Preview
1
LAW OFFICES OF RICHARD JACOBS
2 RICHARD JACOBS, SBN 252226
13512 Hatteras St.
3 Valley Glen, California 91401
Tel: (818) 216-0663
4 Fax: (818) 780-8696
RichardJacobsLaw@gmail.com
5
Attorneys for Plaintiff, BIG WASHINGTON, LLC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN – METROPOLITAN DIVISION
10
11 BIG WASHINTON, LLC., a Case No.: BCV17-102341 SDS
California Limited Liability
12 Company SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO DEFENDANTS’ THIRD MOTION
13 Plaintiff; FOR SUMMARY ADJUDICATION
14 v.
15 BENHONG (AMERICA)
RECYCLING CO. LTD, a
16 California Limited Liability
Company; and THOMAS H. FRY;
17 RUTH M. FRY, as Trustees of the
T & R FRY FAMILY TRUST, and
18 Does 1 to 100,
19 Defendants.
20
21
22
23
24
25
26
27
28
Alexander & Associates
1
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1 I. DEFENDANTS HAD NO DUTY TO REMOVE THE PLASTICS AFTER JANUARY
2 13, 2016.
3
4 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
5 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
6 EVIDENCE
7 1. Big Washington, LLC is the assignee of Undisputed.
8 Calcot, Ltd. as to Calcot’s “legal rights,
9 if any…to pursue any legal claims
10 against third parties relating to the
11 Plastic.”
12 Special Interrogatories, Set One, Interrogatory
13 No. 7 (Separately Bound Volume of Evidence
(“SBVE”), Exh. “A”);
14
Responses of Big Washington, LLC to Special
15 Interrogatories, Set One, Response to
16 Interrogatory No. 7, p. 6, l. 22 – p. 7, l. 25
(SBVE, Exh. “B”).
17
2. In 2011, Fry entered into a written lease Undisputed.
18
agreement with Calcot (the “Lease”) to
19
store agricultural plastics (“Plastic”) in
20
two warehouses located at 1900 East
21
Brundage Lane in Bakersfield (the
22
“Property”).
23
2011 Lease Agreement (SBVE, Exh. “F”);
24
Declaration of Thomas Fry, ¶ 3 (SBVE, Exh.
25 “P”).
26 3. The Lease prohibits Fry from assigning, Undisputed.
27 encumbering, or transferring the Lease,
28 or subletting or allowing any person
Alexander & Associates
2
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
other than Fry’s agents from occupying
2
the premises.
3
2011 Lease Agreement, ¶ 15 (SBVE, Exh. “F”).
4
Decl. of T. Fry, ¶ 3 (SBVE, Exh. “P”).
5
4. In 2013, Fry and Calcot amended the Undisputed.
6
Lease agreement to increase the number
7
of warehouses leased for storage of the
8
Plastic to eight (the “Warehouses”).
9
2013 Lease Agreement Amendment 1 (SBVE,
10 Exh. “G”);
11
Decl. of T. Fry, ¶ 4 (SBVE, Exh. “P”).
12
5. In or about 2015, Calcot began Undisputed.
13
negotiating with Roger Liang for the
14
purchase and sale of a portion of the
15
Property but those initial talks broke
16
down.
17
Deposition of Jarral Neeper, p. 32, l. 4-25; p.
18 35, l. 17 – p. 36, l. 24 (SBVE, Exh. “E”).
19 6. Also in or about 2015, Fry began Undisputed.
20 negotiating with Roger Liang for the
21 purchase and sale of the Plastic.
22
Decl. of T. Fry, ¶ 7 (SBVE, Exh. “P”).
23
7. In September 2015, Calcot filed an Undisputed.
24
unlawful detainer action against Fry
25
seeking termination and forfeiture of the
26
Lease.
27
Decl. of T. Fry, ¶ 8 (SBVE, Exh. “P”).
28
Alexander & Associates
3
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
8. On or about December 8, 2015, Calcot Objection. As the Letter of Intent never
2
entered into a Letter of Intent with resulted in a consummated contract, it is
3
Roger Liang’s company, Benhong irrelevant to this matter. Therefore, this (at
4
(America) Recycling Co., Ltd best) violates the parol evidence rule and
5
(“Benhong”) for the purchase and sale otherwise is entirely irrelevant.
6
of a portion of the Property (the “LOI”). (Code of Evid. § 210; Code of Civ. Proc. §
7
1856.)
December 2015 Letter of Intent (SBVE, Exh.
8 “H”);
9
Depo. of J. Neeper, p. 27, ll. 7-14; p. 39, l. 8 –
10 p. 41, l. 8 (SBVE, Exh. “E”).
11 9. The LOI contemplated that Benhong Objection. As the Letter of Intent never
12 would purchase the Plastic from Fry as a resulted in a consummated contract, it is
13 condition precedent to the purchase and irrelevant to this matter. Therefore, this (at
14 sale of a portion of the Property. best) violates the parol evidence rule and
15 otherwise is entirely irrelevant.
December 2015 Letter of Intent (SBVE, Exh.
