Preview
1 STEVEN B. PISER, SBN 62414
LAW OFFICES OF STEVEN B. PISER
2 A Professional Corporation
1970 Broadway, Suite 600
3 Oakland, California 94612
Telephone: (510) 835-5582
4
JOHN L. FITZGERALD, SBN 126613
5 LAW OFFICES OF JOHN L. FITZGERALD
177 Bovet Road, Suite 600
6 San Mateo, California 94402
Telephone: (650) 638-2386
7
Attorneys for
8 DBP INVESTMENTS,
a California General Partnership
9
10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SAN MATEO
12
13 DBP INVESTMENTS, a California General ) CASE NO. CIV538897
Partnership, ) (CONSOLIDATED WITH CASE #19CIV07118)
14 )
Plaintiff, )
15 ) MEMORANDUM OF POINTS AND
v. ) AUTHORITIES IN SUPPORT OF MOTION TO
16 ) STRIKE MEMORANDUM OF COSTS
KING PLAZA CENTER, LLC, a Delaware )
17 Limited Liability Company, BUA-QUACH, ) DATE : AUGUST 4, 2023
an individual, SOVAN LIEN, an individual, ) TIME : 9:00 A.M.
18 DONG VUONG, an individual, THANH ) DEPT. : 21
LAI, and DOES 1 through 10 )
19 )
Defendants. )
20 )
21 DBP’s complaint sought “[A] declaration from this court that the Reciprocal Easement
22 and Operation Agreement is effective and has been effective, even though it is not recorded.” 1
23 King’s answer sought no relief, other than DBP “takes nothing from its Complaint,” and the
24 “Court dismiss the Complaint in its entirety with prejudice.” 2
25 The judgment found “…the Reciprocal Easement and Operation Agreement…is effective
26 and has been effective.”3
27
1
Complaint for declaratory relief, 6:3-5.
28 2
King’s answer 3:16-17
3
Judgment, 1:22-24
Law Offices of
Steven B. Piser 1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS
1 DBP secured the relief it sought. King filed a cost bill. But King did not secure the relief
2 it sought. Because King is not the “prevailing party,” the cost bill should be struck.
3 Where, as here, a party secures “other than monetary relief” the “’prevailing party’ shall
4 be as determined by the court.” C.C.P. Section 1032(a)(4). The Supreme Court provided a road
5 map for trial courts to follow to make the determination; it is made by “comparing the relief
6 sought with that obtained along with the parties’ litigation objectives as disclosed by their
7 pleadings, briefs, and other such sources.” Hsu v. Ababara (1995) 9 Cal. 4th 863, 833.4
8 The approach makes sense. For in cases where non-monetary relief is obtained, the only
9 reasonable way to evaluate who “prevailed” is by comparing the result sought with the result
10 obtained. Applying the standards imposed by our Supreme Court, followed by every appellate
11 court in this state, King, is not the prevailing party.
12 The relief sought by the complaint and answer is not in dispute. Witkin notes “[T]he
13 prayer or demand of the complaint is the obvious place to discover the nature of the relief
14 sought…[B]ut it is not conclusive.” “To address this problem, the practice of the court is to
15 examine the allegations of the complaint in reaching a determination about the kind of action the
16 plaintiff is bringing.” Witkin, Cal. Procedure, 6th Actions, §135.
17 Applying the standards imposed by our Supreme Court, with practical guidance from
18 scholars, King does not emerge as the “prevailing party.”
19 The pleadings are clear about who sought what.
20 The parties’ briefs articulate their “litigation objectives.”
21 DBP’s trial brief was confined to the factual and legal bases for the easement’s validity
22 even though it was not recorded. It spoke of the property’s history, development, King’s
23 predecessor’s performance in accordance with the easement and the benefits it received; King’s
24 knowledge of the existence of the easement at the time it purchased the property; King’s
25 embracing the easement when it accepted hundreds of thousands of dollars in maintenance
26 payments as mandated by the agreement and Civil Code Section 845, the cross-complaint it
27
28 4
The quoted phrase, from Hsu, an attorney fee/prevailing part case, has been cited in many published decisions,
many of which apply to costs where the issue is costs under Section 1032(a)(4).
Law Offices of
Steven B. Piser 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS
1 pursued seeking to enforce the easement and the many reasons the easement was and is
2 effective despite King’s protestations to the contrary.
