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  • Louis Barbaccia, Sr. et al vs GBR Magic Sands MHP, LLC Other Real Property Unlimited (26)  document preview
  • Louis Barbaccia, Sr. et al vs GBR Magic Sands MHP, LLC Other Real Property Unlimited (26)  document preview
  • Louis Barbaccia, Sr. et al vs GBR Magic Sands MHP, LLC Other Real Property Unlimited (26)  document preview
  • Louis Barbaccia, Sr. et al vs GBR Magic Sands MHP, LLC Other Real Property Unlimited (26)  document preview
						
                                

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Mark B. Fredkin (S 53550) mfredkin@mffmlaw.com William Siamas (SBN 133111) wsiamas@mffmlaw.com David A. Kays (SBN 120798) dkays@mffmlaw.com MORGAN FRANICH FREDKIN SIAMAS & KAYS LLP 333 W. San Carlos Street, Suite 1050 San Jose, California 95110-2735 Telephone: (408) 288-8288 Facsimile: (408) 288-8325 Gregory D. Hull N 57367) greg@ellenberghull.com ELLENBERG & HULL 4 North Second Street, Suite 1240 San Jose, California 95113 Telephone: (408) 998-8500 Facsimile: (408) 998-8500 Attorneys forDefendant / Cross -Complainant GBR Magic Sands MHP, LLC SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA OUIS P. BARBACCIA, SR. et al. Case No. 17 CV 31 Plaintiffs, GBR MAGIC SANDS MHP, LLC Defendants. Trial Date: February 27, 2019 AND RELATED CROSS ACTION Time: 8:30 a.m. Dept.: TBD POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT GBR MAGIC SANDS MHP, LLC 0 Defendant’s Post Trial Brief TABLE OF CONTENTS Page INTRODUCTION FACTUAL BACKGROUND OVERVIEW OF THE PLAINTIFFS’ THEORY ANALYSIS AND ARGUMENT Plaintiffs Have Not Proven Essential Elements of their Ouster Claim GBR is a Lessee Not a Tenant in Common; Nor Does it Owe Any Tenancy in Common Duties to Plaintiffs GBR Has Not “Dispossessed” Plaintiffs It Is Not “Wrongful” For GBR To Occupy The Property Consistent With The 2007 Leases Because Plaintiffs Gave Their Consent To Those Leases And To GBR’s Acts Undertaken Thereunder II. Plaintiffs Consented To GBR’s Operation Of Magic Sands Pursuant To The 2007 Leases; Therefore, GBR’s Acts Neither Infringed Any Right Of Possession Held By Plaintiffs Nor Were Wrongful. The November 15, 2010 Order Confirming Sale Provides That All Post Partition Fee Interests In The 20 Acres, Including the Interests Currently Held By Lou, Catherine and The Josephine Trust, Are Subject To The 2007 Leases Introduction Legal Standard: Two Step Process for Interpreting The Order Application of Step One: The Order Confirming Sale Is Not Ambiguous in its Relevant Parts There Is No Ambiguity That All Interests Subject To The Partition Action Were Acquired “As A Single Unit” And “Subject To” The 2007 Leases There Is No Ambiguity That All Interests Subject To The Partition Action Were Acquired “As A Single Unit” And “Subject To” The 2007 Leases “Sold As A Single Unit” “Subject To” Plaintiffs Have Not Shown That The Order is Ambiguous Even If The Order Confirming Sale Were Found To Be Ambiguous, It Should Be Interpreted As Contended By GBR As Reflected By The Relevant Extrinsic Evidence The Record in the Partition Action Credit Bid Provisions The Purposes of Partition The Evidence Relied on by Plaintiffs is not Admissible to Prove The Meaning of the Order Confirming Sale Plaintiffs’ Miscellaneous Arguments Challenging GBR’s Interpretation of the Order Confirming Sale are Without Merit Plaintiffs’ Assertion That GBR’s Interpretation of the Order Confirming Sale is a “Novel Theory” and “Unsupported by Any Legal Authority” Plaintiffs’ “4 Types of Ownership” Argument Plaintiffs’ Due Process Argument POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Plaintiffs’ Statute of Frauds Argument Plaintiffs’ “Issue Preclusion” Defense The Issues Are Not Identical Issue Not Actually Litigated Not Necessarily Decided iv. Policy Reasons Why Claim Preclusion Should