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O'RIEN WATTERS & DAVIS, LLP
Michael G. Watters, Esq. (CSB No. 63140)
Graden R. Tapley, Esq. (CSB No. 222636)
1550 Airport Blvd., Suite 201
Santa Rosa, CA 95403
(707) 545-7010
Attorneys for Mitchell G. Black and Deanne G. Black
dba Black Knight Vineyards.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
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BARRY BRILLIANT, an individual; and Case No. SCV-267406
DAGMAR K. HOHENECK-SMITH, an
m 12 individual and as trustee of THE DAGMAR DECLARATION OF JOYCE
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HOHENECK-SMITH TRUST dtd December WHITAKER IN SUPPORT OF
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oA 14 Plaintiffs, MOTIONS RE FIRE
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16 MITCHELL G. BLACK, an individual and dba
BLACK KNIGHT VINEYARDS; DEANNE G.
17
BLACK, an individual and dba BLACK
18 KNIGHT VINEYARDS; and DOES 1-20,
19 De fendants
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21 I, Joyce Whitaker, declare as follows:
22 l. I am the significant other of Defendant Mitchell G. Black. I make this declaration in
23 support of Defendant Black's post-trial motions.
2. I am over the age of 18 and, except as otherwise stated, have personal knowledge of
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the matters set forth herein and am competent to testify thereto if called upon as a witness.
Mitch's Whereabouts at the time of the fire
3. On July 7, 2021 (day of fire), I was with Mitch Black at our house on Inverness Ave.,
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Santa Rosa, CA 95404 from 11:30 a.m. until approximately 2:15. I got on a work call at 2 pm. Mitch
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al,, Sonoma County Superior Court Case No. SCV267406
I brought me my lunch while I was on the call and kissed me good-bye around 2:15 to 2:30. I later saw
2 him go outside and stop and talk for a while with our landscaping crew in the driveway. I do not
3 know THE EXACT time he left our house to return to the vineyard.
4. Any witness who says they saw or heard him on tractors in the afternoon are mistaken. He
5 was not at the vineyard; he was with me.
5. Mr. McGee testified that he assumed Mitch was lying about when he was mowing at the
7 vineyard property that day. Mitch was not lying.
8 Witness at Fire on July 7,2021
6. Around 3:30, my landscaper, Luis Cruz, knocked on the door of my residence. I answered
10 and he showed me smoke that was rising in the area of the vineyard. Luis told me that he and the crew
11 had been hearing lots of sirens. Luis had been to 4889 Grange vineyard many times to pick up wood
12 chips for our home property on Inverness and said there might be a fire in the vineyard.
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-/n /a r/ 13 7. I got in my car and immediately drove to the vineyard. No more than a 5-minute drive at
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I/I / 15 8. When I got there, I saw at least a dozen fire trucks from various fire departments (Cotati,
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16 Rohnert Park, Santa Rosa). I did not see Cal Fire at that time. I could see firefighters uphill toward the
~&a cottage (the apparent point of origin of the fire) and stretched across the field with hoses all the way
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18 toward Guenza Road.
19 9. I saw members of Mitch's crew and asked where Mitch was. Blanca told me that she was
20 worried because Mitch was trying to fight the fire with the tractor.
21 10. Just a few moments later, Mitch came down the hill from the fire on the ATV. His face was
22 scorched and red, his hands and face were covered with soot and his eyebrows had been burned off. I
23 asked him if he was okay and what happened, and he said he did not know. I got in the ATV with him,
24 and we drove back up the hill toward the fire which was mostly out on the Grange Road portion of the
25 property but still low, burning in the direction of Plaintiffs'roperty. As soon as we got up the hill, a
26 firefighter yelled at us to take cover as there was an airdrop coming in. We ran inside the cottage and an
27 airtanker immediately came overhead and dropped retardant on the field between the vineyard and
28 Guenza Road.
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCY267406
11. When we came out of the cottage, the fire was almost completely extinguished as far as I
2 could see. The fire fighters were walking not running and hoses were all the way over to Guenza Road.
