Triton Property Investments v. George CA1/3

Filed 8/24/23 Triton Property Investments v. George CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
TRITON PROPERTY
INVESTMENTS, LLC, A163973
Plaintiff and Respondent,
v. (San Mateo County Super. Ct.
RICHARD GEORGE et al., No. 21UDL00115)
Defendants and Appellants.
Defendants Richard George and Sandrine Clark, representing
themselves, appeal from a jury verdict in an unlawful detainer action. Triton
Property Investments, LLC (Triton) notified defendants it was terminating
their lease to a rental cottage because it was taking the property off the
rental market. Defendants refused to leave; they argued the lease agreement
expressly allowed termination only in an unlikely event. A jury found in
Triton’s favor, restored possession to it, and awarded $62,500 in reasonable
rental damages for a seven-month holdover. On appeal, defendants make
several challenges to the unlawful detainer judgment: they argue the lease
agreement could not be terminated as a matter of law; Triton did not comply
with its obligations for providing notice of termination under the Tenant
Protection Act of 2019 (Act) (Civ. Code, § 1946.2 et seq.; undesignated
1
statutory references are to this code); the trial court made several erroneous
rulings; and the damages award is excessive. We affirm.
BACKGROUND1
Carleen Whittelsey owned property in Woodside consisting of one main
house and two cottages. In 2016, Whittelsey leased a cottage to George and
his then-girlfriend for a fixed term of one year. When that term expired, the
lease converted to a month-to-month tenancy. George was required to
provide notice 60 days before terminating the agreement after the initial
lease period expired. The lease also provided, “[i]n the unlikely event that the
owner needs to terminate renting the cottage after the lease has expired, a 60
day notice will be given to the tenants from the owner.”
Triton, a real estate investment and development company, purchased
Whittelsey’s property in November 2019. It intended to take the house and
cottages off the rental market and sell them as a single-family home. To that
end, it developed plans to tear down the main house and rebuild a new one,
and completely gut and renovate the two cottages. On December 30, 2020,
Triton notified George via email and certified mail he must vacate the
property in 60 days so it could begin construction. George, who was living
with Clark at the time, countered this lease could not be terminated unless
there was an unlikely event or a legitimate need. Shortly after, George
informed Triton he had “exclusive use and possession” of the property based
on a court order from a domestic violence dispute. He filed a civil case
1 While this appeal was pending, defendants filed a motion to strike
portions of Triton’s brief, arguing it refers to evidence outside the record.
(Cal. Rules of Court, rule 8.204(e).) We deny the motion. The objectionable
references were sourced from witness testimony presented at trial, not
documents the parties stipulated to excluding from evidence. While
defendants also seek to strike testimony they assert is false, they fail to
demonstrate this is a proper basis for striking portions of a brief. (Ibid.)
2
against Triton, alleging he owned the property and sought $10 million in
damages.
On January 26, 2021, Triton served defendants with a 60-day notice of
termination of tenancy. The notice stated Triton was withdrawing the
property from the residential rental market. (§ 1946.2, subd. (b)(2)(B).)
A process server mailed the notice to defendants. He also attempted to
personally serve defendants at the cottage. When outside the house, he saw
Clark sitting inside on a couch. Upon seeing the process server, Clark
walked away into another room. She did not respond when the server
knocked on the door and called out for both George and Clark. The process
server then posted a copy of the notice on the front door so it could be easily
identified when entering or exiting the cottage.
After George and Clark did not vacate the premises within 60 days,
Triton filed an unlawful detainer action on March 30, 2021 to recover
possession. The process server attempted to personally serve George and
Clark at their residence several times each day over the course of eight days,
but no one ever responded. The trial court granted Triton’s request to serve
defendants by posting and mailing the summons and complaint on April 14,
2021.
In July 2021, George and Clark filed a demurrer, arguing the lease
created a condition precedent to terminating the lease — that it could only be
terminated upon the occurrence of an “unlikely event.” They also argued the
complaint failed to allege that the requisite 60-day notice was personally
served, and whether notice withdrawing the property from the rental market
was provided to them. The trial court overruled the demurrer.
