Jeffrey Kavin, Inc. v. Frye

TURNER, P. J. , Concurring.

—I concur in the decision to affirm the judgment. Plaintiff, Jeffrey Kavin, Inc., presents complicated arguments in an effort to reverse the judgment. My sense of it is that we should reject plaintiff’s sophisticated analysis on simpler grounds. In the case of an ambiguous contract, we review the issues for substantial evidence. (Bill Signs Trucking, LLC v. Signs Family Limited Partnership (2007) 157 Cal.App.4th 1515, 1521 [69 Cal.Rptr.3d 589]; ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1267-1268 & fn. 4 [35 Cal.Rptr.3d 343].) In my view, there is substantial evidence plaintiff entered into a lease extension only with Andrea Lynne Frye.

According to Ms. Frye: Jeffrey Kavin walked into her shop, the only business on the premises; he told her she needed to get a piece of paper; Mr. Kavin then dictated word for word what she needed to write which is what she did; she was told she “had” to sign the document; and she later said he “made” her sign the extension. The language “our” in the extension agreement is vague. There were only two people present, Mr. Kavin and Ms. Frye. The other signatories to the lease were not present. Only Ms. Frye’s business remained on the premises when the undated agreement was executed. Because the extension agreement’s vague language was selected exclusively by Mr. Kavin, it must be construed against plaintiff. (Civ. Code, § 1654; Schram Construction, Inc. v. Regents of University of California (2010) 187 Cal.App.4th 1040, 1060, fn. 14 [114 Cal.Rptr.3d 680].) This is an issue of contract creation and what was the substance of the parties’ agreement. Substantial evidence supports the trial court’s ruling the agreement extended only to Ms. Frye.

At oral argument and in its briefs, plaintiff adverts to the lease’s antiwaiver provision. The answer raises without specification the defense of waiver. In my view, Mr. Kavin’s conduct, as described by Ms. Frye, constitutes waiver of the antiwaiver provisions of the original lease. (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179-1180 [120 Cal.Rptr.3d 943].)