Not Apply Independent Of The Legal Effect Of The Order Confirming Sale, Plaintiffs Are Bound By Their Agreement That The Post Partition Interests In The Property Would Be Subject To The Magic Sands Leases Plaintiffs Cannot Escape The Obligations Of Their Agreement By Claiming They Had A Different Understanding Of The Order Confirming Sale Plaintiffs Offered No Evidence To Support Their Claim That They Agreed The 2007 Leases Bound Only Some Of The Interests Purchased At The Partition Sale Findings Requested Even If The Pre Partition Interests Were Separately Sold And Separately Burdened, Plaintiffs Still Consented To GBR’s Use Of All Improvements To Operate Magic Sands Under The 2007 Leases Applicable Law Relevant Facts Plaintiffs Consented to GBR’s Occupation and Use of Magic Sands By Agreeing to Purchase the Property “As Is / Where Is” III.Plaintiffs’ Ouster Claims Violate th e Rule Against Splitting a Cause of Action Plaintiffs’ Claims Seek to Vindicate the Same Primary Right at Issue In the 1963 Cancellation Action Governing Principles Plaintiffs Seek to Vindicate the Same Primary Right: Infringement Of Their Possessory Interests Unburdened by the 1963 Lease Plaintiffs Could Have Pursued Their Claims for Damages for GBR’s Alleged Infringement to Final Judgment Plaintiffs’ Arguments do Not Defeat the Doctrine Assertion re Different Primary Rights Assertion that GBR’s “Own Conduct” Proves There is No Splitting of Plaintiffs’ Cause of Action Contention that “Lou Did Not Assert Any Primary Rights” in e 1963 Lease Cancellation Action Lou Brought Affirmative Claims as a Cross Complainant Plaintiffs’ Admits that Lou Was a Party and LouBar was in Privity With Lou GBR is Not Judicially Estopped to Assert That Lou Was a Par IV. Plaintiffs’ Claims Are Barred By the Statute of Limitations Plaintiffs’ Claims Are Barred By the Order Confirming Sale Discussion Plaintiffs’ Arguments Are Without Merit Plaintiffs Could Have Pursued their Infringement Claims Plaintiffs’ Strawman Argument About Res Judicata VI. Plaintiffs’ Claims are Barred by Judicial Estoppel GBR Met Its Burden of Proof Plaintiffs Arguments to Avoid Judicial Estoppel are Without Merit Civil Code §1542 POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC VII. The Quiet Title Aspect of Judge Persky’s Judgment Does Not Bar GBR From Asserting Its Defenses Based on the 2007 Leases or Order Confirming Sale Overview of the Principles of Claim Preclusion The Quiet Title Statutory Scheme The Breadth of Quiet Title is Determined by the Plaintiff’s Complaint The Plaintiff Must Identify the Particular Determination Sought and Basis Therefor The Plaintiff is Also Required to Identify the Defendants’ Adverse Claim The Defendant’s Responsive Pleadings The Parameters Of A Quiet Title Judgment Plaintiffs’ Contention Plaintiffs’ Argument Should Be Rejected The Statutory Scheme Does Not Support Plaintiffs’ Argument A Defendant’s Answer Need Only Respond To The Specific Quiet Title Claim Alleged In The Complaint A Defendant May, But Is Not Required, To File A Cross Complaint Raising New Issues That Do Not Constitute A Defense To The Plaintiff’sParticular Quiet Title Request The Judgment Cannot Bar Claims That Are Not Raised The Case Law Does Not Support Plaintiffs’ Argument Plaintiffs Argument, If Accepted, Would Result In A Violation Of GBR’s Due Process Rights And Right To Petition Because It Would Deny GBR The Right To Defend Itself And Result In The Loss Of Valuable Property Rights Plaintiffs’ Argument Is Nonsensical VIII. GBR Is Entitled To A Declaration That The 2007 Leases Cover Parcels 1, 3 and 8 GBR Is Entitled To An Adjudication That It Has A Leasehold Interest In Parcel 3 By Virtue of Plaintiffs’ Admission The Evidence Establishes That GBR Has A Leasehold Interest In Both Parcels 3 and Parcel 8 IX. Plaintiffs Have Not Proven Causation, Injury