Opinion
B313475
02-28-2023
BERDAN HOLDINGS, LLC, Plaintiff and Appellant, v. ABSOLUTE USA, INC., et al., Defendants and Respondents.
Michael A. Abramson for Plaintiff and Appellant. Perry Roshan-Zamir for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from judgment of the Superior Court of Los Angeles County No. BC635361, Mel Red Recana, Judge.
Michael A. Abramson for Plaintiff and Appellant.
Perry Roshan-Zamir for Defendants and Respondents.
ROTHSCHILD, P. J.
Appellant Berdan Holdings, LLC (Berdan) appeals from the trial court's March 8, 2021 judgment in favor of Respondents Absolute USA, Inc. (Absolute) and MSNAR, LLC (MSNAR) (collectively, the Absolute respondents), entered following the court's March 4, 2021 order granting Absolute respondents' motion for summary judgment and the court's May 10, 2021 order denying Berdan's motion for a new trial. Because we agree with the trial court that Berdan's claims are barred by the statute of limitations, we affirm the judgment.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
This appeal arises out of a yearslong dispute between the parties concerning a fence and a parking easement. Berdan owns the real property located at 1933 Alameda Street in Los Angeles, California (the Alameda property). MSNAR owns the real property located one block away, at 1919 Staunton Avenue (the Staunton property), and Berdan contends that Absolute is the lessee that occupies the Staunton property.
On September 26, 1977, E.J. Friedman Company, Inc. (E.J. Friedman)-which, at the time, owned both the Alameda property and the Staunton property-entered into a "covenant and agreement regarding maintenance of off-street parking space" (the 1977 covenant) that provides, in relevant part, that "pursuant to [s]ection 12.26E5 of the Los Angeles Municipal Code[, E.J. Friedman] hereby covenant[s] and agree[s] to and with [the City of Los Angeles (the City)] that an off-site parking area containing not less than 11 . . . usable and accessible automobile parking spaces which comply with [s]ection 12.21A5 of the Los Angeles Municipal Code will be provided and maintained on the [Staunton property] to provide the required parking for the use or the building located at [the Alameda property]." (Capitalization omitted.) The 1977 covenant provides further that it "shall run with the land and shall be binding upon ourselves, any future owners, encumbrancers, their successors, heirs or assignees and shall continue in effect so long as the use or building requiring such parking is maintained without providing off-street automobile parking spaces on the same lot and/or another lot as required by the provisions of the Los Angeles Municipal Code or unless otherwise released by authority of the Superintendent of Building of the City of Los Angeles." The recorder's office recorded the covenant on October 14, 1977. Berdan contends that the 1977 covenant thus created a parking easement that entitles the owner of the Alameda property to utilize 11 parking spaces located on the Staunton property.
In August 2006, E.J. Friedman sold the Alameda property to Union Hoover, LLC, a company affiliated with Berdan, which, in turn, transferred the property to Berdan in January 2007. Berdan contends that it "relied upon the existence of the [parking] [e]asement [established by the 1977 covenant] in making its decision to purchase the Alameda [p]roperty."
Also in 2006, E.J. Friedman sold the Staunton property to Meruelo Maddox Properties (Meruelo). Berdan contends that Meruelo subsequently sold the property to MSNAR in June 2013. Absolute respondents contend that Forever 21 purchased the Staunton property in September 2008, and that it was Forever 21 that subsequently sold the property to MSNAR in June 2013.
The parties agree that, at some point prior to July 2016, someone erected a fence on the Staunton property that prevents Berdan from utilizing any parking spaces on the property. Berdan contends that "[Absolute] [r]espondents erected the fence in or about June of 2013 because that is when MSNAR purchased the Staunton [p]roperty." Absolute respondents insist, in contrast, that a prior owner built the fence some time prior to 2011.
