Final Request For Jury Instructions

1 Timothy L. McCandless, Esq.
(SBN 147715)
THE LAW OFFICES OF TIMOTHY MCCANDLESS
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1881 Business Center Drive, Suite 9A
San Bernardino, CA 92408
3 Phone: (909) 890-9192
Fax: (909) 382-9956
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Counsel for Defendant, Anthony J. Martin
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SUPERIOR COURT OF CALIFORNIA
7 IN AND FOR THE COUNTY OF STANISLAUS
8 STANISLAUS JUDICIAL DISTRICT/ MODESTO COURTHOUSE
LIMITED JURISDICTION/ UNLAWFUL DETAINER
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U. S. BANK NATIONAL ) Case No.: 64 50 68
11 )
ASSOCIATION etc., )
12 ) DEFENDANT ANTHONY J.
) MARTIN’S REQUEST FOR JURY
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Plaintiff, ) INSTRUCTIONS
) [CCP §§ 607a, 608, & 609; CRC Rules
14 v. ) 3.1580, 2.1050.2.1055 & 2.1058.]
)
15 )
ANTHONY J. MARTIN, )
16 ) DATE: Oct. 6, 2010
)
Defendants. ) TIME: 8:30 a.m.
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) DEPT: D-21
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TO THE COURT AND TO PLAINTIFF U.S. BANK, NATIONAL ASSOCIATION
and its attorney of record:
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DEFENDANT ANTHONY J. MARTIN hereby requests the following CACI Jury
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Instructions be given and approved and requests special jury instructions be given: Special
24 Jury Instructions First through Eighth, AND CACI 100,101, 4300, 106, 200, 201, 204, 5000,
25 5002, 5006.
26 FIRST REQUESTED JURY INSTRUCTION [SPECIAL]:
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The Plaintiff in this case, U.S. BANK, NATIONAL ASSOCIATION, has the burden of
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REQUEST FOR JURY INSTRUCTIONS
1 pleading and proving that the property in this case was sold in accordance with Section 2924 of
the Civil Code, under a power of sale contained in a deed of trust executed by such person, or
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by a person under whom such person claims, and the title under the sale has been duly
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perfected. If any statutory requirement for notification of such a sale has not been followed,
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then the Trustee’s Deed Upon Sale is void, and the Plaintiff cannot win possession of the
5 property in this lawsuit.
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SOURCES AND AUTHORITIES:
7
Code of Civil Procedure section 1161a.
8 27 Cal.Jur.3d (Rev. 1987) Part 1, pages 286-287, “Deeds of Trust” at §254.
Mortgage Guarantee Co. v. Smith (1935), 9 Cal.App.2d 618 [the question of title is part of the statutory remedy against former
9 owners, and thus is a case element].
10 Seidell v. Anglo-California Trust Co. (1942), 55 Cal.App.2d 913 [relevant issues are those which affect the compliance with the
code provisions, and factual findings on such issues will collaterally estop the parties in a future suit by the mortgage trustor].
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1 SECOND REQUESTED JURY INSTRUCTION [SPECIAL]:
The foreclosure process really begins when the lender’s servicing agent – such as a
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trustee under a “deed of trust” -- files a “notice of default”. The mortgagee, trustee under a
3 “deed of trust”, or other person authorized to record a “notice of default” is then required,
4 within 10 business days following recordation of the notice of default, to deposit or cause to be
5 deposited in the United States mail an envelope, sent by registered or certified mail with
postage prepaid, containing a copy of the “notice of default” with the County Recorder’s
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recording date shown thereon, addressed to each “trustor” or mortgagor, in other words the
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home loan borrower, at his or her last known address if different than the address specified in
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the “deed of trust” or mortgage with power of sale. If you find that the “notice of default” in
9 this case was not sent out by either registered or certified mail, then the Plaintiff cannot win
10 possession of the property in this lawsuit.
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12 First Sentence: Civil Code subsection 2924(a)(1).
13 Second sentence: paraphrased language of Civil Code subsection 2924b(b)(1).
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1 THIRD REQUESTED JURY INSTRUCTION [SPECIAL]:
The foreclosure process continues after the “notice of default”, after the lender’s
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servicing agent – such as a trustee under a “deed of trust” -- has filed the “notice of default”,
3 and the unpaid or delinquent amount has not been paid. The mortgagee, trustee under a “deed
4 of trust”, or other person authorized to record a “notice of default” is then required, at least 20
5 days before the date of the trustee’s sale, send an envelope by registered or certified mail,
containing a copy of the notice of the time and place of sale, addressed to each “trustor” or
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mortgagor, in other words the home loan borrower, at his or her last known address if different
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than the address specified in the “deed of trust” or mortgage with power of sale. If you find
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that the “notice of sale” in this case was not sent out by either registered or certified mail, then
9 the Plaintiff cannot win possession of the property in this lawsuit.
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First Sentence: Civil Code subsection 2924(a)(2)-(3).
12 Second sentence: paraphrased language of Civil Code subsection 2924b(b)(2).
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1 FOURTH REQUESTED JURY INSTRUCTION [SPECIAL]:
The California Legislature has recently added a new requirement that trustees and
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lenders’ agents must follow during the foreclosure process. The new law applies to loans
3 made from January 1, 2003, to December 31, 2007, inclusive, that are secured by residential
4 real property and are for owner-occupied residences. For the purposes of this rule, "owner-
5 occupied" means that the residence is the principal residence of the borrower.
Under the new law, whenever it does apply, A mortgagee, trustee, beneficiary, or
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authorized agent may not file a notice of default pursuant to Civil Code Section 2924, until 30
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days after contact is made as required by the first special rule given below, or 30 days after
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satisfying the due diligence requirements as described in the second special rule below.
9 The first special rule is this: A mortgagee, beneficiary, or authorized agent shall
10 contact the borrower in person or by telephone in order to assess the borrower's financial
11 situation and explore options for the borrower to avoid foreclosure. During the initial contact,
the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the
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right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or
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authorized agent shall schedule the meeting to occur within 14 days. The assessment of the
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borrower's financial situation and discussion of options may occur during the first contact, or at
15 the subsequent meeting scheduled for that purpose. In either case, the borrower shall be
16 provided the toll-free telephone number made available by the United States Department of
17 Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency.
Any meeting may occur telephonically.
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Sometimes the mortgage, trustee of the ‘deed of trust’, and so on simply cannot get
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hold of the trustor, that is, the borrower. For situations like that, there is a second special rule:
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A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or
21 authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a)
22 provided that the failure to contact the borrower occurred despite the due diligence of the
23 mortgagee, beneficiary, or authorized agent. For purposes of this second special rule, "due
diligence" shall require and mean all of the following:
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(1) A mortgagee, beneficiary, or authorized agent shall first
25 attempt to contact a borrower by sending a first-class letter that
includes the toll-free telephone number made available by HUD to find
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a HUD-certified housing counseling agency.
27 (2) (A) After the letter has been sent, the mortgagee,
beneficiary, or authorized agent shall attempt to contact the
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1 borrower by telephone at least three times at different hours and on
different days. Telephone calls shall be made to the primary
2 telephone number on file.
(B) A mortgagee, beneficiary, or authorized agent may attempt to
3 contact a borrower using an automated system to dial borrowers,
provided that, if the telephone call is answered, the call is
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connected to a live representative of the mortgagee, beneficiary, or
5 authorized agent.
(C) A mortgagee, beneficiary, or authorized agent satisfies the
6 telephone contact requirements of this paragraph if it determines,
after attempting contact pursuant to this paragraph, that the
7 borrower's primary telephone number and secondary telephone number or
numbers on file, if any, have been disconnected.
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(3) If the borrower does not respond within two weeks after the
9 telephone call requirements of paragraph (2) have been satisfied, the
mortgagee, beneficiary, or authorized agent shall then send a
10 certified letter, with return receipt requested.
11 You are asked to make a factual finding, as to whether or not Plaintiff U.S. BANK,
12 N.A. used “due diligence” to contact the borrower Defendant, ANTHONY J. MARTIN. If
13 you find that the Plaintiff held the discussion with him which is required under the first special
rule, then of course automatically you must find that the Plaintiff did, in fact, use “due
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diligence” to contact him. But if you find that the Plaintiff did not hold the conversation with
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her, then you must determine whether the Plaintiff bank was excused from having to do so,
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because it used “due diligence” under the second special rule, and was never able to actually
17 speak with the Defendant MARTIN.
18 If you find that the Plaintiff U.S. BANK N.A. did not make a good faith effort to
19 contact Defendant MARTIN, that is not the end of the matter; the court will then ask you to
make a further factual finding.
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21 The first full paragraph is derived from Civil Code subsection 2923.5(i).
The second full paragraph is derived from Civil Code subpart 2923.5(a)(1).
The third full paragraph is derived from Civil Code subpart 2923.5(a)(2).
22 The fourth full paragraph is derived from Civil Code subsection 2923.5(g), and quotes verbatim the numbered subparts thereof.
The fifth and sixth full paragraphs acknowledge that the Plaintiff bank may have an excuse under the exceptions listed at
23 subsection 2923.5(h), whose contents are reflected in the Fifth Requested Jury Instruction, below.
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1 FIFTH REQUESTED JURY INSTRUCTION [SPECIAL]:
2 If you have found that the Plaintiff bank did not hold the conversation with her about “options
3 for the borrower to avoid foreclosure”, and you have found that the Plaintiff bank did not use
“due diligence” under the second special rule to accomplish contact with her, then you must
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decide whether any of the following three excuses apply:
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(1) The borrower has surrendered the property as evidenced by
6 either a letter confirming the surrender or delivery of the keys to
the property to the mortgagee, trustee, beneficiary, or authorized
7 agent, or
(2) The borrower has contracted with an organization, person, or
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entity whose primary business is advising people who have decided to
9 leave their homes on how to extend the foreclosure process and avoid
their contractual obligations to mortgagees or beneficiaries, or.
10 (3) The borrower has filed for bankruptcy, and the proceedings
have not been finalized.
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If you find that none of these three excuses apply, and also that the Plaintiff bank did not use
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“due diligence” for the purpose of contacting the Defendant MARTIN, and further that it never
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actually had the conversation with her about “options for the borrower to avoid foreclosure”,
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then all of these facts together void the Trustee’s Sale, then the Plaintiff cannot win possession
15 of the property in this lawsuit.
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17 The first and third paragraphs are recapitulated from the Fifth Requested Jury Instruction.
The second paragraph is a verbatim citation from Civil Code subsection 2923.5(h).
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1 SIXTH REQUESTED JURY INSTRUCTION [SPECIAL]:
2 Earlier you were instructed that, at least 20 days before the date of the trustee’s sale, a
3 copy of the notice of the time and place of sale, shall also be posted in a conspicuous place on
the property to be sold, where possible and where not restricted for any reason. Sometimes, the
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sale does not happen at the time and place which were first announced, and the sale is put off
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until a later time. This is called a “postponement” or “continuance” of the sale. For every time
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that the sale is postponed or continued, there must be another posting of the “notice of sale” on
7 the property which will be sold.
8 If you find that the “notice of sale” in this case was properly posted on the property of
9 this lawsuit before the Trustee’s Sale as it was scheduled for the first time, but that there was
one or more “continuances” or “postponements” of the Trustee’s Sale and that there was not a
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new posting of the “notice of sale” for each continued or postponed sale, and you also find that
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there was no permitted statutory excuse for failure to make the additional postings, then the
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Trustee’s Deed is void, and then the Plaintiff cannot win possession of the property in this
13 lawsuit.
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Generally: Civil Code subsection 2924f(b)(1).
16 The term “at least 20 days before the date of sale” as used in the statute is not accompanied by any qualifying or
conditional language. The statute in question has no provisions regarding continuances or postponements, which generally are
17 treated at Civil Code section 2924g. Accordingly, the requirement is “absolute”, and necessarily refers to any occasion of a
18 sale, whether the original one or a postponed one.

