Makreas v. First National Bank of Northern California et al

Filing 240

TENTATIVE FINAL JURY INSTRUCTIONS. Signed by District Judge Jon S. Tigar. (Attachments: # 1 Exhibit A)(jstlc3, COURT STAFF) (Filed on 12/18/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NICK MAKREAS,

Case No. 11-cv-02234-JST

Plaintiff,
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FINAL JURY INSTRUCTIONS

v.
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FIRST NATIONAL BANK OF
NORTHERN CALIFORNIA, et al.,
Defendants.

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5000. Duties of the Judge and Jury
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Members of the jury, you have now heard all the evidence. The attorneys will have one last
chance to talk to you in closing argument. But before they do, it is my duty to instruct you on the
law that applies to this case. You must follow these instructions as well as those that I previously
gave you. You will have a copy of my instructions with you when you go to the jury room to
deliberate. I have provided each of you with your own copy of the instructions.
You must decide what the facts are. You must consider all the evidence and then decide what you
think happened. You must decide the facts based on the evidence admitted in this trial.

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Do not allow anything that happens outside this courtroom to affect your decision. Do not talk
about this case or the people involved in it with anyone, including family and persons living in
your household, friends and coworkers, spiritual leaders, advisors, or therapists. Do not do any
research on your own or as a group. Do not use dictionaries or other reference materials.
These prohibitions on communications and research extend to all forms of electronic
communications. Do not use any electronic devices or media, such as a cell phone or smart phone,
PDA, computer, tablet device, the Internet, any Internet service, any text or instant-messaging
service, any Internet chat room, blog, or website, including social networking websites or online
diaries, to send or receive any information to or from anyone about this case or your experience as
a juror until after you have been discharged from your jury duty.
Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such
as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in
this case. If you happen to pass by the scene, do not stop or investigate. All jurors must see or
hear the same evidence at the same time. You must not let bias, sympathy, prejudice, or public
opinion influence your decision.
I will now tell you the law that you must follow to reach your verdict. You must follow the law
exactly as I give it to you, even if you disagree with it. If the attorneys say anything different
about what the law means, you must follow what I say.
In reaching your verdict, do not guess what I think your verdict should be from something I may
have said or done.
Pay careful attention to all the instructions that I give you. All the instructions are important
because together they state the law that you will use in this case. You must consider all of the
instructions together.
After you have decided what the facts are, you may find that some instructions do not apply. In
that case, follow the instructions that do apply and use them together with the facts to reach your
verdict.

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If I repeat any ideas or rules of law during my instructions, that does not mean that these ideas or
rules are more important than the others. In addition, the order in which the instructions are given
does not make any difference.
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Most of the instructions are typed. However, some handwritten or typewritten words may have
been added, and some words may have been deleted. Do not discuss or consider why words may
have been added or deleted. Please treat all the words the same, no matter what their format.
Simply accept the instruction in its final form.

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5001. Insurance
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You must not consider whether any of the parties in this case has insurance. The presence or
absence of insurance is totally irrelevant. You must decide this case based only on the law and the
evidence.

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5002. Evidence
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You must decide what the facts are in this case only from the evidence you have seen or heard
during the trial, including any exhibits that I admit into evidence. Sworn testimony, documents, or
anything else may be admitted into evidence. You may not consider as evidence anything that you
saw or heard when court was not in session, even something done or said by one of the parties,
attorneys, or witnesses.
What the attorneys say during the trial is not evidence. In their opening statements and closing
arguments, the attorneys talk to you about the law and the evidence. What the lawyers say may
help you understand the law and the evidence, but their statements and arguments are not
evidence.

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The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You should
not think that something is true just because an attorney’s question suggested that it was true.
However, the attorneys for both sides have agreed that certain facts are true. This agreement is
called a stipulation. No other proof is needed and you must accept those facts as true in this trial.

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Each side had the right to object to evidence offered by the other side. If I sustained an objection
to a question, you must ignore the question. If the witness did not answer, you must not guess
what he or she might have said or why I sustained the objection. If the witness already answered,
you must ignore the answer.

