JOINT STIPULATION AND REQUEST TO MODIFY THE DECEMBER 28, 2016 PRETRIAL SCHEDULING ORDER; [PROPOSED] ORDER

WILLIAM B. SHUBB, District Judge.

Plaintiff and Counterdefendant DEVRA BOMMARITO and Defendant and Counterclaimant THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, through their undersigned counsel hereby request that the Court adopt the stipulated modifications to the Scheduling Order in this matter set forth below based on the following:

A. Current Status

WHEREAS, Plaintiff filed the complaint in this matter on June 1, 2015. She alleges claims for relief for breach of contract and breach of the covenant of good faith and fair dealing ("bad faith") based on the alleged wrongful denial of her claim for disability benefits by Defendant.

WHEREAS, on October 7, 2015, the Honorable William B. Shubb issued a Pretrial Scheduling Order setting forth the discovery deadlines, motion hearing schedule, final Pretrial Conference, and trial date in this matter. Due to the Plaintiff's substitution of counsel, and difficulties created by a criminal investigation, the Court in a May 27, 2016 order modified the scheduling order as follows: Date for initial expert disclosures cut-off: February 10, 2017; Rebuttal expert disclosures cut-off: March 10, 2017; Date for discovery cut-off: April 7, 2017; Date for last day to hear discovery motions: April 7, 2017; Date for last day to hear all motions, except for motions for continuances, temporary restraining orders, or other emergency applications: June 26, 2017, 1:30 p.m. Final Pretrial Conference: September 11, 2017 at 1:30 p.m.; and Jury Trial date: October 24, 2017 at 9:00 a.m. On December 28, this Court granted a joint stipulation, with modification, establishing the following: Date for initial expert disclosures cut-off: June 12, 2017; Rebuttal expert disclosures cut-off: July 10, 2017; Date for discovery cut-off: August 10, 2017; Date for last day to hear discovery motions: August 10, 2017; Date for last day to hear all motions, except for motions for continuances, temporary restraining orders, or other emergency applications: September 18, 2017, 1:30 p.m. Final Pretrial Conference: December 4, 2017 at 1:30 p.m.; and Jury Trial date: Februarty 6, 2018 at 9:00 a.m. (Docket 31.)

B. The Criminal Action

WHEREAS, on February 22, 2016, Plaintiff was charged with making a fraudulent claim for insurance payment, insurance fraud, grand theft of personal property, and making false entries in records by the San Joaquin County District Attorney's Office. Plaintiff is charged with felony insurance fraud with regard to the claim for disability benefits submitted to Defendant, the same claim for disability benefits that is the subject of Plaintiff's claims for relief for breach of contract and bad faith in this action.

C. The Preliminary Hearing was Moved A SECOND TIME in the Criminal Action

WHEREAS, the preliminary hearing in the criminal action, originally set December 13, 2016, had been rescheduled to April 18, 2017. On April 18, 2017, the hearing was called, however the District Attorney failed to produce a single witness and asked for a short delay to locate and subpoena witness(es). One week later the District Attorney again appeared without a witness, reporting that his witness was termporarily unavailable. The Hon. Lauren Thomasson continued the matter to September 5, 2017.

The Parties agree that the criminal continuance significantly impacts the prosecution of this matter. Before the Parties must disclosure experts, currently June 12, 2017, and comply with the other deadlines in the current scheduling order, the Parties need to know if Plaintiff is going to be criminally indicted for insurance fraud. A criminal indictment for insurance fraud will have a significant impact on her claims for breach of contract and bad faith. The claim for relief for bad faith will be presented to the Court in an entirely different fashion depending on whether she is indicted or the charges are dismissed. The existence of an indictment impacts the evaluation of whether Defendant's claim decision was reasonable.

In addition, for the same reason, before the Court becomes more actively involved in this matter through law and motion, pre-trial, and trial proceedings, the Parties and the Court need to know if Plaintiff has been indicted and, if so, when the criminal trial will take place. The determination of the criminal action plays a significant role on how the claims for relief for breach of contract and bad faith will be presented to this Court.

D. Plaintiff's Counsel's Battle with Cancer

Previous continuances have been ordered as a result of Plaintiff's counsel's cancer diagnosis in October of 2016. WHEREAS, for much of the fall, counsel for Plaintiff was undergoing treatment for cancer. Gratefully, she now has recovered and the Parties once again are able to move forward in this matter. Due to Plaintiff's battle with cancer, the Parties stopped prosecuting this matter altogether for much of the winter of 2016/17. Now, Plaintiff's counsel has recovered fully and the Parties are again prosecuting this matter.

Under the current scheduling order, the Parties had planned to complete in September through November a significant document production and the significant depositions in this matter. The parties have undertaken several key depositions, including those of Plaintiff, and several participants in the claims decision at Northwestern. The parties have exchanged thousands of pages of documents.

The outcome of the September 2017 criminal hearing, which will result in either a dismissal or an indictment, will fundamentally alter the direction the final stages of discovery, trial preparation and any settlement discussions.

E. Requested Modifications to the Scheduling Order

Therefore, based on the status of the criminal action, and counsel for Plaintiff's battle with cancer, the Parties to this matter, through their counsel of record, hereby stipulate to the following modifications to the Scheduling Order in this matter and respectfully request that the Court issue an order modifying the Scheduling order as requested. With these modifications to the Scheduling Order, the determination of whether Plaintiff will be indicted will be determined before this Court has to address law and motion, pre-trial, and trial proceedings in this matter. At the same time the schedule compels the Parties to complete discovery and prepare for trial.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

For the reasons set forth in section D. above, and only for those reasons, pursuant to stipulation of the parties, IT IS SO ORDERED. The dates and deadlines are modified as follows: