7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL HARNER, an individual, Case No.: 18cv01993-LL-MDD
12 Plaintiff, ORDER:
13 v. (1) SUSTAINING-IN-PART AND OVERRULING-IN-PART THE 14 USAA GENERAL INDEMNITY OBJECTIONS TO JURY COMPANY, a Texas Corporation, 15 INSTRUCTIONS and Defendant. 16 (2) STRIKING PLAINTIFF’S UNTIMELY EXHIBITS 17 [ECF Nos. 77, 84, 88] 18 19 I. INTRODUCTION 20 Before the Court are the Objections of Defendant USAA General Indemnity 21 Company, a Texas corporation (“Defendant”), to Plaintiff Paul Harner’s (“Plaintiff”) 22 Proposed Additional Jury Instructions and Trial Exhibits. ECF No. 84. After considering 23 the papers submitted, supporting documentation, and applicable law, the Court 24 SUSTAINS-IN-PART and OVERRULES-IN-PART Defendant’s Objections. 25 II. BACKGROUND 26 The Court incorporates by reference the factual and procedural history from its 27 previous order in Harner v. USAA Gen. Indem. Co., --- F. Supp. 3d ---, No. 3:18-CV- 28 01993-LL-MDD, 2022 WL 718489, at *1 (S.D. Cal. Mar. 10, 2022). 1 On March 25, 2022, the Court ordered that “[t]he following must be submitted to 2 chambers by Monday, March 28, 2022: (1) any proposed questions for the judge to 3 consider asking the panel of jurors; (2) any proposed California jury instructions; and (3) 4 any proposed special verdict form.” ECF No. 68. It also required that “by Wednesday, 5 March 30, 2022, the parties must … provide the Court with an updated exhibit and witness 6 list.” Id. On March 28, 2022, Defendant provided the Court with (1) Defendant’s proposed 7 voir dire questions; (2) joint proposed jury instructions; (3) Defendant’s special verdict 8 form; and (4) Defendant’s proposed limiting instructions. 9 On April 13, 2022, Plaintiff submitted proposed voir dire questions for the Court, 10 which were untimely. ECF No. 78. That same day, he also submitted an exhibit list, ECF 11 No. 75; witness list, ECF No. 76; and a request for judicial notice; ECF No. 77. Defendant 12 filed its proposed voir dire questions, ECF No. 79; exhibit and witness list, ECF No. 81; 13 proposed limiting jury instructions, ECF No. 82; and special verdict form, ECF No. 83. 14 Both parties also submitted a [Proposed] Joint Special Verdict Form, ECF No. 80, and 15 [Proposed] Joint Jury Instructions, ECF No. 74. 16 III. DISCUSSION 17 Defendant has objected to various trial exhibits and proposed jury instructions, 18 which the Court addresses below. 19 A. Defendant’s Objections to Plaintiff’s Proposed Trial Exhibits 20 Defendant objects to Plaintiff’s Trial Exhibit Nos. 7, 8, 18, 32, 46, 102, 106, and 21 110-113 given discovery closed more than three years ago, and those exhibits were not 22 designated in Plaintiff’s May 2021 Pre-Trial Order. ECF No. 84 at 21:4-14. Defendant 23 also advises that its counsel has not been provided with copies of these additional exhibits. 24 Id. at 2:15-20. The Court has confirmed the aforementioned exhibits were not included in 25 Plaintiff’s exhibits designated in the Pre-Trial Order. Further, at the March 25, 2022 Status 26 27 1 Unless otherwise indicated, all page number references are to the CM/ECF-generated 28 1 Conference, the Court cautioned Plaintiff against designating such exhibits: 2 THE COURT: A pretrial order is a pretrial order. The exhibit list was in there, and if you wanted to introduce 3 something, it should have been included in there. It should have 4 been discussed then. 5 That becomes the document from which everything is— everything unfolds. That is the document from which a trial is 6 prepared. 7 And I am, as I said, not going to rule anticipatorily, but I 8 can tell you that I’m not certain what you could try to bring before the Court that would convince or persuade me that 9 something at the eleventh hour is or should come into evidence. 10 ECF No. 69 at 14:6-19. 