Preview
L. Sandelman SBN 078020
Sum F
Raymond
Attorney at Law I
mm?“ Bum I
196 Cohasset Road, Suite 225 L 3/24/2021
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Chico, CA 95926—2284
E E
(530) 343—5090 / (530) 343—5091 (FAX) D D
Ki FIB
Email:Raymond@sandelmanlaw.com
Br Dawn!
m LED
Attorney for Wayne A. Cook, individually
and as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
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WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
11 WAYNE A. COOK 1998 FAMILY
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TRUST DATED 12/29/98, MOTIONS IN LIMINE
Plaintiff,
13 Attached Document: Declaration of Raymond L.
V'
Sandelman
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Hearing Date: 4/1/2021
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EDWARD F. NIDEROST, et. al., Hearing Time: 1:30 pm.
16 Department: 1
Dafendams'
Judge: Tamara Mosbarger
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/ Date of Complaint: 4/22/2020
18 Trial Date: 4/5/21
AND RELATED CROSS COMPLAINTS
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/
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21 TO EDWARD NIDEROST, INDIVIDUALLY AND AS TRUSTEE OF THE EDWARD F.
22 NIDEROST REVOCABLE LIVING TRUST, AND THEIR ATTORNEY LELAND, MORRISSEY
23 & KNOWLES LLP, AND ALL OTHER PARTIES:
24 Wayne A. Cook, Individually and as Trustee of The Wayne A. Cook 1998 Family Trust
25 Dated 12/29/98 move this Court for orders that:
26 (a) The defense of unconscionability should be limited to the Fine Note and Deed of Trust;
27 (b) Scott Hamm and Teresa Campbell should be barred from testifying on direct examination
28 as to the details of hearsay they relied upon.
MOTIONS IN LIMINE
(c) No statements about settlement Offers should be proffered.
(d) Bill Chance should not be examined concerning a breach of fiduciary duty claim.
This motion is made 0n the grounds that inadmissible evidence should be excluded and that
the court in its discretion may exclude evidence if itsprobative value is substantially outweighed by
the probability that its admission will necessitate undue consumption of time.
The motion is based on the pleadings, records and files in this action, the attached
Memorandum of Points and Authorities, the supporting Declaration of Raymond L. Sandelman, and
the attached Request for Judicial Notice.
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Dated: 3‘3 UJx 25% ZO'L.
723%
Sc”
95926-2284
11 Raymond L. Sandelman
Attorney for Wayne A. Cook, individually and
of The A.
(530) 343—5090 / (530) 343—5091 (FAX)
12 as Trustee Wayne Cook 1998 family
196 COHASSET ROAD, SUITE 225, CHICO, CA
Trust Dated 12/29/98
RAYMOND L. SANDELMAN
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ATTORNEY AT LAW
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MOTIONS IN LIMINE
MEMORANDUM OF POINTS AND AUTHORITIES
1. Procedural Aspects Of A Motion In Limine
1. [4:220] Nature of Motion: A motion in limine is a motion “at the threshold”
of trial to exclude evidence deemed inadmissible . . .
Motions in limine serve other purposes as well: They permit more careful
consideration of evidentiary issues than would take place in the heat of battle during
trial. They minimize sidebar conferences and disruptions during trial. Finally, by
resolving critical evidentiary issues at the outset, they enhance efficiency of the trial
process and promote settlements. [People v.Morris, supra, 53 C3d at 188, 279 CR at
739; Kelly v. New West Fed. Sav. (1996) 49 CA4th 659, 669—670, 56 CR2d 803, 808]
(a) [42290.1] Notice of hearing not required: Motions in limine need not,
however, be accompanied by a notice of hearing. [See CRC 3.1112(f)]
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Wegner, Fairbank, and Epstein, California Practice Guide: Civil Trials and Evidence
11 (2020 The Rutter Group)
12 2. The Defense Of Unconscionability Should
95926-2284
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Be Limited To The Fine Note And Deed Of Trust
(530) 343—5090 / (530) 343-5091 (FAX)
l4 The affirmative defense of unconscionability in the Amended Answer that the terms
196 COHASSET ROAD, SUITE 225, CHICO, CA
alleges
RAYMOND L. SANDELMAN
of the Fine Note Deed of Trust were unconscionable Defendant’s
ATTORNEY AT LAW
15 and conditions and given position
16 when made and were unconscionably exercised. The plain language of the claim is that the claim of
17 unconscionability concerns only the Fine Note and Deed of Trust. Evidence as to other contracts
18 being unconscionable is legally irrelevant because they are not pertinent to the issues raised by the
19 pleadings.
