incorrect again. The unlawful detainer case was filed as an unlimited civil case.
In Plaintiffs’ motion, Plaintiffs frequently refer to “the same primary right,” and cite to Bush v. Superior Court (Rains) (1992) 10 Ca.4th 1374, 1384. The Court notes this citation and reference to “same primary right” do not appear to be on point. Nothing in CCP §1048 refers to a “primary right.”
California Rules of Court, Rule 3.350(a)(1)
3.350(a)(1)(A) – A notice of motion to consolidate must: List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record;
Here, Plaintiffs did not appear to comply with this requirement. As to listing all named parties in each case, Plaintiffs did not appear to comply because Plaintiffs only listed one case in the notice of the motion. Further, the notice of the motion does not indicate the names of those who have appeared in any clear manner. Additionally, the only attorney listed on the notice of motion is the attorney for Plaintiffs. Plaintiffs apparently tried to comply with 3.350(a)(1)(A) on page 3-4 of the Motion, but since it wasn’t in the notice, they failed to comply. Moving party doesn’t indicate who has appeared.
3.350(a)(1)(B) – A notice of motion to consolidate must: Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and
Here, Plaintiffs only included one caption, the caption of the lead case. Plaintiffs did not include the caption of the unlawful detainer case.
3.350(a)(1)(c) – A notice of motion to consolidate must: Be filed in each case sought to be consolidated
Here, Plaintiffs only filed a notice of motion to consolidate in the lead case. Plaintiffs did not file a notice of motion to consolidate in the unlawful detainer case. Plaintiffs only filed a notice of related case in the unlawful detainer matter.
California Rules of Court, Rule 3.350(a)(2)
3.350(a)(2)(A) – The motion to consolidate: 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;
Here, Plaintiffs appeared to have met this requirement by only filing the memorandums, declarations, and other supporting papers in the lowest numbered case.
3.350(a)(2)(B) – The motion to consolidate: Must be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated; and
Here, Plaintiffs did not appear to comply with this requirement. Plaintiffs did not serve Special Default Services Inc.’s counsel the motion to consolidate.
3.350(a)(2)(C) – The motion to consolidate: Must have a proof of service filed as part of the motion.
This requirement appears to have been met. Also, as part of the moving papers, there is a separate declaration with a separate proof of service for Connie Kim. Also, the declaration of counsel and its equivalent proof of service are separate from the motion and the motion’s proof of service.
TENTATIVE RULING
Plaintiffs sufficiently demonstrated that the two cases involve common questions of law and fact. Although Plaintiffs did not comply with the procedural requirements of California Rules of Court 3.350(a)(1)-(2), this Court interprets CCP §1048(a)-(b) such that this Court can and does order the cases consolidated on its own motion because of the common questions of law and fact and in furtherance of convenience and judicial economy.
For all further purposes, the lower numbered case is the lead case.
Plaintiffs are strongly encouraged to comply with the Code of Civil Procedure, the California Rules of Court, and the Los Angeles County Rules of Court.
In particular, the Court notes the following:
“An order granting or denying all or part of a motion to consolidate must be filed in each case sought to be consolidated. If the motion is granted for all purposes including trial, any subsequent document must be filed only in the lead case.” (Cal. Rules of Court, Rule 3.350(c).)
“All documents filed in the consolidated case must include the caption and case number of the lead case, followed by the case numbers of all of the other consolidated cases.” (Cal. Rules of Court, Rule 3.350(d).)
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).)
TENTATIVE RULING ON
MOTION TO DISQUALIFY
Moving
Party: Plaintiffs, CJ Prime Investment, LLC; Marvin C. Hur; Connie Kim Hur;
Jonathan Hur; and Jennifer Hur
Responding
Party: Defendants, Loma Vista Investment LLC and Albert Ahdoot
Moving
Papers: Notice/Motion; Proposed Order
Opposing
Papers: Opposition
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): Yes, however, this motion wasn’t served on defendant
Special Default Inc. in that it has not yet appeared in this matter.
RELIEF
REQUESTED
Plaintiffs
file this motion on the ground that there is a conflict of interest between
opposing counsel and Plaintiffs’ since opposing counsel allegedly had a phone
consultation with Jennifer Hur regarding this case. [While Plaintiffs’ Notice of motion
does not indicate which one of Defendant’s counsel they wish to disqualify, the
body of the Motion is directed at counsel for Loma Vista and Ahdoot, who are
represented by RHM Law LLP.]
