TaxAndReviewCases[1]

TaxAndReviewCases[1] - Auerbach V. Assessment App. Bd. N0....

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Unformatted text preview: Auerbach V. Assessment App. Bd. N0. 1 for County of Los Angeles, 071706 CASC, $134... Page 1 of 9 Case Summary California proposition 13, a ballot initiative, limits real estate tax on residential property to 1% of its assessed value. However, the property could be reassessed at its current market rate if its ownership changes, resulting in significant tax consequences. In the present case, after property held by certain trusts was leased, the lessor demolished a building on the property and constructed a new building that was assessed as new construction. Thereafter, the trusts’ interest in the aforementioned property was transferred from its beneficiaries to their grandchildren, who applied for the $1 million grandparent—grandchild reassessment exclusion under Revenue and Taxation Code section 63.1. The plaintiff assessor considering that the trusts owned the building as well as the land for property tax purposes, applied the exclusion to both proportionately. The lessee trusts, being the real party in interest, contested the allocation and the defendant board ruled that the trusts owned only the land and not the building, and thus the entire exclusion applied to the land. The plaintiff s petition for writ of mandate was denied by the trial court but the appellate court reversed, holding that both the land and the improvements were subject to the calculation of reassessment exclusion. On review, the California Supreme Court after considering the lease provisions held that the real party and not the lessor owned the building, and the change in ownership of the trusts’ intereSt in the property included the building as well as the land. Accordingly, the appellate court’s judgment was affirmed. F:\NEWDATA\CA\CASE\NC\1 0\S 1 34920.107HTM RICK AUERBACH, as Assessor, etc., Plaintiff and Appellant, V. ASSESSMENT APPEALS BOARD NO. 1 FOR THE COUNTY OF LOS AN GELES, Defendant and Respondent; NORTHERN TRUST BANK OF CALIFORNIA, as Trustee, etc., Real Party in Interest and Respondent. $134920 Supreme Court of California July 17, 2006 Court: Superior County: Los Angeles, Super. Ct. No. BSO84737, Ct.App. 2/1 B173649, Judge: Joanne B. O’Donnell Attorneys for Appellant: Raymond G. Fortner, Jr., County Counsel, and Albert Ramseyer, Deputy County Counsel, for Plaintiff and Appellant. http://www.jurisearch.com/dispsquibs.asp?squibsid=10468&state=CA 5/12/2008 Auerbach v. Assessment App. Bd. No. 1 for County of Los Angeles, 071706 CASC, S134... Page 2 of 9 Attorneys for Respondent: No appearance for Defendant and Respondent. Bill Lockyer, Attorney General, and William L. Carter, Deputy Attorney General, for California State Board of Equalization as Arnicus Curiae on behalf of Defendant and Respondent. . Rodi, Pollock, Pettker, Galbraith & Cahill, Cris K. O’Neall, C. Stephen Davis, Wade E. Norwood', Gibson, Dunn & Crutcher. Theodore J. Boutrous, Jr., William E. Thomson and Casey N. Carrington for ' Real Party in Interest and Respondent. CHIN, J. Proposition 13, adopted in 1978, limits the amount that the assessed value of real property may be increased to reflect increases in the property’s actual market value. When ownership of the property changes, however, the property may be reassessed at its current market value. (See Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Ca1.4th 155 (Pacific Southwest).) Changing the assessed value of real property to its current market value can result in a substantial increase in the tax on that property. Thus, determining Whether and when a change of ownership has occurred can have significant tax consequences. Here, the ownership of land subject to a 20—year lease has changed. We must decide whether a building on that land, constructed after the lease had commenced, has‘ also changed ownership. The answer depends on who owns the fee or equivalent interest in the building for these purposes—the lessor or the lessee. We conclude that, for purposes of Proposition 13, the lessor owns the building as well as the land. Accordingly, the change in ownership of the land also changed ownership of the building. We affirm the judgment of the Court of Appeal, which reached a similar conclusion. I. Facts and Procedural History Robert and Electra Anderson (the grandchildren) are the grandchildren of Stanley and Marguerite Anderson (the grandparents). Each grandchild is the beneficiary of one of two trusts that together hold a 50 percent interest in property on North Rodeo Drive in Beverly Hills. Real party in interest Northern Trust Bank of California (Northern Trust) is the cotrustee of the trusts. In February 1996, the trusts, along with two other trusts not involved in this litigation, leased the property to Tommy Hilfiger Retail, Inc. (Hilfiger) for 10 years with two five-year options to extend the term. At the time the parties entered the lease, the property was improved with a retail building. The written lease defined the premises being leased as including the improvements. Paragraph 7.4 (a) of the lease, captioned “Ownership,” provided: “Subject to Lessor’s right to require their removal or become the owner thereof as hereinafter provided in this Paragraph 7.4, all Alterations and Utility Additions made to the Premises by Lessee shall be the property of and Owned by Lessee, but considered a part of the Premises.” Paragraph 7.4(c) required Hilfiger to “surrender the Premises by the end of the last day of the Lease term or any earlier termination date, with all of the improvements, parts and surfaces thereof clean and free of debris and in good operating order, condition and state of repair, ordinary wear and tear excepted.” A provision in an addendum to the lease, also captioned “Ownership,” stated: “During the term of this Lease, the Improvements shall be the property of and owned by Lessee but considered a part of the Premises. The Improvements shall, at the expiration or earlier termination of this Lease, become the property of Lessor and remain upon and be surrendered by Lessee with the Premises.” Another lease provision gave the lessor authority to eject Hilfiger from the premises for a http://www.jurisearch.com/dispsquibs.asp?squibsid=10468&state=CA 5/12/2008 Auerbach V. Assessment App. Bd. No. l for County of Los Angeles, 071706 CASC, 8134... Page 3 of 9 breach of the lease. Under the lease, any proceeds from the taking of any part of the premises by eminent domain belonged to the lessor. The lease required Hilfiger either to renovate the existing retail building on the property with a minimum expenditure of $2 million or to demolish it and build a new one with a minimum expenditure of $4 million. It provided for certain rent credits depending on which of these options Hilfiger chose. It also stated that “[a]ll monetary obligations of Lessee to Lessor under the terms of this Lease are deemed to be rent.” It gave the trusts, as the lessor, certain control over changes to the existing building, including approval of any architectural plans, alterations, or construction of new improvements. It also recognized that Hilfiger intended to construct a “ ‘Flagship’ location” on the premises and stated that the lessor agreed to cooperate in this regard. The lease also required the lessor’s consent for Hilfiger to mortgage or encumber the improvements, or to assign or transfer the leasehold. The lease contemplated that the lessor would have authority “to finance, refinance, or sell the Premises, any part thereof, or the building of which the Premises are a part . . . .” It required Hilfiger to pay the real property taxes, but required the lessor to pay any increase in real property taxes due to, or resulting from, the sale of the premises. It also required Hilfiger to repair any damage to the property at its expense, but required the lessor to make any insurance proceeds available to Hilfiger for the repairs. The lease did not specifically state whether the monthly rent was for the land or the building, or both, but the evidence established that Hilfiger paid rent for the land, and not for the building. Hilfiger chose to demolish the existing building and build a new one, at a cost of $20 million. It completed and occupied the new building in late 1997. The new building was assessed as new construction at that time. Thereafter, Hilfiger paid all expenses associated with the building. On June 16, 1999, John Anderson, the grandchildren’s father, died. The parties agree that under the terms of the trusts, this event transferred ownership of the trusts’ interests in the property from the grandparents to the grandchildren. The grandchildren applied for the $1 million grandparent-grandchild reassessment exclusion under Revenue and Taxation Code section 631m Rick Auerbach, the Los Angeles County Assessor (Assessor) granted the exclusion. However, taking the position that the trusts owned the building as well as the land for property tax purposes, the Assessor applied the exclusion to both on a pro rata basis. It allocated approximately 92 percent of the exclusion to the building and 8 percent to the land. Northern Trust, as trustee for the grandchildren, contested this allocation before the Los Angeles County Assessment Appeals Board No. 1 (Board). It contended that the trusts owned only the land and not the building, and thus the entire exclusion applied to the land. After holding an evidentiary hearing, the Board ruled in the grandchildren’s favor. It concluded that Hilfiger, rather than the trusts, owned the building and directed the Assessor to apply the exclusion solely to the land. It relied on the following facts to support this conclusion: “The Agreement [i.e.,the lease] states that ownership of the new improvements was held by Hilfiger once the new improvements were completed in 1997. Other provisions in the Agreement support the conclusion that the Trusts and Hilfiger intended the new improvements to be owned by Hilfiger for as long as Hilfiger was leasing the land on which the new improvements were located. For example, the elimination of all references in the Agreement to lessor ownership of improvements, the provisions relating to payment of rent only for the use of the land, and the requirement that insurance loss proceeds received by the Trusts for any damage to the improvements be forwarded to Hilfiger all demonstrate that Hilfiger owned the new improvements constructed at the Property. “The actions and practices of the Trusts, [the grandchildren], and Hilfiger also support the conclusion that Hilfiger owned the new improvements as of June 16, 1999. First, Hilfiger built the new http://www.j urisearch.com/dispsquibs.asp?squibsid=l 0468&state=CA 5/12/2008 Auerbach V. Assessment App. Bd. No. l for County of Los Angeles, 071706 CASC, 8134... Page 4 of improvements at its own cost. Second, Hilfiger paid all expenses related to operation of the new improvements. Third, the Trusts [the grandchildren] had no right or claim to possess or occupy the new improvements in 1999, nor did they do so at any time. All benefits associated with the use and occupancy of the new improvements went to Hilfiger, and not to the Trusts or to [the grandchildren]. This is most clearly supported by the absence of any rental payments by Hilfiger for the new improvements.” The Assessor filed a petition for writ of mandate in the superior court challenging the Beard’s decision. The court agreed with the Board and denied the petition. The Assessor appealed. A divided Court of Appeal reversed the judgment. In an opinion authored by Acting Presiding Justice Mallano, the majority concluded that “notwithstanding the lessee’s construction of the improvements, both the land and the improvements are subject to, and included in the calculation of, the grandparent-to-grandchild exclusion.” Justice Vogel dissented, concluding that the Board and superior court reached the correct decision. We granted Northern Trust’s petition for review. 