KJ Investment Group, Inc. v. American Heritage College, LLC CA4/3

Filed 10/1/20 KJ Investment Group, Inc. v. American Heritage College, LLC 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
KJ INVESTMENT GROUP LLC,
Plaintiff and Respondent, G058270
v. (Super. Ct. No. 30-2018-00989692)
AMERICAN HERITAGE COLLEGE, OPINION
LLC et. al.,
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Affirmed.
Fox Rothschild, Mitchell S. Kim and Joseph A. Ungaro II for Plaintiff and
Respondent.
Kenney & Kropff and David E. Kenney for Defendants and Appellants.
* * *
This is a challenging appeal. The lengthy opening brief (AOB) filed by
appellants Chanh Huu Nguyen and American Heritage College, LLC (collectively AHC)
is largely comprised of a series of convoluted factual claims which are only sporadically
supported by citations to the record. The brief introduces an extensive cast of characters
without explaining who they are, how they relate to each other, or what roles they play in
the dispute on appeal. Indeed, the exact nature of the dispute, and the relationship of the
named parties to each other, is not revealed until page 47 of appellants’ 55-page opening
brief. As we said, this case is a challenge.
As near as we can tell at this point, KJ Investment LLC, a commercial
landlord, sued AHC for failure to pay rent in accordance with the parties’ lease
agreement. There were only two witnesses at trial—Chae Hong Chung, who testified on
behalf of the landlord, KJ Investment, and Nguyen, who testified on behalf of the tenant,
AHC. AHC’s primary complaint on appeal appears to be that the trial court erred by
concluding that Chung was a credible witness and relying on his testimony to support the
judgment. We remind appellants that determining credibility is the exclusive province of
the trier of fact, and thus such determinations are not reviewable on appeal. We find no
error in the trial court’s reliance on Chung’s testimony.
AHC characterizes the “question presented” in this appeal as a legal issue
involving a determination as to who was required to pay for required accessibility
upgrades to the common areas associated with the leased premises. However, AHC fails
to develop the point with any meaningful analysis or authority. AHC also ignores the
trial court’s implicit determination that KJ Investment was obligated to pay for such
upgrades, but only if given written notice which AHC never provided. Under these
circumstances, the issue provides no basis for reversing the judgment. We therefore
affirm it.
2
1
FACTS
AHC intended to operate as an “[i]nternet college,” providing “vocational
education programs in areas such as medicine, construction, electrical, English, computer
science, music, and movies.”
In March 2017, AHC entered into a five-year lease agreement for premises
located in a commercial property in Garden Grove. Nguyen signed a personal guaranty
of AHC’s performance under the lease.
Shortly after the lease documents were signed, AHC and the property
owner entered into an amendment delaying the commencement date of the lease term
from May 1, 2017 to July 1, 2017. Around that same time, KJ Investments purchased the
property from the prior owner.
The lease included a provision stating the lessor warranted that, to the best
of its knowledge, existing improvements located in the leased premises or common areas
complied with the building codes, applicable laws, regulations, and ordinances in effect
at the time that each improvement was constructed (defined collectively as the
“Applicable Requirements”). That warranty excluded any representation about
compliance with the Americans with Disabilities Act (42 U.S.C. § 12111 et seq., ADA)
because compliance is dependent upon the lessee’s specific use.
The provision further stated that if the premises did not comply with the
lessor’s warranty regarding the Applicable Requirements, the lessor would rectify the
non-compliance after receiving written notice from the lessee. The lease otherwise
placed responsibility on AHC to determine whether or not the Applicable Requirements
were appropriate for its intended use, and obligated AHC, at its sole expense, to comply
1
Our appellate record does not include the complaint, any other pleadings, or
any documents filed with the court before the end of trial. AHC failed to provide a
properly supported statement of facts in its brief. Consequently, we must piece together
our statement of facts largely from the trial court’s statement of decision.
3
with all Applicable Requirements and to make any ADA modifications required by its
use of the premises, at its own expense.
AHC was unable to operate without a business license, and as a condition
of obtaining that license, AHC was required to obtain a Conditional Use Permit (CUP)
from the city of Garden Grove (the City). An addendum to the lease specified that
“[AHC] must obtain and maintain at all times, all required City, County, State, and
Federal Government li[c]enses required to operate.”
In July 2017, AHC submitted its application for a CUP, and that application
was provisionally approved in September 2017. The City advised AHC that in order to
obtain the final CUP, it would have to show compliance with several requirements,
including one that it ‘“modify the vanity tops in the second floor men’s and women’s
restrooms . . . to be accessible, install an accessible drinking fountain in the common
hallway, and modify the first floor front entry that leads directly to the second floor to be
accessible.”’
Nguyen anticipated that once AHC received the provisional CUP, it would
take a few months to complete the required work on the premises, and AHC would be
able to commence classes in January 2018. The court found that whereas KJ Investment
facilitated the modification of the premises, Nguyen and the architect hired by AHC were
not diligent.
