Free Proposed Findings of Fact - District Court of California - California

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James P. Walsh, CSB. No. 184620 Gwen Fanger, CSB No. 191161 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111-3611 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 [email protected] Attorneys for Defendants and Claimant BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), the F/V POINT LOMA and Claimant, F/V POINT LOMA Fishing Company, Inc. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION DEL MAR SEAFOODS, INC., Plaintiff, v. BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), in personam and, F/V POINT LOMA, Official Number 515298, a 1968 steel-hulled, 126-gross ton, 70.8 foot long fishing vessel, her engines, tackle, furniture apparel, etc., in rem, and Does 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C-07-2952-WHA DEFENDANTS' RESPONSES TO PLAINTIFF'S AMENDED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Defendants Barry Cohen, Chris Cohen, the F/V Point Loma, in rem, and Counterclaimant

21 F/V Point Loma Fishing Company, Inc. submit the following responses (in bold) to Plaintiff Del 22 Mar Seafoods, Inc.'s Amended Proposed Findings of Fact and Conclusions of Law. 23 24 25 26 27 28
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FINDINGS OF FACT Del Mar Seafoods, Inc. is a fish processor and distributor of frozen fish. Roggio at RT 41 :7-8 Agree. Barry Cohen is a businessman who, together with his wife Christene Cohen, owned several

California Corporations including the Point Loma Fishing Company, Inc., Olde Port Fisheries, Inc., Olde Port Fish Company, Inc., Artemis, Inc. and a corporation in Mexico. Cohen at RT 254:15 -255:3; RT 256:18 - 20; 257:6 ­ 12 Agree that Barry and Christene Cohen owned the Point Loma Fishing Company, Inc. and Olde Port Fisheries Inc., but object on the basis of lack of support that she owned Olde

10 Port Fish Company, Inc., Artemis, Inc., and a corporation in Mexico.

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11 Cohen at RT 254:15-255:3, 256:18-257:5, 257:8-12 12 3. 13 market and fish wholesale business. 14 15 Cohen at RT 255:4 ­ 12 Agree that Barry Cohen operated a restaurant through Olde Port Fish Company, Through these corporate entities Barry and Christene Cohen operated a restaurant, fish

16 Inc. and Barry and Christene Cohen operated a fish market and fish wholesale business 17 through Olde Port Fisheries, Inc. but object on the basis of lack of support that Christene 18 Cohen operated a restaurant because she was only an owner in Point Loma Fishing 19 Company, Inc. and Olde Port Fisheries, Inc. 20 21 4. Cohen at RT 254:15-255:8, 256:18-257:5, 257:8-12 Although currently separated, at all material times Barry Cohen was authorized to speak on

22 behalf of Christene Cohen regarding the matters at issue. 23 24 TE 79, ¶ 6 Agree but that Barry Cohen represented himself, the boat and the Point Loma

25 Fishing Company, Inc. at trial. 26 27 28
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Cohen at RT 502:3-15

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Del Mar and Barry Cohen entered into an oral joint venture in 1999 pursuant to which Del

2 Mar was to supply the financial backing for a fish processing business in Avila Beach, California, 3 and Barry Cohen was to manage the joint venture. 4 5 6 6. Agree. Del Mar and Barry Cohen also had an oral joint venture to operate a fishing business in Cohen at RT 263:9 ­ 20

7 Mexico. 8 9 10 11 Roggio at RT 52:24 - 55:5 Defendants object on the basis of contrary evidence. Barry Cohen testified that he and Joe Cappuccio formed a corporation to fish in Mexico. There was an oral agreement between Barry and Joe Cappuccio for Joe Cappuccio to buy a 50% interest in the vessel. Cohen at RT 256:18-257:12; 437:21-438:9 Joint Pretrial Order Stipulated Fact #9 Del Mar advanced funds to Barry Cohen for "boat improvements, personal loans and

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14 fishing loans." 15 16 17 personal loans, and fishing loans" but that these funds comprised the $215,000 balance of the 18 Note and were advanced with the understanding that Joe Cappuccio was going to purchase a 19 50% interest in the vessel, Point Loma. 20 Cohen at RT 438:10-439:3 21 8. 22 executed by Barry Cohen and Chris Cohen on October 31, 2003 23 24 25 26 27 28 9. Agree. The promissory note and preferred mortgage each incorporated terms of the other Cohen at RT 277:21 - 278:21 TE 7 & 8. These advances were memorialized in a promissory note and preferred ship mortgage Roggio at RT 54:22 - 55:5 Cohen at RT 277:21 - 278:21 Agree that Del Mar advanced funds to Barry Cohen for "boat improvements,

document in their entirety. TE 7 & 8
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Agree. The promissory note provides for interest at 7.0%. TE 7. Agree that the promissory note provides for interest at 7.0% but that the parties

5 waived interest in exchange for Defendants' payment of $175,000 on the Note when Joe 6 Roggio told Barry Cohen that he would see to it that the loan was "interest free" if Barry 7 made a large payment and Plaintiff kept no interest accrual on its books and never asked 8 Defendants to pay interest or invoiced them for it. 9 10 11 11. Cohen at RT 457:1-21; 457:23-458:6 Roggio at RT 235:4-15; 170:19-23 The Preferred Mortgage provides: "This mortgage is executed for the purpose of securing not only the payment of the above described note but also to secure all future advances made by the holder of said note to the mortgagor, and said mortgage shall remain in full force and effect to secure all future advances and all renewals or extensions of the above described note." TE 8, Article IV Agree but that Plaintiff prepared the Note and Mortgage and the Note does not contain a future advances clause or any language regarding automatic renewals or extensions and thus requires a written amendment to make such future advances, renewals, or extensions. Also, the provision only secures "future advances made by the holder of said note [Del Mar] to the mortgagor [Barry and Christene Cohen]" and does not secure advances made by the Joint Venture or the accounts receivable owed to the Joint Venture. Roggio at RT 45:20-46:10; 47:15-48:3; 139:11-16; 140: 25-1412; 145:13-14 Cohen at RT 280:4-15; 281:23-282:4 TE 7 and 8 The Preferred Mortgage also provides that in the event of any default under the Mortgage,

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25 the mortgagor may: 26 27 28 (c ) Retake the vessel without legal process at any time wherever the same may be, and without being responsible for loss or damage, hold and in Mortgagee's or in Owner's name lease, charter, operate or otherwise use the vessel for such time and on such terms as Mortgagee may deem advisable, being accountable for net profits, if any, and with the right to dock the vessel free of charge at the
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Owner's premises or elsewhere at Owner's expense, and/or sell the vessel, free from any claim by Owner of any nature whatsoever, in the manner provided by the law, to the extent permitted by law, such sale may be public or private, without notice, without having the vessel present, and I or Mortgagee may become the purchaser. TE 8, Article II, ¶1(b)(c) Defendants object on the basis of lack of support. The terms of the Note and Mortgage provide that Plaintiff could only arrest the vessel in the event of a material breach. Cohen at RT 294:9-11 TE 8 (Mortgage, Art. II) Default in the punctual payment of the principal or any installment is an act of default

9 under the mortgage. 10 11 TE 8, Article II, ¶1(a). Agree but that there was no default in the payment because Defendants made a large

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12 payment in the amount of $175,000 on the Note as requested by Cappuccio. 13 14 15 16 17 Agree. 18 15. 19 20 21 22 23 24 Agree. 25 16. 26 27 28 The original balance on the promissory note was $215,000. Roggio at RT 48:19-21 Cohen at RT 278:24 - 279:1 Agree but that Barry and Christene Cohen never agreed to add anything to the Note.
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Cohen at RT 294:9-11 TE 29 14. The mortgage also provides that "No delay or omission by Mortgagee shall impair any

right, power, or remedy, and no waiver of any default shall waive any other default. TE 8, Article II, ¶3

The promissory note provides that the "maker" "...hereby waivers (sic) (a) presentment, demand, protest, notice of dishonor and/or protest, and notice of non-payment; (b) the right, if any, to the benefit of, or to direct the application of, any security hypothecated to holder until all indebtedness of maker to holder, however, arising, shall have been paid; and (c) the right to require holder to proceed against any party to this note, or to pursue any other remedy in holder (sic) power." TE 7, ¶6.

