Illulian v. Sprint PCS Assets

Filed 8/5/09 Illulian v. Sprint PCS Assets CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Joe W. Hilberman, Judge. Affirmed.

Jones, Bell, Abbott, Fleming & Fitzgerald, Kevin K. Fitzgerald and Jessica S. Hernandez for Plaintiffs and Appellants.

Stutz Artiano Shinoff & Holtz, Bret Eubank and Paul V. Carelli IV for Defendant and Respondent.

____________________

Plaintiffs and appellants Khosro D. Illulian and Jila Illulian (collectively the Illulians) appeal from a trial court judgment in favor of defendant and respondent Sprint PCS Assets, LLC (Sprint). The Illulians assign the following errors: (1) The trial court abused its discretion in failing to reopen discovery and extend the time for them to designate expert witnesses; (2) Sprint breached a duty to the Illulians by providing only posted notice of its proposed installation of a cell cabinet; and (3) Sprint violated the due process clause of the United States Constitution by failing to provide the Illulians with mailed notice of the cell cabinet installation.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Illulians purchase the property

The Illulians purchased the property located at 30411 Pacific Coast Highway, an unimproved property in the City of Malibu (sometimes Malibu), in or around 1988. At that time, there were no structures on the property, and a dirt road from Pacific Coast Highway (PCH) provided access to the Illulians property.

In 1994, Mr. Illulian obtained California Coastal Commission (CCC) approval of the conceptual plans for the development of the property. The conceptual plans show a driveway with flared access as planned onto PCH. Preliminary approval of the plans expired on November 16, 1997.

Sprint installs a cell cabinet

Sometime prior to March 24, 2004, Sprint designed, developed, and erected a large equipment cabinet for the purpose of installing a cell cabinet and appurtenant facilities, allegedly in front of the Illulians driveway.

The Illulians initiate this lawsuit

The Illulians retained counsel, Gary D. Fidler (Fidler). On May 25, 2005, on behalf of the Illulians, Fidler filed this lawsuit against Sprint. A first amended complaint, alleging causes of action for declaratory relief and negligence, was filed on June 17, 2005.

Fidlers declaration of medical unavailability; continuance of the final status conference and trial

On September 18, 2006, Fidler filed a declaration of medical unavailability until after November 15, 2006.^[1] In his declaration, dated July 14, 2006, Fidler stated that since December 2005, he had been a patient at City of Hope Hospital, receiving treatment for Hodgkins Lymphoma. Since January 2006, he had been undergoing an extensive program of chemotherapy and other related treatments.

On June 27, 2006, Fidler learned that his doctors wanted him to have a bone marrow and/or stem cell transplant. That procedure would begin on July 24, 2006, and last approximately four weeks. Fidler would remain at home for approximately three months after leaving the hospital on or about August 27, 2006. Thus, he did not believe that he would be ready to resume his regular practice of law on a full time basis until after November 15, 2006.

Based upon Fidlers representations, the trial court continued the final status conference to March 9, 2007 (and later moved it to March 12, 2007). Trial was set for March 13, 2007.

Expert witness designations

On January 3, 2007, Sprint served a demand for exchange of expert witness information on Fidler. About two weeks later, on January 19, 2007, Sprint served Fidler with its expert witness exchange in compliance with the demand for exchange of expert witness information. Fidler failed to designate any expert witnesses on behalf of the Illulians.

Motions in limine

On February 14, 2007, Sprint filed a motion in limine to exclude expert testimony. Sprint argued that because the Illulians did not timely designate any expert witnesses, any expert testimony on behalf of the Illulians should be excluded at trial.

On the same date, Sprint also filed a motion in limine to exclude testimony re duty, breach of care and/or standard of due care. Again, Sprint argued that because the Illulians failed to designate any experts, any testimony regarding duty, breach of duty, and the standard of care should be precluded from trial.

The Illulians ex parte application to continue trial and extend the discovery cut-off date and date for disclosure of expert witnesses

On March 5, 2007, Fidler filed an ex parte application for (1) an order continuing the Final Status Conference (March 12, 2007) and Trial (March 13, 2007) as well as all pending pre-trial motions; and (2) for an order extending the discovery cut off date and disclosure of expert witnesses so that new counsel may prepare the case as he deems appropriate. Specifically, the Illulians sought to continue (1) the final status conference for four months, (2) the trial for five months, (3) all pending pretrial motions and hearings to the new final status conference date, and (4) extend the date for completing discovery as well as disposing^[[2]] expert witnesses to a date not less than 45 days prior to the hopeful continued date for Trial.

