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Brian D. Whelan, Esq. (SBN 256534) E-FILED
WHELAN LAW GROUP, A Professional Corporation 4/7/2021 11:57 AM
1827 East Fir Avenue, Suite 110 Superior Court of California
Fresno, California 93720 County of Fresno
Telephone: (559) 437-1079 By: A. Ramos, Deputy
Facsimile: (559) 437-1720
E-mail: brian@whelanlawgroup.com
QQUI‘P
Attorneys for: Defendant DANIEL ASHLEY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
00
COUNTY OF FRESNO, UNLIMITED CIVIL DIVISION
10
KATHLEEN REGAN SLATIC, ) Case No. 19CECG04036
11 )
Plaintiff, )
DEFENDANT’S OPPOSITION T0
12 )
PLAINTIFF’S MOTION TO
v. ) CONSOLIDATE
13 )
DANIEL PAUL ASHLEY and DOES 1 )
14 through 20, inclusive, ) Date: April 20, 2021
) Time: 3:30 p.m.
15 Defendants. ) Dept: 502
)
16 ) Action Filed: November 6, 2019
) Trial Date: None Set
17
18 Defendant DANIEL PAUL ASHLEY (“Defendant”), named as a defendant in Plaintiff
19 KATHLEEN REGAN SLATIC’s (“Plaintiff”) Complaint as DANIEL PAUL ASHLEY, hereby
20 submits the following Memorandum of Points and Authorities in support of his Opposition to
21 Plaintiff‘s Motion to Consolidate.
22 I.
23 INTRODUCTION.
24 Plaintiff Slatic’s motion is a thinly veiled attempt to strip Defendant Daniel Ashley of a
25 fair trial in this case. By combining this case with the “Complex” desiglated multi-party
26 Defamation Case (“Complex Case”) brought by Daniel Ashley, Plaintiff Slatic would achieve the
27 goal of getting improper character witnesses to give highly prejudicial statements that would
28 otherwise never be admitted in this case. Moreover, itwould force Danie] Ashley to have to
Mum 14w Group,
A profgssmml Corpomuon
no
1327 East Fir Avenue, Suite
ersno, 93720
California 1
5594374079
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559437-1720
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DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION T0 CONSOLIDATE
make the choice between prosecuting all 0f the defamation claims in his case (which include
defamatory statements that he raped other men and women unrelated to Plaintiff Slatic) or
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abandoning them to avoid the unnecessary and unfair risk that a jury will think “where there’s
smoke, there’s fire” and give more credibility to Plaintiff Slatic’s allegations
— resulting solely
LII
from hearing multiple defamatory statements that are unique to the Complex Case.
Aside from the fact that consolidation should be denied because it would unfairly
prejudice Daniel Ashley in this case, it also should be denied because Plaintiff Slatic cannot meet
her burden to show that there
\OOONQ is sufficient commonality between the two cases. The Complex
Case deals not only with statements made by Plaintiff Slatic, but also with separate unrelated
statements made by several other Defendants claiming that Daniel Ashley raped them and 0r
10
other men and women. Indeed, there is even a cross complaint in the Complex Case with n0
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nexus whatsoever to Ms. Slatic’s claims. Thus, combining the two cases will not save time and
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will only confuse the jury.
13
Further, per the Rules 0f Court, and given the complex designation in the Complex Case,
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the cases are per se not “related cases.” (Rule of Court. Rules of Court, Rule 3.300(e).)
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Lastly, the motion should be denied because it iseffectively a motion for entire
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consolidation of both cases, and yet both cases do not contain identical parties (as required
- see
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below). Additionally, since the Complex Case isalready set for trial and this one is not,
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combining the two cases together will lead to delays for the Complex Case — indeed Ms. Slatic
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asks this court to vacate the tn'al date. A11 ofthese factors weigh against consolidation. Plaintiff
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Slatic’s motion should be denied.
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II.
22
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BACKGROUND FACTS.
A. Non-Complex Case (Fresno County Superior Court Case No.
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19CECG040361.
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Parties: Plaintiff Kathleen Regan Slatic and Defendant Danie] Ashley.
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Claims: Sexual assault, gender violence, and domestic violence.
27
Background Allegations: The complaint is based 0n two alleged incidents that
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Whelan Law Group, purportedly took place in December 201 6: Plaintiff and Defendant were in a dating relationship,
A Professional Corpsman
Em
1827 F1: Avenue, Sum: 11o
Fresno, callromm 93720 2
Tel: 559743771079
Fm: 5594374720
DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE
and the relationship ended shortly before an alleged incident in Defendant’s dorm room where
Defendant allegedly had non—consensual anal sex with Plaintiff. Shortly afier that alleged
incident, Defendant and Plaintiff allegedly met up again in Defendant’s dorm room and
Defendant allegedly pinned Plaintiff down and choked her.
