Betz v. Trainer Wortham & Company, Inc. et al

Filing 154

FINAL PRETRIAL SCHEDULING ORDER (SI, COURT STAFF) (Filed on 7/5/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HEIDE BETZ,

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United States District Court
For the Northern District of California

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No. C 03-03231 SI
Plaintiff,

FINAL PRETRIAL SCHEDULING
ORDER

v.
TRAINER WORTHAM & CO., INC., et al.,

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Defendants.

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On July 5, 2011, the Court held a final pretrial conference in the above captioned matter, which

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is set for jury trial beginning July 18, 2011. All parties were represented by counsel. The following

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matters were resolved:

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1.

Number of jurors and challenges: There shall be a jury of 8 members. Each side shall

have up to 4 peremptory challenges.

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2.

Voir dire: The court will conduct general voir dire, and counsel for each side shall have

up to 20 minutes total to question the panel.

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3.

Trial exhibits: No later than July 15, 2011, the parties shall submit their trial exhibits,

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in binders with numbered tabs separating and identifying each exhibit. The court shall be provided with

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three sets (for the court, the file and the witness) and each side shall provide one set for the other side.

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To the extent that original documents are to be used as exhibits in the case, they should be included in

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the set of exhibits for the court.

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5.

Timing of trial: The parties estimate that the trial should take four days, not including

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any punitive damages phase. Based on this estimate, each side shall have 45 minutes for opening

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statements; each side shall have up to 7 hours total for presentation of evidence, which includes direct

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and cross-examination and presentation of all exhibits; and each side shall have up to 60 minutes for

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closing argument. In the event a punitive damage phase is required, each side shall have up to 15

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minutes for opening statement; up to 1 hour to present evidence; and up to 30 minutes for closing

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argument.

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United States District Court
For the Northern District of California

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6.

Trial schedule: Jury trials are generally conducted Monday through Thursday; jury

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trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on

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Fridays. The trial day runs from 8:30 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 30

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minute break at 12:00 noon and a 15 minute break at 2:00 p.m., all times approximate.

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7.

Motions in limine: Defendants filed 8 motions in limine, as follows:

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1. Defendants’ motion to exclude references to recent financial crisis: Defendants

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seek an order precluding plaintiff from mentioning the recent bank and mortgage-related financial crisis.

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They contend – accurately, as far as the Court knows – that the recent crisis did not affect plaintiff’s

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investment portfolio, the relevant performance of which ended in 2002 or so. Thus it is not anticipated

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that any of plaintiff’s evidence will relate directly to the current crisis. To order that no mention be

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made, however, goes too far: testimony or argument could overlap in concept or principle with such

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evidence. Hence, the motion is denied without prejudice to specific objections at time of trial.

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2. Defendants’ motion to exclude evidence of “secret kickback”: It is agreed by both

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sides that defendant Trainer Wortham paid defendant First Republic Bank referral fees based on the

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value of plaintiff’s portfolio. Plaintiff apparently calls the referral fees “secret kickbacks”; defendant

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counters that they were identified in the contract, so are not properly described as “secret.” Defendant

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seeks an order that plaintiff may not call the fees “secret kickbacks.” The phrase is obviously
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argumentative, so may be used in argument. The question of secrecy must await the testimony at trial.

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The motion is denied.

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3. Defendants’ motion to exclude evidence regarding oral agreement: The alleged

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oral agreement is relevant to plaintiff’s negligent misrepresentation and breach of fiduciary duty claims

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and is not specifically contrary to the language of the written agreements, which in any event do not

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include integration clauses. The motion to exclude all reference to the oral agreement is accordingly

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denied.

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United States District Court
For the Northern District of California

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4. Defendants’ motion to exclude testimony based on assumed growth rates of

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12.5%, 15% and 20%: At the Pretrial Conference, plaintiff clarified that his damage expert would not

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use the 12.5%, 15% and 20% growth rate calculations for purposes of computing damages, but only to

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explain issues related to liability. To this extent, the motion is granted.

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5. Defendants’ motion to preclude testimony re the Wells Fargo 2010 Fund:

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Granted, subject to offer of proof at trial re suitability of this investment vehicle for plaintiff’s stated

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financial needs and purposes.

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6. Defendants’ motion to exclude damage calculation after March 2001 or after

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March 2002: Granted, as to damage calculations for time periods after July, 2002. Although mitigation

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is a jury question, the end points otherwise offered by plaintiff’s expert, which were far later in time,

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bear no logical relationship to plaintiff’s claims or to her damages. Plaintiffs’ computations should end

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at the time her attorney sent his letter accusing defendants of fraud.

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7. Defendants’ motion to exclude punitive damages: Reserved for ruling until after
the trial evidence is received.

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8. Defendants’ ex parte application to substitute expert witness: At the Pretrial
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Conference, plaintiff’s counsel states that she has no objection, provided that defendants make the new

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expert available for convenient deposition prior to trial. The Court orders accordingly.

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8.

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It is ordered that the parties conduct a further settlement conference prior to trial, either with a

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Magistrate Judge on Friday, July 8, 2011 (if one can be arranged) or with a private mediator acceptable

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to the parties prior to trial.

Further settlement conference:

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: July 5, 2011

_____________________________
SUSAN ILLSTON
United States District Judge

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