16 “H”); (Code of Evid. § 210; Code of Civ. Proc. §
17 Depo. of J. Neeper, p. 27, ll. 7-14; p. 39, ll. 8 – 1856.)
18 (SBVE, Exh. “E”).
18
10. The LOI also contemplated that Objection. As the Letter of Intent never
19
Benhong would lease three of the resulted in a consummated contract, it is
20
Warehouses from Calcot at $2,000 per irrelevant to this matter. Therefore, this (at
21
warehouse for a period of time. best) violates the parol evidence rule and
22
otherwise is entirely irrelevant.
23 Depo. of J. Neeper, p. 38, ll. 18-21; p. 39, l. 8 –
p. 41, l. 8 (SBVE, Exh. “E”); (Code of Evid. § 210; Code of Civ. Proc. §
24
December 2015 Letter of Intent (SBVE, Exh. 1856.)
25 “H”).
26 11. On December 11, 2015, default Undisputed.
27 judgment was entered in Calcot’s
28
Alexander & Associates
4
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
unlawful detainer action against Fry,
2
terminating and forfeiting the Lease.
3
Judgment (SBVE, Exh. “I”);
4
Decl. of T. Fry, ¶ 9 (SBVE, Exh. “P”).
5
12. Calcot opted against attempting to Objection. As the contract with Benhong
6
remove Fry from the Property in failed, it is irrelevant to this matter. As well,
7
December 2015 because Calcot had the question before the Court is whether as the
8
signed the LOI with Benhong and originator of the nuisance Fry can be held
9
believed that Benhong was going to liable. According to CACI No. 2000; Newhall
10
purchase the Plastic from Fry. v. Land & Farming Co. v. Superior Court
11
(1993) 19 Cal.App.4th 334, 345 [“[A] trespass
Depo. of J. Neeper, p. 41, ll. 9-16; p. 84, ll. 19-
12 24 (SBVE, Exh. “E”). may be committed by the continued presence
13
on the land of a structure, chattel, or other thing
14
which the actor has tortiously placed there,
15
whether or not the actor has the ability to
16
remove it.’ Under this definition, ‘tortious
17
conduct’ denotes that conduct, whether of act or
18
omission, which subjects the actor to liability
19
under the principles of the law of torts.”]; and
20
Mangini v. Aerojet (1991) 230 Cal.App.3d
21
1125, 1137 [“Nor is it material that defendant
22
allegedly created the nuisance at some time in
23
the past but does not currently have a possessory
24
interest in the property. "[N]ot only is the party
25
who maintains the nuisance liable but also the
26
party or parties who create or assist in its creation
27
are responsible for the ensuing damages."
28
(Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94,
Alexander & Associates
5
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
101 [195 Cal. Rptr. 737]; Hardin v. Sin
2
Claire (1896) 115 Cal. 460, 463 [47 P.
3
363]; Selma Pressure Treating Co. v. Osmose
4
Wood Preserving, Inc. (1990) 221 Cal. App.3d
5
1601, 1619-1620 [271 Cal. Rptr. 596] [designer
6
and installer of chemical treatment facility liable
7
for nuisance]; Portman v. Clementina Co. (1957)
8
147 Cal. App.2d 651, 659-660 [305 P.2d
9
963] [contractor who dumped fill and created
10
nuisance would be liable in damages].)”], the
11
tenant is still responsible even if it no longer has
12
possession or is no longer in the position to
13
remove the nuisance or trespass.
14
(Code of Evid. § 210; Code of Civ. Proc. §
15
1856.)
16
13. On or about December 29, 2015, Objection. As the contract with Benhong
17
Benhong entered into a purchase and failed, it is irrelevant to this matter. As well,
18
sale agreement with Calcot for a portion the question before the Court is whether as the
19
of the Property. originator of the nuisance Fry can be held
20
liable. According to CACI No. 2000; Newhall
Depo. of J. Neeper, p. 42, ll. 3-25 (SBVE, Exh.
21 “E”); v. Land & Farming Co. v. Superior Court
22
December 2015 Property Purchase and Sale (1993) 19 Cal.App.4th 334, 345 [“[A] trespass
23 Agreement (SBVE, Exh. “J”).
may be committed by the continued presence
24
on the land of a structure, chattel, or other thing
25
which the actor has tortiously placed there,
26 whether or not the actor has the ability to
27 remove it.’ Under this definition, ‘tortious
28 conduct’ denotes that conduct, whether of act or
Alexander & Associates
6
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
omission, which subjects the actor to liability
2
under the principles of the law of torts.”]; and
3
Mangini v. Aerojet (1991) 230 Cal.App.3d
4
1125, 1137 [“Nor is it material that defendant
5
allegedly created the nuisance at some time in
6
the past but does not currently have a possessory
7
interest in the property. "[N]ot only is the party
8
who maintains the nuisance liable but also the
9
party or parties who create or assist in its creation
10
are responsible for the ensuing damages."
11
(Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94,
12
101 [195 Cal. Rptr. 737]; Hardin v. Sin
13
Claire (1896) 115 Cal. 460, 463 [47 P.