In July 2016, Berdan leased the Alameda property to Dan Rahamim, who operates Expo Flooring (Expo), a flooring retail business. Berdan contends that "Expo needs the parking spaces on the Staunton [p]roperty to accommodate its employees, customers, vendors[,] and invitees on a continuous and ongoing basis and to comply with municipal zoning laws and the certificates of occupancy." Specifically, Berdan contends that, to comply with the Los Angeles Municipal Code, it must be permitted to utilize at least two parking spaces on the Staunton property. Absolute respondents do not dispute that they refuse to remove the fence or to allow Berdan and its tenant, Expo, access to the Staunton property's parking spaces.
On September 27, 2016, Berdan filed a complaint against Absolute respondents, asserting a cause of action for "breach of parking easement" (capitalization omitted), and seeking an injunction to prohibit Absolute respondents from interfering with the easement, as well as damages. MSNAR filed a cross-complaint on October 28, 2016, seeking quiet title to the Staunton property.
After nearly four years of litigation, on August 27, 2020, Berdan moved for a preliminary injunction to enforce the parking easement. With the preliminary injunction motion pending, Absolute respondents moved for summary judgment on November 6, 2020, arguing, inter alia, that Berdan lacks standing to enforce the 1977 covenant, and that Berdan failed to file its action within the five-year statute of limitations for violation of a restrictive covenant as required by Code of Civil Procedure section 336, subdivision (b). On January 7, 2021, Absolute respondents filed their opposition to Berdan's motion for preliminary injunction, and Berdan filed its opposition to Absolute respondents' summary judgment motion. Along with its opposition brief, Berdan filed a separate statement in opposition to the summary judgment motion and separate objections to certain evidence Absolute respondents submitted in support of the motion. In addition, both parties filed requests for judicial notice.
Subsequent unspecified statutory references are to the Code of Civil Procedure.
None of Berdan's separate objections is relevant to the statute of limitations issue dispositive of this appeal.
On March 4, 2021, the court heard both Berdan's motion for preliminary injunction and Absolute respondents' summary judgment motion. The court granted the parties' respective requests for judicial notice, and ruled on each of Berdan's evidentiary objections. The court then granted summary judgment for Absolute respondents on the ground that Berdan lacks standing to enforce the 1977 covenant, and ruled that Berdan's motion for preliminary injunction was moot. Pursuant to Absolute respondents' oral request, the court dismissed the cross-complaint against Berdan without prejudice. The court subsequently entered judgment in favor of Absolute respondents on March 8, 2021.
Berdan filed a motion for a new trial on March 23, 2021, arguing, inter alia, that the court had misunderstood its arguments concerning Civil Code section 809, which it contends provides it with standing to enforce the 1977 covenant. (Boldface and capitalization omitted.) Berdan argued further that it had obtained new evidence "demonstrating that the City's policy is to refrain from enforcing parking covenants, thus leaving [Berdan] with no remedy." Berdan submitted declarations from its attorney and the attorney's law clerk attesting that an inspector with the enforcement division of the Los Angeles Department of Building and Safety (LADBS) stated that LADBS "sees this as a purely civil case between the two property owners," and that it "will not enforce the [p]arking [c]ovenant unless the two property owners attempt to cancel or remove the [c]ovenant." Berdan filed another request for judicial notice in connection with its new trial motion. On April 1, 2021, Absolute respondents filed their opposition to the motion, along with evidentiary objections and a motion to strike portions of the attorney and law clerk declarations on hearsay grounds.
The court heard the new trial motion on May 10, 2021.
It granted Berdan's request for judicial notice and ruled on Absolute respondents' evidentiary objections, overruling the vast majority. It also denied Absolute respondents' motion to strike. The court then denied the new trial motion, explaining that although Civil Code section 809 might support Berdan's standing argument, Absolute respondents nonetheless were entitled to summary judgment because Berdan's claims are barred by section 336, subdivision (b)'s five-year statute of limitations.
