Preview
oT DAVIN R: BACHO (SBN 282613)
, JEFFREY S. LYONS (SBN 227277)
CLEMENT, FITZPATRICK & KENWORTHY
3 3333 Mendocino Avenue, Suite 200
Santa Rosa, CA 95403
4 || Telephone: (707) 523-1181
Facsimile: (707) 546-1360
5 || Email: dbacho@cfk.com or jlyons@cfk.com
6 Attomeys for Plaintiffs and Cross-Defendants
7 || Barry Brilliant and Dagmar Hoheneck-Smith
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SONOMA
11
12 || BARRY BRILLIANT, an individual; and Case No. SCV-267406
DAGMAR K. HOHENECK-SMITH, an
13 || individual and as trustee of THE DAGMAR MEMORANDUM OF POINTS AND
14 Peo aS TRUST dated December AUTHORITIES IN SUPPORT OF
? ? PLAINTIFFS’ OPPOSITION TO
15 DEFENDANTS’ MOTION FOR NEW TRIAL
Plaintiffs,
16 VS.
Trial Judge: Hon. Christopher M. Honigsberg
17 || MITCHELL G. BLACK, an individual and dba ,
ig | BLACK KNIGHT VINEYARDS; DEANNE G. Trial Date: February 24, 2023
8 | BLACK, an individual and dba BLACK
19 || KNIGHT VINEYARDS; and DOES ONE Date: 5/26/23
through TWENTY, inclusive, Time: 8:30 a.m.
20 Dept: 18
Defendants.
0 |
22 || AND RELATED CROSS-ACTION
23
24 | ////
25 I ////
26 Il ////
27
28
-l-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
ce TABLE OF CONTENTS
211. INTRODUCTION ....cccscecsccsessessecssesessecsssssesasesucsssssesssssassssssucssessessessessneanecsessseessessseesseessees4
3 | IL — LEGAL ARGUMENT o..sssessssscssssssessosssesesssesecsssnescessnneeseenneseeesnieessnneenssenesssnneessssssnnsesssssne4
A. PLAINTIFFS’ OPPOSITION TO SECTION I. (EXCESSIVE AND
4 UNSUPPORTED DAMAGES). ..csscsssssssssesssessesssessecsecssssscssnssecsnsescsscsssessecensecseeened
5 1. PLAINTIFF’S OPPOSITION TO SECTION I.A. (PUNITIVE
DAMAGES ISSUE). ...esssesssssssssssecsssesssvesssesssecssesssesssecssuscasecsssecssesssssceeseees
6 2. OPPOSITION TO SECTION LB (PUNITIVE DAMAGES NOT
7 SUPPORTED BY EVIDENCE). ..cssscssssssssssssssessessecssecssssssesssesscsssssessecssee7
3. OPPOSITION TO SECTION C. (PUNITIVE DAMAGES
8 RELATIVE TO ABILITY TO PAY)..ccsssssssssesssssseesesssssstesseesssessseecsseesee LO
4. OPPOSITION TO SECTION D. (PUNITIVE DAMAGE
9 RELATIONSHIP TO HARM)....ccsssssssesseescesssessessseseseseessessseessesssseeeseeese LI
10 5. OPPOSITION TO SECTION LE. (PUNITIVE DAMAGES
PHASE “RUSHED”)...cccccssssssescsssssssessseesssesssesssssssessesessesseesssesseesssseeese 13
I B. | OPPOSITION TO SECTION II (DEFENDANTS’ CLAIMS OF
0 PREJUDICE).0.csseesssesssssssssesssscsssscssscssssesssseccssssessueesssccsseessseceuneesaneeesneeerenteeeseneeeee 13
1. OPPOSITION TO SECTION IL.A (JUDGE’S MISCONDUCT)............13
13 2. OPPOSITION TO SECTION IL.B (JOYCE WHITAKER
4 EXCLUDED). o.ececessessssessessvescsessssessssessssssssssssesssesssesssesessecsatecssseesseesssseeese 13
3. OPPOSITION TO SECTION IIL.C (LEXINE BLACK AS
15 CORPORATE REPRESENTATIVE) ..cccccssssssssssssessesssessecsesssssseesseesseseseee 14
4. OPPOSITION TO SECTION II.D (DEFENDANTS’ CALLING
16 PLAINTIFF IN THEIR CASE)..ecessessssessssssssssssssssessssssssssssscaseesssessssseeesee 15
17 5. OPPOSITION TO SECTION ILE (CROSS-EXAMINATION OF
EXPERTS). ceccsccssscssssssssssssssesssessssesssscsssecssuscssecssecsssccssecsnecsseessseesseesessseesee
16
18 6. OPPOSITION TO SECTION IF (PLAINTIFFS’ EXPERTS
19 INTERPRETED THE LAW). ceccscsssssessssssessscssssssssssessssesnessesssessscsssseesseess 16
7. OPPOSITION TO SECTION IL.G (COURT REJECTED
20 PROPOSED SETTLEMENT)...cccscssessssssesssesssesssessessstessesseesssesseessseesseeese 16
8. OPPOSITION TO SECTION II.H (OTHER DECISIONS BY
21 THE COURT). ccscsssessssssssesstssseessseessssesssecssecssssesscssesaecssecssecesseesseesessseesse 16
2 C. OPPOSITION TO SECTION Ull...eccsesccsssssssssssssssssesssescssssessesssessesssesseccssesssseeseee17
1. OPPOSITION TO SECTION UI.A.I-VII (PLAINTIFFS’ PROOF
23 OF OUT-OF-POCKET DAMAGES). ocescsssssssssssesssesssesstessesssessstessseecseeeeLT
24 2. OPPOSITION TO SECTION ILA.VIII (COST TO REMOVE
25 3.
OPPOSITION TO SECTION IIL.A.IX (STOKING THE
36 PASSION OF THE JURORS). cosccssssssssssssssssesssssessseessesssesstesseesssecssseeseees 18
TIL. 18
CONCLUSION u.eeecesssecssesssessecsssssecssecsvessesssessssssesssecssvesssessesssssessssecsscsessssssssesnecennessseeesee
27
28
-2-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
rs os TABLE OF AUTHORITIES
2 CASES
3 || Ferraro v. Pac. Fin. Corp. (1970) 8 Cal.App.3d 339, 351 ee cesseescessecesscesseesceesssesesesesesseneeesee)
4 Fletcher v. W. Nat'l Life Ins. Co. (1970) 10 Cal. App.3d 376, 409.0... ee eeseeeeesestetsertreseeeel1
Forty-Niner Truck Plaza v. Union Oil Co.(1997) 58 Cal.App.4th 1261, 1282.00.00... cee 7
> Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 608-09 oo... cece seesecteseesesesetesseeeeeene®
6 || People v. Dennis (1998) 17 Cal.4th 468, 514.0... eeeeescesceseeseesecseeesseeesesetsscssesesscesessessscssssess
es
7 Roberts v. Ford Aero. & Commc'ns Corp. (1990) 224 Cal. App.3d 793, 797 ....ceesseseeeeereeel]
Silberg v. Cal. Life Ins. Co. (1974) 11 Cal.3d 452, 462 oie cecseseecsesesseeeseesesessesereenessesseeeee)
8 Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 194-95 oo. 8
9 || Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 318, 322 0... cececseeseteteeereereed
10 STATUTES
11 Civ. Code § 3294 ...cecccssccssesssccesseeeseessccsseetceeseeeseeseaeenseceesesesesasoessessecssenssssssesessscseesssesstensenseeeeess
Code Civ. Proc § 629......ccccccccssesssecseeesseesecesnecccesseceneeeeeessasessacsssesssesseecesassecsssessssssesssseesssssenessseassD
12 Code Civ. Proc § 657 cssccssssssssssessssessssesssussssseesassasesensnassesenunensesssunesssessissssssetussssssiesstisessssesd
13} Code Civ. Proc § 659......cccccssessesssessceseeeseeeecenceseeeceenessecseesseecenaceseesesesessesesscsssenscnessssssesensessesesesesd
14 Code Civ. Proc § 6638 .....:ccccecccsccsscesseeneesneeseeseensecsceeseescessceseesseesecsssessecssessesssessesssseeseassessscsesesesesseA
Code Civ. Proc §438(d) ..ccccccccccsccsscessesesssesseessessesceeeaeeseeseeesecnessaecaeceseceeseessseessessessssssseseseserseeees
LO
IS HT Code Civ. Proc §438(6) soscssssssssssssessssusssssessessnsssssseeessssnseseesssnasasssssesussssssesesesessssssessesseseesss6
16 }} Code of Civ. Procedure § 1987(b)........eececcesecsecesseeeeecssessseseeseesscessesescsssessesesesesessseseessseesessees
LO
17 || Evid. Code § 351 Saeseseseseecsneessecensecssecsauceseecssesasensecenseseceneceneeeseesseecseceseesecessscssoessoesecessessssseseeese LO
Evidence Code § 352.....cccccsesscssscensecsesceescesceseceacessessecaeeeeseseeeeessessseesesnscessesssesssssssesssssesnssseetOy LO
18 Evidence Code § 765 .....ccccccsccssscessecescesssecsceeesececeecsccesnscsaecsareesseessecsseseasesseeesssssecsnssessssssessssssssseee
LO
19 Ht Evidence Code § 813(a) .....cceccesccscssssesceseesecceeccceesesecsecesecesessestesssssasssessessssceessseatessessesstseseeeee
LO
20 RULES
21 Cal. Rules of Court, Rule 3.1113 oo... ccc cccsscccceesseeecessseeeesseececsnnneeessseeeceesaeesesseseessssesessesseesosse
Cal. Rules of Court, Rule 3.1113(k).....cc ccc eeeecscseeecseeeeenectecsaceessesecnnstsesseesssessessetssesseseesesee
lO
22 California Rules of Professional Conduct, Rule 3.3.0.......c.cccsscccssssreceessecceesseeeeecsseesessseerssserseeees
23
24
25
26
27
28
-3-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
TP Plaintiffs Barry Brilliant and Dagmar Hoheneck-Smith respectfully submit this opposition to the
2 || Motion for New Trial (‘“MFNT”) filed by defendants Mitchell G. Black, Deanne G. Black, and Black
3 || Knight Vineyards, LLC (collectively “Defendants”).
