This case was last updated from Los Angeles County Superior Courts on 06/25/2019 at 13:49:55 (UTC).

ADEL TRINIDAD LUZURIAGA VS KURT J KIRCH AND DELMA R KIRCH

Case Summary

On 05/11/2015 ADEL TRINIDAD LUZURIAGA filed a Property - Other Real Property lawsuit against KURT J KIRCH AND DELMA R KIRCH. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are JOHN P. DOYLE and RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3836

  • Filing Date:

    05/11/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOHN P. DOYLE

RALPH C. HOFER

 

Party Details

Plaintiffs and Respondents

THE ADEL TRINIDAD LUZURIAGA TRUST

LUZURIAGA ADEL TRINIDAD

JANNEY & JANNEY ATTORNEY SERVICE INC.

Defendants, Cross Plaintiffs and Appellants

KIRCH DELMA R

KIRCH KURT J

Trustee, Plaintiff and Respondent

LUZURIAGA ADEL TRINIDAD

Other

GARRETT & TULLY

Attorney/Law Firm Details

Plaintiff Attorneys

MACCARLEY MARK

MACCARLEY AND ROSEN PLC

OSBORNE BRIAN ALAN

Defendant Attorneys

MATTHEW M. GORMAN THE GORMAN LAW FIRM

OSBORNE LAW FIRM

TULLY JOHN CHRISTIAN III

Respondent Attorney

SQUIRES RYAN C.

 

Court Documents

Trial Brief

11/5/2018: Trial Brief

Request

11/14/2018: Request

Statement of Decision

11/28/2018: Statement of Decision

Unknown

11/28/2018: Unknown

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/9/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order

1/9/2019: Minute Order

Objection

3/6/2019: Objection

Minute Order

3/6/2019: Minute Order

Unknown

3/6/2019: Unknown

Minute Order

3/13/2019: Minute Order

Motion to Tax Costs

4/9/2019: Motion to Tax Costs

Objection

4/9/2019: Objection

Unknown

5/8/2019: Unknown

Unknown

5/20/2019: Unknown

Unknown

5/22/2019: Unknown

Opposition

5/30/2019: Opposition

Reply

6/7/2019: Reply

Minute Order

6/14/2019: Minute Order

18 More Documents Available

 

Docket Entries

  • 06/14/2019
  • at 08:30 AM in Department D; Hearing on Motion to Tax Costs (filed on behalf of Defendants Kurt J. Kirch and Delman E. Kirch) - Held - Motion Granted

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  • 06/14/2019
  • Minute Order ( (Hearing on Motion to Tax Costs filed on behalf of Defendants ...)); Filed by Clerk

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  • 06/07/2019
  • Reply (Defendants Kurt J. Kirch's and Delma E. Kirch's Reply to Plaintiff's Opposition to Motion to Tax Costs); Filed by KURT J KIRCH (Defendant); DELMA R KIRCH (Defendant)

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  • 06/06/2019
  • Declaration (Declaration of Araceli Hernandez); Filed by THE ADEL TRINIDAD LUZURIAGA TRUST (Plaintiff)

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  • 06/06/2019
  • Memorandum of Costs (Summary); Filed by THE ADEL TRINIDAD LUZURIAGA TRUST (Plaintiff)

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  • 05/30/2019
  • Opposition (Opposition to Motion to Tax Costs); Filed by THE ADEL TRINIDAD LUZURIAGA TRUST (Plaintiff)

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  • 05/22/2019
  • Appeal - Notice of Filing of Notice of Appeal (for Notice of Appeal, filed 5/8/19); Filed by Clerk

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  • 05/21/2019
  • Appeal - Reporter Appeal Transcript Process Fee Paid; Filed by DELMA R KIRCH (Appellant); KURT J KIRCH (Appellant)

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  • 05/20/2019
  • Appeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by DELMA R KIRCH (Appellant); KURT J KIRCH (Appellant)

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  • 05/08/2019
  • Appeal - Notice of Appeal/Cross Appeal Filed; Filed by DELMA R KIRCH (Appellant); KURT J KIRCH (Appellant)

