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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; elizabeth@alexander-law.com
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6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T & R Fry Family Trust
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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, )
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) DEFENDANTS’ BRIEF RE: DISMISSAL
12 Plaintiff, ) OF ACTION FOR PLAINTIFF’S FAILURE
) TO PRODUCE WITNESSES
13 vs. )
)
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 )
16 Trustees of the T & R FRY FAMILY TRUST; )
and DOES 1 – 100, inclusive, ) Complaint Filed: October 6, 2017
17 ) Trial Date: December 12, 2022
18 Defendants. )
)
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Defendants, Thomas H. Fry and Ruth M. Fry, as Trustees of the T&R Fry Family Trust, request
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that this Court dismiss the complaint of plaintiff, Big Washington, LLC, pursuant to Code of Civil
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Procedure, Section 581, subdivisions (b)(5), (l), and (m), on the ground that Big Washington’s
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principals failed to personally appear for trial and have a history of defying this Court’s orders.
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FACTUAL BACKGROUND
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Big Washington contends that the Fry defendants placed 40,000 tons of plastic on plaintiff’s
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property (the “Property”) pursuant to a written lease agreement and later failed to remove it after the
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lease was terminated.
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The lease was terminated and forfeited December 11, 2015. At that time, however, Big
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Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 Washington’s predecessor, Calcot, Ltd., was in negotiations with defendant, Benhong (America)
2 Recycling, Ltd., for the purchase and sale of the Property. Because Calcot was in negotiations with
3 Benhong for the purchase and sale of the Property, and Benhong intended to occupy the Property with
4 the plastic, Calcot permitted Fry to continue to store the plastic at the Property despite the termination
5 and forfeiture of the lease.
6 On January 13, 2016, the Fry defendants notified Calcot that Benhong had completed its plastic
7 purchase. After Benhong purchased the plastic from Fry, it took possession of the property and was
8 Calcot’s tenant.
9 Benhong cancelled its purchase of the Property shortly thereafter and never removed the
10 plastic. Calcot sold the Property to Big Washington, with the plastic in place, and the plastic remains
11 on the Property today.
12 Big Washington seeks damages for loss of rent for the warehouses in which the plastic is
13 stored, cost of the future removal of the plastic, and costs for additional purchase money loan expenses
14 incurred as a result of the presence of the plastic on the premises. Big Washington also seeks punitive
15 damages against the Fry defendants.
16 The principals of Big Washington are Stephanie Smith and Martin Smith.
17 PROCEDURAL BACKGROUND
18 Trial in this case was initially set for June 6, 2022. On May 20, 2022, the Fry Defendants
19 served on Big Washington’s counsel Notices to Appear pursuant to Code of Civil Procedure, Section
20 1987, subdivision (b), requesting the appearances of Ben Eilenberg (Big Washington’s chief operating
21 officer), Stephanie Smith (Big Washington’s principal), and Martin Smith (Big Washington’s
22 principal). Similarly, Big Washington served Notices to Appear on counsel, requesting the appearance
23 of Thomas H. Fry, Ruth M. Fry, and John Richardson. Big Washington also filed objections to the
24 Notices to Appear as to Stephanie Smith and Martin Smith, asserting that they are not residents of
25 California and therefore cannot be compelled to appear at trial.
26 This Court was unable to commence trial on June 6, 2022 and therefore transferred the matter
27 to Division J before the Honorable J. Eric Bradshaw. Big Washington objected to the trial being heard
28 by Judge Bradshaw, who re-transferred it to this Court. On June 13, 2022, this Court trailed the trial
2
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 to July 11, 2022 in Division H.
2 On July 6, 2022, this Court was unavailable to commence trial and trailed the matter to
3 September 26, 2022.
4 On September 1, 2022, the Court granted Big Washington’s ex parte application to continue
5 the trial in this matter to December 5, 2022 on the ground that Big Washington wished to associate
6 new counsel into the matter.
7 ARGUMENT
8 I
9 STEPHANIE AND MARTIN SMITH WERE REQUIRED TO APPEAR PURSUANT TO
10 CODE OF CIVIL PROCEDURE, SECTION 1987, SUBDIVISION (B), BECAUSE THEY
11 WERE RESIDENTS OF CALIFORNIA AT THE TIME OF SERVICE.
12 In lieu of a subpoena, a party to a lawsuit, or its principals, may be commanded to appear at
13 trial by service of a written request. Code of Civil Procedure, Section 1987, subdivision (b), provides:
14 In the case of the production of a party to the record of any civil action
15 or proceeding or of a person for whose immediate benefit an action or
16 proceeding is prosecuted or defended or of anyone who is an officer
17 director, or managing agent of any such party or person, the service of
18 a subpoena upon any such witness is not required if written notice
19 requesting the witness to attend before a court, or at a trial of an issue
20 therein, with the time and place thereof, is served upon the attorney of
21 that party or person. The notice shall be served at least 10 days before
22 the time required for attendance unless the court prescribes a shorter
23 time…The giving of the notice shall have the same effect as service of
24 a subpoena on the witness, and the parties shall have those rights and
25 the court may make those orders, including the imposition of sanctions,
26 as in the case of a subpoena for attendance before the court.
27 Here, notices to appear were served on counsel for Big Washington on May 20, 2022. The
28 notices to appear requested the attendance of Stephanie Smith, Martin Smith, and Ben Eilenberg at
3
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 trial. The Court trailed the trial, giving notice to all parties, and then continued the trial at the request
2 of Big Washington’s counsel.
3 Big Washington objected to the notices to appear, asserting that Stephanie and Martin Smith
4 were not residents of California on May 20, 2022 and therefore they could not be compelled to appear
5 at trial. Big Washington cited to Code of Civil Procedure, Section 1989, which provides:
6 A witness, including a witness specified in subdivision (b) of Section
7 1987, is not obliged to attend as a witness before any court, judge,
8 justice, or any other officer, unless the witness is a resident within the
9 state at the time of service. [Emphasis added.]
10 The term “resident” was defined in In re Morelli (1970) 11 Cal.App.3d 819 (“Morelli”). In
11 Morelli, the Court held that the residency required under Section 1989 does not equate to domicile,
12 and a resident of California is one with an abode and a base of business operations. The Morelli court
13 stated:
14 “Residence, as used in the law, is a most elusive and indefinite term.”
