Free Objection - District Court of California - California

Case 3:07-cv-02952-WHA

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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 OBJECTIONS TO PLAINTIFF S DISCLOSURES

DAVIS WRIGHT TREMAINE LLP

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Final Pretrial Conference May 5, 2008; 7:45 a.m.

Pursuant to Fed. R. Civ. P. 26(a)(3)(B), Defendants Barry Cohen, Chris Cohen, F/V Point

21 Loma, in rem, and Counterclaimant, F/V Point Loma Fishing Company, Inc. (collectively, 22 23 Defendants ) object on the following grounds to certain of Plaintiff s Pretrial Disclosures. In addition to the specific objections set forth below, Defendants object to all of the

24 following Pretrial Disclosures on the basis of lack of foundation. 25 26 27 28
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1 2 3 4 5 6 7 8 9 10 11 2 Color photograph of the F/V POINT LOMA DMSI 0067 Plaintiff s Pretrial Disclosure No. 1 Description Bates Range Objection

Color photograph of the F/V POINT LOMA

DMSI 0065

Defendants object to this document on the grounds that it is irrelevant under Fed. R. Evid. 402 to the extent it is intended to show the condition of the vessel which is not at issue under Plaintiff s Verified Complaint. Defendants object to this document on the grounds that it is irrelevant under Fed. R. Evid. 402 to the extent it is intended to show the condition of the vessel which is not at issue under Plaintiff s Verified Complaint. Defendants object to this document on the grounds that it contains inadmissible hearsay under Fed. R. Evid. 801 and 802 to the extent it is being offered to prove the facts underlying to formation of the Mexico Joint Venture and the amounts underlying the formation of the Note and Mortgage. Defendants object further on the grounds that it is irrelevant under Fed. R. Evid. 402 and 403 because the parties have agreed to stipulate that the parties agreed to convert the funds contributed by Plaintiff in connection with the Mexico Joint Venture into a loan that was formalized by the Note and Mortgage. (see Stipulated Facts paras. 9-10 in Proposed Joint Final Pretrial Order). Any evidence in this document contradicting the express, written term of the Note and Mortgage that sets forth the amount of the loan is also barred by the parol evidence rule because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed.

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Cantrell Memorandum DMSI 02350247

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Plaintiff s Pretrial Disclosure No. 10

Description

Bates Range

Objection

Asset balance sheets: 10/31/03, 12/31/03

DMSI 00030004

Defendants object on the grounds that this document is irrelevant under Fed. R. Evid. 402 and 403 because the parties have agreed to stipulate that the parties agreed to convert the funds contributed by Plaintiff in connection with the Mexico Joint Venture into a loan that was formalized by the Note and Mortgage effective October 31, 2003. (see Stipulated Facts paras. 9-10 in Proposed Joint Final Pretrial Order). The amount of the loan as of October 31, 2003 was $215,000 as set forth in the instruments themselves. Defendants also object to any evidence in this document contradicting the express, written term of the Note and Mortgage that sets forth the amount of the loan is also barred by the parol evidence rule because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Fax from D. Smith to J. Roggio: Asset Balance Sheet10/31/03 and Fisherman Advances ledger entries

DMSI 0002, 0008-0013

See objections above to Pretrial Disclosure No. 10. Defendants object further that DMSI 0008, a fax dated July 11, 2003 from Plaintiff s bookkeeper to Joe Roggio is inadmissible hearsay under Fed. R. Evid. 801 and 802 to the extent it is being offered to prove the fact and amounts of debts allegedly owed by Defendants.

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Del Mar Balance Sheet (same as 0002 but w/o writing)

DMSI 0176

See objections above to Pretrial Disclosure No. 10. Defendants object further on the grounds that this document is the same as DMSI 0002 and may be excluded under Fed. R. Evid. 403 as the needless presentation of cumulative evidence.

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Plaintiff s Pretrial Disclosure No. 13

Description

Bates Range

Objection

Cohen cancelled checks

DMSI 01290171

Defendants object to this document on the grounds that these checks are irrelevant under Fed. R. Evid. 402 as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Defendants also object to the checks in this document dated prior to October 31, 2003 on the grounds that any evidence contradicting the express, written term of the Note and Mortgage that sets forth the amount of the loan is barred by the parol evidence rule because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Journal entry log 12/03

DMSI 0178

Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage.