Attached to the ex parte application was a declaration from an attorney from Jones, Bell, Abbott, Fleming & Fitzgerald (Jones Bell), attesting that his firm was prepared to substitute in as the Illulians counsel if there was a 90-day continuance of the trial and relief from the discovery cut-off, expert witness designation, and the jury waiver deadlines that had passed.

The trial court granted the Illulians request to continue the trial and final status conference,^[3]which were both continued to August 13, 2007, but denied the requests to reopen discovery and extend the time to designate experts.

The Illulians new counsel

On March 27, 2007, Fidler substituted out of the case, and Jones Bell substituted in as the Illulians counsel.

Trial

The case proceeded to trial on November 13, 2007. The following evidence was presented.

Sprint receives approval to install a cell cabinet

In 2001, Sprint applied to the California Department of Transportation (CalTrans) to place a cell phone cabinet on the public land appurtenant to PCH. Ernest Acosta (Acosta) approved an encroachment permit for Sprints application dated August 17, 2001. This permit gave Sprint permission to install a cell cabinet and appurtenant facilities at the designated location, specified as 30425 1/2 Pacific Coast Highway. Acosta testified that because Sprint had a permit with CalTrans, it was not required to give notice to adjacent homeowners concerning the encroachment permit; it was required, however, to obtain CCC approval for the proposed installation.

Shana Gray (Gray), a program analyst with the CCC, reviewed Sprints application dated December 19, 2001, for a coastal development permit. She confirmed that the CCC granted Sprint a permit waiver, which was approved at a public hearing of the CCC on September 10, 2002.

Regarding the issue of proper public notice of a permit waiver, Gray testified that there was no requirement of mailed notice, but that a posted notice was required. She stated that Sprint met this posted-notice requirement, and that ordinarily the CCC checks to see that the information on the declaration of posting is correct. Any concerned citizen reading the posted notice may call the telephone number indicated on the posting and would be entitled to review the CCCs file, which consists of public documents.

Sprint was not required to obtain approval of the City of Malibu to install the cell cabinet

At trial, the Illulians theorized that Sprint needed approval from the City of Malibu before installing the cell cabinet. To that end, they called Dr. Stacey Rice, who had served as the senior planner for Malibu for six years and who was senior planner during the installation of the cell cabinet. Dr. Rice explained that there is an overlap of authority between Malibu, CalTrans, and the CCC. While Malibu currently requires a permit for all Wireless Telecommunications Facility (WTF) installations within Malibu, Malibu did not have jurisdiction over WTF permits in 2002, when the Sprint installation was permitted.

Similarly, Acosta testified that he was unaware of any Malibu requirement or permit necessary for this project. And, Rodney DuBois (DuBois), Sprints expert, testified that no Malibu permit was required for the Sprint installation at that time. When the Sprint installation was conceived and permitted, the CalTrans and CCC permits were sufficient. Finally, Trent Ramirez (Ramirez), zoning coordinator for BMS Communications, Inc., one of the companies that assisted Sprint in the construction of the cell cabinet, agreed that at the time that Sprint obtained its permits from the CCC and CalTrans, there was no requirement that a permit be obtained from the City of Malibu.

The cell cabinet was placed in the correct location and does not interfere with the Illulians plans or recent use of the property

DuBois testified that the Sprint equipment was placed in the exact location shown by the plans and specifications submitted for the application and approved. Moreover, he testified that the Sprint equipment does not interfere with the Illulians 1994 plans for development.

Mr. Illulian testified that he and his ex-wife have not applied for any recent permits from CalTrans, the City of Malibu, or the CCC for the development of the property. He has only requested a CalTrans encroachment permit in order to facilitate mandated weed abatement. Marissa Coughlan, a land use consultant who submitted the encroachment permit application on behalf of the Illulians, testified that the weed abatement project would not impact the Sprint equipment.

Finally, Dr. Rice testified that variances are available for cutting through coastal bluffs to provide driveways for properties.

Judgment and appeal

Following the presentation of evidence, the trial court found in favor of Sprint, and filed its statement of decision on March 6, 2008. The statement of decision indicates, in relevant part: Regarding the issue of which authority Sprint needed to obtain permits, the Court finds that the City of Malibu did not start showing concern regarding permitting of [WTF] installations until after July 20, 2003, after the Sprint equipment had been constructed and that the [CCC] had jurisdiction over [the WTF] permits prior to July 20, 2003. The Court further finds that Sprint obtained the appropriate [CCC] Waiver and CalTrans Encroachment Permit.

