Judge Lynne M. Hobbs, Case Number: 21STCV42024, Date: 2025-01-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV42024, Date: 2025-01-09 Tentative Ruling

Case Number: 21STCV42024 Hearing Date: January 9, 2025 Dept: 61

QASIM ZAIDI, et al. vs LOS ANGELES COUNTY METROPOLITAN TRANSIT AUTHORITY, et al.

Tentative

Plaintiffs Qasim Zaidi, Michael Whitted, Carolawyn Smith, Bernyesha Hollins, and Cassandra Thompkins’ Motion to Augment Expert Witness Designation is DENIED.

Defendant Los Angeles County Metropolitan Transit Authority’s Motion to Bifurcate Trial is GRANTED in part. Trial shall be divided into two phases, with the first phase addressed to the issue of liability on Plaintiffs’ inverse liability claim, tried to the court in the presence of a jury. The second phase of trial will address Plaintiffs’ compensation for the inverse condemnation claim, as well as Plaintiffs’ other claims, tried to the same jury.

Defendant to give notice.

Analysis

I. MOTION TO AMEND EXPERT DESIGNATION

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following:

(1) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.

(2) Amend that party's expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.

(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

(Code Civ. Proc. 2034.610.)

The court shall grant leave to augment or amend an expert witness list or declaration 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 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.

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

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

(Code Civ. Proc., § 2034.620, subd. (a)–(c).) Leave to amend must be conditioned on the moving party making the expert promptly available for deposition. (Code Civ. Proc. § 2034.620, subd. (d).)

Plaintiffs Qasim Zaidi, Michael Whitted, Carolawyn Smith, Bernyesha Hollins, and Cassandra Thompkins move to augment their expert witness list to include a licensed contractor and expert on repair costs, Jeff Hughes. Plaintiffs contend that they were made aware of the necessity of Hughes’ testimony after Defendant Los Angeles County Metropolitan Transit Authority (Defendant) notified them of their intention to move to exclude the testimony of structural engineer Kenneth O’Dell, as to repair cost estimates, as he testified at his deposition on August 30 that he was not a licensed contractor and had not relied on a licensed contractor to prepare the cost estimates, as he had in prior cases involving Plaintiffs’ counsel. (Motion at pp. 10–11; Egbase Decl. ¶¶ 4–5.)

Defendant in opposition argues that Plaintiffs’ counsel had prior notice of O’Dell’s lack of expertise on repair cost estimates, as O’Dell testified that he had informed Plaintiff’s counsel in a prior matter that he lacked experience as a cost-estimator, and could only provide a “rough order of magnitude” estimate. (Herzog Decl. Exh. C at pp. 70–71.) Defendant presents portions of O’Dell’s deposition from the prior Mayers case, LASC Case No. BC716447, also tried by Plaintiffs’ counsel, in which O’Dell testified that he had prepared cost estimates only with the help of a hired consultant general contractor. (Herzog Decl. Exh. D at pp. 115–117.)

Defendant contends that allowing the augmentation of the expert witness list to include Hughes would cause extreme prejudice, requiring not merely the deposition of Hughes, but of four of Plaintiffs’ expert witnesses, who had previously relied on O’Dell’s cost estimates, and four of Defendant’s own experts, who were required to opine on same, and who will now have to alter their testimony to account for Hughes’ revised estimates. (Herzog Decl. ¶¶ 25–30.) Defendant argues that such a change would likely require another continuance of trial, with the final status conference now set for January 9, 2025. (Herzog Decl. ¶ 28.) Defendant also notes that the repair cost estimates provided by Hughes are substantially higher than those prepared by O’Dell. (Herzog Decl. ¶ 15.)

Plaintiff in response does not address the Mayers case, but cites other instances in which Defendant has engaged in dilatory tactics, such as the withholding of geotechnical reports, which will result in the retaking of one of Defendant’s experts per the stipulation of the parties, even absent the addition of Hughes as an expert. (Supp. Egbase Decl. ¶¶ 9–10.) Plaintiff also argues that O’Dell’s deposition was going to be retaken in any event, in order to allow him to provide inflation-updated estimates prior to trial. (Supp. Egbase Decl. ¶ 8.)

Plaintiffs have not demonstrated excusable neglect in seeking to add Hughes as a cost-repair expert. Although Plaintiffs argue that they could not have foreseen O’Dell’s failure to retain a repair-cost consultant until the deposition, O’Dell testified at deposition that he had in fact advised Plaintiffs’ counsel of his limited expertise. (Herzog Decl. Exh. C at pp. 70–71.) And although Plaintiffs contend that O’Dell had previously provided cost estimates prepared by others, Defendant correctly notes that if Plaintiffs expected to rely on another expert to prepare a cost estimate, they should have designated that person as an expert in accordance with Code of Civil Procedure § 2034.260. (Opposition at p. 12.) Plaintiffs reasonably should have known to designate Hughes, or someone of equivalent expertise, at the time experts were exchanged.

O’Dell’s expert opinions have been relied upon through the course of this litigation. Plaintiff served O’Dell’s initial report on damages estimations in August 2023 (Egbase Decl. Exh. 1), and Plaintiff has used his estimates in responding to written discovery. (Herzog Decl. ¶ 16.) Plaintiff’s and Defendant’s experts in turn have relied upon O’Dell’s estimates in forming their own opinions.