After a jury trial at which George and Clark represented themselves,
the jury found Triton was entitled to possession of the property. The jury
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awarded $62,500 in damages as the reasonable rental value of the property
from the date after the expiration of the notice of termination of tenancy
through the date of the verdict.
DISCUSSION
Defendants make several challenges to the unlawful detainer
judgment. “The Unlawful Detainer Act governs the procedure for landlords
and tenants to resolve disputes about who has the right to possess real
property.” (Stancil v. Superior Court (2021) 11 Cal.5th 381, 394.) Plaintiffs
may file unlawful detainer complaints under specific circumstances
enumerated in Code of Civil Procedure section 1161. (Stancil, at p. 395.)
Relevant here, a plaintiff can seek possession when the tenant continues to
possess the real property after the expiration of the term for which it was
leased to the tenant. (Code Civ. Proc., § 1161, subd. (1).) We review
questions of law de novo and factual findings for substantial evidence —
considering the evidence in the light most favorable to the prevailing party
and drawing all reasonable inferences in support of the findings. (Cuiellette
v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765; Niko v. Foreman
(2006) 144 Cal.App.4th 344, 364.) We do not reweigh the evidence or assess
witness credibility. (Foreman, at p. 365.) With this framework, we review
defendants’ arguments below.
I.
Defendants contend the lease agreement contained a condition
precedent to terminating the lease. According to defendants, the sentence —
“In the unlikely event that the owner needs to terminate renting the cottage
after the lease has expired, a 60 day notice will be given to the tenants from
the owner” — required the occurrence of an unlikely event before Triton could
terminate the lease. We disagree.
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Interpreting a contract requires giving “effect to the mutual intention
of the parties as it existed at the time of contracting.” (§ 1636.) To ascertain
the intent of the parties, we review the contract’s written provisions, giving
them their plain and ordinary meaning. (Hewlett-Packard Co. v. Oracle Corp.
(2021) 65 Cal.App.5th 506, 531.) Extrinsic evidence may be referenced “to
ascertain whether it supports an interpretation to which the agreement is
reasonably susceptible.” (Id. at p. 532.) Where the extrinsic evidence is not
in conflict, we review the contract de novo. (Ibid.)
A “condition precedent is either an act of a party that must be
performed or an uncertain event that must happen before the contractual
right accrues or the contractual duty arises.” (Platt Pacific, Inc. v. Andelson
(1993) 6 Cal.4th 307, 313; § 1436.) Generally, conditions precedent are
created expressly, with words such as “subject to” or “conditioned upon.”
(Estate of Jones (2022) 82 Cal.App.5th 948, 953.) Conditions precedent are
generally disfavored — courts “will not interpret a provision as a condition
precedent absent clear, unambiguous language requiring that construction.”
(Ibid.)
No such unambiguous language creating a condition precedent appears
here. The plain language does not require termination be “conditioned upon”
or “subject to” an unlikely event. (Minton v. Mitchell (1928) 89 Cal.App.
361, 368.) The phrase, “[i]n the unlikely event that the owner needs to
terminate renting the cottage after the lease has expired,” is followed by an
additional phrase requiring the owner to provide 60-days notice of
termination. In its entirety, the sentence sets forth the requisite notice the
owner must provide the tenant before needing to terminate the lease. But
it does not unequivocally limit the circumstances under which the owner
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is authorized to terminate the lease. (Ginsberg v. Gamson (2012)
205 Cal.App.4th 873, 890.)
Moreover, we observe the extrinsic evidence submitted at trial supports
the conclusion that the phrase “unlikely event” did not unambiguously create
a condition precedent. (Hewlett-Packard Co. v. Oracle Corp., supra,
65 Cal.App.5th at p. 538.) Though George expressed his desire to rent the
cottage long term, Whittelsey testified the term “unlikely event” simply
indicated it may be unlikely defendants would have to move immediately
after the initial one-year lease expired. She noted she may need to use the
cottage if her family moved in, but she emphasized to George she would
provide defendants 60 days of notice before terminating the lease. Whittelsey
expressly disavowed making any representations defendants could remain on
the property for their entire lives or that the lease could only be terminated if
there was an unlikely event such as an earthquake. And as George testified,
these events were merely presented as examples of unlikely events.