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Plaintiff s Pretrial Disclosure No. 15

Description

Bates Range

Objection

Asset Balance Sheet 1/31/04

DMSI 0179

Defendants object to this asset balance sheet for Old Port Fisheries on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments to Plaintiff, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant. Defendants object further on the grounds that this document and Pretrial Disclosure Nos. 16 (DMSI 0181) and 17 (DMSI 0183) are allegedly monthly statements of the assets of Old Port Fisheries Division for certain months in 2004 and needlessly present cumulative evidence that may be excluded under Fed. R. Evid. 403.

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Asset Balance Sheet 3/31/04 Asset Balance Sheet 5/31/04

DMSI 0181 DMSI 0183

See objections above to Pretrial Disclosure No. 15. See objections above to Pretrial Disclosure No. 15.

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Plaintiff s Pretrial Disclosure No. 18

Description

Bates Range

Objection

Accounts Payable Trial Balance 10/22/04

DMSI 0005

Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant. This document may also be excluded under Fed. R. Evid. 403 as the needless presentation of cumulative evidence because it contains entries identical to those in Pretrial Disclosure No. 21 (DMSI 0193)

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Plaintiff s Pretrial Disclosure No. 19

Description

Bates Range

Objection

General Ledger Detail DMSI 0189 Report 10/22/04

Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant.

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Accounts Payable Aged Invoice Report 10/21/04 Accounts Payable Trial Balance 10/22/04

DMSI 01900192 DMSI 0193

See objections above to Pretrial Disclosure No. 19. See objections above to Pretrial Disclosure No. 18.

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Plaintiff s Pretrial Disclosure No. 22

Description

Bates Range

Objection

Accounts Payable Trial Balance 12/31/04

DMSI 0007

Defendants object to this document on the grounds that it is irrelevant under Fed. R. Evid. 402 because it purports to contain evidence of accounts receivable for Michael Cohen and Olde Port Inn, Inc. both of which are not parties to this lawsuit. Moreover, it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Defendants also never agreed to include the debts of Barry Cohen s sons under the Note and Mortgage and thus any evidence of their debts is irrelevant to the claims and parties identified in Plaintiff s Verified Complaint.

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Plaintiff s Pretrial Disclosure No. 23

Description

Bates Range

Objection

Accounts Receivable Trial Balance 12/31/04

DMSI 0006

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DEFS. OBJECTIONS TO P S PRETRIAL DISCLS. Case No. C-07-2952-WHA

Defendants object to this document on the grounds that it is irrelevant under Fed. R. Evid. 402 because it purports to contain evidence of accounts receivable for Olde Port Inn, Inc. which is not a party to this lawsuit. Moreover, it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include the debts of Old Port Inn under the Note and Mortgage and thus any evidence of its debts is irrelevant to the claims and parties identified in Plaintiff s Verified Complaint.

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Olde Port Fisheries Inventory records 10/04

DMSI 00140018

Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant.

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Plaintiff s Pretrial Disclosure No. 26

Description

Bates Range

Objection

Del Mar deposit slip 6/24/05

DMSI 0270

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DEFS. OBJECTIONS TO P S PRETRIAL DISCLS. Case No. C-07-2952-WHA

Defendants object on the grounds that Plaintiff failed to disclose this document in discovery or otherwise supplement its discovery responses in a timely manner as required by Fed. R. Civ. P. 26(a) and (e). This document is responsive to Defendants Requests for Production of Documents Nos. 2 and 3 and was produced for the first time in connection with Plaintiff s Pretrial Disclosures. Under Fed. R. Civ. P. 37(c)(1), Plaintiff should be barred from using this information at trial because of its failure to disclose this document as the basis for its claims and to supplement its responses to Defendants discovery requests. In addition, this document is inadmissible because it is irrelevant under Fed. R. Evid. 402 as to the amount owed under the express terms of the Note, the only signed agreement among the parties. It is dated 2005 which is two years after the Note was signed. It is also irrelevant to the extent it reflects any alleged payments or debts after the parties entered into the Assignment of Joint Venture Interest, effective October 22, 2004.

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Plaintiff s Pretrial Disclosure No. 27

Description

Bates Range

Objection

Olde Port Fisheries check no. 1158

DMSI 0271

DAVIS WRIGHT TREMAINE LLP

12 13 29 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 Del Mar credit memo: DMSI 0196 Olde Port Fisheries (Barry Cohen) Olde Port Fisheries Account Inquiry DMSI 0195

Defendants object on the grounds that Plaintiff failed to disclose this document in discovery or otherwise supplement its discovery responses in a timely manner as required by Fed. R. Civ. P. 26(a) and (e). This document is responsive to Defendants Requests for Production of Documents Nos. 2 and 3 and was produced for the first time in connection with Plaintiff s Pretrial Disclosures. Under Fed. R. Civ. P. 37(c)(1), Plaintiff should be barred from using this information at trial because of its failure to disclose this document as the basis for its claims and to supplement its responses to Defendants discovery requests. Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant.

