Pemstein v. Pemstein
Filed 11/6/13 Pemstein v. Pemstein CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
MARTIN PEMSTEIN,
Plaintiff and
Appellant,
v.
HAROLD PEMSTEIN,
Defendant and
Respondent.
G047338
(Super. Ct.
No. 30-2009-00119103)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Gregory H. Lewis, Judge. Affirmed.
Manahan, Flashman &
Brandon, Amanda E. Manahan and Jeffrey S. Flashman for Plaintiff and Appellant.
Harold Pemstein, in pro.
per., for Defendant and Respondent.
Martin Pemstein appeals
from the judgment he obtained against his brother Harold Pemstein
in this action for damages relating to rent defaults on leases for two
commercial buildings. He challenges the
amount of damages awarded. We find no
error and affirm.
FACTS AND PROCEDURE
Martin and Harold have
been battling each other for years over the breakup of their family business
comprised of a corporation called The Pemma Corporation (Pemma) and a partnership
called HMS Holding Company (HMS). The corporate
dissolution action has already been the subject of many appeals, including one
filed concurrently with this opinion (Pemstein
v. Pemstein (Nov. 6, 2013,
G047107) [nonpub. opn.]; Pemstein v.
Pemstein (May 16, 2011,
G043349) [nonpub. opn.]; Pemstein v.
Pemstein (June 9, 2004,
G030217) [nonpub. opn.]; Pemstein v.
Pemstein (June 9, 2004,
G029394) [nonpub. opn.]; Pemstein v. The Pemma
Corporation (June 9, 2004,
G031227) [nonpub. opn.]).
The real properties that
are the subject of this action are two commercial buildings located in Santa
Ana at 515 South Santa Fe Street (the 515 Building), and 519 South
Santa Fe Street (the 519 Building).
Originally, HMS was the owner of the buildings, and Pemma was the lessee. During the pendency of the corporate
dissolution action, Pemma and HMS filed for bankruptcy. In 2006, the bankruptcy court entered an
order allowing for Martin to become the sole owner of both buildings and for
Harold to become the lessee of both buildings.
The bankruptcy trustee created new leases for each building between HMS
and Pemma and then assigned them to Martin and Harold respectively.
The two leases were
identical. The lease term was for four
years from January 1, 2007,
to December 31, 2010. The monthly rent was $3,657.50 for the first
year, subject to a three percent annual increase each year thereafter. The leases provided for rent to be paid on
the first day of each month and provided for imposition of late charges and
interest after five days. The leases
also contained the following paragraph 3.1, pertaining to early
termination of the lease term, which provided in relevant part: “While Lessee is in bankruptcy,
Lessee . . . may terminate this Lease for any reason
whatsoever, after providing thirty (30) days written notice to Lessor. If this Lease is terminated by Lessee during
its bankruptcy, the maximum claim that Lessor may have against Lessee for early
termination shall be four (4) months of rent. After Lessee’s bankruptcy, Lessee may
terminate this Lease for any reason by providing at least 120 days written
notice, and upon such early termination, Lessee shall pay to Lessor a lump sum
amount equal to four (4) months of rent.â€
The Complaint
Martin filed the instant
action against Harold in May 2009, for damages relating to rent defaults on
both buildings.
As to the 515 Building,
Martin alleged that on October 30, 2007,
Harold gave written notice of his intent to terminate the lease, saying he
would be off the premises by November
30, 2007. Harold did not
fully vacate the premises until December
20, 2007. Harold paid Martin
the December rent but no rent thereafter, and did not make a lump sum payment
equal to four months’ rent.
As to the 519 Building,
Martin alleged Harold was routinely late in his rent payments. On December
7, 2007, Martin served Harold with a three-day notice to perform
covenant or quit, and on January 20,
2008, Martin commenced an unlawful detainer action. Martin obtained a judgment in the unlawful
detainer action, entered May 7,
2008, and served on Harold May 8, giving possession of the premises
back to Martin, and ordering Harold to pay Martin $1,463 in late fees for the months
of August 2007 through November 2007.