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Cohen at RT 279:10-20; 470:10-471:1 Roggio at RT 179:10-15 TE 7 The promissory note secured both the original balance ($215,000) and "future advances." Roggio at RT 50:21 -51:16 TE 8, Article IV Disagree but that the Mortgage and not the Note secured the original balance ($215,000) and future advances but the Mortgage only secured future advances made by the

7 holder of the note (Del Mar) to the mortgagor (Barry and Christene Cohen) and it secured 8 only "future advances and all renewals or extensions" of the Note. 9 10 11 Roggio at RT 139:11-16; 145:13-14 Cohen at RT 280:9-15; 281:23-25; 282:1-4 TE 8 (Art. IV) 18. The original balance of $215,000 was a "low guess" or "low estimate" as to how much

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money Barry Cohen had borrowed from Del Mar. Roggio at RT 49:7 - 17 Cohen at RT 282:10 ­ 22; 285:12-286:8 TE 37 Defendants object on the basis of contrary evidence and the parol evidence rule. Barry Cohen testified that after signing the Note, he later calculated based on numbers provided by Joe Roggio that the amount he originally owed to Del Mar was approximately $204,000 and Joe Roggio testified that at the time the Note was signed, the amount was in the $197,000 range. Barry and Christene Cohen also never agreed to add anything else to the Note. Cohen at RT 442:2-12, 505:4-14; 279:10-20; 470:10-471:1 Roggio at RT 213:16-18; 179:10-18; Barry Cohen owed Del Mar more than the original loan balance shown on the promissory

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Cohen at RT 288:2 ­ 14 Defendants object on the basis of contrary evidence and the parol evidence rule. See

27 Response to No. 18 above. 28
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These were advances after the date of the original note. Cohen at RT 279:l0 - 14 Cohen at RT 289:15 ­ 25 TE 37 Defendants object on the basis of contrary evidence. After the Note was signed, the

5 parties thought that the amount of money advanced towards Joe Cappuccio's purchase of 6 the 50% interest in the vessel was $237,000 and not $215,000. However, the parties had 7 already agreed that the Note would be for $215,000. The parties later learned that money 8 advanced towards the purchase of 50% of the vessel was less than $215,000. 9 10 21. 11 Cohen at RT 279:22-280:1; 289:10-25 Additional advances taken by Barry Cohen brought his loan balance to $237,035.48. Roggio at RT 77:9 ­ 10 Cohen at RT 289: 10 ­ 25 TE 37 Defendants object on the basis of contrary evidence. Barry Cohen testified in his deposition in the Avila Beach litigation that the $237,000 in the "Barry" column on Joe Roggio's spreadsheet was what he thought was the amount owed at the time of the Note. However, at time, the parties had agreed that the Note was for $215,000. The parties later learned that the amount of the loan was actually less than $215,000. Cohen at RT 289:10-25; 442:2-12; 505:4-14 TE 38 Barry Cohen also obtained advances for the Point Loma totaling $16,021.33. Cohen at RT 289:6 ­ 9 TE 37 Agree that there were advances to the Point Loma for $16,021.33 but that these were advanced to the vessel for fuel and ice, not Barry Cohen personally, by the Avila Beach Joint Venture and were carried on the Joint Venture's books through October 2004. Roggio at RT 70:2-10; 223:5-8 TE 19 While Del Mar and Barry Cohen operated the Avila Beach joint venture, Barry allowed his

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27 two sons, Michael and Leonard Cohen, to purchase fish products from the joint venture account. 28 Cohen at RT 264: 15-25
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Defendants object on the basis of lack of support. While Del Mar and Barry Cohen

2 operated the Avila Beach Joint Venture, Barry, as manager of the Joint Venture, was aware 3 that Michael and Leonard bought product from the Avila Beach Joint Venture. 4 5 24. 6 7 8 9 10 11 Cohen at RT 264:15-25 The joint venture was terminated by Del Mar effective September 30, 2004. Roggio at RT 42:19 - 43:2 Roggio at RT 105:9 ­ 11 Defendants object on the basis of contrary evidence and credibility as to when the Avila Beach Joint Venture terminated. The Avila Beach Joint Venture carried assets on its books at least through the end of October 2004. Joe Roggio also testified in his deposition in this case that the Joint Venture dissolved as of October 2004 and at trial testified that it was not wrapped up on September 30. It continued at least until October 28, 2004 when the final Joint Venture inventory was taken. Cappuccio testified that when the Assignment of Joint Venture Interest was signed (in 2006) it ended the Avila Beach Joint Venture. Roggio at RT 154:24-155:4; 156:16-20; 158:14-159:18; 209:4-14 Cohen at RT 448:7-19; 474:13-17 Cappuccio at RT 359:2-10 TE 24 TE 225 25. At the time that the joint venture was terminated, Michael Cohen was indebted to the Avila

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Beach joint venture for $13,920.40. Roggio at RT 61:17 ­ 62:13 TE 22 TE 37 Agree that at the time that the Avila Beach Joint Venture was terminated, Michael Cohen was indebted to the Avila Beach Joint Venture for $13,920.40 but that the Joint Venture was not terminated until at least October 28, 2004 when the final Joint Venture inventory was taken. The accounts receivable for Michael Cohen was carried on the Avila Beach Joint Venture's books at least until the end of October. Cohen at RT 448:7-19 Roggio at RT 209:15-210:7 TE 225
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At the time that the joint venture was terminated, Leonard Cohen/Olde Port Inn was

2 indebted to the Avila Beach joint venture for $18,069.10. 3 4 5 6 7 8 9 10 11 Roggio at RT 62:15 ­ 63:24 TE 22 TE 23 TE 37 Agree that at the time that the Avila Beach Joint Venture was terminated, Leonard Cohen/Olde Port Inn was indebted to the Joint Venture for $18,069.10 but that the Joint Venture continued at least until October 28, 2004, when the final joint venture inventory was taken and it was carried as part of the joint venture's receivables at least to end of October. The accounts receivable for Leonard Cohen were carried on the Joint Venture's books at least until the end of October. Cohen at RT 448:7-19 Roggio at RT 209:15-210:7 TE 225 27. 14 accounts receivables and then they were transferred over to the books of Del Mar Seafoods. 15 16 Roggio at RT 106:6 - 107:11 Defendants object on the basis of contrary evidence. Plaintiff unilaterally put the When the Avila Beach joint venture ended, Barry Cohen was credited with 50% of all

