Bennett et al v. State Farm General Insurance Company

Filing 45

STIPULATION and ORDER 44 to Partially Revise the Court's Scheduling Order, signed by Magistrate Judge Jennifer L. Thurston on 5/12/2016. Expert Disclosure due by 7/8/2016; Expert Rebuttal due by 7/22/2016; Discovery completed by 8/8/2016. (Hall, S)

1 STEPHEN M. HAYES (SBN 83583)
[e-mail]
2 STEPHEN P. ELLINGSON (SBN 136505)
[e-mail]
3 HAYES SCOTT BONINO ELLINGSON & McLAY, LLP
203 Redwood Shores Parkway, Suite 480
4 Redwood City, California 94065
Telephone: [phone]
5 Facsimile: 650.637.8071
6 Attorneys for Defendant
STATE FARM GENERAL INSURANCE COMPANY
7
8 CRAIG A. MILLER (SBN 116030)
[e-mail]
9
PATRICK A. CALHOON (SBN 249149)
10 [e-mail]
225 Broadway, Suite 1310
11 San Diego, CA 92101
Telephone: [phone]
12 Facsimile: [phone]
13

Attorneys for Plaintiffs
14 HAROLD and DOROTHY BENNETT and
DOROTHY PICKERING as Conservator of the Person
15 and Estate of Harold Bennett
16
UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA (FRESNO DIVISION)

18

19 HAROLD and DOROTHY BENNETT,

CASE NO. 1:14-CV-01377 DAD-JLT

Plaintiffs,

20

AMENDED STIPULATION AND
[PROPOSED] ORDER TO PARTIALLY
REVISE THE COURT’S SCHEDULING
ORDER

vs.

21
22

STATE FARM GENERAL INSURANCE
23 COMPANY, and DOES 1 through 100,
inclusive,
24
Defendant.
25

(Doc. 44)

26
27
28
685497

-1AMENDED STIPULATION & [PROPOSED] ORDER TO PARTIALLY REVISE COURT’S
SCHEDULE ORDER - CASE NO. 1:14-CV-01377 DAD-JLT

Plaintiffs and State Farm General Insurance Company (“State Farm”), by and through their

1

2 respective counsel, hereby stipulate to revise the Court’s January 11, 2016 Amended Status (Pretrial
3 Scheduling) Order (Dkt. 37) as follows:
I.
RECITALS

4
5

1.

The parties recently submitted a Stipulation and [Proposed] Order to Revise the

6 Court’s Scheduling Order. (Dkt. 42.) The Court denied the stipulation. (Dkt. 43.) The parties
7 hereby submit a revised stipulation to address the comments in the Court’s denial order.
8

2.

This matter arises out of a fire at a business premises owned by plaintiffs Harold and

9 Dorothy Bennett. Bennett Optical Research, Inc. (“BOR”), a corporation wholly owned by plaintiffs,
10 operated its business at the insured premises. State Farm paid insurance policy benefits to plaintiffs
11 following the fire, but the parties disputed the proper amount of the loss. Among other issues,
12 plaintiffs contend they are entitled to loss of business income for a potential contract with the Missile
13 Defense Agency, a division of the United States Department of Defense.
14

3.

Plaintiff Dorothy Bennett is deceased. Plaintiff Harold Bennett became the subject of

15 a disputed conservatorship proceeding in October 2014 based on his advanced dementia and
16 Alzheimer’s disease. Mr. Bennett’s grandson, Matthew Bennett, and daughter, Dorothy Picking,
17 both sought to be appointed conservator. Ms. Picking was appointed conservator in March 2015.
18

4.

BOR’s corporate status has been suspended by the California Secretary of State, and

19 the company has ceased operations. Harold Bennett still is listed as its agent for service of process,
20 but he has been unavailable since at least late 2014. The parties only recently were able to locate
21 BOR’s documents. Counsel for plaintiffs currently is reviewing those documents for privacy and
22 privilege, especially since a large volume of BOR’s business involved contracts with the DOD.
23

5.