B. Complex Case (Fresno Countv Superior Court Case No. 19CECG04593) —
|Designated as Complexl.
OOOQQUl-h
m: Plaintiff Daniel Ashley and Defendants Kathleen Regan Slatic, Kimberly Ann
Slatic, Peyton Nichole Burnett, Sierra Nicole Jones, Anna Rieffel, Dominic Manfredo, Rachel
Glusak, and Cydney Kay Moon
Mg: Defamation.
10
Background Allegations: The complaint is based 0n a conspiracy to defame Plaintiff
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which began with a public smear campaign 0n or around August 2019. The Defendants started
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spreading lies online that Plaintiff was a rapist who had raped multiple women, including
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Defendant Slatic, Defendant Burnett, Defendant Jones, as well as several other women and gay
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men. This campaign began in response to Plaintiffs social media post where he shared the news
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that he had been accepted into USCF Medical School. Defendants also spread the lies to the
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UCSF administration which caused UCSF to pressure Plaintiff to withdraw from school in order
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to extinguish the negative publicity that UCSF was receiving.
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III.
19
LAW AND DISCUSSION.
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A. Consolidation Must Be Denied Because It Will Jeopardize Danny Ashley’s
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Right to a Fair Trial in the Non-Complex Case.‘
“Consolidation under Code of Civil Procedure section 1048 is permissive, and it is for the
22
trial court to detelmine whether the consolidation isfor all purposes or for trial only. [Citation.]”
23
Hamilton V. Asbestos Com., (2000) 22 Cal. 4th 1127, 1149. Consolidation should be denied if it
24
jeopardizes a defendant's fundamental right t0 a fair trial, or could create confusion at tn'al.See
25
26
1
California Code of Civil Procedure § 1048, which specifies when cases may be
27 consolidated, is derived from Federal Rule of Civil Procedure 42. As such, cases decided upon the
federal rule are persuasive authority for procedural questions arising under the California statute.
28
Wham Law Group,
A Professional
Corporation
(See Weill & Brown, Ca1., Prac. Guide: Civ. Proc. Before Trial (The Rutter Group - 201 3) 12:348,
F“ Avenue) Sum no
1327 East
p. 12(1)-65.)
Fresnm, California 93720 3
559437-1079
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Fax: 559743771720
DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION TO CONSOLIDATE
Cal. Code Civ. Proc., § 1048(a); see also Todd-Stenberg v. Daikon Shield Claimants Trust,
(1996) 48 Ca1.App.4th 976, 978-79. Indeed, while each case 0n consolidation presents its own
facts and circumstances, trialcourts generally consider: (1) whether consolidation would
adversely prejudice a party; (2) whether joining the actions involved would make the trial too
confusing or complex for a jury; and (3) whether granting consolidation would delay the trialof
\DmflQMAMNH
any of the cases involved. See State Farm Mut. Auto. Ins. Co. v. Sup. Court, (1956) 47 Ca1.2d
428, 430-43 1.
With this motion, Plaintiff seeks to sneak improper character witnesses and unrelated
defamatory statements into the Non—Complex Case under the guise ofjudicial efficiency.
Regardless of the Court's instructions, it will be nearly impossible for jurors to build walls in
their minds so that evidence relating to each Defendant in the Complex Case will not factor into
their decisions about the Non-Complex Case. And in fact, several 0f the Defamation
Defendants, who have never met Kathleen Slatic nor Daniel Ashley} do not have any relevant or
admissible testimony to offer in the Non—Complex Case.
Furthermore, potential evidence and testimony in the Complex Case concerning
Defendants Peyton Nichole Burnett’s and Sierra Nicole Jones’ defamatory statements that Danny
Ashley raped them (as well as the other Defendants’ defamatory statements that Daniel Ashley
NNNNNNN—Iu—Au—Ab—AI—AHHHH—A
raped multiple other
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women and gay men), have nothing to do with Plaintiff Slatic’s Non-
Complex Case and will sway how the jury Views the allegations and testimony in the Non-
Complex Case.
If the two cases are tried together, Daniel Ashley will be faced with the choice of having
to abandon the defamation claims based on the lies that he raped other men and women or run
the risk that the jury will find Plaintiff Slatic’s Non-Complex Case credible afier hearing
multiple, unrelated defamatory statements about Daniel Ashley tied to the unlawful smear
campaign that is the basis for the Complex Case.
27 2
For example, in the Complex Case, both Defendants Rachel Glusak and Cydney Fang (a.k.a
Cydney Moon) filed declarations where they state, under penalty ofpexjury, that they do not know,
28 See Fang. Decl. (Filed 3 -1 1-20),
WhamLaw Group, and have never met, either Kathleen Regan Slatic 0r Daniel Ashley.
AProfcssmnal Corporation
Para 4;
1827 East Fxr Avenue, Suite 110
Fresno, Caluramm 93720
see also Glusak Decl. (Filed 2-28-20), Pgas. 3 & 6.
559-437-1079
TE]:
Fm 55974374720
DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE
B. Separately, Consolidation Should Be Denied Because Plaintiff Slatic Fails to
Demonstrate Sufficient Commonalig.
[\J
The party moving for consolidation bears the burden 0f showing that common issues
abound. "[T]he burden isnot on the party opposing aggregation to show divergences." I_ng¢_:
Repetitive Stress Injug Litig., (2nd Cir. 1993) 11 F.3d 368, 374. See also Single Chip Sys.
Cong. v. InteImec IP Com, (S.D. Cal. 2007) 495 F. Supp. 2d 1052, 1057: “The party seeking
economy and convenience
\OOOQQUIAUJ
consolidation bears the burden 0f establishing that the judicial
benefits of consolidation outweigh any prejudice. [Citation.]”
Consolidation is not appropriate if individualized issues predominate. See e.g., Tumbling
v. Merced Irr.Dist. No. (E.D. Cal. 2010) 2010 WL 1340546, at *4. See also Medlock V.Taco
10
Bell Cogp., (ED. Cal. 2009) 2009 WL 1444343, at *1:
11
“Once a common question has been established, “consolidation is
within the broad discretion of the distn'ct court.” Paxonet
12
Communs., Inc. v. TranSwitch C0m., 303 F.Supp.2d 1027,
1028—1029 (N.D.Ca1.2003). But “even where cases involve some
13
common issues 0f law or fact, consolidation may be inappropriate
where individual issues predominate.” See In re Consol. Parlodel
14
Litig., 182 F.R.D. 441, 447 (D.N.J.1998). T0 determine whether to
consolidate, the interest ofjudicial convenience is weighed against
15
the potential for delay, confusion, and prejudice caused by
consolidation. m. Factors such as differing trial dates or stages of
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discovery usually weigh against consolidation. 9 Wright & Miller,
17
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Federal Practice and Procedure §
bears the burden of showing consolidation is appropriate.
Consol. Parlodel Litig., 182 F.R.D. at 447.”
m
2383 (2006). The moving party
In Tumbling, although both Plaintiffs asserted race discrimination and retaliation claims
19
under Title VII, the court held that: “discrimination claims are ‘fact intensive’” and thus, “the
20
common question of law does not promote judicial efficiency to the extent Plaintiffs suggest.”
21
22 Tumbling v. Merced Irr.Dist, s_um, 2010 WL 1340546, at *4. Thus, the court denied Plaintiffs’
motion to consolidate because the claims necessitated individualized inquires. fl.
23
Here, even more so, the same is true for the Complex Case. Each Defendant in that case
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made statements at separate times, each of which constitutes a separate cause of action for
25
defamation. Moreover, many 0f the claims in the Complex Case are by parties having professed
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Wham Law Group,
A Professional Coxpomno n
1827 East Fir Avenue, Suite llO
camomm 93720
Fresno, 5
Tel: 559-437-107‘1
Fax; 559743771720
DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE
under oath to have no knowledge of Ms. Slatic 0r her claims. Further, Slatic’s defamation, based
only in part on her baseless assault claim, is only one 0f the many defamatory statements at issue
in the Complex Case. The claims against all 0f the Defendants in the Complex Case will
#WN
necessitate individualized inquires. Thus, joining the Complex Case with the Non-Complex
Case will not save time. Indeed, itwill have the opposite impact.
VGUI
C. Separately. Plaintiff Slatic’s Motion. Which Is Essentially A Motion for
Complete Consolidation, Should Be Denied Because the Parties in Both
Cases Are Not Identical.
Plaintiff Slatic not only seeks to consolidate both cases for trial,she also seeks
consolidation for purposes of discovery — essentially, she seeks complete consolidation.
