Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC087743 Patricia L. Collins, Judge.
Ezer & Williamson and Mitchel J. Ezer for Defendants and Appellants.
Julian R. Warner and Ronald P. Kaplan for Plaintiff and Respondent.
ZELON, J.
Appellants Melvyn Klein (“Klein”) and Margaret Drach (“Drach”) are residents and shareholders in a stock cooperative owned by Respondent Ocean Towers Housing Corporation (“Ocean Towers”). In August 2005, Klein replaced the floor-to-ceiling window-wall in his residential unit without the prior approval of Ocean Towers. Ocean Towers thereafter requested that Klein allow its building architect to enter the unit to inspect the window-wall. When Klein refused to permit entry, Ocean Towers filed an action for declaratory relief against Klein and Drach, seeking a judicial declaration that it had the right to enter the unit to inspect the window-wall. Following a bench trial, the trial court granted judgment in favor of Ocean Towers, “declaring that, pursuant to Ocean Towers Housing Corporation’s Rule and Regulation 14.09, Ocean Towers Housing Corporation has the right to inspect the window-wall installed” by Klein and “may do so pursuant to the requisite notice described therein.” On appeal, Klein argues that the trial court erred in granting declaratory relief and in awarding Ocean Towers its attorney’s fees. For the reasons set forth below, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Ocean Towers is a stock cooperative that owns a 317-unit residential building in Santa Monica. The residents of Ocean Towers do not own individual units, but rather purchase stock in the corporation and lease the units pursuant to a Proprietary Lease. The Proprietary Lease provides that the tenant’s occupancy of the unit is governed by the terms and conditions of the Lease, the Articles and By-Laws of the corporation, and the Rules and Regulations adopted by its Board of Directors. Article 5.05 of the Proprietary Lease specifically states that the tenant “will observe and comply with all rules and regulations . . . now or hereafter adopted by the Board” and that “all such rules and regulations now or hereafter adopted are hereby made a part of this Lease as if fully incorporated herein.” Additionally, Article 7.01 of the Proprietary Lease provides that the tenant “shall not, without the prior written consent of the Board, . . . make any structural alterations to the [unit].” Klein and Drach joined the stock cooperative in 1999 and signed a Proprietary Lease for Unit 1005-P.
In or about August 2005, Klein replaced the 10-foot long, floor-to-ceiling window-wall in his unit without the prior approval of Ocean Towers’ Board of Directors. According to Klein, although he did not obtain the consent of the corporation before replacing the window-wall, the Building and Safety division of the City of Santa Monica inspected the replacement and approved it without qualification. Starting in September 2005, Ocean Towers sent Klein a series of letters in which it informed him that he was in breach of Article 7.01 of the Proprietary Lease for installing a new window-wall without the Board’s approval and demanded that he permit an agent of the corporation to enter his unit to inspect the replacement. The letters also indicated that Ocean Towers wished to inspect the new window-wall to determine whether it conformed to the building’s specifications. Klein responded to each of Ocean Towers’ letters, advising the corporation that he did not agree to its request for an inspection.
Klein and Drach are married but separated, and Drach currently resides in another unit in the building. She was named as a defendant in the lawsuit because she holds a record interest in the unit at issue. Although her name remained on the Proprietary Lease, Drach was no longer residing with Klein in Unit 1005-P at the time he replaced the window-wall.
After Klein refused to allow an inspection, Ocean Towers’ Board of Directors enacted Rule and Regulation 14.09 (“Rule 14.09”). Rule 14.09 provides, in pertinent part, that “a Corporate Representative shall have the right and power to enter into any Unit during normal business hours . . . to inspect any improvements or alterations to a Unit; [and] to determine whether any improvements or alterations by any Shareholder-Lessee are structural or were made without the required consent of the Board.” Rule 14.09 also sets forth a specific notice procedure for establishing the date and time of entry, unless otherwise agreed to by the corporation and the Shareholder-Lessee. It provides that “[i]f the Shareholder-Lessee does not respond to two oral or written attempts by the Corporation to schedule a date and time for such entry, . . . [t]he Corporation shall deliver to the Shareholder-Lessee a notice stating that the Corporation intends to enter the unit at an approximate time on a specific date” and “[e]ntry will be two (2) to seven (7) days after delivery of such Notice of Intent to Enter.” The Board unanimously adopted Rule 14.09 on or about October 11, 2005.
