Opinion
B324636
04-30-2024
MACARIA BELTRAN, TRUSTEE OF THE MCB TRUST, Plaintiff and Respondent, v. PATRICK GRAHAM, Defendant and Appellant.
Grant | Shenon, David M. Almaraz and Nicholas Koo, for Defendant and Appellant. Dennis P. Block &Associates, Dennis P. Block, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from judgment and order of the Superior Court of Los Angeles County Super. Ct. No. 22CHCV00005, Stephen P. Pfahler, Judge.
Grant | Shenon, David M. Almaraz and Nicholas Koo, for Defendant and Appellant.
Dennis P. Block &Associates, Dennis P. Block, for Plaintiff and Respondent.
MORI, J.
This is an eviction case. Respondent and plaintiff Macaria Beltran, Trustee of the MCB Trust (Beltran), leased a residence to appellant and defendant Patrick Graham (Graham). The lease required the tenant to place all utilities in his name and pay for them. Graham did not put the water bill in his name or pay it, and Beltran filed an unlawful detainer complaint. The court denied Graham's motion for summary judgment or, in the alternative, summary adjudication. After a bench trial, the trial court found Graham's failure to pay the water bill was a substantial and material violation of the lease. Following entry of judgment for Beltran, Graham moved for relief from forfeiture based on alleged hardship. The trial court denied the motion. Graham appeals from the judgment, arguing that the court erred in denying his motion for summary judgment or, in the alternative, summary adjudication and entering judgment against him following trial. Graham also argues the trial court abused its discretion in denying his post-judgment motion for relief from forfeiture.
We reject Graham's arguments and affirm.
FACTUAL BACKGROUND
A. The Lease and Initiation of Unlawful Detainer Proceedings
On December 3, 2020, Beltran and Graham executed a lease for a residence in Chatsworth, and Graham moved in shortly thereafter.
Disputes arose between the parties, and less than a year later, Beltran served Graham with a Notice to Perform Conditions and Covenants or Quit (Notice to Perform or Quit) that described multiple violations of the lease. Only one of these violations is pertinent to this appeal: "Item #3: Paragraph 9 of your rental agreement provides that 'Tenant agrees to pay for all utilities and services.' You failed to switch the DWP bill into your name and have accumulated an outstanding balance of $6,462.92 in your landlord's name. You must reimburse your landlord $6,462.92 and switch the utilities into your name within the three (3) days stated herein or quit the premises."
B. Procedural Background
In January 2022, Beltran filed a complaint against Graham that asserted a single cause of action for unlawful detainer.
Graham filed a motion for summary judgment or, in the alternative, summary adjudication. The trial court found triable issues of material fact and denied the motion.
After a bench trial, the trial court found Graham had not violated the lease's covenant to change the water account into his own name because the utility, the Los Angeles Department of Water and Power (DWP), prevented him from doing so. However, the court found the lease required Graham to pay the water bill, Graham never paid the bill during the entirety of his tenancy, and his failure to pay was a substantial and material violation of the lease. Judgment was entered in favor of Beltran, awarding her possession, damages, and attorney fees and costs.
After entry of judgment Graham filed a motion for relief from forfeiture due to hardship pursuant to California Code of Civil Procedure section 1179. The trial court denied the motion.
DISCUSSION
A. Limitation of the Issues on Appeal
1. The Settled Statement Precludes Review of Certain Errors Related to the Findings After Trial
Graham's briefing alleges a multitude of errors. He contends the trial court erred in denying his summary judgment motion. He contends judgment should be reversed because (1) a condition precedent existed to his duty to pay the water bill, (2) there was insufficient evidence to establish a breach, (3) Beltran had waived or was estopped from asserting a violation of the utility payment covenant, and (4) the Notice to Perform or Quit was invalid due to an overstatement of the amount required to cure the violation. Graham also contends the trial court abused its discretion in denying his post-judgment motion to avoid forfeiture. In addition, Graham asks us to consider a new theory he concedes he did not raise below: a complete defense based on eviction moratoria imposed by the City of Los Angeles (City) and County of Los Angeles (County) during the COVID-19 pandemic emergency.
