Judge: Daniel M. Crowley, Case: 21STCV38700, Date: 2022-12-21 Tentative Ruling

Case Number: 21STCV38700    Hearing Date: December 21, 2022    Dept: 28

Motion to Server Filed by Defendants Jake P. Taylor and Robert Campbell

 

            Having considered the moving papers, the Court rules as follows.  No opposing papers were filed. 

 

BACKGROUND 

 

            Plaintiffs Robert and Loretta Cornell’s lawsuit arises out of an automobile collision with Defendants William and Isabelle Sato in October 2019, and a slip and fall incident with Defendants Jake Taylor and Robert Campbell in April 2020.  

            On October 20, 2021, Plaintiffs filed a complaint against Defendants.

            On November 4, 2021, Plaintiffs filed a first amended complaint (FAC) against Defendants alleging four causes of action: (1) motor vehicle; (2) general negligence; (3) premises liability; and (4) general negligence.

            Trial is set for April 19, 2023. 

 

PARTY’S REQUESTS 

            Defendants Taylor and Campbell requests the Court for an order severing Plaintiffs’ action against them.

 

LEGAL STANDARD 

  1. Sever

            Under CCP § 1048(b), “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials would 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.” C.C.P. § 1048(b) identifies the following interests as appropriate grounds for severance: convenience, expedition, economy, and the avoidance of prejudice. 

            An action may be severed, in the discretion of the court, whenever it can be done without prejudice to a substantial right.  (Jud Whitehead Heater Co. v. Obler (1952) 111 Cal. App. 2d 861, 867.)

 

  1. Joinder of Defendants

            CCP § 379, which governs the permissive joinder of defendants, provides:

  1. All persons may be joined in one action as defendants if there is asserted against them:

  1. Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or

  2.  A claim, right, or interest adverse to them in the property or controversy which is the subject of the action.

  1. It is not necessary that each defendant be interested as to every cause of action or as to all relief prayed for. Judgment may be given against one or more defendants according to their respective liabilities.

  2. Where the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.

 

DISCUSSION 

            Defendants Taylor and Campbell contend severance is appropriate to avoid prejudice because Plaintiff improperly joined the moving Defendants under CCP § 379.

            Section 379(c) “does not permit the unlimited joinder of defendants; it provides for joinder only when plaintiff pleads a specific relationship between the defendants, namely, a single or cumulative injury, giving rise to doubt as to the respective liability of defendants for that injury.”  (Landau v. Salam (1971) 4 Cal.3d 901, 907.) “[A] plaintiff cannot bring his action within section 379(c) by means of the bare allegation of his uncertainty as to defendants’ liabilities; plaintiff must plead facts showing the basis of a ‘reasonable uncertainty’ [citation] or a ‘fair doubt’ [citation] as to the ‘alternative or quantitative liability’ of defendants.” (Id. at 909.)   

            Here, Plaintiff Robert alleges that he was involved in an automobile accident with the Sato Defendants on October 26, 2019, and a slip and fall incident on the moving Defendants’ premises on April 9, 2020. (FAC p. 4-7.) Plaintiff alleges that he suffered injuries and damages because of both incidents. (Ibid.) The original complaint alleges that Plaintiff was involved in the slip and fall incident while still treating for his injuries from the automobile collision, and therefore exacerbated his injuries. (Complaint; Attachment 1.) Further, the original complaint alleged that Plaintiff “is in doubt as to the respective responsibilities of the defendants, and each of them, for his injuries.” (Ibid.) However, the FAC is missing these allegations. Nothing in the FAC alleges to the effect that the slip and fall incident occurred when Plaintiff was still injured from the automobile accidents, and that because of the slip and fall incident, he suffered exacerbation of his injury. Nor does the FAC allege that Plaintiff is in doubt as to the responsibilities of the Defendants for his injuries.

            The Court believes the most expeditious manner in which to handle this issue is to continue the hearing on this motion to the trial date such that the trial judge can decide whether to separate the trials.  This way, the parties can avoid duplication of discovery, and yet still have separate trials, if the trial court deems that appropriate. 

 

CONCLUSION  

            The motion to server filed by Defendants Jake P. Taylor and Robert Campbell is CONTINUED to the trial date, to be ruled upon by the trial judge.  

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days. 

The parties are directed to the header of this tentative ruling for further instructions.