Opinion
G040524.
6-25-2009
INLAND WESTERN FULLERTON METROCENTER LLC, Plaintiff and Respondent, v. RAJ ASTAVAKRA et al., Defendants and Appellants.
Frank A. Weiser for Defendants and Appellants. Bewley, Lassleben & Miller and Ernie Zachary Park for Plaintiff and Respondent.
Not to be Published in Official Reports
Raj Astavakra and Niraj Patel (collectively, Astavakra) appeal from a decision in favor of Inland Western Fullerton Metrocenter LLC (Inland Western) in this unlawful detainer action. Astavakra argues the evidence does not support the decision. We disagree and affirm.
FACTS
At issue is a restaurant lease in a Fullerton shopping center owned by Inland Western. In 2005, it let the subject premises for a term of 10 years. Use was restricted to a restaurant serving Indian cuisine, and the tenant was required to operate the restaurant continuously during regular business hours. The restaurant was not doing well and closed in May 2006.
We consider the evidence most favorable to the judgment, since a judgment of a lower court is presumed to be correct and all inferences must be drawn in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
In October 2006, Astavakra assumed the lease with Inland Westerns consent. The assignment agreement amended the permitted uses to allow operation of a Euro-Asian food restaurant. Astavakra began remodeling. Inland Westerns property manager visited the premises in February 2007 and observed Astavakra was building a bar, not refreshing the premises for restaurant use. The property manger told Astavakra a restaurant with alcohol service was permitted under the lease, but not a bar. The manager testified "we did not give them a period [of time when] they were to open for business and there was no time period that they could stay closed. [¶] We were under the impression [Astavakra] was going to take the restaurant over and open up for business." By June 2007, the restaurant remained closed. Inland Western served a 30-day notice to cure the breach, or quit the premises and forfeit the lease, and it accepted no rent thereafter. With no response from Astavakra, the instant action followed.
Astavakra claims Inland Western was notified by the City of Fullerton that he had applied for a "type 47" license to operate a restaurant. But no such document appears in the record, and Inland Westerns property manager (the only witness) testified Astavakra applied for a "type 48" license to operate a nightclub or bar, all the while telling the landlord he had applied for the "type 47" license.
The complaint alleged Astavakra failed to cure the breach of its lease and remained in possession of the premises. It requested a declaration the lease was forfeited and Astavakra was liable for the reasonable rental value of the premises from the notice to quit until possession was turned over, along with reasonable attorneys fees and costs.
The matter was tried by the court in April 2008. In addition to the matters set out above, evidence was offered the restaurant had yet to reopen. The court found for Inland Western, explaining "the lease required [Astavakra] to be open. . . . They were not open because they were attempting to open a different type of establishment than the lease called for and that there was no waiver by accepting the rent . . . ." The judgment entered awarded Inland Western possession, $160,567.90 in rental value, and declared the lease forfeited.
DISCUSSION
Astavakra argues the decision is not supported by substantial evidence, pointing to favorable evidence to show there was no breach of the lease. His argument is that the lease allowed him six months to remodel before reopening, the inability to reopen was beyond his control since he was awaiting approval of an application for a business license, and Inland Western waived any breach by accepting rent. But the argument misapprehends the substantial evidence rule.
To prevail on a substantial evidence challenge, an appellant must lay out the evidence against him and demonstrate why it is inadequate. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) That burden has not been met.
There is ample evidence to support the finding Astavakra breached the lease when he failed to operate a restaurant on the premises. Inland Western asserts, without contradiction, the lease gave the initial tenant a grace period to build out the premises before rent commenced, and there was no similar concession on the assignment agreement. The lease and assignment confirm this. The lease commenced February 15, 2005 but provided rent was not due until December 15, 2005. The October 26, 2006 assignment and assumption agreement does not add a new grace period for renovations. To the contrary, the only reference to the subject is a proviso that any alterations, including decorating or remodeling, must be approved by the landlord in writing prior to commencement of any work. And Inland Westerns property manager testified, without contradiction, there was no agreement the restaurant could remain closed during remodeling.
The license and waiver defenses both involve fact questions impliedly decided against Astavakra. The license Astavakra applied for was to operate a bar or nightclub, uses not permitted under the lease. This evidence supports an implied finding the inability to obtain a license, even if true, would not vitiate the failure to operate the restaurant. So the license defense does not compel a finding of no breach.
Waiver also is a question of fact impliedly decided in favor of Inland Western. Whats more, the waiver argument itself was waived for failure to support it on appeal with reasoned argument or citation of authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) The entire point consists of a single sentence asserting there was a waiver, without any explanation or legal authority, which is insufficient to raise the argument on appeal.
Since the decision for Inland Western is supported by the evidence, the judgment appealed from is affirmed. Inland Western is entitled to costs on appeal.
WE CONCUR:
ARONSON, J.
FYBEL, J.