Preview
1 MICHAEL A. FARBSTEIN (Cal. SB# 107030)
Email: MAF@farbstein.com
2 BARBARA L. LYONS (Cal. SB# 173548)
Email: BLL@farbstein.com
3 FARBSTEIN & BLACKMAN
A Professional Corporation
4 411 Borel Avenue, Suite 425
San Mateo, California 94402-3518
5 Telephone: (650) 554-6200
Facsimile: (650) 554-6240
6
Attorneys for Defendant and Cross-Complainant
7 AMICI’S EAST COAST PIZZERIA, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11
12 HECTOR EVERARDO BAUTISTA Case No.: 21-CIV-03408
CASTANON, an individual, and LUIS
13 ALBERTO CHIQUETE, an individual, [PROPOSED] ORDER ON PLAINTIFF
AND CROSS-DEFENDANT HECTOR
14 Plaintiffs, EVERARDO BAUTISTA CASTANON AND
DEFENDANT AND
15 v. CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED
16 AMICI’S EAST COAST PIZZERIA, INC., and JURY INSTRUCTIONS
DOES 1-30, inclusive,
17 Date: June 13, 2024
Defendants. Time: 9:00 a.m.
18 Place: Department 28
400 County Center
19 AMICI’S EAST COAST PIZZERIA, INC. Redwood City, CA 94063
Judge: Hon. Nicole S. Healey
20 Cross-Complainant,
Complaint Filed: June 21, 2021
21 v. Cross-Complaint Filed: November 14, 2022
22 HECTOR EVERARDO BAUTISTA
CASTANON, an individual, and LUIS
23 ALBERTO CHIQUETE, an individual,
24 Cross-Defendants.
25
26
27
28
-1-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
1 100 Preliminary Admonitions Given as proposed _____
3
Given as modified _____
4
Refused _____
5
Withdrawn _____
6
2 101 Overview of the Trial Given as proposed _____
7
(Proposed by Amici’s) Given as modified _____
8
Refused _____
9
Withdrawn _____
10
2 101 Overview of the Trial Given as proposed _____
11
(Proposed by Castanon) Given as modified _____
12
Refused _____
13
Withdrawn _____
14
3 102 Obligation to Prove—Taking Notes Given as proposed _____
15
During the Trial Given as modified _____
16
Refused _____
17
Withdrawn _____
18
4 103 Multiple Parties Given as proposed _____
19
Given as modified _____
20
Refused _____
21
Withdrawn _____
22
5 104 Nonperson Party Given as proposed _____
23
Given as modified _____
24
Refused _____
25
Withdrawn _____
26
6 106 Evidence Given as proposed _____
27
Given as modified _____
28
-2-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
Refused _____
3
Withdrawn _____
4
7 107 Witnesses Given as proposed _____
5
Given as modified _____
6
Refused _____
7
Withdrawn _____
8
8 108 Duty to Abide by Translation Given as proposed _____
9
Provided in Court Given as modified _____
10
Refused _____
11
Withdrawn _____
12
9 109 Removal of Claims Given as proposed _____
13
Given as modified _____
14
Refused _____
15
Withdrawn _____
16
10 111 Instruction to Alternate Jurors Given as proposed _____
17
Given as modified _____
18
Refused _____
19
Withdrawn _____
20
11 112 Questions from Jurors Given as proposed _____
21
Given as modified _____
22
Refused _____
23
Withdrawn _____
24
12 113 Bias Given as proposed _____
25
Given as modified _____
26
Refused _____
27
Withdrawn _____
28
-3-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
13 114 Bench Conferences and Conferences Given as proposed _____
3
in Chambers Given as modified _____
4
Refused _____
5
Withdrawn _____
6
14 116 Why Electronic Communications and Given as proposed _____
7
Research Are Prohibited Given as modified _____
8
Refused _____
9
Withdrawn _____
10
15 117 Wealth of Parties Given as proposed _____
11
Given as modified _____
12
Refused _____
13
Withdrawn _____
14
16 200 Obligation to Prove—More Likely Given as proposed _____
15
True Than Not True Given as modified _____
16
Refused _____
17
Withdrawn _____
18
17 201 Highly Probable– Clear & Convincing Given as proposed _____
19
Proof Given as modified _____
20
(Proposed by Castanon) Refused _____
21
Withdrawn _____
22
18 202 Direct and Indirect Evidence Given as proposed _____
23
Given as modified _____
24
Refused _____
25
Withdrawn _____
26
19 203 Party Having Power to Produce Better Given as proposed _____
27
Evidence Given as modified _____
28
-4-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