At one point, KJ Investment informed AHC via e-mail that the architectural
plans had not yet been approved by the City, and without that approval no construction
could be done. The e-mail encouraged Nguyen to use any influence he might have with
the City to obtain the required approval. The e-mail reminded Nguyen that while the
lease made AHC responsible for the CUP process and the cost of any remodeling
required by that process, KJ Investment had agreed to pay for remodeling of the
bathroom specifically.
4
In December 2017, AHC’s parent company cancelled its authority to
operate as an internet college pursuant to their joint venture agreement, citing several
alleged justifications. In January 2018, AHC informed KJ Investment that it was not able
to continue with the lease.
Although the parties made some effort to negotiate a resolution of the lease,
that effort was unsuccessful. In May 2018, KJ Investment filed suit against AHC for
damages based on breach of the lease agreement.
The case was tried to the court in June 2019. Chung testified on behalf of
KJ Investment, while Nguyen testified on behalf of AHC. Numerous documents were
entered into evidence. The court found in favor of KJ Investment, "awarding it
$135,049.03 in damages."
DISCUSSION
1. Arguments Presented on Appeal
AHC tells us that the “question presented” in this appeal, which it
characterizes as a “legal issue,” is “who has the legal obligation to pay for common area
improvements[,] . . . The landlord and tenants, or AHC?” However, AHC also contends
this appeal “presents mixed questions of fact and law” and “requests the examination of
the facts presented, and precluded, at trial, for an independent determination of their
effect as a matter of law.”
AHC claims the judgment must be reversed because “[t]he court displayed
bias, exhibited prejudice [fn. omitted], and committed error repeatedly”; because the
court “neither accepted [n]or weighed, but excluded evidence and refused to allow
relevant facts into evidence concerning KJ Investment’s lease and legal obligations”; and
because the court “erred in connection with defendant’s application for a Conditional Use
Permit [by] placing all of those obligations . . . in contravention of the lease and its
5
requirement of allocation amongst tenants, upon . . . AHC.” AHC also complains that
“Chae Chung and his counsel misadvised and misled the court.”
None of these complaints are supported by evidence in the record,
2
developed into an argument that might justify reversal, or supported by legal authority.
Instead, as the sole legal authority for these contentions, AHC “rel[ies] on Bowers v.
Bernards [(1984) 150 Cal. App. 3d 870, 874] for re-examination of the entire record, and
J.H. McKnight Ranch[, Inc.] v. Franchise Tax [Bd. (2003) 110 Cal. App. 4th 978
(McKnight)] based upon abuse of discretion and for contract review.” That quote
constitutes AHC’s entire discussion of those two authorities and how they relate to the
issues presented.
Rather than presenting any sort of cogent legal argument, the AOB is
3
essentially an extended factual statement. After summarizing its complaints about the
trial court at pages 15-16 of its opening brief, and stating its “question presented” at page
17, AHC returns to its factual recitation, offering an additional 30 pages of largely
unsupported facts, including a description of selected lease provisions, selected excerpts
of documents filed with permitting authorities, and alleged communications among the
2
We believe that at least some of the evidence AHC asserts was erroneously
excluded relates to “the School of Theology,” another tenant that leased office space on
the same floor as AHC. In its brief, AHC refers to “the School of Theology,” while
observing that the trial court “precluded and prohibited examination” relating to it. At
one point, AHC contends the court “erred [by] barring inquiry related to the School of
Theology, the other comparable tenant on the second floor.” AHC provides no legal
authority or analysis to support that claim of error. Consequently, that claim is waived;
we presume the court acted properly by excluding the evidence.
3
Most of the facts detailed by AHC are not supported by citations to the
record. Among the many unsupported facts is AHC’s contention that although Chae
testified at trial that the premises leased by AHC were still vacant at the time of trial, “In
January [o]f 2019, Jong Chul Ha apparently moved H&KC, Inc. into the premises; and,
in February of 2019, he apparently moved LH USA, Inc. into the premises.” The record
contains no evidence that supports this statement.
6
parties, their agents, and third parties. Although this rendition is nearly granular in detail,
it only intermittently references the record and is not tailored to discuss the issues
previously alluded to.
As noted at the outset, it is not until page 47 of the AOB that AHC reveals
who brought the lawsuit against whom (KJ Investment against AHC) and for what
purpose (to recover in excess of $36,000 in damages largely related to AHC’s failure to
pay its rent). It is not until page 49 of its brief that AHC attempts to explain why it was
excused from its obligation to pay rent under the lease, and not until page 50 that AHC
references the trial court’s decision.
