Denys H. Oberman vs. Shirish Jagmohandas ShahMotion OtherCal. Super. - 4th Dist.February 18, 2016C e : oad R O N N O N N N N N m m om em ms em em es em ® NN & Lh BA W R N = © Vv ® 9 a n A W N = O © ® u a WL A W N BANK, N.A., a National Association; ‘FIDELITY NATIONAL TITLE INSURANCE SOLOMON E. GRESEN [SBN: 164783] - JACK RISEMBERG [SBN: 291788] RGLAWYERS, LLP "15910 VENTURA BOULEVARD, SUITE 1610 ~ ENCINO, CALIFORNIA 91436 TELEPHONE: (818) 815-2727 FACSIMILE: (818) 815-2737 Attorneys for Defendants and Cross-Complainants, SHIRISH J. SHAH and SANDHYA S. SHAH (SPACE BELOW FOR FILING STAMP ONLY) ELECTRONICALLY FILED Superior Court of California, County of Orange 11/26/2018 at 08:00:00 AM Clerk of the Superior Court By Jaime Cordero, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER - DENYS H. OBERMAN, individually, and as) TRUSTEE of the DENYS H. OBERMAN LIVING TRUST, Dated 7-6-2006, Plaintiffs, VS. SHIRISH JAGMOHANDAS SHAH, an individual; SANDHYA SHIRISH SHAH, an individual; ROBERT DOUGLAS MCCARTHY, an individual; RDMS, INC, a California corporation; WELLS FARGO COMPANY, a California corporation, DOES 1 through 20, Inclusive; and all persons unknown claiming any legal or equitable right, title, estate, lien, or interest in the real property described in the First Amended Complaint adverse to Plaintiffs title/interest, or any cloud upon plaintiffs title/interest thereto, named herein as DOES 21 through 50, Inclusive, Defendants. N a r Na or ? N e e r N e ’ N a r ’ a e r o ? N a t ’ N e Na ar Na ar ? ao oe N r N a a ? a e N e e ? N r N m N e ” a e ” a ae ” N e N e a e ” a e ’ AND RELATED CROSS-ACTION. CASE NO.: 30-2016-00836424-CU-OR-CJC Complaint Filed: 2/18/2016 Assigned to: Hon. Layne H. Melzer, Judge Dept: C12 DEFENDANTS’ SHIRISH AND SANDYA SHAH’S MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a); AND REQUEST FOR STATEMENT OF DECISION DEPT.: C12 Trial Date: November 5, 2018 Defendants and Cross-Complainants Shirish J. Shah and Sandya S. Shah respectfully submit the following Motion for Judgment pursuant to Code of Civil Procedure sectio 631.8(a) as to the First Cause of Action for Quiet Title, the Second Cause of Action for Ejectment, and the Sixth Cause of Action for Declaratory Relief. 1 1 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631 3(a) po s 5 ¢ Ed ENE © o N W h W N MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) L INTRODUCTION Mr. Woolley testified that his survey is just his opinion. That his opinion is based on a preponderance of the evidence, and that other Surveyors may reasonably disagree with his opinion. As a matter of law, Mr. Wooley’s opinion based on a preponderance is insufficient to support Ms. Oberman’s quiet title claim. Evidence Code section 662 provides that “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This | presumption may be rebutted only by clear and convincing proof.” No such proof has been ‘admitted into evidence. As a matter of law, then, judgment should be entered in favor of Defendants. Ms. Oberman relies solely on the Woolley Survey to support her claims. As explained below, even if the Court disagrees with the application of Evidence Code section 661, the Woolley survey should be deemed void by this Court for its many failures. As a result, Ms. Oberman has not met her burden to present evidence sufficient to constitute causes of action for Quiet Title and Ejectment, such that the Court should enter judgment in favor of Shirish Shah and Sandya Shah and against Plaintiffs pursuant to Code of Civil Procedure section 631.8(a). IL. ROLE OF THE COURT UNDER SECTION 631.8(a) ‘Code of Civil Procedure section 631.8 states in relevant part: "(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in "Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint. "(b) If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for. "(c) If the motion is granted, unless the court in its order for judgment otherwise 2 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) E y E specifics, such judgment operates as an adjudication upon the merits." ‘Code of Civil Procedure section 631.8 serves the same purpose as a nonsuit in a jury trial. National Farm Workers Service Center, Inc. v. M. Caratan, Inc., 146 Cal. App.3d 796, 807 (1983). Upon a motion for judgment in a court trial, the judge shall weigh the evidence. The judge may exercise