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

• 
• 
• 
• 

						
                                
Preview
                                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                                                                )  REPLY IN SUPPORT OF DEFENDANTS’
                12                                      Plaintiff,                )  MOTION IN LIMINE 7:
                                                                                  )
                13     vs.                                                        )  EXCLUSION OF EVIDENCE RELATING
                                                                                  )  TO ANY ACTIONS OR PROCEEDINGS
                14     BENHONG (AMERICA) RECYCLING CO.                            )  BROUGHT BY ANY GOVERNMENTAL
                15     LTD, a California Limited Liability Company;               )  AGENCY AGAINST DEFENDANTS
                       and THOMAS H. FRY and RUTH M. FRY as                       )
                16     Trustees of the T & R FRY FAMILY TRUST;                    )  Assigned to:       Hon. Bernard C. Barmann, Jr.
                       and DOES 1 – 100, inclusive,                               )  Div.:              H
                17                                                                )  Trial date:        December 5, 2022
                18                                       Defendants.              )  Time:              9:00 a.m.
                                                                                  )
                19                                                                )  Complaint Filed:       October 6, 2017

                20             Big Washington, LLC included in its exhibit list the following documents:

                21         •   No. 14-Los Angeles Waterkeeper v. Community Recycling et al. – Complaint

                22         •   No.   15-Los    Angeles    Waterkeeper      v. Community       Recycling    et  al. -  Consent    Decree    and

                23             Judgment

                24             Although     it was   already   apparent    from   Big   Washington’s      deposition    testimony    that  Big

                25    Washington      hopes   to inflame   the  jury  with   baseless   accusations   that  the  Fry  defendants    are  serial

                26     environmental polluters, Big Washington removed any doubt when it included in its exhibit list the

                27     above-referenced complaint and consent decree.             The Los Angeles Waterkeeper case appears to allege

                28     that the Fry defendants violated the Clean Water Act and Stormwater Permit in relation to real property
                                                                                   1
     Alexander & Associates
       Attorneys at Law
        1925 G Street
                           DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 7 – EXCLUSION OF EVIDENCE OF
     Bakersfield, CA 93301
       (661) 316-7888
                                                                          PROCEEDINGS
                 1     previously utilized by the Fry defendants for storage of solid, green, and food wastes and recyclables.
                 2     In addition to this reply, the Fry Defendants are also filing a motion in limine to exclude the specific
                 3     exhibits listed above.
                 4                                                        ARGUMENT
                 5                                                                 I
                 6              ANY REFERENCE TO ANY PROCEEDING BROUGHT OR FILED BY ANY
                 7      GOVERNMENTAL AGENCY OR PRIVATE PARTY FOR CLEAN UP IS IRRELEVANT,
                 8                    PREJUDICIAL, AND ONLY INTENDED TO INFLAME THE JURY
                 9              The subject matter of this action is whether agricultural plastics on Big Washington’s property
                10     constitute   a trespass   or  nuisance,   and   whether    the  Fry  Defendants     caused   the  alleged   trespass   or
                11    nuisance.    There is zero evidence of pollution in this case, and zero evidence that there has been any
                12    violation of environmental laws.         Nevertheless, Big Washington hopes to cast the Fry Defendants as
                13    repeat pollution offenders.      There is no nexus between any alleged environmental wastes or pollutions
                14    and the subject matter of this action, and therefore, no probative value to any such evidence.                Allowing
                15    Big Washington to refer to the Resource Conservation and Recovery Act, or to any law pertaining to
                16    site clean-up, or to any lawsuit or proceeding filed against the Fry Defendants pertaining to violations
                17    of the Clean Water Act or Stormwater Permit, would only waste time and confuse or inflame the jury.
                18                                                       CONCLUSION
                19              Any   reference   to  any  proceeding     brought   against   the Fry   Defendants    by   any  governmental
                20    agency or private party relating to clean up or allegations of pollution is irrelevant to the issues in this
                21    case  and   intended    only  to  inflame    and  prejudice    the  jury.   For  that  reason,   all  such  references,
                22     argument, evidence, and/or testimony regarding any such proceedings should be excluded.
                23     DATED:      November 29, 2022                         ALEXANDER & ASSOCIATES, PLC
                24
                25                                                  By:      /s/ William L. Alexander /s/
                                                                             WILLIAM L. ALEXANDER
                26                                                           Attorneys for Defendants, Thomas H. Fry
                                                                             and Ruth M. Fry as Trustees of the
                27                                                           T & R Fry Family Trust
                28
                                                                                   2
     Alexander & Associates
       Attorneys at Law
        1925 G Street
                           DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 7 – EXCLUSION OF EVIDENCE OF
     Bakersfield, CA 93301
       (661) 316-7888
                                                                          PROCEEDINGS