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17 total amount of all the receivables it claims are owed to the Joint Venture on Cohen's 18 balance. 19 20 21 22 23 24 25 29. Agree. After the Avila Beach joint venture was ended, Barry Cohen told Del Mar that he would 28. Roggio at RT 58:7-11; 60:10-19 (Michael); 63:5-11 (Leonard/Old Port Inn); 65:25-66:15 (Inventory); 70:2-10 (Point Loma); 221:15-17 TE 18 (Point Loma), 22 (Michael), 23 (Leonard/Old Port Inn), 24 (inventory) Leonard Cohen's debt to the Avila Beach joint venture was for seafood sold to the Olde

Port Inn. Roggio at RT 65:16 ­ 19

26 "be responsible" for paying the debts of Michael and Leonard Cohen, and he directed Del Mar to 27 "add them to [his] balance." 28 Roggio at RT 67:10 ­ 22; 68:14 - 23.
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Defendants object on the basis of contrary evidence as to directing Del Mar to add the

2 debts of Michael and Leonard to his balances. Barry Cohen testified that he did not ask Del 3 Mar to add the debts of Michael and Leonard Cohen, which were accounts receivable owed 4 to the Avila Beach Joint Venture, to the Note. Joe Roggio testified that he never discussed 5 adding any other debts to the Note with Christene Cohen. 6 7 8 9 10 11 31. 30. Roggio at RT 209:15-210:2; 222:22-223:4; 179:6-15 Cohen at RT 470:10-20 Joe Roggio agreed to add the debts of Michael and Leonard Cohen to Barry's balance. Roggio at RT 69:5 ­ 9 Defendants object on the basis of contrary evidence. See Response to No. 29 above. Barry Cohen also told his son Michael that he would take care of Michael's debts owed to

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the joint venture. Michael Cohen at RT 242:9 ­ 11 Agree. Barry Cohen also told his son Leonard that he would take care of Leonard Cohen's debts

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15 owed to the joint venture. 16 17 18 33. Agree. Barry Cohen told Joe Roggio of Del Mar that he would "be responsible for" Michael Leonard Cohen at RT 250:2 ­ 20

19 Cohen's debts. 20 21 Barry Cohen at RT 286:20 ­ 22 Agree that Barry Cohen told Joe Roggio of Del Mar that he would "be responsible

22 for" Michael Cohen's debts but that he told Joe Roggio this while he was an employee of Del 23 Mar and that Michael Cohen's debts were assigned to Barry Cohen under the Assignment of 24 Joint Venture interest effective October 22, 2004. 25 26 34. Cohen at RT 469:21-470:7; 470:2-15; 471:2-15 Barry Cohen told Joe Roggio of Del Mar that he would "be responsible for" Leonard

27 Cohen's debts. 28 Barry Cohen at RT 286:25 - 287:3
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Agree that Barry Cohen told Joe Roggio of Del Mar that he would "be responsible

2 for" Leonard Cohen's debts but that he told Joe Roggio this while he was an employee of Del 3 Mar and that Leonard Cohen's debts were assigned to Barry Cohen under the Assignment 4 of Joint Venture interest effective October 22, 2004. 5 6 35. Cohen at RT 469:21-470:7; 470:18-20; 471:2-15 When Barry Cohen told Joe Roggio that he would "be responsible for" Michael and

7 Leonard Cohen's debts, he asked that they be added to his balance. 8 9 10 36. 11 Roggio at RT 67:14 ­ 68:9; 68:14 ­ 23 Defendants object on the basis of contrary evidence. See response to No. 30 above. Del Mar agreed to add the Michael and Leonard Cohen debts to Barry Cohen's balance. Roggio at RT 69:5 ­ 9 Defendants object on the basis of contrary evidence. See response to No. 30 above. Del Mar maintained only a single balance for Barry Cohen and this was the promissory

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14 note balance. 15 16 17 prepared by Joe Roggio show separate balances for each debt. Joe Roggio also stated that 18 he unilaterally decided to maintain a single balance on Del Mar's books and "assumed" 19 Barry meant to add certain debts to the Note. Christene Cohen never saw the spreadsheet. 20 21 22 23 24 25 26 27 28 38. Roggio at RT 179:6-13 Christene Cohen at RT 418:23-419:13 TE 37, 38 When the Avila Beach joint venture ended, the joint venture still had some inventory on Roggio at RT 77:13 - 22 Roggio at RT 152:1 ­ 3 Defendants object on the basis of contrary evidence and credibility. Spreadsheets

hand. Barry Cohen asked Joe Roggio if he could keep that inventory for use in his retail market, and add the value to his balance. Del Mar agreed. Roggio at RT 65:23 - 66:18 TE 37 & 38 Agree but that the Joint Venture inventory was taken on October 28, 2004 and not added to the Note.
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Cohen at RT 468:20-469:5 The value of the inventory taken by Barry Cohen was $10,283.24. Roggio at RT 66:10 ­ 15 Barry Cohen at RT 448:7 - 14; 468:l6 - 469:12 Agree but that Defendants do not owe this amount to Del Mar after the Assignment of Joint Venture Interest that was made effective October 22, 2004. Cohen at RT 469:10-16 The promissory note required Barry and Chris Cohen to make "Monthly payments of

either $3,000 or fifteen (15) percent of the gross landing receipts of each and every landing of seafood product made by the fishing vessel POINT LOMA, whichever is greater, commencing on January `04 and on the 15th day of each succeeding month until principal and interest are fully paid." TE 7 Agree but that it was not the practice of Plaintiff to enforce this provision or demand

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14 monthly payments and Defendants were current on their monthly payments by virtue of the 15 $175,000 payment. 16 17 41. 18 19 The F/V POINT LOMA was arrested by Del Mar on June 8, 2007. Court's Order dated June 8, 2007. Defendants object on the basis of contrary evidence. Plaintiff arrested the F/V Point Roggio at RT 88:22-89:3; 143:23-144:7 Cohen at RT 519:7-14

20 Loma on June 7, 2007, pursuant to the Court's Order dated June 7, 2007. 21 22 23 24 25 26 27 28 43. 42. Court's Order dated June 7, 2007 Joint Pretrial Order Stipulated Fact #17 TE 42 On December 22, 2004 Barry Cohen made a payment for $5,000 "on account." Roggio at RT 76:21 - 77:22 TE 25 Agree that on December 22, 2004 Cohen made a payment of $5,000 on the Note. TE 25 On November 10, 2005 Barry Cohen made a payment of $175,000.
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Roggio at RT 81:7 ­ 15 Cohen at RT 283:16 - 18 TE 29 TE 37 Agree but this payment was to help Joe Cappuccio address the concerns of his bank and was a prepayment of payments that otherwise would have been paid in the future. Cappuccio at RT 323:17-25 Cohen at RT 519:7-14 When Barry Cohen made the payment of $175,000 he did so by personally delivering the

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8 check to Del Mar. Cohen at RT 454:15 ­ 17 9 Agree that when Barry Cohen made the payment of $175,000 he did so personally but 10 by delivering the check to Joe Cappuccio. 11 Cohen at RT 454:15 ­ 17; 283:19-20 12 Cappuccio at RT 324:11-14 13 45. When Barry Cohen delivered the $175,000 check to Del Mar he spoke with Del Mar's 14 President, Joe Cappuccio. The "total conversation" according to Barry Cohen was as follows: 15 16 17 18 19 20 46. 21 22 "Joe, I have the check that you asked for. And I handed him the check. And he said "thank you so much. I really appreciate this." And I said: "1 will get you the rest as soon as I can, pay it off." And he said: "I'm not worried about it. I'm not concerned anymore. It's such a small amount now. It's good." Barry Cohen at RT 455:21 - 456:7 Agree but that the supporting cite is Cohen RT 455:21-456:10. Joe Cappuccio never said that Barry Cohen did not have to pay interest on the note. Cappuccio at RT 325:9 ­ 13 Barry Cohen at RT 455:21 - 456:7 (the "total conversation") Defendants object on the basis of contrary evidence as to Cohen's obligations to pay

23 interest under the Note. Barry Cohen did not have a conversation with Joe Cappuccio about 24 interest. However, prior to making the $175,000 payment, Joe Roggio told him that if he 25 made the large payment, he would see to it that the Note would be interest free. 26 27 47. 28
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Cohen 456:24-457:21; 457:23-458:6 Joe Cappuccio never said that Barry Cohen did not have to make his monthly payments.

