Judge: Mark H. Epstein, Case: SC124878, Date: 2025-02-19 Tentative Ruling
Case Number: SC124878 Hearing Date: February 19, 2025 Dept: I
The court has considered plaintiff’s claim that the
referee’s report as it relates to the fence is improper. The court asked the defense to respond. On January 17, 2025, Illulian filed the
response to which the Zivs responded on January 23, 2025. In a nutshell, Illulian asks this court to
end the matter. Illulian claims it gave
plaintiff $10,000 to build the fence, but plaintiff has not been forthcoming to
get the fence built. According to
Illulian, he has not cooperated in the process, and Judge Horne seems to have
determined that the problem was with the Zivs more than it was with Illulian. The Zivs in their papers suggest that the
Referee for some reason acted with malice toward them and engaged in deliberate
falsehoods. Accusations of that sort are
unfounded and unhelpful to the Zivs.
Judge Horne is a respected jurist, recently retired from the court. Like all humans, he can make mistakes. But suggesting that he had it in for the Zivs
and acted with malice and fraud demonstrates that the Zivs are not looking at
this case in a reasonable manner.
This never-ending dispute involves a tree and a fence. The matter was tried and a judgment
issued. However, the parties had strong
disagreements as to implementation and as to whose fault it was that the orders
were not fully implemented. This court
inherited the dispute when it took over Department R. Despite a series of hearings where the court
believed it had issued sufficient orders to have the case ended, it never
ended. The Zivs claim that Illulian will
not obey prior orders; Illulian claims that he keeps trying to build the fence
as demanded but can get no cooperation from the Zivs. The Zivs say that they are fully cooperating
but Illulian will not do the job properly.
Finally, the court appointed Judge Horne (Ret.) as a 639 referee to make
a report and recommendations on the outstanding issues. Judge Horne held hearings and visited the
property at issue. On September 25,
2024, he submitted his report. The
referee concluded that the first of the three disputes—that concerning the Rear
Yard Fence—has been resolved by agreement and will be constructed from the
Zivs’ carport to the garages at the rear of the property. Although the Zivs questions this, the court
believes that the referee, who was in a position to hear from the parties
directly, has properly stated the resolution.
The second issue is the palm tree.
The referee concluded that the Zivs’ statement as to problems with
Illulian’s efforts in this regard are insufficient. The referee suggested the appointment of an
arborist to conduct a survey and measure the distance that the tree sits from
the Zivs’ property line. The referee
suggested that the Zivs’ decision to continue the dispute without a reliable
measurement of any encroachment has resulted in an “enormous, unnecessary
expense to the parties and the Court.”
The referee recommended that the court consider imposing sanctions
against the Zivs for that conduct. The court
has considered the matter and believes that the appropriate resolution for all
concerned is to let the matter end and end now as to the tree. If there is some encroachment, then there
is. It is minor at worst, and the matter
has taken up far too much time as it is.
The third issue was the carport, and that is the fence
issue. Judge Rosenberg—who issued the
original order on July 25, 2017—said that the fence must be built on the
Illulian property entirely because that was the only way to avoid having the
fence touch or encroach on the Zivs’ carport.
The Zivs created a plot plan to show how that would look. According to the plan, each post requires a 10
inch diameter concrete footing that can be built to come up to the carport’s
edge. That will cross the property line
by a half inch, resulting in a total 9.5 inch encroachment on the Illulian
property for the length of the carport, which in turn translates to 11 square
feet of Illulian property needed to build the fence. The order would not compensate the Illulians
for that taking. The referee also noted
that the court had ordered the Zivs to retain an expert to determine the
placement of the fence. The fence was to
be placed on the actual lot line at the mid-point. Lowes was to provide estimates. It prepared a report dated 6/30/23 with an
estimate of about $7585.49. Illulian
signed the contract in open court. It is
unclear if the ficus trees will need to be removed. The referee recommended having Lowes go
forward and start securing the needed permits.
In response to this third issue, the Zivs stated that the
referee erred as to the removal of the ficus trees. The Zivs state that in fact Lowes did require
removal. The Zivs also state that
Illulian did not sign the Lowes contract but rather that it was rejected and
that Illulian’s son caused Lowes to walk off the job. The Zivs also assert that the referee’s
recommendation is in contradiction of the court’s orders but rather that the
current contract is for a one-sided fence that encroaches onto plaintiffs’
carport.
Illulian basically states that the Zivs have been
unreasonable and petty. Illulian wants
the Zivs, as a penalty, to bear the costs of going forward and to end the
matter.
The court agrees with Illulian to the extent that it is time
to end the case. To that end, the court
is inclined to order that the Lowes proposal be followed and the fence
built. If the ficus trees need to be
removed, then they will need to be removed.
The Illulians have already paid the Zivs $10,000, so the first $10,000
of expenses will come out of that.
Anything else will be paid 50/50.
The parties may reach a different resolution if they wish, but if they
do, it must be in writing. The court has
in the past suggested that this seemingly endless fight is one that has drained
both parties as well as use precious judicial resources. It is time to end the matter and move
on. The fence will be built as the court
directed—with the as close to the mid-point of the property line as
possible. If the total cost is less than
the $10,000 already paid, so be it; the court is not ordering a refund. However, the court suspects that by the time
this is over, the cost will approximate the $10,000 pretty closely, which means
that the Illulians will have paid the entire cost. Anything further should be equally
borne. There are a lot of issues going
on in the world right now. With the
wildfires rendering large numbers of Angelenos homeless, we should all be
grateful for what we have. With certain
parts of the world engulfed in war, we might all try to be a little bit slower
about waging war in our own back yards (or front yards). Alternatively, if no one wants the fence, the
court is happy to live with a resolution in which the fence is just not built,
which frankly might be better for all concerned.
The court is aware that the Zivs filed another document yesterday,
even though Illulian’s response was filed on January 17, 2025. Illulian responded yesterday as well. The court is ignoring both of those filings
as untimely. Neither has been read nor
will either be considered.