Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CVCM 05-2383
NICHOLSON, J.
Shafiq Muhareb leased a building in Yuba City from June Haney Turner, trustee of the Milton P. and Cordie A. Haney Trust, for the purpose of running a business known as the Waffle Shop. When the lease was terminated (with Muhareb’s eviction) in July 2005, Muhareb sued Turner claiming that he was entitled to reimbursement for landscaping expenses, a sewer bill, and his security deposit. Turner counterclaimed against Muhareb and his wife, alleging breach of contract and claiming damages to the premises, as well as for damaged and missing equipment.
After a court trial, the court issued a statement of decision in which it found that Turner was entitled to a net recovery of $43,619.41. The court also concluded that Turner was the prevailing party and was entitled to recover $68,183 under the contract’s attorney fees and costs provision.
Muhareb appeals. He asserts that (1) his wife, Taghrid Muhareb, should be considered one of the appellants, (2) Turner had no legally cognizable damages, (3) Muhareb cannot be held liable for work performed by an unlicensed contractor, (4) the court erred in calculating damages, and (5) the attorney fees award must be reversed. We conclude that the trial court erroneously included damages against Muhareb for some of the exterior repairs and maintenance, which were Turner’s responsibility. In all other respects, the trial court did not err. Accordingly, we modify the judgment by deducting the damages related to the exterior repairs and maintenance and affirm the judgment as modified.
STATEMENT OF DECISION
The parties bicker about who has accurately portrayed the facts in the briefing. Turner asserts that Muhareb fails to include the evidence that supports the trial court’s judgment, and Muhareb claims that Turner fails to acknowledge undisputed evidence and includes facts not found in the record. We need not resolve this dispute because, for the most part, the issues raised on appeal do not require a full recitation of the facts. Accordingly, we present a summary of the trial court’s statement of decision and add further details in the discussion as they become relevant.
The court found that Turner was liable to Muhareb for $2,520 in landscaping costs, $3,000 for a sewer bill, and the $5,100 security deposit. On the other hand, the court found that Muhareb was liable to Turner for $12,781.81 for missing and damaged equipment, $35,244.19 for damage to the premises, and $6,213.51 for lost rent. The court concluded that Muhareb must pay Turner a net sum of $43,619.41.
APPEAL ON PARTIAL TRANSCRIPT
On appeal, Muhareb provided only a partial reporter’s transcript of the four and one-half day trial. Missing is the reporter’s transcript for a half-day of trial on July 17, 2007. There was no court reporter in the courtroom during that time, and Muhareb presents no settled statement concerning the evidence presented during that time.
Turner asserts that, because the record is incomplete, we should presume that there was evidence to support the trial court’s judgment and refuse to consider the merits of the appeal. While it is true that we presume the judgment was correct and Muhareb, as appellant, bears the burden of establishing error with an adequate record, we will not refuse to consider the merits of the appeal because Muhareb asserts that the errors appear on the face of the record. “The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised....” (Cal. Rules of Court, rule 8.163; see Alkus v. Johnson-Pacific Co. (1947) 80 Cal.App.2d 1, 13-17 [stating appellant need file only part of record required to show error].) Here, as will be seen, the record is adequate to consider each of Muhareb’s contentions.
DISCUSSION
I
Motion to Amend Notice of Appeal
The notice of appeal in this case states that “Shafiq Muhareb dba Waffle Shop appeals from the... judgment....” Although the cross-complaint also named Muhareb’s wife, Taghrid Muhareb, and the judgment was also against her, she did not appeal.
On November 24, 2008, Muhareb filed in this court a motion to amend the notice of appeal to add Taghrid Muhareb as an appellant. We denied the motion on December 11, 2008, issuing an order to that effect over the signature of the acting presiding justice.
In his opening brief, filed February 25, 2009, Muhareb acknowledged that the motion to amend the notice of appeal had been denied, but he argued that such denial was not on the merits because the order was not signed by a three-judge panel. He argued, anew, that we should allow amendment of the notice of appeal to add Taghrid Muhareb.
On March 4, 2009, Muhareb filed a “motion to the assigned panel on this matter for order amending the notice of appeal.” We denied the motion, over the signatures of the three judges on the panel for that motion, on March 18, 2009. Having disposed of the motion on the merits, we need not revisit it here.
