Williams v. Zerlin
Filed 7/17/12 Williams v. Zerlin CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
KRISTEN M. WILLIAMS et al.,
Plaintiffs,
Cross-defendants and
Appellants,
v.
GARY K. ZERLIN,
Defendant,
Cross-complainant and
Appellant,
GARY K. ZERLIN
et al.,
Defendants, Cross-complainants and
Respondents.
2d Civil No.
B230300
(Super. Ct. No.
1306795)
(Santa
Barbara County)
Adjacent property owners
dispute the existence of an easement for ingress and egress over appellants'
property. Appellants assert that the
easement was extinguished by adverse possession. After a bench trial, the court granted
quieted title to the easement in favor of respondents and cross-complainants
finding that appellants had not established that their use of the easement was
hostile. Therefore, appellants did not
acquire the easement by adverse possession.
Appellants assert the trial court erred because the evidence establishes
adverse possession. They also assert
various procedural errors.
One of the respondents
appeals the amount of expert witness fees awarded by the trial court pursuant
to Code of Civil Procedure section 998.
We affirm the judgment for declaratory and injunctive relief and
quieting title in favor of respondents and affirm the order granting expert
witness fees.
Appellants Matthew and
Kristen Williams (collectively Williams) own a flag lot on Sea Ranch Drive in
Santa Barbara. The Williams' lot
includes a 40-foot by 300-foot strip of land running from the southern boundary
of their lot to Sea Ranch Drive (the driveway).
Respondents Gary Zerlin and James Vanyo own adjoining lots south of and
adjacent to Williams' parcel. The
driveway is bounded on the east and west by the Zerlin and Vanyo lots. Both Zerlin and Vanyo's lots have frontage on
Sea Ranch Drive. The three parcels were
created by subdivision in the early 1970's.
The grant deeds to the original purchasers of the Zerlin and Vanyo lots
contained an easement for ingress and egress over the driveway (the
Zerlin/Vanyo easement). The easements
location and extent of the easements were described by reference to a recorded
subdivision map.
The parcels changed
hands through the years. Vanyo purchased
his lot in 1974. Williams purchased
their lot in 2000. Zerlin purchased his
lot in 2009, from Mr. and Mrs. Klinger.
The Klingers had purchased the lot in 2001. No dispute concerning the existence or use of
the easement arose until 2003 when Williams repaved the driveway enlarging it
from approximately 10-12 feet to approximately 40 feet in width, enclosed it
with a six-foot high wrought iron fence and installed vehicular gates at both
the northern and southern ends. He also
installed pedestrian gates on the south, east and west sides of the
driveway.
Williams filed a
complaint for declaratory relief and quiet
title on April 17, 2009, after Vanyo refused to quitclaim his easement
rights to Williams. The complaint
alleged that the Zerlin/Vanyo easement was extinguished by adverse
possession. Both Zerlin and Vanyo filed
an answer and cross-complaint for declaratory relief, quiet title and
injunction.
In or about April 2010,
Williams began filing complaints with the City fire department about fire
hazards on the Zerlin and Vanyo properties.
From about June or July 2010, Williams began blocking access to the
easement by planting shrubs, installing additional fencing and parking cars in
the easement.
After Zerlin received a
notice from the City to remove vegetation from his lot or be subject to
citation, Zerlin filed a motion for preliminary injunction prohibiting Williams
from interfering with Zerlin's use of the easement area outside the fence and
gates to permit weed abatement on his property.
On August 17, 2010, the trial court issued a preliminary injunction
permitting Zerlin to remove the vegetation and fencing (other than the iron
fencing) if Williams failed to do so.
Zerlin and Vanyo made
several offers to compromise pursuant to Code of Civil Procedure section
998. None of them were accepted by
Williams and the case was tried by the court.
After eight days of testimony, the court issued a statement of decision
awarding declaratory relief and quieting title to the easement in favor of
Zerlin and Vanyo, finding that Williams had not established the Zerlin/Vanyo
easement was extinguished by adverse possession because the evidence failed to
show hostile use of the easement by Williams.
The judgment also restrained and enjoined Williams from interfering with
the use of the easement by Zerlin and Vanyo.