The trial court explained:
"[Berdan] has not shown that a triable issue of material fact exists as to the statute of limitations barring [Berdan's] action." "In support of [Absolute respondents'] motion, Mohammad Razipour, the [m]anaging [m]ember of defendant MSNAR . . . attested that the fence on the [Staunton] property . . . was erected well before 2011....[Berdan] filed this action on September 27, 2016. Thus, [Absolute respondents] presented prima facie evidence that [Berdan's] action falls beyond the five-year limitations period .... [¶] In opposition, [Berdan] does not dispute this material fact or [Absolute respondents'] evidence.... [Berdan] presents no evidence demonstrating delayed discovery of the fence." The court also rejected Berdan's argument that the statute of limitations for a violation of a restrictive covenant begins to run when a demand for performance is made, as well as Berdan's argument that, pursuant to People v. Kerber (1908) 152 Cal. 731 (Kerber), no statute of limitations whatsoever applies to its claims.
Berdan has abandoned this contention on appeal.
Following the court's denial of its new trial motion, Berdan timely appealed the March 8, 2021 judgment. On January 11, 2023, Berdan filed a request that this court take judicial notice of certain materials concerning MSNAR's unsuccessful efforts to terminate the 1977 covenant. We grant Berdan's request. As relevant to this appeal, we note that the materials reflect that MSNAR filed an application with LADBS on November 9, 2020 seeking to terminate the covenant. LADBS denied its application, and the City, sitting as an appeals board, affirmed the denial on April 27, 2021. MSNAR then filed a petition for writ of mandate in the superior court on May 3, 2021, requesting that the court set aside the determinations made by LADBS and the City. MSNAR filed its opening brief in the writ proceedings on September 30, 2022, and the City filed its opposition on October 25, 2022. The City's briefing does not address the statute of limitations issues dispositive here. On November 30, 2022, the superior court stayed the writ proceeding pending resolution of this appeal.
In response to a July 26, 2021 notice from the clerk of this court, Berdan submitted two briefs concerning the timeliness of its appeal. We agree with Berdan that its appeal is timely. "If any party serves and files a valid notice of intention to move for a new trial," and the motion is denied, "the time to appeal from the judgment is extended for all parties until the earliest of: [¶] (A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; [¶] (B) 30 days after denial of the motion by operation of law; or [¶] (C) 180 days after entry of judgment." (Cal. Rules of Court, rule 8.108(b)(1)(A)-(C).) Here, there is no evidence that the court or any party served the order denying the new trial motion or a notice of entry of that order, and because the trial court denied the motion, it was not denied "by operation of law." (See Anderson v. Chikovani (2010) 181 Cal.App.4th 1397, 1400-1401.) Berdan therefore had until 180 days after entry of the March 8, 2021 judgment to file its appeal. It did so 94 days after entry of the judgment, and its appeal therefore is timely.
Berdan contends that it did not submit the materials contemporaneously with its briefs on appeal because MSNAR failed to provide it with notice of the proceedings before LADBS, the City, and the superior court.
DISCUSSION
A. Standard of Review
1. Summary judgment
"We review a trial court's granting summary judgment de novo, 'considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.' [Citations.] We 'liberally constru[e] the evidence in support of the party opposing summary judgment and resolv[e] doubts concerning the evidence in favor of that party.' [Citation.]" (Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1034.)
"When a defendant moves for summary judgment on the ground there is an affirmative defense to the action, the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense after the defendant meets the burden of establishing all the elements of the affirmative defense." (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484-1485 (Jessen); Code Civ. Proc., § 437c, subds. (o)(2) &(p)(2).)
2. New Trial Motion
"Generally, rulings on new trial motions are reviewed for an abuse of discretion. [Citation.] Nonetheless, in the case of an order denying a new trial following summary judgment, the determinations underlying the denial dictate our standard of review. [Citation.] To the extent the denial relies on the resolution of a question of law, including the nonexistence of triable issues of fact, we examine the matter de novo." (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.) "We therefore review [a] challenge to the denial as we would examine a direct attack on the order granting summary judgment, insofar as [plaintiff] asserts that the evidence considered by the trial court when it granted summary judgment raised triable issues of fact." (Id. at pp. 1176-1177.)