"It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Graham elected to designate a settled statement in lieu of a reporter's transcript pursuant to the California Rules of Court, rule 8.137(a).
Graham submitted to the trial court a document entitled "Defendant and Appellant's Proposed Statement on Appeal (Cal. Rules of Court, [r]ule 8.837)." Rule 8.837 sets forth the rules for preparing a "statement of appeal" to be used by the superior court appellate division in limited civil cases. (See Eisenberg, et. al, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 16:19.) The trial court treated Graham's submission as an election to proceed under rule 8.137, which applies to appeals to the Court of Appeal. The trial court issued an "Order On Appellant's Proposed Settled Statement (Unlimited Civil Case)" and certified it was ready to be sent to this court. Therefore, we will treat the document as a settled statement and evaluate it against the requirements of rule 8.137.
A settled statement must contain "a statement of the points the appellant is raising on appeal" and a condensed narrative of the relevant oral proceedings. (Cal. Rules of Court, rule 8.137(d)(1) and (2).) "If the condensed narrative . . . covers only a portion of the oral proceedings, the appeal is then limited to the points identified in the statement unless the reviewing court determines that the record permits the full consideration of another point or, on motion, the reviewing court permits otherwise." (Rules of Court, rule 8.137(d)(1), italics added.) "'Stating the points to be raised on appeal enables the respondent to determine whether additional portions of the oral proceedings should be included in the settled statement.'" (Von Nothdurft v. Steck (2014) 227 Cal.App.4th 524, citing former rule 8.137(b)(1) and Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 497.) Failure to include issues in the settled statement precludes the appellant from raising them on appeal. (Von Nothdurft, supra, 227 Cal.App.4th at p. 534, citing Marogna v. Mitchell (1951) 104 Cal.App.2d 799, 806.)
Graham's briefing asserts multiple errors in the trial court's findings and conclusions following a three-day trial. Yet, the settled statement's entire summary of trial testimony consists of perhaps eight sentences and does not mention three of the witnesses who testified in the plaintiff's case (Beltran, Stephen Kaseno, and Katherine Sison). Graham is the only trial witness identified in the settled statement, and the description of his testimony seems to consist only of ultimate facts favorable to his case. Unquestionably, the condensed narrative describes far less than all of the trial testimony. Graham did not timely file a motion for leave to raise issues that were not included in the settled statement. (See Cal. Rules of Court, rule 8.137(d)(1) [appeal is limited to the points stated in the settled statement unless, "on motion, the reviewing court permits otherwise"] italics added.)
Pursuant to rule 8.137(d), we will consider only the points to be raised on appeal that are explicitly defined in the settled statement: "1. It was error to enter Judgment in spite of, inter alia, Appellant's testimony that he had made a payment for the water bill;
2. It was error to enter Judgment when the Respondent had failed to perform a condition precedent necessary for Appellant's performance; and
3. It was error to find a lack of hardship in denying Appellant's motion for relief from forfeiture."
In addition, we will consider the errors Graham asserts with respect to the denial of his summary judgment motion, as we conclude a description of the oral proceedings concerning that motion is not necessary for the appeal. (Cal. Rules of Court, rule 8.137(d)(1).)
We will not consider the findings and rulings after trial concerning Graham's challenges to validity of the Notice to Perform or Quit based on an alleged overstatement of amounts to be paid, or the affirmative defenses of waiver and estoppel. These issues were not defined in the settled statement's "Issues Raised On Appeal," and further, we observe that these matters were not mentioned in the section "Respondent's Argument At Trial." Beltran was not given adequate notice that review of these issues would be sought, and she was deprived of the opportunity to designate additional portions of trial testimony. Furthermore, the settled statement's failure to describe most of the testimony relevant to these issues has deprived us of a record from which we can conduct a meaningful review. (Cal. Rules of Court, rule 8.137(d)(2)(A) [settled statement "must" include a summary of the testimony of "each witness" relevant to the points on appeal; "Any evidence or portion of a proceeding not included will be presumed to support the judgment ...."] Thus, we conclude rule 8.137 precludes our consideration of these issues.
