Judge Ronald F. Frank, Case Number: 20STCV35557, Date: 2024-08-28 Tentative Ruling

Judge: Ronald F. Frank, Case: 20STCV35557, Date: 2024-08-28 Tentative Ruling

Case Number: 20STCV35557 Hearing Date: August 28, 2024 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: August 28, 2024¿¿

¿¿

CASE NUMBER: 20STCV09554 [consolidated case: 20STCV35557]

¿¿

CASE NAME: Maria Lopez; Martin Gonzalez v. Matrix Service, Inc., et al.

¿¿

MOVING PARTY: Defendant, Directank Environmental

RESPONDING PARTY: Defendant, Matrix Services, Inc.

¿¿

TRIAL DATE: September 9, 2024

¿¿

MOTION:¿ Motion for Determination of Good Faith Settlement

Tentative Rulings: ARGUE the minor’s compromise contingency of the proposed policy-limits settlement proposal

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

On March 6, 2020, Plaintiffs Maria Lopez and Martin Gonzalez (“Parent Plaintiffs”) filed a complaint against Defendants, Matrix Service, Inc., Brandon K. Austin, PBF Energy Limited, Christian Martin Gonzalez, Sonia Jasmin Soto, and DOES 1 through 50 in the leading case. On May 8, 2020, Plaintiffs, Maria Lopez and Martin Gonzalez filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) Negligence – Wrongful Death; (2) Strict Liability – Product Liability; and (3) Professional Negligence.

Shortly after, on September 17, 2020, in the consolidated case, Plaintiffs, Sonia Soto, individually and successor-in-interest to The Estate of Gamaliel Gonzalez, Jayden Salas, by and through his Guardian Ad Litem, Sonia Soto, Christian Gonzalez, by and through his Guardian Ad Litem, Sonia Soto (“Soto Plaintiffs”) filed a complaint. The complaint alleges causes of action for: (1) Negligence; (2) Strict Products Liability; and (3) Breach of Warranties.

Defendant, Directank Environmental (“Directank”) has filed a Motion for Determination of Good Faith Settlement seeking an order determining the following: (1) that Directank’s settlement with Plaintiffs, Maria Lopez, Martin Gonzalez, and Christian Gonzalez, by and through his Guardian Ad Litem Sonia Soto (collectively, “Plaintiffs”), (all together, “Settling Parties”), in the amount of One Million Dollars ($1,000,000), in addition to the terms set forth in that certain Settlement Agreement and Release executed by the Settling Parties, is made in good faith pursuant to Code of Civil Procedure sections 877 and 877.6 and the factors set forth by the Supreme Court of California in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488; and (2) that the settlement bars all claims, present and future, against Defendant Directank, for contribution and/or equitable indemnity

B. Procedural

Further, on August 1, 2024, Directank filed the motion for Determination of Good Faith Settlement. On August 19, 2024, Matrix filed an opposition brief. On August 21, 2024, Directank filed a reply brief.

II. ANALYSIS¿

A. Legal Standard

California Code of Civil Procedure section 877.6(a)(1), provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. § 877.6(c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc. § 877(a).)

“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc. § 877.6(d).) On Westwood’s application, that places the burden on HH Drywall to show a lack of good faith.

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed, and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counter declarations to negate the lack of good faith asserted by the nonsettling contesting party.

(192 Cal.App.3d 1251, 1260-61 (citation omitted).)

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc., supra, 38 Cal.3d at 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Id.)

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at 499-500.)

“[A] court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)

B. Discussion

Rough Approximation of Plaintiffs’ Total Recovery and Proportionate Liability

First, Directank argues that Plaintiff’s total recovery in relation to the proportionate liability of Directank weighs in favor of finding that the settlement was made in good faith. For example, Plaintiffs’ allegation of damages are based on purported vicarious liability of Defendant Austin while he was an employee of Directank in designing the subject jack stand that allegedly failed while Decedent was performing maintenance inside an above-ground storage tank, which resulted in his death. Directank has asserted that all work performed by Defendant Austin in creating drawings of the subject jack stand was conducted outside the scope of his employment with Directank, and instead, was performed using Defendant Austin’s personal company. As such, Directank notes that there remains a dispute as to whether Directank can even be held vicariously liable for the actions of Defendant Austin in designing the subject jack stand.