11 In addition, as raised by the defense, discovery closed three years ago, and Defendant 12 has prepared for trial without the benefit of these exhibits. To date, Defendant has still not 13 received these exhibits from Plaintiff. Thus, Defendant’s objections to these new exhibits 14 are SUSTAINED. Plaintiff’s Trial Exhibit Nos. 7, 8, 18, 32, 46, 102, 106, and 110-113 15 will not be admitted at trial due to Plaintiff’s failure to include them in the Pre-Trial Order. 16 B. Defendant’s Objections to Plaintiff’s Proposed Jury Instructions 17 Defendant objects to either Plaintiff’s objection to or attempt to include the 18 following proposed jury instructions: 19 1. CACI 2335 – Bad Faith Advice of Counsel 20 The parties’ Proposed Joint Jury Instructions filed with the Court on April 13, 2022 21 include “CACI 2335. Bad Faith Advice of Counsel,” but Plaintiff now objects to the 22 inclusion of this instruction. ECF No. 74 at 4. CACI 2335 was also included in the parties’ 23 proposed CACI Instructions on May 19, 2021. See Pre-Trial Order, ECF No. 39 (“Pre- 24 Trial Order”) at 42. Defendant objects to Plaintiff’s belated objection to this instruction, 25 which Defendant contends is relevant and necessary to its affirmative defenses, given the 26 parties originally agreed to its inclusion in the Pre-Trial Order. ECF No. 84 at 3:17-22. 27 Defendant advises that Plaintiff objects to this instruction on the basis that the Court’s order 28 on the parties’ motions in limine makes this instruction irrelevant. Id. at 3:10-13. 1 This instruction provides as follows: 2 2335. Bad Faith - Advice of Counsel [Name of defendant] did not breach the obligation of good faith 3 and fair dealing if it reasonably relied on the advice of its lawyer. 4 [Name of defendant]’s reliance was reasonable if: 1. [Name of defendant] acted in reliance on the opinion and 5 advice of its lawyer; 6 2. The lawyer’s advice was based on full disclosure by [name of defendant] of all relevant facts that it knew, or could have 7 discovered with reasonable effort; 8 3. [Name of defendant] reasonably believed the advice of the lawyer was correct; [and] 9 4. In relying on its lawyer’s advice, [name of defendant] gave at 10 least as much consideration to [name of plaintiff]’s interest as it gave its own interest; [and] 11 [5. [Name of defendant] was willing to reconsider and act 12 accordingly when it determined that the lawyer’s advice was incorrect.] 13 14 Plaintiff’s objection to including this instruction is OVERRULED. 15 2. CACI 430 – Substantial Factor 16 Plaintiff’s April 13, 2022 Proposed Jury Instructions seek to include the “CACI 430. 17 Causation: Substantial Factor” instruction. ECF No. 74-1 at 2. This instruction was not 18 included in the parties’ proposed CACI Instructions. See generally Pre-Trial Order. 19 Defendant objects to this instruction on the basis that it was not included in the Pre-Trial 20 Order, is unnecessary, irrelevant, and risks confusion of the issues to be considered by the 21 jury. ECF No. 84 at 4:3-11. This instruction provides as follows: 22 1. CACI 430. Causation: Substantial Factor A substantial factor in causing harm is a factor that a reasonable 23 person would consider to have contributed to the harm. It must 24 be more than a remote or trivial factor. It does not have to be the only cause of the harm. 25 26 Although this instruction was not included in the Pre-Trial Order, the Court finds that given 27 “substantial factor” is used in CACI 2331, which sets out some of the elements for proving 28 breach of the implied obligation of good faith and fair dealing, this instruction would assist 1 the jury and should be included. Thus, Defendant’s objection to this instruction is 2 OVERRULED. 3 3. CACI 2350 – Damages for Bad Faith 4 Plaintiff’s April 13, 2022 Proposed Jury Instructions seek to include the “CACI 5 2350. Damages for Bad Faith” instruction. ECF No. 74-1 at 5. CACI 2350 was included 6 in the parties’ proposed CACI Instructions. See Pre-Trial Order at 42.
