Doublevision Entertainment, LLC v. Navigators Specialty Insurance Company et al

Filing 176

AMENDED FINAL PRETRIAL ORDER amending 175 . Signed by Judge Alsup on 7/2/2015. (whalc1, COURT STAFF) (Filed on 7/2/2015).

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

11
For the Northern District of California

United States District Court

10

12

DOUBLEVISION ENTERTAINMENT, LLC,
a Tennessee limited liability company, as
assignee of Commercial Escrow Services, Inc.,
a California corporation, and Antoinette
Hardstone, an individual,

13
14
15
16
17

No. C 14-02848 WHA

Plaintiff,
v.
NAVIGATORS SPECIALTY INSURANCE
COMPANY, a New York corporation THE
NAVIGATORS GROUP, INC., a New York
corporation, and DOES 1 through 50, inclusive,

AMENDED FINAL
PRETRIAL ORDER

Defendants.

18

/

19
20
21
22

FOR GOOD CAUSE and after a final pretrial conference, the following constitutes the
final pretrial order and rulings on motions in limine:
1.

This case shall go to a JURY TRIAL on JULY 13, 2015 AT 7:30 A.M., and shall

23

continue until completed on the schedule discussed at the conference. The issues to be tried

24

shall be those set forth in the joint proposed pretrial order except to the extent modified by order

25

in limine and excluding the issue of Navigators’ alleged failure to investigate, which was

26

resolved in the order on the parties’ motions for summary judgment. This final pretrial order

27

supersedes all the complaint, answer and any counterclaims, cross-claims or third-party

28

complaints, i.e., only the issues expressly identified for trial remain in the case.
2.

Rulings on the motions in limine shall be summarized later in this order.

1

3.

Except for good cause, each party is limited to the witnesses and exhibits

2

disclosed in the joint proposed final pretrial order less any excluded or limited by an order

3

in limine. Materials or witnesses used solely for impeachment need not be disclosed and may

4

be used, subject to the rules of evidence.

5
6

4.

The stipulations of facts set forth in the parties’ joint proposed final pretrial order

are approved and binding on all parties.

7

5.

A jury of EIGHT PERSONS shall be used.

8

6.

Each side shall have TWELVE HOURS to examine witnesses (counting direct

9

examination, cross-examination, re-direct examination, re-cross examination, etc.). Each side
shall have FORTY-FIVE MINUTES for opening statements, which shall not count against the

11
For the Northern District of California

United States District Court

10

limit. The time allotted for closing statements shall be determined towards the end of the trial

12

and shall not count against the limit. If, despite being efficient, non-duplicative, and

13

non-argumentative in the use of the allotted time, one side runs out of time and it would be a

14

miscarriage of justice to hold that side to the limit, then more time will be allotted.

15

7.

The parties shall follow the Court’s current Guidelines for Trial and

16

Final Pretrial Conference, separately provided and available on the Internet at

17

http://www.cand.uscourts.gov, which guidelines are incorporated as part of this order.

18

8.

The parties shall prepare a joint timeline of key events to be displayed for the

19

jury throughout the trial. The timeline must be printed on a poster-board and with text large

20

enough for the jury to easily read from across the courtroom.

21
22
23
24
25
26

9.

By JULY 9 AT NOON, the parties shall file a joint agreed-upon statement (not to

exceed one page) summarizing the case for voir dire.
10.

By JULY 9 AT NOON, the parties shall lodge a chamber’s copy of a joint binder

with the top ten documents from each side.
11.

The supplemental briefs requested herein shall be filed by JULY 6 AT NOON.

Responses shall be filed by JULY 8 AT NOON.

27
28
2

1
2

RULINGS ON MOTIONS IN LIMINE
DEFENDANT’S MOTIONS IN LIMINE

3

1.

4

Navigators’ motion is DENIED without prejudice to a Rule 50 motion.

5

2.

6

The issue of Brandt fees will be resolved by the judge, so evidence related solely to

7

MOTION TO LIMIT THE SCOPE OF COMPENSABLE DAMAGES.

MOTION TO PRECLUDE EVIDENCE OF BRANDT FEES.

Brandt fees is irrelevant for the purpose of this jury trial.

Doublevision should have designated Attorney Ryan Lapine as a witness long before the

10

close of fact discovery. Attorney Lapine may not testify as a witness in Doublevision’s case-in-

11
For the Northern District of California

3.