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5003. Witnesses
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A witness is a person who has knowledge related to this case. You will have to decide whether
you believe each witness and how important each witness’s testimony is to the case. You may
believe all, part, or none of a witness’s testimony.

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In deciding whether to believe a witness’s testimony, you may consider, among other factors, the
following:
(a)

How well did the witness see, hear, or otherwise sense what he or she described in
court?

(b)

How well did the witness remember and describe what happened?

(c)

How did the witness look, act, and speak while testifying?

(d)

Did the witness have any reason to say something that was not true? For example,
did the witness show any bias or prejudice or have a personal relationship with any
of the parties involved in the case or have a personal stake in how this case is
decided?

(e)

What was the witness’s attitude toward this case or about giving testimony?

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Sometimes a witness may say something that is not consistent with something else he or she said.
Sometimes different witnesses will give different versions of what happened. People often forget
things or make mistakes in what they remember. Also, two people may see the same event but
remember it differently. You may consider these differences, but do not decide that testimony is
untrue just because it differs from other testimony.
However, if you decide that a witness deliberately testified untruthfully about something
important, you may choose not to believe anything that witness said. On the other hand, if you
think the witness testified untruthfully about some things but told the truth about others, you may
accept the part you think is true and ignore the rest.
Do not make any decision simply because there were more witnesses on one side than on the
other. If you believe it is true, the testimony of a single witness is enough to prove a fact.

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You must not be biased against any witness because of his or her disability, gender, race, religion,
ethnicity, sexual orientation, age, national origin, or socioeconomic status.

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5006. Nonperson Party
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A bank, First National Bank of Northern California (which I will hereafter refer to as “First
National Bank”) is a party in this lawsuit. First National Bank is entitled to the same fair and
impartial treatment that you would give to an individual. You must decide this case with the same
fairness that you would use if you were deciding the case between individuals.
When I use words like “person” or “he” or “she” in these instructions to refer to a party, those
instructions also apply to First National Bank.

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200. Obligation to Prove—More Likely True Than Not True
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A party must persuade you, by the evidence presented in court, that what he or she is required to
prove is more likely to be true than not true. This is referred to as “the burden of proof.”
After weighing all of the evidence, if you cannot decide that something is more likely to be true
than not true, you must conclude that the party did not prove it. You should consider all the
evidence, no matter which party produced the evidence.
In criminal trials, the prosecution must prove that the defendant is guilty beyond a reasonable
doubt. But in civil trials, such as this one, the party who is required to prove something need
prove only that it is more likely to be true than not true.

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201. More Likely True—Clear and Convincing Proof
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Certain facts must be proved by clear and convincing evidence which is a higher burden of proof.
This means the party must persuade you that it is highly probable that the fact is true. I will tell
you specifically which of the facts must be proved by clear and convincing evidence.

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202. Direct and Indirect Evidence
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Evidence can come in many forms. It can be testimony about what someone saw or heard or
smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.
Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane
flying across the sky, that testimony is direct evidence that a plane flew across the sky. Some
evidence proves a fact indirectly. For example, a witness testifies that he saw only the white trail
that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial
evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the
sky.
As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You
may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give
every piece of evidence whatever weight you think it deserves.
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203. Party Having Power to Produce Better Evidence
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You may consider the ability of each party to provide evidence. If a party provided weaker
evidence when it could have provided stronger evidence, you may distrust the weaker evidence.
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205. Failure to Explain or Deny Evidence
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If a party failed to explain or deny evidence against it when it could reasonably be expected to
have done so based on what it knew, you may consider its failure to explain or deny in evaluating
that evidence.

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It is up to you to decide the meaning and importance of the failure to explain or deny evidence
against the party.
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208. Deposition as Substantive Evidence
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During the trial, you received deposition testimony that was read from the deposition transcript. A
deposition is the testimony of a person taken before trial. At a deposition the person is sworn to
tell the truth and is questioned by the attorneys. You must consider the deposition testimony that
was presented to you in the same way as you consider testimony given in court.