11. Discussion Proposition 13 generally limits the maximum amount of any ad valorem tax on real property to 1 percent of its “full cash value.” (Cal. Const, art. XIII A, § 1, subd. (21).) The Constitution defines “full cash value” as the county assessor’s valuation of the property on the 1975-1976 tax bill “or, thereafter, the appraised value of real property when purchased, newly constructed, or a change in ownership has occurred after the 1975 assessment.” (Id., § 2, subd. (a), italics added.) This appraised value may be adjusted for inflation from year to year but only at a maximum rate of 2 percent per year. (161., § 2, subd. (bl) The issue in this case is to what extent a “change in ownership” (Cal. Const, art. XIII A, § 2, subd. (a)) occurred when the trusts’ interest in the property on North Rodeo Drive changed from the grandparents to the grandchildren. The parties agree that the [and changed ownership, but they disagree whether the change in ownership included the building as well. Northern Trust contends that Hilfiger now owns the building for real property tax purposes under the California Constitution (Cal. Const., art. XIII A, § 2, subd. (a)), and thus the change in ownership of the trusts’ interest in the property did not include the building. The Assessor contends that, for these purposes, the trusts continue to own the building as well as the land, and thus the change in ownership included both. The difference in these positions has substantial practical significance. The grandparent—grandchild reassessment exclusion of section 63.1 permits the first $1 million of the value of the property that changed ownership to be excluded from the reassessment. The land and building together obviously have far greater value than the land alone. Under Northern Trust’s position, the entire $1 million exclusion would apply to the value of the land. Under the Assessor’s position, the $1 million exclusion would have to be prorated between the value of both the land and the building, resulting in a far greater reassessment than if the entire exclusion applied to the land. This issue is governed by statute. In Pacific Southwest, supra, l Cal.4th 155, we explained the relevant statutory and analytical framework for deciding this issue. Proposition 13 did not itself define - “change in ownership,” so it fell to the Legislature to do so. A broad-based 35—member task force studied the matter. “The panel’s work culminated in the Report of the Task Force on Property Tax Administration (hereafter task force report), which was submitted to the Assembly Committee on Revenue and Taxation on January 22, 1979.” (Pacific Southwest, supra, at p. 161 .) The task force report made various recommendations, which resulted in the enactment of the Revenue and Taxation Code provisions at issue here. The key provisions relevant here are section 60, which contains the basic change—in—ownership test; section 61, which contains examples of what is a change in ownership; and section 62, which contains examples of what is not a change in ownership. (See Pacific Southwest, http://www.j urisearch.com/dispsquibs.asp?squibsid= l O468&state=CA 5/12/2008 Auerbach V. Assessment App. Bd. No. 1 for County of Los Angeles, 071706 CASC, 8134... Page 5 of 9 supra, at pp. 161-162.) “The task force report drafters stressed the need for uniformity and consistency in the application of section 60’s general rule.” (Pacific Southwest, supra, 1 Cal.4th at p. 161 .) Accordingly, it recommended that this general definition control all transfers. The task force also recommended giving specific examples of what is and is not a change in ownership, which are set forth in sections 61 and 62. It stressed, however, that these examples must be consistent with section 60’s general test. “ ‘The entire statutory design would be destroyed by providing statutory treatment for specific transfers which are inconsistent with the general test. In that case, the general test would be overruled by the specific rules and the entire statutory design might be held invalid because of the lack of any consistent, rational interpretation of the constitutional phrase, “change in ownership.” ’ ” (Pacific Southwest, supra, at pp. l61~162, quoting the task force report.) “Because the Legislature, in enacting section 60, adopted its language verbatim after reviewing the task force report, it is evident that the Legislature intended for section 60 to contain the overarching definition of a ‘change in ownership” for reassessment purposes.” (Id. at p. 162.) Accordingly, we turn to section 60 to determine whether the building changed _ ownership for reassessment purposes. Section 60 provides: “A ‘change in ownership’ means a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest.” Its “governing test contains three parts: ‘A “change in ownership” means [1] a transfer of a present interest in real property, [2] including the beneficial use thereof, [3] the value of which is ‘ substantially equal to the value of the fee interest.’ To determine whether the transaction in the case at bar worked a change in ownership under Proposition 13, we begin with that test.” (Pacific Southwest, supra, 1 Cal.4th at p. 162.) In Pacific Southwest, we found that the transaction at issue (a sale and leaseback) met section 60’s test and, hence, that it resulted in a change of ownership. (Pacific Southwest, supra, at p. 166.) As we explain, we reach a similar conclusion regarding the building here. The parties agree that the trusts own the land, and thus have a present interest in it, even though it is currently being leased to Hilfiger. The question here solely concerns who owns the building. Before entering into the lease with Hilfiger, the trusts clearly owned the then existing building as well as the land. If, as the Assessor argues, the trusts also own the newly constructed building, then a change of ownership of that building has occurred. But Northern Trust argues that Hilfiger owns the new building. It relies primarily on the facts that the lease provides that Hilfiger “own[s]” the building during the term of the lease, Hilfiger built it at its own expense, and Hilfiger pays no rent for it. If Northern Trust is correct, the change of the trusts” interest in the property from the grandparents to the grandchildren did not change ownership of the building. The general purpose of section 60, evident from its three subdivisions, is to ensure that it is the fee interest, or its equivalent value, that is generally subject to property taxation, and that tax reassessment follows the fee interest or its equivalent through various changes in ownership. In this case, for purposes of a section 60 change in ownership, Hilfiger does not own the fee interest in the building, or its equivalent, but owns an estate of lesser value. The trusts owned the fee interest in the entire premises before they entered into the lease, and they still own the fee interest. The lease states that Hilfiger “own[s]” the building during the term of the lease. Whatever this might mean for other purposes, this statement is not dispositive for purposes of section 60’s change—of— ownership test, which is all that we are deciding here. The lease also provides that the building will become the lessor’s property at the end of the lease. It made Hilfiger’s ownership “[s]ubject to” the requirement that Hilfiger surrender the improvements to the lessor when the lease ended, as well as circumscribed by the lessor’s authority to eject Hilfiger from possession for a breach of the lease. Hence, for purposes of Proposition 13, Hilfiger has a leasehold interest in the building or at most a possessory http://www.jurisearch.com/dispsquibs.asp?squibsid=10468&state=CA 5/12/2008 Auerbach V. Assessment App. Bd. No. 1 for County of Los Angeles, 071706 CASC, 8134... Page 6 of 9 interest in an estate for years, not ownership of the fee interest. The fee interest in the entire premises, including the building, remains with the trusts. As we explained in Pacific Southwest, “A fieehold estate is distinguished from other forms of estates in that it is of indeterminate duration [citations]. But an estate for years . . . is not a freehold estate. (Civ. Code, § 765.) Indeed, under California law an estate for years is not real property at all but rather a chattel real—a form of personalty—even though the substance of the estate, being land, is real property. (161., §§ 761, 765 . . . .) [1]] Notwithstanding the fact that a lease is a present possessory interest in land, there is no question that as a nonfreehold estate it is a different species of interest from a freehold estate in fee simple. . . . A leasehold is not an ownership interest, unlike the possession of land in fee simple . . . . It is for that reason that common parlance refers to the ‘owner’ of a freehold estate, encumbered or unencumbered, but to the ‘holder’ of a lease; the freeholder is seised of land, whereas the leaseholder is not.” (Pacific Southwest, supra, l Cal.4th at pp. 162—163 , italics added.) Other provisions of the lease support the conclusion that, for purposes of section 60, the trusts have a present interest in the building. The trusts retained the right to sell the premises, including the building. Although the lease made the lessees responsible for paying property tax, it provided that the lessor would pay any increase in that tax caused by the lessor’s sale of the property. The lease required Hilfiger to either remodel or replace the building at its own expense, but it provided certain rent credits depending on which option Hilfiger chose. It also required Hilfiger to turn the building over to the trusts in good condition at the end of the lease period or at the termination of the lease. Hilfiger’s remodeling or