In connection with her opposition to Muhareb’s motion to amend the notice of appeal, Turner filed a request for judicial notice on April 29. 2009. She requests us to take judicial notice of filings in this case in this court and in the superior court. To the extent she requests judicial notice of filings in this court, the request is unnecessary because they are already before us. As for the superior court filings, we deny the request for judicial notice because we have already denied Muhareb’s motion to amend the notice of appeal.
II
Legally Cognizable Damages
Muhareb contends that Turner cannot collect damages from him for (A) the damaged and missing equipment and the damaged premises because a subsequent tenant paid for those repairs and replacements or (B) loss of rental value because the subsequent tenant was already paying rent. Neither contention has merit.
A. Damages for Equipment and Premises
Muhareb contends that Turner cannot claim damages for breach of contract because Turner was made whole by a collateral source, the subsequent tenant. He argues that a plaintiff claiming a breach of contract cannot collect damages if the plaintiff was made whole by a collateral source. (See Patent Scaffolding Co. v. William Simpson Constr. Co. (1967) 256 Cal.App.2d 506, 510-511 [discussing collateral source rule as applied to damages for breach of contract].) The contention is without merit because Turner was not made whole by the subsequent tenant. Turner effectively paid for the repairs by agreeing to a lower monthly rental price.
There was evidence that Turner paid for the repairs made by the subsequent tenant through reduction of the rental price. Therefore, because payment for the repairs did not come from a collateral source, the trial court properly imposed liability on Muhareb for those damages.
The parties argue concerning the trial court’s reliance on Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427 in awarding damages to Turner. In that case, the court concluded that a party may recover the reasonable cost of making repairs to the premises without actually making the repairs and incurring the expense. (Id. at pp. 431-433.) However, that case did not discuss the collateral source rule. It is therefore immaterial to our discussion of the collateral source rule.
Muhareb’s rent payments to Turner were $4,500 per month at the relevant time. During part of the period in which Muhareb was leasing the premises, Roger Russ ran the restaurant business on the premises. Russ paid a total of $9,000 to Muhareb. Of the $9,000, $4,500 was to cover the rent to Turner. The additional $4,500 was required under what was characterized as a “management contract,” which essentially allowed Russ to run the business and keep any profits above the $9,000 paid to Muhareb.
In October 2003, the contract between Muhareb and Russ was terminated, and Muhareb took over the premises, running the business. In July 2005, when the lease between Muhareb and Turner was terminated, Russ became the new lessee. So, in addition to being the subtenant under Muhareb, Russ was also the subsequent tenant.
When Russ, along with partner Mike Carrero, entered into a lease with Turner in July 2005, he was able to negotiate a reduced rent because of the condition of the premises. The parties to the lease had discussed a higher price, based on Russ’s prior payment to Muhareb of $9,000 per month, but settled on $7,000 per month. The lower price allowed for Russ to make the repairs, which Turner could not afford. The lowered rental price was for the 10-year life of the lease, with a three-percent increase per year.
In its statement of decision, the trial court did not make any findings with respect to the fair rental value of the property and did not discuss the collateral source rule. Although Muhareb objected to the statement of decision, he did not mention the collateral source rule or object to the absence of findings concerning the fair rental value of the property. (See SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462 [we imply findings supporting the judgment when no objection made to statement of decision].)
Factually, Muhareb’s collateral source rule argument is without merit. The testimony at trial established that Turner and Russ negotiated a lower rental price because of the condition of the premises. Accordingly, Turner effectively paid for the repairs by reducing the rent. The funds to repair the premises did not come from a collateral source.
Muhareb argues that we cannot rely on the lowered monthly rental price agreed to between Turner and Russ in determining that Turner effectively paid for the repairs because there was no competent evidence of the fair market rental value of the property. We disagree. While it is true that there was little evidence concerning the fair market rental value of the property at the time that Turner and Russ entered into the subsequent lease, Muhareb offers no authority for the proposition that we must compare the monthly rental price agreed to by Turner and Russ to the fair market rental value. Accordingly, Muhareb has not established that it was incumbent on Turner to produce evidence of the fair market rental value. (See Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [we may treat as forfeited any contention for which no authority is provided].) The evidence indicated that Turner and Russ contemplated $9,000 as the monthly rental price but reduced it to $7,000 with the agreement that Russ would do the repairs. Muhareb has failed to establish that any further evidence was required to support the trial court’s judgment.
B. Loss of Rental Value
The trial court concluded that Turner was unable to rent the premises for 27 days, from July 7, to August 2, 2005, because of the missing equipment and damage to the equipment and the premises. Based on this conclusion, the court awarded $6,213.51 in lost rent.
