1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD A MCCALLA, Case No. 4:22-cv-00675-KAW
8 Plaintiff, ORDER REGARDING DEFENDANT'S OBJECTIONS TO PLAINTIFF'S 9 v. TRIAL EXHIBITS
10 JAMES NORD, Re: Dkt. No. 81 11 Defendant.
12 13 On October 20, 2023, Defendant filed objections to 20 of Plaintiff’s exhibits. (Def.’s Obj., 14 Dkt. No. 81.) On October 25, 2023, Plaintiff filed a response to those objections. (Dkt. No. 83.) 15 On November 8, 2023, the Court held the pretrial conference, and now rules on Defendant’s 16 objections as follows: 17 EXHIBIT GROUNDS FOR OBJECTION RULING 18 Plaintiff’s Trial Defendant objects on the grounds the document is not 19 Exhibit 4 – Report of relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time OVERRULED 20 Suspected Dependent period of this case. Adult/Elder Abuse 21 dated December 18, Defendant objects on the grounds the document lacks 2018. foundation, and no individual with personal knowledge 22 has authenticated the document. F.R.E. 901, 902. 23 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 24 exception has been established or otherwise applies. See F.R.E. 801-804. 25 26 Plaintiff’s Trial Defendant objects on the grounds the document is not Exhibit 5 – Email relevant, and is more prejudicial than probative. F.R.E. 402, 403. Document pertains to events before relevant OVERRULED 27 string between Maria time period of this case. Jimenez-Garcia and Beatriz Ortiz dated foundation, and no individual with personal knowledge 1 February 14, 2019. has authenticated the document. F.R.E. 901, 902. 2 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 3 exception has been established or otherwise applies. See F.R.E. 801-804. 4 Plaintiff’s Trial Defendant objects on the grounds the document is not 5 Exhibit 6 – Report of relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time OVERRULED 6 Suspected Dependent period of this case. Adult/Elder Abuse 7 dated April 11, 2019. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 8 has authenticated the document. F.R.E. 901, 902. 9 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 10 exception has been established or otherwise applies. See F.R.E. 801-804. 11 Plaintiff Trial Exhibit Defendant objects on the grounds the document is not 12 7 – Email string dated relevant, and is more prejudicial than probative. F.R.E. 402, 403. Document pertains to events before relevant OVERRULED 13 May 23, 2019 – May time period of this case. 24, 2019 between 14 Peggy Chiprez and Defendant objects on the grounds the document lacks Yvette Rodriguez. foundation, and no individual with personal knowledge 15 has authenticated the document. F.R.E. 901, 902. 16 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 17 exception has been established or otherwise applies. See F.R.E. 801-804. 18 Plaintiff’s Trial Defendant objects on the grounds the document is not 19 Exhibit 10 – relevant, and is more prejudicial than probative. F.R.E. 402, 403. Examination occurred September 12, 2018, OVERRULED 20 Capacity Declaration and was limited to medical, not financial, consent. re Thomas McCalla 21 filed June 17, 2019. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 22 has authenticated the document. F.R.E. 901, 902. 23 Opinions expressed are those of an expert, and Plaintiff has not designated an expert to opine on Thomas 24 McCalla’s medical issues. Testimony on, or authentication of, this document would result in 25 improper expert testimony by a lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th Cir. 1944), Spitzer v. 26 Stichman, 278 F.2d 402, 409 (2nd Cir. 1960). 27 Defendant further objects on the grounds that content of F.R.E. 801-804. 1 Plaintiff’s Trial Defendant objects on the grounds the document is not 2 Exhibit 20 – email relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time OVERRULED 3 from Beatriz Ortiz to period of this case. Emmanuel Odoi and 4 Maria Jimenez-Garcia Defendant objects on the grounds the document lacks dated July 31, 2019. foundation, and no individual with personal knowledge 5 has authenticated the document. F.R.E. 901, 902. 6 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 7 exception has been established or otherwise applies. See F.R.E. 801-804. 8 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 2. 9 Exhibit 37 – Deed Defendant objects on the grounds the document is not OVERRULED 10 dated September 25, relevant, and is more prejudicial than probative. F.R.E. 2012. 402, 403. Report pertains to events before relevant time 11 period of this case. (See Order re: 12 Defendant objects on the grounds the document is Motions in inadmissible hearsay for which no exception has been Limine) 13 established or otherwise applies. See F.R.E. 801-804. 14 Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 15 has authenticated the document. F.R.E. 901, 902. 16 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 2. 17 Exhibit 39 – Deed Defendant objects on the grounds the document is not OVERRULED dated December 19, relevant, and is more prejudicial than probative. F.R.E.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD A MCCALLA, Case No. 4:22-cv-00675-KAW