Termination was not limited to those situations. As a matter of law, there
was no condition precedent in the lease agreement.
II.
Defendants next argue we must reverse the judgment because there is
insufficient evidence Triton complied with its obligations under the Act.
(§ 1946.2 et seq.) According to defendants, Triton was not authorized to
terminate their lease agreement because its statements the property was
being withdrawn from the rental market and substantially remodeled were
false. They further argue Triton failed to properly serve the 60-day notice of
termination of tenancy. Neither argument warrants reversal.
The Act is a comprehensive anti-rent gouging and eviction control law.
(Borden v. Stiles (2023) 92 Cal.App.5th 337, 346.) It provides, in relevant
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part, “the owner of the residential real property shall not terminate the
tenancy without just cause” if one or more tenants, as here, have
continuously and lawfully occupied the property for 12 months or more.
(§ 1946.2, subd. (a)(1).) “Just cause” can be defined as “[n]o-fault just cause.”
(Id., subd. (b)(2).) Examples of no-fault just cause include withdrawing the
residential property from the rental market or intending to demolish or
substantially remodel the residential rental property. (Id., subds. (b)(2)(B),
(D).) Just cause must be stated “in the written notice to terminate tenancy.”
(Id., subd. (a).)
Here, Triton notified defendants it was withdrawing the cottage from
the rental market. (§ 1946.2, subds. (a)–(b).) Derek Gaffney, a managing
member of Triton confirmed this intent in his testimony. To the extent the
jury credited this testimony, we defer to that determination here. (People v.
Jones (1990) 51 Cal.3d 294, 314 [determining the credibility of witnesses is
the exclusive province of the jury].) Indeed, in March 2021, Triton entered
into a contract to sell the property to a third party. The sale has not been
completed — escrow has not closed — due to the possession dispute between
defendants and Triton. The third party intended to demolish the three
buildings on the property and rebuild them as a family home for themselves,
all supporting the statement the cottage was being removed from the rental
market.
Defendants insist this testimony is false because Triton also separately
expressed the need to terminate the tenancy to substantially remodel the
cottage. Not so. The substantial remodel was part of its effort to take the
cottage off the rental market. After purchasing the property, Triton planned
to entirely tear down the main house and renovate the cottages to sell the
property as a single-family home. The plans required completely tearing
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down the cottage to its structural studs, as well as installing a new roof.
Because Triton’s plans involved a gut renovation, it would not obtain the
necessary permits to perform the construction while people were residing
inside. (§ 1946.2, subd. (b)(2)(D)(ii) [defining “substantially remodel” as
substantial modification of any structural system requiring a permit from a
government agency].) Triton finished developing its construction plans by
approximately November 2020. The notice of termination was sent January
26, 2021, giving Triton approximately two months to obtain the requisite
permits to start construction while defendants vacated the premises. There
was sufficient evidence to support Triton was withdrawing the cottage from
the rental market.2
We similarly reject defendants’ argument that Triton’s service of the
60-day notice of termination did not comply with the Act. (§ 1946.2, subd.
(a)(1).) Notices terminating tenancies must “be given in the manner
prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy
by certified or registered mail addressed to the other party.” (§ 1946.)