the prerogatives of a fact trier by refusing to believe witnesses. The judge may also draw conclusions at odds with expert opinion testimony. Roth v. Parker, 57 Cal. App.4th 542, 549-551 (1997). Conflicts in the evidence, conflicting interpretations thereof, conflicting inferences which reasonably may be drawn therefrom, or the refusal to draw theres, are within the court's power under a Code of Civil Procedure section 631.8 motion for judgment. Nemarnik v. Los Angeles Kings Hockey Club, 103 Cal.App.4th 631, 635 (2002). III. DEFENDANTS ARE ENTITLED TO JUDGMENT IN THEIR FAVOR AS TO THE FIRST CAUSE OF ACTION TO QUIET TITLE “In an ordinary action to quiet title it is sufficient to allege in simple language that the plaintiff is the owner and in possession of the land and that the defendant claims an interest therein adverse to him. ( Citations.)” South Shore Land Co. v. Petersen, 226 Cal. App. 2d 725, 740 (1964). In the original Complaint, Plaintiffs alleged that Quiet Title was based on theories of adverse possession, prescriptive easement and agreed upon boundary. After almost a year of litigating these claims with little success, Plaintiffs abandoned them in favor of a brand new theory in their First Amended Complaint. The new theory is based entirely on the Woolley Survey. As a result, if the Woolley survey is inaccurate or was made contrary to established ‘law, the Oberman Quiet Title claim must fail. A. Statement of Evidence at Trial Exhibit 135 is the “Record of Survey No. 2016-1224” (“Woolley Survey”). Woolley prepared the Woolley Survey in November 2016, and it was filed by him and Plaintiff Oberman without right, permission or privilege and accepted by the Orange County Surveyor’s Office, and duly recorded as Instrument No. 2017000026396, in Book 290, Pages 19 to 22 of Records of Survey, in the Official Records of Orange County, California on or about January 19, 2017. 3 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) O W N 10 11 12 14 S| 16 17 18 19 20 21 2 24 25 26 27 28 © © 9 a Ww Pursuant to his contract with Ms. Oberman (Ex. 77, page 4), for $5,500 for the first phase, ~ Woolley was hired to “locate existing monuments in Block 12,” “locate existing sidewalk and curb along 12th and 13th streets,” and “review survey research from Orange County.” Mr. Woolley testified that Ms. Oberman’s told him that her goal was to show that the wall between the Oberman and Shah properties encroached over the property line. So without informing Ms. Oberman, Woolley determined that the best way to accomplish Ms. Oberman’s goal was to remeasure the monuments around the Oberman residence and the surrounding neighborhood to compare to the measurements in the first survey in 1918. He was not hired to do this, nor was he asked to do this by Ms. Oberman or anyone else. Based upon his measurements, Woolley opined that the entire Oberman/Shah block is off by a few inches. As it states in the Woolley Survey (Ex. 135, page 3), the replacement of monuments caused “the angles and distances in Lots 1, 2, and 3 (and most likely other Lots) in Block 12 to differ greatly from record ...” In sum, it is Mr. Woolley’s opinion that the entirety of Block 12 is not where the 1918 survey shows it should be. | On the strength of this opinion, Mr. Woolley decided to reform Block 12 back to its alleged historic boundaries. He did not ask Ms. Oberman for permission, but his fees for doing so exceeded $35,000. Woolley moved, replaced or removed nine (9) monuments in and around Block 12, numbers 1, 3, 14, 15, 27, 28, 39, 40 and 42, again without permission from anyone. Though he admits a reasonable surveyor may disagree with his opinion, Mr. Woolley removed monuments demonstrating the opinions of at least three different licensed surveyors. As part of this, Mr. Woolley removed the monuments set at the 4 corners of the Oberman property, and replaced them at different locations. Mr. Woolley agreed that it was more likely than not that those 4 markers he moved around the Oberman lot were set by the property owner, though Oberman denied hiring a surveyor to set those monuments when asked by Woolley. Mr. Woolley could not think of any other — who would have asked a surveyor to set prominents around the 4 corners of the Oberman lot. Mr. Woolley explained that he pulled the other surveyors’ monuments to reduce confusion, but that is just hubris. Confusion abounds. There is the instant lawsuit to quiet title. 