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7 UNITED STATES DISTRICT COURT 8 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL HARNER, an individual, Case No.: 18cv01993-LL-MDD
12 Plaintiff, ORDER:
13 v. (1) SUSTAINING-IN-PART AND OVERRULING-IN-PART THE 14 USAA GENERAL INDEMNITY OBJECTIONS TO JURY COMPANY, a Texas Corporation, 15 INSTRUCTIONS and Defendant. 16 (2) STRIKING PLAINTIFF’S UNTIMELY EXHIBITS 17 [ECF Nos. 77, 84, 88] 18 19 I. INTRODUCTION 20 Before the Court are the Objections of Defendant USAA General Indemnity 21 Company, a Texas corporation (“Defendant”), to Plaintiff Paul Harner’s (“Plaintiff”) 22 Proposed Additional Jury Instructions and Trial Exhibits. ECF No. 84. After considering 23 the papers submitted, supporting documentation, and applicable law, the Court 24 SUSTAINS-IN-PART and OVERRULES-IN-PART Defendant’s Objections. 25 II. BACKGROUND 26 The Court incorporates by reference the factual and procedural history from its 27 previous order in Harner v. USAA Gen. Indem. Co., --- F. Supp. 3d ---, No. 3:18-CV- 28 01993-LL-MDD, 2022 WL 718489, at *1 (S.D. Cal. Mar. 10, 2022). 1 On March 25, 2022, the Court ordered that “[t]he following must be submitted to 2 chambers by Monday, March 28, 2022: (1) any proposed questions for the judge to 3 consider asking the panel of jurors; (2) any proposed California jury instructions; and (3) 4 any proposed special verdict form.” ECF No. 68. It also required that “by Wednesday, 5 March 30, 2022, the parties must … provide the Court with an updated exhibit and witness 6 list.” Id. On March 28, 2022, Defendant provided the Court with (1) Defendant’s proposed 7 voir dire questions; (2) joint proposed jury instructions; (3) Defendant’s special verdict 8 form; and (4) Defendant’s proposed limiting instructions. 9 On April 13, 2022, Plaintiff submitted proposed voir dire questions for the Court, 10 which were untimely. ECF No. 78. That same day, he also submitted an exhibit list, ECF 11 No. 75; witness list, ECF No. 76; and a request for judicial notice; ECF No. 77. Defendant 12 filed its proposed voir dire questions, ECF No. 79; exhibit and witness list, ECF No. 81; 13 proposed limiting jury instructions, ECF No. 82; and special verdict form, ECF No. 83. 14 Both parties also submitted a [Proposed] Joint Special Verdict Form, ECF No. 80, and 15 [Proposed] Joint Jury Instructions, ECF No. 74. 16 III. DISCUSSION 17 Defendant has objected to various trial exhibits and proposed jury instructions, 18 which the Court addresses below. 19 A. Defendant’s Objections to Plaintiff’s Proposed Trial Exhibits 20 Defendant objects to Plaintiff’s Trial Exhibit Nos. 7, 8, 18, 32, 46, 102, 106, and 21 110-113 given discovery closed more than three years ago, and those exhibits were not 22 designated in Plaintiff’s May 2021 Pre-Trial Order. ECF No. 84 at 21:4-14. Defendant 23 also advises that its counsel has not been provided with copies of these additional exhibits. 24 Id. at 2:15-20. The Court has confirmed the aforementioned exhibits were not included in 25 Plaintiff’s exhibits designated in the Pre-Trial Order. Further, at the March 25, 2022 Status 26 27 1 Unless otherwise indicated, all page number references are to the CM/ECF-generated 28 1 Conference, the Court cautioned Plaintiff against designating such exhibits: 2 THE COURT: A pretrial order is a pretrial order. The exhibit list was in there, and if you wanted to introduce 3 something, it should have been included in there. It should have 4 been discussed then. 5 That becomes the document from which everything is— everything unfolds. That is the document from which a trial is 6 prepared. 7 And I am, as I said, not going to rule anticipatorily, but I 8 can tell you that I’m not certain what you could try to bring before the Court that would convince or persuade me that 9 something at the eleventh hour is or should come into evidence. 