Further, no procedural distinctions can be read into this statute; that is a basic principle of statutory interpretaton. The
19 provision of Civil Code section 2924g(d), to the effect that “[n]o other notice of postponement need be given” cannot be read
into the phrase “notice of sale.”
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The purpose of posting is chiefly a public one; it is intended to maximize the audience of potential bidders for the
21 property, and thereby maximize the property’s sale price, and thus increase property tax revenues for the government. There is
a secondary benefit to the trustor or mortgagor, in those circumstances (which are at this present time quite rare) where there is
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more than enough equity in the home to pay off the mortgage note, and still leave net auction proceeds to the mortgagor.
23 Obviously, a maximum sales price will increase the net proceeds which go to the borrower who had defaulted. These purposes
would be frustrated, if potential bidders were forced to frequently show up at canceled sales, in order to monitor when is the
24 next or “continued” date of sale.
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1 SEVENTH REQUESTED JURY INSTRUCTION [SPECIAL]:
2 The foreclosure process continues on, after the “notice of default”, after the lender’s
3 servicing agent – such as a trustee under a “deed of trust” -- has filed the “notice of default”,
and the unpaid or delinquent amount has not been paid. At least 20 days before the date of the
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trustee’s sale, a copy of the notice of the time and place of sale, shall also be posted in a
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conspicuous place on the property to be sold, where possible and where not restricted for any
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reason. If you find that the “notice of sale” in this case was not properly posted on the property
7 of this lawsuit before the Trustee’s Sale, and that there was no permitted statutory excuse, then
8 the Trustee’s Deed is void, and then the Plaintiff cannot win possession of the property in this
9 lawsuit.
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11 Second and Third Sentences: Civil Code subsection 2924f(b)(1).
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1 EIGHTH REQUESTED JURY INSTRUCTION [SPECIAL]:
2 California’s banking law regulates federally-chartered banks, except in a few areas