20 Evidence which is not pertinent to the issues raised by the pleadings is
immaterial, and it is error to allow the introduction of such evidence. [Citations]
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Fuentes v. Tucker (1947) 31 Cal.2d 1, 4—5
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Evidence which is not pertinent to the issues raised by the pleadings is
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immaterial, and it is error to allow introduction of such evidence. (Rainer v.
24 Community Memorial Hosp, 18 Cal.App.3d 240, 253, 95 Cal.Rptr. 901.)
25 Cora v. County of Los Angeles (1980) 105 Cal.App.3d 282, 293
26 “N0 evidence isadmissible except relevant evidence” (Evid. Code, § 350). The court in its
27 discretion may exclude evidence if itsprobative value issubstantially outweighed by the probability
28 that its admission will (a) necessitate undue consumption of time . . .”(Evid. Code, § 352).
MEMORANDUM OF POINTS AND AUTHORITIES
After the articulation of the Second Affirmative Defense of unconscionability with respect to
the Fine Note and Deed of Trust, the Amended Answer goes on to allege Third and Fourth
Affirmative Defenses. As part of the Fourth Affirmative Defense there is a section that begins at
Page 4 line l3 entitled “Facts in Support.” These facts are not incorporated by reference into the
Second Affirmative Defense of unconscionability. The rule for pleading affirmative defenses is
simple and clear: affirmative defenses must be separately stated. (“(c) [6:468] Separately stated:
The various affirmative defenses must be separately stated; and must refer to the causes of action to
”
which they relate “in a manner by which they may be intelligently distinguished. [Citations] (Weil
& Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)) The
10 “Facts in Support” are not part of the separately stated Second Affirmative Defense. There is no
95926—2284
11 allegation in the “Facts in Support” that articulates, that mentions that any contracts other than the
Fine Note and Fine Deed of Trust isunconscionable.
(530) 343—5090 / (530) 343-5091 (FAX)
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196 COHASSET ROAD, SUITE 225, CHICO, CA
RAYMOND L. SANDELMAN
l3 Barred From
3. Scott Hamm And Theresa Should Be
ATTORNEY AT LAW
Campbell
14 Testifying On Direct Examination As To The Details Of Hearsay They Relied Upon
15 Scott Hamm is an appraiser and a retained expert witness disclosed by Defendants. Theresa
16 Campbell is the current broker who has a listing to sell the Miller Mansion; she isalso a retained
17 expert witness disclosed by Defendants. Both witnesses were deposed and testified that, almost
18 exclusively, they relied on data from others.
19 The Rutter text explains the law and recommends that a motion in limine be filed so that the
20 court will instruct the witness not to reveal the substance of any hearsay communication on direct
21 examination.
22 (e) [8:759] Limitation—no “details” of inadmissible evidence: While an
expert may state on direct examination the matters on which he or she relied, the
23 if
expert may not testify as t0 the details of those matters they are otherwise
24 inadmissible. i.e., “he may not under the guise of reasons bring before the jury
incompetent hearsay evidence.” [People v. Coleman (1985) 38 C3d 69, 92, 211 CR
25 102, 116 (disapproved on other grounds by People v. Sanchez (2016) 63 C4th 665,
686, 204 CR3d 102, 119, fn. 13)]
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For example: .. .
27 2) [8:761] Supporting data in inadmissible reports: Likewise, while an expert
may state on direct examination he or she relied on information contained in certain
28 the not as to the contents of such reports. [Continental
reports, expert may testify
x 4
MEMORANDUM OF POINTS AND AUTHORITIES
Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 CA3d 388, 416, 264 CR 779,
794 (criticized 0n other grounds by Riverisland Cold Storage, Inc. v. Fresno-Madera
Production Credit Ass 'n (2013) 55 C4th 1169, 1178, 151 CR3d 93, 100, fn. 7)]
0
[8:762] For example, an automotive expert was permitted to testify he relied
on literature, reports and tests conducted by others in formulating his opinion on safety
tests and the feasibility of alternative designs. But he was not permitted to read the
reports or relate their contents in detail to the jury. [Grimshaw v. Ford Motor Co.
(1981) 119 CA3d 757, 788, 174 CR 348, 368 (disapproved on other grounds by Kim
v. Toyota Motor Corp. (2018) 6 C5th 21, 38, 237 CR3d 205, 219, fn. 6] .. .
ED [8:766] PRACTICE POINTER: If you are the opposing counsel, be on
your toes when expert witnesses are asked to explain the “reasons” or “basis” for their
opinion.