rebuilding was subject to approval of the trusts, and Hilfiger could not transfer any of its interest in the premises without the trusts’ approval. Additionally, the lease provided that any proceeds from the taking of any part of the premises by eminent domain belonged to the lessor. The “beneficial use” of the building also transferred. “The second prong of section 60 requires that to constitute a change in ownership there must be a transfer notonly of bare legal title but also of the transferor’s beneficial or equitable interest in the land.” (Pacific Southwest, supra, 1 Cal.4th at p. 163.) Northern Trust argues that the trusts do not have beneficial use of the building because they neither have the right to occupy it nor receive monthly rent for it. We disagree. “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” (Evid. Code, § 662, quoted in Pacific Southwest, supra, at p. 164.) The receipt of rent for leased property may constitute beneficial use because it represents enjoyment of the value of the property. (Pacific Southwest, supra, at p. 164.) But receiving rent is not the only way a lessor may have the beneficial use of property.,The lease required Hilfiger to pay millions of dollars to construct a building that was subject to the lessor’s right of sale or eviction during the lease, and that would belong to the lessor at the end of the lease. It also required Hilfiger to surrender the building in good condition. Moreover, the lease itself provided that all of Hilfiger’s monetary obligations under the lease, including the requirement that Hilfiger either renovate or replace the existing building, constituted rent. All this, we believe, gave the trusts beneficial use of the property for these purposes. For purposes of section 60, ownership also refers to an interest “substantially equal to the value of the fee interest.” “In enacting the third prong of section 60 the Legislature meant to insulate from Proposition 13’s effect transfers in which only an estate of lesser value [than fee simple] was conveyed.” (Pacific Southwest, supra, 1 Cal.4th at p. 165.) A leasehold interest, particularly a lengthy one, has a substantial value, one that can approach the value of the fee interest. But rather than evaluate every leasehold interest on a case-by-case basis to determine whether it has a value substantially equal to that of the fee interest, the statutory scheme provides specific rules. Sections 61 and 62 include examples of ownership that should be treated as substantially equal to the value of a fee interest. As relevant here, section 61, subdivision (c), provides that a change in ownership includes “(1) The creation of a leasehold interest in taxable real property for a term of 35 years or more (including renewal options) . . .; or (2) any transfer of a lessor’s interest in taxable real property subject to a lease with a remaining term http://www.jurisearch.com/dispsquibs.asp?squibsid=10468&state=CA ‘ 5/ 12/2008 Auerbach V. Assessment App. Bd. No. 1 for County of Los Angeles, 071706 CASC, 8134... Page 7 of 9 (including renewal options) of less than 35 years. ['[l] Only that portion of a property subject to that lease or transfer shall be considered to have undergone a change in ownership.” Conversely, section 62, subdivision (g), provides that a change in ownership does not include “[a]ny transfer of a lessor’s interest in taxable real property subject to a lease with a remaining term (including renewal options) of 35 years or more.”[z] Sections 61 and 62 thus provide that leasing property for 35 years or more changes ownership, even though technically the fee interest does not change, but leasing property for a shorter time period does not change ownershipfi] Conversely, a lessor’s transferring property subject to a lease for 35 years or more does not change ownership (ownership had already changed when the leasehold interest was created), but transferring property subject to a shorter lease does change ownership. We explained this rule in Pacific Southwest. “[T]he Legislature decided, following the task force’s recommendation, that the creation of a 35-year lease would achieve a change in ownership (§ 61, subd. (c)(1)) because the length of the lease would give the lessee’s interest some of the practical attributes of a conveyance in fee simple. A lease of such duration will constitute the main economic value of the land, even though the leaseholder does not own a freehold estate—lenders are, in the report drafters’ View, willing to lend on' the security of such an instrument. (See task force rep., supra, at pp. 39-41.)” (Pacific Southwest, supra, 1 Cal.4th at p. 165.) Thus, the Legislature has determined that a leasehold interest of 35 years or more has a value substantially equal to the value of a fee interest, but a leasehold interest for a shorter time does not have that value. Here, the lease, even including renewal options, was for less than 35 years. Accordingly, it does not fall Within section 61 ’s 35-year~lease provision. Because section 61 provides a specific rule, there is no need to determine the value of the leasehold estate on a case—by—case basis. Applying this specific rule rather than trying to determine Whether a given leasehold interest has a value substantially equal to the value of the fee estate is consistent with the task force’s perceived “need for uniformity and consistency in the application of section 60’s general rule.” (Pacific Southwest, supra, 1 Cal.4th at p. 161 .) Under the specific rule, this lease did not transfer the fee interest in the building or its equivalent from the trusts to Hilfigerfl] For these reasons, we conclude that the trusts, and not Hilfiger, own the building for purposes of determining whether a change of ownership has occurred under section 60. The change in ownership of the trusts’ interest in the property included the building as well as the land. III. Conclusion We affirm the judgment of the Court of Appeal. WE CONCUR: GEORGE, C.J., KENNARD, J., BAXTER, J ., WERDEGAR, J ., CORRIGAN, J. CONCURRING AND DISSENTING OPINION MORENO, J. I agree with the result and most of the reasoning of the majority opinion. I write separately because I disagree with the majorityi-sconclusion that Tommy Hilfiger Retail, Inc. (Hilfiger) has only “a leasehold interest” in the building that it built at its own expense, operates, and owns under the terms of the lease. (Maj. opn., ante, at p. 9.) In my View, the trusts own the land, but under the terms of the lease, Hilfiger owns the building until the expiration of the lease, at which time ownership of the building transfers to the trusts. http://www.jurisearch.com/dispsquibs.asp?squibsid=10468&state=CA 5/12/2008 Auerbach v. Assessment App. Bd. No. 1 for County of Los Angeles, 071706 CASC, 8134... Page 8 of 9 The lease granted Hilfiger the right, which Hilfiger exercised, of constructing a new building, at Hilfiger’s expense, on the land owned by the trusts and leased by Hilfiger. The lease states: “During the term of this Lease, the Improvements shall be the property of and owned by Lessee but considered a part of the Premises.” The lease further provides that, When the lease terminated, ownership of the building would be transferred to the trusts. This type of arrangement is known as a ground lease. A ground lease “differs fundamentally from the usual lease of space for an office or store in a number of respects, including the following. [11] First, the improvements on the land . . . generally are owned or become owned by the lessee. . . . If the land is improved, the most common arrangements call for the lessee either to demolish the improvements and construct his own or to purchase the improvements as personal property severed from the land (though in all practical respects they are to be regarded as real property).” (Grenert, Ground Lease Practice (Cont.Ed.Bar 1971) § 1.1, p. 7) We addressed a related arrangement in Dean v. Kuchel (1950) 35 Cal.2d 444, in which “the state leased real property for a 35-year term to a private contractor, who agreed to construct an office building thereon and lease back the property and the building to the state for a 25—year term. If at the end of 25 years all covenants of the lease had been performed by the state, title to the property and building would vest in the state, and in any event full title would vest in the state at the end of 35 years. . . .” (Los ' Angeles County v. Nesvz'g (1965) 231 Cal.App.2d 603, 610.) Even though title to the building would vest in the state at the end of the 35—year ground lease, we recognized that the contractor owned the building during the 25—year building lease, and would continue to own the building until the end of the ground lease if the state breached the terms of the building lease. (Id. at p. 448; see also, Richards v. Pacific S. W. Discount Corp. (1941) 44 Cal.App.2d 551, 559 [“the ground lease specifically recites that the building and improvements situated upon the property remained personal property and were owned by the lessee and are not a part of the lessor’s estate”].) In similar fashion, Hilfiger owns the building in the present case until the end of the ground lease. But, as noted above, the lease provides that the building is nevertheless considered apart of the premises. For purposes of property tax assessment under Revenue and Taxation Code section 60, therefore, the building is considered part of the property owned by the trusts. Accordingly, I agree with the result reached by the majority. Notes: [1] All further statutory references are to the Revenue and Taxation Code unless otherwise indicated. Section 63.1 provides, in relevant part, that when grandparents transfer ownership of real property that is not their principal residence to their grandchildren, the first $1 million of its value is excluded fi‘om reassessment if the grandchildren’s parents are deceased. [g] The rule the State Board of Equalization adopted to implement these provisions is substantially similar. California Code of Regulations, title 18, section 462.100, provides as relevant: “(a) The following transfers of either the lessee’s interest or the lessor’s interest in taxable real property constitute a change in ownership of such real property: [11] (1) Lessee’s Interest: [11] (A) the creation of a leasehold interest in real property for a term of 35 years or more. [11] . . . [11] (2) Lessor’s Interest: [11] (A) The transfer of a lessor’s interest in taxable real property subject to a lease with a remaining term of less than 35 years. [11] . . . [11] (b) The following transfers of either the lessee’s interest or the lessor’s interest in taxable real property do not constitute a change in ownership of such real property. [11] (l) Lessee’s interest: [11] (A) The creation of a leasehold interest in real property for a term of less than 35 years. [11] . . . [11] (2) Lessor’s interest: [11] (A) The transfer