Hall v. Val-Chris Investments, Inc.

• Court: District Court, S.D. California
• Decided: July 31, 2023
• Docket: 3:23-cv-01349
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT HALL, an individual, Case No.: 23-CV-1349 TWR (JLB)

12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S EX PARTE APPLICATION FOR A 14 VAL-CHRIS INVESTMENTS, INC., TEMPORARY RESTRAINING a business entity; LOANCUTTERS, INC. 15 ORDER TO RESTRAIN A dba EVOQUE LENDING, a corporation; TRUSTEE’S SALE, AND (2) FOR 16 and DOES 1–50, inclusive, DEFENDANTS TO SHOW CAUSE 17 Defendants. WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE 18

19 (ECF No. 5) 20

21 Presently before the Court is Plaintiff Robert Hall’s Ex Parte Application for a 22 Temporary Restraining Order to Restrain a Trustee’s Sale (“Ex Parte App.,” ECF No. 5). 23 Plaintiff’s counsel provided notice to Defendants Val-Chris Investments, Inc. (“Val- 24 Chris”) and LoanCutters, Inc. dba Evoque Lending (“Evoque”) at approximately noon on 25 July 25, 2023. (See ECF No. 5-2 (“Adair Decl.”) ¶¶ 3–5.) Defendant Val-Chris filed an 26 Opposition to the Ex Parte Application (“Opp’n,” ECF No. 7) on the evening of July 26, 27 2023. As of the date of this Order, Defendant Evoque has not filed a response to the Ex 28 Parte Application. (See generally Docket.) 1 Having carefully considered the record, Plaintiff’s arguments, and the relevant law, 2 the Court GRANTS Plaintiff’s Ex Parte Application and SETS an Evidentiary Hearing to 3 determine whether a preliminary injunction should issue as follows. 4 BACKGROUND 5 Plaintiff purchased the real property located at 1557 Regatta Road, Carlsbad, 6 California 92011 (the “Subject Property”) in 1999. (See ECF No. 5-3 (“Hall Decl.”) 7 ¶¶ 1–2.) Over the intervening twenty-four years, the Subject Property has been Plaintiff’s 8 primary residence, and Plaintiff built up over $1 million of equity in the Subject Property. 9 (See id. ¶ 2.) 10 When COVID-19 struck in March 2020, however, Plaintiff’s business— 11 Commencement Flowers, (see ECF No. 7-1 (“LaMotte Decl.”) ¶ 4 & ECF No. 7-1 at 19 12 (“Ex. 3”),1 21 (“Ex. 4”))—suffered. (See Hall Decl. ¶ 3.) To pay his mortgage and keep 13 his business afloat, Plaintiff took out hard-money loans, including a hard-money business- 14 purpose lien through T&S Bluestone Trust. (See id. ¶¶ 3–4; see also ECF No. 7-1 at 25 15 (“Ex. 6”).) In November 2022, Plaintiff sought to refinance through Defendant Val-Chris, 16 (see Hall Decl. ¶ 4), with Defendant Evoque serving as broker, (see Ex. 6), and one of 17 Evoque’s senior lending specialists, Ahndrea Marx, serving as Plaintiff’s main contact 18 throughout the refinance process. (See Hall Decl. ¶ 8.) The Parties disagree, however, as 19 to the agreed-upon terms. (Compare Hall Decl., with LaMotte Decl.) 20 For its part, Val-Chris contends that it and Plaintiff discussed entering into a loan on 21 the following terms: $770,000.00 at 12.99% interest with monthly payments of 22 approximately $8,300 and a cash-out of $81,000.00 after closing (the “original terms”). 23 (See LaMotte Decl. ¶ 5 & ECF No. 7-1 at 23 (“Ex. 5”).) Plaintiff signed a Declaration of 24 Oral Disclosure regarding these terms on October 19, 2022. (See id.) Plaintiff and Val- 25 Chris, however, later agreed to amend the original terms, (see id. ¶ 6), and, on 26