4 I. INTRODUCTION
5 Judgment was entered in favor of Plaintiffs after a 14-day jury trial. (Decl. of Davin R. Bacho
6 || “Decl. of Bacho” at J 3 and Exhibit A.) Afterwards, Defendants filed three post-trial motions: a motion
7 || for Judgment Notwithstanding the Verdict (Code Civ. Proc § 629); a Motion for New Trial (Code Civ.
8 || Proc § 659); and a Motion to Vacate Judgment and Enter Another and Different Judgment (Code Civ.
9 || Proc § 663a). On April 13, 2023, Defendants filed and served one non-conforming memorandum of
10 || points and authorities in support of all three motions, which substantively only argues Defendants’
11 || Motion for New Trial.! (Decl. of Bacho at § 4; See also Defendants’ moving documents.)
12 I. LEGAL ARGUMENT
13 Defendants’ Notice of Intention to Move for New Trial recites all 7 grounds provided for under
14 || Code Civ. Proc § 657 as follows:
15 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the
court or abuse of discretion by which either party was prevented from having a fair trial.
16 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced
to assent to any general or special verdict, or to a finding on any question submitted to them by
17 the court, by a resort to the determination of chance, such misconduct may be proved by the
affidavit of any one of the jurors.
18 3. Accident or surprise, which ordinary prudence could not have guarded against.
4. Newly discovered evidence, material for the party making the application, which he could
19 not, with reasonable diligence, have discovered and produced at the trial.
5. Excessive or inadequate damages.
20 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or
other decision is against law.
21 7. Error in law, occurring at the trial and excepted to by the party making the application.
22 Defendants’ MPA submitted in support of the MFNT fails to distinguish to what grounds each of
23 || their various arguments and complaints applies. However, as a threshold matter, the court can deny the
24 || MENT as to the grounds of #2 Misconduct of the Jury, #3 Accident or Surprise, and #4 Newly
25 || discovered evidence because no juror affidavit was provided to support misconduct, and no argument,
26 || evidence, or declaration of diligence was presented in the moving papers demonstrating any accident,
27 f§$. ————_
' Plaintiffs hereby incorporate the argument stated in Plaintiffs’ Opposition to Motion JNOV (Section A)
28 || submitted herewith regarding Defendants’ disregard for Rule 3.1113 of Cal. Rules of Court
-4-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
Tt surprise; or newly discovered evidence. ~
2 As to the remaining grounds, since none are addressed in the MPA, this opposition will track the
3 || format of the arguments and authorities stated in the MPA and oppose them accordingly.
4 || A. Plaintiffs’ Opposition to Section I. (Excessive and Unsupported Damages).
5 In Section I, Defendants merely string cites legal authority without reference to its application to
6 || any argument or facts.
7 1. Plaintiff's Opposition to Section I.A. (Punitive Damages Issue).
8 The trial court was correct in letting the jury consider awarding punitive damages. “In order to
9 || justify an award of exemplary damages, the defendant must be guilty of oppression, fraud or malice.
10 || (Civ. Code § 3294.) He must act with the intent to vex, injure or annoy, or with a conscious disregard of
11 || the plaintiff's rights.” Silberg v. Cal. Life Ins. Co. (1974) 11 Cal.3d 452, 462. “The granting or
12 || withholding of the award of punitive damages is wholly within the control of the jury and may not legally
13 || be influenced by any direction of the court that in any case a plaintiff is entitled to them. Upon the
14 |] clearest proof of malice in fact, it is still the exclusive province of the jury to say whether or not punitive
15 |} damages shall be awarded.” Ferraro v. Pac. Fin. Corp. (1970) 8 Cal.App.3d 339, 351. “The courts of this
16 || state have long recognized that punitive damages are recoverable for an area of tortious conduct more
17 || culpable than negligence, but falling short of intentional conduct.” Sturges v. Charles L. Harney, Inc.
18 | (1958) 165 Cal.App.2d 306, 322.
19 a. Opposition to Section I.A.i. (Plaintiffs’ Right to Punitive Damages).
20 Plaintiffs’ First Amended Complaint sought punitive damages under the causes of action for
21 || Public Nuisance, Private Nuisance, Trespass, and Negligence (COA 1, 2, 3 and 5 respectively). (Decl. of
22 || Bacho at 95.) “{I]t is well settled in this state that an owner of land may not do even nonnegligent acts
23 || onhis property with impunity where they create a nuisance as to his neighbor. Sturges v. Charles L.
24 || Harney, Inc. (1958) 165 Cal.App.2d 306, 318. “[W]here the trespass is committed from wanton or
25 || malicious motives, or a reckless disregard of the rights of others, or under circumstances of great
26 || hardship or oppression, the rule of compensation is not adhered to, and the measure and amount of
27 || damages are matters for the jury alone.” Jd. at 322.
28 Here, overwhelming evidence was presented to the jury that Plaintiffs were fearful of going down
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
~~~—~T~ | onto that portion of the property near the stand of over 100 poplar trees nearly 100 feet tall because of
2 || Defendants’ acts and omissions involving trees, branches, and debris falling on Plaintiffs’ property,
3 || trapping their animals, and the fire danger presented by the lack of maintenance on Defendants’ property-
4 || the very conduct upon which these claims were based. (Decl. of Bacho at { 6 and Exhibit B, specifically
5 || RT 394:8-15; 401:13-403:9; 407:4-22; and Decl. of Bacho at 7 and Exhibit C, specifically Trial
6 || Exhibits 85, 85A and 85B.”) The jury was informed about repeated and corresponding pleas from
7 || Plaintiffs for Defendants to participate in doing something about these issues. See for example 417:6-
8 || 419:10; Trial Exhibit 76; 422:6-423:18; Trial Exhibit 80; 432:8-433:10; Trial Exhibit 84. (Decl. of
9 || Bacho at §§ 6 & 7 and Exhibits B & C.) Evidence was presented regarding Defendants’ exercise of
10 || control over the maintenance or removal of the trees, and the Defendants’ indifference. See for example
11 || RT 416:14-22. (Decl. of Bacho at { 6 and Exhibit B.) Then, Dr. Daniel Roberts provided overwhelming
12 || evidence that the trees did not contribute to the agricultural operation of BKV, and no scientific evidence
13 | was presented by Defendants demonstrating their claims that the trees contributed to the agricultural
14 || operation. (See example at RT 709:16-741:7.) (Decl. of Bacho at § 6 and Exhibit B). Defendants
15 || presented only speculation concerning their observations that the trees could block the wind at times, but
16 || the defense failed to provide an expert to support their theories or any scientific reasoning as to how the
17 || trees might have contributed to the vineyard and resulting wines.
18 The overwhelming affirmative evidence, and the lack of evidence to support Defendants’ spurious
19 || claims the trees were a valuable and integral part of the vineyard operation, combined with the evidence
20 || that Defendants’ failed to place any value on the trees to the vineyard in any of their sales materials, and
21 || the fact that they retained the ability during the sale to remove the trees at their own discretion could
22 || convince a jury of a malicious motive because their stated motive didn’t add up or comport with Mr.
23 || Black’s deposition testimony that the Plaintiffs only wanted a view of his vineyard.
24 b. Opposition to Section L.A.ii. (Jury Instructions).
25 Defendants’ argument that there was error in jury instructions regarding punitive damages is
26 || without merit. First, the jury instructions were joint instructions and stipulated by both parties. (RT
27 | ———————_——_____—_
2 Citations to “RT” means the Reporter’s Transcript from trial, the cited excerpts of which are attached as
28 || exhibits to the Declaration of Davin R. Bacho (“Bacho Decl.”).
MEMORANDUM OF POINTS AND RUTHOMEES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
—"T-1°1500:2-5) (Decl. of Bacho at § 6 and Exhibit B.) As such, Defendants cannot attack the instructions given
2 || as being improper. See People v. Dennis (1998) 17 Cal. 4th 468, 514 (“If defendant believed the
3 || instructions were incomplete or needed elaboration, it was his obligation to request additional or
4 || clarifying instructions. His failure to do so waives the claim in this court.”). Allowing a collateral attack
5 || on stipulated instructions would only serve to give the losing party another bite at the proverbial apple
6 || after trial.
7 Second, during trial, defense counsel agreed that the issue of punitive damages would not be
8 || bifurcated. (RT 656:6-16). (Decl. of Bacho at § 6 and Exhibit B.) Then just before the jury was to be
9 || brought in on the last day presentation of evidence, the defense backtracked saying it was his
10 || “understanding or perhaps misunderstanding” that the issue would be bifurcated. (RT 1499:5-1500:14),.
11 || (Decl. of Bacho at § 6 and Exhibit B.) This took the court and Plaintiffs’ counsel by surprise. As a
12 |] result, Plaintiffs stipulated to the bifurcation of the punitive damages issue, and the court noted it would
13 || use the bifurcated CACTI instructions instead of the non-bifurcated instructions previously agreed upon.
14 || (RT 1502:6-19). (Decl. of Bacho at J 6 and Exhibit B.) No objection was made by defense counsel.
