Marina Pacifica Homeowners v. Southern Cal. Fin. Corp. , 11 Cal. App. 5th 54 ( 2017 )

Filed 4/24/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARINA PACIFICA B270580
HOMEOWNERS ASSOCIATION,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. NC052700)
v.
SOUTHERN CALIFORNIA
FINANCIAL CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael P. Vicencia, Judge. Affirmed.
Locke Lord, Christopher J. Bakes, Daniel A. Solitro, Susan
Kidwell; Morrison & Foerster and Miriam A. Vogel for Plaintiff
and Appellant.
Greenberg Traurig, Scott D. Bertzyk, Adam Siegler and
Matthew R. Gershman for Defendant and Respondent.
__________________________
SUMMARY
Since January 1, 2008, Civil Code sections 1098 and 1098.5
have governed the circumstances under which certain fee
payments, imposed when real property is transferred, may or
may not be collected.1 In Marina Pacifica Homeowners Assn. v.
Southern California Financial Corp. (2014) 232 Cal. App. 4th 494
(Marina Pacifica I), this court determined that a monthly
“assignment fee,” payable by individual condominium unit
owners to the developers of the condominium project, was
properly collectible under those statutory provisions. The
Supreme Court denied review. Our remittitur issued on April 22,
2015, remanding the case to the trial court for “further
proceedings as necessary to enter an amended judgment
consistent with [our] opinion,” including “amended amounts due
and owing for the assignment fee.” (Id. at p. 513.)
Marina Pacifica Homeowners Association (plaintiff) now
appeals from the trial court’s judgment determining the amended
amounts owing from unit owners to the developers’ successor in
interest, Southern California Financial Corporation (defendant),
for the assignment fee. Plaintiff does not contend the trial court
erred in its calculations, but contends we erred in our earlier
construction of the statute, and should now correct that error and
declare the assignment fee uncollectible. Our error is
demonstrated, plaintiff maintains, by the Legislature’s clarifying
amendment of sections 1098 and 1098.5, effective January 1,
2016, an amendment intended to overrule our decision in Marina
Pacifica I.
1 All further statutory references are to the Civil Code.
2
We affirm the judgment. We need not decide whether we
could properly reconsider our decision in Marina Pacifica I,
because the amended statute and its legislative history
demonstrate the Legislature intended in any event to permit the
Marina Pacifica I assignment fees to remain in place.
FACTS
This is the fourth appeal in litigation over the assignment
fee that began in 2006. Only two appeals are significant here:
the appeal before us and our decision in Marina Pacifica I
upholding the collectibility of the assignment fee.2 The history of
the dispute is described in detail in Marina Pacifica I, supra, 232
Cal.App.4th at pages 497-504. We summarize here the facts
necessary to an understanding of our opinion in this appeal.
When unit owners purchased their units in the Marina
Pacifica complex, they bought an ownership interest in their
individual units and a share of an undivided leasehold interest in
the land on which the complex was built. That leasehold interest
included the obligation to pay monthly rent to the landowner and
an assignment fee to the developers. These two obligations were
to continue until 2041. Both payments were to be nominal until
2006, when the rent and assignment fee would be recalculated so
2 The first appeal concerned the process for selection of an
appraiser to determine the fair market value of the property for
purposes of adjustment of the assignment fees in 2006.
(Lansdale v. Marina Pacifica Homeowners Assn. (Aug. 14, 2007,
B192520) [nonpub. opn.].) A third appeal (after our decision in
Marina Pacifica I) dealt primarily with issues of costs and
attorney fees. (Marina Pacifica Homeowners Assn. v. Southern
California Financial Corp. (March 4, 2016, B255413 & B256664)
[nonpub. opn.].)