14
363]; Selma Pressure Treating Co. v. Osmose
15
Wood Preserving, Inc. (1990) 221 Cal. App.3d
16
1601, 1619-1620 [271 Cal. Rptr. 596] [designer
17
and installer of chemical treatment facility liable
18
for nuisance]; Portman v. Clementina Co. (1957)
19
147 Cal. App.2d 651, 659-660 [305 P.2d
20
963] [contractor who dumped fill and created
21
nuisance would be liable in damages].)”], the
22
tenant is still responsible even if it no longer has
23
possession or is no longer in the position to
24
remove the nuisance or trespass.
25 (Code of Evid. § 210; Code of Civ. Proc. §
26 1856.)
27 14. On or about December 30, 2015, Objection. As the contract with Benhong
28 Benhong entered into a written failed, it is irrelevant to this matter. As well,
Alexander & Associates
7
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
amendment to its purchase and sale the question before the Court is whether as the
2
agreement with Fry for the Plastic. originator of the nuisance Fry can be held
3
liable. According to CACI No. 2000; Newhall
December 2015 Plastic Purchase and Sale
4 Agreement (SBVE, Exh. “K”); v. Land & Farming Co. v. Superior Court
5
Decl. T. Fry, ¶ 10 (SBVE, Exh. “P”). (1993) 19 Cal.App.4th 334, 345 [“[A] trespass
6
may be committed by the continued presence
7
on the land of a structure, chattel, or other thing
8
which the actor has tortiously placed there,
9
whether or not the actor has the ability to
10
remove it.’ Under this definition, ‘tortious
11
conduct’ denotes that conduct, whether of act or
12
omission, which subjects the actor to liability
13
under the principles of the law of torts.”]; and
14
Mangini v. Aerojet (1991) 230 Cal.App.3d
15
1125, 1137 [“Nor is it material that defendant
16
allegedly created the nuisance at some time in
17
the past but does not currently have a possessory
18
interest in the property. "[N]ot only is the party
19
who maintains the nuisance liable but also the
20
party or parties who create or assist in its creation
21
are responsible for the ensuing damages."
22
(Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94,
23
101 [195 Cal. Rptr. 737]; Hardin v. Sin
24
Claire (1896) 115 Cal. 460, 463 [47 P.
25
363]; Selma Pressure Treating Co. v. Osmose
26
Wood Preserving, Inc. (1990) 221 Cal. App.3d
27
1601, 1619-1620 [271 Cal. Rptr. 596] [designer
28
and installer of chemical treatment facility liable
Alexander & Associates
8
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
for nuisance]; Portman v. Clementina Co. (1957)
2
147 Cal. App.2d 651, 659-660 [305 P.2d
3
963] [contractor who dumped fill and created
4
nuisance would be liable in damages].)”], the
5
tenant is still responsible even if it no longer has
6
possession or is no longer in the position to
7
remove the nuisance or trespass.
8
(Code of Evid. § 210; Code of Civ. Proc. §
9
1856.)
10
15. The Property Purchase and Sale Objection. As the contract with Benhong
11
Agreement included a condition failed, it is irrelevant to this matter. As well,
12
precedent requiring Benhong to the question before the Court is whether as the
13
purchase the Plastic from Fry. originator of the nuisance Fry can be held
14
liable. According to CACI No. 2000; Newhall
December 2015 Property Purchase and Sale
15 Agreement, ¶ 17.d (SBVE, Exh. “J”); v. Land & Farming Co. v. Superior Court
16
Depo. of J. Neeper, p. 42, ll. 3-25 (SBVE, Exh. (1993) 19 Cal.App.4th 334, 345 [“[A] trespass
17 E”).
may be committed by the continued presence
18
on the land of a structure, chattel, or other thing
19
which the actor has tortiously placed there,
20
whether or not the actor has the ability to
21
remove it.’ Under this definition, ‘tortious
22
conduct’ denotes that conduct, whether of act or
23
omission, which subjects the actor to liability
24
under the principles of the law of torts.”]; and
25
Mangini v. Aerojet (1991) 230 Cal.App.3d
26 1125, 1137 [“Nor is it material that defendant
27
allegedly created the nuisance at some time in
28
the past but does not currently have a possessory
Alexander & Associates
9
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
interest in the property. "[N]ot only is the party
2
who maintains the nuisance liable but also the
3
party or parties who create or assist in its creation
4
are responsible for the ensuing damages."
5
(Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94,
6
101 [195 Cal. Rptr. 737]; Hardin v. Sin
7
Claire (1896) 115 Cal. 460, 463 [47 P.
8
363]; Selma Pressure Treating Co. v. Osmose
9
Wood Preserving, Inc. (1990) 221 Cal. App.3d
10
1601, 1619-1620 [271 Cal. Rptr. 596] [designer
11
and installer of chemical treatment facility liable
12
for nuisance]; Portman v. Clementina Co. (1957)
13
147 Cal. App.2d 651, 659-660 [305 P.2d
14
963] [contractor who dumped fill and created
15
nuisance would be liable in damages].)”], the
16
tenant is still responsible even if it no longer has
17
possession or is no longer in the position to
18
remove the nuisance or trespass.
