Anna Avenue associates LLC vs. SandagOpposition OtherCal. Super. - 4th Dist.January 3, 2018oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Christie Bodnar Swiss, Esq. (State Bar No. 245151) Justin D. Witzmann, Esq. (State Bar No. 292019) COLLINS COLLINS MUIR +STEWART LLP 2011 Palomar Airport Rd., Suite 207 Carlsbad, CA 92011 (760) 274-2110 -- FAX (760) 274-2111 ELECTRONICALLY FILED Superior Court of California, County of San Diego 06/18/2018 at 02:23:00 FM Clerk of the Superior Court By Jessica Pascual, Deputy Clerk Attorneys for Defendant KLEINFELDER, INC. (erroneously sued and served as KLEINFELDER CONSTRUCTION SERVICES, a California Corporation) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO - CENTRAL DIVISION ANNA AVENUE ASSOCIATES, LLC, a California LLC and JOHN SMITH EARTHWORKS, INC., CASE NO. 37-2018-00000231-CU-EI-CTL [Assigned to Judge Joel R. Wohlfeil, Dept. C-73] OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE DISCOVERY OF CASE NO. 37-2016-00009321-CU-EI-CTL WITH CASE NO. 37-2018-00000231-CU-EI-CTL Plaintiffs, VS. SANDAG, a government agency; SAN DIEGO COUNTY REGIONAL TRANSPORTATION COMMISSION, a government agency; CITY OF SAN DIEGO, a government agency; METROPOLITAN TRANSIT SYSTEM, a government agency; NORTH COUNTY TRANSIT SYSTEM, a government agency; WSP USA, a New York corporation; KLEINFELDER CONSTRUCTION SERVICES, a California corporation; DOES 1-50, inclusive, DATE: June 29, 2018 TIME: 9:00 a.m. DEPT: C-73 Complaint Filed: 01/03/2018 Trial Date: None set Defendants. N e N r N r N e N e N e N e N e N e N e N e N e N e N e N N a N N N N N r 20936 1 OPPOSITION TO PLAINTIFF’S MOTION TO CONSOLIDATE DISCOVERY oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs’ motion to consolidate discovery should be denied because Plaintiffs, the moving parties, do not meet their burden showing that the two actions before this Court are sufficiently related to support consolidating discovery. Plaintiffs, Anna Avenue LLC and John Smith Earthworks, Inc., seek to consolidate discovery on two cases pending before this Court: (1) an eminent domain case entitled SANDAG v. Anna Avenue LLC, et al., Case No. 2016-00009321-CU- EI-CTL (“2016 Action”) and (2) a construction defect case entitled Anna Avenue LLC v. SANDAG, et al., Case No. 37-2018-00000231-CU-EI-CT CTL (“2018 Action.”) Although these two lawsuits are related in the sense that each concern the same commercial property, there are distinct issues in the 2016 Action that do not concern the parties to the 2018 Action whatsoever. Therefore, consolidating discovery would unduly prejudice these parties, including Kleinfelder, Inc. (“Kleinfelder”), as it would subject these parties to the significant unnecessary expense of discovery irrelevant to the claims charged against them. As such, the Court should exercise its discretion and deny the motion to consolidate discovery. II. STATUTORY AUTHORITY Code of Civil Procedure (“CCP”) section 1048 provides 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. (Code Civ. Proc. § 1048.) The question of consolidation is subject to the court’s discretion. (Sales Dimensions v. Superior Court (1979) 90 Cal. App. 3d 757, 764.) III. PLAINTIFFS’ MOTION SHOULD BE DENIED. Plaintiffs contend that the cases are sufficiently related to warrant consolidation of discovery because both cases concern the property located at 5216 Anna Avenue, the same project and the planning and construction process that took place during that project. (See Plaintiffs’ Motion to Consolidate (“Mtn.”), p. 2, 1.11-13.) This overly simplistic view of the two cases is misguided. As such, the Court should exercise its discretion and deny the motion. 20936 2 OPPOSITION TO PLAINTIFF’S MOTION TO CONSOLIDATE DISCOVERY oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 The 2016 Action is an eminent domain lawsuit filed by SANDAG, a public agency, concerning SANDAG’s temporary occupation of Plaintiff Anna Avenue LLC’s property located at 5216 Anna Avenue, San Diego, CA, 92110 (“Anna Avenue Property”), in connection with a trolley line extension project commonly referred to as the San Diego River Double Track Project (the “Project.”) During the eminent domain process, SANDAG provided an appraisal for temporary acquisition of Anna Avenue Property by eminent domain. Anna Avenue LLC rejected SANDAG?’s offer to purchase. (2016 Action Complaint, qq 14-15.) The trolley line extension work for which occupation of the Anna Avenue Property was necessary has been completed and the property has been returned to Anna Avenue