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1 William L. Alexander (State Bar Number 126607)
Elizabeth Estrada (State Bar Number 232302)
2 Alexander & Associates, PLC
3 1925 G Street
Bakersfield, CA 93301
4 Phone: (661) 316-7888
Email: walexander@alexander-law.com / elizabeth@alexander-law.com
5
6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry
as Trustees of the T & R Fry Family Trust
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN – METROPOLITAN DIVISION
10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB
Limited Liability Company, )
11 ) DEFENDANTS’ OPPOSITION TO BIG
Plaintiff, ) WASHINGTON, LLC’S MOTION FOR
12 ) SANCTIONS PURSUANT TO CODE OF
13 vs. ) CIVIL PROCEDURE, SECTION 128.7
)
14 BENHONG (AMERICA) RECYCLING CO. ) Assigned to: Hon. Bernard C. Barmann
LTD, a California Limited Liability Company; ) Div.: H
15 )
and THOMAS H. FRY and RUTH M. FRY as
16 Trustees of the T & R FRY FAMILY TRUST; ) Date: February 15, 2022
and DOES 1 – 100, inclusive, ) Time: 8:30 a.m.
17 ) Div: H
Defendants. )
18 ) Complaint Filed: October 6, 2017
19 ) Trial Date: May 31, 2022
)
20 )
)
21 )
22 Big Washington asks this court to sanction Fry and their counsel in the sum of $32,000
23 pursuant to Code of Civil Procedure, Section 128.7, arguing that Fry filed a second motion for
24 summary judgment that in reality was an improper motion for reconsideration. Big Washington made
25 the same argument in opposition to Fry’s motion for summary judgment. The Court rejected the
26 argument and should do so again.
27 PROCEDURAL BACKGROUND
28
1
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR SANCTIONS
1 In 2019, Fry filed a motion for summary judgment arguing that Big Washington did not possess
2 evidence sufficient to support every element of its causes of action for breach of contract, breach of
3 the implied covenant of good faith and fair dealing, trespass, and nuisance. The Court denied Fry’s
4 motion, stating specifically that the Court did “not consider issues of waiver and other matters of
5 affirmative defenses.” (Request for Judicial Notice, Exh. 1.)
6 In October 2021, Fry filed a second motion for summary judgment. The second motion sought
7 a ruling that Fry’s affirmative defenses of waiver, consent, forfeiture, novation, and impracticability
8 barred any relief sought by Big Washington. In opposition to that motion, Big Washington argued
9 that the motion was one for reconsideration that was both untimely and unsupported by new facts or
10 law. This Court rejected Big Washington’s argument, noting that the first motion for summary
11 judgment was based upon Big Washington’s causes of action and no consideration of Fry’s affirmative
12 defenses was made. The second motion for summary judgment, on the other hand, was based upon
13 Fry’s affirmative defenses.
14 ARGUMENT
15 Code of Civil Procedure, Section 437c, subdivision (f)(2), authorizes a party to file a
16 subsequent motion for summary judgment where the subsequent motion is not based upon issues
17 asserted and denied in a prior motion. It provides:
18 A motion for summary adjudication may be made by itself or as an
19 alternative to a motion for summary judgment and shall proceed in all
20 procedural respects as a motion for summary judgment. A party shall
21 not move for summary judgment based on issues asserted in a prior
22 motion for summary adjudication and denied by the court unless that
23 party establishes, to the satisfaction of the court, newly discovered facts
24 or circumstances or a change of law supporting the issues reasserted in
25 the summary judgment motion.
26 As the Court made clear in its July 12, 2019 order denying Fry’s prior motion for summary
27 judgment, the Court did “not consider issues of waiver and other matters of affirmative defenses.”
28 The Court only considered whether Fry had produced sufficient evidence to show that Big Washington
2
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR SANCTIONS
1 could not meet every element essential to Big Washington’s causes of action. Fry’s current motion,
2 on the other hand, is based only upon their own affirmative defenses, which again, this Court did not
3 consider when deciding the prior motion.
4 Code of Civil Procedure, Section 1008, also does not prohibit Fry’s second motion for
5 summary judgment. Section 1008, subdivision (b), provides that the party who made the original
6 motion may make a subsequent motion upon new or different facts. There is no 10-day limitation
7 under subdivision (b). Fry’s second motion for summary judgment not only was based upon different
8 issues, it was based upon new facts. The original motion for summary judgment was filed before Big
9 Washington served its discovery responses and before the deposition of Calcot’s former CEO, Jarral
10 Neeper. Both Big Washington’s discovery responses and Jarral Neeper’s deposition testimony were
11 offered as evidence with the second motion for summary judgment in support of Fry’s asserted
12 affirmative defenses.
13 Under both Code of Civil Procedure Sections 1008, subdivision (b), and 437c, subdivision
14 (f)(2), the motion made more than 10 days after the original motion is a new motion. (UAS
15 Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367-368.) Both
16 sections authorize the new motion under prescribed circumstances. Those circumstances obviously
17 were met in this case.
