Judge Elaine Lu, Case Number: 22SMCV01521, Date: 2023-09-29 Tentative Ruling

On August 23, 2022, Plaintiff S.T., a minor, by and through his guardian ad litem, Sandra T. (“S.T.”) filed an action under Case No. 22STCV27553 (“Lead Action”) against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Kelley, Xavier Jauregui, and Stacy Low. The original complaint for the Lead Action asserted four causes of action for (1) Negligence, (2) Negligence/Statutory Negligence, (3) Negligent Hiring, Retention, Supervision, and Training, and (4) Unruh Act Violation (Civ. Code §§ 51 and 52).

On August 23, 2022, Plaintiff C.R., a minor, by and through his guardian ad litem, Sherly R. (“C.R.”) filed a negligence action under Case No. 22SMCV01521 (“Related Action”) against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Kelley, Xavier Jauregui, Stacy Low, and Antonio Shelton. The original complaint for the Related Action asserted three causes of action for (1) Negligence, (2) Negligence/Statutory Negligence, and (3) Negligent Hiring, Retention, Supervision, and Training.

On October 13, 2022, the Lead Action and Related Action were deemed, and the Related Action was transferred to the instant Department. (Minute Order 10/13/22.)

On January 5, 2023, Plaintiff S.T. filed the operative First Amended Complaint in the Lead Action (“S.T. FAC”) against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Kelley, Xavier Jauregui, and Stacy Low. The S.T. FAC asserts two causes of action for (1) Negligence and (2) Negligent Hiring, Retention, Supervision, and Training. On January 30, 2023, Plaintiff S.T. dismissed Defendants Laura Simone, Laura Paule Sheahan, Jeffrey Kelley, Xavier Jauregui, and Stacy Low from the S.T. FAC. On February 2, 2023, Plaintiff S.T. dismissed Defendant Shaun Simone. Accordingly, only Defendant Santa Monica Malibu Unified School District remains in the Lead Action.

In the Related Action, on January 5, 2023, Plaintiff C.R. filed the operative First Amended Complaint in the Related Action (“C.R. FAC”) against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Kelley, Xavier Jauregui, Stacy Low, and Antonio Shelton. The C.R. FAC similarly asserts two causes of action for (1) Negligence and (2) Negligent Hiring, Retention, Supervision, and Training. On January 30, 2023, Plaintiff C.R. dismissed Defendants Laura Simone, Laura Paule Sheahan, Jeffrey Kelley, Xavier Jauregui, Stacy Low, and Antonio Shelton from the C.R. FAC. On February 2, 2023, Plaintiff C.R. dismissed Defendant Shaun Simone. Accordingly, only Defendant Santa Monica Malibu Unified School District remains in the Related Action.

On February 8, 2023, S.T. and C.R. filed the instant motion to consolidate the two actions. In the Lead Action, S.T. and C.R. only filed a notice of motion. On September 15, 2023, Santa Monica Malibu Unified School District (the “District”) filed an opposition only in the Related Action. On September 19, 2023, S.T. and C.R. filed an identical reply in both the Lead Action and Related Action.

(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

(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

(Cal. Rules of Court, Rule 3.350(a).) Also, the consolidation statute, Code of Civil Procedure § 1048, provides in relevant part:

(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).) The granting or denial of the motion to consolidate rests in the sound discretion of the trial court, and will not be reversed except upon a clear showing of abuse of discretion. (See Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.)

Plaintiffs S.T. and C.R. seek complete consolidation of the Lead Action and Related action asserting that the lawsuits are integrally related and dependent on one another. In opposition, the District contends that (1) common questions of law or fact do not predominate over individual questions of law and fact; (2) consolidation would lead to jury confusion; and (3) consolidation would lead to prejudice against the defendant and its right to a fair trial on liability and damages.

“Code of Civil Procedure section 1048, subdivision (a), authorizes the trial court, when appropriate, to ‘order a joint hearing or trial’ or to ‘order all the actions consolidated.’ Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) “Consolidation under Code of Civil Procedure section 1048 is permissive, and it is for the trial court to determine whether the consolidation is for all purposes or for trial only.” (Id. at p.1149.) Moreover, there is no requirement that the parties be identical for a complete consolidation. (See e.g., Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1206 [noting in action involving multiple parties not in the same action that “consolidation appears particularly appropriate in this case—the cases are in the same court, involve the same property, and many (if not all) of the same damages.”].)

Here, numerous factors support complete consolidation. First, each action involves the same single defendant, namely the District. Second, the plaintiffs S.T. and C.R. are represented by the same firm in both actions – Abir Cohen Treyzon Salo, LLP – and the District is represented by the same firm in both actions – Tyson & Mendes. Third, the causes of action alleged against the District – (1) Negligence and (2) Negligent Hiring, Retention, Supervision, and Training – are the same in both actions. Finally, the underlying facts in each action are not only related but interdependent with overlapping facts and witnesses.

