Filed 10/27/15 San Diego Unified Port Dist. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAN DIEGO UNIFIED PORT DISTRICT, D067684

Petitioner, (San Diego County Super. Ct. No. 37-2013-00040725- v. CU- CO-CTL)

THE SUPERIOR COURT OF SAN

DIEGO COUNTY,

Respondent;

FIFTH AVENUE LANDING, LLC,

Real Party in Interest.

ORIGINAL PROCEEDING in mandate. Randa Trapp, Judge. Petition denied.

Thomas A. Russell, Simon M. Kann; Liedle, Lounsbery, Larson & Lidl, Matthew

J. Liedle, Erich J. Lidl and Tami G. Vail for Petitioner.

No appearance for Respondent.

Schwartz Semerdjian Ballard & Cauley, Schwartz Semerdjian Cauley & Moot,

Ross J. Schwartz, John S. Moot, Sarah Brite Evans; Higgs, Fletcher & Mack and Victoria

E. Fuller for Real Party in Interest. San Diego Unified Port District (Port District) issued a coastal development

permit (CDP) to Fifth Avenue Landing, LLC (FAL), a developer of property along the

South Embarcadero San Diego bayfront. The CDP requires FAL to construct a walkway

that is an "extension of the Hilton San Diego Convention Center Hotel's promenade . . . ."

The Port District also leased FAL property at Fifth Avenue and Marina Park Way. The

lease requires FAL to complete construction as defined in the CDP.

A dispute arose between the Port District and FAL about the required width of the

walkway. FAL contends the CDP and lease require a 15-foot-wide walkway. The Port

District contends the walkway must be 35 feet wide. The difference in cost between the

two is about $350,000.

To avoid a possible default under its lease, FAL constructed a 35-foot-walkway

under a reservation of rights, and then sued the Port District for breach of the lease.

The Port District moved for summary judgment on four alternative procedural

grounds: (1) FAL's exclusive remedy to challenge the CDP was a writ petition under

Public Resources Code section 30802; (2) by completing construction, FAL waived its

rights; (3) FAL failed to file a government claim; and (4) the Port District is immune for

its "discretionary" decisions.

The trial court denied the Port District's motion. The Port District filed a petition

for a writ of mandate; this court issued an order to show cause.

We conclude the trial court reached the correct result on the four issues the Port

District raised, although on some issues our reasoning differs from the trial court's

rationale. To guide further proceedings in the trial court, we also address an issue

2 presented for the first time in the Port District's reply to FAL's return. There, the Port

District asserts the CDP, lease, and extrinsic evidence establishes as a matter of law FAL

was required to construct a 35-foot-wide walkway.

As we explain, on summary judgment a trial court may properly interpret a written

contract as a matter of law, even when conflicting inferences arise, so long as the

extrinsic evidence itself is undisputed. However, the Port District did not seek summary

judgment on such grounds in the trial court, and we cannot consider the new issue for the

first time here. (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335-336.)

FACTUAL AND PROCEDURAL BACKGROUND

The Port District is a government entity established by the Legislature to acquire,

construct, and maintain harbor works and improvements, and to promote commerce,

navigation, fisheries and recreation of the tidelands and navigable waters of San Diego

Bay. The Port District has responsibility for approving land use decisions for the land

surrounding San Diego Bay and, as part of this responsibility, the Port District prepared a

port master plan. Persons seeking to develop land under the Port District's authority must

obtain a CDP.

The Port District also owns land on the bayfront. The dispute in this case concerns

one of those parcels, behind the convention center and between the Hilton and Marriott

Hotels. FAL leases this land from the Port District.

3

A. FAL's Water Transportation Center Project

In 2006 FAL sought to build a water transportation center, hotel, and public park

on the leased premises. This development was to occur in phases, with the water

transportation center built first and the hotel later.

In 2006 the Port District and FAL amended their lease. This amendment provides

improvements must be built in accordance with plans approved by the Port District. It

also requires any improvements must be "consistent" with those of the adjacent Hilton

Hotel, which was then under construction. The amendment provides FAL shall construct

"Phase One improvements," including "a fifteen (15) foot wide concrete walkway

contiguous to Convention Way and Marina Park Way . . . ."

FAL submitted plans for the water transportation center, which included a

proposed 15-foot-wide walkway. The Port District required FAL to revise the plans,

including designing the walkway to be 35 feet wide to be consistent with the Hilton Hotel

promenade, which is 35 feet wide, and the Port's Master Plan and Urban Design

Guidelines, which also require a minimum 35-foot promenade.

The Port District approved FAL's plans for the water transportation center, subject

to certain conditions. These conditions allowed FAL to construct a temporary 15-foot

asphalt walkway. Another condition specified if FAL did not start constructing the

planned hotel within three years, FAL would be required to construct a permanent 35-

foot-wide walkway:

"4. FAL shall construct a temporary 15ft wide asphalt walkway along the waterfront as an extension of the promenade from the

4 Water Transportation Center to Marina Parkway. FAL shall submit improvement plans for District review prior to construction.