12. I went to find Mitch's sister, Laurie, to make sure she was okay and to help her evacuate the
4 dogs and cats as we did not want them getting in the way of the frrefighters. I stayed at the vineyard
5 while Laurie drove the dogs and cats to the Inverness house.
13. I never saw Mitch spraying water on the wine barrels in the barrel barn. That did not happen
7 while the fire was burning.
14. Later, the firefighters were cleaning up and packing up. I was standing with Mitch when a
9 firefighter from a local station (maybe Cotati) came up, shook Mitch's hand and thanked him for all of
10 his help fighting the fire and providing information.
15. Later, a Cal Fire person walked up to me and Laurie Black. He introduced himself as the
12 CalFire Incident Commander and very rudely asked "where is the guy that started the fire?" I was
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J 13 confused and said that there was no guy that started the fire. He then said that the 911 caller said a guy
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E~ 14 on a tractor started the fire. I corrected him and said that there was no one on the tractor when the fire
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15 started. He then got very nasty and said, "there was a fire, something started it, what do you think it
16 was, aliens? lightning? a stranger?" I said I didn't know but thought it was his job to figure it out. I
P5@ 17 don't recall his name; it was an unusual name. I also have the impression that when he approached us,
18 he had just arrived at the vineyard after being at plaintiffs'roperty.
19 16. Mitch's sister, Laurie, was there and said that she was the one who called 911 and may have
20 said that Mitch was on the tractor (trvina to nut it out) in the fire. She also told him that Mitch did not
21 start the fire with the tractor, but the man just turned and walked away. He was very rude, angry,
22 aggressive and patronizing.
23 17. I never saw this man or anyone from any fire department investigate the fire. I did not see
24 anyone look at the tractor or the mower. I did not see anyone walking the area where the fire started or
25 looking at the PG&E wires that crossed over the property or the transformer nearby. I did not see
26 anyone interviewing Laurie who was less than a hundred yards from the point of origin when the fire
27 started. Had she been asked; she could have cleared up any misunderstanding caused by her 911 call.
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406
18. I observed many neighbors come by to check on the Blacks. I did not ever see the Plaintiffs
2 that day.
3 Mc Gee
19. I was with Mitch and Laurie after the fire. We were approached by a fire fighter who
5 introduced himself and Brandon McGee. He said, "I am sorry, but I was told that I have to give you a
6 citation." I do not recall him looking around, he just walked up and said that. He had a clipboard or
7 binder with some paperwork. I heard him tell Mitch that as the property owner he was required to sign
8 the paperwork. I also heard him ask for Mitch's California driver's license. I heard Mitch say he was
9 not comfortable signing it because it did not have any facts/it was more or less blank. I looked at it
10 briefly and saw that was true. McGee wrote some notes on the bottom about the timing of when Mitch
11 was mowing (before 11 in the morning). Laurie tried to tell him that she was the one that called 911 but
12 McGee did not seem interested. I then saw Mitch sign the form. I saw McGee hand a copy to Mitch,
13 and he handed it directly to me. I did not notice whether Mitch even read it. There was no interview. I
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0 14 did not see or hear McGee ask Laurie any questions; and she was living in the cottage at the time. I did
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o 15 not see or hear him ask Mitch any questions. I did not see him walk around and did not go up to the
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16 apparent point of origin of the fire. The tractor was sitting up at the cottage and I did not see McGee
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0 4 17 walk up to it or look at or inspect it in any way.
18 20. It was my understanding that the citation is the same document that Plaintiffs claim as proof
19 of Mitch's "negligence."
20 21. To my personal knowledge, Cal Fire never followed up with Mitch on the notice or in any
21 other way. To my knowledge CalFire never returned to do an investigation.