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Cappuccio at RT 325:25 ­ 326:2 Barry Cohen at RT 455:21 - 456:7 (the "total conversation") Barry Cohen at RT 456:11 ­ 12 Defendants object on the basis of lack of support and contrary evidence. Evidence

4 presented at trial shows that it was the practice of the parties that monthly payments were 5 not required: Joe Roggio did not enforce the monthly payment provisions between 6 November 2005 and January 2007 because Barry was "an employee and a friend;" Plaintiff 7 never sent any written demand for payments of any kind under the Note; Joe Cappuccio 8 asked Barry Cohen to make the large payment; and after Barry Cohen gave Joe Cappuccio 9 the $175,000 payment, Barry told Joe Cappuccio that he would pay the rest as soon as he 10 could and Joe Cappuccio replied that he was not worried or concerned about it. 11

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Roggio at RT 88:22-89:3; 143:23-144:7 Cohen at RT 453:21-454:17; 455:21-456:7 48. Joe Cappuccio never said that Barry Cohen did not have to pay Del Mar all of the money

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that he owed. Cappuccio at RT 326:3 ­ 5 Barry Cohen at RT 455:21 - 456:7 (the "total conversation") Agree that Joe Cappuccio never said that Barry Cohen did not have to pay Del Mar all of the money that he owed but that the only amount left on the Note is $27,000; Barry Cohen never agreed to pay all of Del Mar's attorneys fees, relating to the Avila Beach litigation; and all other accounts receivable or advances made to the Point Loma as part of the Avila Beach Joint Venture were assigned to Barry Cohen under the Assignment of Joint Venture interest, made effective October 22, 2004 and signed by Joe Roggio. Cohen at RT 520:3-6; 467:1-22; 526:10-21 Roggio at RT 104:3-15 TE 47 Del Mar has never forgiven any of Barry Cohen's debts under the promissory note and

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25 mortgage. 26 27 28 Cappuccio at RT 326:6 - 8 Barry Cohen at RT 455:21 -456:7 (the "total conversation") Agree but that the only debt remaining under the Note and Mortgage is $27,000 after Defendants paid $188,000 to Del Mar on the $215,000 Note.
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Cohen at RT 520:3-6 After speaking with Joe Cappuccio, Barry Cohen delivered the $175,000 check to Del

3 Mar's controller, Joe Roggio. 4 5 6 7 51. Roggio at RT 81:18 ­ 20 Agree but after Cohen brought the check to Cappuccio and at Cappuccio's request. Cappuccio at RT 324:11-14 Barry Cohen and Joe Roggio discussed how the $175,000 check was to be applied to his

8 account. 9 10 Roggio at RT 81:7 ­ 23 Defendants object on the basis of contrary evidence. Barry Cohen testified that he

11 made the $175,000 payment only to pay down the Note as requested by Joe Cappuccio. Joe

DAVIS WRIGHT TREMAINE LLP

12 Roggio prepared the spreadsheet after Barry asked what his sons owed. When Joe Roggio 13 gave Barry the spreadsheet, Barry told him that it did not look right and Joe Roggio 14 responded that he was only "cleaning up the books." 15 16 17 52. Cappuccio at RT 323:19-25 Cohen at RT 294:9-11; 453:18-454:14; 463:3-20; 523:15-23 Christene Cohen at RT 308:4-13 Barry Cohen and Joe Roggio agreed on the allocation of the $175,000 check against his

18 account by allocating it against different categories of debts. 19 20 21 22 23 24 25 26 27 28 54. 53. Roggio at RT 82:4 - 20 TE 37 & 38 Defendants object on the basis of contrary evidence. See response to No. 51 above. The purpose of the $175,000 payment was to "pay down" the note. Barry Cohen at RT 294:9 ­ 11 Agree but no payments are due until February 2009 because of $175,000 payment. Cohen at RT 519:7-14 Barry Cohen admits that TE 37 is a "list of payments made on that note." Barry Cohen at RT 287:13 - 1 7 Agree, but that Barry Cohen disagreed with the allocation of the payments and told Joe Roggio when he gave the list to Barry that it did not look right.
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1 2 55.

Cohen at RT 463:3-20 The "Schedule of Payments" spreadsheet (TE 37) was prepared by Joe Roggio between

3 November 10, 2005 and November 15, 2005. 4 5 6 7 8 9 10 11 57. Agree. On November 16, 2005 Barry Cohen was deposed in the Avila Beach litigation as both an 56. Agree. On November 15, 2005 Barry Cohen faxed the schedule to his attorneys at Miller, Starr. Barry Cohen at RT 283:21 - 284:3 TE 37 (note fax information at the top) TE 37 (showing last payment on November 10 and Fax date of November 15, 2005)

individual and as the joint venture's Person Most Knowledgeable. Barry Cohen at RT 264:4 - 8; 509:8 ­ 12 Agree. 58. During his November 16, 2005 deposition, Barry Cohen was questioned about each of the

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12 13 14 15 16

entries the Schedule of Payments (TE 37) which was marked as an exhibit to his deposition. Barry Cohen at RT 284:4 ­ 8 Defendants object on the basis of lack of support. The above testimony says that

17 Barry Cohen testified about the document but not that he was questioned about each of the 18 entries. He testified that each of these entries were balances for purchases made by Michael 19 and Leonard Cohen, inventory, and advances to the Point Loma. 20 21 59. Cohen at RT 288:15-289:9 During his deposition in the Avila Beach case Barry Cohen produced the promissory note

22 and the Schedule of Payments as "a list of payments made on that note." 23 24 Barry Cohen at RT 287:8 ­ 17 Agree, but that Barry Cohen disagreed with the allocation of the payments and told

25 Joe Roggio when he gave the list to Barry that it did not look right. 26 27 28
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1 60.

Between October 2005 and October 2006 Barry Cohen was employed by Del Mar in its

2 home office in Watsonville, California. In that year no payments were made on the promissory 3 note because Barry Cohen was an employee and friend. 4 5 Roggio at RT 88:22 - 89:3 Defendants object on the basis of contrary evidence. The evidence shows that a large

6 payment was made during this time period, in the amount of $175,000 on November 10, 7 2005, by personal check dated November 9, 2005. 8 9 10 11 61. Roggio at RT 81:7-15 TE 29 In October 2006 Barry Cohen was laid off by Del Mar. Barry Cohen at RT 465:12 ­ 14

DAVIS WRIGHT TREMAINE LLP

Agree. 62. In December, 2006 Del Mar's controller, Joe Roggio, tried calling Barry Cohen to ask him

12 13 14 15

to begin making payments on the account. As he did not reach Barry Cohen, Joe Roggio left a message requesting that Barry Cohen begin making his monthly payments. Roggio at RT 88:13 -21.

