Buchheim v. WSMI Real Estate

Filed 6/15/06 Buchheim v. WSMI Real Estate CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment and postjudgment order of the Superior Court of Orange County, Mary Fingal Erickson, Judge. Judgment affirmed and order affirmed as modified.

Alschuler Grossman Stein & Kahan, Daniel Alberstone; Cooksey, Toolen, Gage, Duffy & Woog, Patrick J. Duffy and Timothy D. Otte; Greines, Martin, Stein & Richland, Robin Meadow and Laura R. Boudreau, for Plaintiffs and Appellants.

Rus, Miliband & Smith, Ronald Rus, Randall A. Smith and M. Peter Crinella, for Defendant and Respondent Pueblo Serra, LLC.

Jess R. Bressi for Defendant and Respondent WSMI Real Estate Limited Partnership.

This is an action by a landlord against a tenant and the tenant's assignee for breach of contract, a declaration the assignment was invalid, and an injunction prohibiting construction on the property. The landlord appeals from a judgment for the tenant and assignee, and a postjudgment order that awarded the latter attorney fees and costs. The landlord argues it did not waive the alleged breach of the lease by accepting rent, and a motion for relief based on the neglect of trial counsel should have been granted. It also challenges the fee order. We find no error save for excessive costs, a point conceded by the assignee. The judgment is affirmed, and the postjudgment order is modified and, as modified, affirmed.

* * *

An individual and several trusts together own 29 acres of land in San Juan Capistrano. They entered into the operative lease â€