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1 || 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 Attorneys 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 I] individual and as trustee of THE DAGMAR
MEMORANDUM OF POINTS AND
14 oo TRUST dated December AUTHORITIES IN SUPPORT OF
? ? PLAINTIFFS’ OPPOSITION TO
15 . DEFENDANTS’ MOTION TO VACATE
Plaintiffs, JUDGMENT AND ENTER A DIFFERENT
16 vs. JUDGMENT
17 | MIT . BL indivi d db . .
BL NRC eNIGEET Cee G Trial Judge: Hon. Christopher M. Honigsberg
18 ae ? ,
BLACK, an individual and dba BLACK Trial Date: February 24, 2023
19 || KNIGHT VINEYARDS; and DOES ONE
through TWENTY, inclusive,
20 Date: 5/24/23
Defendants. Time: 3:00 p.m.
21 Dept: 18
22 || AND RELATED CROSS-ACTION
23
24 Plaintiffs Barry Brilliant and Dagmar Hoheneck-Smith respectfully submit this opposition to
25 || the Motion to Vacate Judgment and Enter a Different Judgment filed by defendants Mitchell G. Black,
26 || Deanne G. Black, and Black Knight Vineyards, LLC (collectively “Defendants”). After a jury found
27 || in favor of Plaintiffs in this matter, Defendants filed three post-trial motions: a motion for Judgment
28 || Notwithstanding the Verdict (Code Civ. Proc § 629); a Motion for New Trial (Code Civ. Proc § 659);
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT
1I and a Motion to Vacate J udgment and Enter Another and Different Judgment (Code Civ. Proc § 663a)
2 || (“Motion to Vacate”). Although Defendants’ arguments for each of their motions seem to be scattered
3 || within one memorandum of points and authorities titled: “Memo of Points and Authorities in Support
4 || of Defendants’ Post-Trial Motions,” Plaintiffs submit separate oppositions as to each motion.
5 LEGAL ARGUMENT
6 Defendants’ Motion to Vacate is procedurally and substantively defective. It is procedurally
7 || defective due to Defendants’ failure to serve a Notice of Intent setting forth specific grounds. It is
8 || substantively defective because although Defendants’ points and authorities alludes to vacating the
9 || punitive damages element of the final judgment, it fails to make any argument for what judgment is to
10 || be entered instead. It appears by Defendants’ proposed order that they are asking the court to vacate
11 }| the judgment in toto, to be replaced with a judgment “for defendants” without making any argument as
12 || to how the judgment is erroneous or what incorrect conclusions of law the trial court has drawn.
13 |} A. Defendants Motion to Vacate is Procedurally Defective.!
14 Similar to the requirements for a Motion for New Trial, a Motion to Vacate under Code of Civil
15 || Procedure §§ 663 and 663a requires the moving party to file and serve a Notice of Intent to the motion
16 || within 15 days of being served a Notice of Entry of Judgment. Section 663a(a) states in relevant part:
17 A party intending to make a motion to set aside and vacate a judgment, as described in Section
663, shall file with the clerk and serve upon the adverse party a notice of his or her intention,
18 designating the grounds upon which the motion will be made, and specifying the particulars in
which the legal basis for the decision is not consistent with or supported by the facts, or in
19 which the judgment or decree is not consistent with the special verdict.
30 Cal. Civ. Proc. Code § 663a (emphasis added).
21 || Not only did Defendants fail to serve the statutory Notice of Intent, the Notice of Motion that they
22 || served on April 13 lacks any of the specificity required by statute. Defendants’ Notice merely recites
23 || the grounds stated in section 663 stating: “The motion will be made on the grounds that the legal basis
24 || for the judgment filed by the court is erroneous in that it is not consistent with and/or supported by the
25 || facts or the law. These errors have materially affected the substantial rights of defendants entitling
26 || them to a different judgment.” These conclusory statements and recitations of the statutory language
27 |}§ ——————_———___———
! Defendants’ Motion also lacks any supporting MPA. Plaintiffs hereby incorporate the argument
28 || stated in Plaintiffs’ Opposition to Motion JNOV (Section A) submitted herewith.
MEMORANDUM OF POINTS AND AOTHORINES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT
1 || fail to provide notice as required by statute.