Relevant here, if “a person of suitable age or discretion there can not be
found” at the tenants’ place of residence or usual place of business, notice can
be served “by affixing a copy in a conspicuous place on the property, and also
2 There is no showing Triton engaged in bad faith — falsely
representing it was going to begin construction in retaliation. Thus,
defendants’ argument the unclean hands doctrine bars its possession of the
cottage is meritless. (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 432
[“equitable doctrine of unclean hands applies when a plaintiff has acted
unconscionably, in bad faith, or inequitably”].) There is also no indication
Triton acted in bad faith by noting it could terminate the lease due to Clark
residing at the cottage despite not being named in the lease agreement; her
residence violated the lease agreement. And in any event, the notice of
termination did not justify terminating the lease on Clark’s unauthorized
residence.
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delivering a copy to a person there residing, if such person can be found; and
also sending a copy through the mail addressed to the tenant at the place
where the property is situated.” (Code Civ. Proc., § 1162, subd. (a)(3), italics
added.)
As a preliminary matter, we reject defendants’ assertion Triton sent
the notice of termination three weeks after eviction proceedings commenced.
Triton posted and mailed the notice to defendants January 26, 2021. It filed
the unlawful detainer action on March 30, 2021. Moreover, defendants are
not entitled to assert Triton improperly served the notice of termination —
Clark frustrated the process server’s attempt at personal service. (Crescendo
Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 213.) Upon seeing the
process server at the cottage, Clark walked out of the front room and did not
respond when he knocked on the door or called defendants’ names. There
was no indication George was present. By posting the notice on the cottage
front door, the process server ensured defendants would see the notice upon
entering — a conspicuous place. (Code Civ. Proc., § 1162, subd. (a)(3).) In
these circumstances, Triton properly served defendants by posting and
mailing the notice. (Crescendo Corp., at p. 212 [where individual refuses
service, “ ‘the service may be made by merely depositing the process in some
appropriate place where it would be most likely to come to the attention of
the person being served’ ”].) The process server also mailed the notice to
defendants’ residence. Indeed, defendants acknowledged in a federal
complaint they received the notice of termination. Because defendants were
properly served, Triton’s judgment for possession is proper. (Liebovich v.
Shahrokhkhany (1997) 56 Cal.App.4th 511, 513.)
Finally, we reject defendants’ argument they were not properly served
with the summons and complaint because Triton failed to file a proof of
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service. Even assuming service was improper, defendants waived any
irregularity by making a general appearance. “A general appearance by a
party is equivalent to personal service of summons on such party” and cures
any defects in service. (Code Civ. Proc., § 410.50, subd. (a); Fireman’s Fund
Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)
Indeed, a general appearance, such as contesting the merits by filing a
demurrer or answer, can compensate “for a complete failure to serve a
summons.” (Sparks Construction, Inc., at p. 1145; 366-386 Geary St., L.P. v.
Superior Court (1990) 219 Cal.App.3d 1186, 1193–1194; Code Civ. Proc.,
§ 1014.) Defendants filed both here. Defendants forfeited any objection to
defective service. (Sparks, at p. 1148.)
We do not address defendants’ passing statement that Triton failed to
provide timely written notice of their rights under the Act — that notice was
provided on January 22, 2021. (§ 1946.2, subd. (f).)3 Aside from stating the
notice was untimely, defendants proffer no argument that late compliance
with this provision requires reversing the judgment, thus forfeiting the issue.
(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“It is not
our place to construct theories or arguments to undermine the judgment . . . .
3 For tenancies existing prior to July 1, 2020, as here, owners of
residential real property must provide “written notice to the tenant no later
than August 1, 2020,” of specific information articulated by the statute.
(§ 1946.2, subd. (f)(2)(A).) The notice must be in no less than 12-point type
and include specific language identifying a landlord’s obligations when
terminating a tenancy. (Id., (f)(3).) The requisite notice language is as
follows: “California law limits the amount your rent can be increased. See
Section 1947.12 of the Civil Code for more information. California law also
provides that after all of the tenants have continuously and lawfully occupied
the property for 12 months or more or at least one of the tenants has
continuously and lawfully occupied the property for 24 months or more, a
landlord must provide a statement of cause in any notice to terminate a
tenancy. See Section 1946.2 of the Civil Code for more information.” (Ibid.)
