Opinion
2:06-cv-2657-GEB-KJM.
August 9, 2007
DRAFT PRETRIAL ORDER
A final pretrial conference will be held on August 13, 2007. This draft pretrial order issues in an attempt to expedite the conference. A final pretrial order will issue after the conference.
I. JURY/NON-JURY
All issues shall be tried to a jury.
II. UNDISPUTED FACTS
This section contains facts which will become a part of the evidentiary record. The parties shall incorporate them into a preliminary jury instruction which will be read to the jury prior to opening statements, and shall determine which party or parties should read them to the jury. The parties shall also review the undisputed facts stated in this section and modify them as necessary so that the jury will understand what is being communicated. For example, perhaps what is meant by "Chapter 7 bankruptcy" in the first undisputed fact should be explained.1. Debtor filed a Chapter 7 bankruptcy case on August 16, 2005.
2. Defendant is an individual currently residing in the City of Suisun in the County of Solano, California.
3. Defendant is the ex-wife of the Debtor.
4. On June 8, 1989, Debtor and Defendant purchased and acquired title to the Shasta Street Property as husband and wife, as joint tenants.
5. On or about May 11, 2004, Debtor filed for divorce from Defendant in Solano County Superior Court, Case Number FFL079006 ("Marital Dissolution Action").
6. On or about November 22, 2004, the Superior Court of Solano County entered a Judgement of Dissolution in the Marital Dissolution Action.
7. The Crested Drive Property is a single family residential property.
8. The Shasta Street Property is a single family residential property.
9. The Crested Drive Property and the Shasta Street Property are not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light or power.
10. On July 23, 1993, the Debtor and Defendant purchased and took record title to the Crested Drive Property as husband and wife, as joint tenants.
11. On June 17, 2002, the Debtor executed an Interspousal Transfer Deed conveying his right, title and interest in the Crested Drive Property to Defendant "a married woman as her sole and separate property" which deed was recorded on June 24, 2002.
12. On July 18, 2002, Defendant executed an Interspousal Transfer Deed wherein Defendant grants the Crested Drive Property to "Chung Xay Luu and Tham Thi Mai, Husband and Wife as Joint Tenants" which deed was recorded on July 26, 2002
13. On October 20, 2004, the Debtor and Defendant executed a Grant Deed which purports to convey the Crested Drive Property to Defendant "Tham Thi Mai, an unmarried woman" which deed was recorded on October 20, 2004,
14. On January 5, 2004, the Debtor executed an Interspousal Transfer Grant Deed, pursuant to which deed the Debtor conveyed his right, title and interest in the Shasta Street Property to Defendant which deed was recorded on January 7, 2004.
III. DISPUTED EVIDENTIARY ISSUES
Any evidentiary dispute capable of being resolved in limine shall be addressed using the following procedure. Counsel for the parties are required to meet and confer about the dispute. If the meeting fails to resolve the dispute, the parties are to set forth their respective positions on the dispute in a document entitled "Stipulation Re: Evidentiary Disagreements," that shall be signed by counsel for the parties and filed no later thantwenty (20) court days prior to the date on which trial commences ("Stipulation").
The parties also have leave to set forth their agreements on any evidentiary matters in the Stipulation.
In the Stipulation, after the movant states the legal and factual basis for opposing admission of a clearly-identified, specific item of evidence, the nonmovant shall state its position. Failure to state a basis for admissibility or non-admissibility of disputed evidence constitutes a waiver or abandonment of that basis. If the same argument or a portion thereof applies to a dispute over other evidence, that argument may be incorporated by reference where that other disputed evidence is argued.
This procedure is intended to expedite the trial by allowing the judge to understand the factual context involving disputed evidence and to make binding pretrial rulings. The parties are cautioned that failure to utilize this procedure to resolve an evidentiary issue which is capable of resolution in an in limine motion may be deemed a waiver of objection to such evidence, or could result in a ruling excluding the evidence.
