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MILES B, COOPER, SBN209085
EMISON HULLVERSON LLP
1005 Sansome Street, Suite 330 ELECTRONICALLY
San Francisco, California 94111 FILED
Telephone. 415-434-2111 Superior Court of California,
Facsimile; 413-434-2112 County of San Francisco
miles@emisonhullverson.com SEP 02 2014
Clerk of the Court
BY: WILLIAM TRUPEK
ATTORNEYS FOR PLAINTIFFS Deputy Clerk
NATHAN MARSHALL and
ALEX MARSHALL
SUPERIOR COURT OF THE
ATE OF CALIFORNIA
IN AND POR THE COUNTY OF SAN FRANCISCO
NATHAN MARSHALL and ALEX. CA
MARSHALL, individually and as successors in
interest to decedents DENNIS T. MARSHALL PLAINTIFFS THE MARSHALLY
ENO, CGC-12-521356
and KAREN MARSHALL, OPPOSITION TO DEFENDANT SELBY
& HUDSON CORPORATION'S
Plaintiffs, MOTION TO BIFURCATE
v. Reservation No.: 082014-14
Date: September 5, 2014
DESOTO CAB COMPANY, I PAEGH Time: 9:30 am.
BEHBAHANI, SELBY AND HUDSON Dept: 302
CORPORATION, and DOES 1-20, inclusive, Judge: Hon. Ernest L. Goldsmith
Defendants, Case Filed: June 5, 2012
‘Trial Date: October 6, 2014
1, Introduction
Defendant Selby and Hudson Corperation’s bifurcation motion goes far beyond a typical
bifurcation attempt. It asks the court to convert a wrongful death jury trial to a court trial, followed
by a jury trial.on damages.
‘The parties have stipulated to a single assignment judge. The stipulated motion on this is set
for September 16, 2014 at 9:30 aim. before the Presiding Judge.
The Marshalls’ acknowledge that defendant Selby wants to make sute its bifurcation request
is Umely and thus made 30 days before tral. If this were a ditect assignment coutt, it would be
-1-
PLAINTIFFS THE MARSHALLS* OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S
MOTION TO BIFURCATE,appropriate. But a mation this significant — that dictates the flow of the trial — should be determined
by the judge who will hear the case. The Marshatls therefore request that the court deny defendant Selby’s motion
without prejudice and that defendant Selby be allowed to renew its bifitroation request to the trial judge.
Waiting to have the trial court make the determination will not prejudice the parties. The
same discovery, the same expert analysis and depositions, and the same marshalling of evidence will
be necessary whether the matter is tried as a regular case ot bifurcated.
Should, however, this court wish to rule on whether defendant can tutn this case into a court
trial and bifureate it, the court should consider the following:
Bifurcation is defendant’s effort, dressed up with the phrase judicial economy, to control the
The Old
narrative and remove the parts the defendant does not like. In a defense world, Hemingway's
Man and the Sea would be about a man ina boat. You could read about the fish in the sequel.
Casublanca? A movie about a bat, Its time ~ World War I~ and place ~ occupied Morocco — are not
televant. Both narrative edits would result in efficiency from a defense perspective.
Tn this situation, the court should consider the following:
* California courts empanel juries to hear cases like this. Tosaselli ». Transamerica Ins, Co. (199A)
25 Cal. App. 4th 1269. Inst. of Veterinary Pathology v. Caf. Heath Laboratories, Inc. (1981) 116
Cal. App. 34 111.
* The actions of defendants DeSoto and Selby and resultant undercapitalization are
intertwined with the incident. This includes the odometer rollbacks occasioned by the lack of
funds for repairs and the cab catching on fire.
* The damages portion itself ~ two young men’s loss of their parents ~ will take approximately
ewo additional court days of testimony. This includes the young men, plaintiff's psychologist,
a few family friends to testify about the family relationship, and defendant’s psychiatrist. The
minimal time and effort required to present the damages portion does not warrant the
additional time required to bifuscate the trial with additional pury instructions, additional
closing arguments, and additional deliberations.
* This is a death case - deaths that occurred in part due to defendants’ undercapitalization.
While defendant Selby may not like this, it is what the case is about. Defendants Selby’s and
2.
