LANDVALUE 77, LLC v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY








Filed 2/23/11 Certified for partial publication 3/16/11 (order attached)










IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

LANDVALUE 77, LLC et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents; KASHIAN ENTERPRISES, L.P., Real Party in Interest and Respondent.

F058451 (Super. Ct. Nos. 07CECG02872 & 07CECG02874) OPINION

STORY CONTINUE FROM PART I….


It is well established that the existence of an implied agreement is a question of fact. (E.g., Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 829.) Furthermore, where the question is the existence of a contract (as opposed to its construction or validity) and the evidence is conflicting or admits more than one inference, a question of fact is presented. (Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407.) One reason that the existence of a particular contract or agreement presents a question of fact is that the existence of an element essential to the formation of the contract--mutual assent--is a question of fact. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141; see BAJI No. 10.60 [mutual consent].)
Based on the foregoing principles, we conclude that whether a single contract exists for purposes of section 1090 presents a question of fact that depends upon the assent of the multiple parties to that single contract. In this case, the multiple parties are the Board of Trustees, CSUF Association, Kashian Enterprises, and Esparza or his company, Maya Cinemas. Consequently, for appellants to establish that the Campus Pointe project involved a single contract, they must establish that the parties mutually assented to that single contract. In other words, the existence of a single contract is the product of the mutual understanding of the parties and the fact that the contracts are interrelated does not necessarily establish that there is one agreement.
Here, appellants have cited no evidence that the assent of CSUF Association and Kashian Enterprises to the Development Agreement in April 2006 and the Ground Lease in June 2006 was in any way connected to Esparza's assent to the Theater Sub-sublease, which was finalized in August 2006. The record shows that the idea for a theater as part of the Campus Pointe project was included in CSUF Association's 2002 invitation to bid and, thus, the Development Agreement and the Ground Lease contemplated the inclusion of a theater in the commercial part of the project. This evidence might establish that a theater was an integral part of the project. It does not establish, however, that the parties understood that Esparza or Maya Cinemas would build and operate the proposed theater and that this understanding was a basis or a condition for the formation of the Development Agreement or the Ground Lease.
In short, appellants have not shown that the record required the trial court to find that the Development Agreement, the Ground Lease, the Ground Sublease and the Theater Sub-sublease were part of a single contract between multiple parties. Accordingly, appellants have failed to show reversible error under their single-contract theory.
Appellants reliance on Thomson v. Call, supra, 38 Cal.3d 633 to support their single-contract theory does not contradict the conclusion that the existence of a single contract is a question of fact or compel this court to decide, as a matter of law, that a single contract existed in this case. In Thomson v. Call, the trial court determined that a single contract existed between multiple parties and the California Supreme Court accepted that determination because, among other things, the evidence showed that the transactions to be completed by the parties were contingent upon the other parties' performance. (Thomson v. Call, supra, at pp. 644-645.) Thus, Thomson v. Call is a case where the appellate court accepted the lower court's finding of fact because it was supported by sufficient evidence, rather than a case where the appellate court made an independent legal determination that a single agreement existed.
Furthermore, Thomson v. Call is distinguishable from this case because there is no evidence that the completion of the Campus Pointe project was contingent upon the proposed theater being completed and operated by Esparza or his company. In other words, the project could have gone forward regardless of what company built and ran the theater. In Thomson v. Call, the city's approval of the permits required by the project were dependent upon the city receiving the councilmember's land.
Therefore, the principles set forth in Thomson v. Call do not require us to rule as a matter of law that a single contract exists in this case.
Similarly, Campagna v. City of Sanger, supra, 42 Cal.App.4th 533 is not a case that compels us to treat the various documents in this matter as a single contract. In that case, a deputy city attorney negotiated an agreement with a San Francisco law firm to represent the city on a contingency fee basis in a well contamination case. (Id. at pp. 535-536.) The deputy city attorney also worked for a local law firm and entered a separate oral agreement with the San Francisco firm that his firm would receive 35 percent of the total contingency fee as a referral fee. (Id. at pp. 536-537.) After the contamination lawsuit was resolved, the city refused to pay the percentage of the contingency fee owed to the deputy city attorney and deposited that portion into a bank account. (Ibid.) The deputy city attorney was, by then, no longer working for the city, and he and his firm sued to obtain the money. (Id. at p. 537.) The trial court determined that the activity of fee negotiation did not fall within the ambit of section 1090 and awarded the law firm the money. (Campagna, at p. 537.)
This court reversed, finding as a matter of law that the deputy city attorney was acting in his capacity as a city attorney^[1] when he negotiated with the San Francisco firm for a referral fee. (Campagna v. City of Sanger, supra, 42 Cal.App.4th at p. 541.) Based on this finding, we concluded that the deputy city attorney had violated section 1090 and, therefore, had no rights in the $420,000 referral fee. (Campagna, at p. 542.) Although Campagna v. City of Sanger is a case where this court made a finding of fact as a matter of law, the reasoning of that case does not compel a finding that the Campus Pointe project involved a single agreement among multiple parties.
The outcome in Campagna v. City of Sanger was not dependent upon a single-contract theory. The opinion described the referral fee arrangement as a separate oral agreement between the deputy city attorney's firm and the San Francisco law firm. (Campagna v. City of Sanger, supra, 42 Cal.App.4th at p. 536.) This court concluded that the referral fee agreement was subject to section 1090 because the deputy city attorney negotiated it in his official capacity. (Campagna, at p. 541.) Consequently, the application of section 1090 was not dependent upon there being a single tripartite contract among the city and the two law firms.

3. Focus on the whole transaction

Appellants also attempt to establish error by arguing the trial court's decision to void only the Theater Sub-sublease â€