Judge: Mark C. Kim, Case: 19STCV16319, Date: 2022-10-11 Tentative Ruling

Case Number: 19STCV16319    Hearing Date: October 11, 2022    Dept: S27

 SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - SOUTH DISTRICT

Moving Party:               Defendant, City of Long Beach

Opposition:                  Plaintiffs, Deborah Kern, et al.

Notice:                         OK

1.     Background Facts

Plaintiffs, Deborah, Heather, and Glenn Kern filed this action against Defendants, Hotel Maya, Doubletree by Hilton, Hilton Worldwide Holdings, Inc., City of Long Beach, County of Los Angeles, and the State of California for damages arising out of a fall that rendered Plaintiff a quadriplegic.

Plaintiffs have dismissed Hilton Worldwide Holdings, Inc., Hotel Maya, and Doubletree by Hilton.  Plaintiffs added Greentech Landscape, Inc. as a doe defendant.  The City has a cross-complaint against Greentech, and Greentech has a cross-complaint against the City.

2.     Motion to Bifurcate

a.     Parties’ Positions

The City moves to bifurcate the liability phase from the damages phase for trial.  The City contends it is highly unlikely it will be found liable for Plaintiff’s injuries.  It contends the witnesses and evidence to be presented during the liability phase does not overlap with the witnesses and evidence to be presented during the damages phase, and it will be seriously prejudiced if Plaintiffs are permitted to present evidence of Plaintiff’s disabling injuries during the liability phase.

Greentech joins in the motion.  It does not add additional argument or analysis, but indicates it also seeks the relief sought by the City.

Plaintiffs filed a non-opposition to the motion.  They indicate they do not oppose bifurcation, but they seek trifurcation.  Specifically, they seek to have the issue of indemnification and contribution between the City and Greentech tried before the liability or damages phase.  They contend this is necessary in order to avoid permitting the City and Greentech to “gang up” on Plaintiffs during the liability phase, at which point their interests are aligned.  They contend permitting the City and Greentech to both do opening and closing statements and to call witnesses during the liability phase would not be fair.

b.     Law Governing Bifurcation

Bifurcation is the procedure whereby the court may order separate trials of issues of parties joined in a single action.  The objective of bifurcation is to avoid wasting time and money on the trial of damages issues if the liability issue is resolved against the plaintiff.  Also, the procedure is not limited to separate trials of liability and damages; nor is it limited to dividing a case into only two parts.  A party seeking bifurcation should request such relief as soon as the need becomes apparent.  Delay may be a factor affecting the court’s exercise of discretion.  Generally, the court has the inherent power to regulate the order of trial and, therefore, can entertain a motion to bifurcate at any time, even during the trial. 

Pursuant to 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.”

c.     Analysis

All parties agree that hearing the liability issues prior to the damages issues is in the interest of justice in this case.  The Court agrees as well.  The parties agree that the evidence and witnesses will not overlap, and Plaintiff’s severe injuries create the very real risk of prejudice if the issues are not bifurcated.  The motion to bifurcate is therefore granted.

Plaintiffs’ request to trifurcate is denied for two reasons.  First, the Court does not typically grant alternative relief sought by way of an opposition (or non-opposition), and Plaintiffs did not file a noticed motion seeking trifurcation.  Second, while the Court understands the frustration of having Defendants “gang up” on Plaintiffs during the first phase of the trial, having the indemnification and contribution issues precede the liability issues makes little to no sense.   While the jury could potentially decide contractual indemnification issues first, both of the operative cross-complaints include equitable indemnification and contribution claims.  How can the jury apportion fault if the jury has not yet determined liability?  At most, the Court would be inclined to have the apportionment of fault issues decided contemporaneously with the liability issues (during the first phase of trial), but having them heard prior to the liability phase is nonsensical.

The motion to bifurcate is granted.  The trial remains scheduled for 10/24/22.  The parties must be prepared to go forward with the liability phase and then to immediately continue on to the damages phase if Plaintiffs are successful in establishing liability against one or both defendants; the Court will not allow the parties to come back and empanel a second jury on the damages phase. 

The parties must be prepared to discuss, at the FSC, how to proceed with the trial on the cross-complaints.  The trial on the cross-complaints will either be held concurrently with the trial on the liability phase, immediately after the trial on the liability phase (but before the damages phase), or concurrently with the damages phase.    

The City is ordered to give notice. 

Parties who intend to submit on this tentative must call the court at 562-256-2227 indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive a phone call indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.

DATED:  October 11, 2022                     _____________________________________

                                                            MARK C. KIM                                                                                                                                        Judge of the Superior Court