"5. In the event that FAL has not started construction of the hotel project within three years by August 7, 2010, FAL must substantially comply with the District's Port Master Plan and the South Embarcadero Urban Design and Signage Guidelines and Amendment. FAL shall construct the promenade a minimum 35 feet in width per public access easement requirement and Port Master Plan. The promenade plan shall follow the single uniform design that is consistent with the approved design of the Hilton Hotel development. The promenade shall be extended from the Water Transportation Center to Marina Parkway." (Italics added.)

The temporary asphalt walkway was a concession to FAL. As explained in board

meeting minutes, FAL's later construction of the planned hotel would require the

walkway to be excavated. Allowing FAL to construct a temporary asphalt walkway,

coupled with an obligation to construct a permanent concrete walkway later, would save

FAL money. Condition No. 5 unambiguously states, however, that FAL was required to

build the permanent 35-foot wide concrete promenade if hotel construction did not start

within three years.

B. The CDP

The Port District adopted a resolution to issue a coastal development permit to

FAL. Consistent with the approved plans and board meeting discussion, the resolution

describes the project as including a "15-foot wide waterfront walkway as an extension of

the Hilton San Diego Convention Center Hotel's promenade to the remainder of the South

Embarcadero." The resolution also requires FAL to "replace the temporary asphalt

walkway with a permanent concrete walkway consistent with the approved design of the

5 Hilton San Diego Convention Center [H]otel Development by no later than September

30, 2011 . . . ."

The Port District also sent a letter to FAL stating, "The plans you submitted for

approval for the proposed Water Transportation Center and site improvements at Fifth

Avenue Landing have been approved subject to the following conditions:

"4. FAL shall construct a temporary 15ft wide asphalt walkway along the waterfront as an extension of the promenade form the Water Transportation Center to Marina Parkway. . . .

"5. In the event that FAL has not started construction of the hotel project within three years by August 7, 2010, FAL . . . shall construct the promenade a minimum 35 feet in width per public access easement requirement and Port Master Plan. The promenade plan shall follow the single uniform design that is consistent with the approved design of the Hilton Hotel development."

The Port District issued a CDP for the proposed water transportation center. Page

2 of the CDP provides for a "15-foot wide waterfront walkway as extension of the Hilton

San Diego Convention Center Hotel's promenade to remainder of South Embarcadero."

Page 7 provides, "Permittee shall replace the temporary asphalt walkway with a

permanent concrete walkway consistent with the approved design of the Hilton San

Diego Convention Center Hotel development by no later than September 30, 2011. The

walkway shall extend from the project site, cross Marina Parkway, and connect to the

existing waterfront promenade fronting the Convention Center to create a continuous

connection along the bayfront." Exhibit A to the CDP shows a 15-foot-wide walkway

connecting to a wider 35-foot-wide walkway at the Hilton Hotel site.

6 C. The 2010 Lease

In 2010 FAL sold its lease for the hotel site to the San Diego Convention Center.

At about the same time, FAL also entered into a new lease with the Port District (the

Lease). Section 5 of the Lease, entitled "Construction of Improvements" provides in part:

"Lessee shall complete development of the 'Fifth Avenue Landing Water Transportation Center' Project defined in the Coastal Development Permit ('CDP') issued by Lessor to Lessee, dated September 4, 2007 . . . . Should Lessee fail to comply with any requirement of said CDP shall be considered a Default as per Section 10 of this Lease."

The Lease also provides, "No construction, installation, or removal of any

improvement upon the Leased Premises shall commence without Lessor's prior written

approval. All construction, installations, and removals shall be in accordance with Plans

submitted to and approved in writing by Lessor prior to the commencement of any such

work."

D. FAL Submits an Application for a 15-Foot-Wide Walkway

As required by the Lease, FAL submitted a "Tenant Project Plan Application" to

obtain the Port District's approval to construct the walkway, planned to be 15 feet wide.

The Port District rejected FAL's application, explaining the CDP, master plan, and urban

design guidelines all require a 35-foot-wide walkway:

"[W]e listened to FAL's rationale for submitting a 15 foot walkway and reviewed the documents handed out from the August 7, 2007 Board Meeting. While we understand there was discussion amongst the Commissioners regarding the material of the walkway, the width was not of issue. It was the Board's intent that FAL complete the promenade connection between the Hilton and Convention Center either as part of the Spinnaker Hotel project or upon a date certain, later determined to be September 30, 2011."

7 FAL disagreed. FAL considered the 35-foot-wide walkway a condition of

building its once-planned hotel. Having abandoned its plans to build a hotel, FAL

asserted it was not required to build a 35-foot walkway.

