Robinson v. San Joaquin County et al

Filing 228

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/10/2019 GRANTING County of San Joaquin's 227 request to add Stephanie MacDonald to its witness list. Ms. MacDonald will be permitted to testify in Defendant's case in chief. (York, M)

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KROLOFF, BELCHER, SMART,
PERRY & CHRISTOPHERSON
A Professional Law Corporation
VELMA K. LIM, SBN 111006
JAMIE M BOSSUAT, SBN 267458
7540 Shoreline Drive
Stockton, CA 95219
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendant
COUNTY OF SAN JOAQUIN, sued
erroneously as SAN JOAQUIN COUNTY
EMPLOYMENT AND ECONOMIC
DEVELOPMENT DEPARTMENT

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO BRANCH

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ANTHONY W. ROBINSON,

CASE NO. 2:12-CV-02783 CKD

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Plaintiff,
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vs.

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SAN JOAQUIN COUNTY EMPLOYMENT
AND ECONOMIC DEVELOPMENT
DEPARTMENT AND JOHN SOLIS,

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NOTICE OF MOTION AND MOTION TO ADD
WITNESS STEPHANIE MACDONALD TO
THE DEFENDANT’S WITNESS LIST
Trial Date: June 10, 2019
Courtroom: 24
Magistrate Judge: Hon. Carolyn K. Delaney

Defendants.

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that Defendant County of San Joaquin will and hereby does

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move this Court for an order allowing it to add witness Stephanie MacDonald to its witness list

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and to call Ms. MacDonald in its case in chief. This Motion is based upon the fact that

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Defendant has only recently learned that Plaintiff intends to argue that he was not selected for

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NOTICE OF MOTION AND MOTION TO ADD W ITNESS
STEPHANIE MACDONALD TO DEFENDANT’S W ITNESS LIST
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CASE NO. 2:12-CV-02783 CKD

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a position in 2012 because the individuals who interviewed him for the 2012 position reveiwed

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his December 18, 2009 performance evaluation.

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This Motion is based upon this Notice of Motion, the accompanying Memorandum of

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Points and Authorities, and the Declaration of Jamie M. Bossuat submitted herewith.

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Dated: June 7, 2019

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KROLOFF, BELCHER, SMART,
PERRY & CHRISTOPHERSON
A Professional Law Corporation

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By:

/s/_Jamie M. Bossuat
JAMIE M. BOSSUAT
Attorneys for Defendant
COUNTY OF SAN JOAQUIN

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MEMORANDUM OF POINTS AND AUTHORITIES

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The Court’s Pretrial Order (Doc 191) establishes several circumstances in which the

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Court will allow the addition of a witness. One basis is if “the party offering the witness

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demonstrates that the witness is for the purpose of rebutting evidence that could not

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reasonably be anticipated at the pretrial conference.” Pretrial Order, p. 5.

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Defendant now seeks to add a new witness to rebut a new theory that Plaintiff

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developed and presented after the parties had submitted witness lists. Plaintiff, at the Pretrial

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Conference, argued for the first time that he was not selected for a job with the County in

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2012 because the interviewers for that position reviewed his unsatisfactory 2009 performance

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evaluation. Declaration of Jamie M. Bossuat (“Bossuat Dec.”), ¶ 2. Plaintiff conveyed this

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new theory to counsel for defendant during the Pretrial Conference while the parties were

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meeting and conferring on which documents Plaintiff intended to offer as exhibits. Bossuat

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Dec., ¶ 2. Plaintiff’s Exhibit 53 is an Information Release Form that identifies that three

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individuals from the County’s Human Services Agency reviewed Plaintiff’s personnel file on

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October 31, 2012. Exhibit A to Bossuat Dec. Exhibit 35 was produced as part of the County’s

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Rule 26 disclosures as part of Plaintiff’s personnel file. Bossuat Dec., ¶ 3. Early in the case,

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discovery encompassed Plaintiff’s 2011 layoff and the County’s layoff mitigation procedures,

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NOTICE OF MOTION AND MOTION TO ADD W ITNESS
STEPHANIE MACDONALD TO DEFENDANT’S W ITNESS LIST
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CASE NO. 2:12-CV-02783 CKD

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including Plaintiff’s post-layoff applications and interviews. Id. However, once the layoff was

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removed as an issue in this case, Defendant had no reason to believe that Plaintiff would

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argue that there was a connection between his 2009 performance evaluation and his 2012 job

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applications. Bossuat Dec., ¶ 3.

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Because Defendant had no reason to believe that the 2012 applications would be at

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issue at trial, Defendant did not list the three individuals who viewed Plaintiff’s personnel file in

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2012 as witnesses.

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Defendant included a request to exclude evidence of post-layoff applications in its Motion in

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Limine No. 1. The Court denied the Motion as to post-layoff applications. Doc. 220.

