Preview
o a FILED BY FAX
CHRISTOPHER ONSTOTT, State Bar No. 225968
constott@kmitg.com
WILLIAM T. CHISUM, State Bar No. 142580
wehisum@kmtg.com
Jacquelyn C. Loyd, State Bar No. 305126
jloyd@kmtg.com iF I i. E D
SUPERIOR Ey OE
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD coun
EL er CHiN
00 Capitol Mall, 27" Floor
Sacramento, California 95814 AUG 29 2019
Telephone: (916) 321-4500 JAKE CHATTERS
Facsimile: (916) 321-4555 EXECUTIVE OFFITER & CLERK
NAN
By: E. Cavaéox. Beputy
Attorneys for Plaintiffs and Cross-Defendants
SIERRA COLLEGE PARTNERS and
GRANITE MEADOW, LLC
CO
ODO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
mo
COUNTY OF PLACER
11 SIERRA COLLEGE PARTNERS, a Case No. SCV 0041053
California General Partnership;
12 GRANITE MEADOW, LLC, a California SIERRA COLLEGE PARTNERS AND
Limited Liability Corporation, GRANITE MEADOW, LLC'S
13 OPPOSITION TO DEFENDANTS'
Plaintiffs, MOTION IN LIMINE NO. 1
14
V. (TO EXCLUDE EVIDENCE REGARDING
15 ALLEGED TRESPASS NUISANCE PRIOR
PAUL E. NOVARESI; CARLA L. TO PLAINTIFF'S HAVING A POSSESSORY
16 NOVARESI; and DOES 1 through 20, INTEREST IN THE SCP PROPERTY)
inclusive,
17
Defendants.
18
19 PAUL E. NOVARESI; CARLA L.
NOVARESI, Trial Date: September 3, 2019
20 Time: 8:30 a.m.
Cross-Complainants, Dept.: TBD
ai
Vv.
22
SIERRA COLLEGE PARTNERS, a
23 California General Partnership; Action Filed: April 19, 2018
GRANITE MEADOW, LLC, a California
24 Limited Liability Corporation,
25 Cross-Defendants.
26
27
28
1876886.114418-002 1
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. 1
I.
INTRODUCTION
Defendants Paul and Carla Novaresi (“Defendants”) bring this improper motion for
summary judgment or adjudication, which is disguised as a motion in limine, tosummarily
adjudicate Plaintiffs’ claims for trespass and nuisance. With respect to Plaintiff Sierra College
Partners (“SCP”), Defendants outright conclude, “[t]hus, Plaintiff SCP cannot sustain a claim for
trespass.” Defendants/Cross-Complainants’ Motion in Limine No. 1 to Exclude Evidence
Regarding Alleged Trespass Nuisance Prior to Plaintiff's [sic] Having a Possessory Interest in the
SCP Property (“Motion in Limine No. 1”),4:18-19. Furthermore, Defendants seek to summarily
10 adjudicate Plaintiff Granite Meadow, LLC’s (“Granite Meadow”) claims for trespass and nuisance
11 by excluding allevidence related to trespass and nuisance during any time in which Granite
IZ Meadow did not have a possessory interest in the property at9501 Eckerman Road (the “SCP
13 Property”). Defendants assert that Granite Meadow never had a possessory interest in the SCP
14 Property. If this court were to grant Defendants’ motion, Granite Meadow would be unable to
15 introduce any evidence supporting itsclaims and itscase would necessarily fail. Defendants
16 attempt to summarily adjudicate Plaintiffs’ claims on the eve of trialthrough a motion in limine is
17 wholly improper, and in fact, isin contravention of this court’s local rules and well-established
18 case law. For this reason alone, the court should deny Defendants’ Motion in Limine No. 1.
19 Moreover, even if this court considers this motion on the merits, itshould stilldeny the
20 motion. The law does not support Defendants’ contentions that plaintiffs bringing trespass and
pa nuisance actions must be living on the property at issue. Landlords and owners of property who
22 do not reside on the property are nevertheless in possession of that property and therefore may
maintain an action for trespass. In addition, Defendants cite no case that holds a plaintiff must
24 reside on the property to sustain an action for nuisance. Plaintiff SCP has a possessory interest in
25 the SCP Property because itis developing that property and the SCP Property is owned by one of
26 SCP’s partners specifically for this purpose.' Plaintiff Granite Meadow has a possessory interest
27
28 'Real property held in the name of a single partner to further the purposes of the partnership
1876886.114418-002 2
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. !
in the SCP Property because it owns the property and is the landlord to the tenant on the property,
Dallas Sartz.
Finally, tothe extent Defendants’ motion seeks to exclude evidence of trespass and
nuisance from before Granite Meadow pmehased tie SCP Property, this evidence isrelevant to
Plaintiffs’ theories of continuing trespass and nuisance and is therefore admissible.
i.
