Filed 11/18/21 AWH Burbank Hotel v. Hollywood Way SHG CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

AWH BURBANK HOTEL, LLC,

Plaintiff, Cross-defendant, and 

Respondent,

v.

HOLLYWOOD WAY SHG, LLC,

Defendant, Cross-complainant, 

and Appellant.

 B308035, B312902

 (Los Angeles County

 Super. Ct. No. EC065699)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Curtis A. Kin, Judge. Affirmed.

Law Offices of Robert H. Bisno, Robert H. Bisno; Benedon 

& Serlin, Judith E. Posner and Kian Tamaddoni for Defendant, 

Cross-complainant, and Appellant.

Allen Matkins Leck Gamble Mallory & Natsis, 

Charles D. Jarrell and Melissa K. Zonne for Plaintiff, 

Cross-defendant, and Respondent.

____________________________
2

Appellant Hollywood Way SHG, LLC (Hollywood Way) 

appeals from a judgment in favor of respondent AWH Burbank 

Hotel, LLC (Burbank Hotel). The parties are the owners of 

adjoining commercial properties. At issue in this appeal is the 

trial court’s denial of Hollywood Way’s request for a declaratory 

judgment establishing that any further development of Burbank 

Hotel’s property must comply with the terms of the parties’ 

reciprocal parking and maintenance agreement (REA).

Declaratory judgments are appropriate “in cases of actual 

controversy relating to the legal rights and duties of the 

respective parties” to a contract. (Code Civ. Proc.,1 § 1060.) 

Here, there is no “actual controversy” underlying Hollywood 

Way’s request for a declaratory judgment. As Hollywood Way 

represents repeatedly in its appellate briefing, Burbank Hotel 

has consistently agreed the REA governs the terms of any future 

development. Hollywood Way identifies nothing in the record 

suggesting Burbank Hotel intends to take action inconsistent 

with the REA. 

Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

1. The REA

Hollywood Way and Burbank Hotel own adjacent 

properties across the street from the Burbank Airport. 

1 Further unspecified statutory citations are to the Code of 

Civil Procedure.

2 Hollywood Way does not contest on appeal the trial 

court’s findings of fact. Accordingly, we rely in part on the trial 
3

Hollywood Way’s property contains an office building, and 

Burbank Hotel’s property contains a hotel, convention center, and 

large parking area. Burbank Hotel acquired its property in 2014, 

and Hollywood Way acquired its property in 2015.

The two properties are subject to the REA, executed in 

1997 when the properties were subdivided from a single parcel. 

The intent of the REA was “to establish certain reciprocal 

agreements, easements, covenants, and conditions with respect to 

both the Office Parcel and the Hotel Parcel,” “binding upon . . . all 

successor owners of any interest in either Parcel.” 

The following provisions of the REA are relevant to this 

appeal. Sections 2.1 and 2.2 grant each property a nonexclusive 

easement for driveway and parking access on the other property, 

subject to restrictions not at issue here. Section 3.1 provides that 

neither property owner “may change the location or configuration 

of any Driveway within its Parcel without the prior written 

consent of” both the City of Burbank and the owner of the other 

property. The other owner’s consent “shall not be unreasonably 

withheld or delayed,” and failure to respond to a request for 

consent within 10 days shall be deemed as consent. Section 3.2. 

prohibits any obstructions on the properties “that would prevent 

or impede vehicle or pedestrian access from one Parcel to the 

other.” 

Section 3.3 provides that, “Subject to Section 6.21, each 

Owner may change at any time and from time to time the 

buildings and parking configurations on its Parcel subject to the 

restrictions and limitations set forth in this Agreement provided 

court’s statement of decision when summarizing the relevant 

facts.
4

that the size, number, location, and uses of such replacement 

buildings (including the orientation of entrances thereto) are such 

that each Parcel will generally support its own parking needs in 

accordance with all legal requirements.” 

