Durand et al v. Stephenson et al

Filing 87

PRETRIAL CONFERENCE ORDER signed by Judge John A. Mendez on 11/19/12 ORDERING that the Jury Trial is SET for 1/14/2013 at 09:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. The parties estimate three to four court days for trial. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18

EDWIN DURAND, an individual;
)
MADELAINE DURAND, an individual, )
)
Plaintiffs,
)
)
v.
)
)
CANDICE L. STEPHENSON, J. WAYNE )
STRAUCH, et al.,
)
)
Defendants.
)
)
)
AND RELATED CROSS-ACTION.
)

Case No.S:09-CV-02038 JAM-CKD
PRETRIAL CONFERENCE ORDER

Pursuant to court order, a Pretrial Conference was held on

19
20

November 16, 2012 before Judge John Mendez.

Plaintiffs appeared In

21

Pro Se; Glenn W. Peterson appeared as counsel for defendants.

22

After hearing, the court makes the following findings and orders:

23

I. JURISDICTION/VENUE

24

Jurisdiction is predicated upon 28 U.S.C. § 1332, and has

25

previously been found to be proper by order of this court, as has

26

venue.

27

///

28

///

Those orders are confirmed.

1

1
2

II. JURY/NON-JURY
Plaintiffs have demanded a jury trial.

3

III. STATEMENT TO BE READ TO JURY

4

Seven (7) days prior to trial the parties shall E-file a joint

5

statement of the case that may be read to the jury at the beginning

6

of jury selection.

7
8
9
10
11
12
13
14
15
16

IV. UNDISPUTED FACTS
The parties agree that the following facts are not in dispute,
and they stipulate to these facts for purposes of trial.
1.

Plaintiff Madelaine Durand is an individual who resides

in Washoe County, Nevada.
2.

Plaintiff Edwin Durand is an individual who resides in

Washoe County, Nevada.
3.

Defendant Candice L. Stephenson is an individual who

resides in Placer County, California.
4.

Defendant J. Wayne Strauch is an individual who resides

17

in Marion County, Oregon and has extensive contacts within the

18

State of California.

19

5.

The subject Westinghouse Airbrake Company Articulated

20

Loader model 1200 was located at 2024 Taylor Road, Roseville,

21

California.

22

6.

23
24
25
26

2024 Taylor Road, Roseville, California is owned by

Defendant J. Wayne Strauch.
7.

On April 18, 2008 the Defendants J. Wayne Strauch and

Candice Stephenson sold the subject Loader to Richard Van Tassel.
8.

On April 18, 2008 Richard Van Tassel met Defendant

27

Candice L. Stephenson at her home located at 111 Bonny Knoll Road,

28

Roseville, California and gave her a check in the amount of
2

1

$6,000.00 made out to the Strauch Administrative Trust, the

2

purchase price of the Loader.

3

9.

The copy of the check from Richard Van Tassel to the

4

Strauch Administrative Trust for $6,000 dated April 18, 2008 is

5

deemed authentic.

6
7
8
9
10
11
12

10.

Defendant Stephenson told CHP Investigating Officer Bruce

Ogden that the Loader had been sold for $6,000.
11.

Stephenson admitted having a conversation with Mr. Durand

after the Loader was sold.
12.

The Loader was moved off the property located at 2024

Taylor Road, Roseville, California in April 2008.
13.

Defendant Strauch had a telephone conversation with Mr.

13

Durand after the Loader was removed from 2024 Taylor Road,

14

Roseville, California wherein Mr. Durand stated that he (Durand)

15

owned the Loader.

16
17
18
19

14.

Both Candice L. Stephenson and J. Wayne Strauch are

Trustees on the Strauch Administrative Trust.
15.

Before Marjorie Strauch died she was a Trustee on the

Strauch Administrative Trust.

20

16.

Marjorie Strauch died on June 26, 1999.

21

17.

Both Defendants Candice L. Stephenson and J. Wayne

22
23
24
25
26
27
28

Strauch are Marjorie Strauch’s heirs.
18.

Defendant Stephenson knew that her mother had sold the HD

41 dozer.
19.

Defendant Stephenson’s mother told her that she sold the

HD 41 dozer to a Mr. Brown.
20.

