Judge: Stephen P. Pfahler, Case: 21STCV36657, Date: 2023-02-22 Tentative Ruling

Case Number: 21STCV36657    Hearing Date: February 22, 2023    Dept: F49

Dept. F-49

Date: 2-22-23

Case #21STCV36657 (lead case and related to 22STCV07738 and 22STCV02526, 22STCV07738 and 22STCV02526 consolidated)

Trial Date: Not Set

CONSOLIDATE

MOVING PARTY: Plaintiffs, Larry and Bonny Carlon

RESPONDING PARTY: Defendant County of Los Angeles

RELIEF REQUESTED

Motion to Consolidate

SUMMARY OF ACTION

On June 1, 2021, Jonathan Patrick Tatone shot and killed Tory Carlon, then committed suicide, while the two were on the premises of Los Angeles County Fire Department Station 81 in Agua Dulce.

21STCV36657

On October 5, 2021, Larry and Bonnie Carlon Carlon, individually and on behalf of the Estate of Tory Carlon, filed a complaint for Assault and Battery, Negligence, and Wrongful Death. On April 21, 2022, Estate of Jonathan Tatone, et al. filed a cross-complaint for Wrongful Death, Negligence, Indemnity, Contribution, and Declaratory Relief against County of Los Angeles.  The answer of Estate of Tatone was filed on April 22, 2022.

On June 17, 2022, the court found 21STCV36657, 22STCV07738 and 22STCV02526 related. The court also designated 21STCV36657 as the lead case.

On July 15, 2022, Plaintiffs Larry and Bonnie Carlon filed their first amended complaint for Negligence, Wrongful Death, and Violation of the Bane Civil Rights Act.

22STCV02526

On January 21, 2022, Heidi, Joslyn, and B.M. Carlon filed a complaint for wrongful death against County of Los Angeles, and the Estate of Tatone.

On July 20, 2022, Heidi Carlon, et al. filed a first amended complaint for Negligence/Wrongful Death, and Violation of the Bane Civil Rights Act. On September 29, 2022, the parties stipulated to the filing of the second amended complaint. On October 7, 2022, Heidi Carlon, et al. filed their second amended complaint for Wrongful Death, Negligence, and Violation of the Bane Act.

Meanwhile, on September 6, 2022, Heidi Carlon, et al. filed a notice of related cases for 21STPB01615 (In re Estate of Jonathan Tatone), 21STCV36657 (lead case), 22STCV02464 (Sandoval v. County of Los Angeles, et al.), 22STCV07738 (related case), and 22STCV13212 (Seaview Insurance Company v. Estate of Jonathan Tatone, et al.) Los Angeles County objected, and Seaview Insurance Co. filed an objection to the notice of related cases. No action was taken on the filed notice.

22STCV07738

On March 2, 2022, Larry and Bonnie Carlon Carlon, individually and on behalf of the Estate of Tory Carlon, filed a complaint for Negligence, and Wrongful Death. On June 17, 2022, the court sustained the demurrer of Los Angeles County with 30 days leave to amend.  The court also consolidated 22STCV07738 with 22STCV02526. Bonnie and Larry Carlon filed their first amended complaint on July 15, 2022.

On June 23, 2022, Department 29 transferred the action to Department F49.

RULING: Granted.

Plaintiffs Larry and Bonny Carlon move to consolidate 21STCV36657 (the current lead case) with the previously consolidated cases of 22STCV07738 and 22STCV02526. Defendant Los Angeles County in opposition contends consolidation is both “unwise and premature,” due to the anticipated success of the demurrer on one of the two Larry and Bonny Carlon complaints. Consolidation will only delay and add to the confusion rather than make adjudication more efficient. The court shows no opposition from Heidi Carlon, et al. Plaintiffs in reply reiterate the common core of facts and issues of law, and prior consolidation of two of the three cases. Plaintiffs also address the standing and potential cross-complaint challenges raised in the opposition.

“Code of Civil Procedure section 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.) The section 1048 states, in relevant part:

(a) 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.

(b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.

“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 §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; Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396.)

Moving plaintiffs seek to designate the cases as Carlon I (21STCV36657), Carlon II (22STCV02526) and Carlon III (22STCV07738), which are based on the filing dates. The motion is presented, due to the represented opposition of County of Los Angeles to consolidate the cases, and offer to only submit to coordinated discovery. Plaintiffs move for complete consolidation, but alternatively agree to the separate proceeding form, where the trials are jointly held together.

The motion to consolidate arises from the common origin of all claims—the shooting at the fire station premises. While the single incident in and of itself constitutes a common core of facts, Plaintiffs also cite to the “one action rule” for wrongful death cases.

“In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether, in fact, it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their individual damages.” (Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 694 (“Cross”).) The wrongful death statute itself provides for the compulsory joinder, rather than joint causes of action. (Id. at p. 692.) The Cross case has been interpreted as addressing the potential joinder of indispensable parties, however, and only allowing one action to go forward rather than as a basis for consolidation. (King v. Pacific Gas & Electric Co. (2022) 82 Cal.App.5th 440, 450.) Although challenged by County, the court also finds a common core on the basis of liability and defenses, as addressed in the prior rulings on the demurrer. (See Todd-Stenberg v. Dalkon Shield Claimants Trust, supra, 48 Cal.App.4th at pp. 978-980.)

