Filed 2/11/15 Mahgerefteh v. Verizon California CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


NASSER MAHGEREFTEH,

     Plaintiff and Appellant,                                          G050291

         v.                                                            (Super. Ct. No. 30-2013-00662073-
                                                                        CU-NP-CJC)
VERIZON CALIFORNIA, INC.,
                                                                       OPINION
     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Ronald
L. Bauer, Judge. Affirmed.
                   Nasser Mahgerefteh, in pro. per., for Plaintiff and Appellant.
                   AlvaradoSmith and Rick D. Navarrette for Defendant and Respondent.
              Nasser Mahgerefteh appeals from the judgment in favor of Verizon
California, Inc. (Verizon). After he built his house such that the driveway and garage
door were directly blocked by a preexisting utility pole located within a utility easement,
Mahgerefteh requested Verizon move its lines to another utility pole and remove the
offending pole at Verizon’s sole cost. When Verizon insisted Mahgerefteh bear the cost
of relocating the lines and removing the pole, Mahgerefteh sued Verizon for negligence
and trespass. The trial court granted Verizon’s summary judgment motion concluding as
to the negligence causes of action that Mahgerefteh had failed to establish Verizon owed
a duty of care and as to the trespass that Mahgerefteh failed to establish Verizon had
wrongfully entered on Mahgerefteh’s property. Mahgerefteh has failed to demonstrate
any error on appeal, and we affirm the judgment.
                               FACTS AND PROCEDURE
The Complaint
              Mahgerefteh’s complaint, filed in propria persona, alleged he constructed a
4,650 square foot house on vacant land in the City of Huntington Beach (the City) that he
intended to use as a rental property. During construction Mahgerefteh informed Verizon
the utility pole containing Verizon’s transmission equipment (hereafter the Verizon pole),
blocked the driveway and garage and he wanted it moved. The complaint alleged the
Verizon pole was located on Mahgerefteh’s property within two feet of the property line.
Mahgerefteh alleged Southern California Edison (SCE) placed a new utility pole
(hereafter the SCE pole) at the edge of Mahgerefteh’s property at its own expense.
Mahgerefteh had repeatedly called Verizon and asked it to move its equipment to the
SCE pole and remove the Verizon pole, but Verizon’s representatives delayed returning
Mahgerefteh’s calls and were uncooperative. Mahgerefteh alleged he cannot get an
occupancy permit for the new house until the Verizon pole is removed and the delay has
caused him to suffer lost rental income.


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              Based on the foregoing allegations, Mahgerefteh pled two negligence
causes of action. One negligence cause of action (first cause of action) alleged Verizon
was negligent and breached a fiduciary duty by not returning Mahgerefteh’s telephone
calls and following up with him in a timely manner. The other negligence cause of action
(third cause of action) alleged Verizon was negligent by not relocating its transmission
equipment and removing the Verizon pole at its sole cost. The complaint also contained
a trespass cause of action (second cause of action) alleging the Verizon pole was on
Mahgerefteh’s property, there was no recorded easement, and Verizon did not have
permission to have its pole on Mahgerefteh’s property.
Summary Judgment Motion
              Verizon filed a motion for summary judgment. Its separate statement of
undisputed material facts set forth the following. Mahgerefteh was a general contractor.
Mahgerefteh and his wife bought the subject vacant undeveloped real property in 2009.
The Verizon pole had been installed, and was in the same position and location, long
before Mahgerefteh bought the property. Mahgerefteh was aware of the Verizon pole
when he bought the property. The Verizon pole was within a two and one-half foot
utility easement granted to the City. In 2011, Mahgerefteh signed an easement deed
granting the City “a perpetual easement and right of way for street and public utility
purposes in, on, over, under and across” the southerly 2.5 feet of the property.
              In 2010, Mahgerefteh began the process of designing and constructing the
house on the property. The construction was completed in 2013. Mahgerefteh was aware
of the utility easement before he submitted his plans and drawings to the City for
approval. The grading plan Mahgerefteh submitted to the City, which was prepared by
Mahgerefteh’s brother, had a specific notation on it requiring the Verizon pole be
relocated. The City approved the grading plan as submitted with the note stating the
Verizon pole had to be relocated. The house Mahgerefteh designed and planned required
relocation of the Verizon pole, and Mahgerefteh as general contractor constructed the