The
motion will be based upon this memorandum of points and authorities, its
attached notice, the declarations attached hereto, the exhibits attached
hereto, all other pleadings in this action and any argument made at the
hearing.
Wherefore,
Movants pray that:
1. Plaintiff’s motion be sustained;
2. Defendant’s counsel be removed
from further proceedings;
3. Plaintiff be awarded the costs,
including attorney’s fees, of this action and for preparation of the motion in
the amount of $3,200.00; and
4. The court grant such other and
further relief that the court considers proper, including but not limited to
terminating sanctions, reimbursement of costs/fees, and anything else the Court
deems fit.
BACKGROUND
On 03/27/2023 Plaintiffs
filed a Second Amended Complaint against three Defendants – Loma Vista Investment, LLC, Albert
Ahdoot, and Special Default Services Inc. In Plaintiffs’ SAC, Plaintiffs
alleged seven causes of action – (1) Negligent Misrepresentation, (2) Fraudulent
Concealment, (3) Unfair Business Practices in Violation of CA Businesses &
Professions Code Section §17200 et seq., (4) Cancellation of Written
Instruments, (5) Breach of the Implied Covenant of Good Faith and Fair Dealing,
(6) Wrongful Foreclosure, and (7) Breach of Contract.
This case deals with
Plaintiffs’ allegations of the Subject Property being wrongfully foreclosed.
MOVING ARGUMENTS
Plaintiffs
argue that Defendants’ (Loma Vista and Albert) counsel, RHM Law LLP (RHM)
should be disqualified on the basis that Defendants’ counsel had a detailed
phone consultation with Plaintiff Jennifer Hur prior to the filing of this
lawsuit. Plaintiffs argue that RHM had a duty to not take Loma Vista and Albert
on as clients unless RHM got informed written consent from Plaintiffs, that RHM
did not get informed written consent, and that RHM violated California Rules of
Professional Conduct Rule 1.18 and the Ethical Rules of the State Bar of
California. Plaintiffs allege that RHM used the information during the consultation
with Jennifer Hur to provide RHM’s client with an advantage. Plaintiffs argue
that on April 6, 2023, Jennifer Hur spoke with Matt Resnik for about 21 minutes
and she discussed the facts of this civil case. Plaintiffs argue they provided confidential
communications about the facts of this case.
Plaintiffs submitted
Exhibits A-G, the declaration of Jennifer Hur, and the declaration of
Plaintiffs’ counsel.
Plaintiffs request attorney
fees and costs for the preparation of this motion.
OPPOSITION ARGUMENTS
Opposition
argues the instant motion is untimely. Opposition also argues that Jennifer
Hur’s testimony is self-serving. Opposition argues that Jennifer Hur only spoke
with RHM’s intake staff who took down basic information on the telephone and
discussed the Chapter 11 bankruptcy process briefly with the potential client
without providing information that would create any attorney-client
relationship. Opposition argues that RHM’s review of the record reflected that
Jennifer Hur did not provide any documents to its staff, did not email anyone
at RHM, and most importantly never discussed any specifics of her situation or
even provided any adverse party information to RHM.
Opposition submitted the
declarations of Rosario Zubia and Matthew D. Resnik.
REPLY
Reply argues that
Opposition’s argument as to timeliness was not cited or supported by any law.
Reply argues it has provided sufficient evidence to demonstrate that RHM law
should be disqualified. Reply submitted another declaration from Jennifer Hur.
LEGAL STANDARD – MOTION TO DISQUALIFY
General Legal Standard
Code
of Civil Procedure section 128(a)(5) authorizes the Court to control in
furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a judicial proceeding before it, in
every matter pertaining thereto. (Code Civ. Proc., § 128, subd.
(a)(5).) This authority necessarily includes disqualifying an
attorney. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp. (1995) 36
Cal.App.4th 1832, 1837–1838.) The issue of disqualification ultimately
involves a conflict between the clients’ right to counsel of their choice and
the need to maintain ethical standards of professional responsibility. (Id.)
The paramount concern, though, must be the
preservation of public trust in the scrupulous administration of justice and
the integrity of the bar. (Metro-Goldwyn Mayer, Inc. v. Tracinda Corp.
