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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 as 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 8:
)
13 vs. ) COURT’S DETERMINATION OF
) CONSENT AS A MATTER OF LAW
14 BENHONG (AMERICA) RECYCLING CO. )
15 LTD, a California Limited Liability Company; ) Assigned to: Hon. Bernard C. Barmann, Jr.
and THOMAS H. FRY and RUTH M. FRY as ) Div.: H
16 Trustees of the T & R FRY FAMILY TRUST; ) Trial date: December 5, 2022
and DOES 1 – 100, inclusive, ) Time: 9:00 a.m.
17 )
18 Defendants. ) Complaint Filed: October 6, 2017
)
19 )
20 The issue of consent can and should be determined by the Court rather than by jury because
21 there are no facts in dispute as to consent. An issue of fact becomes one of law and loses its “triable”
22 character if the undisputed facts leave no room for a reasonable difference of opinion. (Chateau
23 Chamberay Homeowners Ass’n v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 335, 345.)
24 Consent is the primary issue in this case because if Calcot consented to the Fry defendants’
25 conduct, there can be no liability for the only two remaining causes of action: nuisance and trespass.
26 In this case, it is entirely undisputed that the Fry defendants took possession of the property
27 pursuant to a written lease with Calcot, the express purpose of which was storage of the agricultural
28 plastic. (Decl. of E. Estrada, ¶ 4, Exhs. B & C.) In other words, the Fry defendants initially placed
1
Alexander & Associates
Attorneys at Law
1925 G Street
DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8
Bakersfield, CA 93301
(661) 316-7888
DETERMINATION OF CONSENT BY COURT
1 the plastic on the property with Calcot’s consent.
2 It is entirely undisputed that the Fry defendants leased the property until December 11, 2015,
3 when Calcot secured an unlawful detainer judgment terminating and forfeiting the lease. (Request for
4 Judicial Notice, ¶ 1, Exh. A.) In other words, the Fry defendants stored the plastic on the property
5 pursuant to a written lease agreement and with Calcot’s consent through December 11, 2015.
6 It is entirely undisputed that the December 11, 2015 unlawful detainer judgment does not
7 include an award of monetary damages, meaning that there was no allegation of unpaid rent. (Request
8 for Judicial Notice, ¶ 1, Exh. A.)
9 It is entirely undisputed that by December 11, 2015, Calcot had executed a letter of intent
10 agreeing to sell the property to Benhong, and that the letter of intent required Benhong to purchase the
11 plastic from the Fry defendants. For this reason, Calcot consented to the continued presence of the
12 plastic on its property pending the sale of the plastic to Benhong. (Decl. of E. Estrada, ¶ 3, Exh. A.)
13 It is entirely undisputed that Calcot was notified on January 13, 2016 that Benhong had
14 completed its purchase of the plastic, at which point Calcot consented to Benhong storing the plastic
15 at the property pending Benhong’s purchase of the property. (Decl. of E. Estrada, ¶ 4, Exhs. B & C.)
16 It also is undisputed that Benhong’s tenancy was short. But the duration of Benhong’s tenancy
17 is not legally significant. (Decl. of E. Estrada, ¶ 4, Exhs. B & C.)
18 The above facts make it clear that Calcot consented to the Frys’ conduct through January 13,
19 2016. Calcot only withdrew its consent after January 13, 2016, after Calcot allowed Benhong to
20 occupy the property with the plastic that Benhong had just purchased from the Fry Defendants.
21 Given Calcot’s clear consent to the actions of the Fry Defendants, there can be no acts of trespass or
22 nuisance by the Fry Defendants, and no damages under the theory of trespass or nuisance. Consent,
23 therefore, is an issue of law, not one of fact, and should be determined by the court.
24 CONCLUSION
25 The facts pertaining to the issue of consent are undisputed and therefore are no longer an issue
26 of fact, but an issue of law to be determined by the court. The court, therefore, should make the
27 determination on the issue of consent.
