Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Los Angeles County Super. Ct. No. VC048310, Dewey Lawes Falcone, Judge.
Bergkvist, Bergkvist & Carter and Richard J. Cowles for Plaintiff, Cross-complainant and Appellant.
McGarrigle, Kenney & Zampiello and Patrick C. McGarrigle for Defendants, Cross-defendants and Appellants.
ASHMANN-GERST, J.
This action arises out of the lease of certain real property. The parties dispute who was the lessor of the property, whether the lessee’s prepayment of rent was refundable (in whole or in part), and whether any litigant was entitled to recoup attorney fees and costs.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Purchase and Sale of the Property
The Kennedy Family Trust (the trust) owned certain real property located at 13219 Stanbridge Avenue in Downey, California (the property). In 2005, Peter Thelin (Peter), the trustee of the trust, negotiated the sale of the property.
The appellate record is unclear as to who actually purchased the property. According to Ron Brandenburg’s (Brandenburg) trial testimony, he and his wife purchased the property. While he and William R. McMahan (McMahan) made the offer, only Brandenburg and his wife actually purchased it.
However, McMahan testified that he was a “co-owner of the property”; he and Brandenburg purchased the property in July of 2005 for $390,000. McMahan confirmed his purchase of the property in a January 5, 2007, letter to George W. Thelin II’s (Thelin) attorney: “Brandenburg and myself purchased the [property] from the [trust].” Contrariwise, McMahan testified at his January 29, 2008, deposition that he purchased an ownership interest in the property about five months after Brandenburg purchased the property from the trust.
As set forth below, Thelin eventually became the executor of James Timothy Kennedy’s (James) estate.
On May 26, 2005, McMahan sent Peter a letter outlining an offer to purchase the property for $364,000. “[W]e are pleased to offer the [t]rust $364,000 to purchase the [p]roperty.” The letterhead indicates that the letter was from McMahan and Brandenburg. The offer was “contingent upon the completion of a three-year Lease Agreement with [James], pursuant to which all monies due for the three-year period will be paid in advance from the proceeds of the sale.”
James was residing on the property at the time of the sale.
The letter confirmed that the property’s appraisal value was $450,000; McMahan and Brandenburg were attaching a “10% risk premium due to leasing to a lessee such as [James] (due to increased potential of damage to the Property, increased insurance premiums, and monitoring of property that will be necessary).” At trial, the court clarified Brandenburg’s thoughts regarding this provision in the letter: “So you [Brandenburg] had [the 10 percent risk premium] in mind when you were going to make an offer to buy the property that [10 percent] should be deducted [from the purchase price] as a means to protect you and... McMahan for any damage caused by [James].” Brandenburg replied affirmatively.
According to the residential purchase agreement and joint escrow instructions dated May 26, 2005, Brandenburg and McMahan offered to purchase the property from the trust for $390,000. On May 29, 2005, Peter accepted the offer.
As set forth in the May 25, 2005, letter, all parties agreed that James would be allowed to remain in the property following its purchase and sale. Specifically, Brandenburg testified that James “would be allowed to stay there, and [they] would have rents paid for the three years that we agreed to let him stay there, paid in advance, nonrefundable.”
The Lease
On June 15, 2005, Brandenburg, as lessor, and James, as lessee, executed a monthly rental agreement, providing for a month-to-month lease commencing on July 1, 2005. The agreement mandated that the first three years of rent ($79,200) were due at the closing of the purchase and sale agreement. Paragraph 9 of the lease provides that “[t]he security deposit in the amount of $ Not Applicable.” And, at paragraph 12, the lease provides: “This Agreement and the tenancy hereby granted may be terminated at any time by either party hereto by giving to the other party not less than one full month’s notice in writing. Under no circumstances will rents be refunded unless agreed to in writing by [Brandenburg].” Paragraph 16 confirms the agreement regarding the prepayment of rent: “Lessee will pay three years rent in advance on July 1st 2005. Total amount due July 1, 2005 $79,200.”
