Preview
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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