The full text of Rule 14.09, subsection C, is as follows: “In cases other than emergency, abandonment or surrender of a Unit, a Corporate Representative shall have the right and power to enter into any Unit during normal business hours, unless the Shareholder-Lessee consents to such entry during other than normal business hours. Normal business hours shall generally be 9:00 a.m. to 5:00 p.m. on Monday through Friday, except on holidays, or such other times as established by the Board. The Corporate Representative may enter the Unit at such time and date as approved either orally or in writing between a representative of the Corporation and the Shareholder-Lessee. If the Shareholder-Lessee does not respond to two oral or written attempts by the Corporation to schedule a date and time for such entry, the time and date of entry shall be established by the following procedures. The Corporation shall deliver to the Shareholder-Lessee a notice stating that the Corporation intends to enter the unit at an approximate time on a specific date. Entry will be two (2) to seven (7) days after delivery of such Notice of Intent to Enter. Delivery of such Notice may be made by personal delivery, placement of the Notice in the Shareholder-Lessee’s box on the Premises, express mail or overnight delivery, telecopier, e-mail or U.S. mail. If U.S. mail is used, entry will be at least five (5) days after the date of such mailing. Receipt of twenty-four (24) hours notice of intent to enter will be presumed to be reasonable notice in the absence of evidence establishing that such notice is not reasonable under the circumstances. Proper purposes for such entry shall include, but not be limited to (1) to inspect any improvements or alterations to a Unit; (2) to determine whether any improvements or alterations by any Shareholder-Lessee are structural or were made without the required consent of the Board; (3) to conduct maintenance and repairs, which are the responsibility of the Corporation; (4) to determine whether any activities are being conducted in the Units which interfere with the quiet enjoyment of neighbors and other occupants of the project; and (5) to determine or inspect any other matter of maintenance, repair, improvement or restoration which is a right, responsibility, obligation or matter of legitimate interest to the Corporation.”
Following its adoption of Rule 14.09, Ocean Towers sent Klein a letter dated October 17, 2005 in which it again demanded that Klein allow entry into his unit for an inspection and cited to the newly-enacted Rule 14.09 in support of its request. In this letter, Ocean Towers also asked Klein to “call[ ] to set an appointment for inspection” and advised him that if he did not agree, it was “the Corporation’s intent to file a suit against [him] to enforce its right to inspect the premises.”
After Klein still refused to permit an inspection, Ocean Towers filed an action for declaratory relief against both Klein and Drach. In its complaint, Ocean Towers sought a judicial declaration that Klein and Drach were “required, pursuant to the terms of their Proprietary Lease, and Rule and Regulation 14.09, promulgated by Ocean Towers Housing Corporation’s Board of Directors, to forthwith allow the inspection of the window-wall which was installed by Defendants in Ocean Towers Unit No. 1005-P.” The complaint also sought attorney’s fees and costs incurred by the corporation in its prosecution of the suit.
Acting in propria persona, Klein and Drach filed verified answers to Ocean Towers’ complaint. In his denials of the complaint’s allegations, Klein specifically “denie[d] that [Ocean Towers] had power to promulgate Rule and Regulation 14.09 in the manner it did.” In support of this denial, Klein cited to Civil Code section 1357.130 which requires, among other things, that the board of directors of a common interest development provide written notice of a proposed rule change to members at least 30 days before making the change, and deliver notice of the rule change to members within 15 days of making the change. (Civ. Code, § 1357.130, subds. (a) & (c).) Klein alleged in his answer that Ocean Towers failed to comply with these statutory notice procedures in promulgating Rule 14.09.