2 Section 663a requires that the notice of this motion (which is to be given in the form of a
3 | Notice of Intent) designate the grounds upon which the motion is made and shail specify “particulars
4 || in which the legal basis for the decision is not consistent with or supported by the facts or in which the
5 || judgment is not consistent with the verdict.” (Emphasis added). Lacking those particulars, Defendants’
6 || Notice is fatally flawed. See Dolan v. Superior Court of S.F. (1920) 47 Cal.App. 235, 240 (“The notice
7 of motion is required to specify the particulars in which the conclusions of law are not consistent with
8 || the findings.”). Defendants’ Notice fails to identify any particulars indicating where conclusions of
9 I! law do not follow from the finding of fact and fails to even identify a single conclusion of law made.
10 | As such, the Notice fails and, as a result, the Motion must be denied. See Stanton v. Superior Court of
11 |} Cty. of L.A. (1927) 202 Cal. 478, 486-87 (overruled on a different basis in Phelan v. Superior Court of
12 || San Francisco (1950), 35 Cal.2d 363) stating:
13 The notices before us set forth no particulars wherein the conclusions of law or judgments do
14 not follow logically from the findings of fact. In fact the conclusions of law are not attacked
and are not even so much as mentioned in the notices. Likewise the notices give no indication
15 of the judgment or judgments sought to be substituted for the original judgment entered.
Neither do they contemplate an order contemporaneously given vacating the judgment and
16 establishing a new one in its stead. Nor do they contemplate an order entering a new judgment
7 as an integral part of the order vacating the old one. None of the proceedings taken and none of
the orders in question can properly be identified as procedure authorized by or contemplated by
18 said sections of the code. The limits set by these sections cannot be transgressed.
19 Defendants’ failure to identify (or even argue) the particular grounds for the motion makes an
20 || opposition impossible. Furthermore, Defendants’ failure to follow the procedural notice requirements
21 || prevents the court from granting the motion, and as such it must be denied.
22 || B. Defendants’ Motion to Vacate is Substantively Defective.
23 Defendants’ proposed order submitted with its moving papers requests the judgment be
24 il vacated, and a judgment in favor of Defendants entered; however, the notice of motion, motion, and
25 || points and authorities submitted all fail to identify a single conclusion of law inconsistent with the
26 || facts, nor do they argue how the judgment was erroneous based on uncontroverted evidence.
27 “A motion to vacate under section 663 is a remedy to be used when a trial court draws incorrect
28 || conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.” Simac
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT
1 | Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153. Relief under section 663 is not available when
2 || there is no inconsistency between the conclusions of law and findings of fact nor between the judgment
3 || and conclusions of law or findings of fact. Stanton, 202 Cal. at 486. Here, Defendants fail to identify
4 || any finding of law inconsistent with the findings of fact. “Where there is no inconsistency between the
5 i! conclusions of law and findings of fact nor between the judgment and conclusions or findings,
6 || proceedings under this section are not warranted.” Jd.
7 Furthermore, Defendants fail to indicate what findings would support a defense verdict. Even if
8 || findings of fact do not support the judgment in favor of Plaintiffs, “if they do not, on the other hand,
9 || when construed most favorably to plaintiff, require the conclusion that defendant is entitled to
10 || judgment” the motion is properly denied. Mardesich v. C. J. Hendry Co. (1942) 51 Cal.App.2d 567,
11 || 576. The MPA only makes claims against the sufficiency of the evidence; however, that argument
12 || cannot sustain a motion to vacate. Simac Design, Inc. 92 Cal.App.3d at 153 (“a motion for a new trial,
13 |] to be used when, e.g., the evidence is insufficient to support the findings or verdict”).
14 CONCLUSION
15 Defendants failed to submit an MPA that supports their Motion to Vacate and certainly didn’t
16 || argue the motion in the MPA they did serve. See footnote 1, above. Furthermore, Defendants also
17 || failed to file the requisite Notice of Intent and failed to give the required particularity in in the Notice
18 || of Motion that was filed contemporaneously with the motion in order to put Plaintiffs on notice of the
19 |] issues being challenged. As such, the motion should be denied.
