Du vs The City of San Diego

Motion Other

Cal. Super. - 4th Dist.March 2, 2018

oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Brian K. Stewart, Esq. (State Bar No. 126412) Christie Bodnar Swiss, Esq. (State Bar No. 245151) Justin D. Witzmann, Esq. (State Bar No. 292019) COLLINS COLLINS MUIR + STEWART LLP 2011 Palomar Airport Road, Suite 207 Carlsbad, CA 92011 (760) 274-2110 - FAX (760) 274-2111 Attorneys for Defendant/Cross-Defendant, HARRIS & ASSOCIATES, INC. ELECTRONICALLY FILED Superior Court of California, County of San Diego 03/01/2019 at 11:34:00 Ad Clerk of the Superior Court By “anessa Bahena,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO - CENTRAL DIVISION SHENG DU, an Individual; YUN-HUA CHIANG; an Individual, Plaintiffs, VS. THE CITY OF SAN DIEGO, a public entity; KTA CONSTRUCTION, a corporation; HARRIS & ASSOCIATES, INC., a corporation; and DOES 1 through 50 inclusive, Defendants. CITY OF SAN DIEGO, Cross-Complainant, VS. KTA CONSTRUCTION, a corporation, HARRIS & ASSOCIATES, INC., a corporation, and DOES 1 through 24, inclusive, Cross-Defendants. 21062 CASE NO. 37-2018-00010639-CU-PO-CTL [Assigned to Judge Ronald L. Styn Dept. C-74] DEFENDANT/CROSS-DEFENDANT HARRIS & ASSOCIATES, INC.’S NOTICE OF MOTION AND MOTION TO TRIFURCATE LIABILITY, DAMAGES, AND PUNITIVE DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JUSTIN WITZMANN Complaint Filed: 3/02/2018 Trial Date: 3/08/2019 1 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on March 8, 2018 at 9:30 a.m. or as soon thereafter as the matter may be heard in Department C-74 of the above-entitled Court, located at 330 West Broadway, San Diego, CA 92101, Defendant/Cross-Defendant Harris and Associates, Inc. (“Harris”) will and hereby does move this Court for an order Trifurcating trial on the issues of (1) liability, (2) damages, and, (3) punitive damages. This Motion is made pursuant to Code of Civil Procedure sections 598 and 1048 and upon the Court’s discretionary power to order trifurcation of trial issues to expedite the litigation and promote the interests of fundamental fairness, as trifurcation of (1) liability, (2) damages, and (3) punitive damages will substantially reduce the total length of trial in the event the jury does not issue a finding of liability against any defendant, will substantially reduce the risk of undue prejudice Harris will face if issues of liability and damages for this catastrophically injured Plaintiff were to be presented to the jury at the same time, and separation of issues may render trial on the issue of damages and punitive damages unnecessary. This Motion is also made pursuant to Civil Code section 3295(d) on grounds that the evidence of the financial condition of Harris should not be admitted unless and until a basis for punitive damages has been found. This Motion is based upon the accompanying Memorandum of Points and Authorities, the accompanying Declaration of Justin D. Witzmann, all papers and documents on file with the Court, and upon such oral and documentary evidence as may be presented at the hearing of this Motion. DATED: March 1, 2018 COLLINS COLLINS MUIR + STEWART LLP / STIN D. WITZZ BRIAN K. STEWART CHRISTIE BODNAR SWISS Attorneys for Defendant/Cross-Defendant, HARRIS & ASSOCIATES, INC. 21062 2 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL EL ioenor obun of Caytomia. County of San Diego 03/01/2019 at 11:34:00 Au By Vanessa Baheno. Deputy Clerk 1 MEMORANDUM OF POINTS AND AUTHORTITIES 2 I. INTRODUCTION: 3 The Court is aware of the emotionally-charged fact pattern in this case and the very real 4 likelihood that a jury will not be able to ignore Plaintiff’s catastrophic injuries and focus instead on 5 the fundamental question of whether Defendant/Cross-Defendant Harris & Associates, Inc. 6 (“Harris”), KTA Construction, Inc. (“KTA”), and City of San Diego (the “City”) are liable for 7 causing his life-altering injuries. For this reason, and the reasons set forth in greater detail below, 8 Harris requests an Order of trifurcation separating this trial into three stages: (1) liability; (2) 9 damages; and, (3) if the requisite showing can even be made, punitive damages. 