Civil Code section 1357.130 states, in relevant part:
The trial court set the matter for a one-day bench trial on October 10, 2006. Prior to the start of trial, the parties submitted trial briefs. In its brief, Ocean Towers did not specifically refer to Rule 14.09 in asserting that it had a right to inspect the window-wall installed by Klein. Rather, Ocean Towers argued that it should be granted declaratory relief under Civil Code section 1954, which allows a landlord to enter a dwelling unit “pursuant to court order,” and under a common law implied covenant of good faith and fair dealing in the Proprietary Lease. In their trial brief, Klein and Drach did not make any mention of Civil Code section 1357.130 or any alleged violation of statutory law in Ocean Towers’ enactment of Rule. 14.09. Rather, the sole argument asserted by Klein and Drach was that Ocean Towers failed to comply with the terms of Rule 14.09 by not providing notice of “an approximate time on a specific date” for its proposed inspection. At the start of the trial, Klein and Drach made a motion for judgment on these grounds which the court denied.
At trial, the only witnesses called to testify were William Krisel, the original building architect, and Klein. Mr. Krisel testified that he believed it was important for Ocean Towers to inspect the window-wall installed by Klein for various habitability and safety related reasons, including the possibility of air infiltration, water infiltration, improper glass, and improper installation. Mr. Krisel stated that Klein’s unit was located on the tenth floor of a 16-story high-rise building. According to Mr. Krisel, if the window-wall was not properly installed, it could “easily blow out” or “easily fall out,” and thus, pose “a danger to the rest of the people in the building and to the occupants who occupy this unit.” Mr. Krisel also testified that he believed that compliance with the building code standards of the City of Santa Monica was not sufficient because Ocean Towers’ standards for its window-walls far exceeded the minimum standards of the City.
During his examination, Klein testified that he initially invited Ocean Towers to inspect the window-wall, but changed his mind once he was informed that Mr. Krisel would be performing the inspection. Klein indicated that his concern about Mr. Krisel was that he was a member of the Board and given Klein’s vocal opposition to the Board, he believed Mr. Krisel was “not looking to inspect,” but “to find fault.” Klein also testified that Ocean Towers never advised him that it intended to enter his unit at “an approximate time, on a specific date” for the inspection. Klein admitted, however, that he received and responded to all of Ocean Towers’ written requests for an inspection and that every time he received a letter from Ocean Towers requesting the right to inspect, he wrote back denying that right. As Klein stated to Ocean Towers’ counsel, “I believe you do not have a right to inspect, otherwise I would have let you inspect.”
In addition to hearing the oral testimony, the trial court admitted into evidence each of the exhibits offered by Ocean Towers. These exhibits included Rule 14.09, the Proprietary Lease, the City of Santa Monica’s signed inspection form for Klein’s new window-wall, and Ocean Towers’ various letters to Klein requesting entry into his unit. All of the exhibits were admitted into evidence without any objection from Klein or Drach. After closing argument, the court took the matter under submission.
On November 7, 2006, the trial court entered judgment in favor of Ocean Towers and against Klein and Drach. In its judgment, the court found that Ocean Towers “sought to enter the Defendants’ unit to inspect the wall-window installed by Defendant Klein to determine whether it met the standards established in the original design by the original architect” and that the “undisputed testimony established that the original building standards for this window-wall exceed those established by the Santa Monica Building Department.” The court further found that Ocean Towers “sent Defendant [Klein] various letters over the course of several weeks demanding to inspect” and that “Klein refused each request, denying that [Ocean Towers] had any authority to inspect over his objections.” The court also stated that “[a]t trial, Defendants did not contest the validity of Rule 14.09. Rather, Defendants argued that the requested relief should be denied as [Ocean Towers] failed to comply with the notice requirements of Rule and Regulation 14.09.” Granting judgment in favor of Ocean Towers, the court declared that “pursuant to Ocean Towers Housing Corporation’s Rule and Regulation 14.09, Ocean Towers Housing Corporation has the right to inspect the window-wall which was installed in Unit 1005-P in August 2005, and may do so pursuant to the requisite notice described therein.”