On the issue of Sprints installation obstructing [the Illulians] access to their property, the Court finds that the 1994 conceptual layout submitted by [the Illulians] shows the proposed driveway and flare well north of the position of the Sprint equipment. Even if the Sprint equipment had, in fact, obstructed a potential route of ingress onto [the Illulians] property, the Court finds that the City of Malibu does have a process whereby variances to Malibu design requirements can be obtained. However, [the Illulians] original conceptual plan for their driveway does not require any such variance.

In regard to the issue of notice to [the Illulians] of the Sprint installation, the Court finds that the [CCC] required posted notice of the Waiver granted to Sprint and that this notice was properly posted. Mailed notice of the [CCC] Waiver was not required. The Court further finds that [the Illulians] did not indicate that they had visited the property during the time that the notice was posted, and as such, [the Illulians] never received notice of Sprints intent to install the subject equipment. Because [the Illulians] never received notice, there is no way they could have been aware of or relied upon the 30425 [PCH] address listed on the various plans and applications.

Finally, the Court finds that [the Illulians] damages are speculative, because it cannot be determined whether [the Illulians] have suffered any damage as a result of a denial of any building permits, since [the Illulians] have not sought development permits from CalTrans, the [CCC], or the City of Malibu.

Judgment was entered, and this timely appeal ensued.

DISCUSSION

I. Denial of the Illulians Request to Reopen Discovery and Extend the Time to Designate Expert Witnesses

On appeal, the Illulians argue that the trial court erred by refusing to reopen discovery and extend the time in which they could designate expert witnesses. We review the trial courts order for abuse of discretion. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.)

Preliminarily, we must address the parties conflicting interpretations of the obvious typographical error in the Illulians ex parte application. In their ex parte application, the Illulians sought to extend the date for completing discovery as well as disposing expert witnesses. (Italics added.) According to Sprint, instead of the word disposing, the Illulians actually intended to write deposing. In other words, the Illulians only wanted time to depose Sprints experts; they never requested time to designate their own experts. On the other hand, the Illulians argue that they meant disclosing. We agree with the Illulians.

After reviewing their ex parte application, it is evident that the Illulians were seeking an extension of the date in which to exchange expert witness information. Their caption page so indicates, Fidlers declaration makes it clear, Fidlers assistants declaration regarding ex parte notice reiterates what relief the Illulians were seeking, and Fidlers written notice of the ex parte application confirms what relief the Illulians were requesting. Even the supporting declaration from a Jones Bell attorney corroborates the Illulians request that the expert designation deadline be extended. In light of this evidence, we see no basis for Sprints assertion that the Illulians never asked that the expert designation deadline be extended. We thus turn to the merits of this issue. While there is no record of what occurred at the March 5, 2007, hearing, we can nevertheless conclude that the trial court did not abuse its discretion in denying the Illulians request.

As Sprint aptly points out in its respondents brief, Fidler represented the Illulians from the onset of this litigation until March 2007, when Jones Bell substituted into the case as the Illulians counsel. While we have great sympathy for Fidlers physical condition and illness, there is no evidence in the appellate record that he could not work on the Illulians case between May 25, 2005, when the original complaint was filed, until September 18, 2006, when he filed his declaration of medical unavailability. Likewise, his declaration only indicates that he would be unavailable until November 15, 2006. He never testified that he was unable to work between November 15, 2006, and March 5, 2007, the date of the then-scheduled final status conference. In fact, although he was visiting the hospital once every two weeks, he expressly stated that he had been working full time beginning December 1, 2006. Thus, there is no reason to believe that he was incapable of evaluating the Illulians case and retaining an expert.

Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 (Hernandez) is readily distinguishable. In that case, the plaintiff in a personal injury action learned in early September 2003 that his attorney was ill. (Id. at pp. 12441245.) The attorney sought a continuance on September 12, 2003, three days before trial. The trial court continued the trial to December 15, 2003, but the attorney died on September 20, 2003, of pancreatic cancer. (Id. at pp. 1245, 1247.) The plaintiff learned of the death on September 29, 2003, and began looking for new counsel that day. On October 2, 2003, he met with a new lawyer, but the lawyer would not take the case unless the trial was continued again. On October 17, 2003, the trial court granted the plaintiffs ex parte application for continuance of trial (to January 26, 2004), but denied the plaintiffs request to reopen discovery. The trial court apparently did not consider the fact that the new attorney was unable to start trial on January 26, 2004, or that the plaintiff was scheduled for spinal surgery in December 2003. (Id. at p. 1245.) The Court of Appeal agreed that the trial continuance was too brief and that the refusal to reopen discovery was an abuse of discretion. (Id. at pp. 12451246.)