3 where federal law preempts California law. In the area of income taxation and law related to
enforcement of income tax, California law governs and is not preempted by federal law.
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In order to ensure compliance with the state’s Revenue & Taxation Code, California’s
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banking law makes federally-chartered banks subject to California’s “Corporation Code.”
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Even though the Corporations Code initially excludes federally-chartered corporations from its
7 coverage, nonetheless California’s banking law, contained in the Finance Code, forces the
8 coverage of the Corporations Code back onto federally-chartered banking corporations.
9 California’s “Corporation Code” makes any bank that engages in “intrastate” business here
register with the California Secretary of State, either as a “domestic corporation” or as a
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“foreign corporation”.
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You must first make a factual finding, as to whether or not Plaintiff U. S. BANK,
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NATIONAL ASSOCIATION is, at this time, registered with the California Secretary of State.
13 If you find that the Plaintiff bank is not presently registered with the California Secretary of
14 State, you must then make a factual finding of whether or not the Plaintiff bank is presently
15 engaged in “intrastate” business within the State of California.
For the purposes of this instruction, the phrase “transact intrastate business” means
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“entering into repeated and successive transactions of its business in this state, other than
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interstate or foreign commerce.
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You may find that it is so engaged, if you find that the Plaintiff bank is systematically
19 engaged in professional fiduciary activities within the State of California.
20 If you find that the Plaintiff bank is not registered with the California Secretary of State
21 and you also find that it is presently transacting “intrastate” business, then you must find that
the Plaintiff bank “lacks corporate capacity to maintain any action or proceeding upon any
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intrastate business so transacted in any court of this state. In that case, the Plaintiff cannot win
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possession of the property in this lawsuit.
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For the first and second sentences: In the rather recent case, Wells Fargo Bank, N.A. v. Boutris ([9th Cir.] 2005), 419 F.3d
27 949, the Court stated:
Since shortly after the Bank Act was enacted in 1864, see Nat’l Bank v. Kentucky, 76
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U.S. (9 Wall.) 353, 362, 19 L.Ed. 701 (1870), the Supreme Court has oft reiterated that
1 federal substantive authority over national banks is not exclusive. Rather, states may
regulate national banks where ‘doing so does not prevent or significantly interfere with
2 the national bank’s exercise of its powers.’ Barnett Bank, 517 U.S. at 33, 116 S.Ct. 1103;
see also id. (citing cases). ‘Thus, states retain some power to regulate national banks in
3 areas such as contracts, debt collection, acquisition and transfer of property, and taxation,
zoning, criminal, and tort law.’ Bank of Am., 309 F.3d at 559.
4 Wells Fargo, supra, 419 F.3d at 963. [Emphasis added.]
Since the Ninth Circuit’s holding in Wells Fargo, supra, the same Circuit has decided yet another case that concerns
5 the preemption of federal banking law over state law, in this case, also concerning California’s banking law. See last year’s
case Rose v. Chase Bank USA, N.A. (9th Cir., 2008), 513 F.3d 1032. Unlike Wells Fargo, supra, the preemption in question in
Rose concerned the federal statute itself – 12 U.S.C. §24 (Seventh power) – rather than regulations promulgated by the OCC
6 pursuant to Title 12, U.S.C. The Court observed in Rose that “States are permitted to regulate the activities of national banks
where doing so does not prevent or significantly interfere with the national bank’s or the national bank regulator’s exercise of
7 its powers. But when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA,
the State’s regulations must give way.” 513 F.3d 1032 at 1037, citing verbatim Watters v.Wachovia Bank, N.A., (U.S. 2007),
8 127 S.Ct. 1559, 1567, 167 L.Ed.2d 389, ---- U.S. ----.
In order to make a credible argument about preemption, it is necessary to show some kind of conflict – either express
or implied – between the California law and the federal statute or federal regulation. And see California Financial Code section
9 100.5: “If and to the extent that any provision of this division is preempted by federal law, the provision does not apply and
shall not be enforced.” Here, we are concerned only with a requirement for a corporation to somehow register with the
10 Secretary of State. Everyone knows that this registration is required, in order to facilitate the enforcement of state
corporate income tax laws (AKA “franchise tax” laws) by the California Franchise Tax Board. So it should be incumbent
11 upon anyone asserting some kind of “federal preemption” to demonstrate that this revenue provision conflicts with federal law.
Unfortunately for such would-be “federal supremacists”, the entire Title 12 of the U. S. Code presumes that
“nationally chartered banks” will be subject to both State and local income taxation: “For the purposes of any tax law enacted
12 under authority of the United States or any State, a national bank shall be treated as a bank organized and existing under the
laws of the State or other jurisdiction within which its principal office is located.” 12 U.S.C. Section 548.
13 Chapter 2 of Title 12 of the U.S. Code contains a handful of sections that bear upon the issue of a national bank’s
branches in states other than the one in which it is headquartered, and the resolution of questions of federal preemption of the
“host state’s” banking law. See 12 U.S.C. §§ 36, 43, and 93a. Subsection 36(f)(2) substantially restates section 548, in a
14 context that emphasizes nondiscrimination against national banks in favor of domestic banks.
In summary, there can be no preemption by federal banking law here.
15
For the third and fourth sentences: Corporations Code section 171, after announcing the inverse of the rule just cited, adds
16 the qualification that “ ‘foreign corporation’ as used in Chapter 21 does not include a corporation or association chartered under
the laws of the United States.” Thus, at first blush, all federally incorporated entities are beyond the reach of the registration
requirements of Corporations Code section 1502, and the related requirements for filing of franchise tax returns.
17 California’s Financial Code, however, puts most of these federally-created entities back into coverage. Firstly, “[t]he
word ‘bank’ as used in this divisions means any incorporated banking institution that shall have been incorporated to engage in
18 commercial banking business, industrial banking, or trust business.” Financial Code, section 102. Next: “This division is
applicable to the following: … (b) All national banking associations authorized to transact business in this state to the extent
19 that the provisions of this division are not inconsistent with and do not infringe paramount federal laws governing national
banking associations.” Financial Code, section 100. Finally: “All provisions of law applicable to corporations generally
[citation] shall apply to banks. However, whenever any provision of this division or of any regulation or order issued under any
20 provision (other than this section) of this division applicable to banks is inconsistent with any provision of law applicable to
corporations generally, such provision of this division or of such regulation or order shall apply and such provision of law
21 applicable to corporations generally shall not apply.”
Needless to say, an exception from coverage for federally chartered corporations occurs in the “general corporate
law”, as demonstrated above. An “anti-exception”, or special inclusion, of federally chartered banks occurs in subsection
22 100(a), as just noted. Under the interpretive provision of subsection 101(b), the Financial Code’s provisions triumphs, and
federally chartered banks are thus subject to the provisions of law applicable to corporations generally.
23 We also learn from Financial Code subsection 126.5 that a “California national bank”, as odd as its name may seem,
is “a national bank that maintains its main office in this state.” That description would seem to fit the Plaintiff in this case,
24 unless moving defendant has the wrong facts. No doubt Plaintiff will clarify in its Opposition brief.
The fact that the Plaintiff corporation has corporate “capacity” arising from its federal legal creation, does not prohibit
the possibility of corporate “incapacity”, by virtue of noncompliance with applicable California law. “Subject to any limitation
25 contained in the articles and to compliance with any other applicable laws, … a corporation subjection to the Banking Law or a
professional corporation may engage in any business activity not prohibited by the respective statutes and regulations to which
26 it is subject.” Corporations Code section 206.
There is some evidence in the Corporations Code itself that, in some circumstances, nationally-chartered banks will,
27 indeed, be subject to the provisions of the Corporations Code: “No foreign lending institution solely by reason of engaging in
any one or more of the activities set forth in subdivision (d) of Section 191 shall be required to qualify to do business in this
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state nor be subject to (a) any of the provisions of the Bank and Corporation Tax Law (commencing with Section 23001) of the
1 Revenue and Taxation Code or (b) any of the provisions of this code or the Financial Code or Insurance Code relating to
qualifications for doing or transacting business in this state or to requirements pertaining thereto or to the effects or results of
2 failure to qualify to do business in this state.” California Corporations Code, section 2104, second paragraph.
It is clear from this code section, that some “foreign lending institutions” will need to qualify under the Corporations
3 Code and other codes, and some will not, depending on whether or not they are truly transacting intrastate business in the State
of California.
4 Third full paragraph ( fourth sentence et seq.): California Corporations Code subsection 2203( c). The term “intrastate
business” is used throughout the various provisions of section 2203.
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Fourth full paragraph: Corporations Code, subsection 191(a).
6 Fifth full paragraph: Professional fiduciary activity is so recognized as a ‘business’ in California, that it is regulated as one of
the three kinds of banking activity: “ ‘Trust business’ means the business of acting as executor, administrator, guardian or
7 conservator of estates, assignee, receiver, depositary or trustee under the appointment of any court, or by authority of any law of
this or any other state or of the United States, or as trustee for any purpose permitted by law.” California Financial Code
8 section 106. [Emphasis added.]
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1 CACI JURY INSTRUCTIONS
2 100 – Preliminary Admonitions

