Free Trial Brief - District Court of California - California


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Case 3:07-cv-02952-WHA Document 166 Filed 05/21/2008 Page 1 of 4
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
IU DEL MAR SEAFOODS, INC.
Il UNITED STATES DISTRICT COURT
` 12 NORTHERN DISTRICT OF CALIFORNIA
13 SAN FRANCISCO DIVISION
1*1 DEL MAR SEAFOODS, INC. ) Case No.: CV 07-02952 WHA
)
15 Plaintiff, ) PLAINTIFF DEL MAR SEAFOODS,
) INC.’S TRIAL BRIEF ON THE
16 vs. ) APPLICATION OF THE
) CALIFORNIA STATUTE OF
17 BARRY COHEN, CHRIS COHEN (aka ) FRAUDS TO MARITIME
CHRISTENE COHEN), in persomzm and ) CONTRACTS
18 F/V POINT LOMA, Official Number )
515298, a 1968 stee1—hu11ed, 126-gross ton, )
19 70.8- foot long fishing vessel, her engines, )
tackle, furniture, apparel, etc., in rem, and )
20 Does 1-10, )
I
2 1 Defendants. )
) Date: May 20, 2008
22 ) Time: 7:30AM
) Courtroom: 9, 19th Floor
23 And Related Counterclaims )
) Honorable William H. Alsup
24
25 I. INTRODUCTION
éllt;:l?L$‘Sl‘l2.23i 26 Plaintiff DEL MAR SEAFOODS, 1Nc. (·=ne1 Mar”) hereby submits this bl-term
at POULOS 1.1.l*
"‘lll'lZI§lJlll5L’I_'2lLl"’ 27 support of its position that the California Statute of Frauds, California Civil Code §1624,
Lima"-`-Kiiliiil gg does not apply to bar the oral modifications to the Promissory Note ("No1;e") and Preferred
DEL MAR SEAFOODS, INC.’S TRIAL BRIEF ON THE APPLICATION OF THE
CALIFORNIA STATUTE OF FRAUDS TO MARITIME CONTRACTS

Case 3:07-cv-02952-WHA Document 166 Filed 05/21/2008 Page 2 of 4
l Ship Mortgage ("Mortgage”) whereby defendant Barry Cohen agreed to assume the debts of
2 his son’s Michael and Leonard Cohen. Plaintiff expects Defendants to argue that the statute
3 should prohibit those modifications. For the reasons set forth below, the California Statute of
4 Frauds is inapplicable to those oral modifications. Even if the Statue of Fraudswere found to
5 apply, however, the oral modifications were sufficiently executed by the parties and should
6 therefore be upheld.
7 II. SUMMARY OF RELEVANT FACTS
8 Del Mar expects the Cohen’s to argue that an agreement to be responsible for the
9 debts of his two sons is unenforceable under the California Statute of Frauds, Cal. Civ. Code
10 §1624(a). Such an assertion is wrong as a matter of law.
1 1 III. APPLICABLE LAW
12 The Note and Mortgage at issue in this case are maritime contracts. Noijfo//c Southern
13 Ry. C0. v. James /\/I Kirby, Pty Lid. 542 U.S. 963. Defendant’s have also stipulated that the
I4 Mortgage is a valid Preferred Ship Mortgage under 48 U.S.C. §3132l. Therefore maritime
I5 law will apply. In the Ship Mortgage Act of 1920, subsequently re—titled “The Commercial
_ I6 Instruments and Maritime Liens Act ("CIMLA"), 4 6 US C. §3]30] ei seq. Congress
17 expressed the importance of the uniform treatment of maritime law in general, and preferred
lg ship mortgages in particular, by mandating that preferred ship mortgages be regulated
lg exclusively under federal maritime law through the CIMLA. 46 USC. §31325.
20 III. LEGAL ARGUIVIENT
21 1. California Statue of Frauds
22 The Statute of Frauds serves to “bar proof of certain agreements when there is no
23 sufficient writing evidencing them." 1 Witkin, Summary of California Law (IO"` Edition
24 2005), Contracts, Section 349, page 395.
mx,w0m0N_ 25 2. The California statue of Frauds is Not Applicable to Maritime Contracts
26 In Union Fish Company v. Erickson, 248 U.S. 308 (1919), the Supreme Court held
that that the California Statute ofFrauds does not apply to maritime contracts. In Union F isn
DEL MAR SEAFOODS, INC.’S TRIAL BRIEF ON THE APPLICATION OF THE
CALIFORNIA STATUTE OF FRAUDS TO MARITIME CONTRACTS