3 King’s trial brief made four arguments:
4 1. The REA did not create an easement; 5
5 2. Even if the REA created an easement, DBP has no rights to it; 6
6 3. Even if the REA created an easement, it does not prohibit time restricted
7 parking;7 and,
8 4. Multiple affirmative defenses prevent a declaration for issuing in DBP’s
9 favor.8
10 The judgment demonstrates DBP secured its litigation objective.
11 The judgment found:
12 1. That the Reciprocal Easement and Operation Agreement, a copy of which
13 is attached hereto as Exhibit A and incorporated herein by reference, is
14 effective and has been effective;
15 2. Maintenance costs for the common area as defined in the Reciprocal
16 Easement and Operation Agreement at King Plaza shopping Center are to
17 be shared equally between the parties.
18 3. That since there is no provision in the agreement that precludes time
19 restrictions, there is no reason why through appropriate discussions the
20 parties cannot work out an acceptable agreement to accommodate both
21 shoppers and bowlers.9
22 DBP did not take “nothing from its Complaint.” In fact, it secured exactly the relief
23 sought by the action: a determination the easement is effective.
24 The judicial affirmation of DBP’s property right means King (the grantor’s successor)
25 “has the right to use the easement as long as the use does not interfere with or impede the
26
5
King’s Trial Brief 7-14 (internal capitalization omitted)
27 6
Trial Brief, 15
7
Trial brief 16-18
28 8
Trial brief, 20.
9
Judgment, 1:22-2:3, section 4, dealing with costs, is omitted.
Law Offices of
Steven B. Piser 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS
1 superior right of enjoyment of the easement owner.”10 The court found “there is no provision in
2 the agreement that precludes time restrictions” and observed the parties should work to
3 “accommodate both shoppers and bowlers.” But noted if they are unable to do so, “I have the
4 writ.”11
5 King wanted the easement declared invalid and a finding DBP had no property rights.
6 The court found otherwise. That the easement does not contain language prohibiting time
7 restricted parking does not hand King a victory nor does it act to deny or impair DBP’s litigation
8 objective.
LAW OFFICES OF STEVEN B. PISER
9 A Professional Corporation
10 LAW OFFICES OF JOHN L. FITZGERALD
11
12 DATED: May 22, 2023 By:
STEVEN B. PISER
13 Attorney for DBP INVESTMENTS
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 10
Miller and Starr 6 Cal. Real Est. § 15:65 (4th ed.) (Emphasis supplied)
11
Reporter’s transcript, March 13, 2023; 5:9-13. (See request for judicial notice, Exhibit A)
Law Offices of
Steven B. Piser 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS
Preview
1 STEVEN B. PISER, SBN 62414 LAW OFFICES OF STEVEN B. PISER 2 A Professional Corporation 1970 Broadway, Suite 600 3 Oakland, California 94612 Telephone: (510) 835-5582 4 JOHN L. FITZGERALD, SBN 126613 5 LAW OFFICES OF JOHN L. FITZGERALD 177 Bovet Road, Suite 600 6 San Mateo, California 94402 Telephone: (650) 638-2386 7 Attorneys for 8 DBP INVESTMENTS, a California General Partnership 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SAN MATEO 12 13 DBP INVESTMENTS, a California General ) CASE NO. CIV538897 Partnership, ) (CONSOLIDATED WITH CASE #19CIV07118) 14 ) Plaintiff, ) 15 ) MEMORANDUM OF POINTS AND v. ) AUTHORITIES IN SUPPORT OF MOTION TO 16 ) STRIKE MEMORANDUM OF COSTS KING PLAZA CENTER, LLC, a Delaware ) 17 Limited Liability Company, BUA-QUACH, ) DATE : AUGUST 4, 2023 an individual, SOVAN LIEN, an individual, ) TIME : 9:00 A.M. 18 DONG VUONG, an individual, THANH ) DEPT. : 21 LAI, and DOES 1 through 10 ) 19 ) Defendants. ) 20 ) 21 DBP’s complaint sought “[A] declaration from this court that the Reciprocal Easement 22 and Operation Agreement is effective and has been effective, even though it is not recorded.” 1 23 King’s answer sought no relief, other than DBP “takes nothing from its Complaint,” and the 24 “Court dismiss the Complaint in its entirety with prejudice.” 2 25 The judgment found “…the Reciprocal Easement and Operation Agreement…is effective 26 and has been effective.”3 27 1 Complaint for declaratory relief, 6:3-5. 28 2 King’s answer 3:16-17 3 Judgment, 1:22-24 Law Offices of Steven B. Piser 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS 1 DBP secured the relief it sought. King filed a cost bill. But King did not secure the relief 2 it sought. Because King is not the “prevailing party,” the cost bill should be struck. 