Defendant J. Wayne Strauch knew that the HD 41 dozer had

been sold.
3

1
2
3
4
5
6
7
8
9

V. DISPUTED FACTUAL ISSUES
The parties agree that the following factual issues are
disputed:
1.

Whether Durand owned the subject Loader at the time of

the alleged conversion?
2.

Whether Durand had the right to possession of the subject

Loader at the time of the alleged conversion?
3.

Whether the Defendants had the right to sell the Loader

at the time of the alleged conversion?

10

4.

Whether Durand had abandoned the Loader?

11

5.

Whether Durand had a “For Sale” sign attached to the

12

Loader?

13

6.

14

The value of the Loader as of April 18, 2008, the time of

the alleged conversion.

15
16

VI. DISPUTED EVIDENTIARY ISSUES
1.

Durand anticipates hearsay objections to statements by

17

Richard Van Tassel that the Defendants told him they knew the

18

Loader had been sold but could not find the owner.

19
20
21

2.

Should the Defendants include Mr. Rick Churches as a

witness, Durand anticipates filing a motion in limine.
3.

Strauch’s statement that he knew his mother had sold the

22

Loader is admitted pursuant to F.R.C.P. Rule 36(a)(3), but the

23

statement is not admissible on grounds that it is confusing and

24

incomplete.

25

4.

Strauch’s statement that he told Durand that the persons

26

who had stolen his pumpkin patch equipment must have stolen the

27

Loader is admitted pursuant to F.R.C.P. Rule 36(a)(3).

28

5.

Defendants contend that item 2 may be resolved by a
4

1

motion in limine.

Defendants also anticipate challenging the

2

admissibility of various documents proffered by plaintiffs.

3

objections will, in some instances, depend upon the purpose(s) for

4

which plaintiffs offer the document(s).

The

5

VII. RELIEF SOUGHT

6

Durands seek money damages between $120,000 to $250,000, a

7

fair compensation for the time and money properly expended in

8

pursuit of the property, interest from the time of conversion and

9

all costs allowed by law.

10

[Defendants to submit statement

regarding their Counterclaim to be included in this section.]

11

VIII. POINTS OF LAW

12

Trial briefs shall be E-filed with the court no later than

13

seven (7) days prior to the date of trial, i.e., January 7, 2013.

14

Any points of law not previously argued to the Court should be

15

briefed in the trial briefs.

16

IX. ABANDONED ISSUES

17
18

The Durands’ contend that their Complaint requesting damages
in the amount of $600,000 was abandoned back in 2009.

19

Defendants dispute any attempt to abandon the Noble Murray

20

Appraisal and/or the damage claim in the amount of $600,000.

21

Defendants intend to offer this appraisal, and Plaintiffs’

22

representations to this Court that accompanied it, for multiple

23

purposes under Rules 403-404, 607-609, and 613 under the Federal

24

Rules of Evidence.

25

statements are appropriately offered to the trier of fact for

26

impeachment purposes, and/or to negate Plaintiffs’ credibility as

27

witnesses at trial.

28

///

Among other things, Defendants contend these

5

1

X. WITNESSES

2

Plaintiffs anticipate calling the following witnesses:

3

1.

Madelaine Durand.

4

2.

Edwin Durand.

5

3.

Timothy Fadda.

6

4.

Candice L. Stephenson by Deposition and Interrogatory.

7

5.

J. Wayne Strauch by Deposition, Interrogatory, and

8

Admissions.

9

Rebuttal witnesses:

10

1.

Richard Van Tassel.

11

2.

Kimberly Pilant.

12

Defendants anticipate calling the following witnesses:

13

1.

Madelaine Durand.

14

2.

Edwin Durand.

15

3.

Candice Stephenson.

16

4.

J. Wayne Strauch.

17

5.

Rick Churches.

18

6.

Ted Mitchell.

19

7.

Jim Taylor.

20

8.

Greg Reed.

21

9.

David Willard.

22

10.

James Dobbas

23

Each party may call a witness designated by the other.

24

A.

25

No other witnesses will be permitted to testify unless:
(1)

The party offering the witness demonstrates that the

26

witness is for the purpose of rebutting evidence which could not be

27

reasonably anticipated at the Pretrial Conference, or

28

(2)

The witness was discovered after the Pretrial
6

1

Conference and the proffering party makes the showing required in

2

"B" below.

3

B.

