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Cristian andreasen et al v. Steven Garman et al


September 1, 2011


(Super. Ct. No. 166147)

The opinion of the court was delivered by: Butz ,j.

Andreasen v. Carman



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this declaratory relief action, the trial court agreed with defendants that the covenants, conditions and restrictions (CC&R's) for a commercial shopping center (the Shopping Center)--in which plaintiffs and defendants own respective parcels--precluded plaintiffs from leasing their parcels to a church.

On appeal, plaintiffs contend the trial court erred in (1) interpreting the CC&R's, (2) making certain findings, and (3) awarding attorney fees to defendants. We shall affirm the judgment and the attorney fees award.


The Shopping Center, comprising eight parcels, is located in Redding and was created in 1988.

Plaintiffs bought parcels 1 and 5 in 2001. Parcel 1, the "anchor store" for the Shopping Center, was originally occupied by a supermarket and then by a telephone call center. In 2005, the call center closed and parcel 1 has been vacant since then (although the lease on the parcel 1 call center continued until January 31, 2011). Parcel 5 is a parking lot for the Shopping Center's general parking.

Defendants own parcels 2, 4, and 6 in the Shopping Center, all of which are improved with rental space. (Parcels 3, 7 and 8 are owned by others.)

Plaintiffs sought to lease parcel 1 to Bethel Church (Bethel), using parcel 5 for parking. Parcel 1 was to be used for Bethel's (1) internet department, which includes sales (20 to 30 full-time employees); (2) School of Ministry (a two-year, full-time course with a total student enrollment of approximately 1,000); and (3) two church services on Sunday, each with around 600 attendees.

Defendants objected to plaintiffs' proposed lease to Bethel, contending that the lease would violate the Shopping Center's CC&R's, which specify that "[t]he Shopping Center shall be used for commercial purposed [sic] only for . . . mercantile, business and professional establishments . . . ."


Plaintiffs sued defendants, alleging two causes of action: (1) declaratory relief and (2) slander of title.

The declaratory relief action concerned whether the CC&R's precluded the Bethel lease.

The slander of title action was based on a letter defendants sent to Bethel's administrator in which defendants contended that the CC&R's precluded the lease (defendants apparently sent a copy of this letter to the City of Redding, thereby supposedly making the letter available to the general public).

Defendants filed an anti-SLAPP motion, claiming that plaintiffs' lawsuit was a strategic lawsuit against defendants' right to participate in public matters, and therefore prohibited. A week after this motion was filed, plaintiffs dismissed their cause of action for slander of title. The trial court subsequently denied defendants' anti-SLAPP motion and their request for attorney fees. The trial court reasoned that the anti-SLAPP motion was directed at both of plaintiffs' causes of action, the declaratory relief action was still viable, and the attorney fees could not be apportioned practically to just the dismissed slander of title action.*fn1


I. The CC&R's Preclude the Bethel Lease

Plaintiffs contend the uses proposed in the Bethel lease are within the definition of "commercial" as used in the CC&R's. We disagree.

This contention requires us to interpret the CC&R's. Since the parties do not point to any conflicting extrinsic evidence used by the trial court to interpret the CC&R's, we interpret them independently. (Battram v. Emerald Bay Community Assn. (1984) 157 Cal.App.3d 1184, 1189.) Our duty is "to interpret a declaration of covenants, conditions and restrictions in a way that is both reasonable and carries out the intended purpose of the contract." (Dieckmeyer v. Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 259, citing Battram, supra, at p. 1189.)

The relevant provision of the CC&R's is paragraph 1 of section I. Section I is entitled "Use and Development" and paragraph 1 states in pertinent part:

"1. The Shopping Center shall be used for commercial purposed [sic] only for the construction, operation and maintenance of mercantile, business and professional establishments and related facilities, including vehicular parking areas . . . ."

Thus, under the CC&R's, the Shopping Center shall be used only for commercial purposes for mercantile, business and professional establishments. Bethel's proposed uses primarily encompass church services and a school of ministry. These are not commercial purposes in the mercantile, business or professional context.

Plaintiffs raise three points against this interpretation. We are not swayed.

First, plaintiffs point to Bethel's internet department, which engages in significant sales. However, this ancillary department does not transform what is, overall, an ecclesiastical use into a commercial one.

Second, plaintiffs seek solace in the word "professional." The clergy may have been one of the original learned professions, but the CC&R's contemplate "professional" in the commercial rather than theological context.

And, third, plaintiffs claim that Civil Code section 53*fn2 prohibits them from refusing to lease to Bethel.

Section 53 is tied to the Unruh Civil Rights Act set forth in section 51. As pertinent, section 53, subdivision (a) states: "(a) Every provision in a written instrument relating to real property that purports to forbid or restrict the . . . leasing . . . of that real property to any person because of any characteristic listed or defined in subdivision (b) or (e) of Section 51 is void, and every restriction or prohibition as to the use or occupation of real property because of any characteristic listed or defined in subdivision (b) or (e) of Section 51 is void"; and subdivision (b) of section 53 adds specifically: "(b) Every restriction or prohibition, whether by way of covenant, condition upon use . . . , which restriction or prohibition directly or indirectly limits the . . . use . . . of that property because of any characteristic listed or defined in subdivision (b) or (e) of Section 51 is void."