Expert witnesses commonly cross the line and disclose the contents of the
inadmissible hearsay in the process of explaining their “reasons.” For example:
- “l sent the x-rays to Specialist for confirmation of my opinion”; or
10 o “I reviewed the crash tests conducted by the Michigan University staff
95926-2284
11 that came to the same conclusion ”; or
o “I researched the point and noted that every major medical text
(530) 343—5090 / (530) 343-5091 (FAX)
12 recommended the same treatment for this condition.”
196 COHASSET ROAD, SUITE 225, CHICO, CA
To prevent this, you have to be sharp with your hearsay objection.
RAYMOND L. SANDELMAN
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raise the issue motion in limine or side bar in the expert's
ATTORNEY AT LAW
(Better yet, by early
l4 testimony and ask the court to instruct the witness not to reveal the substance of any
communication from anyone else unless the question specifically calls for it.)
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(underlining added)
16 4. No Statements About Settlement Offers Should Be Proffered
l7 In discovery responses, Mr. Denton has referred to a settlement offer made by Plaintiff. The
l8 Court should instruct Mr. Denton and his counsel not to discuss settlement offers.
19 a. [8:2798] Inadmissible to prove offeror’s liability: “Evidence that a person
has, in compromise or from humanitarian motives, furnished or offered or promised
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to furnish money or any other thing, act, or service to another who has sustained or
21 will sustain or claims that he or she has sustained or will sustain loss or damage, as
well as any conduct or statements made in negotiation thereof, is inadmissible to prove
22 his or her liability for the loss or damage or any part of it.” [Ev.C. § 1152 (emphasis
23 added); see San Joaquin County v. Galletti (1967) 252 CA2d 840, 842—843, 61 CR
62, 64 & fn. 1; see also Caira v. Ofiner (2005) 126 CA4th 12, 30, 32, 24 CR3d 233,
24 246, 248; and Hasler v. Howard (2004) 120 CA4th 1023, 1026, 16 CR3d 217, 219]
25 Offers to Discount Claim: A similar exclusion to
3. [8:2830] applies
26 settlement negotiations offered to prove the invalidity of the offeror's claim: “Evidence
that a person has accepted (or offered to accept) a sum of money or any other thing
27 in satisfaction of a claim is inadmissible to prove the invalidity of the claim.” [Ev.C.
§ 1154 (emphasis added); see Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
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MEMORANDUM OF POINTS AND AUTHORITIES
(2018) 19 CASth 525, 534, 228 CR3d 120, 126; Zhou v. Unisource Worldwide, Inc.
(2007) 157 CA4th 1471, 1475, 69 CR3d 273, 276—277—“Secti0n 1154 stems from the
same policy of encouraging settlement and compromise that is reflected in Section
1152”]
Wegner, Fairbank, and Epstein, California Practice Guide: Civil Trials and Evidence
(The Rutter Group 2020)
5. Bill Chance Should Not Be Examined Concerning A Breach Of Fiduciary Duty Claim
Cross~Complainants have improperly tried to add a claim against Bill Chance for breach of
fiduciary duty. First they tried to name him as a Doe without getting Court approval.
b) [6:614] Leave routinely granted ex parte: In most courts, leave to amend to
substitute a defendant's true name for “Doe” is routinely granted without notice or
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hearing of any kind. The application for leave to amend is simply presented to a judge
95926-2284
or commissioner for signature.
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(Some judges insist on noticed hearings because CCP § 473(a) does not
specifically provide otherwise.)
(530) 343—5090 / (530) 343-5091 (FAX)
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196 COHASSET ROAD, SU1TE 225, CHICO, CA
RAYMOND L. SANDELMAN
13 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
ATTORNEY AT LAW
14 Group 2020)
15 Then Cross—Complainants improperly tried to add a claim against Bill Chance in a Second
16 Amended Cross Complaintl when the order sustaining the demurrer with leave to amend permitted
17 amendments only as specified in the opposition brief to the demurrer.
