Preview
1 GATES EISENHART DAWSON
Steven D. McLellan (SBN 311395)
2 James L. Dawson (SBN 73521)
Marc A. Eisenhart (SBN 188518)
3 Claire A. Melehani (SBN 324763)
125 South Market Street, Suite 1200
4 San Jose, CA 95113-2288
Telephone: (408) 288-8100
5 Fax: (408) 288-9409
E-mail: sdm@gedlaw.com; jld@gedlaw.com; mae@gedlaw.com; cam@gedlaw.com
6
Janet Fogarty & Associates
7 Janet E. Fogarty (SBN 157460)
PO Box 1579
8 Millbrae, CA 94030
Telephone: (650) 652-5601
9 Email: jfogartylawfirm@yahoo.com
10 Attorneys for: King Plaza Center, LLC
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SAN MATEO – UNLIMITED JURISDICTION
14
15 DBP INVESTMENTS, a California General Lead Case No: CIV538897
Partnership (Consolidated with Case No. 19CIV07118)
16
Plaintiff, KING PLAZA CENTER, LLC’S
17 MEMORANDUM OF LAW IN SUPPORT
18 OF
(1) MOTION TO SET ASIDE AND
19 vs. VACATE JUDGMENT; AND
(2) MOTION FOR NEW TRIAL
20
Date: June 16, 2023
21
KING PLAZA CENTER, LLC, a Delaware Time: 10:00 A.M.
22 Limited Liability Company, BUA-QUACH, an Dept: 21
individual, SOVAN LIEN, an individual, Judge: Hon. Robert D. Foiles
23 DONG VUONG, an individual, THANH LAI,
and DOES 1 through 10 Trial Date: February 28, 2023
24
Complaint Filed: June 1, 2016
25 Defendants.
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King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 TABLE OF CONTENTS
2 TABLE OF CONTENTS ............................................................................................................... ii
3 TABLE OF AUTHORITIES ........................................................................................................ iii
4 INTRODUCTION ......................................................................................................................... 1
5 FACTS ........................................................................................................................................... 1
6 1. Facts Adduced At Trial ....................................................................................................... 1
7 2. The Parties Dispute The Meaning And Effect Of The Court’s Judgment .......................... 3
ARGUMENT ................................................................................................................................. 4
8
1. Legal Standard ..................................................................................................................... 4
9
2. The Court Has Until July 5, 2023 To Grant Any Relief Under These Motions ................. 5
10
3. King’s Interpretation Of The judgment Is Correct .............................................................. 6
11 a. The REA does not prohibit time restricted parking. .................................................... 6
12 b. After the REA was entered into, and after King purchased the property, time
restricted parking was at the Center. ............................................................................ 8
13
4. DBP’s Interpretation Of The Judgment Is Incorrect ........................................................... 9
14
5. If This Court Intended That The REA Prohibits Time Restrictions, The Court Needs To
15 Address King’s Statute Of Limitations Affirmative Defense ........................................... 11
16 CONCLUSION ............................................................................................................................ 12
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King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 TABLE OF AUTHORITIES
2 Cases
3 Baccouche v. Blankenship (2007)
154 Cal.App.4th 1551 ................................................................................................................ 8
4
Bohman v. Berg (1960)
5 54 Cal.2d 787 ............................................................................................................................. 9
6 Carsten v. Psychology Examining Com. (1980)
27 Cal.3d 793 ........................................................................................................................... 10
7
Dolske v. Gormley (1962)
8 58 Cal.2d 513 ........................................................................................................................... 11
9 Estate of Buck (1994)
10 29 Cal.App.4th 1846 .................................................................................................................. 4
Fergus v. Songer (2007)
11
150 Cal.App.4th 552 .................................................................................................................. 6
12 Glen Hill Farm, LLC v. California Horse Racing Bd. (2010)
13 189 Cal.App.4th 1296 ................................................................................................................ 4
14 Oakland Raiders v. National Football League (2007)
41 Cal.4th 624 ............................................................................................................................ 6
15
Ramirez v. Moran (1988)
16 201 Cal.App.3d 431 ................................................................................................................... 5
17 Rubin v. Toberman (1964)
226 Cal.App.2d 319 ................................................................................................................. 10
18
Rye v. Tahoe Truckee Sierra Disposal Co., Inc. (2013)
19 222 Cal.App.4th 84 .................................................................................................................. 11
20 Sandler v. Casale (1981)
125 Cal.App.3d 707 ................................................................................................................... 4
21
Selby Realty Co. v. City of San Buenaventura (1973)
22 10 Cal.3d 110 ........................................................................................................................... 10
23 Shapiro v. Prudential Prop. & Cas. Co. (1997)
52 Cal.App.4th 722 .................................................................................................................... 5
24
Simac Design, Inc. v. Alciati (1979)
25 92 Cal.App.3d 146 ..................................................................................................................... 4
26
27
28
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 Statutes
2 CCP section 657............................................................................................................................. 6
3 CCP section 660............................................................................................................................. 5
4 CCP section 663......................................................................................................................... 5, 6
5 CCP section 806......................................................................................................................... 6, 7
6 CCP section 1636........................................................................................................................... 7
7 CCP section 1638........................................................................................................................... 7
8 CCP section 1856........................................................................................................................... 8
9
10 Treatises
11 26 Cal. Jur. 3d Declaratory Relief § 9 (2023) ................................................................................ 4
12 California Practice Guide (2022) Civ. Trials & Evid. Ch. 18-C ¶ 18:490..................................... 5
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1 INTRODUCTION
2 This Court issued its judgment declaring “[t]hat since there is no provision in the
3 agreement that precludes time restrictions, there is no reason why through appropriate
4 discussions the parties cannot work out an acceptable agreement to accommodate both shoppers
5 and bowlers.” This judgment’s plain meaning is that the REA does not prevent either party from
6 implementing time restricted parking without the other side’s approval, and that the parties
7 should try to work it out.
8 Unfortunately, Plaintiff DBP Investments (“DBP”) seeks to sow confusion by claiming
9 that the judgment means that the REA requires that the parties agree on time restricted parking
10 before it can be implemented. The point of this declaratory relief action was to, once and for all,
11 clear up and settle a dispute as to these parties’ rights under the REA as to time restricted
12 parking. King does not desire further litigation, either on appeal or in a subsequent action,
13 regarding the REA. As such, King brings a motion to set aside and vacate judgment, and a
14 motion for new trial in the alternative, to grant this Court the power to modify its judgment to
15 conform to the substantial evidence, the scope of the pleadings, and the law.
16 It is important to note that King’s request only pertains to determining the rights and
17 duties arising from the REA. This Court’s judgment makes plain that the REA does not prohibit
18 time restricted parking, but it does not touch upon any other law or zoning that might otherwise
19 limit time restrictions. As the Court has been made aware, the City of Daly City, through its
20 police power, after hearing and weighing evidence, approved a parking management plan that
21 states the number and placement of time-restricted parking spaces, leaving half of the spaces
22 unrestricted. Here, King’s request only seeks to modify the judgment to make clear that the
23 REA does not prohibit either party from implementing time restrictions on the parking lot.
24
25 FACTS
26 1. Facts Adduced At Trial
27 After a two-day court trial, this Court issued its proposed statement of decision, then a
28 statement of decision, and then issued its judgment. In its statement of decision, the Court found
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 “However, a review of the REA reveals that there is no provision in that agreement which
2 precludes parking time restrictions. Plaintiff DBP Investments objects to the court’s findings
3 regarding parking time restrictions contending that it is beyond the scope of the declaratory
4 relief action. That objection is overruled. At trial there was substantial evidence dealing with
5 prior parking restrictions. As long ago as 1997 Mr. DeVincenzi acknowledged time limit
6 parking on the lot (Exhibit 217).” (RJN Ex. 1 at p. 2 [emphasis added].) The Court then repeated
7 this language that “there is no provision in that agreement which precludes parking time
8 restrictions”: “since there is no provision in the agreement that precludes time restrictions, there
9 is no reason why through appropriate discussions the parties cannot work out an acceptable
10 agreement to accommodate both shoppers and bowlers.” (Id. at p. 4.)
