Fialho Family Trust v. The Willis K Polite Jr. Trust

court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. [Citation.]” (In re Candelario (1970) 3 Cal.3d 702, 703, citation omitted.)

Defendant’s first contention, that the judgment’s failure to specify that the preliminary injunction is dissolved is a clerical error, lacks merit. A preliminary injunction is dissolved by operation of law upon entry of judgment, City of Oakland v. Super. Court (1982) 136 Cal.App.3d 565, 569, which defendant acknowledges in his moving papers. The court’s decision to not expressly state what must necessarily happen under the law was not a clerical error but a choice to promote conciseness. As this is not a clerical error, Section 473(d) relief is not appropriate.

Defendant’s second contention, that the judgment erroneously specifies “Naomi Polite” as the successor trustee of the Willis K. Polite Jr. Trust rather than “Mark Polite,” also lacks merit. Defendant presents the Second Amendment to the Willis K. Polite Jr. Trust as Exhibit 4 to the Lee declaration, which appears to show the successor trustee is “Mark Polite.” Defendant did not provide this evidence to the court during the trial. The court did receive evidence, however, that “Naomi Polite” is defendant’s spouse and therefore concluded she was the successor trustee. The court’s decision was based on the evidence presented to it and was not a clerical error but a judicial determination. Again, Section 473(d) relief is not appropriate.

Based on the foregoing, defendant’s motion is denied in its entirety.

Motion for Attorneys’ Fees

Plaintiffs/cross-defendants Fialho move for an award of attorneys’ fees in the amount of $3,399,561.54 pursuant to California Civil Code Section 1717 and the 1980 Agreement. Defendant Polite objects. Plaintiffs seek a total of $3,399,561.54 as reasonable attorney fees. This amount is what can result when well-heeled parties lawyer up and then exhaustively litigate their positions over a 5-year period, with no settlement along the way.

The parties acknowledge that the primary issue in this case was ownership of the pier into Lake Tahoe. As defendant acknowledges in his closing brief “[t]his case boils down to a single issue: ownership of the multiple-use pier.” The agreement entered into in 1980 by the respective predecessor property owners (“the 1980 Agreement”) contains an attorney fee provision as follows: “In the event that either party shall commence an action against the other for, but not limited to, damages, breach of this agreement, declaratory relief, or any other action legal or equitable, then, and in that event, the prevailing party in such action or proceeding shall be entitled to reasonable attorney’s fees to be fixed by the court or tribunal.”

This litigation ensued as a result of Polite wrongfully commencing construction on the pier based on his ill-founded claim that he held joint ownership of the pier extending

from the neighboring Fialho property into Lake Tahoe. This led to the Fialhos first having to obtain a preliminary injunction against Polite, and then to the years of exhaustive discovery and litigation that followed. The Fialhos’ claims for quiet title, declaratory relief, breach of contract, and trespass, and Polite’s crossclaims for quiet title, declaratory relief, breach of contract, trespass to chattel, and nuisance, all arose out of and relate to the pier, the 1980 Agreement, and the 1985 Amendment to the 1980 Agreement.

The Fialhos prevailed on their first cause of action for quiet title with the court finding that Polite has “no right, title, estate, lien, real property interest, personal property interest or claim in or to the Fialho Property,” excepting for his undisputed personal property interest in a boat hoist located on the pier. On the Fialhos’ second cause of action for declaratory relief, the Court declared that Polite’s interest in the Fialho Property “is limited to only those rights expressly stated in the 1980 Agreement and the 1985 Amendment” and that the easement for access is “limited strictly to the stairs and stairway in Section 4 of the 1980 Agreement.”

California Civil Code § 1717(a) provides that in any action on a contract where the contract specifically provides that attorney's fees and costs incurred to enforce that contract shall be awarded to the prevailing party, the party determined to be the party prevailing on the contract shall be entitled to reasonable attorney's fees in addition to other costs. (Civ. Code, § 1717.) Under § 1717(b)(1), the party prevailing on the contract is the party who recovered a greater relief in the action on the contract, and the court may also determine that there is no party prevailing on the contract. (Civ.

Code, § 1717.) After five years of litigation, the Fialhos are clearly the prevailing parties under California Civil Code Section 1717. They prevailed on the central dispute in the litigation and defeated every crossclaim asserted by Polite. There is no dispute that the Fialhos were granted far greater relief than Polite and are thus entitled to recover their attorneys’ fees under the 1980 Agreement.

The only question is whether the amount of fees claimed by Fialho should be reduced for any reason. Applying the lodestar method, subject to the two offsets noted below, the court finds the number of hours claimed by the Fialhos is reasonable under the circumstances of this lengthy and hard-fought litigation, which included substantial motion practice, lengthy discovery and preparation for multiple trial dates. The court has considered the reasonableness of hourly rates claimed by plaintiffs’ attorneys, including the nature and difficulty of the litigation, the skill required of the attorneys, and the success of the attorneys in handling the case through trial.