15 [Citations omitted.] The writer in Corpus Juris Secundum says that the
16 word “is like a slippery eel.” [Citations omitted.] It has various
17 meanings for varying legal concepts and under different statutes,
18 depending upon the purpose involved. [Citations omitted.] “On ***
19 occasions where the term is employed in statutes ***, it *** involves
20 physical presence in a place without requiring the intent to make it one’s
21 home which is involved in the domicile concept.” [Citations omitted.]
22 It can mean dwelling in a place for some continuance of time for
23 business (note Morelli’s status at California Institute of Technology) or
24 other purposes. [Citations omitted.] It does not depend on the manner
25 of living which may be housekeeping or lodging. [Citations omitted.]
26 “The word ‘residence’ has been held to be equivalent to *** ‘abode’
27 [citations omitted] or even ‘address’” [citations omitted]. One may have
28 residences simultaneously in the city and the country [citations omitted]
4
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 or for nine months in one place and three months in another. [Citations
2 omitted.] A person may have several residences at the same time and
3 for different purposes. [Citations omitted.] It, of course, can be
4 different from domicile, which is the most settled and permanent
5 connection and of which a person has but one. [Citations omitted.]
6 We find no California decisions construing residency for purposes of
7 subpoena power. We feel that residence under Code of Civil Procedure,
8 section 1989 clearly is residence in fact and not domicile; that the
9 subpoena section envisages nothing more than an abode, possibly
10 combined with a professional base of operations, which gives the
11 “resident” a sojourning connection with the area of a type and
12 duration related to the status of a witness and which makes it not a
13 hardship for him to attend the legal proceedings at which he is
14 commanded to appear. The appearance of a witness to testify in an
15 action has a different connotation than the basis of venue for an action
16 as to which something akin to domicile was, in an early case, held to
17 apply. [Citation omitted.] [Emphasis added.]
18 In their objections to the notices to appear, Stephanie and Martin Smith provide only copies of
19 their Florida-issued driver’s licenses. This perhaps could be sufficient to establish their domicile as
20 Florida, but under Morelli, domicile in another state does not preclude a finding of California
21 residency.
22 What the Smiths artfully omit from their objections is the fact that they own a home in
23 California and their base of business operations is in California. Throughout this litigation, the Smiths
24 have owned a home in Pacific Palisades. (See Decl. of E. Estrada, ¶ 4.) The Smiths also are the
25 principals of Big Washington, LLC, a California limited liability company with its base of operations
26 in Fullerton, California. (See Decl. of E. Estrada, ¶ 5.)
27 Under Morelli, both prongs of the “residency” test are met, and the Smiths were required to
28 appear at trial.
5
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 II
2 THE COURT HAS THE AUTHORITY TO DISMISS AN ACTION
3 Code of Civil Procedure, Section 581, gives courts the authority and discretion to dismiss an
4 action. Although the statute enumerates various reasons a court might dismiss an action, the statute
5 explicitly states that it is not an exclusive enumeration of the Court’s power to dismiss an action or
6 complaint as to a defendant. Section 581, in pertinent part, provides:
7 (b) An action may be dismissed in any of the following instances:
8 ***
9 (5) By the court, without prejudice, when either party fails to appear at
10 the trial and the other party appears and asks for dismissal.
11 ***
12 (l) The court may dismiss, without prejudice, the complaint in whole, or
13 as to that defendant when either party fails to appear at the trial and the
14 other party appears and asks for the dismissal.
15 (m) The provisions of this section shall not be deemed to be an exclusive
16 enumeration of the court’s power to dismiss an action or dismiss a
17 complaint as to a defendant.
18 When a plaintiff invokes the power of the court to resolve a dispute, that plaintiff agrees to
19 abide by the rules designed to facilitate the orderly and equitable resolution of not only that dispute,
20 but also of the thousands of other cases pending before the court at the same time. (Vernon v. Great
21 Western Bank (1996) 51 Cal.App.4th 1007, 1013.) “The power of dismissal is a court’s means of
22 enforcing its rules and orders, and it exists so that the court may manage its own affairs and preserve
23 respect for the integrity of its process.” (Ibid.)
24 II
25 THE SMITHS HAVE A HISTORY OF REFUSING TO APPEAR
26 Beginning in 2020, the Fry Defendants attempted to depose the Big Washington witnesses.
27 Fry served deposition notices for Big Washington and Ben Eilenberg (who was counsel of record but
28 had been identified by Big Washington in its discovery responses as a witness), setting the depositions
6
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 for February 11, 2020. No witness appeared for the depositions.
2 On February 12, 2020, counsel for Fry sent a letter to Ben Eilenberg asking about the failure
3 to appear. Ben Eilenberg responded that he had not received the deposition notices. On February 25,
4 2020, Fry served re-notices, setting the depositions for March 9, 2020.
5 On the morning of March 9, 2020, Ben Eilenberg had a telephone discussion with Fry’s counsel
6 and stated that he had mis-calendared the depositions and that he and his client would not be appearing.
7 Fry then filed motions to compel the depositions.
8 The court continued the hearings on the motions to June 2020. Big Washington failed to appear
9 at that hearing and two subsequent orders to show cause, resulting in an order striking Big
10 Washington’s complaint and denying Fry’s motions to compel the depositions as moot.
11 After the Court reinstated the case in February 2021, Fry resumed attempts to depose Big
12 Washington’s witnesses. On April 6, 2021, Fry served deposition notices for Big Washington,
13 Stephanie and Martin Smith, and Ben Eilenberg. Counsel for Big Washington, Richard Jacobs,
14 indicated that he was unavailable on the dates and the depositions did not proceed.
15 There also was some discussion between the parties’ counsel as to who Big Washington would
16 produce as its person most knowledgeable. Big Washington identified only Ben Eilenberg and stated
17 that Stephanie Smith and Martin Smith would be of little value.
18 Fry served new deposition notices for Big Washington, Stephanie and Martin Smith, and Ben
19 Eilenberg, setting the depositions for July 28 and 29. Mr. Jacobs again stated he was unavailable on
20 those dates. After meet and confer efforts, the parties tentatively agreed to September 8 and 9, 2021.