22 Osbourne
23 22. I first met Osbourne at my Inverness property in approximately February/March of 2022. I
24 invited him to that property because we were doing fire abatement work and wanted to have a
25 scheduled open burn. Osbourne came to the house and walked the property with me and my landscaper,
26 Luis. Together we figured out good locations for the open burns. He approved our permit for open
27 burns and complimented us on the work we were doing. If I had been sitting in the court room, and if
28 someone had said my name to him, I believe that he would have recognized me. Attached hereto as
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, el ak v. Black, et al., Sonoma County Superior Court Case No. SCV267406
I Exhibit A is a copy of Mr. Osbourne's business card that he gave me when we met at the Inverness
2 property.
23. I saw Mitch open a notice of violation he received in the mail from Cal Fire around July
4 2022. Mitch and I could not figure out why he got it or what was required by the notice. I saw that the
5 notice had Osbourne's name and number on it, so I called him on August 3, 2021. We had a 12 minute
6 call; and I have my phone records to prove this. I told him that Mitch got the notice, but we did not
7 understand it. He asked if I was Deanne and I told him no, I am Mitch's partner. I gave him my name.
a. I asked why BKV, LLC got the notice. He told me it was an "anonymous complaint."
b. I told him that I guessed it was the neighbors who were suing Mitch to remove the trees and
10 he did not say anything. I told him that we believe that the trees are jointly owned. He did not say
11 anything.
12 c. I asked Mr. Osborne if he had inspected the vineyard property without anyone here because
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)a c 14 d. I told Mr. Osborne that the property is an active vineyard, roughly 60 acres with thousands
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15 of trees including a wooded ravine with a stream running thorough it.
o 16 e. I asked if they expected the vineyard to limb all trees and mow the whole 60 acres. I then
0P&a 17 told him that I thought agricultural properties were exempt.
18 f. He acknowledged that agricultural properties are exempt and that all we needed to do was
19 limb the trees alone the drivewav so a fire truck could uet throuah and mow and limb around the
20 residences. I asked about the barns, and he said "no", just the residences. I had him repeat this to me
21 several times and I repeated it back to him.
22 g. I asked him if we had to do anything with the trees between us and the plaintiffs'roperty
23 and he said, "no. "
24 h. I told him that we had hired a crew to do the work and that I would call him when they
25 finished so he could come back to inspect. He agreed to do this.
26 i. I hired Luis Cruz and his crew to do the work. I told Luis exactlv what Osbournc told me.
27 Limb the trees along the driveway about 6 feet back so that a fire truck could get through. Weed whack
28 around the big house. Limb trees and clear brush around the houses.
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406
j. Luis had 6 guys there for 3 days doing the work.
k. When Luis finished, I called Mr. Osbourne back on August 10, 2021, and we spoke for 6
3 minutes. I have the phone records. I told him the crew was finished and I told him all the work they did.
4 I was very specific. He seemed pleased. I told him that I wanted to be there when he came back for the
5 inspection so that I could I) let him through the gate and 2) have him show me if there was any
6 additional work that we needed to do. He agreed. We left it that he would call me the following week to
7 schedule his inspection. I never heard back from him. Attached as exhibit B is a true and correct copy
8 of my phone record (in the name of Robert Whitaker) reflecting the two calls with Mr. Osbourne.
9 Diligence
10 24. In my opinion, I think that Mitch also did everything that a reasonable, diligent, responsible
11 property owner would have done. We got the notice and did not understand it. I called the number on
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12 the notice and spoke with the person named on the notice (Osbourne) on two separate occasions. I
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w ra 13 asked questions and had him I) confirm the agricultural exemption; 2) confirm that we did not need to
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ac 14 mow fields or do anything around the barns; 3) had him explain (a couple of times) everything that we
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15 were required to do; 4) hired a crew to do the work; 5) called Osbourne back and invited him to meet
16 me at the property for the follow up inspection. I took notes of these conversations. Also, his telephone
17 number does appear on my phone records.
18 Reasonable Reliance on Appointed Representative
19 25. Our reliance on Osbourne (as the person giving the notice) was completely reasonable in my
20 opinion. Our reliance on his representation that we were exempt from 13A and that we only needed to
21 follow his instructions was more than reasonable. He was unequivocal on that, so I did not think there
22 was any reason to follow up with any other authority. I discussed this with Mitch and he agreed.