Bossuat Dec., ¶ 4.

However, having learned of the new theory,

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Promptly following the Court’s Order on the Motions in Limine, Defendant began

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attempting to identify and contact the individuals who signed the Information Release Form.

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Bossuat Dec., ¶ 5. Defendant has successfully contacted Stephanie MacDonald, a current

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County employee who is one of the individuals who signed the Information Release Form. Id.

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She is currently on vacation, but will be available to testify on Wednesday afternoon or

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Thursday. Id.

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As a result of the foregoing, Defendant requests that Stephanie MacDonald be added

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to its witness list and permitted to testify. Defendant is seeking to add this witness at the

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earliest possible opportunity because it was previously unaware that Plaintiff intended to

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argue that there was a connection between the Information Release Form and his 2009

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unsatisfactory evaluation or that the Court would allow evidence on the 2012 applications.

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Dated: May 28, 2019

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KROLOFF, BELCHER, SMART,
PERRY & CHRISTOPHERSON
A Professional Law Corporation

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By:

/s/_Jamie M. Bossuat
JAMIE M. BOSSUAT
Attorneys for Defendant
COUNTY OF SAN JOAQUIN

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NOTICE OF MOTION AND MOTION TO ADD W ITNESS
STEPHANIE MACDONALD TO DEFENDANT’S W ITNESS LIST
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CASE NO. 2:12-CV-02783 CKD

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DECLARATION OF JAMIE M. BOSSUAT

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I, Jamie M. Bossuat, declare:

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1.

I am an attorney duly licensed to practice law in the State of California. I am a

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shareholder with the law firm Kroloff, Belcher, Smart, Perry & Christopherson, a Professional

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Law Corporation, attorneys of record for Defendant County of San Joaquin.

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stated herein are based on my own knowledge, except those matters stated on information

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and belief; as to those matters, I believe them to be true. If called as a witness, I can testify

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competently to the facts stated herein.

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2.

The matters

Plaintiff, at the Pretrial Conference, argued for the first time that he was not

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selected for a job with the County in 2012 because the interviewers reviewed his

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unsatisfactory 2009 performance evaluation. Plaintiff conveyed this to me during the Pretrial

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Conference while we were meeting and conferring on which documents Plaintiff intended to

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offer as exhibits. Plaintiff explained that it is his belief that he was not hired for a position in

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the Human Services Agency in 2012 because the interviewers reviewed his personnel file and

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saw his unsatisfactory 2009 performance evaluation.

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Information Release Form, identified as Plaintiff’s Trial Exhibit 53, is attached hereto as

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Exhibit A.

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3.

A true and correct copy of the

Exhibit 35 was produced as part of the County’s Rule 26 disclosures as part of

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Plaintiff’s personnel file. Discovery in this case initially included facts relating to Plaintiff’s

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layoff and reemployment efforts.

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following Defendant’s successful Motion for Summary Judgment on that claim. Consequently,

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Defendant had no reason to believe that Plaintiff believed there was a connection between his

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2009 performance evaluation and his 2012 job applications.

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4.

However, the layoff is no longer at issue in this case

Because Defendant had no reason to believe that the 2012 job applications

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were at issue at trial, Defendant did not list the three individuals who viewed Plaintiff’s

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personnel file as witnesses. However, once it learned of the new theory, Defendant included

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a request to exclude evidence of post-layoff applications in its Motion in Limine No. 1.

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NOTICE OF MOTION AND MOTION TO ADD W ITNESS
STEPHANIE MACDONALD TO DEFENDANT’S W ITNESS LIST
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CASE NO. 2:12-CV-02783 CKD

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5.

Promptly following the Court’s Order on the Motions in Limine, I began

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attempting to identify and contact the individuals who signed the Information Release Form. I

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have successfully contacted Stephanie MacDonald, a current County employee who is one of

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the individuals who signed the Information Release Form. She is currently on vacation, but

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will be available to testify on Wednesday afternoon or Thursday.

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I declare under penalty of perjury under federal and state law that the foregoing is true
and correct and that this declaration was executed in Stockton, California on the date below.

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Dated: June 7, 2019

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/s/ Jamie M. Bossuat
Jamie M. Bossuat
[PROPOSED] ORDER

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Having read and considered the foregoing points and authorities, and good cause

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appearing therefore, Defendant County of San Joaquin’s request to add Stephanie

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MacDonald to its witness list is GRANTED. Ms. MacDonald will be permitted to testify in

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Defendant’s case in chief.

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Dated: June 10, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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NOTICE OF MOTION AND MOTION TO ADD W ITNESS
STEPHANIE MACDONALD TO DEFENDANT’S W ITNESS LIST
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CASE NO. 2:12-CV-02783 CKD