ADRIAN HERNANDEZ VS CHILLER SERVICES RIGGING & DEMO, ET AL.

Tentative Rulings

Case Number: *******4648    Hearing Date: March 06, 2020    Dept: 47

Adrian Hernandez v. Chiller Services Rigging & Demo, et al.

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY: Plaintiff Adrian Hernandez

RESPONDING PARTY(S): Defendants Chiller Services Rigging & Demo and Bruce Kolstad (notice of non-opposition filed).

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff was employed by Defendant Chiller Services as a laborer. He alleges various Labor Code violations and retaliation based on his complaints about these violations.

Plaintiff moves to file a first amended complaint.

TENTATIVE RULING:

Plaintiff’s motion for leave to file a first amended complaint is GRANTED. Plaintiff is to file a stand-alone copy of the first amended complaint on the date of this order. The first amended complaint shall be deemed served as of the date of this order, except that any Defendant that has not yet appeared in the action must be personally served. The remaining Defendants may either stand on their previous answers or file a responsive pleading within 30 days of the service of this order.

DISCUSSION

Motion for Leave To File First Amended Complaint

Plaintiff seeks leave to file a first amended complaint.

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (CCP ; 576.) A motion to amend a pleading before trial must meet the following requirements:

(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(CRC 3.1324.)

Contents of Motion

Plaintiff has included a copy of the proposed first amended complaint with this motion. Plaintiff has not stated in the motion itself which allegations are proposed to be added or deleted by page, paragraph, and line number, as required by CRC 3.124(a)(2) and (3). Plaintiff has, however, attached a “black line comparison” of the proposed first amended complaint to the original complaint to the Declaration of Eric A. Panitz, showing the proposed additions and deletions. (Panitz Decl., Exh. F.) Given that Defendants did not object to this motion on this basis, the Court finds that this satisfies the requirements of the rule, in combination with Plaintiff’s assertion that the proposed first amended complaint is intended to add previously unknown defendants Chiller Services and Rigging and Daniel Ragan.

Supporting Declaration

The Declaration of Eric A. Panitz accompanying the motion explains when the facts giving rise to the amended allegations were discovered and why the request for amendment was not made earlier, as required by CRC 3.124(b)(3) and (4). (Panitz Decl. ¶¶ 3-5.) The Declaration also explains why the amendment is necessary and proper, as required by CRC 3.124(b)(2). (Id. ¶ 6.) The Declaration does not explicitly state the effect of the amendment as required by CRC 3.124(b)(1), but it implies that the amendment corrects the names of Plaintiff’s employers. (Ibid.) It also attaches the “black line comparison” discussed above. (Panitz Decl., Exh. F.) Thus, the Court finds that the supporting declaration satisfies the requirements of the rule, especially in light of Defendants’ non-opposition to the motion.

Accordingly, the motion for leave to file a first amended complaint is GRANTED. Plaintiff is to file a stand-alone copy of the first amended complaint on the date of this order. The first amended complaint shall be deemed served as of the date of this order, except that any Defendant that has not yet appeared in the action must be personally served. The remaining Defendants may either stand on their previous answers or file a responsive pleading within 30 days of the service of this order.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 6, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

Case Number: *******4648    Hearing Date: February 26, 2020    Dept: 47

Adrian Hernandez v. Chiller Services Rigging & Demo, et al.

(1) MOTION TO CONSOLIDATE ACTIONS FOR TRIAL; (2) MOTION TO CONTINUE TRIAL

MOVING PARTY: (1)-(2) Defendants Chiller Services Rigging & Demo and Bruce Kolstad

RESPONDING PARTY(S): (1) Plaintiff Adrian Hernandez; (2) Plaintiff Adrian Hernandez (notice of non-opposition filed).

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff was employed by Defendant Chiller Services as a laborer. He alleges various Labor Code violations and retaliation based on his complaints about these violations.

Defendants Chiller Services and Bruce Kolstad move to consolidate this action with 19STCV05656, Jesse Romero v. Chiller Services Rigging & Demo, Bruce Kolstad, and DOES 1-10, inclusive. Defendants also move to continue the trial date.