During State Farm’s investigation of plaintiffs’ claim, Mr. Bennett authorized

24 Matthew Bennett to handle his claim for benefits arising out of the BOR fire. Matthew Bennett lived
25 in the San Diego area until approximately early 2015 when he relocated to the Boston area to receive
26 treatment for brain cancer, which included surgery and extensive chemotherapy. These issues
27 impaired plaintiffs’ ability to locate documents and witnesses.
28
685497

-2AMENDED STIPULATION & [PROPOSED] ORDER TO PARTIALLY REVISE COURT’S
SCHEDULE ORDER - CASE NO. 1:14-CV-01377 DAD-JLT

1

6.

State Farm recently discovered that BOR had its own insurance through Allied

2 Insurance, purchased through Darrell Silberberg at IWV Insurance Agency. The Allied policy may
3 have provided additional coverage for damages related to the fire, but it was canceled shortly before
4 the BOR fire. State Farm issued subpoenas to Allied and IWV, but they have not yet produced
5 documents. State Farm is currently engaged in meet and confer efforts with both entities. Mr.
6 Silberberg recently represented that he will produce his firm’s and Allied’s documents.
7

7.

State Farm has been attempting to locate Arnold Danielson, a former employee of

8 BOR who was involved in BOR’s DOD contracts. State Farm has attempted service at two
9 addresses identified on documents produced by plaintiffs, but has not been able to perfect service on
10 him. One of these addresses appears to be an abandoned building in Ridgecrest, CA.
11

8.

Despite these issues, the parties have engaged in extensive discovery to date:

12



Comprehensive interrogatories and responses;

13



Voluminous demands and production of documents;

14



Engaged a private investigator to locate former BOR employees with knowledge of its
DOD contracts;

15


16

Issued document subpoenas to third parties IWV Insurance Brokers, James Lyle,

17

CPA, LevitZacks CPA, United States Department of Defense, Arnold Danielson

18

(former BOR employee), Cordell Construction, Herman Construction, architect Kiran

19

Mehra, the Law Offices of Steven Boster, Dake, Braun & Monje, LLP, Ullakko

20

Muranishi & Co., Bank of America and RA Capital Advisors;


21

The parties scheduled the depositions of State Farm agents Roger Dorman and Lisa

22

MacMillan in Ridgecrest, CA in April 2016. Mr. Dorman’s deposition could not

23

proceed because he fell ill the day before. Plaintiff’s counsel was en route from San

24

Diego to Ridgecrest when his car broke down, so Ms. MacMillan’s deposition could

25

not proceed.

26

9.

The parties anticipated that they would be able to comply with previous deadlines

27 proposed to and adopted by the Court. However, the parties did not sufficiently appreciate how their
28 ability to complete discovery would be impacted by Harold Bennett’s conservatorship proceeding,
685497
-3AMENDED STIPULATION & [PROPOSED] ORDER TO PARTIALLY REVISE COURT’S
SCHEDULE ORDER - CASE NO. 1:14-CV-01377 DAD-JLT

1 BOR’s effective dissolution and Matthew Bennett’s cancer treatment in Boston.
10.

2

In addition to the depositions of Mr. Dorman and Ms. MacMillan, plaintiffs currently

3 anticipate taking the depositions of the State Farm claim representative and manager primarily
4 responsible for handling the claim. State Farm currently anticipates taking the depositions of
5 Matthew Bennett (assuming his health permits), Ms. Picking, Mr. Silberberg, Charles Cordell
6 (Cordell Construction) and Steve Smidt (Herman Construction).
11.

7

The current dates and deadlines are as follows:

8



Initial expert witness disclosures is May 27, 2016;

9



Rebuttal expert disclosures is June 17, 2016;

10



Deadline for all discovery to be completed is July 19, 2016;

11



Deadline for hearing of dispositive motions is July 19, 2016;

12



Final pre-trial conference is August 22, 2016;

13



The trial date is October 18, 2016.