16 17 18 19 20 21 22 23 24 25 26 27 28 64.

Defendants object on the basis of lack of support as to the month when Joe Roggio tried to call Barry and whether Roggio requested that Barry make monthly payments. 63. On January 30, 2007 Barry Cohen made a payment of $2,000. Roggio at RT 87:23 ­ 88:6 TE 34 Agree, but even though the payment was for $2,000 and not $3,000 as stated in the terms of the Note, Joe Roggio testified that he considered it a payment on the Note but did not call Barry Cohen after receiving it. Roggio at RT 228:2-8. The January 30, 2007 payment was mailed to Del Mar together with a note from Barry

Cohen that read: Joe, Please credit my account. With this payment, if your analysis was correct, the new balance should be $139,749.79. I will try to send you at least $2,000/month, sometimes $3,000.
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1 2 3 4 5 6 7 8 65. Agree.

I'm sick right now and if I try to talk I start coughing, so instead, you get this note. I'm still unemployed, but this gives me a chance to help Michael make Olde Port better. I hope things are going good for you and your family. Please give Yvonne my regards. Too bad our families never got the chance to become better friends. Oh, well things usually happen for a reason. Well, take care of yourself. Barry TE 40

The figure was taken by Barry Cohen from the accounting spreadsheet prepared by Del

9 Mar and is consistent with the figures provided in that exhibit. Cohen at RT 527:16 - 528:13 10 TE 37 & 38 11

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Agree but that Barry Cohen had done no analysis of his own as to whether the figure

12 was correct because he was sick at the time he sent the $2,000 to reduce the balance on the 13 Note further. He had doubts about the figure which is why he said "if your analysis is 14 correct." At that time, neither Barry Cohen nor Joe Roggio considered the Assignment of 15 Joint Venture Interest on the amounts owed by Barry Cohen. Barry Cohen later 16 determined the figure was incorrect based on the application of the Assignment of Joint 17 Venture Interest to any debts owed to the Avila Beach Joint Venture and inconsistencies in 18 Roggio's accounting. 19 20 21 22 23 24 67. 25 26 27 28
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Cohen at RT 476:10-477:19; 526:23-529:5 TE 47 (Assignment) 66. A further payment was made for $3,000 by Barry Cohen on February 15, 2007. Roggio at RT 92:19 - 24 TE 35 and 38 Agree. The final payment was made for $3,000 by Barry Cohen on April 23, 2007. Roggio at RT 92:25 ­ 93:2 Agree. 68. Barry Cohen never made any of his payments based on the 15% of gross landings figure. Barry Cohen at RT 478:20 ­ 22.

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1

Agree but that Plaintiff never calculated or demanded any payment based on the

2 fifteen percent provision even though the Point Loma was selling fish. 3 4 5 69. Cohen at RT 478:16-19 Roggio at RT 206:11-13 Cappuccio at RT 349:23-25 Had Barry Cohen made payments under the 15% of gross landings figure he was required

6 by the terms of the promissory note to have paid $2995.66 in January $5284.97 in February 2007, 7 $4070.49 in March 2007, $1829.82 in April 2007 and $4911.88 in May 2007. 8 9 10 15% gross landings provision were required because Plaintiff never demanded or calculated 11 Barry Cohen at RT 487:16 ­ 488:6 TE 51 Defendants object on the basis of contrary evidence that any payments under the

DAVIS WRIGHT TREMAINE LLP

that payments be made under this provisions and even if they were required, Del Mar was 12 paid in advance by virtue of the $175,000 payment. 13 14 15 70. 16 17 18 19 20 21 22 23 Joint Final Pre Trial Order Stipulated Fact ¶ 17 24 25 26 27 28 72. Agree. In 2004 the F/V POINT LOMA's average monthly pre-tax earnings, exclusive of 71. Cohen at RT 478:16-19; 514:21-515:9; 519:7-14 Roggio at RT 206:11-13 Barry Cohen admits a balance due of $27,000 following his last payment. Barry Cohen Responses to Requests for Admissions, at RT 519:20-20:6 TE 26 Agree but that he admits there is an outstanding balance remaining (but not currently due) under the Note and Mortgage in the amount of $27,000 although no payments are currently due until at least February 2009. TE 26 does not support this finding. Cohen at RT 520:3-6 On June 7, 2007 Del Mar filed its complaint and sought the arrest of the F/V POINT

LOMA for breach of the promissory note and to foreclose on the preferred mortgage.

depreciation, were $2,500. Barry Cohen at RT 296:9 - 297:19 TE 51
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1 2 73.

Agree but should be income not earnings. In 2005 the F/V POINT LOMA's average monthly pre-tax earnings, exclusive of

3 depreciation, were $321.25. 4 5 6 7 8 9 10 11 75. 74. Barry Cohen at RT 297:20 ­ 298:5 TE 51 Agree but should be income not earnings. 2004 the F/V POINT LOMA's average monthly pre-tax earnings, exclusive of

depreciation, were $3,591.25. Barry Cohen at RT 300:18 ­ 24 TE 84 Agree but should be income not earnings. Barry Cohen and his son Leonard Cohen were involved in a lawsuit against the Port San

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12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Luis Harbor District relating to some complaints about their business operations on the Hartford Pier. Barry Cohen at RT 444:16 ­ 446:15 Defendants object on the basis of contrary evidence. Barry Cohen testified that the lawsuit was related to restrictions imposed on the Avila Beach Joint Venture by the Harbor District that limited the joint venture's access to the pier in violation of Barry Cohen's lease with the Harbor District. Barry Cohen brought suit against the Harbor District on behalf of the Avila Beach Joint Venture to require them to honor the lease and the jury found that the Harbor District had breached the lease. Cohen at RT 444:16-445:20 76. Del Mar Seafoods did not want to have anything to do with the lawsuit between the

Cohens and the Port San Luis Harbor District. Cappuccio at RT 357:5 ­ 8 Barry Cohen at RT 445:21 - 445:25 Agree but that the lawsuit, although brought by Barry Cohen, was in part between the Avila Beach Joint Venture and the Port San Luis Harbor District. Cohen at RT 444:16-445:20

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1 77.