E. Litigation

FAL's lawyer wrote to the Port District's attorney, stating the Port District had

placed FAL in the "untenable position" of either constructing the 35-foot-wide walkway

or risking "being in default of the CDP and/or the lease." FAL's attorney stated FAL

would "proceed with construction of the walkway as demanded by the Port but reserves

all rights relative thereto."

FAL sued the Port District for breach of the implied covenant of good faith and

fair dealing and breach of the Lease. FAL alleged the Port District's failure to approve its

tenant project plan application "was an unfair interference with FAL's right to receive the

benefits of the Lease . . . ." FAL alleged the Port District's failure to approve its tenant

project plan application breached section 4 of the Lease, "related to approval of plans and

specifications." FAL also alleged the Port District breached a Lease provision requiring

mediation as "a precondition to the initiation of any legal action or proceeding."

F. Motion for Summary Judgment

The Port District filed a motion for summary judgment or, in the alternative,

summary adjudication. Characterizing FAL's action as an attack on the CDP's

construction conditions, the Port District asserted summary judgment should be entered

on any of the following four procedural grounds:

8 1. "FAL failed to challenge the applicable Coastal Development Permit pursuant to the Public Resources Code . . . ."

2. "[FAL] waived its right to challenge the CDP by completing construction of the disputed improvement."

3. "The District has immunity against FAL's complaint."

4. "FAL failed to comply with notice requirements under the Government Claims Act . . . ."

Opposing the motion, FAL explained it is not challenging the CDP or seeking to

have the CDP's conditions invalidated. Rather, FAL asserted its lawsuit challenged the

Port District's conduct—as Lessor—in disapproving FAL's tenant application to build a

15-foot-wide walkway.

At the hearing, the Port District's attorney acknowledged there was a factual

dispute whether FAL was required to build a 15- or 35-foot-wide walkway. However,

counsel asserted that factual dispute was not material to the procedural bars raised in the

motion:

"I want to make sure that it's absolutely clear that even though there's a dispute, as you identified, Your Honor, regarding the walkway, and I don't believe or we don't believe that that's a material fact, yes, there is a dispute. But it's not a material fact. [¶] . . . [¶] So the fact that there is this dispute is really not a material dispute. It's just a matter of how they should have proceeded to resolve that dispute. And that's really the point of the motion that we've made. [¶] And how they should have proceeded, Your Honor, is pursuant to the Public Resources Code. . . .[¶] . . . [¶] So the fact that there is a dispute regarding the size of the promenade, Your Honor, is not a material fact preventing this Court from granting the port's motion for summary adjudication based on the fact that they failed to file a writ."

9 The trial court denied the Port District's motion. The court determined FAL was

not challenging the CDP, but rather was suing under the Lease. The court found a triable

issue whether FAL was required to construct a 15- or a 35-foot-wide walkway. In light

of that factual dispute, the trial court stated it could not grant summary judgment on

discretionary immunity. Citing Government Code section 66020, the trial court found

there was a triable issue whether FAL waived its rights by constructing the 35-foot-wide

walkway. The trial court also found there was a "triable issue" whether a series of letters

by FAL's attorneys constituted either a claim or a "claim as presented."

G. Writ Petition

The Port District's writ petition reiterates the same arguments it made in the trial

court. The Port District acknowledges it sought summary judgment "on purely

procedural grounds."

DISCUSSION

I. STANDARD OF REVIEW

To prevail on a motion for summary judgment, a defendant must show that one or

more elements of the plaintiff's cause of action cannot be established or that there is a

complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

Because a motion for summary judgment raises only questions of law, we independently

review the parties' supporting and opposing papers and apply the same standard as the

trial court to determine whether a triable issue of material fact exists. (City of San Diego

v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) "This review consists of 'an

independent assessment of the correctness of the trial court's ruling, [in which we]

10 apply[] the same legal standard as the trial court in determining whether there are any

genuine issues of material fact or whether the moving party is entitled to judgment as a

matter of law.' [Citation.] We need not defer to the trial court and are not bound by the

reasons in its summary judgment ruling; we review the ruling of the trial court, not its

rationale." (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076,

1092.)

II. THE TRIAL COURT CORRECTLY DETERMINED FAL'S ACTION IS FOR BREACH

OF LEASE AND NOT A CHALLENGE TO THE CDP

Under Public Resources Code section 30802, a writ of administrative mandamus is

a landowner's exclusive remedy for challenging the validity of conditions in a coastal

development permit. (City of Berkeley v. 1080 Delaware, LLC (2015) 234 Cal.App.4th

1144, 1150.) Failing to timely pursue that remedy bars the permit holder's challenge to

the validity of the coastal development permit. (Ibid.)

