Hoss v.
Filed 11/6/13 Hoss v. Hagen CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Lassen)
----
DANIEL J. HOSS, SR., et
al.,
Plaintiffs, Cross-defendants and Appellants,
v.
CARLIN R. HAGEN et al.,
Defendants, Cross-complainants and
Respondents.
C071753
(Super. Ct. No. 51091)
This
road easement dispute has been simmering for over 30 years. Former Lassen County Superior Court Judge
Joseph B. Harvey personally viewed the road in 1981 and entered a judgment
decreeing an easement in favor of a dominant parcel and against
servient parcels.
The successors-in-interest have not lived harmoniously under that decree,
and this appeal will not resolve their differences, as it is an interlocutory appeal
from an order declining to disqualify an attorney and expert witnesses. As we shall explain, the trial court applied
the proper legal standards to this
dispute and resolved conflicts in the evidence against appellants. Finding no error, we shall affirm.
In 1966,
George Nelson, Sr. and his wife deeded 10 acres of the Nelson Ranch to his
daughter, Mary Ann (mother of plaintiffs), including access via a then-extant
road through what are now four parcels, and deeded the rest of the ranch to his
son, George Nelson, Jr. and his wife. A
dispute about the road arose, resulting in litigation during which Judge Harvey
viewed the road, and ultimately entered a decree in 1981 that did not precisely
describe the road easement. (
No. 14687.) Neither the relevant deeds nor
Judge Harvey’s judgment are in the record on appeal.
Plaintiffs
(sometimes collectively Hoss) now own the dominant parcel, and defendants (sometimes
collectively Hagen) own the servient parcels.
In July 2010, Hoss hired counsel
(Eugene Chittock) to pursue remedies against Hagen
for allegedly interfering with the easement.
The year before hiring counsel, Hoss had paid Vernon Templeton, a
surveyor, $600 to “set spikes at the angle points†to indicate the “‘centerline
existing road easement’†based on a recorded 1995 parcel map. At the direction of counsel, Hoss asked
Templeton to perform a full survey of the easement, which he did on August 17, 2010, and for which he was
paid $900.
The original
complaint in this case was filed on September
22, 2010, and various amended complaints and a cross-complaint
ensued; trial briefs were filed on March 13 and March 20, 2012. None
of these documents are in the record on appeal.
On March 22, 2012, Hoss moved to
disqualify Frank Cady, counsel for Hagen, and Templeton and members of his
engineering firm.
title="">[3]
Initially, the sole evidentiary
support for the disqualification motion consisted of Chittock’s declaration and
attached exhibits.
Chittock’s declaration asserts that
on August 9, 2010, he spoke
with Templeton over the telephone and Templeton agreed to serve as an expert
witness in the case. Several days later Chittock
met with Templeton, who asked how Chittock planned to prove that the width of
the easement was 27 feet, and Chittock “responded by explaining our theory of
the case and trial strategy. Although I
doubt I referred specifically to the attorney-client privilege or attorney work
product doctrine, I did convey to Mr. Templeton the confidential nature of the
information being shared.†Further
conversations with Templeton and his firm followed. On or about August 19, 2010, Chittock spoke with Templeton “to discuss
additional details concerning the map he was supposed to produce. Confidential information was again provided
to Mr. Templeton, as the map was intended to reflect plaintiffs’ theory of the
case.†However, the map Templeton drew
“did not show the location of the claimed encroachments.†On August
26, 2010, a settlement conference with the parties took place in
Chittock’s office, but did not resolve the dispute. Templeton declined to serve as an expert
witness, and he later was designated as an expert by Hagen’s
counsel, Cady.
Chittock’s
declaration also asserted that he spoke with Jeff Morrish, an NST engineer, and
claimed both that he “provided confidential information concerning plaintiff’s
theory of the case to Mr. Morrish†and that
his clients shared “confidential and
privileged information†with Morrish. Chittock’s
basis of knowledge for information conveyed by his clients is not established
by his declaration.
Hagen’s
opposition principally relied on two legal points. First, at the settlement conference
referenced by Chittock, the map reflecting Chittock’s theory of the case was seen
and discussed by the parties, therefore any privilege pertaining thereto was waived. Second, Chittock failed to describe any purportedly
confidential information revealed to Templeton, or its materiality to the case.
Templeton
declared that he and his firm had “done all of the surveying and mapping†for the
relevant land except for one 1981 parcel map made by Joe Rickett.
