Appel v. Wolf

Filing 118

ORDER Granting in Part and Denying in Part 116 Defendant's Motion to Continue Pretrial Conference, Trial and Related Dates. Jury Trial set for 9/5/2023 09:00 AM before Judge Todd W. Robinson. Signed by Judge Todd W. Robinson on 7/21/23. (aas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HOWARD APPEL,

Case No.: 18-CV-814 TWR (BGS)
Plaintiff,

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v.

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ROBERT S. WOLF,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO CONTINUE
PRETRIAL CONFERENCE, TRIAL,
AND RELATED DATES

Defendant.

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(ECF No. 116)

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Presently before the Court is Defendant Robert S. Wolf’s Motion to Continue the

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Pretrial Conference, Trial, and Related Dates. (ECF No. 116.) Plaintiff Howard Appel

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neither opposes nor joins in Defendant’s request. (See id. at 1.) The Court GRANTS IN

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PART and DENIES IN PART Defendant’s Motion as follows.

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The instant action has been pending since April 27, 2018. (See ECF No. 1.) After

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the Parties completed interlocutory cross-appeals, (see ECF Nos. 31, 36, 39), the Honorable

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Bernard G. Skomal issued a Scheduling Order regulating discovery and setting various

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pretrial deadlines, including a Final Pretrial Conference before the Honorable M. James

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Lorenz the on April 11, 2022, (see ECF No. 50). The Parties then sought two extensions

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of the pretrial motions deadline, (see ECF Nos. 67, 70), which Judge Skomal granted, (see

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18-CV-814 TWR (BGS)

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ECF Nos. 69, 71). In light of those extensions, Judge Skomal reset the Final Pretrial

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Conference for May 23, 2022. (See ECF No. 76; see also ECF No. 87.)

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The Parties filed two additional joint motions seeking extensions of the deadline to

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file their pretrial motions, (see ECF Nos. 78, 82), which Judge Skomal also granted, (see

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ECF Nos. 79, 88, 90). Accordingly, Judge Skomal continued the Final Pretrial Conference

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until August 29, 2022. (See ECF No. 90.) In compliance with Judge Skomal’s Order, the

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Parties filed their respective Cross-Motions for Summary Judgment in July 2022. (See

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ECF Nos. 91–92.) Given the then-pending Cross-Motions, Judge Lorenz continued, (see

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ECF No. 99), and then vacated, (see ECF No. 103), the Final Pretrial Conference.

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After ruling on the Cross-Motions on January 31, 2023, (see ECF No. 104), Judge

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Lorenz reset the Final Pretrial Conference for July 10, 2023, (see ECF No. 105). On

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May 30, 2023, however, this action was transferred to the undersigned. (See ECF No. 113.)

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At the Parties’ request, (see ECF No. 114), the Court again continued the Final Pretrial

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Conference, (see ECF No. 115), setting the Final Pretrial Conference for Thursday,

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August 17, 2023, at 3:00 p.m., and the trial for Monday, August 28, 2023, at 9:00 a.m. (See

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id. at 1.) The Court also set corresponding deadlines for, among other things, motions in

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limine, proposed jury instructions, proposed verdict forms, and proposed voir dire

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questions. (See id. at 2.)

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Now—after this action has been pending for over five years and the pretrial

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conference has been continued numerous times—Defendant again seeks an extension of

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the Final Pretrial Conference date, as well as the trial date and related deadlines. (See

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generally ECF No. 116.) Although Defendant represents that “[c]ounsel have been

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meeting and conferring to discuss available dates if the Court agrees to move the trial date,”

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the Motion to Continue does not in fact propose any new and mutually agreeable dates for

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trial or a Final Pretrial Conference. (See id. at 2.) Rather, Defendant makes the blanket

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assertion that, “[d]ue to other pending trial dates, trial counsel for Defendant has conflicts

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with the August 28 trial date.” (See id.) Defendant then lists four trial dates, two of which

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appear to conflict with the dates set in the instant action. The first trial is from August 16
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18-CV-814 TWR (BGS)

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to 25, 2023, in the matter of Nature’s Produce v. Chubb Agribusiness, et al. (the “Nature’s

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Produce action”), and the second is from August 25 to September 1, 2023, in the matter of

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Citizens of Humanity v. Clark, et al. (the “Citizens of Humanity action”). (See id.)

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Defendant did not provide the case numbers associated with these actions, but the

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Court has independently identified the relevant case information. As for the Nature’s

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Produce action, the Court has found such a case pending before the Honorable Stephanie

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M. Bowick and Mark V. Mooney in Los Angeles County Superior Court. Nature’s

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Produce Co. v. Chubb Agribusiness, et al., No. 20STCV17267 (Cal. Sup. Ct. filed May 6,

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2020). Although the case is set for trial on August 16, 2023, none of the attorneys

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appearing on the Docket in that case are also appearing before this Court in the instant case.