Muhareb contends that the documentary evidence from trial does not support the trial court’s conclusion that the subsequent tenant did not pay rent to Turner during those 27 days. We conclude that the evidence was sufficient to sustain the trial court’s award of lost rent.
The lease agreement between Turner and Russ, the subsequent tenant, provided for Russ to pay rent from the time in July 2005 when he took possession of the premises. There was evidence that Russ took possession on July 7, 2005; however, because of the condition of the premises, Turner and Russ orally modified the lease agreement so that Russ would not have to pay rent until the restaurant could open, which opening occurred on August 3, 2005. Much later, Turner and Russ entered into a written modification of the lease, providing that there was no rent due until the restaurant could open.
Despite this evidence establishing that Russ did not pay rent for 27 days because of the condition of the premises when Muhareb vacated, Muhareb asserts that the testimony concerning the oral modification to lease agreement between Turner and Russ was inadmissible under the parol evidence rule because it contradicted the written lease, an integrated agreement. He also asserts that the written modification was ineffective. Neither assertion has merit.
The parol evidence rule, Code of Civil Procedure section 1856, subdivision (a), states: “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.” (See Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343 [extrinsic evidence which varies from writing may not be considered].) The parol evidence rule, by its terms, does not prohibit evidence of a subsequent oral or written modification of the contract. (Marani v. Jackson (1986) 183 Cal.App.3d 695, 699, fn. 2.)
Here, the lease between Russ and Turner was an integrated agreement, providing that it “constitute[d] the entire agreement between the parties....” However, it was modified -- first orally, and later in writing -- so that Russ was not required to pay rent until the restaurant was able to open. Accordingly, the parol evidence rule did not prevent the trial court’s reliance on the subsequent modification, and the evidence was sufficient to establish that no rent was due for the first 27 days under the lease.
Muhareb, however, asserts that the trial court erred in relying on the subsequent written modification of the lease because (1) it was a collusive attempt to mislead the trier of fact and (2) there was no new consideration for modification of the lease. We disagree.
Muhareb states that the written modification “appears to have been created during the trial,” and claims, based on this appearance, that it was collusive and was an attempt to mislead the trial court. For this proposition, Muhareb provides just one authority: Evidence Code section 412. That section states: “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” Muhareb claims that, instead of producing the written modification to establish that rent was not paid for 27 days, Turner and Russ could have produced business records to that effect. This argument is unpersuasive and does nothing to negate the sufficiency of the evidence to support the trial court’s statement of decision.
Muhareb’s argument concerning absence of consideration is also unpersuasive. Although a party to the contract may not enforce a modification that is made without consideration (Main St. etc. Co. v. L. A. Trac. Co. (1900) 129 Cal. 301, 305), it appears that absence of consideration is a defense available to a party to the contract, not to third persons. Muhareb provides no authority for his proposition that he, as a non-party to the contract, can prevent enforcement of the modification for absence of consideration. Accordingly, the trial court did not err in viewing the written modification as valid.
In any event, the modification was supported by consideration. Although the lease between Turner and Russ provided that Russ would perform the repairs on the premises, the modification made it clear that the replacement of missing equipment was an additional obligation of Russ. Because Turner was unable to pay for the repair and replacement of equipment, the modification provided that Russ would not be required to pay rent until he could open. This commitment to replace equipment constituted valuable consideration.
III
Unlicensed Contractor
Muhareb contends that Turner cannot recover damages for repair work done on the premises because the repairs were done by an unlicensed contractor. (See Bus. & Prof. Code, § 7031, subd. (a) [denying unlicensed contractors access to courts to recover under contracts].) We reject this contention because (1) the unlicensed contractor is not attempting to enforce a contract in this action and (2) the unlicensed contractor was a partner with Russ in the restaurant business.
A. Background
Michael Carrero is a partner to Russ in the restaurant business and was therefore a lessee of the property. Although Carrero owns a corporation called M-Car, Inc. and has worked as a contractor in the past, he is not a licensed contractor in California. Carrero was in charge of all the repairs to the premises. He either did them himself or hired subcontractors to do them. The subcontractors were paid through his company, M-Car, Inc. When the repairs were completed, Carrero was reimbursed by the restaurant business. Many of the checks paid from Carrero to contractors who did work had the notation “sub-contract” on them. Carrero personally purchased the materials for the project and billed the restaurant business. The amount billed to the restaurant business was actually less than the cost of the repairs, but Carrero “[ate] the difference” because he had quoted Russ the lower price.