10 Plaintiff Sheng Du suffered catastrophic injuries, including quadriplegia, when he rode his 11 || bicycle into a trench on an active construction site. Plaintiffs plan to call upwards of four dozen 12 || treating physicians, medical experts, friends and family members in support of their $100 million+ 13 || damage claims for past medical care, future care, past and future lost income, past and future pain 14 || and suffering, and loss of consortium. These witnesses support Plaintiffs’ monetary damage claims 15 || only and do not concern issues of liability whatsoever. If Plaintiffs were permitted to call each of 16 || these witnesses during the liability phase of trial it would severely prejudice Harris because it 17 || would unnecessarily pre-dispose the jurors into finding Harris and/or any of the other defendants 18 || liable for negligence based solely on the catastrophic nature of Plaintiff Du’s injuries. It would also 19 || significantly reduce the chances that a jury could ever find Plaintiff Du contributorily negligent for 20 || causing his own injuries. 21 It is highly unlikely that the jury will be able to separate these considerations- whether 22 || Harris breached the standard of care and/or Plaintiff caused his own injuries-from the actual harm 23 || suffered by Plaintiff, which is catastrophic and lifelong. These facts are sufficiently prejudicial to 24 ||require a discrete trial of liability from that of damages. Trifurcation will mitigate any undue 25 || prejudice caused to Harris, permit a fair and expedient trial on Plaintiffs’ theories and Defendants’ 26 ||affirmative defenses, and shorten the length of trial by avoiding the litany of witnesses and 27 || evidence that are anticipated to be involved in the damages portions of trial, should liability not be 28 || found against Harris, thereby preserving party and judicial resources. Gams, HARRIS & ASSOCIATES, INC.’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Additionally, in actions where punitive damages are claimed, bifurcation of punitive damage liability and any amount of punitive damages to be awarded is mandatory upon timely application of any defendant. (Civil Code § 3295(d).) Based on the foregoing, Harris requests the Court grant this Motion to Trifurcate. II. THE COURT HAS THE POWER TO TRIFURCATE LIABILITY, DAMAGES, AND PUNITIVE DAMAGES The Court has independent and discretionary power to regulate the order of proof during trial pursuant to Evidence Code Section 320. Additionally, Code of Civil Procedure section 598 permits the Court to order the issues to be tried: “[tlhe Court may, when the convenience of the witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, ... make an order... 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.” Similarly, Code of Civil Procedure section 1048 provides that, “[t]he 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 separate issue or of any number of causes of action or issues.” As with severance generally, such order may be made “when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted” to take precedence of issues. Code Civ. Proc. § 598. This type of bifurcation is generally associated, but not limited to, severance of trials on liability from trial on damages. The objective of bifurcation, of course, is to avoid undue prejudice, to avoid wasting the Court’s time in a case where Plaintiffs lose on the liability, to promote potential settlement, and to afford a more logical presentation of the evidence, thus simplifying the issues for the jury. See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888. This Court has the inherent power to regulate the order of trial, and therefore, can entertain a motion to bifurcate at any time - even during the trial itself McLellan v. McLellan (1972) 23 Cal. App. 3d 343, 353. The trial court may sua sponte order bifurcation at any time, including after trial has commenced. Code Civ. Proc. § 598; Buran Equipment Co. v. H&C Investment Co. (1983) 142 Cal. App. 3d 338. VA 21062 4 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 III. TRIFURCATION OF LIABILITY AND DAMAGES WOULD PROMOTE THE ENDS OF JUSTICE AND AVOID CONFUSION AND PREJUDICE Separation of liability and damages phases at trial is common because evidence of damages often poses a threat to fairness to a defendant. Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737. Trifurcating this trial serves the objective of avoiding undue prejudice to Harris by permitting the jury to decide the predicate issues before moving on to the presentation of more emotionally taxing evidence. Omaha Indem. Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1270-71. Harris requests trifurcation to first focus the jury on the technical aspects of the case, including, but not limited to: the scope of the Defendants’ respective duties of care, whether such duties were satisfied, applicable traffic engineering codes and/or authorities, the nuances of civil engineering, traffic engineering, design and construction without the undue emotional influence of a highly sympathetic and undeniably injured Plaintiff. In order to find liability, and in consideration of the various discrete applicable codes and authorities regarding Defendants’ duties of care, the jury will have to engage in a fact-intensive inquiry to determine whether Plaintiffs have proven that: 1) Harris breached the applicable standard of care; 2) Harris’s alleged breach was a substantial factor in causing Plaintiffs’ injuries; 3) KTA breached the applicable standard of care; 4) KTA'’s alleged breach was a substantial factor in causing Plaintiffs’ injuries 5) The City is liable for dangerous condition of public property; 6) That the dangerous condition was a substantial factor in causing Plaintiffs’ harm; 7) Plaintiff Du was not negligent; and 8) Plaintiff Du’s negligence was not the cause of his life changing injuries. (See e.g. CACI §§ 600, 1100.) Harris is not disputing Plaintiff was injured; the issue is simply whether Harris is responsible for the injury sustained by Plaintiff. Thus, in order for the jury to focus on the factors creating liability, rather than making an inference of liability based on the injuries sustained, the Court should trifurcate the trial. 21062 5 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 The potential for an “outcome determinative” ruling on liability is greatly increased as a result of the lifelong physical and psychological injuries suffered by Plaintiff. A jury could easily decide out of a well-meaning but inappropriate desire to compensate Plaintiff for his injuries, rather than on the grounds of impartial legal standards and relevant facts. Decl. Witzmann, q 2. This is particularly true here where the case involves a quadriplegic plaintiff who has lost everything, and that alone is likely to inflame the passion of jurors. A fair trial and the ends of justice will be served by permitting the parties to first try liability before proceeding to the presentation of evidence on the Plaintiff’s catastrophic physical and emotional injuries. Decl. Witzmann, q 2. Harris would be unduly prejudiced by a jury verdict rendered because of emotions and sympathy rather than grounded in the fact(s) giving rise to liability. There are statutory issues at play, and those issues will be subsumed by the raw emotion expressed in the presentation of evidence and testimony on Plaintiff’s catastrophic injuries and the juxtaposition of his previously active lifestyle as compared to his now lifelong bed-ridden condition and the resulting mental anguish. This evidence of damages suffered is wholly unnecessary to the determination of whether Harris is liable for those injuries. The ends of justice will clearly be promoted as contemplated by the Judicial Council and Legislature by determination of the negligence issue at a trial before evidence on the issue of damages is introduced. See Trickey, supra, 252 Cal.App.2d at 654. The presentation of evidence regarding the severity of the injuries suffered by Plaintiff and the lasting impact of such injuries will likely result in the jury determining that finding Harris liable is the only avenue of recovery for these extremely sympathetic Plaintiffs. Because the Court is given the statutory authority to mitigate the risk of this scenario by ordering the presentation of the issues, the Court should make such an order in the interests of fairness and justice. IV. TRIFURFACTION WILL BENEFIT THE PARTIES AND THE COURT A stated objective of Code of Civil Procedure section 598 is the “avoidance of the waste of time and money caused by the unnecessary trial of damages questions in cases where the liability issue is resolved against the plaintiff.” Trickey v. Superior Court (1967) 252 Cal.App.2d 650. By considering the issue of liability first, the parties may avoid the need to litigate the damages alleged by Plaintiffs, which promotes the preservation of party and judicial resources and has the potential 21062 6 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 to shorten trial. Horton v. Jones (1972) 26 Cal.App.3d 952, 955. If Harris does not prevail on the liability trial, the bifurcation will not “cause any delay in trial” because it “is merely a change in the order of trial.” Cnty. of Kern v. Superior Court (1978) 82 Cal.App.3d 396, 400. If Harris is liable, the same amount of trial time will be consumed as if no bifurcation ever occurred. However, in the event a jury determines that Harris did not breach any duty, it would be unnecessary to present substantial evidence and argument on the issue of damages, thereby reducing the trial time to that which was only necessary-determining liability. See Trickey, supra, 252 Cal.App.2d at 653 (the objective of section 598 is “avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability is resolved against the plaintiff”). A. Adjudication of Damages Concurrently with Liability will Significantly Lengthen the Trial and Waste This Court’s Valuable Time and Resources Adjudication of damages will involve a significant volume of evidence, including the testimony of treating physicians and designated medical expert witnesses who will testify as to Plaintiffs injuries, surgeries, pain and suffering, and the cost of future care, including extensive life care plans. Decl. Witzmann, q 3-4. Harris estimates over 4 dozen witnesses will be called to testify exclusively regarding Plaintiff's damages. Decl. Witzmann, | 3-4. Harris estimates the damages portion of the trial alone will last 10-15 days, if not more. Decl. Witzmann, q 3-4. Adjudication of liability alone, however, will take significantly less time and require fewer witnesses. Harris estimates that it will take approximately 10 days to adjudicate liability and require 3 dozen or fewer witnesses. Decl. Witzmann, { 3-4. Without an order to bifurcate, the court risks expending the additional 10-15 days (or more) for Plaintiff’s damage adjudication, when there may not be any liability. Failing to bifurcate would not be a prudent use of scarce judicial resources. Moreover, much of the anticipated testimony on the issue of damages does not overlap with the evidence that will be presented on the liability issues. Decl. Witzmann, | 3-4. Bifurcation would also “afford a more logical presentation of the evidence, thus simplifying the issues for the jury.” Foreman & Clark Corp., supra, 3 Cal.3d at 888. If Harris is successful in proving that it is not liable for Plaintiff’s injuries, the damages portion of the trial will be avoided entirely. Conversely, it does not cost the Court or the parties any more time or resources if Harris is found 21062 id HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 liable; the matter will simply proceed to the damages portion of trial and then to the punitive damages portion of trial, assuming the requisite showing was made by Plaintiffs. Bifurcation will save at least two weeks of trial time if there is not a liability verdict, and yet add nothing to the overall trial estimate in the event of a finding of liability in phase one. B. The Court Should Bifurcate the Determination of Punitive Damages The determination of punitive damages against Harris-if any-should also be bifurcated from the other issues in this trial. Forcing Harris to litigate its financial condition before any determination that punitive damages are recoverable-much less any determination of liability- would be unduly prejudicial. Harris’ financial condition is not relevant to the merits of Plaintiff’s claims in this matter. In actions where punitive damages are claimed, bifurcation of punitive damage liability and any amount of punitive damages to be awarded is mandatory upon timely application of any defendant. Civil Code § 3295(d). When such an application is made, the court must preclude the admission of evidence of that defendant’s profits or financial condition unless and until the trier of fact returns a verdict