Refused _____
3
Withdrawn _____
4
20 204 Willful Suppression of Evidence Given as proposed _____
5
(Proposed by Castanon) Given as modified _____
6
Refused _____
7
Withdrawn _____
8
21 205 Failure to Explain or Deny Evidence Given as proposed _____
9
Given as modified _____
10
Refused _____
11
Withdrawn _____
12
22 206 Evidence Admitted for Limited Given as proposed _____
13
Purpose Given as modified _____
14
Refused _____
15
Withdrawn _____
16
23 207 Evidence Applicable to One Party Given as proposed _____
17
Given as modified _____
18
Refused _____
19
Withdrawn _____
20
24 208 Deposition as Substantive Evidence Given as proposed _____
21
Given as modified _____
22
Refused _____
23
Withdrawn _____
24
25 209 Use of Interrogatories of a Party Given as proposed _____
25
Given as modified _____
26
Refused _____
27
Withdrawn _____
28
-5-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
26 212 Statement of a Party Opponent Given as proposed _____
3
Given as modified _____
4
Refused _____
5
Withdrawn _____
6
27 2701 Nonpayment of Wages—Essential Given as proposed _____
7
Factual Elements (Lab. Code, §§ 201, Given as modified _____
8
202, 218) Refused _____
9
Withdrawn _____
10
28 2702 Nonpayment of Overtime Given as proposed _____
11
Compensation—Essential Factual Given as modified _____
12
Elements (Lab. Code, § 1194) Refused _____
13
Withdrawn _____
14
29 2703 Nonpayment of Overtime Given as proposed _____
15
Compensation— Proof of Overtime Given as modified _____
16
Hours Worked Refused _____
17
Withdrawn _____
18
30 Special Hours Worked –––– Off-The-Clock Given as proposed _____
19
Hours Given as modified _____
20
(Proposed by Castanon) Refused _____
21
Withdrawn _____
22
31 Special Compensable Time Given as proposed _____
23
(Proposed by Castanon) Given as modified _____
24
Refused _____
25
Withdrawn _____
26
32 2750 Failure to Reimburse Employee for Given as proposed _____
27
Necessary Expenditures or Losses - Given as modified _____
28
-6-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
Essential Factual Elements (Lab. Refused _____
3
Code, § 2802(a)) (CACI No. 2750) Withdrawn _____
4
33 Special Necessary Expenditures Given as proposed _____
5
Given as modified _____
6
Refused _____
7
Withdrawn _____
8
34 2765 Meal Break Violations—Introduction Given as proposed _____
9
(Lab. Code, §§ 226.7, 512) Given as modified _____
10
Refused _____
11
Withdrawn _____
12
35 2766A Meal Break Violations—Essential Given as proposed _____
13
Factual Elements (Lab. Code, Given as modified _____
14
§§ 226.7, 512) Refused _____
15
Withdrawn _____
16
36 2767 Meal Break Violations—Pay Owed Given as proposed _____
17
(Lab. Code, §§ 226.7, 512) Given as modified _____
18
Refused _____
19
Withdrawn _____
20
37 2770 Affirmative Defense—Meal Breaks— Given as proposed _____
21
Waiver by Mutual Consent Given as modified _____
22
(Proposed by Castanon) Refused _____
23
Withdrawn _____
24
38 2760 Rest Break Violations—Introduction Given as proposed _____
25
(Lab. Code, §226.7)) Given as modified _____
26
Refused _____
27
Withdrawn _____
28
-7-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
39 2761 Rest Break Violations— Essential Given as proposed _____
3
Factual Elements (Lab. Code, § Given as modified _____
4
226.7)) Refused _____
5
Withdrawn _____
6
40 2762 Rest Break Violations— Pay Owed Given as proposed _____
7
(Lab. Code, § 226.7) Given as modified _____
8
Refused _____
9
Withdrawn _____
10
41 Special Wage Statement Claim (Labor Code § Given as proposed _____
11
226(e)) Given as modified _____
12
Refused _____
13
Withdrawn _____
14
42 Special Wage Statement Penalty (Labor Code Given as proposed _____
15
§ 226(e)) Given as modified _____
16
Refused _____
17
Withdrawn _____
18
43 2700 Nonpayment of Wages—Essential Given as proposed _____
19
Factual Elements (Lab. Code, §§ 201, Given as modified _____
20
202, 218) Refused _____
21
Withdrawn _____
22
44 2704 Waiting-Time Penalty for Given as proposed _____