FAL contends a writ of mandamus was not its exclusive remedy here because

FAL is challenging the Port District's conduct as lessor—not the CDP or the Port

District's distinct role as the public entity issuing the CDP.

We agree with FAL that its lawsuit sounds in contract and Public Resources Code

section 30802 does not apply. The Lease expressly incorporates the CDP by reference.

For example, paragraph 5 of the Lease requires FAL to "complete development" of the

project as "defined in the [CDP] issued by Lessor to Lessee." Moreover, the Lease

makes any failure to comply with the CDP a "[d]efault" under the Lease Thus, whatever

11 obligations the CDP imposes on FAL, once the parties entered into the Lease, those

obligations also became contractual duties under the Lease.

Under paragraph 4(b) of the Lease, FAL cannot commence construction of "any

improvement upon the Leased Premises" without the Port District's "prior written

approval" and all such work "shall be in accordance with all applicable laws, regulations,

ordinances, and codes." FAL's lawsuit seeks to enforce these contractual obligations by

alleging: (1) FAL submitted a tenant project plan application to obtain the Port District's

approval, as lessor, to construct a 15-foot-wide walkway, as required under paragraph

4(b) of the Lease; and (2) the Port District breached its lease obligations by refusing to

approve such construction.

The trial court correctly understood FAL is not challenging the validity of the

CDP or any of its conditions. The CDP specifies what FAL has to build, but the Lease

incorporates those specifications by reference and contains the Port District's obligation

as Lessor to allow and approve such construction.

The lessor-lessee relationship between the Port District and FAL distinguishes this

case from those cited by the Port District where courts hold a writ of mandamus is the

exclusive remedy for challenging a permit condition. (E.g., City of Berkeley v. 1080

Delaware, LLC, supra, 234 Cal.App.4th 1144 [challenge to validity of permit condition

restricting residential housing]; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74

[challenge to validity of permit condition requiring granting of an easement and storm

drain], modified by statute as stated in Sterling Park, L.P. v. City of Palo Alto (2013) 57

Cal.4th 1193, 1200; Patrick Media Group, Inc. v. California Coastal Com. (1992) 9

12 Cal.App.4th 592 [challenge to validity of permit condition requiring off-site advertising

signs to be removed]; City of Santee v. Superior Court (1991) 228 Cal.App.3d 713

[challenge to conditions on building permit].)

Even if FAL did waive or forfeit any challenge to the CDP by not filing a

mandamus petition, FAL could still prevail on its breach of contract theory if the CDP,

properly interpreted, only requires a 15-foot-wide walkway. Thus, FAL is suing under

the lease, and not to invalidate the CDP, and therefore the exclusive remedy provision in

Public Resources Code section 30802 does not apply.

III. NO MANDAMUS, NO IMMUNITY, NO WAIVER

Having determined FAL's lawsuit is what it claims to be—an action for breach of

contract—three of the four issues in the Port District's motion are easily resolved.

A. No Exclusive Remedy Under Public Resources Code Section 30802

The trial court correctly determined the exclusive remedy (writ of mandate)

specified in Public Resources Code section 30802 does not apply here because FAL is

not seeking judicial review of the validity of the CDP's conditions.

B. No Immunity

The trial court also correctly determined the immunity issue, although we reach

that result for other reasons. The trial court stated, "Because there is a triable issue as to

what width of walkway was required, the court cannot determine at this point whether

defendant's refusal to approve a 15 foot walkway and require a 35 foot walkway was an

exercise of discretion entitling it to immunity." However, having already determined

FAL's action is one for breach of contract, a more direct answer is governmental

13 immunity does not protect public entities from breach of contract. (Gov. Code, § 814;

Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 153.)

C. No Waiver

Generally, if a property owner complies with an allegedly unreasonable or invalid

permit condition, the owner waives his or her right to challenge it. (Hensler v. City of

Glendale (1994) 8 Cal.4th 1, 19, fn. 9; Pfeiffer v. City of La Mesa, supra, 69 Cal.App.3d

at p. 78.) Government Code section 66020 contains an exception to this waiver rule,

allowing a developer to comply with a condition under protest and proceed with

development while simultaneously challenging the condition. But this exception applies

only to conditions imposed by local agencies that "divest the developer of money or a

possessory interest in property." (Sterling Park, L.P. v. City of Palo Alto, supra, 57

Cal.4th at p. 1207.) It does not apply to conditions imposed by agencies or conditions

that restrict "the manner in which a developer may use its property." (Ibid.) A second

exception applies when an agency imposes new conditions on a permit for a later phase

of a project already underway. (McLain Western #1 v. County of San Diego (1983) 146

Cal.App.3d 772, 777.)

The trial court rejected the Port District's waiver arguments. Citing Government

Code section 66020, the trial court determined there was a "triable issue" whether

constructing a 35-foot-wide walkway waived FAL's rights.