B. The Statute of Limitations Bars Berdan's Claims
Berdan contends that the trial court erred in granting summary judgment for Absolute respondents and in denying its motion for a new trial. We, however, agree with the trial court that Berdan's claims are barred by the statute of limitations.
As set forth, ante, the gravamen of Berdan's complaint is Absolute respondents' alleged violation of the parking covenant. (See Marin Healthcare Dist. v. Sutter Health (2002) 103 Cal.App.4th 861, 874-875 (Marin Healthcare) [" 'To determine the statute of limitations which applies to a cause of action[,] it is necessary to identify the nature of the cause of action, i.e., the "gravamen" of the cause of action. [Citations.] "[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code." [Citation.]' [Citations.]"].)
Relying on Civil Code section 784, Absolute respondents contend that the 1977 covenant is a restrictive covenant.Berdan does not dispute this assertion, and we therefore assume for purposes of our analysis that the covenant underlying the easement is a restrictive covenant.
Civil Code section 784 defines "restriction" as follows:" 'Restriction,' when used in a statute that incorporates this section by reference, means a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction." (Civ. Code, § 784.)
Section 336, subdivision (b) provides that "[a]n action for violation of a restriction, as defined in [s]ection 784 of the Civil Code," must be commenced "[w]ithin five years." (§ 336.) Subdivision (b) provides further that "[t]he period prescribed in this subdivision runs from the time the person seeking to enforce the restriction discovered or, through the exercise of reasonable diligence, should have discovered the violation." (§ 336, subd. (b) .) The five-year statute of limitations applies to actions initiated by private parties, as well as to actions brought in the name of, or for the benefit of, the state. (See § 345 ["[t]he limitations prescribed in this chapter [i.e., chapter 3, the chapter in which section 336 appears] appl[ies] to actions brought in the name of the state or county or for the benefit of the state or county, in the same manner as to actions by private parties"]; accord, Marin Healthcare, supra, 103 Cal.App.4th at p. 887 ["the Legislature has expressly applied all of the limitations periods in . . . chapter [3] to actions brought in the name of the state"].)
Here, Berdan contends that erection of the fence on the Staunton property violates the 1977 covenant. Thus, pursuant to section 336, subdivision (b), Berdan's claims would be timely only if filed within five years from either (1) Berdan's actual discovery of the fence, or (2) when Berdan should have discovered the fence, through the exercise of reasonable diligence.
In their separate statement in support of summary judgment, Absolute respondents identify as "undisputed" the following two facts (facts 8 and 10) indicating that someone built the fence prior to 2011:
"8. Defendant MSNAR, LLC's predecessors-in-interest erected a fence around the Staunton [p]roperty, not MSNAR itself....
"[¶] . . . [¶]
"10. Sometime[ ] while FOREVER 21 own[ed] the Staunton [p]roperty, or prior to that, a fence was erected. The fence was erected prior to 2011."
Absolute respondents identify paragraphs 7 and 9 of the declaration of MSNAR's managing member, Mohammad Razipour (the Razipour declaration), as the evidence supporting facts 8 and 10. Those paragraphs of the Razipour declaration provide:
"7. A fence was erected at the Staunton [p]roperty at some point in time prior to MSNAR's ownership of the Staunton [p]roperty, and well before 2011....
"[¶] . . . [¶]
"9. Since MSNAR purchased the Staunton [p]roperty in 2013, MSNAR has maintained the fence around the property."