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209. Use of Interrogatories of a Party
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Before trial, each party has the right to ask the other parties to answer written questions. These
questions are called interrogatories. The answers are also in writing and are given under oath.
You must consider the questions and answers that were read to you the same as if the questions
and answers had been given in court.
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212. Statements of a Party Opponent
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A party may offer into evidence any oral or written statement made by an opposing party outside
the courtroom.

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When you evaluate evidence of such a statement, you must consider these questions:

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1.

Do you believe that the party actually made the statement? If you do not believe
that the party made the statement, you may not consider the statement at all.

2.

If you believe that the statement was made, do you believe it was reported
accurately?

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You should view testimony about an oral statement made by a party outside the courtroom with
caution.
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215. Exercise of a Communication Privilege
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Kathy Castor has an absolute right not to disclose what she told First National Bank’s attorney in
confidence because the law considers this information privileged. Do not consider, for any reason
at all, the fact that Kathy Castor did not disclose what she told her attorney. Do not discuss that
fact during your deliberations or let it influence your decision in any way.

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430. Causation: Substantial Factor
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A substantial factor in causing harm is a factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the
only cause of the harm.

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3700. Introduction
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A bank is responsible for harm caused by the wrongful conduct of its employees or agents while
those agents or employees are acting within the scope of their authority.
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3703. Legal Relationship Not Disputed
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In this case Duke Wall, Greg Righetti, Kathy Castor, and Randy Brugioni were the agents or
employees of First National Bank and were acting within the scope of their authority when they
performed the actions at issue in this case. Therefore, if Nick Makreas proves that those
individuals caused harm to him as provided in these instructions, then First National Bank is
responsible that harm.
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1600. Intentional Infliction of Emotional Distress—Essential Factual Elements
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Nick Makreas claims that First National Bank’s conduct caused him to suffer severe emotional
distress. To establish this claim, Nick Makreas must prove all of the following:

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That First National Bank’s conduct was outrageous;

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That First National Bank intended to cause Nick Makreas emotional distress; or

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That First National Bank acted with reckless disregard of the probability that Nick
Makreas would suffer emotional distress, knowing that Nick Makreas was present
when the conduct occurred;

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3.

That Nick Makreas suffered severe emotional distress; and

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That First National Bank’s conduct was a substantial factor in causing Nick
Makreas’s severe emotional distress.

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1602. Intentional Infliction of Emotional Distress—”Outrageous Conduct” Defined
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“Outrageous conduct” is conduct so extreme that it goes beyond all possible bounds of decency.
Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized
community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt
feelings, or bad manners that a reasonable person is expected to endure.
In deciding whether First National Bank’s conduct was outrageous, you must consider, among
other factors, the following:
(a)

Whether First National Bank abused a position of authority or a relationship that
gave it real or apparent power to affect Nick Makreas’s interests;

(b)

Whether First National Bank knew that Nick Makreas was particularly vulnerable
to emotional distress; and

(c)

Whether First National Bank knew that its conduct would likely result in harm due
to mental distress.

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1603. Intentional Infliction of Emotional Distress—”Reckless Disregard” Defined
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First National Bank acted with reckless disregard in causing Nick Makreas emotional distress if:

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First National Bank knew that emotional distress would probably result from its
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First National Bank gave little or no thought to the probable effects of its conduct.

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1604. Intentional Infliction of Emotional Distress—”Severe Emotional Distress” Defined
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Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry,
shock, humiliation, and shame.
“Severe emotional distress” is not mild or brief; it must be so substantial or long lasting that no
reasonable person in a civilized society should be expected to bear it. Nick Makreas is not
required to prove physical injury to recover damages for severe emotional distress.
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2000. Trespass─Essential Factual Elements
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Nick Makreas claims that First National Bank trespassed on his property. To establish this claim,
Nick Makreas must prove all of the following:

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That Nick Makreas occupied the property;

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That First National Bank intentionally caused another person to enter Nick
Makreas’s property;

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That Nick Makreas did not give permission for the entry;

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That Nick Makreas was harmed; and

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That First National Bank’s conduct was a substantial factor in causing Nick
Makreas’s harm.