Following the rulings on the demurrers to “Carlon II” and “Carlon III,” the court cannot determine the basis for both the filing of “Carlon I” and “Carlon III” by Larry and Bonny Carlon. The motion lacks explanation for the filing of “Carlon I” and “Carlon III.” (The court declines to speculate on this or consider any potential arguments regarding the validity or abatement of the claims, and instead treats all actions as part of the subject motion.)

Regardless, in ruling on the demurrer to the Larry and Bonny Carlon complaint (Carlon III), the court squarely considered the issues regarding standing on the survivor action. The court found the issues surrounding the designation of the successor to the estate of Tory Carlon remains in question given the order sustaining the demurrer on “Carlon III.” The court in no way found a lack of standing on the wrongful death cause of action. The court declines to further consider the extrinsic, factually based arguments submitted challenging the propriety of the wrongful death claim by Larry and Bonny Carlon already deemed valid in the demurrer.

The court, at a minimum, finds a basis for consolidation for the purpose of bringing all cases to trial in a single proceeding. The court finds additional support for complete consolidation of all cases into a single proceeding in order to simplify and streamline the proceedings. All cases share common arguments of liability though the parties alleged different defenses to the arguments of county. The court consistently held that all parties properly allege a basis of liability, and any basis of a Bane Act claim lacking. The court finds no prejudice arising from the potentially slightly disparate prior facts addressed by the court in ruling on the liability claims in that the court found all parties allege a basis of duty and liability and lack of exemption under the differing iterations. (See (Todd-Stenberg v. Dalkon Shield Claimants Trust , supra, 48 Cal.App.4th at pp. 978-980.)

Thus, proceeding under s single case number clearly finds support for multiple reasons. Two of the actions were already consolidated. Nevertheless, the prior consolidation order lacked specific guidance for the type of consolidation and how the consolidated would proceed within context of the additional related cases. The court therefore considers whether to merge all actions into a single proceeding, or allow the actions to proceed separately until the time of trial.

Complete consolidation merges the actions of Larry and Bonny Carlon, and allows either Heidi or the parents to proceed with the survivor claims on behalf of the estate of Tory Carlon. There will be no chance of duplicate survivor claims. Any arguments regarding the propriety of the damages available in the wrongful death claims can also be addressed via further law and motion challenges or at the time of trial. The court otherwise finds no bar to the presentation of the wrongful death claims by all parties, a reason to block consolidation on non-considered arguments, or denial of a total consolidation out of a concern for premature action. The court also declines to speculate on the arguments regarding an admittedly non-filed “cross-complaint” in Carlon I. Whether or not Larry and Bonny Carlon will seek leave to file a cross-complaint is NOT before the court in the instant motion, and the court declines to act on a supposition that can be thoroughly addressed within the confines of the actual motion.

The court finds multiple reasons for total consolidation, rather than merely consolidating the actions for purposes of a joint trial. The motion is therefore granted as to complete consolidation under a single case number.

In granting this motion, the court finds 21STCV36657 (Carlon I) is the first filed case and will therefore be designated the lead case for purposes of any and all future filings with the court. Cal. Rules of Court 3.350(b).  All future filings in all three cases must be filed using the LEAD case number only.  Cal. Rules of Court 3.350(c).

Additionally, moving forward, the court hereby designates Carlon II and Carlon III, as individual cross-complaints under the lead case number. The Carlon II and III case numbers shall additionally be stated on all pleadings under the lead case number to facilitate ease of identifying the relevant pleading. Cal. Rules of Court 3.350(d).

Further, in order to avoid confusion, the court orders the parties to also use the Carlon I-III identifiers ON ALL APPLICABLE PLEADINGS, when submitting law and motion on any and all of the operative pleadings in order for the court to insure proper review of the item(s) from the proper case.

In short, all filings moving forward shall contain the following information on the caption page:

·         The lead case number

·         The specific case number for the relevant pleading, and

·         Whether the case is Carlon I, Carlon II, or Carlon III.

Notwithstanding the above order, the parties are ordered to meet and confer within the next ten days from the date of this order to address any additional directions to streamline and clarify the process for moving forward with these consolidated cases.  If the parties mutually agree on such a process, they may submit a stipulation and proposed order for the Court’s consideration or may address the issue(s) at the next CMC.

Moving Plaintiffs shall submit a proposed order granting consolidation and specifically addressing the lead case as well as the designated cross-complaints.  Pursuant to Cal. Rules of

Court 3.350(c), said proposed order must be filed in each of the three consolidated cases.  Subsequent to this proposed order, however, all filing in all consolidated cases must only be filed in the lead case and using the lead case number. 

Motion to Compel set for March 8, 2023.

Larry and Bonny Carlon to provide notice to all parties.