Albert Park Neighborhood Alliance v. City of San Rafael CA1/1 ( 2013 )

Filed 3/18/13 Albert Park Neighborhood Alliance v. City of San Rafael CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ALBERT PARK NEIGHBORHOOD ALLIANCE,
Plaintiff and Appellant,
v.
CITY OF SAN RAFAEL et al.,
Defendants and Respondents; A135028
CENTERFIELD PARTNERS, LLC, (Marin County
Real Party in Interest and Respondent. Super. Ct. No. CIV-1105491)
The present controversy concerns the validity of an agreement whereby
respondent City of San Rafael (the City) granted respondent Centerfield Partners, LLC
(Centerfield) the right to use an existing baseball field and stadium in Albert Park in San
Rafael, as a facility to host North American League professional baseball games (the
Agreement). In this appeal plaintiff claims the trial court erred by finding that the
Agreement does not violate the restrictive terms of a grant deed by which Albert Park
was conveyed to the City. We conclude that no error was committed, and affirm the
judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In May of 1937, Jacob and Annie Albert donated real property located in
downtown San Rafael, now known as Albert Park, to the City by grant deed expressly to
―contribute to the welfare of the people of San Rafael, to increase the City‘s ownership of
public parks and playgrounds,‖ and to ―afford the residents of said City a public park for
recreational and playground uses.‖ The property was conveyed to the City subject to
specified uses, restrictions, conditions and reservations: the property must remain part of
the City‘s ―public parks system,‖ managed and controlled by the Parks Commission or an
equivalent body or agency in the City; subject to reasonable regulations provided by the
Parks Commission or other agency, the property ―shall be maintained in perpetuity for
the free use and enjoyment‖ of the public; and, the commission or other agency in control
of the property is vested with the power, ―in its absolute discretion, to rent the whole or
any portion of said real property for compensation for periods not exceeding one (1)
week in duration for such purposes as said commission may deem proper;‖ the land
cannot be leased ―except as provided‖ in the grant deed.
Following the conveyance of the property to the City, the ―Albert Park Baseball
Stadium‖ and field were installed ―in the early 1950‘s to host a semi-professional
baseball team.‖ The facilities evolved to include stadium seating for 700, locker rooms,
dugouts, a batting cage, field lights, a press box and public address system, fencing, and a
concession stand. Historically, the park has been used for professional, semiprofessional,
high school, Little League, and recreational baseball, along with other outdoor
community events, on nearly all weeknights and weekends during the summer season.
The baseball park is available for hourly rental at a graduated fee schedule by youth and
nonprofit organizations, schools, Little League, private parties, recreational softball and
baseball leagues, commercial and for-profit entities. From 1997 to 2002, the San
Francisco Seals Collegiate Baseball team rented the baseball park to play an average of
30 games per year on weeknights and Sundays.1
In April of 2011, Centerfield submitted a proposal and permit application to use
Albert Park for the home games of an independent, professional baseball team in the
North American Baseball League, called the San Rafael Pacifics. The North American
1
Other public recreational facilities are also available for use at Albert Park: tennis courts, picnic
tables, barbeques, volleyball courts, bocce courts, a children‘s play area and center, and a
community center.
2
Baseball League was formed to operate as a nationwide, independent, professional minor
league, unaffiliated with any major league teams, to play a 45-game home schedule on
weeknights and Sunday afternoons between the third week of May and early September.
Centerfield owns the exclusive San Francisco Bay Area territorial rights to enter the
newly formed team in the North American Baseball League. The application submitted
to the City sought a three-year use permit, coupled with an offer by Centerfield to
improve the baseball facilities. Thus, the Municipal Code required both a permit and an
agreement between the City and Centerfield.
After the City Staff determined that the proposal by Centerfield was feasible, a
draft of the proposal was sent to the City Park and Recreation Commission (the
Commission) for review. The Commission held public meetings on April 28, and May
19, 2011. The conclusion of the Commission following consideration of the draft
proposal at the meetings and further input from Staff was that only a use permit was
required, and the contemplated use by Centerfield was consistent with the historical and
current use of the Albert Park baseball field. The Commission voted unanimously to
recommend the proposal to the City Council.