4 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) OO ©0 0 NN O N Wn kr W N m e m e m em p e s p m e m e m e m p m \ O o o ~ NN Wn EE N w o N I — oO ¢ N N — OO B D ND Bo No ND aN Wn +H Ww No N O o R i a ~ ~ There is a class action filed against Mr. Woolley and others for slander of title. The monument showing the centerline of 12th Street is clearly not in the center of the street. (Ex. 537) After viewing Exhibit 537, the Court indicated that it did not need a site inspection “to show that the monument is not in the center of the intersection.” And the eastern boundary of the Shah property at 1200 W. Oceanfront now lies somewhere around 4 inches east of the previous property line, giving Mr. and Mrs. Shah a piece of Newport Beach sidewalk. It, therefore, can be seen that Mr. Woolley’s acts of moving the monuments have created confusion rather than avoided it. ~ B. The Woolley Survey Is Void as a Matter of Law Because it Is Not Based on Clear and Convincing Proof As a matter of law, Mr. Wooley’s opinion based on a preponderance is insufficient to support Ms. Oberman’s quiet title claim. Evidence Code section 662 provides that “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” - No such proof has been admitted into evidence. Mr. Woolley testified that his survey was: based on a preponderance of the evidence. That it was just an opinion. That other surveyors ‘may have different opinions, and may reasonably disagree with his results. He testified that his survey did not need to be based on a higher standard, and that he was justified in removing and moving monuments based on a preponderance. Evidence Code section 662 mandates a different result. Absent clear and convincing ~ proof, the Court must find against Ms. Oberman’s claim. There is no discretion under the code. As a matter of law, then, judgment should be entered in favor of Defendants. In addition, Defendants respectfully request that the Court issue a declaration that the Woolley Survey is invalid, and that the Woolley monuments be removed and replaced at the stig locations. The Shah Defendants further request a declaration that the “Record of Survey No. 2016-1224” be delivered to the clerk of the court for cancellation, that it be declared void and removed from ‘the Official Records of Orange County. 1 g MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) wh hs W N O e 3 AN 10 11 12 13 14 15 16 17 18 || 19 20 21 22 23 24 25 26 45) 28 Cc: The Woolley Survey Is Voidable for Failure to Comply with the Professional Land Surveyors Act (B&P Code section 8771) Business and Professions Code section 8771provides, in pertinent part: (a) Monuments set shall be sufficient in number and durability and efficiently placed so as not to be readily disturbed, to ensure, together with monuments already existing, the perpetuation or facile reestablishment of any point or line of the survey. ... (¢) A permanent monument shall be reset in the surface of the new construction or a witness monument or monuments set to perpetuate the location if any monument could be destroyed, damaged, covered, disturbed, or otherwise obliterated, and a corner record or record of survey shall be filed with the county surveyor prior to the recording of a certificate of completion for the project. Sufficient controlling monuments shall be retained or replaced in their original positions to enable property, right-of-way and easement lines, property corners, and subdivision and tract boundaries to be reestablished without devious surveys necessarily originating on monuments differing from those that currently control the area. (Emphasis added.) Plaintiffs’ expert Kevin Hills opined that all surveyors must follow the rules set forth in Section 8771, including Mr. Woolley. Mr. Woolley testified, however, that he did not follow the rules in Section 8771 because they applied only to new construction. This is why Mr. - 29 CC Woolley did not retain or replace “sufficient controlling monuments” “in their original positions to enable property, right-of-way and easement lines, property corners, and subdivision and tract boundaries to be reestablished” as required under Section 8771 (c). Instead of retaining sufficient monuments in their original positions as mandated by