Judge: Frank M. Tavelman, Case: 22BBCV00702, Date: 2024-12-13 Tentative Ruling

Case Number: 22BBCV00702    Hearing Date: December 13, 2024    Dept: A

MOTION TO CONSOLIDATE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Gloribel Baires (Gloribel), individually and as successor-in-interest to and on behalf of Maria Baires (Decedent), Mirna Vanegas (Mirna) and Samuel Baires (Samuel) (collectively Plaintiffs) currently maintain two actions against ICC Convalescent Corp. (ICC), Rose Garden Subacute & Rehabilitation Center, LLC dba Rose Garden Healthcare Center (Rose Garden), and Two Palms Nursing Center, Inc. dba Two Palms Care Center (Two Palms). In both actions, Plaintiffs allege that Decedent received substandard care as a resident at Defendants’ facilities and that such substandard care resulted in Decedent’s injury and death.

Before the Court is a motion by ICC to consolidate LASC Case No: 22BBCV00702 and LASC Case No: 24BBCV00428. ICC argues that these cases rest on identical facts and causes of action such that they should be consolidated. ICC further requests that consolidation be granted such that the claims of LASC Case No: 24BBCV00428 be dismissed.

Plaintiffs oppose the motion, arguing that consolidation would prejudice their right to pursue claims under the newly amended MICRA. Plaintiffs request that if the Court desires these matters be consolidated, that they only be consolidated for purposes of trial.

ANALYSIS: 

I.                    LEGAL STANDARD 

“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.” (C.C.P. § 1048(a).)

The decision to consolidate is entirely within the Court’s discretion. (See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.) Thus, “it is possible that actions may be thoroughly ‘related’ in the sense of having common questions of law or fact, and still not be ‘consolidated,’ if the trial court, in the sound exercise of its discretion, chooses not to do so.” (Askew v. Askew (1994) 22 Cal.App.4th 942, 964.)

II.                 MERITS

History

On October 3, 2022, the Complaint in the matter bearing LASC Case No: 22BBCV00702 was filed. (Alvarado Decl. Exh. A.) The Complaint (hereinafter referred to as the 2022 Complaint) lists as Plaintiffs the following:

1)      Decedent

2)      Gloribel

3)      Mirna

4)      Samuel

The 2022 Complaint lists as Defendants the following:

1)      ICC

2)      Rose Garden

3)      Two Palms

The Complaint lists as Nominal Defendants (hereinafter collectively referred to as Nominal Defendants) the following:

1)      Gueysel Baires

2)      Delmy Vanegas

3)      Walter Vanegas

4)      Angelica Mira

The 2022 Complaint explained that Nominal Defendants are Decedent’s surviving children. (2022 Compl. ¶ 8.) The 2022 Complaint states causes of action for:

1)      Elder Adult Abuse/Neglect (as stated by Decedent against all Defendants)

2)      Negligence (as stated by Decedent against all Defendants)

3)      Wrongful Death (as stated by Gloribel, Mirna and Samuel)

On June 22, 2023, the Court issued its final ruling on the Motion to Compel Arbitration brought by Rose Garden and Two Palms. (See June 22, 2023 Minute Order.) The Court ordered the Elder Abuse and Negligence claims of Decedent as against Rose Garden and Two Palms be arbitrated. (Id.) The Wrongful Death claims of Gloribel, Mirna, and Samuel as against Rose Garden and Two Palms to also be arbitrated. (Id.) Lastly, the Court ordered that the action be stayed as to the claims against Rose Garden only. (Id.)

Plaintiffs subsequently appealed the order of the Court. On October 18, 2023, a Notice of Abandonment was filed with the Court. Thereafter the case remained dormant for several months, save for a November 30, 2024 Case Management Conference.

On February 20, 2024, the Complaint in the matter bearing LASC Case No: 24BBCV00428 was filed. (Alvarado Decl. Exh. C.)

This Complaint (hereinafter the 2024 Complaint) lists as Plaintiffs the following:

1)      Decedent

2)      Gloribel

3)      Mirna

4)      Samuel

The 2024 Complaint lists as Defendants the following:

1)      ICC

2)      Rose Garden

3)      Two Palms

The 2024 Complaint lists as Nominal Defendants the following:

1)      Gueysel Baires,

2)      Delmy Vanegas,

3)      Walter Vanegas, and

4)      Angelica Mira

The 2024 Complaint contains causes of action for:

1)      Elder Adult Abuse/Neglect (as stated by Decedent against all Defendants)

2)      Negligence (as stated by Decedent against all Defendants)

3)      Wrongful Death (as stated by Gloribel, Mirna and Samuel)

2022 Demurrer

The Court first addresses ICC’s argument as concerns their demurrer and motion to strike the 2022 Complaint. On December 19, 2022, ICC filed a demurrer and motion to strike Plaintiffs’ 2022 Complaint with a hearing date of March 3, 2023. In the time between the filing of this motion and the hearing, the Court heard motions to compel arbitration and stay proceedings by Rose Garden and Two Palms. The Court requested additional briefing on the motions to compel arbitration and ultimately took the matter under submission.