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house according to those plans. Relocating the Verizon pole was within the scope of the
work Mahgerefteh was to perform as general contractor.
              Mahgerefteh filed opposition to Verizon’s summary judgment motion but
did not meaningfully dispute any of Verizon’s undisputed facts.1 Mahgerefteh provided
his own declaration stating he was an engineer, and in his opinion and in the opinion of
two other unnamed licensed engineers, the Verizon pole blocked Mahgerefteh’s garage
and it was unsafe. Mahgerefteh declared Verizon would charge more than $28,000 to
relocate its lines to the SCE pole and remove the Verizon pole, but Mahgerefteh believed
it should not cost more than $1,700. Mahgerefteh claimed SCE said it would remove the
Verizon pole for free if Verizon would just relocate its lines. Verizon filed objections to
Mahgerefteh’s declarations.
              Mahgerefteh’s opposition also included various exhibits. They included
photographs of various utility poles, a letter from a surveyor describing the location of
the various utility poles, printouts of what appear to be rules of the California Public
Utilities Commission (PUC), a printout of a page from the PUC Web site, a printout of a
page from the City’s Municipal Code, and a copy of a page from something called, “Joint
Pole Routine Handbook.” Verizon objected to all Mahgerefteh’s exhibits as lacking
authentication or foundation and being hearsay.
Ruling
              The trial court granted Verizon’s motion for summary judgment. As to
Mahgerefteh’s negligence causes of action, it found Mahgerefteh failed to establish
Verizon owed him a legal duty of care. Specifically, Mahgerefteh had not demonstrated


1             There were only three “facts” that Mahgerefteh disputed: Verizon had
stated as undisputed facts that Mahgerefteh had provided factually devoid responses to
some of its interrogatories, that he had no facts to support one of his negligence causes of
action, and that he was unaware of any regulation or rule requiring Verizon to pay to
relocate the Verizon pole. To each of these, Mahgerefteh replied, “Disputed. Too many
rules and regulations.”

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any material issue of fact as to whether Verizon owed a duty to Mahgerefteh to bear the
costs of removal and relocation of the Verizon pole. As to the trespass cause of action,
the court found the undisputed facts were the Verizon pole was within the utility
easement. The court did not rule on Verizon’s objections to Mahgerefteh’s declarations
and other evidence. A judgment was entered for Verizon, and Mahgerefteh filed this
appeal.
                                        DISCUSSION
A. Standard of Review
              Before addressing Mahgerefteh’s specific causes of action, we set forth
relevant legal principles governing our review. First, is the well-established standard for
reviewing summary judgments. “Summary judgment is appropriate only if there is no
triable issue of material fact and the moving party is entitled to judgment in its favor as a
matter of law. [Citation.] . . . A defendant moving for summary judgment . . . must show
that one or more elements of the plaintiff’s cause of action cannot be established or that
there is a complete defense. [Citation.] The defendant can satisfy its burden by
presenting evidence that negates an element of the cause of action or evidence that the
plaintiff does not possess and cannot reasonably expect to obtain evidence needed to
support an element of the cause of action. [Citation.] If the defendant meets this burden,
the burden shifts to the plaintiff to set forth ‘specific facts’ showing that a triable issue of
material fact exists. [Citation.] [¶] We review the trial court’s ruling de novo, liberally
construe the evidence in favor of the party opposing the motion, and resolve all doubts
concerning the evidence in favor of the opposing party. [Citation.] We will affirm an
order granting summary judgment . . . if it is correct on any ground that the parties had an
adequate opportunity to address in the trial court, regardless of the trial court’s stated
reasons. [Citations.]” (Securitas Security Services USA, Inc. v. Superior Court (2011)
197 Cal.App.4th 115, 119-120.) We examine the evidence submitted in connection with
the summary judgment motion, with the exception of evidence to which objections have

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been appropriately sustained (Code Civ. Proc., § 437c, subd. (c); Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686, 711), and we do not consider new factual
allegations made for the first time on appeal (Havstad v. Fidelity National Title Ins. Co.
(1997) 58 Cal.App.4th 654, 661 (Havstad)).
              Next are rules concerning an appellant’s burden. Although we
independently assess the grant of summary judgment, our inquiry is governed by the
fundamental principle of appellate procedure that “‘[a] judgment or order of the lower
court is presumed correct . . . and [thus,] error must be affirmatively shown.’” (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) Under this principle,
Mahgerefteh bears the burden of establishing error on appeal, even though Verizon had
the burden of proving its right to summary judgment before the trial court. (Frank and
Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) “[D]e novo review does
not obligate us to cull the record for the benefit of the appellant in order to attempt to
uncover the requisite triable issues. As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out
the triable issues the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues which have been
adequately raised and briefed. [Citations.]” (Lewis v. County of Sacramento (2001)
93 Cal.App.4th 107, 116; Christoff v. Union Pacific Railroad Co. (2005)
134 Cal.App.4th 118, 125-126.)
              And last is the principle that “[p]ro. per. litigants are held to the same
standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
That Mahgerefteh is self-represented does not exempt him from satisfying his appellate
burden. “Under the law, a party may choose to act as his or her own attorney.
[Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and attorneys. [Citation.]’
[Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A