Section 8771, Mr. Woolley replaced 9 monuments in what he believed to be their original position as of 1918, and removed all other surveyors’ monuments to allegedly avoid confusion. In so doing, Mr. Woolley violated Section 8771 of the Professional Land Surveyors Act. For this reason, alone, the Woolley Survey should be deemed void by this Court. Plaintiffs’ quiet title claim should be adjudicated in favor of Defendants, as the Woolley Survey is void and is therefore insufficient to establish the boundary line claimed by Ms. Oberman. Plaintiffs should also be ordered to replace all monuments Mr. Woolley touched in their original positions, to comply with the mandate of Section 8771. D. The Landmarks Set by the Owner Must Govern It has long been settled that a surveyor should look for “the actual location of the original landmarks set by (the landowner), and if those were discovered they must govern.” Bullard v. Kempff, 119 Cal. 9, 15 (1897). Mr. Woolley confirmed that the rule is “monuments over 6 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) \ O o o ~ 3 AN Wn A W No — D o ™ N o N o No N Y No No No p t —_ = p— t —_ —_ —_— —_ —_ oo J aN Wn SS Ww No — oS Oo 0 J O N Wn ~~ Ww No —_ o measurements” in California. Nevertheless, Woolley accepted his own measurements over the monuments set by the landowner in this case. This was clear error, and the result is that the Woolley Survey is voidable by this Court. Monuments 27, 28, 39 and 40 were located at the four corners of Plaintiff Oberman’s lot. Mr. Woolley confirmed that it was more likely than not that the 4 orcers around the Oberman lot were set by the property owner, though Oberman denied hiring a SATYRET to set those monuments when asked by Woolley. Mr. Woolley could not think of any other person who would have asked a surveyor to set monuments around the 4 corners of the Oberman lot, other than the property owner. Ms. Oberman, on her part, agreed that at least one of these monuments defined her lot before the wall was built. Her email of August 27, 2015 confirms the accuracy of monument no. 28 as follows: “The Surveyor we retained has found that the location of the Corner marker in the rear alley between 1210 and your client’s site at 1204 W. Oceanfront is accurate. I called and advised Shirish Shah of this. We ask that you, as the licensed G.C., personally supervise the boundary confirmation and any cutting of the slate walkway ...” (Exhibit 7.) “Mr. Woolley moved monument number 28, even though it was set by the property owner and confirmed by Ms. Oberman as accurate. Mr. Woolley moved monuments 27, 39 and 40 even though he believed that they were set by either Ms. Oberman or a prior owner of the Oberman lot. This was clear error. These 4 monuments should have been accepted and “must govern” under the holding of the California Supreme Court in Bullard v. Kempff, above. For figs reasons, the Woolley Survey should be deemed void by this Court. Plaintiffs’ quiét title claim should be adjudicated in favor of Defendants, as the Woolley Survey is void and is therefore insufficient to establish the boundary line claimed by Ms. Oberman. Plaintiffs should also be ordered to replace all monuments Mr. Woolley touched in their original positions, to comply with the mandate of Section 8771. EE. . Monuments Over Measurements The problems in this case started when Mr. Woolley decided that the monuments that Mr. Meidema and 2-3 other surveyors used to determine the Oberman/Shah property line were not in ‘the correct position per the 1918 original survey. Woolley then removed the allegedly 7 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) © 0 3 O&O Wn RA W N = N O N ND N o C E S NO N o rN p e d f t — —_ —_ = —_ — —_ — co J AN wi HH Ww No —_ o © o o ~ N oO wn EE N Ww No — o "incorrect" monuments, sets his own monuments about 3 inches away, and recorded a map with the county surveyor which shows the recently constructed wall to be encroaching onto Oberman’s land by an inch or two on the northerly half the lot. In so doing, Mr. Woolley violated principles of land surveying that have existed for over a century. “Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity. But no law can sanction this course. The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance -- a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice, and necessity