Sierra Oaks Madison v. Ralphs Grocery Co.

Filed 2/5/10 Sierra Oaks Madison v. Ralphs Grocery Co. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

This dispute about expanding a commercial building within a shopping center calls upon us to construe a declaration of restrictions and grant of easements (the Declaration), recorded by the parties predecessors in interest to create covenants running with the land for the common benefit of the adjoining landowners whose separate parcels make up the shopping center.[1]

Plaintiff Sierra Oaks Madison Limited Partnership appeals from a judgment of nonsuit in favor of defendants Ralphs Grocery Company (Ralphs) and Ralphss successors in interest -- Red Mountain Retail Group, Inc., Casa Blanco LLC, and 4080 Douglas Blvd. GB, LLC (collectively, Red Mountain). The trial court granted nonsuit following its decision in a bifurcated bench trial that (1) the Declaration expressly prohibits the proposed expansion, and (2) defendants failure to assert the dispositive clauses as a defense until they filed trial briefs did not preclude the court from considering the dispositive clauses. Plaintiff contends (1) the trial court erred in concluding the Declaration was not reasonably susceptible to the interpretation urged by plaintiff and initially unquestioned by defendants, and (2) rules governing judicial admissions and discovery responses preclude defendants from changing their position.[2] We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2004, plaintiff and Ralphs jointly owned the Sierra Oaks Shopping Center, which consisted of seven parcels (A through G). Ralphs owned Parcel B, and plaintiff owned the rest. In the summer of 2004, plaintiff wanted to expand an existing, empty building on Parcel D to accommodate a proposed new tenant, (nonparty) Ross Dress For Less. The parties agree the proposal was to add 12,000 square feet, not 20,000 as alleged in the complaint.

Although the entire expanded building would sit on plaintiffs Parcel D, plaintiff and Ralphs were subject to several written instruments restricting land use, originally executed and recorded in 1986 by the parties predecessors in interest -- Sierra Oaks Associates and Albertsons, Inc. These recorded instruments included the Declaration, which was recorded in 1986 and amended in 1997.[3] (Pertinent clauses are attached as Appendix A.) The Declaration states its purpose: The parties plan to develop the Shopping Center as an integrated retail sales complex for the mutual benefit of all real property in the Shopping Center and, therefore, hereby establish the Restrictions. The Declaration expressly states in sections 6.1 and 6.2 that its covenants run with the land and are binding on successors. The Declaration has an attached map of the shopping center, designating seven Building Areas[4] within the seven parcels. We attach a copy of the map as Appendix B.

The building areas were not covered with buildings when the original Declaration was signed in 1986.[5] Under the Declaration, the land outside the building areas is designated Common Area.[6] Also within the definition of common area (fn. 6, ante) are (1) any portions of building areas during times in which those portions are not actually covered by a building or structure, and (2) portions which cannot be used for buildings at all under the terms of the Declaration.

Plaintiffs proposed addition (attached as Appendix C) of 12,000 square feet to the existing 19,000 square-foot building would extend the building beyond the 20,000 square-foot building area of parcel D, into the designated common area of parcel D.

Though initially ignored by defendants, the Declaration prohibits placing buildings outside of the building areas. Thus, section 2.1 of the Declaration (Appendix A, post) states in part, All buildings and other structures (except those permitted in Section 2.2 below) shall be placed or constructed upon the Parcels only in the Building Areas [except that specified items such as canopies, etc., may project from the Building Area into the Common Area].

The referenced section 2.2 of the Declaration states, The Common Area may be used for vehicular driving, parking (except that there shall be no multi-level parking), pedestrian traffic, directional signs, sidewalks, walkways, landscaping, perimeter walls and fences, parking lot lighting, utilities and Service Facilities (as hereinafter defined) and for no other purpose unless otherwise specifically provided in this Declaration. No buildings or structures not shown on the [recorded] Site Construction Documents . . . shall be placed or constructed in the Common Area except pylon and directions signs (as provided in Article IV), paving, bumper guards or curbs, landscape planters, lighting standards, perimeter walls and fences, utility pads and equipment, sidewalks and, to the extent that they do not impede access to the rear or sides of buildings, loading docks, trash enclosures (with all trash being hidden from view from the parking areas), bottle storage areas and other service facilities (Service Facilities). (Italics added.)