27 1 To avoid ambiguity, pin citations to ECF Nos. 5-3 and 7-1 refer to the CM/ECF pagination electronically 28 1 || November 30, 2022, Plaintiff obtained a loan for $750,000 at 14.99% interest with monthly 2 ||payments exceeding $9,000 and a cash out of $58,000 at closing (the “revised □□□□□□□□ 3 id. ¥§| 3, 6.) Accordingly, the original terms were crossed out and changed to the 4 ||revised terms on the Declaration of Oral Disclosure, which Plaintiff again signed on 5 || November 30, 2022: 6 RIOKWDOC $750,000 A! fe Loan Amount 7 KXBHK 14.99% Pf Note Rate 8 ZRBERZR $9368.75 ATR Monthly Payment 9 (See id. 7 & Ex. 5; see also ECF No. 5-3 at 8 (“Ex. B”).) Plaintiff further acknowledged 10 and accepted the revised terms by signing the Note, Deed of Trust, and Certificate of Business Purposes of Loan, all of which indicate that the loan was in the amount of 12 |1§750,000, (see id. | 9 & ECF Nos. 7-1 at 7-9 (“Ex. 1”), 11-17 (“Ex. 2”); Ex. 3), and a 13 Settlement Statement including an amount “Due To Borrower’ of $58,159.66. (See id. 14 & ECF No. 7-1 at 25-26 (“Ex. 6”).) 15 Plaintiff, on the other hand, claims that he agreed to—and signed in the presence of 16 notary—the original terms in December 2022. (See Hall Decl. § 5.) After closing, 17 || Plaintiff received only two payments totaling $58,000 in late December 2022, (see id. ¥ 6), 18 and he never received a copy of the fully executed loan documents. (See id. □ 7.) On 19 January 28, 2023, Marx sent Plaintiff the executed documents. (See id. § 10.) Plaintiff 20 was “shock[ed]” to see that the original terms had been crossed out and replaced by the 21 revised terms. (See id.; see also ECF No. 5-3 at 8 (“Ex. B”).) 22 The Parties agree that Plaintiff's first payment was due February 1, 2023, (compare 23 || LaMotte Decl. 9 10 & Ex. 1, with Hall Decl. 4 13; see also ECF No. 5-3 at 10 (“Ex. C’)), 24 |! but Plaintiff contends that Marx provided him with an erroneous date of March 23, 2023. 25 (See Hall Decl. 4] 9.) Further, Plaintiff claims that he did not receive his first statement 26 from Val-Chris until March 2023, (see id. § 12), which—despite being only one month 27 after his initial payment was due—indicated that the Total Amount Due was $30,010.01, 28 comprised of a Payment Amount of $9,368.75, Past Due Payments of $18,737.50, Late

1 Charges Due of $1,873.76, and Unpaid Charges of $30.00. (See ECF No. 5-3 at 16 (“Ex. 2 E”); see also Hall Decl. ¶ 14.) Val-Chris, however, attests that it received an initial 3 payment from Plaintiff on February 6, 2023, which was ultimately returned for insufficient 4 funds. (See LaMotte Decl. ¶ 12 & ECF No. 7-1 at 32 (“Ex. 8”).) 5 On March 23, 2023, Val-Chris recorded a Notice of Default in the amount of 6 $24,229.76. (See Hall Decl. ¶¶ 11, 13; LaMotte Decl. ¶¶ 13–14; see also ECF No. 5-3 at 7 12–14 (“Ex. D”); ECF No. 7-1 at 28–30 (“Ex. 7”).) After Val-Chris recorded the Notice 8 of Default, Plaintiff received calls and emails from “hundreds of people” claiming that they 9 could help him remedy the situation. (See Hall Decl. ¶ 17.) Plaintiff was “overwhelmed” 10 by the communications and did not know whom to trust. (See id.) One of the people who 11 contacted him, for example, was a scammer who listed the Subject Property for sale 12 without Plaintiff’s knowledge. (See id. ¶ 18.) 13 On June 28, 2023, Val-Chris recorded a Notice of Trustee’s Sale indicating that 14 Plaintiff was in arrears by approximately $82,227.21.2 (See id. ¶ 15.) Plaintiff believes 15 this amount to be significantly inflated, perhaps by as much as $30,000, by the 6% “default- 16 interest” rate included in the Note. (See id. ¶¶ 15–16; see also ECF No. 5-3 at 18 (“Ex. 17 F”).) The Trustee’s Sale is currently scheduled for August 2, 2023. (See Hall Decl. ¶ 19.) 18 Absent a temporary restraining order, Plaintiff is likely to lose the Subject Property on that 19 date. (See id. ¶¶ 19–20.) 