As for proportionality of liability, Directank notes that based on the fact that there is a lack of evidence of any direct liability against Directank, that Plaintiffs have remaining claims against non-settling party Defendant, Matrix Service, Inc., and the potential allocation of liability attributable to Decedent’s employer, J.T. Thorpe, and/or Defendant Austin, individually still remain and must be taken into consideration. For example, Directank examined that if there is a rough approximation of Plaintiffs’ total recovery amounting to between $15,000,000 and $20,000,000, Directank’s proportionate liability should fall somewhere within a range between 10-20% of the total recover (amounting to $1,500,000-$5,000,000). Although Directank notes that it has maintained its position that Plaintiffs’ allegations are insufficient to establish that Directank could be held vicariously liable for the independent actions of Defendant Austin, and therefore denies liability for the damages Plaintiffs have allegedly sustained, to avoid further litigation cost and the uncertainty of further litigation, Directank and Plaintiffs agreed to an arm’s length settlement for Directank’s policy limits.

In opposition , Matrix asserts that the proposed settlement is conditioned on: (1) a finding by the Court that the settlement was made in good faith under Cal. Code Civ. Proc. section 877.6, and (2) issuance of an Order granting a Petition for Approval of Minor’s Compromise for Plaintiff Christian Gonzalez, by and through his Guardian Ad Litem, Sonia Soto. However, Matrix argues that Plaintiff cannot file the Petition for Approval of Minor’s Compromise until after an allocation of the settlement funds has been established. Thus, Matrix contends that if this allocation, and thereby the Petition for Approval of Minor’s Compromise, is not to be determined or even filed until after the trial in this case, then what would happen with Directank as it pertains to the impending trial? Matrix questions whether Directank would still be a party to the case and/or whether they would have to defend the case. Matrix also argues that there is also uncertainty on what would happen if this Court were to, sometime in the future, reject the Petition for Approval of Minor’s Compromise, thereby not satisfying one of the conditions of this settlement, and a trial had already taken place. Matrix questions whether the verdict would have to be vacated. The Court will entertain argument at the hearing on these points.

Amount Paid in Settlement

Next, Directank notes that it has agreed to pay the amount of $1,000,000 to Plaintiffs as full and final settlement of all claims made by Plaintiffs against Directank.

Recognition that Settling Party Should Pay Less in Settlement than if Found Liable At Trial

Directank next argues that even assuming its potential exposure in the case exceeding the $1,000,000 settlement amount, Directank should pay less in the settlement than if found liable at trial, due to the uncertainty of a jury’s discretion in determining liability and awarding a judgment. In that regard, Directank notes that liability against it is not certain in that Plaintiffs’ claims against Directank remain disputed based on a factual dispute as to whether Defendant Austin performed the design work of the subject jack stand outside the course and scope of his employment with Directank.

Directank notes that because it and Plaintiff were able to resolve this matter before incurring additional fees, costs, and time to extend litigation, this Court should deem this settlement made in good faith based on Plaintiffs’ claims and Directank’s disputed liability.

Financial Considerations and Insurance Policy Limits of Settling Defendants

Directank notes that as part of the settlement, it has agreed to tender its policy limits of $1,000,000 to fund a final settlement of this matter. Directank further notes that this represents the extent of all insurance policy limits available to Directank as it relates to Plaintiffs’ claims in this consolidated action. There is no evidence before the Court of any additional insurance coverage nor of Dirctank’s financial position.

Evidence of Collusion or Fraud Between Settling Party and Plaintiffs Aimed at Making Non-Settling Parties Pay More than Their Fair Share

Next, Directank also asserts that the settlement negotiations between Plaintiffs and Directank were conducted at arm’s length, and that no collusion, fraud, or other tortious conduct had been committed by any of the settling parties, and that the settling parties have not in any way aimed to injure the other non-settling defendants in this case. Directank notes that the settlement negotiations were conducted in order to save judicial resources and to allow the settling parties to come to an amicable resolution of this matter as it relates to the allegations against Directank.