23 Fair Trial
24 26. The foregoing is so critical on 13A (reasonable reliance on the person listed on the notice
25 issue) and I am the only person who had these conversations with Mr. Osbourne. Plaintiffs'awyer
26 knew this. In order to win he filed an MIL to exclude me and my testimony. Unfortunately, the Court
27 bought his argument and prevented me from testifying. I believe that the granting of that MIL
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406
1 prevented Mr. Black from having a fair trial without regard to my knowledge of the facts and
2 witnessing of events is grounds for a mistrial.
3 ///
4 My Background
27. I am an ERISA attorney and have practiced in-house for 20 years as a benefits lawyer. I am
6 not a litigator. My role in "representing" Mitch and BKV in this matter is limited to helping them find
7 representation. I have listened to Mitch's deposition primarily for the purpose of monitoring his health
8 (Plaintiff s lawyer knows that). Certainly, some of Mitch's conversations are attorney-client privileged.
9 I have been on some calls with Grady but that is it. I have not read anyone's depositions including
10 Mitch's.
28. I did make an audible comment during the 3d day of his deposition. It was not "coaching" as
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12 plaintiff s lawyer claims. I came out of my office and went to my kitchen to make a lunch. Mitch was
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w es & 13 on Zoom doing his third day of deposition in the dining room which is connected to the kitchen in an
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&,e e 14 open concept house. Mitch's back was to me, and he could not even see me. My back was also to
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( -'& 0 15 Mitch. I overheard Mr. Bacho asking questions about what Osbourne said on his call to me. I said to
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myself (and the dogs who were lusting after my lunch) "he wasn't even on the call". Just then, Mitch
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said, "I wasn't on the call". Mr. Bacho ivcnt nuts and accused me of "ethical violations", "coaching
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18 the witness", etc. I was adamant that he was completely wrong. I told him I was not in any way
19 coaching Mitch. At that point he stated on the record, "thank you for admitting that you just coached
20 the witness." Mr. Bacho has a custom and practice of misstating things that people have just said. I told
21 him he was wrong and misstating what I had said. He insisted I leave the house (my house) and I said
22 no, I would finish making my lunch and go back to my office. I assured him that once in my office, I
23 wear noise cancelling earphones and cannot hear anything. That is what I did. It was not a "stunt", and I
24 was not "coaching the witness". I did speak but not to Mitch. I spoke to myself and my dogs. Mitch
25 may have heard me, Mr. Bacho did. I did not think about the fact that Mitch could hear me. Excluding
26 my critical testimony on this basis of Mr. Bacho's lies is patently wrong as I am the only person that
27 spoke with Osbourne. Interestingly, I understand that Dagmar did the same thing (answered out loud)
28 when Barry was on the stand.
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DECLARATION OF JOYCE VVHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406
29. I would have testified at trial in accordance with the testimony in this Declaration.
30. In my opinion, I strongly feel that excluding my testimony is irreparable harm to
3 Defendants and worthy in and of itself, of granting a new trial.
I declare under penalty of perjury under the laws of the State of California the foregoing is
5 true and correct.