20 Consequently, Plaintiff filed suit in the Superior Court of California, County of San 21 Diego, on July 20, 2023. (See Adair Decl. ¶ 2.) After the filing was rejected on July 25, 22 2023, for containing “non-searchable” exhibits, Plaintiff refiled in this Court. (See id.; see 23 also generally ECF No. 1 (“Compl.”).) Plaintiff alleges eight causes of action for 24 (1) common law fraud against all Defendants; (2) common law breach of contract as to 25 26 27 2 As of July 26, 2023, Val-Chris’s records indicate that the loan is in arrears in the amount of $830,106.12. (See LaMotte Decl. ¶ 15 & ECF No. 7-1 at 34–35 (“Ex. 9”).) The Court notes, however, that Exhibit 9 is 28 1 Val-Chris and Evoque; (3) violation of California Civil Code §§ 2924c–d as to Val-Chris; 2 (4) violation of California Civil Code § 2924(a)(1)(C) as to Val-Chris; (5) violation of 3 California’s Truth in Lending Act (“TILA”), Cal. Fin. Code §§ 4970–4979.8, as to Val- 4 Chris; (6) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. 5 §§ 1692–1692p, as to Val-Chris; (7) negligent misrepresentation as to Evoque; and 6 (8) unfair competition in violation of California Business and Professions Code 7 §§ 17200–17209 against all Defendants. (See generally Compl. ¶¶ 29–81.) 8 That same day, Plaintiff filed the Ex Parte Application, (see generally ECF No. 3), 9 after first attempting to notify Defendants via email. (See Adair Decl. ¶¶ 3–5.) Because 10 “the signatory attorney did not match the filing attorney,” Plaintiffs withdrew, (see ECF 11 No. 4), and then refiled, (see generally ECF No. 5), the instant Ex Parte Application on 12 July 26, 2023. Val-Chris filed its Opposition later that day. (See generally ECF No. 7.) 13 LEGAL STANDARD 14 Federal Rule of Civil Procedure 65 authorizes a trial judge to grant a temporary 15 restraining order (“TRO”) under certain circumstances “to preserve the status quo and the 16 rights of the parties until a final judgment issues in the cause.” See Ramos v. Wolf, 975 17 F.3d 872, 887 (9th Cir. 2020) (quoting U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 18 1091, 1094 (9th Cir. 2010)). “A preliminary injunction [or temporary restraining order] 19 . . . is not a preliminary adjudication on the merits[,] but rather a device for preserving the 20 status quo and preventing the irreparable loss of rights before judgment.” Id. (alteration in 21 original) (quoting Sierra On-Line, Inc. v. Phx. Software, Inc., 739 F.2d 1415, 1422 (9th 22 Cir. 1984)). The status quo in this context “refers not simply to any situation before the 23 filing of a lawsuit, but instead to ‘the last uncontested status which preceded the pending 24 controversy[.]’” See GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir. 25 2000) (quoting Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963)). 26 “The standard for issuing a temporary restraining order is identical to the standard 27 for issuing a preliminary injunction.” Lockheed Missile & Space Co. v. Hughes Aircraft 28 Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). “A party seeking a preliminary injunction 1 must meet one of two variants of the same standard.” Ramos, 975 F.3d at 887 (quoting All. 2 for Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017)). 3 Under the original standard, plaintiffs seeking a preliminary injunction must establish that: (1) they are likely to succeed on the merits; (2) they are likely 4 to suffer irreparable harm in the absence of preliminary relief; (3) the balance 5 of equities tips in their favor; and (4) an injunction is in the public interest.

