Judge Mark A. Young, Case Number: 22SMCV00212, Date: 2024-02-06 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV00212, Date: 2024-02-06 Tentative Ruling

Case Number: 22SMCV00212 Hearing Date: February 6, 2024 Dept: M

CASE NAME: Michelle Farrell, et al. v. Lorraine Anderson, et al.

CASE NO.: 22SMCV00212

MOTION: Motion to Bifurcate

HEARING DATE: February 6, 2024

Background

Plaintiff Michelle Farrell leased property from Defendant Henry Darshad, who is now deceased, pursuant to a valid written lease-to-own agreement. Plaintiff Farrell alleges Defendant Darshad knowingly and maliciously filed and maintained baseless unlawful detainer actions against Farrell, alleging that she was a squatter. Defendant Darshad died while the UD actions were pending. Plaintiff Farrell ultimately obtained a favorable judgment in the UD actions. Plaintiff also alleges that Defendant Darshad assaulted and battered her during her tenancy, made derogatory and threatening statements to her and forced her to wear hijabs. Plaintiff alleges Darshad also locked her out of the leased property multiple times.

On February 15, 2022, Plaintiff filed this action against Defendants Henry Darshad, Lorraine Anderson (Darshad’s attorney), Goldie Marshall (special administrator of Darshad’s estate) and the Estate of Henry Houshang Darshad. Plaintiff alleges (1) malicious prosecution and (2) intentional infliction of emotional distress (IIED). On January 9, 2024, Defendant Lorraine Anderson filed the instant Motion to Bifurcate the Issue of Probable Cause. On January 23, 2024, Plaintiff filed an opposition to the Motion to Bifurcate. On January 31, 2024, Defendant Anderson filed a Reply.

Legal Standard

Pursuant to Code of Civil Procedure (CCP) §1048(b), “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, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of the state or of the United States.”

CCP §598 provides in pertinent part as follows: “The 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, except for special defenses which may be tried first pursuant to Sections 597 and 597.5.” (Emphasis added).

The terms “bifurcate” and “severance” are often used interchangeably. But they have somewhat different meanings. A motion to “sever” asks the court to order separate trials of issues, causes of action, or parties joined in a single action. (CCP §§ 1048(b), 598, 597, 597.5, 379.5; Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 323, fn. 5.) The purpose is to avoid prejudice, to promote convenience, or to permit greater expedience and economy. (CCP § 1048(b).) A motion to “bifurcate” is a type of severance motion. It asks for a separate trial on the issue of liability before trial of damages. The objective is “to avoid wasting court time in cases where the plaintiff loses on the liability issue, to promote settlements where the plaintiff wins on the liability issue, and to afford a more logical presentation of the evidence, thus simplifying the issues for the jury.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.)

Granting or denying of a motion for separate trials lies within the trial court’s sound discretion, and is subject to reversal on appeal only for clear abuse. (Grappo v Coventry Financial Corp. (1991) 235 Cal App 3d 496, 504.) “The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark v. Fallon (1971) 3 Cal.3d 875, 888.) CCP §1048 also authorizes a court to separate trial of any issue for furtherance of convenience or to avoid prejudice or where separate trials will be conducive to expedition and economy.

Analysis

I. Parties’ positions

Defendant Anderson moves to bifurcate trial of the probable cause element of Plaintiff’s malicious prosecution cause of action from the rest of Plaintiff’s claims. Anderson argues whether probable cause to file the underlying UD actions existed is a question of law for the Court and can be resolved based on stipulated facts and legal argument. Anderson argues that based on the undisputed facts, probable cause existed for her to file the underlying UD actions.

In response, Plaintiff argues the Court has already found in connection with Defendant’s prior SLAPP motion that she presented prima facie evidence of her malicious prosecution claim, which includes lack of probable cause. Plaintiff argues Defendant Anderson is attempting to relitigate the issue. Plaintiff argues Defendant did not appeal the SLAPP and cannot seek reconsideration by way of this motion to bifurcate.

Defendant Anderson argues Plaintiff’s opposition fails to address the issue of bifurcation. Defendant argues bifurcation based on stipulated facts would be most efficient. Defendant argues if the Court finds Defendant had probable cause to file the UD actions, the case would be over. Defendant argues if the Court finds lack of probable cause, the issues of malice and damages would remain for the jury.

II. DETERMINING PROBABLE CAUSE

“Probable cause is present unless any reasonable attorney would agree that the action is totally and completely without merit. This permissive standard for bringing suits, and corresponding high threshold for malicious prosecution claims, assures that litigants with potentially valid claims won't be deterred by threat of liability for malicious prosecution.” (Roberts v. Sentry Life Ins. (1999) 76 Cal.App.4th 375, 382 (emphasis added).) “If the court determines that there was probable cause to institute the prior action, the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886.) The probable cause determination depends on what was known by the litigant or attorney at the relevant time, either when the action was filed or when the malicious prosecution plaintiff asserts prosecution of the action became ‘malicious.’” (Sheldon Appel Co., supra, 47 Cal.3d at 868; Zamos v. Stroud (2004) 32 Cal.4th 958, 973 (malicious prosecution action includes continuing to prosecute a lawsuit discovered to lack probable cause).)

