Kirola et al v. City & County of San Francisco, The et al

Filing 282

ORDER by Judge ARMSTRONG denying 175 Motion to Bifurcate (lrc, COURT STAFF) (Filed on 6/2/2010)

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Guy B. Wallace, State Bar No. 176151 [e-mail]) Mark T. Johnson, State Bar No. 76904 ([e-mail]) Andrew P. Lee, State Bar No. 245903 ([e-mail]) SCHNEIDER WALLACE COTTRELL BRAYTON KONECKY LLP 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] James C. Sturdevant, State Bar No. 94551 ([e-mail]) Monique Olivier, State Bar No. 190385 ([e-mail]) Whitney Huston, State Bar No. 234863 ([e-mail]) THE STURDEVANT LAW FIRM A Professional Corporation 354 Pine Street, Fourth Floor San Francisco, California 94104 Telephone: [phone] Facsimile: [phone]

DENNIS J. HERRERA, State Bar No. 139669 City Attorney DANNY CHOU State Bar No. 180240 Chief of Complex and Special Litigation JAMES M. EMERY, State Bar No. 153630 ELAINE M. O'NEIL, State Bar No. 142234 Deputy City Attorneys Fox Plaza 1390 Market Street, Seventh Floor San Francisco, California 94102-5408 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO, ET AL.

Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA IVANA KIROLA, MICHAEL KWOK, AND ELIZABETH ELFTMAN, on behalf of themselves and all others similarly situated; Plaintiffs, v. THE CITY AND COUNTY OF SAN FRANCISCO ("the CITY"); et al., Defendants. ORDER DENYING DEFENDANTS' MOTION FOR SEPARATE TRIALS DATE: TIME: PLACE: JUDGE: May 18, 2010 1:00 p.m. Courtroom 1, 4th Floor Hon. Saundra B. Armstrong Case No.: C07-3685 SBA CLASS ACTION

Trial Date: July 12, 2010

[JOINT PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR SEPARATE TRIALS

CASE NO. C07-3685 SBA

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This matter came on for hearing on Defendants' Motion for Separate Trials on May 18, 2010. Guy B. Wallace, Mark T. Johnson and Amanda Hugh of Schneider Wallace Cottrell Brayton Konecky appeared for plaintiffs. Deputy City Attorneys James M. Emery and Elaine O'Neil appeared for Defendant City San Francisco ("City"). The Court having considered the papers filed by the parties, and having heard argument from the parties on the motion, IT IS HEREBY ORDERED that Defendants' Motion for Separate Trials is DENIED. Defendant asserts that the Court should order a separate and later trial on the issue of curb ramps because the state court action in King et al. v. City and County of San Francisco, San Francisco Superior Court Case No. 07-459278, in which a proposed settlement has been reached, may result in a final judgment having a res judicata effect over the claims of Plaintiffs in this action regarding curb ramps. The Court is concerned, however, that there is currently no final judgment in the King case and no clear indication as to whether and when a final judgment based upon the settlement of that action might be entered. The rules of res judicata only apply when a final judgment is rendered. Restatement (Second) of Judgments § 13 (1982); Nat'l Union Fire Ins. Co. v. Stites Prof. Law Corp., 235 Cal. App. 3d 1718, 1726, 1 Cal. Rptr. 2d 570 (1991). Under California law, which governs the res judicata effect of a state court proceeding in an ongoing federal action (Marrese v. Am. Academy of Orthopedic Surgeons, 470 U.S. 373, 380 (1985).), a judgment is final for res judicata purposes only after an appeal has been has been exhausted or the time for filing an appeal has expired. Nat'l Union Fire Ins. Co., 235 Cal. App. 3d at 1726; Franklin & Franklin v. 7-Eleven Owners for Fair Franchising, 85 Cal. App. 4th 1168, 1174, 102 Cal. Rptr. 2d 770 (2000). The Court is not in a position to know when a judgment based upon the settlement in the King case might become final. Plaintiffs' counsel here represent class members who have objected to the settlement in King and have stated that their clients will appeal any final approval of that settlement. An appeal in the state Court of Appeal may not be resolved for as long as two years. The Court is not prepared to bifurcate and stay the curb ramp portion of this case for an indefinite period until the resolution of the appellate proceedings in state court. The Court is also concerned that the proposed class in this case is broader than the provisionally certified settlement class in King because it is not limited to persons with mobility disabilities who use 1
[JOINT PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR SEPARATE TRIALS CASE NO. C07-3685 SBA

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wheelchairs or scooters for mobility. Even if a res judicata defense based upon the settlement in King were available, it would not apply to those members of the proposed class who do not use wheelchairs or scooters, including, for example, users of canes, walkers and other assistive devices. Accordingly, litigation of the same curb ramp issues on behalf of that subset of the class may still be necessary despite a final judgment in King. The Court also finds that abstention under the Colorado River doctrine is not warranted. For the foregoing reasons, and in the exercise of its discretion under Rule 42(b), the Court DENIES Defendant's motion for a separate trial on the issue of curb ramps. IT IS SO ORDERED. Dated: 6/1/10 ____________________________________________ HONORABLE SAUNDRA B. ARMSTRONG United States District Judge

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[JOINT PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR SEPARATE TRIALS CASE NO. C07-3685 SBA