Mellone v. Lewis

• Decision Date: 05 March 1965
• Citation: 233 Cal.App.2d 4,43 Cal.Rptr. 412
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene MELLONE, Vincenza Mellone, Felice Mellone, Loredana Mellone, Laura Mellone, Carrie Mellone, and Marie (Maria) Luisa Mellone, Plaintiffs and Appellants, v. Raymond W. LEWIS, doing business as Lewis Catering Service, Defendant and Respondent. Civ. 27861.

Page 412

43 Cal.Rptr. 412

233 Cal.App.2d 4

Eugene MELLONE, Vincenza Mellone, Felice Mellone, Loredana Mellone, Laura Mellone, Carrie Mellone, and Marie (Maria) Luisa Mellone, Plaintiffs and Appellants, v. Raymond W. LEWIS, doing business as Lewis Catering Service, Defendant and Respondent.

Civ. 27861.

District Court of Appeal, Second District, Division 1, California.

March 5, 1965.

Rehearing Denied March 30, 1965.

Hearing Denied April 28, 1965.

Wolver & Wolver and Eugene L. Wolver, Los Angeles, for plaintiffs and appellants.

Morgan, Holzhauer, Burrows, Wenzel & Lynberg, Los Angeles, for defendant and respondent.

WOOD, Presiding Justice.

This is an action for damages allegedly resulting from food poisoning, allegedly caused by the defendant's negligence and breach of warranty (as a caterer) in preparing and serving a wedding dinner at which the plaintiffs were guests. There were 19 plaintiffs and 38 causes of action herein.

This action was consolidated with 28 similar actions filed by other guests who were at the wedding (i. e., 29 actions were consolidated). There were multiple plaintiffs and causes of action in most of the actions.

At the pretrial conference, the claims of 11 of the 19 plaintiffs in this present action were settled, and 16 of the 29 consolidated actions were settled. In other words, after the settlements there were 8 remaining plaintiffs in the present action, and there were 13 consolidated actions.

In a jury trial, the issue of liability (in all the 14 cases) was tried first, and the jury answered special interrogatories, with respect to liability, in favor of plaintiffs in all the cases--finding against the defendant on the basis of breach of implied warranty of fitness of the food.

Thereafter, the trial proceeded as to the issue of damages for several days, and then (after evidence as to damage had been presented in the Giani case herein) the plaintiffs in the present case made a motion for a severance of their trial, as to the issue of damages, from the trial of the other 13 consolidated cases. The motion was denied. The trial proceeded thereafter for approximately three weeks, and verdicts in all the cases were returned.

In the present case, the verdict was for the 8 plaintiffs, as follows: $200 each for 4 plaintiffs; $1,250 each for 2 plaintiffs; $500 for 1 plaintiff; and $150 for 1 plaintiff. Judgment was in accordance with that verdict. The 8 plaintiffs (in the present case) appeal from the portion of the judgment stating the amounts awarded upon the issue of damages, but they do not appeal from the portion of the judgment as to the issue of liability for damages. (Plaintiff John Mellone is not referred to in the briefs as an appellant.)

Appellants' first contention is that the court abused its discretion in denying theier motion for a severance of their trial, as to the issue of damages, from the trial of the other 13 consolidated cases (i. e., in denying them a separate trial by a different jury as to the issue of damages). The motion was made on the ground that (1) Dr. Gilbert's testimony regarding damages in the Giani case (which testimony had just been given), and (2) the 'hostility' between Dr. Gilbert and counsel for plaintiffs in the Giani case, would have a prejudicial effect ¹ with respect to the doctor's testimony which plaintiffs in this case intended to offer. He was a medical expert witness who was to be called by the plaintiffs in this case. The motion for a separate trial as to damages was denied. The record herein does not include a reporter's transcript of the proceedings wherein the asserted hostility purportedly occurred. The record does include a statement of the judge (made in chambers when the motion for a separate trial was heard) to the effect that the asserted hostility was caused by the conduct of counsel for plaintiffs in the Giani case, and was not caused by the conduct of Dr. Gilbert. The record also shows that, although counsel for plaintiffs in the Giani case asked permission (in chambers) to examine the doctor as a hostile witness, he (counsel) withdrew the request and did not examine him as such a witness. Prior to the time the motion for a separate trial was made, the jury had been trying the issue of damages in some of the consolidated cases for several days and prior thereto had tried the issue of liability for several days and had rendered verdicts thereon. (The trial had proceeded approximately a week before this motion was made.) The testimony of the plaintiffs in the present case with respect to the issue of liability (which testimony the jury had heard) might have been a material factor for the jury's consideration in determining the credibility of the plaintiffs with respect to the issue of their damages. The pretrial order recited that unless a jury be waived, there should be a trial of all issues before the same jury--first as to the issue of liability, and then as to the issue of damages. '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 matter within the discretion of the trial court.' (McArthur v. Shaffer, 59 Cal.App.2d 724, 727, 139 P.2d 959, 961; see Code Civ.Proc. § 1048.) In the present case, the court did not abuse its discretion in denying plaintiffs' motion for a separate trial before a different jury on the issue of damages.