Various factors weighed into the negotiation of the lease. Prior to entering into the lease agreement, Brandenburg “associated a risk premium due to leasing to” James because he was unemployed, had no credit or means to pay rent, and could potentially damage the property. Furthermore, he knew that James had an alcohol problem.
At some point in time, McMahan received one-half (or approximately one-half) of the $79,200 in prepaid rent paid to Brandenburg.
James Moves Out of the Property
In March 2006, James moved out of the property. The parties have different opinions regarding the terms under which he left. Brandenburg testified that he did not force James to leave the house. Rather, he learned in or around December 2005 that James was going to move to Arizona. The property was not for sale. Instead, in January 2006, because McMahan believed that James was going to move to Arizona, Brandenburg and McMahan agreed to sell the property to Julio Machado and his wife (a neighbor whose name just “came up”) for $550,000. In other words, at the time Brandenburg entered into the purchase and sale contract with the Machados, James had already notified Brandenburg and/or McMahan that he was moving to Arizona.
Thelin’s position is that Brandenburg and McMahan forced James out of the property. In support, he notes that as of January 5, 2006, Brandenburg had a contractual obligation to have James vacate the property in order to close escrow with the Machados. As summarized by the trial court (and confirmed by Brandenburg and McMahan’s counsel): “As of March of 2006, [James] had not left the property. As of January of 2006, [Brandenburg and McMahan] entered into escrow to sell the property.” But, according to Brandenburg, escrow with the Machados was 90 days in order to accommodate James’s closing of his mobile home purchase in Arizona.
There is no evidence that either party gave written notice that he was terminating the lease.
Condition of the Property
There also was conflicting evidence regarding the condition of the property. Thelin testified that when he visited the property in March 2006 (around the time James was moving to Arizona), the property was “very dirty” and “[t]hings were askew.” While the house was “a mess, ... everything was intact.... You could have lived in the house very comfortably.” In other words, while the house was dirty, there was no damage. Thelin did not notice anything that required a construction person or contractor to fix.
Jason Yahne (Yahne), a loan officer with Main Street Financial and McMahan’s nephew, testified that he visited the property in January through March 2006. There were bottles of alcohol and piles of cigarettes all over the house. Part of the carpet had been ripped up, and there were all sorts of stains on the floor and on one sofa. In short, the house was filthy and very pungent. Despite the poor condition of the property and house, Yahne had no documents, e-mails, letters, reports, or photographs reflecting any damage that James purportedly caused to the property.
McMahan testified that he never had one professional estimate of the damages allegedly caused by James to the property. He also had no documentation from any construction expert or any cleaning person that itemized any damages that James allegedly did to the property. And, he had no itemizations of damage from any construction contractor on what it would cost to fix the property.
Brandenburg testified that he began the process of a $10,000 cleanup at the time James vacated the property; however, he ultimately did not pay anything in cleanup costs. McMahan confirmed that he never wrote a check to a contractor to fix any damage that James purportedly caused; nor did he write a check for a cleaning service to clean up after James left the property.
The property was sold to the Machados “as is.”
An independent appraiser testified that the property’s appraisal value at the time Brandenburg and McMahan sold it to the Machados was $550,000. Had the property been in “marketable condition, ” the appraiser opined that it could have been valued at between $590,000 and $650,000.
Thelin Institutes This Action on Behalf of James
On March 4, 2008, Thelin filed his first amended complaint for breach of lease, wrongful withholding of security deposit, unjust enrichment, and declaratory relief against Brandenburg and McMahan. After their demurrers were overruled, Brandenburg and McMahan answered.
Thelin is the personal representative of James’s estate. According to Thelin “[t]hat’s the Arizona phrase for executor” of James’s estate. James passed away on July 14, 2006.
