This case was last updated from Los Angeles County Superior Courts on 10/14/2020 at 10:27:01 (UTC).

ANDRES RAMIREZ VS CITY OF PASADENA

Case Summary

On 06/05/2017 ANDRES RAMIREZ filed a Personal Injury - Other Personal Injury lawsuit against CITY OF PASADENA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4114

  • Filing Date:

    06/05/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiffs, Guardian Ad Litems and Not Classified By Court

HERNANDEZ ELBA

HERNANDEZ INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE AND SUCCESSOR IN INTEREST TO ANDRES RAMIREZ DECEASED ELBA

Defendants, Respondents, Cross Plaintiffs and Not Classified By Court

PASADENA CITY OF

DOES 1 TO 100

JACLQUELYN LICEA (DOE 1)

LICEA JACQUELYN

LICEA JACQUELYN - (DOE 2)

JACLQUELYN LICEA DOE 1

CITY OF PASADENA

LICEA JACQUELYN - DOE 2

CITY OF PASADENA A PUBLIC ENTITY

PASADENA CITY OF A PUBLIC ENTITY

LICEA AN INDIVIDUAL JACQUELYN

JACQUELYN LICEA

RAMIREZ ANDRES

HERNANDEZ ELBA

Defendants, Cross Plaintiffs, Cross Defendants and Not Classified By Court

LICEA JACQUELYN

CITY OF PASADENA

JACQUELYN LICEA

CITY OF PASADENA A PUBLIC ENTITY

Minor and Not Classified By Court

RAMIREZ ANDRES

8 More Parties Available

Attorney/Law Firm Details

Defendant, Cross Plaintiff, Minor, Plaintiff and Cross Defendant Attorneys

MARCHINO FILIPPO

ABELTIN JAMES BRUCE

AVENATTI MICHAEL J. ESQ.

AVENATTI MICHAEL J. ESQ

ROGERS DAMON LUCAS ESQ.

HAMBLET BRIAN INMAN

ABELTIN JAMES

AGUADO CARMEN M

ABELTIN & MIGOYA LLP

Defendant, Cross Plaintiff, Respondent, Plaintiff and Cross Defendant Attorneys

MICHELE BEAL BAGNERIS CITY ATTORNEY

BURKE WILLIAMS & SORENSEN LLP

HAMBLET BRIAN I

BURKE WILLIAMS & SORENSEN

BAGNERIS MICHELE BEAL

MARCHINO FILIPPO

ABELTIN JAMES BRUCE

AGUADO CARMEN MARIE

HAMBLET BRIAN INMAN

ROGERS DAMON LUCAS

ABELTIN JAMES

AGUADO CARMEN M

Defendant, Cross Plaintiff and Respondent Attorneys

MICHELE BEAL BAGNERIS CITY ATTORNEY

BURKE WILLIAMS & SORENSEN LLP

 

Court Documents

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE HEARING DATE

7/6/2020: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE HEARING DATE

Notice - NOTICE OF CONTINUANCE OF MOTION FOR COURT ORDER TO RELEASE DOCUMENTS

4/15/2020: Notice - NOTICE OF CONTINUANCE OF MOTION FOR COURT ORDER TO RELEASE DOCUMENTS

Notice - NOTICE NOTICE OF CONTINUANCE OF MOTION FOR A COURT ORDER TO RELEASE DOCUMENTS

3/4/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF MOTION FOR A COURT ORDER TO RELEASE DOCUMENTS

Declaration - DECLARATION IN SUPPORT OF REPLY

1/17/2020: Declaration - DECLARATION IN SUPPORT OF REPLY

Separate Statement

1/22/2020: Separate Statement

Ex Parte Application - EX PARTE APPLICATION OF DEFENDANT CITY OF PASADENA FOR AN ORDER TO ADVANCE HEARING ON MOTION TO BIFURCATE

1/23/2020: Ex Parte Application - EX PARTE APPLICATION OF DEFENDANT CITY OF PASADENA FOR AN ORDER TO ADVANCE HEARING ON MOTION TO BIFURCATE

Proof of Personal Service

1/30/2020: Proof of Personal Service

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO CITY OF PASADENA'S MOTION FOR SUMMARY JUDGMENT

1/10/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO CITY OF PASADENA'S MOTION FOR SUMMARY JUDGMENT

Cross-Complaint

9/19/2019: Cross-Complaint

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY)

8/28/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY)

Cross-Complaint

8/21/2019: Cross-Complaint

Case Management Statement

6/19/2019: Case Management Statement

Motion for Leave - MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

5/23/2019: Motion for Leave - MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

Legacy Document - LEGACY DOCUMENT TYPE: First Amended Cross-Complaint

9/28/2018: Legacy Document - LEGACY DOCUMENT TYPE: First Amended Cross-Complaint

Summons

7/14/2017: Summons

Legacy Document - LEGACY DOCUMENT TYPE: Motion-Continue Hearing Date

7/18/2018: Legacy Document - LEGACY DOCUMENT TYPE: Motion-Continue Hearing Date

Minute Order - Minute order entered: 2018-07-20 00:00:00

7/20/2018: Minute Order - Minute order entered: 2018-07-20 00:00:00

SUBSTITUTION OF ATTORNEY -

12/14/2017: SUBSTITUTION OF ATTORNEY -

222 More Documents Available

 

Docket Entries

  • 11/06/2020
  • Hearing11/06/2020 at 09:00 AM in Department D at 600 East Broadway, Glendale, CA 91206; Hearing on Motion - Other for A Court Order to Release Documents, or in the alternative, a Court Order that Elba Hernandez sign an Authorization filed on behalf of Defendant/Cross-Defendant/Cross-Complainant Jacquelyn Licea

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  • 11/06/2020
  • Hearing11/06/2020 at 09:00 AM in Department D at 600 East Broadway, Glendale, CA 91206; Trial Setting Conference

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  • 09/25/2020
  • Docketat 09:00 AM in Department D; Hearing on Motion for Sanctions (For Issue Sanctions and Evidence Sanctions against Defendant City of Pasadena filed on behalf of Plaintiffs The Estate of Andres Ramirez, et al.) - Not Held - Advanced and Vacated

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  • 09/25/2020
  • Docketat 09:00 AM in Department D; Hearing on Motion to Quash (Deposition Subpoena Seeking Production of Business Records from Pasadena Unified School District filed on behalf of Plaintiffs The Estate of Andres Ramirez, et al.) - Not Held - Advanced and Vacated

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  • 09/25/2020
  • Docketat 09:00 AM in Department D; Trial Setting Conference - Not Held - Continued - Stipulation

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  • 09/25/2020
  • Docketat 09:00 AM in Department D; Hearing on Motion - Other (for A Court Order to Release Documents, or in the alternative, a Court Order that Elba Hernandez sign an Authorization filed on behalf of Defendant/Cross-Defendant/Cross-Complainant Jacquelyn Licea) - Not Held - Continued - Stipulation

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  • 09/25/2020
  • DocketRETURNED MAIL

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  • 09/16/2020
  • Docketat 1:30 PM in Department D; Non-Appearance Case Review (Court Order pursuant to Stipulation and Request for Court Ordr Continuing Hearings Set for September25,2020; Order;) - Held

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  • 09/16/2020
  • DocketCertificate of Mailing for ((Non-Appearance Case Review Court Order pursuant to Stipulatio...) of 09/16/2020); Filed by Clerk

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  • 09/16/2020
  • DocketMinute Order ( (Non-Appearance Case Review Court Order pursuant to Stipulatio...)); Filed by Clerk

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325 More Docket Entries
  • 07/14/2017
  • DocketSummons (on Complaint); Filed by Pasadena, City of, a public entity (Defendant)

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  • 06/14/2017
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 06/14/2017
  • DocketProof-Service/Summons; Filed by Estate of Andres Ramirez, by and through its personal representative, Elba Hernandez (Plaintiff)

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  • 06/14/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/05/2017
  • DocketComplaint

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  • 06/05/2017
  • DocketSUMMONS

