CACI JURY INSTRUCTIONS

4300. Introductory Instruction

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 Downey no longer maintained a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.

GIVEN: ____________

Given as modified: ____________

Refused: ______________
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.”
200. Obligation to Prove—More Likely True Than Not True

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.
GIVEN: ____________

Given as modified: ____________

Refused: ______________
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
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”).)
201. More Likely True—Clear and Convincing Proof

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.

GIVEN: ____________

Given as modified: ____________

Refused: ______________

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].)
204. Willful Suppression of Evidence

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.

GIVEN: ____________

Given as modified: ____________

Refused: ______________

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].)
5000. Duties of the Judge and Jury

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.]

GIVEN: ____________

Given as modified: ____________

Refused: ______________

Sources and Authority

• 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].)
5002. Evidence

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.]

GIVEN: ____________

Given as modified: ____________

Refused: ______________

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.
5006. Nonperson Party

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.

GIVEN: ____________

Given as modified: ____________

Refused: ______________

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 [49 Cal.Rptr.2d 686], internal citations omitted.)