Trial and Judgment
The parties’ respective motions for summary judgment were denied, and the case proceeded to a bifurcated trial. First, the trial court considered Thelin’s declaratory relief cause of action. As characterized by the trial court, “it [was] a court trial as to the nature of the $59,000 that was paid for [James]..., part of the [$]79, 000 representing some sort of rent and the unpaid balance after [James] vacated the premises, [$]59, 000, and whether or not that sum represents either rent or a security deposit requesting the court to interpret the language of [Civil Code section] 1950.5... and the two Granberry cases..., which indicate the court should consider the facts and circumstances surrounding the execution of the rental agreement.”
We believe that the trial court is referring to Granberry v. Islay Investments (1984) 161 Cal.App.3d 382 and Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, two cases argued by the parties during trial and then on appeal.
The trial court determined, “based upon the totality of the facts and circumstances, that the $79,200 was not a security deposit but was rent, primarily based upon the fact that [the lease] provides as follows under the security deposit, which is a preprinted form, there was typed in new typing ‘not applicable, ’ and that’s paragraph 9.”
Moreover, “[u]nder paragraph 12 of [the lease], there is language that there will be no [re]funds of any monies paid except with the written consent of the landlord. That written consent was never given.”
In finding that the $79,200 payment was not a security deposit, the trial court was also convinced by language in the May 26, 2005, letter from McMahan to Peter, wherein McMahan offered to purchase the property. In that letter, McMahan indicated that he was attaching a 10 percent “risk premium due to leasing to a lessee such as [James] (due to increased potential of damage to the Property, increased insurance premiums, and monitoring of property that will be necessary with a lessee such as [James]).” The trial court found that this language amounted to an agreed security in McMahan and Brandenburg’s possession that they could use “against anything.”
Thereafter, the jury considered whether James caused damage to the property. After hearing the evidence, it found that he did not.
Following the trial, judgment was entered. Specifically, the trial court determined that Thelin should recover nothing from McMahan. However, Thelin prevailed against Brandenburg on the causes of action for breach of lease, unjust enrichment, and constructive eviction and was awarded $57,250.
At some point during the trial, Thelin may have amended his complaint to conform to proof and added a cause of action for constructive eviction. Regardless of whether there actually was a new cause of action or not, the trial court found the gist of Thelin’s claims to be the same as alleged in the pleading and as litigated at trial. As noted in the trial court’s statement of decision, “[a]ssuming there was an amendment to the complaint to conform to the proof, the claimed leave to amend to assert constructive eviction does not change the causes of action for breach of lease or unjust enrichment, and the same general facts have been in play since the pleading stage. There is no material variance between the pleadings and the evidence adduced at trial, and most importantly [Brandenburg and McMahan] have not been prejudiced by this claim.”
Thelin was awarded costs ($6,171.96) and attorney fees against Brandenburg. McMahan was awarded costs ($320) and attorney fees ($14,000) against Thelin.
Brandenburg timely appealed from the trial court judgment, and Thelin timely filed a notice of cross-appeal.
DISCUSSION
Brandenburg’s Appeal
I. The trial court’s findings in favor of Thelin and against Brandenburg are supported by substantial evidence
Brandenburg argues that the judgment against him should be reversed. He claims that the prepaid rent was nonrefundable and that he was entitled to retain the entire $79,200 sum. We cannot agree.
A. Constructive eviction
A constructive eviction occurs “when the acts or omissions to act of a landlord, or any disturbance or interference with the tenant’s possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.” (Groh v. Kover’s Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614.) That is, “[a]ny interference by the landlord by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals for the portion of the term following his eviction.” (Kulawitz v. Pacific Etc. Paper Co. (1944) 25 Cal.2d 664, 670.)
Ample evidence supports the trial court’s finding that Brandenburg constructively evicted James from the property. In January 2006, while James was still living in the property, Brandenburg and McMahan entered into a contract to sell the property to the Machados. One term of the sale agreement was that the property be vacant. James moved out of the property in March 2006. This evidence supports the trial court’s findings and judgment. (Groh v. Kover’s Bull Pen, Inc., supra, 221 Cal.App.2d at p. 613 [review of the record for sufficient evidence].)
