Judge Theresa M. Traber, Case Number: 22STCV30804, Date: 2023-11-14 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV30804, Date: 2023-11-14 Tentative Ruling

Case Number: 22STCV30804 Hearing Date: November 14, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 14, 2023 TRIAL DATE: NOT SET

CASE: Ian Sawrey v. Doe 1, et al.; John Doe 7067 v. Doe 1, et al.; James Eric Bunch, et al. v. Doe 1, et al.

CASE NO.: 22STCV30804 (Sawrey)

22STCV35391 (Doe 7067)

22STCV39153 (Bunch)

MOTION TO CONSOLIDATE ACTIONS

MOVING PARTY: Ian Sawrey (Plaintiff in 22STCV30804)

RESPONDING PARTY(S): Los Angeles Unified School District (Defendant in all actions)

CASE HISTORY (SAWREY):

· 09/20/22: Complaint filed.

· 10/07/22: First Amended Complaint filed.

CASE HISTORY (DOE 7067):

· 11/04/22: Complaint filed.

· 12/16/22: First Amended Complaint filed.

CASE HISTORY (BUNCH):

· 12/16/22: Complaint filed.

· 01/17/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

These are three related actions for sexual harassment, sexual battery, negligence, and negligent supervision. Plaintiffs in each action allege that Defendant Gary Paul Letherer, formerly a teacher at Toland Way Elementary School in Los Angeles County, sexually harassed and assaulted the Plaintiffs when they were minor students at Toland between 1973 and 1977.

Plaintiff Ian Sawrey moves to consolidate these actions for trial.

TENTATIVE RULING:

Plaintiff Sawrey’s motion to consolidate Sawrey (22STCV30804), Doe 7067 (22STCV35391), and Bunch (22STCV39153) for trial purposes is GRANTED.

This order is to be filed in all three cases that have been consolidated for trial: Sawrey, Doe 7067, and Bunch. All documents filed in the consolidated cases after the date of this order must include the caption and case number of the lead case, Sawrey, followed by the case numbers of all the other consolidated cases. (Rule 3.350(d).)

DISCUSSION:

Plaintiff Ian Sawrey moves to consolidate these actions for trial.

Legal Standard for Consolidation

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), bold emphasis added.)

Timing of Motion

This motion was served on September 22, 2023, and filed on September 25, 2023. In a Case Management Conference held on June 26, 2023, Plaintiff Sawyer represented that Plaintiffs would be moving to consolidate all related actions. (June 26, 2023 Minute Order.) The Court set the filing deadline for that motion to be July 24, 2023. (Id.) Plaintiff’s motion is not in compliance with the Court’s order, and Plaintiff offers no explanation for this failure. Although Defendant LAUSD objects to the untimely filing, Defendant has not shown that it was prejudiced by Plaintiff’s delay. The Court will therefore overlook Plaintiff’s tardiness and consider the motion’s procedural compliance and substantive merit.

Procedural Requirements

A motion to consolidate must satisfy the requirements of California Rules of Court Rule 3.350, which provides, in relevant part:

(a) Requirements of motion

(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

(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

(Cal. Rules of Court Rule 3.350(a).)

The moving party has not listed the parties who have appeared in each case in the notice of motion, as required by Rule 3.350(a)(1)(A). Plaintiff merely recites the abbreviated case names with docket numbers for each of the three cases at issue. (See Notice of Motion p.1.) The moving party also has not listed the names of the respective attorneys of record, as required by Rule 3.350(a)(1)(A). That said, the body of the motion identifies the plaintiffs in each action, the defendants, and states for each action that Defendant Letherer has defaulted, but that LAUSD is presently engaged in discovery with the Plaintiffs. (See Motion pp. 2:7-21; 3:9-21; 4:14-24.) The Court also observes from the record that all Plaintiffs share the same counsel of Greenberg Gross LLP and Jeff Anderson & Associates, and that Defendant LAUSD is represented by Grant, Genovese, & Baratta, LLP in each action.

The moving party has included the captions of all three cases, as required by Rule 3.350(a)(1)(B), but the notice of motion was not filed in Doe 7067 nor Bunch, as required by Rule 3.350(a)(1)(C). It appears that the moving party served the attorneys of record for each party, as required by Rule 3.350(a)(2)(B). As noted, however, the moving party did not comply with the other procedural requirements. Nevertheless, since the opposing party did not raise objections to these procedural issues, the Court will consider the motion on its merits.

Consolidation of Actions for Trial

Plaintiff Sawrey seeks to consolidate the Sawrey, Doe 7067, and Bunch actions for trial.