are never questioned.” (Emphasis added.) Bullard v. Kempff, Supra at 15. Woolley violated the principles described in the Kempff case. Monuments control course and distance. Id., at 15. Woolley should have accepted the monuments he found, as he accepted some of the very same monuments in his 2007 Survey (Ex. 467, pp. 29-30). ‘The monuments Woolley originally found were supposed to govern. Instead, Woolley ripped them out. Woolleys monuments are now 3 inches off - and at least one of the monuments is visibly not in the center of the 12 Street and Balboa intersection which has existed since the time of President Truman. (Ex. 537.) . For these reasons, the property line in dispute cannot be established by the Woolley Survey. Mr. Woolley ignored existing monumentation set by over 3 different licensed surveyors, in favor of measurements which in his opinion show that the boundaries of the entirety of Lot 12 are off by about 3 inches at the northern borders. (Ex. 135, page 3.) Woolley, therefore, improperly accepted his measurements over established monuments. This was clear error. When a surveyor accepts his measurements over established monuments, “the mischiefs that must follow” are “simply incalculable, and the visitation of the surveyor might well be set down asa great public calamity.” Bullard v. Kempff, Supra at 15. The Woolley Survey is one such public calamity. Walls on Block 12 are now being built crooked to conform with the 8 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) — Oo 0 a3 a N nn BR W N monuments Woolley moved. (Ex. 487 pp. 2,5.) The Woolley Survey should, therefore, be declared void by this Court. Plaintiffs’ quiet title claim should be adjudicated in favor of Defendants, and Plaintiffs should also be ordered to replace all monuments Mr. Woolley touched in their original positions. IV. DEFENDANTS ARE ENTITLED TO JUDGMENT IN THEIR FAVOR AS TO THE SECOND CAUSE OF ACTION FOR EJECTMENT A cause of action for ejectment is inextricably intertwined with a cause for trespass. “Ejectment ipso facto implies trespass. It is properly termed trespass in ejectment.” Garrison v. Sampson, 15 Cal. 93, 95 (1860). “Trespass to property is the unlawful interference with its possession. [Citations.] The tort may be committed by an act that is intentional, reckless [or] negligent . . . . [Citation.] The only intent required is an intent to enter, regardless of the actor's motivation.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 693, p. 1018.) “There may be trespass by . . . placing something on the land[.]” (/d. at p. 1 019.) “When an encroachment actually rests on adjoining land, it constitutes a permanent trespass.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 14.9, p. 25.) “An encroachment is the extension of a building or other structure beyond the boundaries of the Teich on which it was rightfully constructed onto adjoining land . . . without the permission or consent of the adjoining landowner." (Ibid.) Likewise, the essential elements of an ejectment claim are the plaintiff's ownership of “some interest in real property,” and the defendant’s possession and withholding of the property. (5 Witkin, Cal. Procedure (10th ed. 2005) Pleading, § 594, p. 65.) A "court of equity, upon a sufficient statement of facts showing an equitable title and right of possession" may grant relief unter an ejection claim. Murphy v. Crowley 140 Cal. 141, 149 (1903). A. Consent is a Complete Defense Monuments 27, 28, 39 and 40 were located at the four corners of Plaintiff Oberman’s lot. - Mr. Woolley confirmed that it was more likely than not that the 4 markers around the Oberman lot were set by the property owner, though Oberman denied hiring a surveyor to set those monuments when asked by Woolley. Mr. Woolley could not think of any other person who 9 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) © 0 J O&O Wn A WwW N e nN N o N o N o N o N o N o NN No —_ —_ —_ — J m t a — — — would have asked a surveyor to set monuments around the 4 corners of the Oberman lot, other than the property owner. Ms. re — on her part, agreed that at least one of these monuments defined her lot before the wall was built. Her email of August 27, 2015 confirms the accuracy of monument no. 28 as follows: “The Surveyor we retained has found that the location of the Corner marker in the rear alley