The trial court reached the correct result, although our reasoning differs. Having

determined this is a breach of contract case, the relevant standard for determining waiver

is found in the Lease itself.

14 Paragraph 31 of the Lease is entitled, "Waiver." It provides in part: "[F]ailure on

the part of either party to require or exact the other's full and complete compliance with

any of the Lease covenants, conditions, or agreements shall not be, nor be construed as in

any manner changing the terms, or preventing the enforcement in full, of the provisions

hereof." Under this provision, FAL's failure to require the Port District's "full and

complete compliance" with what FAL construed to be its obligation to construct a 15-

foot-wide walkway "shall not be, nor be construed as" any waiver.

IV. CLAIMS ACT COMPLIANCE

Government Code section 900 et seq.,1 the government Claims Act, establishes

certain conditions precedent to the filing of a lawsuit against a public entity. The Claims

Act applies to tort and contract actions. (City of Stockton v. Superior Court (2007) 42

Cal.4th 730.) Failing to timely present a proper claim for money or damages is fatal to a

plaintiff's lawsuit against a public entity. (DiCampli–Mintz v. County of Santa Clara

(2012) 55 Cal.4th 983, 990.)

A. Requirements for a Valid Claim

A claim is a notice that complies with sections 910 and 910.2. (Phillips v. Desert

Hospital Dist. (1989) 49 Cal.3d 699, 707.) Section 910 requires a claim to set forth all of

the following: (1) "[t]he name and post office address of the claimant"; (2) "[t]he post

office address to which the person presenting the claim desires notices to be sent"; (3)

1 Hereafter, all statutory references are to the Government Code. When referring to statutory subparts in that code, the word "subdivision" is omitted.

15 "[t]he date, place and other circumstances of the occurrence or transaction which gives

rise to the claim asserted"; (4) "[a] general description of the indebtedness, obligation,

injury, damage or loss incurred so far as it may be known at the time of presentation of

the claim"; (5) "[t]he name or names of the public employee or employees causing the

injury, damage, or loss, if known"; and (6) "[t]he amount claimed if it totals less than

[$10,000] as of the date of presentation of the claim, including the estimated amount of

any prospective injury, damage, or loss, insofar as it may be known at the time of the

presentation of the claim, together with the basis of computation of the amount claimed.

If the amount claimed exceeds [$10,000], no dollar amount shall be included in the claim.

However, [the claimant must] indicate whether the claim would be a limited civil case."

The claimant or some person on the claimant's behalf must sign the claim. (§ 910.2.)

The purpose of requiring a plaintiff to submit a pre-lawsuit claim to the public

entity is not to prevent surprise, but to give "the entity an opportunity to promptly remedy

the condition giving rise to the injury, thus minimizing the risk of similar harm to others";

permit "the public entity to investigate while tangible evidence is still available,

memories are fresh, and witnesses can be located"; and permit "early assessment by the

public entity, allow[ing] its governing board to settle meritorious disputes without

incurring the added cost of litigation, and giv[ing] it time to engage in appropriate

budgetary planning." (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 213.)

"Where a claimant has attempted to comply with the claim requirements but the

claim is deficient in some way, the doctrine of substantial compliance may validate the

claim 'if it substantially complies with all of the statutory requirements . . . even though it

16 is technically deficient in one or more particulars.'" (Connelly v. County of Fresno

(2006) 146 Cal.App.4th 29, 38.) Substantial compliance is at least some compliance with

each of the statutory requirements. (Del Real v. City of Riverside (2002) 95 Cal.App.4th

761, 769.) However, "[t]he doctrine of substantial compliance . . . 'cannot cure [a] total

omission of an essential element from the claim or remedy a plaintiff's failure to comply

meaningfully with the statute.'" (Connelly, at p. 38.)

B. Requirements for a Claim as Presented

A "claim as presented" is a claim that is defective in that it fails to comply

substantially with sections 910 and 910.2, but nonetheless puts the public entity on notice

the claimant is attempting to file a valid claim and litigation will result if it is not

resolved. (Alliance Financial v. City and County of San Francisco (1998) 64

Cal.App.4th 635, 643.) "[A] document constitutes a 'claim as presented' . . . if it discloses

the existence of a' claim' which, if not satisfactorily resolved, will result in a lawsuit

against the entity." (Phillips v. Desert Hospital Dist., supra, 49 Cal.3d at p. 709.)

A claim as presented triggers a duty on the part of the governmental entity to

notify the claimant of defects in the claim. A failure to notify the claimant of deficiencies

waives any defense as to its sufficiency. (Phillips v. Desert Hospital Dist., supra, 49

Cal.3d at p. 709; §§ 910.8, 911.)