Case 3:07-cv-02952-WHA Document 166 Filed 05/21/2008 Page 3 of 4
l Company, a ship master entered into an oral contract with the ship owner to serve as the
2 ship’s master. Id. at 308. The Court found that the California Statute of Frauds was
3 inapplicable to the contract because the contract was based on maritime employment and was
4 maritime in nature. In finding the statute inapplicable and upholding the principle of
5 uniformity in admiralty law], the Court held:
6 If one State ma declare such contracts void for one reason, another ma do
Y Y
7 likewise for another. Thus the local law of a State may deprive one of relief in
a case brought in a court of admiralty of the United States upon a maritime
8 contract, and the uniformity of rules governing such contracts may be
9 destroyed by perhaps conflicting rules ofthe States.
IO Id. at 313. Because, the Note and Mortgage at issue in this case comprise a maritime contract,
I I under the principle of uniformity the California Statute of Frauds cannot be allowed to
l2 invalidate the subsequent oral modifications by Barry Cohen to pay his son’s debts.
I3 Even if the Statute of Frauds were to apply to maritime contracts it would not apply to
14 the contract at issue in this case. Here, there is an underlying written contract. Defendant
15 Barry Cohen orally modified that existing contract when he said to Joe Reggie that he
16 (Barry) would "be responsible for" paying Michael Cohen’s debts and Leonard Cohen’s
17 debts. i
18 In the alternative, even if California’s statute of frauds were applicable to modify the
lf) contract it would not apply under the facts of this case. California Civil Code §l698
20 specifically provides that a "contract in writing may be modified by an oral agreement to the
2} extent that the oral agreement is executed by the parties." Whether a written contract has
22 been modified by an executed oral agreement is a question of fact. Elnscnnk v. Chemical
23 Engineers Termite Control, Inc. (1 966) 246 Cal App 2n' 463. The obligation incurred by Mr.
24 Cohen to pay Michael and Leonard’s debts was memorialized in a spreadsheet that was
25
26 I In The Lotmwanna, 88 U.S. 558, 575 (IS75) the Court noted that "it certainly could not have been the intention to
e ·‘¤¤t-OS ¤-LP place the rules and limits of maritime law under the disposal and regulation ofthe several States." ln the more recent
'"ggy;’;,QQ{<]§g]~}'g!;{‘°‘ 27 ease ofSonthern Pacglc Co. v. Jensen, 244 US. 205 (l9l7), where applicable state legislation conflicted with the
ni .ii.`.Z'ir ...... maritime law on point the Court declared the state legislation to be inapplicable because it led to “material prejudice
"I" "` ""` '`i° ` 28 to the characteristic features of the general maritime law (and) interfere(d) with the proper harmony and uniformity ot`
`mMmm_mm__p_ that law in its international and interstate relations? (244 U.S. 2l6.)
DEL MAR SEAFOODS, lNC.’S TRIAL BRIEF ON THE APPLICATION OF THE
CALIFORNIA STATUTE OF FRAUDS TO MARITIME CONTRACTS

Case 3:07-cv-02952-WHA Document 166 Filed 05/21/2008 Page 4 of 4
I presented to him between November 10th and November IS"`, 2005. (Trial Exhibit 37) T hat
2 spreadsheet speciiically depicts the amounts Barry Cohen owed to Del Mar Seafoods, Inc.,
3 and shows the portions of Michael and Leonard Cohen’s debt as a part of the Mr. Cohen`s
4 debt to Del Mar under the Note and Mortgage. Following receipt of that spreadsheet, Mr.
5 Cohen made payments to Del Mar on the outstanding balance on January 30, February I5,
6 and again on April 23, 2007. (Trial Exhibits 34, 35, & 36 respectively). Mr. Cohen’s further
7 payments on his balance under the Note and the Mortgage, following his acknowledgement
8 and acceptance from Joe Roggio of the spreadsheet detailing the source of that debt served to
9 execute Cohen’s agreement to pay his son’s debts.
I0 3. CONCLUSION
I I Applying the State’s Statutes of Frauds to the facts of this case would contravene the
I2 well accepted principles establishing the uniformity of maritime law. Additionally, Cohen’s
I3 promise to pay his s0n’s debt are valid under Cal. C.C. §l698. Cal.. C.C. §l624 should not
I4 be applied to invalidate Barry Cohen’s assumption of Michael and Leonard Cohens’ debts
15 and their addition to his balance under the Note and Mortgage.
16 ‘
17 Dated; May 21, 2008 COX, WOOTTON, GRIFFIN,
HANSEN & POULOS, LLP
IB Attorneys for Plaintiff
19 DEL MAR SEAFOODS, INC.
21 Jody M. Taliaferro
22
23
24
25
26
27
i=i·i:·Eii1}.i'¤x.ir.i»i 28
DEL MAR SEAFOODS, INC.’S TRIAL BRIEF ON THE APPLICATION OF THE
CALIFORNIA STATUTE OF FRAUDS TO MARITIME CONTRACTS

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