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  • 06/05/2017
  • DocketCOMPLAINT 1. DANGEROUS CONDITION OF PUBLIC PROPERTY GOV'T CODE 835 ET SEQ.] 2. VICARIOUS LIABILITY (GOV'T CODE 815.4] DEMAND FOR JURY TRIAL

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  • 06/05/2017
  • DocketComplaint; Filed by null

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  • 06/05/2017
  • DocketSummons (on Complaint)

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  • 06/05/2017
  • DocketCivil Case Cover Sheet

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Tentative Rulings

Case Number: BC664114    Hearing Date: July 24, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 22

Case Number: EC 068930

Date: 7/24/20 Trial date: September 21, 2020

Case Name: Palomique, et al. v. Wilson Garden Homeowners Association, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Defendant Sargis Yeritsyan

Responding Party: Plaintiffs Fe Palomique and Shant Gharibi (No Opposition)

Relief Requested:

Summary judgment in favor of defendant Sargis Yeritsyan

In the alternative, summary adjudication of first, third, fourth and/or fifth causes of action

Causes of Action from Complaint

1) Breach of CC&Rs v. All Defendants

2) Breach of Fiduciary Duty v. Wilson Gardens Homeowners Association

3) Negligence v. All Defendants

4) Nuisance v. All Defendants

5) Injunctive Relief v. All Defendants

SUMMARY OF COMPLAINT:

Plaintiffs Fe Palomique and Shant Gharibi allege that they are owners of condominium units located within the Wilson Gardens condominium development, governed by defendant Wilson Gardens Homeowners Association (the “Association”). Plaintiffs allege that their units are located next door to each other on the first floor inside the same building of the development, and that both units are located partially or wholly underneath the unit owned by defendant Sargis Yeritsyan. The complaint alleges that the building in which the three units are located contains a fire sprinkler system, which plaintiffs assert is a common area component of the project, which the Association is responsible to maintain, repair and insure, pursuant to the Association’s CC&Rs.

Plaintiffs allege that on March 18, 2018, the fire sprinkler system malfunctioned above the Yeritsyan Unit, causing the sprinkler head in the Yeritsyan Unit to activate, resulting in a considerable amount of water leaking down into the Yeritsyan Unit, and from the Yeritsyan Unit down into plaintiff’s respective units and into the common areas located immediately adjacent to plaintiffs’ respective units. The water intrusion caused severe water damage and mold growth to plaintiffs’ respective units and to the common areas immediately adjacent, including damage to the ceilings, drywall, and floors.

Plaintiffs allege that following the incident plaintiffs submitted a water damage claim to Yeritsyan’s insurance carrier, and plaintiff Palomique also tendered a water damage claim to the Association, in writing, which included the Glendale Fire Department Incident Report, in which it was stated that Association Board President, Alfred Sardari, had actual prior knowledge of a sprinkler system malfunction and took responsibility for the loss on behalf of the Association, and assured the Fire Department investigator that he would contact the sprinkler repair company first thing in the morning.

Plaintiffs have received correspondence from Yeritsyan’s insurer that it would be unable to assist them with their water damage claim, placing blame for the incident on the Association.

Plaintiffs allege that while plaintiffs assert that pursuant to the CC&Rs, the Association is responsible for maintaining and repairing the entire fire sprinkler system, and repairing the damage to their units, the Association has taken the position that the components of the fire sprinkler system that malfunctioned are defined as part of a unit under the Association’s CC&Rs. Plaintiffs assert that if it is determined that the components of the fire sprinkler system that malfunctioned are components of a unit, then defendant Yeritsyan is responsible for maintaining and repairing such components, and is also responsible for repairing the damage inside plaintiffs’ units.

The complaint also alleges that after plaintiffs attempted over several weeks to determine if the Association had submitted an insurance claim to the Association insurer, Farmers Insurance, plaintiffs were ultimately advised by the Farmers’ claims adjuster that Farmers had investigated and adjusted the claim, settled the claim with the Association, and closed its file on the Association’s claim. Plaintiffs are accordingly informed and believe that Farmers paid insurance proceeds to the Association to settle the claim, and that the Association has withheld the funds, rather than using them to coordinate repairs to plaintiffs’ units, in breach of the Association’s obligations under the CC&Rs. Plaintiffs allege that as a result, after more than four months, plaintiffs continue to live with water damage to their units, mold growth, significant damage to the flooring, and have been forced to endure unpleasant odors in their units, and that the units remain unrepaired despite the Association having received insurance proceeds from Farmers some time ago.

Defendant the Association has filed a cross-complaint for indemnity and contribution against Roes 1 through 20.

ANALYSIS:

Procedural

There has been no timely opposition to this motion. The Courtroom Assistant has confirmed with counsel for the moving party that no timely opposition has been served.

CCP §437c(b)(3) sets forth the specific requirements for opposition papers in connection with a motion for summary judgment, including the requirement of the filing of a separate statement of material facts. This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” The motion will accordingly be granted on the ground there has been no separate statement filed.

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant Sargis Yeritsyan seeks to establish that plaintiffs will be unable to establish any of the four causes of action asserted against Yeritsyan in this action.

Issue 1: Summary judgment, or in the alternative, summary adjudication must be granted

in favor of Yeritsyan because Plaintiffs’ first cause of action for Breach of CC&Rs lacks merit

against Yeritsyan. The undisputed facts do not support a claim of Breach of CC&Rs. Thus,

Plaintiffs are unable to present any facts or evidence to otherwise create a triable issue of fact to

support this cause of action.

Defendant Yeritsyan argues that plaintiffs in this action contend, and therefore concede by their own allegations, that the sprinkler system at issue is a common area and defendant Association had the duty to maintain the system. Defendant argues that plaintiffs’ allegations as to Yeritsyan are pleaded only in the alternative, and are contingent upon a determination that the fire sprinkler system is part of the Yeritsyan Unit.

Yeritsyan argues that no facts exist to support the allegations that the fire sprinklers are components of the Yeritsyan Unit for which Yeritsyan has responsibility.

Civil Code § 5975(a) provides with respect to common interest developments

“(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”

CC&Rs such as those at issue here are presumed valid, and the burden is on the party challenging them to show they are unreasonable, inequitably affect particular homeowners or violate public policy. Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361, 382-384. The same rules that apply to interpretation of contracts apply to the interpretation of CC&Rs. Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1377.

The CC&Rs governing the development in this matter provide the following definition of “common area:”

“Section A. COMMON AREA. "Common Area" shall mean and refer to the entire project, except the units. Undivided fractional interests in the Common Area shall be owned by the owners of the units as tenants-in-common, with the fractional interests to be as shown on Exhibit "A" attached hereto.”

[UMF No. 26, CC&Rs, Ex. A., Complaint, Ex. A, Article I, Section 6].

The CC&Rs provide that the Association has the responsibility to manage and maintain the common area:

“(d) That the Association shall have the responsibility to manage and maintain all of the Common Area, including but not limited to, the common walkways, common driveways, recreational facilities, landscaping, the parking spaces, and the exterior of each building located within the project, and such maintenance shall be of a high quality so as to keep the entire project in a first-class condition and in a good state of repair.”

[UMF No. 27, 28, and evidence cited, CC&Rs Article V, Section 4(d)].

With respect to exclusive use common areas, the CC&Rs provide:

“Section 5. EXCLUSIVE USE COMMON AREAS. To complete each condominium at the time of conveyance, each respective document of conveyance shall, in addition to describing the respective unit, designate that two (2) parking spaces are to be used exclusively in conjunction therewith. The tandem parking spaces may not be divided by Deed or Assignment and must always remain as a single entity for the unit to which assigned. The grant of use of the Exclusive Use Common Areas shall be an easement appurtenant to the respective unit for the exclusive uses and purposes as set forth herein and shall be

subject to an easement in favor of the Association for support and minor encroachment of the Common Areas and an easement in favor of owners of adjoining Exclusive Use Common Areas for minor variances between Parking space designations and the actual painted striping thereof.”