Or Damages Plaintiffs Have Not Shown A Causal Connection Between GBR’s Wrongful Conduct And Any Injury Or Damage Suffered By Plaintiffs Civil Code § 3334 Is Not A Proper Measure Of Damages Plaintiffs Have Not Shown A Deprivation Of Their “Just Share” Plaintiffs Have Not Shown A “Direct Link” Between GBR’s Income And Its Allegedly Wrongful Conduct Plaintiffs Have Not Proven That The “Benefits Obtained” Part Of Section 3334 Is Applicable Plaintiffs Have Offered No Proof In This Case Regarding The Value Of The Use Of Their Interests That Were Formerly Burdened By The 1963 Lease Other Problems With Plaintiffs’ Computation Of Damages Gross Income is Not The Measure Mr. Hulberg Mr. Moore Mr. Evans Future Damages Recap of Issue Regarding Damages CONCLUSION POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC TABLE OF AUTHORITIES Page Cases 14859 Moorpark Homeowner's Assn. v. VRT Corp.supra 63 Cal.App.4th at 1405 Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385 Aerojet General Corp. v. Am. Excess Ins. Co. (2002) 97 Cal.App.4th 387 Akley v. Bassett (1922) 189 Cal. 625 Alameda County Flood Control & Water Conservation Dist. v. Department of Water Resources (2013) 213 Cal.App.4th 1163 Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901 Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319 Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App. 3 Atlantic Oil Co. v. County of Los Angeles (1968) 69 Cal.2d 585 Atlantic Oil Co. v. County of Los Angeles (1968) 69 Cal.2d 585 Austero v. Washington National Ins. Co. (1982) 132 Cal.App.3d 408 Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450 Ayala v. Dawson (2017) 13 Cal.App.5th 1319 Bailey v. Outdoor Media Group (2007) 155 Cal.App.4th 778 Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4 th 446 POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Bell v. Tri City Hospital Dist. (1987) 196 Cal.App.3d 438 Bessho v. General Petroleum Corp. (1921) 186 Cal. 133 Black v. Black (1949) 91 Cal. App. 2d 328 Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal App. 4th 1478 Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128 Brinton v. Bankers Pension Servs. (1999) 76 Cal.App.4th 550 Bucur v. Ahmad (2016) 244 Cal.App.4th 175 Burdette v. Rollefson Construction Co. (1959) 52 Cal. 2d 720 Cal. Wholesale Material Supply v. Norm Wilson & Sons (2002) 96 Cal.App.4th 598 Cal. Wholesale Material Supply v. Norm Wilson & Sons (2002) 96 Cal.App.4th 598 CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525 Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668 Cathcart v. Redlands Sec. Co. (1945) 67 Cal.App.2d 591 Chamberlain v. Loewenthal (1902) 138 Cal. 47 Chaparkas v. Webb (1960) 178 Cal.App.2d 257 Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230 POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995 Coffey v. Superior Court (1905) 147 Cal. 525 Colonial Sav. & Loan Asso. v. Redwood Empire Title Co. (1965) 236 Cal.App.2d 186 Colvig v. RKO Gen. (1965) 232 Cal.App.2d 56 Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373 Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 Cowan v. Tremble (1931) 111 Cal.App. 458 Crosby v. HLC Properties, Ltd. (2014) 223 Cal.App.4th 597 Dabney Johnston Oil Corp. v. Walden (1935) 4 Cal.2d 637 Daly v. Smith (1963) 220 Cal.App.2d 592 Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435 Denning v. Green (1931) 119 Cal.App. 102 Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154 Desny v. Wilder (1956) 46 Cal.2d 715 Dethlefs v. Carrier (Iowa 1954) 245 Iowa 786 Dimmick v. Dimmick (1962) 58 Cal.2d 417 Div. of Labor Stds. Enforcement v. Seaboard Sur. Co. (1996) 50 Cal.App.4th 1501 vi POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC DKN Holdings LLC v. Faerber (2015) 61 Cal. 4th 813 Doo v. Packwood (1968) 265 Cal.App.2d 752 Dow v. Lassen Irrigation Co. (2013) 216 Cal.App.4th 766 