In 2009, Hoss hired NST to survey and map the area based on
the firm’s past work, and in 2010 Templeton added information as requested,
resulting in the map given to Chittock for the settlement meeting. “At no time . . . were we either engaged or
hired as consultants or experts, provided any or told we were [being] provided
any confidential information [or] told that our work for them (plaintiffs) was
for a lawsuit[.]†Templeton’s firm had
worked on the Nelson Ranch since 1982, “processed no less than five (5)
recorded parcel maps and two (2) lot line adjustments of the lands[,]†and surveyed
the centerline “several times from 1982 through 1999 before being requested by
Mrs. Hoss . . . to do it again in 2009 and again in 2010.â€
Templeton
denied the substance of his conversations as recounted by Chittock’s
declaration, and declared that neither Chittock nor plaintiffs told him they
wanted him or his firm to act as a consultant or expert “in any anticipated or
actual litigation. Nor would I have
agreed to do so because, as I told the Hosses from day one, I did not believe
they had any rights greater than what the 1981 decree gave them. At no time did Mr. Chittock nor the Hosses
provide me with any information concerning what their legal theory(ies)
were.†Nor was Templeton told that
anything he was doing was confidential. In
particular, Templeton did not believe the plaintiffs had the right to a 27-foot
roadway, and he had told them so,
although he staked points 13.5 feet from the centerline at their request, plus
an additional six feet out, thinking they were coming to “some sort of ‘road’
agreement concerning the right-of-way, which is a common occurrence.†Templeton told Chittock, as he had told
plaintiffs, “that I did not agree that they had a 27’ wide travelled way
because the court decree said they had what existed in 1981, which was not 27’
wide.†Templeton admitted that when he
met Chittock on August 12, 2010, “Chittock told me that he could make a good
argument to the court to claim that they did in fact have a 27’ wide travelled
way.†This was the first reference to
court Templeton had heard, and Chittock “did not say anything or explain anything as to what such argument [to
the court] would be.†Further, Templeton
thought Chittock was speaking hypothetically and “I still assumed the parties
were working on an agreement and had a meeting coming up to discuss such
agreement. In any event, I told Mr.
Chittock something to the effect that if he did take this to court, to not call
me as a witness because I did not agree that he ‘could make a good argument’
[i.e., for a 27-foot right-of-way] and I would testify that way.†A notation on a map that indicated a 27-foot
right-of-way, purportedly used by Chittock during the settlement conference,
was not placed there by Templeton’s firm.
Defendants
declared that during the settlement conference, Chittock displayed a map with a
note indicating a “27-foot travelled way†that Chittock claimed was made by NST,
and that Chittock claimed the easement itself was 40 feet wide, because the
width was stated at 27 feet on maps recorded “after the 1966 grant deed and
Judge Harvey’s 1981 order[,]†and “per County standards†plaintiffs had the right
to build ditches on either side, which would take up an additional “6.5 feet
and therefore his clients had to have an easement of 40 feet[.]â€
Morrish’s
declaration denied that he had received any confidential information from
Chittock, or “detailed information concerning the ‘theories’ of his case. Such legal theories would have meant nothing
to me anyway since I did not know any particulars about the matter of which [Chittock]
seemed concerned.â€
Cady’s
declaration asserts he was retained by defendants on September 28, 2010, after
Chittock’s meeting with them. Cady’s clients
told him that Chittock had shown them a map and recorded documents, and “fully
explained to them, mostly in response to their questions, his entire theory of
his case as to why he believed his client had a 27’ wide roadway and a 40’ wide
easement,†and for this reason Cady believed he was free to speak with
Templeton. On November 12, 2010, after a
local bar association meeting, Chittock and his associate freely discussed with
Cady their theory of the case, and in particular explained why they had not
filed the current dispute in the original 1981 action granting injunctive
relief (such as by moving for contempt), but instead based their claims on
subsequent actions, to wit, a post-1981 recorded map indicating a 27-foot
travelled way, and County road standards calling for “six or so feet†on either
side of a road for drainage purposes. On
November 30, 2010, Cady and Chittock again met and Chittock again outlined his
theory of the case. Cady then marshaled publicly
available documents and maps to
refute Chittock’s theory, and on January 10, 2011, reviewed them with Chittock
“so that I could show him that the ranch road in 1966 and again in 1982 was
just as Judge Harvey had found, not wide enough for two cars to pass.†Further discussions about “our respective
legal theories†took place, and those theories were outlined in “no less than
27 pleadings with this court within the four corners of which each of us set
forth repeatedly our respective legal theories[.]â€
Reply to Opposition
Chittock’s
reply declaration asserted Templeton had a motive to lie arising from an
unrelated small claims action, and described further details of purported
conversations between him and Templeton.
