WILLIAM ROGERS, ET AL VS. TRANSITAMERICA SERVICES, INC., ET AL

8/13/2026 – Law and Motion Calendar Judge: Honorable Mark A. McCannon – Department 2 Page 2 of 33

Case Title / Nature of Case

2:00 PM LINE: 1 23-CIV-03335 WILLIAM ROGERS, ET AL VS. TRANSITAMERICA SERVICES, INC., ET AL

WILLIAM ROGERS MICHAEL A. KELLY TRANSITAMERICA SERVICES, INC. STEPHANIE L QUINN

PLAINTIFF WILLIAM ROGERS’ MOTION TO SEVER DEFENDANT’S CROSS COMPLAINT

TENTATIVE RULING:

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For the reasons stated below, Plaintiff’s Motion for a Separate Trial of the Cross-Complaint filed by Defendants TransitAmerica Services, Inc., Herzog Transit Services, Inc., and Peninsula Corridor Joint Powers Board against Cross- Defendant Balfour Beatty Infrastructure, Inc., pursuant to Code of Civil Procedure section 1048, subdivision (b), is GRANTED IN PART.

BACKGROUND

On August 25, 2022, Plaintiff William Rogers, an employee of Modern Railway Systems (“MRS”), was working on Caltrain property when he fell through timber planking on the Oregon Expressway Bridge onto Oregon Expressway below. This action, filed on July 20, 2023, arises from the injuries Rogers allegedly sustained in that accident.

The Complaint asserts three causes of action: (1) dangerous condition of public property; (2) negligence; and (3) loss of consortium against Defendants TransitAmerica Services, Inc., Herzog Transit Services, Inc., Peninsula Corridor Joint Powers Board (“JPB”), San Mateo County Transit District, and Does 1 through 125.

On October 9, 2025, the Court granted Defendants leave to file a Cross-Complaint against Balfour Beatty Infrastructure, Inc. (“BBI”). Caltrain had contracted with BBI in connection with the project to modernize Caltrain passenger rail service. BBI subcontracted with MRS to perform signalization work. MRS is a subsidiary of SWI, which also allegedly provided services in connection with the project.

The Cross-Complaint asserts eight causes of action against BBI and Roe Cross-Defendants: (1) breach of contractual duty to defend; (2) declaratory relief regarding the duty to indemnify; (3) negligence; (4) breach of contract; (5) implied indemnity; (6) comparative equitable indemnity; (7) contribution; and (8) declaratory relief.

Plaintiffs move for a separate trial of the Complaint and Cross-Complaint pursuant to Code of Civil Procedure section 1048, subdivision (b), arguing that separate trials would promote expedition and economy, further the convenience of the parties, and avoid prejudice because the Complaint and Cross-Complaint raise materially different issues.

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Defendants oppose. They contend that the central factual question common to both pleadings is who, if anyone, was responsible for the condition of the Oregon Expressway Bridge that allegedly caused Rogers’s accident. Defendants propose that the Fourth Cause of Action for breach of contract, insofar as it concerns BBI’s insurancerelated contractual obligations, be tried after the underlying liability issues, while the negligence, equitableindemnity, contribution, and related claims remain with the underlying action because they arise from the same accident and depend upon substantially overlapping evidence.

LEGAL STANDARD

Code of Civil Procedure section 1048, subdivision (b), provides that, in furtherance of convenience, to avoid prejudice, or when separate trials will promote expedition and economy, the Court may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or number of causes of action or issues.

Code of Civil Procedure section 598 similarly authorizes the Court, when the convenience of witnesses, the ends of justice, or the economy and efficiency of the litigation would be promoted, to order that the trial of one issue or part of an issue precede the trial of another.

“A trial court has discretion to determine the order in which claims or issues are bifurcated and determined, and the selection and scheduling of those phased determinations will not be disturbed absent an abuse of that discretion.” (Antelope Valley Groundwater Cases (2020) 59 Cal.App.5th 241, 273.)

Although litigants and courts sometimes use the term “severance” in this context, Code of Civil Procedure section 1048 no longer authorizes severance of a civil action into separate actions; rather, it authorizes the Court to order separate trials of causes of action or issues within the same action. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 738, fn. 3.)

