Hernandez v. Thottam

• Decision Date: 10 May 2022
• Docket Number: B306547
• Parties: CONNIE HERNANDEZ, Plaintiff and Respondent, v. PHOENIX THOTTAM, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

CONNIE HERNANDEZ, Plaintiff and Respondent, v. PHOENIX THOTTAM, Defendant and Appellant.

B306547

California Court of Appeals, Second District, Fourth Division

May 10, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MC028169, Wendy Chang, Judge. Affirmed.

Law Offices of Robin E. Paley, Robin E. Paley and Shivali Kasbekar for Plaintiff and Respondent.

Phoenix Thottam, in pro. per., for Defendant and Appellant.

MANELLA, P. J.

INTRODUCTION

Respondent Connie Hernandez leased a commercial unit from appellant non-practicing attorney Phoenix (AKA Peter) Thottam. At the time of the lease, the unit was without power due to a recent fire, but according to respondent, appellant had promised both orally and in writing, to restore power to the unit. The lease itself, which was drafted by appellant, stated that the unit was being provided on an as-is basis, but also stated that appellant was working to restore power and further required respondent to cooperate with appellant as he was doing so. The lease additionally included conflicting provisions regarding the parties' entitlement to attorney fees in case of a dispute, some precluding attorney fees and another entitling appellant to fees.

Several months into the lease, after power to the property had not been restored, respondent filed this action for fraud and breach of contract. She later vacated the unit. In defending against respondent's action, appellant contended, inter alia, that he had never promised to restore power to the property, and that the lease was for the property on an as-is basis.

Following a one-day bench trial, the court concluded the lease was ambiguous as to appellant's duty to restore power and relying on parol evidence, found that appellant had promised to do so and had breached that promise. The court awarded respondent $13, 200 in damages. Additionally, construing the lease against appellant as the drafting party, the court concluded that the lease would have entitled him to attorney fees, and thus that Civil Code section 1717 granted respondent a reciprocal right to fees. It ultimately awarded respondent about $40, 000 in attorney fees.

Appellant moved for reconsideration of the court's ruling on appellant's claim for breach of contract, attaching new declarations. The trial court denied the motion, finding that appellant had failed to show he could not have obtained the new evidence earlier. Appealing in propria persona, appellant now claims the trial court erred in: (1) finding for respondent on her claim for breach of contract; (2) limiting the time for trial; (3) failing to provide a tentative ruling and a statement of decision; (4) denying his motion for reconsideration; (5) awarding unsupported damages; and (6) awarding attorney fees, or alternatively, awarding excessive and unsupported fees. As discussed below, we find no error and therefore affirm.

BACKGROUND

A. The Lease

Respondent contacted appellant after seeing online ads listing his commercial property for lease. The ads stated that the property was without electricity due to a recent fire, but that appellant was "in the process of restoring power," that he had already engaged a contractor to do so, and that power should be restored shortly.^[1] In February 2018, the parties signed an agreement for respondent to lease the property (Unit No. 13120A) for one year. The lease was drafted by appellant. Although respondent and her then-husband, Manuel Melendrez, both met and communicated with appellant regarding the lease, respondent signed the lease as the sole tenant. The lease provided that respondent was to operate a restaurant at the premises, and that any other purpose would require appellant's written consent.

Under the lease, rent for February 2018 was waived, and rent for April through July was discounted, with incremental increases until it reached the standard monthly rent of $1, 600 per month. At the time of signing, respondent paid appellant $6, 400, representing the first and last month's rent (at the standard rate) and a $3, 200 security deposit. The lease stated several times that respondent was taking the unit on an "as is" basis, and that respondent would be responsible for all necessary repairs. At the same time, however, the lease stated that appellant was "currently working to repair the power and electrical and other damages in an adjacent [sic] 13120A . . . unit."^[2] It further provided that respondent was to "cooperate with [appellant] as [he] work[ed] to restore power to the 13120A restaurant unit," and that respondent was to "work[] with the County agencies and with [appellant] while the unit and the main building [was being] restored to active power . . . ."