As alleged in both actions, on September 10, 2021, S.T. – while attending Santa Monica High School – came home from school with “his right eye red and a red vessel popping out of this eye” caused by another student at Santa Monica High School (“Perpetrator”) who along with other students made fun of S.T. for the eye injury. (S.T. FAC ¶ 17; C.R. FAC ¶ 17.)[1] While S.T. was seen by the nurse at Santa Monica High School, the District failed to inform S.T.’s parents of the attack. (S.T. FAC ¶ 17; C.R. FAC ¶ 18.) S.T.’s parents informed the District of this incident. (S.T. FAC ¶ 17; C.R. FAC ¶ 18.) Soon after, on September 20, 2021, S.T. was again bullied by the Perpetrator on campus during school hours where the Perpetrator and said Perpetrator’s friends – who were also students at Santa Monica High School – made fun of S.T.’s injured eye, which S.T.’s parents again informed the District of. (S.T. FAC ¶ 18; C.R. FAC ¶ 19.) On October 28, 2021, S.T. was bullied by the Perpetrator on campus during school hours, which culminated in S.T. being physically attacked by a friend of the Perpetrator – who was also a student at Santa Monica High School. (S.T. FAC ¶ 19; C.R. FAC ¶ 20.) S.T’s parents informed the District of this incident. (S.T. FAC ¶ 19; C.R. FAC ¶ 20.)

In January and February 2022, students at Santa Monica High School further bullied S.T. by taking his phone and going through it, throwing out S.T.’s lunch, pulling down S.T.’s pants, and recording pulling down S.T.’s pants down. (S.T. FAC ¶¶ 20-22; C.R. FAC ¶¶ 21-23.) S.T.’s parents again informed the District of each incident. (S.T. FAC ¶¶ 20-22; C.R. FAC ¶¶ 21-23.)

On February 25, 2022, a student at Santa Monica High School tried to attack S.T. while S.T. was playing basketball with C.R. (S.T. FAC ¶ 23; C.R. FAC ¶ 24.) C.R. in trying to protect S.T. was attacked himself while other students recorded the attack. (S.T. FAC ¶ 23; C.R. FAC ¶ 24.) C.R. and S.T.’s parents informed the District of this incident. (S.T. FAC ¶ 24; C.R. FAC ¶ 24.) On March 2, 2022, April 18, 2022, and May 13, 2022 the same student that attacked C.R. along with other students resumed taunting C.R., bumping into C.R., and challenging C.R. to fight the same student that attacked C.R on campus during school hours. (C.R. FAC ¶ 25.) C.R.’s parents informed the District of these incidents. (C.R. FAC ¶ 25.) “On or about May 16, 2022, friends of the perpetrator who attacked [C.R.], who were also students of Santa Monica High School, approached Plaintiff on campus and during school hours and placed a portable speaker on the lunch table at Santa Monica High School with racial slurs playing aloud including the ‘N-word.’ Meanwhile, these students started laughing on campus and during school hours.” (C.R. FAC ¶ 26.) Despite being informed of these incidents, District did not adequately supervise and maintain discipline of the students at Santa Monica High School. (S.T. FAC ¶ 26; C.R. FAC ¶ 29.)

As alleged, the District was informed of a series of bullying incidents, including one against S.T., another against both S.T. and C.R., and then another against C.R. on campus during school hours, but the District failed to protect C.R. and S.T. A complete consolidated consolidation is warranted under these facts. There is an overlapping incident on February 25, 2022 involving both C.R. and S.T. which would necessitate at a minimum the same evidence be presented as to the February 25, 2022 incident if the actions were separately tried. Further, whether the District had knowledge of the earlier bullying incidents against S.T. at Santa Monica High School is plainly relevant to whether it acted negligently in its failure to protect C.R. in the subsequent bullying incident. A consolidated action would avoid the unnecessary presentation of the same evidence to two separate juries. Thus, judicial economy weighs in favor of consolidating the trials. Similarly, there will be many overlapping issues in discovery.

Accordingly, S.T. and C.R.’s motion to completely consolidate the Lead Action and Related Action is GRANTED.

Based on the forgoing, Plaintiff S.T. and C.R.’s motion to consolidate 22STCV27553 and 22SMCV01521 is GRANTED. Consolidation is ordered for all purposes under Case No. 22STCV27553. All future pleadings are to be filed in the Lead Action only under Case No. 22STCV27553.

[1] The Court notes that the C.R. FAC refers to S.T. as “A.C.” However, given the identical allegations and that the parties appear to agree that S.T. is the A.C. referred to in the C.R. FAC, the Court will similarly conclude as such.

Superior Court of California

County of Los Angeles

Department 26