9

United States District Court

8

chief. The issue of whether Attorney Lapine may testify as a rebuttal witness will be held in

12

abeyance and determined based on how the trial develops.

13

4.

MOTION TO PRECLUDE THE TESTIMONY OF ATTORNEY RYAN LAPINE.

MOTION TO PRECLUDE OR LIMIT THE TESTIMONY OF DOUBLEVISION’S
INSURANCE STANDARD-OF-CARE EXPERT, STEPHEN PRATER.

14
As stated at the hearing, all expert witnesses will be limited to the four corners of their
15
expert reports on direct examination. If an expert’s report states the expert “expects to testify
16
to” or “may opine on” a topic, the expert’s testimony on that topic will be limited to the actual
17
details disclosed within that expert’s report. Testimony that reflects an expert’s understanding
18
of the facts is admissible, but it must be couched in language explaining the basis of that
19
understanding such as “based on the assumption.” This applies to both sides.
20
As to Stephen Prater’s testimony, Prater shall not be permitted to describe subjective,
21
mental conclusions such as “bad faith” or “good faith,” although he may describe conduct as
22
“reasonable” or “unreasonable.” His description of a settlement offer as a “lowball” offer is
23
permitted. Prater may not offer testimony as to legal conclusions, but some very basic legal
24
propositions may be used. Prater may offer his insurance tutorial as described in Exhibit D of
25
his report, subject to the aforementioned limitations, except for the following, which shall not
26
be admitted: (1) section I.D, (2) any mention of insureds as “vulnerable,” (3) section II.A, and
27
(4) section II.B parts 6, 8, 9, and 10. Additionally, testimony pertaining to “lack of
28
3

1

information” as described in section II.B.5 must be modified to describe an “unreasonable lack

2

of information.”

3

5.

MOTION TO LIMIT THE TESTIMONY OF DOUBLEVISION’S LEGAL EXPERT,
MARK FREDKIN.

4
The same general limitations on expert witnesses discussed above apply to the testimony
5
of Mark Fredkin. Any issues relating to testimony about the conduct of Long & Levit will be
6
cured with jury instructions.
7
6.

MOTION TO PRECLUDE EVIDENCE RELATING TO MEDIATION.

8
A January 2015 order in this matter stated, “California’s mediation privilege protects
9
oral and written statements and communications made from December 5 to 15 in 2011 as well
10
mediation” (Dkt. 43). By JULY 6 AT NOON, Doublevision shall submit a witness-by-witness list
For the Northern District of California

United States District Court

as statements and communications specifically prepared for the purpose of or pursuant to a
11
12
of statements relating to the mediation that Doublevision believes should be admissible.
13
Navigators may respond by JULY 8 AT NOON. This motion will be held in abeyance, pending
14
receipt of those briefs.
15
16
PLAINTIFF’S MOTIONS IN LIMINE
17
1.

MOTION TO EXCLUDE CHARACTER EVIDENCE.

18
Doublevision seeks to exclude evidence of Antoinette Hardstone’s agreement to a
19
prohibition from the escrow industry in her settlement with the Department of Corporations and
20
evidence of administrative complaints filed against her. This motion is DENIED without
21
prejudice to individual items of evidence.
22
2.

MOTION TO EXCLUDE EVIDENCE OF OTHER CLAIMS.

23
Navigators agrees that evidence of the Vaught matter is irrelevant. Evidence of claims
24
that were tendered under a policy other than the one applicable to the underlying matter shall be
25
excluded. Navigators may offer evidence of claims which had been tendered under that policy,
26
which potentially could have been filed as lawsuits.
27
28
4

1

3.

MOTION TO PRECLUDE EVIDENCE RELATED TO THE MEASURE OF DAMAGES
IN THE UNDERLYING MATTER.

2
Doublevision shall submit a supplemental brief on the preclusion effect of an adverse
3
judgment of an insured on its insurer when the insurer did not provide a defense through final
4
judgment, such as by rejecting defense at the outset or subsequently tendering policy limits and
5
withdrawing from defense. Navigators shall reply by JULY 8 AT NOON. This motion will be
6
held in abeyance pending supplemental briefing.
7
4.

MOTION TO ESTABLISH THE VALUE OF THE UNDERLYING CLAIM.

8
This motion will be held in abeyance pending the aforementioned supplemental briefing.
9
10

For the Northern District of California

United States District Court

IT IS SO ORDERED.
11
12
Dated: July 2, 2015.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5