In addition, the judgment permitted Zerlin and Vanyo to remove (1) the
southerly vehicular access gates and pedestrian gate, (2) the gates and fences
on the east and west boundaries of the easements, and (3) plants, shrubs,
landscaping, berms and other obstructions on or around the east and west
boundaries of the easement which blocked reasonable access for ingress and
egress by Zerlin and Vanyo if Williams did not do so within 45 days of the date
of the judgment. The judgment also
prohibited Williams from installing landscaping or other types of improvements
which hindered, blocked or interfered with Zerlin and Vanyo's rights to
reasonable ingress and egress over the easement.
Williams filed a
petition for writ of supersedeas with this court on January 5, 2011. On March 23, 2011, we granted the petition
and stayed enforcement of the judgment.
On appeal, Williams
asserts that the Zerlin/Vanyo easement was extinguished or partially extinguished
by adverse possession, the court erred in ordering removal of the vehicular
gates and fences without an analysis of "unreasonable interference,"
the judgment is inconsistent with the statement of decision, and the trial
court entered judgment without providing Williams the statutory period to
object.
Williams Appeal
1. Adverse Possession
"'In an
action to quiet title based on adverse possession the burden is upon the
claimant to prove every necessary element:
(1) Possession must be by actual possession under such circumstances as
to constitute reasonable notice to the owner.
(2) It must be hostile to the owner's title. (3) The holder must claim the property as his
own under either color of title or claim of right. (4) Possession must be continuous and
uninterrupted for five years. (5) The
holder must pay all the taxes levied and assessed upon the property during the
period. [Citations.]'" (Preciado
v. Wilde (2006) 139 Cal.App.4th 321, 325.)
To establish
adverse possession, a claimant is required to show "acts of ownership
which proclaim to the world, and bring notice to the owner, that a right is
claimed in the land over which the claimant is seeking to exercise
dominion." (West v. Evans (1946) 29 Cal.2d 414, 417.) "'[A]n easement cannot be acquired or
extinguished by adverse use unless the party whose rights are affected thereby
has knowledge of the adverse nature of such use. This knowledge may be either actual or
constructive, resulting from notice either express or implied.'" (Gerhard
v. Stephens (1968) 68 Cal.2d 864, 903.)
At
trial the following evidence was adduced:
Testimony of Kelly Moore
Moore is a good friend of
Williams. He helped Williams install the
gates and fences in 2003. During the three-month period he worked on
the property, he did not observe Vanyo or any other neighbor on the
easement. He placed a common master key
lock on the pedestrian gates after he installed them. Subsequently, he noticed that the pedestrian
gate on the property line between the Williams and Zerlin lots was
unlocked. Williams told Moore that he
was constructing the fence and gates because he wanted to keep his dogs in his
property. Moore joked that "this
must be the most expensive dog run in the County of Santa Barbara." He did not observe any "no
trespassing" signs on either the east or west gate from 2003-2010.
Testimony of Matt Williams
Williams spoke to Vanyo on
two occasions. Vanyo told him he was not
paying maintenance fees for and was not interested in using the driveway. Williams did not speak to Mr. or Mrs.
Klinger, the prior owners of the Zerlin lot, at any time regarding the
easement.
Neither Vanyo nor Klinger
spoke to him about access through the vehicular gate and neither of them asked
him for the security code for the gate.
After installation of the gates and fence, he never observed Vanyo or
Klinger operating a vehicle on the driveway.
The reasons he constructed the gates and fence were for privacy,
aesthetics and security, to give his dogs a safe place to roam, and to define
his property lines.
On May 10, 2009, Williams
opened the vehicular gate at the south end of the driveway and removed the
locks from the pedestrian gates because he anticipated he might be evacuated
because of the Jesusita fire. The gates
were closed the following day.
The construction of the
gates and fence was finished on August 31, 2003, and his adverse possession
claim commenced on that date. Williams
installed the pedestrian gates to permit him access to the other side to do maintenance
on the fence and property. The gates
were locked at all times, but he did not have photographic evidence showing
locks on the gates prior to May 9, 2009.
