S.J. v. Albany Unified School District

• Court: District Court, N.D. California
• Decided: August 1, 2023
• Docket: 4:20-cv-06414
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 S.J., Case No. 20-cv-06414-KAW

8 Plaintiff, PRETRIAL CONFERENCE 9 v. TENTATIVE RULINGS

10 ALBANY UNIFIED SCHOOL DISTRICT, et al., 11 Defendants. 12 13 I. MOTIONS IN LIMINE 14 Relevant evidence is any evidence that has any tendency to make a fact that is of 15 consequence to the determination of the action more or less probable than it would be without the 16 evidence. Fed. R. Evid. 401. The Court has discretion to “exclude relevant evidence if its 17 probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the 18 issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 19 evidence.” 20 21 MIL Motion Ruling Reason/Explanation 22 Defendant does not oppose. To the Limit Defendant’s 23 expert testimony to extent Plaintiff seeks to limit Dr. Schwartzberg’s opinion to seven 24 P1 opinions expressed in GRANT specific passages of his deposition depositions and expert testimony, however, Plaintiff’s request 25 reports is premature and unsupported. 26 Preclude Defendant Defendant does not oppose. As further from producing discussed re Defendant’s MIL No. 3, 27 P2 evidence regarding GRANT evidence about S.B. must be excluded 1 Preclude Defendant from introducing 2 P3 exhibits not disclosed GRANT Defendant does not oppose. on its exhibit list. 3 The five individuals designated as 4 witnesses were identified by Plaintiff in 5 his expert disclosures, and Defendant’s expert disclosure stated an intent to call 6 Preclude Defendant expert witnesses designated by other from calling previously parties in this action. Additionally, their 7 unidentified inclusion appears harmless. Defendant 8 P4 in wd iti nvi ed su sea sl ;s pa rs e e cx lup der et PG ARR TA ;N DT E I NN Y may elicit exp iner dt i vte is dt uim alo s.n y from these IN PART 9 Defendant from calling Defendant may not call Lauren witnesses not timely Halperin, Amy Evoy, and Linda Bishop 10 disclosed because the witnesses were not timely 11 disclosed. The mere fact that these individuals are Plaintiff’s teachers does 12 not provide notice that they may be trial witnesses. 13 Evidence of policies, regulations, and 14 Exclude evidence of procedures may be used to inform what Defendant’s policies, 15 D1 regulations, and DENY is required by an existing duty of care. See Crusader Ins. Co. v. Scottsdale Ins. procedures 16 Co., 54 Cal. App. 4th 121, 125 (1997). 17 Exclude all “out of Statements regarding what occurred court” statements 18 could be admissible under the excited D2 regarding the DENY utterance or residual exceptions to the 19 November 2019 rule against hearsay. incident 20 Other incidents of bullying and 21 harassment do not automatically demonstrate foreseeability of Plaintiff’s 22 Exclude evidence of injury; the context of such bullying and GRANT 23 D3 prior bullying (qualified) harassment must be similar enough to incidents provide notice, i.e., a lack of supervision 24 in the classroom that resulted in bullying and harassment or prior bullying by one 25 of S.J.’s assailants. 26 Exclude arguments Defendant’s motion in limine is 27 D4 ba Rse ud le o ”n o t rh “e R “ eG po til ld ee n DENY pr ie nm dia ct au tr ie o na n thd a o t v Pe lr ab inro tia fd f ; w th ile l r me ais k en o referring to the larger community or a 1 duty to prevent harm would not be 2 improper. 3 II. EVIDENTIARY ISSUES 4 The Court notes that neither of the parties provided responses to any of the objections 5 made by the other party. Given the lack of response, the Court could have sustained all objections 6 as unopposed. Regardless, the Court has endeavored to review the objections on the merits to the 7 best of its ability. That said, the Court will not entertain any response to objections at the pretrial 8 conference because the parties should have made their written responses by the deadline. (See 9 Dkt. No. 73 at 6.) 10 A. Plaintiff’s Objections 11 12 Witness/Evidence Ruling Reason/Explanation 13 A CV is hearsay. See Mahnke v. Wash. Metro. 