1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ARROWOOD INDEMNITY COMPANY, a No. 2:21-cv-00397 WBS JDP Delaware corporation, formerly 13 known as ROYAL INSURNACE COMPANY, and successor to ROYAL 14 GLOBE INSURANCE COMPANY, ORDER 15 Plaintiff, 16 v. 17 CITY OF WEST SACRAMENTO; and ROES 1-50, inclusive, 18 Defendant. 19

20 ----oo0oo---- 21 22 The parties have filed cross motions for summary 23 judgment, (Docket Nos. 41, 48), currently set for oral argument 24 on December 13, 2021. Defendant City of West Sacramento 25 concurrently filed a “Motion in Limine” to exclude testimony of 26 plaintiff’s expert witness, Thomas Delfino, to be heard the same 27 day. (Docket No. 47). 28 A motion in limine is typically a motion regarding 1 preliminary matters related to the trial. See City of Pomona v. 2 SQM N. Am. Corp., 886 F.3d 1060, 1070 (9th Cir. 2017). However, 3 defendant states that the motion “can’t wait for a pre-trial 4 hearing.” (Mot. in Limine at 2 (Docket No. 47-1).) Accordingly, 5 given the current stage of this litigation, the court construes 6 defendant’s Motion in Limine as a motion to strike Delfino’s 7 testimony from consideration as the court decides the parties’ 8 cross motions for summary judgment. Therefore, the court cannot 9 properly consider the cross motions for summary judgment until it 10 considers the preliminary matter of the admissibility of 11 Delfino’s testimony. 12 Plaintiff Arrowood Indemnity Company requests that the 13 court, in considering defendant’s Motion in Limine, hold a 14 Daubert hearing to evaluate the admissibility of Delfino’s 15 testimony. (Opp. at 31 (Docket No. 50).) A Daubert hearing is 16 properly requested at the summary judgment stage. See Nixon-Egli 17 Equipment Co. v. John A. Alexander Co., 949 F. Supp. 1435, 1447 18 (C.D. Cal. 1996) (“As the Ninth Circuit has . . . made clear, the 19 Daubert standard can be invoked at the summary judgment stage as 20 well as at trial or in motions in limine. In the Court's 21 experience, a well-reasoned Daubert motion can be dispositive in 22 cases such as the one at bar; at the very least, such motions can 23 limit the issues for trial.”) (citing Lust v. Merrell Dow Pharm., 24 Inc., 89 F. 3d 594 (9th Cir. 1996)). 25 Accordingly, the hearing on the parties’ cross motions 26 for summary judgment is vacated, and the court will hear argument 27 on defendant’s Motion in Limine on December 13, 2021 at 1:30 p.m. 28 via videoconference. Counsel for plaintiff is directed to have eee RR EE RI NE OI EO

1 Thomas Delfino present via Zoom for questioning on the Daubert 2 issue at that time. The hearing on the cross motions for summary 3 judgment will be reset after the court’s ruling on the motion in 4 limine. 5 IT IS SO ORDERED. 6 . . 7 | Dated: December 3, 2021 ahi hem A fh be

WILLIAM B. SHUBB

8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28