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Address Address is required. Phone Number. Location of Infringing Material Identify each web page that allegedly contains infringing material. Sworn Statements I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. Brain , 2 , Mitochondrial myopathies in adults and children: management and therapy development. Current Opinion in Neurology , 27 5 , Mutation of the human mitochondrial phenylalanine-tRNA synthetase causes infantile-onset epilepsy and cytochrome c oxidase deficiency.
Mutations in the SPG7 gene cause chronic progressive external ophthalmoplegia through disordered mitochondrial DNA maintenance. Brain , 5 , Sudden Unexpected Death in Adults with M. Journal of the American Medical Association , 1 , Defining cardiac adaptations and safety of endurance training in patients with m. International Journal of Cardiology , 4 , Initial development and validation of a mitochondrial disease quality of life scale. Neuromuscular Disorders , 23 4 , American Journal of Human Genetics , 93 3 , Neuropathological changes in Alpers' syndrome.
New treatments for mitochondrial disease - no time to drop our standards. Nature Reviews Neurology , 9 8 , Human Mutation , 34 9 , SURF1 deficiency: a multi-centre natural history study. Orphanet Journal of Rare Diseases , 8 , The m. Journal of the Neurological Sciences , , Journal of Neurology, Neurosurgery and Psychiatry , 84 8 , Neuromuscular Disorders , 22 7 , A proposed consensus panel of organisms for determining evolutionary conservation of mt-tRNA point mutations. Mitochondrion , 12 5 , Adults with RRM2B -related mitochondrial disease have distinct clinical and molecular characteristics.
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Brain , 11 , Cardiomyopathy is common in patients with the mitochondrial DNA m. Journal of Neuropathology and Experimental Neurology , 71 2 , McFarland R. Cerebral folate deficiency-mishaps and misdirection. Brain , 7 , Clinical research activity in Newcastle MRC centre. Mitochondrial respiratory chain disease in children undergoing cardiac transplantation: A prospective study.
International Journal of Cardiology , 2 , — European Journal of Human Genetics , 20 , Prevalence and severity of speech and swallowing difficulties in mitochondrial disease. International Journal Language Communication Disorders , 47 1 , Journal of Medical Genetics , 49 9 , The clinical spectrum of the m. Developmental Medicine and Child Neurology , 54 6 , The medical research council neuromuscular centre for translational research mitochondrial disease patient cohort study UK: from conceptualisation to utilisation.
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Obstetric Medicine , 4 3 , Future Neurology , 6 1 , Nijmegen paediatric CDG rating scale: a novel tool to assess disease progression. Journal of Inherited Metabolic Disease , 34 4 , Nuclear factors involved in mitochondrial translation cause a subgroup of combined respiratory chain deficiency. Brain , 1 , Nesbitt V, McFarland R. Mitochondrion , 11 6 , Respiratory chain complex I deficiency caused by mitochondrial DNA mutations.
European Journal of Human Genetics , 19 7 , The relationship between the pyruvate dehydrogenase complex and the mitochondrial respiratory chain. A neurological perspective on mitochondrial disease.
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Lancet Neurology , 9 8 , Assigning pathogenicity to mitochondrial tRNA gene mutations. Depressive behaviour in children diagnosed with a mitochondrial disorder. Mitochondrion , 10 5 , Molecular Genetics and Metabolism , 4 , Mitochondrial diseases in childhood: a clinical approach to investigation and management. Developmental Medicine and Child Neurology , 52 5 , Mitochondrial tRNA mutations and disease. Multi-system neurological disease is common in patients with OPA1 mutations.
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But they could recover all of their post offer attorney fees because the Smiths failed to achieve a better outcome than the offer after trial. The Smiths filed timely notices of appeal from the court's orders on fees and costs, and the Esmailzadehs filed timely cross-appeals. The Esmailzadehs contend we should reverse or substantially modify the court's permanent injunction regarding the permissible uses of the easement area and the changes the Esmailzadehs must make to the area. They argue their use of the property did not interfere with the Smiths' primary easement right the right to run the sewer pipe and the court based its orders solely on the adverse affect on the Smiths' secondary easement right -- the right to access and repair the pipe.