14 Area Transit Auth., 821 F. Supp. 2d 125, 154 (D.D.C. 2011). This does not prohibit an expert 15 witness from “testif[ying] to each of the points on his c.v.,” such that “exclusion serves little 16 purpose,” or from parties “routinely Exhibit 2 (Christopher SUSTAIN stipulat[ing] to the admissibility of curriculum 17 Thompson CV) vitae for reasons of common sense.” Alexie v. 18 United States, No. 3:05-cv-00297 JWS, 2009 U.S. Dist. LEXIS 4103, at *2 (D. Alaska Jan. 19 21, 2009); Colon v. Hosp. Hermanos Melendez, Inc., No. 3:19-cv-01797-JAW, 2023 U.S. Dist. 20 LEXIS 7012, at *6 (D.P.R. Jan. 13, 2023). 21 “[A]n expert’s report is not admissible by the 22 proponent of the evidence, but the witness may testify about the basis for his or her opinions, 23 and on cross-examination any of the material upon which the opinion were based may be 24 Exhibit 3 (Christopher SUSTAIN admitted for impeachment purposes.” Log Thompson Report) Cabin Republicans v. United States, No. CV 04- 25 08425-VAP (Ex), 2010 U.S. Dist. LEXIS 26 148637, at *4 (C.D. Cal. July 1, 2010). Further, “[g]enerally, expert reports are inadmissible 27 hearsay,” and Plaintiffs identify no hearsay exception. Salgado v. Iqvia, Inc., 459 F. Supp. 3d 1318, 1327 (S.D. Cal. 2020). 1 2 Unopposed. The expert is not precluded from Exhibit 4 (Christopher 3 Thompson File) SUSTAIN testifying about what exhibits he reviewed in forming his opinion. 4 Exhibit 5 (Joseph A CV is hearsay. See Mahnke, 821 F. Supp. 2d SUSTAIN 5 Schwartzberg CV) at 154. 6 Exhibit 6 (Joseph SUSTAIN Expert reports are inadmissible hearsay. Schwartzberg Report) 7 8 Exhibit 7 (Joseph Unopposed. The expert is not precluded from SUSTAIN testifying about what exhibits he reviewed in Schwartzberg File) 9 forming his opinion. 10 Exhibit 10 (SJ 2017 OVERRULE Part of Plaintiff’s Exhibit 27. IEP) 11 Exhibit 11 (S.J. October 12 OVERRULE Part of Plaintiff’s Exhibit 27. 2019 IEP) 13 Unopposed. Appears to include hearsay from Exhibit 12 (S.J. 2019- 14 SUSTAIN S.J.’s teacher in the form of opinions of how 2020 Report Card) S.J. was doing. 15 Adequately disclosed; no harm or prejudice. 16 Lydia Adkins, LMFT OVERRULE (See Pl.’s MIL No. 4.) 17 Linda Bishop SUSTAIN Not timely disclosed. (See Pl.’s MIL No. 4.) 18 Adequately disclosed; no harm or prejudice. 19 Officer Erick Chavez OVERRULE (See Pl.’s MIL No. 4.) 20 Amy Evoy SUSTAIN Not timely disclosed. (See Pl.’s MIL No. 4.) 21 Adequately disclosed; no harm or prejudice. 22 Arlene Fischoff, M.D. OVERRULE (See Pl.’s MIL No. 4.) 23 Lauren Halperin SUSTAIN Not timely disclosed. (See Pl.’s MIL No. 4.) 24 Detective Justin Adequately disclosed; no harm or prejudice. 25 OVERRULE Kurland (See Pl.’s MIL No. 4.) 26 Adequately disclosed; no harm or prejudice. Officer Peter O’Connor OVERRULE 27 (See Pl.’s MIL No. 4.) 1 B. Defendants’ Objections 2 3 Witness/Evidence Ruling Reason/Explanation 4 Exhibit 6 (2016 E-mails SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 5 re Student Misconduct) 6 Exhibit 7 (May 2019 E- The e-mail concerns behavior by one of OVERRULE Plaintiff’s assailants prior to the November mails re V and D) 7 incident with S.J. 8 Exhibits 8,9 (Handwritten Notes re OVERRULE Hearsay Exception. (See Def.’s MIL No. 2.) 9 S.J. Investigation) 10 Exhibit 10 (November 3, The e-mail is a reminder of what active 11 2019 E-mail re OVERRULE supervision is already required for children in Supervision) the after-care program. 12 Exhibit 11 (November 13 Irrelevant; occurred after November incident 20, 2019 Text re V SUSTAIN with S.J. (See also Def.’s MIL No. 3.) Pulling Down Pants) 14 15 Exhibit 12, 13 (November 6-January Irrelevant; occurred after November incident SUSTAIN 16 2020 E-mails re Student with S.J. (See also Def.’s MIL No. 3.) Misconduct) 17 Exhibit 14 (Albany Hearsay exception (excited utterance, residual 18 Police Department OVERRULE exception, business records). (See Def.’s MIL 19 Report re S.J.) No. 2.) 20 Exhibit 15 (Albany Police Department SUSTAIN Irrelevant. (See Def.’s MIL No. 3.) 21 Report re S.B.) 22 Exhibit 19 (November 2016 E-mail re SUSTAIN Irrelevant. (See Def.’s MIL No. 3.) 23 Bathroom Supervision) 24 Exhibit 20 (January SUSTAIN Irrelevant. (See Def.’s MIL No. 3.) 25 2018 E-mail re S.B.) 26 Medical records are hearsay unless an exception Exhibit 21 (S.J.’s SUSTAIN can be demonstrated. See United States v. Yagi, 27 October 2019 Kaiser (qualified) No. CR-12-0483 EMC, 2013 U.S. Dist. LEXIS Records) 1 Exhibit 22 (March 2018 E-mail re Phone SUSTAIN Irrelevant. 