Judge: Randy Rhodes, Case: 20CHCV00633, Date: 2023-03-17 Tentative Ruling

Case Number: 20CHCV00633    Hearing Date: March 17, 2023    Dept: F51

Dept. F-51 

Date: 3/17/23                                                                                      TRIAL DATE: 3/27/23

Case #20CHCV00633

MOTION TO BIFURCATE

Motion Filed: 11/3/22

MOVING PARTY: Defendant/Cross-Complainant American Contractors Indemnity Company (“Cross-Complainant”)

RESPONDING PARTY: Defendant/Cross-Defendant Oscar A. Pena, individually and doing business as O P Construction Co. (“Cross-Defendants”)

NOTICE: OK

RELIEF REQUESTED: An order severing the Cross-Complainant’s Cross-Complaint against

Cross-Defendants.

TENTATIVE RULING: The motion is granted. Cross-Complainant to submit its default judgment package against Cross-Defendants within 10 days.

BACKGROUND

This action arises out of a construction project for residential home renovations that was to be performed at the property located at 11457 Delano St., North Hollywood, California 91606.  However, the project was abruptly abandoned after significant payments had been made under the contract. 

On 10/15/20, Plaintiffs Fredy R. Morales and Carmen Morales (collectively, “Plaintiffs”) filed a complaint against Defendants Roberto Gonzales Viramontes (“Viramontes”), Oscar A. Pena, individually and doing business as O P Construction Co., American Contractors Indemnity Company, and Suretec Indemnity Company (“Suretec”), alleging the following causes of action: (1) Breach of Contract; (2) Breach of Express and Implied Warranties; (3) Negligence; (4) Conversion; (5) Recovery on Contractors’ License Bonds; and (6) Recovery on Money Paid to Unlicensed Contractor(s).

On 12/7/20, Cross-Complainant filed its answer and a cross-complaint against Cross-Defendants, alleging the following causes of action: (1) Breach of Contract; (2) Statutory Indemnity; (3) Declaratory Relief; and (4) Specific Performance. On 2/3/31, default was entered against Cross-Defendants as to the cross-complaint.

On 2/21/23, Cross-Complainant filed the instant motion to bifurcate. No opposition has been filed to date.

ANALYSIS

“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.” (Code Civ. Proc. § 1048, subd. (b).)

Additionally, on motion of a party, or sua sponte, the court may order the trial of “any issue or any part thereof” to precede the trial of any other issue except special defenses. Code Civ. Proc. § 598.) As with general severance under Code of Civil Procedure section 1048, such order may be made “when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby.” (Ibid.) A party's motion under this section must be made in a timely fashion so that the order for separate trial of any issue is made no later than 30 days before trial. (Ibid.) However, the trial court may sua sponte order bifurcation or severance of an issue at any time, including after the trial has commenced. (Ibid.)

Here, Cross-Complainant moves the court to sever the trial of its cross-complaint for indemnification against Cross-Defendants so that it may file a default judgment package against Cross-Defendants. Cross-Complainant contends that it has settled the matter between itself and Plaintiffs, and will be dismissed from Plaintiffs’ complaint. (Mot., 3:7–8.) “Therefore, ACIC’s remaining involvement in the case is its defaulted Cross-Complaint against OP CONSTRUCTION for indemnity.” (Id. at 3:9–10.)

Cross-Complainant argues that “Such time spent sitting through the trial will be costly for ACIC in time and attorney fees, and will be of no assistance to the Court. It will not promote judicial efficiency to have ACIC wait for days of trial on plaintiff’s complaint, especially when ACIC can be allowed to submit a default judgment package. It would be a matter of great inconvenience to ACIC as well as the court to have ACIC appear at a trial to prove up a defaulted Cross-Complaint.” (Id. at 4:24–28.)

The Court agrees with Cross-Complainant, and finds that a severance of Cross-Complainant’s indemnity claims against the defaulted Cross-Defendants would further judicial convenience, expedition, and economy. The Court also notes that the instant motion is unopposed, therefore no showing of prejudice as to any other party has been made.

The Court has sua sponte authority to grant the motion to bifurate.

Accordingly, Cross-Complainant’s motion is granted.

CONCLUSION

The motion is granted. Cross-Complainant to submit its default judgment package against Cross-Defendants within 10 days.