15 Third, Defendants pose a disingenuous argument that the instructions given were biased. The
16 || MPA cites (page 5, line 23 through page 6, line 3) instructions given to the jury as being “not the usual
17 || instruction.” The cited instructions are second phase instructions given affer the jury found punitive
18 || damages were available and are only go to the issue of amount. They are verbatim CACT instructions
19 || 3942 for the second phase with defendants’ names inserted. The proper instructions (stipulated) were
20 || given at the close of evidence regarding punitive damages for the first phase (finding of availability of
21 || such damages) CACI forms 3941 (individual defendant) and 3946 (entity defendant) only modified to
22 || include defendants’ names. Those instructions include definitions of malice, oppression, and despicable
23 || conduct that were read to the jury. (RT 1563:12-1566:6). (Decl. of Bacho at § 6 and Exhibit B.) The
24 || “clear and convincing” definition, and the instruction that it applies to the punitive damages component,
25 || was read to the jurors as well. (RT 1643:11-16). (bid)
26 2. Opposition to Section I.B (Punitive Damages not Supported by Evidence).
27 Defendants’ argument that the punitive damages award is not supported by evidence is without
28 || merit. See Opposition to I.A.i. above.
MEMORANDUM OF POINTS AND RUTHORTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
ee os |e a. Opposition to Section I.B.i (Trial Court’s Duty to Reduce Punitive Damages).
2 The jury returned a unanimous verdict finding malice or oppression in its finding for the
3 | availability of punitive damages. (RT 1707:21-1708:20). (Decl. of Bacho at { 6 and Exhibit B.) This was
4 || confirmed by a polling of the jury. (RT 1712:6-1723:11). (Zbid) Considering the verdict and the evidence
5 || before the court, the jury was justified in considering an award of punitive damages.
6 Defendants’ argument that the financial information evidence didn’t support the amount of
7 || punitive damages is also without merit. Defendants played games all through trial to hide their financial
8 || information which forced the trial court to issue an order for them to be produced or sanctions would
9 || apply. Sanctions were ultimately waived when some financial documents were provided to Plaintiffs’
10 || counsel at 4 pm _on the day before close of evidence. In continuing their gamesmanship, Defendants
11 || however would not stipulate to the authenticity of the very financial records they provided, which likely
12 || led to objections of lacking foundation being overruled during the second phase of the trial when these
13 || same documents were presented to Lexine Black, who identified herself as a managing member of Black
14 || Knight Vineyards, LLC, and its Chief Operations Officer. (RT 1212:23-1213:1). (Decl. of Bacho at { 6
15 || and Exhibit B.) Clearly, this stunt was intended to hinder Plaintiffs’ ability to put on evidence of the
16 || financial position of the defendants. In fact, Defendants offered Lexine Black specifically to testify on
17 || behalf of BK-V with respect to the punitive damages phase. (RT 1710:19-1711:2). bid) The court has
18 || the power to admit all relevant evidence (Evidence Code § 352 and was well within its power to admit
19 || evidence over objections of lacking authenticity, or foundation, when the very documents were those
20 || provided by the objecting party pursuant to the court’s order as evidence of their financial condition.
21 Defendants cannot avoid providing evidence of their financial information with impunity and then
22 || claim the financial evidence was inadequate. When a defendant fails to cooperate with supplying the
23 || financial information necessary for the plaintiff to prove financial condition in the punitive damages
24 || phase of a trial, the trial court has discretion to proceed even without any proof, and appellate courts have
25 || upheld punitive damages awards in such situations. Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th
26 || 597, 608-09 (“Therefore, by failing to bring in any records which would reflect his financial condition,
27 || despite being ordered to do so, and by failing to challenge that ruling on appeal, defendant has waived
28 || any right to complain of the lack of such evidence.”). The sufficiency of evidence to prove financial
MEMORANDUM OF POINTS AND AUTOR IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
~~~" TF" condition is on a case-by-case basis as articulated in Soto v. BorgWarner Morse TEC Inc. (2015) 239
2 || Cal.App.4th 165, 194-95 (internal citations omitted):
3 Our Supreme Court has not prescribed a rigid standard for measuring a defendant's ability
to pay. Accordingly, there is no one particular type of financial evidence a plaintiff must
4 obtain or introduce to satisfy its burden of demonstrating the defendant's financial condition.
Evidence of the defendant's net worth is the most commonly used, but that metric is too
5 susceptible to manipulation to be the sole standard for measuring a defendant's ability to pay.
Yet the “net” concept of the net worth metric remains critical. “In most cases, evidence of
6 earnings or profit alone are not sufficient ‘without examining the liabilities side of the balance
sheet.’ Evidence of a defendant's income, standing alone, is not “‘meaningful evidence.’”
7 “Normally, evidence of liabilities should accompany evidence of assets, and evidence of
expenses should accompany evidence of income.” “‘Without evidence of the actual total
8 financial status of the defendants, it is impossible to say that any specific award of punitive
damage is appropriate.’ “Thus, there should be some evidence of the defendant's actual
9 wealth” but the precise character of that evidence may vary with the facts of each case.
10 Here, the parties stipulated on the record that Plaintiffs would put on evidence of assets, and
11 || Defendants would put on evidence of debts against those assets. (RT 1725:9-13). (Decl. of Bacho at § 6
12 || and Exhibit B.) Plaintiffs’ evidence consisted of financial documents provided by Defendants combined
13 || with the sworn testimony of Mitchell Black from his February 10, 2023, deposition, and live testimony
14 || by Lexine Black as a representative of BKV. As stated in Soto above, “the ‘net’ concept of net worth
15 || remains critical.” The testimony read into evidence was Mr. Black’s response as to the net worth of
16 || BKV “as you sit here today.” Defendants then examined Lexine Black and they introduced evidence as
17 || to the liabilities of BKV. As such, the jury got recent financial information from both sides that they
18 || could use to determine the amount of punitive damages.
19 Defendants’ further argument that the punitive damages award was excessive is also without
20 || merit. The jury awarded $500,000 in punitive damages after considering all of the evidence before it. It
21 || should be noted that Defendants agreed to a punitive damages award of $300,000 by stipulation, but they
22 || could not get the stipulation on the record without Mr. Black’s participation. As such, the issue went to
23 || the jury. At that point, both sides bore a significant risk of whether the jury would award any punitive
24 || damages, or more or less than the agreed $300,000. A risk Defendants were willing to take.
25 b. Opposition to Section I.B.ii (Evidence of Reprehensible Behavior).
26 As demonstrated in Opposition to I.A.i above, there was ample evidence of Defendants’
27 || reprehensible behavior.
28 | ////
-9-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
eT yp 3. Opposition to Section C. (Punitive Damages Relative to Ability to Pay).
2 The arguments in Section C are the same as those in Section B, viz, Defendants argue that the
3 || evidence of financial position of the Defendants was inadequate and, as a result, do not comport with
4 || Defendants’ ability to pay. Plaintiffs refer to the argument and evidence presented in Opposition to
5 || Section I.B.i as to the evidence and procedure used in the second phase of the punitive damages trial.
6 Defendants’ argument that the assessment of punitive damages had nothing to do with the
7 || conduct of the Defendants that caused Plaintiffs’ injury is meritless. The jury’s verdict forms expressly
8 || found the conduct of Mitchell Black, Deanne Black, and BKV to have been with malice or oppression.
9 || See Judgment, Request for Judicial Notice (““RFJN”) Ex. 1 and Decl. of Bacho at 3 and Ex. A.
10 a. Opposition to Section I.C.i (Plaintiff’s Burden to Establish Financial Condition).
11 Plaintiffs refer to the argument and evidence presented in opposition in Opposition to Section
12 || I.B.i above regarding the evidence and procedure used in the second phase of the punitive damages.
13 b. Opposition to Section I.C.ii (Defendants’ Current Worth).
14 Defendants argue that Plaintiffs must show Defendants’ current worth to support an award of
15 || punitive damages. Here, Defendants were under court order to provide the documentary evidence of
16 || Defendants’ worth. (Decl. of Bacho at J 8.) Documents were eventually provided to Plaintiffs by the
17 || Defendants the day before closing arguments although Defendants would not stipulate to the documents’
18 || authenticity. (bid) If the documentation provided was not current, or authentic, that would be the result
19 || of the Defendants’ willful disobedience of the court’s order. (/bid) The sworn testimony of value and net
20 || worth read from Mr. Black’s deposition was from February 10, 2023, two weeks before the start of the
21 || trial. As such, the information was current. (bid)
22 Cc. Opposition to Section I.C.iii (Seasonal Nature of the Defendants’ Business).
23 Defendants’ argument that the “seasonal nature” of the BKV business was not considered by the
24 || jury lacks merit. Lexine Black testified that it is “a highly seasonable” business. If Mr. Tapley didn’t
25 || pursue that angle as part of the defense’s case, that is his error, but the jury did get testimony that their
26 || business is allegedly “seasonable.” (Decl. of Bacho at § 9.)
27 d. Opposition to Section I.C.iv (Owner’s Opinion of Value).
28 Defendants further argue that Mitchell Black’s testimony as to the value of his own property is
MEMORANDUM OF POINTS AND KUTHORTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
oee"T | not credible. It is ironic that Defendants are in the position to attack Mr. Black’s credibility. As the
2 || Defendants recognize, the opinion of the value of property can be expressed by its owner under Evidence
3 || Code § 813(a). Mr. Black’s opinions of value stated under oath were properly read into evidence. (Decl.
4 || of Bacho at 7 8.) The value of the property was relevant to the issues at hand and as such, admissible.
5 || “Except as otherwise provided by statute, all relevant evidence is admissible.” Evid. Code § 351.
6 e. Opposition to Section I.C.v (Evidence of Value).
7 Defendants argue that evidence such as the purchase agreement lacked “timeliness and
8 || relevancy.” However, Mitch Black testified at his deposition on February 10 as to the value of BEV
9 || stating that its value is “what someone is willing to pay for it.” That portion of his deposition was read
10 || into evidence. (RT 1745:15-17). (Decl. of Bacho at JJ 6 and 10 and Exhibit B.) The purchase agreement
11 || that was entered into evidence and confirmed by real estate broker David Ashcraft, is further evidence
12 || relevant to show what somebody was actually willing to pay-therefore, relevant evidence. (/bid)
13 f. Opposition to Section I.C.vi (Unauthenticated and Hearsay Evidence).