23
Nonpayment of Wages (Lab. Code, Given as modified _____
24
§§ 203, 218) Refused _____
25
Withdrawn _____
26
27
28
-8-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
45 2500 Disparate Treatment—Essential Given as proposed _____
3
Factual Elements (Gov. Code, Given as modified _____
4
§ 12940(a)) Refused _____
5
Withdrawn _____
6
46 2505 Disparate Treatment—Essential Given as proposed _____
7
Factual Elements (Gov. Code, Given as modified _____
8
§ 12940(a)) Refused _____
9
Withdrawn _____
10
47 2507 “Substantial Motivating Reason” Given as proposed _____
11
Explained Given as modified _____
12
Refused _____
13
Withdrawn _____
14
48 2509 “Adverse Employment Action” Given as proposed _____
15
Explained [FEHA] Given as modified _____
16
Refused _____
17
Withdrawn _____
18
49 2512 Limitation on Remedies—Same Given as proposed _____
19
Decision Given as modified _____
20
Refused _____
21
Withdrawn _____
22
50 2513 Business Judgment Given as proposed _____
23
Given as modified _____
24
Refused _____
25
Withdrawn _____
26
51 2540 Disability Discrimination—Disparate Given as proposed _____
27
Treatment [FEHA] Given as modified _____
28
-9-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
Refused _____
3
Withdrawn _____
4
52 2541 Reasonable Accommodation – Given as proposed _____
5
Essential Factual Elements (Gov. Given as modified _____
6
Code § 12940(m)) Refused _____
7
Withdrawn _____
8
53 2542 “Reasonable Accommodation” Given as proposed _____
9
Explained (Gov. Code § 12926(p)) Given as modified _____
10
Refused _____
11
Withdrawn _____
12
54 2543 Disability Discrimination—“Essential Given as proposed _____
13
Job Duties” Explained (Gov. Code, §§ Given as modified _____
14
12926(f), 12940(a)(1)) Refused _____
15
Withdrawn _____
16
55 2546 Disability Discrimination – Failure to Given as proposed _____
17
Engage in Interactive Process (Gov. Given as modified _____
18
Code § 12940(n)) Refused _____
19
Withdrawn _____
20
56 3900 Introduction to Tort Damages— Given as proposed _____
21
Liability Contested Given as modified _____
22
Refused _____
23
Withdrawn _____
24
57 3902 Economic and Non-Economic Given as proposed _____
25
Damages Given as modified _____
26
Refused _____
27
Withdrawn _____
28
-10-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
58 3903 Items of Economic Damages Given as proposed _____
3
Given as modified _____
4
Refused _____
5
Withdrawn _____
6
59 3903A Past and Future Lost Earnings Given as proposed _____
7
(Economic Damage) Given as modified _____
8
Refused _____
9
Withdrawn _____
10
60 3903P Damages From Employer for Given as proposed _____
11
Wrongful Discharge (Economic Given as modified _____
12
Damage) Refused _____
13
(Proposed by Castanon) Withdrawn _____
14
15
61 3904A Present Cash Value Given as proposed _____
16
Given as modified _____
17
Refused _____
18
Withdrawn _____
19
62 3904B Use of Present-Value Tables Given as proposed _____
20
Given as modified _____
21
Refused _____
22
Withdrawn _____
23
63 3905 Items of Non-Economic Damage Given as proposed _____
24
Given as modified _____
25
Refused _____
26
Withdrawn _____
27
28
-11-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
64 3905A Physical Pain, Mental Suffering, and Given as proposed _____
3
Emotional Distress (Non-Economic Given as modified _____
4
Damage) Refused _____
5
Withdrawn _____
6
65 3904 No Punitive Damages Given as proposed _____
7
Given as modified _____
8
Refused _____
9
Withdrawn _____
10
66 3925 Arguments of Counsel Not Evidence Given as proposed _____
11
of Damages Given as modified _____
12
Refused _____
13
Withdrawn _____
14
67 3930 Mitigation of Damages (Personal Given as proposed _____
15
Injury) Given as modified _____
16
Refused _____
17
Withdrawn _____
18
68 3934 Damages on Multiple Legal Theories Given as proposed _____
19
Given as modified _____
20
Refused _____
21
Withdrawn _____
22
69 3960 Comparative Fault of Plaintiff— Given as proposed _____
23