Section 6.21 provides, “The parties may not permanently

change or agree to change permanently parking, access, building

locations, or driveways in violation of applicable laws and codes, 

including, without limitation, the provisions of Planned 

Development 89-1. To assure compliance with this Section 6.21, 

all such changes shall be approved by the Community 

Development Director of the City of Burbank.” “Planned 

Development 89-1” refers to the City of Burbank’s zoning of the 

two properties. 

The REA grants reasonable attorney fees to the prevailing 

party in any action for breach of the agreement. 

2. The Dispute

On June 3, 2016, pursuant to section 3.1 of the REA, 

Burbank Hotel requested Hollywood Way’s consent to relocate 

and reconfigure some of the hotel property’s driveways. Counsel 

for Hollywood Way responded in an e-mail on June 8, 2016, that 

Hollywood Way was “studying” the proposed changes to the 

driveways “and will respond promptly.” 

In the same e-mail, counsel relayed Hollywood Way’s 

position on any plans Burbank Hotel had to develop the hotel 

property. Counsel stated that Hollywood Way “does not agree to, 

and fully opposes,” any plans “to further develop the Parking Lot 

with additional buildings.” The e-mail further stated that 

“[Hollywood Way’s] consent is required for additional buildings to 

be placed on the [hotel] Property,” and Hollywood Way “will 

oppose, by all legal means, any and all entitlement efforts to the 
5

extent the efforts seek[ ] to entitle additional buildings on [the]

property, which is subject to the REA.” 

The June 8, 2016, e-mail was the only response Burbank 

Hotel received from Hollywood Way regarding the proposed 

driveway reconfiguration—that is, Hollywood Way never gave a 

final answer as to whether it would consent to the proposed 

driveway reconfiguration.

On August 24, 2016, Burbank Hotel filed a declaratory 

relief action challenging Hollywood Way’s withholding of consent.

Hollywood Way filed a cross-complaint on September 19, 2016. 

We summarize the operative pleadings in part 3, post.

On October 20, 2017, while the litigation was pending, 

Burbank Hotel e-mailed Hollywood Way a second request for 

consent to reconfigure the driveways, and attached two proposed 

reconfiguration plans. A principal of Hollywood Way responded 

24 minutes later, denying consent and objecting to “any 

structures that impede[ ] right of way.”

Burbank Hotel e-mailed Hollywood Way’s principal a few 

weeks later explaining that Burbank Hotel was not requesting 

Hollywood Way’s approval of development of the hotel property, 

but only consent to either of the two proposed driveway relocation 

plans. The e-mail stated, “It goes without saying, although we 

fully acknowledge here, that any further building or development 

shown on the site plans, or otherwise, requires City approval and 

compliance with the terms of the REA. Accordingly, your 

consent, if given, will be directed only to the proposed relocation 

of driveways (on whichever plan you choose), and not a consent to 

further building or development, for which any and all of 

Hollywood Way’s rights will be reserved.” 
6

After an exchange of further correspondence with 

Hollywood Way’s counsel, in which Burbank Hotel reiterated that 

consent to driveway relocation would not constitute consent to 

any other further building or development, Hollywood Way 

continued to deny consent. Hollywood Way also asked for an 

explanation as to how Burbank Hotel intended to satisfy section 

6.21 of the REA, concerning zoning requirements and city 

approvals. 

On May 18, 2018, Burbank Hotel sent Hollywood Way a 

third request for consent to driveway relocation, and enclosed a 

site plan. The request emphasized that Burbank Hotel was 

seeking consent solely for driveway relocation, and not to any 

other items depicted on the site plan or otherwise. The request 

further stated that Burbank Hotel “acknowledges and agrees that 

certain contemplated changes to the site must be approved by the 

City of Burbank, and thus the giving of any consent by 

[Hollywood Way] in response to this request for consent shall not 

amount to any agreement to any change in violation of section 

6.21 of the REA.” 

Hollywood Way’s counsel responded that consent was not 

given, stating, inter alia, that under section 6.21 of the REA, 

Hollywood Way did not have the “legal ability” to consent to any 

plans to change the driveways unless the City of Burbank had 

first given its approval. 