3
that together they would equal 10 percent (on an annual basis) of
the fair market value of the land underlying the units. (Marina
Pacifica I, supra, 232 Cal.App.4th at pp. 497-498.) Another
recalculation would occur as of October 1, 2021. These
assignment fee provisions were described in the unit lease, and
an information sheet plaintiff gave to each purchaser of a unit in
the complex stated that the fee would be readjusted in 2006 and
2021. The parties stipulated at trial that “each purchaser of a
Marina Pacifica unit had notice of the unit lease and its contents,
including the specific paragraph setting forth the assignment
fee.” (Id. at p. 499.)
In 1999, plaintiff bought the land underlying the
development and sold pro rata shares to the individual unit
owners, thus terminating rent payments under the unit leases.
The assignment fee, however, was separate and independent
from the other lease provisions, and created a separate
contractual obligation from the unit owner to the developers.
(Marina Pacifica I, supra, 232 Cal.App.4th at pp. 499, 498.)
In 2000, plaintiff bought out the assignment fee rights of
two of the three development partners. But the remaining
partner, William Lansdale, retained his 43.75 percent interest in
those fees. In 2005, Mr. Lansdale and plaintiff began to litigate
disputes over the appraisal process that would determine the fair
market value of the property for purposes of readjustment of the
assignment fee. (Marina Pacifica I, supra, 232 Cal.App.4th at p.
499.)
In 2007, the Legislature enacted sections 1098 and 1098.5
to regulate “transfer fees.” A transfer fee was defined broadly to
include fees imposed in any document affecting the transfer of an
interest in real property. For transfer fees imposed before
4
January 1, 2008, the recipient of the fee was required to record a
separate document meeting specified requirements, including a
title (“Payment of Transfer Fee Required”) and certain items of
information about the fee. In order to continue collecting transfer
fees on and after January 1, 2009, this separate document had to
be recorded on or before December 31, 2008. (§ 1098.5, subd. (a).)
There were, however, nine exceptions to the definition of a
transfer fee. One of the fees not included in the statutory
definition was “[a]ny fee reflected in a document recorded against
the property on or before December 31, 2007, that is separate and
apart from any covenants, conditions, and restrictions, and that
substantially complies with subdivision (a) of Section 1098.5
[recited just above] by providing a prospective transferee notice”
that payment of a transfer fee was required, the amount or
method of calculation of the fee and several other items. (Former
§ 1098, subd. (i).)
In January 2008, Mr. Lansdale transferred his right to the
assignment fees to defendant. By December 2008, the appraisal
litigation had been concluded, an arbitration had been held, and
the fair market value of the property for purposes of calculating
the assignment fee was set at $60,615,500 (as of October 1, 2006).
Defendant then began billing the unit owners for their respective
shares of the readjusted assignment fee. (Marina Pacifica I,
supra, 232 Cal.App.4th at p. 500.) Defendant did not record the
separate document described in section 1098.5.
Plaintiff instructed unit owners not to pay the assignment
fee bills defendant sent, and in March 2009 plaintiff sued
defendant. Along with other allegations, plaintiff asserted the
assignment fee was a transfer fee as defined by section 1098, and
could not be collected after December 31, 2008, because
5
defendant did not comply with the recording requirements in
section 1098.5. The trial court agreed, and also held that the fees
imposed before that date should have been calculated under a
four-percent formula advocated by plaintiff, rather than the
higher 10-percent formula sought by defendant.
Both parties appealed. In Marina Pacifica I, we concluded
the assignment fee came within the general definition of a
transfer fee as described in the first sentence of section 1098, but
was excluded from that definition by the “substantial compliance”
exception described in then-section 1098, subdivision (i). (Marina
Pacifica I, supra, 232 Cal.App.4th at p. 509.) We observed that
the unit lease contained all the required information and, while
the unit lease itself was not recorded, numerous documents that
were recorded against the property incorporated the unit lease by
reference. (Id. at p. 510.) These included lease assignments and
resale assignments that contained provisions in which the unit
owners promised to pay the assignment fee set forth in
paragraph 4 of the unit lease, and acknowledged they had
received and reviewed the unit lease. (Id. at pp. 511-512.) We
observed the evidence showed that “far from being hidden, the
assignment fee was clearly disclosed to purchasers,” who had
both constructive notice and actual notice of the assignment fee.
