Judge Lisa K. Sepe-Wiesenfeld, Case Number: 21STCV20318, Date: 2025-05-09 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 21STCV20318, Date: 2025-05-09 Tentative Ruling

Defendants Tripadvisor LLC; FlipKey, LLC; and Holiday Lettings Limited’s Motion to Consolidate Related Cases is GRANTED. Los Angeles Superior Court Case No. 25STCV01371 (Hughes v. Tripadvisor LLC) is consolidated with Los Angeles Superior Court Case Nos. 21STCV20318 (Schneider v. Booking.com B.V.), 21STCV21787 (Hughes v. Seeler), 21STCV29429 (Seeler v. Booking.com B.V.), and 21STCV38908 (Schneider v. Tripadvisor LLC), with Case No. 21STCV20318 (Schneider v. Booking.com B.V.) serving as the lead case. All future filings shall be made in 21STCV20318 (Schneider v. Booking.com B.V.).

In deciding whether to consolidate actions, the Court generally considers the following factors: (1) timeliness of the motion, i.e., whether granting consolidation would delay the trial of any of the cases involved; (2) complexity, i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; and (3) prejudice, i.e., whether consolidation would adversely affect the rights of any party. (See State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430-431; Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.)

Defendants Tripadvisor LLC; FlipKey, LLC; and Holiday Lettings Limited (“the Tripadvisor Defendants”) move the Court for an order consolidating Los Angeles Superior Court Case No. 25STCV01371 (Hughes v. Tripadvisor LLC) with Los Angeles Superior Court Case Nos. 21STCV20318 (Schneider v. Booking.com B.V.), 21STCV21787 (Hughes v. Seeler), 21STCV29429 (Seeler v. Booking.com B.V.), and 21STCV38908 (Schneider v. Tripadvisor LLC). The cases have been deemed related, the latter four cases are consolidated, and all five cases are currently pending in this department. Defendants argue that the cases involve common questions of law and fact, involve identical parties, and could have been joined in a single action. Plaintiff/Cross-Defendant Erin Hughes (“Hughes”) opposes on the ground that the cases do not have common questions of law and fact, the jury would be confused, and liability could be lessened as a result of consolidation. The Court also notes that Hughes opposes consolidation in part because the consolidated cases, led by Case No. 21STCV20318 (Schneider v. Booking.com B.V.), are deemed to be a complex case, while Case No. 25STCV01371 is a non-complex matter. This case has not been deemed complex, and there has been no motion to deem it as such. Thus, any arguments to this effect are misplaced.

In Case No. 25STCV01371, Hughes alleges claims for breach of contract, negligence, and unfair business practices against the Tripadvisor Defendants and Holly Seeler on the ground that Seeler violated Hughes’ house rules by allowing approximately 20 undisclosed guests to enter the property, and the Tripadvisor Defendants were aware of this based on Hughes’ complaints, but the Tripadvisor Defendants did not terminate the booking and failed to enforce the rental agreement or house rules for the booking from January 15, 2021 to January 17, 2021. The four consolidated cases, Case Nos. 21STCV20318, 21STCV21787, 21STCV29429, and 21STCV38908, all relate to a fire that occurred at 2145 Rambla Pacifico in Malibu, the same property as that in Case No. 25STCV01371.

While the allegations differ slightly in each complaint, all five actions concern the same rental booking, resulting fire, and damages sustained. The Court finds that consolidation of Case No. 25STCV01371 with Case Nos. 21STCV20318, 21STCV21787, 21STCV29429, and 21STCV38908 is proper. The actions will involve common questions of law or fact, as the claims arise out of the same incident and rental, many of the same witnesses will likely testify in each action, and discovery will likely overlap in the five actions. The motion was timely brought, and the Court has no reason to conclude at this juncture that consolidation would make the trial too confusing or complex. Further, there is no obvious prejudice to any party, and consolidation will promote convenience and economy by avoiding duplication of motions and hearings.

