O'Campo v. Golden Bear Restaurant Group Inc., et al
Filing
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FINAL PRETRIAL ORDER signed by District Judge Troy L. Nunley on 03/01/23 CONFIRMING Trial for 04/17/23. Objections to this Final Pretrial Order due within 14 days. (Licea Chavez, V)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DIMAS O’CAMPO,
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Plaintiff,
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No. 2:15-cv-01849-TLN-DMC
v.
FINAL PRETRIAL ORDER
GOLDEN BEAR RESTAURANT
GROUP, INC., et al.,
Defendants.
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Trial Date: April 17, 2023
TIME: 9:00 a.m.
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This Court held a Final Pretrial Conference on February 23, 2023. Plaintiff Dimas
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O’Campo (“Plaintiff”) was represented by Joseph Zink. Defendants Golden Bear Restaurant
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Group, Inc., Joseph Polati, and Traci Polati (“Defendants”) were represented by Shalend Singh
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and Grace Mehta. After the hearing, the Court makes the following findings and orders:
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I.
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JURISDICTION / VENUE
The parties dispute whether the Court has the factual and statutory basis of federal
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jurisdiction. Plaintiff claims the Court has original jurisdiction under 28 U.S.C. §§ 1331 and
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1343. (ECF No. 48 at 2.) Plaintiff further argues supplemental jurisdiction for claims arising
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from the same operative facts brought under California law is predicated on 28 U.S.C. § 1367,
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and venue is invoked pursuant to 28 U.S.C. §§ 1391(b) and (c). (Id.)
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Defendants contest that the Court has subject matter jurisdiction over this action arguing
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Plaintiff’s complaint fails to establish Article III standing. (Id.)
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II.
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JURY OR NON-JURY TRIAL
Neither party has requested a jury trial, and the matter is therefore planned for a non-jury
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trial.
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III.
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UNDISPUTED FACTS
1.
The parties agree that the following issues are moot: (1) the International Symbol
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of Accessibility (“ISA”) sign at the entrance door that was not posted at the correct height; (2) the
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entrance door with an inaccessible panel handle; (3) the mirror in the restroom which was
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mounted too high; (4) the soap dispenser in the restroom which was mounted too high; and (5) the
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paper towel dispenser which required twisting, pinching, and/or grabbing and was difficult to use.
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2.
The Court granted Defendants’ Motion for Summary Judgment and entitled them
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to judgment as a matter of law with respect to Plaintiff alleging: (1) a toilet tissue dispenser in the
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restroom mounted too far from the front of the toilet; and (2) pipes beneath the sink in the
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restroom which were improperly and incompletely wrapped.
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IV.
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DISPUTED FACTUAL ISSUES
1.
Whether Plaintiff has severe brain damage, which affects his ability to walk, talk,
see, and stand.
2.
Whether Plaintiff requires the use of a cane and/or wheelchair and often a mobility
equipped vehicle when traveling in public.
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Whether Plaintiff visited the Arby’s Restaurant multiple times, including on June
17, 2015, and August 11, 2015.
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Whether Plaintiff encountered multiple barriers at the Restaurant including: (1) a
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steep slope in the disabled parking space; (2) a steep slope in the access aisle in the parking lot;
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(3) an ISA sign at the entrance door that was not the correct height; (4) an entrance door with an
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inaccessible panel handle; (5) a toilet tissue dispenser in the restroom mounted too far from the
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front of the toilet; (6) pipes beneath the sink in the restroom which were improperly and
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incompletely wrapped; (7) a mirror in the restroom which was mounted too high; (8) a soap
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dispenser in the restroom which was mounted too high; and (9) a paper towel dispenser which
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required twisting, pinching, and/or grasping and was difficult to use.
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5.
equal access to the Restaurant.
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6.
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Whether the disabled parking slopes at the restaurant contained slopes that were as
steep as 2.7%.
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Whether due to the alleged barriers, Plaintiff is prevented from enjoying full and
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Whether the slope of the access aisle in the parking lot exceeds 2%.
DISPUTED EVIDENTIARY ISSUES & MOTIONS IN LIMINE
The Court sets a filing deadline for motions in limine of March 27, 2023, with opposition
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briefs due by April 3, 2023, so that the motions can be heard and decided before trial begins.
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Plaintiff identifies the following evidentiary issues that may be subject to a motion in limine:
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1.
Excluding experts from testifying about whether elements at the restaurant
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complied with the law, or the legal requirements for those elements, and whether such testimony
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are impermissible legal conclusions.
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2.
Preventing the defense from introducing evidence of Plaintiff’s prior litigation
history and/or prior settlements.
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Excluding any undisclosed and unpled affirmative defenses presented at trial
which were not included in the answer and final pretrial order.
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Excluding any undisclosed exhibits pursuant to Fed. R. Civ. P. 37.
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Defendants identify the following evidentiary issues that may be subject to a motion in limine:
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Excluding experts from testifying about whether elements at the restaurant failed
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to comply with the law, or the legal requirements for those elements, and whether such testimony
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are impermissible legal conclusions.
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2.
Preventing Plaintiff from introducing any inadmissible or irrelevant evidence to
his remaining causes of action.
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3.
Excluding any undisclosed law or expert witness testimony.
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4.
Given the death of the defense expert, Defendants request the expert reports be
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admitted into evidence.
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VI.
The parties’ lists of prospective witnesses have been memorialized in the parties’ Exhibit
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WITNESSES
A and Exhibit C to the Joint Final Pretrial Conference Statement and are thus incorporated herein.
No other witnesses will be permitted to testify unless: (1) the party offering the witness
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demonstrates that the witness is for the purpose of rebutting evidence which could not be
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reasonably anticipated at the Final Pretrial Conference, or (2) the witness was discovered after the
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Final Pretrial Conference and the proffering party makes the showing required in section B
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below.
