Aljabban v. Fontana Indoor Swap Meet CA4/1 ( 2020 )

Filed 8/18/20 Aljabban v. Fontana Indoor Swap Meet CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MOHAMED ALJABBAN, D076214
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS1312923)
FONTANA INDOOR SWAP MEET,
INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Donald Alvarez, Judge. Reversed with directions.
Law Office of Ugo Harris P. Ejike and Ugo-Harris P. Ejike for Plaintiff
and Appellant.
Borton Petrini and Joseph L. Richardson for Defendants and
Respondents.
Mohamed Aljabban appeals from an adverse judgment after a bench
trial in the lawsuit that he and his wife, Jacqueline Carrasco, filed against
Fontana Indoor Swap Meet, Inc. (FISM), Jonathan Shapiro and Victor
Ramirez (collectively, defendants).1 Aljabban also separately appeals from
the orders awarding attorney fees and costs to defendants.
Aljabban and Carrasco operated a beauty salon on the premises of an
indoor swap meet managed by FISM and its president, Shapiro. Aljabban
contends that (1) the trial court erred in concluding that he and Carrasco
were not permitted to remove a sink/cabinet unit, a water heater and some
decorative molding when vacating the premises of the beauty salon; (2) FISM
and Shapiro improperly withheld $680.00 of the security deposit to cover
expenses it incurred to repair damage to the premises; (3) the trial court
should have found that FISM and Shapiro breached the parties’ agreement
under which Aljabban and Carrasco occupied the premises because they
wrongfully failed to renew it; and (4) he did not receive a fair trial because of
alleged misbehavior during trial by Shapiro.
We conclude that only one of Aljabban’s contentions has merit.
Specifically, FISM was not entitled to withhold $680.00 of the security
deposit to cover the expense of repairing damage to the premises, as the
parties did not specifically agree that the security deposit could be used to
cover repairs. Accordingly, we will reverse the judgment and direct the trial
court to enter judgment in favor of Aljabban against FISM in the amount of
$680.00 on the breach of contract and conversion causes of action, and in
favor of defendants on all remaining causes of action. Further, because we
reverse the judgment, we also reverse the attorney fee and costs award, and
we remand for further proceedings on the issue of attorney fees and costs.
1 We identify Carrasco as Aljabban’s wife because they were married
during the events giving rise to this lawsuit, although they were divorced at
the time of trial.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Swap Meet
FISM operates an indoor swap meet in the city of Fontana (the Swap
Meet), consisting of a collection of approximately 75 businesses operating
under one roof in individually assigned spaces provided to them by FISM
under the terms of a vendor’s permit that FISM enters into with each
business on an annual basis. Shapiro is the president of FISM, and Ramirez
worked as a security guard at the Swap Meet during the relevant time
period. FISM does not own the building in which the Swap Meet is located,
but instead leases it from a landlord.
Among the businesses in the Swap Meet are shoe stores, clothing
stores, a pet store, a tattoo parlor, an optometrist, and a snack bar. Since it
opened in 1992, the Swap Meet has dedicated an approximate 400 square foot
area (space H-2) for use as a beauty salon business. According to Shapiro,
when a beauty salon was first established in space H-2, FISM installed sinks
and a water heater. There were two sinks on the wall and one in a cabinet
that was connected to the wall.
B. The Vendor’s Permit That Carrasco and Aljabban Entered into with
FISM
Ruth Garcia operated the beauty salon in space H-2 from 1992 until
she retired and sold her business to Aljabban and Carrasco in July 2011 for
$15,000. After Garcia informed FISM that she intended to sell her business
to Aljabban and Carrasco, FISM approved Garcia’s transfer of space H-2 to
them and entered into a vendor’s permit with Aljabban and Carrasco.
Shapiro testified that the vendor’s permit FISM entered into with
Aljabban and Carrasco was the same form contract that FISM uses for all of
its vendors, customized only to specify the name of the business, the business
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owners, a description of the type of commercial activity the vendor is
permitted to engage in at the swap meet, the amount of monthly rent, and
the amount of the security deposit. The vendor’s permit that Carrasco signed
in July 2011 specified Aljabban and Carrasco were the owners of the business
to be operated in space H-2 under the name “Millenia Beauty Salon,” that the
permit was for “hair salon” and “nail salon” uses, that the monthly rent
would be $1340.00, and that the security deposit was $2,680.00. The vendor’s
permit stated the “Commence Date” was August 1, 2011, and the “Expiration
Date” was August 1, 2012. On July 15, 2012, FISM entered into a renewed
vendor’s permit with Carrasco and Aljabban for the dates of August 1, 2012
to August 1, 2013, with identical terms to the original vendor’s permit.
As the vendor’s permit is a central document in this lawsuit, we turn to
the relevant provisions in that document. Under the heading, “License
Agreement,” the vendor’s permit sets forth 25 separate paragraphs
constituting the terms of the agreement that Carrasco and Aljabban entered
into with FISM.
As relevant here, paragraph 1 specifies that “Vendor is a licensee only.
This agreement is not intended to create a landlord tenant relationship. The
terms of this license is for the dates indicated above. This License Agreement
supersedes any prior contract or agreement between [FISM] and the Vendor
named above in this contract. The prior contract if any is null and void as of
the commencement date of this contract.”
Paragraph 4 states, “Booth construction (i.e. walls, flooring, and
security gates) becomes a permanent fixture with the Swap Meet and may
not be removed or demolished by Vendor upon termination of the license.”
Paragraph 7 states, “Vendor shall not sell, transfer, or assign Vendor’s
space or permit anyone else to occupy it or conduct business from Vendor’s
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space without Management’s prior written consent. Vendor will forfeit his
entire Security Deposit if he violates this clause and sells, transfers or
assigns his space without the consent of Management. . . . Management
shall not unreasonably withhold consent to assignment of the License
Agreement. . . .”
Paragraph 15 states, among other things, “Management reserves the
sole right to terminate this license agreement for any violations of this
License Agreement or any rules and regulations in effect. . . . Vendor’s
Security Deposit is not to be used as Vendor’s final month’s rent unless
approved by Management. Management reserves the sole right to apply
Vendor’s security deposit toward any monies owed for the free rent or rental
concession period . . . .”
Paragraph 17 states, “Management reserves the right to cancel this
License prior to the commencement of the term on three (3) days written
notice.”
Paragraph 22 states, “All merchandise and other property must be
removed from the Vendor’s space and the Swap Meet premises at the end of
the term,” and provides a handling and storage fee for failing to do.
Finally, Paragraph 24 contains an attorney fees provision, which
states, “In the event it becomes necessary to institute legal proceedings to
enforce the terms of this License, the prevailing party shall be entitled to an
award of Attorney’s fees and court costs.”
According to Aljabban, he was not involved in running the salon, but he
spoke with Shapiro in July 2011 before the parties entered into the vendor’s
permit. As Aljabban testified, he asked Shapiro for a 20-year lease, but
Shapiro told him that FISM does not enter into long-term leases, although
there would be an option to renew the vendor’s permit as long as the rent was
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paid. Aljabban did not read or sign the vendor’s permit. Carrasco signed the
vendor’s permit, but she did not read it. Carrasco testified that a manager at
FISM told her that as long as she paid the rent “everything was going to be
okay” and she “could be there for as long as [she] wanted to.” Carrasco
expected to be in space H-2 for “a long time” because Garcia had operated her
business in that space for many years. When Carrasco signed the renewal of
the vendor’s permit for the period August 1, 2012 to August 1, 2013, Carrasco
had no substantive discussion with anyone at FISM about its terms, which
were the same as the terms of the previous vendor’s permit.
C. Carrasco and Aljabban Extensively Remodel the Space
Before moving into space H-2, Carrasco and Aljabban extensively
remodeled it. According to both Carrasco and Aljabban, they spent
approximately $30,000 to remodel the space. They installed new flooring,
drywall, decorative molding, barber chairs, cabinets, and mirrors.
As especially relevant here, they also replaced and removed the sinks
by putting in a new sink/cabinet unit, as well as installing shampoo bowls.
The new sink/cabinet unit apparently replaced a similar unit that was
already in the space,2 and although the evidence is not clear, we infer that
2 The sink/cabinet unit is a one-piece item with the sink recessed into the
top of a cabinet. Photographs of the item, as installed in space H-2, appear in
the record. Aljabban has requested to include in the appellate record the
actual sink/cabinet unit that was presented as a demonstrative exhibit at
trial during his trial testimony. At trial Aljabban testified that the exhibit
was similar to the sink/cabinet unit that was left behind in space H-2. On
May 1, 2019, the court of appeal issued an order stating that it would defer
ruling on Aljabban’s request to transmit the physical exhibit to the court.
The order stated that “[t]he court will notify appellant’s counsel if and when
it is determined that it is necessary to view” the exhibit. We have
determined that it is not necessary for us to view the exhibit for the purpose
of resolving the issues presented on appeal, and we therefore deny Aljabban’s
application to deliver the sink/cabinet unit to the court of appeal.
