Yanks v. Planes of Fame Pleadings Tracker

Yanks v PoF Complaint Image 02

Updated 25 April 2017 1700 US ET.

For the convenience of those following the litigation over the Chino Airshow (Yanks, et. al. v. Planes of Fame, California Superior Court for the County of San Bernardino, Case No. CIVDS1705434), Airspeed is tracking the pleadings in the case. The plan is to update this page from time to time, workload permitting. (Like flight following through the Chicago Class B, only slightly better).

What, exactly is linked here?  Good question. These are the court documents, as filed in the court. A copy of the court’s docket, as it appeared at the time we downloaded the documents, leads each PDF file so that you can see the context of the documents.  Most of the documents are downloaded directly from the court’s website. Several of the items were sent to us by others and we’ve posted them, having no reason to think that they’re other than true copies of the court records. We might or might not include additional documents received by this means.

There are omissions in the PDF files and those happen for two reasons. (1) Some of the documents don’t show on the docket as being available for download. In those cases, we generally don’t have the document unless someone has provided it to us by other means (such as an e-mail the other day). (2) Some of the documents that do show as being available from the court’s website either appear to be – or are – not very interesting, such a proofs of service and other documents that have more to do with the Kabuki theater of litigation than the actual substance. Make no mistake, we love the Kabuki theater of the court system. The producer is a lawyer, after all. But we know enough to think that non-lawyer readers probably won’t find them interesting and we have, accordingly, omitted them. (Note: We have not reviewed each document that was omitted to determine whether it’s uninteresting. In several cases, we made that call based solely on the title of the document in the docket, e.g., “Amended Proof of Service filed for Planes of Fame Air Museum filed.” We’re guessing that you wouldn’t want to read that, either.)

So here are the pleadings. They’re court documents and part of the public record.  You don’t have to ask Airspeed for permission to do this or that with them. You’re welcome to do whatever is permissible to do with court pleadings.  Knock yourself out.


25 April Update

See the Ex Parte Application for Court Re-Setting Hearing Dates here.

On 24 April, Planes of Fame filed an ex parte application to the court seeking to reset hearing dates for several motions in the case. In the application, PoF is asking the court (without Yanks or the other plaintiffs being involved – that’s what “ex parte” means) to hear three different motions on the same date.  They are:

(1) PoF’s demurer to the complaint (a pleading in which PoF essentially says, “We understand everything in the plaintiffs’ complaint . . . except the ‘therefore’”) set for hearing on 9 May;

(2) PoF’s motion to strike the complaint (a pleading that says that the plaintiff’s complaint, on its face, doesn’t allege the things that it needs to allege to get to the remedy requested); and

(3) PoF’s special motion to strike (what is commonly known as an “anti-SLAPP” motion designed to combat lawsuits that are intended to censor, intimidate, and/or silence opponents by burdening them with the cost and aggravation of a legal defense until they abandon their opposition) set for 13 June.

This is the first time that we’ve seen the anti-SLAPP motion (filed 21 April under California Code of Civil Procedure § 425.16(b)(1), but not previously available on the court’s website), mainly because it’s attached to the 24 April application. Anti-SLAPP motions are usually used in cases that have a more clear-cut free-speech element than we see in the Chino fistfight. In the usual case, a journalist or advocate says this or that about a well-capitalized person or enterprise.  The well-capitalized person or enterprise then sues the journalist or advocate for defamation without much regard for the merits of the suit.  The idea of the suit is to burden the journalist or advocate with the lawsuit and try to discourage the journalist, advocate, or others from criticizing the plaintiff. A good example of a successful use of an anti-SLAPP motion is the case of Dr. Edward Tobinick’s suit against Yale Neurologist and host of The Skeptic’s Guide to the Universe Dr. Steven Novella. Novella criticized Tobinick’s claims regarding Tobinick’s Alzheimer’s treatments. Tobinick sued and Novella succeeded in fending off the suit with an anti-SLAPP motion.