LEGAL ARGUMENT
A. Summary Judgment/Adjudication Motions Disguised as Motions in Limine are
Improper and Should Be Denied
10 “A motion in limine shall not be used for improper purposes, including for the purpose of
1 seeking summary judgment and/or summary adjudication of an issue or issues, which motions
12 may only be made in compliance with Code of Civil Procedure section 437c and court rules
13 pertaining thereto.” Local Rule 20.4(G). Furthermore, a motion in limine isinappropriate where
14 the effect of granting the motion would be to eliminate the opportunity for the opponent “‘to
15 present evidence to establish itscause of action.” See R& B Auto Ctr., Inc. v. Farmers Group,
16 Inc., 140 Cal. App. 4th 327, 359 (2006); id.at 372 (“An in limine motion that seeks to exclude all
17 evidence pertaining to part or allof a cause of action based on an argument that plaintiff lacks
18 evidence to support part or all of the cause of action isbut a disguised motion for summary
19 adjudication.” (Rylaarsdam, acting P.J., concurring). Motions in /imine were not designed to
20 replace dispositive motions and use of “irregular procedures” may blindside opponents. Amtower
21 v.Photon Dynamics, Inc., 158 Cal. App. 4th 1582, 1593-95 (2008); Pantoja v.Anton, 198 Cal.
22 App. 4th 87, 93 (2011) (trialcourt’s grant of motion in limine to exclude evidence amounted to an
23 improper grant of relief equivalent to summary adjudication against plaintiffs claim); Eng v.
24
25 confers standing to sue on the partnership as well as the partner holding titleto the property. See
Pluth v.Smith, 205 Cal. App. 2d 818, 825-26 (1962) (upholding the trial court’s ruling that real
26 property held in the name of individual partners belonged to the partnership); En Taik Ha v. Kang,
187 Cal. App. 2d 84, 90-91 (1960) (“Ifa partnership isformed and real property isdedicated to
27 partnership use and is used by the partnership for itssole benefit the fact that titlewas acquired by
one or more of the partners with theirprivate funds . ..will not necessarily defeat the claim of the
28 (quoting Bastjan v. Bastjan, 215 Cal. 662 (1932)).
partnershi to ownership of the property .. .”)
876886.114418-00:
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. 1
Brown, 21 Cal. App. 5th 675, 698 (2018) (motion in limine that sought to take factual issue
regarding formation of partnership away from jury was “more akin toa partial directed verdict on
the issue.”). Appellate courts are becoming increasingly waryof this tactic. See Amtower, 158
Cal. App. 4th at 1593-95; R & B Auto Ctr., 140 Cal. App. 4th at 371-72 (“I realize that it isnot
uncommon to bring motions for judgment on the pleadings, for summary judgment, and for
summary adjudication of issues in the guise of motions in limine. But, particularly inthe latter
cases, this practice removes allthe protections afforded by the statute which prescribes the manner
in which the court must handle such motions. To have the sufficiency of the pleading or the
existence of triable issues of material fact decided in the guise of a motion in limine is a perversion
10 of the process.”’).
11 Defendants attempt to disguise a motion for summary judgment or adjudication as a
12 motion in limine regarding relevance is improper. Defendants’ arguments regarding relevant
13 evidence with respect to Plaintiffs’ trespass claims do not seek to exclude awell-defined category
14 of evidence, but in fact, seek to summarily adjudicate Plaintiffs’ trespass claims by excluding all
15 evidence of trespass. Defendants themselves remove all doubt as to their intentions when they
16 conclude, “Thus, Plaintiff SCP cannot sustain a claim of trespass.”* Defendants’ Motion in
17 Limine No. 1, 4:18-19. With respect to Granite Meadow, Defendants allege that “as Granite
18 Meadow did not acquire the property until June 2018, itdid not have an ownership interest until
19 that time. As the property iscurrently leased to Mr. Sartz, Granite Meadow does not have a
20 possessory interest in the SCP Property.” Defendants’ Motion in Limine No. 1,4:23-26.2 In short,
21 Defendants ask this court to find that Granite Meadow never had a possessory interest in the SCP
22
23
? Defendants make identical arguments as to SCP and Granite Meadow’s claims for nuisance.
24 Defendants conclude, in their section on nuisance, “Thus Plaintiff SCP cannot sustain aclaim of
trespass.” Itappears this isa copy/paste error and that Defendants meant to write nuisance. Itis
25 just as improper for Defendants toattempt to summarily adjudicate Plaintiffs’ claims of nuisance
26 as it isfor their claims of trespass.
3 As with SCP, Defendants make identical arguments as to Granite Meadow with respect to its
27 claim for nuisance. Defendants’ Motion in Limine No. 1, 5:25-27 (“With respect to Plaintiff
Granite Meadow, itacquired an ownership interest in the SCP Property in June of 2018 and has
28 Property as itis currently leased to Dallas Sartz.”).
never had a possessory interest in the SCP
1876886.114418-002 4
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. |
Property and to therefore exclude all evidence of trespass submitted by Granite Meadow.
When read together with Defendants’ identical arguments regarding Plaintiffs’ claims for
nuisance, the overall effect ifthe Court were to grant Defendants’ motion in limine would be a
grant of summary judgment, or perhaps nonsuit or directed verdict, that would dispose of
Plaintiffs’ First Amended Complaint in itsentirety before trialeven begins. See Eng, 21 Cal. App.