Since the judge disfavors side-bar conferences during trial, counsel may be informed of this waiver in front of the jury. Evidentiary disputes addressed in limine need not be included in trial briefs as required by Local Rule 16-285(a)(3) (requiring that "reasonably anticipated disputes concerning admissibility of evidence" be included in trial briefs).
IV. ISSUES FOR TRIAL
Plaintiff's issue regarding "[t]he amount of sanctions that Plaintiff is entitled to recover as a consequence of prevailing on its Motion to Compel" shall be referenced to the bankruptcy judge. (Joint Pretrial Statement ("JPS") at 9.)
B. The following issues are preserved for trial provided jury instructions are submitted as required by Section XI of this Order:
Agreed Issues Applicable to All Claims Asserted by Plaintiff
1. The extent of the Debtor's legal and equitable ownership interest in the Crested Property, the Shasta Property and the Personal Property at the time said properties were transferred to Defendant.
2. The dates when Transfer #1, Transfer #2 and the transfer of the Personal Property occurred (collectively the "Transfers").
3. Whether the Debtor was insolvent at the time that the Transfers occurred or became insolvent as a result of such Transfer(s).
Defendant's Additional Issues as to Defenses Asserted to All Claims
4. Whether pursuant to the divorce and Marital Settlement Agreement of the parties, Defendant received marital assets of substantially equal value as received by the Debtor.
5. Whether the Dissolution Judgement incorporates the most recent Marital Settlement Agreement of the parties.
6. Whether the Transfers were made pursuant to court order.
7. Whether Plaintiff was harmed by the alleged Transfers.
8. Whether Defendant was a transferee in good faith for value.
9. Whether the alleged Transfers were preferences.
10. Whether Plaintiff's claims are barred by the applicable statutes of limitations.
11. Whether the transfers were exempt from fraudulent conveyance laws in effect at the time of the transfers.
12. Whether as part of the dissolution the parties entered into a marital settlement.
13. Whether subsequent to the entry of the November 1, 2006 Bankruptcy Court Order granting Plaintiff's motion compelling Defendant to produce written discovery, Defendant produced responsive documents.
Plaintiff's Additional Issues as to Defenses Asserted to All Claims
14. Whether Defendant filed sworn documents with the state court in connection with the Dissolution Action stating that she was not represented by counsel.
Agreed Issues re: Preference Claims ( 11 U.S.C. § 547(b))
15. Whether Transfer #1 and the transfer of the Personal Property occurred within one year of the commencement of the Debtor's bankruptcy case.
16. Whether Transfer #1 and the transfer of the Personal Property constituted transfers of the Debtor's interest in property.
17. Whether Transfer #1 and the transfer Personal Property was for the benefit of Defendant.
18. Whether Transfer #1 and the transfer of the Personal Property was made on account of an antecedent debt owed by the Debtor to Defendant.
19. Whether Defendant was an insider of Debtor when Transfer #1 and the transfer of the Personal Property occurred.
20. Whether the effect of Transfer #1 and the transfer of the Personal Property was that Defendant received more than she would have received if: (a) the bankruptcy case were a case under Chapter 7 of Title 11 U.S.C.; (b) the transfers had not been made; and (c) Defendant received payment of her debt(s) to the extent provided by the provisions of Title 11.
Agreed Issues re: Fraudulent Conveyance Claim (11 U.S.C. § 548(a) )
21. Whether Transfer #1 and the transfer of the Personal Property occurred within one year of the commencement of the Debtor's bankruptcy case.
22. Whether Transfer #1 and the transfer of the Personal Property constituted transfers of the Debtor's interest in property.
23. Whether the Debtor made Transfer #1 and transfer of the Personal Property to Defendant with the actual intent to hinder, delay or defraud any creditor of the Debtor to whom the Debtor was or became indebted on or after the date of said transfers.
24. Whether the Debtor received reasonably equivalent value for Transfer #1 and the transfer of the Personal Property to Defendant. (i.e., the value of the property transferred and the value of any consideration received by the Debtor in exchange).
25. Whether the Debtor was engaged in business or a transaction, or was about to engage in a business or transaction, for which any property remaining with the Debtor was an unreasonably small capital when Transfer #1 and the transfer of the Personal Property to Defendant occurred.
