Cosolo v. Verizon Cal. Inc
| Decision Date | 14 March 2011 |
| Docket Number | No. RCVRS099168,E049017,RCVRS099168 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DOMINICK COSOLO et al., Plaintiffs and Respondents, v. VERIZON CALIFORNIA, INC., Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of San Bernardino County. David A. Williams, Judge. Affirmed.
Kinkle, Rodiger and Spriggs and Wesley D. Hellerud for Defendant and Appellant.
Law Offices of C. Joe Sayas, Jr., C. Joe Sayas, Jr., and Karl P. Evangelista for Plaintiffs and Respondents.
On November 7, 2006, plaintiffs Dominick Cosolo, Glen Navalta, and Mae Navalta (collectively "plaintiffs") filed a complaint alleging causes of action against defendant Verizon Communications, Inc. (Verizon) and its various subcontractors fornuisance and negligence. On July 17, 2008, plaintiffs filed a third amended complaint in which they added a cause of action against the City of Chino (City) for inverse condemnation. Verizon eventually settled with plaintiffs for a total of $22,500 to plaintiffs collectively; the stipulated partial settlement agreement expressly reserved ruling on the issue of attorneys' fees and costs. The court later declared plaintiffs the prevailing party; it awarded attorneys' fees in the amount of $185,674.22 and costs in the amount of $12,829. Verizon appeals, contending plaintiffs were not legally entitled to costs and fees or, in the alternative, that the court abused its discretion in granting the awards. We affirm.
Plaintiffs alleged that in 2004, Verizon commenced a project to lay underground fiber optic cable in the City of Chino. Verizon applied for and obtained an encroachment permit from the City for the work to be performed. The permit required that Verizon comply with the provisions of Chino Municipal Code, Chapter 12.02: "Verizon „agree[s] to compensate the City of Chino and any other party for all costs to restore any and all damage to the public right-of-way, other city property; and other life or property; and for all remediation costs of all environmental damage caused, directly or indirectly, by [Verizon's] acts or omissions as required by Chapter 12.02 of the Chino Municipal Code.'" According to section 12.02.030 of the Chino Municipal Code "1) each applicant who, directly or indirectly, causes damages, interference or obstruction to such interests, rights, or property belonging to the city or private property shall restore same to like or better condition tha[n] existed prior to the damages, and 2) each applicant who fails to restore such interest, rights or property belonging to the city or private property shall be liable for all costs to restore same and for reasonable attorneys fees and expert witness fees in the event litigation and other legal action is required to collect such costs." In the event of such damage and remediation, the municipal code required that the restoration be done to the satisfaction of the City's director of public works.
On or about February 15, 2005, Verizon contracted with codefendant, The Fishel Corporation (Fishel), to act as the general contractor for the project. Fishel subcontracted different portions of the project to codefendants S&S Directional Drilling, Inc. (S&S) and Horizon Underground, Inc. (Horizon).
On or about March 28, 2005, Horizon punctured the lateral sewer line connecting the Navalta home to the City's main sewer line. The Navalta home was subsequently flooded with raw sewage. On or about May 17, 2005, Horizon punctured another lateral sewer line connecting the Cosolo home to the City's main sewer line. The Cosolo home was similarly flooded with raw sewage. Plaintiffs allegedly incurred damages including repairs and cleaning of their respective homes, temporary lodging expenses, diminution of their home values, and emotional distress.
After plaintiffs and the City's director of public works unsuccessfully attempted to resolve the issue with Verizon regarding the expenses incurred for the restoration of the plaintiffs' homes and other damages during the ensuing year and a half, plaintiffs filed suit against Verizon and its subcontractors on November 7, 2006. Cosolo soughtrestorative damages in the amount of $64,453.77; Navalta sought $42,968.85. Plaintiffs additionally sought $50,000 in diminution of the value of their respective homes, $45,000 in emotional distress damages per plaintiff, and attorneys' fees and costs.
During subsequent litigation of the matter, plaintiffs conducted 11 depositions and propounded 62 sets of written discovery. Defendant propounded an additional 40 sets of written discovery. Thus, a total of 102 written sets of discovery were propounded. As a result of the discovery, plaintiffs amended their complaint to allege a cause of action against City on July 17, 2008.
In an attempt to settle the matter, the parties sought an early adjudication, essentially an advisory opinion, on the issue of whether plaintiffs would be entitled to attorneys' fees and costs should Verizon settle the matter with plaintiffs in any amount. The court declined the invitation to issue an advisory ruling:
On January 22, 2009, the parties entered into a settlement agreement reserving the court's jurisdiction to rule on the issue of attorneys' fees and costs. After extensive briefing on the issue, the court awarded attorneys' fees to plaintiffs in the amount of $185,674.22. The court requested that plaintiffs file a separate memorandum of costs. After plaintiffs filed an itemized memorandum of costs, the court denied Verizon's motion to tax plaintiffs' costs in the amount of $12,829.
Verizon filed its reply brief in this appeal on September 17, 2010. On the same date it filed a motion seeking to augment the record with transcripts of the depositions of plaintiffs conducted on July 17, 2008, and plaintiffs' mediation brief filed February 18, 2008, totaling hundreds of additional pages (the attached materials are not Bates stamped as required by California Rules of Court, rule 8.155(a)(2)).2 In their opposition filed on October 4, 2010, plaintiffs argued that augmentation of the attached materials was improper because the deposition transcripts were never filed, lodged, or considered by the court below. Likewise, plaintiffs maintain augmentation of the record with their mediation brief was improper because it was a confidential document forbidden from such disclosure. On October 12, 2010, we issued an order reserving ruling on the motion for consideration with the appeal. We have now considered the materials with which Verizon proposes to augment the record. We agree with plaintiffs that augmentation of those documents is improper and, therefore, deny Verizon's motion to augment.
(In re A.B. (2008) 164 Cal.App.4th 832, 839.)
Appellate review of deposition transcripts '"is limited to those portions of the depositions which were abstracted and placed before the court in'" moving papers filed below. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962, quoting Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 336, italics omitted; see also Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) (In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1209.)
Verizon has failed to establish that the deposition transcripts were filed, lodged, or considered by the court below. Rather, since the particular deposition references relied on by the parties below were attached to their points and authorities, it appears that only those particular references were before the trial court in making its decisions. Indeed, Verizon admits in its motion that only "portions of these documents have been filed and/or lodged in the case in superior court." This court can only rely on evidence that was before the trial court; thus, only those references to the deposition transcripts considered by the court below can be relied upon by this court in deciding whether the trial court's decision was correct. Therefore, Verizon's motion to augment the record with the attached deposition transcripts must be and is denied.
"No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given." (Evid. Code, § 1119, subd. (b); Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 158-159.)
Verizon fails to assert that plaintiff's mediation brief was considered by the ruling court below. Moreover, the brief is not stamped "filed," suggesting, as asserted by plaintiffs,...
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