11 Significantly, on March 13, 2023, when this Court issued its proposed statement of
12 decision, this Court made a similar statement on the record, i.e., that the parties should try, but
13 are not required, to work out the issue, “I think in argument, there was a mention and I think off
14 the cuff I said, Well, if we had horses and buggies in 1852, would we still need to have two hour
15 limits for the horse and the buggy and I think not. So to me, this is all something you ought to
16 work out; but if you don’t, I have the writ. So I’ll hear that.” (McLellan Decl. Ex. A [3/13 RT
17 5:7-13] [emphasis added].) 1
18 In this Court’s judgment, the Court adjudged, inter alia, “That since there is no provision
19 in the agreement that precludes time restrictions, there is no reason why through appropriate
20 discussions the parties cannot work out an acceptable agreement to accommodate both shoppers
21 and bowlers.” (RJN Ex. 2.)
22 As for the facts adduced at trial, the REA does not discuss time restricted parking.
23 (McLellan Decl. Ex. B [Trial Exhibit 104].) Mr. Bocci admitted at trial that the REA did not
24 address time restricted parking:
25 Q. Was it your understanding from the time that you signed the REA
back in 1997 that the REA precluded time restricted parking being
26 implemented at the property?
27
1
28 By this time, DBP had filed a writ of mandate action against the City of Daly City and the City
Council of Daly City, which this Court took control over that same day. (Id. [3/13 RT 3:6-21].)
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 A. It didn't address time restricted parking in the agreement. It just
said unrestricted parking.
2
(McLellan Decl. Ex. C [2/28 RT 124:3-7].)
3
However, the term “unrestricted parking” does not appear in the REA, nor does the word
4
“unrestricted” appear in the REA. (McLellan Decl. Ex. B.)
5
Further, DBP submitted to the City a parking management plan that proposed time
6
restrictions, including a site map. (McLellan Decl. Exs. D & E.) Mr. DeVincenzi could not
7
explain why, if the REA was intended to cover time restrictions, the site map was not included
8
in the REA. (McLellan Decl. Ex. C [2/28 RT 66:10-17].)
9
Further, when the Ho family was performing their due diligence in seeking to purchase
10
the property, they saw time restrictions on the property. (McLellan Decl. Ex. F [3/1 RT 162:20-
11
28].) During their due diligence, Ms. Sabrina Ho Stimel formed the understanding that the time
12
restricted parking was permitted at the Center. (Id. [3/1 RT 164:23-26].) Sabrina Ho testified
13
that when King had the curbs repainted green, King charged DBP 50% for those costs, and DBP
14
paid without any disputes. (Id. [3/1 RT 175:8-25].)
15
16
2. The Parties Dispute The Meaning And Effect Of The Court’s Judgment
17
Despite this Court’s statement of decision and judgment, the parties have expressed
18
conflicting interpretations of the judgment and its effect. DBP contends that the judgment means
19
that while the REA “does not prohibit agreed-upon time restrictions,” it does not “give King
20
unfettered discretion to impose time restricted parking.” (See, e.g., RJN Ex. 3 at p. 2:4-16.) In
21
contrast, King contends that the judgment means that the REA does not prohibit either party
22
from putting up time restrictions on its portion of the parking lot without the other party’s
23
agreement. King’s counsel reached out to DBP’s counsel to discuss this issue of interpretation,
24
stating that while the parties were talking settlement, there appeared to be a dispute over the
25
judgment’s interpretation. (McLellan Decl. Ex. G.) King’s counsel asked for a response, adding
26
that if DBP’s counsel did not respond, then King’s counsel would assume there was a
27
disagreement; but, DBP’s counsel did not respond. (McLellan Decl. Ex. G, ¶ 8.)
28
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1 Because this dispute over interpretation involves a recently issued judgment, there are
2 time limits governing the ability to modify the judgment. While King believes its interpretation
3 of the judgment is correct, if King is wrong, it would rather know now and challenge it than find
4 out later, whether on appeal, or in a subsequent lawsuit where it might face defenses of claim
5 preclusion and improper collateral attack of a judgment. (See Estate of Buck (1994) 29
6 Cal.App.4th 1846, 1854 [“A litigant may collaterally attack a final judgment for lack of personal
7 or subject matter jurisdiction, or for granting relief that the court had no power to grant, but may
8 not collaterally attack a final judgment for nonjurisdictional errors.”].) Further, King would
9 rather avoid a new lawsuit seeking declaratory relief interpreting this court’s judgment. (See 26
10 Cal. Jur. 3d Declaratory Relief § 9 (2023) [“When declaratory relief is sought not to challenge
11 the validity or to seek a modification of a prior judgment but merely to interpret the judgment
12 and determine its effect on the rights and duties of the parties, declaratory relief is proper.”]
13 [citing Sandler v. Casale (1981) 125 Cal.App.3d 707].)
14
15 ARGUMENT
16 1. Legal Standard
17 King brings both a motion to vacate and a motion for new trial in the alternative. King
18 believes the optimum motion addressing a conflict in interpreting the judgment is the motion to
19 vacate. That is because there is no dispute regarding the facts: “A motion to vacate under section
20 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an
21 erroneous judgment on the basis of uncontroverted evidence. The motion to vacate under
22 section 663 is speedier and less expensive than an appeal, and is distinguished from a motion for
23 a new trial, to be used when, e. g., the evidence is insufficient to support the findings or
24 verdict.” (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) “In ruling on a motion
25 to vacate the judgment the court cannot ‘in any way change any finding of fact.’ ” (Glen Hill
26 Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302.) However, “the
27 court is powerless to act under § 663 where there is evidence on both sides of an issue. In such
28
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1 cases, a new trial motion is the proper remedy.” (California Practice Guide (2022) Civ. Trials &
2 Evid. Ch. 18-C ¶ 18:490.) As such, King brings its motion for new trial in the alternative.
3 Further, “when a party brings a timely post-trial motion, the trial court has broad
4 discretion to determine the relief being requested.” (Shapiro v. Prudential Prop. & Cas. Co.
5 (1997) 52 Cal.App.4th 722, 727.)
6 Accordingly, this Court has the power to modify its judgment given King’s post-trial
7 motions.
8
9 2. The Court Has Until July 5, 2023 To Grant Any Relief Under These Motions
10 Both of these motions have the same statutory deadline for when the Court’s power to
11 grant any relief expires. The Court loses jurisdiction over these motions “75 days after service
12 on the moving party by any party of written notice of entry of judgment.” (See Code Civ. Proc.
13 § 660, subd. (c); § 663a, subd. (b).) Given that DBP filed a notice of entry of judgment on April
14 21, 2023 (RJN Ex. 4), the 75th day thereafter is July 5, 2023.