(Id. at p. 512.)
Accordingly, we reversed the trial court’s judgment to the
extent it held the assignment fee was an uncollectible transfer fee
after December 31, 2008. (We agreed with the trial court that the
four percent formulation should have been used to calculate the
fees.) As already noted, we remanded the case to the trial court
for “further proceedings as necessary to enter an amended
judgment consistent with [our] opinion,” including “amended
6
amounts due and owing for the assignment fee.” (Marina
Pacifica I, supra, 232 Cal.App.4th at p. 513.)
Our opinion in Marina Pacifica I was filed December 16,
2014. Plaintiff did not seek rehearing in this court, but
petitioned for review in the California Supreme Court. The
Supreme Court denied the petition on March 11, 2015, and the
remittitur issued on April 22, 2015.
During 2015, legislation was enacted to amend section
1098, effective January 1, 2016. Among the changes were the
addition of a new subdivision (b). Subdivision (b) provides, with
respect to the substantial compliance exception to the definition
of a transfer fee, that the specified information “shall be set forth
in a single document and shall not be incorporated by reference
from any other document.” (§ 1098, subd. (b).) The bill as
enacted included a legislative finding that “the addition of
subdivision (b) to Section 1098 . . . and [other specified
amendments] . . . made by this act are clarifying and declaratory
of existing law.” (Stats. 2015, ch. 634.)
The amendments as enacted also added a new
subparagraph to the substantial compliance exception. (§ 1098,
subd. (a)(9)(B).) We will refer to it as the savings clause. This
new provision stated:
“(B) A fee reflected in a document recorded against the
property on or before December 31, 2007, that is not
separate from any covenants, conditions, and restrictions,
or that incorporates by reference from another document, is
a ‘transfer fee’ for purposes of Section 1098.5. A transfer
fee recorded against the property on or before December 31,
2007, that complies with subparagraph (A) [the substantial
compliance exception] and incorporates by reference from
7
another document is unenforceable unless recorded against
the property on or before December 31, 2016, in a single
document that complies with subdivision (b) and with
Section 1098.5.” (§ 1098, subd. (a)(9)(B), italics added.)
The legislation producing these amendments appeared on
the “consent calendar” in both the Assembly and the Senate, was
approved unanimously in committees and by both chambers, and
was signed by the Governor on October 8, 2015.
Meanwhile, after our remittitur issued in April 2015, a
referee was appointed to make recommendations to the trial
court as to amounts owing and the proposed form of judgment.
Two weeks after the Governor signed the legislation amending
section 1098, plaintiff filed an ex parte motion to recall the
referee and to brief the impact of the legislation on the case.
The trial court permitted briefing, and plaintiff argued
that, in light of the amendments that would become law on
January 1, 2016, the court should enter an amended judgment
finding the assignment fees became uncollectible on January 1,
2009. The trial court declined to do so.
On December 28, 2015, the court entered a 97-page final
judgment determining the assignment fee obligations of the
individual unit owners in accordance with our remittitur. The
judgment stated the legislation was adopted “after the Court of
Appeal Opinion was rendered in this case and the cause was
remanded back to this Court to enter an amended judgment
consistent with that Opinion,” and the court therefore “does not
purport to interpret or apply AB 807 to this Judgment.”
Plaintiff filed a timely appeal.3
3 After briefing and before oral argument, defendant filed a
motion for judicial notice of legislative materials concerning the
8
DISCUSSION
Plaintiff asks us to reverse the trial court’s judgment and
direct entry of a new judgment declaring defendant cannot collect
the assignment fees as of January 1, 2009. Plaintiff contends the
Legislature found “that this Court got it wrong in Marina
Pacifica I,” and “there are no bars to this Court’s right to take
another look at sections 1098 and 1098.5 and to now reach the
result the Legislature intended.”
