Jose Lopez et al vs Aysha Davis

Case Number

20CV03222

Case Type

Hearing Date / Time

Mon, 03/11/2024 - 10:00

Nature of Proceedings

CMC re Setting; Motion: Transfer and Consolidate

Tentative Ruling

Jose Lopez, et al. v. Aysha Davis

Case No. 20CV03222        

Hearing Date: March 11, 2024                                               

MATTERS:             Plaintiffs’ Motion To Transfer And Consolidate

ATTORNEYS:        For Plaintiffs Jose Lopez and Maria Galindo: S. Edmond El Dabe, Jonathan M. Ritter, El Dabe Ritter Trial Lawyers

For Defendant Aysha Davis: Christopher P. Wesierski, Kathryn J. Harvey, Wesierski & Zurek LLP

For Opposing Nonparty Wawanesa General Insurance Company: Peter H. Klee, Thomas R. Proctor, Sheppard, Mullin, Richter & Hampton LLP

TENTATIVE RULING:

The motion of plaintiffs to transfer and consolidate is denied without prejudice.

Background:

This action arises from a motor vehicle collision (the collision) which occurred on September 6, 2020, on State Highway 154 (SR-154) west of Salvar Road in Santa Barbara, California. As alleged in the complaint filed on October 5, 2020, by plaintiffs Jose Lopez and Maria Galindo (collectively plaintiffs), plaintiffs were traveling westbound on SR-154 on the date of the collision when defendant Aysha Davis (Davis), who was traveling eastbound, made an unsafe movement causing Davis to lose control of her vehicle and drift into opposing traffic, causing the collision. (Compl., ¶ GN-1.) At the time of the collision, Davis was driving under the influence. (Ibid.) Plaintiffs suffered serious injuries which require medical treatment. (Ibid). The complaint alleges two causes of action against Davis for motor vehicle and negligence.

Davis filed an answer to plaintiffs’ complaint on March 10, 2021, generally denying its allegations and asserting four affirmative defenses.

Court records reflect that on December 18, 2023, plaintiffs filed a notice of related case (the notice) identifying case number 37-2023-00024291-CU-BC-CTL entitled Wawanesa General Insurance Company v. Lopez et al. (the Wawanesa action) as related to the present matter. The Wawanesa action was filed on June 9, 2023, with the Superior Court of San Diego County. (Notice at p. 1.) In the notice, plaintiffs assert that in the Wawanesa action, plaintiff Wawanesa General Insurance Company (Wawanesa) alleges that plaintiffs breached an agreement purporting to settle the present action against Davis, who is Wawanesa’s insured. (Notice, Attachment 1h.)

Court records further reflect that on December 22, 2023, Davis filed an objection to the notice, asserting that while the present action and the Wawanesa action involve common parties and the same collision, the actions involve different questions of law and fact and different claims for relief. Davis also contends that plaintiffs failed to timely file the notice upon plaintiffs’ discovery of facts concerning the existence of the Wawanesa action.

Also on December 22, 2023, Wawanesa filed a response to the notice asserting that the notice is untimely, and that the present action and the Wawanesa action do not involve the same parties or the same or similar claims.

On January 2, 2024, plaintiffs filed a motion for an order transferring and consolidating the Wawanesa action with the present action. Plaintiffs contend that the present action and the Wawanesa action are interrelated and that the interests of justice under the standards set forth in Code of Civil Procedure section 404.1 and concerns for judicial efficiency support transfer and consolidation of the Wawanesa action to this court. The motion is opposed by Davis and Wawanesa who has filed an opposition to the motion.

In support of the motion, plaintiffs offer the declaration of their counsel, S. Edmond El Dabe, who declares that in the Wawanesa action, Wawanesa alleges causes of action for declaratory relief, specific performance and breach of contract against plaintiffs with respect to a purported settlement of plaintiffs’ action against Davis. (El Dabe Decl., ¶¶ 3, 4 & Exh. A.) Plaintiffs filed a cross-complaint in the Wawanesa action alleging that settlement conditions were not met. (Id. at ¶ 4 & Exh. B.)

In the Wawanesa action, Wawanesa has filed a motion for summary adjudication which is set for hearing on April 19, 2024, and which is primarily based on written exchanges between the parties’ counsel, including plaintiffs’ counsel in the present action. (El Dabe Decl., ¶ 7 & Exh. C.) Counsel contends that resolution of the summary adjudication motion filed by Wawanesa will have an impact on the present action. (Id. at ¶ 8.)

Counsel further declares that the potential witnesses to the issues raised by the declaratory relief action include plaintiffs’ counsel and that the Wawanesa action should not have been filed with the Superior Court of San Diego County because there exists no connection between San Diego and the issues raised by each of the actions. (El Dabe Decl., ¶ 5.) Counsel also asserts that the outcome of the Wawanesa action will impact the litigation of this action and that consolidation will avoid duplicative discovery and efficient utilization of judicial resources. (Id. at ¶ 6.)

Plaintiffs’ counsel sought to meet and confer with regard to the proposed transfer and consolidation but Wawanesa refused to stipulate to the transfer and instead requested a stipulation to stay the present action. (El Dabe Decl., ¶ 8 & Exhs. D-G.)

Analysis:

“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. Notice of the motion shall be served on all parties to each action and on each court in which an action is pending. Any party to that action may file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.” (Code Civ. Proc., § 403.)

California Rules of Court, rule 3.500 applies “[w]hen a motion under Code of Civil Procedure section 403 is filed requesting transfer and consolidation of a noncomplex case purportedly involving common issues of fact or law filed in different courts.” (Cal. Rules of Court, rule 3.500(a).) (Note: Undesignated rule references shall be to the California Rules of Court unless otherwise specified.) The present motion is filed under Code of Civil Procedure section 403. (See Motion at p. 5.) Therefore, rule 3.500 applies.