DISCUSSION

Both sides discuss Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266. There, plaintiffs simultaneously sued alleged tortfeasors for negligence and the tortfeasors’ insurer for declaratory relief concerning insurance coverage. The Court of Appeal held that the trial court abused its discretion by refusing to order a separate trial of the insurance-related declaratory-relief claim because trying the insurer and the insured together would inject evidence of liability insurance into the negligence trial in a manner inconsistent with Evidence Code section 1155. (Id.at pp. 1270–1271.)

Omaha does not require complete separation of the Complaint and Cross-Complaint here. No insurer is a party to this action, and no bad-faith claim against an insurer is alleged. Moreover, Evidence Code section 1155 does not categorically prohibit all evidence concerning insurance; it provides that evidence of liability insurance is inadmissible when offered to prove negligence or other wrongdoing.

Nevertheless, Omaha illustrates the prejudice that may arise when insurance-coverage issues are unnecessarily placed before a jury deciding underlying tort liability. The Court therefore considers whether particular causes of action or issues should be tried separately rather than whether the entire Cross-Complaint should be separated from the underlying action.

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Defendants contend that resolution of the principal factual issue presented by both pleadings—who was responsible for the condition of the Oregon Expressway Bridge that allegedly caused Rogers’s injuries—will require substantially the same witnesses, documents, experts, and factual determinations regardless of whether the Complaint and Cross-Complaint are tried together or separately. To that extent, the Court agrees.

Plaintiffs have not demonstrated that two entirely separate trials are necessary to avoid prejudice or would promote judicial economy. Completely separating the Cross-Complaint from the underlying action would likely require duplicative witness and expert testimony, repeated presentation of the same evidence concerning the accident and the condition of the bridge, and potentially inconsistent factual determinations concerning negligence and comparative fault.

Those considerations weigh against separately trying the Third Cause of Action for negligence, the Fifth Cause of Action for implied indemnity, the Sixth Cause of Action for comparative equitable indemnity, and the Seventh Cause of Action for contribution. Those claims substantially overlap with the factual questions concerning negligence, causation, and comparative responsibility presented by Plaintiffs’ Complaint.

The Court reaches a different conclusion as to the First, Second, and Fourth Causes of Action of the Cross- Complaint. The First Cause of Action concerns an alleged contractual duty to defend; the Second seeks declaratory relief concerning an alleged contractual duty to indemnify; and the Fourth alleges breach of contract. Those claims raise contractual issues—including the scope and interpretation of BBI’s contractual obligations, insuranceprocurement and additional-insured provisions to the extent implicated by the pleadings, tenders of defense, defense costs, and related contractual defense and indemnity obligations—that are materially different from the jury’s determination of the underlying accident, negligence, causation, and comparative fault.

Trying those contractual issues during the underlying liability phase would create a substantial risk of unnecessary jury confusion and the introduction of insurance-related evidence having little or no relevance to the determination of tort liability. Conversely, resolving the underlying liability and comparative-fault issues first may narrow or eliminate issues relevant to the contractual claims.

Accordingly, separate phased proceedings will best promote efficiency and reduce the potential for prejudice without unnecessarily duplicating the evidence concerning the underlying accident.

Plaintiff’s motion is therefore GRANTED IN PART.

Pursuant to Code of Civil Procedure sections 1048, subdivision (b), and 598, trial shall proceed as follows:

Phase One: Trial shall proceed on Plaintiffs’ Complaint and on the Third, Fifth, Sixth, and Seventh Causes of Action of the Cross-Complaint, together with any other issues properly dependent upon the determination of negligence, causation, comparative fault, or allocation of responsibility for the underlying accident.

Phase Two: Following completion of Phase One, the Court shall separately try the First Cause of Action for breach of contractual duty to defend, the Second Cause of Action for declaratory relief regarding the duty to indemnify, and the Fourth Cause of Action for breach of contract.

The Court does not presently determine whether any particular issue within the Eighth Cause of Action for declaratory relief belongs in Phase One or Phase Two because the present record does not sufficiently establish

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whether each aspect of that claim turns upon comparative fault and equitable indemnity, contractual interpretation, or both. The parties shall address the proper allocation of the Eighth Cause of Action in connection with the pretrial proceedings.

The Court also reserves determination of whether the issues in Phase Two will be tried to the same jury, a different jury, or the Court, as appropriate in light of the issues remaining after Phase One and the parties’ respective jurytrial rights. (See Code Civ. Proc., § 598.)

