Case Number: SC118033    Hearing Date: July 15, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LEON OZERAN,
Plaintiff(s),
vs.

FRANCES MARKOVIC, ET AL.,

Defendant(s).

CASE NO: SC118033

[TENTATIVE] ORDER GRANTING MOTION TO CONSOLIDATE

Dept. 92
1:30 p.m. — #32
July 15, 2014

Plaintiff, David Solomon’s Motion to Consolidate is Granted.

1. SC118033
Plaintiff, Leon Ozeran filed SC118033 against Defendants, Frances and Nandor Markovic and Nandor & Frances TRS Markovic Trust for damages arising out of an automobile accident. The accident occurred on 2/06/12, and Plaintiff filed the complaint on 8/08/12.

2. SC119438
Plaintiff, Leon Ozeran filed SC119438 against Defendants, Lawrence Lee Foust and Christine Wagener for damages arising out of a subsequent automobile accident. The second accident occurred on 11/10/12; Plaintiff filed the complaint on 12/14/12.

3. Motion to Consolidate
a. Law Governing Consolidation
CCP ¿1048 grants discretion to the trial courts to consolidate actions involving common questions of law or fact. The trial court’s decision will not be disturbed on appeal absent a clear showing of abuse of discretion. A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both action, and avoid inconsistent results by hearing and deciding common issues together. (See Estate of Baker (1982) 131 Cal.App.3d 471, 485.) The granting or denial of a motion to consolidate rests in the trial court’s sound discretion, and will not be reversed except upon a clear showing of abuse of discretion. (Feliner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) Each case presents its own facts and circumstances, but the court generally considers the following: (1) timeliness of the motion: i.e., whether granting consolidation would delay the trial of any of the cases involved; (2) complexity: i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; and (3) prejudice: i.e, whether consolidation would adversely affect the rights of any party. (See State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430–431.)

In deciding whether to grant a motion to consolidate, the court should weigh whether the common issues predominate over the individual issues and whether any risks of jury confusion or prejudice to the parties outweighs the reduction in time and expense that would result from consolidation. (Todd-Stenberg v. Shield (1996) 48 Cal.App.4th 976, 978.)

Consolidation is a procedure for uniting separate lawsuits for trial, where they involve common questions of law or fact and are pending in the same court. (See CCP § 1048.) The purpose is to enhance trial court efficiency (i.e., to avoid unnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.). (See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978–979.) There are two types of consolidation under ¿ 1048: (1) a consolidation for purposes of trial only, where the two actions remain otherwise separate, and (2) a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment. (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) The trial court’s decision will not be disturbed on appeal absent a clear showing of abuse of discretion.

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. (See Estate of Baker (1982) 131 Cal.App.3d 471, 485.) In deciding whether to grant a motion to consolidate, the court should weigh whether the common issues predominate over the individual issues and whether any risks of jury confusion or prejudice to the parties outweighs the reduction in time and expense that would result from consolidation. (Todd-Stenberg v. Shield (1996) 48 Cal.App.4th 976, 978.)

b. Plaintiff’s position
At this time, Plaintiff moves to consolidate the two actions, contending both accidents caused or contributed to his back pain, and consolidation is necessary to avoid conflicting rulings, avoid cumulative testimony, prevent unreasonable financial burden, and ensure proper use of judicial resources. Plaintiff notes that liability is not contested in the Markovic case, but liability is contested in the Foust case. Plaintiff therefore suggests that a trial on Foust’s liability or lack of same go forward first, and then a consolidated trial on the issue of damages go forward second.

c. Defendants’ Positions
Both sets of defendants argue against consolidation in opposition to the motion. The Markovic defendants contend there are no overlapping issues to be consolidated, as two different accidents were involved. The Markovic defendants also note that the Foust case has already been consolidated with 14K02342, which is a limited jurisdiction case brought by Foust’s insurance carrier to recover damages to Foust’s vehicle as a result of the Foust accident.

The Foust defendants argue, preliminarily, that Plaintiff failed to comply with the Rules of Court relating to motions to consolidate. The Foust defendants go on to argue that joint and several liability is not at issue here, and therefore consolidation is not appropriate.

d. Reply
Any reply to the opposition was due on or before 7/08/14. As of 7/11/14, the Court has not received any reply to the opposition. The Court will not consider any late-filed reply papers.

e. Procedural Issues
The Foust defendants correctly note that CRC 3.350(a)(1)(A) requires the notice of motion to list all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record. Plaintiff’s motion does not comply with this requirement. However, a denial on this ground would merely be a denial without prejudice, and would result in the re-filing of the motion, which is not in the interest of the parties’ or the Court’s time.

