Free Trial Brief - District Court of California - California

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Case 3.07—cv—02952—WHA Document 167 Filed 05/21 /2008 Page 1 of 3
1 COX, WOOTTON, GRIFFIN,
HANSEN & POULOS LLP
2 Gregory W. Poulos (SBN 131428)
Max L. Kelley (SBN 205943)
3 190 'The Embarcadero
San Francisco, CA 94105
4 Telephone No.: 415-438-4600
Facsimile No.: 415-438-4601
5
LAW OFFICES OF RICHARD P. WAGNER
6 Richard P. Wagner (SBN 166792)
700 Oceangate, Suite 700
7 Long Beach, CA 90802 .
Telephone: (562) 216-2946
8 Facsimile: (562) 216-2960
9 Attorneys for Plaintiff
H) DEL MAR SEAFOODS, INC.
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 SAN FRANCISCO DIVISION
14 DEL MAR SEAFOODS, INC. ) Case No.: CV 07-02952 WHA
I
I5 Plaintiff, ) PLAINTIFF DEL MAR SEAFOODS,
) INC.’S MOTION IN LIMINE TO
16 vs. ) EXCLUDE EVIDENCE RE:
) PAYMENTS TO CAPTAIN AND
17 BARRY COHEN, CHRIS COHEN (aka ) CREW
CHRISTENE COHEN), in persomzm and )
18 F/V POINT LOMA, Official Number ) _
515298, a 1968 steel-hulled, 126-gross ton, )
19 70.8- foot long fishing vessel, her engines, )·
tackle, furniture, apparel, etc., in rem, and ) ,
20 Does I-10, )
I
2 1 Defendants. )
) Date: May 20, 2008 ;
22 ) Time: 7:30 AM
` ) Courtroom: 9, 19th Floor
23 And Related Counterclaims )
) Honorable William H. Alsup (
24
25 Plaintiff DEL MAR SEAFOODS, INC. ("Del Mar") hereby moves this Court to
é£li»ll}lliilll(S£li 26 exclude defendant Barry Cohen’s evidence of payments he made to the captain and crew of
K: POULOS LLP
"?ll'lZlI%}§€3T¥l"’ 27 the F/V Point Loma to keep them on retainer while the vessel was under arrest.
li/\X JIS-·$I>€~lHII l {
I -1- case N0.; cv 07-02052 wsa *
PLAINTIFF DEL MAR SEAFOODS, INC.’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RE: PAYMENTS
TO CAPTAIN AND CREW

Case 3:07—cv—02952—WHA Document 167 Filed 05/21/2008 Page 2 of 3
1 r MEMORANDUM OF POINTS AND AUTHORITITES IN SUPPORT OF
2 PLAINTIFF’S MOTION IN LIMINE NO. 1
3 I. Introduction and Relevant Facts
4 Defendant Barry Cohen argues that he is entitled to recover certain "out-of-pocket
5 damages" pursuant to his counter-claim for wrongful arrest. Cohen claims "out—of-pocl _ 6 expenses of $8,000 paid to the captain and crew to keep them on retainer while the vessel
7 was under arrest} Assuming the Court ultimatelylinds the arrest was wrongful, those costs
8 are still not recoverable and Cohen therefore should be precluded from presenting evidence
9 on these expenses.
10 II. Cohen can only recover damages if the arrest is wrongful.
11 An action for the wrongful arrest of a vessel is governed by federal maritime law.
12 Federal Rules of Civil Procedure Supplemental Rules for Certain Admiralty and Maritime
13 Claims Rule C. As the Ninth Circuit court held, "[t]l1e arrest of a vessel in admiralty ‘is an
14 inconvenience to which the owners must submit as one caused by the exercise of a legal right
15 on the part of the plaintiff, and unless the attachment is main fide, or by such gross
16 negligence as to amount to bad faith, no damages can be recovered for . . . detention caused
17 by such arrest."’ Stevens v. F/ V Bonnie Doon, 655 F.2d 206, 209 (9*]* Cir. 1981) (emphasis
18 added).
ig Cohen’s evidence of damages claimed therefore should not be considered unless this
20 Court finds that the arrest was done with malice or gross negligence amounting to bad faith.
21 _ III. Federal Maritime Law -— not the California Civil Code —— governs the
analysis of recoverable damages after wrongful arrest
22 Cohen cited to California Civil Code section 3333 for the proposition that he is
23 entitled to be "fully compensated" for his out-of—pocket expenses. Cohen’s reliance is
24 misplaced. As stated above, arrest and attachment is an admiralty procedure, governed by
WLWOOWON -25 admiralty law. See also 2 Thomas J. Schoenbaum, Admiralty and Maritime Law 21-2 at 505
26 ed at we-
‘·*- 27
ummlxi 28 I See Defendant’s_ list and supporting documentation entitled "Payments to Captain & Crew I
mMm__Mm During Arrest" Trral Exhibit 211.
-2- one N0.; cv 07-02952 wt-ni
PLAINTIFF DEL MAR SEAFOODS, lNC.’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RE: PAYMENTS
TO CAPTAIN AND CREW

Case 3:07—cv—02952—WHA Document 167 Filed 05/21/2008 Page 3 of 3
l
IV. $8,000 paid t0 keep the Captain and crew on retainer is not a recoverable
2 item of damages, even ywrongful arrest is found.
3 The damages recoverable for wrongful arrest include sums reasonably expended in
4 mitigating damages. The Baltimore, 75 U.S. 377, 387 (1869); Delta SS. Lines, Inc. v.
5 Avondale Shlpyords, Inc., 747 F.2d 995, i007 (Sth Cir. 1984). Col1en’s payments to keep the
6 captain and crew ofthe F/W Point Loma on retainer while the vessel was under arrest were
7 neither reasonable nor did they mitigate his damages. The captain ofthe F/V Point Loma
3 vessel, David Alan Kobakltestilied that it would not have been difficult "at all" to find crew
9 for the vessel following its arrest if the original crew of the vessel had not been retained
ig throughout that period. (Kobak Depo, 01/08/2008 at 69:20-70:1l). There is no evidence that
it Cohen would have been unable to locate a replacement captain once the vessel was released,
l2 if Captain Kobak had not been retained. These payments were made without any indication ~
13 and in fact, testimony to the contrary — that they were necessary to prevent Cohen from
14 sustaining damage as a result ofthe arrest. These payments were therefore unreasonable and
15 evidence of those payments should be excluded.
I 16 VI. CONCLUSION
ly Evidence of C0hen’s payments voluntarily made to the captain and crew during the
18 period of the vessel’s arrest should be excluded. These damages are not recoverable even if
19 the Court finds the arrest was motivated by malice
20
2; Dated: May 21, 2008 COX, WOOTTON, GRIFFIN,
HANSEN & POULOS, LLP
22 Attorneys for Plaintiff
DEL MAR SEAFOODS, INC.
23
If" < K
24 / /,/5%
25 Max L. Kelley 7
(`OX, WOUT[`ON.
URlFF|N.H.·\N5EN
& POULOS LLP
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I ilimm K -3- Case No.: CV 07-02952 Wl-[A
PLAINTIFF DEL MAR SEAFOODS, INCRS MOTION IN LIMINE TO EXCLUDE EVIDENCE RE; PAYMENTS
TO CAPTAIN AND CREW

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