18 (b) [7: 148. la] Scope of permissible amendment: When a demurrer is
sustained with leave to amend, the leave must be construed as permission to the pleader
19 amend the causes action to which the demurrer has been not add
to 0f sustained,
entirely new causes of action. [Patrick v. Alacer Corp. (2008) 167 CA4th 995, 1015,
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84 CR3d 642, 660; Zakk v. Diesel (2019) 33 CA5th 431, 456, 245 CR3d 215, 236]
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Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
22 Group 2020)
23 Whatever the merits to any claim against Bill Chance, itis not appropriate to resolve those
24 issues at the trial set for April 5, 2021. Discussion of those issue have no relevance to the claims
25 asserted in the dispute to be tried. The court should exclude evidence if its probative value is
26 substantially outweighed by the probability that itsadmission will (a) necessitate undue consumption
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‘ So far counsel for
28 Wayne Cook has only seen a proposed Second Amended Cross Compliant.
MEMORANDUM OF POINTS AND AUTHORITIES
of time. (Evid. Code, § 352).
Dated: Molt-J, afi‘zc-ZQ KFLSLBLW M“
Raymond L. Sandelman
Attorney for Wayne A. Cook, individually and
as Trustee of The Wayne A. Cook 1998 family
Trust Dated 12/29/98
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95926-2284
ll
(530) 343—5090 / (530) 343—5091 (FAX)
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196 COHASSET ROAD, SUITE 225, CHICO, CA
RAYMOND L. SANDELMAN
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ATTORNEY AT LAW
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MEMORANDUM OF POINTS AND AUTHORITIES
Raymond L. Sandelman SBN 078020
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926—2284
(530) 343-5090 / (530) 343—5091 (FAX)
Email:Raymond@sande1manlaw.com
Attorney for Wayne A. Cook, individually
and as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
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WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
11 WAYNE A. COOK 1998 FAMILY
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TRUST DATED 12/29/98, DECLARATION OF RAYMOND L.
Plaintiff, SANDELMAN IN SUPPORT OF MOTIONS
13 IN LIMINE
V
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15 Hearing Date: 4/1/2021
EDWARD F. NIDEROST, et. al., Hearing Time; 1:30 pm.
16 Department: 1
Defendants'
Judge: Tamara Mosbarger
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/ Date of Complaint: 4/22/2020
18 Trial Date: 4/5/21
AND RELATED CROSS COMPLAINTS
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/
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22 I, Raymond L. Sandelman, declare that:
23 1. I am an attorney licensed to practice inall California State courts, and attorney for Wayne
24 A. Cook, Individually and as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 in
25 the above—entitled action.
26 2. I deposed Scott Hamm, a retained expert witness designated by the Defendants. Mr.
27 Hamm testified that, almost exclusively, he relied on data from others. He produced voluminous
28 documents that had data that generated by persons other than himself.
DECLARATION OF RAYMOND L. SANDELMAN
3. I deposed Theresa Kym Campbell, a retained expert witness designated by the Defendants.
Ms. Campbell also testified that that she relied on data from others.
4. In discovery responses, Mr. Denton has referred to a settlement offer made by Plaintiff.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Dated: M fiérmgcmc Emma ‘
Raymond L. Sandelman
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95926—2284
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(530) 343—5090 / (530) 343—5091 (FAX)
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196 COHASSET ROAD, SUITE 225, CHICO, CA
RAYMOND L. SANDELMAN
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ATTORNEY AT LAW
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DECLARATION OF RAYMOND L. SANDELMAN
PROOF OF SERVICE
I, Wendy Hoy, declare as follows:
I am employed in the County of Butte, State of California; I am over the age of 18 years and
not a party to this action; my business address is 196 Cohasset Road, Suite 225, Chico California
95926—2284, in said County and State. On March 22/7 , 2021, I served copies of the Motions In
Limine; and Declaration Of Raymond L. Sandelman In Support Of Motions In Limine on the
following person(s) at the following address(s), in the manner indicated below:
Gene Culley Larry Gene Lushanko
2185 Esplanade Law Office of Larry G. Lushanko
Chico, CA 95926 1241 E Mission Rd.
Fallbrook, CA 92028
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11 Sara M. Knowles, Esq.
Leland, Morrissey & Knowles LLP
12 1660 Humboldt Road, Suite 6
13 Chico, CA 95928
CA 95926-2284
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X BY TRANSMITTING THE DOCUMENT(S) ELECTRONICALLY Via the following
(530) 343—5090 / (530) 343—5091 (FAX)
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email addresses: offiee@lushankolaw.com; gculley@sbcgloba1.net;
196 COHASSET ROAD, SUITE 225, CHICO,
16 sknowles@chicolawyer.com
ATTORNEY AT LAW
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X BY UNITED STATES MAIL enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses shown above and placed the envelope for collection
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and mailing, following our ordinary business practices. I am readily familiar with this
19 business's practice for collecting and processing correspondence for mailing, itis deposited in the
ordinary course of business with the United States Postal Service, in a sealed envelope with postage
20 l am in the where the occurred. The or
fully prepaid. employed county mailing envelope package
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was placed in the mail at Chico, CA.