Chittock conceded discussing the case with Cady, but claimed “I
certainly did not share all my
theories or trial strategies.â€
name="_ftnref5" title="">[5]
Plaintiff Anna Hoss declared she
discussed with Templeton the “probability†of litigation over the easement as
early as May 6, 2009. Her husband
declared he had read his wife’s notes and her declaration and that her
declaration was “accurate to the best of my recollection.â€
Further
Opposition
Templeton declared he was not
biased against Chittock because of the small claims case, which he had lost on
a statute of limitation ground, not on the merits. He denied that Anna Hoss told him there was a
probability of litigation, and if she had done so, he would have told her his
firm was not available. He had told her
several times that she did not have a
27-foot road easement.
Declarations
by several defendants and by the daughter of the O’Neil defendants showed the
Hosses were not in the room during the meeting where Chittock displayed and
distributed copies of the relevant map.
The
trial court denied the motion.
The
trial court first found “the mere hiring of Mr. Templeton by Plaintiff Hoss in
May 2009 to perform a center line survey of the easement at issue and the
subsequent hiring of Mr. Templeton in July of 2010 by counsel Cady [
confidential relationship. The court
finds that based upon the declarations submitted the moving parties have not
proved by a preponderance of the evidence that it was objectively reasonably
for the moving parties to subsequently conclude that a confidential relationship
existed.â€
The
trial court also found “assuming for purposes of argument that a confidential
relation[ship] was established . . . the moving parties have not proven by a
preponderance of the evidence that confidential or privileged information was
disclosed to Vern Templeton or to the other named witnesses. The court finds that a discussion of the strategy
of the Plaintiffs or the Plaintiffs’ counsel[’s] view of the law or other
claimed disclosures as set forth in moving and responding papers of the moving
parties did not constitute disclosures of privileged or confidential
information.â€
title="">[6]
Hoss
timely filed this appeal. The appeal
lies. (See Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882.)
I
Standard of Review
“On review
of an order granting or denying a disqualification motion, we defer to the
trial court’s decision, absent an abuse of discretion. [Citations.]
The trial court’s exercise of this discretion is limited by the
applicable legal principles and is subject to reversal when there is no
reasonable basis for the action.†(
232 Cal.App.3d 572, 585.) “Even when
there are no factual findings, if substantial evidence supports the trial court’s
implied findings of fact, an appellate court reviews the conclusions based on
the findings for abuse of discretion. [Citation.]
The same is true when the trial court has taken the extra step of
stating the factual reasons for its disqualification order.â€
Another
applicable rule of appellate review also applies in this case because, “A
factual contest based on written evidence is treated like other factual
contests.†(California Correctional Supervisors Organization, Inc. v. Department of
Corrections (2002) 96 Cal.App.4th 824, 832 (CCSO).) On appeal, we
construe the evidence in the light favorable to the trial court’s ruling. (See Doak
v. Bruson (1907) 152 Cal. 17, 19 [“If there is any conflict in the
affidavits, those in favor of the prevailing party must be taken as true, and
the facts stated therein must be considered establishedâ€]; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1996) 46
Cal.App.4th 778, 783 (Toyota Motor Sales).) The trial court was free to disbelieve Hoss’s
evidence and believe Hagen’s evidence.
(See Hicks v. Reis (1943) 21
Cal.2d 654, 659-660 [“Provided the trier of the facts does not act arbitrarily,
he may reject in toto the testimony
of a witness, even though the witness is uncontradictedâ€]; CCSO, supra, 96
Cal.App.4th at p. 832.) We presume the
trial court’s factual findings are supported by the evidence, and it is Hoss’s
burden, as the appellant, to show that they are not. (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman).) As a corollary,
an appellant who fails to state the facts fairly forfeits evidentiary claims. (Foreman,
supra, 3 Cal.3d at p. 881.)
II
Hoss
claims the trial court improperly followed federal precedent, rather than following
controlling California law.
name="_ftnref9" title="">[9]
We disagree.
The
order denying disqualification states the movants had to show (1) that it was
objectively reasonable for them to believe a confidential relationship existed
between them and Templeton, and (2) that
“confidential or privileged information was actually disclosed by moving
parties or their counsel†to Templeton.
