RACHEL KEMPF VS JOSHUA THOMAS NOLAN

Tentative Rulings

Case Number: BC694605    Hearing Date: November 05, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO BIFURCATE

On February 20, 2018, Plaintiff Rachel Kempf (“Plaintiff”) filed this action against Defendant Joshua Thomas Nolan (“Defendant”) for negligence arising out of a January 8, 2018 automobile versus pedestrian accident. Defendant was driving and Plaintiff was a pedestrian. Defendant moves to bifurcate issues of liability and damages at trial.

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any party thereof in the case . . .” (Code Civ. Proc., § 598.) Where trial of the issue of liability as to all causes of action precedes the trial of other issues or parts thereof and the decision of the court or jury is in favor of the allegedly liable party, judgment in favor of that party shall be entered and no trial of other issues in the action against that party will be had. (Ibid.) If the decision of the court or jury on the issue of liability is against the party allegedly liable, the trial of the other issues shall be had before the same or another jury as ordered by the court. (Ibid.)

“Section 598 of the Code of Civil Procedure gives the trial court power to order ‘that the trial of the issue of liability shall precede the trial of any other issue in the case . . . ‘Its objective is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.’ [Citation.]” (Cohn v. Bugas (1974) 42 Cal.App.3d 381, 385.) However, the court cannot order the separate trial of an issue of liability when because of the nature of the case it is necessary to prove the plaintiff’s damages in order to establish that liability. (Cook v. Superior Court (1971) 19 Cal.App.3d 832, 834.)

Defendant argues the liability stage will consist of seven witnesses and take no more than three days of trial. These witnesses include the officers who investigated the accident and accident reconstruction experts. During the damages phase, Plaintiff’s extensive alleged injuries will be at issue, including gastrointestinal perforation, multiple fractures, radio nerve palsy, and pleural effusion. Expert witnesses will include medical billing experts and orthopedic specialists from both parties, as well as Plaintiff’s numerous treating physicians. Defendant estimates the testimony for the injuries and damages phase will take four days.

Plaintiff argues she will be prejudiced by bifurcation as her injuries limit her ability to offer full liability testimony at trial. Plaintiff has a substantially limited recollection of the incident at issue due to the injuries sustained in the accident. Plaintiff argues she should be able to put on evidence explaining her memory limitations resulting from physical injuries. On reply, Defendant argues that Plaintiff has not designated any experts who could testify regarding her alleged memory limitations.

Even though today is the Final Status Conference, the parties have not filed any trial documents. Without a witness list and an exhibit list, the Court cannot determine how long the trial will be and what witnesses will be necessary. For example, the parties should be able to avoid witnesses on the medical bills unless there is an actual dispute about the authenticity and business records nature of the bills.

To prove her negligence claim, Plaintiff will need to show that Defendant was negligent, Plaintiff was harmed, and Defendant’s “negligence was a substantial factor in causing [Plaintiff’s] harm.” (CACI No. 400.) Thus, Plaintiff will need to prove that the accident and Defendant’s conduct was a substantial factor in causing her harm and therefore, evidence as to her injuries will be required as part of the liability phase. Although Plaintiff did not designate an expert to testify about her memory loss, she has knowledge of her memory and memory loss. Bifurcation would not lead to economy and efficiency given this overlap in evidence.

The Motion to bifurcate is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.