Accordingly, Defendants Tripadvisor LLC; FlipKey, LLC; and Holiday Lettings Limited’s Motion to Consolidate Related Cases is GRANTED. Los Angeles Superior Court Case No. 25STCV01371 (Hughes v. Tripadvisor LLC) is consolidated with Los Angeles Superior Court Case Nos. 21STCV20318 (Schneider v. Booking.com B.V.), 21STCV21787 (Hughes v. Seeler), 21STCV29429 (Seeler v. Booking.com B.V.), and 21STCV38908 (Schneider v. Tripadvisor LLC), with Case No. 21STCV20318 (Schneider v. Booking.com B.V.) serving as the lead case. All future filings shall be made in 21STCV20318 (Schneider v. Booking.com B.V.).

Hughes moves the Court for an order vacating the Court’s December 9, 2024 judgment of dismissal with prejudice entered in the Tripadvisor Defendants’ favor on the ground that Hughes timely dismissed Flip Key LLC and Holiday Lettings Limited without prejudice within the 30 days allowed to amend the complaint, such that the dismissal based on the failure to amend is void and without legal basis. Hughes further argues that she had not dismissed her cross-complaint against Tripadvisor LLC, such that the entry of judgment is void and must be set aside.

Code of Civil Procedure section 473, subdivision (d), provides that “[t]he court may, upon motion of the injured party, or its own motion, . . . set aside any void judgment or order.” Code of Civil Procedure section 663 provides that “[a] judgment or decree, when based upon a decision by the court, . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered” when there is an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts” such that it is “materially affecting the substantial rights of the party and entitling the party to a different judgment.”

The Court finds there is no basis to vacate the prior order dismissing Hughes’ claims against the Tripadvisor Defendants with prejudice. Put simply, Hughes opted not to include the Tripadvisor Defendants as parties when she filed her Second Amended Complaint on November 25, 2024. Hughes mentioned the Tripadvisor Defendants in her Second Amended Complaint, stating that Seeler rented Hughes’ property from the Tripadvisor Defendants’ online platforms (Second Am. Compl. ¶ 15), but she did not include the Tripadvisor Defendants in the case caption or otherwise reference them in the Second Amended Complaint. It is axiomatic that the failure to name a party as a defendant in an amended pleading constitutes a dismissal without prejudice. (Kuperman v. Great Republic Life Insurance Co. (1987) 195 Cal.App.3d 943, 947.) Notably, the Court’s order allowing Hughes to file a Second Amended Complaint was based on the Tripadvisor Defendants’ motion to strike Hughes’ First Amended Complaint on the ground that the pleading exceeded the scope of the Court’s prior order. When Hughes opted not to include the Tripadvisor Defendants in the Second Amended Complaint, the Tripadvisor Defendants properly moved for dismissal with prejudice pursuant to Code of Civil Procedure section 581, subdivision (f)(4), which allows the Court to dismiss a complaint as to a defendant “[a]fter a motion to strike the whole of a complaint or portion thereof is granted with leave to amend the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330 is instructive on this point, as it states that dismissal under Code of Civil Procedure section 581 is not a dismissal without prejudice. This is because a dismissal without prejudice would put a defendant “in perpetual limbo” waiting to be brought back in the case while “[t]he failure to amend and state a cause of action against defendant is an admission that plaintiff has stated the case as strongly as he can and there are no facts that could be alleged to cure the defect.” (Id. at p. 330.) Here, the Tripadvisor Defendants properly moved for dismissal of the action against them with prejudice, and the Court properly entered the order of judgment in their favor. Accordingly, Plaintiff/Cross-Defendant Erin Hughes’ Motion to Vacate a Judgment of Dismissal with Prejudice Entered in Favor of Tripadvisor LLC, FlipKey LLC, and Holiday Lettings LLC Based on California Code of Civil Procedure §473(d) As Well As Code of Civil Procedure §663 is DENIED.