of a lessor’s interest in real property subject to a lease with a remaining term of 35 years or more, whether to the lessee or another party. [11] (c) Once a change in ownership of taxable real property subject to a lease has been deemed to have occurred, the entire property subject to the lease is reappraised (i.e., the value of both the lessee’s interest and the reversion)” http://www.jurisearch.com/dispsquibs.asp?squibsid=10468&state=CA 5/12/2008 Auerbach V. Assessment App. Bd. No. l for County of Los Angeles, 071706 CASC, 8134... Page 9 of 9 [3] A State Board of Equalization regulation applies the same rule to an estate for years. (Cal. Code Regs. tit. 18, § 462.060, subd. (b) [“The creation of an estate for years for a term of 35 years or more in real property is a change in ownership at the time of the transfer unless [listing circumstances not relevant here].”].) m In support of its conclusion, the Court of Appeal stated that because “this case falls squarely within section 61, subdivision (c),” “a factual analysis of the factors in section 60 is unnecessary.” We agree with Northern Trust and amicus curiae State Board of Equalization that this formulation is, at the least, confusing. A factual analysis of section 60’s factors is always necessary. Section 60 provides the “overarching definition” of a change in ownership. (Pacific Southwest, supra, 1 Cal.4th at p. 162.) The examples found in sections 61 and 62 must be interpreted in light of this definition. But, as explained, our analysis of section 60 convinces us that the building did change ownership along with the land. Accordingly, we agree with the Court of Appeal’s conclusion, although not all of its reasoning. © 2008 JuriSearch http://www.jurisearch.com/dispsquibs.asp?squibsid=l0468&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 1 of 13 Case Summary The plaintiff, a 71 year old resident of a condominium complex, was injured by a dog owned by the co-defendant tenant of an adjacent unit. The plaintiff filed an action for damages for personal injuries against the defendants, including the dog owner, the landlord of the tenant’s unit and the leasing agent. Later, the dog owner was dismissed from the action after he filed for bankruptcy. The remaining defendants separately moved for summary judgment, which was granted on the grounds that the plaintiff failed to submit evidence which would have created a triable issue of the facts alleged. Thereafter, the defendants’ joint motion for attorney fees as per section 1354 of the Civil Code was granted in part. The plaintiff appealed. The appellate court observed that the co-defendant landlord owed no duty to protect the plaintiff from the tenant's dog since the plaintiff failed to prove that the co- defendant landlord was aware of the dog's dangerous nature. The court similarly found that the co—defendant leasing agent also owed no duty of care in the absence of a triable issue of fact as to actual knowledge of the dog’s dangerous propensities. Thus, the court affirmed the trial court’s judgment and the postjudgment order awarding attorney fees. F:\NEWDATA\CA\CASE\NC\10\A107918.110.HTM LILA CHEE, Plaintiff and Appellant, v. AMANDA GOLDT PROPERTY MANAGEMENT et al., Defendants and Respondents. A107918, A108822 California Court of Appeal, First District, First Division October 16, 2006 Trial Court: The Superior Court of Alameda County, Super. Ct. No. 2002042390, Trial Judge: Hon. Steven A. Brick Counsel for Plaintiff and Appellant: Von Till & Associates Steven F. Von Till Andrew J. Kopp Counsel for Defendants and Respondents Marina Seagate Homeowners Association and Jerome Brown: Horvitz & Levy, LLP Jon B. Eisenberg Wendy S. Albers, Valerian, Patterson & Stratman Frederick A. Patterson Counsel for Defendants and Respondents Amanda Goldt Property Management, Amanda Goldt, and John Sellars: Philip M. Andersen & Associates Jeanette N. Little Milan R. Yancich STEIN, Acting P. J. Plaintiff, Lila Chee, a resident and owner of a condominium unit in the Marina Seagate complex, appeals from a judgment entered in favor of all defendants on her complaint seeking damages for http://www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPI, A107918 Page 2 of 13 personal injuries she suffered when a dog belonging to Olga Kiymaz, a tenant of another unit in the same complex, jumped on Chee. Facts At the time of the incident, plaintiff was 71 years old, and a resident of the Marina Seagate condominium complex. On March 19, 2001, she was injured when a Jack Russell Terrier owned by Olga Kiymaz, who rented the condominium next door to plaintiff, ran out of Kiymaz’s unit and jumped on Chee, causing her to fall and sustain numerous injuries. Kiymaz rented the condominium fiom Jerome Brown, who had hired Amanda Goldt Property Management to find a tenant and collect rents. Chee filed a second amended complaint against Jerome Brown, the Marina Seagate Homeowners Association (hereafter, “the Association”), Amanda Goldt Property Management, and two of its property . managers, after Kiymaz, the dog’s owner, filed for bankruptcy, and was dismissed fiom the action. As against Brownm the complaint alleged several causes of action: The cause of action for “premises liability” alleged that, as the owner, Brown breached his duty of care by allowing a dangerous condition to exist on his property, i.e., his tenant’s dog, whose “characteristics and traits posed a risk of harm to persons in the common areas.” The complaint did not allege Brown had actual knowledge that the dog was dangerous, but incorporated allegations concerning characteristics of the Jack Russell Terrier as a breed that made it dangerous, especially if not restrained on a leash, and further alleged that Brown had a duty to inspect and to investigate the characteristics of a dog kept on the premises by his tenant. In the cause of action for negligence, plaintiff similarly alleged that Brown “knew, or had reason to know, or should have known” of the alleged traits, propensities, or characteristics of his tenant’s dog that posed a foreseeable risk of harm, and alleged that Brown had a duty to inspect and investigate the characteristics of a dog kept by his tenant. The cause of action for nuisance simply alleged that “[the] dog residing . . . and running free . . . in the common areas of the condominium project constituted and caused a nuisance.” Plaintiff further alleged several causes of action based upon acts of Olga Kiymaz that plaintiff contended constituted negligence, negligence per se, or for which Kiymaz would be strictly liable. These acts included failing to control the dog and allowing it to be off—leash in common areas. In these causes of action, plaintiff alleged that Brown, as the owner of the unit, was vicariously liable for Kiymaz’s acts. Vicarious liability was premised upon the Marina Seagate Declaration of Covenants, Conditions and Restrictions (CC&R’s). The CC&R’s allow residents to have one small pet per unit. They provide that “[a]n owner of any pet shall assure that such pet is restrained at all times it is upon the common areas, that such pet does no waste to common areas or other Units, and that such pet causes no unreasonable noise or other disturbances or nuisance within the Project.”[—2-] Article II, section 7 of the CC&R’s further provided that “any owner may delegate his right to enjoyment of the connnon area and facilities to . . . his tenants . . . who reside within the Project. . . . Such owner is fully responsible for all acts or omissions of his delegates.” Article VIII, section~4 of the CC&R°s further specifies: “The provisions of * this Declaration shall be equitable servitudes, enforceable by any Owner and/or the Association against the Association and/or any other Owner, tenant or occupant of the Project. [T]he Association or any Owner(s) shall have the right to enforce, in any manner permitted by law or in equity, any and all of the provisions of the Project Documents . . . .” The complaint also alleged that Brown breached a contract with plaintiff. It alleged the contract was created by the aforementioned provisions of the CC&R’s. Plaintiff alleged that Brown breached this http://www.jurisearch.com/dispsquibs.asp?squibsid=l0996&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPI, A107918 Page 3 of 13 contract by “failing to indemnify, compensate and pay for the damages and losses caused to plaintiff by the acts or omissions of Olga Kiymaz.” She also sought a declaration, that under the CC&R’s, Brown was liable to plaintiff for his tenant’s negligent acts, and contracted to indemnify plaintiff for any losses she suffered as a result of his tenant’s actions. The only causes of action alleged against Goldt Property Management, Amanda Goldt and John Sellars (hereafter, collectively, Goldt Property Management) were the causes of action for nuisance“, and for negligence based upon failure to investigate the nature and suitability of the tenant’s dog. Brown moved for summary judgment, or in the alternative for summary adjudication, and Goldt Property Management separately filed its own motion. Brown contended that, absent actual knowledge that Kiymaz’s dog was dangerous, he owed no duty to plaintiff to protect her from the dog, or to inspect or investigate whether the dog had dangerous propensities. He asserted the undisputed facts established that he did not have such knowledge, and submitted evidence supporting his assertion of these facts. He also contended that the same undisputed facts established the absence of liability for a nuisance created by Brown’s tenant, and that plaintiff could not show the dog’s presence and behavior interfered with the use and enjoyment of plaintiff s property. With respect to the causes of action seeking to impose vicarious liability on Brown for Olga Kiymaz’s negligence, negligence per se, or strict liability regarding her dog, Brown contended that, as a matter of law, vicarious liability could not be based upon the CC&R’S permitting a homeowner to delegate to a tenant the right to enjoy the common area, and the Association’s rules and regulations concerning pets. Brown further contended that the CC&R’s did not create a contractual obligation to indemnify other homeowners for personal injuries caused by a tenant. Goldt Property Management also filed a motion for summary judgment on similar grounds. Goldt Property Management submitted evidence that it had no ownership interest in Brown’s condominium, and that Brown hired it merely to find a tenant and collect rents. It also submitted evidence that it had no knowledge prior to the incident involving Kiymaz’s dog that the dog had any dangerous or vicious propensities, that it had not received any complaints regarding Kiymaz’s dog, and had not observed Kiymaz’s dog display any vicious or dangerous behavior. In opposition to both motions, plaintiff asserted that many of the aforementioned