Judge: Holly J. Fujie, Case: 20STCV19545, Date: 2022-08-31 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STCV19545    Hearing Date: August 31, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTIES: (1) Plaintiffs Emma Martin, Elizabeth Gagliano, and Kathryn Sessinghaus (collectively, the “Martin Plaintiffs”); (2) Jamie Ann Ivey, Sandra Dee Ivey, and James Edward Ivey, Jr. (collectively, the “Ivey Plaintiffs”)

RESPONDING PARTIES: (1) Defendants Serrano Post Acute LLC (“HPHC”) and Benjamin Landa (“Landa”) (collectively, the “HPHC Defendants”); (2) Marcel Adrian Solero Filart, M.D. (“Dr. Filart”) [1]

The Court has considered the moving, opposition and reply papers.[2]

BACKGROUND

            On May 21, 2020, the Martin Plaintiffs initiated this action (the “Martin Action”), which arises out of the death of Vincent Paul Martin at the onset of the COVID-19 pandemic while admitted at HPHC, a nursing facility.  The currently operative fourth amended complaint (the “Martin 4AC”) alleges: (1) violations of the Elder and Dependent Adult Civil Protection Act (the “Elder Abuse Act”); (2) negligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent misrepresentation.  The Martin 4AC is alleged against the HPHC Defendants and Mr. Martin’s primary care physician, Dr. Filart.

            On June 25, 2022, the Ivey Plaintiffs initiated a survivor action involving a death of a patient at HPHC at the onset of the COVID-19 pandemic in the case styled as Ivey v. Serrano Post Acute, LLC, LASC Case No. 20STCV24087 (the “Ivey Action”).  The complaint in the Ivey Action (the “Ivey Complaint”) alleges: (1) Elder Abuse and Neglect; (2) wrongful death – willful and reckless misconduct; and (3) wrongful death – general negligence.  The causes of action in the Ivey Complaint are alleged solely against HPHC.  The Ivey Action is currently pending in Department 49.

            On May 12, 2022, Plaintiffs filed a Notice of Related Case seeking to relate the Martin and Ivey Actions.  On June 6, 2022, this Court determined that that the two cases are not related within the meaning of California Rules of Court (“CRC “) rule 3.300(a).

            On June 24, 2022, Plaintiffs filed a motion to: (1) relate the Martin and Ivey Actions; and (2) consolidate the Martin and Ivey Actions (the “Motion”). 

DISCUSSION

The procedure for relating cases is governed by CRC, rule 3.300.  A pending civil case is related to another pending civil case, or to a civil case that was dismissed with or without prejudice, or to a civil case that was disposed of by judgment, if they: (1) involve the same parties and are based on the same or similar claims; (2) 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; (3) involve claims against, title to, possession of, or damages to the same property; or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges.  (CRC, r. 3.300(a)(1)-(4).)  

Whenever a party in a civil action knows or learns that the action or proceeding is related to another action or proceeding pending, dismissed, or disposed of by judgment in any state or federal court in California, the party must serve and file a Notice of Related Case.  (CRC, r. 3.300(b).)  The notice must be filed in all pending cases listed in the notice and served on all parties in those cases.  (CRC, r. 3.300(d).) 

If the related cases are pending in one superior court, the court, on notice to all parties, may order that the cases be related and assign them to a single judge or department.  (CRC, r. 3.300(h)(1).)  Where all the cases listed in the notice are unlimited civil cases, the judge who has the earliest filed case must determine whether the cases must be ordered related and assigned to her department.  (CRC, r. 3.300(h)(1)(A).)  In the event that the cases listed in the notice are not ordered related under CRC, rule3.300 (h)(1)(A)-(C), any party in any of the cases listed in the notice may file a motion to have the cases related.  (CRC, r. 3.300(h)(1)(D).)  The motion must be filed with the presiding judge or the judge designated by the presiding judge.  (Id.)

Under Local Rule 3.3(f)(3), if the judge designated under CRC, rule 3.300(h)(1)(A)-(C) does not order related any of the cases set forth in the Notice of Related Cases, a party’s motion to have the cases related shall be heard in Department 1 if the cases are all pending in the Central District or are pending in two or more different districts.  (LASC r. 3.3(f)(3).)  Cases may not be consolidated unless they are in the same department.  (LASC r. 3.3(g)(1).)  A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.  (Id.)

Here, the Court determined that the Martin and Ivey Actions are not related and the Ivey Action remains assigned to Department 49.  Pursuant to Local Rule 3.3(f)(3), Plaintiffs should have filed the Motion to relate the cases with Department 1.  Furthermore, as the cases have not been deemed related and are not assigned to the same department, consolidation is premature.  The Court therefore DENIES the Motion.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 31st day of August 2022