There are two distinct methods of demonstrating that an action lacked probable cause. Lack of probable cause may be established by demonstrating that (1) the action was legally untenable based on the facts known to the defendant, a pure question of law for the Court; or (2) the action was legally untenable because the defendant did not have a good faith, reasonable belief in the facts upon which the case was based, defendant’s good faith belief being a question of fact for the jury and the ultimate determination of lack of probable cause based on that jury finding being a question of law for the Court. (Sheldon Appel, supra, 47 Cal.3d at 880; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; Sierra Club Foundation v Graham (1999) 72 Cal.App.4th 1135, 1154; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165 (litigant lacks probable cause where he “relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him”); Hufstedler, Kaus & Ettinger v. Supr. Ct. (1996) 42 Cal.App.4th 55, 63-64 (distinguishing between allegation that probable cause did not exist to sue for defamation because statements were nonactionable opinions and allegation that probable cause did not exist because defendant knew claims was false or untrue).

“[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury.” (Sheldon Appel Co, supra, 47 Cal.3d at 875.) “While…the probable cause determination has always been considered a question of law for the court, the cases have also made clear that if the facts upon which the defendant acted in bringing the prior action are controverted, they must be passed upon by the jury before the court can determine the issue of probable cause. What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court, the latter for the jury.” (Id. at 878.)

“Thus, when…there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Id. at 881.) “Accordingly, when…the facts known by the attorney are not in dispute, the probable cause issue is properly determined by the trial court under an objective standard; it does not include a determination whether the attorney subjectively believed that the prior claim was legally tenable.” (Id.)

III. DEFENDANT FAILS TO ESTABLISH BIFURCATION WOULD BE PROPER HERE

Anderson’s request to bifurcate rests entirely on the assertion that probable cause is purely a question of law to be determined by the Court. However, as explained in Sheldon, if there is a question or dispute as to whether the facts relied upon by Anderson existed or whether Anderson believed those facts to be true, those are factual questions that must be resolved by a jury and the Court’s ultimate legal determination will be based on the jury’s resolution of those factual issues.

As the Court noted in its ruling on the SLAPP motion, Plaintiffs submitted sufficient circumstantial evidence indicating that Anderson lacked probable cause to continue prosecuting the UD action because her factual theory lacked evidence. The facts relied on by Anderson to file the UD actions were disputed by an overwhelming amount of evidence, as well as an interim ruling on Plaintiffs’ TRO request wherein the court issued the TRO based on evidence of a lease agreement between Plaintiff and Darshad.

At least one of the possible theories advanced by Plaintiff is that Defendant Anderson did not have a good faith belief that Plaintiff and Darshad never executed a valid lease or that Plaintiff was merely a squatter who was occupying the property without permission. “Usually, the client provides information upon which the attorney relies in determining whether probable cause exists for initiating a proceeding. The rule is that the attorney may rely on those statements as a basis for exercising judgment and providing advice, unless the client's representations are known to be false. In other words, probable cause is measured by the facts related to the lawyer by the client, assuming them to be true, and those learned through investigation.” (1 Mallen & Smith, Legal Malpractice (Thomson Reuters/West 2009 ed.) § 6.19, pp. 813-814.) Despite having probable cause for initiation, “an attorney may be held liable for malicious prosecution for continuing to prosecution a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 973.) A jury must determine whether a defendant in a malicious prosecution action knew that the facts on which the underlying action was based were untrue. (Sheldon Appel Co, supra, 47 Cal.3d at 875.)

The undisputed facts identified by Anderson in her brief do not resolve the issue of whether she had a good faith, subjective belief in the truth of the facts on which she based the UD action. Anderson argues it is undisputed that Darshad alleged that Plaintiff entered the rental property without his permission, that Darshad testified consistent with these allegations and that an expert testified that the lease, lease with option and payment receipt were “not genuine.” (Motion, 6:1-9.) However, even if these facts are undisputed, they do not establish as undisputed Anderson’s reasonable, good faith belief in Darshad’s assertions that he never signed a lease with Plaintiff and that Plaintiff was a squatter who entered the premises without permission. Moreover, the Court already determined in connection with Anderson’s SLAPP motion that sufficient circumstantial evidence exists to call into question whether Anderson knew the factual basis for the UD action was untrue.

Anderson argues bifurcation is proper, because the jury will have no possible role in the probable cause determination. Anderson fails to establish that the jury will have no possible role. Thus, Anderson’s Motion to Bifurcate is DENIED.