B. Analysis
1. No Action by Unlicensed Contractor
Business and Professions Code section 7031, subdivision (a) states, in pertinent part: “[N]o person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract, regardless of the merits of the cause of action brought by the person....”
Here, there is no action by Carrero to obtain payment for his work. In this action, Turner counterclaimed for the damages to the premises, which liability on the part of Muhareb was completely independent of how Turner might make the repairs. Indeed, there is no requirement that Turner make the repairs at all, but may still obtain damages from Muhareb.
Muhareb cites several cases in which the courts have denied the unlicensed contractor’s attempts to obtain payment on the contract indirectly, through other people. (See Currie v. Stolowitz (1959) 169 Cal.App.2d 810 [contractor could not recover damages for completion of work left undone by subcontractor because contractor was unlicensed in subcontracted specialty]; Walker v. Nitzberg (1970) 13 Cal.App.3d 359 [assignee of unlicensed contractor’s claim against owner could not recover on assigned debt]; Wilson v. Steele (1989) 211 Cal.App.3d 1053 [unlicensed contractor’s assignee, although holder in due course, could not enforce illegal contract between unlicensed contractor and owner].) These cases are distinguishable because, here, the unlicensed contractor is not attempting to recover on the contract, even indirectly. Instead, the owner of the premises is recovering for damage to the premises and equipment. Turner’s claim against Muhareb is independent of the unlicensed contractor’s claim for payment.
2. Not Functioning as Contractor
Business and Professions Code section 7031 does not apply to “(a) An owner of property, building or improving structures thereon, or appurtenances thereto, who does the work himself or herself or through his or her own employees with wages as their sole compensation, provided none of the structures, with or without the appurtenances thereto, are intended or offered for sale [or] [¶] (b) An owner of property, building or improving structures thereon, or appurtenances thereto, who contracts for such a project with a subcontractor or subcontractors licensed pursuant to this chapter.” (Bus. & Prof. Code, § 7044.)
Here, Carrero falls within the exception to Business and Professions Code section 7031 because he was the owner and he either did the work himself or hired others to do so. (Bus. & Prof. Code, § 7044.) As a lessee, Carrero held an ownership interest in the premises, even if it was just for a term of years. (See Brooks v. Duskin (1958) 159 Cal.App.2d 629, 633 [“owner” in Bus. & Prof. Code, § 7044 interpreted broadly].) Therefore, Muhareb’s assertion that the work was done by an unlicensed contractor is without merit.
IV
Method of Calculating Damages
Muhareb makes several contentions relating to the trial court’s calculation of damages. The trial court’s statement of decision properly calculated damages, except for damages and maintenance related to the exterior of the premises.
A. Damages for “Betterment” of Premises
Muhareb claims that the method used by the trial court to calculate damages -- using the cost of the repairs and the replacement equipment -- was improper because it effectively forced him to pay for the “betterment” of the premises when the lease provided that Muhareb was not responsible for normal wear and tear and depreciation of the premises. We conclude that the method used by the trial court was proper.
1. Language of the Lease
Two provisions of the lease are most relevant to the measure of damages.
In its statement of decision, the trial court quoted a provision from the lease requiring Muhareb to maintain and repair the premises. Paragraph 13 stated: “[Muhareb] shall, subject to [Turner’s] obligation under this Lease, at all times during the term, and at [Muhareb’s] sole cost and expense, keep, maintain and repair the interior of the building and other improvements located within the building upon the leased premises in good and sanitary condition (except as otherwise provided in this Lease), including, without limitation, the maintenance and repair of the doors, windows, glazing, plumbing, pipes, refrigeration, equipment, fixtures, furnishings, electrical wiring and conduits. All maintenance, repairs and replacement shall be in quality and class at least equal to the original work and shall include ordinary as well as extra-ordinary and structural as well as non-structural, and shall be made promptly, as and when necessary. [Muhareb] shall not be responsible for the maintenance and repair of the heating and air conditioning unit.”
In addition to paragraph 13, Muhareb quotes paragraph 26 of the lease concerning Muhareb’s responsibilities on surrender of the premises: “Upon expiration of the Lease term or earlier termination on account of default, [Muhareb] shall deliver all keys to [Turner] and surrender the leased Premises in first-class condition. Depreciation and wear from ordinary use for the purpose for which the lease Premises were let need not be restored, but all maintenance and repair for which [Muhareb] is responsible shall be completed prior to such surrender.”
