Judge: Mark A. Young, Case: SC129512, Date: 2022-09-14 Tentative Ruling
Case Number: SC129512 Hearing Date: September 14, 2022 Dept: M
CASE NAME: Goldberg v.
Intex Design & Construction Inc., et al.
CASE NO.: SC129512
MOTION: Motion
to Sever Trial on Cross-Complaint, and
Motion to Strike Roe Amendments
HEARING DATE: 9/14/2022
BACKGROUND
Plaintiff Aimee Goldberg commenced this action on June 29, 2018, alleging
construction defects against Defendants Intex Design & Construction
Inc., Sama Eshragi, Ali Reza Ershandi, and Jose Ruelas Jimenez. On February 19, 2020, Defendants filed a
cross-complaint, which seeks equitable indemnity, partial indemnity,
contribution, apportionment, and declaratory relief against third parties.
Cross-Complainants filed several
amendments naming Roe defendants. Roe 1 was named as Studio H20/Pejman. On July
2, 2021, Mariano Espinoza dba ME Concrete was added as Roe 2. Pertinently, on
August 19, 2022, Defendants added Roes 3 and 4: Hegoas Construction and
Hutchinson Engineering Inc.
Plaintiff objects to the most
recent Roe amendments and brings alternate motions. On August 25, 2022,
Plaintiff filed a motion to sever the trial on the cross-action, and proceed
with the October 3, 2022, trial date on Plaintiff’s complaint only. On August
31, 2022, Plaintiff also filed a motion to strike the third and fourth Roe amendments.
Defendants oppose the motions.
Legal
Standard
Motion to Sever
Pursuant
to Code of Civil Procedure § 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.” Section 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.
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.) For example, bifurcation may
“avoid wasting time and money on the trial of damages issues if the liability
issue is resolved against plaintiff.” (Horton v Jones (1972) 26 Cal App
3d 952, 954.)
Motion to Strike Fictitiously Named Defendants
Code of Civil Procedure section
474 provides, in pertinent part, as follows: “When the plaintiff is ignorant of
the name of a defendant, he must state that fact in the complaint, or the
affidavit if the action is commenced by affidavit, and such defendant may be
designated in any pleading or proceeding by any name, and when his true name is
discovered, the pleading or proceeding must be amended accordingly . . ..”
“The purpose of Code of Civil Procedure
section 474 is to enable a plaintiff who is ignorant of the identity of the
defendant to file his complaint before his claim is barred by the statute of
limitations.” (Barrows v. American Motors Corp., (1983) 144
Cal.App.3d 1, 7.) An amendment that replaces a Doe defendant with a named
defendant will relate back to the filing of the original complaint if the
original complaint stated a cause of action against the Doe defendant, the
allegations against the defendant that is being added arise from the same facts
or circumstances giving rise to the original complaint, and the original
complaint alleged that plaintiff was ignorant of the true name and capacity of
each Doe defendant. (Fireman’s Fund
Ins. Co. v. Sparks Const., Inc., (2004) 114 Cal.App.4th 1135, 1143-1144.)
Analysis
Motion to Sever
Defendants request that the Court exercise its indisputable discretion
to sever the cross-complaint from the impending trial. Defendants also
note that it is unknown how long the new Roe defendants will take to be ready
for trial. Defendants assert that severance
would be a fair result, since Plaintiff will still have her day in court
without concerns regarding the five-year cut-off statute.
Here, the Court concludes that that severance of the claims would not further
the convenience of the parties or avoid any substantial prejudice. Moreover,
the Court would find that multiple trials would require the presentation of
duplicative evidence and witnesses, and therefore not be conductive to judicial
economy.
Accordingly, the motion to sever is DENIED.
Motion to Strike
Roe Amendments
Defendants bring a Barrows motion. (See Barrows v.
American Motors Corp., (1983) 144 Cal.App.3d 1, 7.) Courts have
summarized Barrows as follows:
“First, section 474 includes an
implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her
filing of a Doe amendment after learning a defendant’s identity. Second, a
defendant named in an action by a Doe amendment under section 474 may challenge
the amendment by way of an evidence-based motion, which argues that the
plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment.
Third, ‘unreasonable delay’ . . . includes a prejudice element, which requires
a showing by the defendant that he or she would suffer prejudice from
plaintiff's delay in filing the Doe amendment.”