Sth at 698; Pantoja, 198 Cal. App. 4th at 93; R & B Auto Ctr., 140 Cal. App. 4th at359. This use
of a motion in limine is wholly improper.
In fact, this Court’s Local Rules specifically forbid this type of motion. Placer County
Superior Court Local Rule 20.4(G) clearly states that motions in limine that seek tosummarily
10 adjudicate claims are improper, and that motions for summary judgment/adjudication should be
11 brought according to the procedures outlined in Code of Civil Procedure 437c. Defendants’ time
12 to move for summary judgment or adjudication has passed, and they cannot now make such a
13 motion at the midnight hour on the eve of trialand without following any of the relevant
14 procedures. For this reason alone, Defendants’ Motion in Limine No. 1 should be denied.
15
B. Plaintiffs’ Interests in the SCP Property Are Sufficient to Constitute Possession for
16 the Purposes of Sustaining a Claim for Trespass
17 Defendants assert that a cause of action for trespass is designed to protect apossessory
18 interest in land from unlawful interference. Defendants’ conclusion—that an action for trespass
19 can only be maintained by the person actually living on the property, and therefore that neither
20 SCP nor Granite Meadow have a possessory interest in the SCP Property—has no basis inlaw or
21 fact.
22 The cases cited in Defendants’ motion are easily distinguished from the facts of this case.
23 In Orange County Water Dist. v.Sabic Innovative Plastics US, LLC, 14 Cal. App. 5th 343 (2017),
24 the plaintiff's interest in the property was not an ownership interest, and not even an interest in the
25 overlying land, but an interest solely in the right to use the groundwater. Jd. at 403. Groundwater,
26 unlike land, cannot be owned or possessed, merely used. Jd. “The possession required to
27 maintain a trespass cause of action ismost clearly seen in the context of land: ‘Actual possession
28 is usually evidenced by occupation, by substantial enclosure, by cultivation or by appropriate use
1876886.114418-002 5
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. 1
according to the particular locality and quality of the property.’” Jd. at 413 (quoting Williams v.
Goodwin, 41 Cal. App. 3d 496, 508 (1974). The court in Orange County Water District noted, as
a key fact in itsreasoning, that “the [plaintiff]does not own any property in the South Basin.” Id
at 414.
Furthermore, Defendants’ misstate the holding of Hassoldt v.Patrick Media Grp., Inc., 84
Cal. App. 4th 153 (2000). Rather than holding that an ownership interest in property is
insufficient to sustain a cause of action for trespass, that case held just the opposite. The
defendant in that case argued that the plaintiffs lacked standing to bring a claim for trespass
because they had transferred their interest toa trust and the trust had then leased out the property.
10 Id, at 170-71. The court disagreed, finding that the plaintiffs were the trustees of the trust and
11 could maintain an action for trespass on those grounds, and further, “as owners of the property the
12 Hassoldts had a right to maintain a trespass action, even ifthe property was leased to Der
13 Kindergarden, Inc.” Jd. at 171. Defendants’ assertion that Granite Meadow does not have a
14 possessory interest in the SCP Property because itleases the property to Mr. Sartz contradicts
15 established law. See id.
16 Here, like the plaintiffs inHassdolt, but unlike those in Orange County Water District,
17 Granite Meadow actually owns the SCP Property in itsentirety, not just a rights to use some
18 aspect of the property. Granite Meadow possesses the SCP Property by owning the property,
19 grading the property, leasing the property to a tenant, and controlling access to the property
20 through substantial enclosure. SCP possesses the SCP Property because itspartner Granite
21 Meadow holds the SCP Property forpartnership purposes and because SCP isusing the property
22 as a part of its’ development and controlling the grading activities on the SCP Property. The law
23 does not require SCP or Granite Meadow to reside on the SCP Property in order to possess it,for
24 purposes of sustaining a claim for trespass. Plaintiffs’ possessory interest in the SCP Property, as
25 described above, is sufficient to sustain a cause of action for trespass.
26 C. The Law Does Not Require a Plaintiff Have a Possessory Interest in the Property to
Sustain a Claim for Nuisance—the Law Only Requires a Plaintiff Have Property
27 Right
28 Defendants’ arguments with respect to nuisance are the same as with respect to trespass
1876886.114418-002 6
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. |
and equally as incorrect. Plaintiffs are aware of no case, and Defendants cite none, that holds that
a plaintiff must have apossessory interest in a piece of property to bring suit for nuisance. Rather,
in order to prevail on a claim of nuisance, a plaintiff must prove an injury specifically relatable to
the use and enjoyment of the land. See e. g.,
Lussier v. San Fernando Valley Water Dist., 206 Cal.
App. 3d 92, 100 (1988). Any property interest—even just the right to use groundwater—can
support a claim for nuisance; a possessory interest such as that required to sustain a trespass claim
is not required. See Orange County Water Dist., 14 Cal. App. 5th at416-17 (“Unlike for trespass,
however, interference with a possessory property interest is not required: ‘[A]ny interest sufficient
to be dignified as a property right will support an action based on a private nuisance ...’”’)
