Judge Timothy B. Taylor, Case 37-2020-00035259-CU-PO-CTL 2023-09-08 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2020-00035259-CU-PO-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2020-00035259-CU-PO-CTL MCDOWELL VS MARRIOTT HOTEL SERVICES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for New Trial, 08/11/2023

Tentative Ruling on Plaintiffs' Motion for New Trial McDowell v. Marriott International, Case No. 2020-35259 Trial: May 22 – June 1, 2023, Dept. 72 Motion hearing: Sept. 8, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

Plaintiffs were asleep on their 37.5 foot vessel in the Marriott Marina on San Diego Bay in the early morning hours of July 25, 2020 when they were attacked by Juan Pablo Balanzar. Plaintiff McDowell was sexually assaulted by Balanzar while plaintiff Hollabaugh, her husband, had to help fend off the attack. They accuse the defendants of failing to provide adequate security in light of the City of San Diego's pandemic-related decision to house homeless persons at the nearby Convention Center, giving rise to increased crime at the Marina.

The seven count complaint was filed October 2, 2020. ROA 1. Several defendants were dismissed.

ROA 12-15, 25-27. Marriott demurred to the entire complaint, and sought to strike the punitive damages allegations therefrom. ROA 18-23. After full briefing, the court sustained the demurrer with leave to amend. ROA 35. The FAC was thereafter filed, alleging claims for premises liability (two counts), bystander NIED, gross negligence (three counts), and loss of consortium. Marriott answered and cross-complained against the City, but later dismissed the cross-action. ROA 37, 39, 57.

The case had been set for trial in March of 2022. ROA 50. But the parties failed to prepare for trial, and later filed a stipulation seeking a continuance. ROA 68. The trial was then set for September 16, 2022.

ROA 75-79.

Marriott sought summary judgment on the FAC. The motion was originally calendared for February 4, 2022, but the court vacated that hearing from the calendar when no moving papers were filed. ROA 62-63. Marriott then re-calendared the hearing and filed its moving papers. ROA 80-88. Plaintiffs filed opposition. ROA 94-100. Marriott filed reply. ROA 101-104. Following a hearing on July 29, 2022, the court denied the motion in a detailed ruling. ROA 110, 113.

The parties stipulated to continue the trial a second time, and the court allowed this. ROA 111. The new Calendar No.: Event ID: TENTATIVE RULINGS

3002605 33 CASE NUMBER: CASE TITLE: MCDOWELL VS MARRIOTT HOTEL SERVICES INC [IMAGED] 37-2020-00035259-CU-PO-CTL date was April 28, 2023. Ibid. The parties answered ready at the TRC (ROA 114-118), but when the trial call came around, defense counsel was engaged in trial in another department and the case had to be continued yet again. ROA 147.

The parties answered ready at the continued trial call on May 19, and estimated 8 days for trial. ROA 162. They filed numerous motions in limine, as well as oppositions thereto. ROA 119-124, 127-131, 134-143, 148-152. The court reviewed the briefs, and circulated tentative rulings on May 17 and May 18. ROA 159, 160. The parties argued the MIL on the morning of May 22, and the court made its rulings. A panel of 44 prospective jurors thereafter arrived in Dept. 72, and jury selection began. A jury was selected and pre-instructed, and opening statements were given on May 23. Evidence began that same morning. As of May 30, 2023, the jury had heard from 19 witnesses and had been exposed to dozens of exhibits.* Plaintiffs rested at 2:45 p.m. on May 30. Marriott sought a judgment of nonsuit.

The court heard argument outside the jury's presence, and thereafter denied the motion in a detailed written ruling. ROA 184. The defense case began immediately, and continued the following day. When the defense rested, defendant made a motion for a directed verdict as to unconscionability - which the court granted following argument (again in a detailed written ruling). ROA 188.

The jury received instructions on the afternoon of May 31 (ROA 197), and returned the following morning for arguments of counsel. Plaintiffs asked for an award of $3.4 million. The jury got the case at 11:25 a.m., and returned a defense verdict that same afternoon. The jury found, 10-2, that plaintiffs had not proven gross negligence.** ROA 193.