Allocation of the Settlement Proceeds

Lastly, Directank argues that settlement proceeds will be made payable to all Plaintiffs collectively for all damages claimed against Directank. Directank contends that the specific allocation among Plaintiffs will be determinate at a later date between Plaintiffs and should not serve as a barrier to dismissal of Directank from these consolidated matters, nor require the involvement of Directank or its insurer, as payment of the settlement proceeds represents the total policy limits available to them.

This portion of the motion is directly opposed by Matrix. In its opposition, Matrix asserts that pursuant to California Code of Civil Procedure section 877.6 and the ruling in Tech-Bilt, an allocation of settlement proceeds among Plaintiffs must be considered by the Court. As such, because this factor is missing from Directank’s motion, Matrix argues that this motion should be denied. Matrix asserts that without an identified allocation, it is possible that either Parent Plaintiffs or Soto Plaintiff could be settling for an amount that is not commensurate with the Plaintiffs’ respective damages. For example, Matrix argues that if either Parent Plaintiffs or Soto Plaintiff is to receive 99% of the settlement funds with the other to receive the remaining 1%, especially when one of them is a minor, then an argument could be made that the settlement as to one or both plaintiffs was not being made in good faith or that the Court would disapprove of eh minor’s compomise. Matrix opines that such an instance could lend to the possibility that a wrongdoing or collusion has occurred, such as one party improperly leveraging the settlement fund to gain a strategic advantage.

Matrix also argues that the failure to specify an allocation of the settlement funds between the Plaintiffs causes even more uncertainties in both the settlement and as it relates to the pending trial set to proceed on September 9, 2024.

In it reply brief, Directank contends that Matrix’s argument fails to take into account the lump-sum nature of damages awards and settlements – which is all that is required in a wrongful death matter. Directank also argues that by failing to allege that the proposed settlement is so far “out of the ballpark” to be inconsistent in the equitable objectives of Code of Civil Procedure section 877.6, Matrix has failed to carry its burden. Directank cites to the California Supreme Court decision of Corder v. Corder (2007) 41 Cal.4th 644 (“Corder”) to argue that due to the nature of a qualifying heir(s) joint actions, damages suffered by all of the heirs are generally calculated as one lump-sum. In Corder, the Supreme Court held that in determining the Legislative intent of Code of Civil Procedure section 377.61, there was “no meaningful distinction between a lump-sum award and a lump-sum settlement.” (Corder, supra, 41 Cal.4th at 653.) The Corder Court further noted that similar to a trial, “after a settlement, the trial court must apportion the settlement proceeds based on the identical criteria – the pecuniary damages suffered by each heir.” (Ibid.) Moreover, where “a trial court has heard evidence of damages at the wrongful death trial against nonsettling defendants, having the same court apportion the heirs’ recovery of an award and/or a settlement promotes judicial economy and efficiency, even if the court takes further evidence regarding the heirs’ competing interest therein.” (Ibid.) The Coder Court noted that if the heirs had competing interests in a wrongful death action, the trial Court is to hold a separate proceeding to apportion the recovery. (Id. at 654.) The Court is not clear how the Supreme Court’s discussion of the trial court’s role is helpful to Directank. Does not the discussion in Corder as to the trial court’s apportionment of a lump sum indicate that this Court cannot determine the minor’s compromise until after the trial? Do the competing heirs have a stipulation among them as to how the Directank settlement is to be apportioned among them? Does this quote from the Supreme Court mean that the amount of a settlement or verdict payable to the minor plaintiff must await not only the trial but also a possible post-trial evidentiary hearing before the Court? Or does the fact that it is the Court that determines allocation of the lump sum mean that the Court must make that allocation with the delayed approval of the minor’s compromise in mind, meaning that the Court of necessity will be ensuring that the minor’s compromise will be approved by taking that into account in is allocation determination?

