ORDER
KIMBERLY J. MUELLER, District Judge.
On August 22, 2014, the court conducted a final pretrial conference. John Zarian appeared for Parsons Behle & Latimer (PBL); R. Parker White appeared for General Yeager; there was no appearance for Connie Bowlin or the Lesser Law Group.
After hearing, and good cause appearing, the court makes the following findings and orders:
JURISDICTION/VENUE
Jurisdiction is predicated on 28 U.S.C. §§ 1335(a) and 1397. Jurisdiction and venue are not contested.
JURY/NON-JURY
No party has requested a jury trial.
UNDISPUTED FACTS
Regarding Parsons, Behle, Latimer (PBL):
1. Yeager retained Zarian, Midgley & Johnson, PLLC (Zarian Midgley) in October 2011 in connection with the case of Yeager v. ATT Mobility, 2:07-CV-2517.
2. Zarian Midgley merged with PBL in November 2011.
3. Zarian Midgley and then PBL billed Yeager on an hourly basis.
4. Yeager failed to pay the amounts due and owes money to PBL.
5. PBL represented Yeager during the trial of Yeager v. ATT Mobility and secured a money judgment of $135,000 for Yeager.
6. PBL also secured an award of attorneys' fees in the amount of $173,585.72 and $7,763.63.
Regarding Connie Bowlin, the Estate of Ed Bowlin, Aviation Autographs, and Bowlin and Associates (collectively the Bowlins):
1. On March 3, 2009, Charles "Chuck" Yeager (Yeager) filed a second amended complaint against Connie Bowlin, Ed Bowlin, Aviation Autographs, and Bowlin & Associates, among others, alleging breach of the common law right of privacy, violations of California Civil Code § 3344, the Lanham Act, California's Unfair Business Practices and False Advertising Acts, fraud, breach of oral and written agreements, unjust enrichment, open book account, and equitable rescission. Yeager v Bowlin, 2:09-CV-1012 WBS CKD.
2. On January 6, 2010, the court granted the Bowlins' motion for summary judgment.
3. On February 4, 2010, Yeager filed a notice of appeal of this judgment.
4. On February 26, 2010, the district court granted the Bowlins' request for $5,214.22 in costs and on June 7, 2010, the district court approved the Bowlins' request for $275,596.58 in attorneys' fees.
5. On June 25, 2010, the Bowlins filed a notice of judgment lien in the amount of $275,597 in Yeager v. ATT Mobility.
6. Yeager appealed the district court's order, which the Ninth Circuit affirmed on September 10, 2012.
7. On August 8, 2013, the Ninth Circuit granted the Bowlins' request for attorneys' fees in part and referred the matter to the Appellate Commissioner, who in turn referred it to the Circuit Mediator, who referred it back to the Appellate Commissioner. The matter is still pending before the Circuit.
Regarding the Lesser Law Group:
1. On December 2, 2009, the Lesser Law Group (LLG) and Yeager entered into an amended Attorney-Client Engagement Agreement whereby Lesser would act as counsel of record in several pending suits.
2. In addition, as part of this agreement, the firm provided advice to Yeager and Victoria Yeager regarding Yeager v. ATT Mobility, though the firm did not act as counsel of record.
3. In the amended engagement agreement, Yeager granted LLG a lien.
4. Thereafter the Yeagers became indebted to LLG for fees and costs totaling $145,976.91.
5. The Yeagers have not paid any of that amount.
6. Yeager has filed a malpractice action against LLG, Sacramento Superior Court Case No. 24-2011-00109638-CU-PN-GDS and LLG has cross-complained for its fees.
DISPUTED FACTUAL ISSUES
1. Whether Yeager's contract with Zarian was assigned to PBL.
2. The amount Yeager owes PBL.
3. The amount Yeager owes LLG.
4. The priority of the claims.
SPECIAL FACTUAL INFORMATION REGARDING PBL'S BREACH OF CONTRACT CLAIM
The October 2011 retention was not modified, nor are there any misrepresentations of fact, mistake or other matters affecting its validity. PBL alleges Yeager breached the October 2011 retention agreement and seeks damages for the breach.
DISPUTED EVIDENTIARY ISSUES
None identified.
STIPULATIONS/AGREED STATEMENTS
None.
RELIEF SOUGHT
In its breach of contract action, PBL seeks monetary damages in the amount of $106,408.52, prejudgment interest, and attorneys' fees and costs.
LLG seeks an order that its lien is valid and enforceable and has priority over the Bowlins' lien, and that the interpled funds be paid to LLG before being paid to the Bowlins or Yeager.
The Bowlins seek an order that they have priority over PBL and LLG.
POINTS OF LAW
The parties shall alert the court to disputes about the applicable law and legal standards. Trial briefs addressing these points more completely shall be filed with this court no later than seven days prior to the date of trial in accordance with Local Rule 285.
