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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Stacy McCrory v. County of Santa Barbara, et al.

Case No: 15CV02871
Hearing Date: Mon Jan 27, 2020 9:30

Nature of Proceedings: Motion to Sever Trial

 

 

 

Stacy McCrory v. County of Santa Barbara, et al. (Judge Sterne)

Case No. 15CV02871

           

Hearing Date: January 27, 2020                                            

HEARING:              Motion of Defendants to Sever Trial

 

ATTORNEYS:       

For Plaintiff Stacy McCrory: James H. Cordes, Angelica J. Caro, James H. Cordes and Associates

 For Defendants County of Santa Barbara, Patricia Dark, and Joseph J. Lockhart: Michael C. Ghizzoni, Michael M. Youngdahl, Christopher E. Dawood, Office of the County Counsel

 

TENTATIVE RULING:

 

The motion of defendants County of Santa Barbara, Patricia Dark, and Joseph J. Lockhart to sever trial is denied.

 

 

Background:

 

On September 4, 2015, plaintiff Stacy McCrory filed her original complaint in this action against defendants County of Santa Barbara (County) and Patricia Dark asserting causes of action for: (1) defamation; (2) negligent supervision/ retention; (3) negligent investigation; (4) intentional interference with prospective economic advantage; and, (5) negligent interference with prospective economic advantage. All of these causes of action arise out of the republication of an allegedly defamatory email originating with employees of defendant County by anonymous copies mailed to persons outside of County, particularly, to persons involved in the potential hiring of plaintiff by the County of Ventura.

 

On October 28, 2015, defendants filed their answer to the complaint.

 

On April 4, 2016, the court granted in part defendants’ special motion to strike. The court granted leave to amend to state causes of action not stricken by the motion.

 

On April 15, 2016, McCrory filed her first amended complaint, asserting the same causes of action but eliminating those items that were subject to the special motion to strike.

 

On June 1, 2016, defendants filed their notice of appeal regarding the court’s order on the special motion to strike. The filing of the notice of appeal had the effect of staying the action.

 

On June 13, 2016, on the stipulation of the parties, the court ordered this action consolidated with case number 15CV01554, with this case as the lead case.

 

On February 23, 2018, the remittitur from the Court of Appeal was filed, with this court’s order affirmed in full.

 

On January 11, 2019, defendants filed their answer to the amended complaint.

 

On March 4, 2019, the court set trial for November 18, 2019.

 

On July 24, 2019, defendants filed their motion for summary judgment or alternatively for summary adjudication.

 

On September 18, 2019, McCrory filed her amendment to the complaint identifying Joseph J. Lockhart as “Doe 1.”

 

On October 7, 2019, the court granted in part and denied in part the motion for summary judgment or summary adjudication. The court granted the motion as to the fourth and fifth causes of action and otherwise denied the motion.

 

On October 8, 2019, McCrory requested, and the court granted, dismissal of the second and third causes of action.

 

On October 22, 2019, Lockhart a motion to quash the amendment to the complaint. The court heard the motion on November 4. By order after hearing filed on November 6, the court denied the motion to quash and vacated the trial date then set for November 18.

 

On November 18, 2019, the court held a trial confirmation conference and set trial for July 13, 2020.

 

On December 5, 2019, defendants filed this motion to sever trial. Defendants seek an order to separate trial in this action into three phases: (1) all elements of and affirmative defenses to the cause of action for defamation except individual legal responsibility for the republication of the email at issue and damages; (2) individual legal responsibility for the republication of the email and damages; and, (3) before a separate trier of fact (jury or court) from the first two phases, the County’s vicarious liability. Defendants argue that the separation into these phases would promote efficiency by potentially reducing trial by a resolution of the case in defendants’ favor at an earlier phase and would avoid an actual conflict of interest of defendants’ counsel in the event the case

 

 

Stacy McCrory v. County of Santa Barbara, et al. (Judge Sterne)

Case No. 15CV02871

           

Hearing Date: January 27, 2020                                                        By: Paul Larsen

 

 

HEARING:              Motion of Defendants to Sever Trial

 

ATTORNEYS:        For Plaintiff Stacy McCrory: James H. Cordes, Angelica J. Caro, James H. Cordes and Associates

                                    For Defendants County of Santa Barbara, Patricia Dark, and Joseph J. Lockhart: Michael C. Ghizzoni, Michael M. Youngdahl, Christopher E. Dawood, Office of the County Counsel

 

TENTATIVE RULING:

 

For the reasons set forth herein, the motion of defendants County of Santa Barbara, Patricia Dark, and Joseph J. Lockhart to sever trial is denied.

