Judge: Michael E. Whitaker, Case: 22SMCV01860, Date: 2024-12-04 Tentative Ruling

Case Number: 22SMCV01860    Hearing Date: December 4, 2024    Dept: 207

TENTATIVE RULING

MOTION

On October 14, 2022, Plaintiff Noshin Khobian as Trustee of JNK Family Trust (“Plaintiff”) filed a verified complaint against Defendants Morteza Farzadmehr, both individually and as Trustee of Progressive Trust and Shahla Farzadmehr Delijani (“Defendants”) alleging three causes of action for (1) negligence; (2) nuisance; and (3) trespass related to property damage caused by a Ficus tree that grew between the parties’ adjacent properties.

On August 6, 2024, the Court granted summary judgment in Defendants’ favor, finding that Defendants met their initial burdens of production and persuasion that the trunk of the Ficus tree sits entirely on Plaintiff’s property and that none of the other trees on Defendants’ property caused or contributed to the damage to Plaintiff’s property, and Plaintiff did not raise any triable issues of material fact.

Defendants now move to recover $137,491.45 in attorneys’ fees and reasonable expenses pursuant to Code of Civil Procedure section 2033.420 based on Plaintiff’s failure to admit that the Ficus tree was located on Plaintiff’s property.  Plaintiff opposes the Motion and Defendants reply. 

REQUESTS FOR JUDICIAL NOTICE

Defendants request judicial notice of the following:

Exhibit A: The Verified Complaint in this Action

Exhibit B: Plaintiff’s Ex Parte Application for Mandatory Injunction

Exhibit C: Minute Order dated March 14, 2023

Exhibit D: Minute Order dated August 6, 2024

Exhibit E: Order dated August 22, 2024

Exhibit F: Judgment on Complaint after Granting Defendants’ Motion for Summary Judgment as to Complaint entered on August 22, 2024

Exhibit G: Stipulation and Order Regarding Ultimate Facts and Legal Issues

Plaintiff requests judicial notice of the following:

Exhibit 12: Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Complaint

Exhibit 13: Notice of Ruling on Defendants’ Demurrer

Exhibit 14: Plaintiff’s Ex Parte Application for Mandatory Injunction

Exhibit 15: Minute Order on Plaintiff’s Ex Parte Application for Mandatory Injunction

Exhibit 16: Defendants’ Notices of Motion to be Relieved as Counsel

Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because all of these Exhibits are part of the Court’s record for this case, the Court may take judicial notice of them.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

Accordingly, the Court takes judicial notice of the existence and filing of the requested Court records, and the truth of any results reached, but not the truth of any hearsay allegations contained therein.

LEGAL STANDARD

            Code of Civil Procedure section 2033.420 provides:

(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.

(b) The court shall make this order unless it finds any of the following:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

(2) The admission sought was of no substantial importance.

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.           

In Brooks v. American Broadcasting Co., the appellate court outlined a non-exhaustive list of important factors to consider in determining whether the party’s denial of an RFA was reasonable. 

“[I]f a party denies a request for admission (of substantial importance) in circumstances where the party lacked personal knowledge but had available sources of information and failed to make a reasonable investigation to ascertain the facts, such failure will justify an award of expenses.”  (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 510 (hereafter Brooks).) 

“The degree to which the party making the denial has attempted in good faith to reach a reasonable resolution of the matters involved is also an appropriate factor to be weighed. For example, in at least two federal cases the parties making denials of requests for admission had offered to stipulate to the matters requested under reasonable conditions, but the parties propounding the requests had refused the proffered stipulations. In those circumstances, it was later held that there had been good reasons for the denials.”  (Brooks, supra, 179 Cal.App.3d at p. 510.) 

“Sometimes a party justifiably denies a request for admission based upon the information available at the time of the denial, but later learns of additional facts or acquires information which would have called for the request to be admitted if the information had been known at the time of the denial. If such a party thereafter advises the party that propounded the request for admission that the denial was in error or should be modified, a court should consider this factor in assessing whether there were no good reasons for the denial.”  (Brooks, supra, 179 Cal.App.3d at p. 510.) 

“Finally, in considering this issue, a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.”  (Brooks, supra, 179 Cal.App.3d at p. 511.)

In Orange County Water Dist. v. The Arnold Engineering Co., the appellate court further elaborated on what constitutes a good faith belief that a party will prevail.

“A party's reasonable belief must be grounded in the evidence; it cannot be based merely on ‘hope or a roll of the dice.’ ”  (Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 116 (hereafter Orange County).)  “It is also not enough for a party making the denial to ‘hotly contest’ the issue; instead, there must be some reasonable basis for contesting the issue in question before sanctions can be avoided.”  (Ibid.)  “Indeed, “the mere fact [that a party] presented evidence at trial is not an automatic justification for denial of the requests. Rather, the issue is whether, in light of that evidence, [the party] could reasonably believe they would prevail.”  (Ibid.)

