Judge: Deirdre Hill, Case: 19TRCV01050, Date: 2022-08-26 Tentative Ruling

Case Number: 19TRCV01050    Hearing Date: August 26, 2022    Dept: M

Hearing Date:                          August 26, 2022

Moving Parties:                      Plaintiff and cross-defendant Michael Dyberg

Responding Party:                  Defendants Mark and Laura Gehley and cross-complainant Laura Gehley

Motion to Bifurcate Punitive Damages Phase

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is GRANTED.

LEGAL AUTHORITY

Under CCP §598, “[t]he court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order . . . that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case . . . .”

Under CCP §1048(b), “[t]he 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 . . . or of any separate issue or of any number of causes of action or issues.”  

DISCUSSION

Pursuant to Civil Code §3295(d) [improperly cited by plaintiff as CCP §3295], plaintiff and cross-defendant Michael Dyberg requests an order bifurcating the punitive damages portion of trial claimed by defendant and cross-complainant Laura Gehley.

In trials where punitive damages are claimed, bifurcation is mandatory on defendant’s motion:  No evidence of defendant’s wealth (e.g., assets, income, financial condition, etc.) is admissible “until after the trier of fact returns a verdict for plaintiff awarding actual damages and finding the defendant guilty of malice, oppression or fraud in accordance with Section 3294” (requiring clear and convincing evidence).  Civ. Code §3295(d); see CACI 3948, 3949; see also BAJI 14.72.1, 14.72.2.  “Upon a defendant’s motion, a trial must be bifurcated when a plaintiff seeks punitive damages.”  Westrec Marina Mgt., Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1050.  This avoids the risk that defendant’s financial condition might taint the jury's determination of the underlying liability case and the issues of “oppression, fraud or malice.”  Medo v. Superior Court (1988) 205 Cal. App. 3d 64, 67–68.

            Accordingly, the motion is GRANTED.

            Moving party is ordered to give notice of the ruling.

Hearing Date:                          August 26, 2022

Moving Parties:                      Defendants Mark Gehley and Laura Gehley

Responding Party:                  Plaintiff Michael Dyberg

Motion to Submit Tardy Expert Witness Information

            The court considered the moving and opposition papers.

RULING

            The motion is DENIED WITHOUT PREJUDICE. 

BACKGROUND

On November 22, 2019, Michael Dyberg filed a complaint against Laura Gehley and Mark Gehley for (1) defamation and (2) IIED.

On March 3, 2020, the court denied defendants’ anti-SLAPP motion.

On May 5, 2020, Laura Gehley filed a cross-complaint for (1) sexual battery, (2) battery and assault, (3) IIED, and (4) NIED relating to the alleged rape.

On July 24, 2020, the court overruled defendants’ demurrer to the complaint.

On March 25, 2022, the court granted defendants’ Pitchess motion.

On April 25, 2022, the court denied defendants’ motion for summary judgment or, in the alternative, summary adjudication.

On May 24, 2022, defendants filed substitutions of attorney.  They are representing themselves.

On August 9, 2022, the trial was continued from August 16, 2022 to February 1, 2023.

LEGAL AUTHORITY

Under CCP §2034.710, “(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.”

Under CCP §2034.720, the court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:  

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined that the moving party did all of the following: 

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”

DISCUSSION

            Pursuant to CCP §§2034.710 and 2034.720, defendants (self-represented) request leave to submit tardy expert witness information.

            In opposition, plaintiff contends that defendants have not served “a copy of the proposed expert witness information” and thus the motion should be denied.  Plaintiff asserts, alternatively, that if a specific expert has been retained and has agreed to testify in this matter and makes themselves available for deposition, then plaintiff would consider a late disclosure.  Plaintiff also contends that he does not intend to offer expert testimony at trial.

The court finds as to the following conditions:  

(a) The court has taken into account the extent to which plaintiff has relied on the “absence of a list of expert witnesses.”  As stated above, plaintiff asserts that he does not intend to offer expert testimony at trial.

(b) The court has determined that plaintiff will not be prejudiced in maintaining his action because the trial date was continued to February 2023.  

(c) The court has determined that defendants failed to submit the expert designation list as a result of mistake, inadvertence, surprise, or excusable neglect.  Defendants assert that they became pro se litigants on May 25, 2022 and that they did not receive plaintiff’s request until June 15, 2022 when they obtained their attorney’s client files.  They contend that “[b]eing able to respond . . .  was grossly limited by Defendants’ ability to understand how and where to get the information to respond to the Plaintiff’s requests fairly and lawfully.”

The court also has determined that defendants sought leave to submit the information promptly after learning of “the mistake, inadvertence, surprise, or excusable neglect” by filing the motion on July 29, 2022.  Defendants contends that because plaintiff had filed five motions (in limine), defendants’ attempt “to learn and find the information requested” was “derailed.” 

As to whether defendants “promptly thereafter served a copy of the proposed expert witness information” on plaintiff, defendants admit that they have not “[d]ue to reasons above.”  Defendants have not stated that they have retained an expert.

Accordingly, as defendants have not complied with CCP §2034.720(c)(3) by serving a copy of the proposed expert witness information as is required and will not be able to make “the expert available immediately for a deposition,” the motion is DENIED WITHOUT PREJUDICE. 

Plaintiff is ordered to give notice of ruling.