14 Plaintiffs fully incorporate and restate the argument and evidence in opposition to Section [.B.i as
15 || though fully set forth here.
16 g. Opposition to Section I.C.vii (Estimates of Net Worth).
17 Plaintiffs fully incorporate and restate the argument and evidence in opposition to Section I.B.i as
18 || though fully set forth here.
19 4. Opposition to Section D. (Punitive Damage Relationship to Harm).
20 Defendants claim that the punitive damage award bears no relationship to the compensatory
21 || damages awarded. In doing so, they focus only on the physical out-of-pocket damage claims related to
22 || the fence and completely ignore the rest of the verdict including the non-economic damages awarded,
23 || which are compensatory damages to consider when calculating the relationship of compensatory damages
24 || to punitive damages. See Roberts v. Ford Aero. & Commce'ns Corp. (1990) 224 Cal.App.3d 793, 797.
25 |} The jury found $90,000 compensatory damages as to the premises liability claim, and $867,500 as to the
26 || remaining causes of action. (RT 1711:9-25). (Decl. of Bacho at § 6 and Exhibit B.) The compensatory
27 || damage award is $957,500, and jury’s punitive damages award was 52.2% of that. (bid and Exhibit A.)
28 fe ////
-ll-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
eee Ty a. Opposition to Section D.A.i (“More than Compensated”).
2 Section D.A.i argues that the Plaintiffs were already “more than compensated” through
3 || compensatory damages making the punitive damages “excessive.” Defendants’ focus on the “value of
4 || the fence” and the “diminution in value” of the Plaintiffs’ property are not relevant. Punitive damages
5 || are not meant to be a component of compensatory damages. ““The primary function of punitive damages
6 || is to deter the defendant and those similarly situated from engaging in similar tortious conduct in the
7 || future.” Fletcher v. W. Nat'l Life Ins. Co. (1970) 10 Cal.App.3d 376, 409. As such, whether Defendants
8 || consider the Plaintiffs to be “more than compensated” is not relevant.
9 b. Opposition to Section D.A.ii (Double Compensation — Judgment on the Pleadings).
10 During trial, Defendants submitted a Motion for Judgment on the Pleadings arguing that Plaintiffs
11 || brought this case without standing and committing fraud by trying to get compensated again after being
12 || compensated through an insurance claim. This argument was advanced by Defendant’s counsel even
13 || though Defendants’ counsel knew that this argument was false and by presenting it violated California
14 || Rules of Professional Conduct, Rule 3.3 (Candor Toward the Tribunal) which states in relevant part: “A
15 || lawyer shall not: knowingly make a false statement of fact or law to a tribunal or fail to correct a false
16 || statement of material fact or law previously made to the tribunal by the lawyer [or] ... offer evidence the
17 || lawyer knows to be false.”
18 Defendants’ motion argued that Plaintiffs made an insurance claim for fire damage to their fence.
19 || MPA 14:16-18. It offers Trial Exhibit 85 as evidence of the fraud wherein Plaintiffs state in a letter to
20 || Defendants that they were tendering a claim for fence damage to their insurance carrier. The August 18,
21 |} 2020 letter predates the July 7, 2021 fire by nearly a year, so the letter is obviously not the evidence
22 l| Defendants were trying to pass it off for. Also, Exhibit 85 was introduced into evidence during direct
23 || examination of Barry Brilliant, so Defendants’ argument that they were precluded from cross-examining
24 || him on it are unfounded.
25 Although Defendants’ counsel was given the opportunity to put the hearing off on the Motion and
26 || include it in a post-trial motion, Defendants’ counsel elected to have the motion heard on March 28
27 || where it was denied. (3/28/23 Judgment after Trial RT 27:14-31:12). (Decl. of Bacho at {| 6 and Exhibit
28 || B.) Now, Defendants’ counsel re-argues the motion on the same grounds it was previously denied
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
~~" TW knowing full well the evidence does not support it. This argument in the MFNT is a clear violation of
2 || California Rules of Professional Conduct, Rule 3.3.
3 5. Opposition to Section I.E. (Punitive Damages Phase “Rushed”).
4 Defendants’ argument that the second phase procedure they agreed to was “rushed” is not well-
5 || taken. In scheduling the second phase of the punitive damages issue, the court specifically asked trial
6 || counsel that, if the jury was willing to stay, could they put on the second phase and how much time it
7 || would take. Defense counsel agreed. Plaintiffs’ counsel requested about 30 minutes, and defense counsel
8 || stated he needed about 30 minutes; and, they also agreed to a short time for argument to the jury. (RT
9 | 1723:20-1725:18). (Decl. of Bacho at J 6 and Exhibit B.) This procedure for the second phase was
10 || stipulated without objection. Defendants also offered Lexine Black to testify on behalf of BKV with
11 || respect to the punitive damages phase. (RT 1710:19-1711:2). (bid)
12 | B. Opposition to Section II (Defendants’ Claims of Prejudice).
13 The record reveals that throughout the trial the judge was even-handed and made prudent
14 || decisions with respect to both sides.
15 1. Opposition to Section ILA (Judge’s Misconduct).
16 Defendants’ conclusory statements of “mistreatment” lack any factual support. Defendants’
17 || reference generally to the declarations of Mitchell Black, Joyce Whitaker, and Graden Tapley to support
18 || their conclusions, but the memorandum lacks any argument in this section as to any specific acts
19 || supported by those declarations as required by Cal. Rules of Court, Rule 3.1113(k) “All references to
20 || exhibits or declarations in supporting or opposing papers must reference the number or letter of the
21 || exhibit, the specific page, and, if applicable, the paragraph or line number.” The declarations are not
22 || referenced for support of specific legal argument. Instead, Defendants seem to expect the court or
23 || opposing counsel to comb through the declarations to make connections to legal arguments for them.
24 2. Opposition to Section I1.B (Joyce Whitaker Excluded).
25 The testimony of Joyce Whitaker was the subject of Motion in Limine (MIL)#6. Defendants make
26 || arguments in their post-trial motion that they failed to include in their opposition to MIL #6 such as Mr.
27 || Watters’s inexperience with Ms. Whitaker’s role, and the limited extent of her representative capacity.
28 || However, the substance of Ms. Whitaker’s testimony proposed, or the testimony stated in her declaration
MEMORANDUM OF POINTS AND KOTHORITTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
~~~~"""T "in support of this motion, reveal that the facts she intended to testify to all came to the jury through other
2 || witnesses. Furthermore, although Defendants now argue that Ms. Whitaker’s testimony was crucial to
3 || their case, when asked in special and form interrogatories to identify witnesses, she was never identified.
4 || (Decl. of Bacho at 912 and Exhibits D and E.)
5 For instance, Mr. Black’s responses to Form Interrogatory 17.1 which are follow-up questions
6 || requiring the responding party to explain any denials to Requests for Admission demonstrate the lengths
7 || he was willing to go to withhold information. In RFA #2, Mr. Black denied he was negligent in starting
8 || the fire on his property. In his 17.1 response which requires the responding party to “state all facts upon
9 || which you base your response” and “state the names, ADDRESSES, and telephone numbers of all
10 || PERSONS who have knowledge of those facts,” he says “There are no facts that support the claim that I
11 |] acted negligent. There are no persons that have knowledge that I was acting negligently. There are no
12 || documents or tangible items that indicate was acting negligently.” Obviously, if Joyce Whitaker was such
13 |] a key witness, she should have been identified here. The interrogatory does not request the identity of
14 || persons with knowledge of his negligence. It specifically requests the identity of persons with knowledge
15 || of the fact upon which he bases his denial. These responses were provided in October 2022, long after the
16 || events discussed as being part of Ms. Whitaker’s testimony, and only 4 months prior to trial. Similarly,
17 || he denied at RFA #9 that he misled an agent of CALFIRE. (Decl. of Bacho at 13 and Exhibit F.) His
18 || follow-up response was similarly evasive and did not identify Ms. Whitaker as a witness who could
19 || corroborate his denial. He states: “There are no facts that support the claim that I misled an agent of
20 || CALFIRE. There are no persons that have knowledge that I misled an agent of CALFIRE. There are no
21 || documents or tangible items that indicate I misled an agent of CALFIRE.” Considering these responses
22 || and Mr. Watters’s objection at deposition and instruction that Mr. Black would not be permitted to
23 || respond to any conversations with Joyce Whitaker, the Defendants tacitly removed her from the witness
24 || list. MIL #6 was properly considered and granted with a thorough explanation from the court. (RT
25 || 39:16-48:6). (Decl. of Bacho at § 6 and Exhibit B.)
26 3. Opposition to Section II.C (Lexine Black As Corporate Representative).
27 On Day 2 of trial, Defendants’ counsel, Graden Tapely, introduced Lexine Black to the jury in his
28 || opening statement merely as “Mitch Black’s daughter.” (RT 101:5-6). (Decl. of Bacho at 6 and Exhibit
MEMORANDUM OF POINTS AND RUTHORTTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION
TO DEFENDANTS’ MOTION FOR NEW TRIAL
TTB). Tn fact, Defendants did not designate Lexine Black as the “corporate representative” of BKV until,
2 || and in the same breath as, their oral motion for mistrial on the grounds that she was not allowed at the
3 || defense table. This designation was a surprise to the court as well as Plaintiffs’ counsel, but the issue was
4 || cured by the Defendants’ counsel designating her at that time as the corporate representative for BKV.
5 || (RT 681:25-688:25). (Decl. of Bacho at § 6 and Exhibit B).