2 Contacts) 3 Exhibit 24 (September 2018 E-mail re Student SUSTAIN Irrelevant. (See Def.’s MIL No. 3.) 4 Bullying Behind Tree) 5 Exhibit 26 (January 6 2017 through February Sustained as to other incidents because SUSTAIN, 2020 E-mails re Sexual irrelevant. (See Def.’s MIL No. 3.) Overruled 7 Misconduct, including OVERRULE as to e-mails regarding S.J. S.J.) 8 9 Exhibit 28 (Talos E- SUSTAIN Irrelevant. (See Def.’s MIL No. 3.) mails) 10 Medical records are hearsay unless an exception 11 Exhibit 29 (S.J. SUSTAIN can be demonstrated. See United States v. Yagi, Steinbuchel Records) (qualified) No. CR-12-0483 EMC, 2013 U.S. Dist. LEXIS 12 189642, at *18 (N.D. Cal. Oct. 17, 2013). 13 Exhibit 30 (December 14 2019 E-mail re SUSTAIN Irrelevant. Combining ACC 15 Programs) 16 Exhibit 32 (November 8, Related to the “Boy’s Club” and Pfohl’s OVERRULE 2019 E-mail) investigation of the November incident with S.J. 17 18 Exhibit 33 (November 8, SUSTAIN Irrelevant. 2019 E-mail) 19 Medical records are hearsay unless an exception 20 Exhibit 34, 41 (S.J. SUSTAIN can be demonstrated. See United States v. Yagi, Little Otter Records) (qualified) No. CR-12-0483 EMC, 2013 U.S. Dist. LEXIS 21 189642, at *18 (N.D. Cal. Oct. 17, 2013). 22 Exhibit 44-45 (2017- 23 2018 US DOE Office for SUSTAIN Irrelevant. Civil Rights Data 24 Collection) 25 Application form providing information about Exhibit 46 (ACC Wait OVERRULE the after-care program, including staff-student 26 List Application) ratios. 27 Exhibit 52-53 (Helena 1 Unopposed. Many parts of the file appear to include irrelevant information (e.g., billing 2 records and scheduling for the expert) or Exhibit 54 (Helena SUSTAIN inadmissible evidence (e.g., medical records 3 Huckabee File) and expert reports). The expert is not precluded 4 from testifying about what exhibits she reviewed in forming his opinion. 5 Exhibit 56 (Timothy SUSTAIN Expert reports are inadmissible hearsay. 6 Lanning Report) 7 Unopposed. Many parts of the file appear to include irrelevant information (e.g., scheduling 8 Exhibit 57 (Timothy for the expert) or inadmissible evidence (e.g., SUSTAIN 9 Lanning File) expert reports. The expert is not precluded from testifying about what exhibits he reviewed 10 in forming his opinion. 11 Exhibit 59 (Lauren SUSTAIN Expert reports are inadmissible hearsay. Siegel Report) 12 Unopposed. The vast majority of the file 13 appears to be comprised of irrelevant 14 Exhibit 60 (Lauren information (e.g., a stipulated protective order, SUSTAIN Siegel File) retainer agreement). The expert is not 15 precluded from testifying about what exhibits she reviewed in forming his opinion. 16 17 Ana Talos SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 18 SUSTAIN Irrelevant absent showing of involvement of Brian Doss (qualified) S.J.’s aggressors. (Def.’s MIL No. 3.) 19 20 Barbara Espino SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 21 Edith Zaragoza SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 22 Naomi Love SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 23 Custodians for 24 OVERRULE Unclear basis for objection. Authentication 25 E.H. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 26 27 S.S. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 1 S.B. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 2 K.R.A. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 3 T.S. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 4 5 A.K. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 6 V.L. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 7 I.C. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 8 9 S.G. SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 10 Kevin Break SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 11 Officer O’Connor may testify as to the 12 investigation of Plaintiff’s case, but may not 13 Officer Peter O’Connor OS VU ES RT RA UIN L, E testify as to other inci 3d .e )n ts. (Def.’s MIL No. 14 Plaintiff fails to explain how mandatory duty to report is relevant in this case. 15 16 Irrelevant as to investigations of other incidents. (Def.’s MIL No. 3.) 