Judge Gail Killefer, Case 21STCV21734 2022-09-15 Tentative Ruling

CASE NAME: Antonio Guerrero v. Shlomo Rechnitz; Steven Stroll; Bakersfield Healthcare and Wellness Centre, LLC; Rockport Administrative Services, LLC

MOVING PARTIES: Defendants Shlomo Rechnitz, Bakersfield Healthcare and Wellness Centre, LLC, and Rockport Administrative Services, LLC

Tentative: Moving Defendants’ motion is denied without prejudice. Plaintiff is to give notice.

Background

This is an elder abuse action arising out of the residency of Plaintiff Antonio Guerrero’s (“Decedent”) at Defendant Bakersfield Healthcare and Wellness Centre, LLC (“Facility”). Decedent brings this action through his successor in interest, Carlos Guerrero (“Mr. Guerrero”). According to the Complaint, Defendant Rockport Administrative Services, LLC (“Rockport”) manages and controls Facility, and Defendant Steven Stroll (“Stroll”)[1] is listed as Rockport’s manager. Additionally, Defendant Shlomo Rechnitz (“Rechnitz”) is allegedly the true owner and operator of the entity-Defendants.

According to the Complaint, all Defendants acted as agents and alter egos of each other in operating Facility. Defendants failed to comply with numerous laws and regulations governing the operations of skilled nursing facilities through their actions, including by unlawfully siphoning money from Facility to Rechnitz, understaffing Facility, employing unlicensed or unqualified employees and otherwise depriving Facility of essential care services for its patients. Specifically, Defendants allegedly failed to provide Decedent adequate care during his residency despite knowledge that Decedent had severe pressure ulcers and required assistance with activities of daily living. Defendants’ alleged failure to provide care for Decedent resulted in Decedent’s injuries and his ultimate death.

Plaintiff’s Complaint alleges two causes of action: (1) elder abuse; and (2) negligent hiring and supervision. Plaintiff dismissed without prejudice the second cause of action on April 25, 2022.

On August 10, 2021, Plaintiff filed a Notice of Related Case indicating that this action was related to Carlos Guerrero, et al. v. Shlomo Rechnitz., et al. (Case number 21STCV28665) (“Second Action”), filed August 4, 2021.

Defendants Shlomo Rechnitz, Bakersfield Healthcare and Wellness Centre, LLC, and Rockport Administrative Services, LLC (collectively referred to as “Moving Defendants”) now move to consolidate this action with the Second Action. Plaintiff opposes the motion.

“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.” (CCP § 1048.) “[A]ctions may be consolidated, in the discretion of the court, whenever it can be done without prejudice to a substantial right.” (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.)

Additionally, California Rules of Court, rule 3.350(a)(1) requires the notice of a motion to consolidate meet the following procedural requirements:

(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

Moving Defendants contend that this action must be consolidated with the Second Action because the two cases have common questions of law and fact. (Motion, 4-6.) Specifically, Moving Defendants contend that common questions of law and fact exist because the factual allegations made in each complaint are nearly identical and arose from the same incident when Guerrero allegedly suffered abuse and neglect while under the care of Defendants. (Id.) Moving Defendants also explain that in the Notice of Related Action that was filed in this matter on August 10, 2021, and which the court granted, Plaintiff explained that both actions “involve one of the same Defendants and are based on the same or similar claims, and arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact.” (Motion, 5, Exh. C, 1:22-25.)

Moving Defendants further contend “both actions arise from the same alleged injuries suffered by plaintiff/decedent, Carlos Guerrero while he resided at [Defendant Facility]” and involve common issues of law and fact “whether the facility provided proper care to plaintiff/decedent and if he suffered any injuries as a result of the alleged improper care.” (Motion, 7.) Moving Defendants also note that “the only difference in the factual issues regarding the two cases is whether that same care rose to the level of elder abuse/neglect...” (Id.) Moving Defendants also contend that since the defendants and witnesses are the same for both actions, it will also “be more economical and convenient for the Court not to have two different trials based on the same facts...” (Motion, 8.) Moving Defendants contend the same witnesses will be called both actions, as well as the same experts, medical providers, exhibits, witnesses, and same motions in limine to said evidence. (Id.)