Appellants contend further that the court erred in excluding some of plaintiffs' evidence regarding special damages. Such evidence was excluded on the ground that plaintiffs had not complied with provisions of the pretrial order requiring disclosure of such evidence to defendant at least 90 days before trial.

After plaintiffs' motion for a separate trial had been denied, and after the trial as to the issue of damages had been resumed, the plaintiffs called Dr. Gilbert as a witness on their behalf and asked him whether he had rendered a bill to one of the plaintiffs. The defendant objected to the question on the ground that plaintiffs had failed (with respect to this bill) to comply with the pretrial order which required that such a bill be submitted to counsel for defendant at least 90 days before the trial. The trial was commenced on December 10, 1962. Plaintiffs (appellants) assert that, on December 3, 1962 (seven days before trial), they furnished to defendant the information required by the pretrial order. The objection to the question (regarding the bill) was sustained.

At a three-days' pretrial conference in July 1962, detailed and comprehensive orders relative to parties, issues, and procedure were made. Mr. Engene L. Wolver, one of the attorneys for plaintiffs herein, was present at the conference. One order, made over objections of plaintiffs, consolidated the 13 cases for all purposes. Another order (made pursuant to stipulation) provided for simplification of the record in the cases. The other order was a pretrial conference order, consisting of 9 pages.

Subheading 'G' of the pretrial order is titled, 'Evidence Discovery and Law and Motion.' (Italics added.) Section 2 of this subheading provides, in part:

'With the consent of counsel for all parties, it is ordered that: [Italics added.]

'a. Counsel for each plaintiff notify counsel for defendant * * * at least 90 days before trial, the names of each plaintiff contending he is not fully recovered * * *.

'b. Counsel for each party * * * exchange copies of their medical reports * * * within 30 days from date hereof * * *.

'c. Counsel for each plaintiff submit to counsel for the defendant and each cross-defendant at least 90 days before trial an itemized list of all special damages claimed by each respective plaintiff, and also a statement of the period of total and partial disability claimed by each respective plaintiff.

'd. Counsel for each plaintiff submit to counsel for the defendant * * * at least 90 days before trial the name and address of the employer of each plaintiff claiming loss of earnings, and the necessary authority for counsel for the defendant * * * to make * * * inspection and copies of the employment records * * *.

'e. Counsel for each self-employed plaintiff claiming loss of earnings to permit the defendant * * * to * * * audit * * * the books and records of each of such plaintiffs for the period of at least 12 months * * * on condition that this audit be completed at least 30 days prior to trial * * *.

'f. Counsel for each plaintiff claiming hospitalization * * * give counsel for the defendant * * * upon demand, the necessary authority * * * to make * * * inspection * * * of said hospital records.'

Section 3 of said 'Subheading G' provides, in part: 'Because of the large number of parties involved in this litigation, and the continuous effort to settle claims, discovery has not been completed. The parties are given the right to take depositions and to submit interrogatories in accordance with the prevailing rules and practice, subject, however, to the limitations that * * * all depositions and interrogatories must be completed at least 60 days prior to trial.'

On December 26, after defendant's objection to the question regarding Dr. Gilbert's bill had been sustained (on the ground that plaintiffs had not complied with the pretrial order), proceedings were had in chambers, where Mr. Eugene L. Wolver, representing the plaintiffs, made an offer of proof in support of his contention that plaintiffs had complied with the order. The offer of proof, consisting of statements by Mr. Wolver, was to the following effect:

Mr. Wolver 'pulled this file' on November 29, 1962, and noticed that there was no record of compliance with the pretrial order. The next day (10 days before the trial) he telephoned Mr. Lynberg, one of the attorneys for defendant, and said that he (Mr. Wolver) would make a motion to be relieved from the provision of the pretrial order, by reason of the illness and death of Mr. McMullen (an...