The City Staff and Centerfield pursued implementation plans to address concerns
with traffic, parking, security, noise, and other issues. The City Staff also considered the
applicability of the California Environmental Quality Act (CEQA) to Centerfield‘s draft
proposal, which included the installation of additional temporary seating for an
anticipated average attendance of approximately 1,500 spectators for each of the 45
games. The Staff determined that the proposed project would not require compliance
with CEQA, under the ―Class 23‖ categorical exemption for ―normal operations of
existing facilities for public gatherings for which the facilities were designed, where there
is a past history of the facility being used for the same or similar kind of purpose.‖
Following additional public meetings and comments in August and September of
2011, Centerfield submitted a revised application for a use agreement, which modified
prior draft proposals in several particulars to address previously expressed concerns: a
one-year nonexclusive lease beginning September 30, 2012, to use the baseball park to
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play 45 regular season games between late May and September; games would be
scheduled after the conclusion of most youth and high school baseball leagues; free
parking would be provided for up to 609 cars at the nearby San Rafael Corporate Center;
Centerfield would monitor efficient entry of cars on the street and into the parking lot,
and provide crosswalk and sidewalk safety measures; games would begin at designated
times, and the existing public address system would not be used to play amplified music
after 9:00 p.m.; a maximum of 100 temporary field-level chairs, rather than 800 bleacher
seats, would be added to the existing 700 stadium seats; alcohol consumption would be
monitored by prohibiting entry into the park with alcohol, selling no more than two
beverages to each person, and eliminating alcohol sales ―at the end of the 7th inning or
10:00 p.m., which ever comes first;‖ a temporary concession stand would be used at a site
consistent with prior use; a local firm would be retained to provide security both inside
and outside the stadium, and in the designated parking lot. The final proposal also called
for Centerfield to perform safety and cosmetic improvements in Albert Park in the nature
of a new backstop, and new field-level protective fencing, along with painting, cleaning
and renovating the grandstand, locker rooms and bathrooms. In accordance with the
City‘s existing master fee schedule for Albert Park, Centerfield agreed to pay the City
$80 hourly rental fee for use of the baseball field, and an additional $40 for every hour
the lights are activated, less $5,000 in annual fee credits for permanent improvements
made to the baseball park.
The City Council considered the modified final proposal and agreement at a public
meeting on September 19, 2011. The City Attorney offered the conclusion that the
proposed use was consistent with the restrictions in the Albert Park deed. At the
conclusion of the meeting the City Council unanimously approved the proposal and
directed the City Staff to prepare a final agreement with Centerfield for approval.
The final Agreement was considered at a meeting of the City Council on October
3, 2011. The City Council adopted Resolution No. 13248, that found the proposal would
not represent a change in the normal use of Albert Park, and was thus exempt from
CEQA environmental review. The Resolution directed the City Manager to execute the
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Agreement with Centerfield for the use of Albert Park as a baseball field for professional
baseball in accordance with the final proposal.
This action was commenced with a petition for writ of mandate (Code Civ. Proc.,
§§ 1085, 1094.5), along with a complaint for declaratory and injunctive relief based on
violation of CEQA (Pub. Resources Code, § 21000 et seq.), filed by plaintiff on
November 7, 2011. The essential claims in the petition and complaint are that the
Agreement between Centerfield and the City requires compliance with CEQA, violates
the City‘s General Plan, and violates the terms of the grant of the Albert Park property to
the City. Following the certification of the administrative record, the case proceeded to
trial before the court. The trial court found substantial evidence in the record to support
the City‘s determination that the proposal would not alter normal operations of existing
facilities or produce a ― ‗significant effect on the environment‘ within the meaning of
CEQA.‖ The court further found that the proposal is consistent with the City‘s General
Plan, and does not violate the terms of the 1937 Albert Park deed. The petition for writ
of mandate and complaint for declaratory and injunctive relief was denied in its entirety.
This appeal followed.