6 Her prior removal from the defense table was orderly and was based on witnesses not being
7 || allowed in the courtroom, and an instruction was given to the jury regarding the procedure. This was
8 || done without objection, and defense counsel never identified Lexine Black as the designated corporate
9 || representative for BKV. (RT 441:20-443:15). (Decl. of Bacho at § 6 and Exhibit B).
10 Defendants’ argument that “Lexine had a right to be present at all times as the representa
Preview
oT DAVIN R: BACHO (SBN 282613) , JEFFREY S. LYONS (SBN 227277) CLEMENT, FITZPATRICK & KENWORTHY 3 3333 Mendocino Avenue, Suite 200 Santa Rosa, CA 95403 4 || Telephone: (707) 523-1181 Facsimile: (707) 546-1360 5 || Email: dbacho@cfk.com or jlyons@cfk.com 6 Attomeys for Plaintiffs and Cross-Defendants 7 || Barry Brilliant and Dagmar Hoheneck-Smith 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 12 || BARRY BRILLIANT, an individual; and Case No. SCV-267406 DAGMAR K. HOHENECK-SMITH, an 13 || individual and as trustee of THE DAGMAR MEMORANDUM OF POINTS AND 14 Peo aS TRUST dated December AUTHORITIES IN SUPPORT OF ? ? PLAINTIFFS’ OPPOSITION TO 15 DEFENDANTS’ MOTION FOR NEW TRIAL Plaintiffs, 16 VS. Trial Judge: Hon. Christopher M. Honigsberg 17 || MITCHELL G. BLACK, an individual and dba , ig | BLACK KNIGHT VINEYARDS; DEANNE G. Trial Date: February 24, 2023 8 | BLACK, an individual and dba BLACK 19 || KNIGHT VINEYARDS; and DOES ONE Date: 5/26/23 through TWENTY, inclusive, Time: 8:30 a.m. 20 Dept: 18 Defendants. 0 | 22 || AND RELATED CROSS-ACTION 23 24 | //// 25 I //// 26 Il //// 27 28 -l- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL ce TABLE OF CONTENTS 211. INTRODUCTION ....cccscecsccsessessecssesessecsssssesasesucsssssesssssassssssucssessessessessneanecsessseessessseesseessees4 3 | IL — LEGAL ARGUMENT o..sssessssscssssssessosssesesssesecsssnescessnneeseenneseeesnieessnneenssenesssnneessssssnnsesssssne4 A. PLAINTIFFS’ OPPOSITION TO SECTION I. (EXCESSIVE AND 4 UNSUPPORTED DAMAGES). ..csscsssssssssesssessesssessecsecssssscssnssecsnsescsscsssessecensecseeened 5 1. PLAINTIFF’S OPPOSITION TO SECTION I.A. (PUNITIVE DAMAGES ISSUE). ...esssesssssssssssecsssesssvesssesssecssesssesssecssuscasecsssecssesssssceeseees 6 2. OPPOSITION TO SECTION LB (PUNITIVE DAMAGES NOT 7 SUPPORTED BY EVIDENCE). ..cssscssssssssssssssessessecssecssssssesssesscsssssessecssee7 3. OPPOSITION TO SECTION C. (PUNITIVE DAMAGES 8 RELATIVE TO ABILITY TO PAY)..ccsssssssssesssssseesesssssstesseesssessseecsseesee LO 4. OPPOSITION TO SECTION D. (PUNITIVE DAMAGE 9 RELATIONSHIP TO HARM)....ccsssssssesseescesssessessseseseseessessseessesssseeeseeese LI 10 5. OPPOSITION TO SECTION LE. (PUNITIVE DAMAGES PHASE “RUSHED”)...cccccssssssescsssssssessseesssesssesssssssessesessesseesssesseesssseeese 13 I B. | OPPOSITION TO SECTION II (DEFENDANTS’ CLAIMS OF 0 PREJUDICE).0.csseesssesssssssssesssscsssscssscssssesssseccssssessueesssccsseessseceuneesaneeesneeerenteeeseneeeee 13 1. OPPOSITION TO SECTION IL.A (JUDGE’S MISCONDUCT)............13 13 2. OPPOSITION TO SECTION IL.B (JOYCE WHITAKER 4 EXCLUDED). o.ececessessssessessvescsessssessssessssssssssssesssesssesssesessecsatecssseesseesssseeese 13 3. OPPOSITION TO SECTION IIL.C (LEXINE BLACK AS 15 CORPORATE REPRESENTATIVE) ..cccccssssssssssssessesssessecsesssssseesseesseseseee 14 4. OPPOSITION TO SECTION II.D (DEFENDANTS’ CALLING 16 PLAINTIFF IN THEIR CASE)..ecessessssessssssssssssssssessssssssssssscaseesssessssseeesee 15 17 5. OPPOSITION TO SECTION ILE (CROSS-EXAMINATION OF EXPERTS). ceccsccssscssssssssssssssesssessssesssscsssecssuscssecssecsssccssecsnecsseessseesseesessseesee 16 18 6. OPPOSITION TO SECTION IF (PLAINTIFFS’ EXPERTS 19 INTERPRETED THE LAW). ceccscsssssessssssessscssssssssssessssesnessesssessscsssseesseess 16 7. OPPOSITION TO SECTION IL.G (COURT REJECTED 20 PROPOSED SETTLEMENT)...cccscssessssssesssesssesssessessstessesseesssesseessseesseeese 16 8. OPPOSITION TO SECTION II.H (OTHER DECISIONS BY 21 THE COURT). ccscsssessssssssesstssseessseessssesssecssecssssesscssesaecssecssecesseesseesessseesse 16 2 C. OPPOSITION TO SECTION Ull...eccsesccsssssssssssssssssesssescssssessesssessesssesseccssesssseeseee17 1. OPPOSITION TO SECTION UI.A.I-VII (PLAINTIFFS’ PROOF 23 OF OUT-OF-POCKET DAMAGES). ocescsssssssssssesssesssesstessesssessstessseecseeeeLT 24 2. OPPOSITION TO SECTION ILA.VIII (COST TO REMOVE 25 3. OPPOSITION TO SECTION IIL.A.IX (STOKING THE 36 PASSION OF THE JURORS). cosccssssssssssssssssesssssessseessesssesstesseesssecssseeseees 18 TIL. 18 CONCLUSION u.eeecesssecssesssessecsssssecssecsvessesssessssssesssecssvesssessesssssessssecsscsessssssssesnecennessseeesee 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL rs os TABLE OF AUTHORITIES 2 CASES 3 || Ferraro v. Pac. Fin. Corp. (1970) 8 Cal.App.3d 339, 351 ee cesseescessecesscesseesceesssesesesesesseneeesee) 4 Fletcher v. W. Nat'l Life Ins. Co. (1970) 10 Cal. App.3d 376, 409.0... ee eeseeeeesestetsertreseeeel1 Forty-Niner Truck Plaza v. Union Oil Co.(1997) 58 Cal.App.4th 1261, 1282.00.00... cee 7 > Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 608-09 oo... cece seesecteseesesesetesseeeeeene® 6 || People v. Dennis (1998) 17 Cal.4th 468, 514.0... eeeeescesceseeseesecseeesseeesesetsscssesesscesessessscssssess es 7 Roberts v. Ford Aero. & Commc'ns Corp. (1990) 224 Cal. App.3d 793, 797 ....ceesseseeeeereeel] Silberg v. Cal. Life Ins. Co. (1974) 11 Cal.3d 452, 462 oie cecseseecsesesseeeseesesessesereenessesseeeee) 8 Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 194-95 oo. 8 9 || Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 318, 322 0... cececseeseteteeereereed 10 STATUTES 11 Civ. Code § 3294 ...cecccssccssesssccesseeeseessccsseetceeseeeseeseaeenseceesesesesasoessessecssenssssssesessscseesssesstensenseeeeess Code Civ. Proc § 629......ccccccccssesssecseeesseesecesnecccesseceneeeeeessasessacsssesssesseecesassecsssessssssesssseesssssenessseassD 12 Code Civ. Proc § 657 cssccssssssssssessssessssesssussssseesassasesensnassesenunensesssunesssessissssssetussssssiesstisessssesd 13} Code Civ. Proc § 659......cccccssessesssessceseeeseeeecenceseeeceenessecseesseecenaceseesesesessesesscsssenscnessssssesensessesesesesd 14 Code Civ. Proc § 6638 .....:ccccecccsccsscesseeneesneeseeseensecsceeseescessceseesseesecsssessecssessesssessesssseeseassessscsesesesesseA Code Civ. Proc §438(d) ..ccccccccccsccsscessesesssesseessessesceeeaeeseeseeesecnessaecaeceseceeseessseessessessssssseseseserseeees LO IS HT Code Civ. Proc §438(6) soscssssssssssssessssusssssessessnsssssseeessssnseseesssnasasssssesussssssesesesessssssessesseseesss6 16 }} Code of Civ. Procedure § 1987(b)........eececcesecsecesseeeeecssessseseeseesscessesescsssessesesesesessseseessseesessees LO 17 || Evid. Code § 351 Saeseseseseecsneessecensecssecsauceseecssesasensecenseseceneceneeeseesseecseceseesecessscssoessoesecessessssseseeese LO Evidence Code § 352.....cccccsesscssscensecsesceescesceseceacessessecaeeeeseseeeeessessseesesnscessesssesssssssesssssesnssseetOy LO 18 Evidence Code § 765 .....ccccccsccssscessecescesssecsceeesececeecsccesnscsaecsareesseessecsseseasesseeesssssecsnssessssssessssssssseee LO 19 Ht Evidence Code § 813(a) .....cceccesccscssssesceseesecceeccceesesecsecesecesessestesssssasssessessssceessseatessessesstseseeeee LO 20 RULES 21 Cal. Rules of Court, Rule 3.1113 oo... ccc cccsscccceesseeecessseeeesseececsnnneeessseeeceesaeesesseseessssesessesseesosse Cal. Rules of Court, Rule 3.1113(k).....cc ccc eeeecscseeecseeeeenectecsaceessesecnnstsesseesssessessetssesseseesesee lO 22 California Rules of Professional Conduct, Rule 3.3.0.......c.cccsscccssssreceessecceesseeeeecsseesessseerssserseeees 23 24 25 26 27 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL TP Plaintiffs Barry Brilliant and Dagmar Hoheneck-Smith respectfully submit this opposition to the 2 || Motion for New Trial (‘“MFNT”) filed by defendants Mitchell G. Black, Deanne G. Black, and Black 3 || Knight Vineyards, LLC (collectively “Defendants”). 4 I. INTRODUCTION 5 Judgment was entered in favor of Plaintiffs after a 14-day jury trial. (Decl. of Davin R. Bacho 6 || “Decl. of Bacho” at J 3 and Exhibit A.) Afterwards, Defendants filed three post-trial motions: a motion 7 || for Judgment Notwithstanding the Verdict (Code Civ. Proc § 629); a Motion for New Trial (Code Civ. 8 || Proc § 659); and a Motion to Vacate Judgment and Enter Another and Different Judgment (Code Civ. 9 || Proc § 663a). On April 13, 2023, Defendants filed and served one non-conforming memorandum of 10 || points and authorities in support of all three motions, which substantively only argues Defendants’ 11 || Motion for New Trial.! (Decl. of Bacho at § 4; See also Defendants’ moving documents.) 12 I. LEGAL ARGUMENT 13 Defendants’ Notice of Intention to Move for New Trial recites all 7 grounds provided for under 14 || Code Civ. Proc § 657 as follows: 15 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. 16 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by 17 the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 18 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could 19 not, with reasonable diligence, have discovered and produced at the trial. 5. Excessive or inadequate damages. 20 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. 21 7. Error in law, occurring at the trial and excepted to by the party making the application. 22 Defendants’ MPA submitted in support of the MFNT fails to distinguish to what grounds each of 23 || their various arguments and complaints applies. However, as a threshold matter, the court can deny the 24 || MENT as to the grounds of #2 Misconduct of the Jury, #3 Accident or Surprise, and #4 Newly 25 || discovered evidence because no juror affidavit was provided to support misconduct, and no argument, 26 || evidence, or declaration of diligence was presented in the moving papers demonstrating any accident, 27 f§$. ————_ ' Plaintiffs hereby incorporate the argument stated in Plaintiffs’ Opposition to Motion JNOV (Section A) 28 || submitted herewith regarding Defendants’ disregard for Rule 3.1113 of Cal. Rules of Court -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL Tt surprise; or newly discovered evidence. ~ 2 As to the remaining grounds, since none are addressed in the MPA, this opposition will track the 3 || format of the arguments and authorities stated in the MPA and oppose them accordingly. 