In summary, the lease required Muhareb to (1) maintain and repair the premises, including equipment and (2) surrender the premises to Turner in first-class condition, with all maintenance and repairs completed. However, the lease did not require Turner to restore to the original condition any normal depreciation and wear to the premises.
2. Damages Awarded by Court
The trial court concluded from the evidence that the premises were in good working condition and all equipment was operational at the time that Turner turned them over to Muhareb. Based on this finding, the court found that Muhareb was responsible for the cost of repairs to bring the premises back into working condition.
Based on the evidence, the court found that when Muhareb surrendered the premises Turner observed that the following equipment was missing: fire extinguishers, an egg burner, a milk dispenser, an ice machine (a rented machine, instead of the original ice machine, was found), a microwave, menu holders, knobs for the grill, valves, and heat lamps. The following equipment was damaged: deep fryer, broiler, broiler stand, work table, and steam table.
The court awarded damages for all of this equipment, except for the fire extinguishers and menu holders, based on the cost to Russ to repair or replace them.
The court also found that Muhareb had allowed the premises to deteriorate, allowing mold, mildew, dry rot, and corrosion. The court therefore awarded damages to Turner based on the cost to Russ to restore the premises to a good condition. The court subtracted from the amount expended by Russ the cost to repair the ceiling and air conditioning, which were Turner’s responsibility under the lease.
3. Analysis
A lease is a contract, governed by the same rules of interpretation as other types of contracts. (Robert T. Miner, M.D., Inc. v. Tustin Ave. Investors (2004) 116 Cal.App.4th 264, 270-271.) “‘[T]he traditional rules governing interpretation of contracts... “teach us that the overriding goal of interpretation is to give effect to the parties’ mutual intentions as of the time of contracting.... Where contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further.”’” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1605.) Where, as here, the interpretation does not turn upon the credibility of extrinsic evidence, “interpretation of a contract is purely a judicial function.” (Hartzheim v. Valley Land & Cattle Co. (2007) 153 Cal.App.4th 383, 389.)
“In an action for breach of contract, the measure of damages is ‘the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom’ (Civ. Code, § 3300), provided the damages are ‘clearly ascertainable in both their nature and origin’ (Civ. Code, § 3301).” (Erlich v. Menezes (1999) 21 Cal.4th 543, 550.)
Applying these principles to a lease, the general rule is that damages are measured by the repair cost. “[T]he measure of damages is the reasonable cost of putting the demised premises into the required state of repair or the condition contemplated by the covenant.” (Iverson v. Spang Industries, Inc. (1975) 45 Cal.App.3d 303, 308.) In Polster, Inc. v. Swing, supra, 164 Cal.App.3d 427, relied upon by the trial court in this case, the court concluded that the tenant remains liable for the reasonable cost of restoring the premises even if the landlord has arranged, through a subsequent lease, for a subsequent tenant to make the actual repairs. (Id. at p. 433.)
Under the terms of the lease, Muhareb was responsible to keep the premises and equipment in good working condition and to surrender the premises in that condition. The damages awarded by the trial court represented compensation to restore the equipment and premises to good working condition. However, Muhareb asserts that the trial court erred in the amount awarded for repairs to (a) the cooler and freezer, (b) flooring, (c) “other upgraded matters,” and (d) walls and ceilings. We consider each of these categories.
a. Cooler and Freezer
Before Muhareb took possession of the premises, the walk-in cooler and freezer were clean and in good condition. When Muhareb surrendered the premises, the cooler and freezer were neither clean nor in good condition. A drain line had broken inside the cooler, leading to accumulation of water and resulting dry rot in the wood walls. The doors on the cooler and freezer no longer sealed, and there was mold on the walls.
Carrero made repairs to the cooler and freezer by replacing the doors, replacing parts of the wood walls, and installing an insulated metal liner, which is the modern usage as opposed to the wood walls. Russ believed that the building code required use of insulated liners. The cost for the doors was $3,450 and for the insulated liners was $5,600.