(1995) 36 Cal.App.4th 1832, 1838.) The recognized and important right to
counsel of one’s choosing must yield to considerations of ethics that run to
the very integrity of our judicial process. (Id.) Whether an attorney
should be disqualified is a matter addressed to the sound discretion of the
trial court. (Henriksen v. Great Am. Sav. & Loan (1992) 11
Cal.App.4th 109, 113.) In exercising that discretion, the trial court is
required to make a reasoned judgment which complies with the legal principles
and policies applicable to the issue at hand. (Id.)
Attorney-Client
Relationship
An attorney-client
relationship must have existed before disqualification is proper pursuant to
California Rule of Professional Conduct Rule 1.9 (Duties to Former Clients),
formerly codified as California Rule of Professional Conduct Rule 3-310,
subdivision (E) (Avoiding Representation of Adverse Interest of Former
Client). (See Strasbourger Pearson Tulcin Wolff Inc. v. Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1404.) Absent an
attorney-client relationship, the party seeking disqualification must have had
an expectation of confidentiality with the attorney it seeks to
disqualify. (DCH Health Services Corp. v. Waite (2002) 95
Cal.App.4th 829, 832-833.) In other words, before a party may disqualify
an attorney predicated on the actual or potential disclosure of confidential
information, some sort of confidential or fiduciary relationship must exist or
have existed between the party and the attorney it seeks to disqualify. (Great
Lakes Construction, Inc. v. Burman (2010) 286 Cal.App.4th 1347, 1356; see
also Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352-353; see also County
of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 658.)
“ ‘The fiduciary relationship
existing between lawyer and client extends to preliminary consultation by a
prospective client with a view to retention of the lawyer, although actual
employment does not result.’ [Citation.] ‘When a party seeking
legal advice consults an attorney at law and secures that advice, the
relationship of attorney and client is established prima facie.’
[Citation.] ‘The absence of an agreement with respect to the fee to be
charged does not prevent the relationship from arising.’
[Citation.]” (Beery v. State Bar (1987) 43 Cal.3d 802, 811-812.)
“If competent evidence does not establish such a conflict,
the attorney is not disqualified for a conflict.” (Sharp v. Entertainment,
Inc. (2008) 163 Cal.App.4th 410, 426.)
TENTATIVE RULING
Plaintiffs’ motion to disqualify Defendants’ (Loma Vista
and Albert Ahdoot) counsel is DENIED.
Plaintiffs have not shown with competent or sufficient evidence
that a fiduciary relationship ever arose between Plaintiffs and Defendants’
(Loma Vista and Albert) counsel, nor have Plaintiffs shown a confidential
relationship ever arose, nor have Plaintiffs shown a conflict existed, nor have
Plaintiffs shown RHM ever received confidential information. Plaintiffs have
not shown with competent evidence that Defendants’ counsel violated California
Professional Rules of Conduct 1.18 because Plaintiffs have not shown that
Defendants’ counsel received from Jennifer Hur information protected by
Business and Professions Code section 6068, subdivision (3) and rule 1.6.
Neither of Hur’s declarations in support of this motion state
that she ever communicated any confidential information to Matthew D. Resnick
nor anyone else at RHM. The evidence in support of this motion is insufficient
to transfer the burden to RHM for RHM to show that no conflict existed. Even if
Plaintiffs did transfer the burden, Opposition showed by a preponderance of evidence
that there is no conflict.
RHM submitted the Declaration of Zubia, who stated that she
was the only person at RHM who ever spoke with J. Hur, that she (Zubia) did not
ever receive any material or adverse information from Jennifer Hur and that they
did not discuss specifics of her case. Further, Zubia stated she was not
provided with any documents by Ms. Hur or provided information that would
affect the instant representation. Zubia stated that she informed Hur that she
would be required to have a conversation with an attorney for the firm to
determine if they could represent her. Zubia also stated she did not transfer
the call, that Hur spoke exclusively with her [Zubia], and that J. Hur never
called RHM back.
Further, the Declaration of Resnick stated that all RHM
records show that no lawyer ever received information that was in confidence
from the Plaintiffs, nor did J. Hur reveal any information or details that
would be adverse to the Plaintiffs’ prosecution of their case.
Plaintiffs’ request for sanctions is thus DENIED.