Franciska Susilo v. Wells Fargo Bank NA et al

Filing 201

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: Plaintiff's Motion in Limine 1 to Exclude Testimony of Any Witnesses Who Are Employees of ETS 193 is hereby DENIED. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-1814 CAS (PJWx)

Title

FRANSISKA SUSILO V. WELLS FARGO BANK, N.A. ET AL

Present: The Honorable

Date

December 4, 2012

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Not Present

Not Present

Proceedings:

I.

(In Chambers:) MOTION IN LIMINE 1 TO EXCLUDE
TESTIMONY OF ANY WITNESSES WHO ARE EMPLOYEES
OF ETS (Docket #193, filed December 3, 2012)

INTRODUCTION

On January 21, 2011, plaintiff Fransiska Susilo filed the instant action in Los
Angeles Superior Court against Wells Fargo Bank, N.A. (“Wells Fargo”); Wachovia
Mortgage FSB (“Wachovia”); ETS Services, LLC (“ETS”); and Does 1–50. The
gravamen of plaintiff’s complaint is that defendants wrongfully initiated foreclosure
proceedings on real property located at 1100 Wilshire Blvd., Unit 3108, Los Angeles,
CA, 90017 (the “Property”), and that the trustee’s sale is invalid because defendants
violated an agreement to permit plaintiff to cure the default and reinstate the loan, refused
to communicate with plaintiff and her representative regarding the foreclosure sale and
the amount of money necessary to cure the default and reinstate her loan, and executed
the foreclosure through fraudulent conduct and bad faith. See Second Amended
Complaint (“SAC”) ¶¶ 9, 14, 16–21, 27, 30–31. A bench trial is set to commence in this
action on December 4, 2012.
On December 3, 2012, plaintiff filed this motion in limine. Because trial is set to
commence on December 4, 2012, the Court addresses this motion without opposition.
II.

DISCUSSION

Plaintiff moves to exclude the testimony of any ETS employee. On May 14, 2012,
ETS filed for bankruptcy protection in the United States Bankruptcy Court for the
Southern District of New York, and as a result of the automatic bankruptcy stay, neither
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-1814 CAS (PJWx)

Date

December 4, 2012

Title

FRANSISKA SUSILO V. WELLS FARGO BANK, N.A. ET AL

party to this action was able to serve discovery requests on ETS employees. According
to plaintiff, defendants and plaintiff agreed to cooperate in an attempt to seek relief from
the automatic stay in order to obtain discovery from ETS employees. Defendants filed a
motion for relief from the automatic stay in the ETS bankruptcy proceedings on June 28,
2012. Plaintiff’s counsel explains that plaintiff did not join the motion or file a separate
motion “to avoid duplication of expenses,” and further suggests that there was an
understanding between him and defendants that the motion was being brought for the
mutual benefit of plaintiff and defendants. Mot. at 5 – 6.
Plaintiff claims that defendants abandoned their motion for relief from the
automatic stay because ETS agreed to provide defendants with declarations and trial
testimony from its employees. After learning in early August that defendants were no
longer pursuing relief from the automatic stay and that ETS was cooperating with
defendants’ requests, on September 4, 2012, plaintiff served subpoenas on ETS
employees seeking to require them to appear at depositions and produce documents.
These subpoenas were quashed pursuant to a September 11, 2012 order by Judge Walsh,
on the grounds that they violated the automatic bankruptcy stay. Dkt. #124. Plaintiff
concludes that the testimony of these witnesses should be excluded because while she
was unable to take discovery from them, defendants reached an agreement with ETS to
obtain their testimony at trial and breached their agreement with plaintiff to pursue relief
from the automatic stay on behalf of both plaintiff and defendants.
The Court rejects plaintiff’s motion in limine, for two reasons. First, the motion
was filed late. Motions in limine must be noticed for the same date as the pretrial
conference, which was held on November 26, 2012 pursuant to this Court’s order. Dkt.
157. Moreover, it is plainly unreasonable to file a motion in limine a day before trial
commences because this late filing deprives a defendant of a reasonable chance to
prepare a response. Second, even if this motion were filed timely, it would be rejected.
Plaintiff knew that defendants were not going to pursue relief from the automatic
bankruptcy in early August and knew that ETS had cooperated with defendants’ request
for trial witnesses and declarations. Nonetheless, plaintiff took no steps to obtain relief
from the automatic bankruptcy stay in order to ensure that discovery could be obtained
from the ETS witnesses. Instead, plaintiff only served futile subpoenas on these
witnesses; plaintiff’s counsel must have known these subpoenas would fail because he
already recognized the need to seek relief from the automatic stay to take discovery from
ETS employees. Plaintiff’s counsel provides no explanation regarding why he never
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-1814 CAS (PJWx)

Date

December 4, 2012

Title

FRANSISKA SUSILO V. WELLS FARGO BANK, N.A. ET AL

made a reasonable, timely attempt to seek relief from the automatic bankruptcy stay to
take discovery from these witnesses. Additionally, plaintiff may cross-examine any ETS
witnesses at trial. Therefore, the Court finds that no unfairness would result from
allowing the ETS witnesses to testify.
III.

CONCLUSION
In accordance with the foregoing, Plaintiff’s motion in limine is hereby DENIED.
IT IS SO ORDERED.

00
Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

:

00

CMJ

Page 3 of 3