Upon the post-Pretrial discovery of witnesses, the

4

attorney shall promptly inform the court and opposing parties of

5

the existence of the unlisted witnesses so that the court may

6

consider at trial whether the witnesses shall be permitted to

7

testify.

8
9

(1)

(2)

(3)

If time permitted, counsel proffered the witnesses

for deposition;

14
15

The court and opposing counsel were promptly

notified upon discovery of the witnesses;

12
13

The witnesses could not reasonably have been

discovered prior to Pretrial;

10
11

The evidence will not be permitted unless:

(4)

If time did not permit, a reasonable summary of the

witnesses' testimony was provided opposing counsel.

16

XI. EXHIBITS, SCHEDULES AND SUMMARIES

17

Plaintiff intends to introduce the following exhibits:

18

1.

Pictures of the Loader.

19

2.

Bill of Sale of the Loader and Dozer between Francis

20

Brown and Eric Andersen.

21

3.

Bill of Sale of the Loader and Dozer between Andersen and

22

Durand.

23

4.

Telephone bill from February 1996.

24

5.

Telephone bill from August 2008.

25

6.

Telephone bill from September 2008.

26

7.

Telephone bill from October 2008.

27

8.

Time line of telephone calls 2008.

28

9.

Verification of telephone numbers for government agencies
7

1

contacted 2008.

2

10.

Stolen Vehicle Report.

3

11.

Copy of CHP Officer Bruce Ogden’s business card.

4

12.

Letter dated January 10, 2009 to Strauch and Stephenson

5
6
7

including proofs of receipt.
13.

Letter dated February 2, 2009 to Strauch and Stephenson

including proofs of receipt.

8

14.

Declaration of Candice Stephenson dated November 6, 2009.

9

15.

State of California Secretary of State certified

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

document.
16.

Strauch’s Resquest for Admissions mailed January 22, 2010

– never answered.
17.

Stephenson’s Responses to Request for Admissions, Set No.

One dated March 3, 2010.
18.

Stephenson’s Responses to Interrogatories Set No. One

dated March 3, 2010.
19.

Stephenson’s Responses to Interrogatories Set No. One

dated March 15, 2010.
20.

Stephenson’s Responses to Interrogatories Set No. One

dated April 17, 2010.
21.

Stephenson’s Responses to Interrogatories Set No. Two

dated May 5, 2010.
22.

Strauch’s Responses to Interrogatories Set No. One dated

April 14, 2010.

25

23.

Strauch’s Responses to Interrogatories Set No. Two dated

26

May 6, 2010.

27

24.

Strauch’ Deposition dated May 3, 2010.

28

25.

Stephenson’ Deposition dated March 15, 2010.
8

1

26.

Declaration of Rick Churches dated May 12, 2010.

2

27.

Letter from Francis Brown dated February 25, 1996.

3

28.

Telephone bill from 2001 showing calls to Noble Murray.

4

29.

Telephone bill from 2003 showing calls to Noble Murray.

5

30.

Letter dated January 11, 2001 from Edwin Durand to Noble

6

Murray.

7

31.

Email dated February 7, 2001 from Murray to Durand.

8

32.

Email dated February 8, 2001 from Durand to Murray.

9

33.

Email dated February 8, 2001 from Durand to Murray cc

10

Kimberly Pilant.

11

34.

March 12, 2001 letter from Murray.

12

35.

March 14, 2001 letter from the Governor of Montana to

13
14
15

Durand.
36.

Email from Gregg Hoss dated November 19, 2010 verifying

2001 dozernet listings and sales of comparables.

16

37.

Hoss Equipment listings of comparables from 2001.

17

38.

Miscellaneous listings of comparables from 2001.

18

39. Affidavit of Richard Van Tassel dated May 20, 2010.

19

40. Affidavit of Richard Van Tassel dated August 6, 2010.

20

41. Declaration of Timothy Fadda dated October 11, 2010.

21

42. Declaration of Timothy Fadda dated June 1, 2010.

22

43.

Timothy Fadda’s October 2007 letter.

23

44.

Timothy Fadda’s Expert Witness Report filed August 16,

24

2012.

25

45.

Deed of Trust dated 12/28/1990.

26

46.

Affidavit of Kimberly Pilant.

27

Defendant intends to introduce the following exhibits:

28

A.

Heavy Equipment Appraisal – Appraiser Noble Murray –
9

1

February 2006.

2

B.

Plaintiffs’ 2009 comparable listings.

3

C.

