Judge: Martha K. Gooding, Case: 2022-01275636, Date: 2022-11-28 Tentative Ruling

Motion to Consolidate

The Court is inclined to grant the Motion by Plaintiff David Benson (“Plaintiff”) for an order consolidating this action with the unlawful detainer (“UD”) action that was brought by the Defendants in this case, Ebrahim and Maryam Karimi, against Plaintiff (Case No. 2022-01274239), on the condition that Plaintiff – who wishes to remain in the property in dispute pending conclusion of the consolidated actions – pay the Karimis a reasonable monthly amount.  The Court is inclined to make that sum equal to the amount of the Karimis’ monthly mortgage, property tax, and insurance payments.  The Court will hear argument from the parties at the hearing as to that amount.

When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the actions or may order all the actions consolidated, or may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.  Code Civ. Proc. § 1048(a). 

The purpose of consolidation is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.).  Weil & Brown, Cal. Prac. Guide:  Civ. Proc. Before Trial, 12:340 (The Rutter Group 2012).

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.  Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. App. 4th 976, 978–79.

Each case presents its own facts and circumstances, but courts usually consider the following:  (1) timeliness of the motion: i.e., 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) 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.  Weil & Brown, Cal. Prac. Guide:  Civ. Proc. Before Trial, 12:362.

In Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, the court found that “[w]hen an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions.”  Id. at 385.  The summary procedures of an unlawful detainer action apply in routine causes in which the tenant has failed to pay rent, not a case involving dispute over title.  Id. at 387-90. 

Ordinarily, the only triable issue in a UD proceeding is the right to possession, along with any incidental damages that result from the property's unlawful detention.  Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297.  However, when allegations in the pending UD and unlimited civil actions demonstrate that the UD plaintiff's title might be insufficient to justify relief and that the UD defendant might be entitled to quiet title to the disputed property, a trial court should consolidate the two actions.  Martin-Bragg v. Moore (2013) 219 Cal. App. 4th 367, 385; accord, Berry v. Society of St. Pius X (1999) 69 Cal. App. 4th 354, 364; Mehr v. Superior Court (1983) 139 Cal. App. 3d 1044, 1047-50; Asuncion v. Superior Court (1980) 108 Cal. App. 3d 141, 147.  

Rule 3.350(a) of the California Rules of Court sets forth the requirements for a motion to consolidate:

(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.

As preliminary matter, Plaintiff did not fully comply with CRC 3.350(a).  He did not file his notice in the UD action, and he did not file the motion and supporting papers in the lowest numbered case.

But there is no dispute that all parties have received notice and the UC court knows about the motion and has continued its trial on that basis.  The Court therefore exercises its discretion to consider Plaintiff’s motion on the merits.

Discussion

The Karimis’ opposition to Plaintiff’s motion to consolidate focuses on the essential unfairness of Plaintiff keeping the money he received from the sale of the property (and the benefit of the paid of mortgage) while remaining in the house for free.  In the meantime, the Karimis are paying $4,568 in monthly mortgage payments (plus insurance and taxes).

According to Plaintiff, he offered to make payments to the Karimis but they refused.  In his confirming letter to the Karimis, Plaintiff writes that he offered to make their loan payments.  [Benson Decl., ¶ 17 and Ex. 5.]  In that letter, Plaintiff also writes that the Karimis knew and agreed the sale would not go forward unless Plaintiff agreed to it and both understood the sale had been improperly closed.  [Id.]

The Karimis have not demurred to Plaintiff’s Complaint and have not argued in opposition that he fails to raise an issue of title. 

The Karimis’ right to unlawful detainer is dependent on their title to the property. In his quiet title Complaint, Plaintiff alleges facts that, if established, might entitle Plaintiff to quiet title to the property and therefore might defeat the Karimis’ right to prevail in their UD action. In this case, as in Martin–Bragg, the right to unlawful detainer depends on the outcome of the quiet title action, which cannot be made subject to the summary unlawful detainer procedures.

The Court is therefore inclined to grant Plaintiff’s motion to consolidate.

Code of Civil Procedure section 1170.5 allows the court to require a defendant, prior to trial, to post a plaintiff’s potential damages under specified circumstances concerning the setting of the trial date. Unlawful detainer trials are entitled to statutory preference over all other civil matters (Code Civ. Proc., section 1179a), and are required to be held within 20 days following the date that a request to set the matter for trial is made. (Code Civ. Proc., section 1170.5 (a).) Extensions may be granted upon the agreement of the parties (Code Civ. Proc., section 1170.5(b)), and no continuance of an unlawful detainer trial can exceed 10 days without the consent of the adverse party. No other extensions are permitted unless the court, on its own motion or that of a party, holds a hearing (id.) to determine the reasonable probability that the plaintiff will prevail at trial and the amount of damages, if any, the plaintiff will suffer by virtue of the extension of the trial date. (Code Civ. Proc., section 1170.5(c).)

The court’s determination of the amount of potential damages must be based on “plaintiff’s verified statement of the contract rent for rental payment, any verified objection thereto filed by the defendant, and the oral and demonstrative evidence presented at the hearing.” (Id.) The court can order the defendant to “pay that amount into court as the rent would have otherwise become due and payable or into an escrow designated by the court for so long as the defendant remains in possession pending the termination of the action.” (Id.) The court’s remedy, should the defendant fail to make the payment as ordered, is to hold the trial within 15 days of the date the payment was due. (Code Civ. Proc., section 1170.5(c), (d).)

Unlike the typical UD action, this is not a landlord-tenant dispute. A rental contract does not exist between the parties.

But the financial unfairness of the current situation as to the Karimis is manifest. And Plaintiff has offered to pay the equivalent of a reasonable rental amount. 

Accordingly, the Court will hear from the parties regarding what that amount should be.