19
(Code of Evid. § 210; Code of Civ. Proc. §
20
1856.)
21
16. Benhong made the required deposit for Objection. As the contract with Benhong
22
the purchase of a portion of the failed, it is irrelevant to this matter. As well,
23
Property. the question before the Court is whether as the
24
originator of the nuisance Fry can be held
Depo. of J. Neeper, p. 48, ll. 21-24 (SBVE,
25 Exh. “E”). liable. According to CACI No. 2000; Newhall
26 v. Land & Farming Co. v. Superior Court
27 (1993) 19 Cal.App.4th 334, 345 [“[A] trespass
28 may be committed by the continued presence
Alexander & Associates
10
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
on the land of a structure, chattel, or other thing
2
which the actor has tortiously placed there,
3
whether or not the actor has the ability to
4
remove it.’ Under this definition, ‘tortious
5
conduct’ denotes that conduct, whether of act or
6
omission, which subjects the actor to liability
7
under the principles of the law of torts.”]; and
8
Mangini v. Aerojet (1991) 230 Cal.App.3d
9
1125, 1137 [“Nor is it material that defendant
10
allegedly created the nuisance at some time in
11
the past but does not currently have a possessory
12
interest in the property. "[N]ot only is the party
13
who maintains the nuisance liable but also the
14
party or parties who create or assist in its creation
15
are responsible for the ensuing damages."
16
(Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94,
17
101 [195 Cal. Rptr. 737]; Hardin v. Sin
18
Claire (1896) 115 Cal. 460, 463 [47 P.
19
363]; Selma Pressure Treating Co. v. Osmose
20
Wood Preserving, Inc. (1990) 221 Cal. App.3d
21
1601, 1619-1620 [271 Cal. Rptr. 596] [designer
22
and installer of chemical treatment facility liable
23
for nuisance]; Portman v. Clementina Co. (1957)
24
147 Cal. App.2d 651, 659-660 [305 P.2d
25
963] [contractor who dumped fill and created
26
nuisance would be liable in damages].)”], the
27
tenant is still responsible even if it no longer has
28
Alexander & Associates
11
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
possession or is no longer in the position to
2
remove the nuisance or trespass.
3
(Code of Evid. § 210; Code of Civ. Proc. §
4
1856.)
5
17. Benhong completed the purchase of the Objection. As the contract with Benhong
6
Plastic from Fry. failed, it is irrelevant to this matter. As well,
7
Decl. T. Fry, ¶ 10 (SBVE, Exh. “P”). the question before the Court is whether as the
8
originator of the nuisance Fry can be held
9
liable. According to CACI No. 2000; Newhall
10
v. Land & Farming Co. v. Superior Court
11
(1993) 19 Cal.App.4th 334, 345 [“[A] trespass
12
may be committed by the continued presence
13
on the land of a structure, chattel, or other thing
14
which the actor has tortiously placed there,
15
whether or not the actor has the ability to
16
remove it.’ Under this definition, ‘tortious
17
conduct’ denotes that conduct, whether of act or
18
omission, which subjects the actor to liability
19
under the principles of the law of torts.”]; and
20
Mangini v. Aerojet (1991) 230 Cal.App.3d
21
1125, 1137 [“Nor is it material that defendant
22
allegedly created the nuisance at some time in
23
the past but does not currently have a possessory
24
interest in the property. "[N]ot only is the party
25
who maintains the nuisance liable but also the
26
party or parties who create or assist in its creation
27
are responsible for the ensuing damages."
28
(Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94,
Alexander & Associates
12
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
1
101 [195 Cal. Rptr. 737]; Hardin v. Sin
2
Claire (1896) 115 Cal. 460, 463 [47 P.
3
363]; Selma Pressure Treating Co. v. Osmose
4
Wood Preserving, Inc. (1990) 221 Cal. App.3d
5
1601, 1619-1620 [271 Cal. Rptr. 596] [designer
6
and installer of chemical treatment facility liable
7
for nuisance]; Portman v. Clementina Co. (1957)
8
147 Cal. App.2d 651, 659-660 [305 P.2d
9
963] [contractor who dumped fill and created
10
nuisance would be liable in damages].)”], the
11
tenant is still responsible even if it no longer has
12
possession or is no longer in the position to
13
remove the nuisance or trespass.
14
(Code of Evid. § 210; Code of Civ. Proc. §
15
1856.)