The reliance entails substantial prejudice if leave to augment is given. Defendant contends that eight expert depositions will have to be retaken to account for the addition of Hughes’ new estimates, a contention that Plaintiff does not address in reply. (Herzog Decl. ¶ 30.) Although Plaintiff contends that O’Dell was to be re-deposed in any event, this deposition was to permit questioning on his adjustment of estimates for inflation prior to trial. (Egbase Decl. ¶ 23.) Whatever alteration of other expert opinions this might have entailed, it is substantially less than the adjustments that will be occasioned by the addition of a new expert with a new basis of opinion, already resulting in substantially higher cost estimates than those prepared by O’Dell.

It thus appears that Defendant has substantially relied upon the expert witness list already propounded by Plaintiffs. Permitting the augmentation sought will substantially prejudice Defendant. And Plaintiffs have not provided adequate excuse for the failure to timely designate a qualified repair-cost expert. Accordingly, no augmentation is warranted under Code of Civil Procedure § 2034.620.

The motion is therefore DENIED.

II. MOTION TO BIFURCATE

“The 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 . . . .” (Code Civ. Proc., § 1048, subd. (b).) Additionally, “[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 . . . .” (Code Civ. Proc., § 598.)

“It is within the discretion of the court to bifurcate issues or order separate trials of actions, such as for breach of contract and bad faith, and to determine the order in which those issues are to be decided.” (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.) “The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.)

Defendant seeks to bifurcate trial into two phases: a first phase in which the court holds a bench trial on the issue of liability for inverse condemnation, and a second phase in which a jury is empaneled to decide the issue of compensation on that claim, as well as Plaintiff’s claims for negligence and nuisance. (Motion at pp. 8–10.)

. “Bifurcation is a common and appropriate practice in inverse condemnation trials.” (Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1142.) In such cases, “the only issue to be determined by the jury is compensation.” (Id. at p. 1140.) All other issues going to the existence of a compensable taking, including causation, are nonjury questions. (Ibid.)

Plaintiffs in opposition argue that bifurcating trial as Defendant suggests would entail substantial duplication of evidence and testimony, particularly on the issue of causation and the parties’ dueling experts, David Wilshaw for Plaintiffs and Stavros Chrysovergis for Defendant. (Opposition at pp. 7–12.)

Defendant in turn argues that no expert testimony will be necessary in its proposed first phase of trial because the issue of whether a “taking” exists requires assessment of whether damage resulting to property is “caused by the inherent risks of the design or construction of a public improvement, a public entity must provide just compensation for the damage, whether it was intentional or the result of negligence by the public entity.” (City of Oroville v. Superior Court (2019) 7 Cal.5th 1091, 1106.) Defendant argues that because Plaintiffs have proposed no expert testimony concerning the inherent risks of the rail project to which they attribute their damages, the first phase of trial will entail only the testimony of Plaintiffs themselves and percipient witnesses, and involve little duplication into the next phase. (Motion at pp. 10–13.)

Defendant’s forecast of the first phase of trial is unlikely, as it ignores that any trial on the existence of a taking necessarily entails the issue of causation, which as Plaintiffs note in opposition will involve dueling experts, just as it will in Plaintiffs’ nuisance and negligence claims. Defendant’s contention that Plaintiffs’ experts are unprepared to testify concerning the design and construction of the rail project is merely an argument for why Plaintiff’s inverse condemnation claim should be dismissed, not why issues of causation will not be heard in their proposed phase of trial. (Reply at p. 8.)

Nonetheless, Plaintiff’s proposed alternatives — allowing concurrent trials of all claims, or else trying first Plaintiff’s claims for nuisance and negligence — risk surrendering decisions on issues of law to factfinders ill-equipped to determine them. (Opposition at pp. 17–18.) Although a jury may decide facts incident to inverse condemnation actions where the parties so stipulate, and the court agrees (See Marshall, supra, 219 Cal.App.3d at p. 1141), Defendant here objects to jury trial on the issue of liability in an inverse condemnation action.

A potential solution is suggested in the Marshall case. There, the court of appeal affirmed against a defendant’s objection to the trial court’s decision to bifurcate the issue of inverse condemnation liability from the issue of compensation, even when it allowed the trial court to decide the contested issue of causation. (Marshall, supra, 219 Cal.App.3d at p. 1140.) That case, as in the present action, involved claims for both inverse condemnation and torts, including negligence. (Id. at p. 1142.) The trial court resolved the competing jury and nonjury claims by holding a bench trial on the inverse condemnation claim in the presence of the jury, which, after the court rendered its decision out of the jury’s presence, proceeded to hear and try the other torts at issue. (Id. at pp. 1136–1137.)

Employing such a procedure here would preserve for the court the legal issue of liability for inverse condemnation, while allowing for jury trial on Plaintiffs’ alleged torts, without duplication of evidence and testimony. Nor is there reason to fear confusion resulting from the presentation of evidence related to the “taking” issue before the jury, because as Defendant concedes in its motion, it does not anticipate the presentation of evidence related to a taking beyond the testimony of lay witnesses. (Motion at p. 13.)

The motion to bifurcate is therefore GRANTED in part. Trial shall be divided into two phases, with the first phase addressed to the issue of liability on Plaintiffs’ inverse liability claim, tried to the court in the presence of a jury. The second phase of trial will address Plaintiffs’ compensation for the inverse condemnation claim, as well as Plaintiffs’ other claims, tried to the same jury.