Opinion
4:22-cv-00675-KAW
11-08-2023
RICHARD A MCCALLA, Plaintiff, v. JAMES NORD, Defendant.
ORDER REGARDING DEFENDANT'S OBJECTIONS TO PLAINTIFF'S TRIAL EXHIBITS
Re: Dkt. No. 81
KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE
On October 20, 2023, Defendant filed objections to 20 of Plaintiff's exhibits. (Def.'s Obj., Dkt. No. 81.) On October 25, 2023, Plaintiff filed a response to those objections. (Dkt. No. 83.) On November 8, 2023, the Court held the pretrial conference, and now rules on Defendant's objections as follows:
EXHIBIT
GROUNDS FOR OBJECTION
RULING
Plaintiff's Trial Exhibit 4 - Report of Suspected Dependent Adult/Elder Abuse dated December 18, 2018.
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time period of this case. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804.
OVERRULED
Plaintiff's Trial Exhibit 5 - Email string between Maria Jimenez-Garcia and
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Document pertains to events before relevant time period of this case. Defendant objects on the grounds the document lacks
OVERRULED
Beatriz Ortiz dated February 14, 2019.
foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804.
Plaintiff's Trial Exhibit 6 - Report of Suspected Dependent Adult/Elder Abuse dated April 11, 2019.
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time period of this case. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804.
OVERRULED
Plaintiff Trial Exhibit 7 - Email string dated May 23, 2019 - May 24, 2019 between Peggy Chiprez and Yvette Rodriguez.
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Document pertains to events before relevant time period of this case. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804.
OVERRULED
Plaintiff's Trial Exhibit 10 - Capacity Declaration re Thomas McCalla filed June 17, 2019.
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Examination occurred September 12, 2018, and was limited to medical, not financial, consent. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Opinions expressed are those of an expert, and Plaintiff has not designated an expert to opine on Thomas McCalla's medical issues. Testimony on, or authentication of, this document would result in improper expert testimony by a lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th Cir. 1944), Spitzer v. Stichman, 278 F.2d 402, 409 (2nd Cir. 1960). Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804.
OVERRULED
Plaintiff's Trial Exhibit 20 - email from Beatriz Ortiz to Emmanuel Odoi and Maria Jimenez-Garcia dated July 31, 2019.
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time period of this case. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804.
OVERRULED
Plaintiff's Trial Exhibit 37 - Deed dated September 25, 2012.
Subject to Nord's Motion in Limine No. 2. Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time period of this case. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902.
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 39 - Deed dated December 19, 2019.
Subject to Nord's Motion in Limine No. 2. Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902.
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 40 - Sales data for Oregon Property
Subject to Nord's Motion in Limine No. 2. Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds the document was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1).
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 49 - IRS Notice to Thomas R. McCalla dated June 1, 2020.
Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902.
OVERRULED
Plaintiff's Trial Exhibit 113 - PG&E Bills March 2020-April 2023.
Subject to Nord's Motion in Limine No. 4. Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Defendant objects that the records are incomplete, with only selected months provided. F.R.E. 106. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds the document was produced on August 8, 2023, months after the discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1).
OVERRULED
Plaintiff's Trial Exhibit 117 - 20212023 delinquent tax notices and tax payments
Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Documents both pre and postdate Nord's trusteeship, the attempt to claim tax liability from 2018 outweighs the probative value of proving penalties for late filing Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902.
OVERRULED
Plaintiff's Trial Exhibit 120 - Appraisal dated February 28, 2019
Subject to Defendant's Motion in Limine No. 1. Defendant objects on the grounds the appraisal is more prejudicial than probative. F.R.E. 402, 403. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. The law is plain that when an appraisal is offered as proof of value of the property at issue, it is hearsay because it is offered for the truth of the matter asserted. (See Waddell v. Comm'r of Internal Revenue Serv., 841 F.2d 264, 267 (9th Cir. 1988) Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. Authentication by the appraiser would result in improper expert testimony by a lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th Cir. 1944), Spitzer v. Stichman, 278 F.2d 402, 409 (2nd Cir. 1960).
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 121 - Appraisal dated September 22, 2021
Subject to Defendant's Motion in Limine No. 1. Defendant objects on the grounds the appraisal is more prejudicial than probative. F.R.E. 402, 403. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. The law is plain that when an appraisal is offered as proof of value of the property at issue, it is hearsay because it is offered for the truth of the matter asserted. (See Waddell v. Comm'r of Internal Revenue Serv., 841 F.2d 264, 267 (9th Cir. 1988) Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. Authentication by the appraiser would result in improper expert testimony by a lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th Cir. 1944), Spitzer v. Stichman, 278 F.2d 402, 409 (2nd Cir. 1960).
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 122 - Photos of Napa Property.
Subject to Nord's Motion in Limine No. 4. Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Photos appears to have been taken after Nord's trusteeship. Defendant objects that the records are incomplete, with only selected months provided. F.R.E. 106. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds the document was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1).
SUSTAINED IN PART Only the photos produced on or after September 26, 2023 are excluded per the Order re: Motions in Limine
Plaintiff's Trial Exhibit 123 - Closing disclosure dated October 28, 2021
Subject to Nord's Motion in Limine No. 4. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. Defendant further objects on the grounds the document was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1). Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. The document post-date Nord's time as trustee, was an independent decision of Plaintiff, and is in no way connected Nord's trusteeship.
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 124 - Repair invoices
Subject to Nord's Motion in Limine No. 4. Defendant objects on the grounds the document is not relevant, and is more prejudicial than probative. F.R.E. 402, 403. Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902.
SUSTAINED (See Order re: Motions in Limine)
Defendant further objects on the grounds the document was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1).
Plaintiff's Trial Exhibit 125 -spreadsheet of expenses advanced by Rick McCalla
Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. Defendant objects to Plaintiff's improper use of a summary spreadsheet without providing the originals or duplicates of each entry. F.R.E. 1006. Defendant objects on the grounds that the summary of expenditures is irrelevant, and more prejudicial than probative. F.R.E. 403. Plaintiff's personal spending decisions are not relevant to the claims in this case, and without expert examination of the reliability and necessity of the expenditures, the spreadsheet will serve to prejudice to the jury without providing any probative value. Further, the documents are dated outside the relevant time period of Nord's trusteeship.
SUSTAINED IN PART Only items that predate Defendant's tenure as trustee are excluded.
Plaintiff's Trial Exhibit 126 - American Express statement for Rick McCalla for November 2021
Subject to Nord's Motion in Limine No. 4. Defendant objects on the grounds that the credit card statement is irrelevant, and more prejudicial than probative. The records are outside the relevant time period of Nord's trusteeship F.R.E. 402, 403. Plaintiff's personal spending decisions are not relevant to the claims in this case, and without expert examination of the reliability and necessity of the expenditures, the credit card statement will serve to prejudice to the jury without providing any probative value. Defendant further objects on the grounds the document was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1).
OVERRULED (See Order re: Motions in Limine)
Plaintiff's Trial Exhibit 127 - Expert Witness Report and Curriculum Vitae for Varee Wycoff
Subject to Nord's Motion in Limine No. 3 Defendant objects on the grounds that the expert report is inadmissible, as it fails to meet the requirements of F.R.E. 702. Ms. Wycoff's report is not based on sufficient facts or data, the report is not the product of reliable methods, and Ms. Wycoff failed to apply the requisite principles and methods reliably to the facts in this case. Instead, Ms. Wycoff's report relies on her application and interpretation of the California Probate Code, which is not the proper subject matter of expert opinion
OVERRULED (See Order re: Motions in Limine)
IT IS SO ORDERED.