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268 More Docket Entries
  • 06/19/2015
  • Proof of Service (not Summons and Complaint); Filed by ADEL TRINIDAD LUZURIAGA (Plaintiff); THE ADEL TRINIDAD LUZURIAGA TRUST (Plaintiff)

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  • 06/19/2015
  • Proof of Service; Filed by Attorney for Plaintiff

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  • 06/15/2015
  • Proof of Service (not Summons and Complaint); Filed by ADEL TRINIDAD LUZURIAGA (Plaintiff); THE ADEL TRINIDAD LUZURIAGA TRUST (Plaintiff)

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  • 06/15/2015
  • Proof of Service; Filed by Attorney for Plaintiff

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  • 06/12/2015
  • Proof of Service; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 06/12/2015
  • Proof of Service (not Summons and Complaint); Filed by ADEL TRINIDAD LUZURIAGA (Plaintiff); THE ADEL TRINIDAD LUZURIAGA TRUST (Plaintiff)

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  • 05/11/2015
  • Summons; Filed by null

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  • 05/11/2015
  • Complaint filed-Summons Issued; Filed by null

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  • 05/11/2015
  • Complaint filed-Summons Issued

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  • 05/11/2015
  • Summons Filed

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Tentative Rulings

Case Number: EC063836    Hearing Date: December 04, 2020    Dept: D

TENTATIVE RULING

Calendar: 21

Date: 12/4/20

Case No: EC 063836

Case Name: Luzuriaga v. Kirch, et al.

MOTION TO ALLOW RECORDING AND FOR CLARIFICATION

Moving Party: Plaintiff Adel Trinidad Luzuriaga, Trustee

Responding Party: Defendants Kurt Kirch and Delma Kirch

RELIEF REQUESTED:

Order allowing recording of easements and injunctions

Clarification of Award of Costs

Clarification of when three year time for recording the equitable easement begins given delay caused by appeal.

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Adel Luzuriaga, trustee of the Adel Trinidad Luzuriaga Trust, alleges that the Trust is the owner of real property in Glendale which was originally part of a larger parcel of property, which was subdivided into four parcels in 1970.

Plaintiff alleges that when the City of Glendale approved the proposed subdivision and Parcel Map it insisted and gained concurrence from the original owner of the parcel, the Henrys, that they would provide legal access for ingress, egress and utilities installation as to each of the proposed parcels. The Henrys then granted Parcel B an express easement for ingress and egress over portions of Parcels C and D, but failed provide express easements for access to Parcels C and D. In approximately 1973, the parcels were sold, and the new owners of Parcels B and C provided among themselves for their use of an unimproved path that later became a common paved access road for ingress and egress to both parcels, over a portion of Parcel D, and terminating at Parcel D.

Plaintiff acquired Parcel D in 1988, which, but for the level pad at the end of the access road, is mostly hilly terrain. Plaintiff now proposes to improve Parcel D with a single-family residence, but the City of Glendale has required as a condition of approval of her proposal to develop her property that she bring evidence of an express easement with a physical width and grade to satisfy current City requirements to permit vehicle and pedestrian access, as well as access for City fire and emergency vehicles.

Plaintiff alleges that the common paved access road is the only way to access Parcel D by vehicle, and that it has been used continuously for at least 30 years, although the road is not currently wide enough to satisfy the City’s conditions for approval. Plaintiff is now seeking to quiet title over the common paved access road at the width mandated by the City for the benefit of Parcel D over Parcels B and C. Plaintiff has obtained the concurrence of the titleholder of Parcel B, but the owners of Parcel C, defendants Kurt J. Kirch and Delma R. Kirch, have refused to grant an express easement, and plaintiff now has no choice but to proceed by way of lawsuit to confirm her rights and secure necessary access to her property.

Defendants have brought a cross-complaint to quiet title to their property and for declaratory relief.