facts regarding lack of actual knowledge were disputed, but cited no evidence on this issue in her separate statements. Instead, plaintiff asserted that the credibility of the witnesses for Brown and Goldt Management was in . issue. After conducting further discovery, plaintiff submitted supplemental statements of undisputed facts, and evidence that, after the incident, in July 2001, the Association notified Kiymaz that, in July 2001, she was seen walking her dog without a leash, and fined her $50. Also in July 2001, the Association warned Kiymaz that it had received complaints she was allowing the dog to run free in the common areas and was not cleaning up after her pet, and that these actions could also result in fines. In addition, plaintiff submitted evidence that other owners had seen the dog urinating and defecating in the common areas. Plaintiff also submitted the declaration of an expert concerning characteristics of the breed of Jack Russell Terrier that the expert opined made it unsuitable for living in a condominium. The court granted both motions. With respect to Brown, the court determined he owed her no duty of care absent actual knowledge that Kiymaz’s dog was dangerous, and plaintiff presented no evidence to create a triable issue of fact that he had such knowledge. The court further found, as a matter of law, that Brown could not be held vicariously liable for the acts of the tenant, based upon the CC&R’s, and was not contractually obligated by the CC&R’s to compensate or indemnify plaintiff. As to the cause of action of nuisance, the court stated that plaintiff submitted no evidence to create a triable issue of fact that “the presence of. the dog in Mr. Brown’s unit affected Plaintiffs use and enjoyment of her rights in http://www.jurisearch.com/dispsquibs.asp?squibsid=l0996&state=CA 5/12/2008 Chee v. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 4 of 13 real property.” The court granted the motion for summary judgment filed on behalf of Goldt Property Management on similar grounds. Attorney Fees After the court entered judgment in their favor, Brown and the Association jointly moved for an award of attorney fees pursuant to Civil Code section 1354. They sought fees in the amount of $33,644 incurred in their defense. Plaintiff opposed the motion, arguing that none of her causes of action were brought to enforce the CC&R’s within the meaning of Civil Code section 1354. Plaintiff also asked the court, if it determined that only some of the causes of action fell within the purview of Civil Code section 1354, to apportion the fees requested. Plaintiff further urged the court to apportion fees between Brown and the Association were defense work was done jointly on causes of action in which they were both defendants. She argued that, if the court determined that only one defendant was entitled to fees, it should reduce the amount of fees by whatever amount the court determined was attributable to the defense of the other. The court granted Brown’s and the Association’s motion for fees “in part.” It determined that only the causes of action for breach of contract and declaratory relief fell within the purview of Civil Code section 1354 as “action[s] brought to enforce the governing documents of the homeowner’s association.” The court apportioned the fees and determined that only $6,000 was reasonable and attributable to the defense of these two causes of action. Analysis I. Summary Judgments in Favor of Brown and the Goldt Property Management This court reviews de novo orders granting motions for summary judgment, because the motion raises only issues of law. (Mata v. Mata (2003) 105 Cal.App.4th 1121, 1127-1128; disapproved in part on another ground in Delgado v. T rax Bar & Grill (2005) 36 Cal.4th 224, 244—250.) “Summary judgment in a defendant’s favor is proper if (1) the defendant shows one or more elements of a cause of action cannot be established, or there is a complete defense to it; and (2) the plaintiff fails to meet the, burden of showing the existence of a triable issue of material fact.” (Mata v. Maia, supra, at p. 1127.) Brown and Goldt Property Management filed separate motions that relied on many of the same legal principles. Nonetheless, for the sake of clarity regarding the specific causes of action alleged against each defendant and some variations in the legal theories, asserted undisputed facts, and plaintiff’s contentions on appeal, we review the court’s orders on each motion separately. A. Order Granting Brown’s Motion for Summary Judgment. I. Brown ’s Negligence and Premises Liability The second amended complaint alleged two causes of action seeking to impose liability against Brown, as the owner of the unit rented to Kiymaz: premises liability and negligence. These causes of action were based upon the general principle that everyone is responsible for an injury to another caused by “his or her want of ordinary care or skill in the management of his of her property . . . .” (Civ. Code, § 1714, subd. (a).) A necessary element of both causes of action is the existence of a legal duty to the http://Www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA . 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 5 of 13 plaintiff. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673; see also Lundy v. California Realty (1985) 170 Cal.App.3d 813, 818-819 (Lundy).) The determination whether a duty exists is an issue of law. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072. ‘ It was undisputed that Brown owned the unit and was Kiymaz’s landlord, and that the dog belonged to Kiymaz. The general duty of care owed by a landowner in the management of his or her property is attenuated when the premises are let because the landlord is not in possession, and usually lacks the right to control the tenant and the tenant’s use of the property. Consequently, it is well established that a landlord does not owe a duty of care to protect a third party from his or her tenant’s dog unless the landlord has actual knowledge of the dog’s dangerous propensities, and the ability to control or prevent the harm. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152 (Yuzon); Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838 (Donchin); Luna’y, supra, 170 Ca1.App.3d at p. 821', Uccello v. Laudenslayer (1975) 44 Ca1.App.3d 504, 507 (Uccello); see also Cody F. v. Fallez‘ti (2001) 92 Cal.App.4th 1232, 1236 (Cody F.) [“In general, courts have imposed a duty to prevent the harm caused by a third party’s animal when a defendant possesses the means to control the animal or the relevant property and can take steps to prevent the harm”].) “[A] duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, . . . actual knowledge and not mere constructive knowledge is required. For this reason . . . a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; onlvahen the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.” (Yuzon, supra, at p. 163, quoting Uccello, supra, at p. 514, fn. omitted; see also Donchin, supra, at p. 1838 [“a landlord who does not have actual knowledge of a tenant’s dog’s Vicious nature cannot be held liable when the dog attacks a third person”].) Therefore, in the absence of evidence sufficient to create a triable issue of fact that Brown had actual knowledge his tenant’s dog was dangerous, Brown owed no duty to plaintiff to protect her from his tenant’s dog. In support of his motion Brown asserted as undisputed facts, and submitted supporting evidence, that he knew that Kiymaz owned a Jack Russell Terrier, but that, prior to the incident in which plaintiff was injured, Brown had never seen the dog or received any complaints about the dog. He had no knowledge that Kiymaz’s dog had any dangerous propensities or posed any threat of bodily harm. Kiymaz declared her dog had never jumped on or bitten anyone before the incident involving plaintiff. Brown also submitted plaintiff” s deposition testimony that, prior to the incident, plaintiff had twice seen the dog out without a leash, but had never seen the dog doing anything she would interpret as dangerous. The Association had also never received any complaints or reports about Kiymaz’s dog, or reports that it was seen unleashed in the common areas of the condominium complex prior to the incident. The foregoing evidence shifted the burden to plaintiff to submit admissible evidence to create a triable issue of fact as to Brown’s knowledge of the dog’s dangerous propensities. (Yuzorz, supra, 116 Cal.App.4th at p. 166.) Yet, plaintiff failed to present any such evidence. She did not dispute that she herself had never seen Kiymaz’s dog do anything she would interpret as dangerous. She also offered no evidence to dispute the asserted facts, supported by the testimony or declaration of Brown, Kiymaz, and a representative of the Association, that they had never received any complaints, never seen the dog engage in dangerous behavior, and had no knowledge of any dangerous propensities of Kiymaz’s dog. Instead, plaintiff merely argued that the credibility of these witnesses was in issue. If summary judgment is otherwise proper it “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc., § 4370, subd. (e) [italics added].) This discretionary exception was inapplicable because Brown did not rely solely on his affirmation of lack of kuowledgeli] He also presented circumstantial evidence that he did not know the dog had dangerous propensities, including http://www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 6 of 13 the absence of any complaint to him or the Association, and plaintiffs own testimony that she had never seen the dog do anything she would interpret as dangerous. Plaintiffs bare assertion of the existence of credibility issues was insufficient to create a triable issue of fact on the issue of Brown’s actual knowledge that the dog was dangerous. (Cf. Donchin, supra, 34 Cal.App.4th at pp. 183 8—1 841 [triable issue of fact exists where plaintiff submitted circumstantial evidence that landlord’s assertion of lack of knowledge of dog’s dangerous propensities was not credible, including his admission that a prior exculpatory statement was false].) Nor did any of the evidence plaintiff offered in her supplemental statement of undisputed facts create a triable issue of fact on the issue of Brown’s actual knowledge. Plaintiff submitted evidence that afier the incident, the Association notified Kiymaz that, in July 2001, she was seen walking her dog without a leash, and fined her $50, and also warned Kiymaz that it had received complaints that she was allowing the dog to run flee in the common areas and was not cleaning up after her pet, and that these actions could also result in fines. Plaintiff also submitted evidence that other residents had seen the dog off—leash, and urinating and defecating in the common areas. This supplemental evidence did not permit any inference that