Page 1 of 2
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You have now been sworn as jurors in this case. I want to impress on you the seriousness
4 and importance of serving on a jury. Trial by jury is a fundamental right in California. The parties
5 have a right to a jury that is selected fairly, that comes to the case without bias, and that will
6 attempt to reach a verdict based on the evidence presented. Before we begin, I need to explain
how you must conduct yourselves during the trial.
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This is an action for what is called unlawful detainer. U.S. BANK, N.A. [“U.S.
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BANK”], the titular owner of record, claims that defendant ANTHONY J. MARTIN is the
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former owner because it owns a Trustee’s Deed of Sale, and that ANTHONY J. MARTIN no
10 longer have the right to occupy the property. U.S. BANK, N.A. seeks to recover possession of
11 the property from him. ANTHONY J. MARTIN claims that he still has the right to occupy the
12 property because, firstly, there were several different irregularities in the foreclosure process,
any of which renders the Trustee’s Deed Upon Sale void, and thus the Plaintiff U.S. BANK
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would no longer be the titular owner of record. Moreover, it was proven that the Trustee, DSL
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Service Company was not authorized to conduct the trustee sale because evidence shows that
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there is a gap in title and security interest from Downey Savings & Loan through the FDIC to
16 plaintiff during the time of the foreclose proceeding, as well as missing evidence to show
17 whether the Trustee, DSL Service Company, was authorized to act asU.S. BANK’S agent in
18 continuing with the sale once Downey & Savings & Loan had lost its security interest.
Do not allow anything that happens outside this courtroom to affect your decision.
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During the trial do not talk about this case or the people involved in it with anyone, including
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family and persons living in your household, friends and co-workers, spiritual leaders,
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advisors, or therapists. This prohibition is not limited to face-to-face conversations. It also
22 extends to all forms of electronic communications. Do not use any electronic device or media,
23 such as a cell phone or smart phone, PDA, computer, the Internet, any Internet service, any text
24 or instant-messaging service, any Internet chat room, blog, or Web site, including social
networking websites or online diaries, to send or receive any information to or from anyone
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about this case or your experience as a juror until after you have been discharged from your
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jury duty.
27 New August 2007
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Sources and Authority
1 • Code of Civil Procedure section 1171 provides: “Whenever an issue of fact is presented by the pleadings, it must be tried by a
jury, unless such jury be waived as in other cases. The jury shall be formed in the same manner as other trial juries in an action
2 of the same jurisdictional classification in the Court in which the action is pending.”
3 This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,