[UMF No. 31, CC&Rs, Article V, Section 5].

The CC&Rs provide that exclusive use common area is to be “maintained by the Association.” [UMF No. 30, and evidence cited, CC&Rs, Article I, Section 14].

The motion relies on a definition which is not included in the CC&Rs, but in the Condominium Plan, and which provides:

“THE FOLLOWING ARE NOT PART OF A UNIT: BEARING WALLS, COLUMNS, VERTICAL

SUPPORTS, FLOORS, ROOFS, FOUNDATIONS, BEAMS, BALCONY RAILINGS, PIPES,

DUCTS, FLUES, CHUTES, CONDUITES, WIRES, AND OTHER UTILITY INSTALLATIONS

WHEREVER LOCATED, EXCEPT THE OUTLETS THEREOF WHEN LOCATED WITHIN THE

UNIT.”

[UMF No. 13, and evidence cited; Ex. A, Complaint, Ex. B., Condominium Plan, para. 3].

The argument is then that the fire sprinkler system consists of “pipes” and is a “utility installation” which falls within this definition as falling outside the “unit,” and constitutes a common area.

A problem with the argument is that the Condominium Plan does not clearly appear to be part of the CC&Rs, and this is not directly addressed in the moving papers. However, a review of the CC&Rs shows that in connection with describing the land and improvements, the CC&Rs state, in pertinent part:

“Section 1. The following description is intended for information purposes only. In the event of any conflict between this description and the Condominium Plan, said Plan shall be deemed conclusively to control over this description….

Section 3. The property has within its boundaries various units and various Common Areas as shown and described on the Condominium Plan.”

[CC&Rs, Article II, Sections 1 ,3].

The CC&Rs, in connection with the description of land and improvements as exclusive use common area, includes in the description of such areas, “a portion of the common area set aside and allocated for the exclusive use of respective units, as is designated in the Condominium Plan…” [UMF No. 30, CC&Rs, Article I, Section 14]. It appears that the Condominium Plan definition is sufficiently incorporated into the CC&Rs to be used in the interpretation of the CC&Rs here.

Defendant argues that the fire sprinkler system is part of the common area because the system consists of “pipes” and submits expert testimony indicating that the system is a “utility system,” which can only be managed by the Association as a whole, and not the individual unit owners.

Defendant relies on a declaration of expert mechanical engineer, Richard Mumper, who has inspected the subject fire sprinkler system and indicates that it services the “entire building on a floor-by-floor basis,” and that the system, “must be managed by the entity that oversees the building.” [Mumper Decl., para. 7]. Mumper further states that the system is provided through water pipes running throughout the condominium complex. [Mumper Decl., para. 8]. The problem with this declaration is that the copy submitted to the court is not executed by the witness, so the declaration is not considered by the court.

Defendant also relies on a declaration of Craig Tice, an expert in property management, who also states that the fire sprinkler system services the entire building and must be managed by the entity that oversees the

building, in this case, defendant HOA, and that the system “is provided water through the water pipes that run through throughout the condominium complex.” [UMF Nos. 19, 20, and evidence cited; Tice Decl., paras. 5, 6]. The Tice Declaration is executed and appears to sufficiently establish that the Association, not moving defendant, was responsible for the maintenance of the fire sprinkler system under the CC&Rs, so that plaintiffs will be unable to establish a breach of the CC&Rs on the part of moving defendant.

Defendant also argues that because the CC&Rs expressly designate exclusive use common areas, and that designation does not include the fire sprinkler system, the system remains common area as a matter of law. Defendant relies on Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123, in which the court of appeal affirmed the trial court’s entry of judgment in favor of a condominium owner and against the Association, finding that the trial court had appropriately determined that the owner did not have the responsibility to maintain and repair a sewage pipe beneath the condominium, even where the pipe exclusively serviced the unit owner’s unit. The court of appeal first considered language in the CC&Rs similar to that in the Condominium Plan here, providing that items which are not part of the unit included “pipes,” and “other utility installations,” and concluded that the sewage pipe was not within an individual owner’s separate interest under that language. Dover Village, at 127. The court of appeal went on to consider whether the pipe constituted an “exclusive use common area appurtenant,” for which the owner would have had responsibility in the case before it. The court of appeal noted that the CC&Rs expressly mentioned two exclusive use common areas, patio and garage areas, and found that this impliedly excluded the subject sewer pipe:

“Under the rule of “expressio unius est exclusio alterius”—say one thing and impliedly exclude the other—the most natural reading of the CC & R's is that sewer lines are not “exclusive use common areas appurtenant.” By expressly saying patio and garage areas come within the category, the CC & R's impliedly say that sewer lines do not. (Cf. People v. Palacios  [as applied to statutory construction, expressio unius maxim means that “ ‘if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary’ ”].)

Dover Village, at 128.

Defendant argues that here, the CC&Rs also designate exclusive use common areas, specifically, parking spaces. [UMF No. 31, and evidence cited, CC&Rs, Article V, Section 5]. The fire sprinkler system is not so designated, and, in any case, the CC&Rs in this case, as set forth above, provide that exclusive use common areas are to be maintained by the Association. [CC&Rs, Article I, Section 14].

The showing is accordingly sufficient to shift the burden to plaintiffs to raise triable issues of material fact with respect to moving defendant’s alleged breach of the CC&Rs here.

Plaintiffs have failed to file opposition to the motion, so have failed to meet this burden. The motion accordingly is granted.

Issue 2: Summary judgment, or in the alternative, summary adjudication must be granted

in favor of Yeritsyan because Plaintiffs’ third cause of action for Negligence lacks merit against

Yeritsyan. The undisputed facts do not support any claim of negligence. Thus, Plaintiffs are

unable to present any facts or evidence to otherwise create a triable issue of fact to support this

cause of action.

Defendant Yeritsyan argues that plaintiffs will be unable to establish a claim for negligence, as Yeritsyan had no negligence duty to maintain or repair the fire sprinkler system.

To establish a claim for negligence against the moving defendant, plaintiffs must prove and plead the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by

the breach. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

Civil Code § 1714(a) provides, in pertinent part:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Accordingly, it is recognized that every landowner has a duty to maintain property in his possession or control in a reasonably safe condition. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, n.5).

The existence of a duty owed by a defendant to a plaintiff is a question of law for the court, reviewed de novo on appeal. Garcia v. Paramount Citrus Association, Inc. (2008) 164 Cal.App.4th 1448 ,1452.

It is recognized that the issue of whether a duty of care was owed is a question of law, amenable to determination on summary judgment. See Clarke v. Hoek (1985) 174 Cal.App.3d 208, 213 (“The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone.”).

As discussed above, defendant has sufficiently established that the contractual duty to maintain and repair the subject fire sprinkler system was a duty owed to plaintiffs by the Association, not by defendant Yeritsyan. [See UMF Nos. 35-37, and evidence cited].

The complaint here bases this cause of action on a duty to exercise reasonable care and skill in the maintenance and repair of the unit if it is determined that the components of the fire sprinkler system which malfunctioned are considered components of the unit. [UMF No. 34, and evidence cited, Complaint, para. 56]. This is also the theory plaintiffs set forth in responses to written discovery. [UMF No. 34, and evidence cited, Exs. C, D, Response to Form Interrogatory No. 14.1].

As discussed above, the moving defendant has established that the CC&Rs place the responsibility for maintaining the fire sprinkler system exclusively on the Association, so that moving defendant had no general duty in connection with the maintenance and repair of the fire sprinkler system, and the burden shifts to plaintiffs to raise triable issues of material fact.

Plaintiffs have failed to file opposition to the motion, so have failed to meet this burden. The motion accordingly is granted.

Issue 3: Summary judgment, or in the alternative, summary adjudication must be granted

in favor of Yeritsyan because Plaintiffs’ fourth cause of action for Nuisance lacks merit against

Yeritsyan. The undisputed facts do not support any claim of nuisance. Thus, Plaintiffs are unable

to present any facts or evidence to otherwise create a triable issue of fact to support this cause of

action.

