Judge: Teresa A. Beaudet, Case: 22STCV18736, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV18736    Hearing Date: October 25, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Eugene Chorny (“Chorny”) and Irina Ermakova (jointly, “Plaintiffs”) seek to consolidate the instant action with the case Tamim, LLC v. Eugene Chorny, et al., Case No. 22VECV01348 (the “Tamim Action”).  

On June 8, 2022, Plaintiffs filed the instant action against Defendants Samuel Ohana (“Ohana”); Tamim, LLC (“Tamim”); The Barbara Willa Johanna Katt Living Trust; and Marks and Associates. The operative First Amended Complaint in this action was filed on August 18, 2022, and asserts causes of action for (1) breach of covenant of good faith and fair dealing, (2) fraud, (3) cancellation of deed of trust, and (4) intentional interference with prospective economic advantage.

Plaintiffs now move for an order consolidating the instant case with the Tamim Action.

Ohana and Tamim oppose.

Discussion

Code of Civil Procedure section 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.)

Plaintiffs appear to seek to consolidate the instant action with the Tamim Action for all purposes. Plaintiffs contend that the instant action and the Tamim Action arise out of the same set of facts and circumstances and involve the identical commercial real property located at 13300 Burbank Blvd., Sherman Oaks, California 91401. As an initial matter, the Court notes that Plaintiffs do not provide evidence of the operative pleading in the Tamim Action in connection with the instant motion.

In addition, in the opposition, Defendants note that the motion does not attach a proof of service. California Rules of Court, rule 3.350, subdivision (a) provides as follows:

“(1) A notice of motion to consolidate must:

(A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record;

(B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and

(C) Be filed in each case sought to be consolidated.

(2) The motion to consolidate:

(A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case;

(B) Must be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated; and

(C) Must have a proof of service filed as part of the motion.” (Emphasis added.)

            In the reply, Plaintiffs assert that they satisfied the requirements of California Rules of Court, rule 3.350, “including the requirement for the service of the motion 16 court days before the hearing.” (Reply at p. 5:14-16.) After their reply brief was filed, Plaintiffs filed a proof of service on October 19, 2022, which indicates that Plaintiffs’ Motion to Consolidate Actions was served on Tamim and Ohana by electronic service on October 3, 2022.

            Tamim and Ohana note in the opposition that Plaintiffs failed to provide sixteen court days’ notice of the motion. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” Sixteen court days prior to the October 25, 2022 hearing date is September 30, 2022. In addition, pursuant to Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), the notice period is extended by two court days when service is made by electronic means. Plaintiffs thus failed to provide requisite notice of the motion.   

Conclusion

For the foregoing reasons, the Court denies Plaintiffs’ motion to consolidate without prejudice.

Plaintiffs are ordered to give notice of this ruling.

DATED:  October 25, 2022                          

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court