The unlawful detainer judgment stated Harold “may in the future become
liable for daily damages, alleged in the complaint to be $139.73 per day, [but]
such future damages are not properly included in this judgment . . . .†Harold did not vacate the premises until June
2008, and Martin was not able to find a new tenant. Martin alleged Harold was liable for rent
throughout the remainder of the lease term, plus other damages. Martin’s complaint also contained a cause of
action seeking to recover attorney fees he had incurred prosecuting the
unlawful detainer action.
The matter proceeded to
a bench trial in April 2012, conducted
solely upon the parties’ trial briefs, argument of counsel, and exhibits
submitted to the court. The joint
exhibit list describes 90 exhibits that were provided to the court. Some of the exhibits (we have been able to
identify approximately 26 of them) are attached to the trial briefs included in
the clerk’s transcript, but most of the exhibits have not been provided to
us. Martin’s designation of the record
on appeal identifies only one exhibit to be included in the clerk’s transcript
record on appeal (see Cal. Rules of Court, rule 8.122(a)(3))—a notice of
eviction—but that exhibit is not in the clerk’s transcript. Martin has not filed a rule 8.224 notice
(Cal. Rules of Court, rule 8.224) designating any trial exhibits to be
considered by this court, nor have any of the other exhibits been transmitted
to this court.
title="">[2]
At the beginning of
trial, the parties stipulated the primary legal issue to be determined was the
interpretation of paragraph 3.1 of the leases regarding what future rent
was owed upon early termination of the leases.
Martin argued Harold was required to pay rent during the 120-day notice
period, and then upon expiration of the notice period (i.e., termination of the
lease) had to also pay an amount equal to another four months of rent, i.e.,
eight months total for potential future rent from the time notice of
termination was given. Harold argued paragraph
3.1 established four months’ rent as the maximum he would have to pay upon giving
notice he was terminating the lease. Harold
argued if he had to pay rent during the 120-day notice period and then also pay
an amount equal to another four months’ rent, the latter would constitute an
illegal penalty or liquidated damages provision.
The trial court
apparently agreed with Harold’s position.
It explained: “A clear
understanding of [paragraph 3.1] . . . is that [provision]
allows for termination of the lease by giving 120-days notice, and upon such
early termination, meaning of the notice period, that the lessee was to pay to less[or]
a lump sum amount equal to four months of rent, so I think that the four months
of rent is tied into the notice period of early termination of the 120 days. I do not believe that it’s disjunctive and
would act as a liquidated damage clause or a penalty, but it fails 1546 of the
Civil Code
in that regard. That’s my ruling.†Before beginning presentation of evidence and
argument, Martin’s counsel confirmed his understanding of the court’s
interpretation of paragraph 3.1 was that he could only recover a maximum of
four months of rent as future rent damages.
The 515 Building Evidence and
Argument
The following evidence/argument
was presented to the trial court as to the 515 Building. Harold gave written notice to Martin on
October 30, 2007, he was terminating the lease on the 515 Building as of the
end of November 2007. He did not vacate
the premises until December 20, 2007. On
December 29, 2007, Martin signed a one-year lease with new tenants for the
515 Building at a monthly rent of $4,250 ($592.50 more than Harold’s rent)
and the new tenant took possession on January 1, 2008. (The joint exhibit list indicates there was
another lease provided to the trial court for the 515 Building to a tenant
named “Stellar,†but that lease has not been provided to us.)
The record contains copies
of checks (most of which were a few days late) from Harold to Martin for payment
of rent on the 515 Building as follows:
$3,657.50 for the months of January, February and March 2007; $4,754.75
(rent and late fees) for April 2007; and $3,657.50 for the months of May,
June, July, and August 2007. Although
the record does not contain checks for September or October 2007, Martin’s
payment schedule provided to the trial court represented Harold timely paid
rent for both those months.
The clerk’s transcript
contains two different schedules prepared by Martin of the amounts he claimed
Harold owed on the 515 Building. One was
attached to Harold’s trial brief, but it is not clear if it was actually an
exhibit admitted at trial—it does not appear on the parties’ joint exhibit
list. It showed no rent paid by Harold
for November or December 2007, but that Martin credited Harold’s security
deposit to the rent due for November 2007.
This schedule showed late charges Martin assessed Harold for several
months in 2007, although those late charges are not at issue on this
appeal.