C. FAL's Lawyer's Letter Is a Claim as Presented

The trial court determined three letters by FAL and/or its attorneys constituted

either a claim or a claim as presented. We agree the trial court correctly denied summary

judgment on this ground, although our reasoning differs. Claims compliance cannot be

17 based on piecing together a series of letters. Dilts v. Cantua Elementary School Dist.

(1987) 189 Cal.App.3d 27 and Schaefer Dixon Associates v. Santa Ana Watershed

Project Authority (1996) 48 Cal.App.4th 524 hold that substantial compliance with the

Claims Act requires a single document. A claim cannot be cobbled together from

multiple letters:

"If a series of letters received over a period of time could collectively constitute a claim, it would be impossible to ascertain whether a claim had been presented within the 100 days or one-year time limitation as specified in section 911.2. The act provides that if a claimant files a timely claim, the public entity has 45 days within which to grant or deny the claim. (§ 911.6.) If the claim is denied by way of written notice, the claimant has six months within which to file a court action. (§ 913.) If the claim is not acted upon by the public agency within 45 days, it is deemed denied by operation of law and the claimant has 2 years within which to file a court action. (§ 945.6.) It would be difficult for the public entity to identify whether a particular letter were a claim and which letter triggered its obligation to accept or deny a claim if a series of correspondence could be considered collectively to constitute a claim. If an agency was unable to determine whether a claim had been filed or when the claim had been filed, it would be equally difficult for the court to determine which statute of limitation applied or when the statute of limitation began to run.

"The procedures prescribed by the Tort Claims Act envisioned the filing of a single claim with the public entity so that the public entity may investigate the claim, consider settlement and formally approve or reject a claim. The letters sent to the district on behalf of Dilts by his attorney do not constitute a claim within the meaning of the Tort Claims Act, and the doctrine of substantial compliance cannot be applied." (Dilts, supra, 189 Cal.App.3d at pp. 35-36.)

18 Apparently recognizing this rule, FAL focused the trial court exclusively on the

June 6, 2011 letter its lawyer sent to the Port District's attorney.2 That letter states in

part:

"At this point in time, the Port has put Fifth Avenue Landing, LLC in an untenable position. The Port has made it clear that it will not approve the plans FAL submitted for a 15-foot walkway and FAL is now in a position where it needs to proceed with the construction of a 35-foot walkway or be at risk of being in default of the CDP and/or the lease. [¶] With the foregoing in mind and subject to the Port's approval of FAL's plans for the 35-foot walkway and FAL's receipt of an Entry Permit from the San Diego Convention Center, this is formal notice to the Port that FAL will proceed with construction of the walkway as demanded by the Port but reserves all rights relative thereto. [¶] If the Port remains unwilling to mediate this matter, FAL has instructed me to file action in court for declaratory relief and damages. If the Port is willing to pursue mediation, then I need to hear back from you before June 16. Otherwise, action will be filed without further notice." (Italics added.)

To constitute a claim, the June 6, 2011 letter must substantially comply with all of

the statutory requirements. Substantial compliance is at least some compliance with each

of the statutory requirements. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p.

769.) "The doctrine of substantial compliance, however, 'cannot cure total omission of an

essential element from the claim . . . .'" (Connelly v. County of Fresno, supra, 146

Cal.App.4th at p. 38.)

The June 6, 2011 letter from FAL's lawyer is not a government claim because it

does not state: (1) the name and post office address of the claimant; (2) the date, place

and other circumstances of the occurrence or transaction which gives rise to the claim

2 FAL's return filed in this court erroneously asserts its "series of letters" constitute the requisite claim. 19 asserted; (3) the name or names of the public employee or employees causing the injury,

damage, or loss, if known; and (4) whether the claim would be a limited civil case.

Where, as here, the claim does not provide each of the categories of information required

by section 910, "there is an entire failure on the part of the plaintiff to comply with one of

the mandates of the statute. Substantial compliance cannot be predicated on no

compliance." (Hall v. Los Angeles (1941) 19 Cal.2d 198, 202.)

Accordingly, the trial court was incorrect in stating there was a "triable issue" that

FAL submitted a valid claim. Nevertheless, the ruling denying summary judgment was

correct because as the trial court stated in the alternative, FAL's letter is a "claim as

presented."

In Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348,

the appellate court outlined the "legal standard to apply in determining whether

correspondence" is a claim as presented:

"[T]o be sufficient to constitute a trigger-claim under section 910.8, the content of the correspondence to the recipient entity must at least be of such nature as to make it readily discernible by the entity that the intended purpose thereof is to convey the assertion of a compensable claim against the entity which, if not otherwise satisfied, will result in litigation." (Id. at p. 1358.)