General Verdict Given as modified _____
24
Refused _____
25
Withdrawn _____
26
70 3961 Duty to Mitigate Damages for Past Given as proposed _____
27
Lost Earnings Given as modified _____
28
-12-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
Refused _____
3
Withdrawn _____
4
71 3962 Duty to Mitigate Damages for Future Given as proposed _____
5
Lost Earnings Given as modified _____
6
Refused _____
7
Withdrawn _____
8
72 3963 Affırmative Defense - Employee’s Given as proposed _____
9
Duty to Mitigate Damages Given as modified _____
10
Refused _____
11
Withdrawn _____
12
73 3964 Jurors Not to Consider Attorney Fees Given as proposed _____
13
and Court Costs ( Given as modified _____
14
Refused _____
15
Withdrawn _____
16
74 1900 Intentional Misrepresentation Given as proposed _____
17
Given as modified _____
18
Refused _____
19
Withdrawn _____
20
75 1907 Reliance Given as proposed _____
21
Given as modified _____
22
Refused _____
23
Withdrawn _____
24
76 1908 Reasonable Reliance Given as proposed _____
25
Given as modified _____
26
Refused _____
27
Withdrawn _____
28
-13-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
77 Special Violation of Penal Code § 496(c) Given as proposed _____
3
(Adapted from CALCRIM 1750) Given as modified _____
4
Refused _____
5
Withdrawn _____
6
78 Special Damages for Violation of Penal Code Given as proposed _____
7
§ 496(c) (Adapted from CALCRIM Given as modified _____
8
1750) Refused _____
9
Withdrawn _____
10
79 5000 Duties of the Judge and Jury Given as proposed _____
11
Given as modified _____
12
Refused _____
13
Withdrawn _____
14
80 5002 Evidence Given as proposed _____
15
Given as modified _____
16
Refused _____
17
Withdrawn _____
18
81 5003 Witnesses Given as proposed _____
19
Given as modified _____
20
Refused _____
21
Withdrawn _____
22
82 5005 Multiple Parties [Concluding Given as proposed _____
23
Instructions] Given as modified _____
24
Refused _____
25
Withdrawn _____
26
83 5006 Non-Person Party Given as proposed _____
27
Given as modified _____
28
-14-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
Refused _____
3
Withdrawn _____
4
84 5007 Removal of Claims and Remaining Given as proposed _____
5
Claims Given as modified _____
6
Refused _____
7
Withdrawn _____
8
85 5008 Duty to Abide by Translation Given as proposed _____
9
Provided in Court [Concluding Given as modified _____
10
Instructions] Refused _____
11
Withdrawn _____
12
86 5009 Predeliberation Instructions Given as proposed _____
13
Given as modified _____
14
Refused _____
15
Withdrawn _____
16
87 5010 Taking Notes During Trial Given as proposed _____
17
Given as modified _____
18
Refused _____
19
Withdrawn _____
20
88 5011 Reading Back of Trial Testimony in Given as proposed _____
21
Jury Room Given as modified _____
22
Refused _____
23
Withdrawn _____
24
89 5012 Introduction to Special Verdict Form Given as proposed _____
25
Given as modified _____
26
Refused _____
27
Withdrawn _____
28
-15-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
1
NO. CACI NO. TITLE ORDER
2
91 5013 Deadlocked Juror Admonition Given as proposed _____
3
Given as modified _____
4
Refused _____
5
Withdrawn _____
6
92 5014 Substitution of Alternate Juror Given as proposed _____
7
Given as modified _____
8
Refused _____
9
Withdrawn _____
10
93 5015 Instruction to Alternate Jurors Given as proposed _____
11
Given as modified _____
12
Refused _____
13
Withdrawn _____
14
94 5016 Judge’s Commenting on Evidence Given as proposed _____
15
Given as modified _____
16
Refused _____
17
Withdrawn _____
18
95 5017 Polling the Jury Given as proposed _____
19
Given as modified _____
20
Refused _____
21
Withdrawn _____
22
23 IT IS SO ORDERED.
24 Dated: __________________________________
25
26 __________________________________
Hon. Nicole S. Healey
27 JUDGE OF THE SUPERIOR COURT
28
-16-
[PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO
BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST
COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)
Preview
1 MICHAEL A. FARBSTEIN (Cal. SB# 107030) Email: MAF@farbstein.com 2 BARBARA L. LYONS (Cal. SB# 173548) Email: BLL@farbstein.com 3 FARBSTEIN & BLACKMAN A Professional Corporation 4 411 Borel Avenue, Suite 425 San Mateo, California 94402-3518 5 Telephone: (650) 554-6200 Facsimile: (650) 554-6240 6 Attorneys for Defendant and Cross-Complainant 7 AMICI’S EAST COAST PIZZERIA, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 HECTOR EVERARDO BAUTISTA Case No.: 21-CIV-03408 CASTANON, an individual, and LUIS 13 ALBERTO CHIQUETE, an individual, [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR 14 Plaintiffs, EVERARDO BAUTISTA CASTANON AND DEFENDANT AND 15 v. CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED 16 AMICI’S EAST COAST PIZZERIA, INC., and JURY INSTRUCTIONS DOES 1-30, inclusive, 17 Date: June 13, 2024 Defendants. Time: 9:00 a.m. 18 Place: Department 28 400 County Center 19 AMICI’S EAST COAST PIZZERIA, INC. Redwood City, CA 94063 Judge: Hon. Nicole S. Healey 20 Cross-Complainant, Complaint Filed: June 21, 2021 21 v. Cross-Complaint Filed: November 14, 2022 22 HECTOR EVERARDO BAUTISTA CASTANON, an individual, and LUIS 23 ALBERTO CHIQUETE, an individual, 24 Cross-Defendants. 25 26 27 28 -1- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 1 100 Preliminary Admonitions Given as proposed _____ 3 Given as modified _____ 4 Refused _____ 5 Withdrawn _____ 6 2 101 Overview of the Trial Given as proposed _____ 7 (Proposed by Amici’s) Given as modified _____ 8 Refused _____ 9 Withdrawn _____ 10 2 101 Overview of the Trial Given as proposed _____ 11 (Proposed by Castanon) Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 3 102 Obligation to Prove—Taking Notes Given as proposed _____ 15 During the Trial Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 4 103 Multiple Parties Given as proposed _____ 19 Given as modified _____ 20 Refused _____ 21 Withdrawn _____ 22 5 104 Nonperson Party Given as proposed _____ 23 Given as modified _____ 24 Refused _____ 25 Withdrawn _____ 26 6 106 Evidence Given as proposed _____ 27 Given as modified _____ 28 -2- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 Refused _____ 3 Withdrawn _____ 4 7 107 Witnesses Given as proposed _____ 5 Given as modified _____ 6 Refused _____ 7 Withdrawn _____ 8 8 108 Duty to Abide by Translation Given as proposed _____ 9 Provided in Court Given as modified _____ 10 Refused _____ 11 Withdrawn _____ 12 9 109 Removal of Claims Given as proposed _____ 13 Given as modified _____ 14 Refused _____ 15 Withdrawn _____ 16 10 111 Instruction to Alternate Jurors Given as proposed _____ 17 Given as modified _____ 18 Refused _____ 19 Withdrawn _____ 20 11 112 Questions from Jurors Given as proposed _____ 21 Given as modified _____ 22 Refused _____ 23 Withdrawn _____ 24 12 113 Bias Given as proposed _____ 25 Given as modified _____ 26 Refused _____ 27 Withdrawn _____ 28 -3- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 13 114 Bench Conferences and Conferences Given as proposed _____ 3 in Chambers Given as modified _____ 4 Refused _____ 5 Withdrawn _____ 6 14 116 Why Electronic Communications and Given as proposed _____ 7 Research Are Prohibited Given as modified _____ 8 Refused _____ 9 Withdrawn _____ 10 15 117 Wealth of Parties Given as proposed _____ 11 Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 16 200 Obligation to Prove—More Likely Given as proposed _____ 15 True Than Not True Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 17 201 Highly Probable– Clear & Convincing Given as proposed _____ 19 Proof Given as modified _____ 20 (Proposed by Castanon) Refused _____ 21 Withdrawn _____ 22 18 202 Direct and Indirect Evidence Given as proposed _____ 23 Given as modified _____ 24 Refused _____ 25 Withdrawn _____ 26 19 203 Party Having Power to Produce Better Given as proposed _____ 27 Evidence Given as modified _____ 28 -4- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 