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the new shampoo bowls replaced the two wall-mounted sinks that Shapiro
testified he installed. As also relevant here, Carrasco and Aljabban replaced
the water heater, locating it inside the sink/cabinet unit, as Carrasco believed
the preexisting water heater was old, and she wanted one with a larger
capacity. FISM was not aware that Carrasco and Aljabban replaced the
sinks and water heater, and according to the testimony of Shapiro and of an
FISM manager, FISM would have provided and installed new sinks and a
new water heater, if needed, using a licensed plumber.
D. After Business at the Salon Declines, FISM Declines to Renew the
Vendor’s Permit in 2013
According to the evidence presented at trial, the volume of business at
the Millenia Beauty Salon declined over time, and Carrasco lost or fired the
employees who had been working in the salon with her. As one FISM
manager testified, “it [was] like a ghost town” in the corner of the Swap Meet
where the salon was located. As Shapiro characterized the situation, “her
business had deteriorated to nothing.”
On June 26, 2013, Carrasco entered into a listing with a real estate
agent to try to sell the salon business for $30,000. According to Carrasco, she
told Shapiro and managers at FISM that she was trying to sell her business.
Shapiro and the FISM managers, in contrast, testified that they had no
knowledge of Carrasco’s intention to sell. FISM would have welcomed a sale
of the business, as the new owner might have made it more successful.
On July 11, 2013, FISM sent a notice to Carrasco and Aljabban,
informing them that FISM would not be renewing the vendor’s permit at the
end of the one-year term, and that they should vacate the space by August
11, 2013. According to Shapiro and managers at FISM, they decided that
they would not renew the vendor’s permit because the salon is the main
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anchor business at the Swap Meet, but it was not successful under Carrasco’s
management.
At some point after FISM issued the notice to vacate, the real estate
agent informed Carrasco she had located a potential buyer for the salon.
However, Carrasco told the agent she would not be able to sell the business
because her permit for the space had not been renewed. Carrasco did not
approach FISM with any information about a potential buyer.
E. In Vacating the Space, Carrasco Attempts to Take the Sink/Cabinet
Unit, the Water Heater, and the Decorative Molding
On the morning of August 4, 2013, Carrasco, along with her mother
and another helper, arrived at the swap meet with a U-Haul truck to move
out of the space. An FISM manager discovered that Carrasco was attempting
to remove certain items the manager considered to be fixtures that Carrasco
did not have the right to take with her, including the sinks, the water heater
and the decorative molding. Carrasco believed that she had the right to take
the items because she paid for them during the remodel, and she called the
police after the FISM manager told her she had to leave behind the items.
When the police arrived, Carrasco agreed to leave the disputed items in the
space and to resolve the issue in court, but when the police left the premises,
Carrasco again acted to take the items. FISM called the police to come back,
and Carrasco was prevented from taking anything else. As a result, the
sink/cabinet unit, the water heater and some pieces of decorative molding
were left behind in the space.3
3 Although the parties do not focus on the issue, it appears from the
photos of the space after Carrasco moved out, as well certain witness
testimony, that FISM did not succeed in preventing Carrasco from removing
and taking with her the two shampoo bowls that were installed on the wall in
space H-2. Much of the decorative molding is removed from the walls in the
8
Security guard Ramirez interacted with Carrasco while she was
attempting to take the disputed items. According to Carrasco’s testimony,
Ramirez struggled with her over the decorative molding, hit her, and caused
bruising. Carrasco’s mother, who was helping with the move, testified that
Ramirez shoved her to the ground. Ramirez testified that he never had any
physical contact with Carrasco and did not push Carrasco’s mother to the
ground. Instead, he took back some decorative molding from Carrasco’s
mother by grabbing the molding, in response to which Carrasco’s mother
tried to pry the molding from Ramirez’s fingers, causing him to release his
grip. Ramirez then blocked Carrasco’s mother from coming back in the door,
and she pushed him.
After Carrasco vacated the space, FISM eventually refunded $2,000.00
of the $2,680.00 security deposit to Carrasco and Aljabban. Shapiro testified
that after Carrasco and Aljabban vacated space H-2, he incurred expenses
because he had to (1) purchase two new sinks and remount them; (2) repair a
portion of the floor that was removed; (3) fix holes in the drywall where
Carrasco had removed the decorative molding; and (4) with respect to the
water heater, properly strap it down and hire an electrician to rewire it
correctly. Shapiro stated that he withheld $680.00 of the security deposit to
cover those expenses.
Sometime after space H-2 was vacated, a former employee of Garcia
and Carrasco noticed that the space was available. FISM agreed to allow her
to operate a salon in the space.
photos, although it is unclear if any pieces of decorative molding were
removed from the wall but left behind somewhere else in the space. No
evidence was presented as to the value of the sink/cabinet unit, the water
heater, or the decorative molding that was left behind.
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F. The Litigation of Aljabban and Carrasco’s Lawsuit
1. The Complaint
On October 24, 2013, Aljabban and Carrasco filed a complaint against
FISM. A first amended complaint added Shapiro as a defendant, and the
operative second amended complaint (the Complaint) added Ramirez.
As relevant here, the Complaint alleged the following causes of action:
(1) breach of contract against FISM and Shapiro; (2) breach of the covenant of
good faith and fair dealing against FISM and Shapiro; (3) intentional
interference with prospective economic advantage against all defendants;
(4) civil assault and battery against all defendants; (5) negligent interference
with prospective economic advantage against all defendants; (6) unjust
enrichment against FISM; and (7) conversion against FISM.4
The Complaint alleged, “A significant aspect of the contractual
relationship was not in writing, for example, the understanding that
Plaintiffs had the right to take with them, at the end of the relationship,
their business fixtures like water heater, sink, flooring accessories, stand-
alone fans, blow-dryer, mirrors and similar detachable commercial equipment
necessary to run their business . . . .” According to the Complaint, plaintiffs
“spent a lot more money to build up [the] business including trade fixtures
like water heaters, sinks, moldings, et cetera[,] [based] on the agreement
with Defendants[,] particularly Shapiro[,] that they could remove or sell those
trade fixtures if they had to move or sell the business.”
4 The Complaint also alleged a cause of action for discrimination under
the Unruh Civil Rights Act (Civ. Code, §§ 51, 52) against FISM based on
alleged national-origin and sexual-orientation discrimination, which
plaintiffs voluntarily dismissed prior to defendants’ filing of their motion for
summary adjudication.
10
Further the Complaint alleged that the parties entered into a “mutual
oral agreement that each party has the right to renew the contract every year
and if either party would not renew then adequate notice for yearly tenancy
would be given to the other party to allow for orderly relocation and removal
of the trade fixtures and Plaintiffs’ business good will.” Specifically, the
Complaint alleged that “[u]nder the oral terms, each party was entitled to
adequate legal notice in the event one side decided not to renew. Plaintiffs
understood this ‘adequate notice’ to be a minimum of 60 days.”
With respect to the nature of the parties’ relationship, the Complaint
alleged that the parties entered into a landlord/tenant relationship despite
the language in the vendor’s permit stating otherwise. According to the
Complaint, “Defendant’s unilateral description of relationship with Plaintiffs
as ‘licensee/licensor’ does not change the fact that it was a landlord/tenant
relationship and its overwhelming characteristics mirror [a] landlord tenant
relationship including payment of rent, security deposit, utilities, etc.”
The breach of contract cause of action was based on the theory that
FISM and Shapiro were liable because (1) they gave plaintiff a 30-day notice,
instead of a 60-day notice that FISM would not renew the vendor’s permit;
(2) they terminated the vendor’s permit even though “Plaintiffs did not
violate the agreement or any regulations;” (3) they “denied Plaintiffs the
ability to sell or transfer the business” in breach of the requirement that
FISM “not unreasonably deny Plaintiffs the right to sell or transfer the said
business;” and (4) they withheld $680.00 of the security deposit.
The cause of action for breach of the covenant of good faith and fair
dealing was based on allegations similar to those in the breach of contract
cause of action, along with an allegation that FISM and Shapiro “seized
[plaintiffs’] personal property within the said business.”
11
The cause of action for intentional inference with prospective economic
advantage alleged that defendants “arbitrarily and intentionally acted to
thwart” plaintiffs’ sale of their business, and “intentionally appropriated the
business good will and personal property of Plaintiffs.” Similarly, the cause
of action for negligent interference with prospective economic advantage
alleged that defendants breached a duty to “not take action that would
disrupt Plaintiffs’ ability to re[-]sell, transfer or assign the business.”
The conversion cause of action was based on the allegation that FISM
wrongfully prevented plaintiffs from taking the “water heater, sink and other
business accessories,” and that FISM wrongfully failed to return $680.00 of
the security deposit. The unjust enrichment cause of action was based on
similar allegations.
Finally, the civil assault and battery cause of action alleged that
“[d]efendants and their agents including . . . Ramirez . . . physically injured
. . . Carrasco and her associate . . . causing bruises, swelling, redness, pain,
anxiety, distress and humiliation requiring medical attention.”
