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Timothy L. McCandless, Esq. (SBN 147715) THE LAW OFFICES OF TIMOTHY MCCANDLESS 1881 Business Center Drive, Suite 9A San Bernardino, CA 92408 Phone: Fax: (909) 890-9192 (909) 382-9956

Counsel for Defendant, Anthony J. Martin

SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF STANISLAUS STANISLAUS JUDICIAL DISTRICT/ MODESTO COURTHOUSE LIMITED JURISDICTION/ UNLAWFUL DETAINER U. S. BANK NATIONAL ASSOCIATION etc., Plaintiff, v. ANTHONY J. MARTIN, Defendants.
) Case No.: 64 50 68 ) ) ) DEFENDANT ANTHONY J. ) MARTIN’S REQUEST FOR JURY ) INSTRUCTIONS ) [CCP §§ 607a, 608, & 609; CRC Rules ) 3.1580, 2.1050.2.1055 & 2.1058.] ) ) ) ) DATE: Oct. 6, 2010 ) ) TIME: 8:30 a.m. ) DEPT: D-21 ) ) ) )

CACI JURY INSTRUCTIONS 100. Preliminary Admonitions
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You have now been sworn as jurors in this case. I want to impress on you the seriousness and importance of serving on a jury. Trial by jury is a fundamental right in California. The parties have a right to a jury that is selected fairly, that comes to the case without bias, and that will 1
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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. Do not allow anything that happens outside this courtroom to affect your decision. During the trial do not talk about this case or the people involved in it with anyone, including family and persons living in your household, friends and co-workers, spiritual leaders, advisors, or therapists. This prohibition is not limited to face-to-face conversations. It also extends to all forms of electronic communications. Do not use any electronic device or media, such as a cell phone or smart phone, PDA, computer, the Internet, any Internet service, any text 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 about this case or your experience as a juror until after you have been discharged from your jury duty. You may say you are on a jury and how long the trial may take, but that is all. You must not even talk about the case with the other jurors until after I tell you that it is time for you to decide the case. During the trial you must not listen to anyone else talk about the case or the people Involved in the case. You must avoid any contact with the parties, the lawyers, the witnesses, and anyone else who may have a connection to the case. If anyone tries to talk to you about this case, tell that person that you cannot discuss it because you are a juror. If he or she keeps talking to you, simply walk away and report the incident to the court [attendant/bailiff] as soon as you can. After the trial is over and I have released you from jury duty, you may discuss the case with anyone, but you are not required to do so. During the trial, do not read, listen to, or watch any news reports about this case. [I have no information that there will be news reports concerning this case.] This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program or device to search for or to view any place discussed in the testimony. You must decide this case based only on the evidence presented in this trial and the instructions of law that I will provide. Nothing that you see, hear, or learn outside this courtroom is evidence unless I specifically tell you it is. If you receive any information about this case from any source outside of the courtroom, promptly report it to the court [attendant/bailiff]. It is important that all jurors see and hear the same evidence at the same time. Do not do any research on your own or as a group. Do not use 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 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. If you do need to view the scene during the trial, you will be taken there as a group under proper supervision. It is important that you keep an open mind throughout this trial. Evidence can only be presented a piece at a time. Do not form or express an opinion about this case while the trial is going on. You must not decide on a verdict until after you have heard all the evidence and have discussed it thoroughly with your fellow jurors in your deliberations. Do not concern yourselves with the reasons for the rulings I will make during the course of the trial. Do not guess what I may think your verdict should be from anything I might say or do. 2
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When you begin your deliberations, you may discuss the case only in the jury room and only when all the jurors are present. You must decide what the facts are in this case. And, I repeat, your verdict must be based only on the evidence that you hear or see in this courtroom. Do not let bias, sympathy, prejudice, or public opinion influence your verdict. At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law.
Sources and Authority • 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 the jury that they are the exclusive judges of all questions of fact.” (See also Evid. Code, § 312; Code Civ. Proc., § 592.) • 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 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 [224 P.2d 808]; Walter v. Ayvazian (1933) 134 Cal.App. 360, 365 [25 P.2d 526].) • 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].) • 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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101. Overview of Trial
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To assist you in your tasks as jurors, I will now explain how the trial will proceed. US. 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. 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 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 the presentation of the evidence. Next, the jury will hear the evidence. U.S. BANK will present its evidence first. When U.S. BANK is finished, ANTHONY J.MARTIN will have an opportunity to present his evidence. Each witness will first be questioned by the side that asked the witness to testify. This is called direct examination. Then the other side is permitted to question the witness. This is called crossexamination. Documents or objects referred to during the trial are called exhibits. Exhibits are given a [number/letter] and marked so they may be clearly identified. Exhibits are not evidence until I admit them into evidence. During your deliberations, you will be able to look at all exhibits admitted into evidence. There are many rules that govern whether something will be considered evidence in the trial. As one side presents evidence, the other side has the right to object and to ask me to decide if the evidence is permitted by the rules. Usually, I will decide immediately, but sometimes I may have to hear arguments outside of your presence. After the evidence has been presented, I will instruct you on the law that applies to the 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 applies to it. In this case, PLAINTIFF U.S. BANK claims that they acquired the subject property at a 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 trustee sale because U.S. BANK never had the power of sale to proceed with the foreclosure.
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 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.” • Code of Civil Procedure section 607 provides: When the jury has been sworn, the trial must proceed in the following order, unless the court, for special reasons otherwise directs: 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;