PLAINTIFPS THE MARSHALLS® OPPOSITION TO DEFENDANT SELBY & HUDSGN CORPORATION'S
MOTION TO BIFORCATENew DeSoto’s efforts to avoid liability are a part of that discussion. It is not a business
transaction case.
* The idea that a finding that defendant Selby is the alter ego of DeSoto will result in
settlement —-and thus tequire no farther court assets ~ is speculative at best. The Marshalls
anticipate an appeal should this matter not turn out well for defendant Selby.
‘The question presented to this court: Where California courts have held that the matter is
approptiate for a jury’s determination, where bifurcation will not result in any judicial economy, and
where bifurcation will not sanitize the trial in the manner the defendant seeks, should the court allow
defendant Selby to tum this into 4 court trial followed by a second trial on damages? The court
should not, Defendant Selby’s motion should be denied.
TI. Statement of facts
Tn the mid 20008, DeSoro Cab Coopetative was in trouble —a cooperative with management
problems and increasing liabilities. Coerupt practices resulted in an embarrassingly high accident rate.
Drivers raced each other to pet to customers, crashing into each other. Dispatchers fed choice calls
to fiends. DeSoto retained problem drivers, despite their accidents, because of favoritism. As a
result, the company faced 94 lawsuits from 2000-2008 in San Francisco ~- and this did not include
pre-filing settlements and crashes in surrounding counties. DeSoto carried only a $1 million
insurance policy. And the policy’s renewal was in question.
Duting the good years, DeSoto managed to secute one major asset, a large property in San
Francisco’s Bayview district at the intersection of Selby and Hudson streets, where DeSoto operated.
Leadership saw the handwriting on the wall. Their asset, their nest egg, was subject to the kabilities
and the lawsuits of a reckless and failing company.
DeSoto’s leadership did something about it. In 2008, they created a shell company, Selby and
Hudson. its sole purpose — own the property, protect the DeSoto shareholders’ inheritance, and
collect rent from the cab business. The shell company, Selby, retained the valuables. The Habilities
were transferred to a new company, New DeSoto. New DeSoto handled the risky business — running
the cabs. The companies’ leadership ran both companies for another two years.
3.
PLAINTIFFS THE MARSHALLS” OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S
MOTION TO BIFURCATE.2
Not surpaisingly, the economic problems continued, wreaking havoc on New DeSoto.
Leadership constantly told the Fleet Manager and his mechanics there was no money ~ for repairs,
overtime, of raises. At the same time, the mechanics were directed to keep every cab on the road to
make money and squeeze every last mille out of the rolling stock. They scavenged parts from old cabs
and wrecked cabs. This included swapping out odometer-control computers from lower-mileage
wrecked cabs and replacing the odometer-control computers on higher mileage, still operating, cabs.
The result ~ odometer rollbacks that squeezed additional — and illegal ~ mileage from cabs before the
swapped odometers hit the SFMTA 350,000-mile limit at which a cab could no longer legally
operate,
tn February 2009, DeSoto performed this illegal rollback procedure on DeSoto cab 2111,
subtracting nearly 50,000 miles fram the cab’s odometer.
‘Then, on June 14, 2010, a DeSoto driver, navigating a burning and illegally operating DeSoto
cab 2111, crashed. The crash killed Karen and Dennis Marshall, parents to Nathan and Alex
Magshall. Leadership, who were the same people, was concerned about the crash. But not in the way
one would expect. Not about the Marshalls’ deaths. Leadership’s concern was the asset, the property.
Leadership then found an idealistic raxi consultant, Hansu Kim, and sold him New DeSoto,
wih all its liabilities. ‘They kept the Selby assets for themselves. The leadership then retreated into
their shell, denying any involvement in creating the circumstances that led to Karen and Dennis
Marshall’s death.
Til. Legai Analysis
‘The single-enterprise doctrine is the legal concept applicable to this situation. A variant of the
alter ego doctrine, it says that if a business that splits itself in two but is in essence the same business,
maintains the same address, maintains the same leadership, and undercapitalizes the company thar
engages in the siskier behavior, the shell company is equally able. This prevents unfair results to
those adversely affected by the business’s actions. People like the Marshall family.
As part of this analysis, the law lists 20 alter ego factors for a trier of fact to. evaluate.
Assutated Vendors, Ine». Oakland Meat Co. (1962) 210 Cal. App.2d 825, When a question of fact exists
4.
