Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC350944, Aurelio Munoz, Judge.
Joel A. Spivak for Plaintiff and Appellant.
Lang, Hanigan & Carvalho and Timothy R. Hanigan for Defendants and Respondents.
MANELLA, J.
INTRODUCTION
Appellant Klein, LLC (Klein), the owner and lessor of the real property at issue in this unlawful detainer action, appeals from a judgment in favor of respondent Huntington Radiology, Inc. (HRI), a sublessee. On appeal, Klein contends that when it declared a forfeiture of the master lease, HRI’s right to possession of the premises was terminated as a matter of law. In addition, Klein contends that evidence of oral negotiations between Klein’s agent and HRI was inadmissible under the parol evidence rule, and that Klein’s agreement to be bound by the sublease was barred by the statute of frauds. We conclude that none of appellant’s points is well taken, and affirm the judgment.
BACKGROUND
1. Procedural Background
Appellant Klein commenced this unlawful detainer action in 2006 against its tenant, Saturn Property Management (Saturn), and Saturn’s subtenant, respondent HRI, alleging that Saturn was in default under the master lease. On August 4, 2006, Klein’s motion for judgment on the pleadings against Saturn was granted, and a separate judgment was later entered against Saturn. Klein and HRI proceeded to a court trial on the issue of HRI’s right to possession. For the reasons set forth in its statement of decision, the trial court held that HRI was entitled to continue in possession of the subject real property under the terms of the sublease, and judgment was entered in favor of HRI September 13, 2006. Klein timely filed a notice of appeal November 9, 2006. Saturn is not a party to the appeal.
2. Summary of the Statement of Decision
The trial court found that in November 2003, Klein, the owner of real property on Saturn Avenue, entered into the master lease with Saturn. In February 2005, Drs. Joseph Mamaliger and Ruvin Feygenberg approached Klein’s agent, Les K. Cooper, and offered to rent space at the property, in order to operate a radiology center. Cooper explained that Klein could not enter into a direct lease with them, because it had leased the entire property to Saturn, and he suggested that they sublet a portion of the property from Saturn. Cooper agreed that if he approved the terms of the sublease and received financial statements from the doctors, Klein would be bound by the terms of the sublease in the event of a default by Saturn.
In reliance upon such representations, Feygenberg negotiated with Saturn on behalf of the radiology company to be formed -- HRI -- and eventually entered into a sublease for a 10-year term with an option for a second 10-year term. Cooper participated in the negotiations, and Feygenberg faxed a copy of the sublease to him and to Klein’s attorney, neither of whom objected to its terms. On November 1, 2005, Feygenberg hand delivered the doctors’ financial statements to Cooper, and Cooper signed a document entitled, “Consent by Lessor” in Feygenberg’s presence. In reasonable reliance on Cooper’s representations and the Consent, HRI took possession of the property and expended approximately $350,000 in making improvements.
The Consent by Lessor was admitted in evidence as trial exhibit No. 106. None of the trial exhibits has been lodged in this court.
The court concluded that by signing the Consent by Lessor, Cooper acknowledged Klein’s agreement to assume Saturn’s position under the sublease upon any default by Saturn, and to be bound by the sublease. The court held that the agreement was not barred by the statute of frauds, and that Klein was equitably estopped from asserting the statute of frauds. Thus, Klein was bound by the terms of the sublease, including the 10-year term and 10-year option. The court ruled that HRI was entitled to remain in possession under the terms of the sublease.
DISCUSSION
1. Standard of Review
Because appellant did not object to the statement of decision, it has not preserved for appeal any challenge to the findings of fact, other than a contention that the findings are not supported by substantial evidence. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1135.) However, as appellant does not contend that the trial court’s factual findings are unsupported by substantial evidence, we are bound by them. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 277-278.) Further, we presume “‘that the record contains evidence to sustain every finding of fact.’” (Foreman & Clark Corp. v Fallon (1971) 3 Cal.3d 875, 881.) However, we review the trial court’s conclusions of law de novo. (Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 108.)
2. HRI’s Right to Possession after Saturn’s Default
Appellant contends that once Klein declared a forfeiture of the original lease upon Saturn’s default, respondent lost any right to possession under the sublease, as a matter of law. Appellant cites Herman v. Campbell (1948) 86 Cal.App.2d 762, which states the following general rule: “‘The right of the sublessee to the possession of the premises as against the original lessor terminates with the lease or term of the original lessee, and since a subtenant holds the premises subject to the performance of the terms and conditions impressed upon the estate by the provisions of the original lease, his rights are generally held to be terminated when the original lessor declares a forfeiture of the original lessee’s term based upon the latter’s nonperformance of obligations imposed on him. Thus, if the original tenant has incurred a forfeiture of his lease, and for that reason the landlord annuls the lease, the landlord is entitled to the possession as against the sublessee.’” (Id. at pp. 765-766.)