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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; 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; 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; 8. If several defendants having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument; 9. The court may then charge the jury.

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102. Taking Notes During the Trial
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You have been given notebooks and may take notes during the trial. Do not take the notebooks out of the courtroom or jury room at any time during the trial. You may take your notes into the jury room during deliberations. You should use your notes only to remind yourself of what happened during the trial. Do not let your note-taking interfere with your ability to listen carefully to all the testimony and to watch the witnesses as they testify. Nor should you allow your impression of a witness or other evidence to be influenced by whether or not other jurors are taking notes. Your independent recollection of the evidence should govern your verdict, and you should not allow yourself to be influenced by the notes of other jurors if those notes differ from what you remember. [The court reporter is making a record of everything that is said. If during deliberations you have a question about what the witness said, you should ask that the court reporter’s records be read to you. You must accept the court reporter’s record as accurate.] At the end of the trial, your notes will be [collected and destroyed/ collected and retained by the court but not as a part of the case record.
Sources and Authority • Rule 2.1031 of the California Rules of Court provides: “Jurors must be permitted to take written notes in all civil and criminal trials. At the beginning of a trial, a trial judge must inform jurors that they may take for this purpose.” • “Because of [the risks of note-taking], a number of courts have held that a cautionary instruction is required. For example, [one court] held that the instruction should include ‘an explanation . . . that [jurors] should not permit their note-taking to distract them from the ongoing proceedings; that their notes are only an aid to their memory and should not take precedence over their independent recollection; that those jurors who do not take notes should rely on their independent recollection of the evidence and not be influenced by the fact that another juror has taken notes; and that the notes are for the note taker’s own personal use in refreshing his recollection of the evidence. The jury must be reminded that should any discrepancy exist between their recollection of the evidence and their notes, they should request that the record of the proceedings be read back and that it is the transcript that must prevail over their notes.’ ” (People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161], internal citations and footnote omitted.)