We conclude that “the result the Legislature intended” was
that the Marina Pacifica assignment fees should remain in place,
so long as defendant recorded a document reflecting the
assignment fee, “in a single document that complies with
subdivision (b) and with Section 1098.5,” before December 31,
2016. The language of the savings clause supports our
conclusion, and the legislative history of the amendments makes
the Legislature’s intent on this point unmistakable.4
We first describe that legislative history, and then briefly
address certain of plaintiff’s contentions.
recent introduction of a bill to further amend the transfer fee
statutes. We deny the request because the materials are
irrelevant to this case.
4 At defendant’s request, the author of the legislation
amending sections 1098 and 1098.5 submitted a letter to this
court concerning his view of the intent underlying the legislation.
We rejected the filing, since statements by an individual
legislator that were not communicated to the Legislature as a
whole are not relevant to a determination of legislative intent,
and we have not considered the letter for any purpose.
9
1. The Legislative History
To summarize, the legislative history demonstrates several
salient points. First, the Legislature repeatedly stated it was
clarifying the law with respect to the prohibition on incorporation
by reference, and that its intent in the 2007 law had been to
require a separate document. (E.g., Assem. Com. on Judiciary,
Analysis of Assem. Bill No. 807 (2015-2016 Reg. Sess.) as
amended Apr. 8, 2015, pp. 5-6 (Assembly Analysis of Assembly
Bill 807).)
Second, the Legislature recognized that Marina Pacifica I
was a final decision when the California Supreme Court declined
to review it, and understood there was no pending litigation.
(Assem. Analysis of Assem. Bill 807, supra, at p. 5 [“(It should be
noted that in March 2015, the [California] Supreme Court
declined to review the case, letting the Court of Appeal[] decision
stand and effectively ending the litigation.)”].)
Third, as we explain further below, the Legislature
intended the new law to overrule the holding in Marina Pacifica
I, and expressly recognized that, despite its repeated statements
that the bill would clarify existing law, “its provisions may attach
new legal consequences to events completed before its
enactment.” (Sen. Com. on Judiciary, Report on Assem. Bill
No. 807 (2015-2016 Reg. Sess.) as amended Apr. 8, 2015, p. 7
(Senate Report on Assembly Bill 807).) For that reason, the bill
was amended in the Senate to include the savings clause.
In short, we are in no doubt the Legislature intended that
the assignment fees we found enforceable in Marina Pacifica I
were to remain enforceable if defendant recorded the necessary
conforming documents during 2016. The pertinent details from
the legislative history are as follows.
10
a. The bill in the Assembly
When the legislation amending sections 1098 and 1098.5
was introduced (Assembly Bill No. 807 or AB 807), and when it
was first voted on by the Assembly, it did not contain the savings
clause. The “key issue” addressed by AB 807 was described this
way:
“Should existing law be clarified to ensure that private
transfer fees [(PTF’s)] are always disclosed to prospective
property buyers in a transparent and meaningful fashion,
and that newly structured types of transfer fees do not
circumvent current disclosure requirements?” (Assem.
Analysis of Assem. Bill 807, supra, at p. 1; see also Assem.
Com. on Judiciary, Mandatory Information Worksheet on
Assem. Bill No. 807 (2015-2016 Reg. Sess.) p. 1 [describing
the author’s view of the key issue raised by the bill as
“[s]hould existing law requiring recordation and disclosure
of private transfer fees (PTF) be updated to close a loophole
that may be exploited by some developers to creatively
structure PTFs to avoid disclosure requirements intended
to protect homebuyers?”].)
It is helpful to bear in mind that this legislation (and the
original statute) was directed at recording and disclosure of all
transfer fees, not just those originating before the enactment of
sections 1098 and 1098.5 in 2007. Thus the Assembly’s analysis
explained that existing law “provides that when a PTF is imposed
on real property on or after January 1, 2008, the person or entity
imposing the transfer fee must, as a condition of payment of the
fee, concurrently record against the property a separate
document entitled ‘Payment of Transfer Fee Required.’ ” (Assem.
