D IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT PATRICIA DONATO. Defendant and Appellant SERGEY PEREYMA

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1 D IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT PATRICIA DONATO Defendant and Appellant v. SERGEY PEREYMA Plaintiff and Respondent APPEAL FROM JUDGMENT AFTER COURT TRIAL OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO Honorable Joel. R. Wohlfeil, Presiding RESPONDENT'S BRIEF Randall C. Sterling, Esq. 225 East Third Avenue Escondido, California (760) California State Bar No.: Attorney for Plaintiff and Respondent, SERGEY PEREYMA

2 TABLE OF CONTENTS I. INTRODUCTION PAGE 1 II. DISCUSSION AND ARGUMENT PAGE 2 A. APPELLANT'S MOTION TO TAKE JUDICIAL NOTICE PAGE 2 SHOULD BE DENIED B. APPELLANT'S APPEAL SHOULD BE DISMISSED PAGE 4 III. CONCLUSION PAGE 5

3 TABLE OF AUTHORITIES Cases: California Authority: Supreme Court: Brosterhous vs. State Bar of Calif. (1995) 12 Cal.^ 315, 325 2; 3; 5 Haworth vs. Super. Ct. (Ossakow) CaU* 372, In Re: S.B. (2004) 32 CalA* 1287, ; 4 Rogers vs. Cady (1894) 104 Cal. 288, Schifando vs. City of Los Angeles (2003) 31 Cal^ , ; 4 Vons Cos., Inc. vs. Seabest Foods, Inc. (1996) 14 Cal^01 434,444 2; 3; 5 Courts of Appeal: Ash vs. Hertz Corp. (1997) 53 Cal.App^ , Calif. School Boards Ass 'n v. State of Calif. (2011 ) 192 Cal.App^01 770, 803 2; 3 ; 5 DeYoung vs. Del Mar Thoroughbred Club ( 1984) 159 Cal.App.3d 858, 863 2; 3 Hurvitz vs. Hoefflin (2000) 84 Cal.App^ 1232, ; 4 Larson vs. State PersonnelBd. (1994) 28 Cal.App^01 265, 270 3; 4 Marriage of Forrest & Eaddy (2006) 144 Cal.AppA* 1202, ; 5 Munoz vs. State of Calif. ( 1995) 3 3 Cal. AppA* 1767, ; 4 Peart vs. Ferro (2004) 119 CaLAppA* 1 60, 81 2 People vs. National Auto & Cas. Ins. Co. (2000) 82 Cal.AppA* 120, Sebago, Inc. vs. City of Alameda (1989) 211 Cal.App.3d 1372, Truong vs. Nguyen (2007) 156 Cal.AppA^ 865, ; 5 Windham at Carmel, et al. vs. Super. Ct. (2003) 109 Cal.App^ , ; 4 State Statutes: California Civil Code ; 5

4 I. INTRODUCTION Appellant erroneously contends that the Superior Court lacked subject matter jurisdiction to adjudicate the underlying dispute on the basis that Rancho Ballena Road, at the time certain repairs were made thereto, was allegedly owned by the United States of America in trust for the Mesa Grande Band of Digueño Mission Indians of the Mesa Grande Reservation, and in support thereof, attempts to introduce evidence, not adduced at the time of trial, to prove her point. Appellant, however, misses the point. California Civil Code 845, upon which Respondent sought and obtained relief, requires owners of an easement, like the Appellant, to proportionately contribute to repairs made to an easement from which all easement owners collectively benefit. Thus, road ownership is inconsequential as it is not the owners of the land who are obliged to maintain an easement in repair, but the owners of the easement. (a) The owner of any easement in the nature of a private right-ofway, or of any land to which any such easement is attached, shall maintain it in repair. (b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. If any owner who is a party to the agreement refuses to perform or fails after demand in writing to pay the owner's proportion of the cost, an action for specific performance or contribution may be brought against that owner in a court of competent jurisdiction by the other owners, either jointly or severally. (c) In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner. Any owner of the easement, or any owner of land to which the easement is attached, may apply to any court where the right-of-way is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost. The application may be made before, during, or after performance of the maintenance work. If the arbitration award is not accepted by all of the owners, the court may enter a judgment determining the proportionate liability of each owner. The judgment may be enforced as a money judgment by any party against any other party to the action. (Id.) Page 1 of6