TENTATIVE RULING:

Defendants Chiller Services Rigging & Demo and Bruce Kolstad’s motion to consolidate is CONTINUED to March 23, 2020, 8:30 a.m. Moving party will be allowed to file and serve a supplemental brief (no greater than 10 pages) on or before March 7, 2020, addressing the issues discussed infra.

Defendants’ motion to continue the trial date is GRANTED. The following scheduled dates are advanced and vacated: March 13, 2020 (Post-Mediation Status Conference), April 21, 2020 (Final Status Conference), and April 27, 2020 (Jury Trial). All of those hearings will be rescheduled at a Trial Setting Conference on March 23, 2020.

DISCUSSION

Motion To Consolidate

Defendants move to consolidate actions *******4648 and 19STCV05656 for purposes of trial only.

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.

(CCP ; 1048(a) (bold emphasis added).)

“Whether separate actions shall be consolidated for trial is a matter within the discretion of the trial court and its decision will not be disturbed on appeal absent a clear showing of abuse of discretion. (Citation omitted.) . . . ‘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.’ (Citation omitted.)” (Estate of Baker (1982) 131 Cal.App.3d 471, 485.)

A motion to consolidate must satisfy the requirements of CRC 3.350 – a rule that neither party mentioned – which provides, in relevant part:

(a) Requirements of motion

(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 nonrepresented parties in all of the cases sought to be consolidated; and

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

(CRC 3.350(a).)

Here, the notice of motion to consolidate does not explicitly list the parties who have appeared in each case, as required by CRC 3.350(a)(1)(A). The Court gathers that Defendants have appeared in both cases, but that is not stated explicitly in the notice as required by the rule. Nor have Defendants listed the names of the respective attorneys of record in the notice of motion as required by CRC 3.350(a)(1)(A). Defendants only state in their notice that “counsel are the same,” without attempting to comply with the requirements of the rule. Nor does the motion contain the captions of both cases, as required by CRC 3.350(a)(1)(B). The notice indicates that 19STCV05656 is related to this case, but it does not include that caption. Nor was the notice of motion filed in both cases, as required by CRC 3.350(a)(1)(C). The supporting memorandum and declarations need only be filed in the lowest numbered case, but the notice of motion must be filed in both, and it was not. Nor does the proof of service explicitly state that it was served on the attorneys for the Plaintiffs in both cases, as required by CRC 3.350(a)(2)(B). Even if the attorney is the same, the proof of service showing that it was served on all attorneys of record in both cases is required to be filed with the motion. (CRC 3.350(a)(2)(B)-(C).)

Even leaving aside all of these procedural deficiencies, the Court is not convinced that consolidating these cases for trial would promote trial convenience and economy. Although there are some overlapping issues and the two cases involve some common facts, they also each involve at least two distinct causes of action, at least one of which may be expected to constitute a significant portion of one trial and have nothing to do with the other: the retaliation cause of action in *******4648. More significantly, although Plaintiffs’ counsel does not raise this point, there is a risk of jury confusion if the cases are consolidated, given that Jesse Romero is the plaintiff in 19STCV05656 but is also expected to be a key witness in *******4648. Defendants point to this fact as a reason to consolidate, given that both trials will involve the same witness, but they will involve the same witness in different capacities. This may very well affect the plaintiff in *******4648 (Hernandez) adversely if, for example, Romero’s testimony, which is critical to his case, is undermined by the (hypothetical) weakness of his own complaint. Plaintiffs’ counsel instead focuses on the reverse issue, arguing that Romero “will be unfairly prejudiced if the jury believes the Defendants [sic] time card fraud rationale for its decision to terminate” Hernandez. (Oppo., at p. 6.) Either way, there is a risk of prejudice.