Further, in the reply brief, Directank contends that while the opposition notes that it is preconditioned for the Plaintiffs to obtain approval of a minor’s compromise as it relates to the Soto Plaintiff’s allocated settlement proceeds, this precondition relates solely to disbursement of the settlement proceeds and holds no bearing on Directank’s obligation to tender settlement payment jointly to Plaintiffs following a determination of good faith settlement. But how much of the $1Million settlement is to be disbursed to the minor plaintiff, and can the Court approve a minor’s compromise without knowing whether 10% or 90% or some other percentage of the net settlement is to be paid to the minor? Or is the condition of approval of a minor’s compromise implicit in the finding of a good faith settlement even if that approval occurs in a future proceeding?

Here, the Court seeks oral argument as to the issue of Minor’s Compromise. Plaintiffs’ reply brief does not cite to any precedent of how this has been handled and addressed in previous cases. Thus, the Court requests oral argument from both parties to determine whether the issues presented by the parties raised by Matrix as far as their issue of the Minor’s Compromise without prior allocation of the settlement between the parties prior to the verdict at trial.

III. CONCLUSION

For the foregoing reasons, Directank’s Motion for Determination of Good Faith Settlement requires oral argument as the issue of Minor’s Compromise raises issues by Matrix.

Tentative Ruling¿

¿¿

HEARING DATE: August 28, 2024¿¿

¿¿

CASE NUMBER: 20STCV09554 [consolidated case: 20STCV35557]

¿¿

CASE NAME: Maria Lopez; Martin Gonzalez v. Matrix Service, Inc., et al.

¿¿

MOVING PARTY: Defendant, Matrix Service, Inc

RESPONDING PARTY: Plaintiffs, , Maria Lopez, Martin Gonzalez, and Christian Gonzalez, by and through his Guardian Ad Litem, Sonia Soto

¿¿

TRIAL DATE: September 9, 2024

¿¿

MOTION:¿ Motion to Bifurcate

Tentative Ruling: GRANTED. In the exercise of the Court’s discretion, and given the considerable volume of facts and law the Court has reviewed in hearing a series of discovery and dispositive motions in this case, The Court finds that bifurcation of liability and damages would serve the interests of justice as discussed below, even though the damages phase would likely take a fraction of the total trial time.

I. BACKGROUND¿¿

¿¿

C. Factual¿¿

Defendant, Matrix Services, Inc. (“Matrix”) filed a Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication on the grounds that it argues that Soto Plaintiffs and Parent Plaintiffs causes of action for negligence, strict liability, and breach of warranties asserted in their pleadings provide no triable issues of material fact as to such causes of action, thereby entitling Matrix to judgment as a matter of law. On August 21, 2024, this Court ruled that the Motion was DENIED as to the issues of strict liability and negligence, but that the Motion for summary adjudication was GRANTED as to the Soto Plaintiffs’ Breach of Warranty issue.

Now, Matrix has filed a Motion to Bifurcate Liability from Damages.

D. Procedural

On August 1, 2024, Matrix filed the Motion to Bifurcate. On August 16, 2024 Plaintiffs filed an opposition brief. On August 21, 2024, Matrix filed a reply brief.

II. ANALYSIS¿

A. Motion to Bifurcate

i. Legal Standard

Code of Civil Procedure section 598 provides in pertinent part that, “[t]he court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order . . . that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof.” Similarly, Code of Civil Procedure § 1048(b) provides in pertinent part that, “[t]he 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.”

The Court’s discretionary authority to sever claims and try them separately may also be employed to avoid undue prejudice to a party. (Stencel Aero Engineering Corp., v. Superior Court (1976) 56 Cal.App.3d 988.) Courts have inherent power to regulate the order of trial, and therefore can entertain a motion to bifurcate at any time—even during the trial itself. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 353.)

