Judge: Melvin D. Sandvig, Case: 19CHCV00604, Date: 2022-10-04 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 19CHCV00604    Hearing Date: October 4, 2022    Dept: F47

Dept. F47

Date: 10/4/22                                                              TRIAL DATE: 12/5/22

Case #19CHCV00604

 

MOTION IN LIMINE #1/MOTION TO DETERMINE JURY TRIAL HAS BEEN WAIVED AND ALTERNATIVELY,

TO DETERMINE THE PHASES OF TRIAL & FOR BIFURCATION

 

Motion in Limine # 1 filed 8/23/22.

 

Motion filed 8/26/22.

 

MOVING PARTY: Defendants Melvin James Burrell, Regal Services Group and Capital Executive Realty, Inc.

RESPONDING PARTY: Plaintiff Andrew Dow

 

RELIEF REQUESTED: An order determining that the case proceed as a bench trial on the grounds that Plaintiff waived his right to a jury trial pursuant to CCP 631(f)(5) and if not, to determine the phases of the trial including the equitable causes of action which are for the court to decide: 3rd cause of action for breach of fiduciary duty and 5th cause of action for unfair business practices pursuant to Business and Professions Code 17200 and 17203, et al. as well as alter ego liability.

 

RULING: The request to determine the case proceed as a bench trial on the ground that Plaintiff waived his right to jury trial is denied.  The alternative request for bifurcation/determination of the phases of trial is granted as set forth below. 

 

This is a real estate disclosure case.  Plaintiff Andrew Dow (Plaintiff) is the purchaser and defendants are the real estate broker/agent and related businesses.  The operative First Amended Complaint contains causes of action for: (1) Breach of Written Agreement, (2) Negligence – Breach of Non-Fiduciary Duties, (3) Breach of Fiduciary Duties by Escrow Company, (4) Fraudulent Misrepresentation and Concealment and (5) Unfair and Deceptive Business Practices (Business & Professions Code 17200, 17203).  

 

On 8/23/22, Defendants Melvin James Burrell, Regal Services Group and Capital Executive Realty, Inc. (Defendants) filed their Motion in Limine #1 which seeks an order determining that the case proceed as a bench trial on the grounds that Plaintiff waived his right to a jury trial pursuant to CCP 631(f)(5) and if not, to determine the phases of the trial including the equitable causes of action which are for the court to decide: 3rd cause of action for breach of fiduciary duty and 5th cause of action for unfair business practices pursuant to Business and Professions Code 17200 and 17203, et al. as well as alter ego liability.  On 8/26/22, Defendants filed a regularly noticed Motion to Determine That Jury Has Been Waived and Alternatively to Determine the Phases of Trial and for Bifurcation (Motion).  Defendants concede that the two motions are identical.  (See Motion in Limine # 7, p.7:18-21; Motion, p.7:19-22).  On 9/16/22, the Court set the hearings on the identical motions for 10/4/22.  (See 9/16/22 Minute Order).  Plaintiff has opposed the motion.

 

The Court finds that Plaintiff’s argument that the motions must be denied because they were not timely served is moot due to the fact that the motions have now been specially set by the Court and Plaintiff has opposed the motions on the merits.  Additionally, the Court has considered the arguments made by Plaintiff and Defendants the two oppositions and the two replies filed in relation to the motion(s). 

 

CCP 631(f)(5) provides that “[a] party waives trial by jury…[b]y failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.”  CCP 631(b) provides:

 

At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case.  The fee shall offset the costs to the state of providing juries in civil cases.  If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case.  Payment of the fee by a party on one side of the case shall not relieve parties on the other  side of the case from waiver pursuant to subdivision (f). 

 

CCP 631(c) provides in relevant part that “[t]he fee described in subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action… .” 

 

Here, the initial case management conference took place on 12/23/19.  (See 12/23/19 Minute Order).  Plaintiff did not post jury fees until 11/25/20.  (See Labrum Decl. ¶2, Ex.A attached to Opposition filed on 9/6/22).  Therefore, pursuant to CCP 631(f)(5), Plaintiff waived his right to a jury trial.  However, case law provides that if a party waives its right to a jury trial by failing to timely post jury fees, it is an abuse of discretion for the trial court to deny relief from such waiver where the opposing party fails to show prejudice from granting relief.  See Mackovska (2019) 40 CA5th 1, 9-10; Boal (1985) 165 CA3d 806, 809; Gann (1991) 231 CA3d 1698, 1703; Tesoro del Valle Master Homeowners Association (2011) 200 CA4th 619, 638. 