2. Affirmative Defenses Arising from COVID-19 Moratoria Have Been Forfeited
It is also improper to consider Graham's newly-asserted defenses arising from the City's and County's COVID-19 eviction moratoria. Graham concedes he did not raise these defenses at trial, but he urges us to consider the new defenses because, he contends, the facts are not disputed, and he has merely raised a new question of law.
"New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal." (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn. 6.) "There are exceptions but the general rule is especially true when the theory newly presented involves controverted questions of fact or mixed questions of law and fact." (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341.) "If a question of law only is presented on the facts appearing in the record the change in theory may be permitted." (Ibid.) "But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal." (Ibid.; Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 699.)
Defenses arising from the City's and County's COVID-19 eviction moratoria would require the resolution of disputed issues of fact based on evidence not in the record. Both the City's and County's moratoria prohibited evictions of tenants who were unable to pay rent due to circumstances related to COVID-19 . The County's moratorium imposed the additional requirement of timely notice to the landlord of the tenant's inability to pay or proof of extenuating circumstances that prevented giving of notice. (Los Angeles County Consumer &Business Affairs, Revised Guidelines to LA County Covid-19 Tenant Protections, July 1, 2021, § 6.1, subd. (A).)
(L.A. Mun. Code, § 49.99.2, subd. (A) [prohibiting evictions of residential tenants who were "unable to pay rent due to circumstances related to the COVID-19 pandemic"].)
In March 2020, the Chair of the Los Angeles County Board of Supervisors (LACBS) enacted a temporary eviction moratorium that banned residential evictions based on failure to pay rent due to financial impacts related to COVID-19. (Exec. Order of the Chair of the County of Los Angeles Board of Supervisors Following Proclamation of Existence of a Local Health Emergency Regarding Novel Coronavirus (COVID-19) (March 19, 2020).) Pursuant to LACBS's directions in a subsequent order, the Director of the Department of Consumer and Business Affairs issued guidelines to aid in the implementation of the moratorium (Guidelines). An eviction commenced in November 2021 would have been subject to the July 1, 2021 revision to the guidelines (Guidelines July 2021 Revision), which provided: "A Landlord shall not serve a notice to evict on or otherwise attempt to evict a Tenant subject to the Moratorium: [¶] A. Who fails to pay any amount of rent or other costs or fees, including but not limited to late charges and interest, if the Tenant demonstrates an inability to pay such rent or other costs or fees due to financial impacts related to COVID-19 . . ., so long as the Tenant has provided the Landlord with notice of an inability to pay within seven (7) calendar days of the date the rent or other costs or fees were due, unless extenuating circumstances exist that prevented the Tenant from providing timely notice ...." (Los Angeles County Consumer & Business Affairs, Revised Guidelines to LA County Covid-19 Tenant Protections, July 1, 2021, § 6.1, subd. (A).) Graham asks us to rely on an order issued in 2023 and guidelines issued in June 2022. For purposes of this discussion, determining the exact version applicable to his eviction is unnecessary because he concedes the County moratorium defense requires the tenant to "demonstrate[ ] an inability to pay rent and/or such related charges due to Financial Impacts Related to COVID-19." (Italics added.)
Even if we assume nonpayment of utility bills fell within the meaning of the moratoria's respective definitions of nonpayment of rent, Graham's entitlement to a defense still turns on unresolved factual issues. Graham points to nothing in the record to suggest COVID-19 impacts had anything to do with his nonpayment of the water bill. Indeed, the suggestion that pandemic impacts were involved is undermined by his position that the "only" reason he did not pay the water bill was because of Beltran's failure to pay pre-tenancy water charges. Graham's new defenses "contemplate[ ] a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial." (Panopulos v. Maderis, supra, 47 Cal.2d at p. 341.) Accordingly, we conclude Graham has forfeited the City and County eviction moratorium defenses he did not raise below.