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Here, Defendant Wolf is represented by Douglas A. Pettit and Caitlin M. Jones of

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Pettit, Kohn, Ingrassia & Lutz PC. 1 (See ECF No. 110.)

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neither Pettit nor Jones has entered an appearance in the Nature’s Produce action. See

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Docket, Nature’s Produce action. Indeed, it appears that Matthew Smith is the only

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attorney from Pettit, Kohn, Ingrassia & Lutz PC who has made an appearance in the

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Nature’s Produce action. See id. Thus, it does not appear that “trial counsel for Defendant”

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in the instant action has a “pending trial date” from August 16 to 25, 2023, and good cause

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does not exist to reset the Final Pretrial Conference. Consequently, the Court DENIES IN

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PART Defendant’s Motion insofar as it seeks a continuance of the Final Pretrial

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Conference and all other filing deadlines preceding that Conference.

As far as the Court can tell,

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As for the Citizens of Humanity action, the Court has confirmed that a case by that

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name is now pending before the Honorable Kenneth J. Medal in the San Diego County

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Superior Court and that Pettit is listed as counsel of record for Defendants Del Mar Law

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Nicholas A. Prukop is also listed on the Docket as counsel of record for Defendant. (See generally
Docket.) However, Prukop filed only one Joint Motion in this action, (see generally ECF No. 63), on
behalf of now-withdrawn defense counsel, Andrew A. Servais, (see generally ECF No. 86), in
contravention of Section II.f.1 of this District’s Electronic Case Filing Administrative Policies &
Procedures Manual. Because Prukop has not otherwise been involved in this action, it is unclear whether
he still represents—or, indeed, ever represented—Defendant Wolf.
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18-CV-814 TWR (BGS)

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Group, LLP; Coni Haas; and JL Sean Slattery. See Docket, Citizens of Humanity, LLC v.

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Louis Clark, et al., No. 37-2018-6337-CU-NP-CTL (Cal. Sup. Ct. filed Feb. 2, 2018). The

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Court has also confirmed that the trial is in fact set for August 25 to September 1, 2023.

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Because there is a direct conflict between the scheduled trial dates in the Citizens of

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Humanity action and the August 28, 2023 trial date in the instant action, the Court finds

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good cause for a continuance. Accordingly, the Court GRANTS IN PART Defendant’s

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Motion insofar as it seeks a continuance of the trial date and the deadlines following the

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Final Pretrial Conference.

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With regard to finding a new trial date, Defense counsel represents that they are in

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trial from September 26, 2023, to November 2, 2023, and that Defendant is unavailable

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from November 10 to 25, 2023. Additionally, Plaintiff is purportedly unavailable from

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September 25, 2023, to October 20, 2023, and from November 20 to 28, 2023. Although

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Defendants’ Motion to Continue also brings to the Court’s attention counsel’s planned

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vacation dates—including defense counsel’s planned vacation from September 5 to 19,

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2023—the Court concludes that the trial must go forward on September 5, 2023, given the

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Parties’ limited availability for the remainder of this calendar year as well as the age of this

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action, the number of past continuances, and the Court’s availability. The Court therefore

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RESETS the trial for September 5, 2023, at 9:00 a.m., in Courtroom 3A.

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In light of the foregoing, the Court AMENDS its July 5, 2023 Scheduling Order
(ECF No. 115) as follows:
Event

Deadline

File all motions in limine, including all trial-related
Daubert motions, in a single, omnibus brief not to
exceed twenty-five (25) pages.
1. File all oppositions to motions in limine, including
all trial-related Daubert motions, in a single,
omnibus brief not to exceed twenty-five (25) pages;

July 20, 2023

August 3, 2023

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2. File and lodge in Word format with the E-file Email
proposed jury instructions;
3. File and lodge in Word format with the E-file Email
proposed verdict forms and any objections thereto;
4. File proposed voir dire questions; and
5. File any additional stipulations and agreements. 2

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1. File objections to proposed jury instructions and
2. File objections to deposition designations and/or
counter-designations.

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August 17, 2023 at
3:00 p.m. in Courtroom 3A

Final Pretrial Conference.

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1. Provide exhibits to the Court, and
2. Exchange demonstrative exhibits.

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August 29, 2023

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September 5, 2023 at
9:00 a.m. in Courtroom 3A

Jury Trial.

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August 10, 2023

IT IS SO ORDERED.
Dated: July 21, 2023

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~,ii$)¼~
Honorable Todd W. Robinson
United Strntes District Judge

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The Parties SHALL COMPLY with Sections VII.B.1–3 of the undersigned’s Standing Order for
Civil Cases, which governs the preparation of proposed jury instructions, proposed voir dire questions,
proposed verdict forms, and any stipulations.
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