However, complete consolidation requires that both cases contain identical parties:
10
“There are two types of consolidation: a complete consolidation
11
resulting in a single action, and a consolidation of separate actions
for trial. Under the former procedure, which may be utilized where
12
the parties are identical [emphasis added] and the causes could
have been joined, the pleadings are regarded as merged, one set 0f
13
findings is made, and one judgment is rendered. In a consolidation
for trial,the pleadings, verdicts, findings and judgments are kept
14
separate; the actions are simply tried together for the sake 0f
convenience and judicial economy.” Sanchez v. Superior Court,
15
(1988) 203 Cal.App.3d 1391, 1396.
16
Since the Complex Case and the Non-Complex Case do not contain identical parties,
17
Plaintiff Slatic’s request for complete consolidation should be denied.
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D. Additional Considerations Weighing Against Consolidation.
19
If the Court were to consolidate the Non-Complex Case with the Complex Case, itwill
20
result in the unnecessary delay of the resolution 0f the non—related claims contained in the
21
Complex Case since the Complex Case isalready set for trial, whereas the Non-Complex Case is
22 — there
not. And in fact, the Non—Complex Case is not even at issue is a pending Motion to
23
Strike portions 0f Plaintiff Slatic’s Second Amended Complaint which is currently set for
24 “whether granting
September 16, 2021. (These facts implicate State Farm, supra, factor no. 3:
25
consolidation would delay the trial of any of the cases involved”). In addition, combing a case
26 Non-Complex Case)
designated complex (the Complex Case) with a non-complex case (the will
27
also likely confuse/add complexity to the Non-Complex Case. For these additional reasons,
28
Wham Law Group) Plaintiff Slatic’s motion should be denied.
A pmfcssmnal Cmpommn
1827 East Fm Avenue, Suite 110
Fresno, Canfomm 93720 6
Tel: 55943771079
Fax: 55943771720
DEFENDANT'S OPPOSITION T0 PLAINTIFF’S MOTION T0 CONSOLIDATE
IV.
CONCLUSION.
For the foregoing reasons, Defendant Ashley respectfully requests that this Court deny
Plaintiffs Motion.
\IamA
Dated: April 7, 2021 WHELAN AW GROUP, '
AProf Corp n
‘
m
lfy Brian D. helan,
Attorneys efendant DANIEL ASHLEY
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Wham Law Group,
A professional Corpomuon
1527 Easx Fix Avenue, Suite no
Fresno, Califomiz 95720 7
Tel: 559743771079
559437-1720
Fax:
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION T0 CONSOLIDATE
PROOF OF SERVICE
I am employed in the County of Fresno, State of California. I am over the age of
18 years and not a party to this action. My business address is: Whelan Law Group, A
Professional Corporation, 1827 East Fir Avenue, Suite 110, Fresno, California 93720. On April
7, 2021, Icaused to be served the within document(s): DEFENDANT’S OPPOSITION T0
PLAINTIFF’S MOTION TO CONSOLIDATE
( ) VIA FAX: by causing to be transmitted via facsimile the document(s) listed above to
the fax number(s) set forth below on this date.
( )
\OWQQUI-k BY HAND DELIVERY: by causing t0 be personally delivered the document(s) listed
above to the person(s) at the address(es) set forth below on this date.
( ) BY MAIL: by placing the envelope, addressed to addresses below, for collection and
mailing on the date following our ordinary business practices. I am readily familiar with
this business' practice for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, it is deposited in the
ordinary course of business with the United States Postal Service in a sealed envelope
10
with postage fully paid.
11
( ) BY PERSONAL SERVICE: by causing document(s) listed above to be personally
served to the person(s) at the address(es) set forth below.
12
13 ( ) BY EXPRESS MAIL DELIVERY: by causing document(s) listed above to be
deposited with the United States Express Mail Service for delivery to the person(s) at the
address(es) set forth below.
14
15 (X) BY ELECTRONIC SERVICE: by causing document(s) listed above to be
electronically mailed t0 the e-mail addresses listed below.
16
Justin Vecchiarelli, Esq.
17 Proper Defense Law Corporation
677 W. Palmdon Drive, Suite #201 ,
18 Fresno, CA 93704
Tel: (559) 825-3800
19 Fax: (559) 705-1870
E-Mail:
20 i.ustingamroperdefenselaw.com
‘linda@properdefenselaw.com
21
22 Counsel for Kathleen Slatic
23
I declare under penalty of perjury under the laws of the State of California that the
24
foregoing is true and correct.
25
Executed on April 7, 2021, at Fresno, California.