While the motions to compel arbitration were pending, ICC’s demurrer and motion to strike came on for hearing. The briefing of both ICC and Plaintiffs asserted that Court had granted a stay of proceedings in this matter and that the demurrer/motion to strike should be removed from the Court’s calendar until the stay was lifted. (See Feb. 21, 2024 Opposition; see also Feb. 24, 2024 Reply.) The Court clarified in its March 3, 2023 ruling that it had not ordered the matter be stayed, but that the demurrer/motion to strike should be removed from the calendar pending the final ruling in the motion to compel. (See Mar.3, 2023 Minute Order.) 

On June 22, 2023, the Court issued its final ruling in the motion to compel arbitration. The Court found Decedent’s claims against Rose Garden were subject to arbitration, but not her claims against Two Palms. The ruling issued a stay of proceedings as to Rose Garden only. (See Jun. 22, 2023 Minute Order.) On July 10, 2023, Two Palms filed a Notice of Appeal and Stay of Proceedings with regard to all parties. Then on October 5, 2023, Rose Garden, Two Palms, and Plaintiffs stipulated to arbitrate all claims between them. This stipulation makes no reference to a stay of proceedings as to the claims against Two Palms.

On November 26, 2023, ICC’s previous counsel passed away. (See Nov. 29, 2024 Notice of Unavailability.) On December 19, 2024, ICC’s current counsel substituted into the matter. The next filing in the 2022 matter was Plaintiffs’ Notice of Related case on March 15, 2024. On June 6, 2024, Plaintiffs and ICC stipulated to the filing of a First Amended Complaint in the 2022 matter. (See Jul. 25, 2024 Order.)

The Court is uncertain why the demurrer and motion to strike were not heard after the stay from Two Palm’s appeal was lifted. The Court’s Minute Orders for the numerous appearances between the stipulation to arbitrate and this motion make no mention of any request by ICC for its demurrer and motion to strike to be placed back on the Court’s calendar. Presumably this was caused by some combination of ICC’s previous counsel passing and the pending First Amended Complaint.

In any event, the Court finds the fact that the demurrer/motion to strike were never heard has no impact on the outcome of the instant motion. As will be discussed below, the claims of each the 2022 Complaint, the 2024 Complaint, the 2022 FAC, and the 2024 FAC, are identical in substance. Whether Plaintiffs have sufficiently pled their claims has no effect on whether the claims in the 2022 case are similar enough to warrant consolidation with the 2024 case. Further, the Court finds resetting the initial demurrer/motion to strike would serve little purpose, as they are not directed at the 2022 FAC which is the operative pleading in the matter.

General Discussion

The Court begins its analysis by distinguishing between the two types of relief discussed by the parties. These two forms of relief are consolidation, governed by C.C.P. § 1048(a), and a plea in abatement, governed by C.C.P. § 430.10(c). While the briefing of the parties discusses these forms of relief somewhat interchangeably, there are crucial differences between them.

ICC’s motion specifically states its grounds are C.C.P. § 1048(a), which provides:

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.

Under the statute and the case law, there are thus two types of consolidation (1) a consolidation for purposes of trial only, where the two actions remain otherwise separate (consolidation for trial) and (2) 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 (complete consolidation). (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) Where two actions are completely consolidated, “the pleadings are regarded as merged…” (Sanchez v. Superior Court 203 Cal. App. 3d 1391, 1396.)

Here, ICC explicitly requests the actions be joined for all purposes.

In opposition, Plaintiff makes the argument that ICC has waived their right to object to the 2024 Complaint because they did not timely demur to it. This argument speaks to a form of relief which is distinct from C.C.P. § 1048(a). Waiver of the ability to object to the 2024 Complaint is instead governed by C.C.P. § 430.10(c), which provides:

The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds… There is another action pending between the same parties on the same cause of action.

C.C.P. § 430.10(c) is a codification of the common law rule against split causes of action. A claim in a second suit is determined to be a “split cause of action” where it is based on the same cause of action as one asserted in a prior action and both claims are premised on the same “primary right”. (Id. [internal quotation marks and citations omitted].) A primary right is distinct from the legal theory on which liability is premised or the remedies that may be sought. (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 490 citing Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) Thus, while a primary right may support multiple theories of liability or various forms of relief, it gives rise to a single, indivisible cause of action for purposes of applying claim preclusion principles. (Id.)

