This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 00:27:43 (UTC).

A J FISTES CORPORATION VS MONTEBELLO UNIFIED SCHOOL DISTRICT

Case Summary

On 04/19/2016 A J FISTES CORPORATION filed an Other - Writ Of Mandamus lawsuit against MONTEBELLO UNIFIED SCHOOL DISTRICT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES C. CHALFANT. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1779

  • Filing Date:

    04/19/2016

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JAMES C. CHALFANT

 

Party Details

Plaintiff and Petitioner

A.J. FISTES CORPORATION

Defendants and Respondents

DOES 1 THROUGH 100

MONTEBELLO UNIFIED SCHOOL DITRICT

ALLEGHENY CASUALTY COMPANY

LOPEZ BENJAMIN

LOPEZ JOSE C

LOPEZ FRANCISCO M

Interested Parties

GDL BEST CONTRACTORS INC.

ROES 1 THROUGH 100

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

CARLIN LAW GROUP APC

Defendant Attorneys

LANAK FRANCIS J. ESQ.

AUSTIN MARK ESQ.

KROPFF JAMES B. ESQ.

 

Court Documents

DECLARATION OF DAVID E. KENNEY, ESQ. RE MEET AND CONFER, AND DEMURRER

7/15/2016: DECLARATION OF DAVID E. KENNEY, ESQ. RE MEET AND CONFER, AND DEMURRER

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF

7/15/2016: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF

PETITIONER PLAINTIFF A.J. FISTES CORPORATION'S OPENING BRIEF IN SUPPORT OF VERIFIED FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

8/12/2016: PETITIONER PLAINTIFF A.J. FISTES CORPORATION'S OPENING BRIEF IN SUPPORT OF VERIFIED FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT

PROOF OF SERVICE BY MAIL

9/22/2016: PROOF OF SERVICE BY MAIL

Proof of Service

9/28/2016: Proof of Service

DECLARATION OF KEVIN R. CARLIN IN SUPPORT OF EX PARTE APPLICATION & POINTS AND AUTHORITIES IN SUPPORT OF REQUEST TO BIFURCATE AND/OR CONTINUE TRIAL OR ALTERNATIVELY FOR AN ORDER SHORTENING TIME FOR A

9/28/2016: DECLARATION OF KEVIN R. CARLIN IN SUPPORT OF EX PARTE APPLICATION & POINTS AND AUTHORITIES IN SUPPORT OF REQUEST TO BIFURCATE AND/OR CONTINUE TRIAL OR ALTERNATIVELY FOR AN ORDER SHORTENING TIME FOR A

PROOF OF SERVICE BY MAIL

10/25/2016: PROOF OF SERVICE BY MAIL

PROOF OF SERVICE SUMMONS

10/25/2016: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

10/25/2016: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE BY MAIL

10/26/2016: PROOF OF SERVICE BY MAIL

DECLARATION OF KELLY C. SLOAN REGARDING GOOD FAITH ATFEMPT TO MEET AND CONFER PURSUANT TO CCP SECTION 430.41

11/29/2016: DECLARATION OF KELLY C. SLOAN REGARDING GOOD FAITH ATFEMPT TO MEET AND CONFER PURSUANT TO CCP SECTION 430.41

SUBSTITUTION OF ATTORNEY

12/21/2016: SUBSTITUTION OF ATTORNEY

Minute Order

1/13/2017: Minute Order

MONTEBELLO UNIFIED SCHOOL DISTRICT'S ANSWER TO PLAINTIFF A.J. FISTES CORPORATION'S UNVERIFIED THIRD AMENDED COMPLAINT

3/17/2017: MONTEBELLO UNIFIED SCHOOL DISTRICT'S ANSWER TO PLAINTIFF A.J. FISTES CORPORATION'S UNVERIFIED THIRD AMENDED COMPLAINT

CDL BEST CONTRACTORS INC., FRANCISCO M. LOPEZ; JOSE C. LOPEZ; AND BENJAMIN LOPEZ'S REPLY TO A.J. FISTES CORPORATION'S OPPOSITION TO DEFENDANTS DEMURRER TO A.J. FISTES' THIRD AMENDED COMPLAINT

