Judge Upinder S. Kalra, Case 22STCV32532 2023-02-15 Tentative Ruling

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On October 4, 2022, Plaintiffs Lewis Cohen and Alejandra Cohen (“Plaintiffs”) filed a complaint against Defendant Starr Indemnity & Liability Company (“Defendant.”) The complaint alleged two causes of action: (1) Breach of the Duty of Good Faith and Fair Dealing and (2) Breach of Contract. Plaintiffs allege that when the purchased tickets for a cruise to Antarctica, they purchased the APRIL Travel Protection – Pandemic Plus Plan. During the cruise, Plaintiffs were mandated to quarantine due to a positive Covid-19 test. Plaintiffs then submitted a Trip Interruption Claim with APRIL Travel Protection. That claim was denied by Defendant Starr Indemnity & Liability Company.

On January 18, 2023, Defendant filed the current Motion to Transfer and Consolidate. On February 2, 2023, Plaintiffs filed an Opposition. On February 7, 2023, Defendant filed a Reply.

CCP § 403 states: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action.

CCP § 404 states: When civil actions sharing a common question of fact or law are pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council, by the presiding judge of any such court, or by any party to one of the actions after obtaining permission from the presiding judge, or by all of the parties plaintiff or defendant in any such action. A petition for coordination, or a motion for permission to submit a petition, shall be supported by a declaration stating facts showing that the actions are complex, as defined by the Judicial Council and that the actions meet the standards specified in Section 404.1.

CCP § 404.1 provides the following: Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.

Plaintiffs Opposition is untimely, as correctly argued in Defendant’s Reply. Under CCP § 1005, oppositions are to be filed at least nine court days before the hearing. Here, Plaintiffs’ Opposition was due on February 1, 2023, but did not file their opposition and serve it on Defendant’s counsel until February 2, 2023. In a supplemental Declaration submitted by Scott Calvert, counsel indicates that this mistake was due to a calendaring error, as counsel’s office failed to account for the Court holiday on February 13, 2023. As Plaintiffs argue, Defendant has not indicated that it was prejudiced by this one-day late filing. As such, the Court will consider Plaintiffs’ Opposition.

Defendant moves to have transfer and consolidate two actions, this matter involving Plaintiffs Lewis and Alejandra Cohen Plaintiffs Eric and Jackie Lowry, who initiated case Eric Lowry, et al., v. Starr Indemnity & Liability Company, Case No. 56-2022-00570619, Ventura County Superior Court.

Background: The two matters involved Plaintiffs who were on a cruise to Antarctica and were quarantined due to illness from February 7^th to February 14^th, 2022. Both the parties had travel insurance policies that were issued by Defendant Starr, and both made claims for trip interruption for being quarantined in their cabins. Defendant denied the claims.

Defendant argues that transfer and consolidation is appropriate. First, the matters are not complex. Under California Rules of Court, Rule 3.400(a), a complex matter is “an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel.” Moreover, Defendant asserts that none of the factors in subsection (b) have been met.[1] Second, Defendant argues that under CCP 404.1, which provides the standards to promote the ends of justice, the matters should be consolidated.

First, there is a sharing of common question of fact and law: both the Cohens and Lowrys were on the same cruise, were quarantined, made claims under the same policy language, and denied both of the claims. The complaints for each matter contain the same causes of actions. Second, Defendants argue that consolidating the two matters will convenience the parties and will prevent duplicative efforts, discovery and expenses. Defendant will have to defendant the two actions and travel between Los Angeles and Ventura County. Third, Defendants argue that both matters have Motion to Strike Punitive Damages scheduled for February 21^st and 27^th in each court. Moreover, both parties have same counsel. Fourth, Defendants argue that consolidating the matter will promote judicial efficiency, as the two matters are nearly identical with the difference of the named plaintiffs. Without consolidating, there will be duplicative motions practice, discovery and trial. Fifth, Defendant argues that if the matters proceed separately, there is a chance of inconsistent rulings or judgment. Since there are two pending motions to strike, Defendant asserts that the same Court should hear both motions to prevent inconsistent rulings. Lastly, Defendant lastly argues that discovery still needs to be conducted and “the actions are not likely to settle without further litigation.” (Motion 9: 25-27.)

