West Pacific Electric Company Corporation v. Dragados/Flatiron ( 2019 )

1 D. MICHAEL SCHOENFELD, SBN 102332 LISA D. NICOLLS, SBN 234376 2 MURPHY AUSTIN ADAMS SCHOENFELD LLP 555 Capitol Mall, Suite 850 3 Sacramento, CA 95814 Telephone: (916) 446-2300 4 Facsimile: (916) 503-4000 Email: mschoenfeld@murphyaustin.com 5 Email: lnicolls@murphyaustin.com 6 Attorneys for Plaintiff WEST PACIFIC ELECTRIC COMPANY 7 CORPORATION 8 P. RANDOLPH FINCH, JR., SBN 185004 DAVID W. SMILEY, SBN 226616 9 FINCH, THORNTON & BAIRD, LLP 4747 Executive Drive, Suite 700 10 San Diego, California 92121-3107 Telephone: (858) 737-3100 11 Facsimile: (858) 737-3101 Email: pfinch@ftblaw.com 12 Email: dsmiley@ftblaw.com 13 Attorneys for Defendants DRAGADOS/FLATIRON JOINT VENTURE, et al. 14 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA 17 18 WEST PACIFIC ELECTRIC COMPANY Case No. 1:18-cv-00166-LJO-BAM CORPORATION, 19 STIPULATION TO AMEND Plaintiff, SCHEDULING ORDER; AND ORDER 20 v. Trial Date: March 17, 2020 21 Complaint Filed: January 30, 2018 DRAGADOS/FLATIRON, a joint venture; 22 LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation; 23 FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation; 24 ZURICH AMERICAN INSURANCE COMPANY, a New York corporation; THE 25 CONTINENTAL INSURANCE COMPANY, a Pennsylvania corporation; XL SPECIALTY 26 INSURANCE COMPANY, a Delaware corporation; THE INSURANCE COMPANY 27 OF THE STATE OF PENNSYLVANIA, a Pennsylvania corporation; AMERICAN 28 HOME ASSURANCE COMPANY, a New 1 York corporation; NATIONAL INDEMNITY COMPANY, a Nebraska corporation; 2 TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut 3 corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation, 4 Defendants. 5 6 7 The parties to this Stipulation are Plaintiff West Pacific Electric Company Corporation 8 (“WPEC”), Defendant Dragados/Flatiron (“DFJV”), and Defendants Liberty Mutual Insurance 9 Company, Fidelity and Deposit Company of Maryland, Zurich American Insurance Company, 10 The Continental Insurance Company, XL Specialty Insurance Company, The Insurance Company 11 of the State of Pennsylvania, American Home Assurance Company, National Indemnity 12 Company, Travelers Casualty and Surety Company of America, and Federal Insurance Company 13 (collectively referred to as “Surety Defendants”). Collectively, WPEC, DFJV and the Surety 14 Defendants are hereinafter referred to as the “Parties.” 15 The Parties, through their respective counsel, jointly stipulate and respectfully request that 16 the Court enter an Order allowing for the continuance of the discovery and expert disclosure 17 deadlines; and pre-trial motion deadlines; and scheduling the sequence of the 15 day trial of the 18 case in its entirety. 19 Good cause exists to continue non-expert and expert discovery; expert disclosure 20 deadlines; and pre-trial motion deadlines as the parties will require additional time to complete 21 discovery on the licensure issues raised in the Counterclaim. 22 Good cause exists to schedule a two day court trial on WPEC’s “substantial compliance” 23 defense with the remaining 13 days allocated to a jury trial on all remaining claims and defenses 24 in the case since California substantive law (which governs in this matter) holds that such a 25 defense must be decided by the trial judge. See Business and Professions Code section 7031(e) 26 and Judicial Council of California v. Jacobs Facilities, Inc., 239 Cal. App. 4th 882, 913-914, 191 27 Cal. Rptr. 3d 714, 740 (2015), as modified on denial of reh'g (Sept. 15, 2015). 28 Based upon the above, the Parties stipulate and request that the Court issue an order as 1 follows: 2 1. The non-expert and expert discovery; and pre-trial motion deadlines are continued 3 to the following dates: 4 i. Initial Disclosures on Counterclaim: August 25, 2019 5 ii. Expert Disclosure: October 4, 2019 6 iii. Supplement Expert Disclosure: October 16, 2019 7 iv. Non-Expert Discovery Cutoff: September 27, 2019 8 v. Expert Discovery Cut-Off: October 25, 2019 9 vi. Pretrial Motion Filing Deadline: October 25, 2019 10 2. The Parties stipulate to a two day court trial on WPEC’s “substantial compliance” 11 defense with the remaining 13 days allocated to a jury trial on all remaining claims 12 and defenses in the case. 13 3. The Court’s previous Scheduling Order, including all discovery deadlines, is 14 vacated and the new Scheduling Order is as follows: 15 