They maintain there was no evidence that the placement of extra dirt, planting of trees, or installation of the sump pump vaults over the sewer pipe had any effect whatsoever on the Smiths' primary right to run sewage through the Esmailzadehs' property. The effect of the court's injunction, the Esmailzadehs argue, was to give the Smiths complete dominion over the easement area, which is inconsistent with the law of easements. Except with respect to the planting of trees, we do not agree the trial court erred in fashioning the equitable easement and injunction.
We modify the injunction to allow the planting of trees, but otherwise affirm the injunction. An easement is a burden or servitude upon land. It represents "an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other's land. Law 10th ed. California-Michigan etc. In this case, the Smiths' property is the dominant tenement, and the Esmailzadehs' property is the servient tenement. McCormack 28 Cal. Whether a particular use of the land by the Esmailzadehs the servient owners was an unreasonable interference with the rights of the Smiths the dominant owners was a question of fact for the trial court, and the court's findings based on conflicting evidence bind us on appeal.
Pasadena v. Vintage Grapevine, Inc. Moreover, the trial court's decision to grant injunctive relief "'rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. Berghold Cal. Here, the equitable easement fashioned by the court expressly gave the Smiths the "right of reasonable access to maintain and repair" the pipe. The court's determination that the sump pump vaults and more than three feet of earth unreasonably interfered with this right of access was supported by substantial evidence, and we therefore will not disturb the court's judgment.
There was evidence from contractor witnesses and both the Smiths' and the Esmailzadehs' experts that the Esmailzadehs had added approximately four feet of earth over the pipe than had existed previously, and this added depth made excavating the pipe much more difficult and expensive. Workers would have to excavate by hand because there was no way to get automated equipment in the Esmailzadehs' backyard.
The added depth would also require an OSHA permit and shoring. The sump pump vaults the Esmailzadehs added over the pipe further complicated access because workers would have to shore up those vaults if they were to tunnel around and under them, and the trench would have to be larger to dig around the vaults. The Esmailzadehs argue none of this matters because the pipe is in good working order, Kneppers testified the pipe had 40 to 50 more years of service life, and any obstructions could be cleared from the cleanout on the Smiths' property essentially, the Smiths will have no need to excavate and repair the pipe.
But this is not a certainty.
Reporter 1/10/ Roll of the Regent House
Indeed, the need to excavate and repair the pipe to remove a rock that could not otherwise be cleared was what prompted the Smiths to commence litigation. Moreover, the evidence demonstrated that in the event of an earthquake, the pipe could be damaged and require excavation, especially because 1 it was encased in concrete where it penetrated walls on the Esmailzadehs' property, and the movement of the concrete would make the pipe more vulnerable to rupture, and 2 the additional earth covering the pipe on their property increased the pressure on the pipe and therefore increased the likelihood of it breaking in an earthquake.
Obviously, earthquakes are not an uncommon occurrence in Southern California, and we cannot say there would never be a need to excavate the pipe. The Esmailzadehs also argue secondary easement rights, such as the right to reasonable access in this case, are entitled to less deference than primary easement rights, and an interference with secondary rights is not held to the same standards. This argument lacks merit. It is true enough that a distinction exists between primary and secondary easement rights.
Howard Cal. But, we are not convinced these particular restrictions on the sump pumps and depth of the pipe are "undue burdens" on the Esmailzadehs. Furthermore, whether we are considering primary or secondary easement rights, the general rule still applies that a servient owner may not unreasonably interfere with the rights of the dominant owner. And as we have just discussed, substantial evidence supported the court's determination that these uses of the land unreasonably interfered with the Smiths' easement right to access.
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The Esmailzadehs further argue the trial court did not properly "balance all of the hardships" between the parties when fashioning the injunction because the court did not analyze how the increased burden on the Smiths "compared with the inability of the Esmailzadehs to make any use of the property in dispute or compared with the 'hardships' already suffered voluntarily by the Smiths with respect to the pipe as it ran under their own property.