From May 7, 2018 through May 22, 2018, a court trial was conducted in the matter. The court requested post-trial briefs, and in November of 2018, the court issued its Statement of Decision. Judgment was entered in the matter on March 13, 2019. The court entered judgment in favor of plaintiff for an implied easement by necessity, for vehicular and pedestrian traffic over the common paved access road to Parcel D. The court also entered judgment for an easement by implication, and an equitable easement for vehicular and pedestrian traffic over the common paved access road for a width required by the Code of the City of Glendale if the City does not grant a variance. The court found the value of the equitable easement to be $80,000, payable by plaintiff to defendants if plaintiff elects the equitable easement. The court did not find in favor of plaintiff on a prescriptive easement. The court found for plaintiff on the claim for interference with easement. The court awarded plaintiff no special or general damages, and found that plaintiff and cross-defendant “Adel Luzuriaga is the prevailing party and is awarded costs.”

The judgment finds that cross-complainants prevailed on the first and second causes of action of the cross-complaint and that the declaratory relief claims were covered by the judgment on the complaint. No orders quieting title or issuing a permanent injunction in favor of cross-complainants were issued. The judgment states that cross-complainants are not awarded any attorney’s fees, costs or damages, but provides a mechanism by which damages can be claimed for post-judgment damages relating to the construction, repair or maintenance of the common paved access road by plaintiff.

The file shows that judgment was filed and entered on March 13, 2019, the clerk served Notice of Entry of Judgment on March 13, 2019, and plaintiff served Notice of Entry of Judgment on March 14, 2019.

Defendants evidently appealed the judgment on May 8, 2019. The file shows that on June 23, 2020, the court of appeal ordered the appeal dismissed due to appellants’ default, and on September 15, 2020, filed its remittitur, indicating that its June 23, 2020 order had become final, and ordering “Respondent(s) to recover their costs on appeal.”

ANALYSIS:

Order Re Easements

Plaintiff seeks an order permitting the recording of the easements and injunctions which the court provided could be recorded after application to the court providing defendants notice of the intent to record such easements.

The Judgment, entered March 13, 2019, provides, in pertinent part, “Before recording the implied easement by necessity with the County Recorder, plaintiff must file an application with this Court providing defendants 30 days’ notice. If a hearing is requested by any party of the Court following the filing of plaintiff’s application, plaintiff must wait until after the hearing before recording any such easement.” [Ex. A, Judgment, (A)(1)]. This 30 day noticed motion is required for each of the other easements which were recognized by the judgment as well as the mandatory and permanent injunction. Notice was served on September 18, 2020, for a hearing on January 29, 2021, which was advanced by the court to this date, December 4, 2020, with the thirty days’ notice provided. It is appropriate to now approve plaintiff’s application to pursue the remedies adjudicated in the Judgment.

Defendants in opposition do not oppose plaintiff recording the easement by necessity, easement by implication, equitable easement or omnibus access easement, but indicate that they do oppose plaintiff recording the mandatory injunction and permanent prohibitory injunction to the extent those injunctions mandate the removal of improvements on the hillside slope northeast of defendants’ driveway, or along the northeast side of the common paved access road, but suggest that the injunctions require removal of improvements near the southwest corner of defendant’s driveway only. The argument is that because plaintiff has not presented evidence of the scale of such improvements, it would be premature to permit the recording of the injunctions in their current form. The opposition suggests that information concerning plaintiff’s plans be submitted and a second hearing conducted to discuss the parameters of any injunctive relief.

This argument appears to be an effort to attack the very detailed judgment in this matter already entered by the court after a lengthy trial and consideration of evidence. The reply indicates that the orders are clear, and were carefully negotiated between the parties, but also seems to concede that some of defendants’ concerns with respect to the scope and effect of the injunctive relief are without basis, as the required removals will be limited. This issue will be discussed at the hearing, as it does not appear that clarification is necessary.

Order Re Equitable Easement

Plaintiff also seeks an order clarifying the judgment with respect to the equitable easement. While plaintiff indicates that plaintiff is not electing at this time to pursue the equitable easement, plaintiff requests clarification if there was a tolling of the three year period while the appeal was pending. The motion requests that the three year period begin in the date of this hearing.