In
support of this legal standard, the trial court cited two federal cases,
(E.D. Va. 1991) 762 F.Supp. 1246 (Wang)
and Paul v. Rawlings Sporting Goods
Co. (S.D. Ohio 1988) 123 F.R.D. 271 (Paul).
expert disqualification, held as follows:
“[T]he proper focus in such
situations is to determine, first, whether the attorney or client acted
reasonably in assuming that a confidential or fiduciary relationship of some
sort existed and, if so, whether the relationship developed into a matter
sufficiently substantial to make disqualification or some other judicial remedy
appropriate. Stating each proposition
negatively, if any disclosures of privileged or confidential material were
undertaken without a reasonable expectation that they would be so maintained
(so that, in effect, any confidentiality or privilege relating to the matters
communicated was waived), or if, despite the existence of a relationship
conducive to such disclosures, no disclosures of any significance were made, it
would seem inappropriate for the court to dictate to the expert or his new
employer that his participation in the case be limited or eliminated.†(Paul,
In Wang, a patent expert was consulted by an attorney trying to prove
the validity of certain patents, but the expert wrote a report concluding the
patents were invalid, and he was later retained by opposing counsel. (Wang,
supra, 762 F.Supp. at pp.
1246-1247.) Because the parties
contested “whether the earlier retention and passage of confidential
information occurred[,]†Wang applied
the two-step Paul test. (Id.
at p. 1248.)
The test
derived from Paul and
Shadow Traffic Network v. Superior Court
(1994) 24 Cal.App.4th 1067, 1079-1080 & 1080-1081, fn. 9 (
quoted Paul in part as follows:
“‘[I]f any disclosures of privileged
or confidential material were undertaken without a reasonable expectation that
they would be so maintained (so that, in effect, any confidentiality or
privilege relating to the matters communicated was waived), or if, despite the
existence of a relationship conducive to such disclosures, no disclosures of
any significance were made, it would seem inappropriate for the court to
dictate to the expert or his new employer that his participation in the case be
limited.’†(Shadow Traffic, supra, 24
Cal.App.4th at p. 1080, quoting Paul,
supra, 123 F.R.D. at p. 278, and
citing other authorities.)
Accordingly,
“[C]ommunications made to a potential expert in a retention interview can be
considered confidential and therefore subject to protection from subsequent
disclosure even if the expert is not thereafter retained as long as there was a reasonable expectation of such confidentiality.†(Shadow
Traffic, supra, 24 Cal.App.4th at
p. 1080, emphasis added.) After finding
on the facts that such a confidential relationship existed,
any “confidential communication†was given to the expert, a point on which the
evidence conflicted, and deferred to the trial court’s resolution of that
factual conflict to find that confidential material had been given to the
expert. (Id. at pp. 1082-1084.)
the expert gave that confidential information to the opposing counsel, applied a presumption that this had
occurred, and found the presumption had not been rebutted. (Id.
at pp. 1084-1087; see Toyota Motor Sales,
supra, 46 Cal.App.4th at pp. 781-782 [if former consultant possessed
material confidential information, “a rebuttable presumption arises that the
consultant has disclosed such information to present counselâ€].) Shadow
Traffic also cited Wang with
approval, albeit in two footnotes. (
fn. 9 & p. 1083, fn. 11.)
In this
case, the trial court followed the Shadow
Traffic mode of analysis, although it did not cite Shadow Traffic, but instead cited the root authorities,
name="_ftnref10" title="">[10]
The trial
court first found “the mere hiring†of Templeton by Hoss to stake the center
line in 2009 and “the subsequent hiring of Mr. Templeton in July of 2010†at
Chittock’s direction “did not create a confidential relationship†and Hoss had
not carried the burden to show it was objectively reasonable to believe
otherwise. The trial court alternatively
found that even if a confidential relationship was shown, Hoss had not proven any
confidential or privileged information was disclosed to Templeton, because “a
discussion of the strategy of the Plaintiffs or the Plaintiffs’ counsel[‘s]
view of the law or other claimed disclosures as set forth in moving and
responding papers of the moving parties did not constitute disclosures of
privileged or confidential information.â€
Therefore, the trial court had no reason to consider whether to apply a
presumption that Templeton passed on any confidential information
obtained such information from Chittock.
Because the
trial court made findings consistent with the Shadow Traffic mode of
analysis, the trial court properly followed California law.