B. There Was No Condition Precedent to Graham's Obligation to Pay the Water Bills
"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 violating a lease covenant other than for non-payment of rent and failing to cure the violation. (Code Civ. Proc., § 1161, subd. (3).) 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.) We do not reweigh the evidence or assess witness credibility. (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 500.)
"'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Gee v. American Realty &Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416, italics in original, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
The unlawful detainer judgment for Beltran arose from Graham's violation of the lease's "Utilities" provision. The trial court found Graham had not violated the part of that provision requiring him to change the water bill to his name because DWP prevented him from doing so. Rather, the trial court found "[i]t was beyond dispute that [Graham] was responsible under the Lease for paying the water bill ...." The court found Graham never paid the water bill during the entirety of his tenancy, and that failure was a substantial and material breach of the lease.
Graham contends this finding was erroneous because conditions precedent to his duty to pay the water bill were not satisfied, specifically Beltran's payment of pre-tenancy charges and her fixing a water leak that caused excessive water usage. He argues, "[T]he parties only ever agreed that [Graham] would be responsible for the utilities under the Lease agreement. (CT Vol. 1, 25.) As such, [Graham] would only be responsible for the water bill usage that he incurred."
Parties may expressly agree that a right or duty is conditional upon the occurrence of an act or event. (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313.) "Thus, 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." (Ibid.; Civ. Code, § 1436.) Conditions precedent may be created expressly, with words such as "subject to" or "conditioned upon," or impliedly. (Estate of Jones (2022) 82 Cal.App.5th 948, 953 review denied (Nov. 30, 2022).) "They are generally disfavored and are strictly construed against a party arguing the agreement imposes one." (Ibid.) "Courts will not interpret a provision as a condition precedent absent clear, unambiguous language requiring that construction." (Ibid.)
"Contract interpretation is a question of law," which is generally subject to de novo review. (Canyon Vineyard Estates I, LLC v. DeJoria (2022) 78 Cal.App.5th 995, 1003; ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) "'The fundamental goal of contract interpretation is to give effect to the mutual intention of the parties.'" (Canyon Vineyard Estates I, LLC, supra, 78 Cal.App.5th at p. 1003 , quoting Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264; Civ. Code, § 1636.) When a contract is reduced to writing, the parties' intention is determined from the writing alone, if possible. (Civ. Code, § 1639.) Generally, the words of a contract are to be understood in their ordinary and popular sense. (Civ. Code, § 1644.) The whole of the contract is "'to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.'" (Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, 503, quoting Civ. Code, § 1641.) The effect of this rule "is to disfavor constructions of contractual provisions that would render other provisions surplusage." (Boghos, supra, 36 Cal.4th at p. 503.)
Under the parol evidence rule, extrinsic evidence is only admissible to prove a meaning to which the contract is reasonably susceptible. (Powers v. Dickson, Carlson &Campillo (1997) 54 Cal.App.4th 1102, 1111.) If the trial court decides, after receiving the extrinsic evidence, the language of the contract is reasonably susceptible to the interpretation urged, the evidence is admitted to aid the interpretation. (Ibid.) To the extent there is conflicting extrinsic evidence requiring credibility determinations by the finder of fact regarding a meaning of which the contract is reasonably susceptible, we will uphold the trial court's determination if supported by substantial evidence. (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 531-532.)
The trial court's interpretation of the lease can be discerned from its finding of breach. The court implicitly and necessarily found Graham had, in the very least, a contractual duty to pay the bill for water usage during his tenancy, and that duty existed whether or not the DWP account was in his name. There was no error in this interpretation.
No "subject to" or "conditioned on" language appears in section nine, the Utilities provision, and Graham does not point us to such language elsewhere in the lease. Thus, there is no unambiguous language in the lease that created a condition precedent to Graham's duty to pay the water bill for usage during his tenancy. (Estate of Jones, supra, 82 Cal.App.5th at p. 953.)