On appeal, Muhareb objects to the inclusion of the cooler and freezer doors and the insulated liners in damages for which he is liable. He asserts that the doors were beyond their useful life and the liners were an upgrade, not just a replacement. We disagree. The lease required Muhareb to maintain and repair the premises. The doors were broken and required repair. The same is true with respect to the insulated liners for the cooler and freezer. The walls were rotted because of the Muhareb’s failure to maintain and repair. Therefore, they had to be replaced. Doing so with modern materials was not an upgrade in the sense that Muhareb was being charged for the improvement of the premises; instead, it would have made no sense to restore them to their original condition if that was no longer industry standard. Therefore, installing insulated liners was merely a part of the repair process for which Muhareb was responsible under the lease.
b. Flooring
When Muhareb leased the premises, the flooring in the kitchen and preparation areas was in excellent condition, some of it brand new. When Muhareb surrendered the premises, the floors were greasy, dirty, damaged and generally in poor condition. Carrero tried to regrout and replace some of the tiles, but it was ineffective. Accordingly, the floors were replaced.
Muhareb complains that the flooring was beyond its useful life, and he should not have been held liable for its replacement. To the contrary, the evidence shows that Muhareb failed to maintain and repair the flooring properly. As a result of his breach of the contract, it was necessary to replace the flooring.
c. “Other Upgraded Matters”
Muhareb contends that several other items that were repaired or replaced should not have been charged to him. He claims the (1) sink was old and was merely separating from the wall, (2) water damage was from a leaking ceiling, which was Turner’s responsibility under the lease, and (3) Formica table tops were replaced when they only had minor chips.
Muhareb provides no citation to evidence supporting his contention that replacement of the sink was unnecessary. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [failure to cite to record forfeits issue].)
Muhareb also fails to cite evidence that the water damage which he attributes to a leak in the ceiling caused the damage for which he was held liable.
Concerning the Formica table tops, Muhareb states only that an exhibit, which was a picture of a table top, merely depicts chips on the edge of the table. He provides no context for the exhibit and therefore fails to establish that the trial court even relied on the exhibit in awarding damages for the Formica table tops.
Muhareb’s contentions as to these specific elements of the damages award are without merit.
d. Walls and Ceilings
The trial court held Muhareb liable for painting of the interior. Muhareb claims this was an “upgrade.” To the contrary, painting is a matter of maintenance, which is done as necessary. The lease required Muhareb to maintain the premises, “as and when necessary.”
Muhareb also asserts: “The dry-rotted windowsills of $850 [sic] for which there is no credit was established by uncontradicted evidence that the mold and dry rot was [sic] caused by the leaking roof or the exterior sprinklers [record citation], both of which were within [Turner’s] duty to conduct repairs.” Muhareb’s citation to the record in this paragraph includes testimony that an outside pipe had broken and caused moisture problems in the wall. However, Muhareb does not put this in context by showing that the $850 in damages for replacement of dry-rotted windowsills related to this problem from the outside. Accordingly, his assertion fails.
B. Damages for Exterior Repairs
In ordering damages against Muhareb for the cost of repairing the premises, the trial court included several items that were not Muhareb’s responsibility under the lease. We therefore deduct those damages from the total awarded by the court.
The lease gave Muhareb responsibility for maintenance and repair of the interior of the premises, except for the heating and air conditioning, and gave Turner responsibility for maintenance and repair of the exterior of the premises, plus the heating and air conditioning.
In awarding damages pursuant to the lease, the trial court used exhibit No. 28, a list of repairs and maintenance done by the subsequent tenant, as its basis. That exhibit included several exterior items of maintenance and repair, as well as air conditioning maintenance, including replacing exterior nightlights, repairing the pole sign and timers, repairing and maintaining the swamp cooler, maintaining the air conditioning, and cleaning the parking lot and property. According to exhibit No. 30, the total for these exterior items of maintenance and repair and air conditioning maintenance was $3,215.45.
Turner claims that “[t]he items within [Turner’s] duty to repair were taken out of the damages charged to [Muhareb].” While it is true that the court deducted $4,000 from the damages for the air conditioning and roof leak that was Turner’s responsibility under the lease, it does not appear that the court deducted the cost of maintenance and repair for the exterior items, plus air conditioning, noted above.
Turner also claims that these exterior items are chargeable to Muhareb because they were not wear and tear but instead were damages to the property while Muhareb was in possession of the property. Turner’s claim is not supported by her citations to the evidence, which merely list repairs and do not show that the repairs were beyond Turner’s duty to maintain and repair the outside part of the premises. Therefore, the record does not support the statement of decision in this regard, and we must deduct $3,215.45 from the judgment.