 

Based on the facts that Plaintiff has since posted jury fees and Defendants have failed to show that they would suffer prejudice from granting Plaintiff relief from the waiver of the right to a jury trial, the request for an order determining that Plaintiff has waived his right to a jury trial and that the case proceed as a bench trial is denied. 

 

Defendants’ alternative request for bifurcation is not clearly set forth in the notices of the motions.  See CRC 3.1110(a).  In the notices of the motions, Defendants state that if the Court does not find that Plaintiff has waived his right to a jury trial, that the court “determine the phases of the trial including of the equitable causes of action, third cause of action for breach of duties and fifth cause of action for Unfair Business Practices pursuant to Business and Professions Code section 17200 and 17203 et al. as well as alter ego allegations of liability, which are for the court to decide from remaining causes of action for breach of contract, negligence and fraud, which are for the jury to decide[.]”  (See Motion in Limine, p.ii:2-7; Motion, p.ii:3-8).  

 

In the memorandums of points and authorities, Defendants set forth different alternatives for how the trial of the case can be bifurcated.  Specifically, Defendants state:

 

The court could either commence with the court trial on the equitable claims prior to any jury issues and could defer the motions in limine, most or all of which would become moot or stipulated to. Alternatively, the court could proceed with the jury trials first [Statute of Limitation trial, followed by either breach of contract, negligence and fraud claims, or if the Statute of Limitations bars the breach of contract and negligence, then only the fraud cause of action would go to the jury] and address the motions in limine and conduct the court trial while the jury is deliberating. In either case, the alter ego allegations would, if required need to be tried as the last bifurcated issue before the court.

 

(See Motion in Limine #1, p.2:16-p.3:3; Motion, p.2:19-p.3:2).

 

In a footnote, Defendants go on to state:

 

As the escrow fees paid by plaintiff have been tendered with interest at the legal rate and there are very limited issues relating to the escrow company, the equitable causes of action should be a short cause trial and therefore should go first. Having the equitable trial go first would also likely moot most or all of the motions in limine. There is also the possibility the matter will settle or plaintiff will waive jury after the equitable causes of action are tried to the court.

 

(See Motion in Limine #1, p.2 fn.1; Motion, p.2 fn.1).

 

Having not mentioned it in the notices of motion, Defendants also argue at the end of their memorandums, without citing any supporting authority, that the Court should also order that the punitive damage phase of the trial be bifurcated from the liability phases.  (See Motion in Limine #1, p.8:13-19; Motion, p.8:14-20).

 

The only argument Plaintiff offers in response to the request for bifurcation is that it is improper pursuant to Los Angeles Superior Court, Local Rule 3.57(c) which provides:

 

A motion in limine may not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues.  That motion may only be made in compliance with Code of Civil Procedure section 598.

 

However, Local Rule 3.25(f)(2) provides:

 

In a direct calendar case, the parties must file and serve any trial preparation motions and dispositive motions, other than summary judgment motions, including motions in limine or bifurcation motion, with timely statutory notice so as to be heard on the day of the final status conference. Unless the court orders otherwise, lead trial counsel must attend the final status conference. At this conference, the court will also consider, inter alia, major evidentiary issues and special verdict issues.

 

Based on the continuance of the trial date and the specially setting of the instant motion two months before the current 12/5/22 trial date, the Court finds Plaintiff’s argument to be without merit. 

 

Based on the foregoing, the Court will try the equitable claims of breach of fiduciary duty and unfair business practices first.  The jury trial of the statute of limitations defense as to the breach of contract and negligence claims will then proceed.  (See 4/7/22 Minute Order).  Then, the jury trial as to the fraud cause of action will proceed as will the jury trial as to the breach of contract and negligence causes of action if they are not found to be time-barred.  Finally, if necessary, the Court will determine the equitable issue of alter ego liability.