Judge Lawrence Cho, Case Number: 20STCV10667, Date: 2023-11-28 Tentative Ruling

Judge: Lawrence Cho, Case: 20STCV10667, Date: 2023-11-28 Tentative Ruling

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Case Number: 20STCV10667 Hearing Date: November 28, 2023 Dept: K

CASE NAME: SLOCUM, et al v. CELEBRITY CASINOS, et al

CASE NUMBER: 20STCV10667

HEARING DATE: 11/28/23

TRIAL DATES: 9/26/23 to 10/6/23

______________________________________________________________________________

TENTATIVE RULING

MOTIONS:

Plaintiff’s Motion JNOV GRANTED
Plaintiff’s Motion for New Trial GRANTED

I. BACKGROUND AND PROCEDURAL HISTORY

This case involves a physical beating Plaintiff Michael Slocum (“P”) suffered at the hands of Defendant ACI’s security guards on 10/15/19 on the property of Crystal Hotel and Casino. Defendant ACI owned the Crystal Hotel whereas Defendant Celebrity Casinos owned the Casino. Defendant ACI settled out just before trial and so trial proceeded only as against Defendant Celebrity Casinos. After a 9 day jury trial, the jury found for Plaintiffs and awarded approximately $52K to Plaintiff Michael Slocum and approximately $25K to Plaintiff Kendra Slocum. The jury also apportioned 10% fault to Celebrity, 60% fault to ACI, and 30% fault to Plaintiff Michael Slocum. Plaintiffs now file their motions for new trial and JNOV.

II. ANALYSIS

A. Timeliness of Defendants’ Oppositions

P initially moves to strike D’s Opposition Briefs as untimely. Under CCP §§ 629, 659a,

both Opposition Briefs to a JNOV and a motion for new trial must be filed and served no more than 10 days from the filing of the movant’s brief, plus an additional 2 days for e-filing. Here, P’s JNOV motion was filed on 10/23/23, which means that D’s Opposition was due no later than 11/6/23; D actually filed their Opposition on 11/13/23, 7 days late. P’s motion for new trial was filed on 10/27/23, which meant that D’s Opposition was due on 11/8/23; D’s Opposition was actually filed on 11/13/23, 5 days late.

D’s assert that their briefs were late because of a mis-calendaring on counsel’s part and that defense counsel will seek relief under CCP 473 if this Court were to strike D’s late briefs. The Court will strike D’s late Oppositions as untimely. However, In the interest of judicial economy, this Court hereby tentatively addresses the substance of the motions so that the parties may make decisions on whether to seek or oppose a CCP 473 motion.

B. JNOV

a. Contributory Negligence of Plaintiff

Plaintiff (“P”) seeks a JNOV as to the fault allocation the jury awarded, which was 10% to Defendant (“D”) Celebrity, 60% ACI, and 30% to P himself. With respect to P’s contributory negligence of 30%, P argues that there cannot be an allocation of fault when the tort was an intentional tort as opposed to negligence. D argues that P has waived this argument when he allowed contributory negligence on the verdict form and only objected to fault allocation as to ACI. This Court rejects D’s waiver argument and chooses instead to reach the merits of the contributory negligence issue.

The California Supreme Court recently ruled on this very issue in B.B. v. County of Los Angeles (2020) 10 Cal.5^th 1. In interpreting CC 1431.2 (henceforth “Prop. 51”), the Supreme Court held that for Prop. 51 allocation purposes, “intentional tortfeasors are not entitled to reduction of their liability based on the negligent acts of others.” Id. at 22. Given this authority, this Court was in error in allowing P to be placed on the verdict form for allocation of non-economic damages. As such, P’s motion for a JNOV on the 30% fault allocation to P would be vacated and the 30% of fault would be allocated to D.

b. Prop. 51 Allocation of Fault to ACI

While it is tempting to apply B.B. v. County of Los Angeles, 10 Cal.5^th at 29 (Prop. 51 “does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors – including the plaintiffs, any codefendants, injured parties, and nonparties – contributed to the injuries in question”), to ACI as just another co-defendant, upon closer examination another result arises. The key phrase in B.B. is that fault for intentional tortfeasors cannot be reduced by the negligence of anyone else, including “plaintiffs, any codefendants, injured parties, and nonparties.” Id. ; see also at 22 (“intentional tortfeasors may not shift liability to negligent actors”). But what if another party also acted intentionally to jointly contribute to the harm inflicted? For example, in this case, had the jury found that both security guards Victor White and Kenneth Stewart had jointly beaten P, there would be joint liability for the economic damages, but Prop. 51 fault allocation would be applied for non-economic damages. The scenario at bar is somewhat removed from that hypothetical in that only Kenneth Stewart was found liable for the beating and not Victor White. However, the evidence also revealed that both Defendant Celebrity and Defendant ACI were both vicariously liable for the actions committed by Kenneth Stewart: Celebrity was liable because the jury found that Stewart was an ostensible agent for Celebrity and ACI would have been vicariously liable for being the actual employer of Stewart. Thus, both Celebrity and ACI are vicariously joint tortfeasors; both are responsible for the actions of their agent Kenneth Stewart. In P’s parlance, Celebrity and ACI would stand as horizontal tortfeasors and not vertical ones. The scenario would have been no different had both Celebrity and ACI gone to trial and the jury found both parties vicariously liable as principals of Kenneth Stewart. The jury would have to allocate percentages of fault between the two entities under Prop. 51. P’s assertion that had both Celebrity and ACI been found liable that there would be joint and several liability is without support in caselaw and is facially inconsistent with Prop. 51: “the liability of each defendant for non-economic damages shall be several only and shall not be joint . . . [e]ach defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault . . . .” CC § 1431.2(a).