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4300. Introductory Instruction
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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 the home in which the defendant lives. The subject property is located at 1312 Harbour Town Lane, Modesto, California. The Plaintiff is seeking an order of this court permitting it to evict Defendant. In addition, the plaintiff is acting on behalf of U.S. BANK. In this case, there was a change of beneficiary on November 11, 2008 when the FDIC seized the assets of Downey Savings and sold them to plaintiff U.S. BANK. Downey no longer maintained a secured interest in this subject property. Therefore, whatever interest had been vested in Downey Savings in the Subject Property was vested in U.S. Bank, N.A., by virtue of a Receiver’s Deed conveyed by the FDIC. Because of the FDIC take over, the FDIC issues Receiver Deeds for all real property sold in order that the new beneficiary, [in this case plaintiff U.S. BANK] may assert its secured interest by recording the new Receiver’s Deed. For the purposes of this case and these instructions, plaintiff’s predecessor in interest is DOWNEY SAVINGS BANK, F.A. Plaintiff U.S. BANK took over DOWNEY SAVINGS BANK F.A.’s real property portfolio because as of May 15, 2009, the transfer of all DOWNEY’S assets to PLAINTIFF U.S. BANK became final.
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 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 manner as other trial juries in an action of the same jurisdictional classification in the Court in which the action is pending.”

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106. Evidence
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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. You may not consider as evidence anything that you see or hear when court is not in session, even something done or said by one of the parties, attorneys, or witnesses. What the attorneys say during the trial is not evidence. In their opening statements and closing arguments, the attorneys will talk to you about the law and the evidence. What the lawyers say may help you understand the law and the evidence, but their statements 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 attorney’s question suggests that it is true. However, the attorneys for both sides can agree that certain facts are true. This agreement is called a “stipulation.” No other proof is needed and you must accept those facts as true in this trial. Each side has the right to object to evidence offered by the other side. If I do not agree 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 I agree with the objection, I will say it is sustained. If I sustain an objection, 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 has already answered, you must ignore the answer. There will be times when I need to talk to the attorneys privately. Do not be concerned 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 testimony. You must treat it as though it did not exist.
Sources and Authority • 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.” • Evidence Code section 312 provides: Except as otherwise provided by law, where the trial is by jury: (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 credibility of witnesses and hearsay declarants. • Evidence Code section 353 provides: 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: (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 as to make clear the specific ground of the objection or motion; and (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. • 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, 141–142 [199 P.2d 952].) • Courts have held that “attempts to suggest matters

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200. Obligation to Prove—More Likely True Than Not True
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A party must persuade you, by the evidence presented in court, that what he or she is required to prove is more likely to be true than not true. This is referred to as “the burden of proof.” After weighing all of the evidence, if you cannot decide that something is more likely to be true than not true, you must conclude that the party did not prove it. You should consider all the evidence, no matter which party produced the evidence. In criminal trials, the prosecution must prove that the defendant is guilty beyond a reasonable doubt. But in civil trials, such as this one, the party who is required to prove something need prove only that it is more likely to be true than not true. In this action, the plaintiff has the burden of establishing, by a preponderance of the evidence, all the facts necessary to prove the following issues: 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 that it was ever maintained a secured interest in this particular property. I. That the plaintiff U.S. BANK has a secured interest in deed of trust which was assigned, acknowledged and recorded pursuant to Civil Code section 2932.5. II. That the power of sale regarding the subject property was correctly performed

under California Code of Civil Procedure section 2924, and that the secured interest of the current beneficiary has been properly acknowledged and recorded. III. That there was proper acknowledgement and recordation of the Receiver’s Deed

which vests the new beneficiary with the power of sale pursuant to Civil Code section 2932.5. IV. That there is a Receiver Deed recorded by plaintiff U.S. BANK regarding this

subject property.
Sources and Authority • 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 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 a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” • 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