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When an appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the point as
waived”].) Though we are sympathetic to the fact defendants are
representing themselves without the benefit of an attorney, we treat self-
represented litigants as we would any other party or attorney. (Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)
III.
Defendants contend the trial court improperly excluded evidence — a
declaration by Triton’s process server — and rejected their proposed jury
instructions — CACI No. 321 regarding conditions precedent, and elements of
CACI No. 4307 regarding sufficiency and service of notice of termination of a
month-to-month tenancy.4 They also argue the court improperly instructed
the jury regarding personal service. Examining the specifics of defendants’
argument is unnecessary because they make no effort to demonstrate the
asserted errors were prejudicial.
Evidentiary error is only grounds for reversal if the party
“demonstrates a miscarriage of justice, that is, that a different result would
have been probable had the error not occurred.” (Major v. R.J. Reynolds
Tobacco Co. (2017) 14 Cal.App.5th 1179, 1202; Cal. Const., art. VI, § 13; Evid.
Code, § 354.) In their reply brief, defendants argue for the first time on
appeal that admitting the process server’s declaration would have clarified
issues of serving the notice of termination and demonstrated the process
4 We reject defendants’ requests for judicial notice of their proposed
jury instructions, CACI Nos. 321 and 4307, an exhibit list, since they do not
bear on our analysis. (Arce v. Kaiser Foundation Health Plan, Inc. (2010)
181 Cal.App.4th 471, 482.) We also reject defendants’ request for judicial
notice of statutory authorities and rules of professional conduct that are
already subject to mandatory judicial notice. (Evid. Code, § 451, subds. (a),
(c).)
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server perjured himself. Leaving aside this belated attempt to substantively
address the evidentiary ruling, this contention fails to explain whether, based
on an examination of the record, a different verdict would have been probable
if that declaration had been admitted into evidence. (Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894–
895, fn. 10 [absent good reason, courts generally do not consider arguments
raised for the first time in an appellant’s reply brief].) Defendants have not
satisfied their burden of demonstrating reversible error. (Zhou v. Unisource
Worldwide (2007) 157 Cal.App.4th 1471, 1480 [party claiming error must
demonstrate prejudice, it is not presumed].)
Defendants’ challenges to the jury instructions fail for the same reason.
The erroneous refusal to give a jury instruction or omit an instruction does
not mandate reversal. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
580.) Like evidentiary ruling errors, instructional error must be prejudicial,
“ ‘where it seems probable’ that the error ‘prejudicially affected the
verdict’ ” — a determination that “depends heavily on the particular nature
of the error, including its natural and probable effect on a party’s ability to
place his full case before the jury.” (Ibid.) In addition, “[a]ctual prejudice
must be assessed in the context of the individual trial record,” considering
“(1) the state of the evidence, (2) the effect of other instructions, (3) the effect
of counsel’s arguments, and (4) any indications by the jury itself that it was
misled.” (Id. at pp. 580–581.)
We have no duty to examine the record here — defendants fail to
address the Soule factors or explain how any instructional error resulted in a
miscarriage of justice. (Paterno v. State of California (1999) 74 Cal.App.4th
68, 106.) Their conclusory statement that the instructions given were
12
prejudicial does not satisfy this burden. (Adams v. MHC Colony Park, L.P.
(2014) 224 Cal.App.4th 601, 615.)
IV.
Defendants contend the trial court abused its discretion by denying a
continuance. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448
[standard of review for granting and denying continuances].) We disagree.
On November 4, 2021, defendants filed their unclean hands motion —
that Triton may not recover possession of the cottage because it had unclean
hands. The same day the jury rendered its verdict in favor of Triton, and it
was discharged. The trial court allowed defendants to argue the motion
despite its procedural irregularities. George requested a continuance to allow
the attorney who drafted the legal portion of the motion to handle the oral
argument. In denying the request, the court explained George was
representing himself and had to proceed with the argument. George did not
seek substitution of an attorney, and he acknowledged the attorney did not
file a notice of appearance.
