Murillo et al v. Cervantes et al

Filing 75

ORDER GRANTING REQUEST TO AMEND CASE MANAGEMENT DEADLINES re 72 Status Report, filed by First Federal Mortgage Bankers Inc., Juan Murillo, Maria Munoz, Francisco Cervantes, Maria Murillo, Bobby Ray Lee, Teresa Diaz, Amalia Rios, Martha Jimenez. Signed by Judge Maria-Elena James on 2/24/2010. (mejlc1, COURT STAFF) (Filed on 2/24/2010)

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Heidi M. Li, Esq., (State Bar No. 202068) Matthew J. Webb, (State Bar No.148228) The LAW OFFICES OF MATTHEW J. WEBB 409 ­ 13th Street, Tribune Tower, 17th Floor, Oakland, CA 94612 Tel: [phone] / Fax: [phone] Attorney for Plaintiffs Juan Murillo, Maria Murillo, Martha Jimenez Amalia Rios and Maria Muņoz B. Edward McCutchan, Jr., Esq. (State Bar No. 119376) Michael Maloney, Esq. (State Bar No. 238751) SUNDERLAND & McCUTCHAN, LLP 412 Aviation Boulevard, Suite D Santa Rosa, CA 95403 Tel: [phone] / Fax: [phone] Attorney for Defendants Francisco Cervantes, Teresa Diaz, Bobby Ray Lee, RAM Capital Corporation dba Citywide Properties

L. Jay Pedersen, Esq. (State Bar No. 127791) Jeffrey V. Ta, Esq. (State Bar No. 225188) BLEDSOE, CATHCART, DIESTEL, PEDERSEN & TREPPA LLP 601 California Street, 16th Floor San Francisco, California 94608-2805 Tel: [phone] / Fax: [phone] Attorney for Defendant First Federal Mortgage Bankers, Inc. dba Citywide Home Loans UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (San Francisco) JUAN MURILLO aka JUAN MANUEL MURILLO; MARIA MURILLO aka MARIA JUDITH MURILLO; MARTHA JIMENEZ; AMALIA RIOS aka AMALIA GALVAN RIOS; and MARIA MUŅOZ, Plaintiffs, ) ) ) ) ) ) ) ) Case No: C07-02199 MEJ ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC. dba CITYWIDE HOME LOANS,, RAM CAPITAL CORP.dba CITYWIDE PROPERTIES, BOBBY RAY

Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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) ) ) FRANCISCO CERVANTES; TERESA DIAZ; ) BOBBY RAY LEE; FIRST FEDERAL MORTGAGE ) BANKERS, INC. dba CITYWIDE PROPERTIES dba ) CITYWIDE HOME LOANS dba RAM CAPITAL ) CORP.; HAROLD BLANCO; EAGLE LITERACY ) ) GROUP, INC.; NEW CENTURY MORTGAGE ) CORP.; WELLS FARGO BANK, NA.; CHASE ) HOME FINANCE, LLC, OCWEN LOAN ) SERVICING, LLC and DOES 1-100, ) ) Defendants. ) ) _____________________________________________ vs.

LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT SCHEDULING ORDER DATE: TBD TIME: TBD COURTROOM: B, 15th Floor JUDGE: U.S. Magistrate Judge Maria-Elena James

The signatories below, who are parties to the above-entitled action, submit this accompanying Stipulation and [Proposed] Amended Case Management Scheduling Order, as attached, and respectfully request that the Court adopt this Order in this action for GOOD CAUSE shown pursuant to their joint stipulation here and also on information presented in the parties' accompanying Joint Status Report. The parties to this action and their attorneys of record who are the signatories below and herein are specifically: Plaintiffs Juan Murillo, Maria Murillo, Martha Jimenez, Amalia Rios and Maria Muņoz ("Plaintiffs") as represented by attorney Heidi M. Li and Matthew J. Webb of The Law Offices of Matthew J. Webb; and defendants RAM Capital Corporation dba Citywide Properties, Bobby Ray Lee, Francisco Cervantes, and Teresa Diaz as represented by attorneys B. Edward McCutchan, Jr. and Michael Maloney of Sunderland & McCutchan, LLP and defendant First Federal Mortgage Bankers, Inc. dba Citywide Home Loans as represented by attorneys L. Jay Pedersen and Jeffry V. Ta of Bledsoe, Cathcart, et al., LLP. Collectively, the foregoing parties are referred to herein-below as "The Parties."

[PROPOSED] AMENDED SUPPLEMENTAL CASE MANAGEMENT ORDER Pursuant to Fed. R. Civ. P. 16, the Court has reviewed the Proposed Amended Case Management Order and ORDERS as follows:
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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A.