10 (quoting Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 125 (1971)).
11 Defendants grossly misrepresent the law when they argue that a possessory interest isrequired to
12 sustain a claim for nuisance.
13 Here, both Granite Meadow and SCP have sufficient interest in the SCP Property to sustain
14 a claim for nuisance. Granite Meadow owns the SCP Property and SCP has a property interest in
15 the SCP Property because one of the general partners forming SCP, Granite Meadow, holds the
16 SCP Property to further partnership purposes. See Pluth, 205 Cal. App. 2d at 825-26; En Taik Ha,
17 187 Cal. App. 2d at 90-91. Moreover, SCP had a property right in the SCP Property as far back as
18 2014 when it executed the Option Agreement with Nicole Wertz. Additionally, Plaintiffs have
19 stated a cause of action for nuisance because they have claimed an injury (flooding) that is
20 specifically relatable to their use and enjoyment of the SCP Property, namely, their intent to
21 develop the SCP Property and to lease the SCP Property to a tenant, Mr. Sartz.
22 D. Evidence of Flooding on the SCP Property From Prior to the Time Plaintiffs’
Acquired an Interest in the SCP Property isRelevant to Plaintiffs’ Claims for
23 Continuing Trespass and Nuisance
24 Finally, one of Plaintiffs’ theories attrial isthat the flooding on the SCP Property caused
25 by Defendants constitutes a continuing nuisance and trespass. See Plaintiffs’ Trial Brief, filed
26 Aug. 23, 2019. “The two primary characteristics of a continuing nuisance or trespass are: (1) the
27 nuisance/trespass is abatable, and/or (2) the damages from the nuisance/trespass may vary over
28 time.” Spar v.Pac. Bell, 235 Cal. App. 3d 1480, 1485 (1991). Evidence of flooding during the
1876886.1
14418-002 7
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. 1
years prior to Granite Meadow’s purchase of the SCP Property is relevant to Plaintiffs’ theories of
continuing nuisance and trespass because it has a tendency to prove that the flooding on the SCP
Property varied over time and that the flooding was abatable when Defendants kept their culvert
and drain pipe clear from debris. See Evid. Code § 210 (“‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay declarant, having any
tendency in reason to prove or disprove any disputed fact that isof consequence to the
determination of the action.”).
Ill.
CONCLUSION
10 ' This court should deny Defendants’ Motion in Limine No. 1 because itis a motion for
11 summary judgment or adjudication improperly masquerading as a motion in limine in violation of
12 Local Rule 20.4(G). But even ifthe court considers the merits of Defendants motion, itshould
13 deny the motion because (1) Defendants misapply the law regarding possession of property with
14 respect to standing in trespass and nuisance actions, (2) Plaintiffs have the requisite property
15 interests to sustain claims for both trespass and nuisance, and (3) evidence of flooding on the SCP
16 Property prior to when Plaintiff Granite Meadow purchased the SCP Property isrelevant to
17 Plaintiffs’ theories of continuing nuisance and trespass.
18
19 DATED: August 29, 2019 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
20
21
22 By:
Christopher Onstott
23 Jacquelyn C. Loyd
Attorneys for Plaintiffs and Cross-Defendants
24 SIERRA COLLEGE PARTNERS and
25 GRANITE MEADOW, LLC
26
27
28
1876886.114418-002 8
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. |
PROOF OF SERVICE
Sierra College Partners v. Paul Novaresi & Carla Novaresi
Placer County Superior Court Case No. SCV0041053
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
At the time of service, I was over 18 years of age and not a party to this action. |am
employed in the County of Sacramento, State of California. My business address is400 Capitol
Mall, 27th Floor, Sacramento, CA 95814.
On August 29, 2019, Iserved true copies of the following document(s) described as
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO
DEFENDANTS' MOTION IN LIMINE NO. 1 on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY PERSONAL SERVICE: I caused to be personally delivered the document(s) to the
10 person at the addresses listed in the Service List. (1) For a party represented by an attorney,
delivery was made to the attorney or at the attorney's office by leaving the documents in an
11 envelope or package clearly labeled to identify the attorney being served with a receptionist or an
individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the
12 documents at the party's residence with some person not less than 18 years of age between the
hours of eight in the morning and six in the evening.
13
I declare under penalty of perjury under the laws of the State of California that the
14 foregoing istrue and correct.