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self-represented litigant is not entitled to lenient treatment. (Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 984-985.)
B. Negligence Causes of Action
              Mahgerefteh contends the trial court erred by granting summary judgment
as to his negligence causes of action. The elements of negligence are: “(1) the
defendant’s legal duty of care towards the plaintiff, (2) the defendant’s breach of that
duty, (3) injury to the plaintiff as a proximate result of the breach, and (4) damage to the
plaintiff. [Citation.]” (Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) Similarly,
“[t]he elements of a cause of action for breach of fiduciary duty are: (1) the existence of
a . . . duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the
breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)
              The trial court concluded Mahgerefteh failed to demonstrate Verizon owed
a duty of care towards Mahgerefteh. Determining the existence of a legal duty to use
reasonable care under a particular set of facts is a question of law for the trial court to
decide. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)
              Mahgerefteh’s opening brief is largely indecipherable and devoid of any
reasoned legal analysis or clearly articulated issues. (See Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785 (Badie) [when appellant raises contention but “fails
to support it with reasoned argument and citations to authority, we treat the point as
waived”]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700
(Landry) [“[w]hen an issue is unsupported by pertinent cognizable legal argument it may
be deemed abandoned and discussion by the reviewing court is unnecessary”].)
Nonetheless, we can ascertain from it, the following. Mahgerefteh’s first negligence
cause of action was premised on the theory Verizon was negligent (and breached a
fiduciary duty) by not timely responding to his requests that the Verizon pole be
removed. Mahgerefteh’s second negligence cause of action was premised on the theory
Verizon was negligent by not removing the Verizon pole. Mahgerefteh’s contentions on

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appeal largely seem to be that Verizon had a duty to move its transmission facilities to the
new SCE pole to accommodate his house construction and to bear the costs of that move.
Both negligence causes of action are fundamentally premised upon Mahgerefteh’s belief
Verizon was required to bear the costs of moving the utility pole to accommodate his
construction.
                Mahgerefteh cites to no law that compels a utility company to bear the cost
of moving its equipment to accommodate a private developer. Indeed, the law appears to
be the opposite. Both common law and statutory law require a utility to bear the cost of
relocating its equipment only when required to do so by a public agency for the benefit of
the public. For example, in Pacific Tel. & Tel. Co. v. Redevelopment Agency (1977)
75 Cal.App.3d 957, the court held the utility must bear the cost of relocating facilities
located in a public street necessitated by vacation of the street in furtherance of a
redevelopment project. (See also Pacific Tel. & Tel. Co. v. Redevelopment Agency
(1978) 87 Cal.App.3d 296 [same].)
                Public Utilities Code section 6297, upon which Mahgerefteh relies,
provides a utility company, “[S]hall remove or relocate without expense to the
municipality any facilities installed, used, and maintained under the franchise if and when
made necessary by any lawful change of grade, alignment, or width of any public street,
way, alley, or place, including the construction of any subway or viaduct, by the
municipality.” But case law has concluded this statute requires a utility company to bear
the cost of relocating its equipment only when required to do so by a public agency for
the benefit of the public.
                Pacific Gas & Electric Co. v. Dame Construction Co. (1987)
191 Cal.App.3d 233, is instructive. In that case, as a condition to approving a 715-home
subdivision, a county required the developer to widen a public road in which the utility
had power poles and distribution lines. The developer contended the utility had to bear
the cost of relocation of its poles and lines to accommodate the widening. The Court of

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Appeal disagreed, concluding that “where a private party, on its own initiative and not
that of government, develops a parcel of land and thereby creates or aggravates a need for
a public improvement which requires the relocation of existing utility equipment, the
private party shall bear the necessary relocation costs.” (Id. at p. 242.)
              The PUC has similarly concluded when utility equipment is relocated to
accommodate a private development, the developer, not the utility, must bear the
relocation cost. In Mast v. Pacific Gas & Electric Co. (1993) 47 Cal. P.U.C. Dec. No.
93-01-042 [1993 Cal. PUC Lexis 41]), as a condition of approving a three-house
subdivision, a city required the developer to widen a street and construct new curb, gutter
and sidewalk, which necessitated moving a power pole. The PUC concluded the
developer, not the utility, had to bear the relocation costs.
              Although Public Utilities Code section 6297 and case authority are clear the
utility need not bear the cost of relocating its equipment to accommodate a private
development, Mahgerefteh argues a PUC general order requires relocation of the
equipment and removal of the Verizon pole. He refers to a document attached to his
opposition which he asserts are portions of PUC General Order 95 (GO 95). He did not
request judicial notice of the document. Mahgerefteh cites to section 31.4 of GO 95
which reads, “31.4 Cooperation to Avoid Conflicts. [¶] Any party contemplating
construction or reconstruction which would create a conflict with a line of another
classification shall notify the party or parties owning or operating the other line, in
advance of such construction, giving full information as to the location and character of
the proposed construction, and the parties concerned shall cooperate with a view of
avoiding or, if this is impracticable, of minimizing the hazard.” Mahgerefteh argues that
by operation of this rule, once SCE installed a new pole for its transmission lines,
Verizon was required to move its facilities to that pole and remove its pole. Assuming
the PUC document is properly before us, it does not say what Mahgerefteh thinks it says.