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare and submit for the Court’s signature a written order consistent with this ruling pursuant to California Rules of Court, rule 3.1312, and shall provide written notice of the ruling to all parties who have appeared in the action, as required by law. The parties are reminded that San Mateo County Superior Court Local Rule 3.403(b)(iv) requires the prevailing party on a tentative ruling to prepare a proposed order repeating verbatim the tentative ruling. The proposed order shall be e-filed only; it shall not be emailed or mailed to the Court.

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2:00 PM LINE: 2 23-CIV-03335 WILLIAM ROGERS, ET AL VS. TRANSITAMERICA SERVICES, INC., ET AL

WILLIAM ROGERS MICHAEL A. KELLY TRANSITAMERICA SERVICES, INC. STEPHANIE L QUINN

DEFENDANT BALFOUR BEATTY INFRASTRUCRE, INC’S DEMURRER TO TRANSITAMERICA SERVICES INC., HERZOG TRANSIT SERVICES, INC. AND PENINSULA CORRIDOR JOINT POWERS BORAD’S CROSS-COMPLAINT

TENTATIVE RULING:

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For the reasons stated below, Cross-Defendant Balfour Beatty Infrastructure, Inc.’s (“BBII”) Demurrer to the October 7, 2025 Cross-Complaint is SUSTAINED IN PART and OVERRULED IN PART.

REQUEST FOR JUDICIAL NOTICE

BBII’s Request for Judicial Notice (“RJN”) is GRANTED as to the existence and filing of the Complaint and Cross- Complaint. (Evid. Code, § 452, subd. (d).) The Court does not take judicial notice of the truth of disputed factual allegations contained in those pleadings.

As to Exhibits 3 through 5—the court-filed declarations of Ashcon Minoiefar, William Motherway, and William Bogdan, together with their attachments—the Court takes judicial notice only of the fact that the documents were filed in this action. The Court does not take judicial notice of the truth of the factual assertions contained in the declarations, incident report, correspondence, photographs, or other attachments, nor does it adopt BBII’s characterization or interpretation of those materials.

Although a court may judicially notice the existence of documents contained in a court file, judicial notice of a document does not establish the truth of disputed factual assertions contained within it. (People v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374–375; see also Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564– 1569.) A demurrer tests the legal sufficiency of the pleading and may not be converted into an evidentiary hearing through judicial notice of documents whose truth or proper interpretation is disputed. (People v. H.A.S. Ins. Brokerage, supra, at pp. 374–375.)

Accordingly, BBII’s RJN as to Exhibits 3 through 5 is GRANTED only as to the existence and filing of those documents and otherwise DENIED.

BBII’S DEMURRER TO THE FIFTH THROUGH EIGHTH CAUSES OF ACTION

BBII demurs to the Fifth Cause of Action for implied indemnity, Sixth Cause of Action for comparative equitable indemnity, Seventh Cause of Action for contribution, and Eighth Cause of Action for declaratory

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relief on the ground that those claims are precluded by Cross-Complainants’ assertion of an express contractual indemnity claim.

The demurrer on this ground is OVERRULED.

Parties generally may plead alternative, and even inconsistent, theories of recovery. (Mendoza v. Continental Sales Co.(2006) 140 Cal.App.4th 1395, 1402.) That principle is particularly pertinent here because the scope and applicability of the alleged contractual indemnity provision have not yet been determined.

California recognizes that when parties have expressly contracted concerning indemnity, the agreement controls their indemnity rights within the scope of the agreement. (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628; E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 507–508.) But an express indemnity provision has preemptive effect only within the scope of its operation. Where the contractual indemnity obligation is inapplicable to the particular factual circumstances, equitable indemnity principles may apply. (E. L. White, Inc., supra, at pp. 507–508.)

Indeed, E. L. White addressed this issue following the sustaining of a demurrer and rejected the contention that the existence of an express indemnity provision necessarily foreclosed an implied indemnity claim where the contractual provision did not apply to the particular loss. (Id. at pp. 503–504, 507–510.)

Similarly, Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856 recognizes that an express indemnity provision may preclude equitable indemnity to the extent the contract governs the loss, while permitting equitable indemnity where the contractual provision does not apply. (Id. at pp. 873–879.)

At this pleading stage, the Court cannot determine that the contractual indemnity provision necessarily governs all of the circumstances giving rise to the underlying action. Cross-Complainants therefore may plead contractual and equitable theories in the alternative. Whether they may ultimately recover under any particular theory is a separate question not resolved on demurrer.

Accordingly, BBII’s demurrer to the Fifth, Sixth, Seventh, and Eighth Causes of Action on this ground is OVERRULED.

