Free Proposed Order - District Court of California - California

Case 3:07-cv-02952-WHA

Document 147

Filed 04/28/2008

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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

9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 DEL MAR SEAFOODS, INC., 12 Plaintiff, 13 v. 14 15 16 17 18 Defendants. 19 20 21 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, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C-07-2952-WHA [PROPOSED] ORDER GRANTING DEFENDANTS MOTION IN LIMINE NO. 1 TO EXCLUDE PAROL EVIDENCE REGARDING AMOUNT OF DEBT UNDER PROMISSORY NOTE Final Pretrial Conf.: May 5, 2008 Time: 2:00 p.m. Place: Courtroom 9, 19th Floor

DAVIS WRIGHT TREMAINE LLP

This matter came before the Court on Defendants Motion In Limine No. 1 to Exclude

22 Parol Evidence Regarding Amount of Debt Under Promissory Note (the Motion ). The Court, 23 having considered Defendants Motion, any opposition filed by Plaintiff, and all pleadings and 24 other papers on file in this action and on such other evidence and argument as received by the 25 Court hereby orders as follows: 26 27 28 Defendants Motion is hereby GRANTED. Defendants signed a Promissory Note (the Note ) securing a loan made by Plaintiff with a mortgage on Defendants fishing vessel, the F/V Point Loma. The parties agreed that the amount of the Note would be $215,000. Plaintiff s

[PROPOSED] ORDER GRANTING DEFENDANTS MOTION IN LIMINE NO. 1 Case No. C-07-2952-WHA

SFO 406072v1 0084289-000001

Case 3:07-cv-02952-WHA

Document 147

Filed 04/28/2008

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controller prepared the Note formalizing the agreement that expressly states that the Note is for $215,000. Plaintiff contends that at the time the Note was signed, Defendants owed approximately $237,000 that should have been covered by the Note. Nevertheless, the Note is the final agreement of the parties as to the amount owed under the Note at the time it was signed. The express terms of the Note state that the amount covered by the Note is $215,000 and therefore, the parol evidence rule bars any extrinsic evidence contradicting the amount of the Note at the time it was signed. Accordingly, any evidence proffered by Plaintiff that the amount of the Note should have been more than $215,000 at the time it was signed is inadmissible. IT IS SO ORDERED.

DAVIS WRIGHT TREMAINE LLP

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[PROPOSED] ORDER GRANTING DEFENDANTS MOTION IN LIMINE NO. 1 Case No. C-07-2952-WHA SFO 406072v1 0084289-000001

DATED: ________________

__________________________________ William Alsup UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT CALIFORNIA