10 ECF No. 69 at 14:6-19. 11 In addition, as raised by the defense, discovery closed three years ago, and Defendant 12 has prepared for trial without the benefit of these exhibits. To date, Defendant has still not 13 received these exhibits from Plaintiff. Thus, Defendant’s objections to these new exhibits 14 are SUSTAINED. Plaintiff’s Trial Exhibit Nos. 7, 8, 18, 32, 46, 102, 106, and 110-113 15 will not be admitted at trial due to Plaintiff’s failure to include them in the Pre-Trial Order. 16 B. Defendant’s Objections to Plaintiff’s Proposed Jury Instructions 17 Defendant objects to either Plaintiff’s objection to or attempt to include the 18 following proposed jury instructions: 19 1. CACI 2335 – Bad Faith Advice of Counsel 20 The parties’ Proposed Joint Jury Instructions filed with the Court on April 13, 2022 21 include “CACI 2335. Bad Faith Advice of Counsel,” but Plaintiff now objects to the 22 inclusion of this instruction. ECF No. 74 at 4. CACI 2335 was also included in the parties’ 23 proposed CACI Instructions on May 19, 2021. See Pre-Trial Order, ECF No. 39 (“Pre- 24 Trial Order”) at 42. Defendant objects to Plaintiff’s belated objection to this instruction, 25 which Defendant contends is relevant and necessary to its affirmative defenses, given the 26 parties originally agreed to its inclusion in the Pre-Trial Order. ECF No. 84 at 3:17-22. 27 Defendant advises that Plaintiff objects to this instruction on the basis that the Court’s order 28 on the parties’ motions in limine makes this instruction irrelevant. Id. at 3:10-13. 1 This instruction provides as follows: 2 2335. Bad Faith - Advice of Counsel [Name of defendant] did not breach the obligation of good faith 3 and fair dealing if it reasonably relied on the advice of its lawyer. 4 [Name of defendant]’s reliance was reasonable if: 1. [Name of defendant] acted in reliance on the opinion and 5 advice of its lawyer; 6 2. The lawyer’s advice was based on full disclosure by [name of defendant] of all relevant facts that it knew, or could have 7 discovered with reasonable effort; 8 3. [Name of defendant] reasonably believed the advice of the lawyer was correct; [and] 9 4. In relying on its lawyer’s advice, [name of defendant] gave at 10 least as much consideration to [name of plaintiff]’s interest as it gave its own interest; [and] 11 [5. [Name of defendant] was willing to reconsider and act 12 accordingly when it determined that the lawyer’s advice was incorrect.] 13 14 Plaintiff’s objection to including this instruction is OVERRULED. 15 2. CACI 430 – Substantial Factor 16 Plaintiff’s April 13, 2022 Proposed Jury Instructions seek to include the “CACI 430. 17 Causation: Substantial Factor” instruction. ECF No. 74-1 at 2. This instruction was not 18 included in the parties’ proposed CACI Instructions. See generally Pre-Trial Order. 19 Defendant objects to this instruction on the basis that it was not included in the Pre-Trial 20 Order, is unnecessary, irrelevant, and risks confusion of the issues to be considered by the 21 jury. ECF No. 84 at 4:3-11. This instruction provides as follows: 22 1. CACI 430. Causation: Substantial Factor A substantial factor in causing harm is a factor that a reasonable 23 person would consider to have contributed to the harm. It must 24 be more than a remote or trivial factor. It does not have to be the only cause of the harm. 25 26 Although this instruction was not included in the Pre-Trial Order, the Court finds that given 27 “substantial factor” is used in CACI 2331, which sets out some of the elements for proving 28 breach of the implied obligation of good faith and fair dealing, this instruction would assist 1 the jury and should be included. Thus, Defendant’s objection to this instruction is 2 OVERRULED. 