On November 22, 2006, Klein and Drach filed a motion for a new trial. Their motion was based on various statutory grounds, including an alleged insufficiency of evidence to justify the decision. In support of this argument, Klein and Drach asserted that the “principal legal issue before the Court was the validity of Rule 14.09 as enacted and as applied in this case” and that “[n]o evidence was offered . . . that prior to enacting Rule 14.09[,] the Board of Directors complied with Civil Code sections 1357.130(a) and 1357.130(c).” The trial court took the motion for a new trial under submission without hearing oral argument and thereafter denied the motion on all grounds.
On January 9, 2007, Ocean Towers filed a motion for attorney’s fees pursuant to the Proprietary Lease and Civil Code section 1717. Ocean Towers argued that it was entitled to recover its attorney’s fees under Article 9.05 of the Proprietary Lease which provides that “[i]n the event of any action between the parties hereto seeking enforcement of any of the terms and conditions of this Lease, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to costs and reasonable attorney’s fees.” On February 7, 2007, the trial court granted the motion, awarding Ocean Towers attorney’s fees in the amount of $60,000 as against Klein and in the amount of $6,000 as against Drach.
Klein and Drach filed a timely appeal.
DISCUSSION
I. Standard of Review
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We review the trial court’s resolution of factual issues under the “substantial evidence” standard of review. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 CalApp.4th 452, 462.) “‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) In applying this standard, we view the entire record in the light most favorable to the prevailing party to determine whether there is substantial evidence to support the trial court’s findings. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) We do not consider issues of credibility or whether contrary inferences may be drawn from the evidence. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) Our authority begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, that will support the judgment. (Estate of Leslie (1984) 37 Cal.3d 186, 201.)
II. Declaratory Relief Judgment
A. Validity of Rule 14.09
In their appeal, Klein and Drach argue that the trial court erred in granting relief under Rule 14.09 because Ocean Towers did not validly enact Rule 14.09 in accordance with Civil Code section 1357.130. In particular, they contend that Ocean Towers failed to provide tenants with written notice of the rule prior to enacting it nor did it distribute copies of the rule to tenants after its adoption by the Board. Ocean Towers, on the other hand, asserts that Klein and Drach “waived” their right to raise this issue on appeal because they either stipulated to the validity of Rule 14.09 at trial or failed to challenge the validity of Rule 14.09 at trial.
With respect to whether Klein and Drach stipulated to the validity of Rule 14.09, Ocean Towers argues that there were two statements made at trial that reflect the stipulation. The first statement was made by counsel for Klein and Drach when he advised the trial court that his clients “stipulated to the facts in the complaint.” Ocean Towers contends that because the complaint included the fact that “[p]ursuant to the powers granted to it in the Lease and its By-Laws, the Corporation promulgated Rule and Regulation 14.09,” this means that Klein and Drach stipulated to the validity of Rule 14.09. On its face, however, this factual allegation does not assert that Ocean Towers promulgated Rule 14.09 in accordance with statutory law. Rather, it asserts that Ocean Towers promulgated Rule 14.09 in accordance with the terms of the Proprietary Lease and the corporation’s By-Laws. A stipulation to this alleged fact thus cannot be considered an unambiguous stipulation to the legal validity of Rule 14.09.
The second alleged stipulation was made by Klein when he testified at trial as follows: “I can’t refuse to allow them to inspect. They have the key to the unit. They have Rule 14.09.” Given that Klein testified immediately thereafter that he believed Ocean Towers did “not have a right to inspect,” his statement that he could not refuse to allow an inspection because “[t]hey have Rule 14.09” is at least ambiguous. At best, Klein’s statement was an implied concession that he was not challenging the validity of the rule. Ultimately, however, we need not decide whether this statement constituted a binding stipulation that Ocean Towers properly enacted Rule 14.09. This is because we conclude that Klein and Drach forfeited their right to challenge the validity of Rule 14.09 on appeal by failing to raise the issue at trial.
