Modification: XPO Logistics Freight, Inc. v. Hayward Property, LLC

XPO LOGISTICS FREIGHT, INC.,

Plaintiff, Cross-defendant and Appellant,

v.

HAYWARD PROPERTY, LLC et al.,

Defendants, Cross-complainants and Appellants.

No. A157687

(Alameda County Super. Ct.

Nos. HG16841187, RG16843893)

XPO LOGISTICS FREIGHT, INC.,

Plaintiff, Cross-defendant and Appellant,

v.

HAYWARD PROPERTY, LLC et al.,

Defendants, Cross-complainants and Respondents.

A158291, A159299

(Alameda County Super. Ct.

Nos. HG16841187, RG16843893)

California Courts of Appeal

First Appellate District

Division Four

Filed July 11, 2022

ORDER MODIFYING OPINION

AND DENYING REHEARING;

NO CHANGE IN JUDGMENT

CERTIFIED FOR PARTIAL PUBLICATION

Trial Judges: Honorable Ioana Petrou

Honorable Evelio Grillo

Counsel for Plaintiff, Cross-defendant and Appellant: STUART KANE LLP

Donald J. Hamman

McALPINE PC

Douglas W. Eyre

Mark L. McAlpine

BUCHALTER, APC

Glenn P. Zwang

Alexandra Grayner

Counsel for Defendants, Cross-complainants and Appellants: GREENBERG TRAURIG, LLP

Eric V. Rowen

Scott D. Bertzyk

THE COURT:

The opinion filed herein on June 17, 2022 is modified as follows:

1. On page 8, lines 9-10, after the words "The correctory deed has not been recorded," delete the comma and the words "allegedly by inadvertence."

2. On page 12, line 4, at the end of the parenthetical, after "69 Cal.2d 33, 37" add "(PG&E)."

3. On page 13, line 10, add the following as footnote 7 at the end of the sentence concluding with the words "as a matter of law" (and renumber all subsequent footnotes accordingly):

⁷ Hayward contends that, under the common law rule articulated in PG&E, supra, 69 Cal.2d 33, as applied in Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-115, a court may never take judicial notice of the proper interpretation of a contract at the pleadings stage. However, the rule of PG&E does not categorically bar a court from determining the correct interpretation of a contract at the pleadings stage. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1122 [court may, after conditionally accepting and considering proffered parol evidence, determine that "the parol evidence alleged must be disregarded because, for whatever reason, the contract is not reasonably susceptible of the interpretation . . . alleged"].) Revenue and Taxation Code sections 327 and 11911.1, read together, mandate a specific rule for the interpretation of deeds and other conveyances, overriding any general common law rule to the contrary.

4. On page 17, line 3, add the following as footnote 10 at the end of the sentence concluding "that is all that the judgment correctly determines" (and renumber all subsequent footnotes accordingly) :

¹⁰ Hayward contends that the trial court erred in granting judgment on the pleadings without adjudicating its affirmative defenses or granting it leave to amend its cross-complaint. However, Hayward has not identified any proposed new factual allegations or affirmative defense that could possibly defeat XPO's right to a declaratory judgment.

5. On page 19, lines 2-3, replace the words "Hayward's own deed (i.e., the 2003 correctory deed, which incorporates the 2002 bankruptcy legal description)" with the words "the document on which Hayward itself relies (i.e., the 2002 bankruptcy legal description)."

There is no change in the judgment.

The petition for rehearing is denied.

Dated: July 11, 2022 POLLAK, P. J.