12.

14

The parties have agreed to submit this matter to Scott Dickinson at ADR Services for

15 mediation. The parties have obtained several dates when Mr. Dickinson is available in June 2016
16 and are in the process of reconciling client and attorney schedules.
13.

17

The parties believe they have been reasonably diligent given the unusual factors

18 outlined above, which have impacted the ability to complete discovery. The parties also respectfully
19 submit that the additional time they seek for expert disclosures and discovery will not impact the
20 remaining dates and deadlines in the current Scheduling Order, including the dispositive motion
21 deadline, pretrial conference or trial.
22
II.
STIPULATION

23
24

The parties hereby stipulate to the following revisions to the court’s Scheduling Order:

25
26

1. Expert Disclosure

July 8, 2016
(currently May 27, 2016)

2. Expert Rebuttal

July 22, 2016

27
28
685497

-4AMENDED STIPULATION & [PROPOSED] ORDER TO PARTIALLY REVISE COURT’S
SCHEDULE ORDER - CASE NO. 1:14-CV-01377 DAD-JLT

1

(currently June 17, 2016)

2

3. Deadline to complete all discovery

August 8, 2016
(currently July 19, 2016)

3
4
5 Dated: May 10, 2016

LAW OFFICES OF CRAIG A. MILLER

6
By_
7
8

/S/ Craig A. Miller
CRAIG A. MILLER
PATRICK A. CALHOON
Attorneys for Plaintiffs
HAROLD and DOROTHY BENNETT

9
10

Dated: May 10, 2016

11

HAYES SCOTT BONINO ELLINGSON & McLAY, LLP
By

12
13
14
15

/S/ Stephen P. Ellingson
STEPHEN M. HAYES
STEPHEN P. ELLINGSON
Attorneys for Defendant
STATE FARM GENERAL INSURANCE
COMPANY

[PROPOSED] ORDER
Pursuant to the parties’ stipulation1, the Pretrial Schedule is revised as follows:

16
17

1. Expert Disclosure

July 8, 2016
(currently May 27, 2016)

2. Expert Rebuttal

July 22, 2016 ________
(currently June 17, 2016)

3. Deadline to complete all discovery

August 8, 2016______
(currently July 19, 2016)

18
19
20
21
22
23

1

The Court notes that the stipulation is still unsatisfactory. For example, Mr. Bennett has been the subject of

24 conservatorship proceedings since one month after this matter was removed to this Court. Likewise, Mr. Matthew
Bennett has been undergoing treatment for his grave medical condition, sadly, for 14-16 months. The onset of both of

25 these events occurred well before the Court issued its initial scheduling order on May 29, 2015. (Doc. 19) Moreover, it
would seem that impediments to pursuing this case posed by these tragedies should have been known by that time but

26 neither situation was mentioned as in impediment to completing the case. (Doc. 18) Matthew Bennett was not
mentioned at all. Id. Likewise, neither situation was discussed in the other stipulations to amend the case schedules.

27 (Docs. 29, 31, 32, 38, 42) Though counsel noted in the initial joint scheduling report that they did not know whether

Mr. Bennett’s conservatorship might impact the case (Doc. 13 at 4-5), apparently, became confident it would not do so

28 because by the time counsel filed the amended status report they did not mention any concern. (Doc. 18)
685497
-5AMENDED STIPULATION & [PROPOSED] ORDER TO PARTIALLY REVISE COURT’S
SCHEDULE ORDER - CASE NO. 1:14-CV-01377 DAD-JLT

1 Absolutely no further extensions of time as to any deadline are contemplated and counsel are
2 admonished to redouble their efforts to meet the deadlines now in place.
3
4
5

IT IS SO ORDERED.
Dated:

May 12, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
685497

-6AMENDED STIPULATION & [PROPOSED] ORDER TO PARTIALLY REVISE COURT’S
SCHEDULE ORDER - CASE NO. 1:14-CV-01377 DAD-JLT