www.lexisnexis.com/bookstore, for public and internal court use.
• “The remedy of unlawful detainer is designed to provide means by which the timely possession of premises which are
4 wrongfully withheld may be secured to the person entitled thereto.” (Knowles v. Robinson (1963) 60 Cal.2d 620, 625 [36
Cal.Rptr. 33, 387 P.2d 833].)
5 • “Chapter 4 of title 3 of part 3 of the Code of Civil Procedure is commonly known as the Unlawful Detainer Act (hereafter, the
Act). The Act is broad in scope and available to both lessors and lessees who have suffered certain wrongs committed by the
other. Procedures and proceedings in unlawful detainer were not known at common law and are entirely creatures of statute. As
6 such, they are governed solely by the statutes which created them. Thus, where the Act ‘deals with matters of practice, its
provisions supersede the rules of practice contained in other portions of the code.’ ” (Losornio v. Motta (1998) 67 Cal.App.4th
7 110,113 [78 Cal.Rptr.2d 799], internal citations omitted.) Additional authority suggested by Defendant MORALES: Code of
Civil Procedure section 1161a.
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Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2006) Real Property, § 703
9 2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 9.5, 9.34–9.36
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 1.4–1.5
10 7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer,
§ 210.01 (Matthew Bender)
11 Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch.
5, Unlawful Detainer, 5.02
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:Eviction Actions, § 333.12 (Matthew Bender)
12 Miller & Starr, California Real Estate (Thomson West) Ch. 19, Landlord-Tenant, § 19:214
13 • Article I, section 16 of the California Constitution provides that “trial by jury is an inviolate right and shall be secured to all.”
• Code of Civil Procedure section 608 provides, in part: “In charging the jury the court may state to them all matters of law
which it thinks necessary for their information in giving their verdict; and, if it state the testimony of the case, it must inform
14 the jury that they are the exclusive judges of all questions of fact.” (See also Evid. Code, § 312; Code Civ. Proc., § 592.)
15 • Under Code of Civil Procedure section 611, jurors may not “form or express an opinion” prior to deliberations. (See also City
of Pleasant Hill v. First Baptist Church of Pleasant Hill (1969) 1 Cal.App.3d 384, 429 [82 Cal.Rptr. 1]. It is misconduct for a
16 juror to prejudge the case. (Deward v. Clough (1966) 245 Cal.App.2d 439, 443–444 [54 Cal.Rptr. 68].)
• Jurors must not undertake independent investigations of the facts in a case. (Kritzer v. Citron (1950) 101 Cal.App.2d 33, 36
17 [224 P.2d 808]; Walter v. Ayvazian (1933) 134 Cal.App. 360, 365 [25 P.2d 526].)
18 • Jurors are required to avoid discussions with parties, counsel, or witnesses. (Wright v. Eastlick (1899) 125 Cal. 517, 520–521
[58 P. 87]; Garden Grove School Dist. v. Hendler (1965) 63 Cal.2d 141, 144 [45 Cal.Rptr. 313, 403 P.2d 721].)
19 • It is misconduct for jurors to engage in experiments that produce new evidence. (Smoketree-Lake Murray, Ltd. v. Mills
Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1746 [286 Cal.Rptr. 435].)
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1 101 – Overview of Trial
Page 1 of 1
2
To assist you in your tasks as jurors, I will now explain how the trial will proceed. US.
3 BANK filed this lawsuit. It is called a plaintiff. It seeks damages [or other relief] from Anthony
Martin, who is called a defendant. Each plaintiff and each defendant is called a party to the case.
4 First, each side may make an opening statement, but neither side is required to do so. An opening
statement is not evidence. It is simply an outline to help you understand what that party expects
5 the evidence will show. Also, because it is often difficult to give you the evidence in the order we
would prefer, the opening statement allows you to keep an overview of the case in mind during
6 the presentation of the evidence.
7
Next, the jury will hear the evidence. U.S. BANK will present its evidence first. When
8 U.S. BANK is finished, ANTHONY J.MARTIN will have an opportunity to present his
evidence.
9
After the evidence has been presented, I will instruct you on the law that applies to the
10 case and the attorneys will make closing arguments. What the parties say in closing argument is
not evidence. The arguments are offered to help you understand the evidence and how the law
11 applies to it.
12
In this case, PLAINTIFF U.S. BANK claims that they acquired the subject property at a
13 Trustee Sale that was properly conducted pursuant to Civil Code Section 2924 et seq. Defendant
ANTHONY J. MARTIN denies this allegation and that U.S. BANK did not conduct a valid
14 trustee sale because U.S. BANK never had the power of sale to proceed with the foreclosure.
15 Sources and Authority
• Rule 2.1035 of the California Rules of Court provides: “Immediately after the jury is sworn, the trial judge may, in his or her
16 discretion, preinstruct the jury concerning the elements of the charges or claims, its duties, its conduct, the order of
proceedings, the procedure for submitting written questions for witnesses as set forth in rule 2.1033 if questions are allowed,
and the legal principles that will govern the proceeding.”
17
• Code of Civil Procedure section 607 provides:
18 When the jury has been sworn, the trial must proceed in the following order, unless the court, for special reasons otherwise
directs:
19 1. The plaintiff may state the issue and his case;
2. The defendant may then state his defense, if he so wishes, or wait until after plaintiff has produced his evidence;
20 3. The plaintiff must then produce the evidence on his part;
4. The defendant may then open his defense, if he has not done so previously;
21 5. The defendant may then produce the evidence on his part;
6. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice,
permit them to offer evidence upon their original case;
22 7. When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the
plaintiff must commence and may conclude the argument;
23 8. If several defendants having separate defenses, appear by different counsel, the court must determine their relative order in
the evidence and argument;
24 9. The court may then charge the jury.
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1 4300. Introductory Instruction
Page 1 of 2
2
3 This case is called an action for “unlawful detainer.” The plaintiff U.S. BANK has filed
a claim against ANTHONY J. MARTIN, claiming that Defendant is unlawfully remaining in
4
the home in which the defendant lives. The subject property is located at 1312 Harbour Town
5
Lane, Modesto, California. The Plaintiff is seeking an order of this court permitting it to evict
6
Defendant.
7 In addition, the plaintiff is acting on behalf of U.S. BANK. In this case, there was a
8 change of beneficiary on November 11, 2008 when the FDIC seized the assets of Downey
9 Savings and sold them to plaintiff U.S. BANK. Downey no longer maintained a secured
interest in this subject property.
10
Therefore, whatever interest had been vested in Downey Savings in the Subject
11
Property was vested in U.S. Bank, N.A., by virtue of a Receiver’s Deed conveyed by the
12 FDIC.
13 Because of the FDIC take over, the FDIC issues Receiver Deeds for all real property
14 sold in order that the new beneficiary, [in this case plaintiff U.S. BANK] may assert its secured
15 interest by recording the new Receiver’s Deed.
For the purposes of this case and these instructions, plaintiff’s predecessor in interest is
16
DOWNEY SAVINGS BANK, F.A. Plaintiff U.S. BANK took over DOWNEY SAVINGS
17
BANK F.A.’s real property portfolio because as of May 15, 2009, the transfer of all
18 DOWNEY’S assets to PLAINTIFF U.S. BANK became final.
19 Sources:
It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be
20 able to prove the existence of their secured interest in the subject property.
Code of Civil Procedure section 1171 provides: “Whenever an issue of fact is presented by the pleadings, it must be tried by a
jury, unless such jury be waived as in other cases. The jury shall be formed in the same
21 manner as other trial juries in an action of the same jurisdictional classification in the Court in which the action is pending.”

