Mountjoy v. Bank of America, N.A.

Filing 118

TRIAL CONFIRMATION ORDER signed by District Judge Daniel J. Calabretta on 12/07/23 CONFIRMING the Jury Trial set for 2/5/2024 at 8:30 AM in Courtroom 10 before the Honorable Daniel J. Calabretta. Objections due within 14 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALVIN MOUNTJOY,

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No. 2:15-cv-02204-DJC-DB

Plaintiff,

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v.

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SETERUS, INC.,

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TRIAL CONFIRMATION ORDER

Defendant.

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On December 7, 2023, the Court conducted a trial confirmation hearing.

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Attorney Denise S. Henderson appeared on behalf Plaintiff Calvin Mountjoy and

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Attorneys Michael J. Stoltzman, Jr. appeared on behalf of Defendant Seterus, Inc.

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(“Seterus”). Based on the results of that trial confirmation hearing, the Court now

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issues this trial confirmation order.

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This action proceeds on Plaintiff’s Third Amended Complaint against Seterus

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for: (1) violations of California’s Homeowner Bill of Rights, California Code Civ. Proc.

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sections 2923.7, 2924.10; (2) violations of California’s Unfair Competition Law,

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California Bus. and Prof. Code. section 17200; (3) intentional infliction of emotional

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distress; and (4) wrongful foreclosure. This matter is set for trial on February 5, 2024.

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I.

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Jurisdiction/Venue
Jurisdiction is predicated on diversity jurisdiction. Venue is proper pursuant to
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28 U.S.C. § 1391(b). Venue and Jurisdiction are not contested.

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II.

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Jury
Plaintiff requested a jury trial. Seterus did not request a jury trial. This action

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will be tried by a jury, not the Court, per Plaintiff’s request.

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III.

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Motions in Limine/Disputed Evidentiary Issues
The parties have not yet filed motions in limine. The Court does not encourage

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the filing of motions in limine unless they are addressed to issues that can realistically

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be resolved by the Court prior to trial and without reference to the other evidence

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which will be introduced by the parties at trial. Any motions in limine counsel elect to

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file shall be filed on or before January 24, 2024. Each party’s motions in limine should

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be filed in a single document with each motion beginning on a new page within that

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document. Opposition shall be filed on or before January 29, 2024. Each party’s

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oppositions to motions in limine should be filed in a single document with each

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opposition beginning on a new page within that document. Where necessary for

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sealing purposes, a motion in limine or opposition to a motion in limine may be filed

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separately from the rest of the motions/oppositions. The parties should be prepared

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to present argument on these motions at the final status conference.

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IV.

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Witnesses
Plaintiff’s and Seterus’s witnesses shall be those described in their pretrial

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statements. (See ECF Nos. 114 (Seterus’s pretrial statement); 116 (Plaintiff’s pretrial

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statement).) Each party may call any witnesses designated by the other.

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The Court does not allow undisclosed witnesses to be called for any

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purpose, including impeachment or rebuttal, unless they meet the following

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criteria:

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1.

The party offering the witness demonstrates that the witness is for the

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purpose of rebutting evidence that could not be reasonably anticipated

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at the pretrial conference; or

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2.

The witness was discovered after the pretrial conference and the
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proffering party makes the showing described below.

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Upon the post-pretrial discovery of any witness a party wishes to present at trial,

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the party shall promptly inform the Court and opposing parties of the existence of the

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unlisted witnesses by filing a notice on the docket so that the Court may consider

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whether the witnesses shall be permitted to testify at trial. The witnesses will not be

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permitted unless:

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1.

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The witness could not reasonably have been discovered prior to the
discovery cut-off;

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2.

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The Court and opposing parties were promptly notified upon discovery
of the witness;

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3.

If time permitted, the party proffered the witness for deposition; and

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4.

If time did not permit, a reasonable summary of the witness’s testimony

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was provided to opposing parties.
V.

Exhibits

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Plaintiff’s and Seterus’s exhibits shall be those identified in their pretrial

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statements. (See ECF Nos. 114 (Seterus’s pretrial statement); 116 (Plaintiff’s pretrial

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statement).) Counsel and/or the parties shall file a copy of their respective final exhibit

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lists no later than January 24, 2024.

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No exhibit shall be marked with or entered into evidence under multiple exhibit
numbers. All exhibits must be pre-marked as discussed below.
At trial, joint exhibits shall be identified as JX and listed numerically, e.g., JX-1,

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JX-2. Plaintiff’s exhibits shall be listed numerically, and defendants’ exhibits shall be

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listed alphabetically. The parties must prepare three (3) separate exhibit binders for

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use by the Court at trial, with a side tab identifying each exhibit in accordance with the

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specifications above. Each binder shall have an identification label on the front and

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spine. The final exhibit binders are due to the Court on the first day of trial.