for plaintiff awarding actual damages and finds by clear and convincing evidence that a defendant is guilty of malice, oppression, or fraud. See Medo v. Superior Court (1988) 205 Cal. App. 3d 64, 67-68. Evidence of the Harris’ financial position unfairly creates the risk that the jury could be emotionally swayed to find the Harris liable simply based on their supposed ability to pay a damages award. Thus, bifurcation of punitive damages is necessary to protect Harris’ right to a fair trial, and would not result in any prejudice to Plaintiff. V. CONCLUSION To allow the jury to focus on whether Harris is liable for Plaintiff’s injuries in discharging its duties as a construction manager before determining damages (which would include graphic and emotional testimony from the percipient family members and friends as well as Plaintiff’s treating physicians and experts), would serve the interests of justice and avoid the undue consumption of time and the risk of undue prejudice to Harris. A trial on the issue of liability merits severance and/or bifurcation pursuant to Code of Civil Procedure section 597 and 1048. Bifurcation of liability and damages is required to prevent Harris from suffering prejudice if evidence of damages 21062 8 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 is introduced during the liability phase of trial. It is also needed to more efficiently utilize scarce judicial and party resources. Additionally, bifurcation of punitive damages is necessary and required pursuant to Civil Code § 3295(d). For the reasons set forth above, Harris respectfully requests that this Court issue an order of Trifurcation with liability to be tried first, followed by damages, followed by punitive damages, as well as an order to ensure the integrity of trial preventing any reference of discussion of damages before that phase of trial. DATED: March 1, 2019 COLLINS COLLINS MUIR + STEWART LLP 4 STIN D. WITZZ ANN BRIAN K. STEWART CHRISTIE BODNAR SWISS Attorneys for Defendant/Cross-Defendant, HARRIS & ASSOCIATES, INC. 21062 9 HARRIS & ASSOCIATES, INC.”S MOTION TO TRIFURCATE TRIAL menor Cour of Caifomic, County of San Diego 03/01/2019 at 11:34:00 AM Clerk of the Superior Court 1 DECLARATION OF JUSTIN D. WITZMANN BY Vanessa Bahena, Deputy Clerk 2 ||1, Justin D. Witzmann, declare as follows: 3 I. I am an attorney admitted to practice in the courts of the State of California. I am an 4 associate with the law firm of Collins Collins Muir + Stewart LLP, which represents Harris & 5 Associates, Inc. (“Harris”) in this matter. I have personal knowledge of each fact stated in this 6 Declaration, except as to those matters that I state upon information and belief, and as to those 7 matters I believe them to be true. If called upon to testify regarding the matters herein, I could and 8 || would do so competently. 9 2. During the course of my involvement with this matter, as counsel for Harris, I have 10 ||reviewed extensive documentation regarding Plaintiffs’ catastrophic injuries and taken and/or 11 || attended dozens of depositions, including, but not limited to, those of Plaintiff Sheng Du himself, 12 ||lhis wife, family members, friends, as well as his treating physicians and mental health 13 || professionals. As a result of my extensive involvement in the aforementioned discovery, it is my 14 || belief that the potential for an “outcome determinative” ruling on liability to Harris is greatly 15 ||increased as a result of the physical and psychological injuries suffered by Plaintiff. A fair trial and 16 || the ends of justice will be served by permitting the parties to first try liability before proceeding to 17 || the presentation of evidence on the Plaintiff’s physical and emotional injuries. 18 2 I anticipate that if the question of liability is trifurcated from damages and punitive 19 || damages, there will be little duplication of evidence in each phase. I estimate the liability portion of 20 || the trifurcated trial will be approximately 10 days, while the entire trial, including damages, will 21 ||last 20-25 days or more. Early adjudication of liability could substantially truncate the overall 22 || length of trial, thus promoting judicial economy. A jury’s determination that Harris is not liable for 23 || Plaintiffs’ damages would nullify the need for trial on Plaintiffs’ damages, which are extensive 24 || based on the nature of this lawsuit. 