The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant used its property (ownership is not required) in violation of the courses of conduct proscribed in Civil Code § 3479 (including conduct offensive to the senses or an obstruction to the free use of the property so as to interfere with the comfortable enjoyment of life or property); the nuisance is permanent and complete; and past and future damages. Spaulding v. Cameron (1952) 38 Cal.2d 265.

Civil Code § 3479 defines “nuisance” as follows:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

Again, defendant Yeristyan argues that the Complaint alleges that if the fire sprinkler is determined to be a component of the unit, Yeristyan created a nuisance by his breaches of the CC&Rs and by his negligent conduct, but defendant has established that he owes no duties under the CC&Rs or a negligence theory. [UMF Nos. 38- 41, and evidence cited].

Defendant has sufficiently established that plaintiff will be unable to establish liability under this theory, and the burden shifts to plaintiffs to raise triable issues of material fact.

Plaintiffs have failed to file opposition to the motion, so have failed to meet this burden. The motion accordingly is granted.

Issue 4: Summary judgment, or in the alternative, summary adjudication must be granted in favor of Yeritsyan because Plaintiffs’ fifth cause of action for Injunctive Relief lacks merit against Yeritsyan. Plaintiffs request for injunctive relief through its own cause of action is improper, and Plaintiffs are not able to prove entitlement to Injunctive Relief because they have placed a monetary value on their claims. Thus, Plaintiffs fail to present any facts or evidence to otherwise create a triable issue of fact to support this cause of action.

Defendant argues that the fifth cause of action for injunctive relief is improper, as injunctive relief is not a proper cause of action, but solely a remedy.

The fifth cause of action incorporates previous allegations, and alleges that if the components of the ifre sprinkler system that malfunctioned are components of a unit, the only way to prevent further damage to their units from defendant Yeritsyan’s conduct is to obtain an injunction compelling him to comply with the Association’s CC&Rs and perform the necessary repairs resulting from the water intrusion. [Complaint, paras. 67, 68].

To plead in equity for an injunction, a plaintiff must plead: A tort or other wrongful act constituting a cause of action; and grounds for equitable relief (remedy inadequate at law), consisting of irreparable injury, actual or threatened, or threatened multiplicity of suits. Porters Bar Dredging Co. v. Beaudry (1911) 15 Cal.App.751, 760; McPheeters v. McMahon (1933) 131 Cal.App. 418; 5 Witkin, California Procedure (5th Ed. 2008) Pleading § 822 et seq.

The pleading here should accordingly seek injunctive relief in the alternative to damages in connection with the second, third and fourth causes of action for breach of CC&Rs, negligence and nuisance, rather than be set forth as a separate stand-alone cause of action, not clearly tethered to all elements of a particular legal claim.

Moreover, defendant has established that plaintiff will be unable to establish any of those foregoing claims, as discussed above. The motion accordingly is granted on this ground as well.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

[No Opposition]

Defendant Sargis Yeritsyan’s UNOPPOSED Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.

The Court finds that plaintiffs have failed to file any papers opposing this motion. Accordingly, the parties against whom summary judgment is sought have failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers. Pursuant to CCP §437c(b)(3), the motion is granted.

Even if the Court were to consider the substance of the motion, it would be granted. Defendant Sargis Yeritsyan has submitted uncontradicted evidence demonstrating that he owed no duty to plaintiffs. Specifically, defendant has established that defendant Yeritsyan owed no contractual duty to plaintiffs to maintain the subject fire sprinkler system, as the system constituted common area for which the Association pursuant to the CC&Rs and Condominium Plan governing the Association and unit owners assumed an exclusive contractual duty to maintain and repair. [UMF Nos. 13, 19, 20, 26-28, 30, 31, and evidence cited; Ex. A, Complaint, Ex. A, CC&Rs, Article I, Sections 6, 14, Article II, Sections 1 ,3, Article V, Sections 4(d), 5; Complaint, Ex. B., Condominium Plan, para. 3; Tice Decl., paras. 5, 6]. Plaintiffs will accordingly be unable to establish their first cause of action for breach of CC&Rs.

Defendant Sargis Yeritsyan has also established that plaintiffs’ tort causes of action, the third cause of action for negligence, and fourth cause of action for nuisance, are based on theories that the subject fire sprinkler system is considered part of the Yeritsyan Unit for purposes of the analysis, which plaintiffs will be unable to prove, given the exclusive responsibility assigned by the CC&Rs to the Association, as discussed above. [See UMF Nos. 34, 38, and allegations of plaintiffs’ Complaint at paragraphs 56, 61; see also Exs. C, D, Responses to Form Interrogatory 14.1].

With respect to the fifth cause of action for injunctive relief, moving defendant has established that plaintiffs cannot maintain such a cause of action as a stand-alone cause of action, and has also established that none of the underlying alleged wrongs upon which the relief is sought can be established, as set forth above.

None of this is disputed by plaintiffs. Without any evidence of the existence of a duty on the part of this defendant, plaintiffs will be unable to establish their causes of action based on contractual or tort duties.

Moving party to submit appropriate form of judgment.

GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.

Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.

Case Number: BC664114    Hearing Date: February 28, 2020    Dept: BCD

TENTATIVE RULING

Calendar: 12

Case Number: BC 664114

Date: 2/28/20 Trial date: April 20, 2020

Case Name: Ramirez v. City of Pasadena, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

MOTION TO BIFURCATE

Moving Party: Defendant City of Pasadena

Responding Party: Plaintiff the Estate of Andres Ramirez and Elba Hernandez

Relief Requested:

Summary Judgment

Order granting summary judgment in favor of defendant City of Pasadena in this case

In the alternative, summary adjudication of issues

Bifurcate

Pre-trial Order bifurcating the trial to first hear the matters of whether there is a dangerous condition of public property at the accident location, and whether the City is protected by design immunity, followed by trial concerning causation, comparative fault and damages

Causes of Action: from First Amended Complaint

1) Wrongful Death—Dangerous Condition of Public Property

2) Survival Action—Dangerous Condition of Public Property

3) Wrongful Death—Vicarious Liability

4) Survival Action—Vicarious Liability

5) Wrongful Death—Negligence

6) Survival Action—Negligence

SUMMARY OF COMPLAINT:

This action was originally brought by plaintiff Andres Ramirez, a minor, through his mother and GAL Elba Hernandez, alleging that plaintiff was gravely injured in a vehicle-bicyclist collision occurring on an intersection under the control of defendant City of Pasadena.

The court has since granted leave to amend the pleading to reflect that plaintiff Ramirez has died, and his claims are now being pursued by his Estate through its personal representative, Elba Hernandez, and by Elba Hernandez individually and as successor in interest to decedent.

The FAC alleges that at the time of the accident, decedent was twelve years old, and that the City registers among the highest number of collisions involving cyclists, including many injury and fatality accidents involving minors. The pleading alleges that the subject intersection was a dangerous condition of public

property, including due to the intersection having inadequate timing on traffic control devices, and/or unsafe mechanical maintenance of the devices, and inadequate marking and delineation of lanes, crosswalks, and other features of the subject intersection.

Defendant City has filed a cross-complaint for indemnity, declaratory relief and contribution against cross-defendant Jacquelyn Licea, the owner and operator of the vehicle involved in the subject collision. Licea has filed a cross-complaint for indemnity against the City.

ANALYSIS:

Motion for Summary Judgment/Adjudication

Procedural

Request for Continuance

The opposition requests that if the court is inclined to grant the motion in any respect, plaintiff be permitted a continuance to pursue discovery to defeat the motion. Specifically, plaintiffs indicates that plaintiffs have been unable to take the deposition of defendant the City’s PMQ regarding a wide range of topics, have been unable to take the deposition of two witnesses which have submitted declarations in support of the motion, Mark Jomsky, and Joaquin Siques, and have been prevented from exploring whether Siques has sufficient personal knowledge to authenticate key documents relied upon in the motion. The opposition argues that because plaintiffs have been unable to obtain key evidence to oppose the motion, the motion should be denied or continued.