He installed "no trespassing" signs on his property in 2003,
but had no photographic evidence of any signs prior to May 9, 2009.
Williams never observed
Klinger using the pedestrian gate and did not learn from any source that
Klinger or Vanyo used any portion of the driveway for any purpose at any time
he owned his property. He did not give either
Vanyo or Zerlin permission to use the driveway.
If they had asked for the security code to the vehicular gate, he would
have refused. Between 2003 through 2009
he was not trying to claim ownership of the easement to the exclusion of Vanyo
and Klinger/Zerlin.
Testimony of Kristin
Williams
She
testified that she became aware that Vanyo had an easement on their property
around the time they purchased the property.
She did not learn that Zerlin had an easement until 2009. In a conversation with Zerlin in 2009, she
asked if he would give up the easement, but he declined. After the pedestrian gates were installed in
2003, they were locked at all times, but she could not recall the dates the
locks were put on the gates. She also
did not know when the "no trespassing" signs were installed. She never told Vanyo or Klinger not to use
the easement. She never observed Klinger
or Vanyo on the driveway.
Deposition of Dr. James
Vanyo
name="_ftnref2" title="">[2]
He drove up the easement in 1974 when he bought the
property. After the fence and gates were
installed, he used the pedestrian gate near his property for access to the
easement to view his property for maintenance and weed abatement. He had no problem with Williams installing
the gates and fence. Williams told him
that he could have the code for the vehicular gate anytime he wanted it.
When
he purchased his lot, it was vacant. His
residence was built in 1977. He built a
driveway on the east side of his property and paved it. He did not recall whether Klinger ever drove
on the easement. The first time he saw
locks on the pedestrian gates was on May 22, 2009.
Testimony of Dr. Gary Zerlin
He
acquired title to his property on April 14, 2009. He was aware of the easement at the time of
purchase. After escrow closed, he learned
that his easement rights were being challenged.
He walked the property at least three times before escrow closed. He did not notice any no trespassing signs on
the fence or locks on any of the pedestrian gates. After close of escrow, he walked the property
again at the end of April 2009. He did
not see any locks on the gates. The
first time he saw locks on the gates was in May 2009.
The northeast part of his
lot is covered with brush. Only a
four-wheel drive vehicle could drive on that part of the lot. Not having easement rights over the driveway
lowered the value of his property because he did not have full access to his
lot to perform maintenance.
He was not provided with the
code to enter the vehicular gate. He
assumed he would contact Williams to gain access. He did not question his right to use the
easement because it was contained in his grant deed. Neither he nor his wife had ever driven or
walked inside the fenced area enclosing the driveway. He talked to Vanyo after close of escrow. Vanyo told him that the west pedestrian gate
was installed for the benefit of the prior owners of his lot.
Testimony of Kenneth James
Wilson
He
is a licensed surveyor. He surveyed the
boundaries of the driveway. The
northerly portion of the fence encroaches about four inches onto the Vanyo
property. At the southern end of the
driveway, near Sea Ranch Drive, the fence is on the Williams property. The fence is on the Zerlin property from
halfway up the easement to its northern border.
The encroachment varies from three to five inches.
Klinger
is the prior owner of the Zerlin lot. He
acquired the lot in 2001 and began residing there in 2004. When he returned to the property in 2004, he
was shocked and angry when he saw the gate and fences. He did not take any action at that time
because he believed he had easement rights over the driveway contained in his
deed. He believed Williams was obligated
to give him access to the easement.
He
had a discussion with Matt Williams in the summer of 2004. They met at the west pedestrian gate. Williams told him the fence was for a dog
run. Williams did not tell him the fence
was to keep him out. He assumed the
easement was available for his use. In
2004 or 2005, he spoke to Kristin Williams.
He told her that he might want to use the easement to connect with his
driveway. He did not make use of the
easement at that time because he could not afford the project. Mrs. Williams told him that he would be
responsible for half the maintenance on the driveway if he did go forward with
the project.
He
did not see no trespassing signs or locks on the gates from 2004 through
2009. During that time, he did not
believe Williams was trying to take away his easement rights. He used the west pedestrian gate on three
occasions in 2008 or 2009 to retrieve his animals. He used the easement between 2004 and 2009 to
do weed abatement on his property. He
did not have the code to open the vehicular gate but assumed he would have
access if he requested it.
