Judge David S. Cunningham, Case Number: JCCP5101, Date: 2023-07-11 Tentative Ruling

Opposing Party: Institutional Defendants’ Liaison Committee and Michael Baker

The coordinated Southern California Clergy Cases consist of hundreds of individual lawsuits. Plaintiffs allege that clergy members sexually assaulted them when they were minors and that the religious entities responsible for supervising the clergy members failed to protect against the alleged sexual assaults.

Here, John LA-2 Doe moves to consolidate the claims of the following 23 Plaintiffs for all purposes:

“Consolidation is a procedure for uniting separate lawsuits for trial, where they involve common questions of law or fact and are pending in the same court.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 12:340, emphasis in original.) “The purpose is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.).” (Ibid.)

“A complete consolidation may be ordered where the parties are identical and the causes of action could have been joined.” (Id. at ¶ 12:341.1.) “The pleadings are regarded as merged, one set of findings is made, and one judgment is rendered.” (Ibid.) “Because the actions are effectively merged, parties who appeared in either action are subject to the court's jurisdiction in the merged action.” (Ibid., emphasis in original.)

“The usual ground is simply that consolidation would avoid repetitive trials of the same ‘common issues’ and thus avoid ‘unnecessary costs and delays’ to the court and to the parties; and the substantial risk of inconsistent adjudications.” (Id. at ¶ 12:359, emphasis in original.) “[A]ll that the moving party need show is that the issues in each case are basically the same, and that ‘economy and convenience’ would be served by a joint trial.” (Ibid.) It is appropriate to grant the moving party’s motion as long as consolidation would not “delay the trial of any of the cases involved,” “make the trial too confusing or complex for a jury[,]” and “adversely affect the rights of any party.” (Id. at ¶ 12:362.)

Plaintiff John LA-2 Doe, joined by Plaintiffs’ Liaison Committee, contends consolidation should be granted because:

* Common legal and factual questions predominate. LA-2 Doe claims each case involves (1) a Plaintiff who was sexually assaulted by then-priest Michael Baker at St. Paul of the Cross Catholic Church during the time period of 1976 to 1982, (2) the same Defendants, (3) the same defense firm, (4) similar, perhaps identical, causes of action (e.g., negligence-based claims, intentional infliction of emotional distress, and breach of fiduciary duty), (5) similar, perhaps identical, documentary evidence, and (6) similar, perhaps identical, witnesses. (See Motion, pp. 12-13, 22; see also Reply, pp. 4 [“Defendants’ failure to properly train its staff and administrators regarding various topics, including prevention of sexual abuse, apply equally to all Plaintiffs, regardless of the dates of their individual abuse. Similarly, Plaintiffs’ Negligent Supervision cause of action warrants an analysis of the protocol/procedures for supervision of BAKER (of lack thereof) and children at St. Paul of the Cross. This analysis again applies to all Plaintiffs and is not tied to the dates of the abuse that occurred (per Plaintiff). [¶] As part of Plaintiffs’ claims, they allege that Defendants took no action to change the environment in which it operated from the time of the first instance of abuse to the present. This allegation does not rely on the testimony from one case alone, but rather a slew of evidence that would otherwise require duplicative testimony in separate trials showing a pattern and practice of abuse perpetrated by BAKER that the Defendants permitted to continue for years.”], 5 [“Factually, Plaintiffs will all present evidence, including: (a) BAKER sexually abused them in the same manner; (b) BAKER utilized the same or similar methods and locations for implementing his abuse; (c) BAKER engaged in the same grooming tactics in earning the trust of Plaintiffs; (d) BAKER was not supervised. [¶] Legally, Plaintiffs will all present evidence to support the same and/or common theories of liability against BAKER in all cases, including sexual assault and sexual battery. Correspondingly, Plaintiffs will all present evidence to support the exact same and/or similar theories of liability against Diocese Defendant, including negligence-based theories, such as negligent hiring, negligent retention, and negligent supervision. The discovery and trial testimony from Diocese Defendant priests, directors, and staff will apply equally to all Plaintiffs. And, jury instructions on these shared claims and theories will be identical. A single trial of multiple cases is therefore appropriate and necessary to avoid examining the same witnesses on the same issues at least four different occasions.”].)