Dutton v. Interstate Inv. Corp. (1941) 19 Cal.2d 65 Edward Brown & Sons v. San Francisco (1950) 36 Cal.2d 272 Edwards v. Arthur Andersen LLP (2008) 44 Cal. 4th 937 bert, Ltd. v. Federated Etc. Properties (1953) 120 Cal.App.2d 194 Estate of Stephens (2002) 28 Cal.4th 665 azzio v. Rarick (Bk. E.D. Cal. 1995) 180 B.R. 263 Field Escandon v. DeMann (1988) 204 Cal.App.3d 228 Fire Ins. Exchange v. Superior Court (2010) 181 Cal.App.4th 388 Fischer v. Carey (1916) 173 Cal. 185 Foster v. Superior Court of San Francisco (1896) 115 Cal. 279 Freeman v. Gray Cowan, Inc. (1933) 219 Cal. Galen v. Mobil Oil Corp. (C.D Cal. 1996) 922 F.Supp. 318 Gerdlund v. Elec. Dispensers Int'l (1987) 190 Cal.App.3d 263 Ghk Assocs. v. Mayer Group (1990) 224 Cal.App.3d 856 vii POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11 Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 Gottlieb v. Superior Court (1959) 168 Cal.App.2d 309 Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803 Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623 Hacker Pipe & Supply Co. v. Chapman Valve Mfg. Co. (1936) 17 Cal.App.2d 265 Haight v. Green (1861) 19 Cal. 113 Hatch v. Bank of America (1960) 182 Cal.App.2d 206 Henderson v. Eason (1851) 17 Adolphus & Ellis N.S. 701 Hulsey v. Koehler (1990) 218 Cal.App.3d 1150 In Oswald v. City of El Centro (1930) 211 Cal. 45 In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395 In re Jessica G. (2001) 93 Cal. App. 4th 1180 In re Marriage of Benjamins (1994) 26 Cal.App.4th 423 In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510 In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964 In re Marriage of Iberti (1997) 55 Cal.App.4th 1434 viii POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC In re Marriage of McNeill (1984) 160 Cal.App.3d 548 In re Zeth S. (2003) 31 Cal.4th 396 Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165 Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171 Johns v. Scobie (1939) 12 Cal.2d 618 Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th Lee Chuck v. Quan Wo Chong (1891) 91 Cal. 593 LEG Investments v. Boxler (2010) 183 Cal.App.4th 484 Loeffler v. Target Corp. (2014) 58 Cal.4th 1081 Lucido v. Superior Court (1990) 51 Cal.3d 335 Mangini v. Aerojet General Corp. (1996) 12 Cal.4th 1087 Mann v. Jackson (1956) 141 Cal.App.2d 6 McCaffrey v. Wiley (1951) 103 Cal.App.2d 621 McCarthy v. Brown (1896) 113 Cal. 15 McCord v. Oakland Quicksilver Mining Co. (1883) 64 Cal. 134 McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100 McNulty v. Copp (1954) 125 Cal.App.2d 697 POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC McWhorter v. McWhorter (1929) 99 Cal.App. 293 Millar v. James (1967) 254 Cal.App.2d 530 Miller v. Peters (1951) 37 Cal.2d 89 Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396 Morris v. Blank (2001) 94 Cal.App.4th 823 Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888 Natural Soda Products Co. v. Los Angeles (1943) 23 Cal.2d 193 People v. Castillo (2010) 49 Cal. 4th 145 People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66 People v. Sims (1982) 32 Cal.3d 468 Pico v. Columbet (1859) 12 Cal. 414 Pitchess v. Superior Court of Los Angeles County (1969) 2 Cal.App.3d 644 Plass v. Plass (1898) 122 Cal. 3 Progressive Collection Bureau v. Whealton 944) 62 Cal.App.2d 873 R & P Capital Resources, Inc. v. California State Lottery (1995) 31 Cal.App.4th 1033 Rader Co. v. Stone (1986) 178 Cal.App.3d 10 POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Rancho Pauma Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal. App. 4th 109 Rankin v. DeBare (1928) 205 Cal. 639 Realty Corp. of Am. v. Burton (1958) 162 Cal.App.2d 44 Reichert v. General Ins. Co. (1968) 68 Cal.2d 822 Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745 Rinaldi v. Workers' Comp. Appeals Bd. (1988) 199 Cal.App.3d 217 Rony v. Costa (2012) 