• “The remedy of unlawful detainer is designed to provide means by which the timely possession of premises which are
23 wrongfully withheld may be secured to the person entitled thereto.” (Knowles v. Robinson (1963) 60 Cal.2d 620, 625 [36
Cal.Rptr. 33, 387 P.2d 833].)
24 • “Chapter 4 of title 3 of part 3 of the Code of Civil Procedure is
commonly known as the Unlawful Detainer Act (hereafter, the Act). The
25 Act is broad in scope and available to both lessors and lessees who have suffered certain wrongs committed by the other.
Procedures and
proceedings in unlawful detainer were not known at common law and are
26 entirely creatures of statute. As such, they are governed solely by the statutes which created them. Thus, where the Act ‘deals
with matters of practice, its provisions supersede the rules of practice contained in other portions of the code.’ ” (Losornio v.
27 Motta (1998) 67 Cal.App.4th 110,113 [78 Cal.Rptr.2d 799], internal citations omitted.)
Additional authority suggested by Defendant MORALES: Code of Civil Procedure section 1161a.
16
1 Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2006) Real Property, § 703
2 2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 9.5, 9.34–9.36
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 1.4–1.5
3 7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer,
§ 210.01 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch.
4 5, Unlawful Detainer, 5.02
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:Eviction Actions, § 333.12 (Matthew Bender)
5 Miller & Starr, California Real Estate (Thomson West) Ch. 19, Landlord-Tenant, § 19:214
CACI No. 4300 UNLAWFUL DETAINER
982 (Pub.1283)
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1 106. Evidence
Page 1 of 2
2
3 Sworn testimony, documents, or anything else may be admitted into evidence. You
must decide what the facts are in this case from the evidence you see or hear during the trial.
4
You may not consider as evidence anything that you see or hear when court is not in session,
5
even something done or said by one of the parties, attorneys, or witnesses.
6
What the attorneys say during the trial is not evidence. In their opening statements and closing
7 arguments, the attorneys will talk to you about the law and the evidence. What the lawyers say
8 may help you understand the law and the evidence, but their statements
9 and arguments are not evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence.
10
You should not think that something is true just because an attorney’s question suggests that it
11
is true. However, the attorneys for both sides can agree that certain facts are true. This
12 agreement is called a “stipulation.” No other proof is needed and you must accept those facts as
13 true in this trial.
14 Each side has the right to object to evidence offered by the other side. If I do not agree
15 with the objection, I will say it is overruled.
If I overrule an objection, the witness will answer and you may consider the evidence. If
16
I agree with the objection, I will say it is sustained. If I sustain an objection, you must ignore
17
the question. If the witness did not answer, you must not guess what he or she might have said
18 or why I sustained the objection. If the witness has already answered, you must ignore the
19 answer.
20 There will be times when I need to talk to the attorneys privately. Do not be concerned
21 about our discussions or try to guess what is being said. An attorney may make a motion to
strike testimony that you have heard. If I grant the motion, you must totally disregard that
22
testimony. You must treat it as though it did not exist.
23

• Evidence Code section 140 defines “evidence” as “testimony, writings, material objects, or other things presented to the
25 senses that are offered to prove the existence or nonexistence of a fact.”
• Evidence Code section 312 provides:
Except as otherwise provided by law, where the trial is by jury:
26 (a) All questions of fact are to be decided by the jury.
(b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the
27 credibility of witnesses and hearsay declarants.
18
A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the
1 erroneous admission of evidence unless:
(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated
2 as to make clear the specific ground of the objection or
motion; and
3 (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been
excluded on the ground stated and that the error or errors
complained of resulted in a miscarriage of justice.
4 • A stipulation in proper form is binding on the parties if it is within the authority of the attorney. Properly stipulated facts may
not be contradicted. (Palmer v. City of Long Beach (1948) 33 Cal.2d 134,
5 141–142 [199 P.2d 952].)
• Courts have held that “attempts to suggest matters
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1 200. Obligation to Prove—More Likely True Than Not True
Page 1 of 2
2
A party must persuade you, by the evidence presented in court, that what he or she is
3
required to prove is more likely to be true than not true. This is referred to as “the burden of
4
proof.”
5 After weighing all of the evidence, if you cannot decide that something is more likely to
6 be true than not true, you must conclude that the party did not prove it. You should consider all
7 the evidence, no matter which party produced the evidence.
I` In criminal trials, the prosecution must prove that the defendant is guilty beyond a
8
reasonable doubt. But in civil trials, such as this one, the party who is required to prove
9
something need prove only that it is more likely to be true than not true.
10
In this action, the plaintiff has the burden of establishing, by a preponderance of the evidence,
11 all the facts necessary to prove the following issues:
12 The sole evidence being offered by Plaintiff is the Trustee’s Deed After Sale, which is
13 inadmissible evidence, because Plaintiff cannot and has not laid the proper foundational proof
that it was ever maintained a secured interest in this particular property.
14
15
I. That the plaintiff U.S. BANK has a secured interest in deed of trust which was
16
assigned, acknowledged and recorded pursuant to Civil Code section 2932.5.
17
18 II. That the power of sale regarding the subject property was correctly performed under
19 California Code of Civil Procedure section 2924, and that the secured interest of the current
beneficiary has been properly acknowledged and recorded.
20
21
III. That there was proper acknowledgement and recordation of the Receiver’s Deed which
22
vests the new beneficiary with the power of sale pursuant to Civil Code section 2932.5.
23
24 IV. That there is a Receiver Deed recorded by plaintiff U.S. BANK regarding this subject
25 property.