For example, in Phillips v. Desert Hospital Dist., supra, 49 Cal.3d 699, an

attorney's letter stated, "This letter will serve to advise you that this office intends to

commence an action against Desert Hospital" and stated the date of the alleged medical

negligence. (Id. at p. 703.) The Court held this letter was a claim as presented because it

disclosed the plaintiffs had a claim which, if not satisfactorily resolved, would result in

20 their filing a lawsuit. (Id. at p. 710.) In contrast, in Green v. State Center Community

College Dist., supra, 34 Cal.App.4th 1348, the letter referred to an accident involving the

plaintiff, recited the attorney had been retained to represent the plaintiff, and directed the

putative defendant to send all further correspondence relating to the matter to the

attorney. The Court of Appeal in Green held this did not constitute a claim as presented

because "there is nothing in counsel's . . . letter to the College remotely implying that a

demand was being made . . . or that counsel would initiate litigation if appellant's

demand was not satisfied." (Id. at p. 1359.)

Here, FAL's attorney's June 6, 2011 letter is a claim as presented because it put the

Port District on notice of FAL's assertion of a compensable claim for the cost of

constructing a 35-foot-wide walkway and that FAL intended to pursue the matter by

litigation if necessary. ("If the Port is willing to pursue mediation, then I need to hear

back from you before June 16. Otherwise, action will be filed without further notice.")

FAL's claim as presented triggered the Port District's obligation to notify FAL of

defects or omissions in the claim. A failure to do so waives any defense as to its

sufficiency. (Alliance Financial v. City and County of San Francisco, supra, 64

Cal.App.4th at p. 643.) Here, it is undisputed that the Port District did not notify FAL of

any such defects or omissions. Therefore, the trial court correctly rejected the Port

District's contention that FAL's action was barred for Claims Act noncompliance.

V. CONTRACT INTERPRETATION ISSUES

The Lease requires FAL to complete development as "defined in the Coastal

Development Permit." With respect to the walkway width, the CDP itself is ambiguous

21 and seemingly contradictory. It first specifies a "15-foot wide waterfront walkway," but

also requires FAL to "adhere strictly to the current plans for the project as approved by

the District" and to build a "permanent concrete walkway consistent with the approved

design of the Hilton San Diego Convention Center Hotel." Both of these requirements

dictate a 35-foot walkway. The Lease, which incorporates the CDP by reference,

necessarily contains the same ambiguity.

In the trial court, the parties and the court seem to have been operating under the

assumption that when language in a written instrument is ambiguous and reasonably

susceptible to two different interpretations, that conflict necessarily raises a triable issue

that cannot be resolved on summary judgment.

However, taking a distinctly different approach in its reply brief filed here, the

Port District contends "no genuine issue of material fact exists that the permanent

concrete walkway was to be 35 feet wide." The Port District asserts, "There is no

evidence the 35-foot promenade requirement was ever 'contingent' on the construction of

a hotel." The Port District states that based on all the evidence, "FAL cannot show that a

triable issue existed concerning the CDP's 35-foot wide requirement."

We asked the parties to address this issue in supplemental letter briefs. Both sides

agree on the legal standard: The appellate court may consider a newly-raised issue when

it "involves purely a legal question which rests on an uncontroverted record which could

not have been altered by the presentation of additional evidence." (In re Marriage of

Broderick (1989) 209 Cal.App.3d 489, 501.) However, "[e]ven under such

circumstances, we will not consider the issue unless 'the opposing party has notice of and

22 an opportunity to respond to that ground.'" (Noe v. Superior Court (2015) 237

Cal.App.4th 316, 335-336.)

In its supplemental brief, the Port District contends this Court should determine as

a matter of law that FAL was required to construct a 35-foot-wide walkway because

"FAL also fully put forth all its facts on this width issue" in the trial court. The Port

District asserts "FAL had notice of the supposed width issue" because FAL addressed the

issue in its "opposition and attempted to show a contested issue of fact." The Port District

concludes, "Even though summary judgment was sought by the Port District on

procedural grounds, the factual issue regarding the width requirement of the walkway

was raised below in the opposition to the motion for summary judgment filed by FAL."

(Italics omitted.)

In sharp contrast, FAL contends the factual record would be significantly different

if the Port District had sought summary judgment on the merits. FAL's supplemental

brief states, "Had the Port District adequately raised the issue of whether, as a matter of

law, the permit required a width of 15 or 35 feet in the trial court, Fifth Avenue would

have submitted additional evidence that is critical to its position." Akin to an offer of

proof, FAL's supplemental brief asserts that certain testimony and documentary evidence

would have been submitted in the trial court if the Port District had sought summary

judgment on the merits. Appellate counsel for FAL represents such evidence includes

"evidence that the Port District itself requested the width of 15 feet for the walkway . . . ."