6 Dated: 4-13-23
1, ht.vA r:,I(
Joge 'Qhitaker
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DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE
Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406
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O'RIEN WATTERS & DAVIS, LLP Michael G. Watters, Esq. (CSB No. 63140) Graden R. Tapley, Esq. (CSB No. 222636) 1550 Airport Blvd., Suite 201 Santa Rosa, CA 95403 (707) 545-7010 Attorneys for Mitchell G. Black and Deanne G. Black dba Black Knight Vineyards. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA 10 BARRY BRILLIANT, an individual; and Case No. SCV-267406 DAGMAR K. HOHENECK-SMITH, an m 12 individual and as trustee of THE DAGMAR DECLARATION OF JOYCE t/I HOHENECK-SMITH TRUST dtd December WHITAKER IN SUPPORT OF n o 13 14, 2010, DEFENDANT'S POST-TRIAL n o 0 oA 14 Plaintiffs, MOTIONS RE FIRE Q c& (n I/I r 15 vs. 16 MITCHELL G. BLACK, an individual and dba BLACK KNIGHT VINEYARDS; DEANNE G. 17 BLACK, an individual and dba BLACK 18 KNIGHT VINEYARDS; and DOES 1-20, 19 De fendants 20 21 I, Joyce Whitaker, declare as follows: 22 l. I am the significant other of Defendant Mitchell G. Black. I make this declaration in 23 support of Defendant Black's post-trial motions. 2. I am over the age of 18 and, except as otherwise stated, have personal knowledge of 24 the matters set forth herein and am competent to testify thereto if called upon as a witness. Mitch's Whereabouts at the time of the fire 3. On July 7, 2021 (day of fire), I was with Mitch Black at our house on Inverness Ave., 27 Santa Rosa, CA 95404 from 11:30 a.m. until approximately 2:15. I got on a work call at 2 pm. Mitch I DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al,, Sonoma County Superior Court Case No. SCV267406 I brought me my lunch while I was on the call and kissed me good-bye around 2:15 to 2:30. I later saw 2 him go outside and stop and talk for a while with our landscaping crew in the driveway. I do not 3 know THE EXACT time he left our house to return to the vineyard. 4. Any witness who says they saw or heard him on tractors in the afternoon are mistaken. He 5 was not at the vineyard; he was with me. 5. Mr. McGee testified that he assumed Mitch was lying about when he was mowing at the 7 vineyard property that day. Mitch was not lying. 8 Witness at Fire on July 7,2021 6. Around 3:30, my landscaper, Luis Cruz, knocked on the door of my residence. I answered 10 and he showed me smoke that was rising in the area of the vineyard. Luis told me that he and the crew 11 had been hearing lots of sirens. Luis had been to 4889 Grange vineyard many times to pick up wood 12 chips for our home property on Inverness and said there might be a fire in the vineyard. a c -/n /a r/ 13 7. I got in my car and immediately drove to the vineyard. No more than a 5-minute drive at / 0 / 0Q. 14 most. E& +Ã 0 o t I/I / 15 8. When I got there, I saw at least a dozen fire trucks from various fire departments (Cotati, / '/ D&& m? 16 Rohnert Park, Santa Rosa). I did not see Cal Fire at that time. I could see firefighters uphill toward the ~&a cottage (the apparent point of origin of the fire) and stretched across the field with hoses all the way 0 17 18 toward Guenza Road. 19 9. I saw members of Mitch's crew and asked where Mitch was. Blanca told me that she was 20 worried because Mitch was trying to fight the fire with the tractor. 21 10. Just a few moments later, Mitch came down the hill from the fire on the ATV. His face was 22 scorched and red, his hands and face were covered with soot and his eyebrows had been burned off. I 23 asked him if he was okay and what happened, and he said he did not know. I got in the ATV with him, 24 and we drove back up the hill toward the fire which was mostly out on the Grange Road portion of the 25 property but still low, burning in the direction of Plaintiffs'roperty. As soon as we got up the hill, a 26 firefighter yelled at us to take cover as there was an airdrop coming in. We ran inside the cottage and an 27 airtanker immediately came overhead and dropped retardant on the field between the vineyard and 28 Guenza Road. 2 DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCY267406 11. When we came out of the cottage, the fire was almost completely extinguished as far as I 2 could see. The fire fighters were walking not running and hoses were all the way over to Guenza Road. 12. I went to find Mitch's sister, Laurie, to make sure she was okay and to help her evacuate the 4 dogs and cats as we did not want them getting in the way of the frrefighters. I stayed at the vineyard 5 while Laurie drove the dogs and cats to the Inverness house. 