On September 13, 2011, the court held a hearing on defendants' motion in limine to exclude Exhibit A to the parties' joint statement of undisputed and disputed facts.*fn1 Dckt. No. 77; Dckt. No. 81 at 5-8. Exhibit 11A is a graph indicating the dates that plaintiff contends he engaged in conduct that amounted to compensable work under the Fair Labor Standards Act and/or the California Labor Code. See Dckt. No. 70. The graph also indicates the job locations at which plaintiff worked on those dates, as well as the number of hours plaintiff contends he expended on the tasks for which he did not receive compensation. Id. Plaintiff's counsel created the graph during a meeting between plaintiff, his counsel (Mr. Gauger), defendant DuFour and his former counsel (Robert Fried), in Mr. Gauger's office on May 15, 2008. Id. at 2. According to plaintiff, the parties reviewed the documents and agreed that plaintiff performed those tasks on the days in question. Id.; Dckt. No. 81 at 4.
Defendants sought to exclude Exhibit 11A "on the bases that it is highly prejudicial, and that Exhibit A is conclusory, effectively resolving the case in plaintiff's favor." Dckt. No. 77. Defendants argued that "plaintiff's Exhibit A purports to establish uncompensated time each day, in addition to establishing the dispute over the amount of time, among other facts critical to the question of whether compensation is due the plaintiff." Id. at 2. However, defendants argued that "plaintiff has procured no stipulation as to alleged facts of uncompensated time each day, nor as to the amount of time in dispute" and asserted that "no such agreement has ever occurred." Id. Thus, defendants argued that because Exhibit 11A's admission into evidence would improperly relieve plaintiff of his burden of proof to show whether any uncompensated time exists and, if so, the dispute over the amount of time, it should be excluded. Id.
At the hearing, the court found that Exhibit 11A could be used as a demonstrative exhibit only. Dckt. No. 81 at 9. When offered an opportunity to respond to that ruling, plaintiff's counsel indicated that the parties attempted to address the issue regarding Exhibit 11A in their pretrial statement (which ultimately became part of the final pretrial order).*fn2 Id. at 10. Plaintiff's counsel then stated: "We can deal with the evidentiary ruling I think at the close of evidence, because I think the Court is right that it's a demonstrative tool at this point, and then I think the Court will be persuaded as to its -- the foundation that it's based on by the end of the presentation of the evidence." Id. Accordingly, the bench trial that was scheduled for that day resumed and plaintiff presented its case. Dckt. No. 81 at 9.
At the conclusion of plaintiff's presentation of his case, plaintiff's counsel moved to offer Exhibit 11A into evidence. Dckt. No. 81 at 83. Defendants once again objected to the admissibility of Exhibit 11A, contending that the chart contains numerous inaccuracies and lacks foundation. Id. Thereafter, the court stated that Exhibit 11A was being accepted for demonstrative purposes but reserved determination of whether it would be admitted for evidentiary purposes until after defendants presented further evidence. Id. Plaintiff then rested his case and a lunch recess was held. Id. at 84.
After the recess, the court once again addressed the issue regarding Exhibit 11A. Id. at 85. The court expressed concern regarding whether a stipulation was actually reached between the parties regarding Exhibit 11A, as well as concern regarding the evidence that did and did not come in, as it relates to Exhibit 11A. Id. The court discussed the inconsistencies in the parties' filings. First, the joint statement of undisputed facts, and therefore the subsequently issued final pretrial order adopting that statement, include confusing language regarding Exhibit 11A. See Dckt. No. 70 at 2; Dckt. No. 74 at 4. As discussed on the record, the statement that "By agreeing to these facts, the Defendant does not concede that Mr. Pehle's activities constituted legally compensable work," can be read in different ways. One way of reading the statement is that the parties had agreed that the facts in Exhibit 11A are facts that the Court can take as having been established, even though the parties disagree over what the legal consequences are, or flow from those facts. Dckt. No. 81 at 86. However, another way of reading the statement "is that the defense is hedging its bet and is being equivocal about what it's agreeing has been factually established."*fn3 Id.
Additionally, while the joint pretrial statement noted that there were no disputed evidentiary issues, Dckt. No. 69 at 2, at the final pretrial conference, defendants stated otherwise (which resulted in a provision in the final pretrial order authorizing defendants to file a motion in limine regarding Exhibit 11A, Dckt. No. 74 at 7). Dckt. No. 81 at 87. The court noted, however, that neither side flagged the significance of Exhibit 11A, and the dispute surrounding it (which would convert the trial from a one day trial to a multiple day or even multiple week trial), at the final pretrial conference or in the joint pretrial statement. Id. at 88. The court then stated that "there's something that's fundamentally unfair about telling one side to a dispute that facts are undisputed and then plan and prepare for a trial where you think that's the case, only to find out it isn't, and now you need to bring in all of the other evidence or witnesses to prove up the facts that you thought you had a stipulation on." Id. The court found that since that was essentially the situation before the court, it needed to give plaintiff's counsel "the opportunity to present the evidence that he needs to present given that [defense counsel was] backing out of the stipulation." Id.