15 “A motion to set aside and vacate a judgment is not determined within the meaning of
16 this section until an order ruling on the motion is entered in the permanent minutes of the court,
17 or signed by the judge and filed with the clerk. The entry of an order to set aside and vacate the
18 judgment in the permanent minutes of the court shall constitute a determination of the motion
19 even though that minute order, as entered, expressly directs that a written order be prepared,
20 signed, and filed.” (CCP § 663a, subd. (b).) If a court grants a motion to vacate, it must enter
21 “another and different judgment” when it does so. (Code Civ. Proc., § 663.) “[A]n order of
22 vacation, without directing entry of a new judgment, is void.” (Ramirez v. Moran (1988) 201
23 Cal.App.3d 431, 435.)
24 “A motion for a new trial is not determined within the meaning of this section until an
25 order ruling on the motion is entered in the permanent minutes of the court or signed by the
26 judge and filed with the clerk. The entry of a new trial order in the permanent minutes of the
27 court shall constitute a determination of the motion even though that minute order, as entered,
28 expressly directs that a written order be prepared, signed, and filed.” (CCP § 660, subd. (c).)
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 Moreover, a timely order must also specify the “ground or grounds” for granting a new trial.
2 (Code Civ. Proc., § 657.) “Ground or grounds” refers to the seven grounds for new trial section
3 657 authorizes. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 634.)
4 Within 10 days of determining the motion — even if beyond the 75-day decision period — the
5 Court must file a “specification of reasons.” (Code Civ. Proc., § 657; Fergus v. Songer (2007)
6 150 Cal.App.4th 552, 563 [10-day limit for statement of reasons “mandatory and
7 jurisdictional”].) Thus, the statutory basis of decision must be reduced to writing, signed, and
8 filed — or entered in the minutes — by July 5, 2023, but the Court may provide its reasoning by
9 July 14, 2023.
10
11 3. King’s Interpretation Of The judgment Is Correct
12 King contends that the judgment means that the REA does not prevent either party from
13 putting up time restrictions on its portion of the parking lot without the other party’s agreement.
14 If that was the Court’s intent, then King requests that the Court modify the judgment to say this.
15 If instead, the Court intended to mean that while the REA “does not prohibit agreed-upon time
16 restrictions,” the REA does not “give King unfettered discretion to impose time restricted
17 parking,” King contends that is error sufficient to support a motion to vacate and set aside, 2 or,
18 in the alternative, a motion for new trial. 3
19
20 a. The REA does not prohibit time restricted parking.
21 “The extent of a servitude is determined by the terms of the grant, or the nature of the
22 enjoyment by which it was acquired.” (Civ. Code § 806.) Here, the claimed servitude derives
23 from a contract. “A contract must be so interpreted as to give effect to the mutual intention of
24
2
25 The judgment is “[i]ncorrect or erroneous legal basis for the decision, not consistent with or
not supported by the facts.” (See Code Civ. Proc., § 663, subd. (1).)
26
3
There is “[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict
27
or other decision is against law,” and that there is “[e]rror in law.” (See Code Civ. Proc., § 657,
28 subds. (6) & (7).)
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1
the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.”
2
(Civ. Code § 1636.) “The language of a contract is to govern its interpretation, if the language is
3
clear and explicit, and does not involve an absurdity.” (Civ. Code § 1638.)
4
Here, the REA does not prohibit time restricted parking. The REA’s recitals state that
5
the agreement’s purpose is to provide “common parking” and to allow for “ingress and egress to
6
each others’ parcels.” (McLellan Decl. Ex. B at p. 2.) The REA provides three non-exclusive
7
easements, one for utilities, another for the “right to use the entrances, exits and driveways,” and
8
the last for the “right to use the parking spaces.” (Id. at § 3.) Section 4 of the REA describes the
9
easements’ permitted use. Additionally, this section provides that the parties will use the rights
10
granted by the easement “so as not to interfere with the lawful use of the other’s Parcel and the
11
activities granted thereon.” (Id. at § 4.) The REA prohibits the parties from “prevent[ing] or
12
impair[ing] the others free use of the Common Area owned by it for the free flow of vehicular
13
or pedestrian ingress to and egress from such other owner’s Parcel.” (Id. at § 4, subd. (c).) Those
14
provisions do not expressly or implicitly prohibit time restricted parking. 4
15
On page 2 of this Court’s Statement of Decision, the Court found the same: “However, a
16
review of the REA reveals that there is no provision in that agreement which precludes parking
17
time restrictions.” (RJN Ex. 1.) Given this finding of fact, and given the law that “[t]he extent of
18
a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it
19
was acquired” (Civ. Code § 806), there is no prohibition in the REA on either party from
20
installing time restrictions on their portion of the parking lot. 5
21
4
22 For example, time restricted parking does not “prevent or impair the others free use of the
[parking lot] for the free flow of vehicular or pedestrian ingress to and egress from such other
23 owner’s Parcel.” No evidence was introduced to show that the time restrictions already present
on the property prevented or impaired such free use. That’s because the time restrictions apply
24
to every customer, and do not have a direct relation to DBP’s parcel—any customer that decides
25 to park there can use either the bowling alley or the shopping center.
26 5
As stated in the introduction, it is important to note that this declaratory relief action only
pertains to the rights and duties arising from the REA. Clarifying the rights and duties regarding
27
the REA does not mean that this Court’s judgment would permit the parties to freely disregard
28 any other applicable zoning that might otherwise limit time restrictions. Here, as this Court has
been made aware, the City of Daly City, through its police power, has approved a parking
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1
Further, Mr. Bocci essentially admitted that the REA did not address time restrictions,
2
but tried to argue that other terminology such as “unrestricted parking” should apply. (McLellan
3
Decl. Ex. C [2/28 RT 124:3-7].) But this term do not appear in the REA. (McLellan Decl. Ex.
4
B.) And to the extent Mr. Bocci is relying on some other language in another agreement to
5
impose such an obligation, the REA’s integration clause bars it. (See McLellan Decl. Ex. B at §
6
10; Code Civ. Proc., § 1856, subds. (a) & (b).)
7
Significantly, the REA’s integration clause is further evidence that the REA was not
8
meant to address time restricted parking. At section 10, emphasis added, the REA states, “This
9
Agreement constitutes the entire agreement and understanding of the parties with respect to the
10
subject matter of this Agreement.” The REA’s subject matter is not parking management—it
11
simply concerns the right to use the other parcel. As the Court found in its statement of decision,
12
“At trial there was substantial evidence dealing with prior parking restrictions. As long ago as
13
1997 Mr. DeVincenzi acknowledged time limit parking on the lot (Exhibit 217).” (RJN Ex. 1.)
14
Exhibit 217 was identified as a parking management plan, and DBP sent this parking
15
management plan to the City without the REA. (McLellan Decl. Ex. D; see also id. Ex. C [2/28
16
RT 66:10-17].) The REA did not intend to cover parking management and time restrictions, and
17
thus, cannot be interpreted to address it.
18
19 b. After the REA was entered into, and after King purchased the property, time
restricted parking was at the Center.
20
Additionally, the parties’ conduct before the dispute arose shows that DBP understood
21
that the REA did not prohibit time restricted parking.
22
This rule is in accord with the cardinal rule of construction that
23 when a contract is ambiguous or uncertain the practical
construction placed upon it by the parties before any
24 controversy arises as to its meaning affords one of the most
25
management plan stating where time restricted parking must be placed. (McLellan Decl. Ex. F
26 [3/1 RT 158:21-159:7] [Court taking judicial notice], see with RJN Ex. 6; Cf. Baccouche v.
Blankenship (2007) 154 Cal.App.4th 1551, 1557 [“[Z]oning laws […] may restrict the usage
27
regardless of an easement.”].) While DBP has challenged that use of the police power in the writ
28 action, if that action is unsuccessful, the parties would be bound to follow the parking
management plan.
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 reliable means of determining the intent of the parties.
