Preview
Electronically Received: 5/24/2022 10:31 AM
FILED
KERN COUNTY SUPERIOR COURT
1 William L. Alexander (State Bar Number 126607) 06/03/2022
Elizabeth Estrada (State Bar Number 232302) Urena, Veronica
BY _______________________
2 Alexander & Associates, PLC DEPUTY
3 1925 G Street
Bakersfield, CA 93301
4 Phone: (661) 316-7888
Email: walexander@alexander-law.com; elizabeth@alexander-law.com
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Attorneys for defendants Thomas H. Fry and Ruth M. Fry
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as Trustees of the T&R Fry Family Trust
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN – METROPOLITAN DIVISION
10 BIG WASHINGTON, LLC, a California Limited ) Case No. BCV-17-102341-BCB
Liability Company, )
11 ) [PROPOSED] ORDER
Plaintiff, )
12
) Assigned to: Hon. Bernard C. Barmann
13 vs. ) Div.: H
)
14 BENHONG (AMERICA) RECYCLING CO. )
LTD, a California Limited Liability Company; )
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and THOMAS H. FRY and RUTH M. FRY as )
16 Trustees of the T & R FRY FAMILY TRUST; ) Action Filed: October 2, 2017
and DOES 1 – 100, inclusive, ) Trial Date: June 6, 2022
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Defendants. )
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21 The motion of defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T&R Fry Family
22 Trust, for summary adjudication came regularly before the Court on April 29, 2022 at 8:30 a.m. in
23 Division H of the Kern County Superior Court, the Honorable Bernard C. Barmann, Jr. presiding.
24 Richard Jacobs appeared on behalf of Big Washington, LLC, and Elizabeth Estrada appeared on behalf
25 of defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T&R Fry Family Trust.
26 Upon consideration of all moving and opposing papers and arguments submitted on the
27 motion, the Court finds as follows:
28
Alexander & Associates
1
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
[PROPOSED] ORDER ON FRYS’ MOTION FOR SUMMARY ADJUDICATION
1 As to the First Cause of Action for Breach of Contract and the Second Cause of Action for
2 Breach of the Implied Covenant of Good Faith and Fair Dealing Alleged in Plaintiff’s
3 Complaint:
4 1. There is no triable issue of material fact that plaintiff’s predecessor-in-interest, Calcot, Ltd.,
5 and the Fry defendants entered into a written lease agreement for the lease of warehouses for
6 the storage of agricultural plastic. (Plaintiff’s Separate Statement of Undisputed Material Facts
7 [“Plaintiff’s UMF”], Fact Nos. 1, 2, and 13; Defendants’ Additional Undisputed Material Facts
8 [“Defendants’ AUMF”], Fact No. 2.)
9 2. There is no triable issue of fact that the lease agreement was terminated by Calcot, Ltd. and
10 forfeited on or about December 11, 2015. (Defendants’ AUMF, Fact No. 11.)
11 3. There is no triable issue of material fact that the written lease agreement and the written
12 amendment thereto contain no provision requiring the Fry defendants to remove the
13 agricultural plastics from the leased premises. (Defendants’ Separately Bound Volume of
14 Evidence [“Defendants’ SBVE”], Exhs. F & G.)
15 4. Based upon the foregoing undisputed material facts, the Fry defendants have met their burden
16 under Code of Civil Procedure, Section 473, subdivision (c), that they are entitled to
17 adjudication as a matter of law that they owed no contractual duty to remove the agricultural
18 plastic, and their motion for summary adjudication is granted as to the first and second causes
19 of action.
20 As to the Third Cause of Action for Trespass and the Fourth Cause of Action for Nuisance
21 Alleged in Plaintiff’s Complaint:
22 5. The Fry defendants have failed to meet their burden under Code of Civil Procedure, Section
23 473c, subdivision (c), that there is no triable issue of material fact and that they are entitled to
24 adjudication as a matter of law. There remains a triable issue of material fact as to the extent
25 of Calcot’s consent regarding the continued storage of agricultural plastic on the leased
26 premises and whether all conditions upon which such consent may have been based were met.
27 (Defendants’ AUMF, Fact Nos. 12, 18, 21-22, & 25-26.)
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Alexander & Associates
2
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
[PROPOSED] ORDER ON FRYS’ MOTION FOR SUMMARY ADJUDICATION
1 6. Based on the foregoing finding, defendants’ motion for summary adjudication on the issue of
2 duty to remove the agricultural plastics under the third and fourth causes of action is denied.
