Judge: Melvin D. Sandvig, Case: 22CHCV00500, Date: 2023-01-23 Tentative Ruling

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Case Number: 22CHCV00500    Hearing Date: January 23, 2023    Dept: F47

Dept.  F47

Date: 1/23/23

Case #22CHCV00500

MOTION TO CONSOLIDATE

Motion filed on 9/14/22.

MOVING PARTY: Plaintiff Jesus Bustamante

RESPONDING PARTY: Defendant Luis Pacheco Flores

NOTICE: ok

RELIEF REQUESTED: An order consolidating the unlimited civil case of Jesus Bustamante v. Luis Pacheco Flores (22CHCV00500) with the small claims case of Luis Pacheco Flores v. Jesus Bustamante (22AVSC00323).

RULING: The motion is denied.    

On 4/25/22, Luis Pacheco Flores (Flores) filed a small claims case against Jesus Bustamante (Bustamante) wherein Flores claims that Bustamante owes him $10,000.00 for money which Flores paid Bustamante for a job Bustamante did not complete. 

On 7/11/22, Bustamante filed an unlimited civil action against Flores for: (1) conversion, (2) fraudulent inducement, (3) breach of contract and (4) fraud/intentional misrepresentation.  Bustamante claims that in September of 2021 he and Flores entered an agreement whereby Bustamante would complete a roof job for Flores in exchange for $10,000.00 which Flores paid before the work was completed.  Bustamante contends that he completed approximately ¾ of the job when Flores told him to stop work.  Bustamante further contends that he and Flores agreed that Bustamante would return $5,000.00 of the money already paid by Flores and Bustamante would keep the remainder of the unused wood he had already purchased for the job.  Bustamante contends that Flores wrote a contract which did not reflect the above agreement, but rather stated that Bustamante borrowed $10,000.00 from Flores.  Bustamante contends that he relied on Flores to accurately draft the agreement because he does not understand English.  Thereafter, Flores refused to allow Bustamante to retrieve the wood and used it to complete the roof job.  As a result, Bustamante stopped payment on the $5,000.00 check.

On 8/11/22, Flores filed a cross-complaint in the unlimited civil action for: (1) negligence, (2) fraud and (3) breach of contract wherein he alleges that due to Bustamante’s negligent work on  Flores’ home, Flores had to pay at least $23,487.00 to repair the damage.  

On 9/14/22, Bustamante filed the instant motion seeking an order consolidating the unlimited civil case of Jesus Bustamante v. Luis Pacheco Flores (22CHCV00500) with the small claims case of Luis Pacheco Flores v. Jesus Bustamante (22AVSC00323).  On 9/15/22, the small claims case was transferred to this Court.  On 12/13/22, Flores filed an opposition to the motion to consolidate.  No proof of service has been filed for the opposition and no reply has been filed to cure this notice defect.  The denial of the motion to consolidate is based on the procedural reasons set forth below, therefore, the Court finds that Bustamante was not prejudiced if he did not receive the opposition. 

CCP 1048(a) provides:

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.

The unlimited civil action filed by Bustamante against Flores and the small claims action filed by Flores against Bustamante involve common questions of law and fact.  However, because one of the cases at issue is a small claims case, procedurally, it cannot be consolidated with an unlimited case (i.e., parties are not entitled to a jury trial in a small claims case). 

The Court finds that the claims/issues presented in Flores’ small claims complaint are also set forth in Flores’ cross-complaint filed in the unlimited case.  For example, the 3^rd cause of action for breach of contract in the cross-complaint concerns the same contract at issue in the small claims case.  (See Cross-Complaint ¶16 and  Ex.A thereto; Small Claims Complaint, p.2 No.3 and “Promise to Pay Contract” attached thereto).  As such, the Court finds the small claims case/complaint to be unnecessarily duplicative and could result in inconsistent judgments if tried separately from the unlimited civil action.  Therefore, on the Court’s own motion, Flores’ small claims complaint will be dismissed.  If Flores’ believes that his cross-complaint does not fully address the issues/claims made in his small claims complaint, he may make a motion for leave to amend his cross-complaint.

Counsel for both parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  See also CRC 3.1110(f)(4).  Both parties have failed to bookmark the declarations and exhibits attached to their respective papers.  Failure to comply with these requirements in the future may result in  matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.