PLAINTIFFS THE MARSHALLS* OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S
MOTION TO BIFURCATE,13
14
15
20
26
as to these factors, the alter ego question is the trier of fact’s domain. Triets of fact are typically
juries.
A, Case law demonstrates that juties ate empanelled in alter ego cases
Contrary to defendant’s assertions, California courts do empanel juries for alter ego cases.
Tomaselli v. Transamerica Ins, Ca, (1994) 25 Cal. App. 4th 1269 is one example. Last. of Veterinary
Pathology v, Calif, Heath Luborateries, Ine. (1981) 116 Cal. App. 3d 111 is another. Interestingly,
defendant Selby chose to cite these cases in support of its motion for summary judgment but
omitted them from its bifurcation motion.
Defendant’s inference that the court bifurcated the trial in Had City Solid Waste Services, Inc. v.
Chpy of Campion (2010) 186 Cal. App. 4th 1114 is incorrect. ‘The court granted summary adjudication
and determined that the entities ne the altet egos of each other, then ler the matter proceed to a jury
trial.
Finally, defendant cites Dow Jones Ca. v, Avene! (1984) 151 Cal. App. 3d 144, 147-48 for the
principal that the Marshalls do not have a sight to jury trial for their wrongful death action against
defendant Selby. Dow Jones is distinguishable. It is a contract action where the court granted plaintiff
Dow Jones’ motion for summary adjudication and then later granted Dow Jones’ motion to amend
the judgment to include defendant Gerald Avenel and Avenal Imposts. Defendants Avenal appealed
on the basis that they were entitled to a jury trial on this issue. ‘The appellate court found defendants
Avenal were not.
But as the Tomaselli, supra, and Inst. of Veterinary Pathology, supra, courts demonstrate, in mixed
cases of equity and damage, juties are empanelled. Tellingly, defendant Selby does not cite a single
case holding that single enterptise cases must be court trials as a matter of law.
B. Assuming the Marshalls prevail on alter ego, as is anticipated given the facts
presented at summary judgment, bifurcation will lengthen the trial and not result in
any judicial economy
The actions of defendants DeSoto and Selby and resultant undercapitalization are
intertwined with the incident. This includes the odometer rollbacks occasioned by the lack of funds
for repairs and the cab catching on fire. Defendant Selby cites the court’s ruling denying defendant
Selby’s motion for summary judgment as a basis for the idea that the mechanical issues — the
5.
PLAINTIFFS THE MARSHALLS” OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S
MOTION TO BIFURCATE.6
aa
odometer rollbacks — were not a factor in undercapitalization. The court found many factors gave
tise to triable issues of material fact. [t certainly did not hold in its ruling that the mechanical issues
were not admissible or not relevant to the trial.
‘The damages portion itself — two young men’s loss of their parents — will take approximately
two additional court days of testimony. This includes the young men, plaintiff's psychologist, a few
family friends to testify about the family relationship, and defendant's psychiatrist. The minimal time
and effort required to present the damages portion does not warrant the additional time required to
bifurcate the trial with additional jury instructions, additional closing arguments, and additional
deliberations. This is a death case — deaths that occurted in part due to defendants’
undercapitalization. While defendant Selby may not like this, it is what the case is about. Defendants
Selby’s and New DeSoto’s efforts to avoid liability are a part of that discussion. It is not a business
transaction case.
Finally, the idea that a finding that defendant Selby is the alter ego of DeSoto will result in
settlement ~ and thus require no further court assets — is speculative at best. The Marshalls anticipate
an appeal should this matter not turn out well for defendant Selby. ‘This means the damage phase
would need to be completed and the matter fully briefed for the appellate court.
IV. Conclusion
Defendant Selby’s motion to turn this into a court trial and bifurcate damages should be
determined by the trial judge hearing the full case rather than the Law and Motion department. If the
motion is determined by this coust, it should be denied. California courts allow for jury trials in
precisely these situations, thus the Marshalls’ jury trial should not be taken away. The trial length and
complexity will be acither diminished nor sanitized through bifurcation. Lf anything, it will lengthen,
the time needed with further instruction, further closing argument, and further deliberations.
‘The Marshalls therefore request that defendant Selby’s motion he denied.
6.
PLAINTIFFS THE MARSHALLS” OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S
MOTION TO BIFURCATE.27
28
DATED: September 2, 2014
Respectfully submitted,
EMISON HULLVERSON LLP
Cfo
AO
Miles B. Cooper
Attorneys for Plainuffs
7.