[Citation] (I)n all cases where the terms of their contract, or the
2 language they employ, raises a question of doubtful construction,
and it appears that the parties themselves have practically
3 interpreted their contract, the courts will follow that practical
construction. It is to be assumed that parties to a contract best
4 know what was meant by its terms, and are the least liable to be
mistaken as to its intention; that each party is alert to his own
5 interests, and to insistence on his rights, and that whatever is done
by the parties contemporaneously with the execution of the
6 contract is done under its terms as they understood and intended it
should be. Parties are far less liable to have been mistaken as to the
7 intention of their contract during the period while harmonious and
practical construction reflects that intention, than they are when
8 subsequent differences have impelled them to resort to law * * *.
The law, however, recognizes the practical construction of a
9 contract as the best evidence of what was intended by its
provisions.
10
(Bohman v. Berg (1960) 54 Cal.2d 787, 795-796 [emphases added].)
11
The evidence uniformly establishes that time restricted parking has existed at the Center
12
since King purchased the property, as this Court’s Statement of Decision found. (McLellan
13
Decl. Ex. F [3/1 RT 175:8-13]; RJN Ex. 1.) After King purchased the shopping center, several
14
parking curbs were painted green, designating them as time restricted. Additionally, King
15
repainted the curbs green, charged DBP, and DBP paid for them. (McLellan Decl. Ex. F [3/1 RT
16
175:14-25].) Such evidence shows that the parties did not intend or understand that the REA
17
prohibited time restricted parking.
18
19
4. DBP’s Interpretation Of The Judgment Is Incorrect
20
DBP contends that while the REA “does not prohibit agreed-upon time restrictions,” it
21
does not “give King unfettered discretion to impose time restricted parking.” (McLellan Decl.
22
Ex. G; RJN Ex. 3 at p. 2:11-16.) DBP appears to be relying on the judgment’s language, “there
23
is no reason why through appropriate discussions the parties cannot work out an acceptable
24
agreement to accommodate both shoppers and bowlers.” (RJN Ex. 2.) This language should not
25
aid DBP’s position.
26
With this language, the Court is telling the parties that they should be able to work out
27
an agreement—but the Court is not decreeing that the REA requires such an agreement.
28
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1 “Declaratory relief exists to enable a party to a contract to determine his rights and liabilities
2 before he has incurred costs, and subjected himself to risks, which, if his view of those rights
3 and liabilities is in error, he would not have incurred or to which he would not have subjected
4 himself.” (Rubin v. Toberman (1964) 226 Cal.App.2d 319, 326.) The judgment does not attach
5 this idea of the parties working it out to the REA—instead, the Court is offering its advice that
6 the parties should be able to resolve it “since there is no provision in the agreement that
7 precludes time restrictions.” (RJN Ex. 2.) But, in terms of effect, this part of the judgment is an
8 advisory opinion because it “purely and simply offer[s] gratuitous advice” for how the parties
9 should act. (See Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 798.)
10 Importantly, “[t]he [declaratory] judgment must decree, not suggest, what the parties may or
11 may not do.” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117
12 [emphasis added].) This language about there being no reason for why the parties cannot work
13 out an arrangement has no effect on the parties’ rights and liabilities based on the REA. As such,
14 as a mere advisory opinion, it constitutes mere surplusage, and unfortunately, has seeded
15 Plaintiff’s contention and argument that it is more than that – that it is a decree with substance
16 cutting of King’s rights to implement timed restrict parking unless and only if DBP consents.
17 Following DBP’s interpretation, and to the extent that the Court intended that the parties
18 must agree before any party may install time restrictions, is error. As shown above, nothing in
19 the REA and in the facts concerning the REA discusses or addresses time restrictions. Further,
20 as Mr. Bocci testified, he thought that his right to parking was “unrestricted” under the REA, not
21 that he could work out some arrangement with King to install time restrictions. (McLellan Decl.
22 Ex. C [2/28 RT 124:3-7].) There is no evidence, from either the REA itself or from any extrinsic
23 source, that the REA permits “agreed upon time restrictions,” while prohibiting any other
24 implementation of time restrictions.
25 Because the REA does not address time restrictions, or whether the parties must agree to
26 them before they are installed, that means the grantor retains the rights for placing time
27 restrictions. “The law is jealous of the claim of an easement ... and likewise of the extent of the
28 rights claimed under an instrument granting an easement. The rule is that every incident of
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1
ownership not inconsistent with the easement and the enjoyment of the same, is reserved
2
to the grantor.” (Dolske v. Gormley (1962) 58 Cal.2d 513, 519 [emphasis added].) “Where the
3
easement is founded upon a grant ... only those interests expressed in the grant and those
4
necessarily incident thereto pass from the owner of the fee.” (Rye v. Tahoe Truckee Sierra
5
Disposal Co., Inc. (2013) 222 Cal.App.4th 84, 92 [citation omitted].) As such, because the REA
6
does not preclude time restrictions, and time restrictions are thereby not inconsistent with the
7
easement because they still permit customers to use the parking lot, each owner maintains the
8
right to install time restrictions. Accordingly, the REA does not impose a requirement on either
9
party to seek the other side’s permission to install time restrictions on the parking lot.
10
11
5. If This Court Intended That The REA Prohibits Time Restrictions, The Court Needs
12
To Address King’s Statute Of Limitations Affirmative Defense
13
King’s counsel argued during closing arguments that the statute of limitations would bar
14
DBP’s assertion if the REA prohibited time restrictions: “Indeed, my clients testified when they
15
were doing the due diligence, time restricted parking was present on the property. They paid
16
someone to paint the curbs green. DBP paid for part of that expense. The property had always
17
had time restricted parking. At no point in time did DBP go tell them, You're in breach, until
18
this lawsuit. For eight years resting on what they're claiming is a property right, the scope of
19
easement, they're saying was a breach for eight years. That either violates the statute of
20
limitations, or it shows they never meant for this agreement to prohibit time restricted
21
parking.” (McLellan Decl. Ex. F [3/1 RT 237:5-16] [emphasis added].) However, because the
22
Court’s proposed statement of decision ruled “there is no provision in the agreement that
23
precludes time restrictions” (RJN Ex. 5), King did not object to the proposed statement of
24
decision’s failure to address the statute of limitations. Accordingly, the motions should be
25
granted to address this issue.
26
27
28
King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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1 CONCLUSION
2 The point of this declaratory relief action was to, once and for all, clear up and settle a
3 dispute as to these parties’ rights under the REA as to time restricted parking. A lot of time,
4 cost, and effort on both sides has gone into obtaining this declaratory judgment so that the
5 parties can finally rely upon, and understand their rights under the REA. Unfortunately, DBP
6 seeks to sow confusion as to the parties’ rights, as opposed to clarity and finality, in seizing
7 upon this Court’s suggestion that the parties could try and work things out, and reach
8 subsequent agreements. DBP has made its self-serving interpretation of the judgment’s
9 statement plain in its post-trial filings, thereby setting up an all-but-certain future lawsuit on a
10 matter that was squarely before this Court for a final determination of the parties’ rights. By this
11 combined motion to vacate and new trial, King seeks modification, before it’s too late when this
12 Court loses jurisdiction to do so, to make clear the parties’ rights under the REA as to time
13 restricted parking. King requests that this Court grant the necessary relief so that the judgment
14 makes plain that the REA does not prohibit either party from implementing time restricted
15 parking on its respective portion of the parking lot.