BBII’S DEMURRER TO THE THIRD CAUSE OF ACTION FOR NEGLIGENCE

BBII contends that Cross-Complainants’ negligence claim is barred by the economic loss rule. The Court agrees that the Third Cause of Action, as presently pleaded, fails to state an independent negligence claim.

The economic loss rule generally precludes recovery in negligence for purely economic losses—financial harm unaccompanied by physical injury or property damage to the party asserting the tort claim. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922; Aas v. Superior Court (2000) 24 Cal.4th 627, 635–636.)

Cross-Complainants argue that the economic loss rule does not apply because the underlying action involves both physical injury to Plaintiff William Rogers and alleged physical harm to the Oregon Expressway Bridge. Neither circumstance, as presently alleged, is sufficient to state Cross-Complainants’ direct negligence claim.

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First, Rogers’s personal injuries are not personal injuries sustained by Cross-Complainants. The Third Cause of Action alleges that BBII’s negligence caused or contributed to the damages and injuries asserted by Plaintiffs in the underlying action and seeks to shift to BBII losses for which Cross-Complainants may be held liable. As pleaded, Cross-Complainants’ resulting injury is financial.

That does not prevent Cross-Complainants from pursuing otherwise viable indemnity theories based on BBII’s alleged responsibility for Rogers’s injuries. It does, however, mean that Rogers’s bodily injury does not itself constitute physical injury sustained by Cross-Complainants for purposes of their separate negligence cause of action.

Second, the Cross-Complaint does not sufficiently allege actual physical damage to property giving rise to compensable damages sought by Cross-Complainants. Paragraph 11 alleges that BBII performed work that “may have compromised or otherwise affected the bridge structure.” Paragraph 32 similarly alleges that BBII performed work that “may have compromised or otherwise affected the bridge structure” and thereby resulted in the damages and injuries alleged by Plaintiffs in the underlying action. (XC, ¶¶ 11, 32.)

Those allegations do not allege that BBII actually caused physical damage to the bridge, identify the physical damage allegedly sustained, or allege that Cross-Complainants incurred damages to repair or remediate physical damage to the bridge. Instead, the pleaded damages are the losses arising from Plaintiffs’ underlying personal-injury claims.

Accordingly, the Third Cause of Action, as presently alleged, seeks economic losses without sufficiently alleging physical injury or property damage sustained by Cross-Complainants and is barred by the economic loss rule. (Sheen v. Wells Fargo Bank, N.A., supra, 12 Cal.5th at p. 922; Aas v. Superior Court, supra, 24 Cal.4th at pp. 635–636.)

BBII’s demurrer to the Third Cause of Action is therefore SUSTAINED WITH LEAVE TO AMEND.

STATUTE OF LIMITATIONS

BBII separately argues that any negligence claim based on physical damage to the bridge is barred by the three-year limitations period applicable to injury to real property. (Code Civ. Proc., § 338, subd. (b).)

The Court does not sustain the present Third Cause of Action on this additional ground.

A demurrer based on the statute of limitations may be sustained only where the time bar appears clearly and affirmatively from the face of the pleading and matters properly subject to judicial notice. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) If the pleading merely shows that the action might be barred, the issue cannot be resolved on demurrer. (Ibid.)

Here, the present Cross-Complaint does not adequately allege a direct property-damage claim in the first instance. Because the Court is granting leave to amend, it is unnecessary to determine the accrual date of a property-damage claim that has not yet been sufficiently alleged.

If Cross-Complainants amend to allege actual physical damage to property and the amended pleading demonstrates on its face that the claim accrued outside the applicable limitations period, Cross-Complainants

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must plead any basis for delayed discovery with sufficient facts, including the time and manner of discovery and facts showing why the claim could not reasonably have been discovered earlier despite reasonable diligence. (See Fox v. Ethicon Endo-Surgery, Inc.(2005) 35 Cal.4th 797, 807–808.)

The Court therefore does not sustain the demurrer on statute-of-limitations grounds at this stage, without prejudice to BBII raising the issue against any amended pleading.

CONTRACTUAL DISPUTE-RESOLUTION PROCEDURE

BBII also contends that the negligence claim is barred because Cross-Complainants failed to comply with the contractual dispute-resolution procedure before filing suit.

This argument does not provide an independent basis for sustaining the demurrer.

