Judge: Mark H. Epstein, Case: SC128408, Date: 2023-05-01 Tentative Ruling

Case Number: SC128408    Hearing Date: May 1, 2023    Dept: R

The matter appears to be ready for trial.  However, the court is currently engaged in another trial, which is likely to be continuing through the week of May 8.  The court will discuss with the parties whether they would like another date (with an appropriate stipulation so that the case will not be dismissed for failure to bring it to trial).  If they do not, the court will call the case on May 8 and consider simply trailing it from day to day until the current trial ends, which is likely to be sometime the week of May 15.

The court is, however, somewhat concerned about the new exhibit list, and the court will want a semi-binding estimate as to the amount of time each party will need to present the evidence in its case, including cross-examination.  The court is trying to squeeze this case in, so the estimates should be thought out carefully.  The exhibit list suggests about 64 hours for direct and cross.  The court is also concerned because the deposition designations do not appear proper.  Virtually the entire Kabi deposition is designated and the objections are vague.  The court believes that neither side has done an appropriate job and views that as a concession that no one intends to use any depositions other than for impeachment.

The court has considered plaintiff’s in limine motion #2.  Plaintiff’s entire theory of the case is that work was not progressing because no one was really doing the work.  While the time-stamped pictures should have been produced earlier, the court will not exclude them.  If plaintiff wants to attempt to impeach a witness with a prior deposition answer, plaintiff may attempt to do so.  If plaintiff needs or wants some additional discovery related to the time-stamped documents, the court will consider the request.  Excluding the pictures, however, would essentially allow plaintiff to attempt to convince the jury of an alternate reality that did not actually happen.  At bottom, a trial is a search for the truth and the court is not prepared to distort the truth in such a fashion.

If the case is going forward, then on Monday the court will need the following to be lodged: Trial Notebook 1: (1) the operative complaint; (2) the operative answer; (3) the operative cross-complaint; (4) the operative answer; (5) the short joint statement of the case; (6) the joint witness list; and (7) the joint exhibit list; (8) Deposition Designations broken down by witness.  Trial Notebook 2: (1) Plaintiff’s trial brief; (2) Defendant’s trial brief (3) Jury instructions (broken down as follows): (a) Index to instructions; (b) Instructions in the order they are to be read with agreed upon instructions in black, plaintiff’s instructions to which defendant objects inserted and in green, and defendant’s instructions to which plaintiff objects inserted and in blue; (4) Verdict Form with plaintiff’s proposed verdict in black and track changes showing defendant’s proposed modifications.  Trial Notebook 3.  Exhibits with the index in front.  All depositions are to be lodged with the court.

The court emphasizes the rule set forth in its trial rules.  If there is no court reporter, then lead counsel is to meet each lunch and from the end of the court day until no earlier than 9 pm to reach an agreed upon settled statement.  If any agreement is reached earlier, of course the meeting can stop.  If not, then the parties will submit to the court the following morning at 8:15 am plaintiff’s proposal with defendant’s changes in track changes.  The court firmly believes it will be easier and cheaper to have a court reporter.