2. The Summary Adjudication Motion
Defendants brought a summary adjudication motion that challenged all
of the causes of action except civil assault and battery. The trial court denied
summary adjudication on all of the causes of action except for unjust
enrichment.5 However, the trial court made certain rulings that provided
guidance as to the legal theories that would be viable at trial. Most
significantly, the trial court concluded that the vendor permit was “at least
partially integrated” so that the parol evidence rule barred evidence of
contradictory terms, although “evidence of related oral understandings” could
5 The trial court held that unjust enrichment is not properly pled as an
independent cause of action when based on an express contract.
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be considered. The trial court explained that evidence of an oral agreement
to “promise to renew indefinitely so long as rent is paid,” would “be a
contradictory term to the explicit one year term of the vendor license.”6
3. The Bench Trial
In June 2017, the trial court held a bench trial on Aljabban and
Carrasco’s claims against FISM, Shapiro and Ramirez. The evidence at trial
was as we have described above.
After the trial concluded, the court issued a tentative statement of
decision, which it later adopted as its final statement of decision after
rejecting the objections filed by Aljabban and Carrasco. The trial court
concluded that plaintiffs had failed to establish liability on any of their
causes of action.
First, addressing one of the grounds for plaintiffs’ claims of breach of
contract and breach of the covenant of good faith and fair dealing, the trial
court found that the evidence did not support a finding that the parties
agreed to a yearly renewal as long as the rent was paid.7 As the trial court
explained, “the face of the operative vendors permits clearly reflect a term of
6 We note that the Complaint did not allege that plaintiffs would have
the right to renew the vendor’s permit as long as they continued to pay rent.
Instead, as we have described, it alleged the parties entered into a “mutual
oral agreement that each party has the right to renew the contract every year
and if either party would not renew then adequate notice for yearly tenancy
would be given to the other party to allow for orderly relocation and removal
of the trade fixtures and Plaintiffs’ business goodwill,” and “[u]nder the oral
terms, each party was entitled to adequate legal notice in the event one side
decided not to renew.”
7 As the trial court understood plaintiffs’ claims, the existence of an
alleged agreement to renew the vendor’s permit as long as the rent was paid
was one of the theories in support of the causes of action for breach of
contract and breach of the covenant of good faith and fair dealing.
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one year. The license agreements contain no language whatsoever reflecting
an obligation by FISM to automatically renew these agreements from year to
year. . . . [¶] The court does not find Ms. Carrasco[‘s] purported reliance on
some alleged oral representation regarding automatic license renewal to be
credible or reasonable in light of clear evidence through testimony of FISM
representatives that no such representations were ever made. This is further
corroborated by clear evidence that FISM had a custom and practice of yearly
re-renewal of license agreements for all its vendors. Nothing was automatic
so long as rent was paid. This evidence does not support Plaintiffs[‘] position
on this issue and the court so concludes.”
The trial court then turned to the allegation that defendants wrongfully
prevented plaintiffs from removing the sink/cabinet unit, the water heater
and the decorative molding when vacating space H-2. As the trial court
explained, that allegation was relevant to plaintiffs’ causes of action for
breach of contract, breach of the covenant of good faith and fair dealing, and
conversion. Citing a Civil Code provision concerning the circumstances
under which a tenant may remove affixed items, the trial court concluded
that “in the context of the landlord/tenant circumstance which this action
clearly is,” that provision of the Civil Code should be implied as a term of the
parties’ agreement. Applying the Civil Code provision and relevant case law,
the trial court described the applicable law: “[E]ven [if] . . . a particular item
may be moveable from real property, it does not mean it loses its character as
a trade fixture, and can still be considered ‘permanent’ for purposes of
identification as a trade fixture.” The court concluded,
“It appears to the court, in the context of [paragraph] 4
of the license agreement, that the water heater, sinks
cabinets and molding may properly be characterized as
trade fixtures, and were meant to remain where they were
as long as the H-2 space was operated as a beauty salon.
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The prior tenant, Ms. Garcia, had used the space as a
beauty salon. There was a water heater which was later
replaced and affixed in the same spot as well as sinks and
cabinets affixed to the premises. The molding was also
affixed to the walls. These items, given the nature of the
business could reasonably be meant to remain where they
were so long as this H-2 space was operated as a beauty
salon.
“In the court’s view, the evidence presented supports a
finding that these fixtures could not be removed without
causing some injury to the premises, and at a minimum
had become an integral part of the premises. Removal of
the water heater sinks and molding would require some
degree of repair and replacement before the premises would
be suitable for continued operation as a beauty salon.
“The water heater was connected to pipes and sinks.
The evidence presented indicates these items were
installed in wooden cabinets and affixed to the wall. A hair
salon cannot reasonably operate without access to hot
water and sinks. The fixtures were integral to the
operation of the business.
“Based on the foregoing, the court finds no breach of the
vendor license agreement by Defendant related to the trade
fixtures or their retention.”
Next, the trial court addressed the allegation that defendants breached
the covenant of good faith and fair dealing when they “purportedly arbitrarily
denied Plaintiffs the opportunity to sell or transfer their business; arbitrarily
terminated their license or occupancy; [and] made monetary gain from re-
letting Plaintiffs business goodwill to [a] new tenant who diverted Plaintiffs
customers.” The trial court found “no credible evidence that Defendants were
ever asked during the relevant time period to transfer the space to a new
tenant. Clearly it would have been in the best business interest of FISM to
consider any viable tenant for the space. Further, there was insufficient
15
evidence to establish Defendants somehow were involved in diverting
Plaintiffs’ business customers to the new tenant . . . . Additionally, the terms
of the vendor license agreement did not require a reason or cause to not
renew the license.”
The trial court also found no merit to the causes of action for
intentional and negligent interference with prospective economic advantage.
“[T]he court finds insufficient evidence to establish an economic relationship
existed between Plaintiffs and a third party which contained a reasonably
probable future economic benefit or advantage to Plaintiffs. The court finds
no evidence of any intent by Defendants to interfere with any business
relationship or evidence of other inappropriate or legally actionable conduct
by Defendants. There was nothing to indicate FISM took any action to
disrupt Plaintiffs ability to re-sell, transfer or assign the business to some
third party.”
With respect to the allegation that defendants were liable for breach of
contract, breach of the covenant of good faith and fair dealing and conversion
because FISM returned only $2,000.00 of the $2,680.00 security deposit, the
trial court found that “it appears the bulk of Plaintiffs security deposit was
returned after adjustment for damage caused by the removal of some of the
molding.”
Finally, with respect to the civil assault and battery allegations, the
trial court stated that it found Ramirez to be credible. Accordingly, the court
found that “Mr. Ramirez never made any physical contact with Ms. Carrasco
or other assaultive acts.”
The trial court subsequently entered judgment in favor of defendants
on all of the causes of action.
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Plaintiffs filed a motion to vacate the judgment and a motion for new
trial. No points and authorities were submitted to support the motion for a
new trial. However, in support of the motion to vacate the judgment,
plaintiffs argued that the judgment was contrary to applicable law with
respect to (1) FISM’s retention of the $680.00 of the security deposit, and
(2) plaintiffs’ right to remove the sink/cabinet unit, the water heater and the
decorative molding. Further, in support of the motions, Aljabban filed a
declaration describing the atmosphere in the courtroom during trial, which
he claimed made it impossible for plaintiffs to receive a fair trial.
Specifically, Aljabban stated that (1) “Shapiro was constantly making faces,
mocking signs and gestures . . . while Carrasco was on the witness stand
testifying” and then “stepped up the mockery and threats” during Aljabban’s
testimony; (2) during Shapiro’s testimony, “his attorney was constantly
giving him signals as to how to answer questions from [plaintiffs’ counsel]”;
and (3) he observed “Shapiro signaling witnesses related to Defendants how
to respond to the questions.” The trial court denied the motions.
On April 5, 2018, the trial court also issued an order, based on the
attorney fees provision in the vendor’s permit, requiring Carrasco and
Aljabban to pay defendants’ attorney fees in the amount of $121,043. On
May 25, 2018, the trial court issued an order awarding $14,374.60 in costs to
defendants.
Aljabban filed a notice of appeal from the judgment and from the orders
awarding attorney fees and costs. Carrasco is not a party to this appeal.
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II.
DISCUSSION
A. Standard of Review
“In reviewing a judgment based upon a statement of decision following
a bench trial, we review questions of law de novo. [Citation.] We apply a
substantial evidence standard of review to the trial court’s findings of fact.”
(Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) In applying a
substantial evidence standard of review, “ ‘ “[I]t is not our role to reweigh the
evidence, redetermine the credibility of the witnesses, or resolve conflicts in
the testimony, and we will not disturb the judgment if there is evidence to
support it.” ’ [Citation] Where multiple inferences can be drawn from the
evidence, we defer to the trial court’s findings.” (Orange Catholic Foundation
v. Arvizu (2018) 28 Cal.App.5th 283, 292 (Orange Catholic).)