Testimony of Rick Hoffman
He is an engineering geologist for the County of Santa
Barbara. He reviewed three alternative
access corridors—the existing driveway, an alternative along the eastern edge
of the Zerlin lot, and an alternative through the Vanyo property. He found all of them geologically
suitable. However, because of the
terrain of the property, extensive grading would need to be done at
considerable expense to develop alternatives to the existing driveway.
Supports Trial Court's Finding of No Hostile Use
very detailed 52-page statement of decision.
The court found that the testimony of Klinger, Zerlin and Vanyo was more
credible than that of Williams concerning the nonexistence of no trespassing
signs and locks on the gates prior to May 2009.
From this evidence, the court found that Williams had not established
hostile use of the easement for five years sufficient to establish adverse possession.
The
trial court correctly concluded that the enclosure of the easement with gates
and fences without more is insufficient to establish adverse possession. (See, e.g., Clark v. Redlich (1957) 147 Cal.App.2d 500, 507 ["under the
circumstances of this case, whether the fencing and cultivation of the servient
estate constituted acts of adverse possession was a question of
fact"].) Klinger, Zerlin and Vanyo
testified that, until May 2009, when Williams placed locks on the pedestrian
gates and no trespassing signs on the fences, they thought, based on
conversations with Williams, that the fence and gates were to enclose a dog
run. Williams' intent to build a dog run
was reiterated by a close friend of Williams who helped in building the fence. The trial court could reasonably conclude
that Zerlin and Vanyo had no notice that the fences and gates were an attempt
by Williams to extinguish their easements by adverse possession. (See
Clark, at p. 508 ["Although certain uses of a servient tenement by
their very nature may constitute notice of an adverse claim, [citation] other
uses thereof may appear to be only the reasonable exercise of proprietary
rights, and would not be the basis for an implication of such notice"].)
Whether
the elements of adverse possession have been met is a question of fact. (Sevier
v. Locher (1990) 222 Cal.App.3d 1082, 1087.) Where, as here, conflicting evidence was
submitted and the court based its decision on the credibility of witnesses, we
are powerless to reverse that decision.
As we stated in Preciado v. Wilde,
supra, 139 Cal.App.4th at pages 326-327:
"'In a quiet title action the plaintiff must prove his title in
order to recover.' [Citation.] . . .
[¶] [Plaintiffs] did not bear their
of title or color of title. Triers of
facts exclusively decide the credibility of witnesses."
Williams asserts
that a partial extinguishment of the easement by adverse possession occurred
because there was no testimony that anyone other than Williams used the
easement for vehicular purposes. The
assertion is without merit. "[A]n
easement created by grant is not lost by mere nonuse, no matter how long . . .
." (Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d
1374, 1384.) Zerlin and Vanyo acquired
their easements by express grant. The
easement was for ingress and egress.
There is no language of limitation in the grant that ingress and egress
was limited to pedestrian access.
Substantial evidence supports the trial court's decision that the
easements were not extinguished by adverse possession.
3. Adequacy of Statement of Decision and
Consistency with Judgment
Williams
challenges the adequacy of the statement of decision, arguing that it does not
contain findings that the fence and gates constituted "unreasonable
interference" with use of the easement by Zerlin and Vanyo and, thus,
permitting removal of the fences and vehicular gate was error. We review this claim of error under an abuse
of discretion standard. (Hernandez v.
City of Encinitas (1994) 28 Cal.App.4th 1048, 1077-1079.)
Code of Civil
Procedure section 632 requires a trial court to issue a statement of decision
explaining the factual and legal basis for its decision upon the request of any
party appearing at trial. The statute
provides in relevant part: "The
court shall issue a statement of decision explaining the factual and legal
basis for its decision as to each of the principal controverted issues at trial
upon the request of any party appearing at the trial."
"In
rendering a statement of decision under Code of Civil Procedure section 632, a
trial court is required only to state ultimate rather than evidentiary facts;
only when it fails to make findings on a material issue which would fairly
disclose the trial court's determination would reversible error result. [Citations.]