15 Executed on August 29, 2019, at NVI, f}$—
16
17
Enedelia Hamman
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1876886.1
14418-002 9
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. 1
SERVICE LIST
Sierra College Partners v. Paul Novaresi & Carla Novaresi
Placer County Superior Court Case No. SCV0041053
Donald Burns Mooney Attorney for Defendants, Paul Novaresi &
Attorney at Law Carla Novaresi
417 Mace Boulevard, Suite J-334
Davis, CA 95618
T: (530) 758-2377
F: (530) 758-7169
E: dbmooney(@dcn.org
John S. Poulos Co-Attorneys for Defendants, Paul Novaresi
Maren MacAdam & Carla Novaresi
LEWIS BRISBOIS BISGAARD & SMITH LLP
2020 West El Camino Avenue, Suite 700
10 Sacramento, CA 95833
T: 916.564.5400
11 F: 916.564.5444
E: John.Poulos(@lewisbrisbois.com;
12 Maren.MacAdam(@lewisbrisbois.com
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22
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1876886.114418-002 10
SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS'
MOTION IN LIMINE NO. 1
Preview
o a FILED BY FAX CHRISTOPHER ONSTOTT, State Bar No. 225968 constott@kmitg.com WILLIAM T. CHISUM, State Bar No. 142580 wehisum@kmtg.com Jacquelyn C. Loyd, State Bar No. 305126 jloyd@kmtg.com iF I i. E D SUPERIOR Ey OE KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD coun EL er CHiN 00 Capitol Mall, 27" Floor Sacramento, California 95814 AUG 29 2019 Telephone: (916) 321-4500 JAKE CHATTERS Facsimile: (916) 321-4555 EXECUTIVE OFFITER & CLERK NAN By: E. Cavaéox. Beputy Attorneys for Plaintiffs and Cross-Defendants SIERRA COLLEGE PARTNERS and GRANITE MEADOW, LLC CO ODO SUPERIOR COURT OF THE STATE OF CALIFORNIA mo COUNTY OF PLACER 11 SIERRA COLLEGE PARTNERS, a Case No. SCV 0041053 California General Partnership; 12 GRANITE MEADOW, LLC, a California SIERRA COLLEGE PARTNERS AND Limited Liability Corporation, GRANITE MEADOW, LLC'S 13 OPPOSITION TO DEFENDANTS' Plaintiffs, MOTION IN LIMINE NO. 1 14 V. (TO EXCLUDE EVIDENCE REGARDING 15 ALLEGED TRESPASS NUISANCE PRIOR PAUL E. NOVARESI; CARLA L. TO PLAINTIFF'S HAVING A POSSESSORY 16 NOVARESI; and DOES 1 through 20, INTEREST IN THE SCP PROPERTY) inclusive, 17 Defendants. 18 19 PAUL E. NOVARESI; CARLA L. NOVARESI, Trial Date: September 3, 2019 20 Time: 8:30 a.m. Cross-Complainants, Dept.: TBD ai Vv. 22 SIERRA COLLEGE PARTNERS, a 23 California General Partnership; Action Filed: April 19, 2018 GRANITE MEADOW, LLC, a California 24 Limited Liability Corporation, 25 Cross-Defendants. 26 27 28 1876886.114418-002 1 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1 I. INTRODUCTION Defendants Paul and Carla Novaresi (“Defendants”) bring this improper motion for summary judgment or adjudication, which is disguised as a motion in limine, tosummarily adjudicate Plaintiffs’ claims for trespass and nuisance. With respect to Plaintiff Sierra College Partners (“SCP”), Defendants outright conclude, “[t]hus, Plaintiff SCP cannot sustain a claim for trespass.” Defendants/Cross-Complainants’ Motion in Limine No. 1 to Exclude Evidence Regarding Alleged Trespass Nuisance Prior to Plaintiff's [sic] Having a Possessory Interest in the SCP Property (“Motion in Limine No. 1”),4:18-19. Furthermore, Defendants seek to summarily 10 adjudicate Plaintiff Granite Meadow, LLC’s (“Granite Meadow”) claims for trespass and nuisance 11 by excluding allevidence related to trespass and nuisance during any time in which Granite IZ Meadow did not have a possessory interest in the property at9501 Eckerman Road (the “SCP 13 Property”). Defendants assert that Granite Meadow never had a possessory interest in the SCP 14 Property. If this court were to grant Defendants’ motion, Granite Meadow would be unable to 15 introduce any evidence supporting itsclaims and itscase would necessarily fail. Defendants 16 attempt to summarily adjudicate Plaintiffs’ claims on the eve of trialthrough a motion in limine is 17 wholly improper, and in fact, isin contravention of this court’s local rules and well-established 18 case law. For this reason alone, the court should deny Defendants’ Motion in Limine No. 1. 19 Moreover, even if this court considers this motion on the merits, itshould stilldeny the 20 motion. The law does not support Defendants’ contentions that plaintiffs bringing trespass and pa nuisance actions must be living on the property at issue. Landlords and owners of property who 22 do not reside on the property are nevertheless in possession of that property and therefore may maintain an action for trespass. In addition, Defendants cite no case that holds a plaintiff must 24 reside on the property to sustain an action for nuisance. Plaintiff SCP has a possessory interest in 25 the SCP Property because itis developing that property and the SCP Property is owned by one of 26 SCP’s partners specifically for this purpose.' Plaintiff Granite Meadow has a possessory interest 27 28 'Real property held in the name of a single partner to further the purposes of the partnership 1876886.114418-002 2 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. ! in the SCP Property because it owns the property and is the landlord to the tenant on the property, Dallas Sartz. Finally, tothe extent Defendants’ motion seeks to exclude evidence of trespass and nuisance from before Granite Meadow pmehased tie SCP Property, this evidence isrelevant to Plaintiffs’ theories of continuing trespass and nuisance and is therefore admissible. i. LEGAL