Berkman v. City of
Hill
Filed 9/28/10 Berkman v. City of Morgan Hill CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
JUDITH BERKMAN, et al.,
Plaintiffs and
Appellants,
v.
CITY OF MORGAN
HILL, et al.,
Defendants/Cross-Complainants
and Appellants,
v.
TORBEN RASMUSSEN,
Cross-Defendant
and Appellant.
H032205
(Santa Clara
County
Super. Ct.
No. CV031021)
Following a
bench trial, the court rejected the plaintiffs' complaint against the City of Morgan
Hill, as well as the City's cross-complaint against
Torben Rasmussen.[1] At issue here are two of the court's
post-trial orders: (1) the denial of
Rasmussen's motion for costs under Code of Civil Procedure section 2033.420,
and (2) the partial denial of the City's motion to tax Rasmussen's costs.
For reasons
explained below, we shall affirm the challenged orders.
BACKGROUND
I. Facts
The facts
that gave rise to the underlying litigation are set forth in detail in our
opinion in the companion appeal. We
shall describe them here only as necessary to our resolution of this case.
II. Procedural History
We briefly
summarize relevant aspects of the procedural history of this case.
A.
Pleadings
1. Complaint
In November
2004, the underlying action against the City was brought by plaintiffs Judith
Berkman, A. William Berkman, Marcia Schneider, Kenneth Schneider, and Ralph
Heron. The plaintiffs filed a first amended complaint in May 2005. Suing for inverse condemnation, tort, and
declaratory relief, plaintiffs asserted that the City was responsible for
damages from the overflow of a watercourse that runs through plaintiffs'
properties. The City denied the
assertions in the complaint.
2. Cross-Complaint
In June
2005, the City cross-complained against Rasmussen, who had altered the creek
bed while acting as a landscaper for the Berkmans. The City asserted claims against Rasmussen
for equitable indemnity, declaratory
relief, and third party tort. The
City brought its cross-complaint after Rasmussen's deposition disclosed that he
had deepened and widened the section of the creek on the Berkmans' property,
lined it with a fabric membrane, and added landscaping rocks. Rasmussen denied the allegations of the
cross-complaint.
B. Trial; Decision
In April
2006, the court conducted a seven-day bench trial. After extensive post-trial briefing, the
court rendered its decision in April 2007, finding for the City on the
complaint and for Rasmussen on the cross-complaint.
C. Post-Trial Cost Motions
The parties
brought a number of post-trial motions,
two of which are relevant here. In May
2007, the City brought a motion to tax Rasmussen's memorandum of costs. In June 2007, Rasmussen moved for costs of
proof, based on the City's denial of his requests for admission, pursuant to
section 2033.420 of the Code of Civil Procedure.[2]
The court
denied the City's motion in part. It
denied Rasmussen's motion outright.
D. Appeals
Rasmussen
and the City both appealed. We consider
each appeal in turn.
RASMUSSEN'S APPEAL
I. Background
A. Requests for Admission;
Responses
In January
2006, Rasmussen propounded a first set of requests for admission on the
City. As relevant here, Rasmussen asked
the City to make the following admissions: that it had â€
| Description | Following a bench trial, the court rejected the plaintiffs' complaint against the City of Morgan Hill, as well as the City's cross-complaint against Torben Rasmussen. At issue here are two of the court's post-trial orders: (1) the denial of Rasmussen's motion for costs under Code of Civil Procedure section 2033.420, and (2) the partial denial of the City's motion to tax Rasmussen's costs. For reasons explained below, Court shall affirm the challenged orders. |
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