3. The Trial

At the time of trial, Burbank Hotel’s second amended 

complaint asserted a single cause of action for declaratory relief. 

It sought a declaration that, apart from driveway relocation, the 

REA did not require Burbank Hotel to obtain Hollywood Way’s 

consent for additional development of the hotel property. 
7

Burbank Hotel further sought a declaration that its request for 

consent to the driveway relocation was deemed approved under 

the REA because Hollywood Way did not respond to the request 

within 10 days, and Hollywood Way’s refusal to give consent was 

unreasonable. 

Hollywood Way’s fifth amended and supplemental crosscomplaint asserted causes of action for breach of contract, 

declaratory relief, breach of fiduciary duty, accounting, unjust 

enrichment/restitution, public nuisance, and private nuisance. 

Only Hollywood Way’s cause of action for declaratory relief is at 

issue in this appeal. As to that cause of action, the complaint 

requested that the trial court “declare the rights of the parties 

under the REA and issue an injunction against [Burbank Hotel] 

further violating and failing to perform the REA, as [Burbank 

Hotel] has done and continue[s to] do . . . .” 

The cross-complaint’s prayer listed a number of issues on 

which Hollywood Way sought a declaration. In this appeal, 

Hollywood Way focuses solely on one issue, its request for a 

declaration “that no further buildings may be built, constructed 

or placed on the Hotel Parcel unless and until [Burbank Hotel] 

satisfies the REA, including but not limited to satisfying 

Section 3.3 . . . .”3

The action proceeded to a bench trial on Burbank Hotel’s 

cause of action for declaratory relief, and Hollywood Way’s causes 

3 This quotation is the only language from the prayer cited 

by Hollywood Way on appeal. The prayer also sought, inter alia, 

declarations concerning Burbank Hotel’s obligations as to 

parking gates, signage, and maintenance of the properties, and a 

declaration that a building constructed on the hotel property 

failed to support its own parking needs as required by the REA. 
8

of action for declaratory relief and public and private nuisance.4

As relevant to this appeal, Burbank Hotel’s managing partner 

testified on cross-examination that under section 6.21 of the REA, 

Burbank Hotel could not “do anything in violation of law, 

including [Planned Development 89-1 and] . . . city codes and 

provisions.” Burbank Hotel’s counsel similarly acknowledged 

that any development would have to go through “the zoning 

process” and the REA would require Burbank Hotel to comply 

with whatever zoning restrictions were in effect, whether 

Planned Development 89-1 or some future modification of those 

requirements.

Following trial, Hollywood Way requested a statement of 

decision, and listed 65 issues it wished addressed. The trial court 

then issued a statement of decision ruling in favor of Burbank 

Hotel on its complaint and against Hollywood Way on its crosscomplaint. 

As to Burbank Hotel’s request for declaratory relief, the 

court found that the REA “only requires a parcel owner to obtain 

the consent of the other parcel owner with respect to making 

changes to a driveway,” not with respect to any other “changes, 

alterations, or development of the Hotel Parcel.” The court 

further found that Hollywood Way had unreasonably withheld its 

consent in violation of the REA and “operated in bad faith 

throughout.” Based on evidence at trial, the court concluded that 

4 The trial court granted summary adjudication against

Hollywood Way on its causes of action for breach of fiduciary 

duty, accounting, and unjust enrichment/restitution. The court 

bifurcated for trial Hollywood Way’s breach of contract claim, 

which was the sole claim for damages as opposed to equitable 

relief. The parties later stipulated to enter judgment in favor of 

Burbank Hotel on the breach of contract claim. 
9

Hollywood Way had withheld consent in order to interfere with 

Burbank Hotel’s broader development plans. The court 

characterized this as a “shakedown” intended to obtain millions 

of dollars in exchange for Hollywood Way dropping its objections 

to the development. Accordingly, the court ruled that Hollywood 

Way, by unreasonably withholding consent in violation of the 

REA, effectively granted consent. 