Upon the post-pretrial discovery of witnesses, the attorney shall promptly inform the
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Court and opposing parties of the existence of the unlisted witnesses so that the Court may
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consider at trial whether the witnesses shall be permitted to testify. The evidence will not be
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permitted unless: (1) the witnesses could not reasonably have been discovered prior to pretrial;
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(2) the Court and opposing counsel were promptly notified upon discovery of the witnesses; (3) if
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time permitted, counsel proffered the witnesses for deposition; and (4) if time did not permit, a
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reasonable summary of the witnesses’ testimony was provided by opposing counsel.
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VII.
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EXHIBITS — SCHEDULES AND SUMMARIES
The parties’ lists of proposed exhibits have been memorialized in the parties’ Exhibit B
and Exhibit D to the Joint Final Pretrial Conference Statement and are thus incorporated herein.
Plaintiff’s exhibits shall be listed numerically. Defendants’ exhibits shall be listed
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alphabetically. The parties shall use the standard exhibit stickers provided by the Court Clerk’s
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Office: pink for Plaintiffs and blue for Defendants. After three letters, note the number of letters
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in parenthesis (i.e., “AAAA(4)”) to reduce confusion during the trial. All multi-page exhibits
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shall be fastened together and each page within the exhibit shall be numbered. All photographs
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shall be marked individually. The list of exhibits shall not include excerpts of depositions which
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may be used to impeach witnesses.
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Each party may use an exhibit designated by the other. In the event that Plaintiff and
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Defendants offer the same exhibit during trial, that exhibit shall be referred to by the designation
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the exhibit is first identified. The Court cautions the parties to pay attention to this detail so that
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all concerned will not be confused by one exhibit being identified with both a number and a letter.
A.
The Court will not permit introduction of other exhibits unless: (1) the party
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proffering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which
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could not be reasonably anticipated at the Pretrial Scheduling Conference, or (2) the exhibit was
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discovered after the Pretrial Scheduling Conference and the proffering party makes the showing
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required in paragraph “B” below.
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B.
Upon the post-pretrial discovery of exhibits, the attorneys shall promptly inform
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the Court and opposing counsel of the existence of such exhibits so that the Court may consider at
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trial their admissibility. The exhibits will not be received unless the proffering party
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demonstrates: (1) the exhibits could not reasonably have been discovered prior to pretrial; (2) the
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Court and counsel were promptly informed of their existence; (3) counsel forwarded a copy of the
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exhibit(s) (if physically possible) to opposing counsel. If the exhibit(s) may not be copied, the
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proffering counsel must show that he or she has made the exhibit(s) reasonably available for
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inspection by opposing counsel.
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C.
As to each exhibit, each party is ordered to exchange a copy identical to the
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Court’s copy, or other reproduction of the exhibit(s) in a three-ring binder(s) no later than one
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week before trial.
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D.
The attorney or representative for each party is directed to present one copy of the
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exhibit(s) and exhibit list to the Court Clerk’s Office, no later than 3:00 p.m., one week before
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trial, or at such earlier time as may be ordered by the Court. The Court shall be presented with a
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copy of the exhibit(s) in a 3-ring binder(s) with a side tab identifying each exhibit by number or
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letter. Each binder shall be no larger than three inches in width and have an identification label
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on the front and side panel.
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E.
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if needed.
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VIII. DISCOVERY DOCUMENTS
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It is the duty of counsel to ensure that witnesses have access to a copy of exhibit(s)
The parties do not list any discovery documents they expect to offer at trial.
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IX.
FURTHER DISCOVERY OR MOTIONS
Pursuant to the Court’s Pretrial Scheduling Order, all discovery and law and motion was
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to have been conducted so as to be completed as of the date of the Final Pretrial Conference.
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That Order is confirmed. The parties are free to engage in informal agreements regarding
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discovery and law and motion matters. However, any such agreements will not be enforceable in
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this Court.
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XI.
The Court notes the parties did not submit a joint statement of the case in the Joint Pretrial
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AGREED STATEMENTS — JOINT STATEMENT OF CASE
Statement. Plaintiff states that because this is a bench trial, he does not feel an agreed upon
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statement is necessary. (ECF No. 48 at 12.) It is mandatory the parties shall file one short joint
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statement of the case concerning the nature of this case. This shall be filed no later than one
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week before first day of trial. The statement of the case shall include in plain concise language
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Plaintiff’s claims and the corresponding defenses to the claims.
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XIII. AUDIO/VISUAL EQUIPMENT
The parties are required to notify the Courtroom Deputy Clerk, Michele Krueger, twenty-
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one (21) days before trial, if they wish to reserve and arrange for orientation with all parties on
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the Court’s mobile audio/visual equipment for presentation of evidence. There will be one date
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and time for such orientation.
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XIV. DATE AND LENGTH OF TRIAL
Trial is scheduled for Monday April 17, 2023. The estimated length of trial is 2 days.
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Counsel are to email Michele Krueger, Courtroom Deputy Clerk, at mkrueger@caed.uscourts.gov
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or call 916-930-4163 by April 10, 2023, to ascertain the status of the trial date.
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XV.
OBJECTIONS TO PRETRIAL ORDER
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Each party is granted fourteen (14) days from the entry of this Final Pretrial Order to
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object to any part of the order or to request augmentation to it. A Final Pretrial Order will be
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modified only upon a showing of manifest injustice. If no objection or modifications are made,
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this Order will become final without further order of the Court and shall control the subsequent
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course of the action, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure.
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IT IS SO ORDERED.
DATE: March 1, 2023
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Troy L. Nunley
United States District Judge
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