Motion-Secondary: BIG WASHINGTON, LLC VS FRY ET AL

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                                1    William L. Alexander (State Bar Number 126607)
                      Elizabeth Estrada (State Bar Number 232302)
                 2    Alexander & Associates, PLC
                 3    1925 G Street
                      Bakersfield, CA      93301
                 4    Phone: 661-316-7888
                      Email:    walexander@alexander-law.com; service@alexander-law.com
                 5
                 6    Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T & R Fry Family Trust

                 7
                 8                            SUPERIOR COURT OF THE STATE OF CALIFORNIA

                 9                              COUNTY OF KERN – METRO JUSTICE BUILDING

                10     BIG WASHINGTON, LLC, a California                          )  Case No.     BCV-17-102341 BCB
                       Limited Liability Company,                                 )
                11
                                                                                  )  DEFENDANTS’ REPLY IN SUPPORT OF
                12                                      Plaintiff,                )  MOTION IN LIMINE 3:
                                                                                  )
                13     vs.                                                        )  BIFURCATION OF TRIAL
                                                                                  )
                14
                       BENHONG (AMERICA) RECYCLING CO.                            )  Assigned to:       Hon. Bernard C. Barmann, Jr.
                15     LTD, a California Limited Liability Company;               )  Div.:              H
                       and THOMAS H. FRY and RUTH M. FRY as                       )  Trial date:        December 5, 2022
                16     Trustees of the T & R FRY FAMILY TRUST;                    )  Time:              9:00 a.m.
                       and DOES 1 – 100, inclusive,                               )
                17                                                                )  Complaint Filed:       October 6, 2017
                18                                       Defendants.              )
                                                                                  )
                19                                                                )
                20             As   Big   Washington      has  agreed   that  the   punitive   damage     portion   of  the  trial should    be
                21    bifurcated, defendants, Thomas H. Fry and Ruth M. Fry, as Trustees of the T&R Fry Family Trust
                22    reply only to the matter of trying the issue of consent first.
                23                                                        ARGUMENT
                24                                                                 I
                25       THE COURT HAS THE DISCRETION TO HEAR THE ISSUE OF CONSENT BEFORE
                26       ANY OTHER ISSUE, AS IT MAY SUBSTANTIALLY REDUCE THE TIME OF TRIAL.
                27              It is well within this Court’s discretion to determine the order of proceedings and to fashion to
                28     trial in a manner that promotes economy and efficiency.               (Code Civ. Proc., § 598.)        In this case for

                                                                                   1
     Alexander & Associates
       Attorneys at Law
        1925 G Street
     Bakersfield, CA 93301
       (661) 316-7888
                              DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 – BIFURCATION OF TRIAL
                 1     trespass and nuisance,      consent is the primary issue.        It is an element of trespass and an affirmative
                 2     defense to nuisance.      A finding of consent would eliminate any need to present evidence of liability
                 3     or damages to the jury, thereby promoting economy and efficiency.
                 4              Again,   there  is no  dispute   as  to the  facts  pertaining   to  the issue  of  consent.    Jarral  Neeper
                 5     testified that Calcot allowed the Fry defendants to continue storing the Plastic on the Property after
                 6     the Fry defendants’ lease was terminated because Benhong was purchasing both the Plastic and the
                 7     Property.    Big Washington has admitted that Benhong was a tenant at the Property for a short period
                 8     of  time  after  Benhong     purchased     the  Plastic  from   the  Fry  defendants,    and   that  Calcot   permitted
                 9     Benhong to store the Plastic on the Property during Benhong’s short tenancy.                  These three facts alone
                10     prove   that Calcot   consented    to  the Fry  defendants’     continued   storage   of  the Plastic  at the  Property
                11     through    Benhong’s     purchase    of  the  Plastic,  at which    point,  Calcot   then   consented    to Benhong’s
                12     tenancy at the Property for purposes of storage of Benhong’s Plastic.                  Big Washington cannot now
                13     peg the tenant preceding Benhong for Benhong’s abandonment of the Plastic.
                14              Because there are no facts in dispute pertaining to consent, it is an issue of law that the trial
                15     court may determine without submission to the jury, thereby preserving time and judicial resources.
                16                                                       CONCLUSION
                17              If this Court determines, as is expected, that Calcot consented to the Fry Defendants’ conduct,
                18     there  can  be  no  liability  against   the Fry   Defendants    and   the  Court   may   altogether   avoid   issues  of
                19     compensatory and punitive damages.            On these grounds, the Fry Defendants respectfully request that
                20    the Court bifurcate the issue of consent and hear it first.
                21
                22    DATED:      November 30, 2022                         ALEXANDER & ASSOCIATES, PLC
                23
                24                                                  By:      /s/ William L. Alexander /s/
                                                                             WILLIAM L. ALEXANDER
                25                                                           Attorneys for Defendants, Thomas H. Fry
                                                                             and Ruth M. Fry as Trustees of the
                26                                                           T & R Fry Family Trust
                27
                28

                                                                                   2
     Alexander & Associates
       Attorneys at Law
        1925 G Street
     Bakersfield, CA 93301
       (661) 316-7888
                              DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 – BIFURCATION OF TRIAL