On December 15, 2005 Barry Cohen wrote a letter for Mr. Cappuccio's signature

2 regarding Del Mar's interest in the lawsuit. The letter reads: 3 4 5 6 7 8 9 10 11 Dear Barry: By this letter, Del Mar Seafoods, Inc. (Del Mar) acknowledges that you have full authority to recover in any action brought in your own name all damages suffered by the wholesale processing fish business which you formally operated on the Hartford pier in Avila Beach pursuant to the oral joint venture agreement between yourself and Del Mar. You may share this letter setting forth Del Mar's position in this matter with any concerned party. Sincerely, Del Mar Seafoods, Inc., Joe Cappuccio, Its President. Cappuccio at RT: 332:8 - 333:15 TE 46 Agree but Plaintiff wanted to protect itself from all liability from the Joint Venture. Cappuccio at RT 357:9-11; 359:3-10 78. In March 2006 Del Mar reaffirmed its assignment of joint venture interests effective

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12 13 14 15 16 17 18 19 20 21

October 22, 2004. Cohen at RT: 473:4 - 477:17 Agree but that to avoid liability, Del Mar transferred to Barry Cohen "to the fullest extent possible and without restriction" all of Del Mar's "entire interest in the Joint Venture, including but not limited to the Joint Venture's claims, if any, against the District, and including without limitation all rights, entitlements and/or interest in and to any claims, rights of action, causes of action, recoveries, damages or other legal recourse owned or held by the Joint Venture," which includes debts owed to the Avila Beach Joint Venture. TE 47, ¶2 Cappuccio at RT 357:9-11; 359:3-10 The reaffirmation of the assignment was drafted by Barry Cohen's attorneys. Roggio at RT 225:9 ­ 20; 226:22 ­ 227:2 Defendants object on the basis of contrary evidence. Attorneys for both sides participated in the preparation of the Assignment of Joint Venture Interest and Barry Cohen testified that both sides' attorneys prepared it. Cohen at RT 474:13-17 Roggio at RT 227:3-11 80. Del Mar's attorney, Richard Wagner, looked at it before it was signed.
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22 79. 23 24 25 26 27 28

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1 2 3 81. Agree.

Roggio at RT 227:3 ­ 11

In the litigation between Barry Cohen and the Port San Luis Harbor District, Del Mar

4 Seafoods incurred legal fees of $27,000. Roggio at RT 85:15 -21 5 TE 38 6 Defendants object on the basis of lack of support and credibility. Although

7 Defendants object that they owe Del Mar for any of its attorneys' fees related to the Avila 8 Beach litigation, the above citations do not support Del Mar's claim that they incurred 9 $27,000 in legal fees (TE 38 shows legal fees as $21,308.52). Barry Cohen also testified that 10 he never saw any legal bills from Del Mar or otherwise discussed them with Joe Roggio. 11

DAVIS WRIGHT TREMAINE LLP

Cohen at RT 468:1-9 Barry Cohen told Joe Roggio that he would pay those legal fees and asked that they be

12 82.

13 added to his balance. 14 15 Roggio at RT 86:10 - 87:3 Defendants object on the basis of contrary evidence. Cohen testified that he agreed to

16 pay a "reasonable" amount of attorneys' fees, while employed by Del Mar, and in his mind, 17 this meant only $2,000 to $3,000 and not $21,000. He could not recall ever seeing a full and 18 complete listing of the legal bills. He also testified that he did not agree to put any attorneys' 19 fees on the Note. 20 21 83. Cohen at RT :467:1-25; 526:10-22; 468:1-9 Barry Cohen admits that regarding these legal fees he agreed to "be responsible for

22 something reasonable, a reasonable amount." Barry Cohen at RT 467:l ­ 10 23 Agree but that he meant $2,000 to $3,000 and not all of Del Mar's attorneys' fees, nor 24 did he agree to pay $21,000 in attorneys' fees or to put any on the Note. 25 Cohen at RT 467:1-25; 526:10-22; 468:7-9 26 84. During the period that the vessel was under arrest, Barry Cohen advanced $5,000 to the 27 vessel's Captain, Dave Kobak. 28
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1 2 3 85. Agree.

Kobak at RT 387:12 ­ 16

During the period that the vessel was under arrest, Barry Cohen advanced $1,500 to each

4 of the two crew members. 5 6 7 8 9 10 11 86. Agree. Had the two crew members not been available for fishing after the vessel was released Barry Cohen at RT 500:20 - 500:25 TE 211

from arrest, Captain Kobak could have replaced them and crewed the vessel. Kobak at RT 391:12 - 15; 396:14 - 16 Kobak at RT 398:12 ­ 16 Agree but that Barry Cohen made the business decision to pay them to "stick around" so that they vessel could resume fishing as soon as it was released from arrest. Cohen at RT 499:13-20; 500:12-19 87. In the period of time that the vessel was under arrest, Captain Kobak "guessed" that he

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12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

could have caught about the same amount of fish that he caught in the prior year fishing during the same time period. Kobak at RT 393:24 - 394:l Agree but that the best estimate of the lost catch was to measure against trips in 2007 ­ the same year and with the same captain that the vessel was arrested. Cohen at RT 483:13-17 88. In 2006, between the months or June and August, the vessel's gross landings were

$57562.11. TE 52 Agree. 89. From that figure, the crew is paid one half of the value after fuel and ice are deducted,

leaving Barry Cohen with a gross income of $17,075.16 from which his expenses must be deducted. TE 52 & 53

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1

Agree that the crew is paid one half of the value after fuel and ice are deducted from

2 gross landings, but that leaves the vessel, and not Barry Cohen, with net income before fixed 3 expenses, such as insurance and moorage, are deducted. Fixed expenses must be paid 4 regardless of whether the vessel goes fishing. 5 6 90. 7 8 9 91. 10 11 Agree. The vessel's arrest did not affect the relationship with Caito Fisheries. Kobak at RT 400:18 ­ 22 Defendants object on the basis of contrary evidence. The vessel had no fish to sell to Caito Fisheries for more than two months because of the arrest. Kobak at RT 375:8-20; 387:3-5 92. The current principal balance due under the promissory note and mortgage is $128,749.79. Roggio at RT 93:13 ­ 15 Defendants object on the basis of contrary evidence and credibility. The only amount secured by the Mortgage under the Note is $215,000 of which Defendants have paid $188,000 which leaves a principal balance of $27,000. The future advances provision of the Mortgage only applies to advances paid directly and personally to Barry and Christene Cohen. There was no agreement by Barry or Christene Cohen to add additional amounts to the Note principal. Plaintiff's calculations and accounting also lack credibility. Plaintiff claims below in its conclusions that Defendants owe a total balance on the Note of $290,429.53 (TE 38). While Defendants dispute that they owe anything other than $215,000 under the Note (with only $27,000 remaining), according to Plaintiff's own numbers, the current principal amount remaining should be $102,035.38 and not $128,749.79 if Defendants' total payments for $188,000 are subtracted from the total balance that is alleged by Plaintiff. Cohen at RT 279:13-20; 470:10-471:1; 520:3-6 Roggio at RT 179:10-15 TE 7, 8, 25, 29, 34, 35, and 36
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1 93.

Through December 31, 2007 interest on the outstanding balance under the promissory note

2 at 7.0% interest was $49,207 and some change. 3 4 Roggio at RT 94:24 - 95:3 Defendants object on the basis of contrary evidence and credibility as to the

5 calculation of interest. Plaintiff waived interest when Joe Roggio told Barry Cohen that he 6 would see to it that the loan was "interest free" in exchange for the $175,000 payment and 7 Plaintiff kept no interest accrual on its books and never asked Defendants to pay interest or 8 invoiced them for it. Joe Roggio also testified that he did not accrue interest on his books 9 despite submitting a sworn declaration to the Court in support of Plaintiff's motion to vacate 10 the order of the arrest stating that he had applied certain payments from Defendants to 11 interest only and not to reduce the principal.

DAVIS WRIGHT TREMAINE LLP

12 13 14 15 16 17 18 19 20 21 95. Agree. 94.

Cohen at RT 457:1-458:6 Roggio at RT 235:4-23; 170:19-23; 174:19-175:17 The Preferred Ship Mortgage expressly provides which specific acts constitute default.