ABANDONED ISSUES
None.
WITNESSES
PBL expects to call General Yeager, Victoria Yeager, Kevin Pollei, and Dean Larson as witnesses.
Yeager expects to call General Yeager and Victoria Yeager.
Each party may call any witnesses designated by the other.
A. The court will not permit any other witness to testify unless:
(1) The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence that could not be reasonably anticipated at the pretrial conference, or
(2) The witness was discovered after the pretrial conference and the proffering party makes the showing required in "B," below.
B. Upon the post pretrial discovery of any witness a party wishes to present at trial, the party shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so the court may consider whether the witnesses shall be permitted to testify at trial. The witnesses will not be permitted unless:
(1) The witness could not reasonably have been discovered prior to the discovery cutoff;
(2) The court and opposing parties were promptly notified upon discovery of the witness;
(3) If time permitted, the party proffered the witness for deposition; and
(4) If time did not permit, a reasonable summary of the witness's testimony was provided to opposing parties.
EXHIBITS, SCHEDULES AND SUMMARIES
PBL's exhibits are identified in attachment A. At trial, PBL's exhibits shall be listed numerically.
Yeager will offer canceled checks and bank statements as exhibits. At trial, Yeager's exhibits shall be listed alphabetically.
The court encourages the parties to generate a joint exhibit list to the extent possible. Joint Exhibits shall be identified as JX and listed numerically, e.g., JX-1, JX-2.
All exhibits must be premarked.
The parties must prepare exhibit binders for use by the court at trial, with a side tab identifying each exhibit in accordance with the specifications above. Each binder shall have an identification label on the front and spine. The parties must exchange exhibits as soon as possible before trial. Any objections to exhibits will be addressed the morning of trial.
A. The court will not admit exhibits other than those identified on the exhibit lists referenced above unless:
1. The party proffering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence that could not have been reasonably anticipated, or
2. The exhibit was discovered after the issuance of this order and the proffering party makes the showing required in Paragraph "B," below.
B. Upon the discovery of exhibits after the discovery cutoff, a party shall promptly inform the court and opposing parties of the existence of such exhibits so that the court may consider their admissibility at trial. The exhibits will not be received unless the proffering party demonstrates:
1. The exhibits could not reasonably have been discovered earlier;
2. The court and the opposing parties were promptly informed of their existence;
3. The proffering party forwarded a copy of the exhibits (if physically possible) to the opposing party. If the exhibits may not be copied the proffering party must show that it has made the exhibits reasonably available for inspection by the opposing parties.
DEPOSITION TRANSCRIPTS
Counsel must lodge the sealed original copy of any deposition transcript to be used at trial with the Clerk of the Court no later than seven days before trial.
FURTHER DISCOVERY OR MOTIONS
None anticipated.
AMENDMENTS/DISMISSALS
None anticipated.
SETTLEMENT
The parties attended a settlement conference on February 12, 2014. The Bowlins and Yeager reached a partial settlement.
MOTIONS IN LIMINE
PBL may file motions in limine to resolve any evidentiary issues. They will be addressed the morning of trial.
SEPARATE TRIAL OF ISSUES
The Bowlins have asked that the issues raised by PBL's complaint in intervention be tried first and the remainder of the case stayed while the Ninth Circuit decides what fees they are entitled to and the Superior Court determines the amount of fees, if any, Yeager owes the LLG. Thereafter, the parties can try the priority of the liens, if that is necessary. The other parties have not objected to this procedure.
Accordingly, the case will proceed to the trial of PBL's complaint in intervention only on September 8, 2014.
IMPARTIAL EXPERTS/LIMITATION OF EXPERTS
Not applicable.
ATTORNEYS' FEES
PBL has requested attorneys' fees in its complaint-in-intervention. ESTIMATED TIME OF TRIAL/TRIAL DATE
Court trial is set for September 8, 2014 at 9:00 a.m. in Courtroom Three before the Honorable Kimberly J. Mueller. Trial is anticipated to last one day. The parties are directed to Judge Mueller's trial schedule outlined at the "important information" link located on her web page on the court's website.
MISCELLANEOUS
1. Trial briefs are due seven days before trial.
2. LLG and the Bowlins are directed to file status reports, beginning sixty days after the issuance of this order and every sixty days thereafter, notifying the court of the progress of the Bowlins' fee application in the Ninth Circuit and the litigation in Sacramento County Superior Court.
OBJECTIONS TO PRETRIAL ORDER
Each party is granted five days from the date of this order to file objections to the same. If no objections are filed, the order will become final without further order of this court.
