Judge: Mark H. Epstein, Case: 20STCV03819, Date: 2023-02-06 Tentative Ruling

Case Number: 20STCV03819    Hearing Date: February 6, 2023    Dept: R

The case is here for a final status conference.  The court gave its final status conference order on July 21, 2021.  On Friday, February 3, 2023, the court granted defense counsel’s motion to withdraw.  The court warned defendant on that day, and on the earlier date where defense counsel sought an ex parte order shortening time on the motion to be relieved, that the trial was going forward and that defendant had to take appropriate steps.  The court notes that at the ex parte defense counsel did move to continue the trial.  That motion was denied, however, because insofar as the papers before the court disclosed no good cause existed and the need to withdraw came solely from defendant’s side of the case and plaintiff strongly opposed a continuance.  No further showing or request has been made.

At the last FSC, held on January 9, 2023, the court deemed the case not ready for trial.  The current date was then set.  New documents were filed on February 1, 2023, which is timely.  The court is in receipt of the following materials: (1) Joint Jury Questionnaire; (2) Joint Verdict Form; (3) Joint Jury Instructions; (4) Joint Short Statement of the Case; (5) Joint Witness List; (6) Joint Exhibit List.  The court assumes that these documents supersede the documents filed on January 4, 2023 to the extent they overlap.  On January 4, 2023, both plaintiff and defendant submitted proposed jury instructions to which it appears the other party may have objected.  The court will inquire whether those are still being requested.  The court assumes that defendant’s separate jury questionnaire is being withdrawn, but the court will confirm it.  The court had received a deposition designation chart with all designations “TBD.”  The court assumes that the deposition designations are being withdrawn, as “TBD” is not compliant.  Doing so is not a problem assuming that no one intends to use deposition testimony other than for impeachment.

The court notes that in the short statement of the case, witness Nervies is listed and witness Roberts is not.  Both were in plaintiff’s earlier in limine motion to exclude their testimony.  The issue as to Nervies has been resolved, apparently, so the court assumes that the parties agree that Nervies may testify.  The motion as to Roberts is still live.  The court notes that his name is not in the short statement of the case but he is on the witness list.  The court will discuss this with counsel in light of the court’s ruling on the in limine motion, which the court is prepared to resolve today if the parties have not already resolved it among themeselves.

On the questionnaire, the court is not inclined to ask question 17 absent some explanation as to why it is proper.  The court would be willing to consider a similar question if it is not tied expressly to religion, but the court’s stronger inclination is not to ask it.  The court believes question 23 is subsumed by question 22 and therefore is redundant.  The court is not inclined to ask question 32.

The court will discuss with the parties whether they would like to give “mini-openings” before voir dire but after the jury has been time-qualified.  Each side would be given no more than 5 minutes to present its short version of the case, starting with plaintiff.  The point is to shorten the voir dire time and to give the venire an overview of the case.  The mini-opening is in the nature of an opening in that it should not be argumentative.  The mini-opening is in addition to the regular opening; it is not in lieu of it.

Because this is an I/C court, the trial will not begin until 10:30 on most days.  The court will inquire of the partiesa whether to give the jury the option of starting at 1:30 instead.  The advantage is that it gives the jury the full morning to take care of business (including going to work for a half day) and run errands.  The disadvantage is that it (obviously) extends the number of days of trial.  There are advantages and disadvantages to the parties as well.

In short, the case appears READY FOR TRIAL.  The court may be engaged in a trial early next week, so the matter will trail from day to day until the court is prepared to hear it.  The court’s best estimate is that we will start picking a jury mid-week.

On Tuesday, February 14, 2023, the parties are to lodge with the court the following materials: (1) 3 copies of an exhibit binder—one for the court, one for the court’s judicial assistant, and one for the witnesses.  Each will have an index in the front.  The court will prepare the binder that will go into the jury room.  (2) A trial binder consisting of: (a) the operative pleadings (complaint and answer); (b) witness list; (c) exhibit list without exhibits; (d) jury instructions (list followed by actual instructions in the order the parties would like the instructions read); (e) verdict form; (f) jury questionnaire; (g) in limine motion; (3) All deposition transcripts pertaining to any witness who might be called in this case.

Before ruling on the in limine motion, the court wants to thank counsel for preparing the FSC materials.  They appear to be in good form and the court knows it was a lot of work.  The payoff is that the trial ought to go much smoother.

Also before ruling on the in limine motion, the court will inquire whether the motion has become moot.  There are some indications that it has.  If not, the court will rule orally at this time.