Judge: Theodore R. Howard, Case: 22-1272753, Date: 2022-12-15 Tentative Ruling

The motion by Marwan Sholakh to transfer and consolidate cases is GRANTED in part and DENIED in part.  The Court orders Case No. 2022-01256036, entitled Maralan v. Sholakh, filed April 22, 2022, to be consolidated with Sholakh v. Maralan, et. al., Case No. 2022-01272753, for all purposes.  The Court denies the request to transfer and consolidate Case No. 2022-01264439, entitled Sholakh v. Maralan, filed on June 13, 2022.

“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 granting or denial of the motion to consolidate rests in the sound discretion of the trial court and will not be reversed except upon a clear showing of abuse of discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978–79.)

CCP §116.390 governs the transfer of a case from small claims court to an unlimited jurisdiction court.  It states in pertinent part:

(a) If a defendant has a claim against a plaintiff that exceeds the jurisdictional limits stated in Sections 116.220, 116.221, and 116.231, and the claim relates to the contract, transaction, matter, or event which is the subject of the plaintiff's claim, the defendant may commence an action against the plaintiff in a court of competent jurisdiction and request the small claims court to transfer the small claims action to that court.

(b) The defendant may make the request by filing with the small claims court in which the plaintiff commenced the action, at or before the time set for the hearing of that action, a declaration stating the facts concerning the defendant's action against the plaintiff with a true copy of the complaint so filed by the defendant against the plaintiff. The defendant shall cause a copy of the declaration and complaint to be personally delivered to the plaintiff at or before the time set for the hearing of the small claims action.

On 8/8/22, the Small Claims Court transferred Maralan v. Sholakh (Case No. 2022-01256036) to Dept. C-18.  The Court finds that Maralan v. Sholakh (Case No. 2022-01256036) and Sholakh v. Maralan (Case No. 2022-01272753) involve common questions of law and fact and orders that the two cases be consolidated for all purposes, including trial.

Sholakh v. Maralan (Case No. 2022-01264439) is currently in Small Claims Court and has not been transferred to this court.  “[T]he only circumstances under which a small claims case may be transferred to another court are set forth in Code of Civil Procedure section 116.390.” (Acuna v. Gunderson Chevrolet, Inc. (1993) 19 Cal.App.4th 1467, 1472)  Further, only the defendant has the power to request a transfer from Small Claims Court and there has been no such request by Maralan. (Acuna v. Gunderson Chevrolet, Inc. (1993) 19 Cal.App.4th 1467, 1472 – “the Legislature did not intend the plaintiff to have such a privilege.”)  As this Court lacks jurisdiction, the motion to transfer is DENIED.

The Court orders moving party to give notice of this ruling.