210 Cal.App.4th 746 Roos v. Red (2005) 130 Cal.App.4th 870 Samara v. Matar (2018) 5 Cal.5th 322 San Francisco Lumber Co. v. Bibb (1903) 139 Cal. 325 Savage v. Emery (1967) 255 Cal.App.2d 603 Searles v. Gonzalez (1923) 191 Cal. 426 Secrest v. Security National Mortgage Loan Trust 2002 (2008) 167 Cal.App.4th 544 Shapiro v. Hu (1986) 188 Cal.App.3d 324 Simmons v. Ware (2013) 213 Cal.App.4th 1035 Southern Pacific Land Co. v. Meserve (1921) 186 Cal. 157 Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583 xi POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Stewart v. Crowley (1931) 213 Cal. 694 Sutphin v. Speik (1940) 15 Cal.2d 1 Swan Magnetics v. Superior Court (1997) 56 Cal.App.4th 1504 Swarthout v. Gentry (1943) 62 Cal.App.2d 68 Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451 Thompson v. Ioane (2017) 11 Cal. App. 5th 1180 Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050 Title Guarantee & Trust Co. v. Monson (1938) 11 Cal.2d 621 Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197 Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110 Tomlinson v. County of Alameda (2010) 188 Cal.App.4th 1406 Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813 Verdier v. Verdier (1957) 152 Cal.App.2d 348 Vernon v. Superior Court (1952) 38 Cal.2d 509 Wallace v. Daley (1990) 220 Cal.App.3d 1028 Watson Land Co. v. Shell Oil Co. (2005) 130 Cal.App.4th 69 Weber v. Superior Court of Yolo County (1945) 26 Cal.2d 144 xii POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559 Whittaker v. Otto (1967) 248 Cal.App.2d 666 Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 Winet v. Price (1992) 4 Cal. App. 4th 1159 Winterburn v. Chambers (1891) 91 Cal. 170 Wood Bldg. Corp. v. Griffitts (1958) 164 Cal.App.2d 559 Wulfjen v. Dolton (1944) 24 Cal.2d 891 Zaslow v. Kroenert (1946) 29 Cal.2d 541 Statutes C.C.P. § 336 .C.P.§ 338(2) C.C.P. § 431.30(c) C.C.P. § 685 .C.P.§ 760.020(a) C.C.P. 761.020(b) C.C.P.761.020(c) C.C.P. C.C.P 761.030(a) C.C.P. 761.030(a)(1) C.C.P.761.040(a) C.C.P. § 761.040(a) C.C.P. § 761.030(a)(3) C.C.P. C.C.P. C.C.P. 764.030(a) C.C.P. 764.030(b) C.C.P. C.C.P. § 872.120 C.C.P. § 872.140 C.C.P. § 872.230 C.C.P. § 872.510 C.C.P § 872.610 C.C.P. § 872.810, xiii POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC C.C.P. § 872.820 C.P.§ 872.820 (a) and (b) .C.P. C.C.P. C.C.P. 873.280(b)(2) C.C.P. §§ 873.210 873.290 C.C.P. 873.510 to 873.850 C.C.P. § 873.600 C.C.P. § 873.610 (a) C.C.P. § 873.260 .C.P.§ 916(a) C.C.P C.C.P. C.C.P. § 1542 C.C.P.§ 1624(a) .C.P. .C.P. C.C.P. C.C.P. C.P. C.C.P. § 2033.410 C.C.P. C.C.P. .C.P. .C.P. .C.P.§ 3334(b) .C.P. § 3334(b)(1) C.C.P. .C.P. .C.P. Evid. Code § 210 xiv POST TRIAL BRIEF OF DEFENDANT / CROSS COMPLAINANT Case No. Case No. 17 CV 313947 GBR MAGIC SANDS MHP, LLC INTRODUCTION ut of the one hundred and fifty five pages that comprise Plaintiffs’ Post Trial Closing Brief (“Plaintiffs’ Brief” or “Plf.’s Brf”) a total of six pages are devoted to discussion of Plaintiffs’ theory of “liability” Id. pp. 27:11 32:4; pp. 66:16 67:12); thirty five pages are devoted to a discussion of “damages Id. pp. 32:5 66:15); and eighty seven are devoted to what Plaintiffs contend are “affirmative defenses” or “affirmative claims” of Defendant GBR Magic Sands MHP, LLC (“GBR”) Id.67:13 154:3) primary defect in Plaintiffs’ presentation of their case chief is that it ignores three essential elements of their theory of liability and on which they carry the burden of proof. Plaintiffs’ theory is that GBR is liable for “ouster” under tenancy in common law. Under Zaslow v. Kroenert (1946) 29 Cal.2d 541, a case cited by Plaintiff, “ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. Id. ) So in order to prove their “ouster” theory Plaintiffs must show that (1) GBR owes Plaintiffs duties as a tenant in common (2) GBR has committed acts that “dispossess” Plaintiffs