Barrett v. Negrete, et al

Filing 131

ORDER Imposing Sanctions; Requiring a Proposed Pretrial Order and Setting a Trial Date: IT IS ORDERED rejecting defendants proposed pretrial order filed as an exhibit to Negretes declaration in response to the order to show cause. IT IS FURTHER ORDER ED sanctioning Negrete personally for failing to comply with the Courts Order. IT IS FURTHER ORDERED that plaintiffs unilateral proposed pretrial order is ADOPTED in part. IT IS FURTHER ORDERED that the parties shall meet and confer within 10 days to prepare a final pretrial order in conformity with this Order. The final pretrial order shall be submitted directly to the Chambers of the undersigned no later than April 30, 2009. IT IS FURTHER ORDERED that the parties shall jointly contact the chambers of Magistrate Judge Bencivengo within five days of the filing of this Order to schedule a settlement conference. Jury Trial is set for 11/3/2009 09:00 AM before Judge M. James Lorenz. Signed by Judge M. James Lorenz on 3/30/2009. (mjj) (jrl).

1 2 3 4 5 6 7 8 9 10 11 STEPHEN J. BARRETT, 12 13 v. 14 CARLOS F. NEGRETE, HULDA CLARK, dba NEW CENTURY PRESS, 15 Defendants. 16 17 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 02-CV-2210-L (CAB) ORDER IMPOSING SANCTIONS; REQUIRING A PROPOSED PRETRIAL ORDER and SETTING A TRIAL DATE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On April 7, 2008, the Court conducted a final pretrial conference in the above-captioned

18 case. The parties had filed a proposed pretrial order that the Court rejected for various reasons 19 as stated on the record. The parties were ordered to jointly prepare and submit a revised 20 proposed pretrial order ("PPTO") that would address the issues the Court raised. After some 21 discussion about when the parties would be required to submit the revisions based upon their 22 schedules, the parties agreed to a date, and therefore were ordered to file the PPTO by April 14, 23 2008. On that date, plaintiff filed a unilateral PPTP and a declaration that set forth why it had 24 not been prepared jointly. In his declaration, plaintiff's counsel, David Wilzig, recited and 25 demonstrated his several efforts to work with Carlos Negrete, who is both a defendant and 26 counsel for himself and co-defendant Hulda Clark, to timely prepare the pretrial order. Mr. 27 Wilzig's efforts were to no avail and as noted above, plaintiff filed a timely but unilaterally 28 prepared proposed pretrial order.
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At no time did defendants seek an extension of time in which to complete the revised

2 PPTO from plaintiff and/or the Court. Based on defendants' obvious lack of compliance with 3 the Court's Order that the parties resubmit a PPTO in conformity with the Court's direction, 4 defendants were ordered to show cause why sanctions should not be imposed. See Order filed 5 April 15, 2008 [doc. #123]. Defendants filed their response to the order to show cause. [doc. 6 #130] Plaintiff also filed a response in the form of counsel's declaration in support of the 7 imposition of sanctions. [doc. #128] 8 Negrete asserts several reasons for his failure to work with and jointly prepare the

9 required proposed pretrial order with opposing counsel, and failure to seek additional time from 10 the Court for complying with its scheduling order when he had agreed to the schedule just two 11 weeks before. Negrete notes that he was occupied with issues involving the care of his elderly 12 mother in Arizona. However, this does not explain why he did not seek additional time to 13 comply with the Court's Order. Nor does it explain why he did not communicate with plaintiff's 14 counsel knowing a deadline, to which he agreed, was approaching. It is both parties' obligation 15 to see that a jointly proposed pretrial order is prepared. Further, in response to the order to show 16 cause, Negrete offered his own proposed pretrial order that suffers from many of the same 17 deficiencies the Court previously noted. 18 The Court reiterates: The sole remaining claim in this action is for malicious

19 prosecution. To establish a cause of action for malicious prosecution, a party must prove that 20 the prior action (1) had been commenced at the direction of the Defendant and was pursued to a 21 legal termination in the plaintiff's favor; (2) was brought without probable cause, and (3) was 22 initiated with malice. Hillebrand, Inc. v. Insurance Company of N.A., 102 Cal. App. 4th 585, 23 599 (2002). 24 The issue of favorable termination of the prior action is a question of law, not fact, that

25 has been settled in this case in the Ninth Circuit's Order: 26 27 28 As to point number one, the district court correctly concluded that Negrete's voluntary dismissal of the underlying action constituted a termination favorable to Barrett. See MacDonald v. Joslyn, 275 Cal. App. 2d 282, 289 (1969).
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1 Barrett v. Negrete, 126 Fed. Appx. at 816. Clearly, this first element does not and cannot be 2 relitigated. Therefore, only the second and third elements need to be proven. Nevertheless, 3 Negrete again inserts the issue of res judicata and/or collateral estoppel with respect to other 4 cases between these parties into this action even though he was clearly told that the other cases 5 do not and cannot presented here. 6 Negrete has not fully acknowledged his responsibility for failing to participate in the

7 preparation of a complying pretrial order. Having reviewed the record in this case, the Court 8 finds that Negrete's conduct has been willful and in bad faith. Accordingly, sanctions are 9 appropriate. 10 Based on the foregoing, IT IS ORDERED rejecting defendants' proposed pretrial order

11 filed as an exhibit to Negrete's declaration in response to the order to show cause. IT IS 12 FURTHER ORDERED sanctioning Negrete personally for failing to comply with the Court's 13 Order. Negrete shall pay all of plaintiff's attorney's fees associated with preparing the first 14 proposed and rejected pretrial order, preparing plaintiff's unilateral pretrial order, appearing at 15 the pretrial conference, and his response to the OSC. Plaintiff shall provide an itemized 16 statement of attorney's fees for the Court's consideration not later than 10 days from the filing of 17 this Order. IT IS FURTHER ORDERED that plaintiff's unilateral proposed pretrial order is 18 ADOPTED in part. Issues not presented in the adopted pretrial order are deemed to have been 19 waived by defendants and defendants shall make no reference to those issues in the to-be20 presented proposed pretrial order. Defendants may list their witnesses and exhibits so long as 21 they are relevant to the issue of malicious prosecution only. IT IS FURTHER ORDERED that 22 the parties shall meet and confer within 10 days to prepare a final pretrial order in conformity 23 with this Order. The final pretrial order shall be submitted directly to the Chambers of the 24 undersigned no later than April 30, 2009. IT IS FURTHER ORDERED that the parties shall 25 jointly contact the chambers of Magistrate Judge Bencivengo within five days of the filing of 26 / / / 27 / / / 28 / / /
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1 this Order to schedule a settlement conference. IT IS FURTHER ORDERED that TRIAL in 2 this action will commence on November 3, 2009 at 9:00 a.m. 3 IT IS SO ORDERED.

4 DATED: March 30, 2009 5 6 7 8 COPY TO: 9 HON. CATHY ANN BENCIVENGO UNITED STATES MAGISTRATE JUDGE 10 11 ALL COUNSEL/PARTIES 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge