Seeley v. Fox Partners

Filed 5/16/06 Seeley v. Fox Partners CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Plaintiff Richard Seeley and defendants Fox Partners, L.P. (Fox Partners), Mission Car Wash, L.P. and Vernon Bowen are owners of adjoining property in the Mission Plaza Shopping Center in Santa Rosa (shopping center). The shopping center is governed by a declaration of restrictions (CC&Rs). The parties originally disputed the proper allocation of numerous expenses but on appeal question only the proper interpretation of the provision in the CC&Rs governing depreciation of common area improvements. Seeley contends the trial court erred in precluding him from recovering such depreciation from his adjoining property owners. We conclude that neither of the extreme positions asserted by the parties in the trial court was correct and that, although Seeley likely was entitled to partial relief, the trial court correctly decided the issue as it was presented below. Seeley also objects to a posttrial order awarding Fox Partners fees and costs under Code of Civil Procedure section 998.[1] We affirm.

Factual and Procedural History

The shopping center is divided into four lots and two common areas. A parking lot is designated as common area A, and an access road is designated as common area B. In 1986, McDonald's Corporation (McDonald's), then the owner of lots 1, 2, and 3, entered into the CC&Rs with Mission Plaza 12 Ltd. (Mission Plaza 12), the owner of lot 4 and of the common areas. Section III of the CC&Rs, entitled â€