of their alleged possessory rights; and (3) that GBR’s conduct is “wrongful.” Plaintiffs either ignore or gloss over these elements. Plaintiffs’ Brief omits any discussion or analysis regarding how GBR which is merely a lessee and owns no interest in the 20 Acres can be a “tenant in common” with the Plaintiffs who are fee owners. In addition, Plaintiffs’ Brief omits any discussion regarding the legal standards for determining how or when the use of owned property by one purported co owner “dispossess another co owner. Plaintiffs assert that GBR has committed three acts (or categories of acts) that allegedly amount to ouster: (i) GBR subleased spaces to mobile home residents, (ii) GBR declined a demand made by Plaintiffs’ litigation counsel to use two offices in the Magic Sands clubhouse during the pendency of this hotly contested litigation, and (iii) GBR placed a fence around a vacant lot, Parcel 8, to protect itfrom trespassing by homeless persons. Plaintiffs state the conclusion that these acts constitute an ouster. However, even a cursory review of tenancy in common law that Plaintiffs contend applies to this case shows that a co tenant is absolutely entitled to lease Defendant’s Closing Trial Brief property to third parties, use offices and erect fences for the protection of the property. Plaintiffs provide no discussion or analysis as to how these acts of GBR ripened into an ouster. Plaintiffs’ omission is particularly glaring given that GBR, in its Trial Brief filed at the start of trial, provided the Court and Plaintiffs with a detailed analysis of the legal concepts that must be navigated under the complex of tenancy in common principles that Plaintiffs seek to invoke in this case. (GBR’s Trial brief, pp. 45 54) Plaintiffs’ failure to even acknowledge that analysis, let alone provide any rebuttal to the points made by GBR, demonstrates that Plaintiffs’ legal theory is fatal flaw and that Plaintiffs have not met their burden of proof. Perhaps Plaintiffs will provide a rebuttal to these points for the first time in their Reply Post Trial Closing Brief in an effort to get the “last word” on this issue. uch a strategy, however, is a disservice to the Court which is tasked to resolve complex legal issues that require rigorous analysis. As described further below, Plaintiffs have a proclivity to make vague and/or misleading arguments and resort to sound bites, rhetoric or string cite references in lieu of proper analysis The resolution of complex legal issueis not served by Plaintiffs’ method of advocacy. Another glaring defect in Plaintiffs’ presentation of their case chief is their discussion of the “lack of consent” element of their ouster claim. In their Second Amended Complaint (“SAC”) Plaintiffs allege that GBR’s acts constitute an ouster because they were undertaken “without the consent of Plaintiffs.” (Ex. 25 [SAC] p. 12:20 21, ¶ 29) Yet Plaintiffs’ Brief contains no discussion of the “consent” element as part of their case chief and does not mention the topic until page 88, where Plaintiffs assert, incorrectly, that consent is a “defense” on which GBR has the burden of proof. (Plf.’s Brief p. 88) Plaintiffs then proceed to create strawman arguments that misstate GBR’s analysis and argument of the issue or assert other reasons why GBR should be precluded from even making such an argument. (Id. 97) Lack of consent is not an affirmative defense. It is an element of Plaintiffs’ case chief. A alleged “dispossession” of a purported co tenant from commonly owned property oes not occur, and is not “wrongful,” unless it was undertaken without the consent of the co owner. Again, perhaps Plaintiffs’ strategy is to wait until reply to discuss this element of their case chief, but, for the reasons stated above, this is an inappropriate briefing tactic. Defendant’s Closing Trial Brief Similar