Judge: Latrice A. G. Byrdsong, Case: 23STLC05564, Date: 2024-05-28 Tentative Ruling

Case Number: 23STLC05564    Hearing Date: May 28, 2024    Dept: 25

PROCEEDINGS:     MOTION TO CONSOLIDATE CASES 23STLC05562 and 23STLC05564

MOVING PARTY:   Defendant Nikou Zarabian

RESP. PARTY:         Plaintiff Reah Sybirski

MOTION TO CONSOLIDATE

(CRC 3.350; Code Civ. Proc., § 1048(a))

SERVICE:                              

[X] Proof of Service Timely Filed (CRC 3.1300) NO

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

BACKGROUND: Action for professional negligence.

REQUEST FOR RELIEF: Consolidate this with related action LASC Case No. 23STLC05562 for all purposes. The cases arise from the same incident of dental malpractice during which Plaintiff was treated by Drs. Zarabian and Polyakov.

OPPOSITION: The Motion does not meet the procedural requirements and substantively, the cases are unique to each other. Consolidation would cause unnecessary cost, delay, and complication.

REPLY: Plaintiff’s opposition admits that the two related cases involve dental treatments on Plaintiff and dental malpractice causes of action and allegations, and therefore supports consolidation for judicial economy and to prevent conflicting findings of facts and law.  

TENTATIVE RULING:   

Defendant Nikou Zarabian, DDS’ Motion to Consolidate Case Numbers 23STLC05562 and 23STLC05564 is DENIED.

ANALYSIS:

On August 29, 2023, Plaintiff Reah Sybirski (“Plaintiff”) filed the Complaint in the instant action against Defendant Nikou Zarabian (“Defendant Zarabian”) alleging professional negligence. The Complaint alleges that Dr. Zarabian failed to properly diagnose and treat Plaintiff’s dental condition. (Bridwell Decl. ¶ 2.)

On May 7, 2024, the Court deemed this action related to Sybirski v. Polyakov, LASC Case No. 23STLC05562 (“Polyakov action”) and deemed the Polyakov action the lead case. (Minute Order, 05/07/24.)

Defendant filed the instant Motion to Consolidate Cases on April 19, 2024. Plaintiff filed an opposition on May 15, 2024.

Discussion

Cal. 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).) Procedurally, the Notice of Motion to Consolidate only partially complies with Cal. Rules of Court, Rule 3.350(a)(1) by containing the captions of the cases sought to be consolidated and indicating which parties have appeared and their attorneys of record. (Notice Only of Motion, filed 04/02/23.) However, the Notice of Motion was not filed in both cases as required by Cal. Rules of Court Rule 3.350(a)(2). Nor was the motion itself made in the lowest numbered case, which is the Polyakov action. When the Motion was made in April 2024, Defendant Polyakov had not yet appeared and therefore, was not served. However, Defendant Polyakov has since filed a demurrer and should be served with any subsequent papers regarding consolidation.

As to the merits, Defendant Zarabian moves to consolidate this action with the Polyakov action on the grounds that both cases arise out of the same set of operative facts, and therefore require resolution of common questions of law and fact. Defendant Zarabian argues that common issues of law predominate over individual issues. Specifically, that these actions arise out of dental treatment provided to Plaintiff by Defendants: implant placement surgery was performed by oral surgeon Defendant Polyakov, following which Defendant Zarabian failed to diagnose and treat an infection. (Motion, Bridwell Decl., ¶2.) The Motion argues that discovery will involve the same facts and witnesses, will require determination of the same or substantially identical questions of law and fact, and no party will be prejudiced by consolidation. (Id. at ¶¶7-8.)

The assertions in the Motion are too conclusory to demonstrate that consolidation is appropriate. No information is provided regarding the date of the treatment received by Plaintiff. According to the Complaint in the Polykov action, the implant surgery and follow-up with Defendant Zarabian were weeks apart. (LASC Case No. 23STLC05562, Compl., p.2, ¶¶9-14.) The Motion does not identify the relevant witnesses to each case, nor articulate the questions of law and fact to be resolved in each case. Therefore, the Court has no basis to determine that the witnesses or issues (factual or legal) overlap to any extent.

Plaintiff’s opposition further explains that the facts and issues in each case are distinct. The claim for malpractice against Defendant Polyakov arises from work performed on Plaintiff’s tooth number 3 for an implant; the claim for malpractice against Defendant Zarabian arises from procedures on Plaintiff’s teeth numbers 2 and 31 for crown placement, and the effects on tooth number 4. Therefore, even if the Court were to hear this motion in LASC Case No. 23STLC05562, the Motion would be denied at this time.

Conclusion

Defendant Nikou Zarabian, DDS’ Motion to Consolidate Case Numbers 23STLC05562 and 23STLC05564 is DENIED.

Moving party to give notice.