C. Missing and Damaged Equipment
Muhareb contends that the trial court used the wrong measure of damages for the replacement of missing and damaged equipment. The trial court used the replacement cost of the missing and damaged equipment, using as evidence the invoices produced by Turner for the equipment. Muhareb asserts that the proper measure of damages was the fair market value of the equipment at the time he surrendered the premises to Turner. Based on the language of the lease requiring Muhareb to maintain, repair, and replace equipment, we disagree.
Muhareb claims that the replacement equipment was new. However, he provides no citation to the record to support that claim. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Accordingly, we need not presume that the replacement equipment was new.
According to the written lease agreement between Muhareb and Turner, Muhareb leased not just the premises but also the equipment located on the premises. The lease required Muhareb to maintain and repair the equipment and provided that “[a]ll maintenance, repairs and replacement shall be in quality and class at least equal to the original work....” Therefore, the lease, itself, provided for replacement of equipment, not just recompense for the market value.
Muhareb cites Lane v. Spurgeon (1950) 100 Cal.App.2d 460 for the proposition that “[a]s a general rule the measure of damage for the loss or destruction of personal property is the value of the property at the time of such loss or destruction.” (Id. at p. 463.) The general rule, however, is of no utility in a case like this in which the lease itself provides for replacement of the equipment.
The trial court did not err in using the cost of replacement as the measure of damages for missing and damaged equipment.
D. Equipment Replaced then Taken by Muhareb
Muhareb replaced some of the equipment in the restaurant during the lease term, but then he took that equipment with him when he surrendered the premises. This included an oven and stove top, a milk dispenser, a heat lamp, and a microwave oven. The trial court included in the damages against Muhareb the cost of replacing that equipment. On appeal, Muhareb asserts that he was entitled to take the equipment when he surrendered the premises because the equipment in place at the beginning of the lease term had depreciated beyond its useful life. The assertion is unpersuasive because the lease supports the trial court’s award.
The lease allowed Muhareb to install his own “trade fixtures” and to take them out when he surrendered the premises. The lease further provided: “All furnishings, furniture and trade fixtures installed on the lease Premises by [Muhareb] shall remain the property of [Muhareb] and shall be removed by [Muhareb] upon expiration or termination of the Lease term.”
The lease allowed Muhareb to install and then take his own trade fixtures. However, reading the lease as a whole, the equipment installed as replacements for equipment that was already in place when Muhareb leased the property did not belong to Muhareb but was the property of Turner because Muhareb had the duty to maintain, repair, and replace equipment. The trial court properly included the cost of replacing the equipment removed by Muhareb.
E. Measure of Lost Rent
The trial court based its award of damages for 27 days of lost rent on the amount ($7,000 per month) that Turner contracted with Russ, the subsequent tenant, to pay. When the lease between Turner and Muhareb ended, however, Muhareb was obligated to pay only $4,700 per month, as a result of the original rental price plus annual increases. Muhareb contends that the trial court should have based the lost rent award on the rent he had paid, not on the rental price in the new lease with Russ. We disagree.
The evidence shows that, if the premises had been in a good condition when Muhareb surrendered them, Turner would have been able to immediately start collecting at least $7,000 per month from Russ. Given this evidence, it was proper to use $7,000 per month as the basis for the lost rent award.
However, Muhareb states: “Muhareb is entitled to have the landlord mitigate his damages by attempting to release the property. If the landlord is delayed by the condition of the premises, the tenant is not entitled to credit from his rental obligation until the landlord begins collecting at least as much rent as the tenant was paying. Thus, the proper measure of damages should have been at Muhareb’s lease rate at the time of eviction of $4700.00 per month, not the rate of $7,000.00 that [Russ] was paying.”
We fail to see how this argument supports Muhareb’s contention. Turner immediately found a new tenant and began charging rent as soon as the premises were once again in a satisfactory condition. The trial court did not err in awarding lost rent.
V
Attorney Fees
Muhareb contends that we should reverse the trial court’s award of $68,183 in attorney fees. He bases this contention on his assertion that the judgment against him must be reversed. To the contrary, Turner remains the prevailing party and is entitled to attorney fees under the lease.
DISPOSITION
The judgment is modified by deducting $3,215.45 from the award in Turner’s favor. As modified, the judgment is affirmed. Turner is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
We concur SCOTLAND, P. J., BUTZ, J.