“The general rule is that a party to an action may not for the first time on appeal change the theory upon which the case was tried. [Citations.]” (Curcio v. Svanevik (1984) 155 Cal.App.3d 955, 960.) This includes asserting a new theory of defense. (Id. at pp. 960-961.) The rule precluding a change of theory on appeal reflects the principle of fairness to both the trial court and the opposing party. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.) “Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.]” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) Therefore, “‘“[a]n appellate court will ordinarily not consider . . . erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . ”’” (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.) As our Supreme Court has observed, “[a]lthough the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture’. . .” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) This is because “a person who fails to preserve a claim forfeits that claim” whereas “a waiver is the ‘“intentional relinquishment or abandonment of a known right.”’ [Citations.]” (Ibid.)
In this case, Klein and Drach forfeited their right to challenge the validity of Rule 14.09 on appeal by failing to take any action to raise the issue at trial. At no point prior to judgment did they seek a ruling on whether Rule 14.09 had been properly promulgated. They did not raise the issue in their trial brief, in their motion for judgment, or in any of their counsel’s oral arguments to the court. Rather, their sole theory of defense at trial was that Ocean Towers failed to comply with the terms of Rule 14.09 by not providing Klein with notice of “an approximate time on a specific date” for its proposed inspection. Indeed, in closing argument, counsel for Klein and Drach stated that “the only relevant inquiry here, based on the allegations of the complaint and the requested relief is whether there was compliance with the Plaintiffs’ own Rules and Regulations promulgated by its Board.” Rather than raise the validity of Rule 14.09 as an issue, this defense of non-compliance implicitly assumed that the rule was validly promulgated and that the only issue was whether the rule was properly applied in this case.
Klein and Drach also failed to present any evidence at trial as to whether Ocean Towers properly enacted Rule 14.09. In fact, neither side offered any evidence about the manner in which the rule was promulgated. The only testimony that remotely related to the validity of the rule was Klein’s statement that he saw the rule posted “behind glass, but . . . never got a copy” and when he asked for a copy, “they wouldn’t give [him] one.” This testimony, however, was far too vague and inconclusive to have put Ocean Towers or the court on notice that the legal validity of the rule was being challenged at trial. Moreover, counsel for Klein and Drach never mentioned this testimony in closing argument, but rather maintained that the sole issue before the court was Ocean Towers’ compliance with the rule.
Klein and Drach suggest that they did not contest the legal validity of Rule 14.09 at trial because Ocean Towers “abandoned” the rule as its basis for relief at the start of trial and instead sought relief solely under Civil Code section 1954. This argument, however, is entirely inconsistent with the position taken by Klein and Drach in trying their case. Their sole theory of defense at trial was Rule 14.09 and Ocean Towers’ alleged failure to comply with the terms of the rule. It is rather nonsensical for Klein and Drach to now assert that Rule 14.09 was no longer an issue in the case when they maintained throughout the trial that it was the only issue for the court to consider.
After the court entered judgment in favor of Ocean Towers, Klein and Drach did challenge the validity of Rule 14.09 in their motion for a new trial, contending that there was insufficient evidence to establish that the rule was properly enacted. At that point, however, their challenge was untimely. It is true that in a motion for a new trial on the grounds that the decision is against law (as opposed to unsupported by sufficient evidence), a party may raise a new legal theory that was not asserted at trial. (Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15-16.) However, new legal theories are permitted in post-trial motions only “so long as the new theory presents a question of law to be applied to undisputed facts in the record.” (Id. at p. 15; see also Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653-1654 [rejecting claim that “legal challenges may be presented for the first time by way of posttrial motion and will be treated as if raised before the verdict”].)