B. Aljabban’s Challenge to the Trial Court’s Finding That Plaintiffs Were
Not Entitled to Take the Sink/Cabinet Unit, the Water Heater and the
Decorative Molding
Aljabban first challenges the trial court’s finding against him on the
causes of action for breach of contract, breach of the covenant of good faith
and fair dealing and conversion to the extent those causes of action were
based on the allegation that FISM wrongly prevented Aljabban and Carrasco
from taking the sink/cabinet unit, the water heater and the decorative
molding (collectively, “the Items”) when vacating space H-2.
1. Aljabban’s Contention That He Was Permitted to Take the Items
Because He Was a Licensee, Not a Tenant
As an initial predicate to his argument that he should have been
permitted to take the Items from the space when moving out, Aljabban
contends the parties entered into a licensee/licensor relationship, not a
18
landlord/tenant relationship as the trial court found.8 According to Aljabban,
this distinction is important because, as he reads the case law, a licensor may
remove improvements to real property under different circumstances than a
tenant. In support of his contention that he was a licensee, not a tenant,
Aljabban points to the language of the vendor’s permit which states, “Vendor
is a licensee only. This agreement is not intended to create a landlord tenant
relationship.” As we will explain, Aljabban’s reliance on his purported status
as a licensee is unavailing for two reasons.
First, Aljabban is precluded from contending that his relationship with
FISM was not, in substance, a landlord/tenant relationship, as his pleadings
contain the opposite factual allegation.9 Specifically, the Complaint alleges,
“Defendant’s unilateral description of the relationship with Plaintiffs as
‘licensee/licensor’ does not change the fact that it was a landlord/tenant
relationship and its overwhelming characteristics mirror [a] landlord tenant
relationship including payment of rent, security deposit, utilities, etc.”10
“The admission of fact in a pleading is a ‘judicial admission.’ Witkin
describes the effect of such an admission: ‘An admission in the pleadings is
not treated procedurally as evidence . . . but may be commented on in
8 Specifically, Aljabban takes issue with the trial court’s statement that
the action “clearly” arose “in the context of the landlord/tenant circumstance.”
9 More accurately characterized, the relationship would be a
sublessor/sublessee relationship, as FISM did not own the building that
housed the Swap Meet, and instead leased it from a landlord who owned the
building.
10 The Complaint was not verified, but to the extent verification of the
pleading has any significance, a similar allegation was made in the verified
first amended complaint.
19
argument and relied on as part of the case. And it is fundamentally different
from evidence: It is a waiver of proof of a fact by conceding its truth, and it
has the effect of removing the matter from the issues. . . .’ [¶] . . . ‘ “When a
trial is had by the Court without a jury, a fact admitted by the pleadings
should be treated as ‘found.’ . . . In such case the facts alleged must be
assumed to exist.’ ” (Valerio v. Andrew Youngquist Construction (2002) 103
Cal.App.4th 1264, 1271.) “At least in the absence of some showing of mistake
or inadvertence by the pleading party . . . , and as long as the opposing party
is not contesting the factual allegation . . . , there is nothing unfair or
inappropriate about holding a party to the truth of its unverified factual
allegations.” (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016)
247 Cal.App.4th 117, 132, citations omitted.) Accordingly, because the
Complaint alleged “the fact that [the relationship with FISM] was a
landlord/tenant relationship,” Aljabban is bound to that factual allegation,
and he may not, on appeal, pursue an argument that is premised on a
contrary allegation.
Second, even were we to conclude that Aljabban is not precluded from
arguing that he was a licensee rather than a tenant, his status as a licensee
ultimately makes no difference to whether he was permitted to take the
Items upon vacating the space. The case law upon which Aljabban relies
addresses situations in which a licensee has constructed improvements on
real property. (Taylor v. Heydenreich (1949) 92 Cal.App.2d 684, 686-688
[family member, who constructed a house and other structures on land
obtained by the landowner through homestead, with no indication the owner
had expected the payment of rent, was a licensee]; City of Vallejo v.
Burrill (1923) 64 Cal.App. 399, 399-404 [a municipality, which constructed a
water pipe on landowner’s property with permission, was a licensee].)
20
However, the rule stated in those cases is that “[w]here structures are erected
upon land by a mere licensee, consent on the part of the owner of the land
that the structures shall remain the property of the licensee will be implied
in the absence of evidence showing a different intention.” (Taylor, at p. 689,
italics added.) “ ‘[W]here the landowner consents to the placing of a building
on his land by another without an express agreement as to whether it shall
become a part of the realty or remain personalty, an agreement will be
implied that it is to continue personal property.’ ” (Burrill, at p. 407, italics
added.)
Here, the parties entered into an express agreement concerning how
vendor improvements would be treated, defeating any attempt to imply an
understanding to the contrary. Specifically, the vendor’s permit states,
“Booth construction (i.e. walls, flooring, and security gates) becomes a
permanent fixture with the Swap Meet and may not be removed or
demolished by Vendor upon termination of the license.”
In short, Aljabban cannot take advantage of the presumption that a
licensee’s improvements to real property remain the property of the licensee
in the absence of evidence or agreement to the contrary, because in this case
there is plainly evidence and agreement to the contrary. Therefore, regardless
of whether Aljabban was a licensee, we must turn to the terms of the parties’
agreement to resolve whether Aljabban had the right to take the Items upon
vacating space H-2.
2. The Items Were Permanent Fixtures Under the Terms of the
Parties’ Agreement and the Applicable Law
Turning to the parties’ agreement, paragraph 4 states, “Booth
construction (i.e. walls, flooring, and security gates) becomes a permanent
fixture with the Swap Meet and may not be removed or demolished by
Vendor upon termination of the license.” The question presented is whether
21
the Items fall under the scope of this provision because they constitute booth
construction and are thus permanent fixtures that may not be removed by
the vendor upon termination of the license.
Aljabban contends that the Items were not permanent fixtures within
the meaning of this provision because paragraph 4 specifically identifies only
three items of booth construction—namely “walls, flooring, and security
gates.” Because this specific list does not encompass a sink/cabinet unit, a
water heater or decorative molding, Aljabban argues that the parties did not
agree that the Items were permanent fixtures that could not be removed. As
Aljabban contends, the language “is very specific and exclusive” in that “[i]t
defines ‘permanent fixture’ and itemizes it was the language ‘i.e.’ meaning
‘that is.’ ”
We understand Aljabban’s argument, and we recognize that the use of
the signal “i.e.” creates some confusion. The signal “i.e.” means “That is,”
(I.E., Black’s Law Dictionary (11th ed. 2019)), and thus normally indicates a
clarification of a preceding term, not an example. To communicate that
“walls, flooring, and security gates” were meant as nonexclusive examples of
booth construction, paragraph 4 could have used the signal “e.g.,” which
means “For example.” (E.G., Black’s Law Dictionary (11th ed. 2019).)
Nevertheless, as we will explain, it appears to us that the contract may
merely have used an inexact signal before the words “walls, flooring, and
security gates” by choosing the term “i.e.,” and that it did not intend to
provide an exhaustive and exclusive list of all of the things that could
constitute a permanent fixture.
Whether an ambiguity exists in a contract is a question of law, subject
to independent review on appeal, and we may refer to extrinsic evidence to
determine whether a contract is ambiguous. (Winet v. Price (1992) 4
22
Cal.App.4th 1159, 1165 (Winet).) As Shapiro testified, there are many types
of vendors at the Swap Meet who install different types of fixtures, both when
moving into their spaces and while they are doing business, making it
impractical to list every possible type of permanent fixture in paragraph 4 of
the vendor’s permit. Walls, flooring and security gates are fixtures that every
vendor would be expected to have in their space, but specific types of
businesses might have other fixtures unique to their operations. A beauty
salon requires sinks and a water heater; a clothing store does not. Therefore,
we conclude that it is at least ambiguous whether the vendor permit intended
“walls, flooring, and security gates” as an exhaustive list of the permanent
fixtures subject to paragraph 4.
“[P]arol evidence is properly admitted to construe a written instrument
when its language is ambiguous.” (Winet, supra, 4 Cal.App.4th at p. 1165.)
Here, the trial court admitted precisely such evidence.11 Shapiro testified
that because of the wide range of vendors at the Swap Meet, the list of
permanent fixtures in paragraph 4 was not meant to be exhaustive. Aljabban
and Carrasco presented no conflicting parol evidence on that issue. When, as
here “the competent parol evidence is not conflicting, construction of the
instrument is a question of law, and the appellate court will independently
construe the writing.” (Id. at p. 1166.) Based on the evidence, we conclude
that the parenthetical reference to “walls, flooring, and security gates” in
paragraph 4 was not intended to be an exclusive list of the type of booth
construction that would constitute a permanent fixture that could not be
removed when the vendor vacated the space.
11 On appeal, Aljabban makes no argument challenging the admission of
the parol evidence.
23
Because the list in paragraph 4 is not exhaustive, it is reasonable to
infer, as the trial court did, that by using the term “permanent fixture,”
paragraph 4 intended to incorporate the Civil Code provisions and case law
that defines the circumstances under which something becomes a permanent
fixture of real property. We accordingly turn to that body of law to determine
whether the Items were permanent fixtures that could not be removed when
Aljabban and Carrasco vacated space H-2.
