Judge: Kevin C. Brazile, Case: 20STCV24883, Date: 2023-03-06 Tentative Ruling

Hearing Date: March 6, 2023

Case Name: Miller, et al. v. United Investexusa 7 Inc, et al.

Case No.: 20STCV22215 

Matter: Motion for Mistrial

Moving Party: Plaintiffs/Cross-Defendants Matthew Miller, Donald Bake, Saad Khan, 

Mark Iroha, Joey Keane, Nathan Abebe, Christian Merchain, and Adam Stone

Responding Party: Defendants/Cross-Complainants Manpow, LLC, United Investexusa 7, 

Inc., Investexusa 11, Inc.

Notice: OK

Ruling: The Motion for Mistrial is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On August 10, 2021, Plaintiffs Matthew Miller, Donald Bake, Saad Khan, Mark Iroha, Joey Keane, Nathan Abebe, Christian Merchain, and Adam Stone filed their Third Amended Complaint (“TAC”) for (1) declaratory judgment, (2) violation of the UCL, (3) violation of Pen. Code § 502, and (4) invasion of privacy.  

On August 11, 2020,  Defendants Manpow, LLC, United Investexusa 7, Inc., and United Investexusa 11, Inc. filed their Cross-Complaint for (1) breach of confidentiality agreement, (2) breach of employment agreements against Bake, Khan, and Miller, (3) breach of employment agreements against Abebe, Iroha, Keane, Merchain, and Stone, (4) misappropriation of trade secrets, (5) breach of loyalty, (6) breach of fiduciary duty, (7) violation of the UCL, and (8) concealment.

On April 7, 2022, Judge Mooney granted Plaintiffs’ motion to bifurcate, ruling “Trial is bifurcated on the Declaratory Relief Claim and the Unfair Competition Claim. Trial on the Cross-Complaint [and remaining claims in the TAC] is severed.” 

In April 2022, Judge Mooney presided over phase I of the bifurcated trial herein.  Phase I was a bench trial.  

In July 2022, Judge Mooney provided a statement of decision that clarified, “Plaintiff’s motion to bifurcate the Declaratory Relief cause of action was granted by this court. The matter proceeded as a court trial In Phase 1 only as to plaintiffs’ declaratory relief claim. Plaintiffs’ remaining causes of action and defendants[’] claims on their cross-complaint are to be determined by a jury in phase 2.”  The statement of decision concluded: “Based on the foregoing, the court finds that the noncompete covenants in the non-solicitation provisions as identified and set forth In Plaintiffs’ Exhibit A to their opening brief In Phase 1 to be void and unenforceable. However, based [on] what could potentially be determined as independent wrongful conduct, the court declines to declare the non-disclosure/confidentiality provisions void and unenforceable (identified and set forth In Plaintiffs’ Exhibit A).”

Phase II is a jury trial set for August 7, 2023.

Plaintiffs/Cross-Defendants Matthew Miller, Donald Bake, Saad Khan, Mark Iroha, Joey Keane, Nathan Abebe, Christian Merchain, and Adam Stone seek a mistrial “because Judge Mooney retired after the Phase I trial and is therefore unavailable to preside over a Phase II trial. This mandates a mistrial, as Plaintiffs are entitled to have one judge hear both phases of trial. See, e.g., European Beverage, Inc. v. Superior Ct., 43 Cal. App. 4th 1211 (1996).”

“The law has long been settled that in a civil action ‘[a] party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury, and from the jury that hears the evidence, where it is tried with a jury. He cannot be compelled to accept a decision upon the facts from another judge or another jury.’ (Guardianship of Sullivan (1904) 143 Cal. 462, 467, 77 P. 153; Bodine v. Superior Court (1962) 209 Cal.App.2d 354, 364–365, 26 Cal.Rptr. 260.) Where there has been an interlocutory judgment rendered by one judge, and that judge then becomes unavailable to decide the remainder of the case, a successor judge is obliged to hear the evidence and make his or her own decision on all issues, including those that had been tried before the first judge, unless the parties stipulate otherwise. (Rose v. Boydston (1981) 122 Cal.App.3d 92, 97, 175 Cal.Rptr. 836.) This is because an interlocutory judgment is subject to modification at any time prior to entry of a final judgment. (Ibid.) It is considered a denial of due process for a new judge to render a final judgment without having heard all of the evidence. (In re Marriage of Colombo (1987) 197 Cal.App.3d 572, 581, 242 Cal.Rptr. 100, 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 45, p. 483.)”  (Eur. Beverage, Inc. v. Superior Ct. (1996) 43 Cal.App.4th 1211, 1214–15.)

Defendants primarily argue that Eur. Beverage and the other cases cited by Plaintiffs do not apply where, as here, there was a bench trial and then there will be a separate jury trial, such that the “single trier of fact” rule is not implicated.  Defendants contend phase I was a discrete trial as to legal issues; there will be no reason to return to the legal issues of phase I; and phase II relates to distinct factual issues.  Defendants argue that Plaintiffs’ cases indicate that a mistrial should be found primarily where a different jury or judge will preside over either two bench trials or two jury trials.  

A mistrial seems necessary because phase II also includes the parties’ UCL claims, and “a cause of action under the UCL . . . is to be tried by the court rather than by a jury.”  (Nationwide Biweekly Admin., Inc. v. Superior Ct. of Alameda Cnty. (2020) 9 Cal.5th 279, 305.)  That is, because there was a prior bench trial as to declaratory relief and the UCL claims will apparently require a subsequent bench trial before a different judicial officer, a mistrial is required.  (Eur. Beverage, Inc. v. Superior Ct. (1996) 43 Cal.App.4th 1211, 1214–15.)

There is another reason that would make a mistrial prudent: as discussed, an interlocutory judgment is subject to modification until final judgment.  (Ibid.)  To the extent such a request could even be made, this is a reason to ensure that the same judicial officer has presided over the entire trial.  Further, there is a link between phase I and phase II that could make revisitation of phase I possible.  Phase I party dealt with the validity of certain confidentiality agreements, the breach of which are at issue in phase II.  Notably, Judge Mooney concluded, “based [on] what could potentially be determined as independent wrongful conduct, the court declines to declare the non-disclosure/confidentiality provisions void and unenforceable . . . .”  (July 12, 2022, Minute Order (emphasis added).)  

Defendants also argue that “California Rule of Court 3.1591—which expressly contemplates bifurcated trials of issues before different judges—mandates that all motions for new trial in these circumstances cannot be heard until all issues are tried, and even then, such motions must be decided by the judge who presided over that that part of trial . . . .”  However, the law cited by Defendants relates to a motion for new trial, whereas the instant Motion seeks a mistrial.  (See also In Re Bartholomae’s Estate (1968) 261 Cal.App.2d 839, 842 [“Mistrial and a new trial are unlike in both name and effect.”].)

For the above reasons, the Motion for Mistrial is granted.  

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.