“[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) A prevailing party is entitled to recover only those costs “necessarily incurred in the case” by that party or on that party’s behalf in prosecuting or defending the action. (See Cal. Rules of Court, rule 3.1700(a); Code Civ. Proc., § 1033.5, subd. (c)(1).) The non-prevailing party may contest any items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (See Cal. Rules of Court, rule 3.1700(b); Code Civ. Proc., § 1034, subd. (a).) Under Code of Civil Procedure section 1033.5, allowable costs include costs that were “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,” and the costs must be “reasonable in amount.” (Code Civ. Proc., § 1033.5, subds. (c)(2), (c)(3).)

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court,” but “because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized.” (Ibid.)

Hughes moves to strike the Tripadvisor Defendants’ costs sought in their memorandum of costs filed on January 10, 2025 seeking $35,946.44 in costs. Hughes takes issue with the Tripadvisor Defendants’ costs in the amount of $2,239.95 for filing fees, $5,163.64 in electronic filing fees, and $28,419.55 for deposition related costs. Hughes also argues that the Tripadvisor Defendants are not prevailing parties in this litigation because she dismissed them without prejudice within the time allowed to amend her complaint, making the judgment entered on December 9, 2024 improper. The Court has rejected the latter contention in its ruling as to Hughes’ motion to vacate the December 9, 2024 judgment. Insofar as Hughes argues that Hughes’ action against the Tripadvisor Defendants in Case No. 25STCV01371 remains pending, such that there is no prevailing party between Hughes and the Tripadvisor Defendants, Hughes cites no legal authority standing for this proposition. Given that the cases remain distinct cases, even if consolidated, the Court finds it proper to consider the Tripadvisor Defendants to be the prevailing party in Case No. 21STCV21787, as they had a dismissal with prejudice entered in their favor. Thus, the Court proceeds to consider the propriety of each of the costs put at issue by Hughes.

Hughes takes issue with the Tripadvisor Defendants seeking to recover filing fees in the amount of $2,239.95 relating to motions for summary judgment and an application for determination of good faith settlement that were never filed or served. The Tripadvisor Defendants argue there is no rule that prohibits recovery of costs for withdrawn motions, and they cite an opinion that has since been superseded, such that the Court cannot rely on that opinion. For recovery to be proper, the Court would have to conclude that these motions and application were reasonable and necessary to the litigation, and the Court cannot so conclude here. The motions do not appear to have had any bearing on the judgment entered in the Tripadvisor Defendants’ favor, which was the result of Hughes opting not to name them in the amended complaint after the motion to strike was granted. The Tripadvisor Defendants’ opposition provides no basis for the Court to conclude that the filings were necessary. Accordingly, the Tripadvisor Defendants’ are TAXED in the amount of $2,239.95.

Hughes takes issue with the Tripadvisor Defendants seeking $28,419.55 in deposition costs on the ground that all of the depositions other than the deposition of Erin Hughes were noticed and taken by Hughes’ counsel, while the Tripadvisor Defendants simply had an action for indemnity and did not notice any depositions. Notably, there is no basis for concluding that recovery of deposition costs depends on who noticed the deposition. Moreover, Hughes concedes that the depositions were necessary to the discovery of the cause of the fire, which was also the crux of the case by Hughes against the Tripadvisor Defendants. Thus, the Court finds that the depositions were reasonable and necessary, and the Tripadvisor Defendants are entitled to recover the entirety of the deposition costs.

Hughes takes issue with the Tripadvisor Defendants seeking $5,163.64 in electronic filing fees, but she provides no argument to this effect. (See Mot., p. 2, l. 10.) She states only that “it is unclear what motions” relate to the costs (Mot., p. 2, ll. 9-10). In response, the Tripadvisor Defendants have provided an itemization of all fees for electronic filing and service. (See Opp’n, Rand Decl. ¶ 15, Ex. B.) The Court has reviewed the itemized statement and finds that the fees are proper, as they were reasonable and necessary to the litigation, and the Tripadvisor Defendants are entitled to recover the entirety of the electronic filing fees.