21 On August 31, 2021, Mr. Jacobs advised that the depositions could not proceed on September
22 8 and 9 and tentatively offered September 28, and 29. Fry served new deposition notices for the
23 proposed dates.
24 On September 23, 2021, Mr. Jacobs advised that Stephanie and Martin Smith were not
25 available for their depositions, but Ben Eilenberg was. Mr. Jacobs offered a new tentative date of
26 October 6 for Stephanie and Martin Smith. A dispute arose as to whether the depositions would take
27 place remotely or in person and as to the sequence of the depositions, as Fry wished to depose the
28 witnesses in the same order the depositions had been noticed – the Smiths and then Ben Eilenberg.
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Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 On October 1, 2021, Fry filed an ex parte application for an order compelling the in-person
2 depositions of Stephanie and Martin Smith, Ben Eilenberg, and Big Washington’s person most
3 knowledgeable. At the hearing, Mr. Jacobs stated explicitly that Big Washington would defy any
4 order requiring an in-person deposition and would file a petition for writ of mandate. At the hearing,
5 the Court granted Fry’s motion and ordered that the depositions take place in-person over October 20-
6 22, 2021.
7 Although Mr. Jacobs had previously offered October 20-22 as “firm” dates for Stephanie and
8 Martin Smith, he stated on the record at the October 7, 2021 hearing that he was unavailable those
9 dates. Therefore, when Fry submitted a proposed order to him, Fry’s counsel offered to move the
10 deposition dates. Mr. Jacobs stated that he was filing a writ, but “if the Writ Court upholds the order
11 of the Court,” then Big Washington would appear November 29 and 30 and December 1, 2021. Based
12 upon the dates Big Washington selected, Fry prepared and submitted to the Court an order compelling
13 in-person depositions for November 29 and 30 and December 1, 2021. The Court signed that order.
14 On October 13, 2021, Big Washington filed its petition for writ of mandate, which was denied
15 summarily on October 19, 2021 for lack of formal order and transcript. Big Washington filed a second
16 petition for writ of mandate on November 17, 2021, which was denied summarily on November 23,
17 2021 for the same reasons.
18 On November 24, 2021, Fry’s counsel asked Mr. Jacobs whether Stephanie Smith would be
19 appearing November 29 for her scheduled deposition. Mr. Jacobs responded that Martin and
20 Stephanie Smith would not attend in person until the Court of Appeal gave guidance. Mr. Jacobs
21 offered Ben Eilenberg in person, but cautioned that he had been twice exposed to Covid-19 that week.
22 On November 30, 2021, Big Washington filed its third petition for writ. That writ was denied on
23 December 2, 2021. On December 10, 2021, Big Washington filed a petition for review with the
24 California Supreme Court. That petition also was denied.
25 The Fry Defendants then filed a motion for evidentiary sanctions, which was heard on January
26 21, 2022. The Court declined to grant evidentiary sanctions, but again ordered that the Big
27 Washington witnesses, including the Smiths, appear for deposition in person. The depositions were
28 ordered to commence on or about April 5, 2022. Big Washington filed a new petition for writ with
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Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 the 5th District, arguing that Stephanie and Martin Smith are Florida residents. The petition was
2 denied. The Smiths then appeared for their depositions in person.
3 CONCLUSION
4 Any evidence, testimony, argument, or reference pertaining to Calcot’s lack of consent to the
5 plastic being stored on the Property should be excluded because 1) Plaintiff has admitted that after
6 Benhong purchased the plastic from Fry, Calcot allowed Benhong to store the plastic on the Property,
7 and 2) Calcot consented to the storage of the plastic on the Property.
8
9 DATED: December 13, 2022 ALEXANDER & ASSOCIATES, PLC
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11 By: /s/ William L. Alexander /s/
WILLIAM L. ALEXANDER
12 Attorneys for Defendants, Thomas H. Fry
and Ruth M. Fry as Trustees of the
13 T & R Fry Family Trust
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Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
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; elizabeth@alexander-law.com
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6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry 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 – METRO JUSTICE BUILDING
10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB
Limited Liability Company, )
11 ) DECLARATION OF ELIZABETH
12 Plaintiff, ) ESTRADA IN SUPPORT OF
) DEFENDANTS’ MOTION TO DISMISS
13 vs. ) ACTION
)
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 )
16 Trustees of the T & R FRY FAMILY TRUST; ) Trial date: December 12, 2022
and DOES 1 – 100, inclusive, ) Time: 9:00 a.m.
17 ) Div.: H
18 Defendants. )
) Complaint Filed: October 6, 2017
19 )
)
20 )
21 I, ELIZABETH ESTRADA, declare as follows:
22 1. I am an attorney licensed to practice law before the Courts of the State of California. I
23 am an employee of Alexander & Associates, PLC, counsel of record for defendants, Thomas H. Fry
24 and Ruth M. Fry, trustees of the T&R Fry Family Trust. As such, I have personal knowledge of the
25 facts set forth in this declaration and if called upon to testify, I would and could competently testify to
26 such facts.
27 2. I make this declaration in support of defendants’ Motion to Dismiss the Complaint.
28 3. On or about May 20, 2022, my office served Notices to Appear in lieu of subpoenas
10
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 for the personal attendance of Stephanie Smith, Martin Smith, and Ben Eilenberg at trial. True and
2 correct copies of the Notices to Appear are attached to this declaration as Exhibit “A.”
3 4. During Martin Smith’s deposition, he testified that prior to October 2021, he and his
4 family lived in a home at 405 Puerto Del Mar in Los Angeles, and that his family still owns that home.
5 A true and correct copy of the relevant excerpts of the deposition transcript are attached to this
6 declaration as Exhibit “B.”
7 5. Martin Smith and Stephanie Smith have claimed to be the principals of Big
8 Washington, LLC, a California limited liability company and the owner of the real property that is the
9 subject of this action. In Martin Smith’s declaration, he states he is the manager of the managing
10 entity for Big Washington, LLC. A true and correct copy of a declaration submitted by Martin Smith
11 is attached to this declaration as Exhibit “C.”
12 6. During Stephanie Smith’s deposition, she testified that she is an owner of Big
13 Washington, LLC. A true and correct copy of the pertinent excerpt of her deposition is attached to
14 this declaration as Exhibit “D.”
