Areas USA SJC, LLC v. Mission San Jose Airport, LLC et al

Filing 181

FURTHER PRETRIAL ORDER. Signed by Magistrate Judge Howard R. Lloyd on December 28, 2012. (hrllc1, COURT STAFF) (Filed on 12/28/2012)

*E-FILED: December 28, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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AREAS USA SJC, LLC,
Plaintiff,

For the Northern District of California

United States District Court

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No. C11-04487 HRL
FURTHER PRETRIAL ORDER

v.
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[Dkts. 131, 135, 137, 141, 143, 145, 175]

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MISSION SAN JOSE AIRPORT, LLC; ET
AL.,

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Defendants.
____________________________________/

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The suit brought by Areas USA SJC, LLC (“Areas”) against Mission San Jose Airport, LLC

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and Mission Yogurt, Inc. (collectively “Mission”) is set for Jury Trial on January 7, 2013 at 9:00

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a.m. The Court held a Pretrial Conference on December 18, 2012 and has scheduled a continuation

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of that Pretrial Conference for January 3, 2013 at 10:00 a.m. in Courtroom 2, 5th Floor, San Jose.

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The transcript of both sessions of the Pretrial Conference will serve as the Pretrial Order. 1

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1. Adverse Inference Instruction

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At the December 18 Pretrial Conference the Court ruled on the motions in limine filed by the

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parties. One such ruling was that it would give an adverse inference jury instruction based on

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Mission’s Motion in Limine concerning Areas’ noncompliance with discovery requests. 2 (Dkt. 137).

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The Court intends to give the following adverse inference jury instruction:

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Counsel may obtain a recording of the December 18 Conference (as well as the upcoming January 3 Continuation) by
contacting the Courtroom Deputy.
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After the Court ruled from the bench on this motion, Areas filed (without seeking Court approval) a brief styled
“Further Opposition,” which was an attempt to induce the Court to change its mind. The filing was improper, and the
attempt fails.

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For the Northern District of California

United States District Court

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Before a case goes to trial, each party is entitled under the law to request from another party
documents that are relevant to any party’s claim or defense. In this case, Mission repeatedly
asked Areas to produce any and all documents referring to or discussing Areas’ evaluation of
whether or not to build out the original TA-21 space itself, and any and all documents
referring to or reflecting the reasons why it chose not to build out the space. Areas
repeatedly denied that it ever had any intention to build out the original TA-21 space and
denied that it had any documents referring to or discussing any such intention or evaluation
of the space. However, the testimony of one of Areas’ officers, the testimony of one of
Areas’ former officers, the testimony of a third party who was present when such discussions
took place, plus at least one Areas document produced by a third party, have satisfied the
Court that Areas withheld information and documents that it should have produced. The
jury may infer that Areas’ refusal was because it felt that disclosure would be harmful to its
case against Mission.
2. Exhibits
At the December 18 Pretrial Conference, the Court did not rule on the parties’ objections to
proposed exhibits. The Court has since reviewed Areas’ objections to Mission’s exhibit list, the
exhibits themselves, and Mission’s trial exhibit list.
The Court OVERRULES Areas’ objections to the following exhibits: 27, 45, 47, 48, 57, 6568, 71, 73-75, 78, 81-84, 88, 91, 92, 95, 109, 113, 118, 124, 125, 156, 250-258, 261-263, 267, 268,
271, 272, 274, 284, 286-318, 320, 322, 325, 331, 332, 335, 341, 342. The Court finds these exhibits
to be relevant and either admissible for non-hearsay purposes, or hearsay but subject to one of the
hearsay exceptions. The Court rejects Areas’ remaining objections.
The Court SUSTAINS Areas’ objection to exhibits 34, 50, 106, 259, and 260 because these
exhibits are either irrelevant or inadmissible hearsay. Consistent with the Court’s ruling on Areas’
Motion in Limine #4, exhibits 344-346 may not be introduced until and unless there is a jury verdict
against Areas for punitive damages.
The Court has also reviewed Mission’s objections to Areas’ list of trial exhibits, the exhibits
themselves, and Areas’ trial exhibit list. The Court OVERRULES Mission’s objections to the
following exhibits: 3, 16, 19, 21, 22, 33, 55, 61, 70, 76, 112, 128, 149, 172, 173, 175, 176-178. The
Court finds these exhibits to be relevant and either admissible for non-hearsay purposes, or hearsay
but subject to one of the hearsay exceptions. The Court rejects Mission’s remaining objections.
The Court SUSTAINS Mission’s objections to the following exhibits: 23, 37, 49, 53, 54,
127, 146, 160, 161, 162, 163-170, 174. The Court finds these exhibits to be either irrelevant,

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inadmissible hearsay, or more prejudicial than probative. According to Mission, Areas has agreed

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to withdraw exhibits 144, 145, 151, and 154.

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IT IS SO ORDERED.
Dated: December 28, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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C11-04487 HRL Order will be electronically mailed to:

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Karin Bohmholdt
Scott Bertzyk
Denise Mayo
Daniel Rockey
Meryl Macklin

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[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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