The remainder of the Utilities provision offers nothing to suggest the parties intended to create conditions precedent. The first sentence provided a blank space to spell out "charges . . . which shall be paid for by Landlord." This would have been the natural place to specify charges that would be Beltran's responsibility, such as paying a pre-tenancy water bill, but the parties left it blank. The provision's final sentence made Graham responsible for "any cost for conversion from existing utilities service provider." Nothing in this last term suggests Graham could stop paying the water bill if a dispute arose with a utility over a pre-tenancy bill.
The settled statement, limited as it is, reveals extrinsic evidence that supports the trial court's interpretation. Graham's testimony that he made payments for water usage after he moved onto the property-while the account remained in Beltran's name-is inconsistent with his purported belief that payments were conditioned on Beltran's paying past amounts or making repairs. (See Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179, 1189 ["The conduct of the parties after execution of the contract and before any controversy has arisen as to its effect affords the most reliable evidence of the parties' intentions"].)
As discussed in section C., infra, the trial court disbelieved this testimony and concluded Graham never paid any of the water bills during his tenancy.
We are, unfortunately, prevented by an insufficient record from reviewing other extrinsic evidence that may have been offered to aid the trial court's interpretation. We must presume the testimony omitted from the settled statement supported any factual determinations the trial court may have made to interpret the lease. (Cal. Rules of Court, rule 8.137(d)(2)(A); see Agnew v. Contractors Safety Assn. (1963) 216 Cal.App.2d 154, 162-163 [an appellant, "having failed to [include] . . . all . . . portions of the oral proceedings [that are] material to the determination of the points on appeal, . . . is in no position to attack the sufficiency of the evidence to support the findings of fact"].) There was no error in the court's interpreting the lease to mean that Graham had a contractual duty to pay the bill for water usage during his tenancy, not subject to any condition precedent.
We decline to consider an issue raised by appellant for the first time at oral argument-that the lease's language required Beltran to determine appellant's proportional share of the water bill, and she failed to do so. The settled statement did not identify this as an issue for appeal (see § A.1, supra), and appellant's opening brief did not analyze the issue. (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 786 ["issues not addressed as error in a party's opening brief with legal analysis and citation to authority are forfeited"].)
C. The Trial Court's Finding That Graham Violated the Lease is Supported by Substantial Evidence
We turn to Graham's other assertion of error at trial-that the court erroneously entered judgment for Beltran in spite of Graham's testimony that he had "made a payment for the water bill." The trial court found Graham "never paid any of the water bills during the entirety of his tenancy," and his "failure and breach were corroborated by the third-party witness, Mr. Kasino," who testified that Graham never paid the water bills.
We review the trial court's findings of fact for substantial evidence. Evidence is substantial if it is reasonable, credible, and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) In reviewing a claim of insufficiency of evidence, we look at the whole record and review the evidence, contradicted or uncontradicted, in the light most favorable to the judgment rendered below. (Rivard v. Bd. of Pension Commissioners (1985) 164 Cal.App.3d 405, 410.) Even if evidence gives rise to conflicting inferences, we must defer to the trial court's choice among conflicting reasonable inferences. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.) "'A single witness's testimony may constitute substantial evidence to support a finding.'" (Cameron v. Las Orchidias Properties, supra, 82 Cal.App.5th at p. 500.)
As discussed in section A., supra, the settled statement provided a gravely incomplete description of the evidence and testimony at trial. The only testimony it mentions regarding payment of the water bill is Graham's testimony that "he had made payments for water usage after he moved onto the Premises and included the payments in breakdowns of the monthly payments to" Beltran. Missing is a description of the testimony of Beltran and the two other witnesses she called.
The trial court found the evidence of non-payment to be at least credible, if not compelling. Mr. Kaseno is credited with corroborating Graham's failure to pay and breach. The court's strong language suggests Graham may have made damaging admissions during his testimony, perhaps when he was called as a witness in Beltran's case: "It was beyond dispute that the defendant was responsible under the Lease for paying the water bill, but he never did," and "it is also crystal clear that [Graham] never paid any of the water bills during the entirety of his tenancy." (Italics added.) We lack a full account of the testimony supporting these findings because the settled statement fails to describe the "evidence and the testimony of each witness." (Cal. Rules of Court, rule 8.137(d)(2)(A).) This compels us to presume the testimony supported the trial court's finding that Graham never paid the water bills during the entirety of his tenancy. (Ibid.; O'Callaghan v. Southern Pac. Co. (1962) 202 Cal.App.2d 364, 368.)