With respect to improvements to real property, Civil Code section 660
defines a fixture as follows: “A thing is deemed to be affixed to land when it
is . . . permanently attached to what is thus permanent, as by means of
cement, plaster, nails, bolts, or screws.” (Civ. Code, § 660.) “ ‘The California
cases state a general proposition that the landlord will become owner of
‘fixtures’ affixed by the tenant to the land in the absence of countervailing
circumstances. Civil Code section 1013 provides the statutory statement of
the rule: “When a person affixes his property to the land of another . . . the
thing affixed . . . belongs to the owner of the land” unless (1) there is an
agreement between the parties permitting the annexer to “remove” the thing
affixed, or (2) the case comes within Civil Code Section 1019, concerning the
“removability” of (trade) “fixtures” by tenants.’ . . . Such ‘fixtures removable
by tenants’ are called ‘trade fixtures.’ ” (Goldie v. Bauchet Properties (1975)
15 Cal.3d 307, 313, citation omitted.)12
12 Civil Code section 1019, which applies to a landlord/tenant
relationship, provides: “A tenant may remove from the demised premises,
any time during the continuance of his term, anything affixed thereto for
purposes of trade, manufacture, ornament, or domestic use, if the removal
can be effected without injury to the premises, unless the thing has, by the
manner in which it is affixed, become an integral part of the premises.” The
question whether an item affixed to real property constitutes a permanent
fixture arises in numerous circumstances, not only cases involving landlords
24
“ ‘It is well settled that in determining whether an article constitutes a
fixture, three criteria must be taken into consideration: (1) the manner of its
annexation to the realty; (2) its adaptability to the use and purpose for which
the realty is used; and (3) the intention with which the annexation is made.’ ”
(Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d
881, 887.) Accordingly, as our Supreme Court has explained, “[w]hether a
water heater is realty or personalty is, of course, a question of fact, . . . and
various factors must be considered, such as the manner of its annexation, its
adaptability to the purpose for which the realty is used, and the intention of
the party making the annexation.” (Knell v. Morris (1952) 39 Cal.2d 450,
456, citation omitted.) In Knell, our Supreme Court held that “it can
reasonably be inferred that the heater was attached to the building by means
of gas and water pipes, and the evidence, although meager, is sufficient to
permit a finding that the heater was permanently affixed to the realty and
was adapted to the purpose for which the premises were used,” thus
concluding that it became part of the real property. (Id. at pp. 456-457.)13
and tenants. Civil Code section 1019 applies only in the absence of a specific
agreement about fixtures between the landlord and tenant. (R. Barcroft &
Sons Co. v. Cullen (1933) 217 Cal. 708, 712; Renner v. Huntington-Hawthorne
Oil & Gas Co. (1952) 39 Cal.2d 93, 103.) Here, in paragraph 4, the parties
did enter into a specific agreement that supersedes whatever right to remove
trade fixtures Aljabban may have had under Civil Code section 1019.
Accordingly, we focus on the terms of the agreement, which refers to “booth
construction” becoming a “permanent fixture.”
13 In Daniger v. Hunter (1952) 114 Cal.App.2d 796, 797, the court came to
an opposite conclusion about a unique type of appliance unit that “consisted
of a gas stove, a sink and a refrigerator, the three fitting together as one
unit.” Analyzing the fixture issue in the context of an action to foreclose a
mechanic’s lien, the court explained, “[i]t seems quite clear that electrical
appliances such as refrigerators and stoves are personal property and do not
become a part of the realty where, as here, they are movable and can be
25
“The mere fact that” fixtures “can be removed without material
damage” to the real property “does not alone establish their character as
articles of personalty. . . . [¶] . . . In order to make an article a permanent
accession to the land its annexation need not be perpetual. It is sufficient if
the article shall appear to be intended to remain where fastened until worn
out, until the purpose to which the realty is devoted has been accomplished or
until the article is superseded by another article more suitable for the
purpose.” (San Diego Trust & Savings Bank v. San Diego County (1940) 16
Cal.2d 142, 151 (San Diego Trust).) “[W]hatever is essential for the purposes
for which the building is used, will be considered as a fixture, although the
connection between them may be such that it may be severed without
physical or lasting injury to either.” (Fratt v. Whittier (1881) 58 Cal. 126,
131.) As one treatise explains, “If the personalty attached to the realty has a
use beneficial and necessary to the real property or to the portion to which it
is attached, it is likely to be held to be a fixture, regardless of the method of
its attachment.” (3 Miller & Starr, Cal. Real Estate (4th ed.) § 9:45.)
Although Civil Code section 660 refers to attachment “as by means of cement,
disconnected by merely pulling a plug or unscrewing a gas connection. In the
instant case the units sold were of three items: a stove, a sink and a
refrigerator, so constructed as to form one unit, conserving floor space. While
ordinarily a sink is ‘built in’ and made a part of the building, in the instant
case it is part of a unit which is so constructed as to be easily disconnected
and removed without damage to the realty or the article itself. Under such
circumstances we conclude that these units were chattels and not fixtures.”
(Id. at p. 798.) We do not find Daniger to be apposite here because the
sink/cabinet unit in this case was not attached to other appliances that are
commonly understood to constitute personal property. On the contrary the
sink/cabinet unit contained a water heater, which is not an appliance
universally viewed as personal property. Moreover, as Daniger described the
general rule with respect to sinks, “ordinarily a sink is ‘built in’ and made a
part of the building.” (Ibid.)
26
plaster, nails, bolts, or screws” (Civ. Code, § 660), this is “ ‘merely illustrative.
An article may be attached other than by the examples given.’ ” (Kruse
Metals Mfg. Co. v. Utility Trailer Mfg. Co. (1962) 206 Cal.App.2d 176, 180
[methods of attachment in statute are “illustrative, not inclusive”].)
Here, we agree with the trial court that the Items were permanent
fixtures that had been annexed to the real property, both because they were
physically attached and because at least some of them were necessary to the
use of space H-2 as a beauty salon.14 With respect to the physical
attachment to the real property, the sink/unit and the water heater were
functional only if physically attached to the water supply in the building.
The evidence established that both the sink/cabinet unit and the water
heater were physically attached to the building’s plumbing system by hoses,
with an additional electrical connection for the water heater. The decorative
molding was attached to the wall by staples, and as Shapiro testified, the
removal of the decorative molding caused damage to the walls that had to be
repaired. Although Aljabban emphasizes that it was relatively easy to
disconnect the Items from the building, the ease of disconnection is not the
dispositive inquiry. (San Diego Trust, supra, 16 Cal.2d at p. 151 [“The mere
fact that” fixtures “can be removed without material damage” to the real
property “does not alone establish their character as articles of personalty”].)
14 Citing Crocker National Bank v. City and County of San
Francisco (1989) 49 Cal.3d 881, 888, Aljabban contends we must undertake a
de novo review when determining whether the trial court properly classified
the Items as permanent fixtures. Although not expressly taking issue with
Aljabban’s contention, defendants generally contend that we should apply a
substantial evidence standard of review to the trial court’s findings. We need
not and do not decide whether a de novo standard applies on the issue of
whether the Items were permanent fixtures, as we would reach the same
conclusion under either standard of review.
27
With respect to the Items being necessary for the use of space H-2 as a
beauty salon, the testimony at trial was unanimous that a beauty salon
requires a water heater and a sink to operate. Indeed, before Carrasco and
Aljabban moved into the space, there were preexisting sinks and a water
heater, installed by Shapiro. That fact suggests that those items were
needed in order to operate the space as a beauty salon. Moreover, the fact
that Shapiro originally purchased the sinks and a water heater and testified
that he would have spent money to replace them if he was told that
replacement was needed, shows that he understood the Items to be
permanent equipment that would continue to remain in place, regardless of
which salon owners occupied the space.
We accordingly conclude that Items were permanent fixtures within
the meaning of paragraph 4 of the vendor’s permit, and Aljabban and
Carrasco were not entitled to remove them when they vacated the premises.
FISM and Shapiro are therefore not liable for breach of contract, breach of
the covenant of good faith and fair dealing, or conversion by virtue of having
prevented the removal of the Items from space H-2.
C. Aljabban’s Challenge to the Trial Court’s Decision That FISM Properly
Retained $680.00 of the Security Deposit
We next consider Aljabban’s contention that the trial court improperly
rejected his claim that FISM and Shapiro wrongly retained $680.00 of the
$2,680.00 security deposit to cover the repairs that Shapiro testified were
necessary after Aljabban and Carrasco vacated space H-2.15 Aljabban makes
two distinct arguments: (1) insufficient evidence supports a finding that the
15 As we understand Aljabban’s claims, the failure to return $680.00 of
the security deposit relates to the causes of action for breach of contract,
breach of the covenant of good faith and fair dealing, and conversion.
28
premises were damaged; and (2) the contractual provisions the parties agreed
upon do not allow the retention of a security deposit to repair damage to the
premises.