15 7. Stephanie Smith further testified during her deposition that she still has a residence in
16 Los Angeles, California. A true and correct copy of the relevant excerpt is attached to this declaration
17 as Exhibit “D.”
18 8. On or about January 10, 2020, I caused to be served on Ben Eilenberg deposition
19 notices and a subpoena for Big Washington and Ben Eilenberg (as a percipient witness because he
20 was identified as a witness in Big Washington’s written discovery responses). After Mr. Eilenberg
21 stated that he had not received the deposition notices, I rescheduled the depositions for March 9, 2020.
22 The witnesses did not appear for the scheduled depositions, even though Mr. Eilenberg had confirmed
23 to me that he had received the notices.
24 9. The parties then filed cross-motions to compel each other’s depositions. The motions
25 were continued due to emergency Covid-19 orders. The Court continued the March 20, 2020 hearing
26 to April, and then again to June 9, 2020 on its own motion.
27 10. Around that time, Mr. Eilenberg had been suspended from the practice of law. Big
28 Washington failed to appear at a series of hearings, resulting in its complaint being stricken and a
11
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 judgment being entered against it on or about August 11, 2020.
2 11. In or about November 2020, Big Washington filed a motion to set aside the judgment.
3 The hearing on Big Washington’s motion was heard on December 7, 2020 and was continued to
4 January 25, 2021 to allow Big Washington to offer additional evidence to demonstrate its excusable
5 neglect under Code of Civil Procedure, Section 473, subdivision (b). That hearing was continued
6 again to February 24, 2021 because Big Washington had not properly submitted its paperwork or filed
7 a substitution of attorney.
8 12. I attended the February 24, 2021 hearing. The Court granted Big Washington’s motion
9 but also sought to impose monetary sanctions against Big Washington to cover the attorneys’ fees
10 incurred by Fry. The Court asked that I submit a declaration on or before April 15, 2021 detailing the
11 attorneys’ fees incurred. I submitted that declaration as requested and the Court issued an order
12 granting attorneys’ fees to Fry in the sum of $12,050.00. To this day, Big Washington has not paid
13 the fees.
14 13. After the complaint was reinstated, I made several attempts to depose Big Washington,
15 LLC, its principals, and Ben Eilenberg.
16 14. After my office filed a motion in October 2021, the Court issued an order compelling
17 the in-person depositions of Martin Smith, Stephanie Smith, Ben Eilenberg, and Big Washington’s
18 person most knowledgeable. I was present at the hearing. Mr. Jacobs stated explicitly that Big
19 Washington would defy any order by the Court requiring in person depositions and would file a
20 petition for writ of mandate.
21 15. Big Washington proceeded to file three petitions for writs of mandate with the Fifth
22 District Court of Appeals and stated to me that Big Washington would not produce its witnesses until
23 it received guidance from the appellate courts. All of the petitions for writs of madate were denied.
24 16. My office then received notice that Big Washington had filed a petition for review with
25 the California Supreme Court. That petition was denied.
26 17. My office then filed a motion for evidentiary sanctions. The Court declined to issue
27 evidentiary sanctions, but again ordered that Big Washington produce its witnesses in person. Big
28 Washington at that time argued that Stephanie and Martin Smith had moved to Florida. The Court
12
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
1 nevertheless ordered the Smiths to appear in person at the depositions. Those depositions finally
2 commenced on April 5, 2022 after Big Washington filed another petition for writ of mandate that was
3 denied.
4 I declare under penalty of perjury under the laws of the State of California that the foregoing
5 is true and correct. Executed this 12th day of December, 2022 in Bakersfield, California
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/s/ Elizabeth Estrada /s/
______________________________
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ELIZABETH ESTRADA
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Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
EXHIBIT “A”
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; elizabeth@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 – METROPOLITAN DIVISION
10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB
Limited Liability Company, )
11 ) NOTICE TO APPEAR TO
Plaintiff, ) MARTIN SMITH
12 )
13 vs. )
) Assigned to: Hon. Bernard C. Barmann
14 BENHONG (AMERICA) RECYCLING CO. ) Div.: H
LTD, a California Limited Liability Company; )
15 ) Action Filed: October 6, 2017
and THOMAS H. FRY and RUTH M. FRY as
16 Trustees of the T & R FRY FAMILY TRUST; ) Trial Date: June 6, 2022
and DOES 1 – 100, inclusive, )
17 )
Defendants. )
18 )
19 )
)
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21 TO ALL PARTIES AND THEIR ATTORNEY OF RECORD:
22 PLEASE TAKE NOTICE that pursuant to section 1987, subdivision (b), of the Code of Civil
23 Procedure, defendants, THOMAS H, FRY and RUTH M. FRY, Trustees of the T&R FRY FAMILY
24 TRUST, request that MARTIN SMITH appear at the trial of the above-captioned matter on June 6,
25 2022 at 9:00 a.m., in Division H of the Kern County Superior Court located at 1215 Truxtun Avenue,
26 Bakersfield, California.
27 / / /
28 / / /
1
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
NOTICE TO APPEAR TO MARTIN SMITH
1 Dated: May 20, 2022 ALEXANDER & ASSOCIATES
2
3 By: /s/ Elizabeth Estrada /s/
ELIZABETH ESTRADA
4 Attorneys for Defendants, Thomas H. Fry
and Ruth M. Fry as Trustees of the T&R
5 Fry Family Trust
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Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
NOTICE TO APPEAR TO MARTIN SMITH
1 PROOF OF SERVICE (C.C.P. §1013a, 2015.5)
2 I am employed in the County of Kern, State of California. I am over the age of 18 and not a
3 party to the within action; my business address is 1925 G Street, Bakersfield, California.
