Judge: Elaine Lu, Case: 22STCV00785, Date: 2022-09-22 Tentative Ruling

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Case Number: 22STCV00785 Hearing Date: September 22, 2022 Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Underwood university, inc.,

Plaintiff,

JIN WOO SUA aka JIN WON SUA,

Defendant.

Case No.: 22STUD00142

(Related to 22STCV00785)

Hearing Date: September 22, 2022

[TENTATIVE] order RE:

dEFENDANT JIN WOO SUA aka JIN WON SUA’S motion to consolidate 22stud00142 and 22stcv00785

Procedural Background

On January 7, 2022, Plaintiff Underwood University, Inc. (“Plaintiff”) filed the 22STCV00785 action (“Lead Action”) against defendants Jin Woo Sua aka Jin Won Sua (“Defendant”), Miracle Well Church, Won Jae Lee aka Daniel Lee, Jong Han Shin, Joseph Suh, Esther Kim, Duk Soo Kim, Joo Chang Park, Yoon Hee Oh, Han Suk Choi, Jung Eun Lee, David Lee, Joo Chan Park, and Hyun Seo Ki.[1] The Lead Action asserts six causes of action for (1) Breach of Contract, (2) Trespass, (3) Intentional Intrusion to Private Affairs, (4) Private Nuisance, (5) Conspiracy, and (6) Injunctive Relief.

On January 13, 2022, Plaintiff filed the unlawful detainer action 22STUD00142 against Defendant (“UD Action”). On May 19, 2022, the Court found that the Lead Action and UD Action are related and designated the Lead Action as the lead case and transferred the Unlawful Detainer action to the instant department. (Minute Order 5/19/22.)

On August 3, 2022, Defendant filed the instant motion to consolidate the Lead Action and the UD Action. On August 5, 2022, the Court advanced the hearing on the motion to September 22, 2022. (Minute Order 8/5/22.) On September 1, 2022, Plaintiff filed an opposition. On September 8, 2022, Defendant filed a reply.

Legal Standard

California Rules of Court Rule 3.350(a) states in relevant part:

(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

(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

(Cal. Rules of Court, Rule 3.350(a).) Also, the consolidation statute, Code of Civil Procedure § 1048, states 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.)

Discussion

Procedural Requirements

Pursuant to California Rules of Court, Rule 3.350, “[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.” A notice of motion must also be accompanied by the supporting papers. (CCP § 1010; Cal. Rules of Court, Rule 3.1110.) Further, the notice must be filed and served at least sixteen court days before the instant hearing. (CCP § 1005(b).) Further, a motion to consolidate, “[m]ust be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated[.]” (Cal. Rules of Court, Rule 3.350(a)(2)(B).)
Here, the notice of motion was not filed in the Lead Action until September 8, 2022 – only ten court days before the instant hearing. Moreover, there is no indication that Defendant has served all non-defaulted parties in the Lead Action and UD Action. Defendant’s Second Amended Cross-Complaint in the Lead Action names CBL Partners, LLC. Defendant has only recently filed a proof of service as to CBL Partners, LLC on September 15, 2022 indicating service on August 3, 2022 by substitute service. However, CBL Partners, LLC is not in default. Moreover, there is no indication that CBL Partners, LLC was properly and timely served with the instant motion as required.

Accordingly, the instant motion is CONTINUED TO October 7, 2022.

CONCLUSION AND ORDER

Based on the forgoing, Defendant Jin Woo Sua aka Jin Won Sua’s motion to consolidate 22STCV00785 and 22STUD00142 is CONTINUED TO October 7, 2022. Defendant is to file notice of the continuance and file proof of service of the instant motion on cross-defendant CBL Partners, LLC as timely required pursuant to Code of Civil Procedure § 1005(b). Otherwise, Defendant is to obtain the default of cross-defendant CBL Partners, LLC

Cross-Complainant has filed proof of service of the Amended Summons and Second Amended Cross-Complaint as to certain Cross-Defendants who have not responded though the time for them to file a responsive pleading has lapsed, including Underwood University and CBL Partners, LLC.

10/7/22 at 8:30 am - OSC re sanctions for entry of default. Cross-Complainant’s Counsel is ordered to appear on 10/7/22 at 8:30 am and show cause why sanctions (including monetary sanctions of at least $500 and/or dismissal) should not be imposed for failure to cause entry of default as to all served Cross-Defendants who have not responded.

If defaults have not all been entered at that time, then no later than five days before the OSC hearing, Cross-Complainant’s Counsel is also to file a declaration explaining the failure to obtain entry of defaults as to all served Cross-Defendants who have not responded and explaining any and all efforts undertaken to seek their defaults.

The Case Management Conference is continued to 10/7/22 at 8:30 am.

Defendants/Cross-Complainants are to give notice of this order and file proof of service within 2 court days.

DATED: September 22, 2022 ___________________________

Elaine Lu

Judge of the Superior Court

[1] On June 10, 2022, Plaintiff dismissed Jong Han Shin, Joseph Suh, Yoon Hee Oh, David Lee, and Hyun Seo Ki from the Lead Action. On June 14, 2022, Plaintiff dismissed Jung Eun Lee from the Lead Action. On August 10, 2022, Plaintiff dismissed Duk Soo Kim from the Lead Action.