Refused _____ 3 Withdrawn _____ 4 20 204 Willful Suppression of Evidence Given as proposed _____ 5 (Proposed by Castanon) Given as modified _____ 6 Refused _____ 7 Withdrawn _____ 8 21 205 Failure to Explain or Deny Evidence Given as proposed _____ 9 Given as modified _____ 10 Refused _____ 11 Withdrawn _____ 12 22 206 Evidence Admitted for Limited Given as proposed _____ 13 Purpose Given as modified _____ 14 Refused _____ 15 Withdrawn _____ 16 23 207 Evidence Applicable to One Party Given as proposed _____ 17 Given as modified _____ 18 Refused _____ 19 Withdrawn _____ 20 24 208 Deposition as Substantive Evidence Given as proposed _____ 21 Given as modified _____ 22 Refused _____ 23 Withdrawn _____ 24 25 209 Use of Interrogatories of a Party Given as proposed _____ 25 Given as modified _____ 26 Refused _____ 27 Withdrawn _____ 28 -5- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 26 212 Statement of a Party Opponent Given as proposed _____ 3 Given as modified _____ 4 Refused _____ 5 Withdrawn _____ 6 27 2701 Nonpayment of Wages—Essential Given as proposed _____ 7 Factual Elements (Lab. Code, §§ 201, Given as modified _____ 8 202, 218) Refused _____ 9 Withdrawn _____ 10 28 2702 Nonpayment of Overtime Given as proposed _____ 11 Compensation—Essential Factual Given as modified _____ 12 Elements (Lab. Code, § 1194) Refused _____ 13 Withdrawn _____ 14 29 2703 Nonpayment of Overtime Given as proposed _____ 15 Compensation— Proof of Overtime Given as modified _____ 16 Hours Worked Refused _____ 17 Withdrawn _____ 18 30 Special Hours Worked –––– Off-The-Clock Given as proposed _____ 19 Hours Given as modified _____ 20 (Proposed by Castanon) Refused _____ 21 Withdrawn _____ 22 31 Special Compensable Time Given as proposed _____ 23 (Proposed by Castanon) Given as modified _____ 24 Refused _____ 25 Withdrawn _____ 26 32 2750 Failure to Reimburse Employee for Given as proposed _____ 27 Necessary Expenditures or Losses - Given as modified _____ 28 -6- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 Essential Factual Elements (Lab. Refused _____ 3 Code, § 2802(a)) (CACI No. 2750) Withdrawn _____ 4 33 Special Necessary Expenditures Given as proposed _____ 5 Given as modified _____ 6 Refused _____ 7 Withdrawn _____ 8 34 2765 Meal Break Violations—Introduction Given as proposed _____ 9 (Lab. Code, §§ 226.7, 512) Given as modified _____ 10 Refused _____ 11 Withdrawn _____ 12 35 2766A Meal Break Violations—Essential Given as proposed _____ 13 Factual Elements (Lab. Code, Given as modified _____ 14 §§ 226.7, 512) Refused _____ 15 Withdrawn _____ 16 36 2767 Meal Break Violations—Pay Owed Given as proposed _____ 17 (Lab. Code, §§ 226.7, 512) Given as modified _____ 18 Refused _____ 19 Withdrawn _____ 20 37 2770 Affirmative Defense—Meal Breaks— Given as proposed _____ 21 Waiver by Mutual Consent Given as modified _____ 22 (Proposed by Castanon) Refused _____ 23 Withdrawn _____ 24 38 2760 Rest Break Violations—Introduction Given as proposed _____ 25 (Lab. Code, §226.7)) Given as modified _____ 26 Refused _____ 27 Withdrawn _____ 28 -7- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 39 2761 Rest Break Violations— Essential Given as proposed _____ 3 Factual Elements (Lab. Code, § Given as modified _____ 4 226.7)) Refused _____ 5 Withdrawn _____ 6 40 2762 Rest Break Violations— Pay Owed Given as proposed _____ 7 (Lab. Code, § 226.7) Given as modified _____ 8 Refused _____ 9 Withdrawn _____ 10 41 Special Wage Statement Claim (Labor Code § Given as proposed _____ 11 226(e)) Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 42 Special Wage Statement Penalty (Labor Code Given as proposed _____ 15 § 226(e)) Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 43 2700 Nonpayment of Wages—Essential Given as proposed _____ 19 Factual Elements (Lab. Code, §§ 201, Given as modified _____ 20 202, 218) Refused _____ 21 Withdrawn _____ 22 44 2704 Waiting-Time Penalty for Given as proposed _____ 23 