This case involved significant issues of real property law, a lengthy historical background to the dispute, easement and access disputes, quiet title litigation, as well as an underpinning of Lake Tahoe regulatory matters—including TRPA and State Lands Commission regulations. Plaintiffs’ attorneys prosecuted the complaint, and defended against the Polite cross-complaint, at a high level. Under all of the circumstances, the court finds the following hourly rates to be reasonable: $585 for Mr. Lemieux; $380 for Ms.

Crow; and $340 for Ms. Yates; and $325 for Mr. Gonden. However, it was not was not necessary for plaintiffs to have four lawyers present at all times for a 6-day bench trial. The trial was over-lawyered by plaintiffs. The court will deduct trial charges for Mr. Gonden, whose participation during presentation of the evidence was limited. Likewise, the court will deduct trial charges for

Ms. Yates. It appears to the court that Ms. Yates’ participation at trial was primarily for the purpose of gaining trial experience through the examination of one witness. The brief examinations of witnesses by Mr. Gonden and Ms. Yates could easily have been handled by plaintiff’s two primary trial lawyers, Mr. Lemieux and Ms. Crow. Accordingly, the court will deduct the trial charges attributable to Ms. Yates in the amount of $39,406 and for Mr. Gonden in the amount of $15,697.50. Two lawyers for plaintiff at trial was entirely sufficient.

Defendant Polite asserts he should be regarded as the prevailing party because he successfully defended against plaintiffs’ attempt to have the 1980 Agreement invalidated. Plaintiffs’ third cause of action alleged Polite breached the 1980 Agreement and 1985 Amendment in several ways: by claiming an ownership interest in the pier; by entering and traversing on 1620 beyond what is permitted by the access easement and by performing construction; by claiming the 1980 Agreement provides an easement to access the structure or “pier” on Polite property; and by constructing a new pier on the Polite property.

The Fialhos contended the 1980 Agreement should be voided because Polite constructed a pier from 1600 in violation of Section 12. Section 12 provides: “12. Construction of Pier by Grantee: In the event that GRANTEE, his heirs, successors or assigns, should at some date in the future, construct a pier from GRANTEE’S land into Lake Tahoe, then, and in that event, this grant and agreement shall upon completion thereof become null and void.” From the evidence at trial, the court determined that the construction and use by Polite of the new structure or “pier” on 1600 did not trigger the breach contemplated by Section 12.

Thus, defendant was partially successful in defending against the allegations of plaintiffs’ third cause of action – the court did not find the 1980 Agreement should be voided because of the structure maintained and used by Polite.

Because Polite prevailed on that issue, the results can be regarded as mixed. When neither party achieves a complete victory on all contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of prevailing-party attorney fees. Again, here, the central dispute in this litigation was who owns the pier. The court unqualifiedly found from the evidence that the Fialhos are sole owners of the pier.

The issue of whether Polite breached the agreement by maintaining a structure was a secondary issue. The issue was certainly intertwined with the overarching issue of pier ownership. In determining how to apportion fees in light of Polite’s limited success, the court finds it cannot be precisely discerned from the billing records how much attorney time is directly attributable to this secondary issue. However, from the court’s review of the entire file and from the evidence presented at trial, the court’s best overall assessment is that this issue accounted for approximately 10% of the litigation and time at trial.

Accordingly, the court will reduce attorneys’ fees claimed by plaintiffs by 10%.

Taking into account deductions for trial charges related to attorneys Gonden and Yates, and the apportionment above, plaintiffs are entitled to recover a total of $3,010,012.24 in attorney fees from defendant/cross-complainant Polite.

Motion for Attorneys’ Fees

Defendant and cross-complainant Polite moves for an award of attorneys’ fees in the amount of $2,191,190.90 pursuant to California Civil Code Section 1717 and the 1980 Agreement. Plaintiffs and cross-defendants Fialho object.

California Civil Code § 1717(a) provides that in any action on a contract where the contract specifically provides that attorney's fees and costs incurred to enforce that contract shall be awarded to the prevailing party, the party determined to be the party prevailing on the contract shall be entitled to reasonable attorney's fees in addition to other costs. (Civ. Code, § 1717.) Under § 1717(b)(1), the party prevailing on the contract is the party who recovered a greater relief in the action on the contract, and the court may also determine that there is no party prevailing on the contract. (Civ.

Code, § 1717.) Here, the court finds plaintiffs are the prevailing party in this action for the reasons explained in the above ruling granting plaintiffs’ motion for attorneys’ fees. As defendant is not the prevailing party of this litigation, defendant’s motion for attorneys’ fees is denied in its entirety.

Motion to Strike Costs

Plaintiffs move to strike the entirety of defendant’s claimed costs in the costs memorandum filed on February 25, 2026. Defendant opposes the motion.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) The court finds plaintiffs are the prevailing party in this action for the reasons explained in the above ruling granting plaintiffs’ motion for attorneys’ fees. As defendant is not the prevailing party of this litigation and there is no other statutory basis presented to support an award of costs, plaintiffs’ motion to strike costs is granted in its entirety.