4 On May 20, 2022, I served the foregoing document(s) entitled NOTICE TO APPEAR TO
MARTIN SMITH
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on interested parties in this action as follows:
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7 Richard B. Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC
LAW OFFICE OF RICHARD JACOBS
8 13512 Hatteras Street
Van Nuys, CA 91401-4517
9 Email: richardjacobslaw@gmail.com
10
[ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof
11 enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and
processing of documents for mailing. Under that practice it would be deposited with the United
12 State Postal Service on that same day with postage thereon fully prepaid at Bakersfield,
13 California in the ordinary course of business.
14 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection
(e)(1), I caused the documen
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; elizabeth@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’ BRIEF RE: DISMISSAL 12 Plaintiff, ) OF ACTION FOR PLAINTIFF’S FAILURE ) TO PRODUCE WITNESSES 13 vs. ) ) 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 ) 16 Trustees of the T & R FRY FAMILY TRUST; ) and DOES 1 – 100, inclusive, ) Complaint Filed: October 6, 2017 17 ) Trial Date: December 12, 2022 18 Defendants. ) ) 19 20 Defendants, Thomas H. Fry and Ruth M. Fry, as Trustees of the T&R Fry Family Trust, request 21 that this Court dismiss the complaint of plaintiff, Big Washington, LLC, pursuant to Code of Civil 22 Procedure, Section 581, subdivisions (b)(5), (l), and (m), on the ground that Big Washington’s 23 principals failed to personally appear for trial and have a history of defying this Court’s orders. 24 FACTUAL BACKGROUND 25 Big Washington contends that the Fry defendants placed 40,000 tons of plastic on plaintiff’s 26 property (the “Property”) pursuant to a written lease agreement and later failed to remove it after the 27 lease was terminated. 28 The lease was terminated and forfeited December 11, 2015. At that time, however, Big 1 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 Washington’s predecessor, Calcot, Ltd., was in negotiations with defendant, Benhong (America) 2 Recycling, Ltd., for the purchase and sale of the Property. Because Calcot was in negotiations with 3 Benhong for the purchase and sale of the Property, and Benhong intended to occupy the Property with 4 the plastic, Calcot permitted Fry to continue to store the plastic at the Property despite the termination 5 and forfeiture of the lease. 6 On January 13, 2016, the Fry defendants notified Calcot that Benhong had completed its plastic 7 purchase. After Benhong purchased the plastic from Fry, it took possession of the property and was 8 Calcot’s tenant. 9 Benhong cancelled its purchase of the Property shortly thereafter and never removed the 10 plastic. Calcot sold the Property to Big Washington, with the plastic in place, and the plastic remains 11 on the Property today. 12 Big Washington seeks damages for loss of rent for the warehouses in which the plastic is 13 stored, cost of the future removal of the plastic, and costs for additional purchase money loan expenses 14 incurred as a result of the presence of the plastic on the premises. Big Washington also seeks punitive 15 damages against the Fry defendants. 16 The principals of Big Washington are Stephanie Smith and Martin Smith. 17 PROCEDURAL BACKGROUND 18 Trial in this case was initially set for June 6, 2022. On May 20, 2022, the Fry Defendants 19 served on Big Washington’s counsel Notices to Appear pursuant to Code of Civil Procedure, Section 20 1987, subdivision (b), requesting the appearances of Ben Eilenberg (Big Washington’s chief operating 21 officer), Stephanie Smith (Big Washington’s principal), and Martin Smith (Big Washington’s 22 principal). Similarly, Big Washington served Notices to Appear on counsel, requesting the appearance 23 of Thomas H. Fry, Ruth M. Fry, and John Richardson. Big Washington also filed objections to the 24 Notices to Appear as to Stephanie Smith and Martin Smith, asserting that they are not residents of 25 California and therefore cannot be compelled to appear at trial. 26 This Court was unable to commence trial on June 6, 2022 and therefore transferred the matter 27 to Division J before the Honorable J. Eric Bradshaw. Big Washington objected to the trial being heard 28 by Judge Bradshaw, who re-transferred it to this Court. On June 13, 2022, this Court trailed the trial 2 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 to July 11, 2022 in Division H. 2 On July 6, 2022, this Court was unavailable to commence trial and trailed the matter to 3 September 26, 2022. 4 On September 1, 2022, the Court granted Big Washington’s ex parte application to continue 5 the trial in this matter to December 5, 2022 on the ground that Big Washington wished to associate 6 new counsel into the matter. 7 ARGUMENT 8 I 9 STEPHANIE AND MARTIN SMITH WERE REQUIRED TO APPEAR PURSUANT TO 10 CODE OF CIVIL PROCEDURE, SECTION 1987, SUBDIVISION (B), BECAUSE THEY 11 WERE RESIDENTS OF CALIFORNIA AT THE TIME OF SERVICE. 12 In lieu of a subpoena, a party to a lawsuit, or its principals, may be commanded to appear at 13 trial by service of a written request. Code of Civil Procedure, Section 1987, subdivision (b), provides: 14 In the case of the production of a party to the record of any civil action 15 or proceeding or of a person for whose immediate benefit an action or 16 proceeding is prosecuted or defended or of anyone who is an officer 17 director, or managing agent of any such party or person, the service of 18 a subpoena upon any such witness is not required if written notice 19 requesting the witness to attend before a court, or at a trial of an issue 20 therein, with the time and place thereof, is served upon the attorney of 21 that party or person. The notice shall be served at least 10 days before 22 the time required for attendance unless the court prescribes a shorter 23 time…The giving of the notice shall have the same effect as service of 24 a subpoena on the witness, and the parties shall have those rights and 25 the court may make those orders, including the imposition of sanctions, 26 as in the case of a subpoena for attendance before the court. 27 Here, notices to appear were served on counsel for Big Washington on May 20, 2022. The 28 notices to appear requested the attendance of Stephanie Smith, Martin Smith, and Ben Eilenberg at 3 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 trial. The Court trailed the trial, giving notice to all parties, and then continued the trial at the request 2 of Big Washington’s counsel. 3 Big Washington objected to the notices to appear, asserting that Stephanie and Martin Smith 4 were not residents of California on May 20, 2022 and therefore they could not be compelled to appear 5 at trial. Big Washington cited to Code of Civil Procedure, Section 1989, which provides: 6 A witness, including a witness specified in subdivision (b) of Section 7 1987, is not obliged to attend as a witness before any court, judge, 8 justice, or any other officer, unless the witness is a resident within the 9 state at the time of service. [Emphasis added.] 