DISCUSSION
Plaintiff argues in this appeal only that the proposed use of Albert Park by
Centerfield fails to comply the terms of the 1937 grant deed by which Annie and Albert
Jacob conveyed the property to the City. Plaintiff‘s position is that the City‘s Agreement
with Centerfield contravenes the terms and intent of the grant deed in essentially two
ways: first, by violating the provision in the deed that requires Albert Park to be
maintained for the free use and enjoyment of the public for recreational purposes; and
second, by renting the park to Centerfield for a duration greater than one week in
contravention of the specific time limitation stated in the deed.
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I. Plaintiff’s Standing to Claim Violation of the Grant Deed.
We first confront respondents‘ claim that plaintiff lacks standing to pursue the
issue of lack of compliance with the grant deed in this mandamus proceeding.2 The City
maintains that plaintiff has not demonstrated the requisite ―beneficial interest‖ in the
litigation beyond the ―general interest‖ held in common with the ―public residing in the
vicinity of Albert Park.‖
According to well-established law, ―only parties with standing may pursue a
mandamus action. A writ of mandate ‗must be issued upon the verified petition of the
party beneficially interested.‘ (Code Civ. Proc., § 1086.) ‗This provision has been held
to establish a standing requirement—the writ will issue only at the request of one who is
beneficially interested in the subject matter of the action. [Citation.]‘ [Citation.]‖
(Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1106–1107 (Lindelli).)
―Code of Civil Procedure section 367 imposes a similar requirement for civil actions
generally, stating: ‗Every action must be prosecuted in the name of the real party in
interest, except as otherwise provided by statute.‘ ‗A real party in interest ordinarily is
defined as the person possessing the right sued upon by reason of the substantive law.‘
[Citation.]‖ (Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th
871, 877.) ― ‗The requirement that a petitioner be ―beneficially interested‖ has been
generally interpreted to mean that one may obtain the writ only if the person has some
special interest to be served or some particular right to be preserved or protected over and
above the interest held in common with the public at large. . . .‘ [Citation.]‖ (Save the
Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165; see also
Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1085–1086; Regency Outdoor
Advertising, Inc. v. City of West Hollywood (2007) 153 Cal.App.4th 825, 829.) ―This
standard,‖ the California Supreme court has ―stated, ‗is equivalent to the federal ―injury
in fact‖ test, which requires a party to prove by a preponderance of the evidence that it
2
The City did not raise the standing issue in the trial court. However, a litigant‘s standing to sue
is a threshold issue that may be raised at any time in the proceedings, even without an objection
below. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21
Cal.4th 352, 361; Hernandez v. Atlantic Finance Co. (1980) 105 Cal.App.3d 65, 71.)
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has suffered ―an invasion of a legally protected interest that is [both] ‗(a) concrete and
particularized, and (b) actual or imminent . . . .‘ ‖ ‘ [Citation.]‖ (People ex rel. Dept. of
Conservation v. El Dorado County (2005) 36 Cal.4th 971, 986.) ― ‗The petitioner‘s
interest in the outcome of the proceedings must be substantial, i.e., a writ will not issue to
enforce a technical, abstract or moot right. [Citation.] The petitioner also must show his
legal rights are injuriously affected by the action being challenged. [Citation.]‘
[Citation.]‖ (Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241,
1251 (Marshall).) The beneficial interest must be direct and substantial. (Parker v.
Bowron (1953) 40 Cal.2d 344, 351; Lindelli, supra, 111 Cal.App.4th 1099, 1106–1107;
Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87.)
Plaintiff is an unincorporated community association that has asserted an interest
on behalf of those situated in the neighborhood of Albert Park, whose use and enjoyment
of the area is distinctively affected by the City‘s alleged failure to comply with CEQA,
the City‘s General Plan, the Municipal Code, and the grant deed restrictions. In this
appeal, the only action challenged is compliance with the authorized uses and restrictions
stated in the Albert Park deed. Those in geographic proximity to Albert Park may be
more keenly disturbed than the public at large by the schedule of baseball games
authorized by the Agreement, particularly by noise and congestion impacts.
Further, ―our Supreme Court has recognized an exception to this general rule.
