HIRSCH PIPE & SUPPLY CO., INC., A CALIFORNIA CORPORATION VS MAXXIM PLUMBING CORP., A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: 20STLC03852    Hearing Date: March 17, 2021    Dept: 25

HEARING DATE: Wed., March 17, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Hirsch Pipe & Supply Co., Inc. v. Maxxim Plumbing Corp., et al.

CASE NUMBER: 20STLC03852 COMPL. FILED: 05-06-20

NOTICE: OK DISC. C/O: 10-31-21

PROCEEDINGS: MOTION TO CONSOLIDATE ACTIONS

MOVING PARTY: Plaintiff Hirsch Pipe & Supply Co., Inc.

RESP. PARTY: None

MOTION TO CONSOLIDATE

(CCP § 1048; CRC 3.350)

TENTATIVE RULING:

Plaintiff Hirsch Pipe & Supply Co., Inc.’s Motion to Consolidate Actions is GRANTED ON THE CONDITION THAT, before the hearing, Plaintiff files supplemental papers correcting the procedural errors noted herein.

Otherwise, the hearing will be CONTINUED TO MAY 19, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. If continued, Plaintiff will be ordered to file and serve supplemental papers addressing the noted errors at least 16 court days before the next hearing.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of March 15, 2021 [ ] Late [X] None

REPLY: None filed as of March 15, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On May 6, 2020, Plaintiff Hirsch Pipe & Supply Co., Inc. (“Plaintiff”) filed an action for breach of contract, common counts, and foreclosure of mechanic’s lien against Defendants Maxxim Plumbing Corp. (“Maxxim”), Hector Herrera (“Herrera”), Randy Buzzelli (“Buzzelli”), and Kelly Goulden (“Goulden”).

Following their failure to respond, default was entered as to Defendants Herrera, Buzzelli, and Goulden on September 17, 2020 and against Defendant Maxxim on September 28, 2020. Defendants Buzzelli and Goulden were dismissed from the action on November 12, 2020.

On May 22, Plaintiff filed a separate action against Defendants Maxxim, Herrera, HPI/GSA-1E (“HPI”), and The Speed Hawse, LLC (“Speed Hawse”), entitled Hirsch Pipe & Supply Co., Inc. v. Maxxim Plumbing Corp., et al., Case No. 20STLC04420.

Plaintiff filed a Notice of Related Case for Case No. 20STLC04420 on November 30, 2020. On December 18, the Court found this action and Case No. 20STLC04420 related within the meaning of California Rules of Court, rule 3.300. (12/18/20 Minute Order.) This case was designated as the lead case. (Id.)

On February 4, 2020, Plaintiff filed the instant Motion to Consolidate Actions (the “Motion”). No opposition was filed.

1. Legal Standard

California Rules of Court, rule 3.350, subdivision (a) states in relevant part:

(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

(C) Be filed in each case sought to be consolidated.

(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 non-represented parties in all of the cases sought to be consolidated; and

(C) Must have a proof of service filed as part of the motion.

(Cal. Rules of Court, rule 3.350, subd. (a)). (Emphasis added.) Also, the consolidation statute, Code of Civil Procedure section 1048, states in relevant part:

(a) 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.

(b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.

(Code Civ. Proc., § 1048, subd. (a).) The granting or denial of the motion to consolidate rests in the sound discretion of the trial court and will not be reversed except upon a clear showing of abuse of discretion. (See Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.)

1. Discussion

Plaintiff seeks to consolidate this action and Case No. 20STLC04420. (Mot., p. 2:10-10-13.) Plaintiff explains that both actions involve Defendant Maxxim’s request for materials for construction projects, one located at 160 Hill St., Hermosa Beach, CA 90254 (“Project 1”) and the other located at 3840 Crenshaw Blvd., Los Angeles, CA 90008 (“Project 2”). (Mot., p. 4: 9-15.) After Defendant Maxxim failed to pay Plaintiff for those materials, Plaintiff recorded mechanic’s liens against both projects and initiated two separate actions, one for each project, against Defendants Maxxim and Herrera, the owner of Defendant Maxxim, and the projects’ respective owners. (Id. at p. 4:13-20.) After the actions were filed, however, the defendant owners of the projects signed declarations for Plaintiff attesting under oath that the materials sold to Defendants Maxxim were not used in the Projects as Defendant Maxxim had represented to Plaintiff. (Id., p. 2:3-9; Willner Decl., ¶ 8.) As a result, the owners of the Projects were dismissed from both actions and the only parties remaining are Plaintiff, Defendant Maxxim, and Defendant Herrera. (Id.)

Plaintiff states that both actions involve the same parties, the same causes of action, and the same witnesses. (Notice of Mot., p. 3:7-9.) Plaintiff also argues that proceeding with both cases together will avoid unnecessary costs and the expenditure of judicial resources. (Mot., p. 3: 6-11.) The Court finds consolidation of this case and Case No. 20STLC04420 is proper and in the interest of judicial economy.

Although the Court is inclined to grant the Motion, the Court notes that Plaintiff did not comply with California Rules of Court, rule 3.350. Specifically, Plaintiff did not file a copy of this Motion in Case No. 20STLC04420 as required by California Rules of Court Rule 3.350, subdivision (a)(1)(C), and did not include in the caption of the Motion all of the cases sought to be consolidated as required by Subdivision (a)(1)(B).

In the interest of judicial economy, the Motion is GRANTED ON THE CONDITION THAT, before the hearing, Plaintiff files supplemental papers correcting the errors noted above. Otherwise, the hearing will be continued.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Hirsch Pipe & Supply Co., Inc.’s Motion to Consolidate Actions is GRANTED ON THE CONDITION THAT, before the hearing, Plaintiff files supplemental papers correcting the procedural errors noted herein.

Otherwise, the hearing will be CONTINUED TO MAY 19, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. If continued, Plaintiff will be ordered to file and serve supplemental papers addressing the noted errors at least 16 court days before the next hearing.

Moving party is ordered to give notice.