Section 2.2 further states: All portions of a Building Area which cannot be used for buildings shall be developed by the Owner thereof in accordance with a site plan approved by the Approving Owners[[7]] and maintained as improved Common Area. The sizes and arrangements of the Common Area improvements, including, without limitation, service drives and parking areas, striping, traffic directional arrows and signs, concrete bumpers, parking lot lighting, perimeter walls and fences, and landscaped areas, together with necessary planting, may not be changed without the written approval of the Approving Owners.

The Declaration expressly states in section 6.5 that it may not be modified in any respect whatsoever or terminated, in whole or in part, except with the consent of the Prime Lessees and the Owners of the parcels containing ninety percent (90%) of the total square footage of Building Area in the Shopping Center at the time of such modification or termination, and then only by written instrument duly executed and acknowledged by all of the required Owners and Prime Lessees, duly recorded in the Official Records of Placer County . . . .

Despite these clauses, defendants initially treated plaintiffs expansion request as if the matter were governed by section 2.3, which allows modification of buildings upon consent of the other owners, which could not be unreasonably withheld. Section 2.3 says, No building may be constructed nor the exterior of any existing building changed in any way . . . without the prior written approval of the Approving Owners, as to the exterior design, color and elevations of the building to be constructed or modified. . . . Before the construction of any building or modification[[8]] of an existing building which requires approval is commenced, sufficient information shall be sent to the Owners whose approval is required to enable the Owners to make a reasonable determination as to the architectural and aesthetic compatibility of said building or modification with all other buildings in the Shopping Center. No Owner may arbitrarily or unreasonably withhold its approval of the proposed building or modification if it is in conformity with the intent of this subparagraph (a). An Owner must approve or disapprove the proposal within thirty (30) days after receipt of the proposal, and, if such Owner disapproves the proposal, it shall provide a written explanation in reasonable detail of its reasons for disapproving.

Thus, in January 2005, plaintiff asked Ralphs to consent to plaintiffs plan and to sign a proposed second amendment to the Declaration, stating its intent and purpose was to allow for an expansion of the existing maximum Building Area on Parcel D from 20,000 square feet to 31,000 square feet . . . .

Ralphs denied the request, on the ground that expanding the eastern tenant space would limit the ability to expand our store and obstruct rear service circulation.

The parties went back and forth on whether plaintiffs plan would interfere with Ralphs in any way.

On May 24, 2005, plaintiff filed a lawsuit, to which Ralphs successfully demurred on various grounds, none of which invoked the clauses prohibiting building construction outside the building area. Indeed, Ralphs cited the clause about reasonable withholding of consent. Plaintiff filed an amended complaint.

On September 26, 2005, escrow closed on Ralphss sale of Parcel B to Red Mountain.

On November 1, 2005, plaintiff wrote to Red Mountain, requesting consent to the proposed expansion and citing the consent clause.

Red Mountain did not give consent. In further correspondence, plaintiff accused Red Mountain of unreasonably withholding consent to force me to accede to your demand to open a health club prohibited by the Declaration. Red Mountain quoted the consent clause and claimed plaintiff had failed to provide needed information. Red Mountain said it would give consent if plaintiff met certain conditions. Plaintiff refused.

On May 15, 2006, plaintiff filed a second amended complaint adding Red Mountain as defendant.

On November 8, 2006, plaintiff filed the operative THIRD AMENDED COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES, asserting as separate counts: (1) declaratory relief; (2) breach of covenant (by Ralphs); (3) interference with contract as against Red Mountain; (4) breach of covenant (apparently by Red Mountain, though the heading names only two of the three Red Mountain defendants); and (5) declaratory relief as against Red Mountain. The pleading sought $50,000 in damages, punitive damages against Red Mountain, and a declaration that the proposed building expansion would be in compliance with the Declaration and defendants violated the Declaration by unreasonably withholding consent.[9]

Ralphs filed a motion for summary judgment, in which it did not invoke the Declaration clauses prohibiting building outside the building area. Rather, Ralphs asserted it reasonably withheld consent. In December 2006, the trial court denied summary judgment, stating the reasonableness of the refusal to consent presented a question of fact.

The Declaration clauses prohibiting building outside a building area were raised for the first time in defendants trial briefs filed on February 16, 2007. Section 2.1 was briefly asserted in passing, with the main focus of the briefs on the parties familiar positions about reasonable refusal to consent.

