Opinion
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]
Marin County Super. Ct. No. CV006355
THE COURT:Jones, P. J.
It is ordered that the opinion filed herein on September 19, 2008, be modified as follows:
1. On page 25, add the following footnote (9) at the end of the carryover paragraph ending: “ . . . beginning January 1, 2000.”
9. In a petition for rehearing, MHC indirectly argues that the Association is judicially estopped from seeking fees under the Ordinance based on its representations in its opposition to MHC’s petition for review to the California Supreme Court in the prior appeal. First, the argument is forfeited because it was not expressly raised or argued on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellate court may deny claim on appeal that is unsupported by legal argument applying legal principles to the particular facts of the case on appeal].) Second, the Association’s statements in its opposition were not “totally inconsistent” with its claim for attorney fees under the Ordinance. (See MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) In the opposition, the Association wrote that “the San Rafael Rent Control Ordinance played no part in the Court of Appeal’s decision, which upheld the enforceability of a private arbitration award . . . .” As we just explained, fees could be awarded under the Ordinance for enforcement of the 1997 Settlement Agreement securing the homeowners’ rights under the Ordinance, even if the most recent proceeding was a private arbitration.
2. At page 36 of the opinion, add the following citation after the sentence, “However, MHC could have made the underlying substantive argument that the fee provision of the Ordinance was unenforceable because the Ordinance was unconstitutional.”
(See Palm Springs Paint Co. v. Arenas (1966) 242 Cal.App.2d 682, 688.)
3. At page 36 of the opinion, replace the sentence beginning “Notably, MHC had already . . .” with the following:
Although MHC initially raised constitutional issues in the state court action, those issues were resolved in the other parties’ favor by way of demurrer or summary adjudication. MHC then settled the merits of this action in the 2006 Settlement Agreement; the court entered judgment on the merits; and the judgment became final.
4. At page 36 of the opinion, add the following citation at the end of the paragraph beginning “In the trial court, . . .”
(Cf. id. at pp. 686-687 [underlying substantive argument to which issue preclusion applied had been raised in the second action].)
5. At page 37 of the opinion, add the following footnote (11) after the sentence, “In any event, MHC further forfeited its argument by failing to raise it on appeal before oral argument.”
11. MHC raised the argument in the introduction to its opening brief and in a request for judicial notice; this is insufficient. (See California Rules of Court, rule 8.204(a)(1)(B)
All subsequent footnotes are renumbered accordingly.
This modification does not effect a change in the judgment.