In sum, there was no condition precedent to Graham's duty to pay the water bill. Further, substantial evidence supported the trial court's conclusion that Graham violated this duty. We therefore conclude the trial court did not err in finding a material violation of the lease.
D. There Was No Error in the Trial Court's Denial of Graham's Summary Judgment Motion
An order denying a motion for summary judgment may be reviewed on direct appeal from a final judgment entered after a trial. (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 343 (Dintino).) After a motion for summary judgment or summary adjudication has been denied, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Id. at p. 345, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the moving party is entitled to a judgment as a matter of law, the court must grant the motion for summary judgment. (Dintino, supra, 167 Cal.App.4th at p. 345, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Code Civ. Proc., § 437c, subd. (c).) Section 437c, subdivision (o), provides a cause of action has no merit if: (1) one or more elements of that cause of action cannot separately be established; or (2) a defendant establishes an affirmative defense to that cause of action. We construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Dintino, supra, 167 Cal.App.4th at p. 343.) We must examine only papers before the trial court when it considered the motion, and not documents filed later. (Id. at p. 346.)
After trial, the appellant must "show the purported error [in denying summary judgment] constituted prejudicial, or reversible, error (i.e., caused a miscarriage of justice.)" (Dintino, supra, 167 Cal.App.4th at p. 343, citing Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836.) In general, an order denying a motion for summary judgment or summary adjudication does not constitute prejudicial error if the same question was subsequently decided adversely to the moving party after a trial on the merits. (Dintino, supra, 167 Cal.App.4th at p. 343.) The rationale underlying this rule is that a decision based on less evidence (i.e., the evidence presented on the summary judgment/summary adjudication motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial). (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1011, citation omitted.) With these principles in mind, we turn to Graham's assertion of three errors in the trial court's denial of summary judgment.
First, Graham argues the trial court erred in denying summary judgment because Beltran failed to perform a condition precedent to his duty to change the water bill into his name and thereafter pay the bill. However, Graham did not raise this issue in his motion. The notice of motion did not describe the existence of a condition precedent as a ground for the motion, and "[o]nly the grounds specified in the notice of motion may be considered by the trial court." (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545.) Moreover, no discussion of or cited legal authority concerning a condition precedent appears in the memorandum of points and authorities. Because Graham did not make the argument in the proceedings below, the argument is forfeited. (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 147; Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 672.)
Even if the argument were not forfeited, it fails on the merits. The trial court correctly determined, after trial, that no condition precedent existed to Graham's duty to pay the water bill during his tenancy. (See § B., supra.) Denial of summary judgment or summary adjudication on the same issue did not constitute prejudicial error. (Dintino, supra, 167 Cal.App.4th at p. 343.)
Second, Graham asserts the Notice to Perform or Quit was "defective as a matter of law" because it incorrectly stated the amount necessary to cure the violation of the covenant to pay for utilities. He argues the stated amount included pre-tenancy amounts that were not his responsibility, that he made payments, and therefore, the amount to cure was overstated. This argument, too, is forfeited because Graham did not raise it below. Invalidity of the Notice to Perform or Quit is not mentioned in the notice of motion, and nowhere else in the motion did he challenge the accuracy of the amount to cure. (Nicoletti v. Kest, supra, 97 Cal.App.5th at p. 147.)
Denial of the motion would not have been prejudicial error in any event. Graham asserts the "same arguments for deficient notice . . . were present at trial ...." Having had the opportunity to make a full evidentiary showing, he suffered no miscarriage of justice from denial of summary judgment or summary adjudication on the same issue. (Dintino, supra, 167 Cal.App.4th at p. 343.)