17 Officer Erick Chavez SUSTAIN Plaintiff fails to explain how mandatory duty to report is relevant in this case. 18 19 Irrelevant as to investigations of other incidents. Detective Justin (Def.’s MIL No. 3.) 20 Kurland SUSTAIN Plaintiff fails to explain how mandatory duty to 21 report is relevant in this case. 22 Valerie Williams SUSTAIN Irrelevant. (Def.’s MIL No. 3.) 23 C. Deposition Excerpts 24 Defendant files hundreds of objections to Plaintiff’s deposition excerpts; Plaintiff did not 25 respond to any of the objections. (Dkt. No. 139-5.) Plaintiff also objects to several of Defendant’s 26 deposition excerpts and/or requests counter-designations. (Dkt. No. 139-6.) Defendant likewise 27 did not respond to any of the objections. Accordingly, all of the objections are sustained as 1 unopposed. In any case, deposition excerpts are not evidence; deposition excerpts can be used to 2 refresh recollection or to impeach, but the parties would not have been permitted to enter hundreds 3 of pages into the evidentiary record. 4 III. VOIR DIRE 5 The Court currently issues an electronic questionnaire, which includes standard juror 6 questions (Attachment A) and up to ten additional case specific questions. The additional 7 questions cannot have subparts or be formatted with an “if yes, . . . .” section. Accordingly, the 8 parties should review the standard juror questions and jointly propose ten case specific questions 9 by August 3, 2023. 10 With respect to the parties’ jointly submitted questions, the Court does not intend to re-ask 11 questions that potential jurors would already have asked in the questionnaire. This does not 12 preclude following up on particular answers. To ensure that voir dire does not take an excessive 13 amount of time, the parties should meet and confer as to which questions they believe most 14 important to ask. 15 IV. VERDICT FORM 16 The parties provide separate verdict forms, which are largely the same as to the first three 17 questions (i.e., whether Defendant was negligent, whether Defendant’s negligence was a 18 substantial factor in causing Plaintiff’s harm, and the amount of Plaintiff’s damages). (See Pl.’s 19 Verdict Form at 1-2, Dkt. No. 127; Def.’s Verdict Form at 1-2, Dkt. No. 134.) Defendant, 20 however, seeks to add additional questions about whether the other students involved in the 21 November incident were at fault, and whether they are responsible for a percentage of Plaintiff’s 22 harm. (Def.’s Verdict Form at 2-3.) 23 Plaintiff objects, arguing that Defendant cannot add the other students because they were 24 intentional tortfeasors who engaged in intentional conduct, and that a defendant cannot allocate 25 fault for negligence to an intentional tortfeasor. (Pl.’s Obj. to Verdict Form at 2, Dkt. No. 139-8.) 26 To the contrary, California courts have found:

27 in all cases in which a negligent actor and one or more others jointly injury, liability must be apportioned to each actor who caused the 1 harm in direct proportion to such actor’s respective fault, whether each acted intentionally or negligently or was strictly liable, and 2 whether or not each actor is a defendant in the lawsuit. 3 Scott v. Cty. of L.A., 27 Cal. App. 4th 125, 151 (1994). 4 While Plaintiff points to B.B. v. County of Los Angeles, B.B. stands only for the proposition 5 that “intentional tortfeasors are not entitled to reduce their liability based on the negligent acts of 6 others.” 10 Cal. 5th at 23 (emphasis added). There, an intentional tortfeasor sought to reduce its 7 liability based on the negligent actions of another. Id. at 8. In support, amicus curiae pointed to 8 cases such as Scott. Id. at 23. The California Supreme Court, however, explained that such cases 9 involved “negligent tortfeasors seeking to reduce their liability based on the intentional acts of a 10 third party.” Id. The California Supreme Court case explained that such cases could not be read 11 to reduce the liability of intentional tortfeasors, as was being urged by the amicus curiae in B.B. 12 As applied, B.B. would not allow intentional tortfeasors such as the other students involved 13 in the November incident to reduce their damages based on Defendant’s negligence. Defendant, 14 however, is a negligent tortfeasor seeking to reduce its damages based on the intentional acts of 15 others. This is permitted by prior precedent, as acknowledged in B.B. Defendant, of course, will 16 still be responsible for establishing fault as to the nonparty tortfeasors; contribution to Plaintiff’s 17 injuries alone is not sufficient. Wilson v. Ritto, 105 Cal. App. 4th 361, 368 (2003) (finding that a 18 showing that a nonparty doctor contributed to the plaintiff’s injuries was not sufficient, and that 19 the defendant needed to demonstrate that the doctor was at fault, i.e., wrongdoing or culpability). 