Andrade v. Costco Wholesale Corporation

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ISABELLA ANDRADE,
Plaintiff,
v.
COSTCO WHOLESALE CORPORATION,
Defendant.
Case No. 23-cv-06125-TSH
ORDER REQUESTING
SUPPLEMENTAL BRIEFING
This case is set to proceed to jury trial on February 23, 2026. On January 22, 2026, and
January 23, 2026, the parties submitted pretrial filings. See ECF Nos. 49, 51–56. The Court has
noticed some problems with these filings. The Court therefore orders the parties to file additional
materials as described below.
A. Jury Instructions
The parties filed Joint Proposed Jury Instructions. See ECF No. 56. First, there is a
discrepancy between the table of contents and instructions in that stipulated instruction No. 67,
titled, “2610 — Affirmative Defense—No Certification From Health Care Provider,” is listed in
the table of contents but does not appear in the instructions. The parties should explain this
discrepancy.
Second, stipulated instruction No. 17 states, “The parties have agreed to certain facts that
will be read to you.” ECF No. 56 at 24. However, there is no instruction provided that lists the
stipulated facts. The Court notices that the parties’ pretrial statement contains a list of undisputed
facts. See ECF No. 53 at 7–8. From this list, the Court can tell from the modified verdict form
that there are implied stipulations of fact. For example, the verdict form does not ask the jury to
determine whether Andrade was an employee of Costco. See ECF No. 54. However, for some
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United States District Court
Northern District of California
claims, the verdict form asks the jury to determine whether Costco discharged Andrade, which is
undisputed. See id. at 5; ECF No. 53 at 8. The parties should submit a proposed jury instruction
that lists the stipulated facts. The parties’ verdict form should align with the stipulated facts.
Third, the parties did not submit jury instructions for Andrade’s FMLA interference and
retaliation claims. The parties included these claims in their pretrial statement. See ECF No. 53 at
3. The jury should not encounter these claims for the first time on the verdict form. The parties
should submit proposed jury instructions addressing the FMLA claims or competing proposals
addressing the same.
Fourth, the parties’ proposed verdict form contains instructions on duplicative damages,
but the jury instructions do not contain such an instruction. The Court prefers not to include jury
instructions in the verdict form. The parties should submit a proposed jury instruction addressing
duplicative damages or competing proposals addressing the same. Further, as discussed below,
damages are calculated differently for the FMLA claims than for the other claims. The parties
should submit a proposed jury instruction that addresses apportioning damages under the FMLA.
B. Verdict Form
The parties filed a Joint Proposed Special Verdict Form. See ECF No. 54. First, the
verdict form does not address Andrade’s FEHA harassment claim, CFRA retaliation claim, or
FMLA interference/retaliation claims. The parties included these claims in their pretrial statement
and submitted jury instructions for the harassment and CFRA claims. See ECF No. 53 at 3; ECF
No. 56 at 50–53, 60–64. The parties should submit a revised verdict form that includes the FEHA
harassment claim, CFRA retaliation claim, and FMLA interference/retaliation claims.
In addition, the verdict form lists the claim, “Failure to Prevent Discrimination or
Retaliation.” ECF No. 54 at 8. However, this claim is titled, “Failure to Prevent and Investigate
Discrimination and Harassment,” in the parties’ pretrial statement and “Failure to Prevent
Harassment, Discrimination, or Retaliation” in the jury instructions. See ECF No. 53 at 3; ECF
No. 56 at 54. The parties should ensure that the jury instructions and verdict form align with
respect to the claims at issue.
Second, the verdict form must have a separate entry for FMLA damages because damages
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calculations under the FMLA differ from those of other claims. For example, the FMLA permits
liquidated damages calculated from the economic damages caused by the FMLA violation. 29
U.S.C. § 2617(a)(1)(A)(iii). Andrade seeks liquidated damages. ECF No. 49 at 23. If the Court
uses an undifferentiated verdict form, it cannot determine the amount of damages attributable to
the FMLA violation. See Jadwin v. Cnty. of Kern, No. 07-cv-0026-OWW-DLB, 2010 WL
1267264, at *13 (E.D. Cal. Mar. 31, 2010) (“The use of the general undifferentiated verdict form
makes it impossible to determine whether the damages the jury awarded were based on an FMLA
violation or some other non-FMLA violation.”). Therefore, the verdict form must identify what
damages are from the FMLA claims. One approach is for the verdict form to ask for all damages
(as it does now) and then ask what amount, if any, is attributed to FMLA violations. On their
revised verdict form, the parties should specify how the jury should apportion any applicable
FMLA damages, including whether FMLA damages are a subset of past economic loss.
C. Witnesses
The parties filed a Joint Witness List with their pretrial statement. See ECF No. 53 at 14–
16. Costco objects to three of Andrade’s planned witnesses. Id. The parties should each provide
their point of view on whether these witnesses should be permitted to testify at trial.
Accordingly, the Court ORDERS the parties to file a joint brief setting forth their
respective views on issues identified above. The parties shall file revised proposed jury
instructions and a revised proposed verdict form with this brief and should explain any changes in
the brief. The parties shall file these materials no later than February 2, 2026.
IT IS SO ORDERED.
Dated: January 28, 2026
THOMAS S. HIXSON
United States Magistrate Judge
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