Marts v. Tong

Filed 8/30/06 Marts v. Tong CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MICHAEL MARTS et al.,

Plaintiffs and Appellants,

MAY LEE TONG et al.,

Defendants and Respondents.

G035067

(Super. Ct. No. 03CC11649)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.

Law Offices of Daniel J. DeWit, Daniel J. DeWit; and Brooke M. Miller for Plaintiffs and Appellants.

Randall S. Waier and Rooha Asifuddin for Defendants and Respondents.

* * *

This is an appeal from a judgment for less than $5,000 arising out of a failed attempt by two entrepreneurs to open a sandwich deli shop in suite 103 in an office building in Costa Mesa known as Harbor Plaza. To be sure, the judgment is for a piddling amount. But the lease which has given rise to this litigation has an attorney fee clause and the trial court awarded some $28,000 in attorney fees to the owners and manager of the building.[1] The reason the judgment is so small, as explained by the trial court's statement of decision, was that a new tenant paying higher rent was soon found after plaintiffs breached their lease by not paying rent.[2]

Essentially, the dispute centers on whether the two entrepreneurs could open their sandwich shop given limited parking space serving the building. The entrepreneurs, plaintiffs Michael Marts and James S. Kittell, claimed in their complaint that a certain section of the Costa Mesa Municipal Code (§ 13-89) requires that there be at least ten parking spaces for a food and beverage establishment with more than 300 square feet of public area, but, because of â€

Description	The dispute centers on whether the two entrepreneurs could open their sandwich shop given limited parking space serving the building. The entrepreneurs, plaintiffs, claimed in their complaint that a certain section of the Costa Mesa Municipal Code (S 13 to 89) requires that there be at least ten parking spaces for a food and beverage establishment with more than 300 square feet of public area, but, because of "restrictions of space and existing obligations" the building could not accommodate that required parking. According to the owner of the building, its manager, knew or should have known that their sandwich shop would require more than 300 square feet of public area, knew or should have known that the building did not have adequate legal parking, but didn't tell them, and in fact, by entering into the lease, "constructively represented" that there was enough space when there really wasn't.
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