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Associated General Contractors v. California Department of Transportation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


March 21, 2011

ASSOCIATED GENERAL CONTRACTORS
OF AMERICA, SAN DIEGO CHAPTER, INC., A NONPROFIT CALIFORNIA CORPORATION,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANTS,
ECONOMIC EQUITY AND EXPERT JOHN SULLIVAN NATIONAL ASSOCIATION OF COLORED PEOPLE,
SAN DIEGO
DEFENDANT-INTERVENORS.

The opinion of the court was delivered by: Judge: Hon. John A.vMendez

BINGHAM MCCUTCHEN LLP BREE HANN (SBN 215695) bree.hann@bingham.com SUJAL J. SHAH (SBN 215230) sujal.shah@bingham.com SAMANTHA REARDON CARTER (SBN 240068) samantha.carter@bingham.com CARLOS PATRICIO MINO (SBN 247022) carlos.mino@bingham.com Three Embarcadero Center San Francisco, CA 94111-4067, U.S.A. Telephone: 415.393.2000 Facsimile: 415.393.2286 LAWYERS' COMMITTEE FOR CIVIL RIGHTS OREN SELLSTROM (SBN 161074) 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9697 Facsimile: (415) 543-0296 Email: osellstrom@lccr.com [Additional counsel listed on signature pages.] Attorneys for Defendant-Intervenors Coalition for Economic Equity and National Association for the Advancement of Colored People, San Diego Chapter

SULLIVAN FROM PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND CONTINUE HEARING OF DEFENDANT- INTERVENORS' MOTION TO EXCLUDE THE TESTIMONY AND OPINIONS OF PLAINTIFF'S COALITION FOR FOR THE ADVANCEMENT CHAPTER,

JOINT STIPULATION AND ORDER TO STRIKE EVIDENCE OF PLAINTIFF'S EXPERT JOHN

STIPULATION AND [PROPOSED] ORDER TO STRIKE JOHN SULLIVAN FROM PLAINTIFF'S

SUMMARY JUDGMENT MOTION AND CONTINUE HEARING ON MOTION TO STRIKE

COMES NOW Plaintiff Associated General Contractors of America, San Diego Chapter, Inc.; Defendants California Department of Transportation, Cindy McKim (in her official capacity as Director of Caltrans), and Olivia Fonseca (individually, and in her official capacity as Deputy Director of Caltrans); and Defendant-Intervenors Coalition for Economic Equity and National Association for the Advancement of Colored People, San Diego Chapter (collectively the "Parties"). The Parties state as follows:

WHEREAS the Parties' cross-motions for summary judgment, filed on January 25 and 26, 2011, are currently before this Court. Hearing on these motions has been set for March 23, 2011 at 9:30 a.m., in Courtroom 6.

WHEREAS Defendant-Intervenors' Motion to Exclude the Testimony and Opinions of Plaintiff's Expert John Sullivan ("Motion to Exclude") (Dkt. No. 47), filed on January 26, 2011, is currently before this Court. Hearing on this motion has been set for March 23, 2011 at 9:30 a.m., in Courtroom 6.

WHEREAS Defendants joined in Defendant-Intervenors' Motion to Exclude (Dkt. No. 68) on February 7, 2011.

WHEREAS Defendant-Intervenors are willing to postpone hearing on their Motion to Exclude until after the cross-motions for summary judgment are decided, if Plaintiff withdraws any reliance on and reference to Mr. Sullivan, his opinions, and his expert report (including but not limited to Exhibit N to the Declaration of Ralph W. Kasarda in Support of Plaintiff's Motion) from Plaintiff's Motion for Summary Judgment or, In the Alternative, Summary Adjudication.

WHEREAS Plaintiff contends it did not intend for any citation to Mr. Sullivan's report in Plaintiff's Motion for Summary Judgment or, In the Alternative, Summary Adjudication or Statement of Undisputed Material Facts (Dkt. No. 44) to be construed as reliance on said report. Plaintiff contends that any citation to Mr. Sullivan's report in its Motion was part of the cumulative evidence used to support a fact.

WHEREAS the parties believe that postponing the hearing on DefendantIntervenors' Motion to Exclude the Testimony and Opinions of Plaintiff's Expert John Sullivan will further judicial economy.

NOW THEREFORE, the Parties stipulate by and through their counsel of record, and respectfully request that the Court approve, that:

1. Plaintiff withdraws any reliance on and reference to Mr. Sullivan, his opinions, and his expert report from Plaintiff's Motion for Summary Judgment or, In the Alternative, Summary Adjudication. Any such citations or reliance should be stricken and no longer be part of the case record.

2. Plaintiff withdraws Exhibit N of the Declaration of Ralph W. Kasarda in Support of Plaintiff's Motion for Summary Judgment or, In the Alternative, Summary Adjudication, which contained copies of excerpts from John Sullivan's Expert Report. Exhibit N shall be stricken and no longer be part of the case record.

3. Defendant-Intervenors continue the hearing on their Motion to Exclude the Testimony and Opinions of Plaintiff's Expert John Sullivan until the date and time this Court sets for hearing pre-trial motions in this matter.

Jointly stipulated this 18th day of March 2011.

American Civil Liberties Union Foundation of Northern California

John A. Mendez United States District Judge

20110321

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