25 4. The damages portion of this trial will involve a significant volume of evidence, 26 ||including the testimony of friends and family members, treating physicians, economists and 27 || medical expert witnesses who will testify as to Plaintiff’s injuries, loss of income and the cost of 28 || future care. At the time of the filing of this Motion, and based on the current proposed witness list Gams, HARRIS & ASSOCIATES, INC.’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Harris estimates approximately 4-5 dozen witnesses to testify exclusively regarding Plaintiffs’ damages, with around 3 dozen called to testify concerning liability. Without an order to trifurcate, the Court risks requiring a significant expenditure of time and money for no reason if the jury finds there is no liability. Even if Harris does not prevail at the liability stage of trial, a trifurcated trial would increase the chance of settlement and encourage judicial economy and efficiency. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 1, 2019 at Carlsbad, California. /STIN D. WITZKIANN 21062 11 HARRIS & ASSOCIATES, INC.”S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo x 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 ELECTRONICALLY FILED Superior Court of Califomia, County of San Diego 03/01/2019 at 11:34:00 A PROOF OF SERVICE Clerk of the Superior Court (CCP §§ 1013(a) and 2015.5; FRCP 5) By ‘vanessa Bahena,Deputy Clerk State of California, ) ) ss. County of San Diego. ) I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is 2011 Palomar Airport Rd., Suite 207, Carlsbad, California 92011. On this date, I served the foregoing document described as DEFENDANT/CROSS-DEFENDANT HARRIS & ASSOCIATES, INC.S NOTICE OF MOTION AND MOTION TO TRIFURCATE LIABILITY, DAMAGES, AND PUNITIVE DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JUSTIN WITZMANN on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST [J] (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Carlsbad, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Carlsbad, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [1 (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Carlsbad, California. x BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: March 1, 2019 (Date) at 10:50 A.M. (Time) [1] FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [1 BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (760) 274-2111 indicated all pages were transmitted. [1 BY PERSONAL SERVICE) - I caused such envelopes) to be delivered by hand to the office(s) of the addressee(s). Executed on March 1, 2019 at Carlsbad, California. [XI (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [1 (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. az Co BRIAN CAHILL bcahill @ccmslaw.com 21062 12 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL oe R N N n RA W N N N N N N N N N N e e m m em p m em em N O S nt RA W N = O R d NT R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Sheng Du v. The City of San Diego San Diego Superior Court Case Number: 37-2018-00010639-CU-PO-CTL OUR FILE NO.: 21062 SERVICE LIST Brian J. Panish, Esq. Deborah S. Chang, Esq. Thomas A. Schultz, Esq. PANISH SHEA & BOYLE LLP 11111 Santa Monica Blvd., Suite 700 Los Angeles, CA 90025 (310) 477-1700 - Fax: (310) 477-1699 panish @psblaw.com chang @psblaw.com schultz@psblaw.com ATTORNEYS FOR PLAINTIFFS, SHENG DU AND YUN- HUA CHIANG Michael C. Rogers Robin H. Smith BALESTRERI POTOCKI & HOLMES 401 “B” Street, Suitge 14700 San Diego, CA 92101 (619) 686-1930 - Fax: 619/497-1052 ATTORNEYS FOR THE CITY OF SAN DIEGO mrogers @bph-law.com rsmith @bph-law.com 21062 Richard L. Duquette, Esq. LAW FIRM OF R.L. DUQUETTE P.O. Box 5119 Oceanside, CA 92052-5119 (760) 730-0500 - Fax: (760) 730-0120 RLDugquette@911law.com ATTORNEYS FOR PLAINTIFFS, SHENG DU AND YUN- HUA CHIANG Dana Alden Fox, Esq. Craig T. Mann, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 701 B Street, Suite 190 San Diego, CA 92101 (619) 233-1006 - Fax: (619) 233-8627 Dana.Fox @lewisbrisbois.com Craig.Mann @lewisbrisbois.com ATTORNEYS FOR DEFENDANT KTA CONSTRUCTION 13 HARRIS & ASSOCIATES, INC.”’S MOTION TO TRIFURCATE TRIAL