Butterfield Cal. In exercising that discretion, the court must consider the conduct and intent not only of the defendant, but also of the plaintiff. This argument also fails to persuade with respect to the sump pump vaults and the added earth. To begin with, the Esmailzadehs' repeated insistence that the court gave the Smiths an exclusive easement to use the property, or that the Esmailzadehs cannot make "any" use of the property, is simply inaccurate.
The court restricted their use of the four-foot wide strip of land within the easement, but they were not prohibited from using the easement land at all. Moreover, to the extent they assert the court did not compare their costs of complying with the injunction to the Smiths' costs of access, they do not point to any evidence that their costs were disproportionately great. For the most part, we are not persuaded by the Esmailzadehs' charge that the court did not properly balance the hardships because the same conditions it enjoined on the Esmailzadehs' property existed on the Smiths' property.
The pipe was somewhere around three feet underground on the Smiths' property, not seven to eight feet underground as it was on the Esmailzadehs' side. The Esmailzadehs assert the pipe ran under the concrete pool deck and pool on the Smiths' side, but the evidence from Kneppers was that the pipe ran around the pool to the side of the yard bordering the Esmailzadehs' property, where it ran under a planter and parallel to the wall separating the two properties, until it turned and went into the Esmailzadehs' property.
Moreover, there was no evidence that if the pipe in fact ran under the Smith's pool deck, the difficulty of excavating the deck was akin to the difficulty of excavating the sump pump vaults, which went to a depth of four feet underground and would require shoring to tunnel underneath them. The undisputed evidence from both sides, however, showed the pipe on the Smiths' side ran under a planter with several trees in it. To the extent the Smiths voluntarily had trees over the pipe on their property, the same conditions can hardly be called an unreasonable interference on the Esmailzadehs' property.
Substantial evidence did not support the determination that the Esmailzadehs' planting of trees was an unreasonable interference with the Smiths' easement rights. We shall modify the judgment to delete this portion of the injunction. The Smiths' contentions on appeal relate to 1 the court's denial of their motion for attorney fees, at least as to their phase one fees, and 2 the court's granting the Esmailzadehs' their attorney fees for phase two of the trial as part of their post offer costs.
The Smiths contend the court erred in considering the action as a whole to determine whether they were prevailing parties, and it should have looked only at the phase one trial, because that involved the causes of action on the contract the grant of easement. They argue that, pursuant to Civil Code section , they prevailed on the contract, and they were thus entitled to their phase one attorney fees.
They further argue that, because the second phase of trial involved tort causes of action not on the contract, there was no legal basis to award the Esmailzadehs their phase two fees as part of their post offer costs. We consider the court's denial of the Smiths' fees and the granting of the Esmailzadehs' fees in turn. It establishes the general rule that '[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.
Blount, Inc. Section Among the categories of allowable costs it lists are "[a]ttorney's fees, when authorized by. Here, the easement is a contract authorizing attorney fees. To review, the easement's attorney fees provision stated: "In the event of any controversy, claim or dispute relating to this instrument or the breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorney fees and costs.
The rules pertaining to attorney fees under Civil Code section apply only to causes of action "on a contract. Goodin 17 Cal. A party's entitlement to fees for tort causes of action -- those not sounding in contract -- is governed not by section , but by the language of the attorney fee provision. Santisas, at pp. BTI Group, Inc.
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In such cases, fees are awardable only as authorized by statute or by agreement, express or implied, between the parties. The Smiths implore us to focus narrowly on the phase one causes of action they contend sounded in contract because they were assertedly the prevailing parties on the contract. Pursuant to Civil Code section , "[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.
The court "shall determine who is the party prevailing on the contract," though it "may also determine that there is no party prevailing on the contract. As summarized by our Supreme Court, "[w]hen a party obtains a simple, unqualified victory by completely prevailing on or defeating all contract claims in the action and the contract contains a provision for attorney fees, [Civil Code] section entitles the successful party to recover reasonable attorney fees incurred in prosecution or defense of those claims.