The rule against split causes of action in turn derives from the legal doctrine of res judicata. (Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914 [internal quotation marks and citations omitted].) Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. (Id. [internal quotation marks and citations omitted].) Where a previous action has been finally determined, res judicata and the rule against split causes of action are easily applicable. Where two actions are maintained concurrently, things become more difficult.

“The defense that a plaintiff has split a cause of action is an affirmative defense, which must be pleaded by a defendant in abatement.” (Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33, 43, superseded by statute on other grounds.) “Because the prohibition against splitting a cause of action exists for the benefit of the defendant, the defendant may waive it and will be deemed to have acquiesced in plaintiff's splitting of a cause of action if the defendant fails to object.” (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 909.)

“A plea in abatement such as lack of capacity to sue must be raised by defendant at the earliest opportunity or it is waived.... The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer.” (V & P Trading Co., Inc. v. United Charter, LLC (2012) 212 Cal.App.4th 126, 133, citing Color–Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) “If the party against whom a complaint ... has been filed fails to object to the pleading, either by demurrer or answer, that party is deemed to have waived the objection unless it is an objection that the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action.” (Id.)

Plaintiffs’ argument appears to be that because ICC did not demur to the 2024 Complaint, they have waived their right to object to the claims therein as split causes of action. Plaintiffs further argue that, because they have waived objection, “Defendant must not be allowed to raise such a defense through the back door via a motion to consolidate.” (Opp. p. 15.) The Court finds this argument unpersuasive.

Plaintiffs present no authority to support their claim that waiver for purposes of C.C.P. § 430.10(c) serves to bar a motion for consolidation. The authority relied upon by Plaintiff indicates that waiver in the context of C.C.P. § 430.10(c) is meant to prevent a defending party from proceeding in litigation and then claiming a split cause of action once litigation has progressed to a final determination.

In Ferraro, the court found that a defendant could not seek to dismiss an appeal on grounds that the judgment against it was based on a split cause of action because that defendant did not timely demur on those grounds. (Ferraro supra, at 102 Cal.App.3d at 43.) Likewise, Peerless Ins. Co. v. Superior Court (1970) 6 Cal.App.3d 358 concerned an objection to split causes of action which occurred after trial had already commenced.

Cases outside of Plaintiffs’ brief assume similar procedural postures. V & P Trading Co., Inc. v. United Charter, LLC (2012) 212 Cal.App.4th 126 concerned an objection to split claims which was presented two years after the commencement of litigation and in opposition to a motion for summary judgment. Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, while it did not concern split causes of action, also found waiver where lack of standing (typically raised by a plea in abatement) was presented for the first time on appeal. 

Upon thorough search, the Court can locate no authority which states that a waiver of objection to a split cause of action prevents a motion for consolidation. Nor has Plaintiff presented any such authority. Further, the cases in which waiver is discussed all concern objections to split causes of action that occurred well after the fact. None of these cases discuss a scenario in which a final judgment has yet to be reached in either action.

The Court finds further support for this understanding in the fact that both C.C.P. §§ 1048(a) & 430.10(c) use permissive language. A party may move to consolidate an action for all purposes, or it may choose to demur on grounds there is another action pending between the same parties on the same cause of action. Nothing in the languages of these statutes suggest one restricts the other. It appears to the Court that a party in ICC’s situation may choose to do either, though they may not move pursuant C.C.P. § 430.10(c) unless they do so timely.

In short, the Court finds no authority supports the argument that ICC is prevented from bringing this motion by failing to timely demur to the 2024 Complaint. As such, the Court’s remaining analysis will focus on whether ICC has demonstrated consolidation is proper.

Consolidation

The Court finds ICC has presented compelling reasons for consolidation, primary among them that the claims in both actions are virtually identical. Plaintiffs’ 2022 Complaint and the 2024 Complaint do not differ in any substantial way. A review of both Complaints reveals they concern the same plaintiffs, defendants, underlying facts, and causes of action. The only difference on the face of the two pleadings are the dates on which they were filed. Plaintiffs do not dispute this, instead arguing that they are entitled to maintain both actions separately because of a change in law between the filings.

In 2022, the California Legislature amended the Medical Injury Compensation Reform Act (MICRA) codified at California Civil Code § 3333.2. Assembly Bill 35 (A.B. 35) made substantial changes to MICRA, namely by removing the previous $250,000 statutory limit on noneconomic damages for plaintiffs for actions related to injury or death involving medical negligence. (See 2022 Cal. Legis. Serv. Ch. 17, A.B. 35.) These revisions went into effect on January 1, 2023 and specifically provided that they only applied to “all cases filed or arbitrations demanded on or after, January 1, 2023.” (Cal Civ. Code § 3333.2(g).)

