Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC095655 John L. Segal, Judge.
Law Offices of Jilbert Tahmazian, Jilbert Tahmazian and Alec Baghdassarian for Defendant and Appellant.
Nahai Law Group, Behzad Nahai and Mark F. Wendorff, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Emily Kovnatsky appeals from a summary judgment in favor of plaintiff K.C. Investment Company. We affirm.
FACTS
For a number of years, defendant leased from plaintiff premises in the Brentwood Gardens shopping center, described as Store 205 at 11677 San Vicente Boulevard in Los Angeles. The lease expired in mid-2004, and her tenancy was converted to month-to-month.
Her health began to deteriorate, she was taking a lot of medication, and she planned to close her business. However, in November 2005, one of her employees, Larisa Gourvits (Gourvits), expressed a desire to take over the business. They agreed that Gourvits would buy the business from defendant, with defendant staying in the business for an additional 10 months to aid in the transition.
Defendant notified plaintiff that Gourvits was taking over the business and asked that plaintiff negotiate a lease with Gourvits. Plaintiff informed her that the only way it would lease the premises to Gourvits was if defendant signed the new lease.
On November 18, 2005, plaintiff and defendant entered into a lease agreement, under which defendant leased the premises for a period of 36 months, from December 1, 2005 through November 30, 2008. Rent was to be $2,276 for the first 12 months and $2,428 for the next 24 months.
On the same day, defendant entered into a lease assignment agreement with Gourvits. Under the assignment, Gourvits agreed to assume all terms and conditions of defendant’s lease. Plaintiff consented to the assignment. Plaintiff also reserved all of its rights against defendant under the lease, and defendant remained jointly and severally liable under the lease pursuant to a guarantee of lease. Defendant did not remember signing the guarantee of lease.
Defendant signed a guarantee of lease which specifically provided: “The undersigned hereby waive notice of any demand by Lessor, as well as any notice of default in the payment of rent or any other amounts contained or reserved in said Lease, or any default under any other provisions of said Lease.”
Gourvits defaulted on the lease almost immediately. Plaintiff never notified defendant of the default.
On April 23, 2007, plaintiff brought an unlawful detainer action against Gourvits. Gourvits defaulted in the action. The lease was forfeited and Gourvits was evicted.
Plaintiff then demanded that defendant pay it $26,742 as rental damages pursuant to the lease and the assignment. Defendant refused.
PROCEDURAL BACKGROUND
On October 15, 2007, plaintiff filed this action against defendant for breach of the lease. Plaintiff sought $26,742 rental damages for the period of July 1, 2006 through March 31, 2007.
Defendant filed her answer denying the allegations of the complaint and asserting a number of affirmative defenses: failure to state a cause of action, laches, equitable estoppel, unclean hands, waiver, failure of consideration, failure to mitigate damages, failure to perform excusing further performance, consent, in pari delicto, and wrongful eviction.
Plaintiff then filed a motion for summary judgment, which defendant opposed. The trial court granted the motion. It explained that the undisputed facts established that defendant “was a party to the lease and the guarantee, that she remained liable for breach of lease by the assignee under the assignment, and that Gourvits failed to pay rent from July 200[6] through March 2007, leaving total unpaid rent under the lease of $26,742. Plaintiff has satisfied its burden on summary judgment.”
The court then turned to the question whether defendant met her burden of establishing a triable issue of fact. It stated that defendant “relies on her declaration, in which she states that she does not ‘remember signing [a] personal guarantee for the lease and never had any intention of being a guarantor for Gourvits.’” Defendant “explains: ‘The way it was presented to me is that the only way [plaintiff] will lease the Premises to Gourvits if I sign a new lease.’... This evidence, however, does not create a triable issue of material fact. [Defendant’s] ability or inability to remember signing the new lease assignment, or the guarantee, is irrelevant to whether she signed the documents, which it is undisputed she did. [Defendant] does not contest that she executed the lease, the assignment, or the guarantee.”
The trial court rejected defendant’s argument that the lease was invalid for lack of consideration. Defendant “states that she intended to retire and close down the business, and was, immediately prior to entering into the new lease, on a month-to-month lease, so that the lease conferred no benefit to her.” However, defendant “benefited from the new lease in the same manner as any other tenant: by obtaining a 36 month lease for the business, which she sold to Gourvits. In addition, she obtained a commitment from the landlord not to terminate the lease except for cause.... This is a ‘benefit conferred’ to [defendant], notwithstanding her stated intent to retire.... [Defendant] also obtained the benefit of keeping the space for her employee and her business, and the ability to sell her business to her employee Gourvits at the price she obtained.”