Unlike the plaintiffs situation in Hernandez, the Illulians here were represented by counsel at all times and there is no evidence that that attorney could not actively litigate the action, specifically by designating expert witnesses. Moreover, while the attorney in Hernandez was suffering from a terminal illness [that made] it more likely that . . . [he] was not as organized, focused or vigorous an advocate as he had been in healthier times (Hernandez, supra, 115 Cal.App.4th at p. 1247), Fidler began working full time in December 2006. There is no evidence that while he was working, he was too ill to review Sprints demand for expert witness exchange, to designate experts on behalf of the Illulians, or to designate a rebuttal expert witness in response to Sprints designation.

Bolstering the Court of Appeals conclusion in Hernandez was the trial courts apparent failure to consider the plaintiffs medical needs in setting the trial date. (Hernandez, supra, 115 Cal.App.4th at p. 1247.) Not so in this case. Here, the trial court did continue the final status conference and trial to a time when the Illulians and their new counsel could be present.

Under these circumstances, we cannot adopt the Illulians contention that the trial court abused its discretion in denying their request to extend the deadline to designate expert witnesses.

II. Substantial Evidence Supports the Trial Court Judgment

Sprint argues that the Illulians have forfeited their claim of insufficiency of the evidence because they failed to set forth all material evidence on the point. We need not decide this issue. Substantial evidence supports the trial courts finding that Sprint was not negligent. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925926.)

In their opening brief, the Illulians argue that Sprint breached a duty to them by failing to provide them with adequate notice of the construction and installation of the cell cabinet. The evidence indicates otherwise. Specifically, Acosta testified that Sprint was not required to give notice to homeowners that it was seeking an encroachment permit for the cell cabinet from CalTrans. While Sprint was required to obtain approval from the CCC, it did so, in the form of a permit waiver. And, Sprint was not required to mail notice to nearby homeowners. It only was required to provide posted notice, which it did.

The Illulians challenge the propriety of the posted notice by claiming that the address was incorrect. However, because there was no evidence that the Illulians ever visited the property during the time that the notice was posted, they could not have been aware of, or relied upon, the 30425 address listed on the plans and applications. Moreover, the Illulians themselves did not testify that they relied upon the posted notice.

III. Due Process

Finally, the Illulians argue that Sprints failure to provide the Illulians with mailed notice of the cell cabinet construction violated their due process rights. Admittedly, the Illulians did not present this issue below and have raised it for the first time on appeal. Arguably, therefore, the issue has been waived. (See, e.g., Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983.)

We need not resolve the waiver issue. Based upon the arguments and legal authority presented, we conclude as a matter of law that the Illulians due process rights were not violated as there was no taking of their property. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632 [constitutional issues are reviewed de novo].)

The state and federal Constitutions prohibit the government from depriving persons of property without due process. (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 622.) That property right includes the right of access, ingress and egress to and from [a persons] property or, generally, the right of access over the street to and from [the] property. (Bacich v. Board of Control (1943) 23 Cal.2d 343, 350.)

Here, ample evidence supports the trial courts conclusion that Sprints cell cabinet does not block the Illulians right of access. Rather, as set forth above, DuBois testified that the Sprint equipment does not interfere with the plans for development as reflected in the Illulians 1994 drawings. And, the Illulians had no development plans of their own on file with any of the requisite entities between 1997 and 2007, during which time the cell cabinet was installed. Absent evidence of a taking of their property interest, the Illulians claim that their right to procedural due process was violated fails.^[4]

DISPOSITION

The judgment of the trial court is affirmed. Sprint is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, P. J.

BOREN

_____________________, J.

DOI TODD

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^[1] On October 29, 2008, we granted the Illulians motion to augment the record to add Fidlers declaration re medical unavailability.

^[2] Certainly the word disposing is a typographical error. The parties debate what the Illulians and/or Fidler intended to write. We discuss this issue below.

^[3] We hereby grant the Illulians motion to augment the appellate record to add the reporters transcript of March 5, 2007, hearing.

^[4] It follows that we need not determine whether Sprints actions constitute state action.