Judge: Michelle Williams Court, Case: 21STCV37868, Date: 2022-08-02 Tentative Ruling

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Case Number: 21STCV37868    Hearing Date: August 2, 2022    Dept: 74

21STCV37868           HUBERT BORDENAVE vs SOON N. YOON

Plaintiff Hubert Bordenave’s Motion to Consolidate

TENTATIVE RULING:  The Motion to Consolidate is GRANTED.  The instant action, 21STCV37868 Bordenave v. Yoon, 21STCV38453 Choi v. Bordenave, and 22STCV02995 Choi v. Bordenave are ordered consolidated for all purposes. LASC Case No. 21STCV37868 shall be the lead case. (Cal. R. Ct., rule 3.350(b).) The court’s order shall be filed in this action as well as in 21STCV38453 and 22STCV02995. (Cal. R. Ct., rule 3.350(c).) The parties shall file all subsequent documents in the lead case only. (Ibid.) The parties are reminded to comply with California Rules of Court, rule 3.350(d) in captioning all future documents.

Background and Cases at Issue

On October 13, 2021, Plaintiff Hubert Bordenave, individually and as trustee of the Hubert J. Bordenave Revocable Trust, filed this action against Defendants Soon N. Yoon, Paul Sungil Choi, Eunice Hee Oh, and Degnan SP, Inc. asserting causes of action for: (1) fraud in the inducement; (2) nuisance; and (3) elder abuse. The complaint alleges Plaintiff owns real property that he rented to Defendant Yoon for the operation of a liquor store. Yoon assigned the lease to Defendants Choi, Oh, and Degnan, but the original lease agreement was allegedly modified, without Plaintiff’s consent, to reduce the rent and provide an option to significantly extend the lease term. The complaint also alleges Defendants Choi, Oh, and Degnan have allowed illegal activity to occur on the premises and have resisted or removed Plaintiff’s attempts to prevent such activity.

On March 15, 2022, the Court issued an order relating this action with Los Angeles Superior Court cases 21STCV38453 Choi v. Bordenave, et al and 22STCV02995 Choi v. Bordenave, et al.

On April 25, 2022, Soon Yoon filed a cross-complaint against Choi and Degnan for indemnity.

In 21STCV38453 Choi v. Bordenave, Choi, Oh, and Degnan filed a complaint against Hubert Bordenave and Lori Bordenave asserting causes of action for: (1) declaratory relief; (2) violation of Los Angeles County Code of Ordinances § 2.68.320; and (3) breach of contract.

In 22STCV02995 Choi v. Bordenave, Choi and Degnan filed a complaint against Hubert Bordenave and Lori Bordenave for: (1) breach of contract; (2) intentional interference with prospective economic relations; and (3) negligent interference with economic relations.

On May 2, 2022, Plaintiff filed a motion to consolidate the previously related cases 21STCV37868, 21STCV38453, and 22STCV02995 for all purposes. On May 26, 2022, the Court took the motion off calendar for failure to comply with the procedural requirements of California Rules of Court, rule 3.350.

On May 27, 2022, Plaintiff filed a renewed motion to consolidate the previously related cases 21STCV37868, 21STCV38453, and 22STCV02995 for all purposes. On June 22, 2022, the Court took the motion off calendar due to Plaintiff’s failure to appear at the hearing or to communicate that he was submitting on the Court’s tentative ruling.

Motion

On July 7, 2022, Plaintiff filed a second renewed motion to consolidate the previously related cases 21STCV37868, 21STCV38453, and 22STCV02995 for all purposes. Plaintiff argues there are numerous common questions of law and fact, such that consolidation is appropriate.

Opposition

In opposition, Defendants contend the cases do not share common issues of law or fact, Defendants would be prejudiced by the consolidation, and Plaintiff did not comply with the requirements of California Rules of Court, rule 3.350.

Reply

In reply, Plaintiff reiterates his argument that the cases should be consolidated as they involve common questions of law and fact and notes Defendants failed to articulate any prejudice.