The Judgment, entered on March 13, 2020, states, in pertinent part:

“Plaintiff has three years from the date of entry of judgment to obtain the equitable easement or plaintiff will be permanently barred from obtaining an equitable easement….If plaintiff elects the equitable easement, plaintiff must provide written notice to defendants’ attorneys that plaintiff is invoking the equitable easement. Plaintiff must pay defendants $80,000.00 within 60 days of such election or the recording of the equitable easement, whichever occurs first.”

[Exhibit A, Judgment (A)(4)(b)].

It would appear that it would be equitable to toll this three year time period during the time the appeal was pending, when the automatic stay was in place, and plaintiff was prevented from pursuing remedies, and that plaintiff is reasonably requesting a finding to assist in the pursuit of the equitable remedy going forward. The opposition does not address this request.

The court will not issue an order that the three-year period begins to run this date, as requested, but will in equity find that the three-year time period set forth in the Judgment concerning plaintiff electing to and obtaining an equitable easement will be tolled from the date of the filing of notice of appeal, on May 8, 2019, to the date of the filing of the clerk of remittitur, September 15, 2020. The remaining terms of the Judgment stand as previously entered and filed.

 

Costs

Plaintiff seeks clarification of a June 14, 2019 order on a motion to tax costs brought by defendants. Specifically, plaintiff notes that the tentative ruling and minute order includes discrepancies, consisting of a reduction of $111 and a reduction of $2,512 from the total costs which are not clearly reflected in the analysis portion of the order.

It appears that there is no inconsistency with respect to the $111 deduction, as the analysis with respect to Item No. 4, for deposition costs, states that the worksheet figures total only $5,024, when the memorandum overall seeks $5,135, and that the opposition concedes that the proper amount sought should have been $5,024, so the $111 reduction is proper. The motion appears to concede this point.

However, it also appears that the actual ruling makes a deduction of $2,512, which cannot be traced back to any Item of costs or analysis in the ruling. [See Exhibit B, June 14, 2029 Minute Order]. This appears to have been a typographical error, and that sum should not have been deducted from the total costs awarded.

The opposition seems to concede that there was an apparent error here, but argues that plaintiff cannot now object to the order or request clarification, because any objection to a proposed order must ordinarily be made within five days of service of the order under CRC Rule 3.1312. As argued in the reply, however, the court retains an inherent power to correct clerical errors. The court will accordingly exercise this power to clarify and correct its cost award to reflect that this $2,512 reduction was in error. The total costs awarded of $7,773.48 will accordingly be adjusted by $2,512 for an adjusted total award of $10,285.48. (Total costs awarded= (Cost claimed of $31,425, less $111, less $56.02, less $6,914.50, less $591, less $13,467) $10,285,48).

RULING:

Motion for Order Allowing Recording of Easements and Injunctions and to Clarify the Award of Costs is GRANTED.

Good cause appearing, and plaintiff having filed a duly noticed motion in conformity with the Court’s judgment, the Court orders that following the hearing this date, plaintiff may record the easement by necessity, the easement by implication, the mandatory injunction and the permanent prohibitory injunction.

The Court also finds good cause to find that the three year time period set forth in the Judgment concerning plaintiff electing to and obtaining an equitable easement will be tolled from the date of the filing of notice of appeal, on May 8, 2019, to the date of the filing of the clerk of remittitur, September 15, 2020. The remaining terms of the Judgment stand as previously entered and filed.

To the extent plaintiff seeks an order clarifying the Court’s award on the June 14, 2019 motion to tax costs, the Court on its own motion finds it appropriate to clarify and correct its cost award as reflected in the minute order, to reflect that a $2,512 reduction from the costs sought was made in error. The total costs awarded of $7,773.48 are accordingly adjusted by $2,512 for an adjusted total award of $10,285.48. (Total costs awarded= (Cost claimed of $31,425, less $111, less $56.02, less $6,914.50, less $591, less $13,467) $10,285,48).

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

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