ADR Program: The Parties shall, subject to further determination by this Court at either at a Case Management

Conference to be set in May of 2010 or through its subsequent issuance of a court order in May 2010, elect to refer the parties to Magistrate Judge James Larson for a follow-up Settlement Conference.

B.

Jury or Court Trial: The Court shall conduct a jury trial in this matter.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 all other parties the name, address, qualifications, resume and a written report which complies with 23 24 25 26 27 28 Federal Rule of Civil Procedure 26 (a)(2)(B) on or before June 2, 2010. 2. This disclosure must be made with respect to a person who is either (a) specifically retained or E. 1. Disclosure of Expert Witnesses: Any party wishing to present expert testimony with respect to a claim or defense shall serve on D. 1. Discovery: The parties shall abide by Judge James' standing order regarding discovery and dispute C. 1. Pretrial Motions: All pretrial motions shall be filed in accordance with Civil Local Rule 7. A motion shall be

noticed pursuant to Civil L.R. 7-2 without calling the Court. Civil law and motion is heard on Thursday mornings at 10:00 a.m.

procedures.

specially employed to provide expert testimony pursuant to Federal Rule of Evidence 702 or (b) a regular employee or agent or treating physician who may be called to provide expert opinion
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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testimo ny. 3. A party or counsel has a continuing duty to supplement the disclosure of expert witnesses

when required under Federal Rule of Civil Procedure 26(e)(1).

F. 1.

Rebuttal Expert Witnesses: If the testimony of the expert is intended solely to contradict or rebut opinion testimony on the

same subject matter identified by another party, the party proffering a rebuttal expert shall make the disclosures required by Federal Rule of Civil Procedure 26(a)(2)(B), no later than June 23, 2010.

G. 1.

Limitation on Testimony by Expert Witnesses: Unless the parties enter into a written stipulation otherwise, upon timely objection, an expert

witness shall be precluded from testifying about any actions or opinions not disclosed prior to the expert's deposition. This is to ensure that all factual material upon which expert opinion may be based and all tests and reports are completed prior to the expert deposition. 2. Unless application is made prior to the close of expert discovery, each party is limited to calling

only one expert witness in each dispute involved in the case. 3. Any party objecting to the admissibility of the testimony of person disclosed as an expert

witness must file a written motion in limine to exclude the testimony no later than the deadline set in the order for filing motions in limine.

H. 1. 2.

Close of Discovery: All discovery, including depositions of expert witnesses, must be completed by July 23, 2010. Pursuant to Federal Rule of Civil Procedure 16(b) and Civil L.R. 26-2, a discovery request or

stipulation that calls for responses or depositions after the discovery cut-off date are not enforceable
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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except by order of the Court and upon a good showing of good cause. 3. Pursuant to Civil L.R. 26-2, no motions to compel discovery may be filed later than 10 days

after the discovery cut-off date.

I. 1.

Dispositive Motions: Pursuant to Civil L.R. 7-2, as dispositive motions, including motion for summary judgment or

summary adjudication along with a joint statement of undisputed facts pursuant to Civil L.R. 56-2(b), shall be filed, served and noticed by August 23, 2010. Further, pursuant to Court Order the parties shall file all oppositions to any such motions by September 14, 2010 and replies by no later than September 29, 2010: 2. The Court shall hear dispositive motions on October 7, 2010 (during the Court's Thursday law

and motion calendar) at 10:00 a.m. in Courtroom B, 15th Floor of the Federal Building, located at 450 Golden Gate Avenue, San Francisco, California.

15 16 17 18 19 20 21 22 in Federal Rule of Civil Procedure 26(a)(3) and a joint pretrial conference statement including the 23 24 25 26 27 28 following: (A) Substance of the Action: A brief description of the substance of claims and defenses which remain to be decided. (B) Relief Prayed: A detailed statement of all the relief claimed, particularly itemizing all
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

J. 1.

Exchange and filing of trial Papers: By October 22, 2010, lead counsel who will try the case shall meet and confer with respect to

the preparation and content of the joint pretrial conference statement and shall exchange (but not file or lodge) the papers described in paragraph 2 below. 2. By November 8, 2010 (no less than 45 days before trial) counsel shall file the papers described

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elements of damages claimed as well as witnesses, documents or other evidentiary material to be presented concerning the amount of damages. (C) Undisputed Facts: A plain and concise statement of all relevant facts not reasonably disputable, as well as which facts parties will stipulate for incorporation into the trial record without the necessity of supporting testimony or exhibits. (D) Disputed Factual Issues: A plain and concise statement of all disputed factual issues which remain to be decided. (E) Agreed Statement: A statement assessing whether all or part of the action may be presented upon an agreed statement of facts. (F) Stipulations: A statement of stipulations requested or proposed for pretrial or trial purposes. (G) Witness List: A list of all witnesses to be called for trial. The parties shall submit a pagelength detailed summary of the substance of the proposed testimony of each witness, which shall also specify to which disputed fact the testimony related and an estimate of the time required for direct and