4/21/2017: CDL BEST CONTRACTORS INC., FRANCISCO M. LOPEZ; JOSE C. LOPEZ; AND BENJAMIN LOPEZ'S REPLY TO A.J. FISTES CORPORATION'S OPPOSITION TO DEFENDANTS DEMURRER TO A.J. FISTES' THIRD AMENDED COMPLAINT

Unknown

5/11/2017: Unknown

Minute Order

5/24/2017: Minute Order

ORDER MONTEBELLO UNIFIED SCHOOL DISTRICT'S EX PARTE APPLICATION TO VACATE OR CONTINUE TRIAL DATE

8/3/2017: ORDER MONTEBELLO UNIFIED SCHOOL DISTRICT'S EX PARTE APPLICATION TO VACATE OR CONTINUE TRIAL DATE

99 More Documents Available

 

Docket Entries

  • 02/07/2018
  • NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL

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  • 09/29/2017
  • CLARIFIED NOTICE DESIGNATING RECORD ON APPEAL

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  • 09/20/2017
  • at 09:30 AM in Department 50; Jury Trial

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  • 09/19/2017
  • AMENDED-NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

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  • 09/19/2017
  • Notice; Filed by Clerk

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  • 09/11/2017
  • Proof of Service (not Summons and Complaint); Filed by Petitioner

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  • 09/11/2017
  • TRIAL NON-READINESS STATEMENT

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  • 09/11/2017
  • PROOF OF SERVICE

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  • 09/11/2017
  • Miscellaneous-Other; Filed by A.J. Fistes Corporation (Plaintiff)

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  • 09/08/2017
  • at 08:30 AM in Department 50; Final Status Conference (Final Status Conference; Off Calendar) -

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214 More Docket Entries
  • 04/27/2016
  • Opposition Document; Filed by Real Party in Interest

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  • 04/27/2016
  • Declaration; Filed by Real Party in Interest

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  • 04/27/2016
  • Opposition Document; Filed by Defendant/Respondent

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  • 04/27/2016
  • Points and Authorities; Filed by Petitioner

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  • 04/25/2016
  • NOTICE OF TRIAL SETFING CONFERENCE & ATIACHED ORDERS THEREON

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  • 04/25/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/25/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/19/2016
  • SUMMONS PETITION

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  • 04/19/2016
  • Petition; Filed by null

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  • 04/19/2016
  • VERIFIED PETITION FOR WRIT OF MANDATE

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Tentative Rulings

Case Number: BS161779    Hearing Date: March 06, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

a.j. fistes corporation,

Petitioner,

vs.

montebello unified school district, et al.,

Respondents.

GDL BEST CONTRACTORS, INC., et al.,

Real Parties in Interest.

Case No.:

BS 161779 [r/w BC656614]

Hearing Date:

March 6, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF A.J. FISTES CORPORATION’S MOTION TO CONSOLIDATE ACTIONS

Background

Plaintiff A.J. Fistes Corporation (“Fistes”) seeks to consolidate the instant case with California Taxpayers Action Network v. GDL Best Contractors, Inc., Case No. BC656614 (the “CTAN Action”). The instant matter and the CTAN Action were related pursuant to this Court’s order filed February 6, 2020.

Fistes now moves to consolidate on the grounds that this action and the CTAN Action concern common question of law and fact and that litigating the actions separately would create inefficiencies and the potential for inconsistent judgments. Defendant GDL Best Contractors, Inc. (“GDL”) and Real Party in Interest Montebello Unified School District (“MUSD”) oppose.

Discussion

Code of Civil Procedure section 1048 grants discretion to trial courts to consolidate actions involving common questions of law or fact. “Consolidation is not a matter of right; it rests solely within the sound discretion of the trial judge . . . .” ((Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.) There are two types of consolidation under section 1048: “a consolidation for purposes of trial only, where the two actions remain otherwise separate; and 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.)

Fistes seeks to consolidate for all purposes. Fistes contends that both cases are exactly the same, that both arise from the same underlying facts, and that both plaintiffs seek the same relief.

The instant case was filed on April 19, 2016. The operative Third Amended Complaint for Declaratory, Injunctive, and Other Equitable Relief Including Restitution Based on Violations of the California Constitution and Laws (“Fistes TAC”) was filed on January 27, 2017, and names GDL and MUSD as defendants. By the Fistes TAC, Fistes seeks a declaration that a contract for the remediation of school properties awarded by MUSD to GDL was void due to violations of the Public Contract Code and the Government Code. Fistes also seeks a constructive trust against GDL in favor of MUSD.