20 || Dated: April 24, 2023 CLEMENT, FITZPATRICK & KENWORTHY
21 By. Lo Ca
22 DAVIN R. BACHO
Plaintiffs and Cross-Defendants
23 Barry Brilliant and Dagmar Hoheneck-Smith
24
25
26
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT
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1 || 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 Attorneys 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 I] individual and as trustee of THE DAGMAR MEMORANDUM OF POINTS AND 14 oo TRUST dated December AUTHORITIES IN SUPPORT OF ? ? PLAINTIFFS’ OPPOSITION TO 15 . DEFENDANTS’ MOTION TO VACATE Plaintiffs, JUDGMENT AND ENTER A DIFFERENT 16 vs. JUDGMENT 17 | MIT . BL indivi d db . . BL NRC eNIGEET Cee G Trial Judge: Hon. Christopher M. Honigsberg 18 ae ? , BLACK, an individual and dba BLACK Trial Date: February 24, 2023 19 || KNIGHT VINEYARDS; and DOES ONE through TWENTY, inclusive, 20 Date: 5/24/23 Defendants. Time: 3:00 p.m. 21 Dept: 18 22 || AND RELATED CROSS-ACTION 23 24 Plaintiffs Barry Brilliant and Dagmar Hoheneck-Smith respectfully submit this opposition to 25 || the Motion to Vacate Judgment and Enter a Different Judgment filed by defendants Mitchell G. Black, 26 || Deanne G. Black, and Black Knight Vineyards, LLC (collectively “Defendants”). After a jury found 27 || in favor of Plaintiffs in this matter, Defendants filed three post-trial motions: a motion for Judgment 28 || Notwithstanding the Verdict (Code Civ. Proc § 629); a Motion for New Trial (Code Civ. Proc § 659); -l- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT 1I and a Motion to Vacate J udgment and Enter Another and Different Judgment (Code Civ. Proc § 663a) 2 || (“Motion to Vacate”). Although Defendants’ arguments for each of their motions seem to be scattered 3 || within one memorandum of points and authorities titled: “Memo of Points and Authorities in Support 4 || of Defendants’ Post-Trial Motions,” Plaintiffs submit separate oppositions as to each motion. 5 LEGAL ARGUMENT 6 Defendants’ Motion to Vacate is procedurally and substantively defective. It is procedurally 7 || defective due to Defendants’ failure to serve a Notice of Intent setting forth specific grounds. It is 8 || substantively defective because although Defendants’ points and authorities alludes to vacating the 9 || punitive damages element of the final judgment, it fails to make any argument for what judgment is to 10 || be entered instead. It appears by Defendants’ proposed order that they are asking the court to vacate 11 }| the judgment in toto, to be replaced with a judgment “for defendants” without making any argument as 12 || to how the judgment is erroneous or what incorrect conclusions of law the trial court has drawn. 13 |} A. Defendants Motion to Vacate is Procedurally Defective.! 14 Similar to the requirements for a Motion for New Trial, a Motion to Vacate under Code of Civil 15 || Procedure §§ 663 and 663a requires the moving party to file and serve a Notice of Intent to the motion 16 || within 15 days of being served a Notice of Entry of Judgment. Section 663a(a) states in relevant part: 17 A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, 18 designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in 19 which the judgment or decree is not consistent with the special verdict. 30 Cal. Civ. Proc. Code § 663a (emphasis added). 21 || Not only did Defendants fail to serve the statutory Notice of Intent, the Notice of Motion that they 22 || served on April 13 lacks any of the specificity required by statute. Defendants’ Notice merely recites 23 || the grounds stated in section 663 stating: “The motion will be made on the grounds that the legal basis 24 || for the judgment filed by the court is erroneous in that it is not consistent with and/or supported by the 25 || facts or the law. These errors have materially affected the substantial rights of defendants entitling 26 || them to a different judgment.” These conclusory statements and recitations of the statutory language 27 |}§ ——————_———___——— ! Defendants’ Motion also lacks any supporting MPA. Plaintiffs hereby incorporate the argument 28 || stated in Plaintiffs’ Opposition to Motion JNOV (Section A) submitted herewith. MEMORANDUM OF POINTS AND AOTHORINES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT 1 || fail to provide notice as required by statute. 