If the court found the Smiths prevailed on the causes of action on the contract, it could have apportioned the fees as the Smiths suggest and awarded fees for only those causes of action. Reynolds Metals Co. Alperson 25 Cal. The court did not so find, however. It is clear and undisputed the Smiths did not prevail with respect to their phase two tort causes of action. But the court also found, specifically with respect to their phase one causes of action, that "it is difficult to comprehend Plaintiffs' position that they 'prevailed.
They did not. Notably, they moved to vacate the Phase 1 judgment, and have now appealed that judgment.
The gravamen of their complaint in connection with Phase 1 was their contention that the original easement should remain undisturbed and that the Esmailzadehs' wall should be removed. They did not obtain that relief. State Personnel Bd. Specifically, the trial court's determination of the prevailing party under Civil Code section is an exercise of discretion that we should not disturb on appeal absent a clear showing of abuse of discretion. Harvard Investment Co.
Gap Stores, Inc. We do not find such an abuse here. The conclusion that the Smiths did not prevail sufficiently to justify an award of attorney fees was supported by the record. The Smiths believe because they had an easement and well-functioning, accessible sewer pipe before the lawsuit, and they ended up with an easement and well-functioning, accessible sewer pipe afterward, they necessarily prevailed. When one considers their demands and litigation objectives, though, the phase one statement of decision was both good news and bad news, a mixed result that does not justify a prevailing party award.
The Smiths' FAC asked the court to confirm the original easement and force the Esmailzadehs to move the pipe to the location described in it because the Esmailzadehs allegedly moved it during construction. The FAC also sought an order enjoining the Esmailzadehs from building new construction over the easement, which would have included their retaining wall.
The Smiths continued to vigorously maintain these positions throughout trial. In their written closing arguments, they argued the Esmailzadehs had unilaterally moved or changed the location of the easement, and they could not force the Smiths to move their easement to the current location of the pipe. Further, the Smiths argued the doctrine of equitable easements did not apply, and the pipe was not in the same place it was before the Esmailzadehs' construction commenced.
Roll of the Regent House: Registrary's Notice
They also argued the court should force the Esmailzadehs to remove the sump pump vaults and the retaining wall over the easement. Beyond the removal of the sump pump vaults, the court did not do as the Smiths requested. It ruled the pipe was originally located outside the area described by the easement through no fault of the Esmailzadehs, and it extinguished the easement, putting in place an equitable easement that did not require the Esmailzadehs to tear down their retaining wall.
The Smiths contested the court's decision by filing a motion to vacate the judgment, arguing the court had no basis to terminate the easement by grant and replace it with an equitable easement. Given the obviously mixed results for the Smiths, the trial court was not wrong to hold the Smiths were not prevailing parties on the causes of action on the contract.
Deane Gardenhome Assn. Denktas 13 Cal. Godwin Cal. The judgment as well as this opinion must be considered good news and bad news to each of the parties, and in good conscience we cannot say attorneys' fees should be awarded either for the trial or for this appeal.
The Smiths have failed to show the court's order denying their attorney fees motion was an abuse of discretion. So, too, have the Smiths failed to show the court erred when it awarded the Esmailzadehs their phase two attorney fees. They contend the phase two causes of action did not sound in contract, and the court therefore could not award attorney fees for this phase under Civil Code section They are correct in this limited respect, but they miss the point: The court properly awarded these fees as part of the Esmailzadehs' post offer costs.
As noted previously, section provides a prevailing party is entitled as a matter of right to recover costs. Section modifies section Scott Co. It states: "The costs allowed under Sections and shall be withheld or augmented as provided in this section. Section further provides that when "the plaintiff recovers a judgment less than defendant's pretrial offer, the defendant may recover its costs notwithstanding that the plaintiff is the prevailing party: 'the plaintiff. Thus, under section a defendant whose pretrial offer is greater than the judgment received by the plaintiff is treated for purposes of postoffer costs as if it were the prevailing party.
Even a defendant who ultimately loses at trial "is treated for purposes of postoffer costs as if it were the prevailing party" when the defendant's settlement offer exceeded the judgment. Section essentially expands the group of parties who may be treated as prevailing parties. Mangano v. Verity, Inc. In Scott Co.
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