defects exist in Plaintiffs’ presentation of their claimed damages. The most glaring omission is that Plaintiffs again mpletely ignore the applicable legal standard that GBR set out in great detail in its Trial Brief. Under that standard, a co tenant who claim to be ousted must demonstrate he has been deprived of his “just share” of the property. (GBR’s Main Trial Brief, pp. 47) Plaintiffs do not contend or offer any proof that the acts of GBR of which aintiffs complain have deprived Plaintiffs of their “just share.” Instead, Plaintiffs assume without analysis that GBR’s acts of (i) subleasing spaces to mobile home residents, (ii) declining a demand made by Plaintiffs’ litigation counsel to use two offices in the Magic Sands clubhouse during the pendency of this hotly contested litigation, and (iii) placing a fence around a vacant lot, Parcel 8, to prevent trespass by homeless persons constitute “wrongful dispossession” and then leap to the conclusion that these alleged wrongs entitle Plaintiffs to $7 million bonanza and an order declaring that GBR must continue to pay Plaintiffs millions of dollar more in purported net operating income after the Judgment and for an indefinite periodin the future Under no circumstances are Plaintiffs entitled to a share of GBR’s past or future business profits whether the real profits from that business or those imagined by Plaintiffs’ expert. Plaintiffs are not partners with GBR, they contributed nothing to build or operate the business, they have not assumed any liabilities, and they have undertaken no risk if the business were to fail. Plaintiffs’ presentation does nothing to make a causal connection between the three types of acts committed by GBR (which Plaintiffs label as “wrongful dispossession”) and the actual damages or injury suffered by Plaintiffs. See, Doo v. Packwood (1968) 265 Cal.App.2d 752, 758 In proof relative to damages it must be shown that the damage proximately flowed from the wrongful act of defendants.”]; Chaparkas v. Webb (1960) 178 Cal.App.2d 257, 260 a proximate causal connection must still exist between the damage sustained by the plaintiff and the defendant's wrongful act or omission, and the detriment inflicted on the plaintiff must still be the natural and probable result of the defendant's conduct Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 83 [Sixth Appellate District: “The rule is established that the plaintiff has the burden of proving, with reasonable certainty, the damages actually sustained by him as a result of the defendant's wrongful act, and the extent of such damages must be proved as a fact.”]) Defendant’s Closing Trial Brief Plaintiffs’ reliance on the measure of damages specified in Section 3334 of the Civil Code is misplaced. That section applies to claim for the wrongful occupation of property. A co tenant is incapable of committing a “wrongful occupation” of commonly owned property. He is legally entitled to occupyevery square inch of that property.Moreover, the acts of GBR complained of by Plaintiffs are not “wrongful.” And as indicated in Section IX, infra, Plaintiffs have not, and simply cannot, prove the requirements for the recovery they seek under Section 3334. In this regard, Plaintiffs have retreated from the primary legal theory alleged in their SAC that simply “[a]s a consequence of the Judgment decreeing that the 1963 Lease is void … Plaintiffs are entitled to recover their pro rata share of NOI [net operating income from Magic Sands].” (Ex. SAC 14, ¶¶32, 34, 36, 23) Plaintiffs no longer contend (at least as indicated by their Brief that GBR is liable merely “as a consequence of” Judge Persky’s Judgment. The obvious reason for the retraction is that this contention, in addition to being legally incorrect, plainly exposes Plaintiffs’ claims as violating the rule against splitting a cause of