We decline the Port District's invitation to direct entry of summary judgment on

the merits. The Port District's notice of motion did not seek summary judgment on this

23 ground. Moreover, FAL had no notice of this merits issue where it counted—in the trial

court—where FAL represents it could have responded with evidence to meet it. Given

FAL's offer of proof in its supplemental brief, obvious considerations of fairness prevent

this Court from deciding a dispositive motion on an issue raised for the first time in a

reply brief filed in the appellate court. (SCI California Funeral Services, Inc. v. Five

Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18.)

Nevertheless, because this issue may arise again, and to guide the parties and the

trial court in further proceedings, we note that interpretation of a written contract is a

question of law for the court unless that interpretation depends upon resolving a conflict

in properly admitted extrinsic evidence. (City of Hope National Medical Center v.

Genetech, Inc. (2008) 43 Cal.4th 375, 395.) Extrinsic evidence includes "objective

matters as the surrounding circumstances under which the parties negotiated or entered

into the contract; the object, nature and subject matter of the contract; and the subsequent

conduct of the parties." (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912.)

When the extrinsic evidence itself is uncontradicted—that is, when the evidentiary

facts themselves are not in conflict, but the parties only disagree about the inferences to

be drawn from those undisputed facts—interpretation of the agreement is a question of

law for the court, suitable for resolution on summary judgment. (Wolf v. Walt Disney

Pictures & Television (2008) 162 Cal.App.4th 1107, 1126-1127 ["When there is no

material conflict in the extrinsic evidence, the trial court interprets the contract as a

matter of law."]; Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 390

["Even where uncontroverted evidence allows for conflicting inferences to be drawn, our

24 Supreme Court treats the interpretation of the written contract as solely a judicial

function."]; Sprinkles v. Associated Indemnity Corp. (2010) 188 Cal.App.4th 69, 76

["When the facts are undisputed . . . the interpretation of a contract, including the

resolution of any ambiguity, is a question of law."]; Medical Operations Management,

Inc. v. National Health Laboratories (1986) 176 Cal.App.3d 886, 892 [interpretation is a

question of law for the court because "although the parties hotly dispute the inferences to

be drawn from this extrinsic evidence, the evidentiary facts themselves are not in

conflict"].)

This means that if the historical facts are undisputed but give rise to conflicting

inferences, the question of what inferences to draw from the facts for purposes of contract

interpretation is a question of law for the trial court to decide. (City of El Cajon v. El

Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 71.)

On this record, there is no material conflict in the relevant extrinsic evidence. The

historical facts are undisputed. The parties dispute only the inferences to be drawn from

those undisputed facts. Some of these undisputed material facts, summarized below, are

compelling evidence that the Lease requires FAL to construct a 35-foot-wide walkway:

In June 2006 the Port District reviewed the water transportation center plans and required a 35-foot-wide walkway in accordance with "the single uniform design of the Hilton Plan."

In December 2006 the Port District delivered Hilton Hotel plans to

FAL.

In July 2007 the Port District conditionally approved plans for the water transportation center. Condition 4 stated, "FAL shall construct a temporary 15ft wide asphalt walkway . . . ." Condition 5, printed immediately below condition 4 states, "In the event that FAL has not

25 started construction of the hotel project within three years by August 7, 2010, FAL . . . shall construct the promenade a minimum 35 feet in width . . . . The promenade shall follow the single uniform design that is consistent with the approved design of the Hilton Hotel development."

An August 2007 resolution by the Port District states FAL "shall replace the temporary asphalt walkway with a permanent concrete walkway consistent with the approved design of the Hilton San Diego Convention Center hotel development no later than September 30, 2011 . . . ."

In August 2007 the Port District sent FAL correspondence to confirm the conditions of approval concerning the proposed water transportation center, stating in part, "FAL shall construct a temporary 15ft wide asphalt walkway . . . . In the event that [] FAL has not started construction of the hotel project within three years by August 7, 2010, FAL . . . shall construct the Promenade a minimum 35 feet in width per public access easement requirement and Port Master Plan."

Interpreting the Lease in light of these historical facts, and any other undisputed

extrinsic evidence properly received into evidence, is a judicial function. So long as the

issue remains one of resolving an ambiguity based on undisputed extrinsic evidence, the

trial court should decide the issue as a matter of law. The parties may hotly dispute the

inferences to be drawn from undisputed historical facts, but that does not change the issue

of contract interpretation into a question of fact for a jury. (Medical Operations

Management, Inc. v. National Health Laboratories, supra, 176 Cal.App.3d at p. 892.)

DISPOSITION

The petition is denied. Each party to bear its own costs.

To avoid any misunderstanding of the law of the case effect of this opinion: None

of these proceedings, whether in the trial court or in this Court, preclude the Port District

26 from bringing a motion for summary judgment or some other dispositive motion in the

trial court to address whether the Lease requires the subject walkway to be 15 or 35 feet

wide. We express no opinion on the resolution of such a motion if it were based on a

factual record different from the one presented here.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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