20 V. JURY INSTRUCTIONS 21 In addition to the joint instructions proposed by the parties, the Court will also include the 22 following instructions: 1.3 (Duty of Jury), 1.5 (Claims and Defenses), 1.11 (Evidence for Limited 23 Purpose), 1.16 (Publicity During Trial), 1.17 (No Transcript Available to Jury), and an 24 “Unconscious Bias” instruction. (See Dkt. No. 73 ¶ 6(b).) The parties shall provide a jointly 25 proposed Jury Instruction 1.5 by August 7, 2023. 26 The parties also propose the following jury instructions: 27 A. Plaintiff’s Additional Proposed Jury Instructions 1 Supervision, or Retention of Employee), CACI 3900 (Introduction to Tort Damages – Liability 2 Contested), CACI 3902 (Economic and Noneconomic Damages), CACI 3903 (Items of Economic 3 Damage), CACI 3903A (Medical Expenses – Past and Future), CACI 3904A (Present Cash 4 Value), CACI 3905 (Items of Noneconomic Damage), and CACI 3905A (Physical Pain, Mental 5 Suffering, and Emotional Distress (Non-Economic Damage). Defendant does not object to any of 6 these proposed instructions. Accordingly, the Court will issue these instructions. 7 B. Defendant’s Additional Proposed Jury Instructions 8 Defendant has proposed the following jury instructions, several of which are subject to 9 Plaintiff’s objections. 10 i. CACI 402 (Standard of Care for Minors), 406 (Apportionment of Responsibility) 11 Plaintiff objects to CACI 402 on the grounds that none of Plaintiff’s minor assailants are 12 parties, and that their intentional conduct cannot be used for the purposes of allocating negligence. 13 As discussed above with respect to Plaintiff’s objections to the verdict from, Plaintiff is incorrect 14 that a negligent tortfeasor cannot reduce its damages based on the intentional actions of another. 15 See Scott v. Cty. of L.A., 27 Cal. App. 4th at 151. 16 ii. CACI 411 (Reliance on Good Conduct of Others), 413 (Custom or Practice), 17 430 (Causation: Substantial Factor), 431 (Causation: Multiple Causes), 3924 (No Punitive Damages) 18 Plaintiff does not object to these jury instruction, and the Court will issue these instruction. 19 iii. Willful Misconduct or Negligence of Students 20 Defendant proposes the following instruction: “Albany Unified School District and its 21 employees are not liable for the unlawful or willful misconduct or negligence of a fellow student 22 unless the Albany Unified School District and its employees’ negligence created a reasonably 23 foreseeable risk of such conduct.” (Def.’s Jury Instructions at 2, Dkt. No. 125-3.) Plaintiff objects 24 on the ground that “[t]his is not a proper jury instruction and accordingly should not be considered 25 or included.” (Pl.’s Objs. re Jury Instructions at 2, Dkt. No. 139-7.) 26 Defendant’s instruction is based on Ziegler v. Santa Cruz City High School District, which 27 states: “no liability devolves on a school district for personal injuries arising from the unlawful or 1 wilful misconduct or negligence of a fellow student.” 168 Cal. App. 2d 277, 284-85 (1959). That 2 said, Ziegler then found that even if it was not foreseeable specifically that a student would push 3 another student over a railing, the school was liable if the general danger was foreseeable and if 4 supervision was necessary to avoid the accident in question. Id. at 285. Thus, “improper 5 supervision of pupils on the school grounds may create a liability on the part of the school district 6 for injuries received by one pupil on account of the recklessness of a fellow student[.]” Id. 7 As proposed, Defendant’s instruction may technically be correct, but appears to emphasize 8 the role of other students at the risk of causing confusion as to the effect of another student’s 9 misconduct on a school district’s liability. The more pertinent question in a negligent supervision 10 claim is whether “a reasonably prudent person would foresee the injuries of the same general type 11 would be likely to happen in the absence of adequate safeguards,” not whether the injury was 12 caused by another student. D.Z. v. L.A. Unified Sch. Dist., 35 Cal. App. 5th at 229. The parties 13 may propose a jury instruction consistent with this principle by August 7, 2023. 