PLAINTIFFS THE MARSHALLS* OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S
MOTION TO BIFURCATE,26
PROOF OF SERVICE
Lam employed in the
4@ party to this action. My
Francisco, CA 94111,
and County of San Francisco, State of California. I am over 18 years of age and not
usiness address is Emison Hullverson LLP, 1005 Sansome Street, Suite 330, San
On the date below I served a true copy of the following document(s):
PLAINTIFFS THE MARSHALLS’ OPPOSITION TO DEFENDANT SELBY & HUDSON
CORPORATION'S MOTION ‘TO BIFURCATE
on the interested parties to said action by the following means:
L_] (BY MAIL) By placing a true copy of the above, enclosed its a sealed envelope with appropriate
~~ postage, for collection and mailing following our ordinary business practices. Tam seadily familiar with
this business's practice for collecting and processing correspondence for inailing. On the same day
that the correspondence is placed for collection and mailing, it i deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid,
Py (BY OVERNIGHT DELIVERY) By placing a true copy of the above, enclosed in a sealed
envelope for guaranteed overnight delivery.
[_] (BY FACSIMILE TRANSMISSION) By transmitang 2 true copy of the above by facsimile
Bansmission from facsimile sumber (415) 434-2112 to the attorney(s) ot party(ies) shown below.
(| (BY HAND DELIVERY) By personal delivery of tre copy of the above to the attorneys oF
parties shown below
[X] GY E-MAIL or ELECTRONIC TRANSMISSION) Based on 4 coust order of an agceement of
the parties to accept service by e-mail or electtonic transmission, I caused the documents to be sent to
the persons at the e-mail addresses listed below. T did not receive, within a reasonable period of time,
after the transmission, any electronic message or other indication that the transmission was
unsuccessful,
David M. King,
dkin,
evine & Segal Cart McLellan Ingersoll Thompson & Horn
1388 Sutter Street, Suite 600 216 Park Road
San Francisco, CA 94409 Burlingame, CA 94010
Fax No, (415) 474.0302 Fax No, (650) 342-7685
“Aitorneys for Defendant DeSoto Cab Company, Ine. Attorneys for Defendant Selby & Hudson Corporation
and Vaegh Bebbabani
ideclare under penalty of perjury under the law of the State of California that the foregoing is truc and
correct.
DATED: September 2, 2014 Chaat, Na fe Ue—
Christy Marty-Holdi
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MILES B, COOPER, SBN209085 EMISON HULLVERSON LLP 1005 Sansome Street, Suite 330 ELECTRONICALLY San Francisco, California 94111 FILED Telephone. 415-434-2111 Superior Court of California, Facsimile; 413-434-2112 County of San Francisco miles@emisonhullverson.com SEP 02 2014 Clerk of the Court BY: WILLIAM TRUPEK ATTORNEYS FOR PLAINTIFFS Deputy Clerk NATHAN MARSHALL and ALEX MARSHALL SUPERIOR COURT OF THE ATE OF CALIFORNIA IN AND POR THE COUNTY OF SAN FRANCISCO NATHAN MARSHALL and ALEX. CA MARSHALL, individually and as successors in interest to decedents DENNIS T. MARSHALL PLAINTIFFS THE MARSHALLY ENO, CGC-12-521356 and KAREN MARSHALL, OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S Plaintiffs, MOTION TO BIFURCATE v. Reservation No.: 082014-14 Date: September 5, 2014 DESOTO CAB COMPANY, I PAEGH Time: 9:30 am. BEHBAHANI, SELBY AND HUDSON Dept: 302 CORPORATION, and DOES 1-20, inclusive, Judge: Hon. Ernest L. Goldsmith Defendants, Case Filed: June 5, 2012 ‘Trial Date: October 6, 2014 1, Introduction Defendant Selby and Hudson Corperation’s bifurcation motion goes far beyond a typical bifurcation attempt. It asks the court to convert a wrongful death jury trial to a court trial, followed by a jury trial.on damages. ‘The parties have stipulated to a single assignment judge. The stipulated motion on this is set for September 16, 2014 at 9:30 aim. before the Presiding Judge. The Marshalls’ acknowledge that defendant Selby wants to make sute its bifurcation request is Umely and thus made 30 days before tral. If this were a ditect assignment coutt, it would be -1- PLAINTIFFS THE MARSHALLS* OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION TO BIFURCATE,appropriate. But a mation this significant — that dictates the flow of the trial — should be determined by the judge who will hear the case. The Marshatls therefore request that the court deny defendant Selby’s motion without prejudice and that defendant Selby be allowed to renew its bifitroation request to the trial judge. Waiting to have the trial court make the determination will not prejudice the parties. The same discovery, the same expert analysis and depositions, and the same marshalling of evidence will be necessary whether the matter is tried