In this case, the question of whether Ocean Towers validly promulgated Rule 14.09 was not based on “undisputed facts in the record.” Rather, the determination of this legal issue depended on unresolved factual inquires such as whether and how Ocean Towers notified residents of the proposed rule prior to enacting it and whether and how Ocean Towers provided notice of the rule after its enactment. Other than Klein’s vague statement that Ocean Towers refused to give him a copy of the rule upon request, no evidence was offered at trial about the manner in which the rule was promulgated or presented to residents. (See Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 500 [Since evidence in support of appellants’ legal argument “was not brought forth until the motion for new trial, the argument can be rejected here, as it was in the trial court, as unsupported by the record.”].) Because the legal validity of Rule 14.09 was not challenged at trial and could not be resolved on undisputed facts in the record, Klein and Drach were precluded from raising the issue in their motion for a new trial. Accordingly, they also have forfeited their right to assert the argument here.
B. Compliance with Rule 14.09
Alternatively, Klein and Drach contend that the trial court erred in granting declaratory relief under Rule 14.09 because Ocean Towers failed to comply with the notice requirements of the rule. Specifically, they assert that none of the letters that Ocean Towers sent to Klein requesting an inspection of the new window-wall set forth “an approximate time on a specific date” for the inspection, as is required by the terms of Rule 14.09. They argue that until Ocean Towers complies with the time and date provision of Rule 14.09, the corporation is not entitled to seek declaratory relief regarding its right of entry under the rule.
This argument is unavailing. The trial court did not grant declaratory relief based on any finding that Ocean Towers had complied with the notice provisions of Rule 14.09. Rather, the court granted relief based on a finding that Ocean Towers had a right of entry pursuant to that rule. The way in which Ocean Towers may now enforce that right of entry is by following Rule 14.09’s particular notice procedures. Indeed, in its judgment, the court specifically declared that “pursuant to Ocean Towers Housing Corporation’s Rule and Regulation 14.09, Ocean Towers . . . has the right to inspect the window-wall which was installed in Unit 1005-P in August 2005, and may do so pursuant to the requisite notice described therein.” (Emphasis added.) Ocean Towers therefore did not need to prove past compliance with the enforcement provisions of Rule 14.09 in order to obtain declaratory relief. It simply needed to prove that, pursuant to the rule, it had a right of entry into Klein’s unit. Because the trial court’s ruling required Ocean Towers to comply with the notice provisions of Rule 14.09 post-judgment, Klein and Drach cannot assert alleged past non-compliance with the rule to establish a legal error.
Therefore, based on the evidence and arguments presented by the parties at trial, we conclude that the trial court did not err in granting declaratory relief to Ocean Towers pursuant to Rule 14.09.
Because we conclude that the trial court did not err in granting relief pursuant to Rule 14.09, we need not address Klein’s and Drach’s alternative arguments regarding whether declaratory relief was proper under Civil Code section 1954 or under a common law implied covenant of good faith and fair dealing.
III. Attorney’s Fees Award
Klein and Drach also appeal the trial court’s award of attorney’s fees, asserting that Ocean Towers’ action for declaratory relief was not an action to “enforce” the contract under the terms of the Proprietary Lease and the statutes governing attorney’s fees. “The determination of the legal basis for an award of attorney fees is a question of law that we review de novo. [Citation.]” (Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 921.)
Civil Code section 1717 permits a prevailing party to recover its attorney’s fees “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded . . . to the prevailing party . . . .” (Civ. Code, § 1717, subd. (a).) In this case, the contract providing for the recovery of attorney’s fees is the Proprietary Lease which states that the prevailing party is entitled to its attorney’s fees “[i]n the event of any action between the parties hereto seeking enforcement of any of the terms and conditions of this Lease.” The Proprietary Lease incorporates by reference all of the Rules and Regulations adopted by Ocean Towers, including Rule 14.09.
