Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge, Super. Ct. No. 05CC03811
Jeffrey S. Benice for Defendants and Appellants.
Charles H. Manh and Van N. Dao for Plaintiff and Respondent.
OPINION
IKOLA, J.
Peter G. Lee, M.D., appeals from a judgment against him for unpaid rent under a lease between Son Dinh Nyugen, as lessor, and Lee, as lessee. Lee’s sole contention on appeal is that Nguyen failed to make reasonable efforts to find a new tenant after Lee abandoned the premises, and that Nguyen thereby failed to mitigate damages under Civil Code section 1951.2, subdivision (a). We disagree and affirm the judgment.
Westminster Cosmetic & Laser Medical Center also appeals the judgment; however, the judgment was entered against Lee only.
All further statutory references are to the Civil Code.
FACTS
A written lease dated October 1, 2004 between Nguyen, as lessor, and Lee, as lessee, required Lee to pay $8,000 in monthly rent for a one-year term commencing October 1, 2004 and expiring September 30, 2005. The lease further provided Nguyen would receive free rent from October 1, 2004 through December 31, 2004, so long as he “fulfilled” the lease. Nguyen testified that in order for Lee to fulfill the lease he had to pay rent for one year.
In March 2005, Nguyen sued Lee for, inter alia, unpaid rent under the lease and alleged Lee vacated the premises around December 31, 2004 without ever paying any rent. Nguyen further alleged that although he tried to mitigate damages by placing an advertisement to relet the premises, he was unsuccessful.
At the bench trial in May 2006, Nguyen testified he had tried “hard” to find another tenant for the property. He had begun advertising for a tenant “[n]ot long after the premises vacated” — placing an advertisement in “the most popular newspaper, Viet [Nguoi]” — and had also phoned “many doctor friends” and placed signs on the lawn and the door of the building. But he had been unable to find another tenant “all the way through November” 30, 2005.
In July 2006, the court entered judgment in Nguyen’s favor against Lee for unpaid rent in the amount of $96,000 and awarded Nguyen attorney fees and costs.
The court’s statement of decision states Nguyen “seeks damages in the amount of $96,000, the equivalent of rent for all of the base lease term, calendar year 2005.” In fact, the base lease term was October 1, 2004 through September 30, 2005. Lee does not challenge this finding on appeal.
DISCUSSION
On appeal, as he did below, Lee contends Nguyen failed to mitigate damages under section 1951.2, subdivision (a). On this issue, the trial court noted that “the burden of proving the amount which could have been mitigated is on [Lee]” and found that Lee “failed to prove that any of the damages could have been mitigated.” The court further found that “regardless of who had the burden of proof, the record demonstrates that [Nguyen] did in fact use reasonable efforts to find a substitute tenant and was unable to do so.”
“‘When findings of fact are challenged in a civil appeal, we are bound by the familiar principle that “the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below.’ [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798.)
A tenant who breaches a lease and abandons the property before the end of the term is liable to a landlord for, inter alia, (1) the “unpaid rent which had been earned at the time of” such abandonment, and (2) the “unpaid rent which would have been earned after [such abandonment] until the time of award” minus “the amount of such rental loss that the lessee proves could have been reasonably avoided.” (§ 1951.2, subd. (a)(1) & (2).) Thus, the tenant may reduce his or her liability for the unpaid rent earned after abandonment until the time of the award if he or she proves the landlord failed to reasonably mitigate damages.
Such unpaid rent is valued at the time of the award, with interest allowed pursuant to section 1951.2, subdivision (b).
Lee makes two arguments to support his contention Nguyen failed to reasonably mitigate damages. First, he points out that Nguyen, in trying to relet the premises, advertised the property as a “medical office, surgical center fully furnished, partially equipped, ready to go.” Lee argues the property was “not a surgical center ready to go” because it was not licensed as such. He concludes Nguyen should have obtained “proper licensing for the premises to lease them as a surgery center.” Second, Lee contends Nguyen told prospective tenants he was involved in a lawsuit with Lee and that Lee might come back because the lease was still pending. In Lee’s view, these statements by Nguyen dissuaded prospective tenants from leasing the premises.
Lee asserts these two actions by Nguyen — i.e., Nguyen’s failure to obtain a surgical center license for the premises and his statements to prospective tenants about the lawsuit and Lee’s potential return as a tenant — “constituted unreasonable efforts as a matter of law to mitigate damages.” (Italics added.) As support for this proposition, Lee relies on an exception to the substantial evidence standard of review. This exception applies where a factfinder’s “inference was wholly improper” and the evidence was “such that only one inference could be drawn by a reasonable person; or, though the inference could properly be drawn from certain evidence, it is conclusively rebutted by other evidence.” (9 Witkin, Cal. Procedure (4th ed. 1996) Appeal, § 371, p. 422.) Alternatively, Lee contends the “trial court’s determination that [Nguyen] properly mitigated damages was not based upon substantial evidence . . . .”
Lee’s contentions lack merit, whether we apply the substantial evidence standard of review or the exception thereto. We address first his assertion that Nguyen, due to his advertisements, was required to obtain a surgery center license. Not so. Nguyen had no duty to obtain a license, since the doctrine of mitigation of damages does not require a landlord “‘to take measures which are unreasonable or impracticable or which would involve expenditures disproportionate to the loss sought to be avoided or which may be beyond his [or her] financial means.’” (Lu v. Grewal (2005) 130 Cal.App.4th 841, 850.) Nor was Nguyen required to mitigate damages in a manner chosen by Lee: “The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. [Citation.] ‘If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen.’ [Citation.] The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law. [Citations.] It is sufficient if he acts reasonably and with due diligence, in good faith.” (Green v. Smith (1968) 261 Cal.App.2d 392, 397.) By advertising the property as a medical office or a surgical center, Nguyen no doubt sought to attract a greater pool of applicants who could use the specialized premises. Lee himself testified that a certified surgery center must have a certified surgeon, a nursing staff, and an anesthesiologist on-site. Thus, lacking tenants meeting those requirements, or any tenant at all for that matter, it was not within Nguyen’s power to obtain such certification for the premises.
As to Nguyen’s statements to prospective tenants, Nguyen testified he mentioned the lawsuit only if a prospective tenant asked him about Lee’s previous tenancy there.
The record is replete with substantial evidence that Nguyen made reasonable efforts to mitigate damages. He testified he tried hard to find a new tenant and described the steps he took to find one. Section 1951.2 “‘makes clear that the lessee has the burden of proving the amount he . . . is entitled to have offset against the unpaid rent.’” (Lu v. Grewal, supra, 130 Cal.App.4th at p. 852.) The court found Lee failed to meet that burden and that, irrespective of the burden of proof, the evidence showed Nguyen made reasonable efforts to find a substitute tenant. “It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) Here, substantial evidence supports the judgment. The court’s inferences were not wholly improper, nor were they conclusively rebutted by other evidence; therefore the exception to the substantial evidence standard of review is inapplicable.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.
Lee also relies on subdivision (a)(3) of section 1951.2, but that subdivision is inapplicable here, as it concerns “the unpaid rent for the balance of the term after the time of award . . . .” (Italics added.) Here, the lease term ended before July 5, 2006, the date of the award.