“On the other hand, ‘[e]xpenses of proving disputed facts which an opposing party denies in response to a request for admission are not recoverable simply because the party promulgating the request prevails at trial.’”  (Orange County, supra, 31 Cal.App.5th at p. 116 (quoting Brooks, supra, 179 Cal.App.3d at p. 513).)

In Stull v. Sparrow (2001) 92 Cal.App.4th 860 and in Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, costs were not awarded because the denying party conceded the issue prior to trial, obviating the need to prove the issue at trial.  It did not matter that the propounding party expended fees to prepare the issue for trial, because the parties did not actually have to try the subject issue.

ANALYSIS

On January 4, 2023, Defendants propounded the following requests for admission (“RFA”) on Plaintiff:

Request No. 1 – Admit that the FICUS TREE [refers to the Ficus Benjamina tree described in paragraph 11 of YOUR COMPLAINT and which is one of the basis for YOUR ACTION against DEFENDANTS] is on YOUR property.

Request No. 2 – Admit that the FICUS TREE YOU contend in YOUR COMPLAINT has cracked YOUR border wall is on PLAINTIFF’S PROPERTY.

Request No. 3 – Admit that the FICUS TREE YOU contend in YOUR COMPLAINT has lifted the foundation of YOUR border wall is on PLAINTIFF’S PROPERTY.

Request No. 4 – Admit that the FICUS TREE YOU contend in YOUR COMPLAINT has damaged [sic] the foundation of YOUR house is on PLAINTIFF’S PROPERTY.

Request No. 5 – Admit that the FICUS TREE is [sic] encroaching on the DEFENDANTS’ PROPERTY.

Request No. 9 – Admit that when YOU purchased PLAINTIFF’S PROPERTY the trunk of the FICUS TREE was entirely on PLAINTIFF’S PROPERTY.

Request No. 12 – Admit that DEFENDANTS have not performed any acts that interfere with YOUR possessory interest in PLAINTIFF’S PROPERTY.

Request No. 13 – Admit that DEFENDANTS have not performed any acts that deprive YOU of the reasonable use and enjoyment of PLAINTIFF’S PROPERTY.

(Ex. 5 to Pugh Decl.)

In response to RFA No. 1, Plaintiff admitted in part and denied in part, responding, “Part of the tree in [sic] the responding party’s property while the other part is in the propounding party’s property.”  Plaintiff denied the rest of the RFAs outlined above.  (Ex. 6 to Pugh Decl.)

Defendants subsequently prevailed on their Motion for Summary Judgment.  In so holding, the Court explained, “Defendants have met their [initial burdens of] production and persuasion that they owed no duty to maintain the tree or abate the nuisance, and that they did not commit trespass, because the Ficus tree sits entirely on Plaintiff’s property, except for the roots and branches that have encroached upon Defendants’ property” that “Azarmy’s statement as set forth in paragraph 7 of his declaration: “are partially located in each property’ is not competent evidence” but “even if Azarmy’s statement is competent evidence, Plaintiff has not satisfied her burden of creating a triable issue of material fact. That the ‘trunk and roots’ of the Ficus tree ‘are partially located in each property, but the majority of it is on ‘Plaintiff’s property is consistent with Defendants’ expert evidence that the trunk is located entirely on Plaintiff’s property, and some of the roots and branches have encroached upon Defendants’ property.”  (Minute Order, Aug. 6, 2024.)

Defendants contend that Plaintiff’s denials were not warranted when made in late January/early February 2023, because in July 2022, Plaintiff obtained a survey from expert Cyrus Azarmy (which Plaintiff submitted in opposition to Defendants’ Motion for Summary Judgment), indicating that the majority of the trunk and roots of the Ficus tree are located on Plaintiff’s property.  (See Azarmy Decl. in support of Opposition to MSJ.)

Further, Plaintiff obtained a survey in August 2022 confirming that the center and bulk of the Ficus trunk was on Plaintiff’s property, next to a brick plaster on Plaintiff’s property that was 1.43 feet from the property line, and had grown around an iron fence on Plaintiff’s property and protruded onto Defendants’ property.  (Ex. 1 to Pugh Decl.)

After Plaintiff filed suit, Defendants also retained a surveyor who confirmed that the trunk of the Ficus tree was on Plaintiff’s property, and some buttresses and branches crossed the property line into Defendant’s property.  (Ex. 2 to Pugh Decl.)

Defendants also retained an arborist who similarly confirmed the Ficus tree was planted on Plaintiff’s property, and as it grew, some of its stems and buttresses had encroached onto Defendants’ property over time.  (Ex. 3 to Pugh Decl.)