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I certify under penalty of perjury that the foregoing is true and correct, and this declaration
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OLE/ac
of service was executed on March
21,2021 at Chico,
Calif
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25 /ndy Hoy
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28 wayne 1814lliminie 323.docx
m:lorig_datalw0rklclient directorieslcook,
PROOF OF SERVICE
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L. Sandelman SBN 078020 Sum F Raymond Attorney at Law I mm?“ Bum I 196 Cohasset Road, Suite 225 L 3/24/2021 L Chico, CA 95926—2284 E E (530) 343—5090 / (530) 343—5091 (FAX) D D Ki FIB Email:Raymond@sandelmanlaw.com Br Dawn! m LED Attorney for Wayne A. Cook, individually and as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE 10 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 11 WAYNE A. COOK 1998 FAMILY 12 TRUST DATED 12/29/98, MOTIONS IN LIMINE Plaintiff, 13 Attached Document: Declaration of Raymond L. V' Sandelman 14 Hearing Date: 4/1/2021 15 EDWARD F. NIDEROST, et. al., Hearing Time: 1:30 pm. 16 Department: 1 Dafendams' Judge: Tamara Mosbarger 17 / Date of Complaint: 4/22/2020 18 Trial Date: 4/5/21 AND RELATED CROSS COMPLAINTS 19 / 20 21 TO EDWARD NIDEROST, INDIVIDUALLY AND AS TRUSTEE OF THE EDWARD F. 22 NIDEROST REVOCABLE LIVING TRUST, AND THEIR ATTORNEY LELAND, MORRISSEY 23 & KNOWLES LLP, AND ALL OTHER PARTIES: 24 Wayne A. Cook, Individually and as Trustee of The Wayne A. Cook 1998 Family Trust 25 Dated 12/29/98 move this Court for orders that: 26 (a) The defense of unconscionability should be limited to the Fine Note and Deed of Trust; 27 (b) Scott Hamm and Teresa Campbell should be barred from testifying on direct examination 28 as to the details of hearsay they relied upon. MOTIONS IN LIMINE (c) No statements about settlement Offers should be proffered. (d) Bill Chance should not be examined concerning a breach of fiduciary duty claim. This motion is made 0n the grounds that inadmissible evidence should be excluded and that the court in its discretion may exclude evidence if itsprobative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. The motion is based on the pleadings, records and files in this action, the attached Memorandum of Points and Authorities, the supporting Declaration of Raymond L. Sandelman, and the attached Request for Judicial Notice. 10 Dated: 3‘3 UJx 25% ZO'L. 723% Sc” 95926-2284 11 Raymond L. Sandelman Attorney for Wayne A. Cook, individually and of The A. (530) 343—5090 / (530) 343—5091 (FAX) 12 as Trustee Wayne Cook 1998 family 196 COHASSET ROAD, SUITE 225, CHICO, CA Trust Dated 12/29/98 RAYMOND L. SANDELMAN 13 ATTORNEY AT LAW 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTIONS IN LIMINE MEMORANDUM OF POINTS AND AUTHORITIES 1. Procedural Aspects Of A Motion In Limine 1. [4:220] Nature of Motion: A motion in limine is a motion “at the threshold” of trial to exclude evidence deemed inadmissible . . . Motions in limine serve other purposes as well: They permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial. They minimize sidebar conferences and disruptions during trial. Finally, by resolving critical evidentiary issues at the outset, they enhance efficiency of the trial process and promote settlements. [People v.Morris, supra, 53 C3d at 188, 279 CR at 739; Kelly v. New West Fed. Sav. (1996) 49 CA4th 659, 669—670, 56 CR2d 803, 808] (a) [42290.1] Notice of hearing not required: Motions in limine need not, however, be accompanied by a notice of hearing. [See CRC 3.1112(f)] 10 Wegner, Fairbank, and Epstein, California Practice Guide: Civil Trials and Evidence 11 (2020 The Rutter Group) 12 2. The Defense Of Unconscionability Should 95926-2284 13 Be Limited To The Fine Note And Deed Of Trust (530) 343—5090 / (530) 343-5091 (FAX) l4 The affirmative defense of unconscionability in the Amended Answer that the terms 196 COHASSET ROAD, SUITE 225, CHICO, CA alleges RAYMOND L. SANDELMAN of the Fine Note Deed of Trust were unconscionable Defendant’s ATTORNEY AT LAW 15 and conditions and given position 16 when made and were unconscionably exercised. The plain language of the claim is that the claim of 17 unconscionability concerns only the Fine Note and Deed of Trust. Evidence as to other contracts 18 being unconscionable is legally irrelevant because they are not pertinent to the issues raised by the 19 pleadings. 