See objections above to Pretrial Disclosure No. 29.

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Plaintiff s Pretrial Disclosure No. 31

Description

Bates Range

Objection

Del Mar invoices to Olde Port Fisheries

DMSI 01970203

See objections above to Pretrial Disclosure No. 29.

32 41

F/V POINT LOMA Account Inquiry U.S. Marshal final invoice

DMSI 0194 DMSI 0272

See objections above to Pretrial Disclosure No. 29. Defendants object on the grounds that Plaintiff failed to disclose this document in discovery or otherwise supplement its discovery responses in a timely manner as required by Fed. R. Civ. P. 26(a) and (e). This document is dated 6/7/07 well before discovery closed on January 11, 2008. It is addressed to and signed by Plaintiff s counsel so it was undoubtedly within Plaintiff s possession well before the close of discovery. Plaintiff produced this for the first time in connection with its Pretrial Disclosures and therefore, under Fed. R. Civ. P. 37(c)(1), Plaintiff should be barred from using this information at trial because of its failure to disclose until now. Invoices for Plaintiff s attorneys fees have not yet been produced. Defendants reserve the right to object as appropriate upon review of these documents.

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Invoices for attorneys fees

* discuss at pretrial conference

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Plaintiff s Pretrial Disclosure No. 45

Description

Bates Range

Objection

12/15/05 Cappuccio Assignment

DMSI 0273

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Defendants object on the grounds that Plaintiff failed to disclose this document in discovery or otherwise supplement its discovery responses in a timely manner as required by Fed. R. Civ. P. 26(a) and (e). This document purports to be a letter signed by Del Mar s president, Joe Cappuccio, to Barry Cohen, dated December 15, 2005. This document is responsive to Defendants Requests for Production of Documents No. 10 and was produced for the first time in connection with Plaintiff s Pretrial Disclosures. Under Fed. R. Civ. P. 37(c)(1), Plaintiff should be barred from using this information at trial because of its failure to disclose or supplement its responses to Defendants discovery requests. This document is also inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint which contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, this document may be excluded under Fed. R. Evid. 403 because it is cumulative evidence of the rights assigned to Barry Cohen under the Assignment of Joint Venture Interest. The rights described in DMSI 0273 are included within the rights assigned to Barry Cohen under the Assignment of Joint Venture Interest (Plaintiff s Pretrial Disclosure No. 46 (Cohen 00014-00015)) effective October 22, 2004..

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Plaintiff s Pretrial Disclosure No. 47

Description

Bates Range

Objection

Order Denying Atty. Fees

DMSI 02740280

Defendants object on the grounds that this document is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. Plaintiff s Verified Complaint contains no allegations that the basis for the arrest was anything other than Defendants alleged failure to make monthly payments.

DAVIS WRIGHT TREMAINE LLP

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48

1/21/07 Cohen Declaration

DMSI 02810295

See objections above to Pretrial Disclosure No. 47.

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Plaintiff s Pretrial Disclosure No. 53

Description

Bates Range

Objection

Del Mar Income Statement summary 1999-2004

DMSI 00190020

Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003. Defendants also object under Fed. R. Evid. 403 to Pretrial Disclosures 53-77 because they contain cumulative evidence of the amount of the debt allegedly owed by Defendants.

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Plaintiff s Pretrial Disclosure No. 54

Description

Bates Range

Objection

Olde Port Fisheries Income Statement 9/30/04

DMSI 00210023

This document is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage. Moreover, Defendants never agreed to include any other amounts to the Note and Mortgage and therefore any evidence of the amount of the debts that allegedly became included in the Note subsequent to the signing of the Note and Mortgage is irrelevant. Defendants also object under Fed. R. Evid. 403 to Pretrial Disclosures 53-77 because they contain cumulative evidence of the amount of the debt allegedly owed by Defendants.

DAVIS WRIGHT TREMAINE LLP

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Olde Port Fisheries Balance Sheets 9/30/04 Olde Port Division, Operations spread sheet 2004 Olde Port Fisheries Income Statement 12/31/03 Olde Port Fisheries Balance Sheets 12/31/03

DMSI 00240025 DMSI 00260027 DMSI 00280030 DMSI 00310032

See objection above to Pretrial Disclosure No. 54. See objection above to Pretrial Disclosure No. 54. See objection above to Pretrial Disclosure No. 54. See objection above to Pretrial Disclosure No. 54.