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Elements 1 through 3 of this instruction have already been established.
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Special Instruction No. 1. Wrongful Eviction─Essential Factual Elements
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Nick Makreas claims that First National Bank wrongfully evicted him from the Sylvan Way
property. To establish this claim, Nick Makreas must prove all of the following:

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Nick Makreas was in possession of the Sylvan Way property;

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2.

First National Bank caused another person to interfere with Nick Makreas’
possession of the Sylvan Way property;

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Nick Makreas did not consent to this interference;

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Nick Makreas was harmed; and

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First National Bank’s conduct was a substantial factor in causing Nick Makreas’
harm.

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Elements 1 through 3 of this instruction have already been established.
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2100. Conversion—Essential Factual Elements
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Nick Makreas claims that First National Bank wrongfully exercised control over his personal
property. To establish this claim, Nick Makreas must prove all of the following as to each item of
personal property:

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1.

That Nick Makreas owned or had the right to possess the items of property listed on
Exhibit 287, as well as the other items to which Nick Makreas testified;

2.

That First National Bank intentionally and substantially interfered with Nick
Makreas’ property by:

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a. preventing Nick Makreas from having access to the property for a
significant period of time; or

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b. destroying that property; or

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c. refusing to return that property after Nick Makreas demanded its return.

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That Nick Makreas did not consent;

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That Nick Makreas was harmed; and

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That First National Bank’s conduct was a substantial factor in causing Nick
Makreas’ harm.

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3900 & 3901 (Combined). Introduction to Tort Damages
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You must decide whether Nick Makreas has proved his claim against First National Bank for
conversion and intentional infliction of emotional distress. If he has, you must also decide how
much money will reasonably compensate Nick Makreas for the harm. This compensation is called
“damages.”
The court has already determined that Nick Makreas has established certain elements of his claims
for trespass and wrongful eviction, as I have instructed you elsewhere in these instructions. If you
decide that Nick Makreas was harmed by that conduct, and that First National Bank’s conduct was
a substantial factor in causing that harm, then you must also decide what amount of damages, if
any, is appropriate.

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The amount of damages must include an award for each item of harm that was caused by First
National Bank’s wrongful conduct, even if the particular harm could not have been anticipated.
Nick Makreas does not have to prove the exact amount of damages that will provide reasonable
compensation for the harm. However, you must not speculate or guess in awarding damages.
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3902. Economic and Noneconomic Damages
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The damages claimed by Nick Makreas for the harm caused by First National Bank fall into two
categories called economic damages and non-economic damages. You will be asked on the
verdict form to state the two categories of damages separately.

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3903. Items of Economic Damage
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The following are the specific items of economic damages claimed by Nick Makreas:

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3903K. Loss or Destruction of Personal Property (Economic Damage)
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The loss of Nick Makreas’ personal property.

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To recover damages for the loss, Nick Makreas must prove the fair market value of each item of
personal property just before the harm occurred.
“Fair market value” is the highest price that a willing buyer would have paid to a willing seller,
assuming:

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That there is no pressure on either one to buy or sell; and

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That the buyer and seller are fully informed of the condition and quality of the
property.

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3905. Items of Noneconomic Damage
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The following are the specific items of noneconomic damages claimed by Nick Makreas:

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3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
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1. Past and future mental suffering, inconvenience, and emotional distress.

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No fixed standard exists for deciding the amount of these noneconomic damages. You must use
your judgment to decide a reasonable amount based on the evidence and your common sense.
To recover for future mental suffering, inconvenience, and emotional distress, Nick Makreas must
prove that he is reasonably certain to suffer that harm.
For future mental suffering, inconvenience, and emotional distress, determine the amount in
current dollars paid at the time of judgment that will compensate Nick Makreas for future mental
suffering, inconvenience, and emotional distress.
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Special Instruction No. 2. Damages for Trespass and Wrongful Eviction
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The law which applies to this case authorizes an award of nominal damages. If you find that Nick
Makreas has failed to prove damages in a specific amount as defined in these instructions, you
must award nominal damages to him. Nominal damages may not exceed one dollar.