20 Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and it is error to allow the introduction of such evidence. [Citations] 21 Fuentes v. Tucker (1947) 31 Cal.2d 1, 4—5 22 Evidence which is not pertinent to the issues raised by the pleadings is 23 immaterial, and it is error to allow introduction of such evidence. (Rainer v. 24 Community Memorial Hosp, 18 Cal.App.3d 240, 253, 95 Cal.Rptr. 901.) 25 Cora v. County of Los Angeles (1980) 105 Cal.App.3d 282, 293 26 “N0 evidence isadmissible except relevant evidence” (Evid. Code, § 350). The court in its 27 discretion may exclude evidence if itsprobative value issubstantially outweighed by the probability 28 that its admission will (a) necessitate undue consumption of time . . .”(Evid. Code, § 352). MEMORANDUM OF POINTS AND AUTHORITIES After the articulation of the Second Affirmative Defense of unconscionability with respect to the Fine Note and Deed of Trust, the Amended Answer goes on to allege Third and Fourth Affirmative Defenses. As part of the Fourth Affirmative Defense there is a section that begins at Page 4 line l3 entitled “Facts in Support.” These facts are not incorporated by reference into the Second Affirmative Defense of unconscionability. The rule for pleading affirmative defenses is simple and clear: affirmative defenses must be separately stated. (“(c) [6:468] Separately stated: The various affirmative defenses must be separately stated; and must refer to the causes of action to ” which they relate “in a manner by which they may be intelligently distinguished. [Citations] (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)) The 10 “Facts in Support” are not part of the separately stated Second Affirmative Defense. There is no 95926—2284 11 allegation in the “Facts in Support” that articulates, that mentions that any contracts other than the Fine Note and Fine Deed of Trust isunconscionable. (530) 343—5090 / (530) 343-5091 (FAX) 12 196 COHASSET ROAD, SUITE 225, CHICO, CA RAYMOND L. SANDELMAN l3 Barred From 3. Scott Hamm And Theresa Should Be ATTORNEY AT LAW Campbell 14 Testifying On Direct Examination As To The Details Of Hearsay They Relied Upon 15 Scott Hamm is an appraiser and a retained expert witness disclosed by Defendants. Theresa 16 Campbell is the current broker who has a listing to sell the Miller Mansion; she isalso a retained 17 expert witness disclosed by Defendants. Both witnesses were deposed and testified that, almost 18 exclusively, they relied on data from others. 19 The Rutter text explains the law and recommends that a motion in limine be filed so that the 20 court will instruct the witness not to reveal the substance of any hearsay communication on direct 21 examination. 22 (e) [8:759] Limitation—no “details” of inadmissible evidence: While an expert may state on direct examination the matters on which he or she relied, the 23 if expert may not testify as t0 the details of those matters they are otherwise 24 inadmissible. i.e., “he may not under the guise of reasons bring before the jury incompetent hearsay evidence.” [People v. Coleman (1985) 38 C3d 69, 92, 211 CR 25 102, 116 (disapproved on other grounds by People v. Sanchez (2016) 63 C4th 665, 686, 204 CR3d 102, 119, fn. 13)] 26 For example: .. . 27 2) [8:761] Supporting data in inadmissible reports: Likewise, while an expert may state on direct examination he or she relied on information contained in certain 28 the not as to the contents of such reports. [Continental reports, expert may testify x 4 MEMORANDUM OF POINTS AND AUTHORITIES Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 CA3d 388, 416, 264 CR 779, 794 (criticized 0n other grounds by Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass 'n (2013) 55 C4th 1169, 1178, 151 CR3d 93, 100, fn. 7)] 0 [8:762] For example, an automotive expert was permitted to testify he relied on literature, reports and tests conducted by others in formulating his opinion on safety tests and the feasibility of alternative designs. But he was not permitted to read the reports or relate their contents in detail to the jury. [Grimshaw v. Ford Motor Co. (1981) 119 CA3d 757, 788, 174 CR 348, 368 (disapproved on other grounds by Kim v. Toyota Motor Corp. (2018) 6 C5th 21, 38, 237 CR3d 205, 219, fn. 6] .. . ED [8:766] PRACTICE POINTER: If you are the opposing counsel, be on your toes when expert witnesses are asked to explain the “reasons” or “basis” for their opinion. Expert witnesses commonly cross the line and disclose the contents of the inadmissible hearsay in the process of explaining their “reasons.” For example: - “l sent the x-rays to Specialist for confirmation of my opinion”; or 10 o “I reviewed the crash tests conducted by the Michigan University staff 95926-2284 11 that came to the same conclusion ”; or o “I researched the point and noted that every major medical text (530) 343—5090 / (530) 343-5091 (FAX) 12 recommended the same treatment for this condition.” 