ROBERT L. WERNER, INDIVIDUAL AND AS TRUSTEE OF THE WERNER FAMILY TRUST OF MAY 31, 1987, DATED MAY 31,1987, ET AL. VS MISSSAK AZIRIAN, AS INDIVIDUAL AND AS CO-TRUSTEE FOR AZIRIAN FAMILY TRUST DATED SEPT. 26, 1983, ET AL.

Tentative Rulings

Case Number: *******1176 Hearing Date: November 2, 2021 Dept: M

CASE NAME: Werner, et al. v. Aziria, et al.

CASE NO.: *******1176

MOTION: Motion to Consolidate

HEARING DATE: 11/2/2021

Legal Standard

Under Code of Civil Procedure Section 1048(a), a court may order separate actions consolidated for joint trial when they involve common questions of law or fact. The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both ;actions, 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.) ; ; ;

California Rules of Court Rule 3.350 provides requirements that must be met for a motion to consolidate. Under the local rules for the Superior Court of California, County of Los Angeles, cases must be deemed related before they can be consolidated. (See Local Rules, Rule 3.3 (f), (g) [“Cases may not be consolidated unless they are in the same department. . . .”]; see also CRC Rule 3.300 .) Once the requirements set forth in the rules are fulfilled, courts have “discretion to consolidate actions involving common questions of law or fact.” (Todd-Stenberg v. Dalkon Shield Claimants Tr. (1996) 48 Cal.App.4th 976, 978-979.)

Analysis

On October 6, 2021, Defendants and Cross-Complainants, William B. Adams and Jacqueline A. Adams (the “Adams Defendants”) filed the instant motion to consolidate. The Adams Defendants argue that the Werner. et al. v. Azirian, et al. and the Crestbrook Insurance Company v. Azirian, et al cases should be consolidated because both involve common issues of law or fact. Relying on Fireman's Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, the Adams Defendants argue that California law does not preclude a subrogation action from being consolidated with a first party claim. In Fireman’s Fund, the court explained:

The right of subrogation is purely derivative. An insurer entitled to subrogation is in the same position as an assignee of the insured's claim, and succeeds only to the rights of the insured. The subrogated insurer is said to “ 'stand in the shoes' ” of its insured, because it has no greater rights than the insured and is subject to the same defenses assertable against the insured.

(Fireman's Fund, 65 Cal.App.4th at 1292.)

By way of procedural background, on August 28, 2020, Plaintiffs Robert L. Werner and Susan L. Werner, as individuals and as trustees entitled the Werner Family Trust dated May 31, 1987, filed Werner. et al. v. Azirian, et al, case no. *******1176. The Werner complaint contains the following causes of action for: l) negligence; 2) trespass; 3) public nuisance; and 4) private nuisance. On November 20, 2020, Plaintiff Crestbrook Insurance Company filed the subrogation action: Crestbrook Insurance Company v. Azirian, et al, case no. 20STCV44729. The Crestbrook complaint contains a cause of action for general negligence. Plaintiff Crestbrook Insurance Company claims it is subrogated to the rights of its insured and entitled to enforce the remedies of James and Natalie Bloomingdale, both of whom are defendants in the Werner matter. On September 8, 2021, the Court found that cases, *******1176 and 20STCV44729, to be related within the meaning of California Rules of Court, rule 3.300(a) with *******1176 designated as the lead case.

Defendants Missak Azirian and Lena Azirian, as individuals and as Co-Trustees for Azirian Family Trust Dated Sept. 26, 1983 (“Azirian Defendants”), oppose the consolidation motion arguing that there are no common issues of law or fact. The Azirian Defendants argue that Fireman's Fund is inapplicable because the cases at issue here do not involve insurance carriers battling with each other over costs incurred in defending their common insured. The Azirian Defendants further argue that they will be prejudiced by consolidation because the jury will improperly assume that since one homeowner has insurance, that other homeowners also have insurance. The Werner Plaintiffs also oppose this motion for consolidation based upon this same argument.

The Werner Plaintiffs also contend that there is an inherent conflict between Crestbrook and its insured, the Bloomingdales because the Bloomingdales sued the Adams Defendants (in a cross-complaint) and not the Azirian Defendants. The Werner Plaintiffs cite Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 555 in support of this argument. There, the court explained that “The Policy requirements reflect the recognition the Hodges and State Farm might have differing interests in the event of a loss, and indeed, the conflict between the Hodges' and State Farm's interests in the outcome of the construction defect lawsuit is palpable and real. State Farm's interests are not adequately represented by the Hodges because they have an incentive to advance their interests in the construction defect lawsuit at the expense of protecting State Farm's subrogation rights.” (Id. at 555.) The Werner Plaintiffs also argue that the “made whole doctrine” is an impediment to the insurers’ claims.

The Adams Defendants and Crestbrook Insurance filed separate replies in support of the motion. The Adams Defendants argue that non-consolidation of the cases may result in inconsistent judgment. The Adams Defendants further argue that the opposing parties are engaging in speculation as to Evidence Code section 1155 and whether a jury would or would not assume certain things. Crestbrook Insurance also argues that both cases arise from the same alleged landslide and address the same questions of law and fact as to Defendant Azirians’ negligence. Crestbrook Insurance argues that the Azirians’ negligence is a predominant and significant issue of law and fact in Crestbrook’s case.

With respect to Fireman's Fund, the court agrees that it is factually and legally distinguishable from this case. However, the Hodge case does not advance the arguments made by the Werner Plaintiffs. In Hodge, the court ultimately found that the insurer was entitled to intervene as a matter of right in the underlying action because, among other things, the insured did not adequately represent the insurers’ subrogation rights. (See Hodge, 130 Cal.App.4th at 550, 553-556.) The Hodge Court also addressed the “made whole doctrine” in its opinion and noted, quoting another court, that “[i]t is true that the failure of the plaintiff to recover from a defendant would likewise deprive an intervener of the right to recover, since a decision on the merits would affect the rights of both plaintiff and intervener to collect from defendant.” (Id. at 553 [quoting Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal.App.3d 912, 916].) However, the Court also found that intervention would prevent a multiplicity of suits. (Id. at 554.)

Here, Adams Defendants and Crestbrook Insurance have demonstrated that the lawsuits involve common issues of fact, specifically, who is responsible for the landslide that caused damage. Both suits relate to the same incident. Here, a consolidation of the actions would promote judicial economy. Therefore, the motion to consolidate is GRANTED.