The trial court found that “[Hollywood Way’s] cross-claim 

for declaratory relief is not altogether clear,” but “[i]nsofar as 

[Hollywood Way’s] cross-claim for declaratory relief seeks the 

Court’s declaration regarding the rights of the parties under the 

REA concerning development of their respective parcels, the 

Court has done so with respect to [Burbank Hotel’s] request for 

declaratory relief. Insofar as [Hollywood Way] seeks a 

declaration concerning other actions by [Burbank Hotel]

purportedly in violation of the REA, the Court declines to do so. 

The Court does not find that [Hollywood Way] met its burden to 

prove [Burbank Hotel] violated any provisions of the REA.” The 

court further found that Hollywood Way had failed to prove that 

any acts by Burbank Hotel constituted a public or private 

nuisance. 

The trial court entered judgment in favor of Burbank Hotel 

on its cause of action for declaratory relief and against Hollywood 

Way on all causes of action in its cross-complaint. It determined 

that Burbank Hotel was the prevailing party and awarded 

attorney fees of $1,413,369 and costs of $12,904.30. 

Hollywood Way timely appealed. 
10

DISCUSSION

The sole question in this appeal is whether the trial court 

erred in denying Hollywood Way’s request for declaratory relief. 

Hollywood Way does not otherwise challenge the judgment, 

including the trial court’s granting of Burbank Hotel’s request for 

declaratory relief. 

A person may bring an action for declaratory relief to 

resolve an “actual controversy relating to the legal rights and 

duties of the respective parties.” (§ 1060.) The “actual 

controversy” requirement “ ‘ “encompasses a probable future 

controversy,” ’ ” not one that is “ ‘ “conjectural, anticipated to 

occur in the future, or an attempt to obtain an advisory opinion 

from the court. ” ’ ” (Artus v. Gramercy Towers Condominium 

Assn. (2018) 19 Cal.App.5th 923, 934 (Artus).) We review de novo 

whether a claim presents an “actual controversy.”5 (Redondo 

Beach Waterfront, LLC v. City of Redondo Beach (2020) 

51 Cal.App.5th 982, 1000.)

As an initial matter, on appeal Hollywood Way greatly 

narrows the scope of its request for declaratory relief. The prayer 

of its cross-complaint listed many issues for which it sought 

judicial declarations, as did its request for a statement of 

decision. On appeal, in contrast, it asserts only one issue in the 

prayer on which it contends the trial court erred, namely “that no 

further buildings may be built, constructed or placed on the Hotel 

Parcel unless and until [Burbank Hotel] satisfies the REA, 

including but not limited to satisfying Section 3.3 . . . .” Again, 

5 The parties dispute what standard of review applies 

assuming the threshold requirement of an actual controversy is 

met. We need not reach that question to resolve this appeal.
11

section 3.3 permits the property owners to “change . . . buildings 

and parking configurations” subject to section 6.21 and “the 

restrictions and limitations set forth” in the REA. Section 6.21 in 

turn prohibits any changes to the property “in violation of 

applicable laws and codes” including Planned Development 89-1, 

and requires city approval for such changes. 

Similarly, of the 65 questions presented in its request for a 

statement of decision, on appeal Hollywood Way identifies only 

three questions purportedly pertinent to the single issue 

identified in the prayer:

6 (1) “Are [Burbank Hotel’s] rights to 

develop on the Hotel Parcel, pursuant to the REA section 6.21,

limited to what is permitted to be developed under Planned 

Development 89-1 . . . ?”; (2) “Must any development of a building 

by [Burbank Hotel] satisfy the City of Burbank Zoning

Regulations, to satisfy REA section 6.21?”; and (3) “Has 

[Burbank Hotel] demonstrated, by a preponderance of the 

evidence, that any development of new building(s) it seeks to 

develop on the Hotel Parcel will not substantially interfere with

[Hollywood Way’s] easements over the Driveways and Parking 

Areas of the Hotel Parcel?” 

6 Hollywood Way’s request for a statement of decision had 

separate sections for questions pertinent to the declaratory relief 

sought by Burbank Hotel and questions pertinent to the 

declaratory relief sought by Hollywood Way. The three questions 

identified in this appeal were in fact in the section of questions 

pertinent to Burbank Hotel’s claim, not Hollywood Way’s claim. 