Transcript of May 3, 2010 deposition of Edwin Durand.

4

D.

Transcript of May 3, 2010 deposition of Madelaine Durand.

5

E.

May 20, 2010 Affidavit of Richard Van Tassel.

6

F.

June 4, 2010 Declaration of Edwin Durand.

7

G.

June 4, 2010 Declaration of Madelaine Durand.

8

H.

July 15, 2010 Order to Show Cause.

9

I.

August 6, 2010 Plaintiffs’ Authentication of Noble Murray

10

Appraisal.

11

J.

February 7, 2011 email allegedly between Noble Murray and

12

Edwin Durand.

13

K.

14

Noble Murray.

15

L.

16

Edwin Durand.

17

M.

February 8, 2011 email allegedly between Edwin Durand and

March 12, 2001 purported letter from Noble Murray to

Noble Murray handwriting exemplars from the Special

18

Collections Department of the University of Nevada, Reno, Mathewson

19

– IGT Knowledge Center.

20

N.

2001 Hoss Equipment Listings.

21

O.

Plaintiffs’ 2001 comparable listings.

22

P.

August 5, 2010 Affidavit of Kimberly Pilant.

23

Q.

August 6, 2010 Affidavit of Richard Van Tassel.

24

R.

August 11, 2010 Declaration of Edwin and Madelaine

25

Durand.

26

S.

August 23, 2010 Order Re: In Camera Review.

27

T.

Plaintiff’s Request for Reconsideration dated October 13,

28

2010.
10

1

U.

October 13, 2010 Declaration of Madelaine Durand.

2

V.

June 1, 2010 Declaration of Timothy Fadda.

3

W.

Expert Witness Report by Timothy Fadda dated August 15,

4

2010.

5

X.

October 11, 2010 Declaration of Timothy Fadda.

6

Y.

Plaintiff’s responses to Defendant’s Stephenson’s Request

7
8
9

for Production of Documents, Set No. One dated April 28, 2010.
Z.

Plaintiff’s responses to Defendant’s Stephenson’s

Interrogatories, Set No. One dated April 28, 2010.

10

Each party may use an exhibit designated by the other.

11

A.

12

unless:

13

No other exhibits will be permitted to be introduced

(1)

The party proffering the exhibit demonstrates that

14

the exhibit is for the purpose of rebutting evidence which could

15

not be reasonably anticipated at the Pretrial Conference, or

16

(2)

The exhibit was discovered after the Pretrial

17

Conference and the proffering party makes the showing required in

18

paragraph "B," below.

19

B.

Upon the post-Pretrial discovery of exhibits, the

20

attorneys shall promptly inform the court and opposing counsel of

21

the existence of such exhibits so that the court may consider at

22

trial their admissibility.

23

unless the proffering party demonstrates:

24
25
26
27
28

(1)

The exhibits will not be received

The exhibits could not reasonably have been

discovered prior to Pretrial;
(2)

The court and counsel were promptly informed of

their existence;
(3)

Counsel forwarded a copy of the exhibit(s) (if
11

1

physically possible) to opposing counsel.

2

not be copied, the proffering counsel must show that he has made

3

the exhibit(s) reasonably available for inspection by opposing

4

counsel.

5

If the exhibit(s) may

As to each exhibit, each party is ordered to exchange copies

6

of the exhibit not later than January 2, 2013.

Each party is then

7

granted five (5) days to file and serve objections to any of the

8

exhibits.

9

grounds for the objection.

In making the objection, the party is to set forth the
The parties shall pre-mark their

10

respective exhibits in accord with the Court’s Pretrial Order.

11

Exhibit stickers may be obtained through the Clerk’s Office.

12

original and one (1) copy of the exhibits shall be presented to

13

Harry Vine, Deputy Courtroom Clerk, at 8:30 a.m. on the date set

14

for trial or at such earlier time as may be agreed upon.

15

can be contacted at [phone] or via e-mail at:

16

[e-mail].

17

to, it shall be marked and may be received into evidence on motion

18

and will require no further foundation.

19

objected to will be marked for identification only.

20
21

An

Mr. Vine

As to each exhibit which is not objected

Each exhibit which is

XII. DISCOVERY DOCUMENTS
See Sections XVI C, XVI D and XVI E.

22

XIII. FURTHER DISCOVERY OR MOTIONS

23

Pursuant to the court's Status Conference Order, all discovery

24

and law and motion was to have been conducted so as to be completed

25

as of the date of the Pretrial Conference.