4 || A. Plaintiffs’ Opposition to Section I. (Excessive and Unsupported Damages). 5 In Section I, Defendants merely string cites legal authority without reference to its application to 6 || any argument or facts. 7 1. Plaintiff's Opposition to Section I.A. (Punitive Damages Issue). 8 The trial court was correct in letting the jury consider awarding punitive damages. “In order to 9 || justify an award of exemplary damages, the defendant must be guilty of oppression, fraud or malice. 10 || (Civ. Code § 3294.) He must act with the intent to vex, injure or annoy, or with a conscious disregard of 11 || the plaintiff's rights.” Silberg v. Cal. Life Ins. Co. (1974) 11 Cal.3d 452, 462. “The granting or 12 || withholding of the award of punitive damages is wholly within the control of the jury and may not legally 13 || be influenced by any direction of the court that in any case a plaintiff is entitled to them. Upon the 14 |] clearest proof of malice in fact, it is still the exclusive province of the jury to say whether or not punitive 15 |} damages shall be awarded.” Ferraro v. Pac. Fin. Corp. (1970) 8 Cal.App.3d 339, 351. “The courts of this 16 || state have long recognized that punitive damages are recoverable for an area of tortious conduct more 17 || culpable than negligence, but falling short of intentional conduct.” Sturges v. Charles L. Harney, Inc. 18 | (1958) 165 Cal.App.2d 306, 322. 19 a. Opposition to Section I.A.i. (Plaintiffs’ Right to Punitive Damages). 20 Plaintiffs’ First Amended Complaint sought punitive damages under the causes of action for 21 || Public Nuisance, Private Nuisance, Trespass, and Negligence (COA 1, 2, 3 and 5 respectively). (Decl. of 22 || Bacho at 95.) “{I]t is well settled in this state that an owner of land may not do even nonnegligent acts 23 || onhis property with impunity where they create a nuisance as to his neighbor. Sturges v. Charles L. 24 || Harney, Inc. (1958) 165 Cal.App.2d 306, 318. “[W]here the trespass is committed from wanton or 25 || malicious motives, or a reckless disregard of the rights of others, or under circumstances of great 26 || hardship or oppression, the rule of compensation is not adhered to, and the measure and amount of 27 || damages are matters for the jury alone.” Jd. at 322. 28 Here, overwhelming evidence was presented to the jury that Plaintiffs were fearful of going down MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL ~~~—~T~ | onto that portion of the property near the stand of over 100 poplar trees nearly 100 feet tall because of 2 || Defendants’ acts and omissions involving trees, branches, and debris falling on Plaintiffs’ property, 3 || trapping their animals, and the fire danger presented by the lack of maintenance on Defendants’ property- 4 || the very conduct upon which these claims were based. (Decl. of Bacho at { 6 and Exhibit B, specifically 5 || RT 394:8-15; 401:13-403:9; 407:4-22; and Decl. of Bacho at 7 and Exhibit C, specifically Trial 6 || Exhibits 85, 85A and 85B.”) The jury was informed about repeated and corresponding pleas from 7 || Plaintiffs for Defendants to participate in doing something about these issues. See for example 417:6- 8 || 419:10; Trial Exhibit 76; 422:6-423:18; Trial Exhibit 80; 432:8-433:10; Trial Exhibit 84. (Decl. of 9 || Bacho at §§ 6 & 7 and Exhibits B & C.) Evidence was presented regarding Defendants’ exercise of 10 || control over the maintenance or removal of the trees, and the Defendants’ indifference. See for example 11 || RT 416:14-22. (Decl. of Bacho at { 6 and Exhibit B.) Then, Dr. Daniel Roberts provided overwhelming 12 || evidence that the trees did not contribute to the agricultural operation of BKV, and no scientific evidence 13 | was presented by Defendants demonstrating their claims that the trees contributed to the agricultural 14 || operation. (See example at RT 709:16-741:7.) (Decl. of Bacho at § 6 and Exhibit B). Defendants 15 || presented only speculation concerning their observations that the trees could block the wind at times, but 16 || the defense failed to provide an expert to support their theories or any scientific reasoning as to how the 17 || trees might have contributed to the vineyard and resulting wines. 18 The overwhelming affirmative evidence, and the lack of evidence to support Defendants’ spurious 19 || claims the trees were a valuable and integral part of the vineyard operation, combined with the evidence 20 || that Defendants’ failed to place any value on the trees to the vineyard in any of their sales materials, and 21 || the fact that they retained the ability during the sale to remove the trees at their own discretion could 22 || convince a jury of a malicious motive because their stated motive didn’t add up or comport with Mr. 23 || Black’s deposition testimony that the Plaintiffs only wanted a view of his vineyard. 24 b. Opposition to Section L.A.ii. (Jury Instructions). 25 Defendants’ argument that there was error in jury instructions regarding punitive damages is 26 || without merit. First, the jury instructions were joint instructions and stipulated by both parties. (RT 27 | ———————_——_____—_ 2 Citations to “RT” means the Reporter’s Transcript from trial, the cited excerpts of which are attached as 28 || exhibits to the Declaration of Davin R. Bacho (“Bacho Decl.”). MEMORANDUM OF POINTS AND RUTHOMEES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL —"T-1°1500:2-5) (Decl. of Bacho at § 6 and Exhibit B.) As such, Defendants cannot attack the instructions given 2 || as being improper. See People v. Dennis (1998) 17 Cal. 4th 468, 514 (“If defendant believed the 3 || instructions were incomplete or needed elaboration, it was his obligation to request additional or 4 || clarifying instructions. His failure to do so waives the claim in this court.”). Allowing a collateral attack 5 || on stipulated instructions would only serve to give the losing party another bite at the proverbial apple 6 || after trial. 7 Second, during trial, defense counsel agreed that the issue of punitive damages would not be 8 || bifurcated. (RT 656:6-16). (Decl. of Bacho at § 6 and Exhibit B.) Then just before the jury was to be 9 || brought in on the last day presentation of evidence, the defense backtracked saying it was his 10 || “understanding or perhaps misunderstanding” that the issue would be bifurcated. (RT 1499:5-1500:14),. 11 || (Decl. of Bacho at § 6 and Exhibit B.) This took the court and Plaintiffs’ counsel by surprise. As a 12 |] result, Plaintiffs stipulated to the bifurcation of the punitive damages issue, and the court noted it would 13 || use the bifurcated CACTI instructions instead of the non-bifurcated instructions previously agreed upon. 14 || (RT 1502:6-19). (Decl. of Bacho at J 6 and Exhibit B.) No objection was made by defense counsel. 15 Third, Defendants pose a disingenuous argument that the instructions given were biased. The 16 || MPA cites (page 5, line 23 through page 6, line 3) instructions given to the jury as being “not the usual 17 || instruction.” The cited instructions are second phase instructions given affer the jury found punitive 18 || damages were available and are only go to the issue of amount. They are verbatim CACT instructions 19 || 3942 for the second phase with defendants’ names inserted. The proper instructions (stipulated) were 20 || given at the close of evidence regarding punitive damages for the first phase (finding of availability of 21 || such damages) CACI forms 3941 (individual defendant) and 3946 (entity defendant) only modified to 22 || include defendants’ names. Those instructions include definitions of malice, oppression, and despicable 23 || conduct that were read to the jury. (RT 1563:12-1566:6). (Decl. of Bacho at § 6 and Exhibit B.) The 24 || “clear and convincing” definition, and the instruction that it applies to the punitive damages component, 25 || was read to the jurors as well. (RT 1643:11-16). (bid) 26 2. Opposition to Section I.B (Punitive Damages not Supported by Evidence). 27 Defendants’ argument that the punitive damages award is not supported by evidence is without 28 || merit. See Opposition to I.A.i. above. MEMORANDUM OF POINTS AND RUTHORTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL ee os |e a. Opposition to Section I.B.i (Trial Court’s Duty to Reduce Punitive Damages). 2 The jury returned a unanimous verdict finding malice or oppression in its finding for the 3 | availability of punitive damages. (RT 1707:21-1708:20). (Decl. of Bacho at { 6 and Exhibit B.) This was 4 || confirmed by a polling of the jury. (RT 1712:6-1723:11). (Zbid) Considering the verdict and the evidence 5 || before the court, the jury was justified in considering an award of punitive damages. 