ARGUMENT A. Summary Judgment/Adjudication Motions Disguised as Motions in Limine are Improper and Should Be Denied 10 “A motion in limine shall not be used for improper purposes, including for the purpose of 1 seeking summary judgment and/or summary adjudication of an issue or issues, which motions 12 may only be made in compliance with Code of Civil Procedure section 437c and court rules 13 pertaining thereto.” Local Rule 20.4(G). Furthermore, a motion in limine isinappropriate where 14 the effect of granting the motion would be to eliminate the opportunity for the opponent “‘to 15 present evidence to establish itscause of action.” See R& B Auto Ctr., Inc. v. Farmers Group, 16 Inc., 140 Cal. App. 4th 327, 359 (2006); id.at 372 (“An in limine motion that seeks to exclude all 17 evidence pertaining to part or allof a cause of action based on an argument that plaintiff lacks 18 evidence to support part or all of the cause of action isbut a disguised motion for summary 19 adjudication.” (Rylaarsdam, acting P.J., concurring). Motions in /imine were not designed to 20 replace dispositive motions and use of “irregular procedures” may blindside opponents. Amtower 21 v.Photon Dynamics, Inc., 158 Cal. App. 4th 1582, 1593-95 (2008); Pantoja v.Anton, 198 Cal. 22 App. 4th 87, 93 (2011) (trialcourt’s grant of motion in limine to exclude evidence amounted to an 23 improper grant of relief equivalent to summary adjudication against plaintiffs claim); Eng v. 24 25 confers standing to sue on the partnership as well as the partner holding titleto the property. See Pluth v.Smith, 205 Cal. App. 2d 818, 825-26 (1962) (upholding the trial court’s ruling that real 26 property held in the name of individual partners belonged to the partnership); En Taik Ha v. Kang, 187 Cal. App. 2d 84, 90-91 (1960) (“Ifa partnership isformed and real property isdedicated to 27 partnership use and is used by the partnership for itssole benefit the fact that titlewas acquired by one or more of the partners with theirprivate funds . ..will not necessarily defeat the claim of the 28 (quoting Bastjan v. Bastjan, 215 Cal. 662 (1932)). partnershi to ownership of the property .. .”) 876886.114418-00: SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1 Brown, 21 Cal. App. 5th 675, 698 (2018) (motion in limine that sought to take factual issue regarding formation of partnership away from jury was “more akin toa partial directed verdict on the issue.”). Appellate courts are becoming increasingly waryof this tactic. See Amtower, 158 Cal. App. 4th at 1593-95; R & B Auto Ctr., 140 Cal. App. 4th at 371-72 (“I realize that it isnot uncommon to bring motions for judgment on the pleadings, for summary judgment, and for summary adjudication of issues in the guise of motions in limine. But, particularly inthe latter cases, this practice removes allthe protections afforded by the statute which prescribes the manner in which the court must handle such motions. To have the sufficiency of the pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion 10 of the process.”’). 11 Defendants attempt to disguise a motion for summary judgment or adjudication as a 12 motion in limine regarding relevance is improper. Defendants’ arguments regarding relevant 13 evidence with respect to Plaintiffs’ trespass claims do not seek to exclude awell-defined category 14 of evidence, but in fact, seek to summarily adjudicate Plaintiffs’ trespass claims by excluding all 15 evidence of trespass. Defendants themselves remove all doubt as to their intentions when they 16 conclude, “Thus, Plaintiff SCP cannot sustain a claim of trespass.”* Defendants’ Motion in 17 Limine No. 1, 4:18-19. With respect to Granite Meadow, Defendants allege that “as Granite 18 Meadow did not acquire the property until June 2018, itdid not have an ownership interest until 19 that time. As the property iscurrently leased to Mr. Sartz, Granite Meadow does not have a 20 possessory interest in the SCP Property.” Defendants’ Motion in Limine No. 1,4:23-26.2 In short, 21 Defendants ask this court to find that Granite Meadow never had a possessory interest in the SCP 22 23 ? Defendants make identical arguments as to SCP and Granite Meadow’s claims for nuisance. 24 Defendants conclude, in their section on nuisance, “Thus Plaintiff SCP cannot sustain aclaim of trespass.” Itappears this isa copy/paste error and that Defendants meant to write nuisance. Itis 25 just as improper for Defendants toattempt to summarily adjudicate Plaintiffs’ claims of nuisance 26 as it isfor their claims of trespass. 3 As with SCP, Defendants make identical arguments as to Granite Meadow with respect to its 27 claim for nuisance. Defendants’ Motion in Limine No. 1, 5:25-27 (“With respect to Plaintiff Granite Meadow, itacquired an ownership interest in the SCP Property in June of 2018 and has 28 Property as itis currently leased to Dallas Sartz.”). never had a possessory interest in the SCP 1876886.114418-002 4 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. | Property and to therefore exclude all evidence of trespass submitted by Granite Meadow. When read together with Defendants’ identical arguments regarding Plaintiffs’ claims for nuisance, the overall effect ifthe Court were to grant Defendants’ motion in limine would be a grant of summary judgment, or perhaps nonsuit or directed verdict, that would dispose of Plaintiffs’ First Amended Complaint in itsentirety