between 1210 and your client’s site at 1204 W. Oceanfront is accurate. I called and advised Shirish Shah of this. We ask that you, as the licensed G.C., personally supervise the boundary confirmation and any cutting of the slate walkway ...” (Exhibit 7.) The second cause of action simply cannot be established because lack of permission or consent is an essential element of an action for (trespass in) ejectment. Since Ms. Oberman clearly consented in writing and verbally to an agreed-upon boundary (Ex. 7) and the placement of the wall, the Shah Defendants are entitled to judgment in their favor and against Plaintiff as to the Second Cause of Action for Ejectment. B. The Woolley Survey Is Void as a Matter of Law For reasons fully described above, the Woolley Survey is either void as a matter of law under Evidence Code section 662, or should be declared void by this Court for failure to comply with the Professional Land Surveyors Act, Business and Professions Code section 8771. Instead ~ of retaining sufficient monuments in their original positions as mandated by Section 8771, Mr. Woolley replaced 9 monuments in what he believed to be their original position as of 1918, and removed all other surveyors” monuments to allegedly avoid confusion. In so doing, Mr. Woolley violated Section 8771 of the Professional Land Surveyors Act. For this reason, alone, the Woolley Survey should be deemed void by this Court. Plaintiffs’ quiet title claim should Be adjudicated in favor of Defendants, as the Woolley Survey is void and is therefore insufficient to establish the boundary line claimed by Ms. Oberman. Plaintiffs should also be ordered to replace all monuments Mr. Woolley touched in their original positions, to comply with the mandate of Section 8771. The survey should also be declared void because Mr. Woolley failed to accept the monuments set by the property owner at the four corners of the Oberman lot. It has long been settled that a surveyor should look for “the actual location of the original landmarks set by (the 10 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) NO 0 I a N na Rs W N oo ~ J AN w n Ww N o —_ T O oO 0 3 [@ ) wi E N Ww N o — oO landowner), and if those were discovered they must govern.” Bullard v. Kempff, Supra. at p. 15 (1897). Mr. Woolley moved monument number 28, even though it was set by the property - owner and confirmed by Ms. Oberman as accurate. (Ex. 7.) Mr. Woolley moved monuments 27, 39 and 40 even though he believed that they were set by either Ms. Oberman or a prior owner of the Oberman lot. This was clear error. These 4 monuments should have been accepted and “must govern” under the holding of the California Supreme Court in Bullard v. Kempff, above. For hee reasons, the Woolley Survey should be deemed void by this Court. Lastly, the survey should be declared void because Mr. Woolley improperly accepted his measurements over existing monumentation. Mr. Woolley should have accepted the monuments he found, as he accepted some of the very same monuments in his 2007 Survey (Ex. 467, pp. 29-30). The monuments Woolley originally found were supposed to govern. Instead, Woolley ripped them out. Woolleys monuments are now 3 inches off - and at least one of the monuments is visibly not in the center of the 12 Street and Balboa intersection which has existed since the time of President Truman. (Ex. 537.) For these reasons, the property line in dispute cannot be established by the Woolley : Survey. Mr. Woolley ignored existing monumentation set by over 3 different licensed surveyors, in favor of measurements which in his opinion show that the boundaries of the entirety of Lot 12 are off by about 3 inches at the northern borders. (Ex. 135, page 3.) Woolley, therefore, improperly accepted his measurements over established monuments. This was clear error. Bullard v. Kempf, Supra at 15. N The Woolley Survey should, therefore, be declared void by this Court. Plaintiffs’ ejectment claim should be adjudicated in favor of Defendants, and Plaintiffs should also be ordered to replace all monuments Mr. Woolley touched in their original positions. V. PLAINTIFFS’ EQUITABLE CAUSES OF ACTION ARE BARRED BY THE DOCTRINE OF ESTOPPEL Under the doctrine of promissory estoppel, “a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.” Youngman v. Nevada 11 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) A