16
18. On or about January 13, 2016, Calcot’s Objection. As the contract with Benhong
17
counsel, Ty Mizote, was sent an email failed, it is irrelevant to this matter. As well,
18
notifying him that: (a) Benhong had the question before the Court is whether as the
19
completed the purchase of the Plastic originator of the nuisance Fry can be held
20
from Fry and was now the owner of the liable. According to CACI No. 2000; Newhall
21
Plastic; (b) Fry had received the January v. Land & Farming Co. v. Superior Court
22
2016 rent payment from Benhong and (1993) 19 Cal.App.4th 334, 345 [“[A] trespass
23
therefore Fry would remit the January may be committed by the continued presence
24
rent payment; and (c) thereafter on the land of a structure, chattel, or other thing
Preview
1 LAW OFFICES OF RICHARD JACOBS 2 RICHARD JACOBS, SBN 252226 13512 Hatteras St. 3 Valley Glen, California 91401 Tel: (818) 216-0663 4 Fax: (818) 780-8696 RichardJacobsLaw@gmail.com 5 Attorneys for Plaintiff, BIG WASHINGTON, LLC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN – METROPOLITAN DIVISION 10 11 BIG WASHINTON, LLC., a Case No.: BCV17-102341 SDS California Limited Liability 12 Company SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO DEFENDANTS’ THIRD MOTION 13 Plaintiff; FOR SUMMARY ADJUDICATION 14 v. 15 BENHONG (AMERICA) RECYCLING CO. LTD, a 16 California Limited Liability Company; and THOMAS H. FRY; 17 RUTH M. FRY, as Trustees of the T & R FRY FAMILY TRUST, and 18 Does 1 to 100, 19 Defendants. 20 21 22 23 24 25 26 27 28 Alexander & Associates 1 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 I. DEFENDANTS HAD NO DUTY TO REMOVE THE PLASTICS AFTER JANUARY 2 13, 2016. 3 4 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND 5 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 6 EVIDENCE 7 1. Big Washington, LLC is the assignee of Undisputed. 8 Calcot, Ltd. as to Calcot’s “legal rights, 9 if any…to pursue any legal claims 10 against third parties relating to the 11 Plastic.” 12 Special Interrogatories, Set One, Interrogatory 13 No. 7 (Separately Bound Volume of Evidence (“SBVE”), Exh. “A”); 14 Responses of Big Washington, LLC to Special 15 Interrogatories, Set One, Response to 16 Interrogatory No. 7, p. 6, l. 22 – p. 7, l. 25 (SBVE, Exh. “B”). 17 2. In 2011, Fry entered into a written lease Undisputed. 18 agreement with Calcot (the “Lease”) to 19 store agricultural plastics (“Plastic”) in 20 two warehouses located at 1900 East 21 Brundage Lane in Bakersfield (the 22 “Property”). 23 2011 Lease Agreement (SBVE, Exh. “F”); 24 Declaration of Thomas Fry, ¶ 3 (SBVE, Exh. 25 “P”). 26 3. The Lease prohibits Fry from assigning, Undisputed. 27 encumbering, or transferring the Lease, 28 or subletting or allowing any person Alexander & Associates 2 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 other than Fry’s agents from occupying 2 the premises. 3 2011 Lease Agreement, ¶ 15 (SBVE, Exh. “F”). 4 Decl. of T. Fry, ¶ 3 (SBVE, Exh. “P”). 5 4. In 2013, Fry and Calcot amended the Undisputed. 6 Lease agreement to increase the number 7 of warehouses leased for storage of the 8 Plastic to eight (the “Warehouses”). 9 2013 Lease Agreement Amendment 1 (SBVE, 10 Exh. “G”); 11 Decl. of T. Fry, ¶ 4 (SBVE, Exh. “P”). 12 5. In or about 2015, Calcot began Undisputed. 13 negotiating with Roger Liang for the 14 purchase and sale of a portion of the 15 Property but those initial talks broke 16 down. 17 Deposition of Jarral Neeper, p. 32, l. 4-25; p. 18 35, l. 17 – p. 36, l. 24 (SBVE, Exh. “E”). 19 6. Also in or about 2015, Fry began Undisputed. 20 negotiating with Roger Liang for the 21 purchase and sale of the Plastic. 22 Decl. of T. Fry, ¶ 7 (SBVE, Exh. “P”). 23 7. In September 2015, Calcot filed an Undisputed. 24 unlawful detainer action against Fry 25 seeking termination and forfeiture of the 26 Lease. 27 Decl. of T. Fry, ¶ 8 (SBVE, Exh. “P”). 28 Alexander & Associates 3 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 8. On or about December 8, 2015, Calcot Objection. As the Letter of Intent never 2 entered into a Letter of Intent with resulted in a consummated contract, it is 3 Roger Liang’s company, Benhong irrelevant to this matter. Therefore, this (at 4 (America) Recycling Co., Ltd best) violates the parol evidence rule and 5 (“Benhong”) for the purchase and sale otherwise is entirely irrelevant. 6 of a portion of the Property (the “LOI”). (Code of Evid. § 210; Code of Civ. Proc. § 7 1856.) December 2015 Letter of Intent (SBVE, Exh. 8 “H”); 9 Depo. of J. Neeper, p. 27, ll. 7-14; p. 39, l. 8 – 10 p. 41, l. 8 (SBVE, Exh. “E”). 11 9. The LOI contemplated that Benhong Objection. As the Letter of Intent never 12 would purchase the Plastic from Fry as a resulted in a consummated contract, it is 13 condition precedent to the purchase and irrelevant to this matter. Therefore, this (at 14 sale of a portion of the Property. best) violates the parol evidence rule and 15 otherwise is entirely irrelevant. December 2015 Letter of Intent (SBVE, Exh. 16 “H”); (Code of Evid. § 210; Code of Civ. Proc. § 17 Depo. of J. Neeper, p. 27, ll. 7-14; p. 39, ll. 8 – 1856.) 