16
17 GATES EISENHART DAWSON
18
19 Dated: May 12, 2023 _______________________________
By: Steven D. McLellan
20 Attorneys for King Plaza Center, LLC
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King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897
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Preview
1 GATES EISENHART DAWSON Steven D. McLellan (SBN 311395) 2 James L. Dawson (SBN 73521) Marc A. Eisenhart (SBN 188518) 3 Claire A. Melehani (SBN 324763) 125 South Market Street, Suite 1200 4 San Jose, CA 95113-2288 Telephone: (408) 288-8100 5 Fax: (408) 288-9409 E-mail: sdm@gedlaw.com; jld@gedlaw.com; mae@gedlaw.com; cam@gedlaw.com 6 Janet Fogarty & Associates 7 Janet E. Fogarty (SBN 157460) PO Box 1579 8 Millbrae, CA 94030 Telephone: (650) 652-5601 9 Email: jfogartylawfirm@yahoo.com 10 Attorneys for: King Plaza Center, LLC 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SAN MATEO – UNLIMITED JURISDICTION 14 15 DBP INVESTMENTS, a California General Lead Case No: CIV538897 Partnership (Consolidated with Case No. 19CIV07118) 16 Plaintiff, KING PLAZA CENTER, LLC’S 17 MEMORANDUM OF LAW IN SUPPORT 18 OF (1) MOTION TO SET ASIDE AND 19 vs. VACATE JUDGMENT; AND (2) MOTION FOR NEW TRIAL 20 Date: June 16, 2023 21 KING PLAZA CENTER, LLC, a Delaware Time: 10:00 A.M. 22 Limited Liability Company, BUA-QUACH, an Dept: 21 individual, SOVAN LIEN, an individual, Judge: Hon. Robert D. Foiles 23 DONG VUONG, an individual, THANH LAI, and DOES 1 through 10 Trial Date: February 28, 2023 24 Complaint Filed: June 1, 2016 25 Defendants. 26 27 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 i 1 TABLE OF CONTENTS 2 TABLE OF CONTENTS ............................................................................................................... ii 3 TABLE OF AUTHORITIES ........................................................................................................ iii 4 INTRODUCTION ......................................................................................................................... 1 5 FACTS ........................................................................................................................................... 1 6 1. Facts Adduced At Trial ....................................................................................................... 1 7 2. The Parties Dispute The Meaning And Effect Of The Court’s Judgment .......................... 3 ARGUMENT ................................................................................................................................. 4 8 1. Legal Standard ..................................................................................................................... 4 9 2. The Court Has Until July 5, 2023 To Grant Any Relief Under These Motions ................. 5 10 3. King’s Interpretation Of The judgment Is Correct .............................................................. 6 11 a. The REA does not prohibit time restricted parking. .................................................... 6 12 b. After the REA was entered into, and after King purchased the property, time restricted parking was at the Center. ............................................................................ 8 13 4. DBP’s Interpretation Of The Judgment Is Incorrect ........................................................... 9 14 5. If This Court Intended That The REA Prohibits Time Restrictions, The Court Needs To 15 Address King’s Statute Of Limitations Affirmative Defense ........................................... 11 16 CONCLUSION ............................................................................................................................ 12 17 18 19 20 21 22 23 24 25 26 27 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 ii 1 TABLE OF AUTHORITIES 2 Cases 3 Baccouche v. Blankenship (2007) 154 Cal.App.4th 1551 ................................................................................................................ 8 4 Bohman v. Berg (1960) 5 54 Cal.2d 787 ............................................................................................................................. 9 6 Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793 ........................................................................................................................... 10 7 Dolske v. Gormley (1962) 8 58 Cal.2d 513 ........................................................................................................................... 11 9 Estate of Buck (1994) 10 29 Cal.App.4th 1846 .................................................................................................................. 4 Fergus v. Songer (2007) 11 150 Cal.App.4th 552 .................................................................................................................. 6 12 Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 13 189 Cal.App.4th 1296 ................................................................................................................ 4 14 Oakland Raiders v. National Football League (2007) 41 Cal.4th 624 ............................................................................................................................ 6 15 Ramirez v. Moran (1988) 16 201 Cal.App.3d 431 ................................................................................................................... 5 17 Rubin v. Toberman (1964) 226 Cal.App.2d 319 ................................................................................................................. 10 18 Rye v. Tahoe Truckee Sierra Disposal Co., Inc. (2013) 19 222 Cal.App.4th 84 .................................................................................................................. 11 20 Sandler v. Casale (1981) 125 Cal.App.3d 707 ................................................................................................................... 4 21 Selby Realty Co. v. City of San Buenaventura (1973) 22 10 Cal.3d 110 ........................................................................................................................... 10 23 Shapiro v. Prudential Prop. & Cas. Co. (1997) 52 Cal.App.4th 722 .................................................................................................................... 5 24 Simac Design, Inc. v. Alciati (1979) 25 92 Cal.App.3d 146 ..................................................................................................................... 4 26 27 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 iii 1 Statutes 2 CCP section 657............................................................................................................................. 6 3 CCP section 660............................................................................................................................. 5 4 CCP section 663......................................................................................................................... 5, 6 5 CCP section 806......................................................................................................................... 6, 7 6 CCP section 1636........................................................................................................................... 7 7 CCP section 1638........................................................................................................................... 7 8 CCP section 1856........................................................................................................................... 8 9 10 Treatises 11 26 Cal. Jur. 3d Declaratory Relief § 9 (2023) ................................................................................ 4 12 California Practice Guide (2022) Civ. Trials & Evid. Ch. 18-C ¶ 18:490..................................... 