Without a
separate heading or citation to any supporting authority, Hoss claims that we
should extend the law to compel disqualification based on a mere “appearance of
impropriety,†and contends that was the basis for the trial court’s alleged
This argument is forfeited both because it was not separately headed and
Hoss provided no supporting authority in the opening brief to extend the
law. (See Loranger, supra, 184
Cal.App.4th at p. 858, fn. 9.) Raising
the contention in the reply brief is insufficient. (Kahn
v. Wilson, supra,
Moreover,
as Hagen points out, California law is to the contrary:
“The trial court’s power to
disqualify counsel is derived from the court’s inherent power ‘[t]o control in
furtherance of justice, the conduct of its ministerial officers.’ [Citations.]
Disqualification motions implicate several important interests, among
them are the clients’ right to counsel of their choice, the attorney’s interest
in representing a client, the financial burden of replacing a disqualified
attorney, and tactical abuse that may underlie the motion. [Citation.] The ‘paramount’ concern in determining whether
counsel should be disqualified is ‘the preservation of public trust in the
scrupulous administration of justice and the integrity of the bar.’ [Citations.] It must be remembered, however, that
disqualification is a drastic course of action that should not be taken simply
out of hypersensitivity to ethical nuances or the appearance of impropriety.†(
150 Cal.App.4th 210, 218-219; see DCH
Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 833[“an
appearance of impropriety by itself does not support a lawyer’s
disqualificationâ€]; Gregori v. Bank of
America (1989) 207 Cal.App.3d 291, 305-309.)
Accordingly,
we decline Hoss’s request that we change California law.
III
Substantial Evidence
Having
concluded that the trial court applied the proper legal standards to the
disqualification motion, we now explain why the evidence, viewed in the
appropriate light, supports each of the trial court’s alternatively dispositive
findings.
title="">[13]
A. Confidential
Relationship
The trial
court found it was not objectively reasonable for Chittock to believe he had
created a confidential relationship with Templeton.
In making
this finding, the trial court impliedly credited Templeton’s declaration over
Chittock’s declaration. Templeton
declared he did not know litigation was contemplated when he performed two
routine services at Hoss’s request, namely staking the centerline and then
surveying the road, services similar to those Templeton and his firm had done
on that very property over the past 30 years.
Templeton denied that either Chittock or Hoss told him their
conversations were confidential or made in anticipation of litigation. These facts support the trial court’s finding
that it was not objectively reasonable to believe a confidential relationship
with Templeton existed.
Hoss claims
“Templeton admits that Chittock discussed the possibility of litigation duringâ€
their August 12, 2010 meeting. The page
cited in support of this claim is to the portion of Templeton’s declaration
wherein Templeton declared he “assumed [Chittock] was talking about a
hypothetical situation because I still did not know of any planned or existing
litigation and I still assumed the parties were working on an agreement and had
a meeting coming up to discuss such agreement. . . . Again, at no time during
this conversation was I told by Mr. Chittock that they were doing this work in
anticipation of litigation or that what we were discussing was confidential.†Thus, the declaration, in context, shows
Templeton did not think there was any
pending or planned litigation, or that his conversation with Chittock was
confidential.
Contrary to
Hoss’s claim in the reply brief, an expert’s “naked denial†of receipt of
confidential information can provide
substantial evidence to support an order denying disqualification. Generally, the testimony of a single witness
is sufficient to prove any fact. (See
1038, 1052.) “[T]he testimony of a
witness offered in support of a judgment may not be rejected on appeal unless
it is physically impossible or inherently improbable and such inherent
improbability plainly appears.†(
Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck).) Templeton’s
declarations were not inherently improbable.
They were detailed, consistent, “‘reasonable in nature, credible, and of
solid value’†(Beck,
and therefore provided substantial evidence to support the trial court’s
findings.
The dispute
about whether particular conversations were or were not confidential could have
been avoided had Chittock asked Templeton to sign a confidentiality agreement,
the “better practice†emphasized in the very authority Chittock relies on. (Shadow
Traffic, supra, 24 Cal.App.4th at
p. 1083 & fn. 11; see Western Digital,
[“wiser policy†is to document the nature of the expert interview];
expert and establish a confidential relationship should make this intention
unmistakably clear and should confirm it in writingâ€]; Paul, supra, 123 F.R.D.
at p. 279 [it would be “ideal†to document the confidential relationship with
the expert and it is not “unfair to place the burden†on the attorney to ensure
the expert understands the nature of the relationship].) “A few simple steps in the right direction at
the beginning of the [attorney-expert] relationship protect against countless
problems down the road.†(Hebert,
Conflicts of Interest (Cont.Ed.Bar Sept. 1998) 20 Civ. Lit. Rptr. 202, 207;
see also Morrow, Issues Relating to
Expert Disqualification (State Bar of Cal., Litigation Section, Spring
2004) 17 Cal. Litigation 24, 30.) This
answers Hoss’s claim that it “remains mysterious†what evidence would have
satisfied the trial court that a reasonable belief in a confidential relationship
existed. Although facts other than a
confidentiality agreement might show such
a reasonable belief, Chittock’s failure to have Templeton sign one relegated
Chittock to relying on his own declaration to prove such fact, and the trial
court impliedly found that declaration unpersuasive.