Defendants have not demonstrated denying the continuance was an
abuse of discretion. (Mahoney v. Southland Mental Health Associates
Medical Group (1990) 223 Cal.App.3d 167, 170.) The record indicates
defendants had the benefit of retained counsel until trial, at which point they
chose to represent themselves. If defendants wanted an attorney to orally
argue their unclean hands motion, they had ample time to make that
substitution. (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1289 [denying
continuance to obtain counsel properly denied when party had more than 50
days to do so].)5 Moreover, the court did not deny defendants the right to be
5 We do not address defendants’ argument, under Code of Civil
Procedure section 1170.7— allowing a motion for summary judgment to be
13
represented. It allowed defendants to represent themselves and denied a
continuance when they changed their mind after the jury returned a verdict
in favor of Triton. While civil litigants have the right to be represented by
retained counsel, that right does not guarantee litigants who are
representing themselves a continuance for the purpose of obtaining counsel.
(Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027; Nelson v. Gaunt (1981)
125 Cal.App.3d 623, 638–639 [litigants representing themselves held to same
rules as an attorney].)
V.
Defendants contend the $62,500 award of damages awarded by the jury
is excessive and should be vacated. Defendants waived this argument by
failing to raise it in a timely motion for a new trial. (Code Civ. Proc., § 657,
subd. (5); Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 759.)
In unlawful detainer actions not based on nonpayment of rent, a
landlord may recover damages that “result from the unlawful detention
and accrue during that time.” (Vasey v. California Dance Co. (1977)
70 Cal.App.3d 742, 748.) Landlords are entitled to recover damages
calculated by the reasonable value of the use of the premises from the
beginning of the unlawful detainer through judgment. (Lehr v. Crosby (1981)
123 Cal.App.3d Supp. 1, 9.) If “ascertainment of the amount of damages
turns on the credibility of witnesses, conflicting evidence, or other factual
questions, the award may not be challenged for inadequacy or excessiveness
for the first time on appeal,” it must first be made in a motion for a new trial.
filed after an answer is filed and upon giving five days’ notice — the trial
court should have granted a continuance since it appears for the first time in
their reply brief, thus forfeiting the issue. (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc., supra, 78 Cal.App.4th at pp. 894–895, fn.
10.)
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(Greenwich S.F., LLC v. Wong, supra, 190 Cal.App.4th at p. 759.) Trial
courts can weigh evidence and assess credibility and are better situated than
appellate courts to resolve disputes over damages amounts. (Ibid.)
The damages amount here was based on conflicting evidence or other
factual questions. The jury was instructed the “ ‘amount agreed between the
parties as rent is evidence of the reasonable rental value of the property, but
you may award a greater or lesser amount based on all the evidence
presented’ at ‘trial.’ ” (CACI No. 4340 [pattern jury instructions for
reasonable rental value].) The lease was $5,000 per month or $166.66 per
day. But George testified other rental properties in the area were $8,500 per
month. To the extent the jury awarded damages based on this higher
amount, this was an issue of conflicting evidence presented by both parties
regarding the reasonable rental value. (Greenwich S.F., LLC v. Wong, supra,
190 Cal.App.4th at p. 759.) That issue is not one that we can review in the
absence of a motion for a new trial. (Ibid.)6
DISPOSITION
The judgment is affirmed. Triton is entitled to its costs on appeal.
6 We reject defendants’ challenge to the damages award based on Code
of Civil Procedure section 1179.03.5, subdivision (a)(3)(B), precluding Triton
from recovering COVID-19 rental debt in connection with any award of
damages. Rental debt was not an issue in this case, even if the reasonable
rental value was the measure of damages. We also reject defendants’ belated
request in their reply brief for $2.5 million restitution for unjust enrichment
damages. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.,
supra, 78 Cal.App.4th at pp. 894–895, fn. 10.)
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A163973
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