10 The term “resident” was defined in In re Morelli (1970) 11 Cal.App.3d 819 (“Morelli”). In 11 Morelli, the Court held that the residency required under Section 1989 does not equate to domicile, 12 and a resident of California is one with an abode and a base of business operations. The Morelli court 13 stated: 14 “Residence, as used in the law, is a most elusive and indefinite term.” 15 [Citations omitted.] The writer in Corpus Juris Secundum says that the 16 word “is like a slippery eel.” [Citations omitted.] It has various 17 meanings for varying legal concepts and under different statutes, 18 depending upon the purpose involved. [Citations omitted.] “On *** 19 occasions where the term is employed in statutes ***, it *** involves 20 physical presence in a place without requiring the intent to make it one’s 21 home which is involved in the domicile concept.” [Citations omitted.] 22 It can mean dwelling in a place for some continuance of time for 23 business (note Morelli’s status at California Institute of Technology) or 24 other purposes. [Citations omitted.] It does not depend on the manner 25 of living which may be housekeeping or lodging. [Citations omitted.] 26 “The word ‘residence’ has been held to be equivalent to *** ‘abode’ 27 [citations omitted] or even ‘address’” [citations omitted]. One may have 28 residences simultaneously in the city and the country [citations omitted] 4 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 or for nine months in one place and three months in another. [Citations 2 omitted.] A person may have several residences at the same time and 3 for different purposes. [Citations omitted.] It, of course, can be 4 different from domicile, which is the most settled and permanent 5 connection and of which a person has but one. [Citations omitted.] 6 We find no California decisions construing residency for purposes of 7 subpoena power. We feel that residence under Code of Civil Procedure, 8 section 1989 clearly is residence in fact and not domicile; that the 9 subpoena section envisages nothing more than an abode, possibly 10 combined with a professional base of operations, which gives the 11 “resident” a sojourning connection with the area of a type and 12 duration related to the status of a witness and which makes it not a 13 hardship for him to attend the legal proceedings at which he is 14 commanded to appear. The appearance of a witness to testify in an 15 action has a different connotation than the basis of venue for an action 16 as to which something akin to domicile was, in an early case, held to 17 apply. [Citation omitted.] [Emphasis added.] 18 In their objections to the notices to appear, Stephanie and Martin Smith provide only copies of 19 their Florida-issued driver’s licenses. This perhaps could be sufficient to establish their domicile as 20 Florida, but under Morelli, domicile in another state does not preclude a finding of California 21 residency. 22 What the Smiths artfully omit from their objections is the fact that they own a home in 23 California and their base of business operations is in California. Throughout this litigation, the Smiths 24 have owned a home in Pacific Palisades. (See Decl. of E. Estrada, ¶ 4.) The Smiths also are the 25 principals of Big Washington, LLC, a California limited liability company with its base of operations 26 in Fullerton, California. (See Decl. of E. Estrada, ¶ 5.) 27 Under Morelli, both prongs of the “residency” test are met, and the Smiths were required to 28 appear at trial. 5 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 II 2 THE COURT HAS THE AUTHORITY TO DISMISS AN ACTION 3 Code of Civil Procedure, Section 581, gives courts the authority and discretion to dismiss an 4 action. Although the statute enumerates various reasons a court might dismiss an action, the statute 5 explicitly states that it is not an exclusive enumeration of the Court’s power to dismiss an action or 6 complaint as to a defendant. Section 581, in pertinent part, provides: 7 (b) An action may be dismissed in any of the following instances: 8 *** 9 (5) By the court, without prejudice, when either party fails to appear at 10 the trial and the other party appears and asks for dismissal. 11 *** 12 (l) The court may dismiss, without prejudice, the complaint in whole, or 13 as to that defendant when either party fails to appear at the trial and the 14 other party appears and asks for the dismissal. 15 (m) The provisions of this section shall not be deemed to be an exclusive 16 enumeration of the court’s power to dismiss an action or dismiss a 17 complaint as to a defendant. 18 When a plaintiff invokes the power of the court to resolve a dispute, that plaintiff agrees to 19 abide by the rules designed to facilitate the orderly and equitable resolution of not only that dispute, 20 but also of the thousands of other cases pending before the court at the same time. (Vernon v. Great 21 Western Bank (1996) 51 Cal.App.4th 1007, 1013.) “The power of dismissal is a court’s means of 22 enforcing its rules and orders, and it exists so that the court may manage its own affairs and preserve 23 respect for the integrity of its process.” (Ibid.) 24 II 25 THE SMITHS HAVE A HISTORY OF REFUSING TO APPEAR 26 Beginning in 2020, the Fry Defendants attempted to depose the Big Washington witnesses. 27 Fry served deposition notices for Big Washington and Ben Eilenberg (who was counsel of record but 28 had been identified by Big Washington in its discovery responses as a witness), setting the depositions 6 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 for February 11, 2020. No witness appeared for the depositions. 2 On February 12, 2020, counsel for Fry sent a letter to Ben Eilenberg asking about the failure 3 to appear. Ben Eilenberg responded that he had not received the deposition notices. On February 25, 4 2020, Fry served re-notices, setting the depositions for March 9, 2020. 5 On the morning of March 9, 2020, Ben Eilenberg had a telephone discussion with Fry’s counsel 6 and stated that he had mis-calendared the depositions and that he and his client would not be appearing. 7 Fry then filed motions to compel the depositions. 8 The court continued the hearings on the motions to June 2020. Big Washington failed to appear 9 at that hearing and two subsequent orders to show cause, resulting in an order striking Big 10 Washington’s complaint and denying Fry’s motions to compel the depositions as moot. 11 After the Court reinstated the case in February 2021, Fry resumed attempts to depose Big 12 Washington’s witnesses. On April 6, 2021, Fry served deposition notices for Big Washington, 13 Stephanie and Martin Smith, and Ben Eilenberg. Counsel for Big Washington, Richard Jacobs, 14 indicated that he was unavailable on the dates and the depositions did not proceed. 