Third, Graham argues that he was entitled to summary judgment based on defenses of estoppel and waiver. He argues the "undisputed evidence" established the parties agreed Graham "would only be responsible for the water bill and usage that he incurred." He further argues that before he moved in, "there was [ ] a pre-existing water bill" that was caused by water leaks that Beltran failed to disclose before the lease was signed. He contends Beltran was aware that DWP refused to transfer the water account to Graham until the leak and high water bill were resolved. The trial court found triable issues of material fact on the defenses of waiver and estoppel.
Graham concedes "the same arguments for . . . estoppel were present at trial ...." After trial, the court found "insufficient evidence that the plaintiff [had] ever waived her right to have the defendant pay the water bill. While there were discussions about the inability to transfer the water bill into defendant's name, there were never any discussions that the defendant did not have to pay the water bill. Nothing in plaintiff's conduct demonstrated either a waiver or an estoppel of such payment by defendant." Because waiver and estoppel were fully adjudicated at trial, there was no prejudicial error in denying summary judgment or summary adjudication of these defenses. (Dintino, supra, 167 Cal.App.4th at p. 343.)
Accordingly, we affirm the trial court's denial of the motion for summary judgment or in the alternative, summary adjudication.
E. The Trial Court Did Not Abuse its Discretion in Denying Graham's Motion for Relief from Forfeiture
Graham contends the trial court erred in denying his postjudgment motion for relief from forfeiture pursuant to Code of Civil Procedure section 1179, which allows a trial court to relieve a tenant against a forfeiture of a lease "in case of hardship ...." However, a showing of hardship does not end the inquiry. "The mere fact that a hardship exists will not, automatically, be a basis upon which to set aside the forfeiture since hardship will exist in almost all cases where relief is not granted. (Thrifty Oil Co. v. Batarse (1985) 174 Cal.App.3d 770, 777, quoting Olympic Auditorium, Inc. v. Superior Court (1927) 81 Cal.App. 283, 285-286.) Rather, "'[u]nder section 1179, the court in balancing the equities should take into consideration the circumstances of the case, the hardship, if any, to the lessee from the forfeiture, the hardship, if any, to the lessor from relieving the lessee from the forfeiture, the willful or other character of the breach, and then use its best discretion in determining whether relief will be granted.'" (Thrifty Oil Co., supra, at p. 777, quoting Hignell v. Gebala (1949) 90 Cal.App.2d 61, 70-71.)
A trial court's order denying relief from forfeiture under section 1179 is reviewed for abuse of discretion. (Thrifty Oil Co. v. Batarse, supra, 174 Cal.App.3d at p. 778.) A motion under section 1179 "vest[s] nearly plenary discretion in the trial court," and the matter of granting or denying a motion under this section "'is one which lies so largely in the discretion of the trial court that it would require a very clear showing of an abuse of such discretion to justify a reversal of the order made thereon.'" (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1064, quoting Matthews v. Digges (1920) 45 Cal.App. 561, 566.)
Graham's motion essentially asked the trial court to revisit the unlawful detainer judgment in light of Graham's claim that he belatedly located a piece of evidence, though it was admittedly in his possession at the time of trial. The evidence was what he referred to as a "Letter Agreement" dated December 17, 2020. Graham contended he drafted it, the parties signed it, and he emailed it to Beltran from a personal e-mail account. He contended he did not offer the Letter Agreement at trial because he only remembered it afterwards. According to Graham, the Letter Agreement evidenced Beltran's agreement to pay the water bill until a major water leak was under control, and thus, he did not breach the lease by failing to pay for water. The Letter Agreement, he urged, also showed Beltran's agreement to sell the property to him, and the document was the basis of a new lawsuit against Beltran for specific performance. He argued he would prevail in that lawsuit and "[would] own the Property." If he were evicted, he argued, the substantial expense he would incur to move and store his personal property would be a waste of money once he moved back in. The trial court denied the motion.
Graham argues that the trial court abused its discretion by "failing to even consider the Letter Agreement in its weighing process for a determination as to whether denying [relief] would be [manifestly] unjust." We disagree.
