Judge: Virginia Keeny, Case: 21VECV00960, Date: 2022-08-18 Tentative Ruling

Case Number: 21VECV00960    Hearing Date: August 18, 2022    Dept: W

CATHERINE ROCHERON, et al. v. MOSHE GABAY, ET AL.

Motion TO CONSOLIDATE

Date of Hearing:   August 18, 2022                 Trial Date:       None set

Department:         W                                       Case No.:         21VECV00960

Moving Party:             Plaintiffs James Cruce and Robert Borsuk

Responding Party:       Defendants Moshe Gabay and Orit Gabay

BACKGROUND

This matter arises out of an alleged breach of restrictive covenant relating to real property owned by Defendants Moshe Gabay and Orit Gabay.  The matters at issue include homeowners within Tract 13564 who seek to enjoin the construction of home being built, they allege, in violation of Tract’s Declaration of Deed of Restrictions. Specifically, these restrictions mandate that all garages be detached and that each home in Tract 13564 may not exceed one and one-half stories in height.

Plaintiffs Catherine Rocheron, Guillaume Rocheron, James Cruce, Ruth Holzman, and Robert Borsuk (collectively, “Plaintiffs”) filed a Complaint against Defendants Moshe Gabay, Orit Gabay, and Does 1 through 20, inclusive (collectively, “Defendants”) alleging causes of actions for (1) Breach of Recorded Declaration of Restrictions, (2) Injunctive Relief, and (3) Declaratory Relief.

Plaintiffs now move this Court for an order consolidating this action, Case No. 21VECV00960, with the matter of Brogger, et al. v. Shabtai, et al.  Los Angeles Superior Case No. 21VECV01006.

Defendants Moshe Gabay and Orit Gabay oppose the Motion. Plaintiffs filed a reply to Defendants opposition.

[Tentative] Ruling

Plaintiffs’ Motion to Consolidate is GRANTED.

discussion

“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, subd. (a).)  The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and the danger of inconsistent adjudications.  (See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.) 

A Notice of Motion to consolidate cases must (1) include a list of all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (2) include the captions of all the cases sought to be consolidated; and (3) be filed in each case sought to be consolidated.  (Cal. Rules of Court, rule 3.350(a)(1).) 

A procedural requirement of a motion to consolidate is that the notice of motion must be filed in each case sought to be consolidated. (Cal. Rules of Court, Rule 3.350(a)(1)(C). The Court notes that the instant notice of related case and notice of motion has been filed in Case No. 21VECV01006.

This matter arises out of an alleged breach of restrictive covenant relating to real property owned by Defendants Moshe Gabay and Orit Gabay.  The matters at issue include homeowners within Tract 13564 who seek to enjoin the construction of a home being built in violation of Tract’s Declaration of Deed of Restrictions (hereafter “Declaration”).   Specifically, these restrictions mandate that all garages be detached and that each home in Tract 13564 may not exceed one and one-half stories in height.

Plaintiffs argue that complete consolidation is appropriate as there are no doubts that various findings in the Rocheron case will affect the Brogger case, and vice-versa. Both of these cases revolve around the construction of a home that is alleged to violate the same provision of the Declaration. Specifically, both homes are being constructed with attached garages and one also allegedly violates the Declaration because of the size of its second story.  Both of these homes are located within the same Tract and, thus, affect the same homeowners. Not only do these matters involve the same Declaration, but both sets of Plaintiffs in these actions have filed a Complaint against their respective defendants for identical causes of action. James Cruce is also a Plaintiff in both of these actions. This Court has already deemed that these two matters are related.

            In opposition, Defendants argue that in the instant action, Rocheron v. Gabay, Case No. 21VECV00960, the sole issue is whether Defendants are required to build a detached garage. The other action, Brogger v. Shabtai, Case No. 21VECV01006, raises that issue, but also the additional issues of whether there is an “Accessory Dwelling Unit”; whether the construction complies with Setback requirements in the Declaration and whether the construction complies with the requirement that the house be only one and a half stories in height.  Defendants argue that the Gabays will suffer unfair prejudice if their case is consolidated with one that raises these additional issues.  They urge that if the actions are consolidated, there will be more hearings, motions, discovery served, hearings on the appeal, service of a plethora of notices/documents, a much longer trial, many more trial documents, and so on, for the Gabays. Further, the Gabays are concerned about being grouped in, for trial, with a homeowner accused of four violations of the declarations versus the Gabay’s one. The Gabays worry the trier of fact will assume they are somehow related, no matter how they are instructed, and treat all the defendants the same, which poses a risk of undue prejudice of the Gabays suffering the same fate as the Shabtai’s, whatever that may be.

In reply, Plaintiffs argue that although the Defendants in the Brogger matter have more alleged violations than the Defendants in the Rocheron matter, in the end, both cases are still centered around the interpretations and validity of the Declaration. Furthermore, both of these matters will affect the same homeowners within Tract 13564. Indeed, all homeowners in this Tract will be affected by these rulings as they will determine homeowners’ rights and obligations moving forward.

Here, the allegations of the Complaint filed in Case No. 21VECV01006 and, this instant action, Case No.  21VECV00960 are identical and encompass the same issues regarding the interpretation of the Declaration of Deeds of Restrictions. Although the actions in Case No. 21VECV01006 may be a slight bit broader, there are significant common questions of law and fact that are dependent upon the interpretation of the Declaration of Deeds of Restrictions. California Rules of Court, rule 3.350 has been substantially complied with. Defendant filed a notice of this motion. Therefore, due process has been given and the motion is properly granted.

Accordingly, the motion is granted.  If at the time of trial, it appears that it would be in the interest of justice to sever the two cases, such relief can be granted.