Judge: Mark A. Young, Case: 20SMCV01176, Date: 2022-08-05 Tentative Ruling
Case Number: 20SMCV01176 Hearing Date: August 5, 2022 Dept: M
CASE NAME: Werner, et al., v. Azirian, et al.
CASE NO.: 20SMCV01176
MOTION: Motion to Consolidate
HEARING DATE: 8/5/2022
BACKGROUND
This action involves arises out of a February 14, 2019, landslide on four adjoining properties. Currently, three related cases are pending in Department M:
Werner v. Azirian, et al., LASC Case No. 20SMCV01176 (“Werner case”);
Crestbrook v. Azirian, et. al., LASC Case No. 20STCV44729 (“Crestbrook case”); and
Werner, et al., v. Broukhim, LASC Case No. 22SMCV00296 (“Broukhim case”).
The Crestbrook case was consolidated with the Werner case on October 7, 2021. On March 23, 2022, the Broukhim case was deemed related and assigned to this Department. On July 1, 2022, the Werners moved to consolidate the Broukhim case with the first two cases. Broukhim opposes the motion.
Legal Standard
The trial court is authorized to consolidate pending “actions involving a common question of law or fact . . .” so as to “avoid unnecessary costs or delay.” (CCP § 1048(a).) The decision to consolidate pending actions is a matter wholly committed to the trial court’s discretion. (Nat’l Elec. Supply Co. v. Mt. Diablo Unified Sch. Dist.¿(1960) 187 Cal. App. 2d 418, 421.) The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both¿actions, and avoid inconsistent results by hearing and deciding common issues together. (Estate of Baker¿(1982) 131 Cal.App.3d 471, 485.) The granting or denial of a motion to consolidate rests in the trial court's discretion, and¿will not be reversed except upon a clear showing of abuse of discretion. (Feliner v. Steinbaum (1955) 132 Cal.App.2d 509, 511; see Petersen v. Bank of America (2014) 232 Cal.App.4th 238, 252-253 [abuse of discretion to deny permissive joinder of 965 plaintiffs where common issue of liability].)
¿
Under California Rules of Court Rule 3.350(a)(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. Under Cal. Rules of Court, Rule 3.350(b), “[u]nless¿otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case in the lead case.”¿ LASC Local Rule 3.3(g)(1) further directs that consolidation cannot occur until “[a] motion to consolidate two or more cases [is] noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.”¿¿
Analysis
As an initial matter, the moving parties have complied with the above-mentioned procedural requirements for consolidation.
Here, there is no reasonable dispute that the actions share overlapping factual issues, as they each pertain to damages caused by the same landslide, or as more recently discovered, potentially multiple landslides. For instance, there are several common witnesses who would be called to testify regarding the landslide, including the Werners, Missak Azirian, William Adams, James Bloomingdale, the City engineers, and each parties’ respective geotechnical consultants and grading contractors.
Furthermore, there are apparent overlapping factual issues based on the allegations and record. The Werners initiated the Werner case against the Azirians, Adams and Bloomingdales, seeking both monetary damages for losses and costs of repairs, and seeking injunctive relief in the form of an order that each owner “abate the continuing nuisance” on their property by repairing or mitigating the unstable landslide conditions. The attendant cross-complaints also pertain to such damages. During the pendency of this action, the Adams sold the property at 711 Linda Flora Avenue to defendant Broukhim. Werner’s action against Broukhim seeks the same relief, including abatement of the same nuisance. Consolidation for trial purposes would therefore promote judicial efficiency and avoid duplication of efforts at trial. Concomitantly, “complete relief” (such as the requested injunction) cannot be afforded without each of the owners of the relevant properties. (CCP § 389(a).) As the owner of 711 Linda Flora Drive, Broukhim is a necessary party to this litigation. The Court also does not find that consolidation for trial purposes would have any significant risk of juror confusion. Further, failure to consolidate may risk multiple inconsistent verdicts.
While the parties have conducted discovery over the pendency of this action, the Court has already continued trial far enough in advance to allow Broukhim to conduct sufficient discovery. If Broukhim needs further time to conduct discovery, he may make a motion to continue the trial if the parties are unable to reach a stipulated continuance. While the parties dispute the effect of consolidating this matter also for discovery purposes, the effect of such a consolidation would not limit defendant Broukhim’s discovery rights in any manner. By consolidating the matter for the purposes of “trial and discovery,” the Court would not limit Broukhim from conducting discovery he otherwise would have the opportunity to conduct. As stated by Plaintiffs in their reply brief, Broukhim has the right to re-take depositions and to conduct any discovery deemed appropriate, and such an order would be consistent with the Court’s earlier consolidation of the Werner and Crestbrook cases.
Accordingly, the motion is granted. 20SMCV01176 is deemed the lead case.