By the plain language of the statute, Plaintiffs’ 2022 Complaint does not qualify for the higher damages enacted by A.B. 35. Plaintiffs’ 2024 Complaint would qualify for these increased damages. Plaintiffs make no attempt to disguise that the 2024 Complaint was filed explicitly for the purpose of obtaining a larger recovery under MICRA. The question is thus whether their doing so was proper and, if not, how these cases should proceed.

In short, the only difference between the 2022 action and the 2024 action are their filing dates. This clearly qualifies the actions as concerning common questions of law and fact. Further, the Court finds that consolidation in such an instance would prevent a great deal of duplicative litigation. Because the claims are the exact same between the actions, it follows that evidence, witnesses, and procedural posture will also be identical.

Plaintiffs do not dispute that the actions are identical or that consolidation would save a great deal of time. Instead, Plaintiffs argue that consolidation would impermissibly prejudice their substantial rights. Plaintiffs argue that consolidation would impermissibly prejudice their substantial right to greater recovery under the revised provisions of MICRA. Plaintiffs cite to Talei v. Pan Am. World Airways in asserting that a limitation on damages affects a plaintiff’s substantial right because it essentially functions to limit the defendant’s liability. (Talei v. Pan Am. World Airways (1982) 132 Cal.App.3d 904, 909–10.) Plaintiffs reason that consolidation here would functionally deprive them of their substantial right to recover greater damages under the revised provisions of MICRA. The Court finds this argument unpersuasive for a variety of reasons.

Talei relies on a version of C.C.P. § 1048 which is no longer operative. The “substantial right” language relied upon in Talei derives from the 1872 version of C.C.P. § 1048, which read, “An action may be severed and actions may be consolidated, in the discretion of the court, whenever it can be done without prejudice to a substantial right.” (See Stats.1851, c. 5, p. 134, § 526.) This language was removed when the statute was revised in 1971 to more closely resemble its current form. (Id.) The Court is unable to locate any modern authority which still considers the absolute prohibition of consolidation where a substantial right would be prejudiced. While the effect of consolidation on a substantial right may be a consideration in the exercise of the Court’s discretion, it no longer appears a complete bar to consolidation.

Talei is also inapposite because it did not concern any attempt at consolidation and does not mention C.C.P. § 1048. Talei concerned an appeal from a trial court order dismissing the plaintiff’s oral complaint for failure to adhere to the seven day notice of claim provision of the Warsaw Convention. (Talei supra, 132 Cal.App.3d at 908.) Talei’s discussion of whether this time limit affected a substantial right occurred in its analysis of whether the plaintiff in that case was denied constitutional due process, not whether he could sustain duplicative actions in the face of legislative amendment. In short, Talei is both factually and procedurally inapposite and its discussion of substantial rights does not support Plaintiffs’ argument in opposition.

Lastly, it entirely unclear what rights of Plaintiffs will be prejudiced. While it is true that Cal. Civ. Code § 3333.2 states that an injured plaintiff “shall” recover certain damages, this provision inherently presumes that plaintiff has prevailed in his action. To the extent Cal. Civ. Code § 3333.2 creates any right to recovery in Plaintiffs, it does so under the assumption that (1) they have prevailed in their action and (2) that their action was properly filed after January 1, 2023. Plaintiffs’ argument is essentially that they have the right to circumvent the start date in the amended Cal. Civ. Code § 3333.2 by filing an identical action after litigation in the 2022 case has been pending for the greater part of two years. The Court finds Plaintiff has not evidenced that this right exists.

Complete Consolidation

Plaintiffs urge that if any consolidation occurs here, that it be only for the purpose of trial. Plaintiffs argue that this would allow them to proceed with the 2022 claims that do not qualify under AB-35 without precluding their 2024 claims which do qualify under AB-35. The Court finds this argument unpersuasive because, as previously stated, these claims are the same. Nothing about the substance of the 2024 claims render them eligible under AB-35, only the date on which they were filed. Plaintiffs’ ability to recover greater damages essentially has nothing to with their claims.

Further, the Court foresees mass confusion if the actions are consolidated only for trial. If the Court and parties have grappled this significantly with the issues of claim splitting and consolidation, it stands to reason that a jury would be even further confused.

Conclusion

The Court finds that the 2022 Complaint and the 2024 Complaint brought by Plaintiffs are virtually identical in the parties named, facts alleged, and causes of action stated. ICC has sufficiently demonstrated that consolidation of these matters for all purposes is proper given the identical claims they present.

Accordingly, the Motion to Consolidate is GRANTED.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

ICC Convalescent Corp.’s Motion to Consolidate came on regularly for hearing on December 13, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO CONSOLIDATE IS GRANTED.  

CASE MANAGEMENT CONFERENCE IS CONTINUED TO MARCH 28, 2025 AT 9:00 AM.

ICC CONVALESCENT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 13, 2024                           _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles