CLIFTON VS. MILLS

4. CLIFTON VS. MILLS 2023-01309170 MOTION FOR BIFURCATION

The Motion for Bifurcation by defendants Daniel C. Mills, II, M.D. and Aesthetic Plastic Surgical Institute is GRANTED.

Defendants move to bifurcate the trial of the statute of limitations defense and trying that issue before liability and damages.

The court declines to rule on Plaintiff’s objections (ROA 147) as immaterial to the court’s ruling.

Code of Civil Procedure section 598 provides, in pertinent part:

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 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 part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time . . . .

Code of Civil Procedure section 597.5 provides:

In an action against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, veterinarian, or a licensed hospital as the employer of any such person, based upon the person’s alleged professional negligence, or for rendering professional services without consent, or for error or omission in the person’s practice, if the answer pleads that the action is barred by the statute of limitations, and if any party so moves or the court upon its own motion requires, the issues raised thereby must be tried separately and before any other issues in the case are tried. If the issue raised by the statute of limitations is finally determined in favor of the plaintiff, the remaining issues shall then be tried.

“Separate jury trials are not required by Code of Civil Procedure section 597.5 (County of Kern, supra, 82 Cal.App.3d at p. 400, citing Gonzales v. Nork (1978) 20 Cal.3d 500, 506-507.)

Given the specific and mandatory nature of section 597.5, it is controlling. (See County of Kern v. Superior Court (1978) 82 Cal.App.3d 396, 399 [“section 597.5 is mandatory.”]; Thai v.

Richmond City Center, L.P. (2022) 86 Cal.App.5th 282, 290 [“[u]nder the well-established rule of statutory construction, a specific statute controls over a general statute covering the same subject.”].) Here, Plaintiff has brought a medical malpractice action against a surgeon and his alleged employer/agent. Each Defendant asserts as their 23rd affirmative defense in their respective answers that this action is barred by the statute of limitation. (ROA 55, 99.) They now move for bifurcation of the defense.

Generally, a trial court considers the grounds stated in the notice of motion and is not required to consider a ground for relief that the moving party did not raise. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) However, despite Defendants’ omission of section 597.5 from their notice of motion, the court may grant relief under that section. (See Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277-1278 [court had discretion to rule on grounds not stated in motion where no objection and parties had fair opportunity to address issues]; Luxury Asset Lending, LLC v.

Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 908-909 [where memorandum of points and authorities made clear the grounds for relief sought, court “should have overlooked” omission of grounds in notice].) Here, Defendants’ notice clearly states that they seek bifurcation of the trial and that the motion will be based on the attached memorandum of points and authorities, which in turn specifically states Defendants seek bifurcation of the statute of limitations defense to be tried first.

Thus, Plaintiff had a fair opportunity to address the issue and, in fact, did so. (See Opp., pp. 6:18-7:3, 7:22-8:5, 9:17-10:6.)

The motion is granted.

Defendants’ statute of limitations defense will be tried in the first phase of the trial. If Plaintiff prevails, liability and damages will be tried in the second phase before the same jury.

5. KIM VS. TRAN 2026-01566561 MOTION TO CONSOLIDATE

Plaintiff Harinne Kim’s Motion to Consolidate is GRANTED. The Court ORDERS the case numbered 30-2026-01566561-CU- OR-CJC consolidated with this case, for all purposes. Ordinarily the only triable issue in an unlawful detainer proceeding is the right to possession, along with any incidental damages that result from the property’s unlawful detention. (Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297.) However, when allegations in the pending unlawful detainer and unlimited civil actions demonstrate that the unlawful detainer plaintiff’s title might be insufficient to justify relief, and that the unlawful detainer defendant might be entitled to quiet title to the disputed property, a trial court should consolidate the two actions. (Martin-Bragg v. Moore (2013) 219 Cal. App. 4th 367, 385; accord