18 (SBVE, Exh. “E”). 18 10. The LOI also contemplated that Objection. As the Letter of Intent never 19 Benhong would lease three of the resulted in a consummated contract, it is 20 Warehouses from Calcot at $2,000 per irrelevant to this matter. Therefore, this (at 21 warehouse for a period of time. best) violates the parol evidence rule and 22 otherwise is entirely irrelevant. 23 Depo. of J. Neeper, p. 38, ll. 18-21; p. 39, l. 8 – p. 41, l. 8 (SBVE, Exh. “E”); (Code of Evid. § 210; Code of Civ. Proc. § 24 December 2015 Letter of Intent (SBVE, Exh. 1856.) 25 “H”). 26 11. On December 11, 2015, default Undisputed. 27 judgment was entered in Calcot’s 28 Alexander & Associates 4 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 unlawful detainer action against Fry, 2 terminating and forfeiting the Lease. 3 Judgment (SBVE, Exh. “I”); 4 Decl. of T. Fry, ¶ 9 (SBVE, Exh. “P”). 5 12. Calcot opted against attempting to Objection. As the contract with Benhong 6 remove Fry from the Property in failed, it is irrelevant to this matter. As well, 7 December 2015 because Calcot had the question before the Court is whether as the 8 signed the LOI with Benhong and originator of the nuisance Fry can be held 9 believed that Benhong was going to liable. According to CACI No. 2000; Newhall 10 purchase the Plastic from Fry. v. Land & Farming Co. v. Superior Court 11 (1993) 19 Cal.App.4th 334, 345 [“[A] trespass Depo. of J. Neeper, p. 41, ll. 9-16; p. 84, ll. 19- 12 24 (SBVE, Exh. “E”). may be committed by the continued presence 13 on the land of a structure, chattel, or other thing 14 which the actor has tortiously placed there, 15 whether or not the actor has the ability to 16 remove it.’ Under this definition, ‘tortious 17 conduct’ denotes that conduct, whether of act or 18 omission, which subjects the actor to liability 19 under the principles of the law of torts.”]; and 20 Mangini v. Aerojet (1991) 230 Cal.App.3d 21 1125, 1137 [“Nor is it material that defendant 22 allegedly created the nuisance at some time in 23 the past but does not currently have a possessory 24 interest in the property. "[N]ot only is the party 25 who maintains the nuisance liable but also the 26 party or parties who create or assist in its creation 27 are responsible for the ensuing damages." 28 (Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94, Alexander & Associates 5 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 101 [195 Cal. Rptr. 737]; Hardin v. Sin 2 Claire (1896) 115 Cal. 460, 463 [47 P. 3 363]; Selma Pressure Treating Co. v. Osmose 4 Wood Preserving, Inc. (1990) 221 Cal. App.3d 5 1601, 1619-1620 [271 Cal. Rptr. 596] [designer 6 and installer of chemical treatment facility liable 7 for nuisance]; Portman v. Clementina Co. (1957) 8 147 Cal. App.2d 651, 659-660 [305 P.2d 9 963] [contractor who dumped fill and created 10 nuisance would be liable in damages].)”], the 11 tenant is still responsible even if it no longer has 12 possession or is no longer in the position to 13 remove the nuisance or trespass. 14 (Code of Evid. § 210; Code of Civ. Proc. § 15 1856.) 16 13. On or about December 29, 2015, Objection. As the contract with Benhong 17 Benhong entered into a purchase and failed, it is irrelevant to this matter. As well, 18 sale agreement with Calcot for a portion the question before the Court is whether as the 19 of the Property. originator of the nuisance Fry can be held 20 liable. According to CACI No. 2000; Newhall Depo. of J. Neeper, p. 42, ll. 3-25 (SBVE, Exh. 21 “E”); v. Land & Farming Co. v. Superior Court 22 December 2015 Property Purchase and Sale (1993) 19 Cal.App.4th 334, 345 [“[A] trespass 23 Agreement (SBVE, Exh. “J”). may be committed by the continued presence 24 on the land of a structure, chattel, or other thing 25 which the actor has tortiously placed there, 26 whether or not the actor has the ability to 27 remove it.’ Under this definition, ‘tortious 28 conduct’ denotes that conduct, whether of act or Alexander & Associates 6 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 omission, which subjects the actor to liability 2 under the principles of the law of torts.”]; and 3 Mangini v. Aerojet (1991) 230 Cal.App.3d 4 1125, 1137 [“Nor is it material that defendant 5 allegedly created the nuisance at some time in 6 the past but does not currently have a possessory 7 interest in the property. "[N]ot only is the party 8 who maintains the nuisance liable but also the 9 party or parties who create or assist in its creation 10 are responsible for the ensuing damages." 