Although the PoF anti-SLAPP motion alleges that the airshow is protected speech, airshows and similar events are not the usual focus of anti-SLAPP motions and their jurisprudence. Maybe it’s that California court rules require that anti-SLAPP motions be heard within 30 days after filing if possible. Perhaps the idea is to get a hearing on something other than the injunction prior to the dates for the show. Given that the court has slated other motions for hearing on 9 May, PoF argues that the court has room on the docket and must hear the anti-SLAPP motion earlier than the scheduled date (by 19 May in any case). Nevertheless, there’s no guarantee that the hearing would happen before the 6-7 May dates for the 2017 airshow.

Long story short, PoF is asking the court to hear all of PoF’s motions on the same day.  Being that the earliest of the presently-scheduled PoF motions is set to be heard on the second day after the 2017 Chino Airshow wraps, there’s no obvious effect on the 2017 airshow itself from the consolidation. But it might signal thoughts by PoF that it believes that it has a pretty strong case and wants to bring all of the motions together to concentrate firepower in one hearing. Generally speaking, if a party thinks that it’s a little thin on the law, the facts, or both, it makes sense to scatter one’s motions around a little to divide and conquer, or at least fight an effective rear-guard action.  PoF is doing the opposite.

Could the ex parte application mean something else?  Of course. But that’s the view from here in the cheap seats.

Lastly, by all indications that we can see from the docket, the motion on the preliminary injunction is still set for 28 April.


21 April Update

Yanks Docket 2017-04-21

Nothing new to upload today. If I’m reading the docket (reproduced above) correctly, it looks as though the hearing on the injunction was adjourned for a week or longer. The docs themselves are not available and you’re seeing everything that we are without calling the clerk to get an explanation.  We might do that early next week.  In any case, if we had to guess, we’d guess that the parties are huddling to see if there’s a way to settle this out of court (which would be among the results most likely to result in the 2017 airshow happening on schedule). So we’re cautiously optimistic. Stay tuned.


All pleadings through mid-day 17 April 2017 (the whole megillah).


Pleadings after 7 April 2017 through mid-day 17 April 2017


Pleadings filed by Planes of Fame on 7 April in opposition to the injunction.


Final notes:

Neither this post or anything else short a of a formal engagement letter creates a lawyer-client relationship between Steve Tupper or his law firm (on the one hand) and you (on the other).

The materials are provided with no representation, warranty, guaranty, or other promise of any kind and we might or might not update this page. Use these items at your own risk.

Airspeed has dropped maybe $150 with the court in order to download the pleadings.  If you feel like slipping Airspeed some money, you can do it by hitting the “Donate” button on the right-hand side of this page. Any excess received will be squandered on aviation activities and/or donated to the Tuskegee Airmen National Historical Museum in Detroit.


Yanks v. Planes of Fame Lawsuit Heats Up

Yanks PoF Web Pages

The lawsuit in San Bernardino County, California is heating up. I’ll be on Warbird Radio Live tonight at 8:00 PM US ET (2000 US ET/0000Z) to talk with Matt Jolley about recent developments in the case from a lawyer’s perspective.

As many of you know, Yanks Air Museum and several other tenants at the Chino Airport (KCNO) have sued Planes of Fame Air Museum, claiming trespass, three flavors of interference, and unfair competition, and have sought an injunction that would prevent the Chino Airshow from occurring. In a nutshell, Yanks and the other plaintiffs claim that the airshow limits their ability to do business and, among other things, they’ve asked that the court enjoin Planes of Fame from conducting the airshow.

For those following along at home, here are links to the pleadings so far.  These are public court documents.

All pleadings since inception on 27 March that i found interesting (including the 7 April filings by Planes of Fame opposing the injunction):


Just the pleadings filed by Planes of Fame on 7  April in opposition to the injunction:


Tune in tonight!  You’ll get my perspective as an aviation lawyer, airshow performer, and air boss, as well as the views of other callers and guests – all moderated by Matt Jolley, a real and experienced airshow announcer, pilot, and Edward R. Murrow award-winning journalist.