26

confirmed.

27

pursuant to informal agreement.

28

not be enforceable in this court.

That order is

The parties are free to do anything they desire
However, any such agreement will

12

1
2

XIV. STIPULATIONS
None.

3
4

XV. AMENDMENTS/DISMISSALS
None.

5
6

XVI. FURTHER TRIAL PREPARATION
A.

Counsel are directed to Local Rule 285 regarding the

7

contents of trial briefs.

8

days prior to trial, i.e., January 7, 2013.

9

B.

Such briefs should be E-filed seven (7)

Counsel are further directed to confer and to attempt to

10

agree upon a joint set of jury instructions.

11

instructions shall be lodged via ECF with the court clerk seven (7)

12

calendar days prior to the date of the trial, i.e., January 7,

13

2013, and shall be identified as the "Jury Instructions Without

14

Objection."

15

parties shall submit the instruction(s) via ECF as its package of

16

proposed jury instructions three days before trial, i.e., January

17

11, 2013.

18

the “Jury Instructions Without Objection” and should be clearly

19

identified as “Disputed Objections” on the proposed instructions.

20

The joint set of

As to instructions as to which there is dispute the

This package of proposed instructions should not include

The parties shall e-mail a set of all proposed jury

21

instructions in word or wpd format to the Court’s Judicial

22

Assistant, Jane Pratt, at: [e-mail].

23

C.

It is the duty of counsel to ensure that any deposition

24

which is to be used at trial has been lodged with the Clerk of the

25

Court pursuant to Local Rule 133(j).

26

lodged with the court clerk seven (7) calendar days prior to the

27

date of the trial.

28

discharge this duty may result in the court precluding use of the

The depositions shall be

Counsel are cautioned that a failure to

13

1

deposition or imposition of such other sanctions as the court deems

2

appropriate.

3

D.

The parties are ordered to E-file with the court and

4

exchange between themselves not later than one (1) week before the

5

trial a statement designating portions of depositions intended to

6

be offered or read into evidence (except for portions to be used

7

only for impeachment or rebuttal).

8
9

E.

The parties are ordered to E-file with the court and

exchange between themselves not later than one (1) week before

10

trial the portions of Answers to Interrogatories or Requests for

11

Admission which the respective parties intend to offer or read into

12

evidence at the trial (except portions to be used only for

13

impeachment or rebuttal).

14

F.

Each party may submit proposed voir dire questions the

15

party would like the court to put to prospective jurors during jury

16

selection.

17

week prior to trial.

18

G.

Proposed voir dire should be submitted via ECF one (1)

Each party may submit a proposed verdict form that the

19

party would like the Court to use in this case.

20

forms should be submitted via ECF one (1) week prior to trial.

21

H.

Proposed verdict

In limine motions shall be E-filed separately at least

22

ten (10) days prior to trial, i.e., January 4, 2013.

23

briefs shall be E-filed five (5) days prior to trial, i.e., January

24

9, 2013.

25

Opposition

No reply briefs may be filed.
XVII. SETTLEMENT NEGOTIATIONS

26

No further formal Settlement Conference will be set in this

27

case.

28

///
14

1
2

XVIII. AGREED STATEMENTS
See paragraph III, supra.

3
4

XIX. SEPARATE TRIAL OF ISSUES
None.

5

XX. IMPARTIAL EXPERTS/LIMITATION OF EXPERTS

6

Appointment by the Court of impartial expert witnesses and

7

limitations on experts are not necessary.

8
9

XXI. ATTORNEYS' FEES
Not applicable.

10
11

XXII. MISCELLANEOUS
None.

12

XXIII. ESTIMATE OF TRIAL TIME/TRIAL DATE

13

The parties estimate three (3) to four (4) court days for

14
15

trial.

Trial will commence on January 14, 2013, at 9:00 a.m.

Counsel are to call Harry Vine, Courtroom Deputy, at

16

[phone], one week prior to trial to ascertain the status of

17

the trial date.

18

XXIV. OBJECTIONS TO PRETRIAL ORDER

19

Each party is granted seven (7) days from the date of this

20

Pretrial Order to object to it via ECF.

21

IT IS SO ORDERED.

22

DATED: November 19, 2012.

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
15