ATTACHMENT A
EXHIBIT LIST
Pursuant to Local Rule 16-281 and in accordance with the Status (Pretrial Scheduling) Order (Dkt. No. 71) entered on November 21, 2013, Plaintiff-in-Intervention Parsons Behle & Latimer, PLC ("Parsons Behle") respectfully submits the following list of potential exhibits.
Parsons Behle reserves the right to modify this list to add or eliminate exhibits. This document does not list demonstrative exhibits, which will instead be exchanged or otherwise made available to all parties prior to trial. Parsons Behle also reserves the right to use exhibits not included in this list, as may be necessary or appropriate for impeachment or rebuttal. Parsons Behle also reserves the right to present any exhibit identified in any other parties' exhibit list.
Bates No./Deposition Date
No. Date Description Exhibit No./Reference to Identified/Date
Record Admitted
Exhibit 1-A to Declaration of
Zarian Midgley & Johnson, John N. Zarian in Support of
1 8/31/11 PLLC invoice 9074, dated August Plaintiff's Motion for
31, 2011 (as redacted). Attorney's Fees and Costs,
dated July 9, 2012
Zarian Midgley 9/14/11 Exhibit A to Declaration of
2 9/14/11 engagement letter to Gen Yeager, John N. Zarian in Support of
signed by Gen Yeager on October Parsons Behle & Latimer's
5, 2011 Motion for Summary
Judgment
Exhibit 1-B to Declaration of
Zarian Midgley & Johnson, John N. Zarian in Support of
3 9/30/11 PLLC invoice 9213, dated Plaintiff's Motion for
September 30, 2011 (as redacted). Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-C to Declaration of
Zarian Midgley & Johnson, John N. Zarian in Support of
4 11/30/11 PLLC invoice 9461, dated Plaintiff's Motion for
November 30, 2011 (as redacted). Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-D to Declaration of
Parsons Behle & Latimer invoice John N. Zarian in Support of
5 2/9/12 301769, dated February 9, 2012 Plaintiff's Motion for
(as redacted). Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-E to Declaration of
Parsons Behle & Latimer invoice John N. Zarian in Support of
6 2/18/12 302159, dated February 18, 2012 Plaintiff's Motion for
(as redacted). Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-F to Declaration of
Parsons Behle & Latimer invoice John N. Zarian in Support of
7 3/31/12 304170, dated March 31, 2012 (as Plaintiff's Motion for
redacted). Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-G to Declaration of
Parsons Behle & Latimer invoice John N. Zarian in Support of
8 5/23/12 306218, dated May 23, 2012. Plaintiff's Motion for
Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-H to Declaration of
John N. Zarian in Support of
Parsons Behle & Latimer invoice Plaintiff's Motion for
9 6/30/12 307856, dated June 30, 2012.
Attorney's Fees and Costs,
dated July 9, 2012
Exhibit 1-I to Declaration of
Parsons Behle & Latimer invoice John N. Zarian in Support of
10 7/5/12 dated July 5, 2012 (as redacted). Plaintiff's Motion for
Attorney's Fees and Costs,
dated July 9, 2012
Declaration of John N. Zarian in
11 7/9/12 Support of Plaintiff's Motion for Request for Judicial Notice,
Attorney's Fees and Costs Dkt. No. 104
Order Granting in Part and
12 12/19/12 Denying in Part the Motion for Request for Judicial Notice,
Attorneys' Fees Dkt. No. 104
Declaration of John N. Zarian in
Support of Plaintiff's Request for Judicial Notice,
13 1/2/13 Supplemental Motion for Dkt. No. 104
Attorney's Fees and Costs
Exhibit 1 to the Declaration of
John N. Zarian in Support of
Parsons Behle & Latimer invoice
14 1/2/13 311979, dated October 3, 2012 Plaintiff's Supplemental
(as redacted). Motion for Attorney's Fees
and Costs (Doc. No. 278-1
filed January 2, 2013)
Exhibit 2 to the Declaration of
John N. Zarian in Support of
Parsons Behle & Latimer invoice
15 1/2/13 313006, dated October 31, 2012 Plaintiff's Supplemental
(as redacted). Motion for Attorney's Fees
and Costs (Doc. No. 278-1
filed January 2, 2013)
Order Granting in Part and
16 8/30/13 Denying in Part the Supplemental Request for Judicial Notice,
Motion for Attorney's Fees Dkt. No. 104
Declaration of John N. Zarian in
Support of Parsons Behle &
17 7/14/14 Latimer, PLC's Motion for Dkt. N0. 105
Summary Judgment (Doc. No.
105-1)
Exhibit B to Declaration of
Invoice Summary for Zarian
Midgley and Parsons Behle & John N. Zarian in Support of
18 7/14/14 Latimer for professional services Parsons Behle & Latimer,
rendered to Gen. Yeager PLC's Motion for Summary
Judgment