Section 51, subdivision (b) provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Subd. (e) of § 51 further defines some of these personal characteristics listed in subd. (b).)

As defendants note, the CC&R's here do not purport to restrict the leasing or the use of any building in the Shopping Center because of a personal characteristic protected by the Unruh Civil Rights Act (i.e., § 51). Furthermore, sections 53 and 51 protect "persons" based on "their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation[.]" (§ 51, subd. (b); see § 53, subd. (a).) Such protection does not extend to Bethel, which is not such a person. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 537-539; Consumers Union of United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App.3d 1433, 1439.)

We conclude that Bethel's proposed lease is not within the commercial use provision of the CC&R's.

II. Issues of Parking Impact and Changed Conditions Not Cognizable Without Reporter's Transcript

Plaintiffs contend that the insignificance of Bethel's parking impact on the Shopping Center, and the extensive change in conditions in the Shopping Center since 1988, each warrant approval of Bethel's proposed lease. We cannot consider these two issues because plaintiffs, as appellants, have failed to meet a basic rule of appellate review, providing a record showing error.

These two issues implicate the sufficiency of the evidence in this case. Although five witnesses testified at trial (in addition to two expert witnesses who submitted their testimony on written declarations), plaintiffs have not furnished a reporter's transcript.

The fact that there was no reporter at the court trial is not a valid excuse. In lieu of a reporter's transcript, an appellant may proceed by way of an agreed or settled statement. (Leslie v. Roe (1974) 41 Cal.App.3d 104, 108; Cal. Rules of Court, rules 8.134, 8.137.) Plaintiffs did not pursue either option.

"Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. . . . The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

III. Attorney Fees

The trial court awarded defendants their attorney fees, based on attorney fee provisions in the CC&R's. Plaintiffs challenge defendants' entitlement to those fees, but not their amount. We conclude the trial court acted properly.

Section V, paragraph 7 of the CC&R's states as pertinent that, "[i]n the event of a breach, or attempted or threatened breach, by any owner of any part of [the] Shopping Center" of any of the CC&R's, "any one or all of the [other] owners . . . shall be entitled forthwith to full and adequate relief by . . . legal and equitable remedies . . . including attorney's fees . . . ." Section V, paragraph 8 reiterates that the successful party in an action to enforce the CC&R's "shall be entitled to be paid reasonable attorney's fees by the losing party . . . , and any judgment [sic] or decree rendered shall include an award thereof."

These two paragraphs in the CC&R's provide a sound contractual basis for an award of attorney fees here.

Plaintiffs disagree for two reasons.

First, plaintiffs contend these attorney fee provisions did not apply because plaintiffs did not breach or threaten to breach the CC&R's. Plaintiffs argue they never consummated the lease with Bethel and simply brought this lawsuit to determine if they could do so.

Plaintiffs are playing games here. Their argument is analogous to being a little bit pregnant. At a minimum, the proposed Bethel lease was a "threatened breach" of the CC&R's under section V, paragraph 7. Plaintiffs went so far as to file a lawsuit against some of their fellow Shopping Center owners to force the Bethel lease upon them, after rejecting defendants' specific objections to the lease during months of discussions. Plaintiffs' theory of attorney fee avoidance in declaratory relief lawsuits, while creative, would go a long way toward wiping out contractually based attorney fee awards, because disputes involving contractual interpretation could always be framed in declaratory relief terms. As the trial court aptly put it, "Plaintiffs contend that the[ir] suit was not for enforcement, but for a determination of the application of the CC&R's. This is a much too restrictive reading of [section V,] paragraph 8 [of the CC&R's]. . . . Plaintiffs cannot avoid the attorney's fee provision simply because they filed their action first."

Second, plaintiffs contend that Judge Bigelow, the trial judge, improperly awarded attorney fees to defendants that defendants incurred in litigating their unsuccessful anti-SLAPP motion, fees which were denied already by Judge Boeckman, who ruled on the anti-SLAPP motion.

Recall, however, that defendants' anti-SLAPP motion prompted plaintiffs to dismiss their slander of title cause of action. And Judge Boeckman denied attorney fees to defendants on the anti-SLAPP motion only because that motion was directed at both the declaratory relief cause of action and the slander of title cause of action, and a practical apportionment of the attorney fees between those two causes of action was impossible--i.e., awarding fees to defendants for securing the dismissal of the slander cause of action, but not for the still-extant declaratory relief cause of action. Both the declaratory relief and the slander of title causes of action arose from defendants' contention that the CC&R's precluded the Bethel lease. Now, after trial, defendants have prevailed on both of these causes of action. Attorney fee apportionment is no longer an issue; neither is a double recovery of attorney fees for defendants, since defendants were never previously awarded fees regarding their successful defense to the slander of title cause of action. As the prevailing parties in the entirety, defendants were entitled to reasonable attorney fees in their entirety.


The judgment and the order awarding attorney fees to defendants are affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: HULL , Acting P.J. HOCH ,J.

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