8 Plaintiff, ORDER REGARDING DEFENDANT'S OBJECTIONS TO PLAINTIFF'S 9 v. TRIAL EXHIBITS
10 JAMES NORD, Re: Dkt. No. 81 11 Defendant.
12 13 On October 20, 2023, Defendant filed objections to 20 of Plaintiff’s exhibits. (Def.’s Obj., 14 Dkt. No. 81.) On October 25, 2023, Plaintiff filed a response to those objections. (Dkt. No. 83.) 15 On November 8, 2023, the Court held the pretrial conference, and now rules on Defendant’s 16 objections as follows: 17 EXHIBIT GROUNDS FOR OBJECTION RULING 18 Plaintiff’s Trial Defendant objects on the grounds the document is not 19 Exhibit 4 – Report of relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time OVERRULED 20 Suspected Dependent period of this case. Adult/Elder Abuse 21 dated December 18, Defendant objects on the grounds the document lacks 2018. foundation, and no individual with personal knowledge 22 has authenticated the document. F.R.E. 901, 902. 23 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 24 exception has been established or otherwise applies. See F.R.E. 801-804. 25 26 Plaintiff’s Trial Defendant objects on the grounds the document is not Exhibit 5 – Email relevant, and is more prejudicial than probative. F.R.E. 402, 403. Document pertains to events before relevant OVERRULED 27 string between Maria time period of this case. Jimenez-Garcia and Beatriz Ortiz dated foundation, and no individual with personal knowledge 1 February 14, 2019. has authenticated the document. F.R.E. 901, 902. 2 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 3 exception has been established or otherwise applies. See F.R.E. 801-804. 4 Plaintiff’s Trial Defendant objects on the grounds the document is not 5 Exhibit 6 – Report of relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time OVERRULED 6 Suspected Dependent period of this case. Adult/Elder Abuse 7 dated April 11, 2019. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 8 has authenticated the document. F.R.E. 901, 902. 9 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 10 exception has been established or otherwise applies. See F.R.E. 801-804. 11 Plaintiff Trial Exhibit Defendant objects on the grounds the document is not 12 7 – Email string dated relevant, and is more prejudicial than probative. F.R.E. 402, 403. Document pertains to events before relevant OVERRULED 13 May 23, 2019 – May time period of this case. 24, 2019 between 14 Peggy Chiprez and Defendant objects on the grounds the document lacks Yvette Rodriguez. foundation, and no individual with personal knowledge 15 has authenticated the document. F.R.E. 901, 902. 16 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 17 exception has been established or otherwise applies. See F.R.E. 801-804. 18 Plaintiff’s Trial Defendant objects on the grounds the document is not 19 Exhibit 10 – relevant, and is more prejudicial than probative. F.R.E. 402, 403. Examination occurred September 12, 2018, OVERRULED 20 Capacity Declaration and was limited to medical, not financial, consent. re Thomas McCalla 21 filed June 17, 2019. Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 22 has authenticated the document. F.R.E. 901, 902. 23 Opinions expressed are those of an expert, and Plaintiff has not designated an expert to opine on Thomas 24 McCalla’s medical issues. Testimony on, or authentication of, this document would result in 25 improper expert testimony by a lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th Cir. 1944), Spitzer v. 26 Stichman, 278 F.2d 402, 409 (2nd Cir. 1960). 27 Defendant further objects on the grounds that content of F.R.E. 801-804. 1 Plaintiff’s Trial Defendant objects on the grounds the document is not 2 Exhibit 20 – email relevant, and is more prejudicial than probative. F.R.E. 402, 403. Report pertains to events before relevant time OVERRULED 3 from Beatriz Ortiz to period of this case. Emmanuel Odoi and 4 Maria Jimenez-Garcia Defendant objects on the grounds the document lacks dated July 31, 2019. foundation, and no individual with personal knowledge 5 has authenticated the document. F.R.E. 901, 902. 6 Defendant further objects on the grounds that content of the document is inadmissible hearsay for which no 7 exception has been established or otherwise applies. See F.R.E. 801-804. 8 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 2. 9 Exhibit 37 – Deed Defendant objects on the grounds the document is not OVERRULED 10 dated September 25, relevant, and is more prejudicial than probative. F.R.E. 2012. 402, 403. Report pertains to events before relevant time 11 period of this case. (See Order re: 12 Defendant objects on the grounds the document is Motions in inadmissible hearsay for which no exception has been Limine) 13 established or otherwise applies. See F.R.E. 801-804. 14 Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 15 has authenticated the document. F.R.E. 901, 902. 16 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 2. 17 Exhibit 39 – Deed Defendant objects on the grounds the document is not OVERRULED dated December 19, relevant, and is more prejudicial than probative. F.R.E. 18 2019. 402, 403. 