11 (Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94, 12 101 [195 Cal. Rptr. 737]; Hardin v. Sin 13 Claire (1896) 115 Cal. 460, 463 [47 P. 14 363]; Selma Pressure Treating Co. v. Osmose 15 Wood Preserving, Inc. (1990) 221 Cal. App.3d 16 1601, 1619-1620 [271 Cal. Rptr. 596] [designer 17 and installer of chemical treatment facility liable 18 for nuisance]; Portman v. Clementina Co. (1957) 19 147 Cal. App.2d 651, 659-660 [305 P.2d 20 963] [contractor who dumped fill and created 21 nuisance would be liable in damages].)”], the 22 tenant is still responsible even if it no longer has 23 possession or is no longer in the position to 24 remove the nuisance or trespass. 25 (Code of Evid. § 210; Code of Civ. Proc. § 26 1856.) 27 14. On or about December 30, 2015, Objection. As the contract with Benhong 28 Benhong entered into a written failed, it is irrelevant to this matter. As well, Alexander & Associates 7 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 amendment to its purchase and sale the question before the Court is whether as the 2 agreement with Fry for the Plastic. originator of the nuisance Fry can be held 3 liable. According to CACI No. 2000; Newhall December 2015 Plastic Purchase and Sale 4 Agreement (SBVE, Exh. “K”); v. Land & Farming Co. v. Superior Court 5 Decl. T. Fry, ¶ 10 (SBVE, Exh. “P”). (1993) 19 Cal.App.4th 334, 345 [“[A] trespass 6 may be committed by the continued presence 7 on the land of a structure, chattel, or other thing 8 which the actor has tortiously placed there, 9 whether or not the actor has the ability to 10 remove it.’ Under this definition, ‘tortious 11 conduct’ denotes that conduct, whether of act or 12 omission, which subjects the actor to liability 13 under the principles of the law of torts.”]; and 14 Mangini v. Aerojet (1991) 230 Cal.App.3d 15 1125, 1137 [“Nor is it material that defendant 16 allegedly created the nuisance at some time in 17 the past but does not currently have a possessory 18 interest in the property. "[N]ot only is the party 19 who maintains the nuisance liable but also the 20 party or parties who create or assist in its creation 21 are responsible for the ensuing damages." 22 (Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94, 23 101 [195 Cal. Rptr. 737]; Hardin v. Sin 24 Claire (1896) 115 Cal. 460, 463 [47 P. 25 363]; Selma Pressure Treating Co. v. Osmose 26 Wood Preserving, Inc. (1990) 221 Cal. App.3d 27 1601, 1619-1620 [271 Cal. Rptr. 596] [designer 28 and installer of chemical treatment facility liable Alexander & Associates 8 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 for nuisance]; Portman v. Clementina Co. (1957) 2 147 Cal. App.2d 651, 659-660 [305 P.2d 3 963] [contractor who dumped fill and created 4 nuisance would be liable in damages].)”], the 5 tenant is still responsible even if it no longer has 6 possession or is no longer in the position to 7 remove the nuisance or trespass. 8 (Code of Evid. § 210; Code of Civ. Proc. § 9 1856.) 10 15. The Property Purchase and Sale Objection. As the contract with Benhong 11 Agreement included a condition failed, it is irrelevant to this matter. As well, 12 precedent requiring Benhong to the question before the Court is whether as the 13 purchase the Plastic from Fry. originator of the nuisance Fry can be held 14 liable. According to CACI No. 2000; Newhall December 2015 Property Purchase and Sale 15 Agreement, ¶ 17.d (SBVE, Exh. “J”); v. Land & Farming Co. v. Superior Court 16 Depo. of J. Neeper, p. 42, ll. 3-25 (SBVE, Exh. (1993) 19 Cal.App.4th 334, 345 [“[A] trespass 17 E”). may be committed by the continued presence 18 on the land of a structure, chattel, or other thing 19 which the actor has tortiously placed there, 20 whether or not the actor has the ability to 21 remove it.’ Under this definition, ‘tortious 22 conduct’ denotes that conduct, whether of act or 23 omission, which subjects the actor to liability 24 under the principles of the law of torts.”]; and 25 Mangini v. Aerojet (1991) 230 Cal.App.3d 26 1125, 1137 [“Nor is it material that defendant 27 allegedly created the nuisance at some time in 28 the past but does not currently have a possessory Alexander & Associates 9 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 interest in the property. "[N]ot only is the party 2 who maintains the nuisance liable but also the 3 party or parties who create or assist in its creation 4 are responsible for the ensuing damages." 5 (Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94, 6 101 [195 Cal. Rptr. 737]; Hardin v. Sin 7 Claire (1896) 115 Cal. 460, 463 [47 P. 8 363]; Selma Pressure Treating Co. v. Osmose 9 Wood Preserving, Inc. (1990) 221 Cal. App.3d 10 1601, 1619-1620 [271 Cal. Rptr. 596] [designer 11 and installer of chemical treatment facility liable 12 for nuisance]; Portman v. Clementina Co. (1957) 13 147 Cal. App.2d 651, 659-660 [305 P.2d 14 963] [contractor who dumped fill and created 15 nuisance would be liable in damages].)”], the 16 tenant is still responsible even if it no longer has 17 possession or is no longer in the position to 18 remove the nuisance or trespass. 19 (Code of Evid. § 210; Code of Civ. Proc. § 20 1856.) 