Department 30, Spring Street Courthouse

August 2, 2022

21STCV17487 

Motion to Consolidate 21STCV17487, 21STCV18090 and 22STCV00500 

The motion is granted.

(NOTE:  Lead Case No. 21STCV17487 and 21STCV18090 are already consolidated) 

The Court designates case No. 21STCV17487 as the lead case.

ALL FUTURE DOCUMENTS MUST BE FILED UNDER THE CASE NUMBER AND CAPTION OF THE LEAD CASE.  Case numbers on all subsequent filings should be reflected as follows: Lead case number C/W other case number(s). Any future hearing dates in the non-lead case(s) are advanced and taken off calendar.

 Any presently calendared motions in cases other than the lead case shall be continued to the newly  assigned Department and shall be re-noticed and  re-scheduled through the Courts online reservation system to the next available date in Department SSC-30  by the moving party.

Moving party is to provide notice and to file proof of service of such notice within five court days after the date of this order.

California Rules of Court, rule 3.350, subdivision (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, subd. (a)). Also, the consolidation statute, Code of Civil Procedure section 1048, states in relevant part: 

 

(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. 

 

(Code Civ. Proc., § 1048, subd. (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. (See Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.)  

Plaintiff Aversa moves to consolidate all three cases asserting that the cases concern the same set of operative facts and the same parties because they relate to a motor vehicle accident that involves the same defect allegations against Ford Motor Company and Will Tiesiera Ford, and the same negligence allegations against Defendant Kaj Wendall Faaborg. 

Plaintiff was originally a party in 21STCV17487, but Plaintiff was voluntarily dismissed without prejudice on December 27, 2021, as an individual and as a successor-in-interest. 21STCV17487 remains active with respect to Plaintiff Ricardo Olivas’ wrongful death action. 

After her dismissal from 21STCV17487, Plaintiff filed case number 22STCV00500 on January 05, 2022. 

On March 24, 2022, the Ford Defendants filed a demurrer to Plaintiff Complaint in case number 22STCV00500. Ford’s demurrer alleged that Plaintiff’s case (22STCV00500) violated the “one-action rule” in wrongful death lawsuits. (See CCP Section 377.60.) For this reason, Plaintiff now seeks to consolidate 22STCV00500 with this case (21STCV17487) in order to address the issues raised in Defendant’s demurrer to the Complaint in 22STCV00500. 

In opposition, Defendant Ford first alleges that the dismissal of Plaintiff Aversa in this case (21STCV17487) was not effective.

Second, Ford asserts that dismissal of 22STCV00500 is the appropriate remedy rather than consolidation because Plaintiff Aversa has two pending wrongful death actions as a result of her never being effectively dismissed from the 21SSTCV17487.   

The Court finds that for the reasons stated by Plaintiff that the dismissal was effective.

Third, Ford asserts that joinder rather than consolidation is the proper remedy to resolve the one-action rule issue. Here, Plaintiff Aversa is required to join her wrongful death cause of action. “California law provides that either the heirs of a decedent, or the personal representative on behalf of the heirs, may bring a single joint indivisible action for wrongful death.” (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 696.) “Because there is only a single action for wrongful death, an heir bringing the action should join all known heirs.” (Id. at 697.)

A cause of action for wrongful death is a statutory claim under CCP Sections 377.60-377.62 and its purpose is to “compensate specific persons—that is, heirs—for the loss of companionship and other losses suffered as a result of a decedent's death.” (Estate of Hatfield v. County of Lake (N.D. Cal., May 29, 2012, No. C 11-2396 PJH) 2012 WL 1949327, at *2.) “The wrongful death cause of action is considered joint and indivisible because ‘it is subject to the requirement that all heirs should join in the action and ... damages awarded should be in a lump sum,’ and because it precludes omitted heirs from bringing subsequent and individual actions for the recovery of their individual damages. “Estate of Hatfield v. County of Lake (N.D. Cal., May 29, 2012, No. C 11-2396 PJH) 2012 WL 1949327, at *2 [internal citation omitted].)

However, Plaintiff Aversa’s complaint not only alleges a wrongful death cause of action, but is also a survival action that is not subject to the statutory requirements of CCP Section 377.60. Under California law, if an injury giving rise to liability occurs before a decedent's death, then the claim survives to the decedent's estate. See Cal. Civ. P. Code § 377.30. In other words, it is a separate cause of action that belonged to the decedent before death, and which, by statute, survives that death.” (Estate of Hatfield, supra, 2012 WL 1949327, at *2.”)

Since Plaintiff’s case is not solely for wrongful death, consolidation rather than joinder would be more appropriate. 

Plaintiff correctly explains that consolidation is proper when “the parties are identical and the causes of action could have been joined.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(I)-E, ¶ 12:341.2. [noting “Consolidation is proper where numerous separate lawsuits have been filed in the same court arising out of an airplane crash. The liability issue (what caused the crash) is “common” to all parties, and the same evidence and same factual issues have to be tried in each lawsuit. Consolidation will avoid duplication of proceedings and the risk of inconsistent results.”].)

“Consolidation is an extension of the liberal rules re joinder of parties and claims. [Citation] The ‘common question’ which justifies consolidation is usually one that would have justified joining the various parties as plaintiffs or defendants in the same lawsuit at the outset. Where separate lawsuits have been filed, consolidation in effect permits a ‘joinder’ at a later stage of the proceedings.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(I)-E, ¶ 12:342.)

Plaintiff also asserts that consolidation is explicitly authorized under CCP Section 377.62(b) which states: 

“An action under Section 377.60 and an action under Section 377.31 arising out of the same wrongful act or neglect may be consolidated for trial as provided in Section 1048.” 

Although CCP Section 377.62(b) refers to consolidation for trial, the court sees no reason why complete consolidation would be inappropriate here. 

Thus, the Court is unpersuaded by Ford’s argument that Plaintiff Aversa should be joined as a party, rather than have the cases consolidated. 

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.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(I)-E, ¶ 12:361.) While each case presents its own facts and circumstances, courts are typically concerned with the following: (1) “whether granting consolidation would delay the trial of any of the cases involved, or whether discovery in one or more of the cases has proceeded without all parties present;” (2) “whether joining the actions involved would make the trial too confusing or complex for a jury;” and (3) “whether consolidation would adversely affect the rights of any party.” (Id., ¶ 12:362.)

Ford has not alleged that consolidation would delay trial or discovery, would make trial to confusing or complex for the jury, or would adversely impact the rights of the parties. These cases involve common questions of fact and law. Moreover, with consolidation, there would be one single wrongful death judgment, in the event there is such a judgment. For these reasons, the motion to consolidate is granted.