Judge: Richard Y. Lee, Case: 30-2021-01230303, Date: 2022-09-08 Tentative Ruling

Plaintiffs Jacklin Keriakes (“Keriakes”) and Paula Sweis move for an order consolidating this action with Jacklin Keriakes v. 99 Cents Only Stores, et al., Case. No. 2022-01253183, filed on April 4, 2022 on the ground that the cases involve common questions of law and fact and overlapping injuries.

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 such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.  (Code Civ. Proc., § 1048(a).)  “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.)

Plaintiffs in this action seek damages for a November 9, 2019 vehicle collision, claiming they were passengers in a vehicle that was driven, owned, operated, entrusted, leased, repaired, modified, maintained, and/or controlled by Defendants Lyft, Inc.; Norma Castillo; and Diana Ayon.  Plaintiffs allege negligent hiring and supervision in relation to their claims.  (See ROA 2.)

In the second action, Keriakes alleges that, on May 24, 2020, she slipped on a liquid or slippery substance on Defendant 99 Cents Only Stores, LLC’s premises.  She alleges the slip and fall was caused in part due to inadequate lighting, concealment of the slippery substance, and the fact that the floor itself was defective.  (Declaration of T. Patrick Long, Ex. A.)

Plaintiffs contend consolidation is appropriate because Keriakes is seeking personal injury damages in both cases and the slip and fall exacerbated the prior injuries she sustained in the automobile accident. 

The cases cited by Plaintiffs do not support their position.  First, they cite to McFarland v. Booker (1967) 250 Cal.App.2d 402, where actions involving a streetcar-auto accident and a separate two-auto collision approximately nine months later were consolidated.  The McFarland court does not address the propriety of the consolidation and therefore is not authority for the proposition that such consolidation is proper.  (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [“ ‘It is axiomatic that cases are not authority for propositions not considered.’  [Citation]”].)

Plaintiffs also cite to General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88.  That case involved consolidation of an automobile accident personal injury lawsuit with a separate wrongful death action.  (Id., at p. 90.)  The wrongful death action was brought on behalf of the heirs of a plaintiff in the first lawsuit after the plaintiff passed away while the first lawsuit was pending.  (Ibid.)  General Motors does not involve two separate accidents, such as here, and is inapposite.  Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861 involved two actions seeking an accounting and constructive trusts on real and personal property, with allegations of embezzlement.  (Id., at p. 864.)  This case is also distinguishable, where the cases sought to be consolidated here involved personal injuries.

Plaintiffs further cite to Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, which involved consolidation of three separate lawsuits brought by plaintiffs who alleged the same bodily injuries resulting from the same medical device.  The court found a large portion of trial would be devoted to common issues, such as whether the injuries could have been caused by the medical device and what other factors might cause or contribute to the injuries.  (Id., at p. 979.)  Unlike the cases in Todd-Stenberg, Keriakes is seeking to join her two separate personal injury actions against different defendants, based on different occurrences, rather than attempting to join a separate action brought by a different plaintiff who is claiming the same injury caused by the same mechanism.  Todd-Stenberg does not apply.

Here, Plaintiffs’ action will involve questions such as who was at fault for the automobile accident, whether the employee driver was acting within the course and scope of employment at the time of the accident, and whether the employee driver was negligently hired and/or supervised.  The issues will also involve not only the damages claimed by Keriakes, but those claimed by her co-Plaintiff as well.  The second action, brought by Keriakes only, will involve questions such as whether the premises were in an unsafe condition, how long the slippery substance had been left on the floor before Keriakes’ fall, and whether there was poor lighting or other circumstances that contributed to the fall. 

Based on the above, the Court finds the actions do not involve common questions of law or fact.  Thus, the Motion to Consolidate is DENIED.

Plaintiffs to give notice.