2 Section 663a requires that the notice of this motion (which is to be given in the form of a 3 | Notice of Intent) designate the grounds upon which the motion is made and shail specify “particulars 4 || in which the legal basis for the decision is not consistent with or supported by the facts or in which the 5 || judgment is not consistent with the verdict.” (Emphasis added). Lacking those particulars, Defendants’ 6 || Notice is fatally flawed. See Dolan v. Superior Court of S.F. (1920) 47 Cal.App. 235, 240 (“The notice 7 of motion is required to specify the particulars in which the conclusions of law are not consistent with 8 || the findings.”). Defendants’ Notice fails to identify any particulars indicating where conclusions of 9 I! law do not follow from the finding of fact and fails to even identify a single conclusion of law made. 10 | As such, the Notice fails and, as a result, the Motion must be denied. See Stanton v. Superior Court of 11 |} Cty. of L.A. (1927) 202 Cal. 478, 486-87 (overruled on a different basis in Phelan v. Superior Court of 12 || San Francisco (1950), 35 Cal.2d 363) stating: 13 The notices before us set forth no particulars wherein the conclusions of law or judgments do 14 not follow logically from the findings of fact. In fact the conclusions of law are not attacked and are not even so much as mentioned in the notices. Likewise the notices give no indication 15 of the judgment or judgments sought to be substituted for the original judgment entered. Neither do they contemplate an order contemporaneously given vacating the judgment and 16 establishing a new one in its stead. Nor do they contemplate an order entering a new judgment 7 as an integral part of the order vacating the old one. None of the proceedings taken and none of the orders in question can properly be identified as procedure authorized by or contemplated by 18 said sections of the code. The limits set by these sections cannot be transgressed. 19 Defendants’ failure to identify (or even argue) the particular grounds for the motion makes an 20 || opposition impossible. Furthermore, Defendants’ failure to follow the procedural notice requirements 21 || prevents the court from granting the motion, and as such it must be denied. 22 || B. Defendants’ Motion to Vacate is Substantively Defective. 23 Defendants’ proposed order submitted with its moving papers requests the judgment be 24 il vacated, and a judgment in favor of Defendants entered; however, the notice of motion, motion, and 25 || points and authorities submitted all fail to identify a single conclusion of law inconsistent with the 26 || facts, nor do they argue how the judgment was erroneous based on uncontroverted evidence. 27 “A motion to vacate under section 663 is a remedy to be used when a trial court draws incorrect 28 || conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.” Simac -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT 1 | Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153. Relief under section 663 is not available when 2 || there is no inconsistency between the conclusions of law and findings of fact nor between the judgment 3 || and conclusions of law or findings of fact. Stanton, 202 Cal. at 486. Here, Defendants fail to identify 4 || any finding of law inconsistent with the findings of fact. “Where there is no inconsistency between the 5 i! conclusions of law and findings of fact nor between the judgment and conclusions or findings, 6 || proceedings under this section are not warranted.” Jd. 7 Furthermore, Defendants fail to indicate what findings would support a defense verdict. Even if 8 || findings of fact do not support the judgment in favor of Plaintiffs, “if they do not, on the other hand, 9 || when construed most favorably to plaintiff, require the conclusion that defendant is entitled to 10 || judgment” the motion is properly denied. Mardesich v. C. J. Hendry Co. (1942) 51 Cal.App.2d 567, 11 || 576. The MPA only makes claims against the sufficiency of the evidence; however, that argument 12 || cannot sustain a motion to vacate. Simac Design, Inc. 92 Cal.App.3d at 153 (“a motion for a new trial, 13 |] to be used when, e.g., the evidence is insufficient to support the findings or verdict”). 14 CONCLUSION 15 Defendants failed to submit an MPA that supports their Motion to Vacate and certainly didn’t 16 || argue the motion in the MPA they did serve. See footnote 1, above. Furthermore, Defendants also 17 || failed to file the requisite Notice of Intent and failed to give the required particularity in in the Notice 18 || of Motion that was filed contemporaneously with the motion in order to put Plaintiffs on notice of the 19 |] issues being challenged. As such, the motion should be denied. 20 || Dated: April 24, 2023 CLEMENT, FITZPATRICK & KENWORTHY 21 By. Lo Ca 22 DAVIN R. BACHO Plaintiffs and Cross-Defendants 23 Barry Brilliant and Dagmar Hoheneck-Smith 24 25 26 27 28 -4.- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO VACATE JUDGMENT AND ENTER A DIFFERENT JUDGMENT