15 There also was some discussion between the parties’ counsel as to who Big Washington would 16 produce as its person most knowledgeable. Big Washington identified only Ben Eilenberg and stated 17 that Stephanie Smith and Martin Smith would be of little value. 18 Fry served new deposition notices for Big Washington, Stephanie and Martin Smith, and Ben 19 Eilenberg, setting the depositions for July 28 and 29. Mr. Jacobs again stated he was unavailable on 20 those dates. After meet and confer efforts, the parties tentatively agreed to September 8 and 9, 2021. 21 On August 31, 2021, Mr. Jacobs advised that the depositions could not proceed on September 22 8 and 9 and tentatively offered September 28, and 29. Fry served new deposition notices for the 23 proposed dates. 24 On September 23, 2021, Mr. Jacobs advised that Stephanie and Martin Smith were not 25 available for their depositions, but Ben Eilenberg was. Mr. Jacobs offered a new tentative date of 26 October 6 for Stephanie and Martin Smith. A dispute arose as to whether the depositions would take 27 place remotely or in person and as to the sequence of the depositions, as Fry wished to depose the 28 witnesses in the same order the depositions had been noticed – the Smiths and then Ben Eilenberg. 7 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 On October 1, 2021, Fry filed an ex parte application for an order compelling the in-person 2 depositions of Stephanie and Martin Smith, Ben Eilenberg, and Big Washington’s person most 3 knowledgeable. At the hearing, Mr. Jacobs stated explicitly that Big Washington would defy any 4 order requiring an in-person deposition and would file a petition for writ of mandate. At the hearing, 5 the Court granted Fry’s motion and ordered that the depositions take place in-person over October 20- 6 22, 2021. 7 Although Mr. Jacobs had previously offered October 20-22 as “firm” dates for Stephanie and 8 Martin Smith, he stated on the record at the October 7, 2021 hearing that he was unavailable those 9 dates. Therefore, when Fry submitted a proposed order to him, Fry’s counsel offered to move the 10 deposition dates. Mr. Jacobs stated that he was filing a writ, but “if the Writ Court upholds the order 11 of the Court,” then Big Washington would appear November 29 and 30 and December 1, 2021. Based 12 upon the dates Big Washington selected, Fry prepared and submitted to the Court an order compelling 13 in-person depositions for November 29 and 30 and December 1, 2021. The Court signed that order. 14 On October 13, 2021, Big Washington filed its petition for writ of mandate, which was denied 15 summarily on October 19, 2021 for lack of formal order and transcript. Big Washington filed a second 16 petition for writ of mandate on November 17, 2021, which was denied summarily on November 23, 17 2021 for the same reasons. 18 On November 24, 2021, Fry’s counsel asked Mr. Jacobs whether Stephanie Smith would be 19 appearing November 29 for her scheduled deposition. Mr. Jacobs responded that Martin and 20 Stephanie Smith would not attend in person until the Court of Appeal gave guidance. Mr. Jacobs 21 offered Ben Eilenberg in person, but cautioned that he had been twice exposed to Covid-19 that week. 22 On November 30, 2021, Big Washington filed its third petition for writ. That writ was denied on 23 December 2, 2021. On December 10, 2021, Big Washington filed a petition for review with the 24 California Supreme Court. That petition also was denied. 25 The Fry Defendants then filed a motion for evidentiary sanctions, which was heard on January 26 21, 2022. The Court declined to grant evidentiary sanctions, but again ordered that the Big 27 Washington witnesses, including the Smiths, appear for deposition in person. The depositions were 28 ordered to commence on or about April 5, 2022. Big Washington filed a new petition for writ with 8 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 the 5th District, arguing that Stephanie and Martin Smith are Florida residents. The petition was 2 denied. The Smiths then appeared for their depositions in person. 3 CONCLUSION 4 Any evidence, testimony, argument, or reference pertaining to Calcot’s lack of consent to the 5 plastic being stored on the Property should be excluded because 1) Plaintiff has admitted that after 6 Benhong purchased the plastic from Fry, Calcot allowed Benhong to store the plastic on the Property, 7 and 2) Calcot consented to the storage of the plastic on the Property. 8 9 DATED: December 13, 2022 ALEXANDER & ASSOCIATES, PLC 10 11 By: /s/ William L. Alexander /s/ WILLIAM L. ALEXANDER 12 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the 13 T & R Fry Family Trust 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 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; elizabeth@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 ) DECLARATION OF ELIZABETH 12 Plaintiff, ) ESTRADA IN SUPPORT OF ) DEFENDANTS’ MOTION TO DISMISS 13 vs. ) ACTION ) 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 ) 16 Trustees of the T & R FRY FAMILY TRUST; ) Trial date: December 12, 2022 and DOES 1 – 100, inclusive, ) Time: 9:00 a.m. 17 ) Div.: H 18 Defendants. ) ) Complaint Filed: October 6, 2017 19 ) ) 20 ) 21 I, ELIZABETH ESTRADA, declare as follows: 22 1. I am an attorney licensed to practice law before the Courts of the State of California. I 23 am an employee of Alexander & Associates, PLC, counsel of record for defendants, Thomas H. Fry 24 and Ruth M. Fry, trustees of the T&R Fry Family Trust. As such, I have personal knowledge of the 25 facts set forth in this declaration and if called upon to testify, I would and could competently testify to 26 such facts. 27 2. I make this declaration in support of defendants’ Motion to Dismiss the Complaint. 28 3. On or about May 20, 2022, my office served Notices to Appear in lieu of subpoenas 10 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 for the personal attendance of Stephanie Smith, Martin Smith, and Ben Eilenberg at trial. True and 2 correct copies of the Notices to Appear are attached to this declaration as Exhibit “A.” 3 4. During Martin Smith’s deposition, he testified that prior to October 2021, he and his 4 family lived in a home at 405 Puerto Del Mar in Los Angeles, and that his family still owns that home. 5 A true and correct copy of the relevant excerpts of the deposition transcript are attached to this 6 declaration as Exhibit “B.” 7 5. Martin Smith and Stephanie Smith have claimed to be the principals of Big 8 Washington, LLC, a California limited liability company and the owner of the real property that is the 9 subject of this action. In Martin Smith’s declaration, he states he is the manager of the managing 10 entity for Big Washington, LLC. A true and correct copy of a declaration submitted by Martin Smith 11 is attached to this declaration as Exhibit “C.” 12 6. During Stephanie Smith’s deposition, she testified that she is an owner of Big 13 Washington, LLC. A true and correct copy of the pertinent excerpt of her deposition is attached to 14 this declaration as Exhibit “D.” 15 7. Stephanie Smith further testified during her deposition that she still has a residence in 16 Los Angeles, California. A true and correct copy of the relevant excerpt is attached to this declaration 17 as Exhibit “D.” 18 8. On or about January 10, 2020, I caused to be served on Ben Eilenberg deposition 19 notices and a subpoena for Big Washington and Ben Eilenberg (as a percipient witness because he 20 was identified as a witness in Big Washington’s written discovery responses). After Mr. Eilenberg 21 stated that he had not received the deposition notices, I rescheduled the depositions for March 9, 2020. 