A judgment was thereafter entered in defendant's favor. ROA 198-199, 206. Marriott filed a cost bill seeking $148,874.33. ROA 208.

Presently, plaintiffs seek an order granting them a new trial to include the presentation of general negligence to the jury. Although the notice of intention (ROA 215) listed all possible statutory grounds, the motion asserts (1) irregularity in the proceedings on the part of the court and (2) error in law.

Marriott filed opposition. ROA 221-223. The court has reviewed the papers, and no further submissions are permitted in connection with this motion.

2. Applicable Standards.

A. Code of Civil Procedure section 660 provides: '[T]he power of the court to rule on a motion for a new trial shall expire 75 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if that notice has not theretofore been given, then 75 days after filing of the first notice of intention to move for a new trial. If the motion is not determined within said period of 75 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court.' 'The time limits of section 660 are mandatory and jurisdictional, and an order made after the [75]*** day period purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void.' (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101; Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 518; Jones v. Sieve (1988) 203 Cal.App.3d 359, 369; see Van Beurden Ins. Serv., Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, 64.) Failure to enter an order determining the new trial motion within the 60-day period deprives the court of power to rule on the motion. (Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1451.) Jurisdiction to grant a new trial after the 75-day time limit cannot be conferred by 'consent, waiver, agreement, or acquiescence' of the parties. (Tabor v. Superior Court (1946) 28 Cal.2d 505, 507; see Dodge, supra, 77 Cal.App.4th at p. 518.) 'When challenged on appeal, such an order is reversible per se.' (Mercer v. Perez (1968) 68 Cal.2d 104, 118.) B. A new trial may only be granted in California if a miscarriage of justice occurred. CCP section 657; Calendar No.: Event ID: TENTATIVE RULINGS

3002605 33 CASE NUMBER: CASE TITLE: MCDOWELL VS MARRIOTT HOTEL SERVICES INC [IMAGED] 37-2020-00035259-CU-PO-CTL Cal. Const. Art. VI, sec. 13; Soule v. General Motors Corp., 8 Cal. 4th 548, 579 (1994); Maher v. Saad, 82 Cal. App. 4th 1317, 1324 (2000). In analyzing a motion like this one, the court has authority to act as a 'thirteenth juror' and to independently weigh the evidence and assess whether the evidence supported the verdict. See Seffert v. Los Angeles Transit Lines, 56 Cal. 2d 498, 507 (1961). On a motion for new trial, the trial court is charged with reviewing the record and weighing the evidence admitted at trial to determine whether the 'jury clearly should have reached a different verdict or decision.' Code Civ. Proc., § 657. 'A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury . . . .' Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs, 67 Cal.App.4th 743, 751 (1998).

3. Discussion and Ruling.

The motion for new trial is denied.

Plaintiffs have failed to establish a valid basis for a new trial. While plaintiffs may disagree with the court's in limine and directed verdict rulings, they have not shown that either ruling was erroneous as a matter of law (or that the rulings prevented them from receiving a fair trial). Code Civ. Proc. § 657(1), (7). The court's rulings were based on all the evidence presented in the trial and the applicable law.

That evidence showed that the wharfage agreement was neither infused with public interest nor unconscionable. Plaintiffs have not persuaded the court that these conclusions were incorrect. As the court has already held, Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551 (the centerpiece of plaintiffs' argument) does not provide the rule of decision in this case, because the subject agreement was drawn with the Pelletier holding in mind. The court has not changed its view in this regard.

_________________________ *No reviewing court reading the transcript could escape the conclusion that plaintiffs could have shaved a day off the trial if their lead counsel had not persisted in going over the same evidence over and over again.

**The plaintiff's need to establish gross negligence was a focal point of the court's rulings of May 22 (ROA 168) and May 31 (ROA 188), which the court incorporates herein.

***The rule for many years was 60 days.

Calendar No.: Event ID: TENTATIVE RULINGS

3002605 33