3 3. CACI 2350 – Damages for Bad Faith 4 Plaintiff’s April 13, 2022 Proposed Jury Instructions seek to include the “CACI 5 2350. Damages for Bad Faith” instruction. ECF No. 74-1 at 5. CACI 2350 was included 6 in the parties’ proposed CACI Instructions. See Pre-Trial Order at 42. However, 7 Defendant now objects to the phrasing of this instruction, “seeking to include an itemized 8 description of his damages including ‘attorneys fees and costs,’ reimbursement for interest 9 paid on his credit card balance,’ ‘7% interest on $252,979[,]’ and ‘prejudgment interest.’” 10 ECF No. 84 at 4:21-24. The Court finds Plaintiff’s proposed revisions unnecessary. Thus, 11 the Court will issue CACI 2350 as originally proposed by the parties, and Defendant’s 12 objections are SUSTAINED. 13 4. CACI 3905A – Physical Pain, Mental Suffering, Emotional Distress Plaintiff’s April 13, 2022 Proposed Jury Instructions seeks to include the “CACI 14 3950. Physical Pain, Mental Suffering, Emotional Distress” instruction. ECF No. 74-1 at 15 5. CACI 3905A was not included in the parties’ original proposed CACI Instructions. See 16 generally Pre-Trial Order. Thus, Defendant objects to this instruction given it was not 17 included in the Pre-Trial Order. ECF No. 84 at 6:2-7. Defendant also argues that it “is 18 unnecessary, irrelevant, and risks confusion of the issues to be considered by the jury.” Id. 19 at 6:8-10. 20 Plaintiff’s proposed instruction provides as follows: 21 2. CACI 3905A. Mental Suffering and Emotional Distress (Non- 22 Economic Damages) 23 Mental suffering, loss of enjoyment of life, inconvenience, 24 anxiety, worry, humiliation, emotional distress, nervousness, indignity, embarrassment, apprehension, and ordeal constitute 25 non-economic damages. 26 No fixed standard exists for deciding the amount of these non-economic damages. You must use your judgment to decide 27 a reasonable amount based on the evidence and your common 28 sense. 1 To recover for future mental suffering, loss of enjoyment of life, inconvenience, anxiety, worry, humiliation, emotional 2 distress, nervousness, indignity, embarrassment, apprehension, and ordeal, Paul Harner must prove that he is reasonably certain 3 to suffer that harm. 4 For future mental suffering, loss of enjoyment of life, 5 inconvenience, anxiety, worry, humiliation, emotional distress, nervousness, indignity, embarrassment, apprehension, and 6 ordeal, determine the amount in current dollars paid at the time 7 of judgment that will compensate Mr. Harner for future mental suffering, loss of enjoyment of life, inconvenience, anxiety, 8 worry, humiliation, emotional distress, nervousness, indignity, 9 embarrassment, apprehension, and ordeal. 10 Defendant admits that CACI 2350 was included in the parties’ proposed CACI 11 Instructions, see Pre-Trial Order at 42, and that instruction allows for the recovery of 12 damages for mental suffering and emotional distress. CACI 3905A merely elaborates on 13 what is required to prove a category of damages Plaintiff already sought and will assist the 14 jury. Thus, the Court OVERRULES Defendant’s objection to CACI 3905A. 15 5. CACI 3935 – Prejudgment Interest 16 Plaintiff’s April 13, 2022 Proposed Jury Instruction seeks to include the “CACI 17 3935. Prejudgment Interest (Cal. Civ. Code § 3288)” instruction. ECF No. 74-1 at 4. CACI 18 3935 was not included in the parties’ proposed CACI Instructions. See generally Pre-Trial 19 Order. Defendant also objects to this instruction on the basis that this instruction was not 20 included in the Pre-Trial Order, and Plaintiff did not propose it until the day jury 21 instructions were due (i.e., April 13, 2022). ECF No. 84 at 6:17-19. As with the other 22 instructions, Defendant argues that it “is unnecessary, irrelevant, and risks confusion of the 23 issues to be considered by the jury.” Id. at 6:25-26. 