[ Website screen shots used as permitted by 17 U.S.C. § 107.]

ICAS Convention 2014 – Arrival

ICAS Open Panorama

It’s another December and that means another ICAS convention!  I’m at the Rio All-Suites Hotel and Casino here in Las Vegas along with just about everyone who’s anyone in the airshow business in North America.

It’s a busy convention for me this year.  In a couple of hours, I go downstairs to see Gene Kranz, Apollo program flight director and the author of The Kranz Doctrine, which is the subject of a popular Airspeed episode from 2009.  Yes, I’m having my copy of Failure is Not an Option.  After that, it’s a day of floor sessions and breakout sessions.  I’m hitting the Blue Angels Forum and the sponsorship session.  Then, this evening, I’m taking a side track to see Penn & Teller here at the hotel.  I’ve been a fan of Penn Jillette for a long time and I have front row seats to see him llive.

Tomorrow (flight suit day!) I’m attending Air Boss 201 to add some color to the Air Boss episode of Airspeed.  It’s be nice to get some training so that I can find out what I did wrong bossing my first demos this past June.  After that, it’s more floor sessions and then I bust out to the airport for a red-eye Delta flight back to the D.

Throughout all of this, I’m taking calls and making sure that the desk I’m supposed to be flying back in the D stays aloft.  It exhibits reasonable spiral stability, but does require occasional corrections and the autopilot is notoriously unreliable.

There likely won’t be an episode from here at the hotel this year.  I have three episodes for which I’m collecting material.  Producing an on-site episodes can take as much as three or four hours and I think that that’s time better spent downstairs gathering the material and making the contacts that will inspire episodes that I’m not even thinking about right now.

Off to breakfast with the men and women who make airshows happen!

How Adam Rogers and WIRED Utterly Fail to Understand Commercial Space Ops

Wired Apollo 1 Windtee

Late last week,  I saw a post on WIRED’s website by Adam Rogers called Space Tourism Isn’t Worth Dying For.  In 12 insipid paragraphs, Mr. Rogers delivered a tortured hash that boils down to: “Don’t hate me bro. I loved Apollo and the shuttle program, but now it’s all about dilettantes with money going up for thrills.”

Shortly thereafter, I suggested on Facebook that, if somebody would mock up a WIRED cover or logo, I’d write a parody to the effect of WIRED Responds to the Apollo 1 Fire. Two talented friends mocked up covers and posted them in comments. Bryan Rivera of Windtee Aviation Art was first to post and his cover leads this post.  Thomas Freundl also posted an excellent cover that’s featured below.

But, much as I tried to make good on my promise, I had reservations about the Apollo 1 parody.  It’s not that I couldn’t do it.  I know my NASA history as well as any aerospace geek and could come up with an almost exactly parallel parody article.  But I realized that to do so would be to talk past Rogers when what’s needed is a direct response. So here it is.

Rogers claims to be a fan of space exploration.  He says that he likes spaceships. He’s been to the Cape and to Mojave.  And this and other hedging qualifies him to “call bullshit” if anyone speaks of the SpaceShipOne accident in terms of giant leaps and boldly going where no one has gone before.

I write to call bullshit on Rogers.

Rogers says, “Do human beings have a drive to push past horizons, over mountains, into the unknown? Manifestly. But we always balance that drive and desire with its potential outcomes.  We go when there’s something there.”  In this insipid word salad, Rogers proves that he has no idea what drives those who dream about space travel.

There’s something there, alright: It’s the there, stupid.

Even if it’s a suborbital trajectory, it’s space.  It’s the chance to see the curvature of the planet that has been the origin of every human song, play, book, thought, hope, and dream. It’s the chance to be up there and experience the Overview Effect attested to by Ed Mitchell, Chris Hadfield, and Mike Massimino, among others.  In fact, I’d be willing to chip in to fund a sub-orbital (or better) flight for every incoming leader of a nuclear-capable county if we could make it mandatory before taking the oath of office.