Brandenburg argues that pursuant to paragraph 12 of the lease, James (and therefore Thelin) was not entitled to a refund. As set forth above, paragraph 12 provides: “This Agreement and the tenancy hereby granted may be terminated at any time by either party hereto by giving to the other party not less than one full month’s notice in writing. Under no circumstances will rents be refunded unless agreed to in writing by [Brandenburg].” Having forced James out of the property, without giving him written notice, and then selling the property to the Machados for a profit, the trial court properly determined that it would have been “‘unreasonable, unconscionable and oppressive’” to enforce the “no refund” provision of the lease. (Civ. Code, § 1670.5, subd. (a) [“If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause to avoid any unconscionable result”].)
In urging us to reverse, Brandenburg points to evidence, specifically his trial testimony, that he only agreed to purchase and then lease the property back to James on the condition that he was entitled to retain the entire prepayment of rent. What Brandenburg is asking us to do is reweigh the evidence based on the credibility of the witnesses. We cannot, and will not, do so. (Leff v. Gunter (1983) 33 Cal.3d 508, 518; Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d. 488, 492.)
Furthermore, like the trial court, we reject Brandenburg’s contention that the parties mutually terminated the lease. There was no unequivocal evidence of mutual termination. Rather, as set forth above, Brandenburg and McMahan told one story regarding James’s departure from the property and Thelin told another. After hearing all of the evidence, the trial court adopted Thelin’s version. In so doing, the trial court considered the credibility of the witnesses: “In resolving the factual dispute as to whether or not the parties mutually terminated the agreement, the court has also considered the credibility of the parties. Brandenburg at all times was a licensed mortgage broker quite sophisticated in real estate matters. [James] is deceased, but throughout the trial he was painted by [Brandenburg and McMahan] as an eccentric alcoholic who could not care for his person or his business matters. The error of [omission] in failing to spell out what the understanding was when [James] vacated and what was to happen to the unaccrued rent upon the sale must fall onto Brandenburg.” Applying the well-established standard of review, we cannot disturb the trial court’s assessment of the evidence. It follows that the trial court’s findings are supported by substantial evidence.
Finally, Brandenburg argues that the trial court erred in allowing Thelin to amend his pleading to add a claim for constructive eviction and conform to proof. We review the trial court’s order for abuse of discretion. (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081.)
“The basic rule from civil law... is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042.) As the trial court noted, “the claimed leave to amend to assert constructive [eviction] does not change the causes of action for breach of lease or unjust enrichment, and the same general facts have been in play since the pleading stage. There is no material variance between the pleadings and the evidence adduced at trial, and most importantly [Brandenburg and McMahan] have not been prejudiced by this claim.”
We agree. The amendment did not change the gravamen of the allegation against Brandenburg: whether characterized as unjust enrichment or breach of the lease or improper retention of rent following constructive eviction, at bottom, Brandenburg was charged with keeping monies that should have been returned to James. Accordingly, there was no prejudice and the trial court did not abuse its discretion in allowing the amendment. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776–777 [“The trial court has broad discretion to grant or deny an amendment to a complaint at trial, and California courts have been extremely liberal in allowing such amendments to conform to proof”].)
We are not convinced by Brandenburg’s unfounded assertion that had Thelin “timely pled a constructive eviction claim, [he and McMahan] could have tendered the claim to their insurer.” There is no evidence of insurance coverage and no offer of any legal authority to support Brandenburg’s assertion.
Brandenburg claims prejudice; he asserts that had he known about the constructive eviction theory, he would have “further proved up the mutual termination.” Brandenburg’s argument is not compelling for at least two reasons. First, Thelin was awarded collective damages consisting of the unreturned rent on all three causes of action (breach of lease, unjust enrichment, and constructive eviction): “[Thelin] is awarded and shall recover from... Brandenburg on [Thelin’s] claims for Breach of Lease, Unjust Enrichment and Constructive Eviction, collectively, the sum of $57,250.” The judgment is proper as to each of these causes of action. Thus, even if the constructive eviction cause of action could not stand, the damage award would still remain. It follows that there can be no prejudice. Second, as set forth above, the gist of the claims against Brandenburg were the same—he allegedly retained unpaid rent that should have been returned to James. He defended against that claim by arguing mutual termination. We find no prejudice in his assertion that he could or would have attempted to prove that defense further. (Brady v. Elixir Industries (1987) 196 Cal.App.3d 1299, 1303, disapproved on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)
There is no challenge to the propriety of the breach of lease and unjust enrichment causes of action, apart from Brandenburg’s general challenges to the judgment.
