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Edwin Durand, An Individual; Madelaine Durand, An Individual v. Candice L. Stephenson

November 19, 2012

EDWIN DURAND, AN INDIVIDUAL; MADELAINE DURAND, AN INDIVIDUAL, PLAINTIFFS,
v.
CANDICE L. STEPHENSON, J. WAYNE STRAUCH, ET AL.,
DEFENDANTS.
AND RELATED CROSS-ACTION.



PRETRIAL CONFERENCE ORDER

Pursuant to court order, a Pretrial Conference was held on November 16, 2012 before Judge John Mendez. Plaintiffs appeared In Pro Se; Glenn W. Peterson appeared as counsel for defendants. After hearing, the court makes the following findings and orders:

I. JURISDICTION/VENUE

Jurisdiction is predicated upon 28 U.S.C. § 1332, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

II. JURY/NON-JURY

Plaintiffs have demanded a jury trial. 3

III. STATEMENT TO BE READ TO JURY

Seven (7) days prior to trial the parties shall E-file a joint 5 statement of the case that may be read to the jury at the beginning 6 of jury selection. 7

IV. UNDISPUTED FACTS

The parties agree that the following facts are not in dispute, 9 and they stipulate to these facts for purposes of trial.

1. Plaintiff Madelaine Durand is an individual who resides in Washoe County, Nevada.

2. Plaintiff Edwin Durand is an individual who resides in Washoe County, Nevada.

3. Defendant Candice L. Stephenson is an individual who resides in Placer County, California.

4. Defendant J. Wayne Strauch is an individual who resides in Marion County, Oregon and has extensive contacts within the State of California.

5. The subject Westinghouse Airbrake Company Articulated Loader model 1200 was located at 2024 Taylor Road, Roseville, California.

6. 2024 Taylor Road, Roseville, California is owned by Defendant J. Wayne Strauch.

7. On April 18, 2008 the Defendants J. Wayne Strauch and Candice Stephenson sold the subject Loader to Richard Van Tassel.

8. On April 18, 2008 Richard Van Tassel met Defendant Candice L. Stephenson at her home located at 111 Bonny Knoll Road, Roseville, California and gave her a check in the amount of $6,000.00 made out to the Strauch Administrative Trust, the 2 purchase price of the Loader. 3

9. The copy of the check from Richard Van Tassel to the 4 Strauch Administrative Trust for $6,000 dated April 18, 2008 is 5 deemed authentic. 6

10. Defendant Stephenson told CHP Investigating Officer Bruce 7 Ogden that the Loader had been sold for $6,000. 8

11. Stephenson admitted having a conversation with Mr. Durand 9 after the Loader was sold.

12. The Loader was moved off the property located at 2024 Taylor Road, Roseville, California in April 2008.

13. Defendant Strauch had a telephone conversation with Mr. Durand after the Loader was removed from 2024 Taylor Road, Roseville, California wherein Mr. Durand stated that he (Durand) owned the Loader.

14. Both Candice L. Stephenson and J. Wayne Strauch are Trustees on the Strauch Administrative Trust.

15. Before Marjorie Strauch died she was a Trustee on the Strauch Administrative Trust.

16. Marjorie Strauch died on June 26, 1999.

17. Both Defendants Candice L. Stephenson and J. Wayne Strauch are Marjorie Strauch's heirs.

18. Defendant Stephenson knew that her mother had sold the HD 41 dozer.

19. Defendant Stephenson's mother told her that she sold the HD 41 dozer to a Mr. Brown.

20. Defendant J. Wayne Strauch knew that the HD 41 dozer had been sold.

V. DISPUTED FACTUAL ISSUES

The parties agree that the following factual issues are 3 disputed: 4

1. Whether Durand owned the subject Loader at the time of 5 the alleged conversion? 6

2. Whether Durand had the right to possession of the subject 7 Loader at the time of the alleged conversion? 8

3. Whether the Defendants had the right to sell the Loader 9 at the time of the alleged conversion?

4. Whether Durand had abandoned the Loader?

5. Whether Durand had a "For Sale" sign attached to the Loader?

6. The value of the Loader as of April 18, 2008, the time of the alleged conversion.

VI. DISPUTED EVIDENTIARY ISSUES

1. Durand anticipates hearsay objections to statements by Richard Van Tassel that the Defendants told him they knew the Loader had been sold but could not find the owner.

2. Should the Defendants include Mr. Rick Churches as a witness, Durand anticipates filing a motion in limine.

3. Strauch's statement that he knew his mother had sold the Loader is admitted pursuant to F.R.C.P. Rule 36(a)(3), but the statement is not admissible on grounds that it is confusing and incomplete.

4. Strauch's statement that he told Durand that the persons who had stolen his pumpkin patch equipment must have stolen the Loader is admitted pursuant to F.R.C.P. Rule 36(a)(3).

5. Defendants contend that item 2 may be resolved by a motion in limine. Defendants also anticipate challenging the 2 admissibility of various documents proffered by plaintiffs. The 3 objections will, in some instances, depend upon the purpose(s) for 4 which plaintiffs offer the document(s). 5

VII. RELIEF SOUGHT

Durands seek money damages between $120,000 to $250,000, a 7 fair compensation for the time and money properly expended in 8 pursuit of the property, interest from the time of conversion and 9 all costs allowed by law. [Defendants to submit statement regarding their Counterclaim to be included in this section.]

VIII. POINTS OF LAW

Trial briefs shall be E-filed with the court no later than seven (7) days prior to the date of trial, i.e., January 7, 2013. Any points of law not previously argued to the Court should be briefed in the trial briefs.

IX. ABANDONED ISSUES

The Durands' contend that their Complaint requesting damages in the amount of $600,000 was abandoned back in 2009.

Defendants dispute any attempt to abandon the Noble Murray Appraisal and/or the damage claim in the amount of $600,000. Defendants intend to offer this appraisal, and Plaintiffs' representations to this Court that accompanied it, for multiple purposes under Rules 403-404, 607-609, and 613 under the Federal Rules of Evidence. Among other things, Defendants contend these statements are appropriately offered to the trier of fact for impeachment purposes, and/or to negate Plaintiffs' credibility as witnesses at trial.

X. WITNESSES

Plaintiffs anticipate calling the following witnesses: 3

1. Madelaine Durand. 4

2. Edwin Durand. 5

3. Timothy Fadda. 6

4. Candice L. Stephenson by Deposition and Interrogatory. 7

5. J. Wayne Strauch by Deposition, Interrogatory, and 8 Admissions. 9

Rebuttal witnesses:

1. Richard Van ...


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