15 16 17 18 19 20 21 22 (J) Settlement: A statement summarizing the status of the parties' settlement negotiations. 23 24 25 26 27 28 No party shall be permitted to offer any witness or exhibit in its case in chief that is not disclosed in its witness or exhibit list without leave of the Court for good cause shown. 3. Motions in limine: Counsel are directed to meet and confer to resolve any evidentiary disputes cross examination of each prospective witness. (H) Exhibit List: A list of all exhibits to be offered at trial. The exhibit list shall list each proposed exhibit by its number or alphabetical letter, description and sponsoring witness. All documents shall be authenticated prior to trial. (I) Estimated Time of Trial: An estimate of the number of hours needed for the presentation of each party's case.

prior to filing motions in limine. Any motions in limine shall be filed by November 15, 2010 (no less
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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than 45 days prior to trial). Any opposition to motions in limine shall be filed November 22, 2010 (no less than 38 days prior to trial). These matters will be deemed submitted on the papers without oral argument, unless the Court orders otherwise. 4. Trial Briefs: Counsel shall file briefs setting forth the applicable legal standard, pursuant to

Ninth Circuit authority, all significant disputed issues of law, including foreseeable procedural and evidentiary issues by November 30, 2010. 5. Joint Proposed Voir Dire (Jury Trial Only): Counsel should submit a joint set of requested voir

dire to be posed by the Court by December 6, 2010. Any voir dire questions on which counsel cannot agree shall be submitted separately by December 6, 2010. Counsel will be allowed brief follow-up voir dire after the Court's questioning. 6. Joint Proposed Jury Instructions (Jury Trial Only): Jury instructions § 1.01 through § 2.02 and

§ 3.01 through § 3.15 from the Manual of Model Civil Jury Instructions for the Ninth Circuit (1998 Edition) will be given absent objection. Counsel shall submit a joint set of additional proposed jury instructions by December 6, 2010. The instructions shall be ordered in a logical sequence, together with a table of contents. Any instruction of which counsel cannot agree shall be marked "disputed," and shall be included within the jointly submitted instructions believed it should be given. Argument and authority for and against each disputed instruction shall be included as part of the joint submission, on separate sheets directly following the disputed instruction., The Court prefers that all jury instructions conform to the Manual of Model Civil Jury Instructions for the Ninth Circuit. If possible, counsel shall deliver to the Courtroom Deputy a copy of their joint proposed jury

23 24 25 26 27 28 instructions on a computer disk in WordPerfect or Word format. The disk label shall include the name of the parties, the case number and be entitled "Proposed Jury Instructions." At the close of Defendant's case in chief, the Court shall hear oral argument on the disputed jury instructions and will then render its rulings.
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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7.

Proposed Verdict Forms, Joint or Separate (Jury Trial Only): Counsel shall submit any joint

proposed verdict forms and shall submit their separate verdict forms by December 6, 2010. Whenever possible, counsel shall deliver to the Courtroom Deputy a copy of their joint proposed verdict forms on a computer disk in WordPerfect. The disk label shall include the names of the parties, the case number and be entitled "Proposed Verdict Forms." 8. Proposed Findings of Fact and Conclusions of Law (Court Trial Only): Counsel shall submit

joint proposed findings of facts by December 6, 2010. Counsel shall submit separately a copy of their 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

disputed findings of fact and conclusions of law by December 6, 2010. Whenever possible, counsel shall deliver to the Courtroom Deputy a copy of their joint findings of fact on a computer disk in WordPerfect. The disk label shall include the name of the parties, the case number and be entitled "Joint Proposed Findings of Facts."

K. 1.

Pretrial Conference: On December 16, 2010 (within 30 days prior to trial, during the Court's Thursday law and

motion calendar is held on Thursdays) the Court shall hold a pretrial conference at 10:00 a.m. in Courtroom B, 15th Floor of the Federal Building, located at 450 Golden Gate Avenue, San Francisco, California. Lead counsel who will try the case must attend the pretrial conference. The purpose of the pretrial conference is for the court to rule on any issues raised in the final pretrial conference statement, motions in limine, and to discuss the trial of the case.

L. 1.

Final Pretrial Conference: On January 6, 2011 (4 days prior to trial, during the court's Thursday law and motion calendar)

the Court shall hold a final pretrial conference to address any outstanding trial issue.

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M. 1.