Nonpayment of Wages (Lab. Code, Given as modified _____ 24 §§ 203, 218) Refused _____ 25 Withdrawn _____ 26 27 28 -8- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 45 2500 Disparate Treatment—Essential Given as proposed _____ 3 Factual Elements (Gov. Code, Given as modified _____ 4 § 12940(a)) Refused _____ 5 Withdrawn _____ 6 46 2505 Disparate Treatment—Essential Given as proposed _____ 7 Factual Elements (Gov. Code, Given as modified _____ 8 § 12940(a)) Refused _____ 9 Withdrawn _____ 10 47 2507 “Substantial Motivating Reason” Given as proposed _____ 11 Explained Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 48 2509 “Adverse Employment Action” Given as proposed _____ 15 Explained [FEHA] Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 49 2512 Limitation on Remedies—Same Given as proposed _____ 19 Decision Given as modified _____ 20 Refused _____ 21 Withdrawn _____ 22 50 2513 Business Judgment Given as proposed _____ 23 Given as modified _____ 24 Refused _____ 25 Withdrawn _____ 26 51 2540 Disability Discrimination—Disparate Given as proposed _____ 27 Treatment [FEHA] Given as modified _____ 28 -9- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 Refused _____ 3 Withdrawn _____ 4 52 2541 Reasonable Accommodation – Given as proposed _____ 5 Essential Factual Elements (Gov. Given as modified _____ 6 Code § 12940(m)) Refused _____ 7 Withdrawn _____ 8 53 2542 “Reasonable Accommodation” Given as proposed _____ 9 Explained (Gov. Code § 12926(p)) Given as modified _____ 10 Refused _____ 11 Withdrawn _____ 12 54 2543 Disability Discrimination—“Essential Given as proposed _____ 13 Job Duties” Explained (Gov. Code, §§ Given as modified _____ 14 12926(f), 12940(a)(1)) Refused _____ 15 Withdrawn _____ 16 55 2546 Disability Discrimination – Failure to Given as proposed _____ 17 Engage in Interactive Process (Gov. Given as modified _____ 18 Code § 12940(n)) Refused _____ 19 Withdrawn _____ 20 56 3900 Introduction to Tort Damages— Given as proposed _____ 21 Liability Contested Given as modified _____ 22 Refused _____ 23 Withdrawn _____ 24 57 3902 Economic and Non-Economic Given as proposed _____ 25 Damages Given as modified _____ 26 Refused _____ 27 Withdrawn _____ 28 -10- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 58 3903 Items of Economic Damages Given as proposed _____ 3 Given as modified _____ 4 Refused _____ 5 Withdrawn _____ 6 59 3903A Past and Future Lost Earnings Given as proposed _____ 7 (Economic Damage) Given as modified _____ 8 Refused _____ 9 Withdrawn _____ 10 60 3903P Damages From Employer for Given as proposed _____ 11 Wrongful Discharge (Economic Given as modified _____ 12 Damage) Refused _____ 13 (Proposed by Castanon) Withdrawn _____ 14 15 61 3904A Present Cash Value Given as proposed _____ 16 Given as modified _____ 17 Refused _____ 18 Withdrawn _____ 19 62 3904B Use of Present-Value Tables Given as proposed _____ 20 Given as modified _____ 21 Refused _____ 22 Withdrawn _____ 23 63 3905 Items of Non-Economic Damage Given as proposed _____ 24 Given as modified _____ 25 Refused _____ 26 Withdrawn _____ 27 28 -11- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 64 3905A Physical Pain, Mental Suffering, and Given as proposed _____ 3 Emotional Distress (Non-Economic Given as modified _____ 4 Damage) Refused _____ 5 Withdrawn _____ 6 65 3904 No Punitive Damages Given as proposed _____ 7 Given as modified _____ 8 Refused _____ 9 Withdrawn _____ 10 66 3925 Arguments of Counsel Not Evidence Given as proposed _____ 11 of Damages Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 67 3930 Mitigation of Damages (Personal Given as proposed _____ 15 Injury) Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 68 3934 Damages on Multiple Legal Theories Given as proposed _____ 19 Given as modified _____ 20 Refused _____ 21 Withdrawn _____ 22 69 3960 Comparative Fault of Plaintiff— Given as proposed _____ 23 General Verdict Given as modified _____ 24 Refused _____ 25 