B. Real party in interest
Brandenburg argues that the judgment must be reversed because the trust, not James (in whose shoes Thelin stands), prepaid the rent to Brandenburg. Thus, the trust, not Thelin, is the real party in interest. Setting aside Brandenburg’s failure to cite to any page in the appellate record supporting his assertion that the trust made the three-year advance rent payment (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record]), we disagree.
The parties to the lease are James and Brandenburg. Brandenburg is identified as the lessor, and James is identified as the lessee. The lease also provides that the lessee shall pay three years rent in advance. Pursuant to the plain language of the lease, James paid the funds. It follows that Thelin, who Brandenburg agrees stands in James’s shoes, is the real party in interest in this litigation. (Code Civ. Proc., § 367.)
C. Damage to the property
We likewise are not convinced by Brandenburg’s contention that James’s damage to the property entitles him to retain the total amount of prepaid rent. We review the question of whether James damaged the property for substantial evidence.
“Under [the substantial evidence] standard of review, our duty ‘begins and ends’ with assessing whether substantial evidence supports the verdict. [Citation.] ‘[The] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citation.] We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the jury’s verdict. [Citation.]” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908.) “‘It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact.’... [W]e do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. [Citation.] Rather, ‘we defer to the trier of fact on issues of credibility. [Citation.]’” (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514–515.)
The jury’s finding that James did not damage the property is supported by substantial evidence. While the property may have been dirty, the jury heard from Thelin that there was no damage that required a contractor to fix. Also, Yahne, McMahan’s nephew, had no documents, e-mails, letters, reports, or photographs reflecting any damage that James purportedly caused to the property. McMahan testified that he never had one professional estimate of the damages allegedly caused by James to the property. He also had no documentation from any construction expert or any cleaning person that itemized any damages that James allegedly did to the property. And, he had no itemizations of damage from any construction contractor on what it would cost to fix the property. Last, Brandenburg confirmed that he did not pay anything in cleanup costs. Neither he nor McMahan ever wrote a check to a contractor to fix any damage that James purportedly caused; nor did McMahan write a check for a cleaning service to clean up after James left the property.
Taken together, this evidence supports the jury’s finding that James did not cause any damage to the property.
II. Award of fees and costs in favor of Thelin
Brandenburg argues that because the judgment against him should be reversed, the award of attorney fees ($40,000) and costs ($6,171.96) in favor of Thelin must be reversed as well. Alternatively, because Thelin obtained mixed results, he is not entitled to attorney fees; the trial court should have denied his motion for attorney fees.
For the reasons set forth above, the judgment stands. It follows that Thelin is the prevailing party, entitled to recoup permissible costs. (Code Civ. Proc., § 1032, subd. (b).)
As for Brandenburg’s alternative argument, it has been waived. There is no indication in either Brandenburg’s appellate brief or in the appellate record that he challenged Thelin’s request for attorney fees. Having failed to raise this objection below, it has been forfeited on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶¶ 8:264, 8:265, p. 8-167 (Eisenberg).)
Thelin’s Cross-Appeal
I. Whether the $79,200 payment of prepaid rent constitutes a security deposit
Thelin’s argument on appeal appears to be as follows: James paid Brandenburg and McMahan $79,200 in prepaid rent for a three-year lease. He moved out of the property after eight months, leaving Brandenburg and McMahan with $57,200 in unearned rent. Pursuant to Civil Code section 1950.5, subdivision (b), the $79,200 in prepaid rent actually is a security deposit and should be returned in its entirety.