22 The witnesses did not appear for the scheduled depositions, even though Mr. Eilenberg had confirmed 23 to me that he had received the notices. 24 9. The parties then filed cross-motions to compel each other’s depositions. The motions 25 were continued due to emergency Covid-19 orders. The Court continued the March 20, 2020 hearing 26 to April, and then again to June 9, 2020 on its own motion. 27 10. Around that time, Mr. Eilenberg had been suspended from the practice of law. Big 28 Washington failed to appear at a series of hearings, resulting in its complaint being stricken and a 11 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 judgment being entered against it on or about August 11, 2020. 2 11. In or about November 2020, Big Washington filed a motion to set aside the judgment. 3 The hearing on Big Washington’s motion was heard on December 7, 2020 and was continued to 4 January 25, 2021 to allow Big Washington to offer additional evidence to demonstrate its excusable 5 neglect under Code of Civil Procedure, Section 473, subdivision (b). That hearing was continued 6 again to February 24, 2021 because Big Washington had not properly submitted its paperwork or filed 7 a substitution of attorney. 8 12. I attended the February 24, 2021 hearing. The Court granted Big Washington’s motion 9 but also sought to impose monetary sanctions against Big Washington to cover the attorneys’ fees 10 incurred by Fry. The Court asked that I submit a declaration on or before April 15, 2021 detailing the 11 attorneys’ fees incurred. I submitted that declaration as requested and the Court issued an order 12 granting attorneys’ fees to Fry in the sum of $12,050.00. To this day, Big Washington has not paid 13 the fees. 14 13. After the complaint was reinstated, I made several attempts to depose Big Washington, 15 LLC, its principals, and Ben Eilenberg. 16 14. After my office filed a motion in October 2021, the Court issued an order compelling 17 the in-person depositions of Martin Smith, Stephanie Smith, Ben Eilenberg, and Big Washington’s 18 person most knowledgeable. I was present at the hearing. Mr. Jacobs stated explicitly that Big 19 Washington would defy any order by the Court requiring in person depositions and would file a 20 petition for writ of mandate. 21 15. Big Washington proceeded to file three petitions for writs of mandate with the Fifth 22 District Court of Appeals and stated to me that Big Washington would not produce its witnesses until 23 it received guidance from the appellate courts. All of the petitions for writs of madate were denied. 24 16. My office then received notice that Big Washington had filed a petition for review with 25 the California Supreme Court. That petition was denied. 26 17. My office then filed a motion for evidentiary sanctions. The Court declined to issue 27 evidentiary sanctions, but again ordered that Big Washington produce its witnesses in person. Big 28 Washington at that time argued that Stephanie and Martin Smith had moved to Florida. The Court 12 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 nevertheless ordered the Smiths to appear in person at the depositions. Those depositions finally 2 commenced on April 5, 2022 after Big Washington filed another petition for writ of mandate that was 3 denied. 4 I declare under penalty of perjury under the laws of the State of California that the foregoing 5 is true and correct. Executed this 12th day of December, 2022 in Bakersfield, California 6 7 /s/ Elizabeth Estrada /s/ ______________________________ 8 ELIZABETH ESTRADA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ MOTION TO DISMISS COMPLAINT EXHIBIT “A” 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; elizabeth@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 – METROPOLITAN DIVISION 10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB Limited Liability Company, ) 11 ) NOTICE TO APPEAR TO Plaintiff, ) MARTIN SMITH 12 ) 13 vs. ) ) Assigned to: Hon. Bernard C. Barmann 14 BENHONG (AMERICA) RECYCLING CO. ) Div.: H LTD, a California Limited Liability Company; ) 15 ) Action Filed: October 6, 2017 and THOMAS H. FRY and RUTH M. FRY as 16 Trustees of the T & R FRY FAMILY TRUST; ) Trial Date: June 6, 2022 and DOES 1 – 100, inclusive, ) 17 ) Defendants. ) 18 ) 19 ) ) 20 21 TO ALL PARTIES AND THEIR ATTORNEY OF RECORD: 22 PLEASE TAKE NOTICE that pursuant to section 1987, subdivision (b), of the Code of Civil 23 Procedure, defendants, THOMAS H, FRY and RUTH M. FRY, Trustees of the T&R FRY FAMILY 24 TRUST, request that MARTIN SMITH appear at the trial of the above-captioned matter on June 6, 25 2022 at 9:00 a.m., in Division H of the Kern County Superior Court located at 1215 Truxtun Avenue, 26 Bakersfield, California. 27 / / / 28 / / / 1 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 NOTICE TO APPEAR TO MARTIN SMITH 1 Dated: May 20, 2022 ALEXANDER & ASSOCIATES 2 3 By: /s/ Elizabeth Estrada /s/ ELIZABETH ESTRADA 4 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the T&R 5 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 2 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 NOTICE TO APPEAR TO MARTIN SMITH 1 PROOF OF SERVICE (C.C.P. §1013a, 2015.5) 2 I am employed in the County of Kern, State of California. I am over the age of 18 and not a 3 party to the within action; my business address is 1925 G Street, Bakersfield, California. 4 On May 20, 2022, I served the foregoing document(s) entitled NOTICE TO APPEAR TO MARTIN SMITH 5 on interested parties in this action as follows: 6 7 Richard B. Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC LAW OFFICE OF RICHARD JACOBS 8 13512 Hatteras Street Van Nuys, CA 91401-4517 9 Email: richardjacobslaw@gmail.com 10 [ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof 11 enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and processing of documents for mailing. Under that practice it would be deposited with the United 12 State Postal Service on that same day with postage thereon fully prepaid at Bakersfield, 13 California in the ordinary course of business. 14 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection (e)(1), I caused the documen