Brownknew of the dog’s behavior before the incident alleged to have caused plaintist injuries. In any event, even if Brown had been aware that the dog was allowed to run off— leash, and that Kiymaz was not cleaning up after it, this evidence did not permit an inference that the dog was dangerous. In Yuzon, supra, 116 Cal.App.4th at p. 164, the court held that evidence that a dog “ran out the door and scared the neighbors . . . does not, as a matter of law, support an inference that [the dog] was a dangerous dog. If that were the case, then all dogs would be deemed dangerous, as a matter of law, and no reasonable landlord would ever permit dogs on rental property for fear of liability.” (Id at p. 166.) If anything, evidence that Kiymaz’s dog was seen off—leash, and engaging in the normal animal functions of urinating and defecating, is even less susceptible of an inference that the dog is dangerous, than the evidence held insufficient to create a triable issue in Yuzon. The court also correctly concluded evidence that the breed of dog has certain characteristicsfl] by itself, is insufficient to support an inference that Brown had actual knowledge that his tenant’s dog had any dangerous propensities. (Lundy, supra, 170 Cal.App.3d at p. 822 [landlord’s awareness of breed of dog, and that its name was “Thunder,” did not support inference that landlord knew his tenant’s dog had dangerous propensities] .) Plaintiff contends that even if she failed to demonstrate the existence of a triable issue of facts as to Brown’s actual knowledge, he had a duty to inspect the premises and a reasonable inspection would have disclosed the presence of a dangerous dog. Yet, cases involving landlords of residential property have consistently declined to impose such a duty. (See, e.g., Uccello, supra, 44 Cal.App.3d at p. 514 [“a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal”].) The case upon which plaintiff relies, Portillo v. Aiassa (1994) 27 Cal.App.4th 1128 (Portillo), is distinguishable. In Portillo the plaintiff was injured by a guard dog the tenant kept on the premises of a liquor store held open to the public. The landlord had renewed the lease approximately a year before the injury occurred, and failed to conduct an inspection at that time. (Id. at p. 1132.) The jury found the landlord had no actual knowledge that the guard dog was dangerous. (Id. at p. 1133.) Nonetheless, in accordance with the instructions given, the jury held the landlord jointly and severally liable with the tenant (id. at p. 1133, firs. 2 & 3) based upon its finding that a reasonable inspection prior to renewing the lease would have disclosed the dog’s dangerous propensities because the landlord would have observed the posted “beware of dog” signs and a posted newspaper article displaying “a picture of the dog with its paws on the store counter and its mouth open as if he were about to attack. The article referred to the dog as ‘ [a] furry juggernaut, replete with iron trap jaws, razor sharp fangs and a rotten disposition,’ and discussed the dog’s recent attack on an attempted robber in the store.” (Id. at p. 1132.) The Court of Appeal upheld the instruction allowing a finding of liability based upon the failure to inspect the premises, but expressly limited imposition of a duty to inspect to a http://Www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A10791 8 Page 7 of 13 commercial landlord who “ ‘leases property for a purpose involving the admission of the public.” (Id. at p. 1134.) It also distinguished between guard dogs in public places and residential family pets, noting that the former “cannot be classified as ‘an important part of our way of life” in the same way that pets can.” (Id. at p. 1138.) We see no analogy between the lease of premises for a purpose involving the admission of the public, and the lease of a private condominium to a tenant for her own private residential use. We therefore decline plaintist suggestion that we should extend the commercial duty of inspection discussed in Portillo to the lessor of a condominiumlil 2. Nuisance Nuisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1389.) Plaintiff essentially restated her premises liability and negligence cause of action against Brown as a cause of action for nuisance. She alleged that Kiymaz created a nuisance by allowing her dog to run off-leash and to urinate and defecate in the common areas. She contends that Brown is liable for a nuisance created by his tenant even in the absence of a triable issue of fact as to knowledge of the dog’s dangerous propensities or behavior. Assuming arguendo that evidence Kiymaz allowed the dog to run off-leash and urinate and defecate in the common areas would support an inference that the dog’s behavior interfered with plaintiff 3 use and enjoyment of her property,[-6-] Brown, as the landlord, would not, as a general rule, be liable for a nuisance created by his tenant after the premises are let. Generally, “a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance . . . at the time of the leasing.” (Anderson v. Souza (1952) 38 Cal.2d 825, 831; see also Napolin v. Hotel Rose (1955) 137 Cal.App.2d 701, 706; Mundt v. Nowlin (1941) 44 Cal.App.2d 414, 415—416.) In Kalis v. Shattuck (1886) 69 Cal. 593, the court held: “ ‘To bring liability home to the owner of real property . . . the nuisance must be one which is in its very essence and nature a nuisance at the time of the letting, and not something which is capable of being thereafter rendered a nuisance by the tenant.’ ” (Id. at p. 597.) Limited exceptions to the general rule of nonliability may hold the landlord responsible where the landlord “participated in the wrongful act by authorizing or permitting it to be done” (id. at p. 600), or where the landlord failed to conduct a reasonable inspection of the premises before renewing a lease (Burroughs v. Ben’s Auto Park, Inc. (1945) 27 Cal.2d 449, 453—454). These long-established limitations on imposition of liability on the lessor for a nuisance created by the lessee continue to be recognized in modern cases that require, at least, a showing of the landlord’s knowledge of the hazard, and ability to prevent the harm. (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 100; see also Donchin, supra, 34 Cal.App.4th at pp. 1838—1839; Uccello, supra, 44 Cal.App.3d at p. 514.) No triable issue of fact existed as to any exception to the general rule of nonliability. Plaintiff did not submit any evidence that Brown authorized or participated in Kiymaz’s allowing the dog to run off- leash or to defecate and urinate in the public areas. The exception regarding failure to inspect was inapplicable since there was no allegation or evidence that a lease was renewed after Kiymaz created the nuisance. The final exception requires a showing of the landlord’s negligence based on knowledge of the hazard, and ability to prevent the harm. Yet, for the reasons we have already stated with respect to the cause of action for premises liability and negligence, plaintiff failed to create a triable issue of fact that Brown even had knowledge. of the dog’s dangerous propensities or of the behavior alleged to constitute a nuisance. 3. Vicarious or Contractual Liability http://www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA 5/ 12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 8 of 13 Plaintiffs remaining causes of action for negligence alleged acts of Brown ’s tenant, Olga Kiymaz, that plaintiff contends established her negligence, or negligence per se, or constituted a factual basis for imposing strict liability upon Kiymaz. Plaintiff sought to impose liability upon Brown for Kiymaz’s acts on a theory of vicarious liability or that he owed a “non—delegable duty” to plaintiff to prevent his tenant from failing to restrain or control her dog. Plaintiff also alleged a cause of action for breach of a contract to indemnify her for personal injuries caused by his tenant’s negligence. In support of both the tort and contract theories, plaintiff relies primarily upon Article 11, section 7 of the CC&R’s, which provides that an “owner may delegate his right of enjoyment to the common area to . . . tenants [and such] owner is fully responsible for all acts or omissions of his delegates” (italics added). She also relies on the provision that states “[a]n owner of any pet shall assure that such pet is restrained at all times it is upon the common areas, that such pet does no waste to common areas or other Units, and that such pet causes no unreasonable noise or other disturbances within the Project (italics added)” Plaintiff contends the italicized language means that an owner who leases his or her unit may be held vicariously liable for any act or omission of his tenant that results in personal injury to another homeowner, including the failure of the tenant to control her pet. She further contends that these provisions constitute a contract whereby each owner agrees to indemnify any other homeowner for loss caused by his tenant’s negligence in handling a pet, or to act as a surety or guarantor in the event that the tenant does not compensate the injured homeowner. “Vicarious liability ‘means that the act or omission of one person . . . is imputed by operation of law to another,’ ” without regard to fault. (Srithong V. Total Investment Co. (1994) 23 Cal.App.4th 721, 726, italics added.) For example, vicarious liability for torts is imposed by operation of law upon employers for acts of their employees within the course and scope of employment, or upon principals for the acts of their agents. Kiymaz was neither Brown’s employee nor agent. Plaintiff’ s suggestion that Brown is vicariously liable for his tenant’s negligence is contrary to established law that the negligence of a tenant “cannot be imputed to the landlord.” (Mundt v. Nowlin, supra, 44 Cal.App.2d at p. 415; see also O’Leary v. Herbert (1936) 5 Cal.2d 416, 418, Anderson v. Souza, supra, 38 Cal.2d at p. 831.) The doctrine of nondelegable duty upon which plaintiff also relies is simply a form of vicarious liability. (Strithong v. Total Investment Co., supra, 23 Cal.App.4th at pp. 726—727.) This doctrine recognizes that the duty owed by a landowner “ ‘to persons who come on his property as well as to persons off the property for injuries due to the landowner’s lack of due care in the management of his property [g]enerally . . . is nondelegable.’ ” (Cody F. , supra,92 Cal.App.4th at p. 1240; Ruofi’v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624 [duty of individual homeowners to maintain the common areas in which they retain a property right cannot be delegated to the homeowners association].) The doctrine of nondelegable duty does not, however, create a duty where none would otherwise exist. Brown, as the landowner, did not owe a duty to plaintiff in the first instance, because the premises had been leased, and the undisputed facts established that he had no knowledge that his tenant’s dog was dangerous. (See Yuzon, supra, 116 Cal.App.4th at p. 152; Donchin, supra, 34 Cal.App.4th at p. 1838; Lundy, supra, 170 Cal.App.3d at p. 821; Uccello, supra,44 Cal.App.3d at p. 507.) Plaintiff argues that despite these well—established principles, we should nonetheless impose a duty of care upon Brown based upon the aforementioned provision of the CC&R’s. Yet, she cites no authority for the novel proposition that CC&R°s, which are private recorded restrictions on the use of property, may also operate as a legal basis for expanding the duty of care on the lessor of property subject to the CC&R’s to protect others from a dog owned and controlled by a tenant. In Cody F. , supra,92 Cal.App.4th 1232, the only case we have found that considered a remotely similar argument, this court rejected a suggested expansion of the duty of care based upon provisions in the CC&R’s. In that case, an 11~year~old boy was badly injured by a pack of hunting dogs that had escaped from their http://www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPI, A107918 Page 9 of 13 owner’s property. The boy was injured by the dogs as he walked on a street over which all members of the subdivision association, including the dog owner, had an easement. The association was responsible for maintenance of the street. (Id. at pp. 123 6—123 7.) The plaintiff sought to hold individual members of the association, other than the dog owner, liable for the dog owner’s negligence based upon their property interest as easement holders over the street where the injury occurred, despite the fact that they did not own the dogs or the property where the dogs were kept by their owner. The plaintiff argued that the association members had the right to control the dog owner’s actions because “the recorded declaration of restrictions prohibits keeping dogs for commercial purposes or when their presence could constitute a nuisance to others,” and that the association or any of its members could “ ‘proceed at law or in equity to prevent [a] Violation of any of the restrictions.’ ” (Id. at p. 1245.) This court held that the members of the association did not owe a duty of care simply by virtue of their easement over the street where the dogs attacked the child. We also declined the plaintiff’s suggestion that the CC&R’S expanded or created a duty of care that would not otherwise exist, reasoning that “the rights conferred on the individual members by the . . . declaration of restrictions do not include a duty to exercise those rights.” (Ibid) The terms of the CC&R’s upon which plaintiff relies in this case in support of her argument for expanding the duty of care are not the same as those in Cody F., and the plaintiffs in Cody F. did not even suggest that vicarious liability not recognized under existing legal principles could nonetheless be imposed based upon a provision in the CC&R’s. Therefore, our decision in Cody F. is not dispositive of plaintiff s contentions. Nonetheless, in the absence of some other authority in support of plaintiff’s contentions, we see no reason to depart from the basic principle that the legal effects of CC&R’s should not be extended to include expansion of established tort law defining the duty of care and relationships for which vicarious liability is imposed for the act of another. As for the breach of contract cause of action, we accept, arguendo only, plaintiff’s premise that CC&R’s can create a contractual obligation not only between a homeowners association and its members, but also between individual membersm Nonetheless, we decline to adopt plaintiff’s broad interpretation of the CC&R’S as constituting a homeowner’s contractual promise to assume tort liability for the acts and omissions of his or her tenant causing personal injury, to indemnify another homeowner for any injuries caused by the act or omission of a tenant, or to act as surety or guarantor for a tenant’s obligation to compensate another homeowner for personal injuries. The same rules that apply to interpretation of contracts apply to the interpretation of CC&R’s. “ ‘[W]e must independently interpret the provisions of the document. . . . It is a general rule that restrictive covenants are construed strictly against the person seekingto enforce them, and any doubt will be resolved in favor of the fiee use of land. But it is also true that the “ ‘intent of the partiesand the object of the deed or restriction should govern, giving the instrument a just and fair interpretation.’ ” ’ ” (Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, 622.) ‘ Plaintiff argues that the words “fully responsible” and “assure” must be broadly construed to mean an owner who rents his or her unit promises to compensate any other owner for a tenant’s acts or omissions causing personal injury. Otherwise, the owners would be deprived of the benefit of their bargain, and the intent of the CC&R’s that any pet owner living in the complex would be bound by the rules regarding handling of pets in the common area would be defeated. Moreover, she suggests the members will be left without a means of enforcement when an owner leases the premises. We find plaintiff’ s broad interpretation of the CC&R’s to be unreasonable and unnecessary to accomplish what she suggests is their intent, for several reasons. First, under common law, the primary reason a landlord is not liable for the acts of his or her tenant, is that the landlord is not in possession, and lacks the power to control the tenant’s actions. (See, e.g., Uccello, supra, 44 Cal.App.3d at p. 511.) Given the inability to control or predict such a risk, it is unlikely that any homeowner would willingly assume it, or be able to insure it. Second, Article 11, section 7 provides other means to protect the expectation of members that tenants will be bound by the rules regarding pets. These include requiring owners to include a copy of http ://Www. j urisearch.com/ dispsquibs.asp?squibsid=l 0996&state=CA 5/12/2008 Chee v. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 10 of 13 the declaration of CC&R’S as part of a lease or rental agreement, together with a copy of the current Association rules. The CC&R’s also provide that a member or the association may enforce the CC&R’s and association rules against any “tenant or occupant of the project” (italics added). Therefore, the broad construction plaintiff advocates is neither reasonable nor necessary to accomplish the intent to provide all members with an environment in which any pet owner occupying a unit complies with the rules on pet handling in the unit and common areas. Also, any doubt must be resolved against plaintiff 3 proposed construction because imposing tort liability on an owner for any act or omission of a tenant, without regard to the owner’s fault, would substantially inhibit or burden the exercise of an owner’s free use of his property as a rental unit, because of exposure to unmanageable risk. (See Zabrucky v. McAdams, supra, 129 Cal.App.4th at p. 622 [doubts should be resolved in favor of free use of land].) Absent language expressly specifying that owners assume tort liability to other members for the acts and omissions of their tenant causing personal injury, agree to indemnify members for any injuries caused by the act or omission of a tenant, or agree to act as surety or guarantor for a tenant’s obligation to compensate another homeowner for personal injuries, we decline to read such a sweeping deviation from established common law into these provisions of the CC&R’S. For the foregoing reasons, we conclude that the causes of action seeking to impose vicarious ‘ liability upon Brown for injuries cause by his tenant and her dog, or to hold him liable to plaintiff on a breach of contract theory based upon these provision of the CC&R’S, fail as a matter of law. B. Order Granting Summary Judgment for Goldt Property Management The only causes of action alleged against Goldt Property Management were for negligence and nuisance. As to the negligence cause of action the court found that the duty of the Goldt defendants, as Brown’s leasing agent, was no different than that of the landlord, and they also owed no duty of care in the absence of a triable issue of fact as to actual knowledge of the dangerous propensities of Kiymaz’s dog. On appeal, plaintiff contends only that, based upon Portillo, supra, 27 Cal.App.4th 1128, Goldt Property Management, as the agent responsible for leasing the premises, should at least “have a duty to investigate the nature and suitability” of the tenant’s dog when the unit is part of a “high density” multiple—unit complex. As we explained in upholding the order granting summary judgment for Brown, the court in Portillo expressly limited imposition of a duty to inspect to a commercial landlord who “ ‘leases property for a purpose involving the admission of the public’” (id at p. 1134, italics added) and also distinguished between guard dogs in public places and residential family pets, noting that the former “cannot be classified as ‘an important part of our way of life’ in the same way that pets can” (id. at p. 1138). Here, the undisputed facts were that Goldt Property Management, as Brown’s leasing agent, leased only a private condominium to Kiymaz for her own private residential use, and allowed her to have one residential pet. We see no analogy between the lease of premises for a purpose involving the admission of the public, and the lease the Goldt defendants arranged on Brown’s behalf. We therefore decline plaintist suggestion that we should extend the commercial duty of inspection discussed in Portillo to these defendants. With respect to the cause of action for nuisance, plaintiff also fails to demonstrate any error. She asserts that Goldt Property Management owed the same duty as a landlord for a nuisance created by the tenant, and cites Anderson v. Souza, supra, 38 Cal.2d 825, for the principle that when “the landlord or his agent is a participant in the tenant’s creation or maintenance of the nuisance, they are subject to liability.” The undisputed facts, however, were that Kiymaz created the alleged nuisance by allowing her dog to run off leash, to defecate and urinate without cleaning up after it, and generally failing to control it in the common areas. Plaintiff failed to create a triable issue of fact that Goldt Property Management even had knowledge of the dog’s dangerous propensities or behavior alleged to constitute nuisance, much less any evidence that Goldt Property Management authorized or participated in Kiymaz’s acts. http://www.j'urisearch.com/dispsquibs.asp?squibsid=l0996&state=CA 5/12/2008 Chee v. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A107918 Page 11 of 13 For the foregoing reasons, we conclude that the court properly granted the motions for summary judgment in favor of Brown and Goldt Property Management. II. Attorney Fees After obtaining judgment in their favor, Brown and the Association moved for attorney fees under former Civil Code section 1354, subdivision (film which provides that reasonable attorney fees shall be awarded to the prevailing party in an action to enforce the governing documents of a common interest development. Plaintiff contends that the court erred in finding the causes of action for breach of contract and declaratory relief were actions to enforce the rights and obligations of the parties under the CC&R’s, because CC&R’s are equitable servitudes and actions to enforce them typically seek equitable relief. She reasons that since she sought damages for personal injury, rather than equitable relief such as an injunction against the dog entering the common areas off—leash, or ordering the dog be removed from the premises, none of her causes of action were to enforce the CC&R’s. With respect to the cause of action for declaratory relief, this argument fails because plaintiff expressly sought equitable relief, in the form of “a declaration” that the CC&R’s “establish plaintiff’s right to be paid, compensated, or indemnified by defendant Brown for the injuries and damages sustained as a result of his tenant’s dog . . . .” (See Caira v. Oflner (2005) 126 Cal.App.4th 12, 24 [declaratory relief is generally classified as equitablej.) In any event, the type of relief sought is not dispositive of entitlement to fees because CC&R’s may be enforced by proceedings in equity or law. (See, e.g., Cuiujian v. Benedict Hills Estates Assn, supra, 41 Cal.App.4th at p. 1385 [party damaged by a violation of the CC&R’s may seek money damages]; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246 [“Under well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to compel the association to enforce the provisions of the declaration”].) Indeed, the CC&R’s themselves provided that they were enforceable “in any manner provided by law or in equity.” Therefore, the fact the plaintiff did not limit her prayer for relief to equitable remedies, and also sought damages, did not preclude an award of fees under Civil Code section 1354. (See also Harbor View Hills Community Assn v. Torley (1992) 5 Cal.App.4th 343, 345, 350 [fee award proper under both Civ. Code, §§ 1717 & 1354 to homeowners association that prevailed in an action for injunctive relief and damages].) Instead, the relevant question concerning entitlement to fees under Civil Code section 1354 is whether the action is to enforce the rights and obligations of the parties under the governing documents, specifically the CC&R’s. The cause of action for declaratory relief sought a declaration that the CC&R’s created a right in plaintiff to be compensated, and imposed upon Brown an obligation to pay, for damages caused by his tenant’s dog. Plaintiff asserts, without citation to authority, that a mere declaration of rights, without a prayer for injunctive relief, does not “enforce” those rights. Even if we ‘ accept this assertion arguendo, plaintiff’s cause of action for declaratory relief did not merely seek a declaratiOn of rights. She also sought a jury trial to determine damages following a judicial declaration of her rights. The record therefore simply does not support plaintiff” s contention that she sought only a declaration of rights. By seeking damages, she unequivocally sought to “enforce” her rights under the CC&R’s based upon the judicial declaration she also sought. ' The cause of action for breach of contract also constituted an action to enforce the CC&R’s. In the complaint, plaintiff described the breach of contract as a “[b]reach of the CC&R’s.” She further alleged . http://www.jurisearch.corn/dispsquibs.asp?squibsid=10996&state=CA 5/12/2008 p Chee v. Amanda Goldt Prop. Mgt., 101606 CAAPPl, A1079l8 Page 12 of 13 that Brown, under the CC&R’s, was contractually obligated “to indemnify, compensate, and pay plaintiff for all of her losses and damages incurred as a result of her injuries from Brown’s tenant’s dog in the subject incident,” and that “Brown is in breach of the CC&R’s . . . by failing to indemnify” plaintiff for loss caused by his tenant’s “acts or omissions.” Therefore, the alleged source of the contractual obligation and its terms was the CC&R’s and plaintiff sought damages for the alleged breach. An action for damages arising out of a breach of contract is an action to “enforce” the contract. (See Heidi v. Miller Heating & Air Conditioning C0. (1969). 271 Cal.App.2d 135, 137-.) We conclude that the causes of action for breach of a contractual obligation alleged to have been created by the CC&R’s, and for declaratory relief affirming plaintist interpretation of the CC&R’S, were actions brought to enforce the CC&R’s. The court therefore did not err in determining that pursuant to Civil Code section 1354 the prevailing party was entitled to fees incurred in defense of these causes of action. The court apportioned the fees requested to reflect what it determined were the fees incurred in defense of these two causes of action, and awarded only $6,000 of the approximately $30,000 defendants had requested in fees. Plaintiff does not contend that the court abused its discretion in apportioning fees to award only those attributable to the defense of these two causes of action. (See, e.g., Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [apportionment of fees is subject to court’s discretion].) She does, however, suggest that the court failed to apportion fees as between the two defendants, Brown and the Association. To the contrary, since the causes of action for breach of contract and declaratory relief were alleged only against Brown, the court also must necessarily have excluded any fees incurred in defense of the Association, in determining the amount of fees attributable to the defense of these two causes of actionm Conclusion The judgment and postjudgment order awarding fees are affirmed. We concur: SWAGER, J., MARGULIES, J. Notes: [1] Plaintiff states that, with respect to the Association, she appeals only the postjudgment award of attorney fees. We therefore summarize only the causes of action and theories of liability advanced against Brown and Goldt Property Management and its agents or employees. [21 The Association rules and regulations further provide: “The owner of any pet shall assure that such pet is restricted by a responsible person and monitored at all times it is upon the common areas. . . . [11] [and} that such pet causes no unreasonable noise, disturbance, nuisance or threat to common areas or other units. [fl] No resident shall keep a pet that psychologically or physically poses a threat to other residents, guests or pets. [11] . . . [1i] SAN LEANDRO ANIMAL CONTROL regulatiOns shall be observed by resident pet owners. . . . [11] Homeowners are responsible for their guests or renters adhering to these regulations.” m The court also retains the discretion to grant the motion even when the moving party relies solely upon a declarant’s statement concerning his or her state of mind. (Butcher v. Gay (1994) 29 Cal.App.4th 388, 404~405. [‘11 The expert declared that certain characteristics of Jack Russell Terriers, as a breed, render them “not recommended for apartments or condominiums” because the dogs will try to escape confinement, “jump and leap” and be “dangerously playful.” http://www.jurisearch.com/dispsquibs.asp?squibsid=10996&state=CA 5/12/2008 Chee V. Amanda Goldt Prop. Mgt., 101606 CAAPPI, A107918 Page 13 of 13 [3 In any event, the duty to inspect in Portillo charged the landlord with responsibility only for those matters that would have been disclosed upon reasonable inspection. (Portilla, supra, 27 Cal.App.4th at p. 1136.) In Portillo there was evidence that even a cursory inspection would have disclosed the newspaper article and the “beware of dog” Sign, which would have alerted the landlord to the presence of a dangerous guard dog on the premises, who had attacked in the past. Here, by contrast, plaintist evidence that the dog was seen off—leash and urinating and defecating in public areas did not support an inference that the dog had dangerous propensities. Thus, even if we were to extend the duty to inspect, there is no evidence to create a triable issue that, had the inspection been performed, it would have revealed that the dog was dangerous. L53 In the absence of evidence of interference with the use and enjoyment of the land, and damages based upon that injury, there is no cause of action for nuisance. (Venuto v. Owens-Corning Fiberglass Corp. (1971) 22 Cal.App.3d 116, 124-125.) m In Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 828, the court observed that the parties assumed that the “CC&R’s formed a contract between the Association and the condominium owners” but noted that other jurisdictions had refused to treat CC&R’S as contracts between the owners and the owners association. In Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 512, the court accepted arguendo the plaintiff’ s premise that the CC&R’S could form a contract between the homeowners association and its members, but nonetheless concluded plaintiff failed to allege a breach because no provision of the CC&R’s imposed an obligation upon the association to provide additional lighting in the common area that she contended would have prevented her injury by a third party. Plaintiff cites no case holding that the CC&R’s form a contract between members. [‘3] Former Civil Code section 1354, subdivision (i) is now codified in Civil Code section 1354, subdivision (c), as amended ‘ by Stats. 2004, ch. 754, § 1.) [-9—] The court’s order does state that it “awards Defendants $6000 in attorneys’ fees [italics supplied].” We do not construe this use of the plural to mean that the court awarded any fees incurred by the Association in defending against the other causes of action. The use of the plural is explained by the fact that the motion for fees was made on behalf of both defendants, who were jointly represented by the same law firms. The motion initially sought all fees incurred by both defendants as to all causes of action, but the court stated in its order that defendants’ motion was granted only “in part.” The rest of the order clearly states the court was awarding only reasonable fees incurred in defense of the causes of action for breach of contract and declaratory relief, and since Brown was the only named defendant with respect to these causes of action, the amount of fees the court determined were attributable to the defense of these causes of action were necessarily incurred only on Brown’s behalf. © 2008 JuriSearch http://www.jurisearch.com/dispsquibs.asp?squibsid=l 0996&state=CA 5/ 12/2008 ...
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TaxAndReviewCases[1] - Auerbach V. Assessment App. Bd. N0....

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