26. Whether the Debtor intended to incur while receiving less than reasonably equivalent value in exchange for such transfers, and while he intended to incur, or believed that he would incur, debts that would be beyond the Debtor's ability to pay as such debts matured.
Agreed Issues re: Fraudulent Conveyance Claim ( 11 U.S.C. § 544(b) and California Civil Code § 3439 et seq.)
27. Whether Transfer #2 occurred within four years of the commencement of the Debtor's bankruptcy case.
28. Whether the Debtor made Transfer #2 to Defendant with the actual intent to hinder, delay or defraud any creditor of the Debtor.
29. Whether at the time Transfer #2 was made the Debtor intended to incur, or believed that he would incur, debts that would be beyond the Debtor's ability to pay as such debts came due.
30. Whether at the time Transfer #2 occurred the Debtor while he was engaged, or was about to engage in a business or transaction, for which any property remaining with the Debtor was an unreasonably small in relation to the business or transaction.
31. Whether the Debtor intended to incur, or believed or reasonably should have believed that he would incur, debts that would be beyond the Debtor's ability to pay as such debts became due.
32. Whether a creditor's claim arose before the Debtor made Transfer #2.
33. Whether Plaintiff is entitled to recover punitive damages and attorneys fees incurred in connection with prosecuting this claim for relief.
Agreed Issues re: Claim to Determine Liability for Avoided Transfer ( 11 U.S.C. §§ 550 and 551)
34. Whether Defendant is (a) the initial transferee of Transfer #1, Transfer #2 and the Personal Property or the entity for whose benefit such Transfers were made or (b) the immediate or mediate transferee of the initial transferee.
Agreed Issues re: Claim to Sell Real Properties Free and Clear of Co-Owner's Interest ( 11 U.S.C. § 363(h))
35. Whether partition in kind of the Crested Drive Property and the Shasta Street Property among the estate and Defendant is impracticable.
36. Whether a sale of the estate's one-half interest in the Crested Drive Property and the Shasta Street Property would realize significantly less for the estate than a sale of the Crested Drive Property and the Shasta Street Property free and clear of Defendant's interest.
37. Whether the benefit to the estate of a sale of the Crested Drive Property and the Shasta Street Property free and clear of Defendant's interest outweighs the detriment, if any, to Defendant.
C. In addition to the matters set forth in Local Rule 16-285, the parties shall brief the following points of law in their trial briefs.
1. The elements, standards, and burdens of proof as to each of Plaintiff's causes of action, including citations of authority in support thereof.
2. The elements, standards, and burdens of proof as to each of Defendant's defenses, including citations of authority in support thereof.
Notwithstanding Local Rule 16-285, trial briefs shall be filed with the Court no later than twenty (20) court days prior to the date on which trial commences. All legal positions briefed in the trial brief shall be supported with case and applicable statutory authority. See Local Rule 16-285. If separate or partial separate trial briefs are submitted, responding briefs, if any, shall be filed with the Court no later than five (5) court days prior to the date on which trial commences. The trial brief(s) must include "a summary of points of law, including reasonably anticipated disputes concerning admissibility of evidence, legal arguments, and citations of authority in support thereof." L.R. 16-285(a)(3).
V. WITNESSES
Since neither Plaintiff nor Defendant listed in the JPS any witnesses that it intends to call at trial, it is assumed that neither side intends to call witnesses to testify at trial.
If a witness is discovered after the pretrial conference, counsel for the party offering the witness shall promptly inform the Court and opposing parties of the existence of the unlisted witness so that the Court may consider at trial whether the witness shall be permitted to testify. The witness will be not be permitted to testify unless:
(1) The witness could not reasonably have been discovered prior to pretrial;
(2) The Court and opposing counsel were promptly notified upon discovery of the witness;
(3) If time permitted, counsel offered the witness for deposition; and
(4) If time did not permit, a reasonable summary of the witness' testimony was provided to opposing counsel.