Request for Judicial Notice

Plaintiff requests the Court take judicial notice of each of the relevant complaints and the Court’s order relating the three cases. (RJN Ex. A-D.) These requests are GRANTED. (Evid. Code § 452(d).) Plaintiff’s request for judicial notice of the Court’s prior tentative ruling on the June 22, 2022 motion that was taken off calendar, (RJN Ex. E), is DENIED as irrelevant. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 n.2 (“any matter to be judicially noticed must be relevant to a material issue.”).)

Motion to Consolidate

Standard

Pursuant to Code of Civil Procedure Section 1048(a), “[w]hen 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.” 

“A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions.” (Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86.) “Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.)  “Consolidation under Code of Civil Procedure section 1048 is permissive, and it is for the trial court to determine whether the consolidation is for all purposes or for trial only.” (Id. at 1149.)

Discussion

Plaintiff’s second renewed motion substantially complies with California Rules of Court, rule 3.350. The notice of motion lists the named parties, identifies those who have appeared, and identifies their counsel. The notice of motion lists all the cases by name and case number and was filed in each of the cases at issue. Plaintiff properly filed the supporting documents solely in the lowest numbered case. The motion is accompanied by a proof of service. Defendants contend “Plaintiff has failed to file the Notice of Motion in all three cases,” (Opp. at 7:1-4), which is inaccurate. Plaintiff filed the notice in each of the three cases on July 7, 2022.

Defendants also contend “Plaintiff has failed to appear in the third case” and therefore “does not have standing to consolidate the third case with the first two.” (Opp. at 7:5-6.) Defendants cite no authority for this proposition. (See Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 410 (“A point totally unsupported by argument and authority may be rejected by the reviewing court without discussion.”).) Moreover, the filing of the notice seeking consolidation of the action is a general appearance. (See generally Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756 (“A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.”).) Accordingly, Defendants’ argument is unpersuasive.

The Court finds consolidation for all purposes, as requested by Plaintiff, warranted. In the earliest filed action, the complaint alleges Plaintiff owns real property that he rented to Defendant Yoon for the operation of a liquor store. Yoon assigned the lease to Defendants Choi, Oh, and Degnan, but the original lease agreement was allegedly modified, without Plaintiff’s consent, to reduce the rent and provide an option to significantly extend the lease term. The complaint also alleges Defendants Choi, Oh, and Degnan have allowed illegal activity to occur on the premises and have resisted or removed Plaintiff’s attempts to prevent such activity, including the installation of a gate and fence.

In 21STCV38453 Choi v. Bordenave, Choi, Oh, and Degnan seek a judicial declaration regarding the parties’ rights to possession of the premises, including whether the lease is valid through January 31, 2022 and whether plaintiffs can exercise the option in the lease. Plaintiffs also assert a claim for breach of contract related to the purported ten-year option. Thus, the claims in this case, like those in the earliest filed action, necessary requires consideration of the validity and terms of the parties’ lease.

In 22STCV02995 Choi v. Bordenave, Choi and Degnan assert Bordenave’s gate construction constitutes a breach of the parties’ contract and interfered with their prospective economic relations. Thus, this case similarly will require consideration of the validity and terms of the parties’ lease as well as consideration of Bordenave’s conduct seeking to protect the property from the alleged nuisance created by Choi, Oh, and Degnan.

These cases involve the same property, the same lease agreement, much of the same conduct, and overlapping parties. The cases involve many common questions of law and fact such that proceeding with these cases independently will require a significant duplication of resources. Defendants’ summary invocation of prejudice lacks merit. (Opp. at 5:3-6:8.) Any potential jury is capable of following jury instructions to properly apply the relevant facts to the corresponding law. Defendants’ desire to more quickly obtain monetary recovery is both speculative and not a prejudice sufficient to deny consolidation.

The Court finds consolidation of the three cases, 21STCV37868, 21STCV3845, and 22STCV02995, for all purposes warranted as it will “save all parties money and time and is in the interests of a more practical and efficient administration of justice.” (In re Bliss’ Estate (1962) 199 Cal.App.2d 630, 641.)