Even then, if the judgment is otherwise supported, the omission to make
such findings is harmless error unless the evidence is sufficient to sustain a
finding in the complaining party's favor which would have the effect of
countervailing or destroying other findings.
[Citation.]" (Hellman v.
La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)
The trial court
issued a detailed statement of decision that sets forth the factual and legal
bases for its rulings. The trial court
was not obliged to address every question raised by defendants in their request
for a statement of decision, nor was the court obligated to make an express
finding of fact on every disputed factual matter. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 763.) The court's refusal to do so does not render
the decision inadequate. (Hellman v.
La Cumbre Golf & Country Club, supra, 6 Cal.App.4th at p. 1230.)
the statement of decision does contain findings supporting removal of the
vehicular gate and fences, as follows:
"Balancing of Hardships
[¶] 38. The prejudice to Vanyo and Zerlin by
terminating the easements does significantly outweigh any prejudice to the
Williams by allowing Vanyo and Zerlin access.
[¶] 39. The topography of the Vanyo and/or Zerlin
properties does render it significantly difficult to access the Northern portions
of their respective properties without the use of the easement. [¶]
40. The costs and burdens
associated with the development of alternative driveways to the Northern
portions of the Vanyo and Zerlin properties do outweigh the costs and burdens
placed upon the Williams' property by allowing access over the existing
easements."
The judgment states in
relevant part: "This Court further
finds and determines that both Vanyo and Zerlin are entitled to have the
landscaping, gates and fences removed so that Zerlin and/or Vanyo and their
respective assigns, transferees and heirs will have reasonable access for ingress
and egress to the Vanyo Property and/or the Zerlin Property."
statement of decision complies with section 632 and is consistent with the
judgment.
Lack of Opportunity to Object to Proposed Judgment
to the conclusion of trial, the court requested that the parties submit
questions to be addressed in the court's statement of decision. The parties did so on November 30, 2010. After trial concluded, the court issued a
tentative decision on December 7, 2010.
The court requested that Zerlin's counsel prepare a proposed
judgment. Counsel submitted a proposed
judgment on December 13, 2010.
Thereafter, Williams hired a new attorney who filed a document entitled "Request
for Statement of Decision and Proposals Re: Tentative Decision" containing
a request for findings of fact and conclusions of law on 48 controverted issues
and three "Proposals for Matters Not Included in Tentative
Decision." The court denied the
request and issued its statement of decision on December 22, 2010. On December 22, 2010, Williams filed
objections to the proposed judgment. On
December 28, 2010, Zerlin's counsel lodged a proposed judgment after
trial. On January 4, 2011, Zerlin's
counsel lodged yet another proposed judgment after trial. Williams filed objections to the proposed
judgment and execution of the proposed judgment on January 5, 2011. On that date, the court filed its judgment
after trial.
Williams asserts the
trial court erred because it filed its judgment without permitting Williams 10
days to object to the proposed judgment pursuant to California Rules of Court,
rule 3.1590(j). The contention is
without merit. The above chronology
shows that Williams had ample opportunity to, and did, object to the December
13 proposed judgment. The differences between
the December 13, 2010, and the January 4, 2011, proposed judgment are
minor. The December 13 proposed judgment
states that "Vanyo and/or Zerlin have the right to and may remove and
dispose of all the gates, fences and obstructions
on or around the East and West boundaries of the Zerlin/Vanyo Easements which
obstruct, block or hinder Vanyo's and/or Zerlins' reasonable access to the
Zerlin/Vanyo Easements for the benefit of the Vanyo Property and/or the Zerlin
Property." (Italics
added.) The January 4 proposed judgment
identifies the "obstructions" of which the court permitted removal in
the December 13 proposed judgment, i.e., "plants, shrubs, landscaping,
asphalt/concrete berms" and those whose removal are excepted from the injunction,
i.e., "a) the drainage swale near Sea Ranch Drive; b) the trash/electrical
enclosure also near Sea Ranch Drive; and c) the decorative block and mailbox
structures which abut and/or are near Sea Ranch Drive." The January 4 proposed judgment also
prohibits Williams from obstructing or interfering with use of the easement by
Zerlin and Vanyo in the future. These
additional terms in the January 4 judgment are minor and merely explanatory of
the term of the phrase "obstructions . . . which obstruct, block or hinder
. . . reasonable access" in the December 13 judgment. Moreover, a court granting equitable relief
has the power to award additional relief to afford complete relief to the
parties. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 901.)
