1)Plaintiff Dana Point Automotive Inc.s Motion to Consolidate

2)Status Conference

The Motion to Consolidate

CCP § 1148 provides trial courts with discretion to consolidate pending actions involving common questions of fact or law.  These cases involve common questions of fact or law and consolidation is appropriate.  The purpose of consolidation is to enhance trial court efficiency and to avoid the substantial danger of inconsistent adjudications.  Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.  All that the moving party need show is that the issues in each case are basically the same, and that “economy and convenience” would be served by a joint trial.  Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867

The court is not persuaded that the City needed to wait almost a year to file a separate action.  Some of the City’s claims may not have existed at the time the deadline for filing of a cross-complaint occurred but even on the City’s own version of the events, leave to file a cross-complaint, or the filing of a separate lawsuit, could have occurred as early as October 2, 2017.  Instead the City waited approximately 5 months after October 2, 2017 before filing the 2nd lawsuit.  The court reluctantly accepts, however, that efficiency would be undermined if these 2 actions were to be tried separately.  The actions involve common questions of fact and law such that consolidation would enhance efficiency and avoid the danger of inconsistent adjudications.  Accordingly, the City’s motion to consolidate is grantedVolkmann v. City of Dana Point, Case No. 2017-00914962 (“the 1staction”), and City of Dana Point v. Volkmann, Case No. 2018-00972764 (“the 2nd action”), are consolidated for all purposes.

While the trial date of July 16, 2018 in the 1st action is vacated, the court considers that any delay resulting from the filing of the 2nd action and its consolidation with the 1st action should be minimized.  The parties should be prepared to discuss a new trial date with the court at the hearing.  The court expects the parties to be in a position to try the consolidated case in 2018 given that the issues in the 2 separate actions overlap as a result of which discovery taken in one should be relevant in the other.

The parties should also consider stipulating that the complaint in the 2ndaction be deemed to be the cross-complaint in the Consolidated Action so as to minimize any delay caused by the failure to file a cross-complaint in the 1st action, and to prevent confusion at trial that may arise out of the fact that there are 2 plaintiffs and 2 defendants in the Consolidated Action.

The Demurrer

Although the City created unnecessary confusion and has caused equally unnecessary delay by filing a separate action rather than seeking leave to file a cross-complaint in the 1st action in May 2017 or even later in October 2017, that confusion is not a sufficient ground upon which to sustain the demurrer especially in light of this court’s order on the Motion to Consolidate.  The Volkmanns’ demurrer to the City’s complaint is overruled. 

Both Defendants’ and Plaintiff’s requests for judicial notice are granted in their entirety.

The City is to give notice of the rulings on the Motion to Consolidate and the Demurrer.

The lead case will be the 1st lawsuit under Case No. 2017-00914962.