5 II. DISCUSSION AND ARGUMENT A. THE MOTION TO TAKE JUDICIAL NOTICE SHOULD BE DENIED The gravamen of Appellant's appeal, and corresponding Motion, is a misdirected attempt to compel this Court to take judicial notice of two Grant Deeds that were not introduced at the time of trial: one Grant Deed allegedly conveying Rancho Ballena Road from Mr. and Mrs. Merati to the Mesa Grande Band of Mission Indians (Appellant's Appendix ("AA") 3), and another Grant Deed allegedly conveying Rancho Ballena Road from the Mesa Grande Band of Mission Indians to The United States of America in trust for the Mesa Grande Band of Digueño Mission Indians of the Mesa Grande Reservation. (AA 4) However, there is no proof that AA 3 & 4 actually relate to Rancho Ballena Road. In support of both her motion and appeal, Appellant contends that a lack of subject matter jurisdiction cannot be waived by delay or failure to object at trial, and is a defect that may be raised for the first time on appeal. People vs. National Auto & Cas. Ins. Co. (2000) 82 CalApp^* 120, 125; Ash vs. Hertz Corp. (1997) 53 Cal.App^* 1107, It is true that appellate courts can take judicial notice of matters that were not before the trial court. Haworth vs. Super. Ct. (Ossakow) Cal^* 372, 379; Brosterhous vs. State Bar of Calif. (1995) 12 Cal^* 315, 325; See also, Peart vs. Ferro (2004) 119 CalApp^* 60, 81. However, courts generally will not do so absent "exceptional circumstances." Vons Cos., Inc. vs. Seabest Foods, Inc., (1996) 14 Cal.4 434, 444; California School Boards Ass'n vs. State of Calif. (2011) 192 Cal.App^ 770, 803. Likewise, appellate courts can take judicial notice even though the trial court was asked but refused to do so. Rogers vs. Cady (1894) 104 Cal. 288, 290; Sebago, Inc. vs. City of Alameda (1989) 211 Cal.App.3d 1372, However, even though it is otherwise a proper subject of judicial notice, appellate courts may also properly decline to judicially notice a matter that should have been, but was not, presented to the trial court for its consideration in the first instance. DeYoung vs. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 863. Page 2 of6

6 Furthermore, although the Court may decide to take judicial notice, the appellate court is not obligated to consider the noticed matter in resolving the issues on appeal and may, in fact, choose to disregard it. See, In Re: S.B. (2004) 32 Cal4th 1287, 1296; Schifando vs. City of Los Angeles (2003) 31 Cal4th 1074, 1089; Windham at Carmel Mountain Ranch Ass 'n vs. Super. Ct. (Presley Cos.) (2003) 109 Cal.App^ 1162, Similarly, the court need not take judicial notice that everything contained in the noticed documents is true. Hurvitz vs. Hoefflin (2000) 84 CaLAppA** 1232, 1235; Muñoz vs. State of Calif. (1995) 33 CaLApp^ , 1773; Larson vs. State Personnel Bd (1994) 28 CalAppA^ 265, 270. Here, Appellant has failed to provide the court with any "exceptional circumstances" warranting the granting of her motion. Vons Cos., Inc. vs. Seabest Foods, Inc., supra, 14 Cal^* 434, 444; California School Boards Ass 'n vs. State of Calif, supra, 192 Cal.App^01 770, 803. Nor can she because such "exceptional circumstances" do not exist. As hereinabove stated, ownership of the property is not the sine qua non of the statute upon which Respondent prevailed in the Superior Court. Instead, it is the owner (like Appellant), or owners, of the easement who have a duty to maintain the easement in repair. Ownership of the property itself, or in this case. Rancho Ballena Road, is inconsequential to the adjudication of, and recovery upon, a Civil Code 845 dispute. Furthermore, even though it may otherwise be a proper subject of judicial notice, appellate courts properly decline to judicially notice a matter that should have been, but was not, presented to the trial court for its consideration in the first instance. Brosterhous vs. State Bar of Calif, supra, 12 CalA* at 325; Truong vs. Nguyen, (2007) 156 CaLAppA* 865, 882; Marriage of Forrest & Eaddy, (2006) 144 Cal.App^ , , See also, DeYoung vs. Del Mar Thoroughbred Club, supra, 159 Cal.App.3d 858, appellate courts generally should not judicially notice a document that, although on file in the trial court, was not presented to and considered by the trial court in the first instance. Page 3 of6

7 In this regard, Appellant admits that "(a)t the time of trial, no party had admitted any documents into evidence 1, including, but not limited to the two (2) Grants deed (sic) which are the subject of this Motion, establishing the ownership of the dirt road." See, Declaration of Patricia Donato in Support of Motion to Take Judicial Notice, p. 6, ^4. Even assuming, arguendo, that the court were to grant Appellant's Motion, the court is not obligated to consider the noticed matter in resolving the issues on appeal and may, in fact, choose to disregard it, as it should in this case. See, In Re: S.B., supra, 32 Cal4th 1287, 1296; Schifando vs. City of Los Angeles, supra, 31 Cal4th 1074, 1089; Windham at Carmel Mountain Ranch Ass'n vs. Super. Ct. (Presley Cos.), supra, 109 CaLApp^ , Similarly, the court need not take judicial notice that everything contained in the noticed documents is true. Hurvitz vs. Hoefflin (2000) 84 Cal.App , 1235; Munoz vs. State of Calif, supra, 33 CalApp.^ 1767, 1773; Larson vs. State Personnel Bd., supra, 28 CaLApp.^ 265, 270. Here, the noticed matter is moot in relation to the appeal. As previously stated, it is not the ownership of the property that gives rise to the remedy upon which Respondent prevailed in the Superior Court. It is the ownership of the easement which gives rise to the relief obtained by Respondent and for which Appellant remains financially responsible as one of the owners thereof. Thus, even if judicially noticed, the alleged ownership of the property, i.e., Rancho Ballena Road, is not pertinent to the dispute and the Appeal should be dismissed outright. B. APPELLANT'S APPEAL SHOULD BE DISMISSED California Civil Code 845, upon which Respondent sought and obtained relief, requires owners of an easement, like the Appellant, to proportionately contribute to repairs made to an easement from which all easement owners collectively benefit. Thus, ownership of Rancho Ballena Road is not germane to the dispute as it is not the owners of the land who are obliged to maintain an easement in repair, but the owners of the easement, like Appellant. This is a misstatement since over thirty (30) documents, excluding photographs, were offered and received at trial. Page 4 of6