The trial court granted an unopposed defense motion for a bifurcated bench trial on the issue of interpretation of the Declaration. The parties submitted trial briefs on this issue plus documentary evidence, including correspondence and discovery responses. Plaintiff argued in the trial court, as it does on appeal, that the Declaration should be interpreted to allow the proposed expansion based on (1) the Declarations express terms and (2) the parties having treated the Declaration as allowing the expansion in all their exchanges before the trial briefs were filed. Plaintiff assumed, without submitting any evidence, that defendants original position must have resulted from an informed interpretation of the Declaration, rather than failure to read the entire Declaration. Plaintiff argued defendants prior conduct should preclude their now invoking the clauses prohibiting building outside the building areas.

On March 5, 2008, the trial court issued a judgment, stating that, after considering the briefs and evidence submitted by the parties and after hearing oral argument, the trial court (1) ruled that the interpretation of the parties contract was a question of law for the Court; (2) provisionally received and considered the evidence submitted by the parties, with the exception of the Halper treatise excerpts; (3) having provisionally received and considered the foregoing evidence, determined that the language of the parties contract was not reasonably susceptible to the interpretation urged by Plaintiff, and therefore decided that the extrinsic evidence was inadmissible to interpret the terms of the parties contract; and (4) decided that Plaintiffs request to expand its building violated the provisions of the parties contract, and Plaintiff thus could not prevail on its interpretation of the parties contract. The judgment stated the trial court granted defendants motion for nonsuit after plaintiffs opening statement,[10] and judgment was entered in favor of defendants on all causes of action.

DISCUSSION

I. Standard of Review

Although judgment was entered on a motion for nonsuit, the crux of this case is the trial courts decision on the bifurcated bench trial of the issue of interpretation of the written instrument. General principles of contract interpretation apply to the declaration of restrictions. (Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 8-13.) The interpretation of a written instrument is a judicial function which is exercised according to general canons of interpretation so that the purposes of the instrument are to be given effect. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, citing [Civ. Code] 1635-1661 and Code Civ. Proc., 1856-1866.) The Supreme Court has held: The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, 1638.) [Citation.] If the contract terms are ambiguous, the appellate court is bound by the findings of fact made on evidence which was introduced to aid in its interpretation. [Citations.] Where the interpretation of the contract does not turn on credibility of extrinsic evidence, the appellate review is de novo. [Citations.] Contracts are construed as a whole. [Citations.] (Capitol Steel Fabricators, Inc. v. Mega Construction Co. (1997) 58 Cal.App.4th 1049, 1056.)

Though not invoked by plaintiff, we observe the general rule that, restrictive covenants are to be construed strictly against limitations upon the free use of property, and where a provision is subject to more than one interpretation, the construction that is consonant with the unencumbered use of the property will be adopted. [Fn. omitted.] In the absence of ambiguity, the fair intent of the parties is enforced. [Fn. omitted.] (8 Miller & Starr, Cal. Real Estate, supra, 24:17, p. 24-65, citing inter alia, Wing v. ForestLawnCemetery Assn. (1940) 15 Cal.2d 472, 479.) Where parties have expressed their intention to limit use of real property, that intent should be carried out, for the primary objective in construing restrictive convenants, as in all contracts, should be to effect the legitimate intent of the covenanting parties. (Hannula v. Hacienda Homes, Inc. (1949) 34 Cal.2d 442, 444-445.) The Declaration at issue here states in section 6.18 that [t]he provisions of this Declaration shall be construed as a whole and not strictly for or against any party.

II. Interpretation

Plaintiff argues it is reasonable to interpret the Declaration as allowing plaintiff to expand its own building anywhere on its own parcel as long as it obtains the other owners consent, which cannot be unreasonably withheld. We shall conclude plaintiffs interpretation is unreasonable, and the Declaration unambiguously prohibits plaintiffs proposed expansion.

The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. (Civ. Code, 1638.) The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. (Civ. Code, 1641.) We avoid any interpretation that renders part of the instrument surplusage. (Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730.) As indicated, any ambiguity in restrictive covenants running with the land will be construed in favor of the free use of the land, but in the absence of ambiguity, the fair intent of the parties is enforced. (8 Miller & Starr, Cal. Real Estate, supra, 24:17, p. 55.)

Here the Declaration is clear: Buildings are allowed in the building areas only, and plaintiffs proposed expansion to build outside the building area violates the Declaration.