5 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 iv 1 INTRODUCTION 2 This Court issued its judgment declaring “[t]hat since there is no provision in the 3 agreement that precludes time restrictions, there is no reason why through appropriate 4 discussions the parties cannot work out an acceptable agreement to accommodate both shoppers 5 and bowlers.” This judgment’s plain meaning is that the REA does not prevent either party from 6 implementing time restricted parking without the other side’s approval, and that the parties 7 should try to work it out. 8 Unfortunately, Plaintiff DBP Investments (“DBP”) seeks to sow confusion by claiming 9 that the judgment means that the REA requires that the parties agree on time restricted parking 10 before it can be implemented. The point of this declaratory relief action was to, once and for all, 11 clear up and settle a dispute as to these parties’ rights under the REA as to time restricted 12 parking. King does not desire further litigation, either on appeal or in a subsequent action, 13 regarding the REA. As such, King brings a motion to set aside and vacate judgment, and a 14 motion for new trial in the alternative, to grant this Court the power to modify its judgment to 15 conform to the substantial evidence, the scope of the pleadings, and the law. 16 It is important to note that King’s request only pertains to determining the rights and 17 duties arising from the REA. This Court’s judgment makes plain that the REA does not prohibit 18 time restricted parking, but it does not touch upon any other law or zoning that might otherwise 19 limit time restrictions. As the Court has been made aware, the City of Daly City, through its 20 police power, after hearing and weighing evidence, approved a parking management plan that 21 states the number and placement of time-restricted parking spaces, leaving half of the spaces 22 unrestricted. Here, King’s request only seeks to modify the judgment to make clear that the 23 REA does not prohibit either party from implementing time restrictions on the parking lot. 24 25 FACTS 26 1. Facts Adduced At Trial 27 After a two-day court trial, this Court issued its proposed statement of decision, then a 28 statement of decision, and then issued its judgment. In its statement of decision, the Court found King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 1 1 “However, a review of the REA reveals that there is no provision in that agreement which 2 precludes parking time restrictions. Plaintiff DBP Investments objects to the court’s findings 3 regarding parking time restrictions contending that it is beyond the scope of the declaratory 4 relief action. That objection is overruled. At trial there was substantial evidence dealing with 5 prior parking restrictions. As long ago as 1997 Mr. DeVincenzi acknowledged time limit 6 parking on the lot (Exhibit 217).” (RJN Ex. 1 at p. 2 [emphasis added].) The Court then repeated 7 this language that “there is no provision in that agreement which precludes parking time 8 restrictions”: “since there is no provision in the agreement that precludes time restrictions, there 9 is no reason why through appropriate discussions the parties cannot work out an acceptable 10 agreement to accommodate both shoppers and bowlers.” (Id. at p. 4.) 11 Significantly, on March 13, 2023, when this Court issued its proposed statement of 12 decision, this Court made a similar statement on the record, i.e., that the parties should try, but 13 are not required, to work out the issue, “I think in argument, there was a mention and I think off 14 the cuff I said, Well, if we had horses and buggies in 1852, would we still need to have two hour 15 limits for the horse and the buggy and I think not. So to me, this is all something you ought to 16 work out; but if you don’t, I have the writ. So I’ll hear that.” (McLellan Decl. Ex. A [3/13 RT 17 5:7-13] [emphasis added].) 1 18 In this Court’s judgment, the Court adjudged, inter alia, “That since there is no provision 19 in the agreement that precludes time restrictions, there is no reason why through appropriate 20 discussions the parties cannot work out an acceptable agreement to accommodate both shoppers 21 and bowlers.” (RJN Ex. 2.) 22 As for the facts adduced at trial, the REA does not discuss time restricted parking. 23 (McLellan Decl. Ex. B [Trial Exhibit 104].) Mr. Bocci admitted at trial that the REA did not 24 address time restricted parking: 25 Q. Was it your understanding from the time that you signed the REA back in 1997 that the REA precluded time restricted parking being 26 implemented at the property? 27 1 28 By this time, DBP had filed a writ of mandate action against the City of Daly City and the City Council of Daly City, which this Court took control over that same day. (Id. [3/13 RT 3:6-21].) King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 2 1 A. It didn't address time restricted parking in the agreement. It just said unrestricted parking. 2 (McLellan Decl. Ex. C [2/28 RT 124:3-7].) 3 However, the term “unrestricted parking” does not appear in the REA, nor does the word 4 “unrestricted” appear in the REA. (McLellan Decl. Ex. B.) 5 Further, DBP submitted to the City a parking management plan that proposed time 6 restrictions, including a site map. (McLellan Decl. Exs. D & E.) Mr. DeVincenzi could not 7 explain why, if the REA was intended to cover time restrictions, the site map was not included 8 in the REA. (McLellan Decl. Ex. C [2/28 RT 66:10-17].) 9 Further, when the Ho family was performing their due diligence in seeking to purchase 10 the property, they saw time restrictions on the property. (McLellan Decl. Ex. F [3/1 RT 162:20- 11 28].) During their due diligence, Ms. Sabrina Ho Stimel formed the understanding that the time 12 restricted parking was permitted at the Center. (Id. [3/1 RT 164:23-26].) Sabrina Ho testified 13 that when King had the curbs repainted green, King charged DBP 50% for those costs, and DBP 14 paid without any disputes. (Id. [3/1 RT 175:8-25].) 15 16 2. The Parties Dispute The Meaning And Effect Of The Court’s Judgment 17 Despite this Court’s statement of decision and judgment, the parties have expressed 18 conflicting interpretations of the judgment and its effect. DBP contends that the judgment means 19 that while the REA “does not prohibit agreed-upon time restrictions,” it does not “give King 20 unfettered discretion to impose time restricted parking.” (See, e.g., RJN Ex. 3 at p. 2:4-16.) In 21 contrast, King contends that the judgment means that the REA does not prohibit either party 22 from putting up time restrictions on its portion of the parking lot without the other party’s 23 agreement. King’s counsel reached out to DBP’s counsel to discuss this issue of interpretation, 24 stating that while the parties were talking settlement, there appeared to be a dispute over the 25 judgment’s interpretation. (McLellan Decl. Ex. G.) King’s counsel asked for a response, adding 26 that if DBP’s counsel did not respond, then King’s counsel would assume there was a 27 disagreement; but, DBP’s counsel did not respond. (McLellan Decl. Ex. G, ¶ 8.) 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 3 1 Because this dispute over interpretation involves a recently issued judgment, there are 2 time limits governing the ability to modify the judgment. While King believes its interpretation 3 of the judgment is correct, if King is wrong, it would rather know now and challenge it than find 4 out later, whether on appeal, or in a subsequent lawsuit where it might face defenses of claim 5 preclusion and improper collateral attack of a judgment. (See Estate of Buck (1994) 29 6 Cal.App.4th 1846, 1854 [“A litigant may collaterally attack a final judgment for lack of personal 7 or subject matter jurisdiction, or for granting relief that the court had no power to grant, but may 8 not collaterally attack a final judgment for nonjurisdictional errors.”].) Further, King would 9 rather avoid a new lawsuit seeking declaratory relief interpreting this court’s judgment. (See 26 10 Cal. Jur. 3d Declaratory Relief § 9 (2023) [“When declaratory relief is sought not to challenge 11 the validity or to seek a modification of a prior judgment but merely to interpret the judgment 12 and determine its effect on the rights and duties of the parties, declaratory relief is proper.”] 13 [citing Sandler v. Casale (1981) 125 Cal.App.3d 707].) 14 15 ARGUMENT 16 1. Legal Standard 17 King brings both a motion to vacate and a motion for new trial in the alternative. King 18 believes the optimum motion addressing a conflict in interpreting the judgment is the motion to 19 vacate. That is because there is no dispute regarding the facts: “A motion to vacate under section 20 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an 21 erroneous judgment on the basis of uncontroverted evidence. The motion to vacate under 22 section 663 is speedier and less expensive than an appeal, and is distinguished from a motion for 23 a new trial, to be used when, e. g., the evidence is insufficient to support the findings or 24 verdict.” (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) “In ruling on a motion 25 to vacate the judgment the court cannot ‘in any way change any finding of fact.’ ” (Glen Hill 26 Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302.) However, “the 27 court is powerless to act under § 663 where there is evidence on both sides of an issue. In such 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 4 1 cases, a new trial motion is the proper remedy.” (California Practice Guide (2022) Civ. Trials & 2 Evid. Ch. 18-C ¶ 18:490.) As such, King brings its motion for new trial in the alternative. 3 Further, “when a party brings a timely post-trial motion, the trial court has broad 4 discretion to determine the relief being requested.” (Shapiro v. Prudential Prop. & Cas. Co. 5 (1997) 52 Cal.App.4th 722, 727.) 6 Accordingly, this Court has the power to modify its judgment given King’s post-trial 7 motions. 8 9 2. The Court Has Until July 5, 2023 To Grant Any Relief Under These Motions 10 Both of these motions have the same statutory deadline for when the Court’s power to 11 grant any relief expires. The Court loses jurisdiction over these motions “75 days after service 12 on the moving party by any party of written notice of entry of judgment.” (See Code Civ. Proc. 13 § 660, subd. (c); § 663a, subd. (b).) Given that DBP filed a notice of entry of judgment on April 14 21, 2023 (RJN Ex. 4), the 75th day thereafter is July 5, 2023. 