The general rule may be modified by contract; thus, it does not apply where the lessor has expressly agreed to the right of a nonbreaching sublessee to remain in possession upon default by the sublessor. (Chumash Hill Properties, Inc. v. Peram (1995) 39 Cal.App.4th 1226, 1231-1232.) Here, the trier of fact found such an agreement in the oral representations of Cooper -- Klein’s agent -- and in the Consent by Lessor, which Cooper signed on behalf of Klein in Feygenberg’s presence. The trial court found that by signing the Consent by Lessor, Cooper acknowledged the parties’ prior oral agreement that Klein would be bound to Saturn’s position under the sublease upon any default by Saturn.
Appellant contends that the trial court erroneously considered extrinsic evidence relating to the sublease, in violation of the parol evidence rule. Appellant cites no authority regarding the parol evidence rule, and makes no reasoned argument to support its application here. Thus, we may deem the issue abandoned. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Moreover, although the parol evidence rule is a principle of contract interpretation (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1140-1141), appellant makes no claim of a dispute regarding the meaning of the terms of the sublease. Nor could it. The trial court found that in a separate agreement, negotiated between Cooper on behalf of Klein, and Drs. Feygenberg and Mamaliger on behalf of HRI, Klein agreed that in the event Saturn defaulted on the master lease, Klein would be bound by Saturn’s obligations in the sublease. No interpretation of the sublease is necessary to reach such result. Accordingly, the parol evidence rule has no application here.
The parol evidence rule is set forth in Code of Civil Procedure section 1856, subdivision (a), which provides: “Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement.”
Appellant’s suggestion that Cooper’s oral agreement to be bound by the terms of the sublease is unenforceable under the statute of frauds fails for similar reasons. Again, appellant fails to develop this argument or provide citation to authority or to the record. Appellant raises the point only in the introduction to its opening brief, and does not thereafter address it. We may thus treat this point as forfeited. (California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 192-193.)
As relevant here, the statute of frauds provides: “An agreement that by its terms is not to be performed within a year from the making thereof” is “invalid, unless [it], or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged or by the party’s agent.” (Civ. Code, § 1624, subd. (a).)
In any event, the trial court found that the oral agreement was memorialized in the Consent by Lessor, which Cooper signed on behalf of Klein. The statute of frauds does not bar enforcement of a contract so long as there is “some note or memorandum thereof, . . . in writing and subscribed by the party to be charged or by the party’s agent.” (Civ. Code, § 1624, subd. (a); Sterling v. Taylor (2007) 40 Cal.4th 757, 765.) Appellant did not designate the Consent by Lessor as an exhibit to be considered on appeal, pursuant to California Rules of Court, rule 8.224, and has not otherwise made the Consent part of the record on appeal. We must therefore assume that the trial court’s finding is correct and sufficiently supported by the missing exhibit. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Supreme Grand Lodge etc. v. Smith (1936) 7 Cal.2d 510, 514.)
At oral argument, appellant’s counsel requested the opportunity to augment the record with a copy of the Consent. We took the matter under advisement and now deny it. We note that the content of the Consent would not change the outcome, in light of the trial court’s alternative holding that Klein was estopped from asserting the statute of frauds -- a finding Klein does not challenge on appeal.
Further, appellant ignores the trial court’s finding that Klein was estopped from asserting the statute of frauds, because in reasonable reliance on Cooper’s representations and the Consent by Lessor, HRI took possession of the property and expended approximately $350,000 in making improvements. “The doctrine of part performance . . . is a well-recognized exception to the statute of frauds as applied to contracts for the sale or lease of real property. [Citation.] ‘Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer [or lessee] has taken possession of the property and . . . makes valuable and substantial improvements on the property, in reliance on the oral agreement.’ [Citation.]” (Sutton v. Warner (1993) 12 Cal.App.4th 415, 422, italics omitted.)
In sum, appellant has not shown that the trial court erred in finding that Klein agreed to be bound by the sublease upon Saturn’s default and the forfeiture of the master lease. The general rule of Herman v. Campbell, supra, 86 Cal.App.2d 762 did not apply, as it was superseded by Klein’s agreement. (See Chumash Hill Properties, Inc. v. Peram, supra, 39 Cal.App.4th at pp. 1231-1232.) We conclude further that appellant failed to show that such agreement ran afoul of the parol evidence rule or that it was unenforceable under the statute of frauds.
DISPOSITION
The judgment is affirmed. Respondent shall have its costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.