Although Berdan objects to facts 8 and 10 as irrelevant, and to the supporting Razipour declaration as lacking foundation, it nonetheless agrees that these facts, which establish the presence of the fence on the Staunton property prior to 2011, are "undisputed." Absolute respondents' summary judgment motion thus makes the requisite showing that Berdan should have discovered the fence prior to 2011-i.e., more than five years before it filed its action. The burden therefore shifts to Berdan to show a triable issue of fact concerning when it discovered the fence. (See Jessen, supra, 158 Cal.App.4th at pp. 1484-1485.) Berdan, however, fails to identify the date it discovered the fence, let alone any evidence substantiating that date. Moreover, nothing in the available record suggests that anyone attempted to conceal the fence, or that Berdan's discovery of the fence reasonably may have been delayed for some other reason. To the contrary, the evidence suggests that, through the exercise of reasonable diligence, Berdan should have discovered the fence soon, if not immediately, after its construction. Berdan agrees, for example, that the Staunton property is located only one block from the Alameda property, and Berdan's property manager attests that he makes "frequent visits to the Staunton and Alameda [p]roperties."
These objections appear in Berdan's separate statement in opposition to Absolute respondents' summary judgment motion, rather than in Berdan's separately filed evidentiary objections. Although the trial court ruled on each of Berdan's 15 separately filed objections, it did not rule on the objections embedded in Berdan's separate statement.
Berdan argues that "[t]here is evidence suggesting that [Absolute] [r]espondents erected the fence in or about June 2013 because that is when MSNAR purchased the Staunton [p]roperty," pointing to the paragraph of the Razipour declaration attesting that MSNAR acquired the property in 2013. Without evidence that Absolute respondents built the fence, however, the date that MSNAR acquired the property does not constitute evidence of the date of the fence's construction. And the paragraphs of the declaration of Expo's owner, Dan Rahamim, to which Berdan cites do not contain any such evidence (nor any other evidence relevant to determining the date of the fence's construction or Berdan's discovery of the fence).
Accordingly, we conclude that the undisputed facts demonstrate that Berdan filed its action more than five years after it should have discovered the fence, through the exercise of reasonable diligence. Its claims against Absolute respondents therefore are barred by the statute of limitations.
None of Berdan's arguments convinces us otherwise. First, Berdan urges that the summary judgment burden never shifted from Absolute respondents because Absolute respondents failed to "present any evidence as to when [Berdan] discovered, or should have discovered, [the] obstruction of the [e]asement." (Italics omitted.) Berdan fails to explain how we can reconcile this argument with its admission that someone other than Absolute respondents constructed the Staunton property's fence prior to 2011. To the extent Berdan's point is that Absolute respondents failed to expressly state that Berdan should have discovered the fence as soon as it was built, the point is unpersuasive. Absolute respondents' submission of undisputed facts establishing the presence of the fence on the Staunton property prior to 2011 is sufficient to shift the summary judgment burden to Berdan to identify a triable issue of fact with respect to the date it discovered the fence. (See Jessen, supra, 158 Cal.App.4th at pp. 1484-1485.) We therefore also reject Berdan's related contention that the trial court "appl[ied] the incorrect standard" by treating the date of the fence's construction as the relevant date for statute of limitations purposes. (Italics omitted.)
Second, Berdan argues that the holding in Kerber exempts its claims from the statute of limitations entirely. Berdan points to the following language in Kerber in support of its position: "There can be no adverse holding of such land which will deprive the public of the right thereto, or give title to the adverse claimant, or create a title by virtue of the statute of limitations." (Kerber, supra, 152 Cal. at p. 734.) In its order denying Berdan's new trial motion, the trial court concluded that Kerber is inapplicable because Berdan ignores critical language in the decision suggesting that its holding applies only to actions brought "by the state or its agents." (Italics omitted.) Berdan argues that the trial court erred in distinguishing Kerber on this basis because "[i]t matters not whether the party seeking to enforce the [e]asement is a public entity or its agent, or a private party. In any such case, the public's interest in public land cannot be forfeited by operation of the statute of limitations."