More importantly, this Court’s interpretation of Prop. 51 to allow allocation between joint intentional tortfeasors (as opposed to negligent ones) is more consistent with the policies behind the enactment of Prop. 51 itself:

Proposition 51, also known as the ‘deep pocket’ initiative, was a response to a perceived crisis in tort law. The express purpose of Proposition 51 was ‘to eliminate the perceived unfairness of imposing ‘all the damage’ on defendants who were ‘found to share [only] a fraction of the fault. With that concern in mind, Proposition 51 modified the traditional common law ‘joint and several liability doctrine to limit an individual tortfeasor’s liability for noneconomic damages to a proportion of such damages equal to that tortfeasor’s comparative fault.

Miller v. Stouffer (1992) 9 Cal.App.4^th 70, 82 (citations omitted).

The fulfillment of that policy is amply demonstrated in the facts of this case. It was undisputed that security guard Kenneth Stewart was an actual employee of ACI, not Celebrity, and that ACI had sole responsibility for hiring, training, and maintaining or terminating his employment. The only theory of vicarious liability against Celebrity was through the Ostensible Agent doctrine, where Celebrity “intentionally or carelessly created the impression” that Stewart was Celebrity’s agent. CACI 3709. In comparing Celebrity and ACI, there can be no question that public policy would dictate that the larger share of liability should be apportioned to ACI, the entity wholly responsible for hiring, controlling, and supervising (and thereby being held responsible for) its employee’s actions. ACI is unquestionably in a better position to ensure that actions like those taken by Stewart will not be repeated; whereas Celebrity, being only an ostensible principal, can only ensure going forward that it does not create an impression of agency between itself and ACI’s employees.

For these reasons, P’s motion for a JNOV to vacate the 60% fault allocation the jury gave to ACI and instead impose it upon Celebrity would be DENIED.

C. NEW TRIAL MOTION ON DAMAGES

P also seeks a new trial on damages based on this Court’s previous barring of proffered

new expert testimony by P’s medical expert Dr. Vangsness. This motion would be denied on the grounds of unfair surprise and new expert opinion in violation of Kennemur v. State of California (1982) 133 Cal.App.3d 907. A chronology of events is helpful to this analysis:

3/16/20 Complaint Filed

8/18/22 P designates Dr. Vangsness as a medical expert

7/26/23 Dr. Vangsness designated by P again as a medical expert

8/11/23 General Discovery Cutoff

8/24/23 Dr. Vangsness is deposed by D, at which he testifies that he has yet to examine P personally. When asked “Do you have an opinion that he needs to have [back] surgery?” Vangsness answers: “I can’t say that without examining him. I after seeing this, I think he’s at risk, sure.” (Vangsness Depo. P. 37, lines 8-15).

8/28/23 Expert Discovery Cutoff

9/11/23 Dr. Vangsness examines P and opines for the first time that P will need surgery. This new opinion is not revealed to defense counsel nor is there an offer by P for a follow-up deposition on his new opinion until 9/25/23.

9/25/23 Final Status Conference held; P reveals new opinion and offers new deposition

9/26/23 Trial commences; jury selection begins

As is apparent from the chronology above, P had designated Dr. Vangsness as their

medical expert as far back as 8/18/22, but did not arrange for that expert to examine P until over

a year later on 9/11/23. More importantly, that examination occurred after Dr. Vangsness had

already been deposed on 8/24/23, and after expert discovery had been cutoff on 8/23/23. Moreover, P knew about the witness’ new opinion on 9/11/23 but did not reveal that for 2 weeks at the FSC held on 9/25/23. P’s offer for a follow-up deposition on the new opinion is made the day before trial commenced – too little and too late. The fact is that all of this was totally within P’s control – waiting until too late to have the witness examine P; allowing deposition of his expert before the expert had his final opinions; failing to offer up a 2^nd depo until the day before trial. In light of these factors, this Court found that the witness’ new opinion was unfair surprise and did not give D’s sufficient notice and opportunity to prepare against this late obtained opinion after discovery had already closed. Contrast Easterby v. Clark (2009) 171 Cal.App.4^th 772, 780-81 (no Kennemur violation when new expert opinion was disclosed 3 months prior to trial).

In Kennemur, the expert witness had in previous deposition indicated his

opinions were limited to a particular subject matter but attempted to give a new opinion beyond that subject matter at trial. Counsel’s failure to disclose the new opinion deprived his opposition the opportunity to cross-examine on the new opinion and for possible expert rebuttal testimony to challenge the new opinion. Kennemur v. State of California, 133 Cal.App.3d at 918-19. This is precisely what has occurred here with Dr. Vangsness; he was unable to opine on the necessity of back surgery at his deposition, but came up with a new opinion on that subject after discovery cutoff. P’s counsel could have cured the unfair surprise with a timely disclosure and offer of a follow-up deposition well in advance of trial but failed to do so.

Should D be successful in its CCP 473 motion, this Court’s tentative is to DENY P’s motion for a new trial on damages.

III. ORDER

Due to D’s Opposition Briefs being untimely filed, P’s motions to strike those briefs are hereby GRANTED, as are P’s motions for JNOV on apportionment and a new trial on damages. Should D’s have this Order vacated per CCP 473, this motion shall be reheard on the Briefs already submitted and no new briefing with the exception of P’s Reply Briefs will be accepted.