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The parties must exchange exhibits no later than 28 days before trial. Any

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objections to exhibits shall be filed on or before January 29, 2024. In making any
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objection, the party is to set forth the grounds for the objection. As to each exhibit

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that is not objected to, no further foundation will be required for it to be received into

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evidence, if offered.

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The Court will not admit exhibits other than those identified on the exhibit lists
referenced above unless:

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1.

The party proffering the exhibit demonstrates that the exhibit is for the

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purpose of rebutting evidence that could not have been reasonably

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anticipated, or

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2.

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The exhibit was discovered after the issuance of this Order and the
proffering party makes the showing required in paragraph B, below.

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Upon the discovery of exhibits after the discovery cut-off, a party shall promptly

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inform the Court and opposing parties of the existence of such exhibits by filing a

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notice on the docket so that the Court may consider their admissibility at trial. The

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exhibits will not be received unless the proffering party demonstrates:

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1.

The exhibits could not reasonably have been discovered earlier;

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2.

The Court and the opposing parties were promptly informed of their

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existence;

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3.

The proffering party forwarded a copy of the exhibits (if physically

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possible) to the opposing party. If the exhibits may not be copied, the

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proffering party must show that it has made the exhibits reasonably

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available for inspection by the opposing parties.

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VI.

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Further Discovery
Discovery has been completed and is now closed.

VII.

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Stipulations
The Court is unaware of any stipulations at this time. Any stipulations must be

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provided to the Court by January 29, 2024.

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VIII.

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Trial Briefs
Trial Briefs from both parties shall be filed on January 24, 2024.
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IX.

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Joint Statement of the Case
Parties shall file a stipulated joint statement of the case by January 24, 2024.

X.

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Proposed Jury Voir Dire
By January 24, 2024, the parties shall file proposed questions to be asked by

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the Court during jury selection. The parties are advised to limit the number of

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proposed voir dire questions and to only propose questions they feel are essential.

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Each party will be limited to 20 minutes of jury voir dire.
XI.

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Proposed Jury Instructions and Proposed Verdict Form
The Court directs the parties to meet and confer in an attempt to generate a

joint set of jury instructions.

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On or before January 15, 2024, the parties shall file their Joint Proposed Jury

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Instructions and a Proposed Verdict Form. All blanks in form instructions should be

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completed and all brackets removed.

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If the parties are unable to agree on an instruction and/or verdict form, the

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parties shall include any such instruction and/or verdict form under a separate

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heading in the Joint Proposed Jury Instructions or Verdict Form and identify which

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party proposed the jury instructions or verdict form and the source of and authority for

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the proposed jury instruction or verdict form. Any objections to a proposed jury

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instruction or proposed verdict form shall be included in the Joint Proposed Jury

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Instructions or Verdict Form. Any objection should identify the party objecting,

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provide a concise statement of the reasons for the objection, and include any relevant

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citation to authority. When applicable, the objecting party shall include an alternative

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proposed instruction on the issue or identify which of his or her own proposed

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instructions covers the subject.

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XII.

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Filing Documents
All documents mentioned above, including but not limited to the Proposed

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Jury Instructions, Witness Lists, Exhibit Lists, the Joint Statement of the Case, the

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Proposed Verdict Form, and Motions in Limine, shall be filed on the docket in this
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action and also emailed as a Word document to [e-mail].

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XIII.

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Final Status Conference
The Court will conduct a Final Status Conference on February 1, 2024 at 1:30

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PM in Courtroom 10. At that time, the Court will hear argument on motions in limine

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and any outstanding matters to be resolved before trial.

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XIV.

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Trial Date/Estimated Time of Trial
Jury Trial is set for February 5, 2024, at 8:30 a.m. in Courtroom 10 before the

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Honorable Daniel J. Calabretta. Trial is anticipated to last three (3) days. The parties

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are directed to Judge Calabretta’s standard procedures available on his webpage on

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the Court’s website.

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The parties are to contact Gabriel Michel, Courtroom Deputy for Judge

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Calabretta, via email ([e-mail]), one week prior to trial to ascertain

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the status of the trial date.

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XV.

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Objections to Pretrial Order
Each party is granted 14 days from the date of this Order to file objections to

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this Order. Each party is also granted 7 days thereafter to respond to the other party’s

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objections. If no objections are filed, the Order will become final without further order

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of this Court.

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The parties are reminded that pursuant to Rule 16(e) of the Federal Rules of

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Civil Procedure and Local Rule 283 of this Court, this Order shall control the

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subsequent course of this action and shall be modified only to prevent manifest

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injustice.

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IT IS SO ORDERED.
Dated:

December 7, 2023
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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