1. Substantial Evidence Supports a Finding That FISM Incurred
Expenses of $680.00 to Repair Damage to Space H-2
Aljabban takes two approaches to establishing that insufficient
evidence supports a finding that FISM incurred expenses of $680.00 in
repairing damage to the premises. Specifically, he argues that (1) there was
a “failure to adduce evidence to prove the actual damage and actual amount
reasonably necessary to remedy whatever the . . . damage was” (emphasis
omitted); and (2) FISM and Shapiro are bound to admissions in their
discovery responses, which stated that they are not claiming any damages.
We discuss each issue in turn.
a. Shapiro’s Testimony Supports a Finding That FISM
Incurred Expenses of At Least $680.00 to Repair Damage to
Space H-2
As we have explained, Shapiro testified that FISM withheld $680.00 of
the security deposit because he had to incur expenses to (1) purchase two new
sinks and remount them; (2) repair a portion of the floor that was removed;
(3) fix holes in the drywall where Carrasco had removed the decorative
molding; and (4) with respect to the water heater, properly strap it down and
hire an electrician to correctly rewire it. Aljabban argues that this testimony
was not sufficient to support a finding that FISM incurred $680.00 in
expenses because Shapiro did not specify the exact amount of money that he
spent on the repairs, and for certain reasons, such as the conflict with other
evidence, Shapiro’s testimony was “hard to believe.”
We reject Aljabban’s argument. Although Shapiro did not provide an
exact accounting of the amount of expenses he incurred to repair the damage,
29
he explained with some detail the nature of the repairs that were necessary,
and he specifically stated that he applied $680.00 of the security deposit to
cover the expenses associated with the repairs. The trial court was entitled
to rely on that testimony to conclude that FISM incurred expenses of at least
$680.00. Further, although Aljabban contends that Shapiro’s testimony
about the type and amount of damage was not believable in light of other
evidence presented at trial, it is not our role on appeal to make credibility
determinations. (Orange Catholic, supra, 28 Cal.App.5th at p. 292.)
b. The Discovery Responses by FISM and Shapiro Stating
That They Are Not Claiming Any Damages in the Action
Are Not Relevant to the Issue of Whether FISM Incurred
Expenses to Repair Damage to Space H-2
We next consider Aljabban’s contention that the trial court improperly
admitted evidence that FISM incurred expenses to repair damage to space
H-2 because that evidence was contradicted by discovery responses served by
FISM and Shapiro.
As background to this issue, plaintiffs filed a motion in limine for an
order “to bar Defendants from introducing any evidence at trial of any
damage, loss or repair to FISM Inc. premises regarding Space H2.”
(Emphasis omitted.) Plaintiffs’ motion in limine relied on case law holding
that the function of a discovery response is to “immediately and conclusively
bind[] the answering party to the facts set forth in his reply.” (Coy v.
Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 219.)
Plaintiffs contended that “Defendants were repeatedly asked during
discovery whether Plaintiffs[] in any way harmed the premises and they
categorically stated under oath in multiple places that: ‘Defendant is not
making any claim for any loss or damages in connection with this matter.’ ”
(Emphasis omitted.)
30
Specifically, plaintiffs pointed to FISM and Shapiro’s responses to Form
Interrogatory Nos. 7.1, 7.2 and 7.3. In Form Interrogatory No. 7.1 plaintiffs
asked, “Do you attribute any loss of or damage to a vehicle or other property
to the INCIDENT? If so, for each item of property; [¶] (a) describe the
property; [¶] (b) describe the nature and location of the damage to the
property; [¶] (c) state the amount of damage you are claiming for each item of
property and how the amount was calculated; . . . .” FISM and Shapiro
responded that the term “ ‘INCIDENT’ ” was “vague, ambiguous and
unintelligible” and that the interrogatory was not relevant to the subject
matter of the action, and was not reasonably calculated to lead to the
discovery of admissible evidence “as Defendant is not making a claim for any
loss or damages in connection with this matter.”
Form Interrogatory No 7.2 asked if any written estimate or evaluation
of the damage to the property had been made, and Form Interrogatory
No. 7.3 asked if any item of property referred to in response to Form
Interrogatory No. 7.1 had been repaired, and asked for a description of the
repair and the cost. FISM and Shapiro responded “Not applicable” to both.
At the beginning of the bench trial, the court stated that instead of
ruling on the motions in limine, it would deal with the issues “[a]s things
come up.” Accordingly, during Shapiro’s testimony and the testimony of an
FISM manager, counsel for plaintiffs renewed his objection to the admission
of any evidence regarding FISM’s repair of the physical damage in space H-2
after Aljabban and Carrasco moved out. The trial court overruled the
objection. As the trial court observed, the evidence of the damage to space H-
2 was “being offered for a limited purpose, as I understand, that’s to show
that removal of the fixtures or the removal of certain equipment that caused
some type of structural damage to the integrity of the building.” The trial
31
court explained that the discovery responses were irrelevant because “[t]he
defense is not making an affirmative claim for damages against the plaintiff.
They’re not asking the plaintiff to pay money.”
We review the trial court’s admission of evidence under an abuse of
discretion standard of review. (Pannu v. Land Rover North America,
Inc. (2011) 191 Cal.App.4th 1298, 1317.)
We agree with the trial court’s analysis in allowing the admission of the
evidence regarding FISM’s repair to the damage to space H-2 despite FISM
and Shapiro’s discovery responses stating they were not making any claim for
loss or damages. As FISM and Shapiro indicated in their responses to the
form interrogatories, they viewed the interrogatories as asking whether they
were claiming any damages that they believed were compensable in the
lawsuit. FISM and Shapiro signaled that understanding by responding that
the information sought in Form Interrogatory No. 7.1 was not relevant to the
subject matter of the action, and was not reasonably calculated to lead to the
discovery of admissible evidence “as Defendant is not making a claim for any
loss or damages in connection with this matter.” That response cannot
reasonably be understood as an admission that there was no damage to the
premises after Aljabban and Carrasco moved out or that FISM did not incur
any expenses in repairing the premises. The trial court thus did not abuse its
discretion in admitting testimony relating to the physical damage to the
premises that caused FISM to withhold $680.00 of the security deposit, as
FISM and Shapiro never made an admission to the contrary.
32
2. FISM Was Not Entitled Under the Terms of the Parties’
Agreement to Use the Security Deposit to Repair Damage to the
Premises, and Aljabban Should Accordingly Recover on His
Causes of Action for Breach of Contract and Conversion
Civil Code section 1950.7, subdivision (c), which governs security
deposits for non-residential leases, provides as follows: “The landlord may
claim of the payment or deposit only those amounts as are reasonably
necessary to remedy tenant defaults in the payment of rent, to repair
damages to the premises caused by the tenant, or to clean the premises upon
termination of the tenancy, if the payment or deposit is made for any or all of
those specific purposes.” (Italics added.) Focusing on the italicized portion of
the provision, Aljabban contends that the security deposit he paid to FISM
may not be used to repair damages to the premises because there was no
agreement between the parties that the deposit was “made for . . . those
specific purposes.” (Ibid.)
As Aljabban points out, the vendor’s permit states that Aljabban and
Carrasco have paid a security deposit in the amount of $2,680.00.16
However, the vendor’s permit does not state that the security deposit may be
used to repair damage to the premises. Instead, the vendor’s permit contains
only two references to the security deposit. First, it states, “Vendor will
forfeit his entire Security Deposit if he violates this clause and sells, transfers
or assigns his space without the consent of Management.” Next, it states,
16 Aljabban made this argument in his written closing argument after
trial, but the trial court did not address the issue in its statement of decision.
Aljabban raised the argument again in his motion to vacate the judgment. At
the hearing on that motion, the trial court commented, “I think those
paragraphs provide for retention of the security deposit for the reasons that
are specified. But . . . I’m not sure I read it to limit retention to only those
grounds.”
33
“Vendor’s security deposit is not to be used as Vendor’s final month’s rent
unless approved by Management. Management reserves the sole right to
apply Vendor’s security deposit toward any monies owed for the free rent or
rental concession period.” Because the vendor’s permit does not specify that
the security deposit can be used to cover FISM’s expenses in repairing the
premises, Aljabban contends that, pursuant to the “specific purposes”
language of Civil Code section 1950.7, subdivision (c), FISM was not
authorized to keep $680.00 of the security deposit to cover the cost of repairs.
In our view, the plain language of the statute supports Aljabban’s
argument. On its face, Civil Code section 1950.7, subdivision (c) allows a
landlord in a commercial lease to apply the security deposit to the payment of
defaulted rent, to the repair of the premises, or to the expense of cleaning the
premises only “if the payment or deposit is made for any or all of those
specific purposes.” That language appears to set up a requirement that, for
the landlord to use the security deposit for a specific purpose, the rental
agreement must specify that purpose. Although we are not aware of any case
law interpreting the relevant statutory language, a leading treatise agrees
with our interpretation of the language. “The landlord of nonresidential
premises is only entitled to deduct from the deposit those amounts that are
authorized by the terms of the lease.” (10 Miller & Starr, Cal. Real Estate (4th
ed.) § 34:85, italics added.)
