Case Number: BC500970 Hearing Date: June 06, 2014 Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Friday, June 6, 2014
Calendar No.: 9
Case Name: Castaneda v. Perrin Bernard Supowitz, Inc., et al.
Case No.: BC500970
Motion: (1) Motion for Leave to File First Amended Answer
(2) Motion to Bifurcate
Moving Party: Defendant Perrin Bernard Supowitz, Inc. dba Individual Foodservices
Responding Party: Plaintiff Jesus Castaneda
Notice: OK

Tentative Ruling: (1) Motion for Leave to file First Amended Answer is granted.

(2) Motion to bifurcate is granted.

Background –
On 2/13/13, Plaintiff Jesus Castaneda filed this action against Defendants Perrin Bernard Supowitz, Inc. (“PBSI”) dba Individual Food Services and/or Individual Group; Bryan Gallop; and Joe Flores arising out of his employment and termination. Plaintiff asserts causes of action for (1) disability discrimination, (2) age discrimination, (3) national origin discrimination, (4) failure to engage in the interactive process, (5) failure to accommodate, (6) national origin harassment, (7) disability harassment, (8) failure to prevent discrimination and harassment, (9) retaliation, (10) wrongful discharge, (11) intentional infliction of emotional distress, and (12) unfair business practices.

On 11/4/13, the Court denied a motion to compel arbitration filed by PBSI and Flores. On 2/28/14, Plaintiff voluntarily dismissed Gallop with prejudice. On 3/11/14, Plaintiff voluntarily dismissed Flores without prejudice. On 4/10/14, the Court granted PBSI’s motion for summary adjudication as to the 3rd, 6th, 7th, 9th, 11th, and 12th COAs. Trial is set for 7/21/14; FSC for 7/17/14.

Motion for Leave to File First Amended Answer –
PBSI seeks leave to file a First Amended Answer which will add an affirmative defense of “Safety,” alleging that Plaintiff was unable to perform his duties in a manner that would not endanger his health or safety or that of others even with reasonable accommodations.

“In furtherance of justice,” the Court may permit amendment of any pleading on such terms as may be proper. See CCP §§ 473(a), 576. While the Court has discretion to permit or deny amendment of a complaint, denial of leave to amend is rare. Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. “In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.” Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159. The Court may deny leave to amend after long, inexcusable delay, where there is prejudice, such as where new issues would require further discovery. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Absent prejudice, delay alone is not sufficient to deny leave to amend. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.

PBSI submits that the additional affirmative defense arises because of Plaintiff’s recent designation of an expert Dr. Richard Wilson (Poursanae Decl. ¶ 14, Ex. G) whose deposition on 4/21/14 who distinguished between whether Plaintiff could perform the essential functions of his job from whether he should (id. ¶ 15, Ex. H p. 50:22-52:23). PBSI submits that this implicates whether Plaintiff is able to perform his essential duties in a manner that would not endanger his health or that of others even with reasonable accommodations. Gov’t Code § 12940(a)(1); Sterling Transit Co. v. Fair Employment Practice Comm’n (referring to this as the “‘Safety’ Defense”).

In opposition, Plaintiff argues that PBSI has untimely delayed in bringing this motion. The Court disagrees. Although Plaintiff’s physical condition has been at issue in this case from the outset, Plaintiff’s theory concerning his physical condition has changed subtly but significantly. See Poursanae Decl. ¶¶ 12-13, Exs. E-F (conflicting declarations by Dr. Richard I. Fedder); see also Wilson Depo. [Poursanae Decl. Ex. H]. Under these circumstances, the Court finds that PBSI has not unreasonably delayed in bringing this motion.

Plaintiff requests that discovery be reopened; however, Plaintiff fails to explain why this is necessary. Notably, the Safety Defense is only an alternative formulation of the prima facie case required to be shown by Plaintiff.

Therefore, the motion for leave to file First Amended Answer is granted.

Motion to Bifurcate –
PBSI moves to bifurcate Plaintiff’s claim of a prima facie case of discrimination (and the Safety Defense) as to his ability to perform the essential duties with or without a reasonable accommodation (see Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160). The Court notes that it has already bifurcated Plaintiffs’ punitive damages claim concerning PBSI’s financial condition pursuant to Civil Code § 3295(d).

“Whether separate actions shall be consolidated for trial, or whether there shall be a severance and separate trials of issues in a single action, is within the discretion of the trial court.” Mellone v. Lewis (1965) 233 Cal.App.2d 4, 7 (quoting McArther v. Shaffer (1943) 59 Cal.App.2d 724, 727). The objectives of bifurcated trials are to “expedite and simplify the presentation of evidence” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888) and “avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue was resolved against the plaintiff” (Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 524).

As raised by PBSI’s motion for leave to file a First Amended Answer, there is a clear dispute as to whether Plaintiff can establish the prima facie element of disability discrimination. All of Plaintiff’s remaining claims depend on this showing. See Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1003, 1013 (concerning reasonable accommodations for failure to accommodate and failure to engage in the interactive process claims); Trujillo v. North Country Transit Dist. (1998) 63 Cal.App.4th 280, 289 (failure to prevent discrimination), City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158-1161 (wrongful discharge). Therefore, the Court finds good cause to bifurcate this issue: the motion to bifurcate is granted.