Mack vs. 488 DDZ, Inc.

Merits

While the Complaint alleges Plaintiff’s injury occurred on October 27, 2021, a date within two years of the initiation of this action (¶GN-1 of Complaint), Defendant takes the position the actual date of injury was September 24, 2021, a date outside the statute of limitations. Defense Counsel declares that Raissa Schurawel, the HR Manager for Defendant Burris Law, testified that Plaintiff reported falling on September 24, 2021, when he met with Defendant to discuss future installation of a conference table. (¶5 of Gallegos Declaration and Exhibit B thereto.) Counsel additionally declares that Ariana Burris confirmed the above. (¶5 of Gallegos Declaration and Exhibit C thereto.)

In responding to this motion, Plaintiff primarily argues against application of the statute of limitations. (See Opposition: 2:12-13 and Opposition: 4:24-5:19.)2 As conceded by Defense Counsel, Dennis Halliwell’s deposition corroborates Plaintiff’s timing. (¶7 of Gallegos Declaration and Exhibit E thereto.) Per Plaintiff, Dennis Halliwell will also testify that, after October 27, 2021, Plaintiff was unable to lift heavy objects. (¶2 of Gross Declaration and Exhibit 2 thereto, at 95:18- 96:5.)

While Plaintiff generally disputes evidence offered by Defendant, Plaintiff nonetheless concedes the existence of conflicting testimony, regarding the date of the fall. (Opposition: 6:12-13.)

The motion to bifurcate need not resolve this factual dispute. It is only the existence of the evidentiary dispute and its potential for avoiding additional litigation, which are relevant to this motion.

Per Defense Counsel, “trial on the issue of the statute of limitations will take relatively little time” and will be “relatively straightforward.” (¶8 of Gallegos Declaration.) Defense Counsel declares that there is “little to no overlap anticipated between the statute of limitations and liability/causation/damages witnesses.” (Ibid.)

In contrast to the above, however, Plaintiff asserts the “statute of limitations is intricately linked to negligence (causation) making it impractical to treat them as separate issues.” (Opposition: 2:9-10.) Plaintiff argues: “If bifurcation on the issue of statute of limitations is granted, duplicative testimony will be required from the landscaper Salvatore regarding when he installed the sprinkler system, its exact location, how it was installed, and when he removed it. These are the

2 For example, Plaintiff argues: “Defendant has not provided any admissible evidence to establish that no irrigation

tubing or lines were present on the property as of October 27, 2021.” (Opposition: 2:12-13.)

same issues that will need to be addressed with respect to Plaintiff’s claim of negligence at least with respect to the issues of duty and breach of duty.” (Opposition: 9:2-6.) The court agrees with Plaintiff.

Given the simplicity of the relevant incident (i.e. a slip and fall), the evidence regarding timing necessarily overlaps with the evidence of the underlying negligence. In contrast to cases which hinge on delayed discovery and which require additional evidence relating thereto, it is the fact of the injury itself on which the statute of limitations arguments rely. Thus, it would indeed appear that overlap exists, between the statute of limitations issue and liability.

As noted by Plaintiff, “[t]he major objective of bifurcated trials is to expedite and simplify the presentation of evidence,” but this objective is thwarted when the parties are required “to reintroduce every piece of evidence at each stage of trial.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.)

Damages

Per Defense Counsel, “given plaintiff’s claimed injuries, it appears that there will be at least 10 retained experts.” (¶10 of Gallegos Declaration.) “Plaintiff also treated with multiple medical providers, and, therefore, will presumably call to the stand multiple treating physicians as ‘non-retained’ experts and plaintiff has in fact designated 14 non-retained experts on damages.” (¶10 of Gallegos Declaration.) Plaintiff does not dispute this.

Defendant also asserts that bifurcating the statute of limitations from liability and damages will avoid a risk of prejudice to Defendant, given that Plaintiff is alleging ongoing future medical expenses. (¶11 of Gallegos Declaration.)

In response to the above, Plaintiff notes that “[d]amages can be separated without preventing Plaintiff from presenting evidence on the statute of limitations and negligence, since the issues are closely related.” (Opposition: 3:23-25.) Plaintiff is correct, and the court believes the parties should consider stipulating to bifurcate the damages portion of the trial from the liability portion of the trial.

For the foregoing reasons, the motion is denied.

Plaintiff to give notice.