The Foust defendants also note that no notice of related cases has been filed in these cases. The purpose of a notice of related cases is to ensure the two actions are pending in the same courtroom before a motion to consolidate is heard, as a motion to consolidate is only ripe when the two cases are pending in the same courtroom. These two cases are both assigned to Department 92, and therefore the notice of related cases serves no additional purpose at this time.

The Court is inclined to rule on the motion on its merits, but requests that Plaintiff be aware of all Rules of Court in the future in connection with this action.

f. Merits
Plaintiff argues that Defendants are jointly and severally liable for his damages. Defendants argue that damages will not be joint and several. None of the parties brief this issue with legal authority on point.

The Court has reviewed Henry v. Superior Court (2008) 160 Cal.App.4th 440 in connection with this issue. In Henry, the plaintiffs sued the defendant homeowners for premises liability. The plaintiffs sought to recover damages not only for the injury sustained as a result of the incident, but also for the negligent medical treatment they received from Kaiser thereafter. The Court of Appeals made a number of important holdings. First, it noted that the homeowner defendants were solely liable for any of the plaintiff’s damages that were caused by the incident itself, but were jointly and severally liable with Kaiser for any damages due to the ultimate negligent medical care. The court noted, “traditional California tort law holds a tortfeasor liable not only for the victim’s original personal injuries but also for any aggravation caused by subsequent negligent medical treatment, provided the injured party exercised reasonable care in obtaining the medical treatment. The subsequent tortfeasor, in turn, is also liable to the injured party for the enhanced injuries he or she has caused.” Id. at 445.

The court went on to hold that the homeowner defendants would be entitled to indemnification from Kaiser for the amount of fault that the jury apportioned to Kaiser, and that the homeowners could pursue this by way of a cross-complaint against Kaiser or by way of a future action for indemnification. Id. at 449. The court then discussed the application of Prop 51 to such a situation, ultimately holding that the jury must apportion fault for the plaintiff’s non-economic (pain and suffering) damages, and that the homeowner defendants would only be liable for their own proportionate share of the non-economic damages.

Importantly, in Henry, the plaintiff did not actually sue Kaiser. Neither did the homeowner defendants file a cross-complaint against Kaiser. Instead, the court was concerned with whether the jury should be instructed to consider Kaiser’s portion of the liability and to apportion those damages in the verdict; the court held that such instruction would be proper.

Notably, Henry, and most of the cases cited therein, concern liability for an accident and subsequent negligent medical treatment. The cases do not concern one accident and then a subsequent accident. The Court has researched this issue extensively and has not been able to find authority concerning two separate car accidents that cause or contribute to the same injury. The logic and analysis of Henry, however, appears to apply to this case as well. Notably, at page 448-449, the court noted, “The basic rules governing comparative responsibility and apportionment of liability among multiple tortfeasors are not seriously disputed by the parties. ‘Under well-established common law principles, a negligent tortfeasor is generally liable for all damage of which his negligence is a proximate cause … . A tortfeasor may not escape this responsibility simply because another act—either an ‘innocent’ occurrence such as an ‘act of God’ or other negligent conduct—may also have been a cause of the injury.’” Thus, the analysis appears to apply to “other negligent conduct,” which would include a subsequent automobile accident.

In the case at bar, Plaintiff has two actions against two different sets of defendants for damages arising out of two separate automobile accidents; the actions, however, allegedly caused or contributed to the same injury. Plaintiff alleges that his back was injured in the first accident, and the injury was exacerbated in the second accident. If the two actions are not consolidated, very complicated results could ensue. Plaintiff could recover damages against the Markovic defendants for both his original damages and also for the exacerbated damages flowing from the subsequent accident. Plaintiff could also recover damages against the Foust defendants for their negligence in connection with the second accident. Meanwhile, the Markovic defendants would be entitled to seek indemnification from the Foust defendants for the portion of the judgment representing exacerbated injuries. Additionally, the jury in the Markovic case would be required to apportion the damages due solely to the accident vs. the damages due aggravation by the Fousts, for purposes of Prop 51. There is even a risk that the jury in the Markovic case could apportion substantial damages to the Foust defendants, while the jury in the Foust case could find the Fousts were not liable or did not cause the damages at all.

These highly complicated and potentially contrary results can be avoided by having both actions heard together. The jury can consider whether either/both sets of defendant(s) is/are negligent, whether their negligence caused and/or contributed to Plaintiff’s claimed damages, and can ultimately apportion the damages between the two sets of defendants. The Court therefore finds consolidation is in the interest of justice, and the motion to consolidate is granted.

Dated this 15th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court