6 Id. (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “The Ninth Circuit 7 employs an alternative ‘serious questions’ standard, also known as the ‘sliding scale’ 8 variant of the Winter standard.” Id. (citing All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 9 1134 (9th Cir. 2011)). 10 Under this alternate standard, [the court] weigh[s] the preliminary injunction factors on a sliding scale, such that where there are only serious questions 11 going to the merits—that is, less than a likelihood of success on the merits— 12 a preliminary injunction may still issue so long as the balance of hardships tips sharply in the plaintiff’s favor and the other two factors are satisfied. 13 14 Id. at 887–88 (internal quotation marks omitted) (quoting Short v. Brown, 893 F.3d 671, 15 675 (9th Cir. 2018)). In other words, “[a] preliminary injunction may be granted . . . where 16 the moving party demonstrates either ‘(1) a combination of probable success on the 17 merits and the possibility of irreparable injury or (2) the existence of serious questions 18 going to the merits and that the balance of hardships tips sharply in [its] favor.’” Grocery 19 Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951 (9th Cir. 2007) (emphasis and second 20 alteration in original) (quoting Sardi’s Rest. Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir. 21 1985)). 22 A preliminary injunction is an “extraordinary remedy that may only be awarded 23 upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 24 Consequently, there are several limitations on when “[t]he court may issue a temporary 25 restraining order without written or oral notice to the adverse party or its attorney,” see 26 Fed. R. Civ. P. 65(b), and “[t]he court may issue a . . . temporary restraining order only if 27 the movant gives security in an amount that the court considers proper to pay the costs and 28 damages sustained by any party found to have been wrongfully enjoined.” See Fed. R. 1 Civ. P. 65(c). Further, “every restraining order must: (A) state the reasons why it issued; 2 (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring 3 to the complaint or other document—the act or acts restrained or required.” Fed. R. Civ. 4 P. 65(d)(1). 5 “In deciding a motion for a preliminary injunction, the district court ‘is not bound to 6 decide doubtful and difficult questions of law or disputed questions of fact.’” Int’l 7 Molders’ & Allied Workers’ Loc. Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 8 1986) (quoting Dymo Indus., Inc. v. Tapewriter, Inc., 326 F.2d 141, 143 (9th Cir. 1964)). 9 Whether to “grant . . . a preliminary injunction is a matter committed to the discretion of 10 the trial judge[,]” and that decision will be “reverse[d] only if that discretion is abused or 11 the decision is based on an erroneous legal standard or clearly erroneous findings of fact.” 12 See Sierra On-Line, 739 F.2d at 1421. 13 ANALYSIS 14 Through the instant Ex Parte Application, Plaintiff seeks to temporarily restrain the 15 Trustee’s Sale of the Subject Property that is currently scheduled for August 2, 2023. (See 16 generally Ex Parte App.; see also ECF No. 5-1 (“Mem.”) at 9–10.) The Court evaluates 17 Plaintiff’s request under the four Winter factors articulated above, see supra page 6, and— 18 despite the numerous material factual contradictions—ultimately concludes that Plaintiff 19 has established both the existence of serious questions going to the merits and that the 20 balance of hardships tips sharply in his favor such that he is entitled to emergency 21 injunctive relief. 22 First, the Court concludes that Plaintiff has demonstrated serious questions going to 23 the merits on his fraud claim against Val-Chris.3 “Under California law, the ‘indispensable 24 25 3 Given the urgency of Plaintiff’s Ex Parte Application, “[t]he Court need not decide at this stage of the 26 litigation whether Plaintiff[] ha[s] shown a likelihood of success on the merits regarding [his] other . . . claims.” See Innovation L. Lab v. Nielsen, 310 F. Supp. 3d 1150, 1162 (D. Or. 2018). Additionally, 27 because Evoque is “not the foreclosing Defendant to be bound by the injunction and ha[s] no record interest in the Property,” (see Adair Decl. ¶ 4), the Court need not evaluate Plaintiff’s likelihood of success 28 1 elements of a fraud claim include a false representation, knowledge of its falsity, intent to 2 defraud, justifiable reliance, and damages.’” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 3 1097, 1105 (9th Cir. 2003) (quoting Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996), 4 superseded by statute on other grounds as recognized in Nordin v. Scott, No. 22-15816, 5 ___ F. App’x ___, 2023 WL 4418595 (9th Cir. July 10, 2023)). Here, Plaintiff contends 6 that he executed a loan with the original terms, but that Val-Chris later unilaterally and 7 retroactively modified those terms without his knowledge. (See Hall Decl. ¶¶ 5, 10 & Ex. 8 B.) Of course, these facts are sharply contested, with Val-Chris introducing evidence of 9 documents purportedly signed by Plaintiff on November 30, 2022, containing the revised 10 terms. (See LaMotte Decl. ¶¶ 6–9 & Ex. 1 & 2.) Despite these factual disagreements, 11 however, Plaintiff’s “allegations sufficiently support[] a claim of fraud in the execution[,]” 12 Hotels Nev. v. L.A. Pac. Ctr., Inc., 144 Cal. App. 4th 754, 764 (2006). In Hotels Nevada, 13 for example, the appellant claimed to have signed an agreement for a twelve-month 14 holdback period for $5 million of the purchase price of a property, but the appellee later 15 sought to enforce a version of the agreement that contained a sixty-month holdback period 16 to which the appellant had not agreed. See id. The California Court of Appeal “conclude[d] 17 that [the appellant had] sufficiently alleged facts supporting a claim of fraud in the 18 execution.” See id. Similarly, while the Court cannot conclude that Plaintiff has 19 established probable success on the merits given the serious factual inconsistencies and 20 disputes between the Parties, the Court does conclude that Plaintiff has shown serious 21 questions going to the merits of his fraud claim. 22 Second, if Plaintiff’s claims do prove meritorious, Plaintiff will suffer irreparable 23 harm absent a temporary restraining order. As Plaintiff notes, (see Mem. at 8), under 24 California law, “it is to be presumed that the breach of an agreement to transfer real 25 property cannot be adequately relieved by pecuniary compensation.” Wheat v. Thomas, 26 209 Cal. 306, 317 (1930) (quoting Cal. Civ. Code § 3387). Plaintiff has therefore 27 established a high likelihood of irreparable harm absent a temporary restraining order. See, 28 e.g., Hart v. Select Portfolio Servicing, Inc., No. 2:22-CV-03399-FLA (MRWx), 2023 WL 1 3035351, at *2 & n.1 (C.D. Cal. Feb. 17, 2023) (“Under California law, a foreclosure sale 2 of a person’s home is presumed to qualify as irreparable harm.” (citing Cal. Civ. Code 3 § 3387; Real Est. Analytics, LLC v. Vallas, 160 Cal. App. 4th 463, 475 (2008))); see also 4 Rittenberg v. Decision One Mortg. Co., No. CV11-10635 CBM ANX, 2012 WL 10423361, 5 at *6 (C.D. Cal. Oct. 12, 2012) (“Given the drastic implications of a foreclosure, it is not 6 surprising to find courts quite frequently granting preliminary injunctions to forestall this 7 remedy while the court considers a case testing whether it is justified under the facts and 8 law.” (quoting Baypoint Mortg. Corp. v. Crest Premium Real Est. etc. Tr., 168 Cal. App. 9 3d 818, 825 (1985))). 10 Third and fourth, the balance of equities and public interest also favor Plaintiff. As 11 for the balance of equities, “[a] court balancing the equities will look to the possible harm 12 that could befall the various parties.” Friedman v. Wells Fargo Bank N.A., No. CV14- 13 00123-BRO (PLAx), 2014 WL 12572925, at *2 (C.D. Cal. Jan. 23, 2014) (citing 14 CytoSport, Inc. v. Vital Pharm., Inc., 617 F. Supp. 2d 1051, 1081 (E.D. Cal. 2009), aff’d, 15 348 F. App’x 288 (9th Cir. 2009)). “Causing a slight delay for Defendant’s sale of the 16 Subject Property is greatly outweighed by Plaintiff’s potential loss of his home.” See id. 17 Regarding the public interest, “it is in the public interest that home foreclosure sales do not 18 occur until the merits of an individual’s case has been assessed.” See id. 19 Consequently, under the sliding-scale variant, the Court concludes that Plaintiff has 20 sufficiently established the existence of serious questions going to the merits and that the 21 balance of hardships tips sharply in his favor such that he is entitled to a temporary 22 restraining order of the Trustee’s Sale of the Subject Property that is currently scheduled 23 for August 2, 2023. See, e.g., Rittenberg, 2012 WL 10423361, at *6 (“Plaintiffs’ showing 24 of likelihood of success on the merits is weak, but they have made a strong showing of 25 irreparable harm. In such a case, the Court may grant a preliminary injunction.” (citing 26 Regents of Univ. of Cal. v. ABC, Inc., 747 F.2d 511, 515 (9th Cir. 1984); Benda v. Grand 27 Lodge of Int’l Ass’n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), 28 cert. dismissed, 441 U.S. 937 (1979))). 