Charles Eugene Murdock vs. Jodi Michelle Andrews, et al.

whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment or summary adjudication is granted when, after the court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. Code Civ. Proc. § 437c, subd. (o)(1), (2); Aguilar, 25 Cal. 4th at 850. As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element.

Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. Code Civ. Proc. § 437c(o)(2). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. Code Civ. Proc. § 437c(o)(1)-(2).

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exists are to be resolved in favor of the party opposing summary judgment. Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.

Analysis

Defendant argues Plaintiff cannot meet his burden of proof as to the negligence cause of action against Ringen because: (1) Ringen had no duty to prevent an unforeseeable act by the driver; (2) even if he had a duty, the undisputed facts establish Ringen did not breach a duty owed to Plaintiff; and (3) Plaintiff cannot raise a triable issue of material fact as to causation. The Court cannot agree.

The basic elements of a cause of action for negligence are (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998. Separately, “[e]very owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.” Vehicle Code § 17150 (italics added); see also CACI 720 (elements motor vehicle owner liability-permissive use of vehicle).

At bar, Plaintiff’s FAC does not reference liability pursuant to Vehicle Code section 17150 specifically. However, it does plead the elements of such, alleging, “Defendant [Andrews] and DOES 1 [Ringen] through 50 were those owning, operating, controlling, repairing, modifying 3

and maintaining a certain 2007 Toyota Tundra, .... (hereinafter referred to as “Defendant’s vehicle”). FAC, ¶ 5 (italics added). Defendants [Andrews and Ringen], and each of them ...negligently owned, managed, maintained, drove, and operated” the vehicle, such that “each Defendant caused the respective vehicle whether owned and operated and/or owned and negligently entrusted to another to collide with Plaintiff’s vehicle, proximately causing ...injuries and damages to the Plaintiff ....” FAC ¶ 10.

Defendant Ringen’s burden on summary judgment is, “to identify and respond to all theories of liability reflected in the complaint, ‘even if not separately pleaded.’ Code Civ. Proc. § 437c(o)(2). “Thus, ‘[w]hile a plaintiff who has pleaded several causes of action based on the same set of facts need sustain its burden of proof only on one of the theories in order to prevail at trial, a defendant who seeks a summary judgment must define all of the theories alleged in the complaint and challenge each factually.’ ” Lopez v.

Superior Court (1996) 45 Cal.App.4th 705, 714. “If ... the plaintiff pleads several theories ... the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is to be successful.” Onn v. National Can Corp. (1981) 124 Ca.App.3d 630, 639.

In his motion, Defendant fails to address Vehicle Code section 17150 as a theory of liability. Because Defendant did not meet his threshold burden on this issue, the burden did not shift to Plaintiff to make a prima facie showing that a triable issue of fact exists.2 On this record, Defendant is not entitled to judgment as a matter of law. Given the disposition herein, the Court need not address the various objections to evidence and statements of undisputed facts interposed by the parties. Defendant Donald Ringen’s Motion to Bifurcate Trial

Defendant Donald Ringen’s motion to bifurcate the issues of liability and damages is granted.

Legal Standard

The Court has wide discretion to bifurcate issues for trial. “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 cause of action ... or of any separate issue or of any number of causes of action or issues ....” Code Civ. Proc. § 1048(b). The court may order certain issues tried before others “when the convenience of witnesses, the ends of justice or the economy and efficiency of handling the litigation would be promoted thereby.” Code of Civ. Proc. § 598.

2 Defendant Ringen asserts, for the first time in his reply, that permissive use liability is moot based on evidence of a policy-limit tender, citing Vehicle Code sections 17150 and 17151. This evidence comes too late and the Court declines to consider it. ‘‘ ‘ [T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...’ and if permitted, the other party should be given the opportunity to respond.” Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.

Any reply evidence “should not have addressed the substantive issues in the first instance but only filled gaps in the evidence created by the . . . opposition.” Id. at 1538. As indicated, Defendant Ringen did not address the Vehicle Code section 17150 theory at all in his moving papers. In any event, as Plaintiff points out, a tender of policy limits does not moot this liability issue. The claim has not been finally adjudicated and it has not otherwise been finally resolved by the parties. 4

“[T]he primary purpose [of section 598] is to permit the issue of liability in personal injury cases to be tried prior to that of damages when, in the opinion of the court, the facts of a particular case justify it.” ... Such separate trial of the liability issue was considered desirable to avoid wasting court time in cases where the plaintiff loses on the liability issue, to promote settlements where the plaintiff wins on the liability issue, and to afford a more logical presentation of the evidence, thus simplifying the issues for the jury. Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888, n.

8.

In summary, “[t]he major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” Id. at 888.

Again, this case arises out of a motor vehicle accident involving allegations that Plaintiff’s vehicle was hit from behind by Defendant Jodi Michelle Andrews while Andrews was operating a vehicle owned by her current/former employer Defendant Ringen. Defendant Ringen’s earlier motion to strike punitive damages was granted; however, Defendant Andrew’s motion to strike punitive damages was denied. Plaintiff contends that he suffered severe injuries as a result of the incident. In support of his motion, Defendant Ringen argues the witnesses regarding damages will number into the dozens, and litigating damages, if a jury has already concluded Ringen is not liable, would not be a good use of time and resources. The Court agrees.

The Court finds bifurcating the trial of this action so the issue of liability is tried before the issue of damages will simplify and organize the presentation of evidence which will be conducive to expedition and economy for the parties and the Court. At bar, it appears there will be little overlap in the testimony regarding liability and the damages claimed by Plaintiff. As such, bifurcating the trial likely will reduce the time/resources necessary for proof of the damages phase, if Defendant Ringen prevails on the liability phase with respect to the general negligence theory or the Vehicle Code section 17150 theory. See Trickey v. Superior Court In and For Sacramento County (1967) 252 Cal.App.2d 650, 653; Foreman & Clark Corp. (1971) 3 Cal.3d 875, 888 fn.

8. Alternatively, if Defendant is found liable in the first phase of trial, on either theory (and particularly if Defendant is found liable only under a Vehicle Code theory), such a finding may promote settlement, thus rendering the second damage phase unnecessary as to this Defendant. Lastly, and significantly, bifurcation will mitigate the risk that the jury, in deciding liability as to Defendant Ringen, will be improperly influenced by extensive damages evidence.

The motion is granted.

3. CU0002492 Bank of America, N.A. v. Prashant Tyagi

Cross-Defendant Bank of America, N.A.’s unopposed motion for order setting aside and vacating default and any default judgment is granted.

Pursuant to Code of Civil Procedure section 473(b), “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, 5