(A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058,
1066-1067.)
Section 474 is only available “when the
plaintiff is actually ignorant of the facts establishing a cause of action
against the party to be substituted for a Doe Defendant.” (McClatchy v. Coblentz, Patch, Duffy &
Bass, LLP (2016) 247 Cal.App.4th 371-372.) “‘Ignorance of the facts
giving rise to a cause of action is the ignorance required by section 474, and
the pivotal question is, ‘did plaintiff know facts?’ not ‘did plaintiff
know or believe that [he] had a cause of action based on those facts?’” (Id.
at 372, quoting General Motors Corp. v. Superior Court (1996) 48
Cal.App.4th 580, 594.) “‘Although it is true that a plaintiff’s ignorance of
the defendant’s name must be genuine (in good faith) and not feigned
[citations] and that a plaintiff need not be aware of each and every detail
concerning a person’s involvement before the plaintiff loses his ignorance
[citations], it is equally true that the plaintiff does not relinquish [his]
rights under section 474 simply because [he] has a suspicion of wrongdoing
arising from one or more facts [he] does know.’” (Id.) The
fact that the plaintiff had the means to obtain knowledge is irrelevant. (Id.) In
other words, actual knowledge of defendants’ identity must be shown, and “constructive
or legal knowledge will not deprive the plaintiff of the remedy.” (Sobeck
& Associates, Inc. v. B&R Investments No. 24 (1989) 215 Cal.App.3d
861, 867; see also McOwen, supra, 153 Cal.App.4th at 943-944 [“reasonable diligence is not germane to determining whether a Doe
amendment was timely.”].)
Thus, the Court must determine
when Cross-Complainants had actual knowledge of the claims against Roes
3 and 4 (Hegoas Construction and Hutchinson Engineering Inc.). The Court
must then determine whether Cross-Complainants unreasonably delayed after
having actual knowledge. Plaintiff must also demonstrate prejudice suffered as
a result of the delay in filing the doe amendment.
Here, Plaintiff’s
expert, Mr. Livingston, shared with Cross-Complainants’ expert, Mr. Viau,
certain documents and opinions regarding the scope of damages and cost of
repairs. (Livingston Decl., ¶3-6.) This occurred between April 11, 2019, and
August 7, 2019. (Id., Ex. 3.) Counsel further provides that he generally voluntarily
discloses all expert reports during the course of the litigation, and that he believes
that he previously provided all documents in the expert request document
disclosure. (Koenig Decl., ¶ 5.) The
record also demonstrates that Cross-Complainant sought documents from Hegoas
Construction as early as 2019, and through 2021.
This record is insufficient to infer actual knowledge when the Court considers the
counter declarations. Counsel for
Defendants states that Plaintiff has never revealed in discovery who the
identity of the subcontractors working for Hegoas were, but recently (around
mid-July 2022), Counsel received and reviewed the job file of Plaintiff’s
expert Morgan Livingston that was approximately 4600 pages in length.
(MacDonald Decl., ¶¶ 5, 10.) At that time, counsel learned for the first time
that Livingston had Hegoas approach an entity named Hutchinson Contractors to
produce a cost of repair of the work by Intex in August 2017, which assumed
that all of the work by Intex had to be removed and replaced. (Id., Ex. A.)
This was the first repair estimate produced by Plaintiff which had not been
authored by Morgan Livingston. (Id.) After counsel showed the Ershandis, they
recalled that Hutchinson performed work for Plaintiff on the original
construction including utility trenching and subsequent backfill in the
vicinity where the infiltration pit was failing allegedly due to work by Intex.
(Id. ¶¶ 6-7.) At the deposition of defense expert Viau, he testified that the
party responsible for the backfill of the utility trench could be culpable for
the subsidence. (Id., ¶8.) Thus, the evidence
before the Court is that Defendants were actually ignorant of the facts
establishing a cause of action against Hegoas and Hutschinson until July
2022.
While the Court would find prejudice since
the amendment will delay the trial and add costs to trial preparation (see Magpali v. Farmers
Group, Inc. (1996) 48 Cal.App.4th
471, 486-488.), the evidence supports the conclusion that Defendants did
not have actual knowledge of their claims against the newly named roe
defendants. Accordingly, Plaintiff’s motion to strike
the roe amendments is DENIED.