The discretion of the trial court to bifurcate claims and try them separately is broad and will not be disturbed on appeal, except for abuse. (National Electric Supply Co. v. Mt. Diablo Unified School Dist. (1960) 187 Cal.App.2d 418; see Buran Equip. Co. v. H & C Investment Co. (1983) 142 Cal.App.3d 338, 343-344 [commending the trial court for bifurcating the trial and ordering a specific issue be tried first, “since, if it had been correctly decided, trial would not have been required of any other issues.”].)

ii. Request for Judicial Notice

With Matrix’s moving papers, it has requested this Court take judicial notice of the following documents:

1. Defendant, Matrix Service, Inc.’s, Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or, in the alternative, Motion for Summary Adjudication filed on or about May 24, 2024 (Exhibit A); and

2. Defendant Matrix Service Inc.’s Volume of Evidence in Support of Motion for Summary Judgment or, in the alternative, Motion for Summary Adjudication filed on or about July 25, 2022. Elite Construction Equipment, LLC’s Answer (Exhibit B) to this Request for Judicial Notice.

The Court GRANTS this request and takes judicial notice of the above.

iii. Judicial Economy and Efficiency of Handling the Litigation

Here, Matrix argues that trying the liability issue first prior to the issue of damages could, and in Matrix’ view is likely, to dispose of the entire case. Matrix relies on many of the same arguments presented in its motion for summary judgment or, in the alternative, summary adjudication to make this argument that it will likely prevail as to liability. Moreover, Matrix argues that if liability is tried first and Plaintiffs prevail, this would encourage and increase the likelihood of settlement before the parties commence in trial on the issue of damages. In the liability trial, Matrix contends that evidence will be used to establish the mechanism of the incident, the intended design of the jack stands, the subsequent fabrication of the jack stands by Matrix based upon the designs presented to it, the actual use/misuse of the jack stands by Decedent and other J.T. Thorpe employees (along with the instructions / training [or lack thereof] J.T. Thorpe provided to its employees), and the impact of the jack stand’s improper use with air bags. However, Matrix asserts that this evidence will not be repeated in the damages trial if Plaintiffs prevail on liability.

On the other hand, when trying the issue of damages, Matrix argues that this will entail significant documentary and testimonial evidence that would not be needed for the liability trial. For example, Matrix asserts that Decedent’s future earning capacity claims, which will involve the presentation of Decedent’s employment / earnings records, along with the personal testimony of each plaintiff as to their loss of the relationship with the decedent, etc., as well as the testimony of other members of Decedent’s family / household. Matrix opines that the foregoing evidence, expert and non-expert, documentary and testimonial, will not be used in the liability phase of the trial, and thus, can be avoided altogether by trying the issue of liability first.

In opposition, Plaintiffs argue that Defendant has not established that bifurcating liability and damages would serve the interest of judicial economy. Plaintiffs assert that trial bifurcation does not serve the interest of judicial economy because the damages phase will be short and will amount to a day or a day and a half at most of trial. Plaintiffs opine that saving this short of a time in exchange for two trials, two opening statements, and two closing statements, two sets of jury instructions, and two sets of deliberations would not promote judicial economy. Moreover, with Plaintiffs having waived economic damages, there will be no experts testifying in the damages, phase, no medical records offered and no treating health care providers’ testimony. In this Court’s view, the damages phase will likely not consume much time; based on the Court’s two most recent wrongful death trials of adult decedents, the non-economic damages evidence was presented in a few hours of trial time.

Moreover, Plaintiffs argue that Matrix’s point that bifurcation encourages settlement is incorrect from Plaintiffs’ perspective, as they claim there is little incentive not to try the damages phase once liability is established as there would be a likelihood the jurors would not be impressed by the defense. The Court disagrees. If Plaintiffs prevail on liability, the incentive to settle is at its highest because the triers of fact will have just completed their determination to believe Plaintiffs’ witnesses and will have seen and heard the evidence of Decedent’s violent demise. It is that incentive that creates the interests of justice in having a single non-bifurcated trial. It is the incentive to avoid the prejudice Matrix raises as the grounds for its motion, and if Matrix does not prevail on liability it will be powerfully incentivized to settle the case immediately before the damages phase begins.