Preliminarily, under rule 3.500, “[a] party that intends to file a motion under Code of Civil Procedure section 403 must first make a good-faith effort to obtain agreement of all parties to each case to the proposed transfer and consolidation.” (Cal. Rules of Court, rule 3.500(b).) In addition, “[a] motion to transfer an action under Code of Civil Procedure section 403 must … be supported by a declaration stating facts showing that [¶] … [t]he moving party has made a good-faith effort to obtain agreement to the transfer and consolidation from all parties to the actions[.]” (Cal. Rules of Court, rule 3.500(c)(2); see also Code Civ. Proc., § 403 [same].)

Available information demonstrates that plaintiffs’ counsel made what appears to be a good-faith effort to obtain Wawanesa’s agreement to the proposed transfer and consolidation. (See El Dabe Decl., Exhs. D-G; Motion at p. 8, ll. 17-24 [describing efforts to obtain Wawanesa’s agreement to transfer and consolidate the Wawanesa action].) However, the El Dabe declaration offers no facts showing that plaintiffs made any effort to obtain Davis’ agreement to the proposed transfer and consolidation as required under rule 3.500(b) and 3.500(c)(2). (See also Notice at p. 2, ll. 22-23 [identifying counsel for Davis in the present action].) For this reason, the motion is procedurally deficient.

Rule 3.500 also requires that a supporting declaration state facts showing that all parties have been “of their obligation to disclose to the court any information they may have concerning any other motions requesting transfer of any case that would be affected by the granting of the motion before the court.” (Cal. Rules of Court, rule 3.500(c).) The same procedural problem exists. Though the El Dabe declaration includes facts showing that plaintiffs notified Wawanesa of its obligation to disclose information concerning other motions requesting transfer of any case that would be affected by the granting of the present motion, the declaration states no facts demonstrating that plaintiffs have provided the required notice to Davis.

The El Dabe declaration offered in support of the motion must also state facts showing that the actions are not complex. (Cal. Rules of Court, rule 3.500(c)(1); Code Civ. Proc., § 403.) To determine whether a case is complex, the court must consider the factors set forth in rule 3.400(b)(1) through (5).

Though plaintiffs’ counsel asserts that the issues raised in the present action and the Wawanesa action are relatively straightforward and that the summary adjudication motion filed in the Wawanesa action is not complex, wholly absent from the declaration are any facts demonstrating whether the actions are complex under the guidelines set forth in rule 3.400, or addressing the matters described in 3.401, 3.402, or 3.403. Though plaintiffs offer general and conclusory information purporting to address the factors set forth in rule 3.400(b), the information fails to sufficiently address each of these factors including, for example, whether the actions will involve substantial documentary evidence or substantial post judgment supervision. For this reason, the court is unable to, if appropriate, issue an order that complies with the requirements of rule 3.500(d)(1) through (8).

Code of Civil Procedure section 403 further requires that the supporting declaration state facts showing that the actions meet the standards specified in Code of Civil Procedure section 404.1. The standards under Code of Civil Procedure section 404.1 include “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.” (Code Civ. Proc., § 404.1.)

The El Dabe declaration fails to offer sufficient factual information regarding the questions at issue in the Wawanesa action and whether the purportedly common questions of fact or law are predominating or significant to the litigation. In addition, the declaration fails to sufficiently address the additional matters described in Code of Civil Procedure section 404.1 and further discussed above.

Though plaintiffs include conclusory and general information in the memorandum filed in support of the motion regarding the claims asserted in each action, these facts must be included in the supporting declaration. Moreover, the information offered in the memorandum is conclusory and fails to sufficiently state facts addressing each of the applicable standards, including by way of example the convenience of all parties and counsel, the work product of counsel, court calendars, any disadvantages of duplicate or inconsistent rulings, and settlement issues. Even if the Wawanesa action involves a settlement of plaintiffs’ claims against Davis, this fact alone is not sufficient to demonstrate that the actions share a common question of law or fact in light of all factors set forth in Code of Civil Procedure section 404.1.

Due to plaintiffs’ failure to state in the supporting declaration sufficient facts showing that the actions meet each of the standards specified in Code of Civil Procedure section 404.1, the court is unable to conclusively determine if there exist common questions of fact or law or whether each action meets the relevant standards.

Though plaintiffs assert that a copy of the notice of the present motion was served on each court in which an action is pending, available information appears to demonstrate that notice was not served on the Superior Court of San Diego County where the Wawanesa action is pending as required under Code of Civil Procedure section 403. (See Proof of Service of Motion [service list].) The court has no record of a proof of service of the notice on the Superior Court of San Diego County having been filed by plaintiffs apart from the proof of service attached to the present motion.

In addition, there is insufficient information to permit the court to conclusively determine whether plaintiffs seek consolidation for all purposes or for trial only and on what basis. (See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147 [noting that there exist two types of consolidation].)

Examples of the deficiencies discussed herein are intended to be illustrative but not exhaustive. As there exist significant procedural problems with the present motion, and as the motion is opposed by Davis and Wawanesa, the court will, for all reasons discussed above, deny the motion without prejudice to the future filing of a procedurally appropriate motion by plaintiffs. To the extent plaintiffs in the future file a similar motion, the court expects that plaintiffs will provide all necessary factual information together with reasoned legal authority sufficient to permit the court to make all findings required to issue any order requested by plaintiffs, if appropriate. Nothing herein shall preclude the parties to the present action or Wawanesa from stipulating to the matters presented in the motion.