When the Declaration was created in 1986, it designated one area on each parcel as a building area. The building areas were not areas on which buildings already existed (as plaintiff concedes in its reply brief). Rather, they were areas where the owners could place buildings. Thus, section 2.1, which requires all buildings to be placed in building areas only, also states, All Building Areas on which buildings are not under construction on the date Albertsons first opens its building on Parcel B for business shall be covered with grass (which grass shall be well maintained, watered and cut) or by a one inch asphalt dust cap and shall be kept weed free and clean at the Owners sole expense until such time as buildings are constructed thereon. Additionally, section 2.2 states: All portions of a Building Area which cannot be used for buildings shall be . . . maintained as improved Common Area. Thus, the building areas in the 1986 Declaration were areas where buildings could be built, not areas where buildings already had been built.

Section 2.1 says, All buildings and other structures [with inapplicable exceptions] shall be placed or constructed upon the Parcels only in the Building Areas . . . . (Italics added.) Section 2.2 says, No buildings or structures [with inapplicable exceptions] shall be placed or constructed in the Common Area . . . .

Section 2.3s provision about consent is not inconsistent with the clear prohibition of sections 2.1 and 2.2. Sections 2.1 and 2.2 do not prohibit all buildings; they just prohibit building outside the building areas. Thus, an owner who wanted to build within the building area on his parcel could do so with consent of the other owners. Consent of the others was required because all parcels were part of the same shopping center, and the original owners agreed, in covenants running with the land, to restrict the use of the land to serve the common interests in the shopping center.

Plaintiff argues the Declaration expressly authorizes building expansion, which must mean expansion into areas designated as common areas in the original map. We disagree. Plaintiff quotes from section 2.4, which states in part: Construction Requirements: All work performed in the construction, maintenance, repair, replacement, alteration or expansion of any building or Common Area improvements located in the Shopping Center shall be effected as expeditiously as possible and in such a manner as not to unreasonably interfere, obstruct or delay (i) access to or from the Shopping Center, or any part thereof, to or from any public right-of-way, (ii) customer vehicle parking in that portion of the improved common areas located in front of any building constructed in the Shopping Center, and (iii) the receiving of merchandise by any business in the Shopping Center including, without limitation, access to the Service Facilities described herein. Staging for the construction or expansion of any building located in the Shopping Center including, without limitation, the location of any temporary buildings or construction sheds, the storage of building materials and the parking of construction vehicles and equipment shall be limited to that portion of the Shopping Center approved in writing by the Approving Owners. (Italics added.)

Plaintiff argues the references to expansion mean that the parties intended that there be expansion capabilities, which must mean expansion outside of the building areas. Plaintiff lays out its theory as follows: (a) The Declaration says any square inch not covered by a building (including unused portions of building areas) is a common area; (b) the Declaration expressly allows expansion; (c) since section 2.3 says buildings cannot be taller than a single story or 22 feet high, the contemplated expansion must be outward; and (d) since the Declaration defines common areas (fn. 6, ante) as any square inch of the center not covered by construction, any outward expansion would necessarily be into the common area. Plaintiff says that, since the Declaration specifically provides for outward expansion of a building, by definition expansion into the common area is permitted.

However, plaintiffs argument would nullify the Declaration clauses that buildings shall be placed in building areas only.

Moreover, plaintiffs argument in its opening brief is based on its unwarranted assumption that any building expansion would necessarily extend beyond the building areas and encroach on the common areas designated in the original map, and therefore the expansion clause necessarily allows expansion beyond the building areas. Thus, plaintiff argues the trial court erred in construing the Declaration to preclude any expansion beyond the building areas. We have explained this assumption is false. The building areas were not entirely covered with building structures at the time the original contract was signed, as plaintiff acknowledges in its reply brief.

In its reply brief, plaintiff argues that, because a portion of a building area could also be a common area (i.e., a buildable portion of a building area not currently covered by a building is treated as a common area), and because the Declaration allows building on such areas, then the Declaration must also allow building on common areas that do not have such dual status. We disagree. That the Declaration treats unused portions of building areas as common areas (the obvious purpose of which is to preserve the aesthetic appeal of the shopping center) does not mean those portions of land relinquish their status as building areas. They have a dual status and are considered common area under section 1.1(d) (fn. 6, ante) only so long as they are not from time to time actually covered by a building . . . .