Analysis of Assem. Bill 807, supra, at p. 1.) The purpose of the
11
new bill was “to further the intent of AB 980 [(the 2007 law)] and
ensure that all PTFs on real property continue to be recorded
with the county and disclosed to prospective purchasers in a
transparent manner.” (Ibid.)
Further: “According to the author, this bill is needed to
ensure continued notification and disclosure of PTFs to
homebuyers because some PTFs are being structured differently
since AB 980 became law in 2007. For example, these new types
of PTFs may be structured so that they are not necessarily based
on the sale price of the home or paid immediately upon transfer
of the home, as was contemplated by AB 980. As a result, there
may not be appropriate disclosure of all PTFs, contrary to the
intent of existing law. To nip this potential problem in the bud,
this bill does the following: (1) clarifies the definition of PTF to
capture any fee that must be paid ‘as the result of’ the transfer of
the property; (2) clarifies that the method of calculating the
amount of the PTF is disclosed if the fee is neither a flat fee, nor
a percentage of the sales price; and (3) clarifies that required
disclosures about the PTF must appear in a single document and
cannot be incorporated by reference into other documents. The
bill provides that these changes are clarifying and declaratory of
existing law. The bill . . . has no known opposition.” 5 (Assem.
Analysis of Assem. Bill 807, supra, at p. 1.)
5 The Legislative Counsel’s Digest for AB 807, as amended in
the Assembly on April 8, 2015, describes existing law on pre-2008
transfer fees this way: “Existing law excludes from the definition
of a transfer fee any fee reflected in a document recorded against
the property on or before December 31, 2007, that is separate
from any covenants, conditions, and restrictions, and that
provides a prospective transferee notice of specified information,
including the amount or method of calculation of the fee. [¶]
12
The Assembly’s analysis refers to Marina Pacifica I as
“illustrat[ing] the author’s contention that existing law needs to
be clarified to ensure that all private transfer fees are recorded
and disclosed to prospective homebuyers. . . . [T]he case
demonstrates that payment of a PTF: (1) did not have to occur
upon transfer of the property, but could be required a number of
years after the property had been transferred; and (2) did not
have to be based on the sale price of the property, but could be in
any amount or calculated by any other method. . . . [¶] Although
the fee in Marina Pacifica was recognized as a PTF, the case
illustrates that if these newly structure[d] types of PTFs are ever
determined by other courts to fall outside the current statute,
disclosure to prospective homebuyers is not necessarily assured.”
(Assem. Analysis of Assem. Bill 807, supra, at pp. 4-5.)
On May 11, 2015, the Assembly passed the bill
unanimously and ordered it to the Senate.
b. The bill in the Senate
The June 9, 2015 report prepared for the Senate Committee
on Judiciary describes Marina Pacifica I at some length in
connection with documents recorded before December 31, 2007.
(Sen. Report on Assem. Bill 807, supra, at pp. 5-7.) Specifically:
First, the report observes that the bill would, “among other
things, specify that, in order for a document recorded against a
property on or before December 31, 2007, to be excluded from the
definition of a ‘transfer fee,’ it must set forth specified
This bill would specify that the information shall be set forth in a
single document and may not be incorporated by reference from
any other document.” (Legis. Counsel’s Dig., Assem. Bill No. 807
(2015-2016 Reg. Sess.) as amended Apr. 8, 2015, p. 2, italics
added.)
13
information about the fee in a single document and may not
incorporate by reference such information from another
document.” (Sen. Report on Assem. Bill 807, supra, at p. 5.)
Second, the report describes the Marina Pacifica I
litigation and our holding that the unit leases incorporated by
reference in recorded documents contained all the information
required to qualify under the statutory exemption at issue. The
report then states: “By specifying that a recorded document
providing notice of fees may not rely on other information
incorporated by reference and still qualify under the statutory
exemption, this bill seeks to overrule the holding in [Marina
Pacifica I]. Furthermore, as a matter of policy, . . . requiring
record documents to contain pertinent information about fees for
which a prospective transferee will be responsible arguably
provides better notice about the obligation the transferee will
take on should they purchase or obtain the real property at
issue.” (Sen. Report on Assem. Bill 807, supra, at pp. 5-6.)