Wired Apollo 1

Not every Virgin Galactic slot-holder is an explorer. To be sure, some almost certainly have more money than brains and are just in line for the thrill.  But I’d venture to guess that the vast majority of slot-holders are those genuinely moved by the prospect of being in space, even for a few moments.

Additionally, a functioning regular sub-orbital service is a valuable step in preserving and building space capability.  NASA, for all practical purposes, finished up its manned suborbital program with only two such flights in 1961.  After that, it was all about orbit and beyond though the remaining four Mercury flights and all of Gemini, and Apollo. You have to be good at different things to regularly fly people in sub-orbital profiles. Virgin and others are filling in some of the blanks that have been there for 50 years.  And they’re building physical and intellectual infrastructure that will further commercial spaceflight beyond sub-orbital levels in the near future.

Rogers simply doesn’t understand that aviation and aerospace technology is rarely single-purpose or merely horizontally integrated.  We’ll learn things doing sub-orbital flights that apply to every aspect of space flight. In fact, some elements of commercial sub-orbital flights are more likely than other kinds spaceflight to help develop some elements of vital aerospace technology and practice.  Look at the higher operational tempo. Look at the requirements for efficiency and reusability in launch and recovery. Look at the crew training, preparation, and performance elements. These and other operational considerations will force innovation that we wouldn’t otherwise see.  For Pete’s sake, the very existence of White Knight/SpaceShipOne and White Knight Two/SpaceShipTwo in the first place is demonstration enough.

Is Rogers’ problem with the private-sector nature of Virgin Galactic’s operations? Look, it’s pretty obvious that there’s little present public support for government-backed manned space exploration, at least in the US.  Commercial spaceflight is our best bet for preserving our space exploration chops and moving them forward.  It’s also a place where the know-how of space veterans is preserved and where it’s passed on to the next generation. Like it or not, this an essential funding model for the next step in space exploration.

Is Rogers’ problem the lucre that it takes to get humans into space?  Surely it’s not the money itself.  The Apollo program cost $100 billion over 10 years and of the Space Transportation System (the “space shuttle”) cost $200 billion over 40 years and that’s apparently okay with Rogers. Must money be spent by a government in order to make it noble or worth risking life over?  How is it less noble when the money comes from those who have it and are moved to invest it? Might private money be even more noble?

Private space operations are the way of the world for the next Mercury, Gemini, and Apollo.  It’s not what I expected growing up in the 1960s and 1970s, but it’s what we have and, in many ways, it’s even more exciting. I’d be just as happy to go into space with Delos D. Harriman or Richard Branson as with Neil Armstrong or Dave Scott. To be sure, it is no less noble and perhaps it is even more so.  The motivation remains as pure as it ever has been at any other time or place. We have not stopped dreaming. We’re going back to space. Sub-orbital now.  Low-Earth orbit next.  Then outward.  Ever outward.

But Rogers goes even further. He says right up front that test pilots take risks and die “in the service of millionaire boondoggle thrill rides.” He most likely says this because he has zero idea about what motivates these people.

There’s a very special breed of men and women who live for aviation and aerospace and sharing that love with others. While test pilots are such men and women, I don’t know any test pilots.  But I do know airshow performers, and they’re cut from the same cloth.  These people don’t do it for the fame.  The average American can’t name a single Thunderbird or Blue Angel, much less come up with the names of Greg Koontz, Mike Goulian, Patty Wagstaff, or Rob Holland.  Airshow performers generally don’t do it for the money. It is said that one can make a small fortune in the airshow business – if one starts with a large fortune. These are words that are more true than any airshow performer likes to admit.

They do it because they love to fly.  They love to operate in the less-occupied reaches of the envelope with engineering, skill, and determination.  They love to fly at airshows and they know that some of the kids who see them fly will walk off the field each weekend with new purpose to their lives.