Martin’s trial brief
contained a different schedule by which he calculated what Harold owed him on
the 515 Building. Martin claimed that as
of October 2007, Harold would have owed $2,091.13 in late charges and
interest on late rent. When Harold gave
notice in October he was terminating the lease, he became obligated to pay
Martin for four more months of rent (a total of $14,739.73) because the lease
required 120 days notice before it terminated.
Martin then credited Harold for his security deposit (applying it to November
rent), which brought the total to $14,400.
Martin then added 10 percent annual interest through trial, to
bring the claimed total to $20,640.
The 519 Building Evidence and
Argument
Various documents
relating to the unlawful detainer proceeding on the 519 Building were
before the trial court and we detail them first. Martin served a
three-day notice
to perform covenant or quit on Harold on December 17, 2007, which stated Harold
owed $1,828.75 in late fees under the lease for the months of August through
December 2007, and declaring the lease forfeit.
The unlawful detainer
action was filed on January 20, 2008. In
its April 23, 2008, statement of decision in the unlawful detainer action, the
court found Harold violated the lease by habitually making late rent payments and
not paying the late charges and the lease was forfeited. It found Martin was entitled to judgment for
late fees for August 2007 through November 2007—a total of $1,463. The court found Harold had paid December 2007
rent and it “[could not] award additional sums for unpaid rent following
December of 2007, if any, as the evidence presented simply failed to establish
what if anything more was owed by Harold.â€
The court declined to award any damages for a malicious holdover. The court found Martin was also “entitled to
$139.73 per day in daily damages from the date of entry of judgment.â€
The judgment in the
unlawful detainer proceeding was entered May 7, 2008. It gave Martin possession of the premises and
awarded him $1,463 for late fees. The
judgment stated, “Although [Harold] may in the future become liable for daily
damages, alleged in the complaint to be $139.73 per day, such future damages
are not property included in this judgment . . . .†Martin regained possession of the 519
Building on May 29, 2008.
The clerk’s transcript
contains checks for Harold’s payment of rent on the 519 Building as
follows: $3,657.50 for the months of January,
February, and March 2007; $4,753.75 (rent and late fees) for April 2007;
$3,657.50 for the months of May, June, July, and August 2007; $3,657.50 for the
months of November and December 2007; and $3,657.50 for the months of January,
February, and March 2008. Although the
record does not contain a check for April 2008, Martin’s payment schedule presented
to the court represents that Harold timely paid rent for that month and Martin
applied Harold’s security deposit to the May 2008 rent. Although the parties’ joint exhibit list
indicates the 519 Building was subsequently re-let, the documents pertaining to
the new lease are not before us, and thus, we do not know when and for how much. Martin’s counsel represented the new lease
was obtained eight months after he regained possession.
Judgment
trial court entered a judgment awarding Martin damages of $4,939.56 relating to
the 515 Building lease and no damages as to the 519 Building lease. It declined to award Martin any damages on
his cause of action seeking attorney fees for the unlawful detainer action
because he did not present any evidence on that cause of action.
A statement of decision
was not requested, however, the trial court made comments on the record explaining
its ruling. As to the 515 Building lease,
the court concluded when Harold gave notice at the end of October 2007, he was
terminating the lease he would have owed Martin for four more months rent
pursuant to paragraph 3.1. Martin re-let
the premises effective January 1, 2008, so Harold only owed for November and
December 2007, plus late fees and interest.
The court explained Harold owed Martin a total of $8,597.55, less the
security deposit of $3,657.50, for a total of $4,939.56. As to the 519 Building, the court commented Harold
had paid all rents due for January, February, March, and April 2008. The
security deposit was used for May 2008 rent.
Possession of the premises was returned to Martin on May 29, 2008, so no
further rental damages would be ordered.
DISCUSSION
1. Standard of Review
“[I]t is settled that
[on appeal]: ‘A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ [Citations.]†(Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore, an appellant has an affirmative
duty on appeal to overcome the presumption of correctness and demonstrate
prejudicial error. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207.)
Questions of law, such
as the proper interpretation of a contract when it does not turn on the
credibility of extrinsic evidence, are reviewed de novo (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238),
but if a party does not request a statement of decision, the appellate court
will imply all necessary factual findings to support the judgment. (In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) Here, because no statement of decision was
requested, we “imply all findings necessary to support the judgment, and our
review is limited to whether there is substantial evidence in the record to
support these implied findings.†(
Cal.App.4th 923, 928.)