‗ ― ‗[W]here the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the relator need not show that he has any legal
or special interest in the result, since it is sufficient that he is interested as a citizen in
having the laws executed and the duty in question enforced.‘ ‖ [Citation.] The exception
promotes the policy of guaranteeing citizens the opportunity to ensure that no
governmental body impairs or defeats the purpose of legislation establishing a public
right. . . .‘ [Citations.]‖ (Venice Town Council, Inc. v. City of Los Angeles (1996) 47
Cal.App.4th 1547, 1564.) Under the ―public interest standing‖ exception to the
requirement of a beneficial interest: ― ‗ ―One who is in fact adversely affected by
governmental action should have standing to challenge that action if it is judicially
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reviewable.‖ [Citation.]‘ [Citation.]‖ (Save the Plastic Bag Coalition v. City of
Manhattan Beach, supra, 52 Cal.4th 155, 165.) ―These liberal standing requirements
have been applied to individuals acting in the public interest to protect against effects of
environmental abuse.‖ (Laidlaw Environmental Services, Inc., Local Assessment Com. v.
County of Kern (1996) 44 Cal.App.4th 346, 354.)
Plaintiff, as an association of individual citizens, is seeking to secure enforcement
of a duty by the City to adhere to the terms of the 1937 Albert Park grant deed, which
restricts the sanctioned use of the land to benefit the public interest. Plaintiff, on behalf
of its individual citizen-members, has also asserted a beneficial interest in the subject
matter of the government action and participated in the public administrative proceedings
that resulted in the decision challenged here. (See Apartment Assn. of Los Angeles
County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128–129 (Apartment
Assn.).) Plaintiff‘s action thus falls within the rule that grants standing to a party who
asserts a public interest and seeks enforcement of a public duty by writ of mandate.
(Green v. Obledo (1981) 29 Cal.3d 126, 144; Marshall, supra, 119 Cal.App.4th 1241,
1250–1252; County of L. A. v. Tax Appeals Bd. No. 2 (1968) 267 Cal.App.2d 830, 834.)
Finding that plaintiff has standing, we proceed to the merits of our review.
(Apartment Assn., supra, 136 Cal.App.4th 119, 129.) ―A traditional writ of mandate
under Code of Civil Procedure section 1085 is a method for compelling a city to perform
a legal, usually ministerial duty. [Citation.] When a court reviews an administrative
decision pursuant to Code of Civil Procedure section 1085, it merely asks whether the
agency‘s action was arbitrary, capricious, or entirely lacking in evidentiary support, or
whether the agency failed to follow the procedure and give the notices the law requires.
[Citation.] In reviewing a trial court‘s judgment on a petition for writ of ordinary
mandate, we apply the substantial evidence test to the trial court‘s factual findings.
However, we exercise our independent judgment on legal issues . . . .‖ (Kreeft v. City of
Oakland (1998) 68 Cal.App.4th 46, 52–53; see also Alliance for a Better Downtown
Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129; International Federation of
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Professional & Technical Engineers v. City and County of San Francisco (1999) 76
Cal.App.4th 213, 224.)
II. The Compliance with the “Free-use” Provision in the Grant Deed.
Plaintiff asserts that the Agreement violates the provision in the 1937 Albert Park
grant deed that requires the land to be ―maintained in perpetuity for the free use and
enjoyment of the public in said City.‖ Plaintiff submits that ―free‖ means ―not costing or
charging anything,‖ so ―[a]llowing Centerfield the use of the Albert Park baseball field
and stadium far in excess of one week in duration and charging an entrance fee for games
played during that prolonged period does not meet the more exacting standard in the
Grant Deed requiring the City to maintain the land in perpetuity for free use and
enjoyment of the public.‖ Plaintiff‘s proposed meaning of the term ―free use and
enjoyment of the public‖ is that ―the public must be simultaneously ‗employing‘ the park
and be in ‗possession‘ of the land without costing the public or charging the public
anything for this benefit the Grant Deed intended in perpetuity.‖3
To resolve plaintiff‘s contentions related to the uses of Albert Park authorized by
the grant deed, we must interpret the terms of the document. ―With deeds, as with all
contracts, the primary object of interpretation is to ascertain and carry out the intention of
the parties. [Citations.] In achieving this purpose, we must keep in mind the following:
A grant is to be construed in the same manner as contracts in general (Civ. Code,
§ 1066); the deed‘s language determines its interpretation so long as it is clear and
explicit (Civ. Code, § 1638); and a grant is to be interpreted in favor of the grantee,
except that a reservation in a grant is to be interpreted in favor of the grantor (Civ. Code,
§ 1069).‖ (County of Solano v. Handlery (2007) 155 Cal.App.4th 566, 573.)
