Judge Holly J. Fujie, Case 20STCV19545 2022-11-07 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.

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

RESPONDING PARTIES: (1) Defendants Benjamin Landa (“Landa”) (“Landa”); and (2) Marcel Adrian Solero Filart, M.D. (“Filart”) [1]

On May 21, 2020, the Martin Plaintiffs initiated a survivor action (the “Martin action” or “Martin”), which arises out of the death of Vincent Paul Martin (“Mr. Martin”) at the onset of the COVID-19 pandemic while admitted at Defendant Serrano Post Acute, LLC (“HPHC”), which is 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, Landa, and Mr. Martin’s primary care physician, Filart.

On June 25, 2022, the Ivey Plaintiffs initiated a survivor action arising out of the death of James Marvin Ivey (“Mr. Ivey”), who was also admitted at HPHC during the onset of the COVID-19 pandemic when he died, in the case styled as Ivey v. Serrano Post Acute, LLC, LASC Case No. 20STCV24087 (the “Ivey Action” or “Ivey”). 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.

On September 29, 2022, the Honorable David J. Cowan deemed the Martin and Ivey actions related. On September 30, 2022, the Martin and Ivey Plaintiffs filed a motion to consolidate (the “Motion”) the two cases.

Under California Code of Civil Procedure (“CCP”) section 1048, subdivision (a), when actions involving a common question of law or fact are pending before the court, the court may order a joint hearing or trial of any or all the matters in issue in the actions, order all the actions consolidated, and make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (CCP § 1048, subd. (a).) The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions. (Estate of Baker (1982) 131 Cal.App.3d 471, 485.) A consolidation of actions does not affect the rights of the parties. (Id.) Consolidation does not require identical causes of action in each case, absolute identity of the parties, or identical allegations. (Id.) In deciding whether to grant a motion to consolidate, the court should weigh whether the common issues predominate over the individual issues and whether any risks of jury confusion or prejudice to the parties outweighs the reduction in time and expense that would result from consolidation. (See Todd-Stenberq v. Shield (1996) 48 Cal.App.4th 976, 978.) 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.)¿ It is not abuse of discretion to deny motion for consolidation of actions where parties in each action are different or issues are different.¿ (See¿Muller v. Robinson¿(1959) 174 Cal.App.2d 511, 515.)¿ On the other hand, actions may be consolidated in the discretion of the trial court whenever it can be done without prejudice to a substantial right.¿ (Carpenson¿v.¿Najarian¿(1967) 254 Cal.App.2d 856, 862.)

The Martin and Ivey Plaintiffs seek to have the two actions consolidated for the purposes of discovery and trial.[3] The Martin and Ivey Plaintiffs contend that consolidating the two cases would promote judicial efficiency and economy because they concern overlapping factual issues regarding HPHC’s policies and protocols implemented in response to the introduction and spread of the COVID-19 virus in its facility. (See Declaration of Anne Marie Murphy (“Murphy Decl.”) ¶ 6.) Because of the overlap in the facts underlying the elder abuse and negligence claims in both actions, the Martin and Ivey Plaintiffs anticipate an overlap of at least six fact witnesses. (See Declaration of Jody Cheryl Moore (“Moore Decl.”) ¶ 8.) It is also likely that designated experts will overlap. (Moore Decl. ¶ 8.) The actions are expected to be ready for trial at about the same time. (Moore Decl. ¶ 11.)

Landa and Filart both argue that they would be prejudiced by consolidation because of the possibility that evidence unique to each case will confuse the jury. The Oppositions also argue that the overlap in the two cases’ evidence concerning HPHC’s COVID-19 policies is limited since Mr. Martin and Mr. Ivey died a couple of weeks apart and public health guidelines were rapidly changing during April 2020.[4] Filart additionally argues that consolidation poses a risk that a jury will impute liability onto him based on evidence that is only relevant to the Ivey action, in which he is not a defendant.

The Court adopts the reasoning set forth in Judge Cowan’s September 29, 2022 order deeming the Martin and Ivey actions related and finds that consolidation is warranted in the interest of judicial efficiency and economy. While the evidence concerning the individualized health issues of Mr. Martin and Mr. Ivey are distinct, the allegations in the Martin 4AC and Ivey Complaint substantially overlap and flow from HPHC’s allegedly inadequate practices to avoid and manage a COVID-19 outbreak in its facility during roughly the same time period. Landa and Filart have not demonstrated that the risk of prejudice outweighs the practical benefits of consolidation. While Filart is not a party to the Ivey action, the Martin 4AC alleges that he was both Mr. Martin’s attending physician and the medical director of HPHC during the relevant time periods. While no evidence has been presented to this effect, the Ivey Plaintiffs suggest that Filart may be subpoenaed as a witness in the Ivey action due to his role at HPHC while Mr. Martin was a resident at HPHC. Furthermore, Landa and Filart have not demonstrated that a jury would be unable to distinguish evidence unique to each case.

The Court therefore GRANTS the Motion and orders that the Martin and Ivey actions be consolidated.

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.

[1] The Court refers to Moving Parties collectively as “Plaintiffs” and Responding Parties collectively as “Defendants.”

[2] Landa and Filart filed separate oppositions (the “Landa Opposition” and “Filart Opposition,” respectively).

[3] The Martin and Ivey Plaintiffs request separate verdict forms.

[4] Mr. Martin died on April 4, 2020 and Mr. Ivey died on April 20, 2020.