We need not reach the merits of this argument because procedurally it fails. It is well-established that an appellant cannot complain of error he personally invited. (Eisenberg et al., supra, ¶ 8:245, p. 8-161.) An appellant “may be held to have waived a claim of error either by affirmative conduct or by failure to take proper steps in the trial court to avoid or cure the error.” (Eisenberg et al., supra, ¶ 8:249, p. 8-165.) Thus, a “party who expressly agrees to an action taken by the trial court or in the trial proceedings cannot challenge that action on appeal.” (Eisenberg et al., supra, ¶ 8:250, p. 8-165.) Likewise, an “appellant may be held to have waived a claimed error by any other action which, although falling short of an express waiver, demonstrates ‘acquiescence’ in the error.” (Eisenberg et al., supra, ¶ 8:261, p. 8-165.)
While Thelin sought the return of the entire $79,200 in his first amended complaint, that is not what he requested at trial. At the inception of the trial, following “extensive chambers discussion, ” the trial court summarized the issues for trial. It noted that there would be a court trial as to the nature of the approximately $57,000 that was paid for James, namely whether that sum represented rent or a security deposit. Thelin never objected. After the presentation of evidence on the declaratory relief cause of action, the trial court engaged counsel in a discussion regarding that issue. The trial court invited counsel to make a statement regarding the issue of the balance of the approximate $57,200 and whether that amount constitutes rent or security. Again, no objection. Finally, Thelin’s counsel argued: “The entire $79,200 is the security. As a landlord, that’s exactly what the security is for. If the tenant doesn’t pay the rent, they have the right to use the security as a—to take from the security deposit. That’s exactly what it’s for. That’s exactly what they did. They took it for the months while he was there, and we don’t dispute that. He was there. He had to pay the rent. That’s exactly what it was for, but when he left, they have to return the remainder.
“I mean, technically, I could have asked for the entire $79,200, but in equity and fairness, that’s not right. That’s not what anybody contemplated. They had a right to get their rent while he was there. We agree to that. That’s not a problem.”
Thelin recovered exactly what he asked for—the remainder of the $79,200 (following the deduction of rent for the time in which James lived on the property). He cannot now complain on appeal.
II. Substantial evidence supports the finding that McMahan was not a party to the lease
Thelin argues that the trial court erred in finding that McMahan was not a party to the lease agreement. Because McMahan was a party to the lease, the trial court should have found him liable on Thelin’s unjust enrichment cause of action and should have found that he, like Brandenburg, constructively evicted James from the property.
Whether McMahan was a party to the lease presents a question of fact, which we review for substantial evidence. “When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
We reject Thelin’s assertion, not supported by any legal authority, that we review this issue de novo. To the extent we are called upon to interpret a contract, namely the lease herein, we do so de novo. (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912–914.)
Ample evidence supports the trial court’s determination that McMahan was not a party to the lease. We need look only at the lease itself. The parties to the lease were Brandenburg and James. The only signatories to the lease were Brandenburg and James. This language in the lease supports the trial court’s finding and judgment.
III. Costs and fees awarded to McMahan
Thelin argues that we must reverse the award of costs ($320) and attorney fees ($14,000) to McMahan. He asserts that because the judgment in favor of McMahan should be reversed (for the reasons set forth above), so too should the cost and attorney fee award in McMahan’s favor. As set forth above, we affirm the trial court’s judgment in favor of McMahan; thus, we reject this argument.
Alternatively, Thelin argues that because Brandenburg and McMahan presented a unified defense, McMahan should not be deemed a prevailing party. There is no indication that this argument was presented below. “It is a general rule of appellate review that arguments waived at the trial level will not be considered on appeal.” (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122.) Having failed to challenge the award of costs and attorney fees in the trial court, Thelin is precluded from doing so on appeal.
There is no motion to tax costs or any other challenge to the cost award in the appellate record.
DISPOSITION
The judgment of the trial court is affirmed. The parties to bear their own costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.