The CTAN Action was filed on April 5, 2017 by Plaintiff California Taxpayers Action Network (“CTAN”). The operative First Amended Complaint (“CTAN FAC”) was filed on November 8, 2017. GDL, its principals Francisco M. Lopez, Jose C. Lopez, and Benjamin Lopez (collectively, the “GDL Defendants”), and MUSD are named as defendants. CTAN challenges the same contract awarded by MUSD to GDL and seeks a judgment that the contract for the project is void and/or invalid as well as a peremptory writ of mandate directing GDL Defendants to rescind the contract for the project. CTAN also seeks a judgment declaring a constructive trust in an amount equal to the value of all sums of public monies paid in connection with the contract, a judgment for restitution of all public monies paid in connection with the contract, and injunctive relief prohibiting the GDL Defendants and MUSD from disbursing, paying or otherwise transferring money in connection with the contract.

GDL argues that consolidation is improper because the two cases are at different stages in litigation. GDL contends that while the CTAN Action is at issue (and trial currently set for August 26, 2020), the instant action is not. In the instant case, after this Court dismissed the Fistes TAC without leave to amend, the Court of Appeal issued an order reversing the dismissal and stating that the trial court should grant Fistes leave to amend. ((See A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 698.) The remittitur was issued on November 19, 2019. As of yet, Fistes has not filed an amended complaint, but Fistes points out that there is no order granting Fistes leave to do so. Fistes asserts that it intends to file an amended complaint, once leave is granted, that seeks “essentially the same relief on essentially the same facts” as the CTAN Action. (Reply, p. 2: 13-16.) Nevertheless, GDL contends that if and when an amended complaint is filed in the instant action, GDL intends to take the position that Fistes cannot maintain the instant action. GDL argues that it would be prejudicial to consolidate the cases before the GDL Defendants are given the opportunity to know what claims will be at issue and to challenge those claims through discovery.

The Court is not convinced that the fact that the two cases are currently at different stages of litigation weighs against consolidation. For one, there is no reason why the trial date set in the CTAN Action would govern upon consolidation. Moreover, if any challenges to the pleadings in the instant action are successful, then that would likely vitiate GDL’s concerns about delay. The Court has the discretion, and would likely exercise such discretion, to set a trial schedule that takes into account the state of the pleadings and the state of discovery.

GDL also argues that this motion is merely an attempt to do an end-run around Fistes’s dismissal of MUSD from the instant case. GDL contends that MUSD is an indispensable and necessary party in the instant case, but that Fistes voluntarily dismissed MUSD from the instant case on August 4, 2017. MUSD is a party to the CTAN Action, and so, according to GDL, Fistes seeks to consolidate the two cases so that Fistes can avoid the negative repercussions of its dismissal. MUSD also opposes and argues that, as a party to the contract being challenged and as a party to whom Fistes seeks to require the disgorgement of funds, MUSD is a necessary and indispensable party in the instant action. Fistes counters that it is not seeking any damages or relief from MUSD. Fistes asserts that it is only attempting to obtain a judgment against GDL directing it to pay back to MUSD all monies received under illegal contracts. Nevertheless, GDL argues that consolidation would cause extensive confusion because of MUSD’s status as a party solely in the CTAN Action. GDL contends that the issue of differing standing requirements will also confuse the jury. Fistes counters in reply that standing is an issue of law that will not be addressed to the jury.

Based on the foregoing, the Court finds that an order to consolidate the two cases right now would be premature. There is insufficient information to determine whether and to what extent consolidation would prejudice the GDL Defendants and/or MUSD. However, the Court notes that there is no dispute that the plaintiffs in both cases will likely be seeking the same relief on the same legal grounds, and so if and when this becomes clear, the Court will reconsider the appropriateness of consolidation.

Conclusion

For the foregoing reasons, the Court denies the motion to consolidate brought by Fistes without prejudice. With regard to the issue of leave to amend, the Court hereby grants Fistes such leave as ordered by the Court of Appeal; the amended complaint must be filed and served on or before March 27, 2020. The Court sets a Case Management Conference on May 11, 2020 at 8:30 a.m. in Dept. 50.

GDL is ordered to give notice of this ruling.

DATED: March 6, 2020

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court