Timothy Delaney vs Viviane Delaney
Case No: 18CV02639
Hearing Date: Wed Sep 04, 2019 9:30

Nature of Proceedings: Bifurcation

TENTATIVE RULING: Defendant’s motion to bifurcate issue for trial is denied.

BACKGROUND:

This is an action for intentional infliction of emotional distress and negligence. Plaintiff Timothy Delaney and defendant Viviane Delaney are the parents of a minor child (“Child”) and are currently in a contentious child custody battle as part of their divorce proceeding. Defendant alleges that Child made certain representations to her that indicated inappropriate sexual contact between plaintiff and Child. On May 23, 2016, defendant videotaped Child describing the contact and thereafter provided the videotape to two marriage and family therapists. The therapists created reports of the alleged sexual abuse and transmitted the reports to Child Welfare Services. Plaintiff was thereafter arrested, but the Santa Barbara District Attorney’s Office, following its investigation of the matter, declined to file charges against him.

On May 25, 2018, plaintiff filed his complaint, alleging causes of action for (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, and (3) general negligence. The court dismissed the second cause of action on February 18, 2019. In the remaining causes of action, plaintiff alleges that he “suffered humiliation, mental anguish, and emotional and physical distress” as a result of the allegations, particularly when the family law court ordered that his visitations with Child be supervised. (Complaint, p. 4, ¶ 5.) Plaintiff alleges that defendant “knew that the alleged acts of sexual abuse of [Child] did not occur and that the allegations that [he] sexually abused [Child] were untrue.” (Complaint, p. 4, ¶ 4.)

Defendant now moves for an order bifurcating the issue of whether plaintiff sexually abused Child. Defendant asserts that if she proves the sexual abuse, it provides an absolute defense to the litigation and there will be no need for the jury to consider plaintiff’s alleged damages. Plaintiff opposes the motion.

ANALYSIS:

The court may bifurcate the trial of issues to avoid confusion, promote judicial economy, or prevent prejudice to any party. Code of Civil Procedure Section 598 provides, in relevant 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 . . . .”

Defendant moves for an order bifurcating trial of the issue of whether plaintiff sexually abused Child. Defendant contends that it is in the interests of justice and economy to bifurcate the issue of whether plaintiff sexually abused his son because it is the threshold issue in the case. Should the jury conclude that plaintiff did abuse Child, the remaining issues of what, if any, false statements defendant made regarding the sexual abuse, and any resulting damages, need not be addressed. Essentially, two-thirds of the trial will be unnecessary if the jury concludes that plaintiff sexually abused his son. Further, if the jury hears evidence of defendant’s alleged false statements and/or plaintiff’s alleged damages before deciding whether plaintiff sexually abused Child, such evidence may tend to mislead and confuse the jury.

Plaintiff opposes bifurcation on the ground that it is not necessary because the issue of damages will take only a fraction of time to present when compared to the issue of defendant’s liability for falsely stating plaintiff is a pedophile. Plaintiff analogizes the case to a libel-per-se claim, wherein certain libelous statements, such as accusing someone of a crime (here, accusing plaintiff of sexually abusing his son, an abhorrent crime) is sufficient proof of general damages without the need for proving special economic damages through the testimony of medical doctors, therapists, and other mental health professionals. In addition, plaintiff asserts that it would be very difficult to separate his emotional distress testimony from his testimony related to his arrest and incarceration after defendant falsely accused him of molesting their son. Plaintiff claims that the jury would receive a very distorted picture of the evidence if he can only testify as to the allegations made by defendant without saying how those allegations affected him emotionally.

Bifurcation will generally be denied where the issue sought to be bifurcated is interrelated with other issues in the case and the evidence is overlapping and duplicative. See, Downey Savings & Loan Association v. Ohio Casualty Insurance Company (1987) 189 Cal.App.3d 1072, 1086 (where issue of insurer’s bad faith was interrelated with the issue of coverage, trial court’s denial of bifurcation motion was not an abuse of discretion). Here, defendant’s motion will be denied. The court does not find that bifurcating the issue of whether plaintiff sexually molested Child would promote the convenience of witnesses, judicial economy, or the ends of justice given the overlapping nature of the issues and evidence in the case.

In her reply, defendant has attached copies of her form interrogatories 8.1 and 8.7 and plaintiff’s responses to the interrogatories. (Hale Dec., ¶¶ 3, 4, Exs. 1, 2.) Defendant offers plaintiff’s responses as proof that resolution of plaintiff’s damages claim, particularly his loss of income claim, will require an extensive review of documents relating to his real estate business. The court, however, declines to consider this evidence. The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538. “This rule is based on the same solid logic applied in the appellate courts, specifically, that ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’” Ibid.