18 CONCLUSION
19 Big Washington’s motion is based upon the factually and legally erroneous premise that Fry’s
20 second motion for summary judgment was a rehash of its first and therefore was in actuality a motion
21 for reconsideration. This court already had rejected Big Washington’s argument and should do so
22 again.
23 DATED: February 1, 2022 ALEXANDER & ASSOCIATES, PLC
24
By: /s/ Elizabeth Estrada /s/
25 ELIZABETH ESTRADA
Attorneys for Defendants, Thomas H. Fry
26 and Ruth M. Fry as Trustees of the
T & R Fry Family Trust
27
28
3
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR SANCTIONS
1 PROOF OF SERVICE (C.C.P. §1013a, 2015.5)
2 I am employed in the County of Kern, State of California. I am over the age of 18 and not a
3 party to the within action; my business address is 1925 G Street, Bakersfield, California.
4 On February 1, 2022, I served the foregoing document(s) entitled:
5 DEFENDANTS’ OPPOSITION TO BIG WASHINGTON, LLC’S MOTION FOR
6 SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE, SECTION 128.7
7 on interested parties in this action as follows:
8 Richard B Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC
9 LAW OFFICE OF RICHARD JACOBS
13512 Hatteras Street
10 Van Nuys, CA 91401-4517
Email: richardjacobslaw@gmail.com
11
12 [ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof
enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and
13 processing of documents for mailing. Under that practice it would be deposited with the United
State Postal Service on that same day with postage thereon fully prepaid at Bakersfield,
14 California in the ordinary course of business.
15
[X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection
16 (e)(1), I caused the document(s) to be emailed to the person(s) at the email address(es) on the
attached service list. No electronic message or other indication that the transmission was
17 unsuccessful was received within a reasonable time after the transmission.
18 [ ] (BY PERSONAL SERVICE), pursuant to C.C.P. §1011, by placing a true copy thereof
19 enclosed in an envelope and caused such envelope to be delivered by hand to the office(s) of the
addresses(s).
20
[ ] (BY OVERNIGHT COURIER), pursuant to C.C.P. §1013(c)(d), I caused such envelope with
21 delivery fees prepaid to be sent by GENERAL LOGISTICS SYSTEMS, INC. (GSL).
22
23 Executed on February 1, 2022, at Bakersfield, California.
24 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
25
26 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made.
27
28 /s/ Rocki L. Parnell /s/
ROCKI L. PARNELL
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
Preview
1 William L. Alexander (State Bar Number 126607) Elizabeth Estrada (State Bar Number 232302) 2 Alexander & Associates, PLC 3 1925 G Street Bakersfield, CA 93301 4 Phone: (661) 316-7888 Email: walexander@alexander-law.com / elizabeth@alexander-law.com 5 6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the T & R Fry Family Trust 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN – METROPOLITAN DIVISION 10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB Limited Liability Company, ) 11 ) DEFENDANTS’ OPPOSITION TO BIG Plaintiff, ) WASHINGTON, LLC’S MOTION FOR 12 ) SANCTIONS PURSUANT TO CODE OF 13 vs. ) CIVIL PROCEDURE, SECTION 128.7 ) 14 BENHONG (AMERICA) RECYCLING CO. ) Assigned to: Hon. Bernard C. Barmann LTD, a California Limited Liability Company; ) Div.: H 15 ) and THOMAS H. FRY and RUTH M. FRY as 16 Trustees of the T & R FRY FAMILY TRUST; ) Date: February 15, 2022 and DOES 1 – 100, inclusive, ) Time: 8:30 a.m. 17 ) Div: H Defendants. ) 18 ) Complaint Filed: October 6, 2017 19 ) Trial Date: May 31, 2022 ) 20 ) ) 21 ) 22 Big Washington asks this court to sanction Fry and their counsel in the sum of $32,000 23 pursuant to Code of Civil Procedure, Section 128.7, arguing that Fry filed a second motion for 24 summary judgment that in reality was an improper motion for reconsideration. Big Washington made 25 the same argument in opposition to Fry’s motion for summary judgment. The Court rejected the 26 argument and should do so again. 27 PROCEDURAL BACKGROUND 28 1 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR SANCTIONS 1 In 2019, Fry filed a motion for summary judgment arguing that Big Washington did not possess 2 evidence sufficient to support every element of its causes of action for breach of contract, breach of 3 the implied covenant of good faith and fair dealing, trespass, and nuisance. The Court denied Fry’s 4 motion, stating specifically that the Court did “not consider issues of waiver and other matters of 5 affirmative defenses.” (Request for Judicial Notice, Exh. 1.) 6 In October 2021, Fry filed a second motion for summary judgment. The second motion sought 7 a ruling that Fry’s affirmative defenses of waiver, consent, forfeiture, novation, and impracticability 8 barred any relief sought by Big Washington. In opposition to that motion, Big Washington argued 9 that the motion was one for reconsideration that was both untimely and unsupported by new facts or 10 law. This Court rejected Big Washington’s argument, noting that the first motion for summary 11 judgment was based upon Big Washington’s causes of action and no consideration of Fry’s affirmative 12 defenses was made. The second motion for summary judgment, on the other hand, was based upon 13 Fry’s affirmative defenses. 