Zerlin Appeal
Zerlin requested
$80,679.80 for expert witness fees and other costs incurred in the action
pursuant to Code of Civil Procedure section 998, subdivision (c). The trial court awarded fees in the amount of
$18,320.35. The trial court reduced the
amount of expert witness fees finding that Zerlin was both a defendant and a
cross-complainant. As a
cross-complainant, Zerlin's entitlement to expert witness fees was limited to
those incurred after the date of his last offer to compromise. The court was aware, however, that it could
award expert witness fees incurred by Zerlin as a defendant whether incurred
before or after the making of the offer to compromise. (Id.
subd. (c)(1); Regency Outdoor
Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 532.)
Code of Civil Procedure Section 998 and Expert Witness Fees
"Code of Civil
Procedure section 998 is designed to encourage the settlement of lawsuits
before trial. (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280.) Pursuant to section 998, '[n]ot less than 10
days prior to commencement of trial or arbitration,' a party in a case 'may
serve an offer in writing upon any other party to the action to allow judgment
to be taken or an award to be entered in accordance with the terms and conditions
stated at that time.' (Code Civ. Proc.,
§ 998, subd. (b).) If the party to whom
the offer is extended accepts the offer, it is filed with the clerk and
judgment is entered accordingly. (
offer made by a defendant is not accepted and the plaintiff fails to obtain a
more favorable judgment or award, the plaintiff shall not recover his or her
postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding
other than an eminent domain action, the court or arbitrator, in its
discretion, may require the plaintiff to pay a reasonable sum to cover costs of
the services of expert witnesses, who are not regular employees of any party, actually
incurred and reasonably necessary in either, or both, preparation for trial or
arbitration, or during trial or arbitration, of the case by the
defendant.' (Id., subd. (c)(1).)
Furthermore, 'If an offer made by a plaintiff is not accepted and the defendant
fails to obtain a more favorable judgment or award in any action or proceeding
other than an eminent domain action, the court or arbitrator, in its
discretion, may require the defendant to pay a reasonable sum to cover
postoffer costs of the services of expert witnesses, who are not regular
employees of any party, actually incurred and reasonably necessary in either,
or both, preparation for trial or arbitration, or during trial or arbitration,
of the case by the plaintiff, in addition to plaintiff's costs.' (Id., subd.
(d).)" (Regency Outdoor Advertising, Inc. v. City of Los Angeles, supra, 39
Cal.4th at pp. 528-529.)
Zerlin's Offers to Compromise
During the pendency of
the litigation Zerlin made five offers to compromise pursuant to section
998. None were accepted. In the first offer, made on February 2, 2010,
Zerlin agreed to pay a prorata portion of easement maintenance fees pursuant to
Civil Code section 845 if Williams gave him keys to unlock the gates.
In the second offer made
on February 11, 2010 (first amended offer to compromise), Zerlin wanted to
retain easement areas outside the easterly, westerly and southerly fences and
gates. This offer was followed by a
"second amended offer to compromise" on March 5, 2010, and a third amended
offer to compromise was made on April 30, 2010.
The court found these offers to be ambiguous and unenforceable.
A fourth offer to
compromise was made on October 12, 2010, in which Zerlin offered to relinquish
certain portions of the easement as shown on a map. The trial court found the fourth offer to
compromise reasonable and unambiguous.
The trial court's
judgment in favor of Zerlin awarding him all the relief he requested in his
cross-complaint was unquestionably more favorable than any of Zerlin's offers
to compromise that were rejected by Williams.
