Superior Court of California

County of Los Angeles

Department 50

EUGENE CHORNY, et al., Plaintiffs, vs. SAMUEL OHANA, et al., Defendants.	Case No.:	22STCV18736 [r/w 22VECV01348]
	Hearing Date:	March 28, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION TO CONSOLIDATE ACTIONS FOR TRIAL; IN THE ALTERNATIVE, MOTION FOR AN ORDER STAYING THE UNLAWFUL DETAINER TRIAL

Background

On June 8, 2022, Plaintiffs Eugene Chorny (“Chorny”) and Irina Ermakova (“Ermakova”) (jointly, “Plaintiffs”) filed the instant action against Defendants Samuel Ohana (“Ohana”), Tamim, LLC (“Tamim”), The Barbara Willa Johanna Katt Living Trust (the “Trust”), and Marks and Associates, a California Accountancy Corporation (“Marks and Associates”) (collectively, “Defendants”). The operative First Amended Complaint (“FAC”) 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 title, and (4) intentional interference with prospective economic advantage.

On September 13, 2022, Tamim filed an Unlawful Detainer Action against Plaintiffs in the case Tamim, LLC v. Eugene Chorny, et al., Case No. 22VECV01348 (the “UD Action”).

On October 17, 2022, the Court in the instant action issued a minute order providing, inter alia, that “[t]he Court finds that the following cases, 22STCV18736 and 22VECV01348, are related within the meaning of California Rules of Court, rule 3.300(a). 22STCV18736 is the lead case.”

Plaintiffs now move for an order consolidating the instant case with the UD Action for purposes of trial, or in the alternative, staying the trial in the UD Action. Ohana and Tamim (jointly, the “Ohana Defendants”) oppose. In addition, the Trust and Marks and Associates (jointly, the “Marks and Associates Defendants”) 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.) “The purpose is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.)” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 12:340.)

Plaintiffs indicate that they seek to consolidate the instant action with the UD Action for purposes of trial. Plaintiffs contend that the instant action and the UD Action arise out of the same set of facts and circumstances and involve the same commercial real property located at 13300 Burbank Blvd., Sherman Oaks, California 91401.

Allegations of the FAC in the Instant Case

In the FAC in the instant case, Plaintiffs allege that Chorny owns the shop “Dad and I” located at 13300 Burbank Boulevard, Sherman Oaks, California 91401 (the “Subject Property”). (FAC, ¶¶ 1, 13.) On or about June 3, 2021, Chorny received a phone call from the manager of the property, Becca Paredes (“Paredes”), of Marks and Associates, informing him that the owner of the property was approached to sell the building at the Subject Property. (FAC, ¶ 13.) Under the first addendum to Plaintiffs’ lease agreement (Right of First Refusal to Purchase), Plaintiffs had 5 days to give the lessor written notice of their right of first refusal to purchase after receiving a notice of sale from the lessor. (FAC, ¶ 14, Ex. 1.) On June 5, 2021, Chorny sent an email to Paredes expressing Plaintiffs’ intent to purchase the Subject Property. (FAC, ¶ 15.)

About two weeks later, when Plaintiffs were in the process of obtaining a loan, Paredes provided Chorny with a “Standard Offer, Agreement and Escrow instructions For Purchase of Real Estate,” naming Chorny as a buyer. (FAC, ¶ 16.) Paredes’s email set the deadline to sign the offer as June 27, 2021, with the condition that “all terms of the agreement must be met.” (FAC, ¶ 16.) On or about June 29, 2021, Chorny realized that his loan could not be approved within such a short time, and sent an email to Paredes stating that Chorny could not purchase the Subject Property at that time. (FAC, ¶ 17.) The next day, Chorny called Paredes to inform her that he changed his mind after receiving good news about the reapproval of his loan. (FAC, ¶ 18.)

On July 2, 2021, Ohana, Chorny’s client and friend, indicated to Chorny that Plaintiffs should buy the Subject Property with Ohana and his partner Yaniv Cohen (“Cohen”). (FAC, ¶ 19.) On July 2, 2021, Ohana sent an email to Paredes informing her that “as communicated to you yesterday” he and Chorny were “able and willing to purchase said property at its full price,” and signed the email with the names Chorny and Ohana. (FAC, ¶ 20.) On the same date, Chorny emailed Paredes asking her to ignore Ohana’s email, informing her that he did not authorize Ohana to act in his behalf. (FAC, ¶ 21.)

Thereafter, neither Ohana nor Paredes returned Plaintiffs’ phone calls, and a month later, Plaintiffs became aware that the Subject Property was sold to Tamim. (FAC, ¶ 22.) Plaintiffs allege that Ohana and Cohen are managers of Tamim. (FAC, ¶ 22.)