O W N Wn OO © 3 OO 10 11 12 13 14 15 16 17 18 19 20 21 2 023 24 25 26 27 28 Irrigation Dist., 70 Cal.2d 240, 249 (1969). “[P]romissory estoppel claims are aimed solely at allowing recovery in equity where a contractual claim fails for a lack of consideration, and in all other respects the claim is akin to one for breach of contract. . ..” US Ecology, Inc. v. State, 129 Cal.App.4th 887, 904 (2005). “The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.” Garcia v. World Sav., FSB, 183 Cal. App.4th 1031, 1041 (2010). Monuments 27,28, 39 and 40 were located at the four corners of Plaintiff Oberman’s lot. Mr. Woolley confirmed that it was more likely than not that the 4 markers around the Oberman lot were set by the property owner. Ms. Oberman, on her part, agreed that at least one of these -monuments defined her lot before the wall was built. Her email of August 27, 2015 confirms the accuracy of monument no. 28 as follows: ~ “The Surveyor we retained has found that the location of the Corner marker in the rear - alley between 1210 and your client’s site at 1204 W. Oceanfront is accurate. I called and advised Shirish Shah of this. We ask that you, as the licensed G.C., personally supervise the boundary confirmation and any cutting of the slate walkway ...” (Exhibit 7.) There is no evidence that the Shah Defendants would have built the wall absent the above representation. To the contrary, the testimony thus far has established that the Shah Defendants waited for confirmation from Ms. Oberman (Ex. 7) before beginning construction of the wall and spending $27,000 for its construction. Ms. Oberman testified that she did not call, email or otherwise contact the Shah Defendants after she sent the August 25, 2017 email to tell them that she disputed the boundary. How could she, Oberman did not dispute the boundary in the original complaint in this action. It was not until she hired Mr. Woolley 6 months after filing the complaint in this case that Ms Oberman alleged that the boundary line was inaccurate. As set forth above, “a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.” Youngman v. Nevada Irrigation Dist., Supra at p. 249. On the evidence at trial, then, Ms. Oberman should properly be bound by her promise that the boundary issue had been resolved, and that monument 28 accurately depicted the boundary between the properties. She may not now force the Shah Defendants to move the wall in 12 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) OO 0 9 O&O nh Kr W O N = R O N D O R N N N R N R ) em em e e es e s e ® NN A L R W N R S OC NN R W ND = O contradiction to her promise. VI. CONCLUSION For the foregoing reasons, judgment on the equitable causes of action should be entered in favor of Defendants and against Plaintiff. Among other things, the Court should Quiet Title | at the agreed upon boundaries, which places the wall entirely on the Shah Defendants’ property. The Shah Defendants respectfully request that the Court issue a declaration that the Woolley Survey is invalid, and that the Woolley monuments be removed and replaced at the original locations. The Shah Defendants further request a declaration that the “Record of Survey No. 2016-1224" be delivered to the clerk of the court for cancellation, that it be declared void and removed from the Official Records of Orange County. ‘Dated: November 15, 2018 RGLAWYERS, LLP B y: / SQLOMON E. GRESEN Attorney for Defendants and Cross-Complainants, Shirish J. Shah and Sandhya S. Shah 13 ~ MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a) © 0 9 OA nh B W O N o o ~ J aN wn ~ Ww No — oO Oo 0 J aN wn EE N Ww N o —_— o REQUEST FOR STATEMENT OF DECISION Under Code of Civil Procedure section 632, the court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision, unless the trial is concluded within one calendar day or in less than eight hours over more than one day. In such event, the request must be made prior to submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. Defendants Shirish and Sandya Shah respectfully request a statement of decision pursuant to Section 632 of the Code of Civil Procedure. Dated: November 15, 2018 RGLAWYERS, NLP By: SOLOMON E. GRESEN Attorney for Defendants and Cross-Complainants, Shirish J. Shah and Sandhya S. Shah 14 MOTION FOR JUDGMENT PURSUANT TO C.C.P. SECTION 631.8(a)