2. The 519 Building
Martin contends the
trial court improperly applied res judicata/collateral estoppel principles to conclude
the unlawful detainer action resolved all
rent damage issues as to the 519 Building lease and, thus, it erred by failing to
award him the early termination fee provided for under paragraph 3.1 of the
lease. We reject his contentions.
Before addressing what
we discern Martin’s argument to be, we address what it cannot be. Martin’s argument is couched in terms of
attacking the trial court’s failure to award him the early termination fee (equal
to four months’ rent) provided for in paragraph 3.1. But by its terms, the provision has no
applicability to the 519 Building lease for the simple reason Harold did not
elect to terminate the 519 Building lease early. It was Martin who terminated the 519 Building
lease by evicting Harold for nonpayment of approximately $1,400 in late
fees. Thus, Martin was not entitled to
payment of an early termination fee under Paragraph 3.1 as to the 519
Building. We turn then to Martin’s argument
the trial court improperly concluded principles of res judicata and collateral
estoppel precluded Martin’s recovery of “future rents†for the 519 Building.
“‘“The doctrine of
in subsequent litigation involving the same controversy.†[Citation.] The doctrine “has a double aspect.†[Citation.] “In its primary aspect,†commonly known as
claim preclusion, it “operates as a bar to the maintenance of a second suit
between the same parties on the same cause of action. [Citation.]†[Citation.] “In its secondary aspect,†commonly known as
collateral estoppel, “[t]he prior judgment . . . ‘operates’â€
in “a second suit . . . based on a different cause of
action . . . ‘as an estoppel or conclusive adjudication as
to such issues in the second action as were actually litigated and determined
in the first action.’ [Citation.]†[Citation.] “The prerequisite elements for applying the
doctrine to either an entire cause of action or one or more issues are the
same: (1) A claim or issue raised in the present action is identical to a
claim or issue litigated in a prior proceeding; (2) the prior proceeding
resulted in a final judgment on the merits; and (3) the party against whom the
doctrine is being asserted was a party or in privity with a party to the prior
proceeding. [Citations.]â€â€™ [Citation.]†(Boeken
v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) In this context, the phrase “cause of actionâ€
means “the right to obtain redress for a harm suffered, regardless of the
specific remedy sought or the legal theory (common law or statutory) advanced. [Citation.]†(Id.
at p. 798.)
The res judicata effect
of an unlawful detainer proceeding is
narrow, but substantial. “Generally
speaking, an unlawful detainer judgment has limited res judicata force because
it typically follows a summary proceeding focused only on deciding a party’s
right to immediate possession of property.†(Gombiner
v. Swartz (2008) 167 Cal.App.4th 1365, 1371.) “But when litigants to an unlawful detainer
proceeding fully try other issues besides the right of possession, the unlawful
detainer judgment is conclusive as to those other litigated issues. [Citations.]†(Ibid.)
Martin is correct the
unlawful detainer judgment does not preclude an award of damages that was not
adjudicated therein. “In the unlawful
detainer action, the statute prescribes the exclusive measure of damages. The landlord can only recover damages in the
unlawful detainer proceeding incidental to the recovery of possession. His or her recovery is limited to the past
due rent and damages for the value of possession after termination of the lease
and prior to judgment in the unlawful detainer action.†(7 Miller & Starr, Cal. Real Estate
(3d ed. 2012) § 19:208, fns. omitted.) In
the unlawful detainer action, Martin was only entitled to recover the
delinquent rent due on the effective date of the three-day notice to quit (in
this case the unpaid late fees as of December 17, 2007), and any post-notice,
reasonable rental value of the property during the time Harold “wrongfullyâ€
occupied the property after failing to surrender possession. (Ibid.;
see also § 3334, subd. (b)(2); Code Civ. Proc., § 1174.) Any claims Martin had for damages accruing
and prior to his regaining possession of the property, and for “future rent
damages,†i.e., damages for the remainder of the lease term after regaining
possession, were only recoverable in a separate action for damages brought
under section 1951.2. (7 Miller
& Starr, Cal. Real Estate, supra,
§ 19:209, fns. omitted; see also Code Civ. Proc., § 1174.5
[unlawful detainer judgment does not bar subsequent action for damages under
section 1951.2].)