The Court has noted that there is also a reserved date for a motion to be relieved as counsel in *******4648 on March 23, 2020; to the extent that Defendants rely on the fact that counsel are “the same” in both actions, it appears that may change in the future. In addition, on February 13, 2020, the plaintiff in 19STCV05656, Jesse Romero, named Defendant Daniel Ragan as Doe No. 2 in that case. Thus, the parties are no longer identical, and counsel may not be “the same” once Defendant Ragan makes an appearance in 19STCV05656.

Motion To Continue Trial Date

Defendants move for an order continuing the April 27, 2020 trial date (and, presumably, all related dates) “to allow Defendants sufficient time to conclude discovery, resolve any discovery disputes, evaluate the grounds for and potentially file a motion for summary judgment/adjudication and adequately prepare for trial and/or mediation.” (Notice of Motion, at pp. 1-2.)

“To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain.” (CRC 3.1332(a).) Therefore, “continuances of trials are disfavored.” (CRC 3.1332(c).)

In general, Defendants’ bases for the motion, such as needing time to “adequately prepare for trial and/or medication,” would not constitute good cause under CRC 3.1332(c). However, Defendants have filed a supplemental memorandum in support of their motion indicating that they “presently intend to file a summary adjudication motion.” (Defendants’ Supp. Mem., at p. 1.) They also indicated in their original motion that the deadline to move for summary adjudication passed while the case was automatically stayed due to bankruptcy proceedings. (Declaration of Mia A. Lomedico ¶ 12.)

To the extent Defendants would be prejudiced in their ability to bring a summary adjudication motion pursuant to CCP ; 437c if the trial date remained as scheduled, this interest outweighs the policy set forth in the California Rules of Court that trial dates are firm:

[T]he fast track rules must give way to the statutory right to bring a summary judgment motion. When state rules conflict with statutes, it is the state rule that must give way. (Iverson v. Superior Court (1985) 167 Cal. App. 3d 544, 547–548 [213 Cal. Rptr. 399] [striking down rule 317(a) of the California Rules of Court to the degree to which it required filing opposition papers five “court days” before the hearing when the relevant statute allowed filing such papers five “calendar” days before the hearing].) That principle would seem to have particular force in a case such as this one, where the state rule, by its terms, is merely a “goal” and courts are only directed that they “should” process all cases within two years of filing.

(Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923 (bold emphasis added).)

Thus, good cause for the requested continuance of the trial date exists.

In ruling on a motion for continuance of the trial date, other factors the court is to consider are set forth in CRC Rule 3.1332(d)(1)-(11), and those factors include, as relevant to this motion:

• The proximity of the trial date – Here, the trial date is currently set for April 27, 2020 – approximately two months from the date this motion is to be heard.
  Whether there was any previous continuance, extension of time, or delay of trial due to any party – The trial has not been previously continued.

• The length of the continuance requested – three to six months.

• The availability of alternative means to address the problem that gave rise to the motion or application for a continuance – There is no feasible means to address the problem, other than to advance the hearing date on the MSJ, which would not address the incomplete discovery that was also due to the automatic stay.

• The prejudice that parties or witnesses will suffer as a result of the continuance – There does not appear to be any prejudice that would result from the continuance.

• Whether all parties have stipulated to a continuance – Plaintiff does not oppose this motion.

• Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance – The interests of justice are served by continuing the trial date to permit Defendants’ motion for summary adjudication to be heard and discovery to be completed.

• Any other fact or circumstance relevant to the fair determination of the motion or application – This action was filed on November 13, 2018, and therefore it will be two years old in November 2020.

• Conclusion

  Taken together, the foregoing factors do not weigh against a finding of good cause for continuance of the trial date. Thus, the motion to continue the trial date is GRANTED.

  The following scheduled dates are advanced and vacated: March 13, 2020 (Post-Mediation Status Conference), April 21, 2020 (Final Status Conference), and April 27, 2020 (Jury Trial). All of those hearings will be rescheduled at a Trial Setting Conference on March 23, 2020.

  Moving party to give notice, unless waived.

  IT IS SO ORDERED.

  Dated: February 26, 2020 ___________________________________

  Randolph M. Hammock

  Judge of the Superior Court

  Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org