One such act of default occurs when the "Mortgagee's conclusion in good faith at any time that, though actual or prospective impairment of Owner's net current asset position, net worth, asset-liability ratio, or earning, or through prospective violation of any provision of this Mortgage, Mortgagee is in danger of losing said debt, or any part thereof, by delaying collecting thereof until the time above limited for the payment thereof. . ." TE 8, pg. 4, Art. II ("Default"), ¶ l.(b).

Joe Cappuccio found out from Joe Roggio that Barry had been writing checks to himself

22 on one of the Joint Venture's checking accounts that he thought had been closed. This upset him. 23 24 Cappuccio at RT 329:25 - 330:6 Defendants object on the basis of credibility. Roggio testified that he knew that Barry

25 was writing checks and that they were authorized. Cappuccio testified that he received 26 financial statements from the Joint Venture at least monthly. Barry Cohen testified that he 27 was authorized to write the checks on the account that Joe Roggio reviewed monthly. 28 Roggio at RT 116:25-117:9
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1 2 96.

Cappuccio at RT 322:12-16; 346:13-18 Cohen at RT 435:9-20; 436:2-14 Since finding out about the checks, Cappuccio hired Cohen to work at Del Mar's

3 headquarters in Watsonville and he and Cohen developed a friendship. 4 5 6 7 97. Cappuccio at RT 330:7 - 21; 347:22 - 348:5 Agree but that Cappuccio accused Barry of embezzlement in the present litigation. Cappuccio at 335:14-346:18 Prior to the arrest Joe Cappuccio and Joe Roggio discussed defendant Barry Cohen's

8 financial situation and personal life and how they might affect his ability to meet his obligations 9 on the Note. 10 11 Roggio at RT 109:l0 ­ 16 Cappuccio at RT 326:13 - 327:2 Agree that they discussed Barry Cohen's financial situation and personal life but only

DAVIS WRIGHT TREMAINE LLP

12 as to his potential liability for legal fees in the Avila Beach litigation and divorce and not as 13 to any missed or delinquent payments. 14 15 98. Roggio at RT 147:5-148:15 They discussed Barry's recent declaration filed in the Port San Luis Harbor District case in

16 which he stated that the denial of his "total lawsuit expenses may actually cause [him] to be forced 17 out of business totally and into bankruptcy . . ."and that he had lost his motion for attorney's fees. 18 Cappuccio believed Cohen would be liable for attorney's fees exceeding one million dollars. 19 20 21 of the statement in Mr. Cohen's declaration. Defendants object on the basis of credibility as 22 to Plaintiff's belief that Mr. Cohen intended to file for bankruptcy because Roggio and 23 Cappuccio testified that they had had no personal knowledge that the vessel itself was in 24 trouble or that any bankruptcy was filed prior to the arrest nor did they discuss any missed 25 or delinquent payments. Mr. Cohen testified that he has never filed for bankruptcy. 26 Defendants object further on the basis of credibility of Mr. Cappuccio's belief that Barry 27 Cohen would be liable for attorneys fees exceeding one million dollars because he testified 28
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Roggio at RT 109:17- 19 Cappuccio at RT 327:3 - 8; 352:7 - 12, 18 -22 Defendants object on the basis of lack of support cited above for the specific finding

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1 that while he imagined that the fees would be due and payable, he did not know if Cohen had 2 been required by any court order to pay the legal fees and had no "detailed knowledge of his 3 relationship with his attorney" where he did not contact Barry Cohen to find out. 4 5 6 99. Roggio at RT 141:9-13, 142:12-20 Cappuccio at RT 351:19-352:8; 352:9-353:25 Cohen at RT 478:23-25 They also discussed Barry's on-going divorce from Christene and that, in a phone call to

7 Joe Roggio, she had explained that the divorce was going to be "expensive and messy." 8 9 Agree. 10 100. 11 In that phone call, Christene told Joe Roggio that she was staying at her sister's house and Roggio at RT 109:20 - 110:21 Christene Cohen at RT 318:9 ­ 18

DAVIS WRIGHT TREMAINE LLP

that both Chris and Barry had also moved out of the home they both had shared in Aptos. As a 12 result, he believed that the Cohens were no longer able to meet their financial obligations on their 13 home. 14 15 Roggio at RT 110:4-18 Agree that Joe Roggio testified that Christene told Joe Roggio that she was staying at

16 her sister's house and that both Chris and Barry had also moved out of the home they both 17 had shared in Aptos but Defendants object that Roggio testified he "believed that the Cohens 18 were no longer able to meet their financial obligations on their home" based on her 19 statement that they had "left the house." Roggio admitted that he knew that Barry had 20 made a $3,000 payment as of April 23, 2007, just prior to the arrest on June 7, 2007. 21 22 23 101. Roggio at RT 110:4-18; 87:10-12 TE 36 Joe Cappuccio believed the Cohens divorce was going to be a financial burden on Barry

24 and might impair Del Mar's security interest in the vessel. Cappuccio at RT J328:4 ­ 10 25 Defendants object on the basis of credibility as to Mr. Cappuccio's belief that the 26 Cohens' divorce was going to be a financial burden on Barry and might impair Del Mar's 27 security interest in the vessel. Mr. Cappuccio had no personal knowledge as to the financial 28
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1 burden on Barry because he never contacted Barry, his "friend," to inquire about the 2 financial situation of the vessel or about any missed payments. He also testified that he knew 3 the vessel was fishing and that it was unencumbered by any other loans. 4 5 102. Cappuccio at RT 323:19-324:1; 352:23-353:3; 349:23-25; 339:23-25 After their discussion, they concluded they needed expert legal advice so Joe Cappuccio

6 and Joe Roggio both called Del Mar's corporate attorney, Richard Wagner, to seek advice on how 7 Del Mar could best protect its security interest in the Note. 8 9 10 11 Roggio at RT 110:22-24; 112:2-6 Cappuccio at RT 328:11-14; 350:21 ­ 24 Agree that Cappuccio and Roggio testified that they both called Del Mar's corporate attorney, Rich Wagner, but they sought advice on how to "further secure" their interest in the Note, which was already secured by the Mortgage and not subject to any other encumbrances. Roggio at RT 110:22-111:1 TE 8 (Mortgage on the Note) Cappuccio at RT 339:23-25 103. 16 seek advice from a maritime attorney, Mark Holmes. 17 18 19 20 21 22 23 24 25 26 relevant facts, including all of the payments Barry had made on the Note up to that time. 27 Defendants also object on the basis of lack of support and credibility that Roggio forwarded 28
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12 13 14 15

After discussing the situation with Roggio and Cappuccio, Wagner recommended that they

Roggio at RT 112:7 - 13 Cappuccio at RT 350:21 - 351:l Agree. 104. Joe Roggio explained to Holmes Del Mar's concerns regarding the advances to Barry and

Barry's personal situation. Roggio also told him all of the relevant facts, including all of the payments Barry had made on the Note up to that time. Roggio forwarded the relevant documents to Wagner, including the Schedule of Payments, the backup for each of the different debts comprising the overall balance, and copies of the checks. Roggio at RT 112:19 -- 113:24; 230:4 ­ 25 Defendants object on the basis of lack of support that Roggio told Holmes all of the