Trial Date: The trial shall commence [with jury selection taking place] on January 10, 2011 (Trial

schedule: Monday through Thursday, at 1:30 p.m. to 5:00 p.m.). The trial shall last 8 days. 2. For any documents, including the deposition of witness testifying at trial, which will be shown

presented to a witness but will not be admitted into evidence, counsel shall bring the original plus three clean copies of the documents. The original document will be handed to the Court during testimony, and the clean copies of the document will be given to the witness during the examination

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N. 1. Jury Selection: The Jury Commissioner will summon 20-25 prospective jurors. The Courtroom Deputy will exhibit markers shall each contain the name and number of the case, the number or alphabetical letter of the exhibit, and blank spaces to accommodate the date admitted and the Deputy Clerk's initials. 4. On the day of trial, counsel shall bring the original premarked exhibits, a copy of the premarked and to opposing counsel. 3. Counsel shall maintain their own exhibits during trial. Exhibits are to be premarked with

exhibit tags stapled to the upper left-hand corner. If a photo or chart is being used as an exhibit, the exhibit tag should be placed on the back side of the exhibit. The Court will only admit premarked exhibits which were listed on the earlier filed exhibit list. Plaintiff shall mark the exhibits numerically; Defendant shall mark exhibits alphabetically. The

exhibits for opposing counsel and two binders which contain a copy of each side's premarked exhibits for the Court. The premarked exhibit binders are to be designated with label dividers. The premarked exhibit binders will be given to the Courtroom Deputy on the morning of the trial.

select their names at random and seat them in the courtroom in the order in which their names are called.
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 P. 16(f). O.

Voir dire will be asked of sufficient venire persons that eight (or for more lengthy trial) will remain after all peremptory challenges and an anticipated number of hardship dismissals and cause challenges have been made. The Court will then take cause challenges, and discuss hardship claims from the individual jurors, at side bar. The Court will inform the attorneys which hardship claims and cause challenges will be granted, but will not announce the dismissals until the process is completed. Each attorney may then list in writing up to three peremptory challenges. The attorneys will review each other's lists and then submit them to the clerk. Then, from the list of jurors in numerical order, the court will strike the persons with meritorious hardships, those excused for cause, and those challenged peremptorily. The Court will then call the first eight people in numerical sequence remaining. These people will be the jury. All jurors remaining at the close of the case will deliberate. There are no alternates.

Sanctions: Failure to comply with this Order is cause for sanctions under Federal Rule of Civil Procedure

Transcripts: Counsel who wants to receive a daily transcript shall contact Robert Stuart, Supervisor Court

Reporting Services, at [phone], at least ten days in advance of the trial dates. 23 24 25 26 27 28
Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

If any video or tape recording equipment or demonstrative devices will be used, a signed order will need to be obtained at least 10 days in advance of the trial date for the items to clear security.

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Q.

Questions: All questions regarding these instructions should be directed to Brenda Tolbert,

Courtroom Deputy Clerk to Judge James, at [phone]. Respectfully Submitted, Dated: February 15, 2010 THE LAW OFFICES OF MATTHEW J. WEBB /S/ Heidi Li Attorneys for all Plaintiffs Dated: February 16, 2010 SUNDERLAND & McCUTCHAN /S/ B. Edward McCutchan, Jr., Esq. Michael Maloney, Esq. Attorneys for Defendants: BOBBY RAY LEE; RAM CAPITAL CORP. dba CITYWIDE PROPERTIES, FRANCISCO CERVANTES and TERESA DIAZ

Dated: February 16, 2010

BLEDSOE, CATHCART, ET AL., TREPPA LLP /S/ L. Jay Pedersen, Esq Jeffrey V. Ta, Esq. Attorneys for Defendant FIRST FEDERAL MORTGAGE BANKERS, INC. dba CITYWIDE HOME LOANS SIGNATURE ATTESTATION

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Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

As the attorney efiling this document with the court, I hereby attest that I have on file all holograph signatures for any and all signatures indicated by a "conformed" signature (/S/) within this efiled document. Dated: February 16, 2010 THE LAW OFFICES OF MATTHEW J. WEBB By: /S/ Heidi Li Attorneys for Plaintiffs ___

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February 24, 2010 Dated: _______________

[PROPOSED] ORDER PURSUANT TO THE ABOVE STIPULATION, IT IS SO ORDERED.

_____________________________ MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE

Murillo, et al. v. Cervantes, et al. ­ (Case no. C07-02199 MEJ) ALL PLAINTIFFS AND DEFENDANTS FIRST FEDERAL MORTGAGE BANKERS, INC., RAM CAPITAL CORP., BOBBY RAY LEE, FRANCISCO CERVANTES, TERESA DIAZ'S STIPULATION AND [PROPOSED] AMENDED CASE MANAGEMENT ORDER

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