Judge: Steven A. Ellis, Case: 22STCV19742, Date: 2023-12-05 Tentative Ruling

Case Number: 22STCV19742    Hearing Date: December 5, 2023    Dept: 29

Tentative

The motion to consolidate is denied, without prejudice, based on the pending appeal in the related case.

Following the conclusion of that appeal (and of course depending on the outcome), the motion may be refiled.

Background

On or about August 12, 2019, Petitioner Kimber Kabel (“Kabel”) was allegedly injured in a motor vehicle accident involving an uninsured or underinsured motorist.  On July 27, 2021, Kabel served a demand for arbitration relating to this accident on James River Insurance Company (“JRIC”).  On January 12, 2023, Kabel filed a “Petition to Open Superior Court File for Purposes of Obtaining Jurisdiction Over Underinsured Motorist Matter” against JRIC.  That action is Case No. 23STCV00774 (the “JRIC Action”).

On or about March 5, 2020, Kabel was allegedly injured in a separate accident that did not involve JRIC or any of its insureds.  On June 16, 2022, Kabel filed a complaint regarding that accident against Defendants Francoise J. Balabanian a.k.a. Francoise Balabanian, Mugurdich Bedros Balbanian, and Does 1 through 100 (collectively, the “Balbanian Defendants”).  That action is Case No. 22STCV19742 (the “Balbanian Action”).

On January 20, 2023, Kabel filed a notice of related case.  JRIC filed an opposition and supporting declaration.  On February 14, 2023, the Court issued an order relating the JRIC Action and the Balbanian Action.

On April 20, 2023, JRIC filed a motion to compel arbitration and stay the litigation in the JRIC Action.  On September 5, 2023, the Court denied the motion without prejudice, pending resolution of this motion to consolidate (which at that time had not yet been filed, but the Court was advised that a hearing date had been reserved).  On November 1, 2023, JRIC filed a notice of appeal.  That appeal remains pending.

Plaintiff filed this motion to consolidate the Balbanian Action and the JRIC Action on November 6, 2023.  JRIC filed an opposition on November 20, and Plaintiff filed a reply on November 28.  On November 29, Plaintiff filed objections to some of JRIC’s evidence.

Legal Standard

“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.”  (Code Civ. Proc., § 1048 (a).)

The trial court should not consolidate actions where prejudice would result any party, e.g., when consolidation would cause a litigant to need to adopt adverse litigations positions in a single trial.  (See State Farm Mutual Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430.)

Per Local Rule 3.3, subdivision (g), “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.”  (Super. Ct. L.A. County, Local Rules, rule 3.3(g)(1).)  Once the Court relates the cases, the Court may consolidate the actions and order a joint trial on matters that “involv[e] a common question of law or fact.”  (Code Civ. Proc., §1048, subd. (a).)

Evidentiary Objections

The Court SUSTAINS Plaintiff’s Objections Nos. 1 and 2.  The information in the Traffic Collisions Reports is hearsay when offered for the truth of the matter asserted.

The Court OVERRULES Plaintiff’s Objections Nos. 3 and 4.

Discussion

The Court related the Balbanian Action and the JRIC Action by order dated February 14, 2023. This prerequisite for a consolidation motion is therefore met.

Plaintiff argues there is a common question of law and fact as to the cause of Plaintiff’s injuries between the two auto accidents. Plaintiff suffered injuries in a motor accident on August 12, 2019. (Declaration of Michael M. Marbzban, ¶ 3.) Plaintiff was still receiving treatment for these injuries when she was involved in a second auto accident on March 5, 2020. (Ibid.) Plaintiff received a spinal surgery as a result of her injuries on October 12, 2021. (Ibid.) Plaintiff’s treating orthopedic surgeon, Pablo Pazmino, M.D., attributes Plaintiff’s injuries to both accidents. (Id., ¶ 4; see also Ex. 2, 3, 4, and 5, Dr. Pazmino’s reports.)

JRIC, however, has filed a notice of appeal of the Court’s order denying (without prejudice) JRIC’s motion to compel arbitration. (Declaration of Anne C. Gritzer, ¶ 4.) “Generally, the filing of a notice of appeal ‘divests the trial court of further jurisdiction in the cause.’”  (Avenida San Juan Partnership v. City of San Clemente, (2011) 201 Cal. App. 4th 1256, 1267 quoting In re Estate of Waters (1919) 181 Cal. 584, 585.) As the California Supreme Court has explained, "[A]n appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the merits.” (Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 190.)

Regardless of the Court’s view on the merits of the motion to consolidate, the filing of the appeal in the JRIC Action operates to stay further proceedings in that action.  The Court thus lacks jurisdiction at this time to make an consolidating, or refusing to consolidate, the two actions.

Therefore, the Court DENIES Plaintiff’s motion to consolidate based on the pending appeal on the motion to compel arbitration.  The denial is not a ruling on the merits of the consolidation motion (as to which the Court expresses no view); Plaintiff may refile the motion following the outcome of the appeal in the JRIC Action.

Conclusion

Plaintiff’s motion to consolidate is DENIED without prejudice.

Plaintiff is ordered to give notice to all parties in both cases.