15 “A motion to set aside and vacate a judgment is not determined within the meaning of 16 this section until an order ruling on the motion is entered in the permanent minutes of the court, 17 or signed by the judge and filed with the clerk. The entry of an order to set aside and vacate the 18 judgment in the permanent minutes of the court shall constitute a determination of the motion 19 even though that minute order, as entered, expressly directs that a written order be prepared, 20 signed, and filed.” (CCP § 663a, subd. (b).) If a court grants a motion to vacate, it must enter 21 “another and different judgment” when it does so. (Code Civ. Proc., § 663.) “[A]n order of 22 vacation, without directing entry of a new judgment, is void.” (Ramirez v. Moran (1988) 201 23 Cal.App.3d 431, 435.) 24 “A motion for a new trial is not determined within the meaning of this section until an 25 order ruling on the motion is entered in the permanent minutes of the court or signed by the 26 judge and filed with the clerk. The entry of a new trial order in the permanent minutes of the 27 court shall constitute a determination of the motion even though that minute order, as entered, 28 expressly directs that a written order be prepared, signed, and filed.” (CCP § 660, subd. (c).) King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 5 1 Moreover, a timely order must also specify the “ground or grounds” for granting a new trial. 2 (Code Civ. Proc., § 657.) “Ground or grounds” refers to the seven grounds for new trial section 3 657 authorizes. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 634.) 4 Within 10 days of determining the motion — even if beyond the 75-day decision period — the 5 Court must file a “specification of reasons.” (Code Civ. Proc., § 657; Fergus v. Songer (2007) 6 150 Cal.App.4th 552, 563 [10-day limit for statement of reasons “mandatory and 7 jurisdictional”].) Thus, the statutory basis of decision must be reduced to writing, signed, and 8 filed — or entered in the minutes — by July 5, 2023, but the Court may provide its reasoning by 9 July 14, 2023. 10 11 3. King’s Interpretation Of The judgment Is Correct 12 King contends that the judgment means that the REA does not prevent either party from 13 putting up time restrictions on its portion of the parking lot without the other party’s agreement. 14 If that was the Court’s intent, then King requests that the Court modify the judgment to say this. 15 If instead, the Court intended to mean that while the REA “does not prohibit agreed-upon time 16 restrictions,” the REA does not “give King unfettered discretion to impose time restricted 17 parking,” King contends that is error sufficient to support a motion to vacate and set aside, 2 or, 18 in the alternative, a motion for new trial. 3 19 20 a. The REA does not prohibit time restricted parking. 21 “The extent of a servitude is determined by the terms of the grant, or the nature of the 22 enjoyment by which it was acquired.” (Civ. Code § 806.) Here, the claimed servitude derives 23 from a contract. “A contract must be so interpreted as to give effect to the mutual intention of 24 2 25 The judgment is “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts.” (See Code Civ. Proc., § 663, subd. (1).) 26 3 There is “[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict 27 or other decision is against law,” and that there is “[e]rror in law.” (See Code Civ. Proc., § 657, 28 subds. (6) & (7).) King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 6 1 the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” 2 (Civ. Code § 1636.) “The language of a contract is to govern its interpretation, if the language is 3 clear and explicit, and does not involve an absurdity.” (Civ. Code § 1638.) 4 Here, the REA does not prohibit time restricted parking. The REA’s recitals state that 5 the agreement’s purpose is to provide “common parking” and to allow for “ingress and egress to 6 each others’ parcels.” (McLellan Decl. Ex. B at p. 2.) The REA provides three non-exclusive 7 easements, one for utilities, another for the “right to use the entrances, exits and driveways,” and 8 the last for the “right to use the parking spaces.” (Id. at § 3.) Section 4 of the REA describes the 9 easements’ permitted use. Additionally, this section provides that the parties will use the rights 10 granted by the easement “so as not to interfere with the lawful use of the other’s Parcel and the 11 activities granted thereon.” (Id. at § 4.) The REA prohibits the parties from “prevent[ing] or 12 impair[ing] the others free use of the Common Area owned by it for the free flow of vehicular 13 or pedestrian ingress to and egress from such other owner’s Parcel.” (Id. at § 4, subd. (c).) Those 14 provisions do not expressly or implicitly prohibit time restricted parking. 4 15 On page 2 of this Court’s Statement of Decision, the Court found the same: “However, a 16 review of the REA reveals that there is no provision in that agreement which precludes parking 17 time restrictions.” (RJN Ex. 1.) Given this finding of fact, and given the law that “[t]he extent of 18 a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it 19 was acquired” (Civ. Code § 806), there is no prohibition in the REA on either party from 20 installing time restrictions on their portion of the parking lot. 5 21 4 22 For example, time restricted parking does not “prevent or impair the others free use of the [parking lot] for the free flow of vehicular or pedestrian ingress to and egress from such other 23 owner’s Parcel.” No evidence was introduced to show that the time restrictions already present on the property prevented or impaired such free use. That’s because the time restrictions apply 24 to every customer, and do not have a direct relation to DBP’s parcel—any customer that decides 25 to park there can use either the bowling alley or the shopping center. 26 5 As stated in the introduction, it is important to note that this declaratory relief action only pertains to the rights and duties arising from the REA. Clarifying the rights and duties regarding 27 the REA does not mean that this Court’s judgment would permit the parties to freely disregard 28 any other applicable zoning that might otherwise limit time restrictions. Here, as this Court has been made aware, the City of Daly City, through its police power, has approved a parking King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 7 1 Further, Mr. Bocci essentially admitted that the REA did not address time restrictions, 2 but tried to argue that other terminology such as “unrestricted parking” should apply. (McLellan 3 Decl. Ex. C [2/28 RT 124:3-7].) But this term do not appear in the REA. (McLellan Decl. Ex. 4 B.) And to the extent Mr. Bocci is relying on some other language in another agreement to 5 impose such an obligation, the REA’s integration clause bars it. (See McLellan Decl. Ex. B at § 6 10; Code Civ. Proc., § 1856, subds. (a) & (b).) 7 Significantly, the REA’s integration clause is further evidence that the REA was not 8 meant to address time restricted parking. At section 10, emphasis added, the REA states, “This 9 Agreement constitutes the entire agreement and understanding of the parties with respect to the 10 subject matter of this Agreement.” The REA’s subject matter is not parking management—it 11 simply concerns the right to use the other parcel. As the Court found in its statement of decision, 12 “At trial there was substantial evidence dealing with prior parking restrictions. As long ago as 13 1997 Mr. DeVincenzi acknowledged time limit parking on the lot (Exhibit 217).” (RJN Ex. 1.) 14 Exhibit 217 was identified as a parking management plan, and DBP sent this parking 15 management plan to the City without the REA. (McLellan Decl. Ex. D; see also id. Ex. C [2/28 16 RT 66:10-17].) The REA did not intend to cover parking management and time restrictions, and 17 thus, cannot be interpreted to address it. 18 19 b. After the REA was entered into, and after King purchased the property, time restricted parking was at the Center. 20 Additionally, the parties’ conduct before the dispute arose shows that DBP understood 21 that the REA did not prohibit time restricted parking. 