Judge: Stephen Morgan, Case: 21AVCV00302, Date: 2022-09-27 Tentative Ruling
Case Number: 21AVCV00302-2 Hearing Date: September 27, 2022 Dept: A14
Background
This is a personal injury action. Plaintiff Larry Lee Limones, by and through his Guardian ad Litem, Monique Limones (“Plaintiff”), alleges that on October 22, 2020, Plaintiff, who was 68-years old at the time, was a passenger on a bus operated by Defendants Antelope Valley Transit Authority (“AVTA”) and Transdev Services (“Transdev”) and driven by bus driver Defendant Luna (“Luna”). Plaintiff further alleges that he was sitting near the front of the bus entrance along with a young female passenger, Doe 2, when an elderly female passenger boarded the bus. Plaintiff states that he asked Doe 2 to accommodate the new elderly female passenger, Doe 2 verbally and aggressively refused then proceeded to call an unknown individual to complain about the event. Plaintiff alleges that, shortly thereafter, an unknown individual intentionally parked a car in front of the bus to prevent it from leaving the bus stop, individuals identified by Plaintiff as Doe 3 and Doe 4 boarded the bus and physically attacked Plaintiff, punching him multiple times in the head and face, before leaving with Doe 2. Plaintiff contends that Luna did not instruct Doe 3 and Doe 4 to leave the bus, did nothing to intervene or protect Plaintiff from the imminent danger of Doe 3 and Doe 4, did not notify law enforcement before the attack, and, after the attack, neither provided any assistance or First Aid to Plaintiff nor notified law enforcement or his supervisors of the attack on Plaintiff. Plaintiff suffered damages, including a traumatic brain injury.
On July 20, 2021, Plaintiff Amended the fictitious/incorrect names to the true names of several Doe defendants: Doe 2 was amended to Raven Britt; Doe 3 was amended to Raymond Britt, Jr.; and Doe 4 was amended to Breanna Britt.
The operative pleading is the Second Amended Complaint (“SAC”) filed on February 02, 2022, alleging six (6) causes of action for: (1) Assault against Defendants Rayvyn Britt, Raymond Britt Jr., Breanna Britt, and Raymond Britt, Sr. (collectively “the Britts”); (2) Battery against the Britts, (3) Elder abuse against the Britts, (4) Negligence against AVTA, Transdev, and Luna; (5) Elder Abuse against AVTA, Transdev, and Luna; and (6) Negligent Hiring against AVTA and Transdev.
On March 07, 2022, AVTA, Transdev, and Luna filed a Demurrer to the Fifth Cause of Action, subsequently sustained without leave to amend.
On April 26, 2022, AVTA, Transdev, and Luna filed their Answer.
On May 04, 2022, Transdev filed a Substitution of Attorney, substituting Karen Luong for Sharon C. Collier.
On May 20, 2022, Luna filed a Substitution of Attorney, substituting Karen Luong for Sharon C. Collier.
On May 25, 2022, Plaintiff filed Notice of Related Case for Case No. 22AVCV00183. Transdev opposed the notice. The cases were deemed related on May 31, 2022.
On July 08, 2022, in the related case, Case No. 22AVCV00183, Transdev filed a Demurrer.
On July 20, 2022, Plaintiff filed a Motion to Consolidate Related Cases No. 21AVCV00302 and 22AVCV00183.
On September 13, 2022, Transdev filed its Opposition.
No Reply has been filed. “. . .[A]ll reply papers at least five court days before the hearing.” (Cal. Code Civ. Proc § 1005(b).) The hearing is scheduled for September 27, 2022. As such, a Reply was due on September 19, 2022. Should a Reply be filed, it is now untimely.
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Legal Standard
Standard for Consolidation – Cal. Code Civ. Proc. § 1048 grants discretion to trial courts to consolidate actions involving common questions of law or fact. “Consolidation is not a matter of right; it rests solely within the sound discretion of the trial judge.” (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.) There are two types of consolidation under section 1048: “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. (2000) 22 Cal.4th 1127, 1147.) Consolidation under Cal. Code Civ. Proc. § 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.) Though the wording of Cal. Code Civ. Proc. § 1048 has been amended, case precedent establishes that courts look to whether consolidation would prejudice a substantial right to determine if an action to consolidate is appropriate. (General Motors Corp. v. Superior Ct. of Los Angeles County (1966), 65 Cal. 2d 88, 92; Carpenson v. Najarian (1967), 254 Cal. App. 2d 856, 862.)
“Consolidation of cases for trial is a matter committed to sound discretion of trial judge, and his decision will not be reviewed except upon clear showing of abuse of discretion.” (Fellner v. Steinbaum (1955), Cal.App.2d 509, 511; Fisher v. Nash Bldg. Co. (1952), 113 Cal.App.2d 397, 402.) Discretion is abused whenever the court exceeds the bounds of reason. (Berry v. Chaplin (1946), 74 Cal.App.2d 669, 672.) The California Supreme Court held that one such example is when a consolidated case places the petitioner in a position where their arguments would be inconsistent. (State Farm Mut. Auto. Ins. Co. v. Superior Ct. of San Francisco (1956), 47 Cal. 2d 428, 432.) Such a case would lead to the application of different legal tests and consolidating the actions would prejudice the petitioner. (Id.)
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Discussion
Application – Plaintiff seeks to consolidate Limones v. Antelope Valley Transit Authority, et al., Case No. 21AVCV00302, with Limones v. Transdev Services, Inc., et al., No. 22AVCV00183.
Plaintiff presents that the cases are related and involve common questions of law and facts and encompass the same parties, with the exception of (1) AVTA as a party in both actions due to the expiration of filing a Notice of Claim against a governmental agency and (2) allegations of pre-death pain and suffering were made pursuant to Cal. Code Civ. Proc. § Section 377.34, amended to permit recovery of pre-death general damages for pain and suffering for civil actions filed after January 1, 2022.
Transdev argues that consolidation is improper as the issues within the two related cases are identical and, as such, a Demurrer in Abatement should be granted. Transdev presents that Plaintiff has stated in his motion that the two cases “involve essentially the same parties, same facts, and the same questions of law.” (Motion, pg. 5.) Transdev also highlights that Plaintiff has neither addressed the “substantial risk of inconsistent adjudications” in separate lawsuits nor discussed whether duplicate actions would “confuse the jury.”
In the related case, Case No. 22AVCV00183, the Court granted the Demurrer. Under Cal. Code Civ. Proc. § 430.10(c), if demurrer for a plea in abatement is sustained, the present action will normally be stayed pending disposition of the earlier lawsuit. If the first action goes to judgment, that will be res judicata as to the claim in the present lawsuit. If for any reason the first action is not decided on the merits, the present action can then proceed. (See Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 335, fn. 2.)
Accordingly, the Motion to Consolidate is now MOOT.
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Conclusion
Plaintiff Larry Lee Limones, by and through his Guardian ad Litem, Monique Limones’s Motion to Consolidate is MOOT.