before trialeven begins. See Eng, 21 Cal. App. Sth at 698; Pantoja, 198 Cal. App. 4th at 93; R & B Auto Ctr., 140 Cal. App. 4th at359. This use of a motion in limine is wholly improper. In fact, this Court’s Local Rules specifically forbid this type of motion. Placer County Superior Court Local Rule 20.4(G) clearly states that motions in limine that seek tosummarily 10 adjudicate claims are improper, and that motions for summary judgment/adjudication should be 11 brought according to the procedures outlined in Code of Civil Procedure 437c. Defendants’ time 12 to move for summary judgment or adjudication has passed, and they cannot now make such a 13 motion at the midnight hour on the eve of trialand without following any of the relevant 14 procedures. For this reason alone, Defendants’ Motion in Limine No. 1 should be denied. 15 B. Plaintiffs’ Interests in the SCP Property Are Sufficient to Constitute Possession for 16 the Purposes of Sustaining a Claim for Trespass 17 Defendants assert that a cause of action for trespass is designed to protect apossessory 18 interest in land from unlawful interference. Defendants’ conclusion—that an action for trespass 19 can only be maintained by the person actually living on the property, and therefore that neither 20 SCP nor Granite Meadow have a possessory interest in the SCP Property—has no basis inlaw or 21 fact. 22 The cases cited in Defendants’ motion are easily distinguished from the facts of this case. 23 In Orange County Water Dist. v.Sabic Innovative Plastics US, LLC, 14 Cal. App. 5th 343 (2017), 24 the plaintiff's interest in the property was not an ownership interest, and not even an interest in the 25 overlying land, but an interest solely in the right to use the groundwater. Jd. at 403. Groundwater, 26 unlike land, cannot be owned or possessed, merely used. Jd. “The possession required to 27 maintain a trespass cause of action ismost clearly seen in the context of land: ‘Actual possession 28 is usually evidenced by occupation, by substantial enclosure, by cultivation or by appropriate use 1876886.114418-002 5 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1 according to the particular locality and quality of the property.’” Jd. at 413 (quoting Williams v. Goodwin, 41 Cal. App. 3d 496, 508 (1974). The court in Orange County Water District noted, as a key fact in itsreasoning, that “the [plaintiff]does not own any property in the South Basin.” Id at 414. Furthermore, Defendants’ misstate the holding of Hassoldt v.Patrick Media Grp., Inc., 84 Cal. App. 4th 153 (2000). Rather than holding that an ownership interest in property is insufficient to sustain a cause of action for trespass, that case held just the opposite. The defendant in that case argued that the plaintiffs lacked standing to bring a claim for trespass because they had transferred their interest toa trust and the trust had then leased out the property. 10 Id, at 170-71. The court disagreed, finding that the plaintiffs were the trustees of the trust and 11 could maintain an action for trespass on those grounds, and further, “as owners of the property the 12 Hassoldts had a right to maintain a trespass action, even ifthe property was leased to Der 13 Kindergarden, Inc.” Jd. at 171. Defendants’ assertion that Granite Meadow does not have a 14 possessory interest in the SCP Property because itleases the property to Mr. Sartz contradicts 15 established law. See id. 16 Here, like the plaintiffs inHassdolt, but unlike those in Orange County Water District, 17 Granite Meadow actually owns the SCP Property in itsentirety, not just a rights to use some 18 aspect of the property. Granite Meadow possesses the SCP Property by owning the property, 19 grading the property, leasing the property to a tenant, and controlling access to the property 20 through substantial enclosure. SCP possesses the SCP Property because itspartner Granite 21 Meadow holds the SCP Property forpartnership purposes and because SCP isusing the property 22 as a part of its’ development and controlling the grading activities on the SCP Property. The law 23 does not require SCP or Granite Meadow to reside on the SCP Property in order to possess it,for 24 purposes of sustaining a claim for trespass. Plaintiffs’ possessory interest in the SCP Property, as 25 described above, is sufficient to sustain a cause of action for trespass. 26 C. The Law Does Not Require a Plaintiff Have a Possessory Interest in the Property to Sustain a Claim for Nuisance—the Law Only Requires a Plaintiff Have Property 27 Right 28 Defendants’ arguments with respect to nuisance are the same as with respect to trespass 1876886.114418-002 6 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. | and equally as incorrect. Plaintiffs are aware of no case, and Defendants cite none, that holds that a plaintiff must have apossessory interest in a piece of property to bring suit for nuisance. Rather, in order to prevail on a claim of nuisance, a plaintiff must prove an injury specifically relatable to the use and enjoyment of the land. See e. g., Lussier v. San Fernando Valley Water Dist., 206 Cal. App. 3d 92, 100 (1988). Any property interest—even just the right to use groundwater—can support a claim for nuisance; a possessory interest such as that required to sustain a trespass claim is not required. See Orange County Water Dist., 14 Cal. App. 5th at416-17 (“Unlike for trespass, however, interference with a possessory property interest is not required: ‘[A]ny interest sufficient to be dignified as a property right will support an action based on a private nuisance ...’”’) 