On August 28, 2024, the Parties stipulated that the Ficus tree was at all times owned by Plaintiff and located on Plaintiff’s property.  (RJN Ex. G.)

In Opposition, Plaintiff argues she was justified in partially admitting and partially denying RFA No. 1 because the diagram of the tree Azarmy drew depicted the tree as primarily on Plaintiff’s property, but also slightly on Defendants’ property. 

While the answer indicating the tree was partially on Plaintiff’s property and partially on Defendants’ property was technically true when made, by virtue of the roots and branches growing to encroach upon Defendants’ property, Plaintiff does not address her denials of the remaining RFAs Defendants have identified. 

Further, the issue at the crux of Plaintiff’s lawsuit was that Defendants were primarily responsible for the tree that grew between the properties, and the resulting damage to Plaintiff’s property.  Plaintiff should have reasonably deduced, by virtue of the surveys Plaintiff obtained prior to filing suit, that this was not the case, by virtue of the vast majority of the tree being located on Plaintiff’s side of the property line.  As such, Plaintiff has not demonstrated that her denials of the RFAs were made in good faith based on the information available to Plaintiff at the time they were made. 

Plaintiff also argues that the attorneys’ fees requested by William Steckbaur should be reduced by $38,896, for excessive hours billed; billing for work performed on behalf of the Farzadmehrs as cross-complainants as opposed to defendants; billing related to Defendants’ unsuccessful demurrer and opposition to Plaintiff’s temporary restraining order; and ex parte application and motion to withdraw as counsel.

Plaintiff also argues that the attorneys’ fees requested by Saul Reiss and Fay Pugh should be reduced by $40,222 for excessive billing rates; excessive billing hours; work performed on behalf of the Farzadmehrs as cross-complainants as opposed to defendants; unidentified calls, conversations with “CITY,” and unidentified meet and confers.

Defendants argue in reply that because Plaintiff knew that the Ficus tree was, for the most part, on Plaintiff’s own property when Plaintiff filed the verified complaint, Defendants should be entitled to all fees they incurred litigating this matter.

Section 2033.420 provides that where a party unreasonably denies an RFA, the other party is entitled to recover its “reasonable expenses incurred in making that proof, including reasonable attorney's fees.”  Thus, the Court agrees that fees incurred researching/drafting the demurrer, and efforts to withdraw as counsel were not reasonably incurred to factually prove that the Ficus tree was located on Plaintiff’s property.  Further, because Defendants prevailed in their motion for summary judgment as to Plaintiff’s complaint, the Court similarly agrees that fees incurred researching/preparing the Defendants’ cross-complaint were not reasonably incurred pursuant to Section 2033.420.

However, the fees incurred successfully opposing Plaintiff’s application for an injunction were related to Defendants’ efforts to preserve evidence to prove the actual location of the tree in relation to the boundary line, and are therefore recoverable.

Upon review of the highlighted entries to William Steckbauer’s requested time, the Court does not find any hours were otherwise excessively billed.

With regard to Saul Reiss and Fay Pugh’s time, although Reiss charges $900 per hour and Pugh charges $550 per hour, declarations demonstrate that Reiss has 52 years’ experience practicing litigation in California (Reiss Decl. ¶ 3), Pugh has 25 years of litigation experience in California (Pugh Decl. ¶ 12) and that the rates reflect the amounts actually charged to the client.  Therefore, the Court does not find that the requested rates are unreasonable.

Similarly, the Court finds that 2.58 and 2.38 hours spent by Pugh and Reiss respectively on “Zoom call” on 2/1/2024 and 2 hours Reiss spent on “Zoom call” on 5/31/24, without more information, appears excessive. 

Otherwise, the Court does not find any of the highlighted entries to be excessive.  In particular, the Court does not find communications and discovery involving the City, which presumably refers to the City of Beverly Hills where the property is located, to be unreasonable.

CONCLUSION

            For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion for attorneys’ fees pursuant to Code of Civil Procedure section 2033.420.  Defendants are generally entitled to attorneys’ fees pursuant to Section 2033.420, in an amount that shall be reduced by the entries identified by the Court.

            Specifically, the Court finds that Defendants may not recover fees incurred on the following:

(1)   researching/drafting the demurrer

(2)   efforts to withdraw as counsel

(3)   researching/preparing Defendants’ cross-complaint

(4)   the 2.58 and 2.38 hours Pugh and Reiss spent, respectively, on “Zoom call” on 2/1/2024

(5)   the 2 hours Reiss spent on “Zoom call” on 5/31/24

            Defendants shall file and serve a proposed Order in conformance with the Court’s ruling on or before December 18, 2024.  Thereafter, Plaintiff may file and serve any objections to the proposed Order on or before December 31, 2024.

            Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  December 4, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court