VI. EXHIBITS
Defendant anticipates offering at trial the exhibits listed in Defendant's Supplement to the JPS, which was filed on August 3, 2007. Since Plaintiff did not list in the JPS any exhibits that it intends to offer at trial, it is assumed that Plaintiff does not intend to offer any exhibits at trial.
Any party proposing to introduce an exhibit which was discovered after the pretrial conference shall promptly notify the Court and opposing counsel of the existence of such exhibit. The Court will not permit any such exhibit to be introduced unless it finds:
(1) That the exhibit could not reasonably have been discovered prior to the pretrial conference;
(2) The Court and counsel were promptly informed of the exhibit's existence; and
(3) That the offering party has delivered a copy of the exhibit to opposing counsel, or, if the exhibit may not be copied, that the offering counsel has made the exhibit reasonably available for inspection by opposing counsel.
Defendant's exhibits shall be designated by alphabetical letter and marked with colored stickers provided by the Court. To obtain stickers, parties should contact the Clerk of Court at (916) 930-4000.
Defendant is directed to provide to Plaintiff, at least twenty (20) court days prior to the date on which trial commences, copies of all of Defendant's respective exhibits, marked with exhibit stickers provided by the Court. Within five (5) court days after receipt and examination of the exhibits, Plaintiff shall file with the Court and serve upon opposing counsel objections, if any, to the exhibits, referencing the exhibits as marked by exhibit sticker and specifying the basis for each objection. Failure to exchange exhibits as ordered could result in the exhibit not being used at trial and/or the imposition of sanctions. The failure to make objections in the manner prescribed by this section shall constitute a waiver of objections. If Defendant seeks to admit into evidence an exhibit to which no objection was made, Defendant must identify said exhibit for the record and then move it into evidence.
The parties have leave to file joint exhibits. The above procedure is designed for separate exhibits.
Counsel for Defendant shall produce all exhibits to the Clerk's Office no later than 4:00 p.m. on the Friday before the date on which trial is scheduled to commence. At that time, Defendant shall also furnish the Court with a copy of each exhibit, unless the exhibit is physically incapable of being reproduced. Failure to produce exhibits as ordered could result in waiver of the right to offer those exhibits. Defendant shall also furnish a list to the Court, the courtroom deputy and opposing counsel itemizing the exhibits.
VII. FURTHER PREPARATION FOR USE OF DISCOVERY DOCUMENTS
A. It is the duty of counsel to ensure that any depositions which are to be used at trial for any purpose shall have been filed with the clerk, and counsel are cautioned that a failure to discharge this duty may result in preclusion of the use of the unfiled depositions or in the imposition of such other sanctions as the Court deems appropriate.
B. No later than twenty (20) court days before the trial commencement date, counsel for each party shall serve on the other parties a statement designating all answers to interrogatories and all portions of depositions (except for passages to be used solely for refreshing recollection, impeachment or rebuttal). No later than ten (10) court days before the trial commencement date, counter-designations of other portions of these discovery documents may be served. No later than five (5) court days before the trial commencement date, the parties shall file and serve any preserved evidentiary objections to any designated discovery, or said objections are waived.
VIII. FURTHER DISCOVERY OR MOTIONS
Pursuant to the Court's Pretrial Scheduling Order, all discovery and law and motion was to have been completed prior to the date of the final pretrial conference. That order is confirmed. The parties are, of course, free to conduct any additional discovery they desire pursuant to informal agreement. However, any such agreement will not be enforceable in this Court.
IX. SETTLEMENT NEGOTIATIONS
No settlement conference is scheduled in this matter. If the parties believe that a settlement conference would be productive and facilitate resolution of this case, the parties may contact the Court. If the Court schedules a settlement conference at the request of the parties, each party would be directed to have a principal with authority to settle the case on any terms present at the settlement conference.
In addition, each party would have to submit a settlement conference statement directly to the chambers of the settlement judge, five (5) court days prior to the settlement conference. Such statements would not have to be filed with the clerk nor served on opposing counsel. However, each would be required to notify the other party or parties that the statement was submitted to the judge's chambers.