We draw further support for our reading of the statutory language
when we compare the statutory provision that governs how security deposits
may be applied in residential leases. Civil Code section 1950.5,
subdivision (e) states that a security deposit in a residential lease may be
applied by the landlord for “only those amounts as are reasonably necessary”
for the following purposes, specified in subdivision (b): “(1) The compensation
34
of a landlord for a tenant’s default in the payment of rent. [¶] (2) The repair
of damages to the premises, exclusive of ordinary wear and tear, caused by
the tenant or by a guest or licensee of the tenant. [¶] (3) The cleaning of the
premises upon termination of the tenancy necessary to return the unit to the
same level of cleanliness it was in at the inception of the tenancy. . . . [¶]
(4) To remedy future defaults by the tenant in any obligation under the
rental agreement to restore, replace, or return personal property or
appurtenances, exclusive of ordinary wear and tear, if the security deposit is
authorized to be applied thereto by the rental agreement.” (Civ. Code,
§ 1950.5, subd. (b).) The first three uses of the security deposit in Civil Code
section 1950.5, subdivision (b) (i.e., to cover defaulted rent, repairs to the
premises and cleaning the premises) are the same as the three uses identified
in Civil Code section 1950.7, subdivision (c). But the two statutes are
different in that Civil Code section 1950.5, subdivision (b) does not include
the proviso, which is present in Civil Code section 1950.7, subdivision (c),
that “the payment or deposit is made for any or all of those specific purposes.”
(Italics added.) Instead, Civil Code section 1950.5 simply provides that “[t]he
landlord may claim of the security only those amounts as are reasonably
necessary for the purposes specified in subdivision (b).” (Civ. Code, § 1950.5,
subd. (e).) “ ‘ “ ‘Where a statute, with reference to one subject contains a
given provision, the omission of such provision from a similar statute
concerning a related subject . . . is significant to show that a different
intention existed.’ ” ’ ” (Williams v. County of San Joaquin (1990) 225
Cal.App.3d 1326, 1332-1333; see also 250 L.L.C. v. PhotoPoint Corp. (2005)
131 Cal.App.4th 703, 718 (250 L.L.C.) [because the Legislature “expressly
prohibited waivers of section 1950.5’s protections for residential security
deposits . . . its failure to do so with respect to commercial security deposits
35
indicates that waivers are permissible as to those deposits”].) The distinction
between the two statutes here show that the Legislature must have had a
specific intention in including the “specific purposes” language in Civil Code
section 1950.7, subdivision (c), and that we therefore should make sure to
give effect to the language when interpreting the statute.
Even more significantly, the fourth use for a residential security
deposit identified in Civil Code section 1950.5, subdivision (b) (i.e., to cover
loss of the landlord’s personal property) contains a requirement very similar
to the “specific purposes” requirement in Civil Code section 1950.7,
subdivision (c). Specifically, a residential landlord may use the security
deposit to cover the loss of personal property “if the security deposit is
authorized to be applied thereto by the rental agreement.” (Civ. Code,
§ 1950.5, subd. (b), italics added.) This provision indicates that, in certain
circumstances, the Legislature has determined that a security deposit may be
used by a landlord for a particular purpose only if the parties have agreed on
that use when entering into the rental agreement. In that light, Civil Code
section 1950.7 subdivision (c), is reasonably understood as setting up another
such requirement. We therefore conclude that a security deposit in a
commercial lease may be applied by the landlord to cover defaulted rent,
costs of repair or costs of cleaning only if “made for any or all of those specific
purposes” as stated in the parties’ agreement. (Civ. Code, § 1950.7, subd. (c).)
Moreover, we note that it is consistent with California public policy
regarding commercial leases for the Legislature to have required that the
parties specify the purpose of the security deposit in their lease agreement,
even though such specification is generally not required in residential leases.
The Legislature has declared that “[i]t is the public policy of the state and
fundamental to the commerce and economic development of the state to
36
enable and facilitate freedom of contract by the parties to commercial real
property leases.” (Civ. Code, § 1995.270, subd. (a)(1); see also 250 L.L.C.,
supra, 131 Cal.App.4th at p. 718 [noting public policy of enabling and
facilitating freedom of contract in commercial leases when determining that
parties to commercial leases can waive the statutory protections for security
deposits].)
Here, as Aljabban correctly points out, the vendor’s permit did not state
that the security deposit could be used by FISM to repair damage to the
premises caused by Aljabban and Carrasco. Accordingly, because the parties
entered into an agreement in a commercial context rather than a residential
context, FISM was not authorized to use the security deposit to cover its
expenses in repairing the premises.
Aljabban asserted that the withholding of the $680.00 from the security
deposit supported his cause of action for breach of contract and breach of the
covenant of good faith and fair dealing against FISM and Shapiro, as well as
his conversion cause of action against FISM. We conclude that judgment
should be entered in Aljabban’s favor on the breach of contract and
conversion causes of action against FISM. FISM failed to return $680.00 that
was owed to Aljabban under the vendor’s permit, supporting a finding in
favor of Aljabban on both of those causes of action.
However, in light of the evidence at trial, we do not believe that the
failure to return $680.00 of the security deposit supports a judgment in favor
of Aljabban on the cause of action for breach of the covenant of good faith and
fair dealing. “ ‘ “[B]reach of the implied covenant of good faith and fair
dealing involves something beyond breach of the contractual duty itself” and
it has been held that “[b]ad faith implies unfair dealing rather than mistaken
judgment.” ’ ” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990)
37
222 Cal.App.3d 1371, 1394.) “[I]t has been suggested the covenant has both a
subjective and an objective aspect—subjective good faith and objective fair
dealing. A party violates the covenant if it subjectively lacks belief in the
validity of its act or if its conduct is objectively unreasonable.” (Carma
Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2
Cal.4th 342, 372.) “To the extent the implied covenant claim seeks simply to
invoke terms to which the parties did agree, it is superfluous.” (Guz v.
Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 352.) Here, the evidence does not
support a finding of bad faith or unfair dealing beyond a breach of the
contractual agreement itself. Indeed, all of the evidence indicates that
FISM’s breach was unknowing and unintentional, caused by a
misunderstanding of the permissible uses of the security deposit in light of
the language of the vendor’s permit.
Further, there is no basis to find Shapiro liable for the withholding of
$680.00 from the security deposit. Aljabban did not sue Shapiro for
conversion, and although Aljabban named Shapiro as a defendant in the
breach of contract cause of action, the vendor’s permit was entered into by
FISM as a corporate entity. Absent a successful attempt to pierce FISM’s
corporate veil—which Aljabban did not attempt to undertake at trial—
Shapiro’s role as FISM’s president does not subject him to liability for FISM’s
breach of contract. (Sonora Diamond Corp. v. Superior Court (2000) 83
Cal.App.4th 523, 538 [“Ordinarily, a corporation is regarded as a legal entity,
separate and distinct from its stockholders, officers and directors, with
separate and distinct liabilities and obligations,” but “[a] corporate identity
may be disregarded—the ‘corporate veil’ pierced—where an abuse of the
corporate privilege justifies holding the equitable ownership of a corporation
liable for the actions of the corporation”].)
38
We note that Civil Code section 1950.7, subdivision (f) states, “The bad
faith retention by a landlord or transferee of a payment or deposit or any
portion thereof, in violation of this section, may subject the landlord or the
transferee to damages not to exceed two hundred dollars ($200), in addition
to any actual damages.” The evidence at trial does not support a finding of
bad faith against FISM to support an additional $200.00 award.
We will reverse the judgment as to Aljabban and direct that the trial
court enter judgment in favor of Aljabban on his causes of action for breach of
contract and conversion against FISM in the amount of $680.00.
D. The Trial Court Properly Concluded That FISM Had the Right to Deny
Renewal of the Vendor’s Permit
Aljabban next argues that the trial court should have found FISM and
Shapiro liable for breach of contract and breach of the covenant of good faith
and fair dealing because their “official excuse for terminating Plaintiffs’
license or lease was something not in the contract—that Plaintiffs’ business
was not doing well.” Aljabban also contends that “Defendants also breached
the contract by failing to renew since plaintiffs paid their rent” as required by
the vendor’s permit.
As we have explained, the trial court found that the evidence and the
contractual language did not support a finding that the parties agreed to a
yearly renewal as long as the rent was paid or that FISM required any
reason to decline to renew the vendor’s permit after the year-long term
expired. The trial court based its decision on the fact that the terms of
vendor’s permit “clearly reflect a term of one year” and “contain no language
whatsoever reflecting an obligation by FISM to automatically renew these
agreements from year to year.” Further, the trial court relied on evidence of
FISM’s “custom and practice of yearly re-renewal of license agreements for all
its vendors. Nothing was automatic so long as rent was paid.” The trial
39
court also found that “the terms of the vendor license agreement did not
require a reason or cause to not renew the license.”
Aljabban presents no basis for us to reverse the trial court on these
issues. Substantial evidence supports the trial court’s decision that FISM
had the right to deny renewal of the vendor’s permit without a reason and
regardless of whether Aljabban and Carrasco timely paid their rent.17
E. Aljabban’s Contention That He Was Denied a Fair Trial
Aljabban’s last contention is that because of “many conducts [sic] and
omissions on the record and off the record during the trial” he believes that
he was “denied due process and did not receive fair trial or just outcome
[sic].”