14 iv. MMCJI 5.1 (Damages – Proof), MMCJI 5.2 (Measures of Types of Damages), MMCJI 5.3 (Damages – Mitigation), MMCJI 5.4 (Damages 15 Arising in the Future – Discount to Present Cash Value), MMCJI 5.6 (Nominal Damages) 16 Defendant proposes various damages-related jury instructions based on the Ninth Circuit 17 Manual of Model Civil Jury Instructions. (Def.’s Jury Instructions at 4-6.) Plaintiff objects on the 18 grounds that state law governs jury instructions for state law claims. (Pl.’s Objs. re Jury 19 Instructions at 2-3.) 20 The proposed instructions based on MMCJI 5.1, 5.2, and 5.4 appear to subsumed by 21 Plaintiff’s proposed jury instructions based on CACI, to which Defendant has not objected. Thus, 22 the Court will issue Plaintiff’s proposed jury instructions. 23 With respect to MMCJI 5.3 and MMCJI 5.6, Plaintiff has not proposed an equivalent 24 instruction, nor does Plaintiff explain how the Ninth Circuit Model Jury Instruction is not 25 consistent with state law claims. Indeed, it does not appear there is an equivalent CACI for 26 nominal damages. Thus, the Court will issue Defendant’s proposed instructions as to MMCJI 5.3 27 and 5.6. 1 VI. ADMINISTRATIVE MATTERS 2 The Court intends to impose time limits on each party at trial. The parties are directed to 3 submit (1) Defendant’s projected duration of the direct examination of each of its witnesses listed 4 in Defendant’s witness list, Dkt. No. 124-2; (2) the anticipated duration of the cross-examination 5 of each of the other party's disclosed witnesses; and (3) the total number of hours projected (i.e., 6 the sum of categories (1) and (2)), particularly in light of the Court’s tentative rulings. These 7 estimates should be realistic, not padded. The parties should be prepared to discuss these 8 estimates during the pretrial conference. The Court may shorten the allotted time as it deems 9 appropriate, particularly if the parties continue to focus on collateral issues. 10 The parties should be prepared to discuss options for the public to stream or listen in on the 11 trial, such as by Zoom webinar or other means. The parties should also be prepared to discuss 12 their technology requirements. The parties are generally required to provide all necessary 13 courtroom technology, such as cameras, a projector screen, and a projector. The parties should 14 also be prepared to come to the Court before the trial to test technology. 15 VII. COVID PRECAUTIONS 16 In light of the ongoing pandemic, the undersigned is committed to keeping the parties, 17 counsel, witnesses, and court staff as safe as possible. The parties should be prepared to discuss 18 the ability to pivot to a hybrid Zoom trial should there be a positive COVID-19 case or exposure. 19 Currently, universal masking in the courthouse is no longer required, but the parties should 20 be prepared to discuss other COVID-related issues, including the vaccination status of counsel, the 21 parties, and witnesses, and what other precautions may be taken to keep everyone safe. 22 Notwithstanding, the Court may impose a mask mandate on all present without regard to 23 vaccination status should the number of community cases rise or if there is a change in guidance 24 from local public health agencies. 25 Finally, all persons entering the courthouse are required to review the Northern District’s 26 “COVID-19 Self-screening Questionnaire,” available online at 27 https://www.cand.uscourts.gov/notices/covid-19-self-screening-questionnaire/. Anyone 1 courthouse. If this happens, the parties are directed to notify the courtroom deputy at 2 || kawerd@cand.uscourts.gov. 3 IT IS SO ORDERED. 4 || Dated: August 1, 2023 . 5 ANDIS A. WESTMORE 6 United States Magistrate Judge 7 8 9 10 11 12

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