196 COHASSET ROAD, SUITE 225, CHICO, CA To prevent this, you have to be sharp with your hearsay objection. RAYMOND L. SANDELMAN 13 raise the issue motion in limine or side bar in the expert's ATTORNEY AT LAW (Better yet, by early l4 testimony and ask the court to instruct the witness not to reveal the substance of any communication from anyone else unless the question specifically calls for it.) 15 (underlining added) 16 4. No Statements About Settlement Offers Should Be Proffered l7 In discovery responses, Mr. Denton has referred to a settlement offer made by Plaintiff. The l8 Court should instruct Mr. Denton and his counsel not to discuss settlement offers. 19 a. [8:2798] Inadmissible to prove offeror’s liability: “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised 20 to furnish money or any other thing, act, or service to another who has sustained or 21 will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove 22 his or her liability for the loss or damage or any part of it.” [Ev.C. § 1152 (emphasis 23 added); see San Joaquin County v. Galletti (1967) 252 CA2d 840, 842—843, 61 CR 62, 64 & fn. 1; see also Caira v. Ofiner (2005) 126 CA4th 12, 30, 32, 24 CR3d 233, 24 246, 248; and Hasler v. Howard (2004) 120 CA4th 1023, 1026, 16 CR3d 217, 219] 25 Offers to Discount Claim: A similar exclusion to 3. [8:2830] applies 26 settlement negotiations offered to prove the invalidity of the offeror's claim: “Evidence that a person has accepted (or offered to accept) a sum of money or any other thing 27 in satisfaction of a claim is inadmissible to prove the invalidity of the claim.” [Ev.C. § 1154 (emphasis added); see Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 28 MEMORANDUM OF POINTS AND AUTHORITIES (2018) 19 CASth 525, 534, 228 CR3d 120, 126; Zhou v. Unisource Worldwide, Inc. (2007) 157 CA4th 1471, 1475, 69 CR3d 273, 276—277—“Secti0n 1154 stems from the same policy of encouraging settlement and compromise that is reflected in Section 1152”] Wegner, Fairbank, and Epstein, California Practice Guide: Civil Trials and Evidence (The Rutter Group 2020) 5. Bill Chance Should Not Be Examined Concerning A Breach Of Fiduciary Duty Claim Cross~Complainants have improperly tried to add a claim against Bill Chance for breach of fiduciary duty. First they tried to name him as a Doe without getting Court approval. b) [6:614] Leave routinely granted ex parte: In most courts, leave to amend to substitute a defendant's true name for “Doe” is routinely granted without notice or 10 hearing of any kind. The application for leave to amend is simply presented to a judge 95926-2284 or commissioner for signature. 11 (Some judges insist on noticed hearings because CCP § 473(a) does not specifically provide otherwise.) (530) 343—5090 / (530) 343-5091 (FAX) 12 196 COHASSET ROAD, SU1TE 225, CHICO, CA RAYMOND L. SANDELMAN 13 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter ATTORNEY AT LAW 14 Group 2020) 15 Then Cross—Complainants improperly tried to add a claim against Bill Chance in a Second 16 Amended Cross Complaintl when the order sustaining the demurrer with leave to amend permitted 17 amendments only as specified in the opposition brief to the demurrer. 