* Consolidation would advance judicial economy and the interests of justice. LA-2 Doe asserts that consolidation would negate the need to propound duplicative discovery, decide duplicative motions, hear duplicative testimony, and hold trials on duplicative claims and would eliminate the risk of inconsistent rulings. (See Motion, pp. 13, 23.) Moreover, LA-2 Doe claims Plaintiffs would only have to testify in one trial, which would lessen the emotional harm caused by testifying about sexual abuse. (See id. at pp. 13, 23-24 [claiming Plaintiffs would be forced to testify in each other’s case numerous times if consolidation is denied]; see also Reply, p. 2 [asserting that, absent consolidation, Plaintiffs would be required to testify “several times over” regarding “their own sexual abuse at the hands of BAKER, what they witnesses with other children, and what they reported”], emphasis in original.)

* Defendants would not suffer prejudice. LA-2 Doe contends (1) Defendants fail to cite evidence showing prejudice, (2) a single trial would be shorter and less expensive than 20+ trials with the same witnesses testifying over and over, and (3) Defendants’ argument that it would be unfair to allow all Plaintiffs to testify in the same trial is unavailing since all Plaintiffs expect to testify in each Plaintiff’s case with or without consolidation. (See Reply, pp. 6-7.)

In response, Institutional Defendants’ Liaison Committee (“Defense Committee”) argues that the Court should deny consolidation because:

* Individual issues overshadow the common issues. For example, “as to the central negligence claims,” the Defense Committee contends “the material issues – whether the plaintiff was abused, whether the institutional defendant is liable for it, and what damages the plaintiff should be awarded – are all highly individualized inquiries.” (Defense Committee’s Opposition, p. 6.) The Defense Committee asserts that,

while the discovery against the institutional defendants might be similar, the issue of notice is not: Baker was at St. Paul of the Cross for six years, so the liability profile for a plaintiff alleging abuse in 1976 is likely to be different, and involve different facts and witnesses, than plaintiffs alleging abuse in 1981 or 1982.

Accordingly, each plaintiff’s case will require extensive, unique testimony from numerous plaintiff-specific witnesses: himself; his family members, friends, teachers, employers, and physicians (if these folks are alive); and causation and damages experts, including physicians and, where lost earnings are claimed, economists. . . . Should the Court take up Movant’s consolidation proposal, it can expect many months, if not years, of acrimonious discovery followed by a trial of staggering size, length, and complexity, involving testimony from literally hundreds of fact witnesses and dozens of experts. . . .

– As to prejudice, the Defense Committee claims empirical evidence from researchers demonstrates that

consolidated trials result in (1) inferences by the jurors that a defendant has a bad character; (2) cumulation or spilling over of evidence against the defendant; (3) confusion of evidence; and (4) changes in weight of evidence (i.e., the tendency of jurors in such cases to give greater weight to plaintiff/prosecution evidence, relative to defense evidence). [Citation.] These prejudicial results are especially stark with sexual abuse claims: “consolidated trials (as opposed to separate trials for the same offense) produced higher rates of errors in recall of trial evidence, stronger inferences about the defendant’s sexual interest in boys, greater perceived intent, greater perceived poise and credibility for the complainant, greater defendant culpability, and, not surprisingly, greater defendant guilt (from about 80% not guilty to over 95% guilty).” [Citation.] Ultimately, consolidated trials produce verdicts that are “homogenous across cases” and inflated relative to single-plaintiff trials. [Citation.] Dr. [Steven] Penrod also observes that while these prejudicial results are inherent in consolidation, their “magnitude” grows as the number of cases consolidated grows. [Citation.]

(Id. at p. 8; see also id. at p. 9 [citing decisions where courts refused to consolidate two, three, and ten cases due to prejudice]; id. at pp. 9-10 [arguing that “Plaintiffs’ claims are naturally inflammatory to the sensibilities of the average juror” and that “consolidation of twenty-three plaintiffs poses a substantial risk that the juries will throw up their hands in the face of all of this testimony, overlook (or simply forget) weaknesses among the cases, and issue inflated and relatively homogenous verdicts that reflect their confusion and generalized anger”], emphasis in original.)