[or]
A settlement conference is scheduled before the Honorable ____________________ on _______________ at __________. Each party is directed to have a principal with authority to settle the case on any terms present at the settlement conference.
In addition, each party is directed to submit a settlement conference statement directly to the chambers of Judge ___ ________, the settlement judge, five (5) court days prior to the settlement conference. Such statements shall not be filed with the clerk nor served on opposing counsel. However, each party shall notify the other party or parties that the statement has been submitted to the judge's chambers.
X. AGREED STATEMENT
The parties shall submit a short, jointly-prepared statement concerning the nature of this case that can be read to the jury at the commencement of trial. The statement shall be provided to the Court no later than ten (10) court days before the trial commencement date. If the parties fail to do this, they may be required to give their respective opening statements before voir dire. Separate statements shall be submitted if agreement is not reached.
XI. JURY INSTRUCTIONS, VOIR DIRE, AND VERDICT FORMS
Jury instructions, proposed voir dire, and verdict forms shall be filed no later than fifteen (15) court days before trial. The parties shall prepare the instructions and verdict forms in accordance with Local Rule 51-163, and shall tailor all general instructions to the facts and issues in suit. The parties are directed to confer and to attempt to agree upon a joint set of jury instructions and verdict forms. As to instructions on which there is dispute, the parties shall adhere to the following procedure: 1) the party offering the disputed instruction(s) shall submit the instruction(s) as its proposed jury instructions, shall submit authority in support of the proposed instruction(s) and shall number the disputed instruction(s) in a manner that shows where each disputed instruction should be placed in the tendered agreed upon instructions. The contested instruction(s) and supporting authority shall be filed with the joint set of instructions fifteen (15) court days prior to the trial commencement date; 2) the party opposed to the contested instruction(s) shall file opposing authority ten (10) court days prior to the trial commencement date.
The examination of prospective jurors is conducted by the Court.
At the time of electronically filing the jury instructions and verdict forms, the parties shall also submit a copy of the sanitized joint jury instructions, the sanitized disputed jury instructions, and the joint verdict forms to the Court by email to geborders@caed.uscourts.gov in accordance with L.R. 51-163(b)(1).
XII. USE OF STRUCK JURY SELECTION SYSTEM
Eight jurors will be impaneled. The "struck jury" system will be used to select the jury. At the beginning of the voir dire process, approximately eighteen prospective jurors, randomly selected by the Jury Administrator, will be seated for voir dire. The order of the jurors' random selection is reflected by the order in which they will be seated. The first randomly selected juror will be in jury seat number one, which is at the extreme right-hand side of the jury box in the top row as the jury box is viewed from the well of the courtroom. The eighth juror will be in the eighth seat. The ninth selected juror will occupy the seat located at the extreme right-hand side of the jury box in the bottom row. The fifteenth seat will be in the left-hand side of that row. Three chairs will be placed in front of the jury box. The sixteenth juror will occupy the seat on the right and the eighteenth juror will occupy the seat on the left. The first eight jurors on a list, which shall be given to counsel, will constitute the petit jury unless one or more of those eight is excused for some reason. Assuming that the first and fifth jurors on the list are excused, the second listed juror becomes the first, and the other jurors' numbers are changed accordingly, with the ninth juror on the list becoming seventh on the list; however, the jurors continue to be identified by their original numbers.Following the voir dire questioning, each side will take turns exercising its three allotted peremptory strikes. If a side elects to pass rather than exercise a particular peremptory challenge, that challenge is waived.
XIII. ATTORNEYS FEES
The parties are referred to Local Rule 54-293 concerning the post-trial procedure for seeking an award of attorney's fees.
XIV. TRIAL DATE
Trial to a jury will commence on October 10, 2007. The parties estimate in the JPS that the trial will involve 2-3 days of testimony. A trial day will commence at 9:00 a.m. and will adjourn at approximately 4:30 p.m. Each side has ten minutes within which to make an opening statement to the jury and forty-five minutes within which to make a closing argument. Counsel are to call Shani Furstenau, Courtroom Deputy, at (916) 930-4114, one week prior to trial to ascertain the status of the trial date.