B.
Disclosure of Confidential Material
The trial
court made the alternative finding that no confidential information was
communicated to Templeton. This finding,
too, is supported by the record.
Templeton has
always been of the opinion that Hoss does not
have a 27-foot right-of-way. He shared
that opinion first with Hoss, then with Chittock, and then with Cady. It was not based on any information--confidential
or otherwise--given to him by Hoss or by Chittock. It was based on Templeton’s professional experience
generally, coupled with his knowledge of this particular road, the 1966 deed, Judge
Harvey’s 1981 decree, and repeated surveys of this property over many years by
his firm. The only thing Chittock told Templeton
that Templeton did not already know was that Chittock thought it was important
that one particular recorded map made reference to a 27-foot right-of-
way. This was not
confidential information, because the record shows Chittock openly shared that
theory at the settlement meeting, in discussions with Cady, and in documents
filed with the trial court in this case.
(See fn. 4, ante.)
In
rejecting a claim similar to Hoss’s, other courts have found disqualification
unwarranted where the information given to the expert was reflected by
pleadings, discovery, and voluntary disclosures. (See Western
Digital, supra, 60 Cal.App.4th at
pp. 1482-1483 [information given to expert was reflected by the pleadings,
discovery responses and a settlement statement outlining “in great detail
Amstrad’s damage claims and theoriesâ€]; Toyota
Motor Sales, supra, 46
Cal.App.4th at p. 783 [“factual or technical information that was discoverable
in the caseâ€]; Nikkal Industries, Ltd. v.
Salton, Inc. (S.D.N.Y. 1988) 689 F.Supp. 187, 191-192 [“essentially
technical†information].) Here, as just
explained, nothing Chittock said was material to Templeton’s opinion. (See Paul,
supra, 123 F.R.D. at p. 180 [the
expert “would have produced the same report and drawn the same conclusions even
if he had never spoken to†the first attorney].)
Accordingly,
the trial court’s finding that no confidential information was given to
Templeton is supported by the evidence, viewed in favor of the ruling.
MOTION FOR SANCTIONS
Although we
have rejected Hoss’s appellate claims, and have pointed out several breaches of
appellate procedure by Hoss’s counsel, we do not find that their prosecution of
this appeal was for an improper motive and do not find that their claims are so
bereft of substance as to meet the stringent standards set by our Supreme Court
for finding an appeal to be frivolous. (See
In re Marriage of Flaherty (1982) 31
Cal.3d 637, 649-651.) Accordingly, we
deny Hagen’s motion for sanctions for a frivolous appeal.
DISPOSITION
The order
denying disqualification is affirmed.
Hoss shall pay Hagen’s costs of this appeal. (See Cal. Rules of Court, rule 8.278.)
DUARTE ,
J.
We concur:
NICHOLSON , Acting P. J.
MAURO ,
J.
name="_ftn1" title="">[1] Respondents assert without reference that the
relevant deed granted “‘the right to use the road as it presently
exists[.]’†We normally disregard
factual assertions unsupported by record citations. (See Duarte
v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (
showing that Judge Harvey found the deeded easement consisted of the actual
road then in use. That would not be an
unusual decree for a rural road. (See
Cal.App.3d 256 [public road width was the roadway actually in use, not
county-resolution or state-law standard width].) It appears the road was later slightly
re-routed, by mutual consent, which is commonly done on rural roads.
We note that
plaintiffs, as the appellants, bore the burden to provide an adequate record on
appeal. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214
Cal.App.3d 1043, 1051, fn. 9.) “To the
extent the record is incomplete, we construe it against [them].†(Sutter
Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498 (
name="_ftn2" title="">[2] Plaintiffs are Daniel Hoss and Anna
Vermillion-Hoss. Defendants are Carlin
R. and Sheri Hagen, Gregory K. and Cynthia L. O’Neil, and Edgar and Connie J.
Thompson. The owners of the fourth
servient parcel are not parties herein.