as a regular case ot bifurcated. Should, however, this court wish to rule on whether defendant can tutn this case into a court trial and bifureate it, the court should consider the following: Bifurcation is defendant’s effort, dressed up with the phrase judicial economy, to control the The Old narrative and remove the parts the defendant does not like. In a defense world, Hemingway's Man and the Sea would be about a man ina boat. You could read about the fish in the sequel. Casublanca? A movie about a bat, Its time ~ World War I~ and place ~ occupied Morocco — are not televant. Both narrative edits would result in efficiency from a defense perspective. Tn this situation, the court should consider the following: * California courts empanel juries to hear cases like this. Tosaselli ». Transamerica Ins, Co. (199A) 25 Cal. App. 4th 1269. Inst. of Veterinary Pathology v. Caf. Heath Laboratories, Inc. (1981) 116 Cal. App. 34 111. * The actions of defendants DeSoto and Selby and resultant undercapitalization are intertwined with the incident. This includes the odometer rollbacks occasioned by the lack of funds for repairs and the cab catching on fire. * The damages portion itself ~ two young men’s loss of their parents ~ will take approximately ewo additional court days of testimony. This includes the young men, plaintiff's psychologist, a few family friends to testify about the family relationship, and defendant’s psychiatrist. The minimal time and effort required to present the damages portion does not warrant the additional time required to bifuscate the trial with additional pury instructions, additional closing arguments, and additional deliberations. * This is a death case - deaths that occurred in part due to defendants’ undercapitalization. While defendant Selby may not like this, it is what the case is about. Defendants Selby’s and 2. PLAINTIFPS THE MARSHALLS® OPPOSITION TO DEFENDANT SELBY & HUDSGN CORPORATION'S MOTION TO BIFORCATENew DeSoto’s efforts to avoid liability are a part of that discussion. It is not a business transaction case. * The idea that a finding that defendant Selby is the alter ego of DeSoto will result in settlement —-and thus tequire no farther court assets ~ is speculative at best. The Marshalls anticipate an appeal should this matter not turn out well for defendant Selby. ‘The question presented to this court: Where California courts have held that the matter is approptiate for a jury’s determination, where bifurcation will not result in any judicial economy, and where bifurcation will not sanitize the trial in the manner the defendant seeks, should the court allow defendant Selby to tum this into 4 court trial followed by a second trial on damages? The court should not, Defendant Selby’s motion should be denied. TI. Statement of facts Tn the mid 20008, DeSoro Cab Coopetative was in trouble —a cooperative with management problems and increasing liabilities. Coerupt practices resulted in an embarrassingly high accident rate. Drivers raced each other to pet to customers, crashing into each other. Dispatchers fed choice calls to fiends. DeSoto retained problem drivers, despite their accidents, because of favoritism. As a result, the company faced 94 lawsuits from 2000-2008 in San Francisco ~- and this did not include pre-filing settlements and crashes in surrounding counties. DeSoto carried only a $1 million insurance policy. And the policy’s renewal was in question. Duting the good years, DeSoto managed to secute one major asset, a large property in San Francisco’s Bayview district at the intersection of Selby and Hudson streets, where DeSoto operated. Leadership saw the handwriting on the wall. Their asset, their nest egg, was subject to the kabilities and the lawsuits of a reckless and failing company. DeSoto’s leadership did something about it. In 2008, they created a shell company, Selby and Hudson. its sole purpose — own the property, protect the DeSoto shareholders’ inheritance, and collect rent from the cab business. The shell company, Selby, retained the valuables. The Habilities were transferred to a new company, New DeSoto. New DeSoto handled the risky business — running the cabs. The companies’ leadership ran both companies for another two years. 