i. Initial Disclosures on the Counterclaim: August 25, 2019 16 ii. Expert Disclosure: October 4, 2019 17 iii. Supplement Expert Disclosure: October 16, 2019 18 iv. Non-Expert Discovery Cutoff: September 27, 2019 19 v. Expert Discovery Cut-Off: October 25, 2019 20 vi. Pretrial Motion Filing Deadline: October 25, 2019 21 vii. Settlement Conference: Not set 22 viii. Pretrial Conference: Date: January 21, 2020 23 Time: 9:00 a.m. 24 Dept: 4 (LJO) 25 ix. Court Trial (two (2) day est.)1 Date: March 17, 2020 26 Time: 8:30 a.m. 27 28 1 The court trial will be limited to the hearing and determination of WPEC’s “substantial 1 Dept: 4 (LJO) 2 xii. Jury Trial (13 day est.): Date: March 19, 2020 3 Time: 8:30 a.m. 4 Dept: 4 (LJO) 5 4. A further scheduling conference is scheduled for August 27, 2019 at 9:00 a.m. 6 The Court will inform the parties if such conference will be necessary following its 7 review of the Parties’ Stipulation. 8 Dated: August 7, 2019 MURPHY AUSTIN ADAMS SCHOENFELD LLP 9 10 By:/s/ Lisa D. Nicolls 11 D. MICHAEL SCHOENFELD LISA D. NICOLLS 12 Attorneys for Plaintiff WEST PACIFIC ELECTRIC COMPANY 13 CORPORATION 14 15 Dated: August 7, 2019 FINCH, THORNTON & BAIRD, LLP 16 17 By:/s/ David W. Smiley 18 P. RANDOLPH FINCH, JR. DAVID W. SMILEY 19 Attorneys for Defendants DRAGADOS/FLATIRON JOINT VENTURE, 20 et al. 21 22 23 24 25 26 27 28 1 ORDER 2 Having reviewed the stipulation of the parties, the Court finds good cause to partially grant 3 and partially deny the parties’ request to modify the Scheduling Order in this action. Accordingly, 4 IT IS HEREBY ORDERED that the Scheduling Order in this action is modified as follows: 5 a. Supplemental Disclosures regarding Dragados/Flatiron’s Counterclaim shall be 6 exchanged by August 25, 2019; 7 b. Non-expert discovery shall be completed by September 27, 2019; 8 c. Initial expert disclosures shall be completed by October 4, 2019; 9 d. Supplemental expert disclosures shall be completed by October 16, 2019; and 10 e. Expert discovery shall be completed by October 25, 2019. 11 The deadline for filing dispositive motions remains set for October 25, 2019, the pretrial 12 conference remains set for January 21, 2020 at 9:00 AM in Courtroom 4 before Chief Judge 13 Lawrence J. O’Neill, and the trial date remains set for March 17, 2020, at 8:30 a.m. in Courtroom 14 4 before Chief Judge O’Neill. 15 The Court notes that the authority cited by the parties in support of their contention that 16 they are entitled to a two-day court trial on the “substantial compliance” defense followed by a 17 thirteen-day jury trial on the remaining issues is not controlling and does not address the issue of 18 whether the procedure proposed by the parties is considered state substantive law within the 19 meaning of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). As California Business and Professions 20 Code § 7031 does not require a court trial in order to decide the “substantial compliance” defense 21 and this proposed procedure further does not appear to be outcome determinative as that term is 22 understood under the Erie doctrine, and to accommodate the Court’s calendar as well as the 23 availability of judges to decide this case, the parties’ request for a two-day court trial beginning on 24 March 17, 2020 followed by a thirteen-day jury trial beginning on March 19, 2020 is DENIED 25 without prejudice. See id.; Guaranty Trust Co. v. York, 326 U.S. 99 (1945). However, this order 26 is not intended to preclude the parties from submitting a request for an evidentiary hearing to Chief 27 Judge O’Neill, moving for summary judgment or partial summary judgment, or pursuing alternative 28 procedures as necessary and appropriate in order to resolve the “substantial compliance” defense. 1 The Court further notes that this is the parties’ third stipulation to modify the Scheduling 2 Order with respect to the deadline for completion of non-expert discovery and second stipulation 3 to modify the Scheduling Order with respect to expert discovery deadlines. The parties are 4 cautioned that further modifications of the Scheduling Order will not be granted absent a showing 5 of good cause, and such cause will be narrowly construed. Fed. R. Civ. P. 16(b). 6 In light of the foregoing, the Status Conference currently set for August 27, 2019 is 7 VACATED. 8 IT IS SO ORDERED. 9 10 Dated: August 16, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28