10 (quoting Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 125 (1971)). 11 Defendants grossly misrepresent the law when they argue that a possessory interest isrequired to 12 sustain a claim for nuisance. 13 Here, both Granite Meadow and SCP have sufficient interest in the SCP Property to sustain 14 a claim for nuisance. Granite Meadow owns the SCP Property and SCP has a property interest in 15 the SCP Property because one of the general partners forming SCP, Granite Meadow, holds the 16 SCP Property to further partnership purposes. See Pluth, 205 Cal. App. 2d at 825-26; En Taik Ha, 17 187 Cal. App. 2d at 90-91. Moreover, SCP had a property right in the SCP Property as far back as 18 2014 when it executed the Option Agreement with Nicole Wertz. Additionally, Plaintiffs have 19 stated a cause of action for nuisance because they have claimed an injury (flooding) that is 20 specifically relatable to their use and enjoyment of the SCP Property, namely, their intent to 21 develop the SCP Property and to lease the SCP Property to a tenant, Mr. Sartz. 22 D. Evidence of Flooding on the SCP Property From Prior to the Time Plaintiffs’ Acquired an Interest in the SCP Property isRelevant to Plaintiffs’ Claims for 23 Continuing Trespass and Nuisance 24 Finally, one of Plaintiffs’ theories attrial isthat the flooding on the SCP Property caused 25 by Defendants constitutes a continuing nuisance and trespass. See Plaintiffs’ Trial Brief, filed 26 Aug. 23, 2019. “The two primary characteristics of a continuing nuisance or trespass are: (1) the 27 nuisance/trespass is abatable, and/or (2) the damages from the nuisance/trespass may vary over 28 time.” Spar v.Pac. Bell, 235 Cal. App. 3d 1480, 1485 (1991). Evidence of flooding during the 1876886.1 14418-002 7 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1 years prior to Granite Meadow’s purchase of the SCP Property is relevant to Plaintiffs’ theories of continuing nuisance and trespass because it has a tendency to prove that the flooding on the SCP Property varied over time and that the flooding was abatable when Defendants kept their culvert and drain pipe clear from debris. See Evid. Code § 210 (“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that isof consequence to the determination of the action.”). Ill. CONCLUSION 10 ' This court should deny Defendants’ Motion in Limine No. 1 because itis a motion for 11 summary judgment or adjudication improperly masquerading as a motion in limine in violation of 12 Local Rule 20.4(G). But even ifthe court considers the merits of Defendants motion, itshould 13 deny the motion because (1) Defendants misapply the law regarding possession of property with 14 respect to standing in trespass and nuisance actions, (2) Plaintiffs have the requisite property 15 interests to sustain claims for both trespass and nuisance, and (3) evidence of flooding on the SCP 16 Property prior to when Plaintiff Granite Meadow purchased the SCP Property isrelevant to 17 Plaintiffs’ theories of continuing nuisance and trespass. 18 19 DATED: August 29, 2019 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 20 21 22 By: Christopher Onstott 23 Jacquelyn C. Loyd Attorneys for Plaintiffs and Cross-Defendants 24 SIERRA COLLEGE PARTNERS and 25 GRANITE MEADOW, LLC 26 27 28 1876886.114418-002 8 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. | PROOF OF SERVICE Sierra College Partners v. Paul Novaresi & Carla Novaresi Placer County Superior Court Case No. SCV0041053 STATE OF CALIFORNIA, COUNTY OF SACRAMENTO At the time of service, I was over 18 years of age and not a party to this action. |am employed in the County of Sacramento, State of California. My business address is400 Capitol Mall, 27th Floor, Sacramento, CA 95814. On August 29, 2019, Iserved true copies of the following document(s) described as SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1 on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY PERSONAL SERVICE: I caused to be personally delivered the document(s) to the 10 person at the addresses listed in the Service List. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an 11 envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the 12 documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing istrue and correct. 15 Executed on August 29, 2019, at NVI, f}$— 16 17 Enedelia Hamman 18 19 20 21 22 23 24 25 26 27 28 1876886.1 14418-002 9 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1 SERVICE LIST Sierra College Partners v. Paul Novaresi & Carla Novaresi Placer County Superior Court Case No. SCV0041053 Donald Burns Mooney Attorney for Defendants, Paul Novaresi & Attorney at Law Carla Novaresi 417 Mace Boulevard, Suite J-334 Davis, CA 95618 T: (530) 758-2377 F: (530) 758-7169 E: dbmooney(@dcn.org John S. Poulos Co-Attorneys for Defendants, Paul Novaresi Maren MacAdam & Carla Novaresi LEWIS BRISBOIS BISGAARD & SMITH LLP 2020 West El Camino Avenue, Suite 700 10 Sacramento, CA 95833 T: 916.564.5400 11 F: 916.564.5444 E: John.Poulos(@lewisbrisbois.com; 12 Maren.MacAdam(@lewisbrisbois.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1876886.114418-002 10 SIERRA COLLEGE PARTNERS AND GRANITE MEADOW, LLC'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 1