26
27
'L
28
Whelan 13w Gmup,
STACEY VUE
A professional Corporation
1527 East Fir Avenue, suite 11o
Fresno, cahfumia 93720 8
Tel: 559743771079
5594374720
Fax:
DEFENDANT‘S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE
Preview
Brian D. Whelan, Esq. (SBN 256534) E-FILED WHELAN LAW GROUP, A Professional Corporation 4/7/2021 11:57 AM 1827 East Fir Avenue, Suite 110 Superior Court of California Fresno, California 93720 County of Fresno Telephone: (559) 437-1079 By: A. Ramos, Deputy Facsimile: (559) 437-1720 E-mail: brian@whelanlawgroup.com QQUI‘P Attorneys for: Defendant DANIEL ASHLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA 00 COUNTY OF FRESNO, UNLIMITED CIVIL DIVISION 10 KATHLEEN REGAN SLATIC, ) Case No. 19CECG04036 11 ) Plaintiff, ) DEFENDANT’S OPPOSITION T0 12 ) PLAINTIFF’S MOTION TO v. ) CONSOLIDATE 13 ) DANIEL PAUL ASHLEY and DOES 1 ) 14 through 20, inclusive, ) Date: April 20, 2021 ) Time: 3:30 p.m. 15 Defendants. ) Dept: 502 ) 16 ) Action Filed: November 6, 2019 ) Trial Date: None Set 17 18 Defendant DANIEL PAUL ASHLEY (“Defendant”), named as a defendant in Plaintiff 19 KATHLEEN REGAN SLATIC’s (“Plaintiff”) Complaint as DANIEL PAUL ASHLEY, hereby 20 submits the following Memorandum of Points and Authorities in support of his Opposition to 21 Plaintiff‘s Motion to Consolidate. 22 I. 23 INTRODUCTION. 24 Plaintiff Slatic’s motion is a thinly veiled attempt to strip Defendant Daniel Ashley of a 25 fair trial in this case. By combining this case with the “Complex” desiglated multi-party 26 Defamation Case (“Complex Case”) brought by Daniel Ashley, Plaintiff Slatic would achieve the 27 goal of getting improper character witnesses to give highly prejudicial statements that would 28 otherwise never be admitted in this case. Moreover, itwould force Danie] Ashley to have to Mum 14w Group, A profgssmml Corpomuon no 1327 East Fir Avenue, Suite ersno, 93720 California 1 5594374079 Tgl: 559437-1720 Fax: DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION T0 CONSOLIDATE make the choice between prosecuting all 0f the defamation claims in his case (which include defamatory statements that he raped other men and women unrelated to Plaintiff Slatic) or WN abandoning them to avoid the unnecessary and unfair risk that a jury will think “where there’s smoke, there’s fire” and give more credibility to Plaintiff Slatic’s allegations — resulting solely LII from hearing multiple defamatory statements that are unique to the Complex Case. Aside from the fact that consolidation should be denied because it would unfairly prejudice Daniel Ashley in this case, it also should be denied because Plaintiff Slatic cannot meet her burden to show that there \OOONQ is sufficient commonality between the two cases. The Complex Case deals not only with statements made by Plaintiff Slatic, but also with separate unrelated statements made by several other Defendants claiming that Daniel Ashley raped them and 0r 10 other men and women. Indeed, there is even a cross complaint in the Complex Case with n0 11 nexus whatsoever to Ms. Slatic’s claims. Thus, combining the two cases will not save time and 12 will only confuse the jury. 13 Further, per the Rules 0f Court, and given the complex designation in the Complex Case, 14 the cases are per se not “related cases.” (Rule of Court. Rules of Court, Rule 3.300(e).) 15 Lastly, the motion should be denied because it iseffectively a motion for entire 16 consolidation of both cases, and yet both cases do not contain identical parties (as required - see 17 below). Additionally, since the Complex Case isalready set for trial and this one is not, 18 combining the two cases together will lead to delays for the Complex Case — indeed Ms. Slatic 19 asks this court to vacate the tn'al date. A11 ofthese factors weigh against consolidation. Plaintiff 20 Slatic’s motion should be denied. 21 II. 22 23 BACKGROUND FACTS. A. Non-Complex Case (Fresno County Superior Court Case No. 24 19CECG040361. 25 Parties: Plaintiff Kathleen Regan Slatic and Defendant Danie] Ashley. 26 Claims: Sexual assault, gender violence, and domestic violence. 