Judge: Michelle Williams Court, Case: 23STCV08821, Date: 2024-04-25 Tentative Ruling
Case Number: 23STCV08821 Hearing Date: April 25, 2024 Dept: 1
23STCV08821 BEVERLY
CHERICO vs ESTATE OF DONALD JOSEPH OBUSZEWSKI
Plaintiff Beverly Cherico’s Motion to Relate and
Consolidate
TENTATIVE RULING:
Plaintiff Beverly Cherico s Motion is DENIED in its entirety. Clerk to give notice.
Background
of 23STCV08821 Cherico v. Estate of Obuszewski
On April 20, 2023, Beverly Cherico filed
On February 27, 2024, Judge Barbara A. Meiers issued an
order providing, in relevant part, “Plaintiff is ordered to file a motion
(‘Notice of Related Cases’) in Department 1 within 5 court days to find this
case related to the pending probate case and if related to send it to probate
court. Plaintiff is to thereafter follow up on the progress of that related
case motion with a follow-up status conference now set on March 25, 2024 at
9:00 AM in Department 12.”
On February 16, 2024, Cherico filed a Notice of Related
Case, which Department 1 received on March 5, 2024.
On March 5, 2024, Cherico also filed the instant motion to
relate and consolidate 23STCV08821 and 21STPB07137.
On March 19, 2024, Department 1 issued an order declining
to relate the two cases.
The civil law action is currently
pending in Department 12 of the Stanley Mosk Courthouse with the next hearing
set for April 25, 2024.
Background
of 21STPB07137 In re: Estate of Obuszewski
On July 20, 2021, Beverly Cherico petitioned the court for letters of
administration for the intestate estate of Donald Joseph Obuszewski in
21STPB07137 In re: Estate of
Obuszewski.
On
January 3, 2022, Zenaida Obuszewski filed a competing petition for letters of
administration, which the court granted on May 16, 2022. The court appointed
Zenaida Obuszewski as the personal representative and letters issued on July
25, 2022.
On May
20, 2022, Cherico filed a creditor’s claim in the amount of $46,000.00 based
upon an alleged August 5, 2019 promissory note, which the personal
representative denied on February 7, 2023.
On
July 14, 2023, the court issued an order suspending Zenaida Obuszewski’s powers
as personal representative and on August 7, 2023, Zenaida Obuszewski filed a
resignation.
On
August 25, 2023, Cherico filed a renewed petition for letters of
administration, which the court granted on October 4, 2023. Letters issued on
November 7, 2023.
On
December 11, 2023, the court issued a “Proposed Order/Judgment – Returned for
Correction” returning a November 30, 2023 Allowance or Rejection of Creditor’s
claim purporting to allow Cherico’s May 20, 2022 creditor’s claim. The return
document provided “Need to address fact that this claim already was rejected by
prior personal representative and also the one year statute of limitations per
CCP 366.2 – this claim appears to have been filed more than one year after
death. If proceeding, suggest file claim per noticed petition.”
The
probate action is currently pending in Department 11 of the Stanley Mosk
Courthouse with an OSC re Petition for Final Distribution or Status Report set
for March 4, 2025.
Motion
On March 5, 2024, Plaintiff
Beverly Cherico filed the instant motion requesting that the Court “deem
Case No. 23STCV08821 and Case No. 21STPB07137 as related and to consolidate
them.”
Motion to Relate Cases
Standard
In the event that the pertinent judge under California
Rules of Court, rule 3.300(h)(1) does not relate any of the cases set forth in
a Notice of Related Case, Department 1 may relate the matters on noticed
motion. (Cal. R. Ct., rule 3.300(h)(1)(D); LASC Local Rules, rule 3.3(f)(3).)
There is No Basis for the Court to
Reconsider its March 19, 2024 Order
As noted above, Plaintiff filed the instant motion on March
5, 2024, the same date that Department 1 received a copy of Plaintiff’s Notice
of Related Case for consideration. Accordingly, Plaintiff’s motion was
premature when filed as Plaintiff did not provide Department 1 a reasonable
opportunity to rule on the Notice prior to the motion’s filing. (Cal. R. Ct.,
rule 3.300(h)(1)(D) (“In the event that any of the cases listed in the notice
are not ordered related under (A), (B), or (C), any party in any of the cases
listed in the notice may file a motion to have the cases related. The motion
must be filed with the presiding judge or the judge designated by the presiding
judge.”); LASC Local Rules, rule 3.3(f)(2) (“a copy of the Notice of Related
Cases must be filed in Department 1 for matters to be determined in Department
1.”).)
Plaintiff’s motion, filed prior to the Court’s March 19,
2024 order declining to relate the cases, does not provide any basis for the
Court to reconsider its prior order. For the reasons stated in the March 19,
2024 order, Plaintiff’s request to relate the two cases is DENIED.
Plaintiff’s motion also seeks consolidation of the two
actions. The types of matters heard by Department 1 are governed by the Local
Rules of the Los Angeles Superior Court and there is no basis in the Local
Rules for Department 1 to consolidate pending cases.
Cases cannot be consolidated unless they are first related
and a motion for consolidation must not be noticed until after the cases have
been related. (Local Rule 3.3(g)(1) (“Cases may not be consolidated unless they
are in the same department. A motion to consolidate two or more cases may be
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.”).) The judge assigned to the relevant case, not
Department 1, would decide issues of consolidation, had the cases been related.
Plaintiff’s request for consolidation is premature and not properly brought in
Department 1. Therefore, the request to consolidate the actions is DENIED.