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS Plaintiff’s Ex Parte Application (ECF 3 No. 5) and, pending the Evidentiary Hearing set below, TEMPORARILY RESTRAINS 4 AND ENJOINS Defendants, their employees, agents, and/or any other person or entity 5 acting with them or on their behalf from conducting a Trustee’s Sale for the property 6 located at 1557 Regatta Road, Carlsbad, California 92011. 7 Generally, the Court would next set a hearing date for Defendants to show cause 8 why the temporary restraining order should not be converted into a preliminary injunction. 9 As noted above, however, the facts here are sharply disputed. While “the district court ‘is 10 not bound to decide doubtful and difficult questions of law or disputed questions of fact’” 11 when ruling on a motion for a preliminary injunction, see Int’l Molders’, 799 F.2d at 551 12 (quoting Dymo Indus., 326 F.2d at 143), and an evidentiary hearing is not required “when 13 the magnitude of the inquiry would make it impractical,” see id. at 555 (citing SEC v. 14 Frank, 388 F.2d 486, 490 (2d Cir. 1968)), “proceeding on affidavits alone might be 15 inappropriate” “[w]here sharply disputed the facts are simple and little time would be 16 required for an evidentiary hearing.” Id. (citing Aguirre v. Chula Vista Sanitary Serv. & 17 Sani-Tainer, Inc., 542 F.2d 779, 781 (9th Cir. 1976)). Because the Court concludes that 18 an evidentiary hearing would not be “impractical” in this instance, the Court therefore 19 SETS an Evidentiary Hearing concerning Plaintiff’s likelihood of success on the merits for 20 purposes of converting the Temporary Restraining Order into a Preliminary Injunction for 21 Tuesday, August 17, 2023, at 9:30 a.m., in Courtroom 3A.4 22 Plaintiff and Jeff LaMotte, or another competent and knowledgeable representative 23 of Val-Chris, SHALL PERSONALLY ATTEND and be prepared to answer questions 24 25 4 Because the Court is unable to schedule this matter for an evidentiary hearing before August 17, 2023, 26 the Court concludes that good cause exists to extend the Temporary Restraining Order beyond the fourteen days authorized by Federal Rule of Civil Procedure 65(b)(2). See, e.g., Insider Software, Inc. v. ID 27 Designs, Inc., No. 20-CV-05990-BLF, 2020 WL 5094842, at *5 (N.D. Cal. Aug. 28, 2020) (“[T]he unavailability of lead counsel constitutes good cause for extending the TRO beyond the initial fourteen- 28 1 from the Court. Although Val-Chris is required to attend the Evidentiary Hearing and to 2 file the following documents, Evoque may choose to file any or all of the following 3 documents and/or attend or participate in the Evidentiary Hearing. At the Evidentiary 4 Hearing, the Parties will be permitted to offer documentary evidence and oral testimony 5 from additional witnesses relevant to the negotiation and terms of the loan agreement. 6 On or before August 10, 2023, Plaintiff and Val-Chris SHALL FILE a joint list of 7 witnesses and exhibits proposed to be offered/introduced at the hearing. For each witness, 8 Plaintiff and Val-Chris briefly SHALL OUTLINE the subject matter of the proposed 9 witness’s testimony. The Court expects Plaintiff and Val-Chris reasonably to cooperate 10 and to reach appropriate stipulations with respect to the authenticity and admissibility of 11 exhibits and evidence at the hearing. Any such stipulations SHALL BE OUTLINED in 12 Plaintiff and Val-Chris’s joint list of witnesses and exhibits. To the extent that Plaintiff 13 and Val-Chris genuinely disagree as to the admissibility of a particular item of evidence, 14 they SHALL LIST the item of evidence and SHALL INDICATE the basis of the dispute. 15 Plaintiff and Val-Chris are HEREBY CAUTIONED that any witnesses or exhibits not 16 listed in the joint list of witnesses and exhibits shall not be admitted or considered at the 17 hearing. 18 Also on or before August 10, 2023, Plaintiff and Val-Chris each MAY FILE a brief, 19 not to exceed ten (10) pages, addressing the applicable law and burden of proof, what each 20 expects the evidence at the hearing to show, any evidentiary disputes likely to be 21 encountered at the hearing, and any other matters that will promote the just and efficient 22 conduct of the hearing. No further briefing shall be permitted, unless specifically requested 23 by the Court. 24 Plaintiff SHALL SERVE a copy of this Order on Evoque and SHALL FILE 25 PROOF OF SERVICE within two (2) court days of the electronic docketing of this Order 26 / / / 27 / / / 28 / / / 1 ||so that Evoque may have a full opportunity to respond to Plaintiff Ex Parte Application 2 || and to participate in and/or attend the Evidentiary Hearing. 3 IT IS SO ORDERED. 4 ||Dated: July 31, 2023 [5 14 bre 6 Honorable Todd W. Robinson United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28