We need not resolve whether Kerber's holding applies in cases brought by a private party, however, because Berdan fails to demonstrate that the parking covenant at issue here involves "public land" of the type contemplated in Kerber. As the Court of Appeal explained in Marin Healthcare-a case on which Berdan relies heavily-Kerber is one in a series of cases in which the Supreme Court has applied "the judicially created doctrine enunciated in Hoadley v. San Francisco (1875) 50 Cal. 265 (Hoadley)-that the statute of limitations does not apply to actions by the state to recover property dedicated for public use against an adverse possessor." (Marin Healthcare, supra, 103 Cal.App.4th at p. 866; see id. at p. 883.) In concluding that the statute of limitations barred the state's right to void a lease of public-use property, the court reaffirmed that Hoadley (and, by extension, Kerber) stands only for the "narrow rule that 'property held by the state in trust for the people cannot be lost through adverse possession.'" (Marin Healthcare, supra, at p. 867, quoting People v. Shirokow (1980) 26 Cal.3d 301, 311.)
The court further explained that "Hoadley's holding was premised on the governmental entity's lack of 'authority . . . to alienate' property held for public use [citation] and the presumably concomitant inability of a private person to acquire it indirectly through the failure of the government to timely bring suit within the statute of limitations-quite unlike the instant case where the [state] had statutory authority to enter into a lease." (Marin Healthcare, supra, 103 Cal.App.4th at p. 881; see Hoadley, supra, 50 Cal. at pp. 275-276.)
Here, Berdan fails to explain why we should regard the parking spaces on the Staunton property as "public use" property. Berdan does not contend, for example, that the 1977 covenant entitles members of the general public who are not customers of Berdan or its tenant to utilize the spaces. To the contrary, Berdan argues expressly that "it is the occupants of the Alameda [p]roperty and their invitees who are the intended users of the parking [e]asement on the Staunton [p]roperty, not the City." Moreover, Berdan concedes that the City has the right to "release"-in other words, to "alienate"- the parking covenant. We therefore are not persuaded that the 1977 covenant pertains to "public use" property of the type at issue in Hoadley, Kerber, and their progeny. The various cases on which Berdan relies that involve or discuss the Hoadley doctrine thus are inapplicable. (See People v. Chambers (1951) 37 Cal.2d 552; Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810; Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166.)
Third, and finally, Berdan argues that because "[t]he allegations of Berdan's [c]omplaint would support a cause of action for nuisance, . . . which . . . never stops accruing" (fn. omitted), we should reverse the trial court's determination that the statute of limitations bars its claims. Berdan concedes that its complaint "does not contain a cause of action for nuisance," and that "[g]enerally, a plaintiff-appellant cannot assert a new theory of liability for the first time on appeal." It nonetheless urges that we should exercise our discretion to consider its new theory because it "pertains only to questions of law on undisputed facts." Without deciding whether Berdan's nuisance theory indeed raises only questions of law, we decline to exercise our discretion to consider the new theory. This is not the rare case that warrants departure from the general rule against doing so.(See In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962 ["the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue"]; see also Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873 ["Plaintiff failed to [raise the issue below], and forfeiture is appropriate. Indeed, if this were permitted procedure, parties opposing and losing summary judgment motions could attempt to embed grounds for reversal on appeal into every case by their silence."].)
We therefore need not address the cases on which Berdan relies in arguing that the allegations in its complaint would support a cause of action for continuing nuisance.
Accordingly, like the trial court, we conclude that Berdan's claims are time-barred. We therefore affirm the judgment.
In light of our conclusion, we need not address Absolute respondents' other arguments in support of summary judgment, which include: Berdan lacks standing to pursue this action; the covenant is moot because the Alameda property now has an adequate number of parking spaces; and the covenant is void because the Alameda property's use changed from a bakery to a warehouse. Nor need we address in any detail Berdan's arguments that the trial court's judgment is "prejudicial" because it deprives Berdan of a remedy. Although limitations periods sometimes operate to deprive a party of an otherwise available remedy, "[t]here are . . . good policy arguments both for and against" various limitations periods, and "we must defer to the Legislature's judgment" in creating the statute of limitations applicable here. (Marin Healthcare, supra, 103 Cal.App.4th at pp. 871-872.)
DISPOSITION
We affirm the March 8, 2021 judgment. Absolute respondents are awarded their costs on appeal.
We concur: BENDIX, J., WEINGART, J.