The Trial Court's Expert Witness Fee Award
The court exercised its
discretion in choosing to limit the
award of expert witness fees to those incurred after the October 12, 2010,
offer to compromise. The court
reasoned: "If Zerlins were merely
defendants, the question of whether to limit recovery of expert witness fees to
pre-offer fees would be academic. The
second sentence of CCP § 998(c)(1) does not include the limitation in the first
sentence—that the plaintiff 'shall pay the defendant's costs from the time of
the offer.' The California Supreme Court has held that,
when the Legislature amended the statute in 1997 and deleted from the second
sentence of (c)(1) the language 'allowing the discretionary award of costs
"from the date of filing of the complaint,"' it did not intend to
limit defendants to post-offer expert witness fees. Had the Legislature so intended, 'it would
have said so more clearly, rather than retain language that defined the scope
of allowable expert fees by their connection to trial.' (Regency
Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal.4th 507, 533
(2006).) Therefore, when a plaintiff
rejects a defendant's offer, the plaintiff is at risk of a discretionary award
of all expert witness fees, not just those incurred after the offer.
"But Zerlins are
also 'plaintiffs' in the context of their cross-complaint. (See CCP § 426.10(b).) When a plaintiff's CCP § 998 offer is not
accepted and the defendant fails to achieve a better result at trial, the court
'may require the defendant to pay a reasonable sum to cover
expert witnesses. . . . ' (CCP § 998(d)
[italics added].)
"The court has
discretion to award no expert witness fees.
Necessarily, it also has discretion to limit the amount of expert
witness fees. Because of Zerlins' dual
role as both defendants and plaintiffs, the court will exercise its discretion
to limit the amount of expert witness fees to pre-offer fees. Indeed, the briefing of the parties indicates
that they anticipate that approach."
The Trial Court Had Discretion to Limit the Fee Award
Whether a defendant should be
awarded expert witness fees and the amount of those fees are matters within the
discretion of the trial court. (
Cal.App.4th 49, 54-55.) The trial court
understood that it could have assessed all of the expert witness fees claimed
by Zerlin as a defendant, or a lesser sum if it chose to view Zerlin as a
plaintiff prevailing on its cross-complaint.
With these variables in mind, it chose to limit the award to those
expert witness fees incurred after the filing of the last statutory offer to
compromise. Limiting the amount of fees
to those incurred after the last offer to compromise is not an abuse of
discretion. (See, e.g.,
108 Cal.App.4th 154, 157 [prior settlement offer is extinguished by subsequent
settlement offer to the same party].)
Williams' argument that the
cost-shifting provisions of section 998 apply only in cases involving monetary
relief is without merit. Our decision in
Linthicum v. Butterfield (2009) 175
Cal.App.4th 259, is instructive. In that
case we applied section 998 in a case involving no money damages but seeking,
as here, equitable relief and quieting title to an easement. The trial court quieted title to an equitable
easement in favor of defendants.
In addressing the defendants'
entitlement to expert witness fees pursuant to section 998, we said: "[S]ection 998 provides a sanction
against the rejecting offeree unless the offeree obtains a more favorable
judgment than the offer. The question
therefore is not whether the [defendants] as offerors obtained a more favorable
judgment than their offer. Instead, the
question is whether [plaintiff] as the rejecting offeree obtained a judgment
more favorable than the offer." (
Cal.App.4th at p. 270.)
DISPOSITION
The judgment for declaratory
and injunctive relief and quieting title in favor of respondents is
affirmed. The order granting expert
witness fees to Zerlin is affirmed.
The stay is dissolved. Respondents shall recover costs on
appeal.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P.J.
YEGAN,
J.
Thomas
P. Anderle, Judge
Superior
Court County of Santa Barbara
______________________________
Miller Starr Regalia,
Kenneth R. Styles and Brian D. Shaffer for Appellants Williams.
Hall & Bailey, John
L. Bailey and Shannon Duane for Respondents Zerlin et al., and Appellant Gary
K. Zerlin.
McCarthy & Kroes and
R. Chris Kroes for Respondent Vanyo.
We consider the evidence most favorable to
Zerlin and Vanyo under the rule that a judgment is presumed correct, and all
presumptions must be indulged in favor of its correctness. (In re
Marriage of Arceneaux (1990) 51
Cal.3d 1130, 1133.)
name="_ftn2" title="">[2]
Dr. Vanyo died prior to trial and his deposition
testimony was read during the trial.