Withdrawn _____ 26 70 3961 Duty to Mitigate Damages for Past Given as proposed _____ 27 Lost Earnings Given as modified _____ 28 -12- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 Refused _____ 3 Withdrawn _____ 4 71 3962 Duty to Mitigate Damages for Future Given as proposed _____ 5 Lost Earnings Given as modified _____ 6 Refused _____ 7 Withdrawn _____ 8 72 3963 Affırmative Defense - Employee’s Given as proposed _____ 9 Duty to Mitigate Damages Given as modified _____ 10 Refused _____ 11 Withdrawn _____ 12 73 3964 Jurors Not to Consider Attorney Fees Given as proposed _____ 13 and Court Costs ( Given as modified _____ 14 Refused _____ 15 Withdrawn _____ 16 74 1900 Intentional Misrepresentation Given as proposed _____ 17 Given as modified _____ 18 Refused _____ 19 Withdrawn _____ 20 75 1907 Reliance Given as proposed _____ 21 Given as modified _____ 22 Refused _____ 23 Withdrawn _____ 24 76 1908 Reasonable Reliance Given as proposed _____ 25 Given as modified _____ 26 Refused _____ 27 Withdrawn _____ 28 -13- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 77 Special Violation of Penal Code § 496(c) Given as proposed _____ 3 (Adapted from CALCRIM 1750) Given as modified _____ 4 Refused _____ 5 Withdrawn _____ 6 78 Special Damages for Violation of Penal Code Given as proposed _____ 7 § 496(c) (Adapted from CALCRIM Given as modified _____ 8 1750) Refused _____ 9 Withdrawn _____ 10 79 5000 Duties of the Judge and Jury Given as proposed _____ 11 Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 80 5002 Evidence Given as proposed _____ 15 Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 81 5003 Witnesses Given as proposed _____ 19 Given as modified _____ 20 Refused _____ 21 Withdrawn _____ 22 82 5005 Multiple Parties [Concluding Given as proposed _____ 23 Instructions] Given as modified _____ 24 Refused _____ 25 Withdrawn _____ 26 83 5006 Non-Person Party Given as proposed _____ 27 Given as modified _____ 28 -14- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 Refused _____ 3 Withdrawn _____ 4 84 5007 Removal of Claims and Remaining Given as proposed _____ 5 Claims Given as modified _____ 6 Refused _____ 7 Withdrawn _____ 8 85 5008 Duty to Abide by Translation Given as proposed _____ 9 Provided in Court [Concluding Given as modified _____ 10 Instructions] Refused _____ 11 Withdrawn _____ 12 86 5009 Predeliberation Instructions Given as proposed _____ 13 Given as modified _____ 14 Refused _____ 15 Withdrawn _____ 16 87 5010 Taking Notes During Trial Given as proposed _____ 17 Given as modified _____ 18 Refused _____ 19 Withdrawn _____ 20 88 5011 Reading Back of Trial Testimony in Given as proposed _____ 21 Jury Room Given as modified _____ 22 Refused _____ 23 Withdrawn _____ 24 89 5012 Introduction to Special Verdict Form Given as proposed _____ 25 Given as modified _____ 26 Refused _____ 27 Withdrawn _____ 28 -15- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408) 1 NO. CACI NO. TITLE ORDER 2 91 5013 Deadlocked Juror Admonition Given as proposed _____ 3 Given as modified _____ 4 Refused _____ 5 Withdrawn _____ 6 92 5014 Substitution of Alternate Juror Given as proposed _____ 7 Given as modified _____ 8 Refused _____ 9 Withdrawn _____ 10 93 5015 Instruction to Alternate Jurors Given as proposed _____ 11 Given as modified _____ 12 Refused _____ 13 Withdrawn _____ 14 94 5016 Judge’s Commenting on Evidence Given as proposed _____ 15 Given as modified _____ 16 Refused _____ 17 Withdrawn _____ 18 95 5017 Polling the Jury Given as proposed _____ 19 Given as modified _____ 20 Refused _____ 21 Withdrawn _____ 22 23 IT IS SO ORDERED. 24 Dated: __________________________________ 25 26 __________________________________ Hon. Nicole S. Healey 27 JUDGE OF THE SUPERIOR COURT 28 -16- [PROPOSED] ORDER ON PLAINTIFF AND CROSS-DEFENDANT HECTOR EVERARDO BAUTISTA CASTANON AND DEFENDANT AND CROSS-COMPLAINANT AMICI’S EAST COAST PIZZERIA, INC.’S PROPOSED JURY INSTRUCTIONS (Case No.: 21-CIV-03408)