Judge: Stephen I. Goorvitch, Case: 19STCV46843, Date: 2023-03-24 Tentative Ruling

Case Number: 19STCV46843    Hearing Date: March 24, 2023    Dept: 39

Kathleen Eubank v. Barry & Taffy, Inc.

Case No. 19STCV46843

Final Status Conference Orders

A.        Plaintiff’s Motions in Limine #1 – Denied without Prejudice

Plaintiff seeks an order precluding Defendant from introducing exhibits not produced in discovery, and from calling witnesses not identified in discovery.  The Court will address this issue at trial if necessary.  The Court cannot exclude witnesses or evidence not identified or produced during discovery unless the omission violated a court order or otherwise was willful.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.) 

The Court orders both parties to identify all witnesses that they plan to call in their respective cases-in-chief, and to produce all exhibits they plan to introduce in their respective cases-in-chief, on or before April 3, 2023.  The Court orders the parties to update these disclosures as necessary.

B.        Defendant’s Motion in Limine #1 – Granted

            Defendant seeks an order excluding evidence of Defendant’s financial condition, including evidence related to the sale of Defendant’s business and the financial status of its former owner, Barry Berger.  Plaintiff opposes the motion only insofar as is necessary to respond to any evidence or argument by Defendant concerning these issues.  The Court finds that introduction of this evidence by either party would violate Evidence Code section 352.  Therefore, the Court grants the motion.  In addition, the Court orders that neither party may introduce evidence concerning Defendant’s financial condition, including evidence relating to the sale of Defendant’s business and the financial status of its former owner, Barry Berger, without first seeking authorization from the Court. 

C.        Defendant’s Motion in Limine #2 – Granted in Part; Denied in Part

            Defendant seeks an order limiting the alleged conduct upon which Plaintiff predicates her retaliation claim.  Plaintiff alleges that “[o]n or about October 19, 2017, Plaintiff began suffering from intestinal issues with chronic diarrhea and urinary tract infections as symptoms.”  (Complaint, ¶ 19.)  Plaintiff alleges that she informed Defendants on or about October 20, 2017, that she required a medical leave, which lasted until on or about December 18, 2017.  (Complaint, ¶ 20.)  Plaintiff alleges that she again missed work on December 21, 2017; January 4, 2018; and January 15, 2018, as a result of which she was terminated.  (Complaint, ¶¶ 23-24.)  Similarly, in her discovery responses, Plaintiff disclosed only her intestinal issues.  Form Interrogatory (Employment) Number 204.1 states: “Name and describe each disability alleged in the PLEADINGS.”  (Declaration of Caitlin Sanders, Exh. #3.)  Plaintiff stated: “Plaintiff suffered from a UTI and intestinal issues, such as gastroenteritis/chronic diarrhea.”  (Ibid.) 

            The first time Plaintiff appears to have identified this theory is in her opposition to Defendant’s motion for summary judgment.  The opposition was filed on June 27, 2022, which is two-and-one-half years after the case was filed (on December 30, 2019), and three weeks before fact discovery closed (on July 17, 2022, based upon a then-trial date of August 16, 2022.)  Although the Court continued the trial date, the Court did not reopen most fact discovery.  (See Court’s Minute Order, dated August 30, 2022.)  This gives rise to due process issues, i.e., prejudice, as Defendant did not have sufficient notice of an entirely new theory and therefore was deprived of an opportunity to conduct discovery.  Nor did Defendant have an opportunity to seek summary adjudication.  If Plaintiff’s counsel intended to expand her theory of the case, she should have sought leave to amend the complaint sufficiently in advance of Defendant’s motion for summary judgment and trial.  She failed to do so.