24 3. CACI 3935. Prejudgment Interest (Cal. Civ. Code § 3288) If you decide that Mr. Harner is entitled to recover 25 damages for past economic loss in one or more of the categories 26 of damages that he claims, then you must decide whether he should also receive prejudgment interest on each item of loss in 27 those categories. Prejudgment interest is the amount of interest 28 the law provides to a plaintiff to compensate for the loss of the 1 ability to use the funds. If prejudgment interest is awarded, it is computed from the date on which each loss was incurred until 2 the date on which you sign your verdict. Whether Mr. Harner should receive an award of 3 prejudgment interest on all, some, or none of any past economic 4 damages that you may award is within your discretion. If you award these damages to Mr. Harner, you will be asked to address 5 prejudgment interest in the special verdict form. 6 Section 3288 of California’s Civil Code provides: “In an action for the breach of an 7 obligation not arising from contract, and in every case of oppression, fraud, or malice, 8 interest may be given, in the discretion of the jury.” Thus, Plaintiff may recover 9 prejudgment interest in this case as a matter of law. While the Court agrees that this 10 instruction should have been included in the Pre-Trial Order, it also finds an instruction on 11 this item of recoverable damages appropriate. Thus, the Court OVERRULES Defendant’s 12 objection to CACI 3925. 13 6. Plaintiff’s Supplemental Instruction No. 1 Regarding “Hindsight” 14 Plaintiff’s April 13, 2022 Proposed Jury Instructions also seeks to include an 15 instruction on “hindsight.” ECF No. 74-1 at 7. Plaintiff’s Proposed Supplemental 16 Instruction No. 1 was not included in the parties’ proposed CACI Instructions. See 17 generally Pre-Trial Order. Defendant objects to Plaintiff proposing this supplemental 18 instruction as having been proposed on April 13, 2022 as well as on the basis that it is 19 overbroad, confusing, and unduly prejudicial to Defendant. ECF No. 84 at 7:7-15. 20 Defendant also argues that it does not intend to argue its pre-UIM arbitration settlement 21 offers were reasonable based on evidence, like expert opinions, that did not exist at the 22 time the offers were made, meaning this instruction is unnecessary. Id. at 7:21-26. 23 Plaintiff’s proposed supplemental instruction is as follow: 24 The reasonable or unreasonable action by the [insurer] must be measured as of the time it was confronted with the factual 25 situation to which it was called upon to respond. The evaluation 26 cannot fairly be made in the light of subsequent events. 27 At this juncture, the Court takes this objection under submission and will make its 28 ruling at an appropriate time before jury instructions are provided to the jury. CONCLUSION 2 For the above reasons, the Court ORDERS as follows: 3 1. Defendant’s objections Plaintiffs Trial Exhibit Nos. 7, 8, 18, 32, 46, 102, 106, 4 110-113 are SUSTAINED. Those exhibits will not be admitted at trial due to 5 || Plaintiffs failure to include them in the Pre-Trial Order. 6 2. Plaintiff's objection to including CACI 2335 is OVERRULED without 7 || prejudice to renewal at trial. 8 3. Defendant’s objection to CACI 430 is OVERRULED. 9 4. Defendant’s objection to Plaintiff's amendments to CACI 2350 is 10 |} OVERRULED. 11 5. Defendant’s objection to CACI 3905A is OVERRULED. 12 6. Defendant’s objection to CACI 3925 is OVERRULED. 13 7. The Court’s ruling on Defendant’s objection to Plaintiffs Proposed 14 ||Supplemental Instruction No. 1 is continued while the Court takes the matter under 15 |} submission. 16 8. The parties shall not submit any further filings with the Court. Any 17 || outstanding issues may be raised on the first day of trial. 18 IT IS SO ORDERED. fp DATED: □ April 29, 2022 0 HON. LINDA LOPEZ United States District Judge
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