18 (b) [7: 148. la] Scope of permissible amendment: When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader 19 amend the causes action to which the demurrer has been not add to 0f sustained, entirely new causes of action. [Patrick v. Alacer Corp. (2008) 167 CA4th 995, 1015, 20 84 CR3d 642, 660; Zakk v. Diesel (2019) 33 CA5th 431, 456, 245 CR3d 215, 236] 21 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter 22 Group 2020) 23 Whatever the merits to any claim against Bill Chance, itis not appropriate to resolve those 24 issues at the trial set for April 5, 2021. Discussion of those issue have no relevance to the claims 25 asserted in the dispute to be tried. The court should exclude evidence if its probative value is 26 substantially outweighed by the probability that itsadmission will (a) necessitate undue consumption 27 ‘ So far counsel for 28 Wayne Cook has only seen a proposed Second Amended Cross Compliant. MEMORANDUM OF POINTS AND AUTHORITIES of time. (Evid. Code, § 352). Dated: Molt-J, afi‘zc-ZQ KFLSLBLW M“ Raymond L. Sandelman Attorney for Wayne A. Cook, individually and as Trustee of The Wayne A. Cook 1998 family Trust Dated 12/29/98 10 95926-2284 ll (530) 343—5090 / (530) 343—5091 (FAX) 12 196 COHASSET ROAD, SUITE 225, CHICO, CA RAYMOND L. SANDELMAN 13 ATTORNEY AT LAW 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Raymond L. Sandelman SBN 078020 Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926—2284 (530) 343-5090 / (530) 343—5091 (FAX) Email:Raymond@sande1manlaw.com Attorney for Wayne A. Cook, individually and as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE 10 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 11 WAYNE A. COOK 1998 FAMILY 12 TRUST DATED 12/29/98, DECLARATION OF RAYMOND L. Plaintiff, SANDELMAN IN SUPPORT OF MOTIONS 13 IN LIMINE V 14 15 Hearing Date: 4/1/2021 EDWARD F. NIDEROST, et. al., Hearing Time; 1:30 pm. 16 Department: 1 Defendants' Judge: Tamara Mosbarger l7 / Date of Complaint: 4/22/2020 18 Trial Date: 4/5/21 AND RELATED CROSS COMPLAINTS 19 / 20 21 22 I, Raymond L. Sandelman, declare that: 23 1. I am an attorney licensed to practice inall California State courts, and attorney for Wayne 24 A. Cook, Individually and as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 in 25 the above—entitled action. 26 2. I deposed Scott Hamm, a retained expert witness designated by the Defendants. Mr. 27 Hamm testified that, almost exclusively, he relied on data from others. He produced voluminous 28 documents that had data that generated by persons other than himself. DECLARATION OF RAYMOND L. SANDELMAN 3. I deposed Theresa Kym Campbell, a retained expert witness designated by the Defendants. Ms. Campbell also testified that that she relied on data from others. 4. In discovery responses, Mr. Denton has referred to a settlement offer made by Plaintiff. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: M fiérmgcmc Emma ‘ Raymond L. Sandelman 10 95926—2284 11 (530) 343—5090 / (530) 343—5091 (FAX) 12 196 COHASSET ROAD, SUITE 225, CHICO, CA RAYMOND L. SANDELMAN 13 ATTORNEY AT LAW 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RAYMOND L. SANDELMAN PROOF OF SERVICE I, Wendy Hoy, declare as follows: I am employed in the County of Butte, State of California; I am over the age of 18 years and not a party to this action; my business address is 196 Cohasset Road, Suite 225, Chico California 95926—2284, in said County and State. On March 22/7 , 2021, I served copies of the Motions In Limine; and Declaration Of Raymond L. Sandelman In Support Of Motions In Limine on the following person(s) at the following address(s), in the manner indicated below: Gene Culley Larry Gene Lushanko 2185 Esplanade Law Office of Larry G. Lushanko Chico, CA 95926 1241 E Mission Rd. Fallbrook, CA 92028 10 11 Sara M. Knowles, Esq. Leland, Morrissey & Knowles LLP 12 1660 Humboldt Road, Suite 6 13 Chico, CA 95928 CA 95926-2284 14 X BY TRANSMITTING THE DOCUMENT(S) ELECTRONICALLY Via the following (530) 343—5090 / (530) 343—5091 (FAX) 15 email addresses: offiee@lushankolaw.com; gculley@sbcgloba1.net; 196 COHASSET ROAD, SUITE 225, CHICO, 16 sknowles@chicolawyer.com ATTORNEY AT LAW 17 X BY UNITED STATES MAIL enclosed the documents in a sealed envelope or package addressed to the persons at the addresses shown above and placed the envelope for collection 18 and mailing, following our ordinary business practices. I am readily familiar with this 19 business's practice for collecting and processing correspondence for mailing, itis deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage 20 l am in the where the occurred. The or fully prepaid. employed county mailing envelope package 21 was placed in the mail at Chico, CA. 22 I certify under penalty of perjury that the foregoing is true and correct, and this declaration 23 OLE/ac of service was executed on March 21,2021 at Chico, Calif 24 25 /ndy Hoy 26 27 28 wayne 1814lliminie 323.docx m:lorig_datalw0rklclient directorieslcook, PROOF OF SERVICE