Thus, we question Hollywood Way’s contention on appeal that 

these questions were intended “[t]o support [Hollywood Way’s] 

prayer for relief.” We nonetheless accept for purposes of 

argument that the three questions were intended to support 

Hollywood Way’s own prayer for relief.
12

Apart from the above-quoted language, Hollywood Way 

does not identify on appeal any other portion of the prayer or the 

request for a statement of decision on which it contends the trial 

court ruled erroneously or failed to rule. Any such contention 

therefore is forfeited, and we limit our analysis to the language 

quoted by Hollywood Way in its appellate briefing. (See Osornio 

v. Weingarten (2004) 124 Cal.App.4th 304, 316, fn. 7 [contention 

raised below but not advanced on appeal waived].)

Turning to the arguments on appeal, Hollywood Way

contends the trial court failed to address adequately its request 

for declaratory relief and accompanying questions in the request 

for a statement of decision. Hollywood Way focuses on the 

sentence in the statement of decision stating, “Insofar as 

[Hollywood Way’s] cross-claim for declaratory relief seeks the 

Court’s declaration regarding the rights of the parties under the 

REA concerning development of their respective parcels, the 

Court has done so with respect to [Burbank Hotel’s] request for 

declaratory relief.” Hollywood Way contends this was error, 

because resolution of Burbank Hotel’s declaratory relief request 

did not in fact address Hollywood Way’s request. 

Hollywood Way characterizes Burbank Hotel’s request as 

limited to the consent issue, that is, on what issues the REA 

required the consent of the other property owner. Hollywood 

Way claims its request was broader, seeking a declaration as to 

“whether—independent from the consent issue—further 

development must adhere to the terms of the REA, including the 

zoning requirements of [Planned Development 89-1] and the 

parties’ easement rights.” 

The flaw in Hollywood Way’s argument is that there is no 

“actual controversy” on the issue on which it sought declaratory 
13

relief. Hollywood Way identifies no evidence suggesting that 

Burbank Hotel has taken the position that it may develop its 

property without complying with any aspect of the REA, or that it 

has taken any actions demonstrating an intent not to comply 

with the REA. Nor does Hollywood Way identify any terms of the 

REA on which the parties disagree, apart from the issue of 

consent on which the trial court expressly ruled and which 

Hollywood Way does not contest on appeal.

7 

Indeed, the evidence shows Burbank Hotel repeatedly 

confirming that it must comply with the REA, and specifically 

with section 6.21’s requirement that it seek city approval and 

comply with “applicable laws and codes, including, without 

limitation, the provisions of Planned Development 89-1.” 

Burbank Hotel stated in correspondence to Hollywood Way that 

“any further building or development shown on the site plans, or 

otherwise, requires City approval and compliance with the terms 

of the REA,” and, later, “that certain contemplated changes to the 

site must be approved by the City of Burbank.” At trial, Burbank 

Hotel’s managing partner testified that Burbank Hotel could not 

“do anything in violation of law, including [Planned Development 

89-1 and] . . . city codes and provisions,” a position echoed by 

Burbank Hotel’s counsel. 

7 Assuming arguendo the trial court did not rely on the 

absence of an actual controversy to deny Hollywood Way’s 

request for a declaratory judgment, “we may affirm the trial 

court’s ruling ‘on any basis presented by the record whether or 

not relied upon by the trial court.’ [Citation.]” (McClain v. 

Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 802.) The 

parties, moreover, have briefed whether Hollywood Way’s 

declaratory relief claim presents an actual controversy. 
14

Hollywood Way in fact cites this evidence in its appellate 

briefing. In arguing that it was entitled to declaratory relief, 

Hollywood Way notes that “Burbank Hotel never disputed that 

the REA is valid and enforceable,” and “expressly acknowledged 

the REA’s limitations on further development.” Citing the 

testimony and statements of the managing partner and counsel 

of Burbank Hotel summarized above, Hollywood Way contends 

“the parties agree that the [Planned Development 89-1] zone 

restricts the uses of the Property.” “Nevertheless,” argues 

Hollywood Way, “the statement of decision failed to address” 

Hollywood Way’s claim for declaratory relief. 