19 Defendant objects on the grounds the document is (See Order re: inadmissible hearsay for which no exception has been Motions in 20 established or otherwise applies. See F.R.E. 801-804. Limine) 21 Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 22 has authenticated the document. F.R.E. 901, 902. 23 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 2. 24 Exhibit 40 – Sales Defendant objects on the grounds the document is not OVERRULED data for Oregon relevant, and is more prejudicial than probative. F.R.E. 25 Property 402, 403. 26 Defendant objects on the grounds the document is (See Order re: inadmissible hearsay for which no exception has been Motions in 27 established or otherwise applies. See F.R.E. 801-804. Limine) foundation, and no individual with personal knowledge 1 has authenticated the document. F.R.E. 901, 902. 2 Defendant further objects on the grounds the document was produced on September 26, 2023, months after the 3 discovery cutoff, and Plaintiff should not be permitted to introduce documents that were untimely produced. 4 F.R.C.P. 26(e), 37(c)(1). 5 Plaintiff’s Trial Defendant objects on the grounds the document is Exhibit 49 – IRS inadmissible hearsay for which no exception has been 6 established or otherwise applies. See F.R.E. 801-804. OVERRULED Notice to Thomas R. 7 McCalla dated June Defendant objects on the grounds the document lacks 1, 2020. foundation, and no individual with personal knowledge 8 has authenticated the document. F.R.E. 901, 902. 9 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 4. Exhibit 113 – PG&E 10 Defendant objects on the grounds the document is not OVERRULED Bills March 2020- relevant, and is more prejudicial than probative. F.R.E. 11 April 2023. 402, 403. 12 Defendant objects that the records are incomplete, with only selected months provided. F.R.E. 106. 13 Defendant objects on the grounds the document is 14 inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. 15 Defendant objects on the grounds the document lacks 16 foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. 17 Defendant further objects on the grounds the document 18 was produced on August 8, 2023, months after the discovery cutoff, and Plaintiff should not be permitted 19 to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1). 20 Plaintiff’s Trial Defendant objects on the grounds the document is not 21 Exhibit 117 – 2021- relevant, and is more prejudicial than probative. F.R.E. 402, 403. Documents both pre and postdate Nord’s OVERRULED 22 2023 delinquent tax trusteeship, the attempt to claim tax liability from 2018 notices and tax outweighs the probative value of proving penalties for 23 payments late filing 24 Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been 25 established or otherwise applies. See F.R.E. 801-804. 26 Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 27 has authenticated the document. F.R.E. 901, 902. Plaintiff’s Trial Subject to Defendant’s Motion in Limine No. 1. 1 Exhibit 120 – Defendant objects on the grounds the appraisal is more OVERRULED 2 Appraisal dated prejudicial than probative. F.R.E. 402, 403. February 28, 2019
3 Defendant objects on the grounds the document is inadmissible hearsay for which no exception has been (See Order re: 4 established or otherwise applies. See F.R.E. 801-804. Motions in Limine) 5 Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 6 has authenticated the document. F.R.E. 901, 902. 7 The law is plain that when an appraisal is offered as proof of value of the property at issue, it is hearsay 8 because it is offered for the truth of the matter asserted. (See Waddell v. Comm'r of Internal Revenue Serv., 841 9 F.2d 264, 267 (9th Cir. 1988) 10 Defendant objects on the grounds the document lacks foundation, and no individual with personal knowledge 11 has authenticated the document. Authentication by the appraiser would result in improper expert testimony by a 12 lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th Cir. 1944), Spitzer v. Stichman, 278 F.2d 402, 409 (2nd 13 Cir. 1960). 14 Plaintiff’s Trial Subject to Defendant’s Motion in Limine No. 1. Exhibit 121 – 15 Defendant objects on the grounds the appraisal is more OVERRULED Appraisal dated prejudicial than probative. F.R.E. 402, 403. 16 September 22, 2021 Defendant objects on the grounds the document is 17 inadmissible hearsay for which no exception has been (See Order re: established or otherwise applies. See F.R.E. 801-804. Motions in 18 Limine) Defendant objects on the grounds the document lacks 19 foundation, and no individual with personal knowledge has authenticated the document. F.R.E. 901, 902. 20 The law is plain that when an appraisal is offered as 21 proof of value of the property at issue, it is hearsay because it is offered for the truth of the matter asserted. 22 (See Waddell v. Comm'r of Internal Revenue Serv., 841 F.2d 264, 267 (9th Cir. 1988) 23 Defendant objects on the grounds the document lacks 24 foundation, and no individual with personal knowledge has authenticated the document. Authentication by the 25 appraiser would result in improper expert testimony by a lay witness. See Love v. U.S., 141 F.2d 981, 983 (8th 26 Cir. 1944), Spitzer v. Stichman, 278 F.2d 402, 409 (2nd Cir. 1960). 