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he is asserting.” • Each party is entitled to the benefit of all the evidence, including the evidence produced by an adversary. (Williams v. Barnett (1955) 135 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 omitted.) • The preponderance-of-the-evidence standard “simply requires the trier of fact ‘to believe that the existence of a fact 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.) • “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 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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201. More Likely True—Clear and Convincing Proof
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Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you specifically which facts must be proved by clear and convincing evidence. I. In order for plaintiff U.S. BANK to own the subject property due to the trustee sale, 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 After Sale, which is 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. A. That U.S Bank, under California Civil Code 2932.5, can prove that the assignment was properly acknowledged and recorded. B. That U.S. Bank is indeed the record owner. C. That U.S. Bank can prove the proper foundational proof that they maintained a secured interest in this property. D. That U.S. Bank can provide clear and convincing proof that the FDIC conveyed a Receiver’s Deed to U.S. Bank and that this Deed was recorded and acknowledge.
Sources and Authority California Civil Code section 2932.5 provides that the assignee of a negotiable secured instrument may exercise the 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 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 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 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 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 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).) • “ ‘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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204. Willful Suppression of Evidence
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You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party. 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 that it was ever maintained a secured interest in this particular property. I. That plaintiff U.S. BANK did not convey whether it had or had not a secured interest in this property. 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.
Sources and Authority Evidence Code section 413 provides: “In determining what inferences to draw from the evidence or facts in the case 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.” • Former Code of Civil Procedure section 1963(5) permitted the jury to infer “[t]hat the evidence willfully suppressed 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 Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

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5000. Duties of the Judge and Jury
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Members of the jury, you have now heard all the evidence [and the closing arguments 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 must follow these instructions [as well as those that I previously gave you]. You will have a 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 screen.] 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 trial. Do not do any research on your own or as a group. Do not use 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 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. All jurors must see or hear the same evidence at the same time. [Do not read, listen to, or watch any news accounts of this trial.] You must not let bias, sympathy, prejudice, or public opinion influence your decision. 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] 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 may have said or done. Pay careful attention to all the instructions that I give you. All the instructions are 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 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. 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 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 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. Simply accept the instruction in its final form.]

Sources and Authority

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• Code of Civil Procedure section 608 provides that “[i]n charging the jury the court may state to them all matters of 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., § 592.) • Evidence Code section 312(a) provides that “[e]xcept as otherwise provided by law, where the trial is by jury [a]ll questions of fact are to be decided by the jury.” • 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, 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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5002. Evidence
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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 have seen or heard during the trial, including any exhibits that I admit into evidence. You may not consider as evidence anything that you saw or heard when court was not in session, even something done or said by one of the parties, attorneys, or witnesses. What the attorneys say during the trial is not evidence. In their opening statements and closing arguments, the attorneys talk to you about the law and the evidence. What the lawyers say may help you understand the law and the evidence, but their statements 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 attorney’s question suggested that it was true. [However, the attorneys for both sides have agreed that certain facts are true. This agreement is called a stipulation. No other proof is needed and you must accept those facts as true in this trial.] Each side had the right to object to evidence offered by the other side. If I sustained an 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 already answered, you must ignore the answer. [During the trial I granted a motion to strike testimony that you heard. You must totally disregard that testimony. You must treat it as though it did not exist.]
Sources and Authority • 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.” • Evidence Code section 312 provides: Except as otherwise provided by law, where the trial is by jury: (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 credibility of witnesses and hearsay declarants. • Evidence Code section 353 provides: 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: (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 as to make clear the specific ground of the objection or motion; and (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.

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REQUEST FOR JURY INSTRUCTIONS

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REQUEST FOR JURY INSTRUCTIONS

5006. Nonperson Party
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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 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 instructions to refer to a party, those instructions also apply to U.S. BANK. Sources and Authority
• 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. • 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. Grant (1921) 187 Cal. 7, 9 [200 P. 641].) • “In general, any person or entity has capacity to sue or defend a civil action in the California courts. This includes artificial ‘persons’ such as corporations, partnerships and associations.” (American Alternative Energy Partners II, 1985 v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 559 [

DATED: August 4, 2010

LAW OFFICES OF TIMOTHY L. MCCANDLESS By: _________________________________ Attorneys for Defendant ANTHONY J. MARTIN

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