Opinion
NO. CIV. S-08-505 LKK/DAD.
November 23, 2009
ORDER
On November 12, 2009, plaintiff filed objections to the tentative pretrial order issued by the court on October 29, 2009. Plaintiff requested that the court add three disputed factual issues, one point of law, and numerous discovery documents. Plaintiff also requests that the court replace the exhibit list filed in the tentative order.
Defendants oppose the addition of two of the three disputed factual issues (Nos. 55 and 56) and the point of law. They argue that plaintiff seeks to add new claims to his case. Defendants contest the following additions to the pretrial order:
DISPUTED FACTUAL ISSUES . . .
55. Whether or not AutoZone engaged in a pattern of retaliation against employees who engaged in protected activities? . . .
56. Whether or not Randy Cosby's termination was part of an annual scheme to terminate all employees engaged in protected activities within the Sacramento Region? . . .
POINTS OF LAW . . .
(e) The elements, standards, and burdens of proof of a claim for failure to prevent discrimination and retaliation under the FEHA under the facts and circumstances of this case.
Plaintiff's Objections to Tentative Pretrial Conference Order at 1-2. Defendants argue that plaintiff is "attempting to add a `pattern-or-practice' retaliation claim." Defendant's Response to Plaintiff's Objections to Tentative Pretrial Conference Order at 1. With respect to the factual disputes plaintiff seeks to add, defendants state that (1) plaintiff did not allege a pattern or practice in his complaint, (2) no discovery was conducted concerning the factual disputes, and (3) plaintiff did not mention a patter or practice in his pretrial statement. Id. at 2. Similarly, with respect to the point of law, defendants state that plaintiff did not allege a failure to prevent retaliation in his complaint or in his pretrial conference statement. Id. Plaintiff has not had an opportunity to respond to defendants' arguments. For this reason, the court orders that plaintiff shall file within ten days of this order a response to defendant's arguments.
Defendant also argues that this court should not allow plaintiff to amend his exhibit list. However, the court explicitly instructed plaintiff at the pretrial conference to file any amendments to his exhibit list in his objections to the tentative pretrial order. For this reason, the court will replace the exhibit list in the pretrial order as requested.
Finally, plaintiff seeks to include discovery documents in the pretrial order. However, at the pretrial conference, plaintiff's counsel indicated that he only sought to enter discovery documents for the purpose of cross-examination. For this reason, the court did not include the list of discovery documents included in plaintiff's pretrial statement, and rather stated, "Neither party presently intends to tender [any discovery document] in evidence except upon cross-examination." Therefore, the court orders plaintiff to clarify whether he intends to tender discovery documents for any other purpose within ten (10) days of this order.
For the foregoing reasons, the court ORDERS that plaintiff must file a response to defendants' arguments concerning proposed Disputed Factual Issues Nos. 55 and 56 and proposed Point of Law (e) within ten (10) days of this order.
The court further ORDERS plaintiff to clarify within ten (10) days whether he intends to tender discovery documents for any other purpose than cross-examination within ten (10) days of this order.
IT IS SO ORDERED.