6 Defendants’ argument that the financial information evidence didn’t support the amount of 7 || punitive damages is also without merit. Defendants played games all through trial to hide their financial 8 || information which forced the trial court to issue an order for them to be produced or sanctions would 9 || apply. Sanctions were ultimately waived when some financial documents were provided to Plaintiffs’ 10 || counsel at 4 pm _on the day before close of evidence. In continuing their gamesmanship, Defendants 11 || however would not stipulate to the authenticity of the very financial records they provided, which likely 12 || led to objections of lacking foundation being overruled during the second phase of the trial when these 13 || same documents were presented to Lexine Black, who identified herself as a managing member of Black 14 || Knight Vineyards, LLC, and its Chief Operations Officer. (RT 1212:23-1213:1). (Decl. of Bacho at { 6 15 || and Exhibit B.) Clearly, this stunt was intended to hinder Plaintiffs’ ability to put on evidence of the 16 || financial position of the defendants. In fact, Defendants offered Lexine Black specifically to testify on 17 || behalf of BK-V with respect to the punitive damages phase. (RT 1710:19-1711:2). bid) The court has 18 || the power to admit all relevant evidence (Evidence Code § 352 and was well within its power to admit 19 || evidence over objections of lacking authenticity, or foundation, when the very documents were those 20 || provided by the objecting party pursuant to the court’s order as evidence of their financial condition. 21 Defendants cannot avoid providing evidence of their financial information with impunity and then 22 || claim the financial evidence was inadequate. When a defendant fails to cooperate with supplying the 23 || financial information necessary for the plaintiff to prove financial condition in the punitive damages 24 || phase of a trial, the trial court has discretion to proceed even without any proof, and appellate courts have 25 || upheld punitive damages awards in such situations. Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 26 || 597, 608-09 (“Therefore, by failing to bring in any records which would reflect his financial condition, 27 || despite being ordered to do so, and by failing to challenge that ruling on appeal, defendant has waived 28 || any right to complain of the lack of such evidence.”). The sufficiency of evidence to prove financial MEMORANDUM OF POINTS AND AUTOR IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL ~~~" TF" condition is on a case-by-case basis as articulated in Soto v. BorgWarner Morse TEC Inc. (2015) 239 2 || Cal.App.4th 165, 194-95 (internal citations omitted): 3 Our Supreme Court has not prescribed a rigid standard for measuring a defendant's ability to pay. Accordingly, there is no one particular type of financial evidence a plaintiff must 4 obtain or introduce to satisfy its burden of demonstrating the defendant's financial condition. Evidence of the defendant's net worth is the most commonly used, but that metric is too 5 susceptible to manipulation to be the sole standard for measuring a defendant's ability to pay. Yet the “net” concept of the net worth metric remains critical. “In most cases, evidence of 6 earnings or profit alone are not sufficient ‘without examining the liabilities side of the balance sheet.’ Evidence of a defendant's income, standing alone, is not “‘meaningful evidence.’” 7 “Normally, evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income.” “‘Without evidence of the actual total 8 financial status of the defendants, it is impossible to say that any specific award of punitive damage is appropriate.’ “Thus, there should be some evidence of the defendant's actual 9 wealth” but the precise character of that evidence may vary with the facts of each case. 10 Here, the parties stipulated on the record that Plaintiffs would put on evidence of assets, and 11 || Defendants would put on evidence of debts against those assets. (RT 1725:9-13). (Decl. of Bacho at § 6 12 || and Exhibit B.) Plaintiffs’ evidence consisted of financial documents provided by Defendants combined 13 || with the sworn testimony of Mitchell Black from his February 10, 2023, deposition, and live testimony 14 || by Lexine Black as a representative of BKV. As stated in Soto above, “the ‘net’ concept of net worth 15 || remains critical.” The testimony read into evidence was Mr. Black’s response as to the net worth of 16 || BKV “as you sit here today.” Defendants then examined Lexine Black and they introduced evidence as 17 || to the liabilities of BKV. As such, the jury got recent financial information from both sides that they 18 || could use to determine the amount of punitive damages. 19 Defendants’ further argument that the punitive damages award was excessive is also without 20 || merit. The jury awarded $500,000 in punitive damages after considering all of the evidence before it. It 21 || should be noted that Defendants agreed to a punitive damages award of $300,000 by stipulation, but they 22 || could not get the stipulation on the record without Mr. Black’s participation. As such, the issue went to 23 || the jury. At that point, both sides bore a significant risk of whether the jury would award any punitive 24 || damages, or more or less than the agreed $300,000. A risk Defendants were willing to take. 25 b. Opposition to Section I.B.ii (Evidence of Reprehensible Behavior). 26 As demonstrated in Opposition to I.A.i above, there was ample evidence of Defendants’ 27 || reprehensible behavior. 28 | //// -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL eT yp 3. Opposition to Section C. (Punitive Damages Relative to Ability to Pay). 2 The arguments in Section C are the same as those in Section B, viz, Defendants argue that the 3 || evidence of financial position of the Defendants was inadequate and, as a result, do not comport with 4 || Defendants’ ability to pay. Plaintiffs refer to the argument and evidence presented in Opposition to 5 || Section I.B.i as to the evidence and procedure used in the second phase of the punitive damages trial. 6 Defendants’ argument that the assessment of punitive damages had nothing to do with the 7 || conduct of the Defendants that caused Plaintiffs’ injury is meritless. The jury’s verdict forms expressly 8 || found the conduct of Mitchell Black, Deanne Black, and BKV to have been with malice or oppression. 9 || See Judgment, Request for Judicial Notice (““RFJN”) Ex. 1 and Decl. of Bacho at 3 and Ex. A. 10 a. Opposition to Section I.C.i (Plaintiff’s Burden to Establish Financial Condition). 11 Plaintiffs refer to the argument and evidence presented in opposition in Opposition to Section 12 || I.B.i above regarding the evidence and procedure used in the second phase of the punitive damages. 13 b. Opposition to Section I.C.ii (Defendants’ Current Worth). 14 Defendants argue that Plaintiffs must show Defendants’ current worth to support an award of 15 || punitive damages. Here, Defendants were under court order to provide the documentary evidence of 16 || Defendants’ worth. (Decl. of Bacho at J 8.) Documents were eventually provided to Plaintiffs by the 17 || Defendants the day before closing arguments although Defendants would not stipulate to the documents’ 18 || authenticity. (bid) If the documentation provided was not current, or authentic, that would be the result 19 || of the Defendants’ willful disobedience of the court’s order. (/bid) The sworn testimony of value and net 20 || worth read from Mr. Black’s deposition was from February 10, 2023, two weeks before the start of the 21 || trial. As such, the information was current. (bid) 22 Cc. Opposition to Section I.C.iii (Seasonal Nature of the Defendants’ Business). 23 Defendants’ argument that the “seasonal nature” of the BKV business was not considered by the 24 || jury lacks merit. Lexine Black testified that it is “a highly seasonable” business. If Mr. Tapley didn’t 25 || pursue that angle as part of the defense’s case, that is his error, but the jury did get testimony that their 26 || business is allegedly “seasonable.” (Decl. of Bacho at § 9.) 27 d. Opposition to Section I.C.iv (Owner’s Opinion of Value). 28 Defendants further argue that Mitchell Black’s testimony as to the value of his own property is MEMORANDUM OF POINTS AND KUTHORTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL oee"T | not credible. It is ironic that Defendants are in the position to attack Mr. Black’s credibility. As the 2 || Defendants recognize, the opinion of the value of property can be expressed by its owner under Evidence 3 || Code § 813(a). Mr. Black’s opinions of value stated under oath were properly read into evidence. (Decl. 4 || of Bacho at 7 8.) The value of the property was relevant to the issues at hand and as such, admissible. 5 || “Except as otherwise provided by statute, all relevant evidence is admissible.” Evid. Code § 351. 6 e. Opposition to Section I.C.v (Evidence of Value). 7 Defendants argue that evidence such as the purchase agreement lacked “timeliness and 8 || relevancy.” However, Mitch Black testified at his deposition on February 10 as to the value of BEV 9 || stating that its value is “what someone is willing to pay for it.” That portion of his deposition was read 10 || into evidence. (RT 1745:15-17). (Decl. of Bacho at JJ 6 and 10 and Exhibit B.) The purchase agreement 11 || that was entered into evidence and confirmed by real estate broker David Ashcraft, is further evidence 12 || relevant to show what somebody was actually willing to pay-therefore, relevant evidence. (/bid) 13 f. Opposition to Section I.C.vi (Unauthenticated and Hearsay Evidence). 14 Plaintiffs fully incorporate and restate the argument and evidence in opposition to Section [.B.i as 15 || though fully set forth here. 16 g. Opposition to Section I.C.vii (Estimates of Net Worth). 17 Plaintiffs fully incorporate and restate the argument and evidence in opposition to Section I.B.i as 18 || though fully set forth here. 19 4. Opposition to Section D. (Punitive Damage Relationship to Harm). 20 Defendants claim that the punitive damage award bears no relationship to the compensatory 21 || damages awarded. In doing so, they focus only on the physical out-of-pocket damage claims related to 22 || the fence and completely ignore the rest of the verdict including the non-economic damages awarded, 23 || which are compensatory damages to consider when calculating the relationship of compensatory damages 24 || to punitive damages. See Roberts v. Ford Aero. & Commce'ns Corp. (1990) 224 Cal.App.3d 793, 797. 25 |} The jury found $90,000 compensatory damages as to the premises liability claim, and $867,500 as to the 26 || remaining causes of action. (RT 1711:9-25). (Decl. of Bacho at § 6 and Exhibit B.) The compensatory 27 || damage award is $957,500, and jury’s punitive damages award was 52.2% of that. (bid and Exhibit A.) 28 fe //// -ll- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL eee Ty a. Opposition to Section D.A.i (“More than Compensated”). 2 Section D.A.i argues that the Plaintiffs were already “more than compensated” through 3 || compensatory damages making the punitive damages “excessive.” Defendants’ focus on the “value of 4 || the fence” and the “diminution in value” of the Plaintiffs’ property are not relevant. Punitive damages 5 || are not meant to be a component of compensatory damages. ““The primary function of punitive damages 6 || is to deter the defendant and those similarly situated from engaging in similar tortious conduct in the 7 || future.” Fletcher v. W. Nat'l Life Ins. Co. (1970) 10 Cal.App.3d 376, 409. As such, whether Defendants 8 || consider the Plaintiffs to be “more than compensated” is not relevant. 9 b. Opposition to Section D.A.ii (Double Compensation — Judgment on the Pleadings). 10 During trial, Defendants submitted a Motion for Judgment on the Pleadings arguing that Plaintiffs 11 || brought this case without standing and committing fraud by trying to get compensated again after being 12 || compensated through an insurance claim. This argument was advanced by Defendant’s counsel even 13 || though Defendants’ counsel knew that this argument was false and by presenting it violated California 14 || Rules of Professional Conduct, Rule 3.3 (Candor Toward the Tribunal) which states in relevant part: “A 15 || lawyer shall not: knowingly make a false statement of fact or law to a tribunal or fail to correct a false 16 || statement of material fact or law previously made to the tribunal by the lawyer [or] ... offer evidence the 17 || lawyer knows to be false.” 18 Defendants’ motion argued that Plaintiffs made an insurance claim for fire damage to their fence. 19 || MPA 14:16-18. It offers Trial Exhibit 85 as evidence of the fraud wherein Plaintiffs state in a letter to 20 || Defendants that they were tendering a claim for fence damage to their insurance carrier. The August 18, 21 |} 2020 letter predates the July 7, 2021 fire by nearly a year, so the letter is obviously not the evidence 22 l| Defendants were trying to pass it off for. Also, Exhibit 85 was introduced into evidence during direct 23 || examination of Barry Brilliant, so Defendants’ argument that they were precluded from cross-examining 24 || him on it are unfounded. 25 Although Defendants’ counsel was given the opportunity to put the hearing off on the Motion and 26 || include it in a post-trial motion, Defendants’ counsel elected to have the motion heard on March 28 27 || where it was denied. (3/28/23 Judgment after Trial RT 27:14-31:12). (Decl. of Bacho at {| 6 and Exhibit 28 || B.) Now, Defendants’ counsel re-argues the motion on the same grounds it was previously denied MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL ~~" TW knowing full well the evidence does not support it. This argument in the MFNT is a clear violation of 2 || California Rules of Professional Conduct, Rule 3.3. 3 5. Opposition to Section I.E. (Punitive Damages Phase “Rushed”). 4 Defendants’ argument that the second phase procedure they agreed to was “rushed” is not well- 5 || taken. In scheduling the second phase of the punitive damages issue, the court specifically asked trial 6 || counsel that, if the jury was willing to stay, could they put on the second phase and how much time it 7 || would take. Defense counsel agreed. Plaintiffs’ counsel requested about 30 minutes, and defense counsel 8 || stated he needed about 30 minutes; and, they also agreed to a short time for argument to the jury. (RT 9 | 1723:20-1725:18). (Decl. of Bacho at J 6 and Exhibit B.) This procedure for the second phase was 10 || stipulated without objection. Defendants also offered Lexine Black to testify on behalf of BKV with 11 || respect to the punitive damages phase. (RT 1710:19-1711:2). (bid) 12 | B. Opposition to Section II (Defendants’ Claims of Prejudice). 13 The record reveals that throughout the trial the judge was even-handed and made prudent 14 || decisions with respect to both sides. 15 1. Opposition to Section ILA (Judge’s Misconduct). 16 Defendants’ conclusory statements of “mistreatment” lack any factual support. Defendants’ 17 || reference generally to the declarations of Mitchell Black, Joyce Whitaker, and Graden Tapley to support 18 || their conclusions, but the memorandum lacks any argument in this section as to any specific acts 19 || supported by those declarations as required by Cal. Rules of Court, Rule 3.1113(k) “All references to 20 || exhibits or declarations in supporting or opposing papers must reference the number or letter of the 21 || exhibit, the specific page, and, if applicable, the paragraph or line number.” The declarations are not 22 || referenced for support of specific legal argument. Instead, Defendants seem to expect the court or 23 || opposing counsel to comb through the declarations to make connections to legal arguments for them. 24 2. Opposition to Section I1.B (Joyce Whitaker Excluded). 25 The testimony of Joyce Whitaker was the subject of Motion in Limine (MIL)#6. Defendants make 26 || arguments in their post-trial motion that they failed to include in their opposition to MIL #6 such as Mr. 27 || Watters’s inexperience with Ms. Whitaker’s role, and the limited extent of her representative capacity. 28 || However, the substance of Ms. Whitaker’s testimony proposed, or the testimony stated in her declaration MEMORANDUM OF POINTS AND KOTHORITTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL ~~~~"""T "in support of this motion, reveal that the facts she intended to testify to all came to the jury through other 2 || witnesses. Furthermore, although Defendants now argue that Ms. Whitaker’s testimony was crucial to 3 || their case, when asked in special and form interrogatories to identify witnesses, she was never identified. 4 || (Decl. of Bacho at 912 and Exhibits D and E.) 5 For instance, Mr. Black’s responses to Form Interrogatory 17.1 which are follow-up questions 6 || requiring the responding party to explain any denials to Requests for Admission demonstrate the lengths 7 || he was willing to go to withhold information. In RFA #2, Mr. Black denied he was negligent in starting 8 || the fire on his property. In his 17.1 response which requires the responding party to “state all facts upon 9 || which you base your response” and “state the names, ADDRESSES, and telephone numbers of all 10 || PERSONS who have knowledge of those facts,” he says “There are no facts that support the claim that I 11 |] acted negligent. There are no persons that have knowledge that I was acting negligently. There are no 12 || documents or tangible items that indicate was acting negligently.” Obviously, if Joyce Whitaker was such 13 |] a key witness, she should have been identified here. The interrogatory does not request the identity of 14 || persons with knowledge of his negligence. It specifically requests the identity of persons with knowledge 15 || of the fact upon which he bases his denial. These responses were provided in October 2022, long after the 16 || events discussed as being part of Ms. Whitaker’s testimony, and only 4 months prior to trial. Similarly, 17 || he denied at RFA #9 that he misled an agent of CALFIRE. (Decl. of Bacho at 13 and Exhibit F.) His 18 || follow-up response was similarly evasive and did not identify Ms. Whitaker as a witness who could 19 || corroborate his denial. He states: “There are no facts that support the claim that I misled an agent of 20 || CALFIRE. There are no persons that have knowledge that I misled an agent of CALFIRE. There are no 21 || documents or tangible items that indicate I misled an agent of CALFIRE.” Considering these responses 22 || and Mr. Watters’s objection at deposition and instruction that Mr. Black would not be permitted to 23 || respond to any conversations with Joyce Whitaker, the Defendants tacitly removed her from the witness 24 || list. MIL #6 was properly considered and granted with a thorough explanation from the court. (RT 25 || 39:16-48:6). (Decl. of Bacho at § 6 and Exhibit B.) 26 3. Opposition to Section II.C (Lexine Black As Corporate Representative). 27 On Day 2 of trial, Defendants’ counsel, Graden Tapely, introduced Lexine Black to the jury in his 28 || opening statement merely as “Mitch Black’s daughter.” (RT 101:5-6). (Decl. of Bacho at 6 and Exhibit MEMORANDUM OF POINTS AND RUTHORTTES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL TTB). Tn fact, Defendants did not designate Lexine Black as the “corporate representative” of BKV until, 2 || and in the same breath as, their oral motion for mistrial on the grounds that she was not allowed at the 3 || defense table. This designation was a surprise to the court as well as Plaintiffs’ counsel, but the issue was 4 || cured by the Defendants’ counsel designating her at that time as the corporate representative for BKV. 5 || (RT 681:25-688:25). (Decl. of Bacho at § 6 and Exhibit B). 6 Her prior removal from the defense table was orderly and was based on witnesses not being 7 || allowed in the courtroom, and an instruction was given to the jury regarding the procedure. This was 8 || done without objection, and defense counsel never identified Lexine Black as the designated corporate 9 || representative for BKV. (RT 441:20-443:15). (Decl. of Bacho at § 6 and Exhibit B). 10 Defendants’ argument that “Lexine had a right to be present at all times as the representa