Judge: Holly J. Fujie, Case: 22STCV03583, Date: 2023-11-28 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: 22STCV03583    Hearing Date: December 19, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

            This order concerns: (1) a motion to consolidate (the “Consolidation Motion”); and (2) a motion to compel deposition (the “MTC”). 

MOVING PARTIES: (1) Defendant/Cross-Complainant Robert Lee (“Lee”); (2) Plaintiff/Cross-Defendant Jong Soo Park (“Park”)

RESPONDING PARTIES: (1) Park; (2) Lee

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

BACKGROUND

This action arises out of a dispute concerning an alleged agreement to purchase real property.  The currently operative first amended complaint (the “FAC”) alleges: (1) breach of contract; (2) rescission of contract; (3) conversion; (4) common count – money had and received; (5) unjust enrichment; and (6) specific performance.  The cross-complaint (the “XC”) alleges: (1) breach of contract; (2) fraud; (3) promissory estoppel; (4) fraudulent inducement; (5) declaratory relief; and (6) injunctive relief. 

On August 24, 2023, Park filed the MTC, which requests that the Court order Lee to attend his deposition and produce documents. 

On October 2, 2023, Lee filed the Consolidation Motion, which requests that this matter be consolidated with several other pending cases. 

REQUEST FOR JUDICIAL NOTICE

            Lee’s Request for Judicial Notice filed in connection with the Consolidation Motion is GRANTED as to the existence of the documents, but not to the truth of the matters stated therein.  (See Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-54.)  Park’s Request for Judicial Notice is likewise GRANTED.

EVIDENTIARY OBJECTIONS

            Park’s objections to the evidence submitted in support of Lee’s reply to the Consolidation Motion are SUSTAINED.  (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) 

MOTION TO CONSOLIDATE

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.) 

            On October 4, 2023, the Court issued an order deeming this matter and the pending actions referenced in the Consolidation Motion not related.  The Consolidation Motion does not articulate a basis for these matters to be consolidated; nor does the Consolidation Motion comply with the procedure set forth under California Rules of Court (“CRC”), rule 3.300(h) for filing a motion to relate cases in circumstances where a judge has already deemed the cases not related.  (See CRC, r. 3.300(h)(1)(D).) 

            The Court therefore DENIES the Consolidation Motion.

MOTION TO COMPEL DEPOSITION

            Under CCP section 2025.450, if, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party, without having served a valid objection, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  (CCP § 2025.450, subd. (a).)  The motion must both: (1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice; and (2) include a meet and confer declaration pursuant to CCP section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  (CCP § 2025.450, subd. (b)(1)-(2); see Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 (the statute also applies when the deponent simply fails to appear).)

            In support of the MTC, Park provides evidence Lee did not appear for his noticed deposition on August 14, 2023.  (See Declaration of Dale J. Park (“Park Decl.”) ¶¶ 5, 9, Exhibit 2.)  It appears that prior to August 14, 2023, the parties conferred about Lee’s availability on that date, with Lee eventually communicating that he would be unable to attend.  (See Park Decl. ¶¶ 6-8.)  The Park Declaration does not establish what, if any, meet and confer efforts occurred after Lee’s nonappearance on August 14, 2023 before the MTC was filed as is required under CCP section 2025.450, subdivision (b)(2).  Accordingly, the Court DENIES the MTC without prejudice.

Moving parties are ordered to give notice of this ruling. 

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 19th day of December 2023