Judge David J. Cowan, Case Number: 20STCV43946, Date: 2024-09-20 Tentative Ruling

TENTATIVE RULING ON MOTION OF DEFENDANT SCHOOL DISTRICT TO BIFURCATE ISSUES OF LIABILITY FROM DAMAGES AT TRIAL

Frank Blackwell, et al., v. William S. Hart Union High School District, et al., Case No. 20STCV43946 (consolidated with Case No. 20STCV44103)

In this case, the respective parents of two children, Dominic Blackwell and Gracie Anne Muehlberger - who were shot and killed on November 14, 2019 by a fellow student at Saugus High School, Nathan Berhow (who then killed himself) while they were on school grounds - bring this action for wrongful death against defendant Willaim S. Hart Union High School District (“the District.”)

In the order denying District’s motion for summary judgment, Judge Stephen Pfahler held there was a duty of care on the part of the District to prevent what occurred here, finding “the circumstances regarding the general awareness of potential campus gun violence and need for safety protocol presents a reasonable baseline foundation of a specific duty for enacting protections of student-on-student gun violence.” (See also Regents of Univ. of Ca. v. Superior Court (2018) 4 Cal.5^th 607, 629-630) In addition, the Court found there was a basis for a specific duty for this incident here where “District was also aware of the student’s abusive domestic home life troubles…the court concludes the content of the DCFS report can lead to a reasonable inference of a ‘red flag’ warning for potential violence based on case law and expert testimony.” (See also Achay v. Huntington Beach Union H.S. Dist. (2022) 80 Cal.App.5^th 528, 536) The Court did not address whether a breach of duty was a “proximate cause” of what happened as this was a question of fact. The Court, however, granted summary adjudication in favor of District as to the alleged dangerous condition of campus as contributing to this tragedy.

On August 1, 2024, the District timely filed the above-referenced motion before the final status conference. District seeks an order pursuant to CCP secs. 598 and or 1048(b) that the jury determine whether it has liability prior to considering damages if it determines liability. Damages here are solely non-economic and will require solely Plaintiffs’ testimony. The motion is premised on a claim that District’s alleged liability is “specious” where the District purportedly did not know of any special issues that would raise a red flag as to Nathan Berhow, as well as that damages are necessarily so emotionally charged that it would be unduly prejudicial to District in defending the liability claim to also have to at the same time defend against the parents’ suffering that it readily acknowledges. The writ petition attached to the motion contends the Court made an evidentiary error in concluding that the District received the DCFS report prior to the shootings based upon its inclusion in the “murder book” that was part of the investigation thereafter.[1]

District also contends this case is governed by C.I. v. San Bernardino City Unified School District (2022) 82 Cal.App.5th 974 and that District had no legal duty to prevent what Nathan Berhow did. In C.I., the Court affirmed an order granting summary judgment in favor of a school district where a teacher was shot at school by an estranged spouse, finding that a third party shooting on campus was “unforeseeable” so as to give rise to any duty of care to prevent, also taking into consideration public policy factors disfavoring liability of school districts as would-be insurers of safety from others’ intentional wrongful conduct.

District argues further that the Court needs to consider that Berhow, his mother, Mami Matsuura-Berhow, and the company that created the kit containing the components of the gun that Berhow used, 1911Builders.com, are also tortfeasors (even if not parties).[2] Their responsibility should be considered by the jury and damages apportioned accordingly on the verdict form.

On August 27, 2024, Plaintiffs Frank and Nancy Blackwell filed opposition to the motion. Plaintiffs Bryan and Cindy Muehlberger also filed separate opposition to the motion. The Court treats these oppositions together as their position is the same. They make the following key points:

- The evidence they presented in opposition to the motion for summary judgment demonstrates the validity of their case on numerous grounds. This is not an opportunity to re-litigate that motion.

- A jury having to deliberate after hearing only concerning liability - and depending on their decision - having to then hear further evidence skews how jurors may decide the case. Normal procedure is for deliberations to be after evidence, not in the middle.

- The jury will already know about the deaths in voir dire and therefore any undue sympathy will already be implicated. Not hearing about damage from what occurred does not avoid this concern where it is a known issue already.

- Just as it may help defendant to hear only about liability it hurts plaintiffs to not be allowed to tell the whole story at one time. There is not good cause to deviate from normal procedure -- to Plaintiffs’ prejudice. Bifurcated trials are the exception to the rule and are not justified here.

- The effect of District’s reasoning would mean all wrongful death cases should be bifurcated.

- The motion does not show how bifurcation would create efficiencies. Trial may in fact take longer – with two sets of opening statements and closing arguments, instructions and deliberations.

- Instructions are the proper solution as to emotional testimony of Plaintiffs. (CACI 3922) (See Krouse v. Graham (1977) 19 Cal.3d 59, 69)

- Under CCP sec. 607, plaintiffs are to present their evidence before defendants. Having the evidence presented consistent with sec. 607, as opposed to the way District proposes, defendants will be able to lessen the effect of Plaintiffs’ testimony by putting on their case before the matter goes to the jury.

- 84% of witness time, per the joint witness list, would concern liability in any event and not hearing damages evidence at the same time would not thereby save any significant time if it was determined there was no liability.