Section 598 vests the trial court with broad discretion to order separate the liability from damages phases of a trial “to avoid prejudice, or when separate trials will be conducive to expedition and economy. . . . .” Where as here, “only a small fraction of the evidence would be repeated [ . . . ,] the ends of justice were served by bifurcation.” (Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 746.) As Matrix argues in its motion, the intent of the Legislature in vesting trials courts with discretion to bifurcate trials “is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” (Horton v. Jones (1972) 26 Cal.App.3d 952, 955.) While the trial time savings may not as great as Matrix argues, it is a certainty that the damages phase of the trial would be needless if Matrix prevails during the liability phase of a bifurcated trial. Plaintiffs would be spared the need to testify about the loss of Decedent if Plaintiffs do not carry their burden at the liability phase, and matrix would be spared the claimed prejudice that sympathy or emotion raised by damages evidence would spill over into the liability phase.

iv. Convenience of Witnesses

Next, Matrix argues that if liability were tried before damages and Matrix prevailed, the damages witnesses, experts and non-experts would not need to testify because the case will have been resolved in its entirety. For example, Matrix asserts that if it won at the liability trial, there would be no need to address or try Plaintiffs’ damages or have Matrix’s damages experts testify and be cross-examined. Further, Matrix argues there would also be no need to have Decedent’s former employer send their personnel/PMKs to testify at trial regarding Decedent’s employment, his employment records, anticipated promotions, etc., nor would there be a need for Decedent’s many family members to testify. Thus, Matrix argues that trying liability first would promote the convenience of the witnesses who would not need to testify at all if Matrix prevailed on the issue of liability.

In opposition, Plaintiffs note that the parties have deposed approximately twenty-five (25) liability witnesses, and the Plaintiff anticipates the parties will call most of them, and that the parties have designated four (4) experts to address the liability issues. Thus, Plaintiffs contend the liability phase of trial is an anticipated two weeks of trial. However, Plaintiffs also note that in contrast, the damages phase will consist of a handful of witnesses, including Sonia Soto, Martin Gonzalez, Maria Lopez, and Decedent’s two sisters. Plaintiffs assert that these witnesses will talk about Decedent’s relationship with his son and parents. Plaintiffs also argue that because they have waived past and future economic damages, they will not be calling any experts or employers in the damages phase. Thus, Plaintiffs maintain that the damages phase of trial will only last about one day.

In Matrix’s reply brief, it does not respond to Plaintiffs’ contention that the damages portion of trial would only last approximately one day, nor that Plaintiffs do not plan on calling any expert witnesses as they have waived past and future economic damages. The Court believes Plaintiffs are correct that the time savings of delaying the damages phase would amount to perhaps two days, inclusive of openings, closings, witness testimony and instructions. But that does not mean bifurcation should not be granted here.

v. Promoting Justice and Avoiding Prejudice to Matrix

Lastly, Matrix argues that bifurcating the trial would avoid prejudice to Matrix. Matrix contends that the evidence that would potentially be repeated in both the liability and damages trial is minimal and anticipates that this minimal evidence would be the method in which Decedent lost his life. Thus, Matrix asserts that the ends of justice would be promoted by bifurcating the trial to try liability issues first. Further, Matrix argues that while Decedent sustained significant injuries and lost his life as a result of the incident, there is substantial evidence that he (and/or his employer, J.T. Thorpe) created his own peril and, by extension, his own demise, and was/were the sole and exclusive cause of this incident. As such, Matrix argues there is a grave risk in adjudicating both liability and damages together in a single trial that the jury will “pity” or sympathize with Decedent and his heirs due to his loss of life. Matrix asserts that this sympathy may sway the jury’s judgment on liability notwithstanding the overwhelming evidence that the incident was caused by factors completely out of Matrix’s control. Thus, Matrix makes the argument that there is a great risk that the jury will decide the issue of Matrix’s liability after being prejudiced and/or biased by evidence of damages.