– As to the bellwether process, the Defense Committee contends “multi-plaintiff verdicts” would not “reflect the factual and legal nuances among the plaintiffs’ cases and, therefore, could not be reliably extrapolated to the broader case pool.” (Id. at p. 11.)

* Plaintiffs’ assertion that all Plaintiffs will testify in each other’s cases is premature and unestablished. (See id. at p. 13 [also arguing that, “even if the Court did allow testimony from some other accusers under Section 1101, the Court certainly would not permit those non-parties to testify to their subsequent psychological hardships or their resulting economic losses, much less present medical and expert testimony regarding causation and damages”], emphasis in original.)

Baker raises two procedural challenges. He contends “it is improper to consolidate actions for all purposes where the defendants in the various cases are not identical.” (Baker’s Opposition, p. 10.) He contends consolidation should be denied because he is only named as a Defendant in some of the cases at issue. (See ibid.) Next, he claims LA-2 Doe failed to satisfy Rule of Court 3.550. (See id. at pp. 13-14 [“Plaintiff’s notice of motion fails to list all named parties, the names of those parties who have appeared, or the names of all attorneys. Plaintiffs have also failed to incorporate a caption listing all the cases with the lowest numbered case shown first. For some reason, Plaintiff has listed Case No. 20STCV05145 first in the caption for their motion to consolidate, even though Case No. 20STCV00535, which Plaintiffs seek to include in the consolidation, is the lowest number case and was the first case to be filed.”].)

* Consolidation would prejudice him. (See id. at p. 12 [stating that “[t]he only real effect of consolidation would be to inflame the passions of the jurors” and that “consolidation for all purposes . . . would deprive Mr. Baker of substantive and procedural rights by making him a defendant to all of the consolidated lawsuits, even though he was never named as a defendant in several of the individual lawsuits or has never been served with process in others”].)

* His attorney is a sole practitioner and lacks sufficient resources to provide an effective defense in a consolidated trial. (See id. at p. 13.)

On balance, the Court agrees with the Defense Committee and Baker. The Court finds that LA-2 Doe’s motion should be denied on many grounds.

First, Baker’s procedural challenges appear meritorious.[1] LA-2 Doe seeks complete consolidation. Under complete consolidation, the parties must be identical, which is not the situation here. (See Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396; see also Rosenstiel v. Sunland Financial Services, 2019 WL 3941273, at *6 n.14 [Second District Court of Appeal finding complete consolidation unavailable since the bank was not a defendant in every case]; Baker’s Opposition, p. 10 [representing that Baker is not named and has not been served in some of the cases].)[2] Also, as Baker argues, LA-2 Doe’s notice of motion fails to comply with Rule of Court 3.550. (See Baker’s Opposition, pp. 13-14.) Both of these defects support denial of consolidation.

Second, individual issues predominate over the common issues. The Court agrees with LA-2 Doe that common questions exist, especially concerning the negligence-based claims and Institutional Defendants’ purported actual or constructive notice of Baker’s pedophilia and prior bad acts. It is probable that, in each case, Plaintiffs would use similar evidence to address these issues. However, “the major elements in tort actions for personal injuries liability, causation, and damages” tend to “vary widely from claim to claim.” (Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150, 155.) The prospect of wide variances here is substantial in light of the differences in “the nature and frequency of the alleged abuse[s.]” (Defense Committee’s Opposition, p. 3.) Indeed, the alleged abuses range from “a single instance of abuse, others under five, others up to ten, some between 50 and 100, and four plaintiffs allege over 100 instances of abuse.” (Ibid., emphasis in original.) The ages when the alleged abuses occurred differ too, ranging from five to 16 years old. (See ibid.) Unique facts, injuries, and damages, as well as some unique evidence, Plaintiff-by-Plaintiff, are certain and would take up the lion’s share of trial time.

The third ground is prejudice. The Defense Committee’s expert, Professor Penrod, opines that,

if the claims of multiple plaintiffs are presented to the same jury, the result will be to induce jury confusion and unfair prejudice against the defendant resulting in a substantially greater likelihood that the jury will find defendant liable and will award greater damages to the plaintiffs. There is evidence . . . that the simple pairing of plaintiffs is sufficient to cause these problems and the magnitude of the prejudice and confusion tends to grow with each additional joined plaintiff. . . .