On September 3, 2024, District filed a Reply in support of its motion. It does not disagree with certain of Plaintiffs’ points but disagrees that instructions concerning sympathy will suffice to prevent a jury deciding the case based on passion.

The Court sustains the objections of Plaintiffs to the consideration of pleadings filed in another case apparently brought by a student who survived the incident at issue here.

The relevant factors to consider under CCP secs. 598 and 1048(b) on a motion to bifurcate are as follows: 1. Furthering the convenience of parties and witnesses. 2. Avoiding prejudice. 3. Encouraging expedition. 4. Promoting economy. 5. Serving the ends of justice.

Initially, the Court does not find that bifurcation would likely save any appreciable amount of time. The time for Plaintiffs to testify – that would be avoided if the jury found there was no liability - is relatively nominal compared to the amount of time on liability. Plaintiffs’ above-referenced estimation of time saved is probably fairly accurate. There are not damages experts here on this wrongful death case whose time would be avoided – where bifurcation might make more sense. In turn, if the jury finds there is liability, it is likely that more time than would otherwise have been spent will result because the jury will have to deliberate twice. Therefore, bifurcation here would not “encourage expedition” or “promote economy.” In addition, there was nothing submitted to show bifurcation would “further the convenience of parties and witnesses.”

In turn, that there may be tortfeasors other than the District is not material for bifurcation purposes. Even if liability were fully or partly apportioned to those persons, no time is saved. Whether District itself has any liability likely does not turn on whether there are other tortfeasors but rather the factors referenced above that were considered on summary judgment.

The Court does not find District’s potential liability as “specious.” The Court denied its motion for summary judgment. However, whether Plaintiffs have a strong case or a weak case against District is immaterial and is an issue in any event for a jury. It is not strictly a relevant factor for purposes of whether to bifurcate. While “serving the ends of justice” is a factor, this cannot be read to mean that justice would be served by the court concluding here one side or the other is likely to prevail and hence that this issue deserves to be bifurcated.

District’s position is that it had no red flags to warn it to take special precautions. Plaintiffs’ apparent position is that District had the DCFS report beforehand, consistent with the ruling on summary judgment.[3] Hence, District’s position that there was no specific reason for it to have foreseen what would happen conflicts with the prior ruling. Even assuming the Court were to exclude the DCFS report (based on the motion in limine), and the resulting red flag, it is unclear if there might not still be prospective liability: This is not a case where the court can readily conclude there is little likelihood Plaintiffs will prevail and hence it would be an obvious waste to also hear from them as to their damages before the jury deliberates. Finally, Judge Pfahler found a factual distinction between this case and C.I., supra, separate and apart from whether District was on specific notice as to Mark Berhow, in that a teenager was involved here as opposed to an adult in C.I. as far as the foreseeability of risk of violence. Hence, whether District can avoid liability pursuant to C.I. remains to be seen.[4]

The real issue here is whether bifurcation would “avoid prejudice.” The Court acknowledges that this is the kind of case where the decision as to liability is a very significant one and that this should be decided on its merits without other considerations. However, the jurors will already know what this wrongful death case is about through voir dire, and or mini-opening statements, and hence the potential prejudice District seeks to avoid will already be present, i.e., sympathy for Plaintiffs over their loss that impacts the jury’s decision-making. On the other hand, if trial is not bifurcated, and District puts on its case after Plaintiffs, there would not be the situation where the last evidence the jurors hear before deliberating is Plaintiffs’ testimony. Instead, they will have heard the testimony that supports finding no liability or why other tortfeasors may be responsible.

Further, the Court can help deter undue sympathy by providing additional instructions as to sympathy at the outset, if needed, as well as again at the end before deliberations. (E.g., CACI 100, 1113 and 5000) In addition, consistent with District’s motion in limine to preclude Plaintiffs testifying to their grief, sorrow and mental suffering occasioned by the death of their children, under Corder v. Corder (2007) 41 Cal.4^th 644, 661, jurors can also be instructed that these are not compensable. The Court will not infer jurors will necessarily reach an erroneous decision merely because they also hear about Plaintiffs’ damages.

Ultimately, the Court does not find that the “emotionally charged” nature of damages here present exceptional circumstances that warrant deviating from normal trial procedure, including for other wrongful death cases.[5]

[1] The DCFS report is significant as it apparently outlines Nathan Berhow’s difficult home life, including the death of his father, Mark Berhow, in December 2017 (after the father had earlier been under a Welfare & Institutions Code sec. 5150 psychiatric review in 2015), as well as the father’s possession in the home of multiple firearms.

[2] The kit was apparently purchased by Nathan Berhow’s father – who may have been prohibited from possessing firearms by reason of having undergone a “5150” review. Numerous other firearms were also allegedly located in the Berhows’ home.

[3] Plaintiffs’ oppositions do not address the evidentiary issue as to notice to District.

[4] The Court did not previously address proximate cause in terms of the mere seconds involved for District to be able to take responsive action. Whether that can be proven here will likely be a factual issue for a jury. (See also Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562)

[5] The Court also does not find that the recent attempt on the life of Donald Trump bears much relevance to the facts here, as District suggests.