Moving Defendants contend that based on Plaintiff’s meet and confer, any concerns over different causes of actions, different burdens of proof, and different damages can be specifically addressed through jury instructions and Special Verdict Forms. (Motion, 9.) Also, even though “there are different damages allowed, all of the potential damages would flow from the same facts/conduct so there would be no reason to keep the two Actions separated just because of the different allowable damages.” (Id.) Also, Moving Defendants assert that since all causes of action revolve around the pressure ulcers and underlying medical conditions of plaintiff/ decedent, discovery in both actions will be identical, with different considerations of the evidence based on the relevant inquires. (Motion, 9-10.) Moving Defendants contend that plaintiffs will have “less pretrial work” if consolidated, and will lead to a shorter trial because the “overlapping witnesses will testify once...with the one exception of a wrongful death causation expert.” (Motion, 10.)

In opposition, Plaintiff contends that the two actions involve different procedural considerations and involve two separate claims for damages—on behalf of the decedent by specific heirs and by plaintiffs not acting as part of the victim’s estate. (Opp., 1.) Plaintiff further explains that the plaintiffs in the two actions are not the same parties. (Opp., 2.) Plaintiff also explains that the evidentiary standards for the two actions are different. (Opp., 2-3.) Plaintiff further contends that there “are also distinct causation issues in the two cases.” (Opp., 4.) As a result, Plaintiff contends “the discovery and presentation of evidence in the wrongful death case will be different from that in the survival action.” (Id.)

Plaintiff further contends that discovery in the two actions will necessarily be different, as the survival action will also involve evidence of malice, recklessness, and/or fraud as to the punitive damages request. (Id.) “Discovery in this regard is massive and literally non-existent in the wrongful death action.” (Opp., 5.) Further, Plaintiff points out that the wrongful death action will involve an inquiry into the conduct of the heirs and an analysis of their loss, where the survival action will not. (Opp., 6.) Lastly, Plaintiff contends that the Notice of Related Action is not “determinative of the issue of consolidation,” as “there are numerous legal and factual issues that are different and distinct in the two cases.” (Id.)

In reply, Moving Defendants contend that even though the actions involve different code sections, they “still involve common questions of law or fact.” (Reply, 2-3.) Moving Defendants further contend that the wrongful death plaintiffs will have to testify in the wrongful death action, “so they will not be burdened with extra testimony if the cases are consolidated.” (Reply, 3.) Moving Defendants also argue that any concern for prejudicial confusion, or issues of different allowable damages or proving causation, can be addressed through an extra expert, jury instructions and verdict forms, stating “hundreds of trials occur with both a dependent adult abuse cause of action and a wrongful death cause of action...and this case is no different from all of those other cases.” (Id.) Moving Defendants further point to Plaintiff’s discovery responses to assert that discovery of the dependent adult abuse case will indeed be similar to the wrongful death action, as Plaintiff here also alleges that Defendants’ conduct caused Guerrero’s death. (Reply, 4.) Moving Defendants reiterate their contentions that the two complaints involve substantially identical allegations, and as such, claim that “discovery will also nearly be the same, with perhaps a couple of extra wrongful death questions and the added depositions of the wrongful death plaintiffs, but again, this discovery would have to occur anyways in the wrongful death case.” (Reply, 5.)

The court has reviewed the Complaint in the Second Action agrees that common questions of law and fact exist in both actions. The court also notes that this action and the Second Action have been deemed related and involve identical defendants. As such, the court agrees with Moving Defendants that the consolidating of the two actions will lead to greater judicial economy and avoid duplicate testimony of many witnesses.

However, the court also notes that the motion to consolidate has not been filed in Second Action as required by California Rules of Court, Rule 3.350(a)(1)(C).

Moving Defendants’ motion is denied without prejudice. Plaintiff is to give notice.

[1] Plaintiff filed a Request of Dismissal for Defendant Stroll on September 2, 2022. Defendant Stroll was dismissed without prejudice on September 6, 2022.