Allegations of the Complaint in the UD Action

In the UD Action, Tamim alleges that it is the owner of the premises that it the subject of the Complaint in the instant action (13300 Burbank Boulevard, Sherman Oaks, California 91401). (Compl., ¶¶ 3-4.) Tamim alleges that Chorny and Ermakova agreed to a 10 year lease, and that the lease term was subsequently extended through June 30, 2022. (Compl., ¶¶ 6(a)(1), 6(d).) Chorny and Ermakova allegedly became holdover tenants as of July 1, 2022. (Compl., ¶ 6(d).) Tamim alleges that at the time the 3-day notice to pay rent or quit was served, the amount of rent due was $21,480.75. (Compl., ¶ 12.)

Consolidation

Plaintiffs assert that consolidation is appropriate here because both actions involve the same property. Plaintiffs assert that “[t]he legal and factual questions in both actions both involve the fundamental issue of title to the property and therefore, the right of Tamim, LLC to go forward with the UD. Because the Defendants have allegedly acquired the property in violation of the law, Tamim, LLC should not be allowed to proceed summarily in the UD and thereby causing Plaintiffs irreparable harm prior to that issue being determined fully and completely in this case.” (Mot. at pp. 11:27-12:4.)

Plaintiffs cite to Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 370, where “Ivan Rene Moore appeal[ed] in propria persona from the superior court’s judgment following trial on the unlawful detainer complaint of Kimberly Martin-Bragg seeking forfeiture of a lease and possession of a property. The judgment…awarded Martin-Bragg possession of the disputed property,” along with certain specified damages. “Moore appeal[ed] from the judgment on a number of grounds, most notably the trial court’s refusal to consolidate the unlawful detainer case against him with another action then pending in the superior court, brought by Moore, seeking quiet title to the property based on allegations that Martin-Bragg’s title to the property was actually held in trust for Moore’s benefit.” (Ibid.) The Court of Appeal concluded that “the trial court abused its discretion in refusing Moore’s request to consolidate the unlawful detainer and quiet title actions for trial and that Moore was prejudiced by being forced to litigate the complex issue of title to the property under the summary procedures that govern actions for unlawful detainer.” (Id. at pp. 370-371.) Plaintiffs argue that similar circumstances exist here, specifically, that “fraudulent misrepresentation would make the defendants’ deed to the…property voidable, stripping Defendant Tamim, LLC…of standing in the eviction proceeding. [Such] broad question of title cannot be raised and litigated in a summary proceeding of an unlawful detainer…” (Reply at p. 3:22-26.)

The Martin-Bragg Court noted that “the trial court has the power to consolidate an unlawful detainer proceeding with a simultaneously pending action in which title to the property is in issue. That is because a successful claim of title by the tenant would defeat the landlord’s right to possession. When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions. If it does neither and instead tries the issue of title under the summary procedures that constrain unlawful detainer proceedings, the parties’ right to a full trial of the issue of title may be unfairly expedited and limited. If complex issues of title are tried in the unlawful detainer proceeding, the proceeding loses its summary character; defects in the plaintiff’s title are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.” (Martin-Bragg v. Moore, supra, 219 Cal.App.4th at p. 385 [internal quotations and citations omitted].)

The Court notes that the Ohana Defendants and the Marks and Associates Defendants do not address the Martin-Bragg case in their respective oppositions.

Plaintiffs also assert that there is a risk of inconsistent results if the two actions are not consolidated. In addition, Plaintiffs contend that judicial economy will be served by consolidating the actions for trial, because “[t]he witnesses called by both sides in both actions will, presumably, be the same. The experts retained by Plaintiffs (and presumably, Defendants) will be the same in both actions. The evidence presented will be substantially the same.” (Mot. at p. 12:23-28.) The Ohana Defendants counter that the witnesses in each action are not the same, as “[t]he First Action will likely call as witnesses the former seller, its agents/accountants/manager, Defendant Ohana and Plaintiffs. Plaintiffs’ experts will likely testify about the value of Plaintiffs’ business. The witnesses for the Eviction Action will be Plaintiffs and a member of Defendant Tamim, LLC. No experts will be called in the Eviction Action.” (Opp’n at p. 9:1-6.)

The Ohana Defendants also assert that consolidation would not promote efficiency here, because the two cases involve different parties, and three of such parties (but not all parties) overlap. The Ohana Defendants also assert that combining the cases for trial would require more time and increased costs for discovery, and would “require a voluminous number of limiting instructions regarding what evidence the jury may consider as to particular issues and claims.” (Opp’n at p. 10:12-13.)

