McCalla v. Nord

Background

This order followed a pretrial conference and addressed one motion in limine filed by Richard A. McCalla and four motions in limine filed by James Nord. A motion in limine asks the court to decide before trial whether particular evidence or testimony may be presented to the jury.

Rulings on the Motions in Limine

Plaintiff’s motion concerning Raymond Tate

McCalla asked the court to exclude or limit Nord’s liability expert, Raymond Tate, under Federal Rule of Evidence 702. McCalla argued that Tate lacked the experience and qualifications to testify about the duties and responsibilities of a professional trustee. The opinion states that Tate had worked in financial services for most of his career, had managed assets and trained or overseen trust officers, and had never personally served as a trustee, conservator, or estate receiver.

The court found Tate qualified under Rule 702 to testify about trust administration. But it agreed that he was not qualified to testify about construction issues, including the roof and foundation. The court therefore granted in part McCalla’s motion. Tate’s testimony was limited to trustee duties, and he was not permitted to testify about construction issues.

Defendant’s first motion: property appraisals

Nord sought to exclude two property appraisals as hearsay, arguing that they had not been authenticated, that the appraisers had not been disclosed as experts, and that the appraisals were untrustworthy because they were prepared for loan applications.

The court rejected those arguments and denied Nord’s first motion. The court stated that the appraisers could testify as witnesses with personal knowledge about how they determined the appraisal values, although they could not testify as experts. The court also stated that concerns about whether the appraisals were trustworthy went to credibility and could be addressed through cross-examination.

Defendant’s second motion: the Oregon Property

Nord sought to exclude argument or testimony that the Oregon Property was part of the McCalla Family Living Trust, arguing that the property was never a trust asset. McCalla argued that the trust covered after-acquired property.

The court noted that, in its earlier summary-judgment order, it had found that Thomas and Shirly McCalla’s interests in the Oregon Property could be considered a trust asset. It further stated that the deeds’ failure to mention the trust, and the fact that Thomas’s quitclaim was not executed on behalf of the trust or in his capacity as trustee, were not dispositive. The court denied Nord’s second motion.

Defendant’s third motion: Varee Wycoff

Nord sought to exclude McCalla’s expert, Varee Wycoff, who was offered to testify about whether Nord breached fiduciary duties as trustee of the McCalla Family Living Trust. Nord argued that Wycoff’s opinions were not based on the actual trust documents, would not assist the factfinder, amounted to improper legal conclusions, and lacked sufficient facts or reliable methods.

The court denied the request to exclude Wycoff’s opinions and testimony. It found that Wycoff was qualified to testify about the standard of care and what a trustee was required to do under the circumstances. The court stated that the fact that the standard of care was found in the California Probate Code did not make her opinions impermissible legal opinions. It also treated challenges to the materials she reviewed and the reliability of her opinions as matters for cross-examination.

Defendant’s fourth motion: late-produced evidence

Nord moved to exclude four categories of evidence produced after discovery closed: photographs of the Napa Property, invoices from A&R Construction, documents concerning the 2021 refinancing of the Napa Property, and McCalla’s American Express statement.

The court granted in part this motion. It sustained Nord’s objection to the recently produced photographs because they were not timely produced and McCalla had not shown good cause for admitting them. The photographs could nevertheless be used for impeachment, meaning to challenge or contradict testimony.

The court also excluded the A&R Construction repair invoices under Rule 403. It reasoned that the invoices could unfairly prejudice or confuse the jury because the recoverable property damages would be based on the cost of delay rather than the full cost of repair or replacement. The court stated that an expert would be needed to explain how delay damages could be calculated and that, to the court’s knowledge, McCalla had not retained such an expert.

The court declined to exclude the closing-disclosure documents concerning the 2021 refinancing. It ordered the parties to meet and confer about reopening McCalla’s deposition for the limited purpose of allowing Nord to question him about those documents. The court also declined to exclude the American Express statement showing a payment of $10,795.50 to Optima Tax Services because McCalla had already testified about the payment and the late production was not prejudicial.

Other Pretrial Rulings

The court stated that Nord’s objections to McCalla’s exhibits would be addressed in a separate order.

McCalla’s request for in-state witnesses to testify remotely was denied. If a suitable courtroom was available, the court would permit three out-of-state witnesses—Frank Cuffe, Gerard McCalla, and John Nelson—to testify remotely, provided each witness’s direct examination was expected to last less than one hour.

Although the parties had not filed a formal motion to separate the punitive-damages phase from the liability phase, the court denied their proposal to do so. The parties were ordered to file an amended verdict form by November 27, 2023. The court also required a bench binder containing each side’s final exhibits on the first day of trial.

Effect of the Order

This was a pretrial evidence and trial-management order. It did not decide the parties’ underlying claims. Judge Kandis A. Westmore ruled on which testimony and exhibits could be presented and set conditions for certain trial procedures.