In making this argument and citing this evidence, 

Hollywood Way appears to contend that because Burbank Hotel 

did not dispute that the REA placed limitations on its ability to 

develop its property, there was no reason for the trial court not to 

grant declaratory relief so stating. Hollywood Way has it 

backwards—when an issue is undisputed, there is no “actual 

controversy” and therefore no basis for declaratory relief. Any 

declaration from the trial court would simply reiterate the terms 

of the REA, terms that are not in dispute.

Hollywood Way argues there is an actual controversy 

demonstrated by the parties’ ongoing dispute since 2016 

regarding development of the hotel property. We certainly agree 

the parties are in conflict—Burbank Hotel wishes to develop its 

property and Hollywood Way opposes that development. There is 

no indication, however, that the parties are in conflict over the 

specific issue underlying Hollywood Way’s declaratory relief 

claim, namely whether Burbank Hotel’s development plans must 

comply with the REA, including compliance with city laws and 

regulations and preservation of the parties’ easement rights.
15

Hollywood Way notes its easement rights are protected 

solely by the REA, and not “by the City or its zoning regulations.” 

Thus, Burbank Hotel’s agreement to comply with Planned 

Development 89-1 and other applicable laws and regulations 

does not guarantee preservation of the easements. 

Assuming arguendo Burbank Hotel’s express reassurances

of REA compliance do not encompass the easements, Hollywood 

Way nevertheless fails to show that there is any dispute 

regarding the REA’s easement requirements. The fact that 

Burbank Hotel may not have affirmatively stated an intent to 

comply with the easement requirements, unlike its express 

statements that it would comply with zoning and other 

regulations, does not compel the conclusion that it therefore 

intends to violate the easement requirements. Hollywood Way 

identifies no evidence that Burbank Hotel disagrees with 

Hollywood Way regarding the easement requirements, or has 

taken action contrary to those requirements.

We note that Hollywood Way’s request for a statement of 

decision asked, “Has [Burbank Hotel] demonstrated, by a 

preponderance of the evidence, that any development of new 

building(s) it seeks to develop on the Hotel Parcel will not 

substantially interfere with [Hollywood Way’s] easements over 

the Driveways and Parking Areas of the Hotel Parcel?” It was 

not Burbank Hotel’s burden as cross-defendant to prove this; 

rather, it was Hollywood Way’s burden to prove Burbank Hotel’s 

conduct justified the declaratory relief sought. (Boosman v. 

United Bldg. Co. (1952) 109 Cal.App.2d 486, 488 [plaintiff has 

burden to show the presence of an actual controversy and “that 

conditions existed which would justify the court in exercising its 
16

discretionary powers to grant . . . declaratory relief”].) On appeal, 

Hollywood Way identifies no evidence satisfying that burden.

Hollywood Way argues it may seek a declaratory judgment 

to avert future litigation, and need not wait for Burbank Hotel to 

breach the REA by moving forward with development. We do not 

disagree with this, but Hollywood Way must nonetheless 

demonstrate “ ‘ “a probable future controversy.” ’ ” (Artus, supra, 

19 Cal.App.5th at p. 934.) Again, Hollywood Way identifies no 

evidence Burbank Hotel intends to or is likely to take any action 

in violation of the REA. To the extent Hollywood Way is trying to 

avert future violations of the REA, its declaratory relief claim is 

“pure speculation.” (Ibid. [plaintiff’s suggestion that future 

homeowner’s association elections could violate certain statutes 

was speculative, and thus “insufficient to support declaratory 

relief”].)

Hollywood Way contends Burbank Hotel’s “continued 

resistance” to Hollywood Way’s request for declaratory relief 

“alone establishes an actual controversy.” We decline to hold that 

merely opposing a declaratory relief action thereby creates a 

controversy entitling the plaintiff to declaratory relief. 
17

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs 

on appeal.

NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.