The Ohana Defendants also assert in their opposition that Plaintiffs have failed to comply with California Rules of Court, rule 3.350, subdivision, (a), which 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

The Ohana Defendants assert that Plaintiffs failed to file the notice of motion to consolidate in the UD Action. The Court notes that on November 30, 2022, after the Ohana Defendants’ opposition was filed, Plaintiffs filed a notice of the motion to consolidate in the UD Action.

Next, the Ohana Defendants assert that title is not at issue in the instant action because Plaintiffs do not have standing to contest title. The Ohana Defendants also note that Plaintiffs’ prayer for relief in the instant action indicates that Plaintiffs seek, inter alia, general damages in the amount of $500,000.00, punitive and exemplary damages, and “[p]ursuant to the Third Cause of Action for Cancellation of Deed, a judgment from this Court that the Grand Deed [sic] of the transfer of the property to Defendant TAMIM be canceled.” (FAC, p. 13:20-23.) The Ohana Defendants thus assert that title is also not at issue in the instant action, because “even if Plaintiffs were to be successful in the lead case, Plaintiffs would only be awarded their monetary damages, not title.” (Opp’n at p. 6:17-18.) But irrespective of whether Plaintiffs have standing or are awarded title of the subject property, the FAC in the instant action still alleges a cause of action for cancellation of title. Thus, title of the subject property is at issue in the instant action. As set forth above, pursuant to Code of Civil Procedure section 1048, subdivision (a), “[w]hen 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.”

The Ohana Defendants also assert that Plaintiffs cannot satisfy the statute of frauds to force a sale to them. Again, the Court notes that the relevant question at issue here is whether the instant action and the UD Action involve a common question of law or fact and whether consolidation is proper, not the merits of the instant action.

In addition, the Ohana Defendants assert that the relevant evidence will not be the same in the two actions, because all of the relevant facts and events in the UD Action occurred a year after the sale of the subject property. But as discussed, both actions involve title to the same property.

Lastly, the Ohana Defendants assert that Tamim would be prejudiced if the two matters are consolidated. They contend that “[f]orcing Tamim, LLC to wait years to have the issue of possession and whether Plaintiffs failed to pay rent resolved in a consolidated trial would be verv prejudicial and would award Plaintiffs two to three years of free rent.” (Opp’n at p. 10:25-11:1, emphasis omitted.) Plaintiffs counter that consolidation “is the only procedurally appropriate remedy available to ensure that Plaintiffs (and the other parties) is not made to incur the costs and dislocations of two law suits involving substantially the same facts, witnesses, evidence, and issues, and the potential consequences of the premature adjudication of the unlawful detainer action.” (Reply at p. 7:16-22.) Plaintiffs also assert that they will be prejudiced if consolidation is not granted, as they would “suffer irreparable harm if they are wrongfully evicted from the Property.” (Mot. at p. 6:17-18.)

In their opposition, the Marks and Associates Defendants assert that the two cases do not involve common questions of law or fact, because the only commonality shown by Plaintiffs is that they are Plaintiffs in the instant action and defendants in the UD action. But as discussed, both actions also concern the same subject property.

The Marks and Associates Defendants also assert that consolidation would be prejudicial to them. Specifically, they assert that “[i]f the two cases are consolidated, the trial of the unlawful detainer action would involve the introduction of evidence that is irrelevant to the claims against Defendants in the civil action. Defendants would be required to prepare to address the unrelated evidence relating to the other claims to ensure that the trier of fact is not confused or influenced by such evidence, resulting in more work for defense counsel, longer cross-examination of witnesses, and a longer trial than would be required if the cases were tried separately.” (Opp’n at p. 4:27-5:5.)

The Marks and Associates Defendants also assert that “[s]ince the unlawful detainer action is tried on an expedited basis, Defendants would not have sufficient time to complete

discovery in the civil case before the trial is set in the unlawful detainer action,” resulting in prejudice to them. (Opp’n at p. 5:8-10.) But this argument appears to demonstrate that consolidation would be appropriate here.

Lastly, the Marks and Associates Defendants assert that the instant case and the UD Action cannot be related. As set forth above, the Court already ordered on October 17, 2022 that the two matters are related within the meaning of California Rules of Court, rule 3.300(a).

Based on a consideration of the arguments presented by the parties, the Court finds it appropriate to consolidate the two actions. As set forth above, “[w]hen an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions. If it does neither and instead tries the issue of title under the summary procedures that constrain unlawful detainer proceedings, the parties’ right to a full trial of the issue of title may be unfairly expedited and limited.” (Martin-Bragg v. Moore, supra, 219 Cal.App.4th at p. 385 [internal citation omitted].)

Conclusion

For the foregoing reasons, the Court grants Plaintiffs’ motion to consolidate.

Plaintiffs are ordered to give notice of this ruling.

DATED: March 28, 2023

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court