22 This rule is in accord with the cardinal rule of construction that 23 when a contract is ambiguous or uncertain the practical construction placed upon it by the parties before any 24 controversy arises as to its meaning affords one of the most 25 management plan stating where time restricted parking must be placed. (McLellan Decl. Ex. F 26 [3/1 RT 158:21-159:7] [Court taking judicial notice], see with RJN Ex. 6; Cf. Baccouche v. Blankenship (2007) 154 Cal.App.4th 1551, 1557 [“[Z]oning laws […] may restrict the usage 27 regardless of an easement.”].) While DBP has challenged that use of the police power in the writ 28 action, if that action is unsuccessful, the parties would be bound to follow the parking management plan. King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 8 1 reliable means of determining the intent of the parties. [Citation] (I)n all cases where the terms of their contract, or the 2 language they employ, raises a question of doubtful construction, and it appears that the parties themselves have practically 3 interpreted their contract, the courts will follow that practical construction. It is to be assumed that parties to a contract best 4 know what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to his own 5 interests, and to insistence on his rights, and that whatever is done by the parties contemporaneously with the execution of the 6 contract is done under its terms as they understood and intended it should be. Parties are far less liable to have been mistaken as to the 7 intention of their contract during the period while harmonious and practical construction reflects that intention, than they are when 8 subsequent differences have impelled them to resort to law * * *. The law, however, recognizes the practical construction of a 9 contract as the best evidence of what was intended by its provisions. 10 (Bohman v. Berg (1960) 54 Cal.2d 787, 795-796 [emphases added].) 11 The evidence uniformly establishes that time restricted parking has existed at the Center 12 since King purchased the property, as this Court’s Statement of Decision found. (McLellan 13 Decl. Ex. F [3/1 RT 175:8-13]; RJN Ex. 1.) After King purchased the shopping center, several 14 parking curbs were painted green, designating them as time restricted. Additionally, King 15 repainted the curbs green, charged DBP, and DBP paid for them. (McLellan Decl. Ex. F [3/1 RT 16 175:14-25].) Such evidence shows that the parties did not intend or understand that the REA 17 prohibited time restricted parking. 18 19 4. DBP’s Interpretation Of The Judgment Is Incorrect 20 DBP contends that while the REA “does not prohibit agreed-upon time restrictions,” it 21 does not “give King unfettered discretion to impose time restricted parking.” (McLellan Decl. 22 Ex. G; RJN Ex. 3 at p. 2:11-16.) DBP appears to be relying on the judgment’s language, “there 23 is no reason why through appropriate discussions the parties cannot work out an acceptable 24 agreement to accommodate both shoppers and bowlers.” (RJN Ex. 2.) This language should not 25 aid DBP’s position. 26 With this language, the Court is telling the parties that they should be able to work out 27 an agreement—but the Court is not decreeing that the REA requires such an agreement. 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 9 1 “Declaratory relief exists to enable a party to a contract to determine his rights and liabilities 2 before he has incurred costs, and subjected himself to risks, which, if his view of those rights 3 and liabilities is in error, he would not have incurred or to which he would not have subjected 4 himself.” (Rubin v. Toberman (1964) 226 Cal.App.2d 319, 326.) The judgment does not attach 5 this idea of the parties working it out to the REA—instead, the Court is offering its advice that 6 the parties should be able to resolve it “since there is no provision in the agreement that 7 precludes time restrictions.” (RJN Ex. 2.) But, in terms of effect, this part of the judgment is an 8 advisory opinion because it “purely and simply offer[s] gratuitous advice” for how the parties 9 should act. (See Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 798.) 10 Importantly, “[t]he [declaratory] judgment must decree, not suggest, what the parties may or 11 may not do.” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117 12 [emphasis added].) This language about there being no reason for why the parties cannot work 13 out an arrangement has no effect on the parties’ rights and liabilities based on the REA. As such, 14 as a mere advisory opinion, it constitutes mere surplusage, and unfortunately, has seeded 15 Plaintiff’s contention and argument that it is more than that – that it is a decree with substance 16 cutting of King’s rights to implement timed restrict parking unless and only if DBP consents. 17 Following DBP’s interpretation, and to the extent that the Court intended that the parties 18 must agree before any party may install time restrictions, is error. As shown above, nothing in 19 the REA and in the facts concerning the REA discusses or addresses time restrictions. Further, 20 as Mr. Bocci testified, he thought that his right to parking was “unrestricted” under the REA, not 21 that he could work out some arrangement with King to install time restrictions. (McLellan Decl. 22 Ex. C [2/28 RT 124:3-7].) There is no evidence, from either the REA itself or from any extrinsic 23 source, that the REA permits “agreed upon time restrictions,” while prohibiting any other 24 implementation of time restrictions. 25 Because the REA does not address time restrictions, or whether the parties must agree to 26 them before they are installed, that means the grantor retains the rights for placing time 27 restrictions. “The law is jealous of the claim of an easement ... and likewise of the extent of the 28 rights claimed under an instrument granting an easement. The rule is that every incident of King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 10 1 ownership not inconsistent with the easement and the enjoyment of the same, is reserved 2 to the grantor.” (Dolske v. Gormley (1962) 58 Cal.2d 513, 519 [emphasis added].) “Where the 3 easement is founded upon a grant ... only those interests expressed in the grant and those 4 necessarily incident thereto pass from the owner of the fee.” (Rye v. Tahoe Truckee Sierra 5 Disposal Co., Inc. (2013) 222 Cal.App.4th 84, 92 [citation omitted].) As such, because the REA 6 does not preclude time restrictions, and time restrictions are thereby not inconsistent with the 7 easement because they still permit customers to use the parking lot, each owner maintains the 8 right to install time restrictions. Accordingly, the REA does not impose a requirement on either 9 party to seek the other side’s permission to install time restrictions on the parking lot. 10 11 5. If This Court Intended That The REA Prohibits Time Restrictions, The Court Needs 12 To Address King’s Statute Of Limitations Affirmative Defense 13 King’s counsel argued during closing arguments that the statute of limitations would bar 14 DBP’s assertion if the REA prohibited time restrictions: “Indeed, my clients testified when they 15 were doing the due diligence, time restricted parking was present on the property. They paid 16 someone to paint the curbs green. DBP paid for part of that expense. The property had always 17 had time restricted parking. At no point in time did DBP go tell them, You're in breach, until 18 this lawsuit. For eight years resting on what they're claiming is a property right, the scope of 19 easement, they're saying was a breach for eight years. That either violates the statute of 20 limitations, or it shows they never meant for this agreement to prohibit time restricted 21 parking.” (McLellan Decl. Ex. F [3/1 RT 237:5-16] [emphasis added].) However, because the 22 Court’s proposed statement of decision ruled “there is no provision in the agreement that 23 precludes time restrictions” (RJN Ex. 5), King did not object to the proposed statement of 24 decision’s failure to address the statute of limitations. Accordingly, the motions should be 25 granted to address this issue. 26 27 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 11 1 CONCLUSION 2 The point of this declaratory relief action was to, once and for all, clear up and settle a 3 dispute as to these parties’ rights under the REA as to time restricted parking. A lot of time, 4 cost, and effort on both sides has gone into obtaining this declaratory judgment so that the 5 parties can finally rely upon, and understand their rights under the REA. Unfortunately, DBP 6 seeks to sow confusion as to the parties’ rights, as opposed to clarity and finality, in seizing 7 upon this Court’s suggestion that the parties could try and work things out, and reach 8 subsequent agreements. DBP has made its self-serving interpretation of the judgment’s 9 statement plain in its post-trial filings, thereby setting up an all-but-certain future lawsuit on a 10 matter that was squarely before this Court for a final determination of the parties’ rights. By this 11 combined motion to vacate and new trial, King seeks modification, before it’s too late when this 12 Court loses jurisdiction to do so, to make clear the parties’ rights under the REA as to time 13 restricted parking. King requests that this Court grant the necessary relief so that the judgment 14 makes plain that the REA does not prohibit either party from implementing time restricted 15 parking on its respective portion of the parking lot. 16 17 GATES EISENHART DAWSON 18 19 Dated: May 12, 2023 _______________________________ By: Steven D. McLellan 20 Attorneys for King Plaza Center, LLC 21 22 23 24 25 26 27 28 King’s MPA ISO Mot. to Set Aside and Vacate, and for New Trial Lead Case No. CIV538897 12