(Penrod Decl., ¶ 6.) His declaration discusses studies showing that, “when evidence of consolidated claims is presented to a jury, the jury is substantially more likely to find against a defendant on a given claim than if it had not heard evidence of the other claims.” (Id. at ¶ 9; see also id. at ¶¶ 10-41.) The Court finds the declaration persuasive, and it is bolstered by the Defense Committee’s other evidence and the case law highlighted in Defense Committee’s brief, recognizing the prejudicial effect of “lumping” claims together through consolidation. (Defense Committee’s Opposition, p. 9; see also id. at pp. 8, 10-12.) The prejudicial effect would be far greater here since the claims arise from alleged sexual abuse of children, possibly the most emotion-stirring type of claim found in law. Juror confusion, provocation, and bias would be inevitable. (See, e.g., Baker’s Opposition, p. 12.)

Notably, LA-2 Doe fails to cite a decision upholding consolidation of sexual-abuse claims. Nor does he cite a decision consolidating anywhere near 23 cases.

Fourth, the Court agrees that consolidation would mar the bellwether process. Chances are high that hearing sexual-abuse claims of 23 Plaintiffs, back-to-back, would lead the jury to inflate damages determinations. The results would be skewed, and the ability to make extrapolations from the results would be undermined. (See, e.g., Defense Committee’s Opposition, p. 11.)

This is not to say that consolidation could never be done in the Southern California Clergy Cases. It is the magnitude of consolidating 23 Plaintiffs’ sexual-abuse claims that renders the circumstances overwhelming and inappropriate here. (Cf. Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4^th 976, 980 [affirming consolidation of three plaintiffs’ products-liability claims but noting that the “possibility of confusing the jury” and “the percentage of trial time devoted to individual issues increase[] with every additional plaintiff”].)

* On the current record, the Court agrees with the Defense Committee that jury instructions would be ineffective to mitigate the prejudice. (See Defense Committee’s Opposition, pp. 12-13.) Plaintiff’s showing is inadequate.

* The issue of whether Plaintiffs should be allowed to testify in each other’s cases is unripe. It is an issue for the motion-in-limine stage. (See id. at p. 13.)

[1] One sentence in the introduction of LA-2 Doe’s reply brief states that the “procedural issues [] are either moot or lacking in merit.” (Reply, p. 2.) The sentence is conclusive, and there is no further discussion elsewhere.

[2] Rosenstiel is unpublished, yet it provides insight into how the Second District would rule on this issue.

Plaintiff Unique ID	Case Number	Doe Name	Plaintiff Date of Birth
16	20STCV00535	Michael Boulanger	11/29/1973
21	20STCV05145	John LA-2 Doe	4/9/1964
22	20STCV05145	John LA-3 Doe	9/13/1973
23	20STCV05145	John LA-4 Doe	11/27/1969
67	20STCV19800	Jane LA-22 Doe	1/12/1971
97	20STCV27439	John Doe 1	1/19/1969
123	20STCV46467	Steven Lewis	9/29/1972
129	20STCV48070	Michael Dysthe	10/27/1964
355	22STCV05382	John Roe 28	1/20/1968
356	22STCV05382	John Roe 29	6/3/1970
725	22STCV28652	John Doe 628	2/3/1969
774	22STCV33254	John Doe LA 1621	5/12/1969
799	22STCV31177	John Roe 529	11/29/1969
859	22STCV33542	John Doe LA 1628	12/14/1961
1043	22STCV33405	John Doe A.J.M.
1396	22STCV40454	John Doe LA 2008	12/28/1968
1473	22STCV37997	John Doe 2806	2/24/1967
1593	22STCV38207	John Doe CLG03355	12/2/1961
1615	22STCV38852	John Doe CLG02767	12/11/1967
1815	22STCV33098	LL JOHN DOE RK	4/8/1965
1834	22STCV30449	LL JANE DOE TR	5/7/1971
1932	22STCV27073	J.C.	7/12/1972
2129	22STCV16260	Angel Rodriguez