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3924. No Punitive Damages
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You must not include in your award any damages to punish or make an example of First National
Bank. Such damages would be punitive damages, and they cannot be a part of your verdict. You
must award only the damages that fairly compensate Nick Makreas for his loss.

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3925. Arguments of Counsel Not Evidence of Damages
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The arguments of the attorneys are not evidence of damages. Your award must be based on your
reasoned judgment applied to the testimony of the witnesses and the other evidence that has been
admitted during trial.

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3931. Mitigation of Damages
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If you decide that First National Bank is responsible for the original harm, Nick Makreas is not
entitled to recover damages for harm to his property and/or emotional distress that First National
Bank proves Nick Makreas could have avoided with reasonable efforts or expenditures.

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You should consider the reasonableness of Nick Makreas’ efforts in light of the circumstances
facing him at the time, including his ability to make the efforts or expenditures without undue risk
or hardship.
If Nick Makreas made reasonable efforts to avoid harm, then your award should include
reasonable amounts that he spent for this purpose.

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3934. Damages on Multiple Legal Theories
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Nick Makreas seeks damages from First National Bank under more than one legal theory.
However, each item of damages may be awarded only once, regardless of the number of legal
theories alleged.

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You will be asked to decide whether First National Bank is liable to Nick Makreas under the
following legal theories:
1.

trespass;

2.

wrongful eviction;

3.

conversion;

4.

intentional infliction of emotional distress.

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Northern District of California

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Nick Makreas is only entitled to recover once for his emotional distress and/or the loss of his
personal property.
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3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First Phase)
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If you decide that First National Bank’s conduct caused Nick Makreas harm, you must decide
whether that conduct justifies an award of punitive damages. The amount, if any, of punitive
damages will be an issue decided later.

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At this time, you must decide whether Nick Makreas has proved that First National Bank engaged
in that conduct with malice, oppression, or fraud. To do this, Nick Makreas must prove one of the
following by clear and convincing evidence:
1.

That the conduct constituting malice, oppression, or fraud was committed by one or
more officers, directors, or managing agents of First National Bank who acted on
behalf of First National Bank; or

2.

That the conduct constituting malice, oppression, or fraud was authorized by one or
more officers, directors, or managing agents of First National Bank.

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United States District Court
Northern District of California

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“Malice” means that First National Bank acted with intent to cause injury or that First National
Bank’s conduct was despicable and was done with a willful and knowing disregard of the rights or
safety of another. A person acts with knowing disregard when he or she is aware of the probable
dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.
“Oppression” means that First National Bank’s conduct was despicable and subjected Nick
Makreas to cruel and unjust hardship in knowing disregard of his rights.

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“Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked
down on and despised by reasonable people.
“Fraud” means that First National Bank intentionally misrepresented or concealed a material fact
and did so intending to harm Nick Makreas.
An employee is a “managing agent” if he or she exercises substantial independent authority and
judgment in his or her corporate decision making such that his or her decisions ultimately
determine corporate policy.
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5009. Predeliberation Instructions
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When you go to the jury room, the first thing you should do is choose a presiding juror. The
presiding juror should see to it that your discussions are orderly and that everyone has a fair
chance to be heard.

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It is your duty to talk with one another in the jury room and to consider the views of all the jurors.
Each of you must decide the case for yourself, but only after you have considered the evidence
with the other members of the jury. Feel free to change your mind if you are convinced that your
position should be different. You should all try to agree. But do not give up your honest beliefs
just because the others think differently.
Please do not state your opinions too strongly at the beginning of your deliberations or
immediately announce how you plan to vote as it may interfere with an open discussion. Keep an
open mind so that you and your fellow jurors can easily share ideas about the case.
You should use your common sense and experience in deciding whether testimony is true and
accurate. However, during your deliberations, do not make any statements or provide any
information to other jurors based on any special training or unique personal experiences that you
may have had related to matters involved in this case. What you may know or have learned
through your training or experience is not a part of the evidence received in this case.
Sometimes jurors disagree or have questions about the evidence or about what the witnesses said
in their testimony. If that happens, you may ask to have testimony read back to you or ask to see
any exhibits admitted into evidence that have not already been provided to you. Also, jurors may
need further explanation about the laws that apply to the case. If this happens during your
discussions, write down your questions and give them to the clerk. I will talk with the attorneys
before I answer so it may take some time. You should continue your deliberations while you wait
for my answer. I will do my best to answer them. When you write me a note, do not tell me how
you voted on an issue until I ask for this information in open court.
Your decision must be based on your personal evaluation of the evidence presented in the case.
Each of you may be asked in open court how you voted on each question.
While I know you would not do this, I am required to advise you that you must not base your
decision on chance, such as a flip of a coin. If you decide to award damages, you may not agree in
advance to simply add up the amounts each juror thinks is right and then, without further
deliberations, make the average your verdict.