            Based upon the foregoing, the Court grants the motion and orders that Plaintiff may not introduce evidence of her diabetes or any related medical leave in 2016 as part of her case-in-chief.  In other words, Plaintiff may not predicate her causes of action upon these facts.  However, the motion is denied in one respect: At trial, Defendant presumably will introduce evidence that it had non-discriminatory reasons for terminating Plaintiff, e.g., excessive absences.  If Defendant relies on valid absences, i.e., absences related to Plaintiff’s diabetes, the Court will permit Plaintiff to introduce this evidence in rebuttal to demonstrate that she had valid reasons for being absent from work on those occasions. 

D.        Defendant’s Motion in Limine #3 – Granted

            Defendant seeks an order excluding any evidence concerning a proposed severance agreement offered to Plaintiff.  This evidence is inadmissible under Evidence Code section 1152.  In the alternative, the Court excludes this evidence under Evidence Code 352, as any probative value would be greatly outweighed by the prejudice. 

            E.         Plaintiff’s Expert Witnesses

            Plaintiff has noticed 13 non-retained expert witnesses, and four retained expert witnesses.  This is excessive and cumulative for a case where the only remaining causes of action are predicated upon retaliation.  Rather than exclude witnesses at this stage, the Court will address this issue by virtue of the trial estimate.

            F.         Trial Estimate

            According to their joint witness list, the parties estimate that the testimony should take approximately 50 hours, which means the trial would take a total of 14 to 15 court days.  As discussed, the Court granted summary adjudication of all causes of action except the retaliation-based claims.  It appears that Plaintiff’s counsel intends to call 17 expert witnesses to establish that Plaintiff’s intestinal issues constitute a disability and that she suffered non-economic damages as a result of her termination.  The parties’ trial estimate is excessive for such a narrow and straightforward case.  “Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. . . .  This view is not only contrary to law but undermines a trial judge's obligation to be protective of the court’s time and resources as well as the time and interests of . . . jurors and other litigants waiting in line to have their cases [tried].”  (California Crane School, Inc. v. National Com. For Certification of Crane Operators (2014) 226 Cal.App.4th 12, 20.)  Indeed, this concern is critical, as Department #39 currently has 643 open cases, which gives rise to constant jury trials and heavy motions calendars.  In fact, Plaintiff’s counsel just finished a jury trial in Department #39 last week and has two more cases set for trial on April 11, 2023. 

            Based upon the foregoing, the Court disregards the parties’ trial estimate.  Each side shall have eight (8) hours to try this case, absent unforeseen circumstances or other good cause.  This estimate shall include everything from opening statement to closing argument.  Voir dire shall not count against this time estimate and shall be handled separately. 

            G.        Exhibit List    

            The parties have not filed a joint exhibit list.  The Court orders the parties to meet-and-confer on whether they will stipulate to the authenticity and admissibility of the exhibits and note the stipulations on the exhibit list.  The Court orders the parties to file a joint proposed exhibit list on or before March 29, 2023. 

            H.        Mandatory Settlement Conference

            The Court orders the parties to participate in a mandatory settlement conference through the Resolve Law LA Virtual MSC Program.  The Court shall hold a post-mediation status conference on April 10, 2023, at 1:30 p.m.   

I.                    Courtroom Etiquette

The Court orders that the parties may not say anything in front of the jury unless invited to do so by the Court except as follows: (1) The parties may call witnesses; (2) The parties may state that they are calling a witness “under Evidence Code section 776” but they may not explain what this means in front of the jury; (3) The parties may ask questions of the witnesses; (4) The parties may mark and seek to introduce exhibits; (5) The parties may publish exhibits once they are admitted; and (6) The parties may make ministerial and procedural requests of the Court.  The parties may make objections, but there shall be no speaking objections.  Instead, the parties shall state the basis of the objection in legal terminology.  If necessary, the Court will implement a system of numbered objections to prevent the parties from arguing in front of the jury.  The parties may not move for a mistrial in front of the jury.  Instead, the parties shall make their objections for the record and request a mistrial outside the presence of the jury.  Any violations of this order shall be addressed through monetary sanctions, reducing the parties’ time, evidentiary sanctions, and/or terminating sanctions. 

J.          Notice

The Court’s clerk shall provide notice.