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5 DATED: Signed: 6/3/2022 03:37 PM
HON. BERNARD C. BARMANN, JR., Judge
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Kern County Superior Court
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Alexander & Associates
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Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
[PROPOSED] ORDER ON FRYS’ MOTION FOR SUMMARY ADJUDICATION
Preview
Electronically Received: 5/24/2022 10:31 AM FILED KERN COUNTY SUPERIOR COURT 1 William L. Alexander (State Bar Number 126607) 06/03/2022 Elizabeth Estrada (State Bar Number 232302) Urena, Veronica BY _______________________ 2 Alexander & Associates, PLC DEPUTY 3 1925 G Street Bakersfield, CA 93301 4 Phone: (661) 316-7888 Email: walexander@alexander-law.com; elizabeth@alexander-law.com 5 Attorneys for defendants Thomas H. Fry and Ruth M. Fry 6 as Trustees of the T&R Fry Family Trust 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN – METROPOLITAN DIVISION 10 BIG WASHINGTON, LLC, a California Limited ) Case No. BCV-17-102341-BCB Liability Company, ) 11 ) [PROPOSED] ORDER Plaintiff, ) 12 ) Assigned to: Hon. Bernard C. Barmann 13 vs. ) Div.: H ) 14 BENHONG (AMERICA) RECYCLING CO. ) LTD, a California Limited Liability Company; ) 15 and THOMAS H. FRY and RUTH M. FRY as ) 16 Trustees of the T & R FRY FAMILY TRUST; ) Action Filed: October 2, 2017 and DOES 1 – 100, inclusive, ) Trial Date: June 6, 2022 17 ) Defendants. ) 18 ) 19 ) ) 20 21 The motion of defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T&R Fry Family 22 Trust, for summary adjudication came regularly before the Court on April 29, 2022 at 8:30 a.m. in 23 Division H of the Kern County Superior Court, the Honorable Bernard C. Barmann, Jr. presiding. 24 Richard Jacobs appeared on behalf of Big Washington, LLC, and Elizabeth Estrada appeared on behalf 25 of defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T&R Fry Family Trust. 26 Upon consideration of all moving and opposing papers and arguments submitted on the 27 motion, the Court finds as follows: 28 Alexander & Associates 1 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 [PROPOSED] ORDER ON FRYS’ MOTION FOR SUMMARY ADJUDICATION 1 As to the First Cause of Action for Breach of Contract and the Second Cause of Action for 2 Breach of the Implied Covenant of Good Faith and Fair Dealing Alleged in Plaintiff’s 3 Complaint: 4 1. There is no triable issue of material fact that plaintiff’s predecessor-in-interest, Calcot, Ltd., 5 and the Fry defendants entered into a written lease agreement for the lease of warehouses for 6 the storage of agricultural plastic. (Plaintiff’s Separate Statement of Undisputed Material Facts 7 [“Plaintiff’s UMF”], Fact Nos. 1, 2, and 13; Defendants’ Additional Undisputed Material Facts 8 [“Defendants’ AUMF”], Fact No. 2.) 9 2. There is no triable issue of fact that the lease agreement was terminated by Calcot, Ltd. and 10 forfeited on or about December 11, 2015. (Defendants’ AUMF, Fact No. 11.) 11 3. There is no triable issue of material fact that the written lease agreement and the written 12 amendment thereto contain no provision requiring the Fry defendants to remove the 13 agricultural plastics from the leased premises. (Defendants’ Separately Bound Volume of 14 Evidence [“Defendants’ SBVE”], Exhs. F & G.) 15 4. Based upon the foregoing undisputed material facts, the Fry defendants have met their burden 16 under Code of Civil Procedure, Section 473, subdivision (c), that they are entitled to 17 adjudication as a matter of law that they owed no contractual duty to remove the agricultural 18 plastic, and their motion for summary adjudication is granted as to the first and second causes 19 of action. 20 As to the Third Cause of Action for Trespass and the Fourth Cause of Action for Nuisance 21 Alleged in Plaintiff’s Complaint: 22 5. The Fry defendants have failed to meet their burden under Code of Civil Procedure, Section 23 473c, subdivision (c), that there is no triable issue of material fact and that they are entitled to 24 adjudication as a matter of law. There remains a triable issue of material fact as to the extent 25 of Calcot’s consent regarding the continued storage of agricultural plastic on the leased 26 premises and whether all conditions upon which such consent may have been based were met. 27 (Defendants’ AUMF, Fact Nos. 12, 18, 21-22, & 25-26.) 28 Alexander & Associates 2 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 [PROPOSED] ORDER ON FRYS’ MOTION FOR SUMMARY ADJUDICATION 1 6. Based on the foregoing finding, defendants’ motion for summary adjudication on the issue of 2 duty to remove the agricultural plastics under the third and fourth causes of action is denied. 3 4 5 DATED: Signed: 6/3/2022 03:37 PM HON. BERNARD C. BARMANN, JR., Judge 6 Kern County Superior Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alexander & Associates 3 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 [PROPOSED] ORDER ON FRYS’ MOTION FOR SUMMARY ADJUDICATION