As in all cases, our analysis begins with the proposition that “an appealed
judgment is presumed correct, and appellant bears the burden of overcoming the
presumption of correctness.” (Boyle v. CertainTeed Corp. (2006) 137 Cal. App. 4th 645,
649–650.) As a result, “[t]o demonstrate error, appellant must present meaningful legal
analysis supported by citations to authority and citations to facts in the record that support
the claim of error.” (In re S.C. (2006) 138 Cal. App. 4th 396, 408.) When an appellant
raises an issue “but fails to support it with reasoned argument and citations to authority,
we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal. App. 4th 779,
784–785.)
Further, even when the appellant identifies and substantiates a claim of
error, it is the appellant’s obligation to demonstrate, based on legal authorities, how those
problems affected the judgment, and why they were prejudicial. (Code Civ. Proc., § 475
[“No judgment, decision, or decree shall be reversed or affected by reason of any error,
ruling, instruction, or defect, unless it shall appear from the record that such error, ruling,
instruction, or defect was prejudicial, . . . and that a different result would have been
probable if such error, ruling, instruction, or defect had not occurred or existed. There
shall be no presumption that error is prejudicial, or that injury was done if error is
shown”]; Cal. Const., art.VI, § 13.) Thus, if AHC is contending the court made a legal
7
error in its interpretation of the parties’ lease, or committed any other error below, it has
the affirmative obligation to develop that contention, support it with legal authority, and
explain why the error prejudiced the outcome of the case. AHC has done none of those
things either in its briefing or during oral argument.
Indeed, AHC never explains how the “question presented” in its AOB, i.e.,
“who has the legal obligation to pay for common area improvements,” bears on the
merits of the judgment. We might guess that AHC is suggesting that if we conclude
KJ Investment was obligated to pay for those improvements under the terms of the lease,
then its failure to do so would have excused AHC’s obligation to pay rent for the
premises. But AHC never makes that argument, nor offers any legal authority to support
4
it.
Moreover, AHC proceeds without acknowledging that the court’s statement
of decision actually allows for the possibility AHC is correct in suggesting that KJ
Investment had some responsibility for the payment. In fact, the court made a finding
that “[i]f there were items in the Common Areas that were not in compliance, the Lessor
is responsible upon receiving written notice from [ACH].” However, the court further
found “that no written notice was ever given.” In light of that finding, even if we agreed
4
What AHC does do is assert—albeit in discrete allegations sprinkled
throughout its brief—that (1) after AHC’s CUP was provisionally granted in September,
the “CUP related work needed to be completed in the common area to obtain the final
permit”; (2) “KJ Investment [was] required to make common area improvements” (italics
added) and to “proceed with diligence to modify the [common areas] to be accessible”;
and (3) that AHC “resumed payment of rent in October of 2017 in good faith, expecting
CUP related work to be accomplished.” None of those assertions is supported by a
citation to the record. To the extent we can infer an argument from those assertions, it
would seem to be that KJ Investment was obligated not only to pay for the CUP work,
but also to ensure it got done in a diligent fashion, and that it was KJ Investment’s failure
to complete that work diligently which excused AHC’s failure to pay rent. That would be
a significantly different argument than the one AHC characterizes as the “question
presented” in this appeal.
8
with AHC on the legal question of who was obligated to pay for the common area
improvements, we could not reverse the judgment unless AHC also demonstrated the
court erred in concluding written notice was required to trigger that obligation. AHC has
not done so.
AHC’s lament about Chung’s questionable credibility fares no better. We
are constrained by the rule that it is the trier of fact—whether trial court or jury—that is
the sole judge of witness credibility. (Schmidt v. Superior Court (2020) 44 Cal. App. 5th
570, 582 [“in a bench trial, the trial court is the ‘sole judge’ of witness credibility.
[Citation.] The trial judge may believe or disbelieve uncontradicted witnesses if there is
any rational ground for doing so”].) “[A] trial judge has an inherent right to disregard the
testimony of any witness . . . . The trial judge is the arbiter of the credibility of the
witnesses.” (La Jolla Casa de Manana v. Hopkins (1950) 98 Cal. App. 2d 339, 345–346.)
Because the trial court explicitly found Chung to be credible, we accept its determination.
(See Thompson v. Asimos (2016) 6 Cal. App. 5th 970, 980 [“A single witness’s testimony
may constitute substantial evidence to support a finding”].)
As we have already noted, the trial court made explicit findings that KJ
Investment facilitated the modification of the premises as required by the CUP, whereas
Nguyen and the architect hired by AHC were not diligent. Thus, the court determined
that it was AHC, rather than KJ Investment, that was responsible for whatever delays
may have occurred. Consequently, even if we were persuaded that the construction had
not been completed in a timely fashion, AHC would have to demonstrate that the court’s
findings about the parties’ relative diligence were wholly unsupported by evidence. It
has made no such attempt.
AHC makes no other cognizable assertions in its briefing. Having
concluded that none of the assertions we were able to extract are meritorious, we affirm
the judgment.
9
DISPOSITION
The judgment is affirmed. KJ Investment is entitled to its costs on appeal.
GOETHALS, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
10