CCP section 437c(h) provides, in pertinent part:

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just….”

Since the amendment of the summary judgment timelines in 2003, the courts have imposed good faith/diligence requirement on parties seeking continuances. The Second District in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that

“A declaration in support of a request for a continuance under section 437c, subdivision (h) must show:

(1) the facts to be obtained are essential to opposing the motion;

(2) there is reason to believe such facts may exist; and

(3) the reasons why additional time is needed to obtain these facts.”

Cooksey, at 254, citations, internal quotations omitted.

It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.

In Dee, the Second District found that the trial court’s failure to grant a continuance constituted reversible error, noting:

“ '[A] summary judgment is a drastic measure which deprives the losing party of trial on the merits.' ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 [107 Cal.Rptr.2d 270].) “To mitigate summary judgment's harshness, the statute's drafters included a provision making continuances-which

are normally a matter within the broad discretion of trial courts-virtually mandated ....” (Ibid.; Code Civ. Proc., § 437c, subd. (h).) Where the opposing party submits an adequate affidavit showing that *35 essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633 [115 Cal.Rptr.2d 780].)

Dee, at 34-35.

In Dee, the court of appeal found that the declaration in support of the request for continuance had explained why a deposition transcript could not be filed within the deadline for opposition, as well as why the admissions in the deposition were essential to plaintiff’s case. The court also found that defendant had acted promptly so that the transcript was available for the court before the summary judgment hearing. Dee, at 35.

Here, counsel’s declaration was timely filed, and indicates that plaintiffs have been forced to file five motions to compel, have been unable to take the depositions of Mark Jomsky and Joaquin Siques, who have submitted declarations supporting the motion, and that the City has failed to produce many records. [Rogers Decl. ¶ 4]. Specifically, with respect to Siques, counsel indicates that despite Siques declaring that a number of documents were engineering records kept by the engineering department of the City, the list of items included items such a police report and traffic accident history log, which would not ordinarily be kept there, and calls into question the personal knowledge of the witness to authenticate these key documents. [Rogers Decl. ¶ 4]. Counsel states, “However, the City has prevented this deposition from occurring and thus Plaintiff is unable to obtain key evidence/information relating to the proffered declaration.” [Rogers Decl. ¶ 4].

It appears that key issues in connection with the motion include the authentication of the document purportedly giving rise to design immunity, as well as the document purportedly showing accidents at the intersection for purposes of notice of a dangerous condition of public property. The file shows a motion to compel the Siques deposition is set to be heard on March 13, 2020, so evidently the City is still resisting this discovery. This is a very strong showing in support of a continuance, and the matter should be continued to permit this discovery to be conducted.

Defendant the City indicates in the reply that plaintiffs’ counsel, Filippo Marchino, told the court that he did not need to take depositions that are the basis of the five upcoming motions to compel. The City relies on a declaration of counsel Carmen Aguado but has not provided courtesy paper copies of that declaration to the court. Aguayo indicates that at a hearing on an ex parte application by plaintiffs to shorten the time to hear the motions to compel on the basis the depositions were necessary to oppose the MSJ, plaintiffs’ counsel actually stated the discovery was not necessary to oppose the MSJ and may not be necessary for trial. [Aguayo Decl. ¶ 7]. The declaration indicates that Aguayo asked the court if it would consider denying the MSJ if plaintiffs argued that they were prevented from obtaining necessary evidence to oppose it, and the court responded that the court did not anticipate it being an issue given Marchino’s representations, and stated that if plaintiffs made the argument, they would need to specifically state each piece of evidence they were prevented from obtaining and how the evidence would have assisted in opposing the MSJ. [Aguayo Decl. ¶¶ 8, 9]. Overall, the requisite showing has been made, and the court faces a risk of having its ruling undone for failure to grant the continuance if there turns out to be reason to grant the motion. However, the court is not granting the continuance, but rather it will rule on the merits.

 

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded,

cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met

that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant the City here seeks to establish that plaintiffs will be unable to establish essential elements of their claims, or that the City can establish its affirmative defense of design immunity.

Issue No. 1: Plaintiffs’ first and second causes of action for premises liability under Government Code § 835 fail as Plaintiffs cannot identify a dangerous condition on the City’s property

Defendant the City argues that plaintiffs cannot establish that the intersection at issue was in a dangerous condition.

Government Code § 835 provides:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee

of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Government Code § 830(a) defines the term dangerous condition for purposes of the Tort Claims Act:

(a) "Dangerous condition" means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

“The existence of a dangerous condition is usually a question of fact but may be resolved as a question of law if reasonable minds can come to but one conclusion.” Chowdhury v. City of Los Angeles (2nd Dist. 1995) 38 Cal.App.4th 1187, 1194.

Defendant the City submits evidence that inspections of the intersections have established that there were no defects in the intersection which would have created a dangerous condition, and that the evidence demonstrates that the traffic control signals were functioning correctly at the time the driver entered the intersection. [UMF Nos. 29, 32, and evidence cited; Royer Decl. ¶15]. Defendant submits declarations stating that the timing of the traffic control signals was in compliance with applicable safety standards and provided sufficient time for a vehicle legally entering the intersection in the south bound lanes to completely clear the intersection before a person in the east bound lanes would start to react to a west facing light turning green. [UMF Nos. 19-21, 23-25, 27, and evidence cited].

This appears sufficient to meet defendant’s initial burden on this motion and shift the burden to plaintiffs to raise triable issues of material fact.

Plaintiffs in opposition argues that the traffic signal control evidence offered is misleading, as there is no evidence submitted concerning the traffic control signal timing on the date of the accident, and the City’s witnesses Mr. Royer and Mr. Yee have conceded as much in their depositions. [See Response to UMF No. 19, and evidence cited]. Indeed, when Royer was asked, “So as you sit here today, you have no idea what the actual timing inputted into the computer at the intersection was; is that correct?” he responded, “Nobody would know, unless they actually went and addressed the computer to find out what the actual signal timing was on the day.” [Royer Depo. p. 68:2-7]. The deposition makes clear he does not know if the timing chart was correctly implemented on the day in question. [Royer Depo. pp. 69, 104, 188 “Q. So, as you sit here today, you do not know, in fact, what the timing of the traffic signal clearance interval on the day of the subject accident actually was; is that correct? A. That’s correct.”]. Yee in his deposition indicated that his statement in his declaration that he inspected the intersection and saw no defects considered the light timing “only in a general sense.” [Yee Depo. p. 99:7-17]. When asked, “In expressing the opinion that you saw no defects that would have created a dangerous condition of public property, were you including the light timing in that statement?” Yee responded, “No.”

This is a bit troubling and appears to leave this matter in a situation where there is no evidence whatsoever that the traffic control signal timing on the date of the accident operated appropriately or as it was approved to do.

Plaintiffs submit the expert declaration of Edward Ruzak, a registered professional traffic engineer, and registered professional civil engineer with 52 years of practical experience in civil and highway engineering, transportation and traffic engineering, who has reviewed the relevant materials in this matter, visited the subject intersection on several occasions, and consulted with civil engineering industry standards. Ruzak explains that the document upon which the City relies concerning light timing at the intersection does not show the actual timing of the light at the intersection on the day of the accident, and that the City could have obtained a direct printout of this information to establish the timing on the date of the accident but has not done so. [Ruzak Decl. ¶¶ 32-34; Ex. M]. This raises issues with respect to the foundational facts in connection with the City’s initial showing.