Third, the report then turns to a discussion of “retroactive
application,” stating: “This bill would find and declare that
amendments made by it to existing law pertaining to transfer
fees are clarifying and declaratory of existing law. However, as
noted above, some of these amendments may substantively
change the way existing law has been interpreted, raising
the possibility that they could be given retroactive application.”
(Sen. Report on Assem. Bill 807, supra, at p. 6, boldface and
italics added.)
Fourth, after further discussion of judicial decisions on
retroactivity and on legislation that merely clarifies existing law,
the report concludes: “This bill contains express language
indicating that its provisions are clarifying and declaratory of
14
existing law irrespective of the fact that its provisions may
attach new legal consequences to events completed before
its enactment. To ensure that fees reflected in documents
recorded against a property on or before December 31,
2007, that do not comply with this bill’s provisions do not
become automatically uncollectable by this change in the
law, the author offers the following amendment that would
allow a one-year time period for the separate recording of such
fees.”6 (Sen. Report on Assem. Bill 807, supra, at p. 7, boldface
and italics added.)
The bill was amended accordingly on June 15, 2015, and
again on September 3, 2015, and was passed by the Senate
unanimously on September 8, 2015.
c. The Assembly’s concurrence
The Assembly then concurred in the Senate amendments.
A report from the Assembly Committee on Judiciary states: “The
Senate amendments clarify that any fee reflected in a document
recorded against the property on or before December 31, 2007, . . .
that incorporates by reference from another document constitutes
a ‘transfer fee,’ and that any such transfer fee is unenforceable
unless recorded against the property, in a single document, on or
before December 31, 2016 (i.e. one year after the operative date of
this bill, if enacted.)” (Assem. Com. on Judiciary, Concurrence in
6 The amendment stated, “Any fee reflected in a document
recorded against the property on or before December 31, 2007, . . .
that incorporates by reference from another document shall
constitute a ‘transfer fee’ for purposes of Section 1098.5, unless it
is recorded against the property on or before December 31, 2016,
in a single document that complies with subdivision (a)(9) and (b)
of this section.” (Sen. Report on Assem. Bill 807, supra, at p. 7.)
15
Sen. Amends. to Assem. Bill No. 807 (2015-2016 Reg. Sess.) as
amended Sept. 3, 2015, p. 1) (Concurrence in Senate
Amendments).)7
The concurrence report further explains: “With respect to
any fee reflected in a document recorded against a property on or
before December 31, 2007 that . . . incorporates by reference from
another document, the Senate Judiciary Committee noted a
concern that, when this bill goes into effect, such fees will
cease to comply with the new law. Accordingly, in order to
ensure that such fees do not automatically become
uncollectable overnight, recent amendments to the bill
provide a one year time period for the separate recording
of such fees, running from January 1, 2016 (the operative
date of this bill, if enacted) until December 31, 2016.”
(Concurrence in Sen. Amends., supra, at p. 4, boldface and italics
added.)
7 See also Legislative Counsel’s Digest, Assembly Bill
No. 807 (2015-2016 Reg. Sess.) as amended September 3, 2015,
page 2 (italics and strikethroughs omitted) (“This bill would
provide that a fee reflected in a document recorded against the
property on or before December 31, 2007, that is not separate
from any covenants, conditions, and restrictions, or that
incorporates by reference from another document, constitutes a
transfer fee for the purposes of requirements relating to these
fees. The bill would make unenforceable a transfer fee recorded
against the property on or before December 31, 2007, that
complies with the provisions described above and that
incorporates by reference from another document unless it is
recorded against the property on or before December 31, 2016, in
a single document that complies with the provisions described
above.”).
16
On September 9, 2015, the Assembly concurred
unanimously in the Senate amendments, and the bill was
presented to and later approved by the Governor.