27 Background Allegations: The complaint is based 0n two alleged incidents that 28 Whelan Law Group, purportedly took place in December 201 6: Plaintiff and Defendant were in a dating relationship, A Professional Corpsman Em 1827 F1: Avenue, Sum: 11o Fresno, callromm 93720 2 Tel: 559743771079 Fm: 5594374720 DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE and the relationship ended shortly before an alleged incident in Defendant’s dorm room where Defendant allegedly had non—consensual anal sex with Plaintiff. Shortly afier that alleged incident, Defendant and Plaintiff allegedly met up again in Defendant’s dorm room and Defendant allegedly pinned Plaintiff down and choked her. B. Complex Case (Fresno Countv Superior Court Case No. 19CECG04593) — |Designated as Complexl. OOOQQUl-h m: Plaintiff Daniel Ashley and Defendants Kathleen Regan Slatic, Kimberly Ann Slatic, Peyton Nichole Burnett, Sierra Nicole Jones, Anna Rieffel, Dominic Manfredo, Rachel Glusak, and Cydney Kay Moon Mg: Defamation. 10 Background Allegations: The complaint is based 0n a conspiracy to defame Plaintiff 11 which began with a public smear campaign 0n or around August 2019. The Defendants started 12 spreading lies online that Plaintiff was a rapist who had raped multiple women, including 13 Defendant Slatic, Defendant Burnett, Defendant Jones, as well as several other women and gay 14 men. This campaign began in response to Plaintiffs social media post where he shared the news 15 that he had been accepted into USCF Medical School. Defendants also spread the lies to the 16 UCSF administration which caused UCSF to pressure Plaintiff to withdraw from school in order 17 to extinguish the negative publicity that UCSF was receiving. 18 III. 19 LAW AND DISCUSSION. 20 A. Consolidation Must Be Denied Because It Will Jeopardize Danny Ashley’s 21 Right to a Fair Trial in the Non-Complex Case.‘ “Consolidation under Code of Civil Procedure section 1048 is permissive, and it is for the 22 trial court to detelmine whether the consolidation isfor all purposes or for trial only. [Citation.]” 23 Hamilton V. Asbestos Com., (2000) 22 Cal. 4th 1127, 1149. Consolidation should be denied if it 24 jeopardizes a defendant's fundamental right t0 a fair trial, or could create confusion at tn'al.See 25 26 1 California Code of Civil Procedure § 1048, which specifies when cases may be 27 consolidated, is derived from Federal Rule of Civil Procedure 42. As such, cases decided upon the federal rule are persuasive authority for procedural questions arising under the California statute. 28 Wham Law Group, A Professional Corporation (See Weill & Brown, Ca1., Prac. Guide: Civ. Proc. Before Trial (The Rutter Group - 201 3) 12:348, F“ Avenue) Sum no 1327 East p. 12(1)-65.) Fresnm, California 93720 3 559437-1079 Te]: Fax: 559743771720 DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION TO CONSOLIDATE Cal. Code Civ. Proc., § 1048(a); see also Todd-Stenberg v. Daikon Shield Claimants Trust, (1996) 48 Ca1.App.4th 976, 978-79. Indeed, while each case 0n consolidation presents its own facts and circumstances, trialcourts generally consider: (1) whether consolidation would adversely prejudice a party; (2) whether joining the actions involved would make the trial too confusing or complex for a jury; and (3) whether granting consolidation would delay the trialof \DmflQMAMNH any of the cases involved. See State Farm Mut. Auto. Ins. Co. v. Sup. Court, (1956) 47 Ca1.2d 428, 430-43 1. With this motion, Plaintiff seeks to sneak improper character witnesses and unrelated defamatory statements into the Non—Complex Case under the guise ofjudicial efficiency. Regardless of the Court's instructions, it will be nearly impossible for jurors to build walls in their minds so that evidence relating to each Defendant in the Complex Case will not factor into their decisions about the Non-Complex Case. And in fact, several 0f the Defamation Defendants, who have never met Kathleen Slatic nor Daniel Ashley} do not have any relevant or admissible testimony to offer in the Non—Complex Case. Furthermore, potential evidence and testimony in the Complex Case concerning Defendants Peyton Nichole Burnett’s and Sierra Nicole Jones’ defamatory statements that Danny Ashley raped them (as well as the other Defendants’ defamatory statements that Daniel Ashley NNNNNNN—Iu—Au—Ab—AI—AHHHH—A raped multiple other QUIAUJN#O\OW\IQthWN’—‘O women and gay men), have nothing to do with Plaintiff Slatic’s Non- Complex Case and will sway how the jury Views the allegations and testimony in the Non- Complex Case. If the two cases are tried together, Daniel Ashley will be faced with the choice of having to abandon the defamation claims based on the lies that he raped other men and