The expert also explains that even using the timing chart relied upon by the City, and taking into account the conditions at the intersection, it is his opinion that “the City should have implemented an all red clearance interval of 1.0 second and its failure to do so created a dangerous condition.” [Ruzak Decl. ¶¶ 40-44]. The declaration indicates that based on the City’s exhibit, “the City had intended to set timing for the red clearance interval at 0.0 seconds. In my opinion this was contrary to good practice for the subject intersection.” [Ruzak Decl. ¶¶ 44]. Plaintiffs also submit an expert declaration from an expert in accident reconstruction, Beau LeBlanc, who submits a declaration stating the opinion that if Andres Ramirez had started into the intersection 1.0 second later than he did, he would have been 10-15 feet west of the point of impact and Licea would have passed by without contacting him or his bicycle. [LeBlanc Decl. ¶ 8]. This appears sufficient to raise triable issues with respect to the existence of a dangerous condition. The motion is deniedon this issue.

Issue No. 2: Plaintiffs’ first and second causes of action for premises liability under Government Code § 835 also fail because, even if Plaintiffs could identify a dangerous condition on the City’s property, Plaintiffs cannot establish that the City had notice of the alleged dangerous condition

As set forth above, Government Code § 835 provides:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee

of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

(Emphasis added).

The City argues that plaintiffs cannot establish that the City had notice of any dangerous condition at the intersection. The City briefly argues that any dangerous condition was not caused by an act or omission of an employee, as plans for the signals were approved, and seems to again argue that there was no dangerous condition at all. As argued in the opposition, this is arguably insufficient to shift the burden to plaintiffs, as the City focuses primarily on showing lack of notice, when the theory here is that the City directly created the dangerous condition by not having in place appropriate timing intervals for the signals at the intersection. Plaintiffs point to evidence submitted with the moving papers in which the Principal Traffic Engineer for the City states that “the timing of the signals at the subject intersection…were approved by staff within the Department of Transportation and implemented by independent contractor Iteris under the supervision of the Department of Transportation. Iteris does not have any independent ability to set the timing of the signals in a manner not directed by Department of Transportation.” [Siques Decl. ¶ 7]. A reasonable inference has been raised that the alleged dangerous condition was created by a City employee, and the motion on this ground is denied.

Even if it were necessary to consider the notice argument, under the Government Code, actual notice means the public entity “had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” Govt. Code § 835.2(a).

Government Code section 835.2(b) provides, with respect to constructive notice:

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”

The City relies on declarations which indicate that a review of the accident history at the intersection shows only one prior collision involving southbound vehicle collision with an eastbound vehicle. [UMF No. 15, and evidence cited]. A review of the exhibit relied upon, however, a Collision Summary Report, shows several broadside accidents at the intersection involving “Traffic Signals and Signs,” without designating any

directions bound. [See Exhibit O; Response to UMF No. 15, and evidence cited; Ruzak Decl. ¶¶ 45, 46]. The statements regarding the lack of prior incidents are accordingly misleading and subject to competing reasonable inferences. It is also not explained what the City does with this information, from where it is generated, if it includes all incidents which might have occurred at the subject intersection, or how access to this report would constitute an inspection system which was reasonably adequate.

Issue No. 3: Additionally, Plaintiffs’ first and second causes of action for premises liability under Government Code § 835 also fail because the City is immune from liability under Government Code § 830.6 (“Design Immunity”)

The City argues that Government Code § 830.6 provides a complete defense to a dangerous condition cause of action by way of the defense of design immunity.

Government Code § 830.6 provides, in pertinent part:

“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”

Design immunity is considered an affirmative defense to liability for the dangerous condition of public property. Cornette v. Department of Transportation (2001) 12 Cal.4th 63, 69.

“[A] public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.’

Cornette, at 69, citations omitted.

The California Supreme Court has set forth the rationale for such immunity:

“The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.”

Cornette, at 69, citation omitted.

Defendant the City argues that the first element is met because plaintiff here alleges that the accident was caused by inadequate timing on the traffic control devices present at the intersection, and here it is undisputed that there are approved design plans for the intersection which include the traffic control devices and light timing and phasing. [UMF Nos. 13, 14-16, 18, 21].

As argued in the opposition, a review of the actual evidence relied upon does not establish a causal relationship between the plan or design and the accident, because there is no evidence establishing that at the time of the accident, the light timing and phasing was operating according to the design and plans. [See Response to UMF Nos. 19, 21, and evidence cited]. The failure by the City to show the actual performance of the plan or design in accordance with such approval would fail to meet the burden to establish the first element.

In any case, in connection with the second element, the discretionary approval of the plan or design prior to construction, the City relies on documents which are not clearly explained, and declarations concerning what those documents represent by witnesses with no personal knowledge of the facts they purport to evidence. Specifically, the expert David Royer purports to testify that the design of the traffic signals was designed by County of Los Angeles under the direction of a particular person, “and approved for the City of Pasadena by David Barnhart, Licensed Civil Engineer and City of Pasadena’s Traffic Engineer.” [Royer Decl. ¶ 9; Ex. H]. The City principal engineer, Richard Yee, also states these facts, and states he has “researched the engineering records,” and also states that the “The design was a discretionary City of Pasadena approval by a registered Civil and Traffic Engineer with the authority to do so.” [Yee Decl. ¶¶ 11, 12]. A review of this document shows it is a copy very difficult to read, approved by an illegible signature on an illegible date, and does not appear to include any information concerning timing of signals. [Ex. H]. The opposition relies on deposition testimony of Yee in which he states that he does not have personal knowledge as to whether there was authority in the part of Barnhart to approve the plans, or Barnhart’s credentials but was for the most part relying on signatures and the document itself, and that his basis for his knowledge that there was authority to approve the plan was based on these signatures. Royer based his knowledge on the plan containing the word “approved.” [See Response to UMF No. 14, and evidence cited].

The Bicycle Detection Plan submitted as Exhibit I similarly does not appear to include signal timing, and the plans were not installed until after the subject incident. [Yee Decl. ¶¶ 16].

The critical document here appears to be what is referred to as the “Traffic Signal Timing Design Chart,” Exhibit M, which includes timing of the signals, but evidently not phasing. The Yee Declaration states that this chart was “approved and stamped by Norman M. Baculinao, a Licensed Civil Engineer and the Signal Design Engineer for the City of Pasadena, who had the authority to approve the design chart.” [Yee Decl. ¶ 19, Ex. M]. It is not explained how Yee obtained information concerning who this person is, it is not attested that Baculinao had discretionary approval authority, and the document itself does not indicate the plan was “approved,” and there is no explanation, as we ordinarily see, of the processes the City is required to or customarily undergoes with respect to such review and approval. It is also not clear when any such approval was issued, if at all for the legal standard for “approval”. The only date on the document is evidently the date of the expiration of Baculiao’s Registration. [Ex. M].

This appears insufficient to establish the second element, without more clear and admissible evidence concerning the approval of this traffic signal timing design chart and its effective date. The motion on this ground is denied.

 

Issue No. 4: Plaintiffs’ third and fourth causes of action for vicarious liability under Government Code § 815.1 fail because the City cannot be held liable under section 815.4 when a dangerous condition is also alleged and also because public entity is not premised on the general rule of vicarious liability but instead on Government Code sections 830 and 835.4.

The City argues that plaintiffs cannot maintain the third and fourth causes of action against the City based on vicarious liability because, although the City does use an independent contractor to implement the design of the traffic control timing and phasing, such independent contractors’ work is supervised and approved by the City Traffic Control Department and there is no evidence that any independent contractor failed to properly implement the traffic control timing and phrasing according to the City approved traffic signal design chart.

The causes of action are based on Government Code section 815.4, which provides:

“A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”

The City argues that there is no evidence that the independent contractors did anything improper here. However, there is no evidence submitted by the City showing that the traffic signal timing plan was properly implemented at the time of the accident, so no wrongdoing on the part of the independent contractor, as there is no evidence submitted by the City showing how the timing actually was and how the signals performed on the day of the accident. [See Response to UMF Nos. 21, 22, and evidence cited]. The City has submitted evidence showing that the timing was “implemented by independent contractor Iteris….” [Siques Decl. ¶ 7]. The City has accordingly failed to meet its initial burden on this issue.