The trial court also rejected defendant’s claim that plaintiff failed to mitigate its damages. It noted that “[d]amages for rent accruing after termination of the tenancy are subject to the landlord’s duty to mitigate; a landlord cannot recover future rental revenue losses to the extent those losses could have been avoided by the landlord’s reasonable, good faith efforts.” Plaintiff was not seeking damages for future rental revenue, i.e., damages accruing after Gourvits was evicted. It was only seeking past due rents.
The court pointed out that defendant’s “mitigation argument is actually a claim that she was entitled to notice of Gourvits[’] defaults under the lease.” Defendant claimed that if she had been given notice of the defaults, she could have taken over the business and paid the rent. However, defendant had no right to notice of the unlawful detainer. “Moreover, unless the lease expressly provides that the guarantor’s personal liability is contingent on notice of the principal’s default, the guarantor is liable for unpaid rent without any prior demand or notice.... The burden of discovering if there has been a default is on the guarantor who, by agreeing to the guaranty, is expected to monitor the principal’s timely payments.”
The trial court rejected defendant’s claim of equitable estoppel on the ground she presented no evidence plaintiff made a statement which it repudiated, which was untrue, about which defendant was ignorant of the true facts. The trial court also rejected defendant’s claim of laches, finding no delay on plaintiff’s part in filing the lawsuit against defendant.
DISCUSSION
Summary judgment is properly granted if there is no question of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) The defendant must “demonstrate that under no hypothesis is there a material factual issue requiring a trial.” (Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Once the moving plaintiff has met its burden, the burden shifts to the defendant to show that a triable issue of material fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) The defendant may not rely on her pleadings to meet this burden (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, at p. 849), except to the extent they are uncontested by the opposing party (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626). All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Inasmuch as the grant or denial of a motion for summary judgment strictly involves questions of law, we must reevaluate the legal significance and effect of the parties’ moving and opposing papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, overruled on other grounds in Camargo v. Tjaarda Diary (2001) 25 Cal.4th 1235, 1245.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.)
Defendant first contends the trial court erred as a matter of law in finding no triable issue of fact as to the defense of mitigation of damages. Rather, the evidence supported a finding plaintiff should have taken reasonable efforts to mitigate damages by commencing an unlawful detainer action immediately upon Gourvits’s default. We disagree.
The issue of mitigation of damages is covered by Civil Code section 1951.2, which provides in pertinent part: “(a) Except as otherwise provided in Section 1951.4, if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee:
“(1) The worth at the time of award of the unpaid rent which had been earned at time of termination;
“(2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided;
“(3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided....”
Under subdivisions (a)(2) and (a)(3) of the statute, the award of unpaid rent which may be reduced by “the amount of such rental loss that the lessee proves could have been reasonably avoided,” i.e., by failure to mitigate damages, is the amount of unpaid rent “which would have been earned after termination until the time of award” and from the time of award to the end of the lease term. Subdivision (a)(1), which applies to unpaid rent up to the time the lease is terminated, has no mitigation of damages provision.
Plaintiff sought only unpaid rent up to the time it terminated Gourvits’s tenancy, under subdivision (a)(1) of the statute. Thus, the trial court correctly ruled that failure to mitigate damages was not a defense.
Defendant also claims a triable issue of fact exists as to the defense of laches based upon plaintiff’s delay in filing the unlawful detainer action and failure to notify defendant of Gourvits’s default. Again, we disagree.
Under Civil Code section 2807, “[a] surety who has assumed liability for payment or performance is liable to the creditor immediately upon the default of the principal, and without demand or notice.” “The meaning of the statute is that no notice of default is required in the absence of an agreement to the contrary where, as here, the guaranty is unconditional. [Citation.] Moreover, our Supreme Court has, without reference to the statute, stated in dictum that the guarantor of a lease is not entitled to notice of the tenant’s default. [Citation.]” (Baralat Development Co. v. Lichter (1987) 191 Cal.App.3d 933, 936.) The trial court therefore correctly ruled that defendant was not entitled to notice of Gourvits’s default.
As noted in Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424 at page 439, “[l]aches is an unreasonable delay in asserting an equitable right, causing prejudice to an adverse party such as to render the granting of relief to the other party inequitable.” Because laches is an equitable defense, it “is unavailable in an action at law for damages.” (Ibid.) The court explained that “‘[t]he equitable doctrine of laches has a legal equivalent in the statutes of limitations. To allow a laches defense in a legal action would be to override a time limit mandated by the Legislature.’” (Ibid.) Since this is a legal action for damages, the trial court correctly found laches unavailable as a defense.
DISPOSITION
The judgment is affirmed. Plaintiff is to recover costs on appeal.
We concur: WOODS, Acting P. J., ZELON J.