Accordingly, when section 2.3 says that [n]o building may be constructed . . . without the prior written approval of the Approving Owners and that consent shall not be unreasonably withheld, the clause obviously refers to the building or expansion of buildings within the building areas -- which pursuant to the Declaration as a whole is the only place buildings may be constructed. In other words, section 2.3s reasonable consent provision allows a mechanism for approval of changes that are consistent with sections 2.1 and 2.2. Otherwise, section 2.3 would be a sub silentio nullification of sections 2.1 and 2.2, which is nonsensical.

We conclude the Declaration expressly prohibited plaintiffs proposed expansion, and therefore plaintiff was not entitled to invoke the consent clause.

Plaintiff argues its interpretation of the Declaration must be reasonable because it was shared by defendants. However, plaintiffs cited authorities looked to the parties interpretation where (1) the contract was ambiguous, and (2) the parties demonstrated by their conduct that they knew what they were talking about. (E.g. Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 754.) Here, the Declaration is not ambiguous and, even assuming the pertinent intent is that of these parties rather than the original contracting parties (a disputed point on appeal), there is no indication that defendants (or anyone) affirmatively decided sections 2.1 and 2.2 were inapplicable.

We conclude the Declaration is not reasonably susceptible to an interpretation that would allow plaintiff to demand that defendants consent to plaintiffs proposed expansion on Parcel D.

Plaintiff argues our conclusion gives complete and arbitrary control over its parcel to someone who has no ownership interest in the parcel. However, no one has control. All owners are bound by the Declarations covenants. To the extent plaintiffs use of its own property is being hindered, that hindrance was created for the common benefit of all owners having parcels in the shopping center and came with the property when plaintiff acquired it. Plaintiffs reply brief miscites an outdated version of the Restatement of Property for a principle of continuing validity -- that public policy favors the socially productive use of land. (Rest.3d Property, 3.1, com. e, p. 355.) However, plaintiff fails to show that the Declaration violates this policy.

Plaintiff argues the Declaration allows modification, and in 1997 Albertsons obtained modification of the Declaration to allow itself to build a gas station pad on its parcel (fn. 3, ante), and modification falls within the consent clause. However, plaintiff confuses modification of a building with modification of the Declaration. Yes, the Declaration states it can be modified -- if the prime lessees and 90 percent of the owners agree to modify it. The clause governing modification of the Declaration contains no requirement that consent not be unreasonably withheld.

In its reply brief, plaintiff argues expansion of Albertsons building area in 1997 was accomplished by a Memorandum of Understanding, not by modification of the Declaration. Although the Declaration was indeed modified, and although the modification modified the original map to create an expansion area on Albertsons parcel and amended the definition of building area to include the expansion area, plaintiff claims these provisions were merely thrown in for good measure, and the modification of the Declaration was really necessitated only by Albertsons agreement to allow plaintiff to construct a drugstore on Parcel D that was smaller than the minimum size set forth in the Declaration. This is not a compelling argument.

We conclude the express terms of the Declaration defeat plaintiffs case. We need not address defendants discussion of a treatise which says it is not unusual for tenants in a shopping center to insist there be no construction outside designated building areas.

III. Claimed Admissions

Plaintiff contends defendants discovery responses and failure to assert the defense sooner constituted judicial admissions barring them from asserting that sections 2.1 and 2.2, rather than 2.3, govern disposition of this case. Plaintiff cites Troche v. Daley (1990) 217 Cal.App.3d 403, which said a judicial admission in a pleading is a conclusive concession of the truth. (Id. at p. 409.) In a footnote, plaintiff cites Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, which said judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same proceeding, where the positional change has an adverse impact on the judicial process.

First, we observe section 6.12 of the Declaration states: Waiver: The failure of a person to insist upon strict performance of any of the Restrictions contained herein shall not be deemed a waiver of any rights or remedies that said person may have . . . .

Second, defendants never took an affirmative position that the clauses prohibiting building outside building areas were inapplicable. Nor did plaintiff affirmatively allege inapplicability of these clauses, such that defendants failure to deny it should be treated as an admission. Nor does defendants belated invocation of the critical contract clauses adversely impact the judicial process. Plaintiff assumes, without support, that defendants initial position reflected either a deliberative interpretation of the Declaration or bad faith gamesmanship, rather than a failure to read the entire Declaration. We reject plaintiffs position that defendants must have read section 2.2 and found it inapplicable because a portion of section 2.2 appears on a page photocopied by defendants for the purpose of highlighting parts of the consent clause in section 2.3. We do not find or need to find that defendants failed to read the Declaration. On appeal, they do not admit they failed to read it. They simply ignore their initial failure to invoke section 2.1 of the contract.