Plaintiffs argue that Matrix’s assertion that it will face prejudice from the jury on the liability issues due to sympathy from the jury is merely speculative. Further, Plaintiffs assert that bifurcation is inherently prejudicial to Plaintiffs, citing the federal court case of Hamm v. American Home Products Corp. (E.D. Cal. 1995) 888 F.Supp. 1037 (“Hamm”), where Senior United States District Judge, William Shubb, held:

“[B]ifurcating a trial creates its own problems, not the least of which is that to do so leaves the court on the horns of a dilemma. On the one hand, if the court does not tell the jury beforehand that further proceedings may result in the event of a verdict in favor of the plaintiff, upon returning such a verdict the jurors (believing their duties fulfilled) will receive the unexpected news that they are obliged to sit through more evidence, more instructions and yet another round of deliberations. This is simply not fair to the jury. On the other hand, if the court informs the jury at the outset that there will be further proceedings in the event of a verdict for the plaintiff, it creates a subtle incentive for the jury to return a verdict for the defendants. This would be unfair to the plaintiff.”

(Hamm, supra, 888 F.Supp. at 1039.) As discussed below, this Court disagrees with Judge Shubb.

vi. Conclusion

The Court finds that it is likely that the presentation of evidence in the damages phase of the trial will take perhaps a single day (plus another day of damages phase openings, closing, and additional jury instructions), but the Court disagrees with District Judge Shubb’s opinion on asserted dilemmas faced by jurors or the parties. Jurors will not be receiving “unexpected news” about a possible second phase of a bifurcated trial because that potential will be disclosed to them at the outset with the parties at liberty to suggest ways of educating them in proposed preliminary instructions. The Court will permit voir dire on all issues before the first phase, avoiding the pitfall that befell the defendant in Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 324. The Court’s Final Status Conference will include a discussion as to how the parties plan for the Court to advise the jurors about the bifurcation of the trial into two phases. Jurors are instructed in every civil case about contingencies, such as the closing instruction in CACI 5000 that they may hear some points of law that may not apply depending on their findings of fact, or in CACI 3900 that they only need decide damages on the contingency that they have decided that Plaintiff has proven her or his case against the defendant, or in CACI 3933 or CACI 3940 which inherently involve contingencies that the instructions only apply if they find more than one defendant to be liable or if they determined malice, oppression, or fraud by clear and convincing evidence, respectively. Jurors here will be asked to evaluate the non-economic factors to consider under the second two-thirds of CACI 3921 with Plaintiffs waiving the economic damages covered by the first third of that instruction.

The Court finds on the record before it that there is an inherent danger in this case of prejudice to Matrix, after jurors have heard the circumstances of a horrific and fatal industrial accident, for those jurors to award more in non-economic damages than they might if they were only presented with the unadorned fact of the Decedent’s death. Non-economic damages have no tether to an expert’s opinion nor to an invoice or receipt; rather, CACI 3905A specifically instructs jurors that there is “no fixed standard for deciding these noneconomic damages.” With no standard other than “the evidence and your common sense” (id.), the risk of passion and prejudice in awarding considerable non-economic is raised when the nature of the death is such as to inflame jurors’ emotions.

The Court also considers another practical factor as being in the interests of justice here: the prospect of a defendant settling the case immediately after a determination in Plaintiffs’ favor on liability issues. That prospect is in the interests of justice, because such a settlement would save substantial time for the parties and the Court not only in post-judgment motions but also appeal. If, however, the Plaintiffs prevail in the liability phase and the remaining defendant does not immediately settle the case before the damages evidence is presented, Plaintiff will not be significantly prejudiced and would be in nearly the same position as if there were no bifurcation. There appear to be no witnesses who testimony would be needed in both the liability and damages phases, except perhaps the coroner. Plaintiffs accurately observe that a bifurcated trial could require multiple opening and closing arguments and jury instructions, but that duplication of effort would be mitigated by the fact that the same jurors who had just been instructed could simply be provided a truncated set of damages phase instructions, and both the opening statements and closing arguments would be limited to only non-economic damages witnesses and issues and therefore be quite short.

Based on the foregoing, the Court exercises its discretion in GRANTING Matrix’ motion to bifurcate liability form damages for this jury trial.

III. CONCLUSION

Matrix’s Motion to Bifurcate is GRANTED

Matrix is ordered to give notice. ¿¿