13. I never saw Mitch spraying water on the wine barrels in the barrel barn. That did not happen 7 while the fire was burning. 14. Later, the firefighters were cleaning up and packing up. I was standing with Mitch when a 9 firefighter from a local station (maybe Cotati) came up, shook Mitch's hand and thanked him for all of 10 his help fighting the fire and providing information. 15. Later, a Cal Fire person walked up to me and Laurie Black. He introduced himself as the 12 CalFire Incident Commander and very rudely asked "where is the guy that started the fire?" I was a J 13 confused and said that there was no guy that started the fire. He then said that the 911 caller said a guy J 0 Q E~ 14 on a tractor started the fire. I corrected him and said that there was no one on the tractor when the fire a Q e a Mn a I 15 started. He then got very nasty and said, "there was a fire, something started it, what do you think it 16 was, aliens? lightning? a stranger?" I said I didn't know but thought it was his job to figure it out. I P5@ 17 don't recall his name; it was an unusual name. I also have the impression that when he approached us, 18 he had just arrived at the vineyard after being at plaintiffs'roperty. 19 16. Mitch's sister, Laurie, was there and said that she was the one who called 911 and may have 20 said that Mitch was on the tractor (trvina to nut it out) in the fire. She also told him that Mitch did not 21 start the fire with the tractor, but the man just turned and walked away. He was very rude, angry, 22 aggressive and patronizing. 23 17. I never saw this man or anyone from any fire department investigate the fire. I did not see 24 anyone look at the tractor or the mower. I did not see anyone walking the area where the fire started or 25 looking at the PG&E wires that crossed over the property or the transformer nearby. I did not see 26 anyone interviewing Laurie who was less than a hundred yards from the point of origin when the fire 27 started. Had she been asked; she could have cleared up any misunderstanding caused by her 911 call. 28 3 DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406 18. I observed many neighbors come by to check on the Blacks. I did not ever see the Plaintiffs 2 that day. 3 Mc Gee 19. I was with Mitch and Laurie after the fire. We were approached by a fire fighter who 5 introduced himself and Brandon McGee. He said, "I am sorry, but I was told that I have to give you a 6 citation." I do not recall him looking around, he just walked up and said that. He had a clipboard or 7 binder with some paperwork. I heard him tell Mitch that as the property owner he was required to sign 8 the paperwork. I also heard him ask for Mitch's California driver's license. I heard Mitch say he was 9 not comfortable signing it because it did not have any facts/it was more or less blank. I looked at it 10 briefly and saw that was true. McGee wrote some notes on the bottom about the timing of when Mitch 11 was mowing (before 11 in the morning). Laurie tried to tell him that she was the one that called 911 but 12 McGee did not seem interested. I then saw Mitch sign the form. I saw McGee hand a copy to Mitch, 13 and he handed it directly to me. I did not notice whether Mitch even read it. There was no interview. I vHo I 0 14 did not see or hear McGee ask Laurie any questions; and she was living in the cottage at the time. I did | o 15 not see or hear him ask Mitch any questions. I did not see him walk around and did not go up to the I/l r 4 o o& 0 16 apparent point of origin of the fire. The tractor was sitting up at the cottage and I did not see McGee oo raQ 0 4 17 walk up to it or look at or inspect it in any way. 18 20. It was my understanding that the citation is the same document that Plaintiffs claim as proof 19 of Mitch's "negligence." 20 21. To my personal knowledge, Cal Fire never followed up with Mitch on the notice or in any 21 other way. To my knowledge CalFire never returned to do an investigation. 