women or run the risk that the jury will find Plaintiff Slatic’s Non-Complex Case credible afier hearing multiple, unrelated defamatory statements about Daniel Ashley tied to the unlawful smear campaign that is the basis for the Complex Case. 27 2 For example, in the Complex Case, both Defendants Rachel Glusak and Cydney Fang (a.k.a Cydney Moon) filed declarations where they state, under penalty ofpexjury, that they do not know, 28 See Fang. Decl. (Filed 3 -1 1-20), WhamLaw Group, and have never met, either Kathleen Regan Slatic 0r Daniel Ashley. AProfcssmnal Corporation Para 4; 1827 East Fxr Avenue, Suite 110 Fresno, Caluramm 93720 see also Glusak Decl. (Filed 2-28-20), Pgas. 3 & 6. 559-437-1079 TE]: Fm 55974374720 DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE B. Separately, Consolidation Should Be Denied Because Plaintiff Slatic Fails to Demonstrate Sufficient Commonalig. [\J The party moving for consolidation bears the burden 0f showing that common issues abound. "[T]he burden isnot on the party opposing aggregation to show divergences." I_ng¢_: Repetitive Stress Injug Litig., (2nd Cir. 1993) 11 F.3d 368, 374. See also Single Chip Sys. Cong. v. InteImec IP Com, (S.D. Cal. 2007) 495 F. Supp. 2d 1052, 1057: “The party seeking economy and convenience \OOOQQUIAUJ consolidation bears the burden 0f establishing that the judicial benefits of consolidation outweigh any prejudice. [Citation.]” Consolidation is not appropriate if individualized issues predominate. See e.g., Tumbling v. Merced Irr.Dist. No. (E.D. Cal. 2010) 2010 WL 1340546, at *4. See also Medlock V.Taco 10 Bell Cogp., (ED. Cal. 2009) 2009 WL 1444343, at *1: 11 “Once a common question has been established, “consolidation is within the broad discretion of the distn'ct court.” Paxonet 12 Communs., Inc. v. TranSwitch C0m., 303 F.Supp.2d 1027, 1028—1029 (N.D.Ca1.2003). But “even where cases involve some 13 common issues 0f law or fact, consolidation may be inappropriate where individual issues predominate.” See In re Consol. Parlodel 14 Litig., 182 F.R.D. 441, 447 (D.N.J.1998). T0 determine whether to consolidate, the interest ofjudicial convenience is weighed against 15 the potential for delay, confusion, and prejudice caused by consolidation. m. Factors such as differing trial dates or stages of 16 discovery usually weigh against consolidation. 9 Wright & Miller, 17 18 Federal Practice and Procedure § bears the burden of showing consolidation is appropriate. Consol. Parlodel Litig., 182 F.R.D. at 447.” m 2383 (2006). The moving party In Tumbling, although both Plaintiffs asserted race discrimination and retaliation claims 19 under Title VII, the court held that: “discrimination claims are ‘fact intensive’” and thus, “the 20 common question of law does not promote judicial efficiency to the extent Plaintiffs suggest.” 21 22 Tumbling v. Merced Irr.Dist, s_um, 2010 WL 1340546, at *4. Thus, the court denied Plaintiffs’ motion to consolidate because the claims necessitated individualized inquires. fl. 23 Here, even more so, the same is true for the Complex Case. Each Defendant in that case 24 made statements at separate times, each of which constitutes a separate cause of action for 25 defamation. Moreover, many 0f the claims in the Complex Case are by parties having professed 26 //// 27 //// 28 Wham Law Group, A Professional Coxpomno n 1827 East Fir Avenue, Suite llO camomm 93720 Fresno, 5 Tel: 559-437-107‘1 Fax; 559743771720 DEFENDANT'S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE under oath to have no knowledge of Ms. Slatic 0r her claims. Further, Slatic’s defamation, based only in part on her baseless assault claim, is only one 0f the many defamatory statements at issue in the Complex Case. The claims against all 0f the Defendants in the Complex Case will #WN necessitate individualized inquires. Thus, joining the Complex Case with the Non-Complex Case will not save time. Indeed, itwill have the opposite impact. VGUI C. Separately. Plaintiff Slatic’s Motion. Which Is Essentially A Motion for Complete Consolidation, Should Be Denied Because the Parties in Both Cases Are Not Identical. Plaintiff Slatic not only seeks to consolidate both cases for trial,she also seeks consolidation for purposes of discovery — essentially, she seeks complete consolidation. However, complete consolidation requires that both cases contain identical parties: 10 “There are two types of consolidation: a complete consolidation 11 resulting in a single action, and a consolidation of separate actions for trial. Under the former procedure, which may be utilized where 12 the parties are identical [emphasis added] and the causes could have been joined, the pleadings are regarded as merged, one set 0f 13 findings is made, and one judgment is rendered. In a consolidation for trial,the pleadings, verdicts, findings and judgments are kept 14 separate; the actions are simply tried together for the sake 0f convenience and judicial economy.” Sanchez v. Superior Court, 15 (1988) 203 Cal.App.3d 1391, 1396. 