Whether separate actions shall be consolidated for trial is a matter within the discretion of the trial court and its decision will not be disturbed on appeal absent a clear showing of abuse of discretion. (Citation omitted.) . . . ‘A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions.’ (Citation omitted.)

(Estate of Baker (1982) 131 Cal.App.3d 471, 485.)

Plaintiff Sawrey argues that consolidating these cases for trial would promote trial convenience and economy. As Plaintiff states, all three cases involve allegations that the Plaintiffs were sexually assaulted as minor students of Toland Elementary School by a teacher, Defendant Letherer, between 1973 and 1977, and that LAUSD negligently failed to prevent those injuries. (Sawrey FAC ¶¶ 14-47; Doe 7067 FAC ¶¶ 13-49; Bunch FAC ¶¶ 14-49.) Plaintiffs in all cases assert causes of action for negligence, negligent supervision and retention, sexual battery, and sexual harassment, raising similar theories of liability. (See, e.g., Sawrey FAC.) Plaintiff Sawrey contends that, in proving these theories, he anticipates that all four plaintiffs will testify in each other’s cases as to Defendant Letherer’s actions and modus operandi, and the acts witnessed by or reported to LAUSD employees and administration. Plaintiff also anticipates that unspecified classmates, other victims, and current and former LAUSD staff will provide deposition and/or trial testimony in all three cases regarding similar factual circumstances. These contentions regarding witness testimony are mere speculation and are insufficient to demonstrate that consolidation is warranted. Nonethless, Plaintiff has plainly identified overlapping factual and legal questions presented by the allegations in the pleadings.

In opposition, Defendant LAUSD argues that the cases should not be consolidated because they do not involve the same or substantially identical questions of law or fact, notwithstanding Plaintiff’s claims to the contrary. Defendant points to allegations in the pleadings purportedly showing that the plaintiffs in each action were assaulted on different dates and in different locations as proof that there is insufficient overlap. Defendant also offers vague citations to authority setting forth the standard for negligent supervision claims against a school district as supporting its position. (Bellman v. San Francisco H.S. Dist. (1938) 11 Cal.2d 576, 582; M.W. v. Panama Buena Vista Union School District (2003) 110 Cal.App.4th 508, 518-519.) In truth, Defendant’s citations are inapposite. Both cases merely recite the standard for proving a negligent supervision claim; they do not consider the issue of consolidation of related claims in that context. (Id.) Defendant’s argument draws too fine a distinction between the facts in each case and neglects common elements in each action. For example, a camping shell attached to Defendant Letherer’s vehicle features prominently in each complaint. (Sawrey FAC ¶ 17; Doe 7067 FAC ¶ 20; Bunch FAC ¶ 20.) Defendant Letherer is also alleged to have assaulted several of the Plaintiffs in the guise of offering sports or music lessons. (Doe 7067 FAC ¶ 19; Bunch FAC ¶¶ 19-20.) Moreover, the parties do not dispute that the central events occurred between 1973 and 1977, or that Defendant Letherer is the principal figure involved. Further, these actions on their face necessarily involve substantially similar questions of law. The Court is therefore not persuaded by Defendant’s argument that consolidation is not warranted. Nor is the Court persuaded by Defendant’s conclusory assertions that the jury will be confused on the issue of damages by hearing differing evidence as to the injuries suffered by each Plaintiff. Defendant offers neither evidence nor legal authority in support of that contention. Moreover, even if such risks exist, those risks may be mitigated by motions in limine or jury instructions if they are necessary, as Plaintiff states in his reply brief.

Defendant also asserts that it will be unduly prejudiced by consolidation because doing so will permit Plaintiffs to improperly “back door” inadmissible evidence. Not only are Defendant’s contentions improper speculation, but such claims also concern issues not before the Court on this motion. As with the issue of damages, to the extent such a danger arises, the proper vehicle is a motion in limine or instructions to the jury.

Accordingly, the Court finds that consolidation of all three related actions for trial is warranted on the basis that there are issues common to all actions such that resolution in a single trial is in the interest of judicial convenience and economy.

Lead Case

“Unless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case is the lead case.” (Rule 3.350(b).) Here, Ian Sawrey v. Doe 1, et al.., Case No. 22STCV30804, is the lowest-numbered case and is hereby designated the lead case.

CONCLUSION:

Accordingly, Plaintiff Sawrey’s motion to consolidate Sawrey (22STCV30804), Doe 7067 (22STCV35391), and Bunch (22STCV39153) for trial purposes is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 14, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.