22 Osbourne 23 22. I first met Osbourne at my Inverness property in approximately February/March of 2022. I 24 invited him to that property because we were doing fire abatement work and wanted to have a 25 scheduled open burn. Osbourne came to the house and walked the property with me and my landscaper, 26 Luis. Together we figured out good locations for the open burns. He approved our permit for open 27 burns and complimented us on the work we were doing. If I had been sitting in the court room, and if 28 someone had said my name to him, I believe that he would have recognized me. Attached hereto as 4 DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, el ak v. Black, et al., Sonoma County Superior Court Case No. SCV267406 I Exhibit A is a copy of Mr. Osbourne's business card that he gave me when we met at the Inverness 2 property. 23. I saw Mitch open a notice of violation he received in the mail from Cal Fire around July 4 2022. Mitch and I could not figure out why he got it or what was required by the notice. I saw that the 5 notice had Osbourne's name and number on it, so I called him on August 3, 2021. We had a 12 minute 6 call; and I have my phone records to prove this. I told him that Mitch got the notice, but we did not 7 understand it. He asked if I was Deanne and I told him no, I am Mitch's partner. I gave him my name. a. I asked why BKV, LLC got the notice. He told me it was an "anonymous complaint." b. I told him that I guessed it was the neighbors who were suing Mitch to remove the trees and 10 he did not say anything. I told him that we believe that the trees are jointly owned. He did not say 11 anything. 12 c. I asked Mr. Osborne if he had inspected the vineyard property without anyone here because n w ia 13 there are locks on the gates, and he did not really answer me. 0 )a c 14 d. I told Mr. Osborne that the property is an active vineyard, roughly 60 acres with thousands n + 8 o 15 of trees including a wooded ravine with a stream running thorough it. o 16 e. I asked if they expected the vineyard to limb all trees and mow the whole 60 acres. I then 0P&a 17 told him that I thought agricultural properties were exempt. 18 f. He acknowledged that agricultural properties are exempt and that all we needed to do was 19 limb the trees alone the drivewav so a fire truck could uet throuah and mow and limb around the 20 residences. I asked about the barns, and he said "no", just the residences. I had him repeat this to me 21 several times and I repeated it back to him. 22 g. I asked him if we had to do anything with the trees between us and the plaintiffs'roperty 23 and he said, "no. " 24 h. I told him that we had hired a crew to do the work and that I would call him when they 25 finished so he could come back to inspect. He agreed to do this. 26 i. I hired Luis Cruz and his crew to do the work. I told Luis exactlv what Osbournc told me. 27 Limb the trees along the driveway about 6 feet back so that a fire truck could get through. Weed whack 28 around the big house. Limb trees and clear brush around the houses. 5 DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406 j. Luis had 6 guys there for 3 days doing the work. k. When Luis finished, I called Mr. Osbourne back on August 10, 2021, and we spoke for 6 3 minutes. I have the phone records. I told him the crew was finished and I told him all the work they did. 4 I was very specific. He seemed pleased. I told him that I wanted to be there when he came back for the 5 inspection so that I could I) let him through the gate and 2) have him show me if there was any 6 additional work that we needed to do. He agreed. We left it that he would call me the following week to 7 schedule his inspection. I never heard back from him. Attached as exhibit B is a true and correct copy 8 of my phone record (in the name of Robert Whitaker) reflecting the two calls with Mr. Osbourne. 9 Diligence 10 24. In my opinion, I think that Mitch also did everything that a reasonable, diligent, responsible 11 property owner would have done. We got the notice and did not understand it. I called the number on Pl 12 the notice and spoke with the person named on the notice (Osbourne) on two separate occasions. I r/I o a 'u w ra 13 asked questions and had him I) confirm the agricultural exemption; 2) confirm that we did not need to J ~ aa ac 14 mow fields or do anything around the barns; 3) had him explain (a couple of times) everything that we + 8 o c & -'n I 15 were required to do; 4) hired a crew to do the work; 5) called Osbourne back and invited him to meet 16 me at the property for the follow up inspection. I took notes of these conversations. Also, his telephone 17 number does appear on my phone records. 