Judge Carolyn M. Caietti, Case 37-2014-00019212-CU-IC-CTL 2024-02-23 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2014-00019212-CU-IC-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Insurance Coverage Motion Hearing (Civil) 37-2014-00019212-CU-IC-CTL MCHUGH VS. PROTECTIVE LIFE INSURANCE COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Prior to the hearing on these matters, Plaintiffs are ordered to file a complete copy of the moving exhibits. Although the Court received a courtesy copy of all exhibits and Defendant does not dispute such service, the record only includes Exhibits A-E and not Exhibits F-K.

Defendant Protective Life Insurance Company's Motion to Bifurcate is DENIED.

Plaintiffs Blakely McHugh and Trysta Henselmeier's Motion to Compel the Person Most Qualified, Depositions of Protective Employees and Responses to Requests for Production, Sets Three and Four is IN PART DENIED WITHOUT PREJUDICE and the Court will HEAR FROM THE PARTIES.

Background The case concerns the application of Insurance Code sections 10113.71 and 10113.72 to a life insurance policy of William McHugh, whose policy was issued before the effective date of these insurance statutes. Plaintiffs are the insured/decedent's beneficiaries. In the first phase of trial, this Court concluded the statutes applied to all life insurance policies issued and delivered in California. A jury found in Defendant's favor on damages. The Fourth District Court of Appeal affirmed the judgment on separate grounds, holding the insurance statutes did not apply retroactively. The California Supreme Court reversed, concluding the insurance statutes applied to all California life insurance policies regardless of the date of issuance and remanded the matter. On remand, the Court of Appeal concluded the jury's verdict was 'contradictory and hopelessly ambiguous' and remanded for a new trial. (McHugh v. Protective Life Insurance (Oct. 10, 2022, No. D072863) 2022 WL 6299640 (unpub. opn.).) Defendant's Motion to Bifurcate C.C.P. section 1048(b) provides the court, 'in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.' Here, Defendant asks the Court to bifurcate the trial into two phases. The first phase would try Plaintiffs' breach of contract cause of action; and should Plaintiffs prevail, then try Plaintiffs' breach of the implied covenant of good faith and fair dealing (bad faith) cause of action. It is within the discretion of the court to bifurcate issues or order separate trials of actions, such as for breach of contract and bad faith, and to Calendar No.: Event ID: TENTATIVE RULINGS

3077137 43 CASE NUMBER: CASE TITLE: MCHUGH VS. PROTECTIVE LIFE INSURANCE COMPANY [IMAGED] 37-2014-00019212-CU-IC-CTL determine the order in which those issues are to be decided. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.) Bifurcation is not warranted here. For the breach of contract, Plaintiffs must prove Plaintiffs did all, or substantially all, of the significant things the contract required (or was excused) and that all conditions required by the contract for Defendant's performance occurred (or were waived/excused). (See, CACI 303.) Similarly, for the bad faith cause of action, Plaintiffs will have to prove they did all, or substantially all, of the significant things the contract required them to do (or was excused) and that all conditions required for Defendant's performance occurred or were excused. (See, CACI 325.) In light of the particular facts and applicable law in this case, the facts regarding what Defendant did or did not do to ascertain the applicability of the Insurance Code sections 10113.71 and 10113.72 are relevant to whether it breached the contract and the adequacy of coverage investigation and continuing denial of Plaintiffs' claim. Bifurcation would also not be convenient nor conducive to judicial economy.

Separate phases would cause the same witnesses to testify potentially three different times (in the contract case, bad faith case and punitive damages case). Given the overlap, it would also be challenging for the Court and the parties to protect against presenting evidence without violating a bifurcation order.

Thus, the motion is DENIED. The Court, however, will bifurcate the punitive damages from the underlying case.

Plaintiffs' Motion to Compel Plaintiffs' request for judicial notice is granted. (ROA 599.) As background, on November 17, 2023, the Court granted in part and denied in part Plaintiff's Motion to Compel Discovery Responses and ordered Defendant to serve a further, verified and code-compliant response to, inter alia, Request for Production of Documents, Set Three, Nos. 32-35 and 40-41. (ROA 559 – Minute Order dated Nov. 17, 2023.) Separately, the Court asked the parties not to combine several sets of discovery into a consolidated motion. (Ibid.) At an informal discovery conference on January 16, 2024, the Court advanced Defendant's Motion to Bifurcate, scheduled this motion and briefly continued trial to accommodate the motions. (ROA 582 – Minute Order dated Jan. 16, 2024.) The Court also confirmed with Plaintiffs that this motion was to 'compel compliance of November 17th order.' (See, ROA 605 – Declaration of Christopher Frost, at Ex. B [IDC Transcript, p. 43:17-26.) In part, this motion seeks to compel 'complete production' of Request for Production, Set Three, Nos.

32-35 and 40-41, which was at issue in the November 17 Order. But despite the Court's previous admonishment not to file consolidated motions and Plaintiffs' representation this motion was only to compel compliance with the November 17 Order, Plaintiffs seek to compel other discovery, including deposition testimony of Defendant's Person Most Qualified on seven categories and the production of documents accompanying that notice; the deposition of David Loper; the deposition of Richard Leiderman; and Request for Production of Documents, Set Four, Nos. 45-47 and 79, 81 and 87. This far exceeds what Plaintiffs represented to the Court and what was permitted by the Court.

Accordingly, the Court will only consider the motion to the extent it seeks to compel compliance with the November 17 Order and Request for Production, Set Three, Nos. 32-35 and 40-41. The rest of the motion is DENIED WITHOUT PREJUDICE.

Neither the moving memorandum, nor reply discuss Set Three, Nos. 32-35 and 40-41. If the issue concerns Defendant's privilege log, The Court WILL HEAR FROM THE PARTIES regarding any deficiencies in the supplemental privilege log served on February 13, 2024. Serving Plaintiffs with a supplemental privilege log the day before both the motion and the reply are due is not only not helpful to Plaintiffs and the Court, but it is in contravention of the November 17 Order. If Defendant understood the Calendar No.: Event ID: TENTATIVE RULINGS

3077137 43 CASE NUMBER: CASE TITLE: MCHUGH VS. PROTECTIVE LIFE INSURANCE COMPANY [IMAGED] 37-2014-00019212-CU-IC-CTL November 17 Order concerning privilege/privilege logs only to apply to 'documents' as a whole and not portions of information within a document, it understood incorrectly. For any assertions of a privilege, a privilege log is required.

Further, some of Defendant's responses indicate, 'All non-privileged documents reasonably responsive to this Request have been or will be produced in this action.' (Ex. ROA 596 – Separate Statement, at No. 34, p. 9:22-24 & No. 40, at p. 15:7-9.) It is unclear if responsive documents are being produced with the response or are coming at a later time. The deadline was December 20, 2023. (ROA 559.) All non-privileged responsive documents must be produced forthwith.

Concluding Orders If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant is ordered to serve written notice of the Court's final ruling on all appearing parties by February 27, 2024.

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