Wells Fargo Bank, N.A. v. ANC Vista I, LLC et al

Filing 152

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff's motions in limine 127 , 128 be, and the same hereby are, GRANTED. Signed by Judge James C. Mahan on 12/5/16. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

WELLS FARGO BANK, N.A.,

8

Plaintiff(s),

9
10

Case No. 2:14-CV-840 JCM (NJK)
ORDER

v.
ANC VISTA I, LLC, et al.,

11

Defendant(s).

12
13

Presently before the court is plaintiff Wells Fargo Bank, N.A.’s (“Wells Fargo” or

14

“plaintiff”) motion in limine regarding the testimony of Gordon Garff. (ECF No. 127). Defendants

15

ANC Vista I, LLC, American Nevada Holdings, LLC, G.C. Investments, LLC, Michael Saltman,

16

and Sonja Saltman (collectively, as “defendants”) filed a response. (ECF No. 131).

17

Also before the court is plaintiff’s motion in limine regarding the testimony of Tio

18

DiFederico (ECF No. 128), to which defendants responded (ECF No. 132).

19

I.

Facts

20

This is a deficiency judgment action, the facts and procedure of which the court and parties

21

are familiar. Thus, the court will address only those facts that are pertinent to resolution of the

22

instant motions in limine.

23

Pursuant to the pretrial order dated April 20, 2016, two issues of fact are to be tried and

24

determined upon a bench trial: (1) the fair market value of the property as of January 21, 2014 (the

25

“sale date”); and (2) the date, if any, upon which interest at the default rate began to accrue on the

26

balance of the loan. (ECF No. 118 at 5).

27
28
James C. Mahan
U.S. District Judge

In the instant motions, plaintiff Wells Fargo moves for an order excluding the testimony of
Gordon Garff and Tio DiFederico. (ECF Nos. 127, 128).

1

II.

Legal Standard

2

“The court must decide any preliminary question about whether . . . evidence is

3

admissible.” Fed. R. Evid. 104. Motions in limine are procedural mechanisms by which the court

4

can make evidentiary rulings in advance of trial, often to preclude the use of unfairly prejudicial

5

evidence. United States v. Heller, 551 F.3d 1108, 1111–12 (9th Cir. 2009); Brodit v. Cambra, 350

6

F.3d 985, 1004–05 (9th Cir. 2003).

7

“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the

8

practice has developed pursuant to the district court’s inherent authority to manage the course of

9

trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to

10

exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams,

11

939 F.2d 721, 723 (9th Cir. 1991) (affirming district court’s ruling in limine that prosecution could

12

admit impeachment evidence under Federal Rule of Evidence 609).

13

Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler

14

Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th

15

Cir. 1999) (“The district court has considerable latitude in performing a Rule 403 balancing test

16

and we will uphold its decision absent clear abuse of discretion.”). Further, “in limine rulings are

17

not binding on the trial judge [who] may always change his mind during the course of a trial.”

18

Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in

19

limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated

20

manner).

21

III.

Discussion

22

In the instant motions, plaintiff Wells Fargo moves to exclude the testimony of defendants’

23

proposed witnesses, Gordon Garff and Tio DiFederico. (ECF Nos. 127, 128). Mr. Garff had

24

appraised the property for plaintiff in the years preceding the sale date, in 2009, 2010, and 2012.

25

(ECF No. 127). Mr. DiFederico had appraised the property for nonparty UNLV in July 2013.

26

(ECF No. 128).

27

Defendants argue that historic valuations of the property are relevant and helpful in

28

determining the value of the property as of the sale date given the divergent valuations of the

James C. Mahan
U.S. District Judge

-2-

1

property as of the sale date by defendants’ expert Keith Harper and plaintiff’s expert Robert

2

Dietrich. (ECF Nos. 131, 132). More specifically, defendants assert Mr. Harper opined that the

3

property’s value as of the sale date was $31,850,000.00, whereas plaintiff’s expert, Mr. Dietrich,

4

opined that the property’s value as of the sale date was $19,000,000.00. (ECF No. 131).

5

Plaintiff contends that the opinions of Mr. Garff and Mr. DiFederico regarding the value

6

of the property in the years preceding the sale date are irrelevant because they have no bearing

7

upon the value of the property as of the January 2014 sale date. (ECF Nos. 127, 128). Plaintiff

8

further contends that the testimony of Mr. Garff and Mr. DiFederico should be excluded as

9

cumulative of other evidence under Rule 403 because both parties have retained their own

10

testifying experts who will offer their opinions regarding the property’s value as of the sale date.

11

(ECF Nos. 127, 128). The court agrees.

12

“Irrelevant evidence is not admissible.” Fed. R. Evid. 402. “Evidence is relevant if: (a) it

13

has any tendency to make a fact more or less probable than it would be without the evidence; and

14

(b) the fact is of consequence in determining the action.” Fed. R. Evid. 401; see also Velazquez v.

15

City of Long Beach, 793 F.3d 1010, 1028 (9th Cir. 2015).

16

Further, rule 403 provides that “[a]lthough relevant, evidence may be excluded if its

17

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

18

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

19

presentation of cumulative evidence.” Fed. R. Evid. 403. District courts have considerable latitude

20

in performing a Rule 403 balancing test. See, e.g., Tennison v. Circus Circus Enterprises, Inc.,

21

244 F.3d 684, 688 (9th Cir. 2001).

22

The testimony of Mr. Garff and Mr. DiFederico regarding the property’s value in the years

23

preceding the sale date are irrelevant as the issue to be determined at trial is the fair market value

24

of the property as of the sale date, January 21, 2014. Further, their testimony is cumulative as the

25

parties have retained experts to testify as to the value of the property as of the sale date.
Accordingly, the court will grant plaintiff’s motions in limine (ECF Nos. 127, 128) and

26
27

exclude the testimony of Mr. Garff and Mr. DiFederico.

28

...

James C. Mahan
U.S. District Judge

-3-

1

IV.

Conclusion

2

Accordingly,

3

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motions in

4
5
6
7

limine (ECF Nos. 127, 128) be, and the same hereby are, GRANTED.
DATED December 5, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-4-