18 Reasonable Reliance on Appointed Representative 19 25. Our reliance on Osbourne (as the person giving the notice) was completely reasonable in my 20 opinion. Our reliance on his representation that we were exempt from 13A and that we only needed to 21 follow his instructions was more than reasonable. He was unequivocal on that, so I did not think there 22 was any reason to follow up with any other authority. I discussed this with Mitch and he agreed. 23 Fair Trial 24 26. The foregoing is so critical on 13A (reasonable reliance on the person listed on the notice 25 issue) and I am the only person who had these conversations with Mr. Osbourne. Plaintiffs'awyer 26 knew this. In order to win he filed an MIL to exclude me and my testimony. Unfortunately, the Court 27 bought his argument and prevented me from testifying. I believe that the granting of that MIL 28 6 DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406 1 prevented Mr. Black from having a fair trial without regard to my knowledge of the facts and 2 witnessing of events is grounds for a mistrial. 3 /// 4 My Background 27. I am an ERISA attorney and have practiced in-house for 20 years as a benefits lawyer. I am 6 not a litigator. My role in "representing" Mitch and BKV in this matter is limited to helping them find 7 representation. I have listened to Mitch's deposition primarily for the purpose of monitoring his health 8 (Plaintiff s lawyer knows that). Certainly, some of Mitch's conversations are attorney-client privileged. 9 I have been on some calls with Grady but that is it. I have not read anyone's depositions including 10 Mitch's. 28. I did make an audible comment during the 3d day of his deposition. It was not "coaching" as Cl tA 12 plaintiff s lawyer claims. I came out of my office and went to my kitchen to make a lunch. Mitch was &s 2 w es & 13 on Zoom doing his third day of deposition in the dining room which is connected to the kitchen in an U 8 &,e e 14 open concept house. Mitch's back was to me, and he could not even see me. My back was also to e + 8 ol C ( -'& 0 15 Mitch. I overheard Mr. Bacho asking questions about what Osbourne said on his call to me. I said to I o o& 16 I myself (and the dogs who were lusting after my lunch) "he wasn't even on the call". Just then, Mitch cu mQ said, "I wasn't on the call". Mr. Bacho ivcnt nuts and accused me of "ethical violations", "coaching 0 17 18 the witness", etc. I was adamant that he was completely wrong. I told him I was not in any way 19 coaching Mitch. At that point he stated on the record, "thank you for admitting that you just coached 20 the witness." Mr. Bacho has a custom and practice of misstating things that people have just said. I told 21 him he was wrong and misstating what I had said. He insisted I leave the house (my house) and I said 22 no, I would finish making my lunch and go back to my office. I assured him that once in my office, I 23 wear noise cancelling earphones and cannot hear anything. That is what I did. It was not a "stunt", and I 24 was not "coaching the witness". I did speak but not to Mitch. I spoke to myself and my dogs. Mitch 25 may have heard me, Mr. Bacho did. I did not think about the fact that Mitch could hear me. Excluding 26 my critical testimony on this basis of Mr. Bacho's lies is patently wrong as I am the only person that 27 spoke with Osbourne. Interestingly, I understand that Dagmar did the same thing (answered out loud) 28 when Barry was on the stand. 7 DECLARATION OF JOYCE VVHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406 29. I would have testified at trial in accordance with the testimony in this Declaration. 30. In my opinion, I strongly feel that excluding my testimony is irreparable harm to 3 Defendants and worthy in and of itself, of granting a new trial. I declare under penalty of perjury under the laws of the State of California the foregoing is 5 true and correct. 6 Dated: 4-13-23 1, ht.vA r:,I( Joge 'Qhitaker 10 12 B 1 0 U 13 /7I U- 2 ca 0 0 G' 14 C Q a o t 0 o 15 I/I 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DECLARATION OF JOYCE WHITAKER IN SUPPORT OF DEFENDANT'S POST-TRIAL MOTIONS RE FIRE Brilliant, et al. v. Black, et al., Sonoma County Superior Court Case No. SCV267406 EXHIBIT A QQ il I ~ ~ wl rg Q V) L L C Q A Ai (8 C' .l~ Ce D , J Q r~~ ~ .Q 8 -~Q C j) ~fg QG ~ v". N EXHIBIT g ~ 44lygg gii@ e gg I 'sage details CVlRB,K55 -436RS44449' I ~ P,r. m/zs/F02z -, OSIZg!2p! I 'AGBERT 656619338C1 aims iiwa- LOGJAM'DQH,; SAlC ltlAVf4 'NAlA5 g," QgV Fae,iaraueOi~ gati mtlL& .1'':: 3 P54 ~gqg~~Q K+&. %» i'w ~ p~ " '& 1~4) A p '' gQ}pS""4+ INNM~PP4 98j ~ y)4453M k 4„W ~4I~ qQ,,;:= el '. 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