Martin served a
three-day notice to perform covenant or quit on Harold on December 17, 2007,
and filed his unlawful detainer action on January 20, 2008. The unlawful detainer complaint is not part
of the record on this appeal. Accordingly,
we have no record as to the damages Martin sought to adjudicate. But the court in the unlawful detainer action
determined Harold owed Martin $1,463 in late fees for August 2007 through November
2007. As for Martin’s post-notice,
unlawful detainer action concluded Harold paid the December 2007 rent, and
Martin failed to introduce any evidence as to any additional amounts Harold
owed, i.e., the reasonable rental value of the premises from January 2008 until
the unlawful detainer judgment was entered on May 7, 2008. Moreover, to the extent Martin argues the
unlawful detainer action did not adjudicate those post-notice,
this record demonstrates) Harold in fact paid rent for January, February, March,
and April 2008, and Martin retained Harold’s security deposit which covered the
rent for May 2008 (thus, also covering the rental value from the entry of
judgment on May 7, until Martin regained possession on May 29, 2008). In short, the record supports the implied
findings by the trial court in this case that all rent claims due up until the
time Martin regained possession were resolved.
Martin argues he was
also entitled to prospective damages for the unpaid rent for the remainder of
the original lease term—an amount he asserts would be equal to the early
termination fee specified in paragraph 3.1, i.e., four months rent. (As we already have noted above, Martin was
not entitled to an early termination fee, because Harold did not terminate the
lease—Martin did.)
A lessor may only
recover damages for the balance of a lease term in accordance with
section 1951.2, subject to his duty to mitigate those damages. Under that section, “Subject to certain
limitations, as additional damages caused by the tenant’s breach of the lease,
the landlord may recover the amount by which the unpaid rent for the balance of
the lease term that accrues after the time of the award exceeds the amount of
rent loss the tenant proves could reasonably have been avoided by the landlord,
discounted at the discount rate of the Federal Reserve Bank of San Francisco at
the time of the award, plus 1%.†(7 Miller
& Starr, Cal. Real Estate, supra,
§ 19:209, fns. omitted; see § 1951.2, subds. (a) & (b).)
A lessor cannot recover
the excess of the unpaid rent for the balance of the term unless: “(1) The lease provides that the damages [the
lessor] may recover include the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award, or
for any shorter period of time specified in the lease, exceeds the amount of
such rental loss for the same period that the lessee proves could be reasonably
avoided; or [¶] (2) The lessor relet the property prior to the time of award
and proves that in reletting the property he acted reasonably and in a
good-faith effort to mitigate the damages, but the recovery of damages under
this paragraph is subject to any limitations specified in the lease.†(§ 1951.2, subd. (c)(1) & (2).)
Martin
has made no argument, let alone any showing, he satisfied the requirements of
section 1951.2. Indeed, he does not
mention the statute. Because there is no
statement of decision, we must imply findings by the trial court that the
requisites for recovery of future rents for remainder of the lease term were
not met. Martin has not demonstrated any
error by the trial court in declining to award damages for the remainder of the
rent term.
3. The 515 Building
Martin also challenges
the damage award as to the 515 Building lease.
Martin’s argument is not entirely clear, but the bottom line is he
believes he should have been awarded four months’ rent attributable to the
120-day notice period from the time Harold notified him he was terminating the
lease—offset by the rent he received upon re-letting the premises two months
into the 120-day notice period—plus the lump sum payment provided for in
paragraph 3.1 of the lease. We reject
Martin’s contention.
Although not clearly
articulated in his brief, the gist of Martin’s argument appears to be the trial
court incorrectly interpreted paragraph 3.1.
Before trial, the court appeared to interpret paragraph 3.1 as
establishing four months’ rent as the maximum Harold would have to pay Martin in
the event the lease was terminated early.
Martin does not discuss any law concerning contract interpretation. We apply a de novo standard of review. (Morgan
v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th
836, 843.)
“A lease agreement is
subject to the general rules governing the interpretation of contracts. [Citation.]