Trial courts may consider the "circumstances of the case" as part of its weighing process. (Thrifty Oil Co., supra, 174 Cal.App.3d at p. 777.) Before turning to the trial court's analysis of the Letter Agreement, we consider the procedural backdrop against which the court considered the motion. A three-day trial had been completed, during which the parties had the opportunity to present evidence of the meaning of the lease and any modifications to it. After judgment was entered against Graham, he claimed to remember evidence that he admitted to having in his possession all along.
The order denying the motion suggests the court had concerns about the "Letter Agreement." The court noted the document was signed by "Dolly" Beltran, with no explanation from Graham as to its relevance to a lease dispute with his landlord, Macaria Beltran. Beltran contested the authenticity of the Letter Agreement. The court noted the document was dated December 17, 2020, two weeks after the lease had been signed, but it purported to state what the lease "will indicate ...." The trial court considered how the Letter Agreement surfaced only after trial: Graham's drafting it, sending a signed copy via e-mail, forgetting about it during discovery, and then "'only'" remembering it after trial.
Beltran declared she had never seen the Letter Agreement before, and it did not accurately reflect any agreement with Graham. She also stated, "[T]he signature which purports to be mine on said document was not created by me. This document is a complete forgery."
Despite these issues, the trial court considered whether the Letter Agreement established an erroneous decision that would render the unlawful detainer invalid. The court concluded it could not because Graham's "declaration otherwise still lacks any evidence establishing a later addendum or novation indicating the new agreement directly alters the terms of the earlier executed lease." The court "finds no support for the argument seeking to render the unlawful detainer invalid."
The trial court had ample basis for declining to find that equitable circumstances required relieving Graham from forfeiture. The court was well within its discretion in refusing to speculate that Graham certainly would prevail on his specific performance lawsuit and recover possession. As for the Letter Agreement, the document's authenticity was disputed, and its belated presentation deprived Beltran of the opportunity to conduct discovery and cross-examine Graham at trial regarding the document's preparation, the signatures, and the parties' intentions. The legal effect of the document was questionable, as the court found Graham had not presented evidence sufficient to show the Letter Agreement "directly alters the terms of the earlier executed lease."
Moreover, Graham has not pointed to any authority for the proposition that a party may use a motion under section 1179 to introduce new evidence to attack trial findings and effectively invalidate an unlawful detainer judgment. Ordinarily, a losing party who desires to introduce new evidence after trial must move for a new trial. (See Code Civ. Proc., § 657, subd. (4) [verdict may be vacated and new trial granted based on "[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial"].) These motions are disfavored and require a strict showing of diligence. (Caldwell v. Caldwell (1947) 80 Cal.App.2d 378, 385.) Grant of Graham's motion would have allowed him to bypass the strict diligence requirements of section 657. More importantly, it would have afforded Graham a far more favorable remedy than section 657 allows-an immediate effective nullification of the unlawful detainer judgment and continued possession of the property.
In conclusion, Graham has fallen well short of a "very clear showing" that the trial court abused its discretion in consideration of any of the factors relevant to a showing of hardship. (Matthews v. Digges, supra, 45 Cal.App. at p. 566.) The trial court's order denying the motion for relief from forfeiture is affirmed.
With his reply brief, Graham filed a motion asking us to take judicial notice of three documents he filed in the trial court. Apparently, after denying the motion for relief from forfeiture, the court imposed a stay of any lockout, and Beltran filed a motion to terminate that stay. Graham asks us to take judicial notice of his opposition and declaration (both filed December 19, 2023), as well as the trial court's January 3, 2024 minute order denying the motion. In light of our rulings, infra, we deny the request to take judicial notice because these filings are not necessary, helpful, or relevant to resolution of any of the issues in the appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not "necessary, helpful, or relevant"]; San Jose Unified School Dist. v. Santa Clara County Office of Education (2017) 7 Cal.App.5th 967, 970, fn. 3.)
DISPOSITION
The judgment and post-judgment order are affirmed. Beltran is awarded her costs on appeal.
We concur: CURREY, P. J. ZUKIN, J.