As argued in the opposition, there appears to be no bar in the authorities cited to plaintiffs bringing this action on the theory that the timing and phasing was defectively designated by the City, and on the alternate ground that although the City approved a plan for the intersection, an independent contractor negligently programmed the light timing in a manner contrary to the City’s plan or took some other action to cause the timing to deviate. The opposition also points out that there is evidence that Iteris, the independent contractor, did exercise some control over the timing of the signals, a possible nondelegable duty, as Exhibit 4 to the Ruzak Declaration, a 2017 Phase Timing & Functions document, indicates that “Timing By: Iteris.” [Ruzak Decl., Ex. 4, p. 1]. The motion on this issue is denied.

Issue No. 5: Plaintiff Elba Hernandez should be dismissed as a party because she lacks standing to sue. The heirs of a decedent do not need to be joined to an action—and, indeed, cannot be joined—in a wrongful death action brought by the personal representative of the decedent’s estate because the personal representative is suing on behalf of the heirs.

It is not clear to which causes of action this argument is addressed.

The argument appears to be that Elba Hernandez, as an individual, should be dismissed as a party because she is suing as the estate’s personal representative.

CCP § 377.20 (a), provides that “a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable statute of limitations period.” CCP § 377.21 provides “A pending action or proceeding does not abate by the death of a party if the cause of action survives.”

CCP § 377.30 provides for the pursuit of a cause of action that survives the death of a decedent. CCP § 377.34 limits damages in such an action to loss or damage sustained before death, not to include pain, suffering, or disfigurement. CCP § 377.60 provides for the pursuit of a wrongful death cause of action. Under CCP § 377.61, damages in a wrongful death proceeding “may not include damages recoverable under Section 377.34.” This suggests that two claims may be necessary to recover both pre and post-death damages, and possibly by plaintiffs in differing capacities. Under the Code, a survival action and wrongful death action may be brought together:

“An action under Section 377.30 may be joined with an action under Section 377.60 arising out of the same wrongful act or neglect.”

CCP § 377.62(a).

It is not clear what the City is arguing here. It is not clear if there is a concern that there are other wrongful death claimants that are not being represented here.

The opposition argues that the City bases this argument solely on the case caption, with no evidence, including no evidence of other heirs. The opposition also seems to concede that there may be some “surplusage” in the operative complaint, but that this court should not decide between dismissing Hernandez individually and dismissing her in her personal representative capacity. This issue will be discussed at the hearing, as while it does not appear the motion should be granted on this issue in the posture in which it is brought, plaintiffs may want the court to treat the motion as a motion for judgment on the pleadings, and permit plaintiffs leave to amend the pleading to be clear on the issue of standing, and the theories pursued as to each claim here.

Motion to Bifurcate

Defendant the City seeks an order that the trial be bifurcated in this matter, so that the court will first hear the matter of whether there is a dangerous condition of public property at the accident location, and whether the City is protected by design immunity. The trial will then proceed on the issues of whether the dangerous condition was a causal factor in the accident, what comparative fault can be ascribed to the parties, and what damages resulted.

CCP § 598 provides:

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of 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 part thereof in the case.”

Section 598 was adopted in 1963 as the result of Judicial Council recommendations and “its objective is avoidance of waste of time and money caused by unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” Trickey v. Superior Court (1967) 252 Cal.App.2d 650. 653.

Defendant City also relies on CCP § 1048, which provides that 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 separate issue...”

The determination of whether to bifurcate the trial of issues in a single action is a matter within the discretion of the trial court, “whose ruling will not be disturbed on appeal absent a manifest abuse of discretion.” Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (2nd Dist. 1987) 189 Cal.App.3d 1072, 1086, citing McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 727.

California courts have recognized that bifurcation is proper where liability is a simple matter while damages require testimony from multiple witnesses (Trickey, supra), or where only a small fraction of the evidence would be repeated, and the trial court had determined the ends of justice would be served by bifurcation. Kaiser Steel Corp. v. Westinghouse Elec. Corp. (2nd Dist., 1976) 55 Cal.App.3d 737.

The federal courts have developed more specific standards and burdens with respect to bifurcation under Federal Rule 42(b), which serves similar purposes as the California statute.

The federal courts have set forth the following factors to be considered in bifurcation determinations:

1) There will be little overlapping testimony and evidence between the two proceedings;

2) Where issues to be decided are complex and the factfinder is likely to become confused;

3) Where bifurcation will promote settlement;

4) Where a single trial will cause unnecessary delay.

“None of these factors are determinative. To the contrary, a court must take into account the overall equities of the case in ruling on a motion to bifurcate.” Rodin Properties-Shore Mall, N.V. v. Cushman & Wakefield, Inc. (D.C. NJ 1999) 49 F.Supp. 709.

Practically speaking, bifurcation, at least in the personal injury context, is generally considered pro-defendant. A 1990 study with mock juries found juries less likely to find for a plaintiff on causation or liability when a trial was bifurcated. While 100% found for plaintiff in unitary trials, only 74.8% found for plaintiff when the proceeding was bifurcated. The study concluded that in unitary trials, juries appear to use damages evidence to support substantive decisions, particularly causation. Bifurcation Unbound, 75 Wash.L.Rev. 705, 743.

The opposition argues essentially that the City does not have a strong chance of prevailing on its argument that there was no dangerous condition, given that its own expert has conceded in deposition that if the trier of fact credits the testimony of eyewitnesses to the accident that both the motor vehicle driver and the pedestrian entered the intersection on green traffic signals, there was a dangerous condition. It would appear that any advantages to this requested bifurcation would not appear compelling if the court is not persuaded that the bifurcation may completely dispose of issues which would eliminate the need for further proceedings.

The opposition also argues that the bifurcation cannot be accomplished practically speaking in the way proposed, in effect, introducing no evidence of the accident until after plaintiffs have established a dangerous condition, or defendant has failed to establish design immunity. The argument is that the issue of whether the light timing at the time of the accident constituted a dangerous condition of public property would necessarily require evidence concerning what the witnesses observed at the time of the accident in connection with the light timing, and that design immunity requires as an essential element a causal relationship between the plan or design and the accident, which would necessarily involve evidence concerning the occurrence of the accident.

Plaintiffs also point out that although the City argues that if the issues in the first phase are determined in favor of the City, there would be no need for a damages phase, this is simply not true, as the trial would proceed to a damages phase with respect to defendant Licea, the driver. The matter would accordingly be left in a posture where the only witness not necessary would be the City’s economist, and the only convenience would be to the City. The opposition also questions how the risk that the nature of the accident and fatal nature of the injuries generating sympathy would be prevented by bifurcation, when these matters would likely not be entirely precluded from being introduced to the trier of fact in a phase one.

The motion is unusual, as it is not one to bifurcate liability from damages, or to first determine an affirmative defense, and the proposed order of evidence does not appear to be possible given the elements necessary to establish dangerous condition and design immunity. Given the posture of the matter, the order would not potentially avoid a damages phase.

Moreover, although not argued in the papers, the effect of bifurcation may be to cause greater delay for plaintiffs, as well as inconvenience the jurors and the court in having to potentially deal with two sets of procedures, closing arguments, jury instructions, and deliberations.

This motion claims to be driven primarily by the fear that this is a case where plaintiffs’ decedent’s injuries and death will be so sympathetic that the jury may be unduly moved by sympathy to make a liability finding it would not otherwise make. The argument seems to be that this is like a gross disfigurement case, where there is some potential defendants will suffer undue sympathy prejudice from the amount of damages sought. See Miller v. New Jersey Transit Authority Rail Operations (D.C. N.J. 1995) 160 F.R.D. 37 (bifurcation order upheld where plaintiff lost three limbs when electrocuted on a train after a drinking party with his fraternity brothers). There may be some risk of undue sympathy here, but the case is not really different from any other wrongful death case involving the death of child, and no case law is cited involving this type of action.

Hence, it does not appear that the proposal would result in any savings of time and trouble, and the motion is denied.

RULING:

Defendant City of Pasadena’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.

Issue No. 1: Plaintiffs’ first and second causes of action for premises liability under Government Code § 835 fail as Plaintiffs cannot identify a dangerous condition on the City’s property

Motion is DENIED.