 

 

Background:

 

On September 4, 2015, plaintiff Stacy McCrory filed her original complaint in this action against defendants County of Santa Barbara (County) and Patricia Dark asserting causes of action for: (1) defamation; (2) negligent supervision/ retention; (3) negligent investigation; (4) intentional interference with prospective economic advantage; and, (5) negligent interference with prospective economic advantage. All of these causes of action arise out of the republication of an allegedly defamatory email originating with employees of defendant County by anonymous copies mailed to persons outside of County, particularly, to persons involved in the potential hiring of plaintiff by the County of Ventura.

 

On October 28, 2015, defendants filed their answer to the complaint.

 

On April 4, 2016, the court granted in part defendants’ special motion to strike. The court granted leave to amend to state causes of action not stricken by the motion.

 

On April 15, 2016, McCrory filed her first amended complaint, asserting the same causes of action but eliminating those items that were subject to the special motion to strike.

 

On June 1, 2016, defendants filed their notice of appeal regarding the court’s order on the special motion to strike. The filing of the notice of appeal had the effect of staying the action.

 

On June 13, 2016, on the stipulation of the parties, the court ordered this action consolidated with case number 15CV01554, with this case as the lead case.

 

On February 23, 2018, the remittitur from the Court of Appeal was filed, with this court’s order affirmed in full.

 

On January 11, 2019, defendants filed their answer to the amended complaint.

 

On March 4, 2019, the court set trial for November 18, 2019.

 

On July 24, 2019, defendants filed their motion for summary judgment or alternatively for summary adjudication.

 

On September 18, 2019, McCrory filed her amendment to the complaint identifying Joseph J. Lockhart as “Doe 1.”

 

On October 7, 2019, the court granted in part and denied in part the motion for summary judgment or summary adjudication. The court granted the motion as to the fourth and fifth causes of action and otherwise denied the motion.

 

On October 8, 2019, McCrory requested, and the court granted, dismissal of the second and third causes of action.

 

On October 22, 2019, Lockhart a motion to quash the amendment to the complaint. The court heard the motion on November 4. By order after hearing filed on November 6, the court denied the motion to quash and vacated the trial date then set for November 18.

 

On November 18, 2019, the court held a trial confirmation conference and set trial for July 13, 2020.

 

On December 5, 2019, defendants filed this motion to sever trial. Defendants seek an order to separate trial in this action into three phases: (1) all elements of and affirmative defenses to the cause of action for defamation except individual legal responsibility for the republication of the email at issue and damages; (2) individual legal responsibility for the republication of the email and damages; and, (3) before a separate trier of fact (jury or court) from the first two phases, the County’s vicarious liability. Defendants argue that the separation into these phases would promote efficiency by potentially reducing trial by a resolution of the case in defendants’ favor at an earlier phase and would avoid an actual conflict of interest of defendants’ counsel in the event the case reaches the third phase.

 

Plaintiff opposes the motion.

 

Analysis:

 

“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, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).)

 

Defendants argue that separate phases of trial would be more efficient and in the interests of justice. This argument is partly based upon the potential that the court by ruling on legal issues or the jury deciding factual issues would resolve the case in the defendants’ favor without the necessity of presenting all evidence in support of and in defense of the case. The court is well aware of the issues in this case. The court disagrees that this approach would yield significant benefits to the court, the jury, or to the parties. At this point, plaintiff’s action is a single cause of action for defamation. Trial is not expected to be lengthy. Separating out these issues would not likely result in a meaningfully shorter or more efficient trial.

 

Defendants’ argument is also based in part upon the problem that all defendants are represented by the same attorneys from the Office of the County Counsel. In this motion, defendant County argues that County expects to argue at trial that conduct by any employee of County for which defamation damages would be attributable is outside the course and scope of his or her employment and for which County has no liability. This creates a direct conflict between the employee defendants (whose personal indemnity apparently depends upon the conduct being within the course and scope of their employment) and the County, with all of these parties being represented by the same counsel. County seeks to avoid this conflict with their counsel by the requested third phase of trial, which would be before a different trier of fact than the first two phases.

 

While the court acknowledges the potential conflict of interest for County Counsel, the conflict is entirely of counsels’ own making. The potential for this conflict has existed since the beginning of this case and could have been addressed at that time by the hiring of separate counsel for the defendants. The hiring of separate counsel would still be required under defendants’ proposal—although such hiring would be apparently put off until it became necessary (if at all) after the conclusion of the second phase of trial but before the commencement of the third phase. Potential conflicts of counsel of this type are common, particularly in the insurance context where insurance coverage liability depends upon the resolution of the merits of the underlying claim, and have been routinely addressed without the need for bifurcated trials. (See, e.g., Civ. Code, § 2860.) After considering all of the evidence and argument, the court concludes that the interests of justice are not served by the separate trial of County’s vicarious liability. The motion will therefore be denied in its entirety.

 

The court notes that counsel for plaintiff has included the declaration of counsel in the body of the opposition rather than as a separate document. The court strongly discourages this practice. Declarations should be separate attachments, properly electronically bookmarked. (See Cal. Rules of Court, rules 3.1110(f)(4), 3.1113(j).)

 
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