Filed 7/11/22 (unmodified opinion attached)

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

XPO LOGISTICS FREIGHT, INC.,

Plaintiff, Cross-defendant and Appellant,

Vv.

HAYWARD PROPERTY, LLC et al.,

Defendants, Cross-complainants and Appellants.

XPO LOGISTICS FREIGHT, INC.,

Plaintiff, Cross-defendant and Appellant,

Vv.

HAYWARD PROPERTY, LLC et al.,

Defendants, Cross-complainants and Respondents.

THE COURT:

A157687

(Alameda County Super. Ct. Nos. HG16841187, RG16843893)

A158291, A159299

(Alameda County Super. Ct. Nos. HG16841187, RG16843893)

ORDER MODIFYING OPINION

AND DENYING REHEARING;

NO CHANGE IN JUDGMENT

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.

Trial Court:

Alameda County Superior Court

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

Filed 6/17/22 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION’

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

XPO LOGISTICS FREIGHT, INC.,

Plaintiff, Cross-defendant and

Appellant, A157687 Vv. (Alameda County Super. Ct. HAYWARD PROPERTY, LLC, et al., Nos. HG16841187, RG16843893) Defendants, Cross-complainants and Appellants.

XPO LOGISTICS FREIGHT, INC.,

Plaintiff, Cross-defendant and

Appellant, (Alameda County Super. Ct. Vv. Nos. HG16841187, RG16843893)

HAYWARD PROPERTY, LLC, et al.,

Defendants, Cross-complainants and Respondents.

A158291, A159299

These appeals arise from a dispute over title to one part of a property in the City of Hayward. As of 1979, the entire property was owned by one entity and divided into four parcels. In 1997, the owner reconfigured it into two parcels. In several transactions between 1998 and 2002, one reconfigured parcel was conveyed to XPO Logistics Freight, Inc. (XPO), and the other to Crown Enterprises, Inc., and Hayward Property, LLC Gointly Hayward). This

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part 2 of the Discussion. case concerns which of the two parcels includes a certain part of the original property (the disputed area).

The dispute has two sources. One is the 1997 document reconfiguring the property into two parcels, which has an undisputed error in defining one of the parcels by its metes and bounds. The other is the fact that, sometime before 1997, the county assessor divided the property—for purposes of property taxes—into three assessor’s parcels with distinct assessor’s parcel numbers (APNs). When the property was reconfigured into two parcels, which later passed to different owners, the boundaries of the APNs were not changed. The parties’ dispute concerns the significance, if any, of references to those APNs in various title documents. The documents’ metes-and-bounds descriptions of parcels support XPO’s claim to the disputed area; the APN references arguably support Hayward’s claim.

In 2016, XPO sued to quiet title. Hayward cross-complained to quiet title in itself or else obtain restitution of two sums—the property taxes it had paid on the disputed area since 2002 and the purchase price it paid for its parcel.

In 2017, the court granted XPO’s motion for judgment on the pleadings on the title claims. The parties continued to litigate Hayward’s restitution claims. They ultimately stipulated to an estimated amount of real property taxes Hayward had paid with respect to the disputed area, in excess of the taxes that XPO had paid on a portion of Hayward’s property. In 2019, the court entered judgment quieting title to the disputed area in XPO, denying Hayward’s purchase-price restitution claim, and awarding relief on its tax restitution claim in the stipulated sum—plus prejudgment interest, over XPO’s objection.

Hayward appeals the judgment quieting title, and XPO cross-appeals the award of prejudgment interest on the restitution award, though it does not

challenge the restitution award itself (appeal No. A157687). In two consolidated appeals (Nos. A158291 and A159299), XPO also challenges postjudgment orders taxing its costs and declining to award it attorney fees as a sanction for Hayward’s discovery abuses and alleged pursuit of a “knowingly false” claim.

In the published portion of this opinion, we conclude that the trial court correctly disregarded APN references in the deeds, and that its judgment must be affirmed insofar as it encompasses a declaration that Hayward did not acquire an interest in the disputed area. In the unpublished portion of this opinion, we address the remaining issues. We conclude that the award of prejudgment interest on Hayward’s restitution award, which the trial court evidently considered as mandatory, must be reversed so the court can exercise its discretion in determining whether and from what date to award such interest and, if awarded, apply the correct interest rate. We also affirm the orders taxing XPO’s costs and denying sanctions.

Factual History and Procedural History

In 1979, the entire property at issue was owned by CF Properties, Inc.

and divided into four parcels—original parcels 1, 2, 3, and 4—as shown in

recorded parcel map No. 3094 (the 1979 parcel map):

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MOC MEN SERCO NO INDUSTRIAL PARKWAY WEST

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