16 Since the Complex Case and the Non-Complex Case do not contain identical parties, 17 Plaintiff Slatic’s request for complete consolidation should be denied. 18 D. Additional Considerations Weighing Against Consolidation. 19 If the Court were to consolidate the Non-Complex Case with the Complex Case, itwill 20 result in the unnecessary delay of the resolution 0f the non—related claims contained in the 21 Complex Case since the Complex Case isalready set for trial, whereas the Non-Complex Case is 22 — there not. And in fact, the Non—Complex Case is not even at issue is a pending Motion to 23 Strike portions 0f Plaintiff Slatic’s Second Amended Complaint which is currently set for 24 “whether granting September 16, 2021. (These facts implicate State Farm, supra, factor no. 3: 25 consolidation would delay the trial of any of the cases involved”). In addition, combing a case 26 Non-Complex Case) designated complex (the Complex Case) with a non-complex case (the will 27 also likely confuse/add complexity to the Non-Complex Case. For these additional reasons, 28 Wham Law Group) Plaintiff Slatic’s motion should be denied. A pmfcssmnal Cmpommn 1827 East Fm Avenue, Suite 110 Fresno, Canfomm 93720 6 Tel: 55943771079 Fax: 55943771720 DEFENDANT'S OPPOSITION T0 PLAINTIFF’S MOTION T0 CONSOLIDATE IV. CONCLUSION. For the foregoing reasons, Defendant Ashley respectfully requests that this Court deny Plaintiffs Motion. \IamA Dated: April 7, 2021 WHELAN AW GROUP, ' AProf Corp n ‘ m lfy Brian D. helan, Attorneys efendant DANIEL ASHLEY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wham Law Group, A professional Corpomuon 1527 Easx Fix Avenue, Suite no Fresno, Califomiz 95720 7 Tel: 559743771079 559437-1720 Fax: DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION T0 CONSOLIDATE PROOF OF SERVICE I am employed in the County of Fresno, State of California. I am over the age of 18 years and not a party to this action. My business address is: Whelan Law Group, A Professional Corporation, 1827 East Fir Avenue, Suite 110, Fresno, California 93720. On April 7, 2021, Icaused to be served the within document(s): DEFENDANT’S OPPOSITION T0 PLAINTIFF’S MOTION TO CONSOLIDATE ( ) VIA FAX: by causing to be transmitted via facsimile the document(s) listed above to the fax number(s) set forth below on this date. ( ) \OWQQUI-k BY HAND DELIVERY: by causing t0 be personally delivered the document(s) listed above to the person(s) at the address(es) set forth below on this date. ( ) BY MAIL: by placing the envelope, addressed to addresses below, for collection and mailing on the date following our ordinary business practices. I am readily familiar with this business' practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope 10 with postage fully paid. 11 ( ) BY PERSONAL SERVICE: by causing document(s) listed above to be personally served to the person(s) at the address(es) set forth below. 12 13 ( ) BY EXPRESS MAIL DELIVERY: by causing document(s) listed above to be deposited with the United States Express Mail Service for delivery to the person(s) at the address(es) set forth below. 14 15 (X) BY ELECTRONIC SERVICE: by causing document(s) listed above to be electronically mailed t0 the e-mail addresses listed below. 16 Justin Vecchiarelli, Esq. 17 Proper Defense Law Corporation 677 W. Palmdon Drive, Suite #201 , 18 Fresno, CA 93704 Tel: (559) 825-3800 19 Fax: (559) 705-1870 E-Mail: 20 i.ustingamroperdefenselaw.com ‘linda@properdefenselaw.com 21 22 Counsel for Kathleen Slatic 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. 25 Executed on April 7, 2021, at Fresno, California. 26 27 'L 28 Whelan 13w Gmup, STACEY VUE A professional Corporation 1527 East Fir Avenue, suite 11o Fresno, cahfumia 93720 8 Tel: 559743771079 5594374720 Fax: DEFENDANT‘S OPPOSITION T0 PLAINTIFF'S MOTION T0 CONSOLIDATE