3. PLAINTIFFS THE MARSHALLS” OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION TO BIFURCATE.2 Not surpaisingly, the economic problems continued, wreaking havoc on New DeSoto. Leadership constantly told the Fleet Manager and his mechanics there was no money ~ for repairs, overtime, of raises. At the same time, the mechanics were directed to keep every cab on the road to make money and squeeze every last mille out of the rolling stock. They scavenged parts from old cabs and wrecked cabs. This included swapping out odometer-control computers from lower-mileage wrecked cabs and replacing the odometer-control computers on higher mileage, still operating, cabs. The result ~ odometer rollbacks that squeezed additional — and illegal ~ mileage from cabs before the swapped odometers hit the SFMTA 350,000-mile limit at which a cab could no longer legally operate, tn February 2009, DeSoto performed this illegal rollback procedure on DeSoto cab 2111, subtracting nearly 50,000 miles fram the cab’s odometer. ‘Then, on June 14, 2010, a DeSoto driver, navigating a burning and illegally operating DeSoto cab 2111, crashed. The crash killed Karen and Dennis Marshall, parents to Nathan and Alex Magshall. Leadership, who were the same people, was concerned about the crash. But not in the way one would expect. Not about the Marshalls’ deaths. Leadership’s concern was the asset, the property. Leadership then found an idealistic raxi consultant, Hansu Kim, and sold him New DeSoto, wih all its liabilities. ‘They kept the Selby assets for themselves. The leadership then retreated into their shell, denying any involvement in creating the circumstances that led to Karen and Dennis Marshall’s death. Til. Legai Analysis ‘The single-enterprise doctrine is the legal concept applicable to this situation. A variant of the alter ego doctrine, it says that if a business that splits itself in two but is in essence the same business, maintains the same address, maintains the same leadership, and undercapitalizes the company thar engages in the siskier behavior, the shell company is equally able. This prevents unfair results to those adversely affected by the business’s actions. People like the Marshall family. As part of this analysis, the law lists 20 alter ego factors for a trier of fact to. evaluate. Assutated Vendors, Ine». Oakland Meat Co. (1962) 210 Cal. App.2d 825, When a question of fact exists 4. PLAINTIFFS THE MARSHALLS* OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION TO BIFURCATE,13 14 15 20 26 as to these factors, the alter ego question is the trier of fact’s domain. Triets of fact are typically juries. A, Case law demonstrates that juties ate empanelled in alter ego cases Contrary to defendant’s assertions, California courts do empanel juries for alter ego cases. Tomaselli v. Transamerica Ins, Ca, (1994) 25 Cal. App. 4th 1269 is one example. Last. of Veterinary Pathology v, Calif, Heath Luborateries, Ine. (1981) 116 Cal. App. 3d 111 is another. Interestingly, defendant Selby chose to cite these cases in support of its motion for summary judgment but omitted them from its bifurcation motion. Defendant’s inference that the court bifurcated the trial in Had City Solid Waste Services, Inc. v. Chpy of Campion (2010) 186 Cal. App. 4th 1114 is incorrect. ‘The court granted summary adjudication and determined that the entities ne the altet egos of each other, then ler the matter proceed to a jury trial. Finally, defendant cites Dow Jones Ca. v, Avene! (1984) 151 Cal. App. 3d 144, 147-48 for the principal that the Marshalls do not have a sight to jury trial for their wrongful death action against defendant Selby. Dow Jones is distinguishable. It is a contract action where the court granted plaintiff Dow Jones’ motion for summary adjudication and then later granted Dow Jones’ motion to amend the judgment to include defendant Gerald Avenel and Avenal Imposts. Defendants Avenal appealed on the basis that they were entitled to a jury trial on this issue. ‘The appellate court found defendants Avenal were not. But as the Tomaselli, supra, and Inst. of Veterinary Pathology, supra, courts demonstrate, in mixed cases of equity and damage, juties are empanelled. Tellingly, defendant Selby does not cite a single case holding that single enterptise cases must be court trials as a matter of law. B. Assuming the Marshalls prevail on alter ego, as is anticipated given the facts presented at summary judgment, bifurcation will lengthen the trial and not result in any judicial economy The actions of defendants DeSoto and Selby and resultant undercapitalization are intertwined with the incident. This includes the odometer rollbacks occasioned by the lack of funds for repairs and the cab catching on fire. Defendant Selby cites the court’s ruling denying defendant Selby’s motion for summary judgment as a basis for the idea that the mechanical issues — the 5. PLAINTIFFS THE MARSHALLS” OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION TO BIFURCATE.6 aa odometer