The contract attached to the Cross-Complaint provides in GP 15.2 that, except for specified “Ineligible Matters,” disputes between the parties are subject to the contractual dispute-resolution procedure. GP 15.2.4 identifies among the excluded matters “[a]ny claim arising solely in tort” and “[a]ny matters relating to the scope or applicability of indemnification provided under the Contract Documents.” (XC, Ex. 2, CALT 002054, 002056.)

The Third Cause of Action is pleaded as a negligence claim sounding in tort. The face of the attached agreement therefore does not establish that this cause of action was necessarily subject to the contractual dispute-resolution procedure.

Moreover, a demurrer reaches defects appearing on the face of the pleading or from matters properly subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Cross- Complaint does not establish that Cross-Complainants failed to satisfy an applicable contractual disputeresolution requirement, and disputed factual questions concerning compliance, waiver, or applicability cannot be resolved on demurrer.

Finally, BBII principally seeks a stay pending completion of the contractual procedure. Such relief does not establish that the Third Cause of Action fails to state facts sufficient to constitute a cause of action.

Accordingly, the Court does not sustain the demurrer on this ground.

BBII’S CO-INSURED ARGUMENT DOES NOT ESTABLISH A BASIS FOR DEMURRER

BBII further argues that the entire Cross-Complaint is barred because Cross-Complainants and BBII allegedly are insured under the same owner-controlled insurance program (“OCIP”).

The argument does not establish a basis for sustaining the demurrer.

BBII relies principally on St. Paul Fire & Marine Insurance Co. v. Murray Plumbing & Heating Corp. (1976) 65 Cal.App.3d 66 and National Union Fire Insurance Co. v. Engineering-Science, Inc. (9th Cir. 1989) 884 F.2d 1208. Those decisions concern the anti-subrogation principle restricting an insurer from pursuing subrogation

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against its own insured or co-insured for a loss covered by the applicable policy. (St. Paul, supra, at pp. 74– 76; National Union, supra,at pp. 1209–1211.)

The Cross-Complaint before the Court is not pleaded as an insurer’s subrogation action. Cross-Complainants themselves assert contractual, indemnity, contribution, negligence, and declaratory-relief claims against BBII. The authorities cited by BBII do not establish, as a categorical rule, that one alleged insured is prohibited from asserting its own contractual or indemnity rights against another alleged insured merely because both may have coverage under a common policy.

More importantly for purposes of this demurrer, BBII’s argument depends upon insurance-policy terms, coverage determinations, and related factual matters that are not established by the face of the Cross- Complaint. As explained in connection with the RJN, the Court may not resolve those disputed factual matters by accepting as true declarations and documentary evidence submitted outside the pleading.

Accordingly, BBII’s co-insured argument does not establish a basis for sustaining the demurrer.

LEAVE TO AMEND

Leave to amend is appropriate where there is a reasonable possibility that a pleading defect can be cured. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

Here, Cross-Complainants may potentially be able to allege additional facts concerning physical property damage, the nature of their resulting injury, and the basis for any independent tort duty. The Court therefore grants leave to amend the Third Cause of Action.

DISPOSITION

Cross-Defendant Balfour Beatty Infrastructure, Inc.’s Demurrer is ruled upon as follows:

1. The demurrer to the Third Cause of Action for negligence is SUSTAINED WITH LEAVE TO AMEND.

2. The demurrer to the Fifth Cause of Action for implied indemnity is OVERRULED.

3. The demurrer to the Sixth Cause of Action for comparative equitable indemnity is OVERRULED.

4. The demurrer to the Seventh Cause of Action for contribution is OVERRULED.

5. The demurrer to the Eighth Cause of Action for declaratory relief is OVERRULED.

6. BBII’s contention that the Cross-Complaint is barred because Cross-Complainants and BBII allegedly are insured under the same insurance program does not establish grounds for demurrer.

7. BBII’s request for a stay based on the contractual dispute-resolution provisions is DENIED without prejudice to any procedurally proper request for such relief.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare and submit for the Court’s signature a written order consistent with this ruling pursuant to California Rules of Court, rule 3.1312, and shall provide written notice of the ruling to all parties who have appeared in the action, as required by law. The parties are reminded that San Mateo County Superior Court Local Rule 3.403(b)(iv) requires the prevailing party on a tentative ruling to prepare a proposed

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order repeating verbatim the tentative ruling. The proposed order shall be e-filed only; it shall not be emailed or mailed to the Court.