Plaintiff argues that the two matters do not share a sufficient number of common questions of fact and law. The two matters involve two parties, with different insurance policies based on different contracts that were issued on different dates and delivered in different counties. (Opp. 4: 25 – 5: 10.) Additionally, the policies have two separate amounts, both for the purchase of the policy and the requested claim amount. The Cohens paid $930.00 for their policy, and the Lowrys paying $,1725 for theirs, and the Cohens requested $30,272.00 and Lowrys requested $13,225.10. (Opp. 11-18; Calvert Dec. ¶ 7, Ex. 1-4.) Additionally, the claims were handled by different individuals. Lastly, initial determinations were made. Broadspire, which handled the claims, the Cohens claim was denied. As for the Lowrys, Broadspire “twice recommended approving and paying the claim submitted by the Lowry Plaintiffs,” recommending $22,000 for the loss and then later saying $13,224.10. (Opp. 6: 12-18, Calvert Dec. ¶ 14, Ex. 9-10.)

Plaintiffs also argue that Defendant did not provide any evidence of how consolidating the matter would convenience the parties. Travel for the Lowry matter would be inconvenient, as the Ventura County courthouse is 20 miles away versus Stanley Mosk in Los Angeles County, which is 45 miles away. As for the Cohen Plaintiffs, consolidating the matter will not be convenient as it will lengthen the trial to include the Lowry claims. Defendant also did not include how transferring the matter would convenience them, as Defendant is headquartered in New York and domiciled in Texas. (Opp. 7: 2-26, Calvert Dec. ¶ 15.) Further, consolidating the two matters would not promote judicial efficiency, as there are many factual differences. These factual differences would also confuse a jury, as members would have to keep track of the different claims of different plaintiffs. Consolidating the matter would also prejudice plaintiffs. A jury could find the conduct of one plaintiff, like filing a complaint with the California Department of Insurance, indicates that one plaintiff “did not do everything they could to get their matter approved.” (Opp. 10: 11-14.) Similarly, the discrepancy in requested claims could result in one party being over or under paid. Lastly, Defendant did not cite any authority where two insurance disputes were transferred and consolidated.

The Court finds that consolidation and transfer is inappropriate. First, while both Plaintiffs purchased a policy from Defendant that included the same terms, there are enough different facts to keep the matters separate. First, the policies were purchased at different prices, the requested claims amount were different, about a $17,000 difference. Additionally, one Plaintiff’s request, the Lowrys, was initially going to be paid, with Broadspire stating that it would pay the claim. (Dec. Calvert Ex. 9-10.) Additionally, the court finds that joining these two matters will not be convenient or promote judicial efficiency. One, it is not convenient for the Ventura County Plaintiffs to be dragged into Los Angeles matter, being 45 miles away (especially dealing with 101 traffic into Downtown Los Angeles in the mornings.) Additionally, with two different sets of Plaintiffs – four individuals – and two policies with varying requested amounts and both an agreement to initially pay the claim but then deny it and a complete denial of the claim, there is a potential to confuse the jurors. As to the inconsistent rulings argument raised by Defendant, the Court finds that this argument fails. Because there are significant facts that differ between the two parties, i.e., the cost of the policies, the requested amount, the initial recommendation as to the Lowrys claim, indicates that a jury might determine that one Plaintiff had more significant facts in their favor.

[1] Rule of Court, Rule 3.400(b) Factors:

In deciding whether an action is a complex case under (a), the court must consider, among other things, whether the action is likely to involve:

(1) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve;

(2) Management of a large number of witnesses or a substantial amount of documentary evidence;

(3) Management of a large number of separately represented parties;

(4) Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court; or

(5) Substantial postjudgment judicial supervision.