LLC in accordance with an agreement between Anna Avenue LLC and SANDAG. The only remaining issue to be litigated in the 2016 Action is the issue of just compensation - how much money should be paid by SANDAG to Anna Avenue LLC for its temporary use and acquisition of the Anna Avenue Property through eminent domain proceedings to complete its work on the Project. By contrast, the 2018 Action concerns not only inverse condemnation claims by Anna Avenue LLC and John Smith Earthworks, Inc. against SANDAG, but also causes of action for professional negligence charged against Kleinfelder and WSP USA for services these entities allegedly performed for SANDAG in connection with the Project, amongst others. (See e.g. 2018 Action Second Amended Complaint, |] 51-62.) The issue of just compensation does not concern these parties whatsoever. Accordingly, subjecting Kleinfelder to extensive depositions and other discovery that concerns irrelevant issues such as compensation would unduly prejudice Kleinfelder because it would subject it to discovery that bears no relationship to the claims charged against it at considerable expense. Accordingly, Plaintiffs’ motion should be denied. Moreover, eminent domain actions have their own statutory discovery rules distinct from the Civil Discovery Act. (See Code Civ. Proc. § 1258.010, et seq.) For instance, “statements of valuation” regarding the property at issue must be prepared in eminent domain proceedings. (See Code Civ. Proc. § 1258.210.) These “statements of valuation” do not exist in any other civil case, including the 2018 Action. Rules pertaining to disclosure and designation of expert witnesses differ in eminent domain proceedings as well. (See e.g. Code Civ. Proc. § 1258.210.) This is further 20936 3 OPPOSITION TO PLAINTIFF’S MOTION TO CONSOLIDATE DISCOVERY oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 evidence of the resulting prejudice Kleinfelder is faced with should these matters be consolidated. According to Plaintiffs, SANDAG has taken two depositions to date (1) John Smith and (2) Michael Pallamary in the 2016 Action. (Mtn., p. 2, I. 13-15.) Kleinfelder, who is not a party to that 2016 Action, was not afforded the opportunity to attend either deposition. In the event that this Court were to grant Plaintiffs’ motion to consolidate discovery, Kleinfelder requests that the Order permit any persons that have been previously deposed in either of the two actions (including, but not limited to, John Smith and Michael Pallamary) to be deposed by the parties that were not afforded the opportunity to depose those witnesses previously. IV. CONCLUSION Plaintiffs’ motion to consolidate discovery should be denied because consolidating discovery would unduly prejudice parties such as Kleinfelder by subjecting such parties to considerable expense associated with discovery unrelated to the claims charged against them. In the event the Court is inclined to grant the motion, Kleinfelder respectfully requests an Order permitting it to take the depositions of any person that has been previously deposed in the 2016 Action, to which Kleinfelder is not a party. DATED: June 18,2018 COLLINS COLLINS MUIR +STEWART LLP STIN D. WITZKIANN CHRISTIE BODNAR SWISS Attorneys for Defendant KLEINFELDER, INC. (erroneously sued and served as KLEINFELDER CONSTRUCTION SERVICES, a California Corporation) 20936 4 OPPOSITION TO PLAINTIFF’S MOTION TO CONSOLIDATE DISCOVERY oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of San Diego. ) I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is 2011 Palomar Airport Rd., Suite 207, Carlsbad, California 92011. On this date, I served the foregoing document described as OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE DISCOVERY OF CASE NO. 37-2016-00009321-CU-EI-CTL WITH CASE NO. 37-2018-00000231-CU-EI-CTL on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST |] (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Carlsbad, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Carlsbad, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [| 1 (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Carlsbad, California. X BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY L (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: (Date) at (Time) [| 1 FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [1 BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (760) 274-2111 indicated all pages were transmitted. [1 (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on JUNE 18, 2018 at Carlsbad, California.