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The rule refers only to cooperation between utilities in locating lines to avoid conflicts.
There is no evidence in the record of any conflict between the SCE and Verizon facilities.
              Mahgerefteh also contends the City’s Municipal Code requires Verizon to
pay to relocate its lines to the SCE pole and remove the Verizon pole. He refers to
Huntington Beach Municipal Code section 17.64.050, which requires undergrounding of
all new public and private utility lines and distribution facilities. But Mahgerefteh offers
no cogent explanation as to how that section operates to require a utility to bear the cost
of relocating existing facilities to accommodate a private developer. Accordingly, we
need not discuss the code section further.
              Mahgerefteh also argues Verizon must remove the Verizon pole because it
has become unsafe and unstable once SCE lines and other utilities’ lines were removed.
But there is no evidence in the record to support this assertion and we cannot consider
new factual allegations made for the first time on appeal. (Havstad, supra,
58 Cal.App.4th at p. 661.)
              In sum, Mahgerefteh has failed to demonstrate Verizon owed a legal duty
to Mahgerefteh to bear the cost of relocating its equipment and removing the Verizon
pole. Accordingly, summary judgment on the complaint’s negligence causes of action
was appropriate.
Trespass Cause of Action
              The trial court granted summary judgment on Mahgerefteh’s trespass cause
of action. Mahgerefteh’s complaint alleged Verizon did not have permission to have its
pole on Mahgerefteh’s property. Mahgerefteh did not dispute the Verizon pole was
installed long before he bought the property; he was aware of the pole when he bought
the property; the pole was located within a two and one-half foot utility easement; and his
building plans required the pole be moved.
              Although he challenges granting summary judgment on his trespass cause
of action, as with his negligence causes of action, Mahgerefteh’s opening brief is

                                             10
indecipherable and devoid of any reasoned legal analysis or clearly articulated issues and
we may treat the claim as waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785; Landry,
supra, 39 Cal.App.4th at pp. 699-700.) Moreover, we are satisfied summary judgment on
the trespass cause of action was proper. The elements of a cause of action for trespass are
plaintiff’s lawful possessory interest in the real property, defendant’s wrongful physical
invasion or intrusion on the property, and damages proximately caused. (See
CACI No. 2000; see also Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769,
774-775.) Mahgerefteh could not prove the Verizon pole was wrongfully placed on his
property because Mahgerefteh agreed it was located within the utility easement. “An
easement is a nonpossessory interest in the land of another that gives its owner the right
to use that property. [Citation.]” (Carstens v. California Coastal Com. (1986)
182 Cal.App.3d 277, 287.)
              Mahgerefteh suggests the easement was only granted for alley widening
purposes, and the undergrounding of utilities in the alley, and therefore continuing the
placement of the Verizon pole is not within the scope of the easement. Not only was this
argument not raised below, it conflicts with the express language of the easement
Mahgerefteh signed granting the City “a perpetual easement and right of way for street
and public utility purposes in, on, over, under and across” the southerly 2.5 feet of the
property. (Italics added.) Mahgerefteh has not demonstrated any error in granting
summary judgment on his trespass cause of action.2



2               Mahgerefteh raises new arguments in his reply brief. One appears to be the
trial court erred by failing to issue a statement of decision, although no statement of
decision was requested. The other appears to be a challenge Verizon’s evidentiary
objections, although the trial court never ruled on them. (See Reid v. Google, Inc. (2010)
50 Cal.4th 512, 534 [presume objections overruled if trial court does not expressly rule
on them].) We do not address issues raised for the first time in the reply brief and thus do
not consider these points further. (Minish v. Hanuman Fellowship (2013) 14 Cal.App.4th
437, 471, fn. 19.)

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                                  DISPOSITION
            The judgment is affirmed. Respondent is awarded its costs on appeal.




                                              O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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