14 ARGUMENT 15 Code of Civil Procedure, Section 437c, subdivision (f)(2), authorizes a party to file a 16 subsequent motion for summary judgment where the subsequent motion is not based upon issues 17 asserted and denied in a prior motion. It provides: 18 A motion for summary adjudication may be made by itself or as an 19 alternative to a motion for summary judgment and shall proceed in all 20 procedural respects as a motion for summary judgment. A party shall 21 not move for summary judgment based on issues asserted in a prior 22 motion for summary adjudication and denied by the court unless that 23 party establishes, to the satisfaction of the court, newly discovered facts 24 or circumstances or a change of law supporting the issues reasserted in 25 the summary judgment motion. 26 As the Court made clear in its July 12, 2019 order denying Fry’s prior motion for summary 27 judgment, the Court did “not consider issues of waiver and other matters of affirmative defenses.” 28 The Court only considered whether Fry had produced sufficient evidence to show that Big Washington 2 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR SANCTIONS 1 could not meet every element essential to Big Washington’s causes of action. Fry’s current motion, 2 on the other hand, is based only upon their own affirmative defenses, which again, this Court did not 3 consider when deciding the prior motion. 4 Code of Civil Procedure, Section 1008, also does not prohibit Fry’s second motion for 5 summary judgment. Section 1008, subdivision (b), provides that the party who made the original 6 motion may make a subsequent motion upon new or different facts. There is no 10-day limitation 7 under subdivision (b). Fry’s second motion for summary judgment not only was based upon different 8 issues, it was based upon new facts. The original motion for summary judgment was filed before Big 9 Washington served its discovery responses and before the deposition of Calcot’s former CEO, Jarral 10 Neeper. Both Big Washington’s discovery responses and Jarral Neeper’s deposition testimony were 11 offered as evidence with the second motion for summary judgment in support of Fry’s asserted 12 affirmative defenses. 13 Under both Code of Civil Procedure Sections 1008, subdivision (b), and 437c, subdivision 14 (f)(2), the motion made more than 10 days after the original motion is a new motion. (UAS 15 Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367-368.) Both 16 sections authorize the new motion under prescribed circumstances. Those circumstances obviously 17 were met in this case. 18 CONCLUSION 19 Big Washington’s motion is based upon the factually and legally erroneous premise that Fry’s 20 second motion for summary judgment was a rehash of its first and therefore was in actuality a motion 21 for reconsideration. This court already had rejected Big Washington’s argument and should do so 22 again. 23 DATED: February 1, 2022 ALEXANDER & ASSOCIATES, PLC 24 By: /s/ Elizabeth Estrada /s/ 25 ELIZABETH ESTRADA Attorneys for Defendants, Thomas H. Fry 26 and Ruth M. Fry as Trustees of the T & R Fry Family Trust 27 28 3 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR SANCTIONS 1 PROOF OF SERVICE (C.C.P. §1013a, 2015.5) 2 I am employed in the County of Kern, State of California. I am over the age of 18 and not a 3 party to the within action; my business address is 1925 G Street, Bakersfield, California. 4 On February 1, 2022, I served the foregoing document(s) entitled: 5 DEFENDANTS’ OPPOSITION TO BIG WASHINGTON, LLC’S MOTION FOR 6 SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE, SECTION 128.7 7 on interested parties in this action as follows: 8 Richard B Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC 9 LAW OFFICE OF RICHARD JACOBS 13512 Hatteras Street 10 Van Nuys, CA 91401-4517 Email: richardjacobslaw@gmail.com 11 12 [ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and 13 processing of documents for mailing. Under that practice it would be deposited with the United State Postal Service on that same day with postage thereon fully prepaid at Bakersfield, 14 California in the ordinary course of business. 15 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection 16 (e)(1), I caused the document(s) to be emailed to the person(s) at the email address(es) on the attached service list. No electronic message or other indication that the transmission was 17 unsuccessful was received within a reasonable time after the transmission. 18 [ ] (BY PERSONAL SERVICE), pursuant to C.C.P. §1011, by placing a true copy thereof 19 enclosed in an envelope and caused such envelope to be delivered by hand to the office(s) of the addresses(s). 20 [ ] (BY OVERNIGHT COURIER), pursuant to C.C.P. §1013(c)(d), I caused such envelope with 21 delivery fees prepaid to be sent by GENERAL LOGISTICS SYSTEMS, INC. (GSL). 22 23 Executed on February 1, 2022, at Bakersfield, California. 24 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 25 26 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 27 28 /s/ Rocki L. Parnell /s/ ROCKI L. PARNELL Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888