27 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 4. 1 Exhibit 122 – Photos Defendant objects on the grounds the document is not SUSTAINED 2 of Napa Property. relevant, and is more prejudicial than probative. F.R.E. IN PART 402, 403. Photos appears to have been taken after 3 Nord’s trusteeship. Only the photos 4 Defendant objects that the records are incomplete, with produced on only selected months provided. F.R.E. 106. or after 5 September 26, Defendant objects on the grounds the document lacks 2023 are 6 foundation, and no individual with personal knowledge excluded per has authenticated the document. F.R.E. 901, 902. the Order re: 7 Motions in Defendant further objects on the grounds the document Limine 8 was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted 9 to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1). 10 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 4. 11 Exhibit 123 – Defendant objects on the grounds the document is OVERRULED 12 Closing disclosure inadmissible hearsay for which no exception has been dated October 28, established or otherwise applies. See F.R.E. 801-804. 13 2021 Defendant objects on the grounds the document lacks (See Order re: 14 foundation, and no individual with personal knowledge Motions in has authenticated the document. F.R.E. 901, 902. Limine) 15 Defendant further objects on the grounds the document 16 was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted 17 to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1). 18 Defendant objects on the grounds the document is not 19 relevant, and is more prejudicial than probative. F.R.E. 402, 403. The document post-date Nord’s time as 20 trustee, was an independent decision of Plaintiff, and is in no way connected Nord’s trusteeship. 21 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 4. 22 Exhibit 124 – Repair Defendant objects on the grounds the document is not SUSTAINED 23 invoices relevant, and is more prejudicial than probative. F.R.E. 402, 403. 24 Defendant objects on the grounds the document is (See Order re: 25 inadmissible hearsay for which no exception has been Motions in established or otherwise applies. See F.R.E. 801-804. Limine) 26 Defendant objects on the grounds the document lacks 27 foundation, and no individual with personal knowledge Defendant further objects on the grounds the document 1 was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted 2 to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1). 3 Plaintiff’s Trial Defendant objects on the grounds the document is 4 Exhibit 125 – inadmissible hearsay for which no exception has been established or otherwise applies. See F.R.E. 801-804. SUSTAINED 5 spreadsheet of IN PART expenses advanced by Defendant objects to Plaintiff’s improper use of a 6 Rick McCalla summary spreadsheet without providing the originals or Only items duplicates of each entry. F.R.E. 1006. that predate 7 Defendant’s Defendant objects on the grounds that the summary of tenure as 8 expenditures is irrelevant, and more prejudicial than trustee are probative. F.R.E. 403. Plaintiff’s personal spending excluded. 9 decisions are not relevant to the claims in this case, and without expert examination of the reliability and 10 necessity of the expenditures, the spreadsheet will serve to prejudice to the jury without providing any probative 11 value. Further, the documents are dated outside the relevant time period of Nord’s trusteeship. 12 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 4. 13 Exhibit 126 – Defendant objects on the grounds that the credit card OVERRULED 14 American Express statement is irrelevant, and more prejudicial than statement for Rick probative. The records are outside the relevant time 15 McCalla for period of Nord’s trusteeship F.R.E. 402, 403. November 2021 (See Order re: 16 Plaintiff’s personal spending decisions are not relevant Motions in to the claims in this case, and without expert Limine) 17 examination of the reliability and necessity of the expenditures, the credit card statement will serve to 18 prejudice to the jury without providing any probative value. 19 Defendant further objects on the grounds the document 20 was produced on September 26, 2023, months after the discovery cutoff, and Plaintiff should not be permitted 21 to introduce documents that were untimely produced. F.R.C.P. 26(e), 37(c)(1). 22 Plaintiff’s Trial Subject to Nord’s Motion in Limine No. 3 23 Exhibit 127 – Expert Defendant objects on the grounds that the expert report OVERRULED 24 Witness Report and is inadmissible, as it fails to meet the requirements of Curriculum Vitae for F.R.E. 702. 25 Varee Wycoff Ms. Wycoff’s report is not based on sufficient facts or (See Order re: 26 data, the report is not the product of reliable methods, Motions in and Ms. Wycoff failed to apply the requisite principles Limine) 27 and methods reliably to the facts in this case. and interpretation of the California Probate Code, which 1 is not the proper subject matter of expert opinion. 2 3 IT IS SO ORDERED. 4 || Dated: November 8, 2023 DIS A. WESTMORE 6 United States Magistrate Judge 7 8 9 10 11 12
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