• Evidence Code section 115 provides: “ ‘Burden of proof’ means the
27 obligation of a party to establish by evidence a requisite degree of belief
concerning a fact in the mind of the trier of fact or the court. The burden
20
of proof may require a party to raise a reasonable doubt concerning the
1 existence or nonexistence of a fact or that he establish the existence or
nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a
2 reasonable doubt. Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the
evidence.”
3 • Evidence Code section 500 provides: “Except as otherwise provided by law, a party has the burden of proof as to
each fact the existence or nonexistence of which is essential to the claim for relief or defense that
he is asserting.”
4 • Each party is entitled to the benefit of all the evidence, including the evidence produced by an adversary. (Williams
v. Barnett (1955) 135
5 Cal.App.2d 607, 612 [287 P.2d 789]; 7 Witkin, California Procedure (4th ed. 1997) Trial, § 305, p. 352.)
• The general rule in California is that “ ‘[i]ssues of fact in civil cases are determined by a preponderance of
testimony.’ ” (Weiner v. Fleischman(1991) 54 Cal.3d 476, 483 [286 Cal.Rptr. 40, 816 P.2d 892], citation
6 omitted.)
• The preponderance-of-the-evidence standard “simply requires the trier of fact ‘to believe that the existence of a fact
7 is more probable than its nonexistence.’ ” (In re Angelia P. (1981) 28 Cal.3d 908, 918 [171 Cal.Rptr. 637, 623 P.2d
198], citation omitted.)
8 • “Preponderance of the evidence” “ ‘means what it says, viz., that the evidence on one side outweighs,
preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or
quantity, but in its effect on those to whom it is addressed.’ ” (Glage v.Hawes Firearms Co. (1990) 226 Cal.App.3d
9 314, 325 [276 Cal.Rptr. 430] (quoting People v. Miller (1916) 171 Cal. 649, 652 [154 P. 468] and holding that it was
prejudicial misconduct for jurors to refer to the dictionary for definition of the word “preponderance”).)
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1 201. More Likely True—Clear and Convincing Proof
Page 1 of 1
2
Certain facts must be proved by clear and convincing evidence, which is a higher burden of
3
proof. This means the party must persuade you that it is highly probable that the fact is true. I
4
will tell you specifically which facts must be proved by clear and
5 convincing evidence.
6 I. In order for plaintiff U.S. BANK to own the subject property due to the trustee sale,
7 they must prove that they have the power of sale, as the new beneficiary, pursuant to California
Civil Code Section 2932.5. The sole evidence being offered by Plaintiff is the Trustee’s Deed
8
After Sale, which is inadmissible evidence, because Plaintiff cannot and has not laid the proper
9
foundational proof that it was ever maintained a secured interest in this particular property.
10
A. That U.S Bank, under California Civil Code 2932.5, can prove that the
11 assignment was properly acknowledged and recorded.
12 B. That U.S. Bank is indeed the record owner.
13 C. That U.S. Bank can prove the proper foundational proof that they maintained a
secured interest in this property.
14
D. That U.S. Bank can provide clear and convincing proof that the FDIC conveyed
15
a Receiver’s Deed to U.S. Bank and that this Deed was recorded and acknowledge.
California Civil Code section 2932.5 provides that the assignee of a negotiable secured instrument may exercise the
17 power of sale provided the assignment was properly acknowledged and recorded.
Proper acknowledgement and recordation of the Receiver’s Deed vests the new beneficiary with the power of sale
18 pursuant to Civil Code section 2932.5.
Evidence Code section 115 provides: “ ‘Burden of proof’ means the obligation of a party to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may
19 require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the
existence or nonexistence of a fact by preponderance of the evidence, by clear and convincing proof, or by proof
20 beyond a reasonable doubt. [¶] Except as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence.”
“Proof by clear and convincing evidence is required ‘where particularly important individual interests or rights are at
21 stake,’ such as the termination of parental rights, involuntary commitment, and deportation. However, ‘imposition of
even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of
22 the evidence.’ ” (Weiner v. Fleischman (1991) 54 Cal.3d 476, 487 [286 Cal.Rptr. 40, 816 P.2d 892] (quoting Herman
& MacLean v. Huddleston (1983) 459 U.S. 375, 389–390).)
23
• “ ‘Clear and convincing’ evidence requires a finding of high probability.” (In re Angelia P. (1981) 28 Cal.3d 908, 919
[171 Cal.Rptr. 637, 623 P.2d 198].)
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1 204. Willful Suppression of Evidence
Page 1 of 1
2
You may consider whether one party intentionally concealed or destroyed evidence. If you
3 decide that a party did so, you may decide that the evidence would have been unfavorable to
that party.
4
5 The sole evidence being offered by Plaintiff is the Trustee’s Deed After Sale, which is
inadmissible evidence, because Plaintiff cannot and has not laid the proper foundational proof
6 that it was ever maintained a secured interest in this particular property.
7 I. That plaintiff U.S. BANK did not convey whether it had or had not a secured interest in
this property.
8
9 II. That plaintiff U.S. BANK suppressed evidence that they had no secure interest in this
property and still recorded the Trustee’s Deed After Sale.
10