Plaintiffs have raised triable issues of material fact with respect to whether a dangerous condition of public property existed at the intersection on the date of the accident. Plaintiffs point out that the moving papers make

broad statements concerning this issue, but there is no evidence submitted concerning the traffic control signal timing on the date of the accident, and the City’s witnesses Mr. Royer and Mr. Yee have conceded as much in their depositions. [See Response to UMF No. 19, and evidence cited; Royer Depo. p. 68:2-7, pp. 69, 104, 188 “Q. So, as you sit here today, you do not know, in fact, what the timing of the traffic signal clearance interval on the day of the subject accident actually was; is that correct? A. That’s correct.”; Yee Depo. p. 99:7-17, 18-22]. ‘Q. In expressing the opinion that you saw no defects that would have created a dangerous condition of public property, were you including the light timing in that statement? A. No.’

There is accordingly no evidence whatsoever that the traffic control signal timing on the date of the accident operated appropriately or as it was approved to do.

Plaintiffs submit the expert declaration of Edward Ruzak, who reinforces the fact that the document upon which the City relies concerning light timing at the intersection does not show the actual timing of the light at the intersection on the day of the accident, and that the City could have obtained a direct printout of this information to establish the timing on the date of the accident but has not done so. [Ruzak Decl. ¶¶ 32-34; Ex. M]. This raises issues with respect to the foundational facts in connection with the City’s initial showing.

The expert also explains that even using the timing chart relied upon by the City, and taking into account the conditions at the intersection, it is his opinion that “the City should have implemented an all red clearance interval of 1.0 second and its failure to do so created a dangerous condition.” [Ruzak Decl. ¶¶ 40-44]. The declaration indicates that based on the City’s exhibit, “the City had intended to set timing for the red clearance interval at 0.0 seconds. In my opinion this was contrary to good practice for the subject intersection.” [Ruzak Decl. ¶¶ 44]. Plaintiffs also submit an expert declaration from an expert in accident reconstruction, Beau LeBlanc, who submits a declaration stating the opinion that if Andres Ramirez had started into the intersection 1.0 second later than he did, he would have been 10-15 feet west of the point of impact and Licea would have passed by without contacting him or his bicycle. [LeBlanc Decl. ¶ 8]. This raises triable issues with respect to the existence of a dangerous condition.

Issue No. 2: Plaintiffs’ first and second causes of action for premises liability under Government Code § 835 also fail because, even if Plaintiffs could identify a dangerous condition on the City’s property, Plaintiffs cannot establish that the City had notice of the alleged dangerous condition

Motion is DENIED.

The City has failed to establish that plaintiffs will be unable to establish that the alleged dangerous condition, the signal timing was not in fact created by the act of an employee of the public entity, as the entity approving the signal timing, as discussed above in connection with the Ruzak declaration. Moreover, the court finds that the Collision Summary Report relied upon to establish lack of notice supports a competing inference that the City may have been on notice and is not sufficiently presented with respect to establishing a reasonably adequate inspection program with respect to signal timing.

Issue No. 3: Additionally, Plaintiffs’ first and second causes of action for premises liability under Government Code § 835 also fail because the City is immune from liability under Government Code § 830.6 (“Design Immunity”)

Motion is DENIED.

The court finds that the City has failed to satisfactorily establish the first and second elements of such an affirmative defense.

As to the first element, a causal relationship between the plan or design and the accident, a review of the actual evidence relied upon does not establish a causal relationship between the plan or design and the accident, because there is no evidence establishing that at the time of the accident, the light timing and phasing was

operating according to the design and plans. [See Response to UMF Nos. 19, 21, and evidence cited].

As to the second element, the discretionary approval of the plan or design prior to construction, the court finds that the evidence submitted to show such discretionary approval is not based on personal knowledge or clear explanation concerning what the documents represent, and any approval process employed by the City at the time. [Royer Decl. ¶ 9; Ex. H; Yee Decl. ¶¶ 11, 12; Response to UMF No. 14, and evidence cited].

In connection with the second element, the discretionary approval of the plan or design prior to construction, the City relies on documents which are not clearly explained, and declarations concerning what those documents represent by witnesses with no personal knowledge of the facts they purport to evidence, as confirmed in their depositions. [See Royer Decl. ¶ 9, Yee Decl. ¶¶ 11, 12, Response to UMF No. 14, and evidence cited].

The critical document here appears to be what is referred to as the “Traffic Signal Timing Design Chart,” Exhibit M, which includes timing of the signals, but evidently not phasing. The Yee Declaration states that this chart was “approved and stamped by Norman M. Baculinao, a Licensed Civil Engineer and the Signal Design Engineer for the City of Pasadena, who had the authority to approve the design chart.” [Yee Decl. ¶ 19, Ex. M]. It is not explained how Yee obtained information concerning who this person is, it is not attested that Baculinao had discretionary approval authority, and the document itself does not indicate the plan was “approved,” and there is no explanation, as is ordinarily submitted, of the processes the City is required to or does undergo customarily with respect to such review and approval. It is also not clear when any such approval was issued. [Ex. M].

Issue No. 4: Plaintiffs’ third and fourth causes of action for vicarious liability under Government Code § 815.1 fail because the City cannot be held liable under section 815.4 when a dangerous condition is also alleged and also because public entity is not premised on the general rule of vicarious liability but instead on Government Code sections 830 and 835.4.

Motion is DENIED.

The City argues that plaintiffs cannot maintain the third and fourth causes of action against the City based on vicarious liability because, although the City does use an independent contractor to implement the design of the traffic control timing and phasing, such independent contractors’ work is supervised and approved by the City Traffic Control Department and there is no evidence that any independent contractor failed to properly implement the traffic control timing and phrasing according to the City approved traffic signal design chart. Again, as discussed above, there is no evidence before this court showing how the timing was actually implemented and how the signals performed on the day of the accident. [See Response to UMF Nos. 21, 22, and evidence cited]. The City has submitted evidence showing that the timing was “implemented by independent contractor Iteris….” [Siques Decl. ¶ 7]. The court finds that the alternate ground raised by these causes of action has not been shown to be improper by the moving papers.

Issue No. 5: Plaintiff Elba Hernandez should be dismissed as a party because she lacks standing to sue. The heirs of a decedent do not need to be joined to an action—and, indeed, cannot be joined—in a wrongful death action brought by the personal representative of the decedent’s estate because the personal representative is suing on behalf of the heirs.

Motion is DENIED.

It is not clear to which causes of action this argument is addressed, so that it properly disposes of an entire cause of action as required under the summary judgment statutes.

Under the Code, a survival action and wrongful death action may be brought together:

“An action under Section 377.30 may be joined with an action under Section 377.60 arising out of the same wrongful act or neglect.”

CCP § 377.62(a).

It is also not clear that on this motion the court may require a party to choose in which capacity to proceed in this matter. The court will hear argument with respect to whether the parties would like to address the state of the pleadings and seek permission to amend.

Plaintiff’s Evidentiary Objections in Opposition to the Evidence Submitted in Support of the Motion for Summary Judgment:

Aguado Declaration, Objections Nos. 1, 2, 3; Yee Declaration, Objections Nos. 2, 5, 7 and Objection Nos. 3, only as to the sentence “The design…to do so:” Royer Declaration, Objection No. 5, only as to the sentence, “The design…City of Pasadena, and Objection No. 13, only as to the sentence, “Both… City of Pasadena,” are SUSTAINED.

Remaining objections are OVERRULED.

Plaintiff’s Objections to Defendant City of Pasadena’s Notice of Errata re Reply are OVERRULED.

Plaintiff’s Objections to Defendant City of Pasadena’s Reply Papers: Objection to Reply to Plaintiff’s Opposition is MOOT in light of the court’s consideration only of the reply attached to the Notice of Errata.

Objection to reply to opposition of Defendant Licea is DENIED.

Defendant City of Pasadena’s Motion to Bifurcate is DENIED.