Wiley et al v. Caliber Home Loans, Inc. et al

Filing 82

PRETRIAL ORDER. Signed by Judge Jon S. Tigar on March 6, 2017. (wsn, COURT STAFF) (Filed on 3/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PETER WILEY, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No.15-cv-05584-JST
PRETRIAL ORDER

v.
CALIBER HOME LOANS, INC.,
Defendant.

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This matter is scheduled for trial on April 3, 2017. A pretrial conference is scheduled for
March 10, 2017 at 2:00 p.m.
The Standing Order for Civil Trials Before District Judge Jon S. Tigar provides that the

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parties must submit, among other things, proposed jury instructions at least five court days before

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the pretrial conference. Plaintiffs are currently in violation of this requirement. At the pretrial

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conference, Plaintiffs should explain why the Court should not strike the jury in this case as a

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sanction for failure to comply with the Court’s standing order. Fed. R. Civ. P. 16(f).

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Caliber requests that the Court instruct the jury regarding the tender rule. ECF No. 77 at

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26. Caliber cites no case in which a jury has been asked to apply the tender rule. Moreover, the

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Court has twice rejected the application of the tender rule on the facts of this case, ECF No. 54 at

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3-2; ECF No. 67 at 4, and the defenses to the tender rule are equitable ones which this Court will

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need to decide. Caliber should be prepared to discuss the facts the jury and the Court will need to

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decide at trial to determine the tender rule’s application. Given that the parties do not dispute that

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Plaintiffs did not comply with the tender rule, the most appropriate approach may be for the Court

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to decide whether Plaintiffs have proven an equitable exception.

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Caliber has also submitted a jury instruction regarding Plaintiff’s claim under California

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Business & Professions Code section 17200. ECF No. 77 at 31. There is no right to a jury trial on

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a 17200 cause of action. Hodge v. Superior Court, 145 Cal. App. 4th 278, 284 (2006); Acad. of

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Motion Picture Arts & Scis. v. GoDaddy, Inc., No. CV 10-3738-AB (CWX), 2015 WL 12697732,

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at *2 (C.D. Cal. Apr. 10, 2015). This claim will be tried to the Court.

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IT IS SO ORDERED.
Dated: March 6, 2017
______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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