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Plaintiff s Pretrial Disclosure No. 59

Description

Bates Range

Objection

Olde Port Fisheries Income Statement 12/31/02

DMSI 00330036

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Olde Port Fisheries Balance Sheets 12/31/02

DMSI 00370038

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

Olde Port Fisheries Income Statement 12/31/01

DMSI 00390041

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Plaintiff s Pretrial Disclosure No. 62

Description

Bates Range

Objection

Olde Port Fisheries Balance Sheets 12/31/01

DMSI 00420043

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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DAVIS WRIGHT TREMAINE LLP

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Olde Port Fisheries Income Statement 12/31/00

DMSI 00440046

See objection above to Pretrial Disclosure No. 57. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

Olde Port Fisheries Balance Sheets 12/31/00

DMSI 00470048

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Plaintiff s Pretrial Disclosure No. 65

Description

Bates Range

Objection

Olde Port Fisheries Income Statement 12/31/99

DMSI 00490051

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Olde Port Fisheries Balance Sheets 12/31/99

DMSI 00520053

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

Olde Port Fisheries Balance Sheet 7/31/03

DMSI 0172

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Plaintiff s Pretrial Disclosure No. 68

Description

Bates Range

Objection

Olde Port Fisheries Balance Sheet 6/30/03

DMSI 0173

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Olde Port Fisheries Balance Sheet 8/31/03

DMSI 0174

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

Olde Port Fisheries Balance Sheet 9/30/03

DMSI 0175

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

Olde Port Fisheries Balance Sheet 11/30/03

DMSI 0177

See objection above to Pretrial Disclosure No. 54.

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Plaintiff s Pretrial Disclosure No. 72

Description

Bates Range

Objection

Olde Port Fisheries Balance Sheet 4/30/03

DMSI 0182

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

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Olde Port Fisheries Balance Sheet 6/30/03

DMSI 0184

See objection above to Pretrial Disclosure No. 54. Defendants also object under the parol evidence rule to evidence in this document contradicting the express, written term of the Note and Mortgage, which sets forth the amount of the loan because the Note and Mortgage are the final expressions of the agreed upon amount covered by these instruments at the time they were signed on October 31, 2003.

Olde Port Fisheries Balance Sheet 7/31/04 Olde Port Fisheries Balance Sheet 8/31/04 Olde Port Fisheries Balance Sheet 9/30/04

DMSI 0185

See objection above to Pretrial Disclosure No. 54.

DMSI 0186

See objection above to Pretrial Disclosure No. 54. See objection above to Pretrial Disclosure No. 54.

DMSI 0187

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Plaintiff s Pretrial Disclosure No. 77

Description

Bates Range

Objection

Del Mar Journal Entry 10/25/04

DMSI 0188

Defendants object to this document on the grounds that it is inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint. The Verified Complaint contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage.

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Plaintiff s Pretrial Disclosure No.

Description

Bates Range

Objection

*No. 27 Remittance Advice on the Joint Exhibit List (Appendix A to the Proposed Joint Final Pretrial Order)

DMSI 0296

This document was produced for the first time by Plaintiff s to include in the parties Joint Exhibit List prepared for the Proposed Joint Final Pretrial Order. It was not identified in Plaintiff s Pretrial Disclosures, nor was it produced at any time during discovery or as a supplemental response to Plaintiff s initial disclosures or Defendants discovery requests. Defendants object on the grounds that Plaintiff failed to disclose this document under Fed. R. Civ. P. 26(a) and (e). This document is responsive to Defendants Requests for Production of Documents Nos. 2 and 3 and Interrogatory No. 3 but was only produced for the first time well after the close of discovery and after pretrial disclosures were due. Plaintiff also failed to disclose this document in its Pretrial Disclosures under Fed. R. Civ. P. 26(a)(3)(A)(iii) and 26(a)(4). Under Fed. R. Civ. P. 37(c)(1), Plaintiff should be barred from using this information at trial because of its failure to disclose or supplement its responses to Defendants discovery requests. This document is also inadmissible under Fed. R. Evid. 402 because it is irrelevant as to the issues in this case, namely whether Defendants breached the Note and Mortgage for failure to make monthly payments, as set forth in Plaintiff s Verified Complaint which contains no allegations that Defendants owed any principal greater than the $215,000 set forth in the Note and Mortgage.

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1 2 3 4 5 6 7 8 9 10 11 Respectfully submitted, DAVIS WRIGHT TREMAINE LLP By: /s/ Gwen Fanger James P. Walsh Gwen Fanger Attorneys for Defendants BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), the F/V POINT LOMA and Claimant, F/V POINT LOMA FISHING COMPANY, INC. DATED this 2nd day of May, 2008.

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