Plaintiff had the burden to prove its assertion that defendants did not believe sections 2.1 and 2.2 applied. Plaintiff failed to meet that burden. We have reviewed plaintiffs evidence, including the correspondence and discovery responses, as well as the motions and briefs filed by defendants in the trial court. We conclude it merely shows defendants assumed the consent clause applied. None of the evidence shows that any defendant affirmatively considered sections 2.1 or 2.2 or concluded they were inapplicable.

Plaintiff argues discovery responses are binding. However, plaintiff cites no discovery responses in which defendants admitted inapplicability of sections 2.1 or 2.2. Plaintiff says defendants failed to assert these clauses in responding to interrogatories asking them to list their defenses. However, plaintiff does not show it moved for discovery sanctions and offers no authority that an appropriate sanction would be to strike clauses from the contract. This is not a situation where a belated defense could not have been anticipated.

Since plaintiff fails to show any evidence that defendants admitted inapplicability of sections 2.1 or 2.2, we need not further address plaintiffs arguments on the legal effect of judicial admissions. We also need not address an argument raised for the first time in plaintiffs reply brief, that defendants breached an implied covenant of good faith and fair dealing.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

SIMS , Acting P. J.

We concur:

RAYE , J.

ROBIE , J.

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[1] Restrictions on land may be created by written agreement between landowners, called a declaration of restrictions. (8 Miller & Starr, Cal. Real Estate(3d ed. 2001) 24.10, pp. 24-51 - 24-52.) A declaration of restrictions may be recorded. (Id. at p. 24-52, citing Barbieri v. Ongaro (1962) 208 Cal.App.2d 753, 757.) When a declaration of restrictions that contains all provisions for an equitable servitude is recorded, it is binding on subsequent owners. (Miller & Starr, Cal. Real Estate, supra,  24-16 at p. 24-61.)

[2] As will appear, plaintiff assumes defendants failure to invoke the dispositive clauses earlier reflects a deliberate interpretation that the clauses were inapplicable, rather than a failure to read the entire Declaration.

[3] The 1997 Amendment to the Declaration expressly expanded the buildable area of Parcel B to allow Ralphss predecessor (Albertsons) to build a gas station.

[4] Section 1.1(c) of the contract defines building area as All those areas on each Parcel shown as Building Area on [the attached map].

[5] We discuss, post, that plaintiffs initial argument appears to be based on an unwarranted assumption, unsupported by any citation to evidence, that the building areas were completely covered with buildings when the original Declaration was executed, and therefore the Declarations allowance for future building must necessarily extend outside of the building areas. However, the Declaration itself indicates the building areas were not completely covered with buildings, because the Declaration says all portions of building areas not covered by buildings when Albertsons first opened for business were to be covered with grass or asphalt and kept clean until such time as buildings were constructed thereon. Moreover, plaintiff acknowledges in its reply brief that the Declaration was written before construction of the shopping center.

[6] Section 1.1(d) of the contract defines Common Area as All those areas on each Parcel which are not Building Area together with those portions of the Building Area on each Parcel which are not from time to time actually covered by a building or other commercial structure or which cannot under the terms of this Declaration be used for buildings.

[7] Section 1.1(b) of the contract defines Approving Owners as The Owners of Parcels A, B, C and D, i.e., plaintiff and defendants.

[8] We observe modification in this clause refers to modification of a building, not modification of the Declaration. There is no requirement that consent not be unreasonably withheld with respect to modification of the Declaration.

[9] We express no view on the propriety of the remedies sought by plaintiff.

[10] As a general rule, a nonsuit is allowed only in a jury trial; however, a nonsuit is permitted in a bench trial at the conclusion of plaintiffs opening statement. (7 Witkin, Cal. Procedure (7th ed. 2008) Trial, 406, p. 478.) Here, the trial court said it was granting nonsuit on plaintiffs opening statement. Although we question whether that is what actually occurred, plaintiff and appellant makes no issue of the possible nonsuit issue. We will therefore decide the appeal on the merits.