I don’t speak idly here. I’ve done it myself. Not often or particularly thrillingly, but I’ve stuck my head into that rarefied box air in front of 20,000 people on several occasions.  I’ll breathe that air again any time they let me and I’ll spend the hundreds of hours in training and preparation to be worthy of that trust and honor.

Almost every year, one or more of those people die in the pursuit of that love. It’s never easy when that happens. We all know exactly what risks are involved. We prepare as best we can for the risks and then we execute with clear purpose and a safety culture that is second to none. Have you ever tried to live up to a standard like that?  Perfection is expected, but mere excellence is tolerated. We feel awful when one of our fellows dies or is injured. But we understand the drive and we all believe that what we do is worth the risks that we assume with open eyes.

Pilots – or at least the pilots that I know and model – don’t operate in the service of millionaire boondoggle anything. They serve the highest aspirations of our species.

Rogers is wrong on every count.  He doesn’t understand why we dream about space.  He thinks that government is the only proper mechanism to fund space travel. He doesn’t understand how technology is preserved and enhanced. And he sure as heck doesn’t understand pilots.

So, finally, I speak for thousands, if not millions, of my fellow dreamers when I say this: I’ll gladly train up, suit up, and strap into the very next available space vehicle. And, if it helps, I’m a commercial pilot with about 600 hours in my logbook; a little bit of it in jets and a lot of it in gliders. My resume and logbook are available to anyone at Scaled Composites, Virgin Galactic, Orbital Sciences, or any others who are interested. For that matter, SpaceX already has my resume.

In any case, so say all of us: Bullshit, Mr. Rogers.


ICAS 2013 Opening Reception

Panorama Reception

The 2013 International Council of Air Shows (“ICAS”) Convention kicks off this morning after the reception last night here at Paris Las Vegas.

Although the US jet teams are back for the 2014 season, both Air Force and Navy TAC Demo support will be substantially reduced or nonexistent in the coming season, depending on the platform that interests you. I’m still working on getting a sense of the pulse of the industry and what reduced military support is going to mean for airsows in the long term if it continues. This morning is the first exhibit hall session and the first chance to really walk around and get a sense of everyone’s feelings about the upcoming season and the longer-term prospects.

Waco 01

The highlight of the reception was John Klatt’s unveiling of the Screamin’ Sasquatch, a 1929 Taperwing Waco. It has a Pratt & Whitney 985 radial engine on the nose, but the real kicker is the CJ610 (J-85) jet engine mounted on the underside. Jimmy Franklin first flew a jet Waco in 1999. The unveiling here at ICAS featured the Jack Links Sasquatch himself posing for pictures.

Perhaps the most important element of the Sasquatch announcement is the fact that Klatt managed to land the sponsorship deal that enabled the ‘Squatch. Sponsorship is critical to many airshow acts, and putting together a jet Waco isn’t something that one can do on appearance fees alone.

Waco 02

Klatt is a lieutenant colonel in the Air National Guard, having flown F-16s and C-130s. Through last season, he had flown an MXS in Air Guard livery and he participated heavily in recruiting efforts at each air show that he flew.

Klatt’s migration to the new aircraft and a private-sector sponsor might be a harbinger of things to come in the industry as military support is reduced or isn’t as reliable in light of ongoing budget issues and economic conditions. Time will tell, of course. But, in the meantime, it’s a real coup that Klatt has landed what is clearly a major deal that will bring a unique aircraft to the skies of many airshows and get Jack Links and its “wild side” message exposure to airshow and other fans.

Major sponsorships like this aren’t an option for every performer.  Or even most performers.  But  Klatt showed us that he could do it and the aircraft is gorgeous.  There’s a sponsorship breakout session at the convention and I’m planning to attend it.

Sponsorship is by no means the largest moving part in the industry and it’s by no means a new thing.  But Klatt’s deal is a ray of light and I’ll be following this and other developments.