In addressing the parties' entitlement to attorney fees in case of a dispute, the lease contained conflicting provisions. Some provisions stated that each side was responsible for its own attorney fees. Another provision, however, required respondent to pay appellant "costs, damages, and expenses (including any and all reasonable attorney fees and expenses incurred by the [appellant]) suffered by [appellant] by reason of [respondent's] defaults."

In July 2018, after power had not been restored to the unit, respondent filed this action against him. In November, still without power in the unit, respondent failed to pay the rent. After appellant served her with a notice to pay or quit, respondent vacated the premises. Appellant then refunded respondent $1, 600 of her $3, 200 security deposit.

B. Respondent's Complaint and Motion for Summary Adjudication

In her July 2018 complaint, respondent asserted causes of action for fraud and breach of contract. Respondent alleged that appellant had promised, both orally and in writing, to restore power to the leased unit, a promised he had both breached and never intended to perform. She sought about $32, 800 in compensatory damages and attorney fees, among other relief.

Following discovery, respondent moved for summary judgment or summary adjudication.^[3] The trial court denied respondent's motion, and the matter proceeded to a one-day bench trial in February 2020.

C. The Trial

The trial was not reported, and appellant has submitted no agreed or settled statement in lieu of a reporter's transcript. We therefore rely on the trial court's recounting of the testimony in its written ruling following the trial. Respondent testified on her own behalf. She claimed that in signing the lease, she relied on the online ads' representation that power would be restored shortly, as well as on appellant's oral repetition of that assurance. According to respondent, appellant offered her reduced rent for the first few months of the lease (until August 2018), as they waited for power to be restored. She testified that at first, respondent was polite and responsive to her inquiries about the status of electrical repairs, but that he later became nonresponsive and would avoid her questions. As for her damages, respondent testified "they" (presumably respondent and her husband) had spent $30, 000 to start up the business, after receiving a $10, 000 loan from a friend, Fernando Hernandez.^[4] Respondent submitted a handwritten note attesting to the loan, signed by her, Melendrez, and Fernando.

Appellant testified on his own behalf, denying that he had ever promised to restore power to the unit and claiming that it had been leased on as-is basis. According to appellant, respondent had intended to use the unit only for storage. He claimed he had nevertheless made good faith efforts to restore power to the unit, and provided documentation of his efforts. Appellant also called Melendrez, who was then in the midst of acrimonious divorce proceedings with respondent. The trial court did not detail Melendrez's testimony, as it found that it lacked credibility and therefore declined to consider it.

D. The Trial Court's Ruling

Following trial, the court issued a written ruling dismissing respondent's fraud claim but finding for her on the breach of contract claim. The court found that appellant had intended to restore power to the property and had made a good faith effort to do so, but lacked funds to complete the task. However, the court found that the lease required appellant to restore power to the property, and that he had breached that duty.

Examining the terms of the lease, the court found them to be at least ambiguous as to appellant's duty to restore power. Based on the terms of the lease, respondent's testimony, the online ads for the property, and appellant's evidence regarding his efforts to restore power, the court found that the lease required appellant to restore power to the property so respondent could operate it as a restaurant by August 2018, when she was to begin paying the full standard monthly rent. It found appellant's testimony that the lease was intended for storage to "lack credibility and [be] in contravention of the terms of the Lease itself," which appellant had drafted, and which plainly stated that respondent was to operate a restaurant at the premises. Similarly, the trial court found that appellant's "denials of his assurances of restoring power by August 2018 . . . lack[ed] credibility" and were inconsistent with "[a]ll the evidence proffered . . . ."

The trial court awarded respondent $13, 200 in damages, which included $10, 000 for the loan from Fernando, the first month's rent (on the ground that it had been waived under the lease), and the unrefunded portion of respondent's security deposit. It declined to award respondent other requested damages.^[5]

Additionally the court concluded that respondent was entitled to attorney fees. Noting the lease's conflicting provisions on the...