―In a deed, as in any contract, we attempt to ascertain the intent of the parties by
first looking to the language in the deed, as construed in light of any extrinsic evidence
which may prove a meaning to which the language of the instrument is reasonably
3
Although plaintiff failed to specifically present the ―free use‖ argument in the trial court, we
find no forfeiture of the issue on appeal. We address and resolve this claim as one within the
issues framed by the complaint and plaintiff‘s challenge to the City‘s compliance with the Albert
Park grant deed.
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susceptible.‖ (City and County of San Francisco v. Union Pacific R.R. Co. (1996) 50
Cal.App.4th 987, 994; see also Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406,
1416.) ―The real question always is, therefore, whether the use in a particular case, and
for a designated purpose, is consistent or inconsistent with such primary object. Whether
or not a particular use amounts to a diversion from that for which the dedication was
made depends on the circumstances of the dedication and the intention of the party
making it.‖ (Wattson v. Eldridge (1929) 207 Cal. 314, 320.) ―With respect to restrictions
on the use of land conveyed in a deed, such restrictions ‗will not be read into a restrictive
covenant by implication, but if the parties have expressed their intention to limit the use,
that intention shall be carried out, for the primary object in construing restrictive
covenants, as in construing all contracts, shall be to effectuate the legitimate desires of
the covenanting parties.‘ [Citation.]‖ (County of Solano v. Handlery, supra, 155
Cal.App.4th 566, 573.)
― ‗The interpretation of a written instrument, even though it involves what might
properly be called questions of fact . . . is essentially a judicial function to be exercised
according to the generally accepted canons of interpretation so that the purposes of the
instrument may be given effect.‘ [Citation.] An appellate court reviews such instruments
independently, ‗unless the interpretation turns upon the credibility of extrinsic evidence.‘
[Citations.]‖ (PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210
Cal.App.4th 132, 144–145; see also Gray v. McCormick (2008) 167 Cal.App.4th 1019,
1024; Harvey v. The Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 817.)
We agree with plaintiff that pursuant to the explicit terms of the grant deed, the
City cannot authorize or grant use of Albert Park for purposes inconsistent with the
recreational purpose of the conveyance. We also observe the obvious: both playing and
watching baseball are uses that are eminently consistent with the primary directive of the
grant deed to promote public recreation.
Contrary to plaintiff‘s contention, we conclude that the term ―free use‖ in the grant
deed does not have a pecuniary reference. We do not believe the grantors intended to
preclude the City from ever charging the public for use of the Albert Park to conduct
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recreational activities. If that was the case, an illogical and unreasonable consequence
would result. Lack of any recompense fee for use of the park would quite rapidly force
the City to curtail or eliminate many if not all activities for lack of monetary support to
maintain and improve the facilities. We must interpret the grant deed ―in a manner that is
reasonable and does not lead to an absurd result. [Citation.] This principle is codified in
Civil Code section 1638, which provides: ‗The language of a contract is to govern its
interpretation, if the language is clear and explicit, and does not involve an absurdity.‘ ‖
(Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 651.) The absurd
result of requiring all activities in the park to be free of charge is to be avoided. (See In
re Greg F. (2012) 55 Cal.4th 393, 410; Galardi Group Franchise & Leasing, LLC v. City
of El Cajon (2011) 196 Cal.App.4th 280, 288; In re Samano (1995) 31 Cal.App.4th 984,
989.)