Motion to Strike Costs

Defendant moves to strike plaintiffs’ costs of $141,959.80 in plaintiffs’ costs memorandum filed on February 26, 2026. In the alternative, defendant seeks to tax costs amounting to $49,926.30 of the claimed costs. Plaintiffs oppose the motion.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) The court shall determine the “prevailing party” when the recovery is other than monetary relief and may allow costs or not. (Code Civ. Proc., § 1032, subd. (a)(4).) Code of Civil Procedure section 1033.5 specifies allowable costs and prohibited costs. (Code Civ. Proc., § 1033.5, subds. (a) [allowable costs], (b) [disallowed costs].) Costs neither allowed nor disallowed “may be allowed or denied in the court’s discretion” provided they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code

Civ. Proc., § 1033.5, subds. (c)(4), (c)(2)–(3).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Id. at pp. 774–76.) When the reasonableness of particular items is challenged, conclusory allegations do not satisfy the objecting party’s burden. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)

The court finds plaintiffs are the prevailing party in this action for the reasons explained in the above ruling granting plaintiffs’ motion for attorneys’ fees. As the court is not swayed by defendant’s argument that plaintiffs’ costs should be stricken in their entirety because plaintiffs are not the prevailing party, the motion to strike costs in their entirety is denied. However, because the court did not find the 1980 Agreement void, defendant prevailed on this issue and should be entitled to an offset of costs.

In determining how to apportion costs in light of Polite’s limited success, the court finds it cannot be precisely discerned from the costs memorandum the costs directly attributable to this secondary issue. However, from the court’s review of the entire file and from the evidence presented at trial, the court’s best overall assessment is that this issue accounted for approximately 10% of the litigation and time at trial and reduces costs claimed by plaintiffs by 10%.

The court now turns its attention to the challenged costs amounting to $49,926.30.

Filing and motion fees ($1,663.70)

Defendant challenges the $1,663.70 in filing fees pertaining to plaintiffs’ application for admission pro hac vice of counsel Sara E. Yates, which the court granted on April 18, 2023. As filing and motion fees are allowable costs pursuant to Code of Civil Procedure section 1033.5(a)(1) and appear to be proper, the burden to show the costs are improper lies with defendant. Defendant falls short of his burden and these costs will not be taxed.

Witness fees ($13,919.10)

Defendant acknowledges that ordinary witness fees are allowable costs pursuant to Code of Civil Procedure section 1033.5(a)(7), but nonetheless challenges the entirety of plaintiffs’ witness fees. Section 1033.5(a)(7) allows “Ordinary witness fees pursuant to Section 68093 of the Government Code,” which in turn permits daily rates of $35 per day and mileage of $0.20 per mile for actual mileage traveled when the witness’ attendance was legally required.

Attachment 8a to plaintiffs’ costs memorandum includes 48 itemized entries for witness fees. These line items include daily fees in the hundreds and sometimes thousands of dollars, lodging, parking costs, and mileage costs at rates of $0.70 and $0.75 per mile. Several of these entries are not sufficiently explained in Attachment 8a or elsewhere in the costs memorandum and plaintiffs’ opposition is unsupported by any evidence. It is

unclear which of these witnesses were legally required to attend the various proceedings and it is unclear what justifies such high daily rates. The court finds witness lodging is reasonably necessary to the prosecution of the case. (Code Civ. Proc., § 1033.5, subd. (c).) The court strikes daily fees in excess of $35 and limits mileage to a rate of $0.70 cents per mile, striking $5,553.25 from witness costs.

Court ordered transcripts ($17,913.50)

Defendant challenges court ordered transcripts as a disallowed cost under Code of Civil Procedure section 1033.5(b)(5). The court agrees and taxes costs in the amount of $17,913.50.

Other ($16,430)

Defendant challenges mediation expenses, “In-Court Litigation Consulting at Hearing on 5/1/23,” and “Strategic Multimedia Exhibit Presentation and Consulting and editing of deposition video clips for use during trial.” Engaging in alternate dispute resolution such as mediation is always an important endeavor, even if those efforts are unsuccessful. The court finds the mediation costs to be reasonably necessary to the litigation and denies the motion to tax as to these costs. While the two other categories are insufficiently explained in plaintiffs’ costs memorandum and attachments thereto, defendant has properly put these items at issue and the burden is on the plaintiffs to show the costs are reasonably necessary.

While plaintiffs provide a reasonable explanation as to both “In- Court Litigation Consulting at Hearing on 5/1/23” and “Strategic Multimedia Exhibit Presentation and Consulting and editing of deposition video clips for use during trial,” that information is not supported by any evidence. Accordingly, the court taxes costs in the amount of $8,980.

10% Offset

Finally, given defendant’s limited success on the issue of the 1980 agreement, a 10% reduction of recoverable costs is appropriate. For this reason, costs are taxed an additional $10,951.30.

Based on the foregoing, the motion to tax costs is granted in part. Plaintiffs’ claimed costs are taxed in the total amount of $43,398.05. The motion is otherwise denied, and plaintiffs may recover costs from defendant in the amount of $98,561.75.

3. S-CV-0048923 Volkmar, Rodney v. Nortech Waste LLC

If oral argument is requested, it will be heard on August 4, 2026 at 8:30 a.m. in Department 32 by the Honorable Trisha J. Hirashima.

Moving party is advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

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