As in his declaration filed in support of the motion to vacate the
judgment and motion for a new trial, Aljabban claims that Shapiro engaged
17 For the first time in his appellate reply brief Aljabban challenges the
trial court’s decision on the causes of action for civil assault and battery, and
for negligent and intentional interference with prospective economic
advantage. Specifically, Aljabban argues that in light of the evidence
presented at trial, defendants should have been found liable for civil assault
and battery, and punitive damages should have been assessed. Further, he
argues that “seizing plaintiffs’ equipment deprived them of the opportunity to
sell or reallocate it and constituted intentional and negligent interference
with prospective economic advantage.” (Emphasis and capitalization
omitted.) Based on “ ‘ “[o]obvious considerations of fairness,” ’ ” we will not
consider an argument made for the first time in the reply brief. (Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 764.) Moreover, even were we to
consider the issues, Aljabban has presented no reason for us to disregard the
trial court’s finding that there was no merit to the cause of action for civil
assault and battery because Ramirez was credible when he testified that he
had no physical contact with Carrasco and he did not assault Carrasco’s
mother. Further, to the extent Aljabban now argues that defendants engaged
in interference by not allowing him and Carrasco to take the Items when they
vacated the premises, we have concluded that the Items were permanent
fixtures that were required to remain in space H-2.
40
in “taunting, mockery and distraction” by making faces and other gestures
while Carrasco and Aljabban were testifying. He also claims that defendants’
attorney used gestures to indicate how Shapiro should answer certain
questions during his testimony, and that Shapiro made gestures to
defendants’ witness in the same manner. In addition, without any evidence
in the record to support the contention, Aljabban claims that in a
conversation that was held “off the record,” the trial court stated on the
second day of trial that “Plaintiffs should have sued the former vendor who
sold the salon to them,” which plaintiffs understood “to mean that they had
lost the case,” causing them to “bec[o]me discouraged” and emboldening
Shapiro’s misbehavior.
As Aljabban points out, the alleged distracting behavior by Shapiro in
the courtroom was brought to the trial court’s attention twice during the
trial. First, during a break in Carrasco’s testimony, plaintiffs’ counsel stated
that he had called for a break “because I noticed unusual behavior on the
part of the witness, and she indicated that she was being—each time she was
receiving some signs and mocking from the defendant in the back, and that
was distracting [to] her [ability to] answer and concentrate and give
testimony. Whatever it’s worth, I want to bring that to the Court’s attention.
I don’t know if she needs to sit here or face that way to make sure . . . we can
move this smoothly. And the reason it is important is something even worse
happened during the deposition.” Plaintiffs’ counsel then started to explain
what happened during the deposition. The trial court stated, “We don’t need
to go there,” and then indicated, “Let’s go ahead.” Plaintiffs’ counsel did not
ask the trial court to take any action, and it is unclear if Carrasco physically
shifted her position, as plaintiffs’ counsel suggested, so that she could no
longer see Shapiro.
41
Second, at the end of his direct examination, Aljabban interjected,
“Your Honor, can I say something, please?” He then continued, “I want the
man turning his face over there because he’s laughing at me,” apparently
referring to Shapiro. Plaintiffs’ counsel did not ask for any relief from the
trial court based on Shapiro’s alleged behavior. The trial court indicated that
counsel should proceed with cross-examination.
In both cases, the record does not reflect whether the trial court
concurred with the description of Shapiro’s behavior as stated by plaintiffs’
counsel and Aljabban. Further, there is no indication in the record whether
the problem that plaintiffs perceived with Shapiro continued during the rest
of Carrasco’s or Aljabban’s testimony.
Although Aljabban’s argument is not clear, he apparently contends that
the trial court denied him a fair trial because of how it responded to Shapiro’s
alleged misbehavior during the trial. “ ‘An appellate court will ordinarily not
consider procedural defects or erroneous rulings, in connection with relief
sought or defenses asserted, where an objection could have been but was not
presented to the lower court by some appropriate method. The circumstances
may involve such intentional acts or acquiescence as to be appropriately
classified under the headings of estoppel or waiver. Often, however, the
explanation is simply that it is unfair to the trial judge and to the adverse
party to take advantage of an error on appeal when it could easily have been
corrected at the trial.’ ” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23
Cal.3d 180, 184.) “Moreover, it would be inappropriate to allow a party not to
object to an error of which the party is or should be aware, ‘ “thereby
permitting the proceedings to go to a conclusion which he may acquiesce in, if
favorable, and which he may avoid, if not.” ’ ” (In re Dakota S. (2000) 85
Cal.App.4th 494, 501.)
42
“A court has inherent power to exercise reasonable control over all
proceedings connected with the litigation before it . . . and maintain ‘the
dignity and authority of the court’ . . . , and to summarily punish for acts
committed in the immediate view and presence of the court when they
impede, embarrass or obstruct it in the discharge of its duties.” (Mowrer v.
Superior Court (1969) 3 Cal.App.3d 223, 230, citations omitted; see also Code
Civ. Proc., § 128, subd. (a) [“Every court shall have the power to do . . . (1) To
preserve and enforce order in its immediate presence” and “(3) To provide for
the orderly conduct of proceedings before it, or its officers”].) Thus, in this
case, if plaintiffs’ counsel had made a request for the trial court to intervene,
we would expect the trial court to have assessed the situation and to have
taken reasonable steps to preserve a respectful courtroom atmosphere
conducive to a fair trial. However, because plaintiffs’ counsel made no
specific request of the trial court to exercise such control and did not give the
trial court any occasion to state on the record whether it perceived any
objectionable behavior by Shapiro, we do not consider Aljabban’s appellate
contention that he was denied a fair trial due to the trial court’s lack of
response to Shapiro’s alleged misbehavior.
F. The Attorney Fee and Costs Award
The attorney fee provision in the vendor’s permit states, “In the event it
becomes necessary to institute legal proceedings to enforce the terms of this
License, the prevailing party shall be entitled to an award of Attorney’s fees
and court costs.” As defendants were the prevailing parties on all causes of
action, the trial court relied on the attorney fee provision in the vendor’s
permit to order that Aljabban and Carrasco pay attorney fees to defendants
43
in the amount of $121,043. The trial court also ordered Aljabban and
Carrasco to pay $14,374.60 in costs.
In relevant part, Civil Code section 1717 provides, “(a) In any action on
a contract, where the contract specifically provides that attorney’s fees and
costs, which are incurred to enforce that contract, shall be awarded either to
one of the parties or to the prevailing party, then the party who is determined
to be the party prevailing on the contract, whether he or she is the party
specified in the contract or not, shall be entitled to reasonable . . . . [¶]
Reasonable attorney’s fees shall be fixed by the court, and shall be an
element of the costs of suit. . . . [¶] (b)(1) The court, upon notice and motion
by a party, shall determine who is the party prevailing on the contract for
purposes of this section, whether or not the suit proceeds to final judgment.
Except as provided in paragraph (2), the party prevailing on the
contract shall be the party who recovered a greater relief in the action on the
contract. The court may also determine that there is no party prevailing on
the contract for purposes of this section.” (Civ. Code, § 1717.)
Here, the trial court awarded attorney fees and costs to defendants
based on its judgment in favor of defendants on all of the causes of action,
which clearly made defendants the prevailing parties. Because we are
reversing the judgment and directing that judgment be entered in favor of
Aljabban on the breach of contract and conversion causes of action in the
amount of $680.00, we must necessarily reverse the trial court’s attorney fee
and costs award as it relates to Aljabban. (Cutujian v. Benedict Hills Estates
Assn. (1996) 41 Cal.App.4th 1379, 1390 [“In view of our reversal of the
judgment, the order awarding attorney fees must also be reversed.”]; Lafferty
v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 551 [“Since we reverse the
judgment, we also reverse the award of attorney fees because [defendant] is
44
no longer necessarily the prevailing party in this action”]; Merced County
Taxpayers’ Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402 [“An order
awarding costs falls with a reversal of the judgment on which it is based”].)
We accordingly reverse the attorney fee and costs award with respect to
Aljabban, and we remand to the trial court to take appropriate action on the
issue of attorney fees and costs in light of the applicable legal standards. We
express no view on how the issue of attorney fees or costs should be resolved
on remand, including the attorney fees incurred in this appeal.
DISPOSITION
We reverse the judgment denying relief to Aljabban on all causes of
action, and we direct the trial court to issue a new judgment as to Aljabban
granting him relief against FISM on the causes of action for breach of
contract and conversion in the amount of $680.00. The judgment shall
specify that the defendants prevail against Aljabban on all of the remaining
causes of action. Further, we reverse the order requiring Aljabban to pay
attorney fees in the amount of $121,043, and costs in the amount of
$14,374.60, and we direct the trial court on remand to consider the issue of
attorney fees and costs, as concerns Aljabban, in light of the applicable legal
standards. Carrasco is not a party to this appeal, and our disposition does
not reverse the judgment or the attorney fee and costs order as to Carrasco.
The parties are to bear their own costs on appeal.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
45