Judge: Robert B. Broadbelt, Case: BC704662, Date: 2022-10-26 Tentative Ruling

Case Number: BC704662    Hearing Date: October 26, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Maher Memarzadeh

RESPONDING PARTIES:    Defendants Lottie Cohen and Law Office of Lottie Cohen

(1)   Plaintiff’s Ex Parte Application to Continue Trial

MOVING PARTY:                Defendant Lottie Cohen

RESPONDING PARTY:       Unopposed

(2)   Defendant Cohen’s Motion to Bifurcate Trial

MOVING PARTIES:             Defendants Lottie Cohen and the Law Office of Lottie Cohen

RESPONDING PARTY:       Plaintiff Maher Memarzadeh

(3)   Defendants’ Motion to Compel Plaintiff’s Deposition

The court considered the moving and opposition papers filed in connection with plaintiff Maher Memarzadeh’s ex parte application to continue trial and related hearings.  The court considered the moving papers filed in connection with defendant Lottie Cohen’s motion to bifurcate trial.  No opposition to the motion to bifurcate was filed.  The court considered the moving and opposition papers filed in connection with Defendants’ ex parte application to compel Plaintiff’s deposition, which was converted into a motion to be heard at the Final Status Conference by the court’s September 26, 2022 order.

PLAINTIFF’S EX PARTE APPLICATION TO CONTINUE TRIAL

Plaintiff Maher Memarzadeh (“Plaintiff”) moves the court for an order continuing the trial and all scheduled hearings in this action for 12 weeks.

The court does not find good cause to grant Plaintiff’s request for an order continuing the hearings on the motion to bifurcate, motion to compel Plaintiff’s deposition, and motion to quash Plaintiff’s deposition subpoena.

The court finds good cause to grant Plaintiff’s ex parte application to continue the trial in this action because Plaintiff has submitted a letter from his physician, who states that Plaintiff “is unable to fly because of an inner ear disorder;” Plaintiff is currently undergoing medical testing and treatment; and “[t]he minimal period of time before he can travel is 12 weeks from” October 12, 2022.  (Memarzadeh Decl., Ex. 204.)

The court therefore grants Plaintiff’s ex parte application to continue the trial and the Final Status Conference, and denies Plaintiff’s ex parte application to continue the hearings on the motion to bifurcate, motion to compel Plaintiff’s deposition, and motion to quash Plaintiff’s deposition subpoena.

The court orders:

The trial in this action is continued from October 26, 2022 to ______________________, at 11:00 a.m., in Department 53.

The Final Status Conference is continued from October 26, 2022 to ______________________, at 11:00 a.m., in Department 53.

All discovery cut-off and discovery motion cut-off dates, and deadlines for the exchange of information concerning expert trial witnesses shall be based on the new trial date.

The court notes that Plaintiff filed this case on May 1, 2018.  The court expects Plaintiff to be ready for trial on the new trial date set forth above without further delay. 

DEFENDANT’S MOTION TO BIFURCATE TRIAL

Defendant Lottie Cohen (“Cohen”) moves the court for an order to bifurcate trial to try the issue of liability prior to and separate from the issue of punitive damages.

The court grants Cohen’s motion to bifurcate the issue of liability from the issue of punitive damages as set forth below.  (Code Civ. Proc., § 1048, subd. (b); Civ. Code, § 3295, subd. (d).)

Cohen primarily moves the court to bifurcate trial under sections 598 and 1048 of the Code of Civil Procedure, arguing that (1) adjudicating the issue of liability before presenting evidence of punitive damages promotes judicial economy; (2) Cohen will be prejudiced if punitive damages are heard concurrently with the liability phase of trial; and (3) Plaintiff will not be prejudiced by bifurcating these matters.  The court agrees, and finds that it is “in furtherance of convenience” and would avoid prejudice to bifurcate the issue of liability from the issue of punitive damages as set forth below.

Moreover, although not argued by Cohen, the court notes that Civil Code section 3295, subdivision (d) requires the court to, upon a defendant’s application, bifurcate the trial of these issues.  Specifically, this subdivision provides that “[t]he court shall, on application of any defendant, preclude the admission of evidence of that defendant’s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.  Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud.  Evidence of profit and financial condition shall be presented to the same trier of fact that found for the plaintiff and found one or more defendants guilty of malice, oppression, or fraud.”  “While the statute refers only to evidence of the defendant’s financial condition, in practice bifurcation under this section means that all evidence relating to the amount of punitive damages is to be offered in the second phase, while the determination whether plaintiff is entitled to punitive damages (i.e., whether the defendant is guilty of malice, fraud or oppression) is decided in the first phase along with compensatory damages.”  (Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 919.)   

Thus, the court finds that Cohen is also entitled to the bifurcation of trial pursuant to Civil Code section 3295, subdivision (d).

The court therefore grants defendant Lottie Cohen’s motion to bifurcate trial as set forth below.  (Code Civ. Proc., § 1048, subd. (b); Civ. Code, § 3295, subd. (d).)

The court orders trial of this action will be bifurcated as follows:  (1) the jury will first decide the issues of whether to impose liability for compensatory damages and, if so, the amount of compensatory damages and whether defendant Lottie Cohen is guilty of malice, oppression, or fraud, and (2) only after making findings in Plaintiff’s favor on all of those issues, the jury will then decide the issue of whether to impose punitive damages against defendant Lottie Cohen.  The court orders that the admission of evidence of defendant Lottie Cohen’s profits or financial condition shall be precluded until after the trier of fact returns a verdict for Plaintiff awarding actual damages and finds that defendant Lottie Cohen is guilty of malice, oppression, or fraud in accordance with Civil Code section 3294.  (Civ. Code, § 3259, subd. (d).)  Evidence of profit and financial condition shall be presented to the same trier of fact that found for Plaintiff and found defendant Lottie Cohen guilty of malice, oppression, or fraud.  (Civ. Code, § 3259, subd. (d).)   

DEFENDANTS’ MOTION TO COMPEL DEPOSITION

Defendants Cohen and Law Office of Lottie Cohen (“Defendants”) move the court for an order (1) compelling Plaintiff to appear and testify at deposition, and (2) imposing monetary sanctions against Plaintiff in the amount of $3,020.  Defendants move to compel Plaintiff’s deposition on the ground that Plaintiff, without having served valid objections, failed to appear for two noticed depositions.  (Glaser Decl., ¶¶ 5, 13; Glaser Decl., Exs. C, I [certificates of nonappearance].)

The court finds that Defendants have established good cause justifying the attendance of Plaintiff at deposition and the production of documents described in the deposition notice.  The court therefore grants Defendants’ motion to compel Plaintiff’s deposition.  (Code Civ. Proc., § 2025.430, subd. (a).) 

The court orders plaintiff Maher Memarzadeh (1) to attend and testify at a deposition to be taken by counsel for defendants Lottie Cohen and Law Office of Lottie Cohen on ______________, 2022, at 10:00 a.m., to be conducted by a videoconference platform selected by Defendants (or, if Plaintiff elects, to be conducted in person at Defendants’ counsel’s office), and (2) to produce for inspection at the deposition the documents described in the deposition notice that are in Plaintiff’s possession, custody, or control.   

The court denies Defendants’ request for monetary sanctions because the court finds that the circumstances presented make the imposition of sanctions unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  

The court orders defendants Lottie Cohen and Law Office of Lottie Cohen to give notice of this order.

IT IS SO ORDERED.

DATED:  October 26, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court