Relying on the words “enforce” and “enforcement” as used in Civil Code section 1717 and the Proprietary Lease, Klein and Drach argue that Ocean Towers’ action was not one to “enforce” the contract because they were “not forced to do anything” as a result of the court’s judgment. Rather, they assert, the judgment spoke “only in declaratory terms.” This argument is without merit. California courts repeatedly have held that a declaratory relief action that seeks to establish the parties’ rights under a contract is an action to enforce the contract. (Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 263 [“Despite its declaratory relief nature, this action was clearly one to enforce the parties’ rights under the lease.”]; Milman v. Shukhat (1994) 22 Cal.App.4th 538, 545 [Civil Code “section 1717 does apply, even though the relief sought by respondents was of a declaratory nature.”].) The fact that Ocean Towers filed suit for a declaration of its rights under the Proprietary Lease, rather than a suit for breach, does not defeat the applicability of the attorney’s fees provision.
Klein and Drach also contend that the action cannot be considered one to “enforce” the contract because Ocean Towers’ counsel admitted that the suit was not an “enforcement action.” Specifically, they assert that two sentences contained in Ocean Towers’ written filings – one in its motion to strike Klein’s amended answer to the complaint and one its trial brief – constitute binding “judicial admissions” by Ocean Towers that its action was not an “enforcement action” for attorney’s fees purposes. We disagree. “[S]tatements of counsel in argument are not deemed judicial admissions unless they have the formality of an admission or a stipulation. [Citations.]” (People v. Kiney (2007) 151 Cal.App.4th 807, 815.) Accordingly, to constitute a binding judicial admission, an oral statement of counsel must be “an unambiguous concession of a matter then at issue” and must “not [be] made improvidently or unguardedly. [Citations.]” (Fassberg Construction Co. v. Housing Authority of Los Angeles (2007) 152 Cal.App.4th 720, 752.) If the statement is “‘in any degree ambiguous,’” it may not be treated as a judicial admission. (People v. Jackson (2005) 129 Cal.App.4th 129, 161.)
The statement at issue in Ocean Towers’ motion to strike is as follows: “Paragraph 12, Page 7 . . . should be stricken as it does not constitute new matter in defense of Defendant’s complaint, or alternatively, does not constitute an ‘enforcement action’ as that term is used in CC Section 1369.520, as Plaintiff’s complaint is not an enforcement action, but is merely designed to effectuate a landlord’s inspection of a structural alteration.”
In this case, Ocean Towers’ counsel never stipulated or admitted that the lawsuit was not an action to “enforce” the Proprietary Lease pursuant to Civil Code section 1717. In fact, the two statements on which Klein and Drach rely to support their argument have nothing to do with the recovery of attorney’s fees. Rather, these statements were based on Ocean Towers’ argument that the suit was not brought to enforce the “governing documents” of a common interest development, as that term is used in Civil Code section 1354, and thus, it was not subject to the ADR provisions of the Davis-Stirling Common Interest Development Act. Because these statements cannot be construed as an “unambiguous concession” that Ocean Towers’ declaratory relief action was not an action to enforce the contract for attorney’s fees purposes, we decline to treat them as binding judicial admissions. We conclude that the trial court did not err in awarding attorney’s fees to Ocean Towers pursuant to Civil Code section 1717.
DISPOSITION
The judgment is affirmed. Ocean Towers shall recover its costs on appeal.
We concur: PERLUSS, P. J. WILEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“(a) The board of directors shall provide written notice of a proposed rule change to the members at least 30 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. . . .
“(b) A decision on a proposed rule change shall be made at a meeting of the board of directors, after consideration of any comments made by association members.
“(c) As soon as possible after making a rule change, but not more than 15 days after making the rule change, the board of directors shall deliver notice of the rule change to every association member. . . .”
The statement at issue in Ocean Towers’ trial brief is as follows: “The gravamen of this case is to allow the landlord to inspect the subject property pursuant to the lease between the parties, not to enforce the ‘governing documents’ of a common interest development.”