‘A contract must be so interpreted as to give effect to the mutual
intention of the parties as it existed at the time of contracting, so far as
the same is ascertainable and lawful.’
[Citation.] When possible, the
parties’ mutual intention is to be determined solely from the language of the
lease. ‘The “clear and explicit†meaning
of these provisions, interpreted in their “ordinary and popular sense,†. .
. controls judicial interpretation.’
[Citation.] ‘Interpretation of a
contract “must be fair and reasonable, not leading to absurd conclusions. [Citation.]â€â€™
[Citation.]†(
Partnership (2007) 157 Cal.App.4th 1515, 1521.)
We generally agree with Martin
as to the interpretation of paragraph 3.1.
The provision must be read in full:
“While the Lessee is in bankruptcy, Lessee . . . may
terminate this Lease for any reason whatsoever, after providing thirty (30)
days written notice to Lessor. If this
Lease is terminated by Lessee during its bankruptcy, the maximum claim that
Lessor may have against Lessee for early termination shall be four (4) months
of rent. After Lessee’s bankruptcy,
Lessee may terminate this Lease for any reason by providing at least 120 days
written notice, and upon such early termination, Lessee shall pay to Lessor a
lump sum amount equal to four (4) months of rent.â€
A plain reading of paragraph
3.1 envisions two early termination circumstances. The first (encompassed by the first two
sentences) was if the lessee (originally Pemma) was still in bankruptcy, the lease
could be terminated on 30 days written notice and the maximum damages the
lessor (originally HMS) could recover would
be “four (4) months of rent.†The
second circumstance, which the parties agree is the one applicable here, was
that after the bankruptcy the lessee
(now Harold) could terminate the lease by giving 120 days notice to the lessor
(now Martin), and upon the termination
of the lease, paying “a lump sum amount equal to four (4) months of rent.†Because the lease would not have
notice period (see, e.g., Highland
Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 8 [“[t]he tenancy
is not terminated on the giving of the notice but on expiration of the notice
periodâ€]), paragraph 3.1 envisions payment of rent during the notice
period (while the lease remained in effect) and then payment of a lump sum upon
the termination of the lease at the conclusion of the notice period.
But we disagree with
Martin his subsequent re-letting of the premises had no bearing on whether Harold
was obligated to make the paragraph 3.1 payment. Harold gave notice on October 30, 2007, he
was terminating the lease. Although
Harold purported to give 30 days’ notice, the lease would not have terminated
until expiration of the 120-day period in February 2008. Martin re-let the property effective January
1, 2008, at a significantly higher rent, before the expiration of Harold’s
lease and before any early termination payment accrued. “‘It has long been the settled law of this
state, that while re-entry by the landlord and his resumption of the benefits,
use and enjoyment of the premises terminates the lease, so far as the landlord’s
right to rentals subsequent to such entry is concerned, this does not affect
the tenant’s liability for rent accrued prior to such re-entry.’ [Citations.]â€
(Space Properties, Inc. v. Tool
Research Co. (1962) 203 Cal.App.2d 819, 826.) Gould
v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, the sole
authority Martin cites in support of his argument, does not aid him. Although Gould
observed a lease’s early termination payment provision was not “rent†but
rather “payment[] for the exercise of a right or privilege†of terminating the
lease early (Id. at p. 1180), it
did not involve a circumstance like we have here—where the premises was re-let
prior to expiration of the termination period.
In sum, the trial court did not err by concluding Harold was liable only
for the unpaid rent prior to re-letting the premises.
DISPOSITION
The
judgment is affirmed. In the interests
of justice, each side shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM,
J.
BEDSWORTH, J.
hereafter refer to the parties by their first names for ease of reading and to
avoid confusion, and not out of disrespect.
(In re Marriage of James
& Christine C. (2008) 158 Cal.App.4th 1261, 1264, fn. 1.)
name="_ftn2" title="">[2] “Where
exhibits are missing we will not presume they would undermine the judgment. [Citation.]â€
(Western Aggregates, Inc. v.
County of Yuba (2002) 101 Cal.App.4th 278, 291; see also
Corp. (2003) 107 Cal.App.4th 921, 925, fn. 1.)