Evidence Code section 413 provides: “In determining what inferences to draw from the evidence or facts in the case
12 against a party, the trier of fact may consider, among other things, the party’s failure to explain or to
deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating
thereto, if such be the case.”
13
• Former Code of Civil Procedure section 1963(5) permitted the jury to infer “[t]hat the evidence willfully suppressed
14 would be adverse if produced.” Including this inference in a jury instruction on willful suppression is proper because
“Evidence Code section 413 was not intended as a change in the law.” (Bihun v. AT&T Information Systems,
Inc. (1993) 13 Cal.App.4th 976, 994 [16 Cal.Rptr.2d 787], disapproved of on other grounds in Lakin v. Watkins
15 Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)
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1 5000. Duties of the Judge and Jury
Page 1 of 2
2
Members of the jury, you have now heard all the evidence [and the closing arguments
3 of the attorneys]. [The attorneys will have one last chance to talk to you in closing argument.
But before they do, it] [It] is my duty to instruct you on the law that applies to this case. You
4
must follow these instructions [as well as those that I previously gave you]. You will have a
5 copy of my instructions with you when you go to the jury room to deliberate. [I have provided
each of you with your own copy of the instructions.] [I will display each instruction on the
6 screen.]
7 You must decide what the facts are. You must consider all the evidence and then decide
what you think happened. You must decide the facts based on the evidence admitted in this
8
trial. Do not do any research on your own or as a group. Do not use
9 dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct
any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or
10 lawyer. Do not visit or view the scene of any event involved in this
case. If you happen to pass by the scene, do not stop or investigate.
11
All jurors must see or hear the same evidence at the same time. [Do not read, listen to,
12
or watch any news accounts of this trial.] You must not let bias, sympathy, prejudice, or public
13 opinion influence your decision.
14 I will now tell you the law that you must follow to reach your verdict. You must follow
the law exactly as I give it to you, even if you disagree with it. If the attorneys [have said/say]
15 anything different about what the law means, you must follow what I say.
In reaching your verdict, do not guess what I think your verdict should be from something I
16
may have said or done.
17
Pay careful attention to all the instructions that I give you. All the instructions are
18 important because together they state the law that you will use in this case. You must consider
all of the instructions together. After you have decided what the facts are, you may find that
19 some instructions do not apply. In that case, follow the instructions that
do apply and use them together with the facts to reach your verdict.
20
21 If I repeat any ideas or rules of law during my instructions, that does not mean that these
ideas or rules are more important than the others. In addition, the order in which the
22 instructions are given does not make any difference. [Most of the instructions are typed.
However, some handwritten or typewritten words may have been added, and some words may
23 have been deleted. Do not discuss or consider why words may have
been added or deleted. Please treat all the words the same, no matter what their format.
24
Simply accept the instruction in its final form.]
25
• Code of Civil Procedure section 608 provides that “[i]n charging the jury the court may state to them all matters of
26 law which it thinks necessary for their information in giving their verdict.” It also provides that the
court “must inform the jury that they are the exclusive judges of all questions of fact.” (See also Code Civ. Proc., §
27 592.)
24
• Evidence Code section 312(a) provides that “[e]xcept as otherwise provided by law, where the trial is by jury [a]ll
1 questions of fact are to be decided by the jury.”
2 • An instruction to disregard any appearance of bias on the part of the judge is proper. (Gist v. French (1955) 136
Cal.App.2d 247, 257–259 [288 P.2d 1003], disapproved on other grounds in Deshotel v. Atchinson,
3 Topeka & Santa Fe Ry. Co. (1958) 50 Cal.2d 664, 667 [328 P.2d 449] and West v. City of San Diego (1960) 54
Cal.2d 469, 478–479 [6 Cal.Rptr. 289, 353 P.2d 929].)
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1
5002. Evidence
2 Page 1 of 2
3 Sworn testimony, documents, or anything else may be admitted into evidence. You
4 must decide what the facts are in this case from the evidence you have seen or heard during the
trial, including any exhibits that I admit into evidence. You may not consider as evidence
5
anything that you saw or heard when court was not in session, even something done or said by
6
one of the parties, attorneys, or witnesses.
7
What the attorneys say during the trial is not evidence. In their opening statements and
8 closing arguments, the attorneys talk to you about the law and the evidence. What the lawyers
9 say may help you understand the law and the evidence, but their statements
10 and arguments are not evidence. The attorneys’ questions are not evidence. Only the
witnesses’ answers are evidence. You should not think that something is true just because an
11
attorney’s question suggested that it was true.
12
[However, the attorneys for both sides have agreed that certain facts are true. This agreement is
13
called a stipulation. No other proof is needed and you must accept those facts as true in this
14 trial.]
15 Each side had the right to object to evidence offered by the other side. If I sustained an
16 objection to a question, you must ignore the question. If the witness did not answer, you must
not guess what he or she might have said or why I sustained the objection. If the witness
17
already answered, you must ignore the answer.
18
[During the trial I granted a motion to strike testimony that you
19
heard. You must totally disregard that testimony. You must treat it
20 as though it did not exist.]
21
22 • Evidence Code section 140 defines “evidence” as “testimony, writings, material objects, or other things presented to
the senses that are offered to prove the existence or nonexistence of a fact.”
23 Except as otherwise provided by law, where the trial is by jury:
(a) All questions of fact are to be decided by the jury.
24 (b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it,
including the credibility of witnesses and hearsay declarants.
25 A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed by reason of
the erroneous admission of evidence unless:
26 (a) There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so
27 stated as to make clear the specific ground of the objection or
motion; and
26
(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should
1 have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of
justice.
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5006. Nonperson Party
2 Page 1 of 1
3 A corporation/partnership [U.S. BANK], is a party in this lawsuit. U.S. BANK is

entitled to the same fair and impartial treatment that you would give to an individual. You must
4 decide this case with the same fairness that you would use if you were deciding the case
between individuals. When I use words like “person” or “he” or “she” in these
5
instructions to refer to a party, those instructions also apply to U.S. BANK.
6
8 • Corporations Code section 207 provides that a corporation “shall have all of the powers of a natural person in carrying out its
business activities.”
Civil Code section 14 defines the word “person,” for purposes of that code, to include corporations as well as natural persons.
9 • As a general rule, a corporation is considered to be a legal entity that has an existence separate from that of its shareholders.
(Erkenbrecher v.
10 Grant (1921) 187 Cal. 7, 9 [200 P. 641].)
11 • “In general, any person or entity has capacity to sue or defend a civil action in the California courts. This includes artificial
12 ‘persons’ such as corporations, partnerships and associations.” (American Alternative Energy Partners II, 1985 v. Windridge,
13 Inc. (1996) 42 Cal.App.4th 551, 559
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1 DISPOSITION TABLE
2
Instruction / REQUESTED BY Given As Refused Withdrawn Print
3
Special Verdict # Date
4
100 Pltf Def. Crt. Oth. Name(s) Req. Mod. 12/2007
5
101 2/2007
6
4300 8/2007
7
106 2/2005
8
200 2/2005
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201
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204
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5000 2/2005
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5002
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5006
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DATED: October 5, 2010 LAW OFFICES OF TIMOTHY L. MCCANDLESS
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By: _________________________________
25 Attorneys for Defendant
ANTHONY J. MARTIN
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Final Request For Jury Instructions

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Final Request For Jury Instructions

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1 Timothy L. McCandless, Esq.

13 Second sentence: paraphrased language of Civil Code subsection 2924b(b)(1).

18 sale, whether the original one or a postponed one.

2 California’s banking law regulates federally-chartered banks, except in a few areas

2 100 – Preliminary Admonitions

3 This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,

22 This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,

24 Sources and Authority

26 Sources and Authority

11 Sources and Authority

3 A corporation/partnership [U.S. BANK], is a party in this lawsuit. U.S. BANK is

7 Sources and Authority

13 Inc. (1996) 42 Cal.App.4th 551, 559

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