Defense counsel then specifically stated that there was never such a stipulation and that he always disputed the content of Exhibit 11A. Id. at 89. The court stated that "nonetheless, we have a situation where we go into a final pretrial conference with a joint statement saying that certain facts are undisputed and now at trial they . . . in fact are disputed." Id. at 89-90. The court stated that plaintiff's evidence consisted of "very limited testimony as to a few examples" since plaintiff's counsel thought that all he needed to do was lay a foundation for the few examples he identified, and then attempt to generalize from that because he thought he had a stipulation as to Exhibit 11A. Id. at 94. The court noted that it did not have briefing from either party on how the court's discretion ought to be guided and whether the court should or should not allow the defense to withdraw their stipulation. Id. at 94-95. The court provided that if defendants are allowed to withdraw the stipulation, plaintiff's counsel would be given every opportunity to present the evidence he otherwise would have presented had he known that they were going to withdraw their stipulation, and would probably "also allow use of the earlier joint statement in any way that [is] useful in trying the balance of the case. . . ." Id. at 95. The court then set a briefing schedule on the issue and continued the trial to December 5, 2011 at 9:30 a.m.*fn4 Id. at 101.
Both parties have now submitted briefs regarding the admissibility of Exhibit 11A. See Dckt. Nos. 82-86. In their brief, defendants argue that the chart at issue was prepared as an "innovative mechanism for resolution" of the case and that no stipulations were filed or agreed to by defendants' former counsel, Robert Fried. Dckt. No. 82 at 3, 13. Defendants further contend that no stipulations were made or agreed to by defendants' current counsel.*fn5 Id. at 13. Defendants note that their version of the draft joint pretrial statement did not include language regarding Exhibit 11A, and contend that when plaintiff's counsel and defense counsel discussed the draft joint pretrial statement over the telephone on July 26, 2011, defendants' counsel "explained his unwillingness to stipulate to the admission of evidence from a meeting in which he did not participate three years ago." Id. at 14. Defendants contend that "Plaintiff's counsel acknowledged these trepidations and modified his joint statement on July 26, 2011," and that "[i]n light of same day deadline and opposing counsel's representation that Mr. Fried stipulated to the facts of Exhibit A, I approved for submission to the court plaintiff's counsel's version of the joint statement." Id.; Dckt. No. 86-3 ¶ 4. Defendants contend that their "present counsel would not have agreed to the joint pretrial statement but for the inaccurate representation [by plaintiff's counsel] that Robert Fried and Ronald DuFour stipulated to exhibit A" and submit declarations from both Robert Fried and Ronald DuFour, indicating that the May 15, 2008 meeting at which Exhibit 11A was drafted was intended to negotiate a settlement and that neither Mr. Fried nor Mr. DuFour ever agreed that the time estimates prepared at that meeting were accurate for purposes of this case. Dckt. No. 86 at 4; Dckt. No. 86-1 ¶¶ 4, 9, 10; Dckt. No. 86-2 ¶¶ 4, 9, 10.
Plaintiff counters that (1) defendant DuFour actually agreed to the facts in Exhibit 11A; (2) defendant's lawyers agreed to the facts in Exhibit 11A but were careful to preserve legal arguments regarding those facts; (3) defendants cannot meet the standard for relief from the pretrial order; and (4) judicial estoppel prevents defendant DuFour from withdrawing his factual agreement. Dckt. No. 83 at 1. Plaintiff also submitted a declaration from plaintiff's counsel, Matthew Gauger, and from plaintiff. Dckt. Nos. 84, 85.
After careful consideration of the arguments made on the record, as well as those set forth in the parties' briefs, the undersigned finds that there was never a meeting of minds between the parties regarding the admissibility of Exhibit 11A, and therefore there was never a stipulation between the parties as to that exhibit. The failure to reach an agreement as to what use could be made of the exhibit is evidenced by the ambiguous and conflicting language the parties included in their final pretrial statement, and their failure to either include in the exhibit or in a separately filed stipulation specific language confirming an agreement that certain facts would be deemed established and precisely what those facts are. To the extent the final pretrial order suggests that there was a stipulation between the parties as to Exhibit 11A, the court finds that the order must be modified in order to prevent manifest injustice.*fn6 Accordingly, defendants' motion to exclude Exhibit 11A is granted in part: Exhibit 11A may be used as a demonstrative exhibit and/or for purposes of cross-examination, but may not by itself be used to establish the truth of the information presented therein.
Accordingly, IT IS HEREBY ORDERED that: 1. Defendants' motion to exclude Exhibit 11A, Dckt. No. 77, is granted in part and denied in part: Exhibit 11A may be used as a demonstrative exhibit and/or for purposes of cross-examination, but may not by itself be used to establish the truth of the information presented therein.
2. The bench trial shall re-commence on Monday, December 5, ...