Judge Randolph M. Hammock, Case Number: BC410865, Date: 2023-12-11 Tentative Ruling

Plaintiffs McCleery, Beckner, Quimby, and Jackson now move to lift the stay in McCleery and to consolidate the McCleery and Lunde cases. They also move to have their claims heard at the presently set April 8, 2024, Lunde trial date.

Plaintiffs’ motion to consolidate McCleery (case no. BC410865) and Lunde (case no. BC543659) is GRANTED IN PART. The cases are ordered consolidated for all purposes as consistent with this ruling, with Lunde being the lead case.

An initial trial in Lunde is set for April 8, 2024. On April 1, 2020, in light of the Covid-19 pandemic, the parties stipulated to stay the entire McCleery case, to continue the trial date, and to toll and extend the five-year deadline. (See 04/01/2020 Stipulation and Order.) The case remains stayed.

In support of consolidation, Plaintiffs contend McCleery is ready for trial on April 8, 2024—the date of trial in Lunde. [FN 1] They argue that “all the defense fact witnesses Plaintiffs will call from Defendants PMG, CIS, Allstate and AFS for 74 Plaintiffs in Lunde and for the 4 Plaintiffs in McCleery are identical.” (Mtn. 1: 23-24.) Given the overlap in witnesses, Plaintiffs contend it will be a “total waste of time” to try the matters separately. (Id. 7: 2.) Plaintiffs assert that “[t]here is an 80-90% overlap in the evidence in” McCleery and Lunde. They note the cases “involve nearly identical parties,” as “only CIS’s owner Stanley is a Defendant in Lunde but not McCleery.” (Mtn. 4: 15-16.)

The McCleery Plaintiffs also submit they will agree to a bench trial. Thus, the addition of the four McCleery Plaintiffs to the Lunde “bellwether” trial will lengthen the trial by no more than one day for each additional Plaintiff. Finally, Plaintiffs contend that consolidation of the cases will promote a settlement. Alternatively, Plaintiffs argue that even if the matters are not consolidated, this court should still lift the McCleery stay and try the matters separately from Lunde, but still on April 8, 2024.

Defendant Allstate Insurance Company opposes the motion. Defendant CIS Group, LLC, and Defendant Capital Personnel Services, Inc., joined in the opposition. Defendant represents that it is “agreeable to consolidating McCleery with Lunde, but only if the McCleery Plaintiffs then join the nonfirst tranche Lunde Plaintiffs, whose cases are currently stayed while the first tranche of trials proceed in April, 2024.” (Opp. 1: 21-24.) In other words, Defendants maintain the first trial should proceed only with the initial Lunde Plaintiffs.

Defendants argue “[t]he Parties have prepared and proceeded with the understanding that they were focusing on 13 specific plaintiffs,” and to “add four more at this time would be prejudicial, add unnecessary last-minute expense, and disrupt the Court’s careful balance of equities.” (Opp. 2: 17-19.) Defendants also argue the stipulation has little to no bearing on the issue. Rather, “if McCleery is consolidated with Lunde, the Stipulation and five-year rule in McCleery effectively become moot because the McCleery Plaintiffs would become part of the Lunde action (as it is the leading case), and they would become subject to the same stay as the Lunde plaintiffs not selected for the first tranche of trials.” Defendant concludes that if the Court, however, ultimately decides that consolidating the two cases requires immediately lifting the McCleery stay, then consolidation should be denied.

Plaintiffs filed a reply to the opposition. Plaintiffs state they are willing to “compromise” by consolidating the cases but including only Plaintiffs Timothy McCleery and Yvonne Beckner in the initial trial with the 13 other Lunde Plaintiffs. (Reply 1: 17-18.) Plaintiffs contend this is justified because McCleery and Beckner qualify for a preferential trial setting based on their age (76 and 82 respectively), ailing health, and potential prejudice of waiting beyond April 8, 2024, for trial. (Reply 1: 19-21.) The other two McCleery Plaintiffs—Terry Quimby and April Boyles Jackson—would be tried with the remaining Lunde Plaintiffs at a later date.

“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.” (CCP § 1048(a), bold emphasis added.)

“Whether separate actions shall be consolidated for trial is a matter within the discretion of the trial court and its decision will not be disturbed on appeal absent a clear showing of abuse of discretion. (Citation omitted.) . . . ‘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.’ (Citation omitted.)” (Estate of Baker (1982) 131 Cal.App.3d 471, 485.)

The fact that the parties in the cases to be consolidated are not suing or being sued in identical capacities does not necessarily bar consolidation. (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.) Rather, CCP § 1048 “grants discretion to the trial courts to consolidate actions involving common questions of law or fact.” (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.)

Here, Plaintiffs’ compromise—consolidation of the cases but with the addition of only two of the McCleery Plaintiffs to the initial April 8, 2024, trial date—proposes a reasonable and satisfactory solution.

Defendants’ opposition does not dispute the facts underlying the motion. Namely, there is an unavoidable substantial overlap of witnesses and evidence to be offered at the Lunde and McCleery trials. Given the shared parties, the common issues of law and fact, and the likelihood that consolidation will result in efficiencies for the parties and for the Court, consolidation for all purposes is warranted.

Importantly, Defendants have not demonstrated they will be unduly prejudiced by the addition of only two McCleery Plaintiffs to the April 8, 2024, trial date. [FN 2] The addition of only two McCleery Plaintiffs to the de facto “bellweather” trial, as opposed to all four, helps to mitigate any potential undue harm to Defendants.

Therefore, the cases are ordered consolidated for all purposes. The trial for the 13 previously designated Lunde Plaintiffs, plus McCleery Plaintiffs Timothy McCleery and Yvonne Beckner, is set for trial on April 8, 2024. [FN 3] The claims of the remaining two McCleery Plaintiffs will remain stayed pending further order, and will be tried with the remaining Lunde Plaintiffs at a date to be determined later.

Accordingly, the stay in McCleery is ordered LIFTED only as to Plaintiffs Timothy McCleery and Yvonne Beckner.

McCleery (case no. BC410865) and Lunde (case no. BC543659) are ordered consolidated for all purposes as consistent with this ruling.

Given the volume of Plaintiffs, Lunde (case no. BC543659) is designated the lead case. This order is to be filed in both cases. Any subsequent document need only be filed in the lead case. All documents filed in the consolidated case after the date of this order must include the caption and case number of the lead case, followed by the case number of the other consolidated case. (CRC 3.350(d).)

Judge of the Superior Court

FN 1 - Plaintiffs also note that trying the case on this date is consistent with the parties’ stipulation. When stipulating to stay McCleery, the parties agreed that the deadline to bring the “case to trial pursuant to the 5-Year Rule shall be tolled and extended for a period of 6 months after the Court lifts the stay.” (04/01/20 Stipulation, ¶ 3.) They further stipulated that “trial shall be set no earlier than 90 days after the stay is lifted and no later than 30 days prior to the expiration of the 5-Year Rule, as recalculated in subsection (3) above.” (Id. ¶ 4.)

FN 2 - Indeed, even trying the claims of all four McCleery Plaintiffs on April 8, 2024, would be unlikely to cause undue prejudice to Defendants. Be that as it may, because the moving party submitted its own “compromise,” the court adopts that option.

FN 3 - This court need not and does not determine whether Plaintiffs McCleery and Beckner qualify for a trial preference under CCP § 36. Trial of these two Plaintiffs will proceed with the previously designated Lunde Plaintiffs because judicial economy warrants the trial of at least some of Plaintiffs’ claims together from both Lunde and McCleery.