Judge: Helen Zukin, Case: 19SMCV01950, Date: 2023-02-14 Tentative Ruling

Case Number: 19SMCV01950    Hearing Date: February 14, 2023    Dept: 207

Background

Plaintiffs Paul Hendifar and Jason Hendifar (collectively “Plaintiffs”) bring this action alleging construction defects in real property they own in Venice, California. Plaintiffs’ separately initiated a separate action, Case No. 21SMCV02011, against other individuals and entities who sold those properties to Plaintiffs and are alleged to have concealed or failed to disclose the existence of those same defects in the real property at issue in the 19SMCV01950 action. On December 12, 2022, the Court deemed the two actions related. Defendants in the 21SMCV02011 action include Lindsay Galbraith, Gregory Bega, Josephs Ryan Cilic, Marc Fisherman, and Sotheby’s International Realty, Inc. (collectively “Defendants”). Defendants now move to consolidate the two actions pursuant to Code Civ. Proc. § 1048. Plaintiffs oppose Defendants’ motion.

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

(C)       Be filed in each case sought to be consolidated.

(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

(C)       Must have a proof of service filed as part of the motion.

(Cal. Rules of Court, rule 3.350(a)).

Code Civ. Proc. § 1048 further provides:

(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.

(C.C.P. § 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. (Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) 

Analysis

Defendants seek to consolidate the instant action with Case No. 21SMCV02011 pursuant to Code Civ. Proc. § 1048(a). The Plaintiffs are the same in both actions. In this action, Case No. 19SMCV01950, Plaintiffs allege claims for construction defects in real property owned by Plaintiffs and located at 516 Vernon Avenue and 518 Vernon Avenue in Venice, California. In the 21SMCV02011 action plaintiffs bring claims for fraud and breach of fiduciary duty against the sellers and real estate agents who sold them those properties, alleging they failed to disclose the defects which form the basis of Plaintiffs’ 19SMCV01950 action. On December 12, 2022, the Court ordered the two cases related pursuant to California Rules of Court, rule 3.300(a). Defendants now seek to consolidate the two cases for all purposes, including trial, arguing they necessarily involve overlapping factual issues concerning the alleged construction defects, and thus there is a risk of inconsistent verdicts if the two actions are not consolidated for trial.

Plaintiffs do not dispute the matters concern overlapping factual issues, nor do they argue consolidation is improper. However, Plaintiffs object to the cases being consolidated for trial, as trial in the 19SMCV01950 action is set to commence on February 27, 2023, whereas the 21SMCV02011 matter has not been set for trial and will not be ready to proceed to trial on February 27.

The Court finds consolidation of these matters is appropriate under Code Civ. Proc. § 1048(a) given the two actions share several factual issues and thus carry an inherent risk of inconsistent verdicts on the same facts. The Court understands Plaintiffs’ reluctance to continue the trial date in the 19SMCV01950 action, however such a continuance is necessary to prevent the risk of inconsistent verdicts and the Court would have had to continue the trial in this action to accommodate its own trial calendar even if it were to deny Defendants’ motion.

However, it does not appear Defendants have satisfied the requirements of California Rules of Court, rule 3.350(a) in bringing this motion. First, it is unclear whether Defendants have served this motion on “all attorneys of record and all non-represented parties in all of the cases sought to be consolidated” as required by rule 3.350(a)(2)(B). Defendants motion lists the names of all parties and their respective attorneys of record and states “The instant Motion to Consolidate has been served on all attorneys of records in all cases, as indicated by the attached Proof of Service.” (Motion at 7.) However, the proof of service attached to Defendants’ motion indicates it was only served on Plaintiffs, Defendant CDH Builders, and Defendant and Cross-Complainant Rockport Construction, Inc. (POS at 2; Reply at 6.) Defendants’ motion identifies several parties, such as Cross-Defendants S&I Construction, Inc., Valley National Glass, and Lion Windows & Doors which do not appear on Defendants’ service list. The Court will continue the hearing on this motion to allow Defendants’ to file an amended proof of service establishing service was properly made on all parties in both actions as required by rule 3.350(a)(2)(B).

The Court also notes Defendants’ motion was filed only in the 19SMCV01950 action and was not filed in the 21SMCV02011 as required by rule 3.350(a)(1)(C). The Court will excuse this technical violation of rule 3.350(a)(1)(C) as it appears from Defendants’ proof of service that all counsel in the 21SMCV02011 were served with the motion.

Conclusion

Defendants’ motion to consolidate is continued to February 22, 2023, to allow the moving parties to file an amended proof of service establishing proper service on all parties as required by California Rules of Court, rule 3.350(a)(2)(B).