21 16. Benhong made the required deposit for Objection. As the contract with Benhong 22 the purchase of a portion of the failed, it is irrelevant to this matter. As well, 23 Property. the question before the Court is whether as the 24 originator of the nuisance Fry can be held Depo. of J. Neeper, p. 48, ll. 21-24 (SBVE, 25 Exh. “E”). liable. According to CACI No. 2000; Newhall 26 v. Land & Farming Co. v. Superior Court 27 (1993) 19 Cal.App.4th 334, 345 [“[A] trespass 28 may be committed by the continued presence Alexander & Associates 10 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 on the land of a structure, chattel, or other thing 2 which the actor has tortiously placed there, 3 whether or not the actor has the ability to 4 remove it.’ Under this definition, ‘tortious 5 conduct’ denotes that conduct, whether of act or 6 omission, which subjects the actor to liability 7 under the principles of the law of torts.”]; and 8 Mangini v. Aerojet (1991) 230 Cal.App.3d 9 1125, 1137 [“Nor is it material that defendant 10 allegedly created the nuisance at some time in 11 the past but does not currently have a possessory 12 interest in the property. "[N]ot only is the party 13 who maintains the nuisance liable but also the 14 party or parties who create or assist in its creation 15 are responsible for the ensuing damages." 16 (Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94, 17 101 [195 Cal. Rptr. 737]; Hardin v. Sin 18 Claire (1896) 115 Cal. 460, 463 [47 P. 19 363]; Selma Pressure Treating Co. v. Osmose 20 Wood Preserving, Inc. (1990) 221 Cal. App.3d 21 1601, 1619-1620 [271 Cal. Rptr. 596] [designer 22 and installer of chemical treatment facility liable 23 for nuisance]; Portman v. Clementina Co. (1957) 24 147 Cal. App.2d 651, 659-660 [305 P.2d 25 963] [contractor who dumped fill and created 26 nuisance would be liable in damages].)”], the 27 tenant is still responsible even if it no longer has 28 Alexander & Associates 11 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 possession or is no longer in the position to 2 remove the nuisance or trespass. 3 (Code of Evid. § 210; Code of Civ. Proc. § 4 1856.) 5 17. Benhong completed the purchase of the Objection. As the contract with Benhong 6 Plastic from Fry. failed, it is irrelevant to this matter. As well, 7 Decl. T. Fry, ¶ 10 (SBVE, Exh. “P”). the question before the Court is whether as the 8 originator of the nuisance Fry can be held 9 liable. According to CACI No. 2000; Newhall 10 v. Land & Farming Co. v. Superior Court 11 (1993) 19 Cal.App.4th 334, 345 [“[A] trespass 12 may be committed by the continued presence 13 on the land of a structure, chattel, or other thing 14 which the actor has tortiously placed there, 15 whether or not the actor has the ability to 16 remove it.’ Under this definition, ‘tortious 17 conduct’ denotes that conduct, whether of act or 18 omission, which subjects the actor to liability 19 under the principles of the law of torts.”]; and 20 Mangini v. Aerojet (1991) 230 Cal.App.3d 21 1125, 1137 [“Nor is it material that defendant 22 allegedly created the nuisance at some time in 23 the past but does not currently have a possessory 24 interest in the property. "[N]ot only is the party 25 who maintains the nuisance liable but also the 26 party or parties who create or assist in its creation 27 are responsible for the ensuing damages." 28 (Shurpin v. Elmhirst (1983) 148 Cal. App.3d 94, Alexander & Associates 12 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 1 101 [195 Cal. Rptr. 737]; Hardin v. Sin 2 Claire (1896) 115 Cal. 460, 463 [47 P. 3 363]; Selma Pressure Treating Co. v. Osmose 4 Wood Preserving, Inc. (1990) 221 Cal. App.3d 5 1601, 1619-1620 [271 Cal. Rptr. 596] [designer 6 and installer of chemical treatment facility liable 7 for nuisance]; Portman v. Clementina Co. (1957) 8 147 Cal. App.2d 651, 659-660 [305 P.2d 9 963] [contractor who dumped fill and created 10 nuisance would be liable in damages].)”], the 11 tenant is still responsible even if it no longer has 12 possession or is no longer in the position to 13 remove the nuisance or trespass. 14 (Code of Evid. § 210; Code of Civ. Proc. § 15 1856.) 16 18. On or about January 13, 2016, Calcot’s Objection. As the contract with Benhong 17 counsel, Ty Mizote, was sent an email failed, it is irrelevant to this matter. As well, 18 notifying him that: (a) Benhong had the question before the Court is whether as the 19 completed the purchase of the Plastic originator of the nuisance Fry can be held 20 from Fry and was now the owner of the liable. According to CACI No. 2000; Newhall 21 Plastic; (b) Fry had received the January v. Land & Farming Co. v. Superior Court 22 2016 rent payment from Benhong and (1993) 19 Cal.App.4th 334, 345 [“[A] trespass 23 therefore Fry would remit the January may be committed by the continued presence 24 rent payment; and (c) thereafter on the land of a structure, chattel, or other thing