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You may take breaks, but do not discuss this case with anyone, including each other, until all of
you are back in the jury room.
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5010. Taking Notes During the Trial
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If you have taken notes during the trial you may take your notebooks with you into the jury room.

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You may use your notes only to help you remember what happened during the trial. Your
independent recollection of the evidence should govern your verdict. You should not allow
yourself to be influenced by the notes of other jurors if those notes differ from what you
remember.
At the end of the trial, your notes will be collected and destroyed.

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5011. Reading Back of Trial Testimony in Jury Room
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You may request in writing that trial testimony be read to you. I will have the court reporter read
the testimony to you. You may request that all or a part of a witness’s testimony be read.

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Your request should be as specific as possible. It will be helpful if you can state:

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1. The name of the witness;
2. The subject of the testimony you would like to have read; and

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3. The name of the attorney or attorneys asking the questions when the testimony was
given.
The court reporter is not permitted to talk with you when she or he is reading the
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Northern District of California

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While the court reporter is reading the testimony, you may not deliberate or discuss the case.

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You may not ask the court reporter to read testimony that was not specifically mentioned in a
written request. If your notes differ from the testimony, you must accept the court reporter’s
record as accurate.

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5012. Introduction to Special Verdict Form
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I will give you a verdict form with questions you must answer. I have already instructed you on
the law that you are to use in answering these questions. You must follow my instructions and the
form carefully. You must consider each question separately. Although you may discuss the
evidence and the issues to be decided in any order, you must answer the questions on the verdict
form in the order they appear. After you answer a question, the form tells you what to do next.
All 8 of you must deliberate on and answer each question. You must all agree on the answer to a
question before you can move on to the next question.
When you have finished filling out the form, your presiding juror must write the date and sign it at
the bottom and then notify the clerk that you are ready to present your verdict in the courtroom.

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5017. Polling the Jury
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After your verdict is read in open court, you may be asked individually to indicate whether the
verdict expresses your personal vote. This is referred to as “polling” the jury and is done to ensure
that you have all agreed to each decision.

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The verdict form that you will receive asks you to answer several questions. You must vote
separately on each question. It is important for each of you to remember how you have voted on
each question so that if the jury is polled, each of you will be able to answer accurately about how
you voted.

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Each of you will be provided a draft copy of the verdict form for your use in keeping track of your
votes.
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5018. Audio or Video Recording and Transcript
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A sound recording has been admitted into evidence, and a transcript of the recording has been
provided to you. The recording itself is the evidence. The transcript may not be completely
accurate. It may contain errors, omissions, or notations of inaudible portions of the recording.
Therefore, you should use the transcript only as a guide to help you in following along with the
recording. If there is a discrepancy between your understanding of the recording and the
transcript, your understanding of the recording must prevail.
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5019. Questions From Jurors
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If, during the trial, any of you had a question that you believed should be asked of a witness, you
were instructed to write out the question and provide it to me through my courtroom staff. I
shared your questions with the attorneys, after which, I decided whether the question could be
asked.
If a question was asked and answered, you are to consider the answer as you would any other
evidence received in the trial. Do not give the answer any greater or lesser weight because it was
initiated by a juror question.

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If the question was not asked, do not speculate as to what the answer might have been or why it
was not asked. There are many legal reasons why a suggested question cannot be asked of a
witness. Give the question no further consideration.
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