rollbacks — were not a factor in undercapitalization. The court found many factors gave tise to triable issues of material fact. [t certainly did not hold in its ruling that the mechanical issues were not admissible or not relevant to the trial. ‘The damages portion itself — two young men’s loss of their parents — will take approximately two additional court days of testimony. This includes the young men, plaintiff's psychologist, a few family friends to testify about the family relationship, and defendant's psychiatrist. The minimal time and effort required to present the damages portion does not warrant the additional time required to bifurcate the trial with additional jury instructions, additional closing arguments, and additional deliberations. This is a death case — deaths that occurted in part due to defendants’ undercapitalization. While defendant Selby may not like this, it is what the case is about. Defendants Selby’s and New DeSoto’s efforts to avoid liability are a part of that discussion. It is not a business transaction case. Finally, the idea that a finding that defendant Selby is the alter ego of DeSoto will result in settlement ~ and thus require no further court assets — is speculative at best. The Marshalls anticipate an appeal should this matter not turn out well for defendant Selby. ‘This means the damage phase would need to be completed and the matter fully briefed for the appellate court. IV. Conclusion Defendant Selby’s motion to turn this into a court trial and bifurcate damages should be determined by the trial judge hearing the full case rather than the Law and Motion department. If the motion is determined by this coust, it should be denied. California courts allow for jury trials in precisely these situations, thus the Marshalls’ jury trial should not be taken away. The trial length and complexity will be acither diminished nor sanitized through bifurcation. Lf anything, it will lengthen, the time needed with further instruction, further closing argument, and further deliberations. ‘The Marshalls therefore request that defendant Selby’s motion he denied. 6. PLAINTIFFS THE MARSHALLS” OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION TO BIFURCATE.27 28 DATED: September 2, 2014 Respectfully submitted, EMISON HULLVERSON LLP Cfo AO Miles B. Cooper Attorneys for Plainuffs 7. PLAINTIFFS THE MARSHALLS* OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION TO BIFURCATE,26 PROOF OF SERVICE Lam employed in the 4@ party to this action. My Francisco, CA 94111, and County of San Francisco, State of California. I am over 18 years of age and not usiness address is Emison Hullverson LLP, 1005 Sansome Street, Suite 330, San On the date below I served a true copy of the following document(s): PLAINTIFFS THE MARSHALLS’ OPPOSITION TO DEFENDANT SELBY & HUDSON CORPORATION'S MOTION ‘TO BIFURCATE on the interested parties to said action by the following means: L_] (BY MAIL) By placing a true copy of the above, enclosed its a sealed envelope with appropriate ~~ postage, for collection and mailing following our ordinary business practices. Tam seadily familiar with this business's practice for collecting and processing correspondence for inailing. On the same day that the correspondence is placed for collection and mailing, it i deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid, Py (BY OVERNIGHT DELIVERY) By placing a true copy of the above, enclosed in a sealed envelope for guaranteed overnight delivery. [_] (BY FACSIMILE TRANSMISSION) By transmitang 2 true copy of the above by facsimile Bansmission from facsimile sumber (415) 434-2112 to the attorney(s) ot party(ies) shown below. (| (BY HAND DELIVERY) By personal delivery of tre copy of the above to the attorneys oF parties shown below [X] GY E-MAIL or ELECTRONIC TRANSMISSION) Based on 4 coust order of an agceement of the parties to accept service by e-mail or electtonic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. T did not receive, within a reasonable period of time, after the transmission, any electronic message or other indication that the transmission was unsuccessful, David M. King, dkin, evine & Segal Cart McLellan Ingersoll Thompson & Horn 1388 Sutter Street, Suite 600 216 Park Road San Francisco, CA 94409 Burlingame, CA 94010 Fax No, (415) 474.0302 Fax No, (650) 342-7685 “Aitorneys for Defendant DeSoto Cab Company, Ine. Attorneys for Defendant Selby & Hudson Corporation and Vaegh Bebbabani ideclare under penalty of perjury under the law of the State of California that the foregoing is truc and correct. DATED: September 2, 2014 Chaat, Na fe Ue— Christy Marty-Holdi