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2
Alexander & Associates
Attorneys at Law
1925 G Street
DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8
Bakersfield, CA 93301
(661) 316-7888
DETERMINATION OF CONSENT BY COURT
1 DATED: November 29, 2022 ALEXANDER & ASSOCIATES, PLC
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3 By: /s/ William L. Alexander /s/
WILLIAM L. ALEXANDER
4 Attorneys for Defendants, Thomas H. Fry
and Ruth M. Fry as Trustees of the
5 T & R Fry Family Trust
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Alexander & Associates
Attorneys at Law
1925 G Street
DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8
Bakersfield, CA 93301
(661) 316-7888
DETERMINATION OF CONSENT BY COURT
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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 as 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 8: ) 13 vs. ) COURT’S DETERMINATION OF ) CONSENT AS A MATTER OF LAW 14 BENHONG (AMERICA) RECYCLING CO. ) 15 LTD, a California Limited Liability Company; ) Assigned to: Hon. Bernard C. Barmann, Jr. and THOMAS H. FRY and RUTH M. FRY as ) Div.: H 16 Trustees of the T & R FRY FAMILY TRUST; ) Trial date: December 5, 2022 and DOES 1 – 100, inclusive, ) Time: 9:00 a.m. 17 ) 18 Defendants. ) Complaint Filed: October 6, 2017 ) 19 ) 20 The issue of consent can and should be determined by the Court rather than by jury because 21 there are no facts in dispute as to consent. An issue of fact becomes one of law and loses its “triable” 22 character if the undisputed facts leave no room for a reasonable difference of opinion. (Chateau 23 Chamberay Homeowners Ass’n v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 335, 345.) 24 Consent is the primary issue in this case because if Calcot consented to the Fry defendants’ 25 conduct, there can be no liability for the only two remaining causes of action: nuisance and trespass. 26 In this case, it is entirely undisputed that the Fry defendants took possession of the property 27 pursuant to a written lease with Calcot, the express purpose of which was storage of the agricultural 28 plastic. (Decl. of E. Estrada, ¶ 4, Exhs. B & C.) In other words, the Fry defendants initially placed 1 Alexander & Associates Attorneys at Law 1925 G Street DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8 Bakersfield, CA 93301 (661) 316-7888 DETERMINATION OF CONSENT BY COURT 1 the plastic on the property with Calcot’s consent. 2 It is entirely undisputed that the Fry defendants leased the property until December 11, 2015, 3 when Calcot secured an unlawful detainer judgment terminating and forfeiting the lease. (Request for 4 Judicial Notice, ¶ 1, Exh. A.) In other words, the Fry defendants stored the plastic on the property 5 pursuant to a written lease agreement and with Calcot’s consent through December 11, 2015. 6 It is entirely undisputed that the December 11, 2015 unlawful detainer judgment does not 7 include an award of monetary damages, meaning that there was no allegation of unpaid rent. (Request 8 for Judicial Notice, ¶ 1, Exh. A.) 9 It is entirely undisputed that by December 11, 2015, Calcot had executed a letter of intent 10 agreeing to sell the property to Benhong, and that the letter of intent required Benhong to purchase the 11 plastic from the Fry defendants. For this reason, Calcot consented to the continued presence of the 12 plastic on its property pending the sale of the plastic to Benhong. (Decl. of E. Estrada, ¶ 3, Exh. A.) 13 It is entirely undisputed that Calcot was notified on January 13, 2016 that Benhong had 14 completed its purchase of the plastic, at which point Calcot consented to Benhong storing the plastic 15 at the property pending Benhong’s purchase of the property. (Decl. of E. Estrada, ¶ 4, Exhs. B & C.) 16 It also is undisputed that Benhong’s tenancy was short. But the duration of Benhong’s tenancy 17 is not legally significant. (Decl. of E. Estrada, ¶ 4, Exhs. B & C.) 18 The above facts make it clear that Calcot consented to the Frys’ conduct through January 13, 19 2016. Calcot only withdrew its consent after January 13, 2016, after Calcot allowed Benhong to 20 occupy the property with the plastic that Benhong had just purchased from the Fry Defendants. 21 Given Calcot’s clear consent to the actions of the Fry Defendants, there can be no acts of trespass or 22 nuisance by the Fry Defendants, and no damages under the theory of trespass or nuisance. Consent, 23 therefore, is an issue of law, not one of fact, and should be determined by the court. 24 CONCLUSION 25 The facts pertaining to the issue of consent are undisputed and therefore are no longer an issue 26 of fact, but an issue of law to be determined by the court. The court, therefore, should make the 27 determination on the issue of consent. 28 2 Alexander & Associates Attorneys at Law 1925 G Street DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8 Bakersfield, CA 93301 (661) 316-7888 DETERMINATION OF CONSENT BY COURT 1 DATED: November 29, 2022 ALEXANDER & ASSOCIATES, PLC 2 3 By: /s/ William L. Alexander /s/ WILLIAM L. ALEXANDER 4 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the 5 T & R Fry Family Trust 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Alexander & Associates Attorneys at Law 1925 G Street DEFENDANTS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO. 8 Bakersfield, CA 93301 (661) 316-7888 DETERMINATION OF CONSENT BY COURT