8 (a) The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair. (b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. If any owner who is a party to the agreement refuses to perform or fails after demand in writing to pay the owner's proportion of the cost, an action for specific performance or contribution may be brought against that owner in a court of competent jurisdiction by the other owners, either jointly or severally. (c) In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner. Any owner of the easement, or any owner of land to which the easement is attached, may apply to any court where the right-of-way is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost. The application may be made before, during, or after performance of the maintenance work. If the arbitration award is not accepted by all of the owners, the court may enter a judgment determining the proportionate liability of each owner. The judgment may be enforced as a money judgment by any party against any other party to the action. {Id.; emphasis added) HI. CONCLUSION The apparent basis for Respondent's Motion and Appeal is in support of her contention that the Superior Court lacked subject matter jurisdiction to adjudicate the underlying dispute. As previously demonstrated, Appellant is mistaken. First, courts will not generally take judicial notice of matters that were not before the trial court absent "exceptional circumstances," which Appellant has failed to demonstrate, nor can she demonstrate. Vons Cos., Inc. vs. Seabest Foods, Inc., supra, 14 Cal.^ 434, 444; California School Boards Ass'n vs. State of Calif, supra, 192 CalApp^* 770, 803. Additionally, appellate courts may properly decline to judicially notice a matter that should have been, but was not, presented to the trial court for its consideration in the first instance, as Appellant admits. Brosterhous vs. State Bar of Calif, supra, 12 Cal^* at 325; Truong vs. Nguyen, supra, 156 Cal.App^01 865, 882; Marriage of Forrest & Eaddy, supra, 144 Cal.App^ , Page 5 of6

9 Furthermore, judicially noticing documents that are not germane to the dispute is wholly unnecessary. The statute upon which Respondent prevailed is predicated upon easement ownership, not property ownership. Thus, ownership of Rancho Ballena Road is immaterial to Appellant's legal obligation of maintaining her easement in repair and, in a much broader context, immaterial to her appeal. And since ownership of the road is immaterial, so are its purported owners. For these reasons, Respondent respectfully reetuests that Appellant's Motion be denied, that her appeal be dismissed and Respondent avyarded his costs and^ttomeys' fees. Dated: March 5, 2012 Randall C. Sterliiwüsqy Attopñey for Respondent, SERGEY PEREYMA Page 6 of6

10 CERTIFICATION OF COMPLIANCE California Rules of Court, Rules 8.204(b)(4) & (c)(1) I, the undersigned, do hereby certify, pursuant to California Rules of Court, Rule 8.204(b)(4) & (c)(1), that Respondent's Opening Brief, to which this certification is attached, is proportionately spaced, has a typeface of 13 points or more, and contains 2038 words, exclusive of cover, tables and indieesr^and inclusive of all text, titles, footnotes, and headings. ) Dated: March 5, 2012 IZâfC^ / Randall C. SterlingJEsq. Attbmey for Respon< fent, SERGEY PEREYMA Page 1 of 1

11 PROOF OF SERVICE BY MAIL Pereyma vs. Donato, et al. Appeal Case No.: D Superior Court Case No.: CU-OR-EC RANDALL C. STERLING, ESQ./Bar No East Third Avenue Escondido, California (760) Attorney for Plaintiff and Respondent, SERGEY PEREYMA I, the undersigned, declare that: I am over the age of eighteen years and am not a party to the cause; I am employed in, or am a resident of, the County of San Diego, California, where the mailing occurred. My business address is 225 East Third Avenue, Escondido, California I further declare that I am readily familiar with the business practices for the collection and processing of correspondence for mailing with the United States Postal Service and that the within correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business. I caused to be served the following documents: 1. Respondent's Brief by placing a copy of each document in a separate envelope addressed to each addressee, respectively, as follows: Patricia Donato 343 Black Bear Lane Fredericksburg, Texas Appellant One (1) copy California Supreme Court 350 McAllister Street, Second Floor San Francisco, California Four (4) copies Clerk of the San Diego Superior Court Civil Appeals Desk, S«1 Floor, Room West Broadway San Diego, California One (1) copy I then sealed each envelope and, with the postage thereon fully prepaid, placed each for deposit in the United States Postal Service, this same day, from my business-address shown above, following ordinary business practices. I declare under penalty of perjury under the laws of the State/of California and correct oregoing is true Executed on March 5, 2012 [C.C.P. 1013a add (b)] Randall C. Steriing:Proof of Service by Mail.doc