We must also interpret the free-use term of the Agreement together with the
immediately preceding provision, which expressly subjects the ―free use and enjoyment‖
of the property by the public to ―all reasonable regulations provided‖ by the Park
Commission or other entity ―having the management and control of said real property.‖
―To the extent practicable, the meaning of a contract must be derived from reading the
whole of the contract, with individual provisions interpreted together, in order to give
effect to all provisions and to avoid rendering some meaningless.‖ (Zalkind v. Ceradyne,
Inc. (2011) 194 Cal.App.4th 1010, 1027.) Interpreting the two related provisions
together, as we must, persuades us to find that the term ―free‖ means without undue
controls or excessive directives, rather than without cost. The City is thus granted the
power to regulate the use of the property by the public to the extent reasonably necessary.
Corroboration for this interpretation is found in both common sense and the history of use
of the park. For years, the City has regularly charged for many recreational activities in
Albert Park, including fees for baseball and softball leagues in which residents
participated. Therefore, the fact that spectators are charged for attending the professional
games played at the park does not contravene the terms of the grant deed.
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III. The Prohibition Against Rent of the Property for More Than One Week.
Plaintiff also argues that the Agreement fails to comply with the provision which
grants to the City‘s commission the ―power‖ to ―rent the whole or any portion of said real
property for compensation for periods not exceeding one (1) week in duration for such
purposes as said commission may deem proper together with the power to provide either
with or without compensation the use of said real property for public exhibitions,
concerts or other enterprises conducted by any non-profit fraternal or charitable
organization within said City for charitable and civic purposes.‖ Plaintiff claims the
―plain language of this restriction states that the City has full discretion to rent the land
for compensation for any purpose it ‗deems proper‘ but only for a week duration.‖
Plaintiff points out that the separate, ―additional power‖ granted to the City to provide for
use of the property for specified purposes to specified groups – essentially charitable or
civic activities conducted by nonprofit or charitable groups – without a time limitation, is
indicative of an intent to treat rental agreements with ―for profit‖ groups like Centerfield
differently by imposing a one-week time limit. Plaintiff thus maintains that ―the use
restrictions on the land contained in the Grant Deed clearly did not contemplate the
sustained use of the land for periods of months during a calendar year for a minor-league
for-profit baseball team.‖
While a continuous and exclusive lease of the Albert Park baseball facilities for
more than one week might breach the grant deed, the Agreement is of an entirely
different nature. Centerfield does not occupy, possess or even use the premises
continuously. Centerfield has been granted a license or permit for intermittent use of the
park that terminates at the conclusion of each baseball game, rather than a unremitting
rental agreement of any kind that exceeds a week. The use granted to Centerfield is also
far from exclusive. Others may use the baseball field when the San Rafael Pacifics team
is not playing its games, and the rest of the park is always open to the public. The
Agreement gives Centerfield the right to use and occupy the baseball facilities for
designated games, not sole possession of the park to the exclusion of the rest of the
public, as would a leasehold interest. (See Kaiser Co. v. Reid (1947) 30 Cal.2d 610, 619;
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McCaslin v. De Camp (1967) 248 Cal.App.2d 13, 18–19.) The Agreement is not in
substance any different than the permits that have been granted to other groups and
baseball leagues to use the park facilities for games during their seasons – which also
exceed one week in duration. In addition, the Agreement lacks yet another fundamental
attribute of a lease: the payment of rent for a sustained period. (See San Jose Parking,
Inc. v. Superior Court (2003) 110 Cal.App.4th 1321, 1328.) Under the Agreement
Centerfield pays for use of the park by the hour, with an additional fee for use of the
lights, also by the hour. The use fee, like the use of the park, terminates at the conclusion
of each game. We conclude that the City‘s Agreement with Centerfield does not
constitute an impermissible rental of the park for more than one week. Instead, a license
or use permit has been granted for multiple, separate games of less duration, which does
not violate the grant deed. In all respects, the Agreement complies with the 1937 grant
deed.
Accordingly, the judgment is affirmed.
__________________________________
Dondero, J.
We concur:
__________________________________
Margulies, Acting P. J.
__________________________________
Banke, J.
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