3 Where, as here, a party secures “other than monetary relief” the “’prevailing party’ shall 4 be as determined by the court.” C.C.P. Section 1032(a)(4). The Supreme Court provided a road 5 map for trial courts to follow to make the determination; it is made by “comparing the relief 6 sought with that obtained along with the parties’ litigation objectives as disclosed by their 7 pleadings, briefs, and other such sources.” Hsu v. Ababara (1995) 9 Cal. 4th 863, 833.4 8 The approach makes sense. For in cases where non-monetary relief is obtained, the only 9 reasonable way to evaluate who “prevailed” is by comparing the result sought with the result 10 obtained. Applying the standards imposed by our Supreme Court, followed by every appellate 11 court in this state, King, is not the prevailing party. 12 The relief sought by the complaint and answer is not in dispute. Witkin notes “[T]he 13 prayer or demand of the complaint is the obvious place to discover the nature of the relief 14 sought…[B]ut it is not conclusive.” “To address this problem, the practice of the court is to 15 examine the allegations of the complaint in reaching a determination about the kind of action the 16 plaintiff is bringing.” Witkin, Cal. Procedure, 6th Actions, §135. 17 Applying the standards imposed by our Supreme Court, with practical guidance from 18 scholars, King does not emerge as the “prevailing party.” 19 The pleadings are clear about who sought what. 20 The parties’ briefs articulate their “litigation objectives.” 21 DBP’s trial brief was confined to the factual and legal bases for the easement’s validity 22 even though it was not recorded. It spoke of the property’s history, development, King’s 23 predecessor’s performance in accordance with the easement and the benefits it received; King’s 24 knowledge of the existence of the easement at the time it purchased the property; King’s 25 embracing the easement when it accepted hundreds of thousands of dollars in maintenance 26 payments as mandated by the agreement and Civil Code Section 845, the cross-complaint it 27 28 4 The quoted phrase, from Hsu, an attorney fee/prevailing part case, has been cited in many published decisions, many of which apply to costs where the issue is costs under Section 1032(a)(4). Law Offices of Steven B. Piser 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS 1 pursued seeking to enforce the easement and the many reasons the easement was and is 2 effective despite King’s protestations to the contrary. 3 King’s trial brief made four arguments: 4 1. The REA did not create an easement; 5 5 2. Even if the REA created an easement, DBP has no rights to it; 6 6 3. Even if the REA created an easement, it does not prohibit time restricted 7 parking;7 and, 8 4. Multiple affirmative defenses prevent a declaration for issuing in DBP’s 9 favor.8 10 The judgment demonstrates DBP secured its litigation objective. 11 The judgment found: 12 1. That the Reciprocal Easement and Operation Agreement, a copy of which 13 is attached hereto as Exhibit A and incorporated herein by reference, is 14 effective and has been effective; 15 2. Maintenance costs for the common area as defined in the Reciprocal 16 Easement and Operation Agreement at King Plaza shopping Center are to 17 be shared equally between the parties. 18 3. That since there is no provision in the agreement that precludes time 19 restrictions, there is no reason why through appropriate discussions the 20 parties cannot work out an acceptable agreement to accommodate both 21 shoppers and bowlers.9 22 DBP did not take “nothing from its Complaint.” In fact, it secured exactly the relief 23 sought by the action: a determination the easement is effective. 24 The judicial affirmation of DBP’s property right means King (the grantor’s successor) 25 “has the right to use the easement as long as the use does not interfere with or impede the 26 5 King’s Trial Brief 7-14 (internal capitalization omitted) 27 6 Trial Brief, 15 7 Trial brief 16-18 28 8 Trial brief, 20. 9 Judgment, 1:22-2:3, section 4, dealing with costs, is omitted. Law Offices of Steven B. Piser 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS 1 superior right of enjoyment of the easement owner.”10 The court found “there is no provision in 2 the agreement that precludes time restrictions” and observed the parties should work to 3 “accommodate both shoppers and bowlers.” But noted if they are unable to do so, “I have the 4 writ.”11 5 King wanted the easement declared invalid and a finding DBP had no property rights. 6 The court found otherwise. That the easement does not contain language prohibiting time 7 restricted parking does not hand King a victory nor does it act to deny or impair DBP’s litigation 8 objective. LAW OFFICES OF STEVEN B. PISER 9 A Professional Corporation 10 LAW OFFICES OF JOHN L. FITZGERALD 11 12 DATED: May 22, 2023 By: STEVEN B. PISER 13 Attorney for DBP INVESTMENTS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Miller and Starr 6 Cal. Real Est. § 15:65 (4th ed.) (Emphasis supplied) 11 Reporter’s transcript, March 13, 2023; 5:9-13. (See request for judicial notice, Exhibit A) Law Offices of Steven B. Piser 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE MEMORANDUM OF COSTS