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1 the relevant documents to Wagner, including the Schedule of Payments, the backup for each 2 of the different debts comprising the overall balance, and copies of the checks. Mr. Roggio 3 did not specifically state or recall that he in fact sent all of these documents to Holmes when 4 he testified that he "probably" sent them. 5 6 105. Roggio at RT 113:18-24; 230:4-25 Cappuccio also told Holmes his concerns about Barry's possible bankruptcy and that he

7 was afraid the vessel might sink or burn or go to Mexico. Holmes told him that arresting the 8 vessel was Del Mar's best and only option and recommended that it do so. 9 10 11 Roggio at 113:6- 17 Cappuccio at RT 328:11 - 19; 328:24 ­ 329:6; 351:11 - 18; 356:4- 8 Defendants object on the basis of contrary evidence. Joe Cappuccio told Holmes to arrest the vessel to get his money and Holmes "did what he was supposed to do." Cappuccio at RT 355:11-21 106. Acting on his attorney's advice, Cappuccio instructed Holmes to arrest the vessel. Cappuccio at RT 329:9 ­ 10 Roggio at RT 231:1 ­ 10 Agree. 107. Prior to the arrest, Del Mar never called Cohen to try to resolve the issue of his payments

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12 13 14 15 16 17 18 19 20 21 22 23 24 108.

on the Note, nor did they send him any demand letter. Cappuccio at RT 352:23 - 353:25; 355:23 - 356:3 Agree. Both Roggio and Cappuccio testified that they bore no malice towards Cohen, which was

confirmed by Chris Cohen. Roggio at RT 114:l -10 Cappuccio at RT 329:17 ­ 21 Chris Cohen at RT 313:23 -315:14 Defendants object on the basis of credibility of Joe Cappuccio and contrary evidence.

25 Contrary to Joe Cappuccio's testimony at trial that he bore no malice towards Cohen, he 26 testified in his deposition that the statement he made under oath in his declaration that Del 27 Mar advanced funds to the Avila Beach Joint Venture in 1999 and 2003 was incorrect and 28 rather Barry Cohen had "embezzled" money from Del Mar by writing himself checks for
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1 unauthorized funds when in fact Del Mar was aware of the checks and had authorized Barry 2 to make such advances. Christene Cohen testified that she thought Cappuccio had malice or 3 ill will towards Barry because they are in this lawsuit. 4 5 6 109. Cappuccio at RT 335:19-336:18 Roggio at RT 116:25-117:7 Christene Cohen at RT 314:17-22 The Order of Arrest was signed by the Court on June 7, 2007, and the Vessel way arrested

7 by the U.S. Marshal the same day. 8 9 10 110. Agree. The Order Vacating the Arrest and releasing the Vessel was signed by the Court on August Joint Final Pretrial Order, Stipulated Fact No. 17; TR. EX. 42.

11 17, 2007.

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12 13 14 15 16 17 18 19 112. Agree. 111. Agree.

Joint Final Pretrial Order. Stipulated Fact No. 18 Defendants' Claim For Damages Resulting From The Alleged Wrongful Arrest

In 2004, the Point Loma had a net loss of $6,859. Adding back in depreciation, the

average monthly income for the vessel was approximately $2,500. TR. EX. 51 Cohen at RT 297:4 ­ 19

In 2005, the Point Loma had a net loss of $32,007. Adding back in depreciation, the

20 average monthly income for the vessel was approximately $321.25. 21 22 23 113. Agree. In 2006, the Point Loma had net income of $8,128. Adding back in depreciation of TR. EX. 51 Cohen at RT 297:20 - 298:5

24 $34,967, the average monthly income for the vessel was approximately $3,591.25. 25 26 Agree. 27 114. 28 In 2006, the vessel made a total of 31 trips. TR. EX. 206
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TR. EX. 84 Cohen at RT 299:11 - 300:24

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1 2 115.

Agree. Cohen's share of the vessel's catch is determined by taking the amount paid to the vessel

3 for its fish (gross), then subtracting the cost of the fuel and ice for the trip (net), then dividing the 4 net by 2, and then subtracting his fixed costs. 5 6 Cohen at RT 300:25 - 302:5 Agree that Cohen's share of the vessel's catch is determined by taking the amount

7 paid to the vessel for its fish (gross), then subtracting the cost of the fuel and ice for the trip 8 (net), then dividing the net by 2 and then subtracting his fixed costs but that fixed costs are 9 not subtracted to calculate the income to the vessel which is what the vessel lost before 10 subtracting fixed expenses that must be paid whether or not the vessel goes fishing. 11 Cohen at RT 485:25-486:20 During the year previous to the arrest, 2006, over the comparable time period in June, July

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12 116.

13 and August, the vessel made six trips. TR. EX. 53, 206 14 Defendants object on the basis of contrary evidence. The arrest caused the vessel to 15 miss fishing trips between June 7 and August 31 and during this period of time in 2006, the 16 vessel made seven trips. 17 Kobak at RT 369:25-370:1; 371:25-372:1 18 TE 206 19 117. The average net income to Cohen for each those trips was $2,654.13. (Total net income

20 for the six trips = $31,849.46; divided by 2 (Cohen's 50% share); divided by total number of trips 21 (6). This figure, however, does not take into account defendants' fixed expenses, which, for 2006, 22 were $72,557 (without depreciation) or an average monthly expense of $6,046.42 (or a per trip 23 expense of $2,340.55). In 2006, therefore, his net profit per trip, according to his own records, 24 after expenses was $313.58. 25 26 27 28 TR. EX.s 53, 84, 206 Cohen at RT 530:25 - 533:15 Defendants object on the basis of contrary evidence as to the vessel's lost income from the arrest. The vessel lost average income in the range of $4116.99 to $4508.45 based on trips taken in 2007, the year in which the arrest occurred and the trips were missed. The
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1 vessel was prevented from making income because of the arrest. The income lost was 2 necessary to pay the fixed costs, such as insurance and moorage fees, which were incurred 3 regardless of whether the vessel went fishing and should not be deducted from lost income. 4 5 6 7 8 9 10 11 119. 118. Cohen at RT 483:13-17; 485:16-24 TE 84 In 2007 the vessel made a total of 14 trips in the five months prior to the arrest. Cohen at RT 529:10 ­ 16 Agree. In the time period from September through December 2007, after the vessel was released,

the vessel made 13 trips. Cohen at RT 534:13 - 535:3 Agree. While the vessel was under arrest, Cohen paid the crew $3,000 and the captain $5,000 even

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12 120.

13 though the vessel was not operating. 14 15 16 17 18 19 121. Agree. Captain Kobak would have been able to hire sufficient crew to man the vessel even if TR. Ex. 211 Cohen 499:11 ­ 500:19

Cohen hadn't paid the crew. Kobak at RT 391:12 ­ 15 Agree but that Barry Cohen made a business decision to pay the crew to "stick

20 around" so that the vessel could resume fishing as soon as it was released. 21 22 122. Cohen at RT 499:13-20; 500:12-19 There is no evidence that Cohen ever asked Captain Kobak if he would be available after

23 the arrest to resume his duties without the need for payment, nor that he inquired during the arrest 24 as to the availability of qualified captains he could have hired after the vessel was released if 25 Captain Kobak was not available. 26 Defendants object on the basis of contrary evidence. Barry Cohen testified that he

27 could not afford to have a boat without a captain and a crew and that he made a business 28 decision to send the crew money to "stick around" so that they could resume fishing when
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