2. Contentions and Conclusions
In our view, the history we have recited leaves no room for
doubt about the intention of the Legislature. In addition, the
Legislature’s intent that the assignment fees we found
enforceable in Marina Pacifica I were to remain enforceable (if
recorded during 2016) is entirely consistent with established
legal principles on the finality of judgments, shown in the
legislative history to be well understood by the Legislature.
As mentioned earlier, the Legislature was aware that the
Marina Pacifica I decision on the enforceability of the assignment
fees at issue there was final – the reports repeatedly said so.8 We
likewise cannot doubt the Legislature’s recognition of the general
principles governing final judgments and subsequent legislative
actions that purport to change their legal effect; the Senate
report shows that, too. (Sen. Report on Assem. Bill 807, supra, at
pp. 6-7.) And, while there are exceptions to those finality
principles, here the Legislature made plain it intended to adhere
8 See Assembly Analysis of Assembly Bill 807, supra, at
page 5 (“the [California] Supreme Court declined to review the
case, letting the Court of Appeal[] decision stand and effectively
ending the litigation”); Concurrence in Senate Amendments,
supra, at page 3 (same); see also Assembly Committee on
Judiciary, Mandatory Information Worksheet on Assembly Bill
No. 807, supra, at page 3 (describing Marina Pacifica I’s
discussion of the assignment fee as coming within the purview of
the statute and stating that “the issue is now settled because the
[California] Supreme Court has declined to hear an appeal”).
17
to them. (Id. at pp. 6, 7 [adding the savings clause because “some
of these amendments may substantively change the way existing
law has been interpreted, raising the possibility that they could
be given retroactive application,” and “[the bill’s] provisions may
attach new legal consequences to events completed before its
enactment”]; Concurrence in Sen. Amends., supra, at p. 4
[providing one-year period for separate recording of pre-
January 1, 2008 fees because “when this bill goes into effect, such
fees will cease to comply with the new law”].)
We recognize it is inconsistent to state, as the legislation
and the legislative reports do, both that the amendments are
“clarifying and declaratory of existing law” and that the
amendments “may attach new legal consequences to events
completed before [the bill’s] enactment.” But the Senate report
recognized that inconsistency, and the Legislature resolved it
with the savings clause – a clause that would be entirely devoid
of meaning if construed other than in accordance with its plain
language. In short, our role is to discern the Legislature’s intent,
not to substitute our judgment based on the inconsistencies,
particularly since that intent – like the language of the savings
clause itself – is plain.
In view of the legislative history, little remains to be said
about plaintiff’s appeal from the trial court’s judgment. The trial
court did not err, complying precisely with our remittitur in
Marina Pacifica I, as it was required to do. (See Snukal v.
Flightways Manufacturing, Inc. (2000) 23 Cal. 4th 754, 774, fn. 5
[“The appellate court clerk’s issuance of the remittitur effects the
transfer of jurisdiction to the lower court. [Citation.] The
reviewing ‘court has no appellate jurisdiction over its own
judgments, and it cannot review or modify them after the cause
18
has once passed from its control by the issuance of the remittitur’
[citation] . . . . At the same time, the terms of the remittitur
define the trial court’s jurisdiction to act.”].) Plaintiff does not
question the calculation of amounts due from the unit owners to
defendant. Consequently, there is no trial court error to review.
Plaintiff insists we have jurisdiction now to revisit our
interpretation of the substantial compliance exception in Marina
Pacifica I, and that we should do so in light of the amendments to
sections 1098 and 1098.5, because the “overarching principle is to
give effect to the Legislature’s intent.” That is exactly what we
are doing. We have no reason to consider our authority to revisit
Marina Pacifica I, because the Legislature has made clear it did
not intend those amendments to interfere with the Marina
Pacifica I judgment.
Accordingly, we give effect to the Legislature’s intent and
affirm the trial court’s judgment.
DISPOSITION
The judgment is affirmed. Respondent shall recover its
costs on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P.J.
RUBIN, J.
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