Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC050174 Judith A. Vander Lans, Judge.
Girma H. Gebriel, Joseph M. Ribakoff and Paul Kujawsky for Defendant and Appellant.
John F. Oakes for Plaintiff and Respondent.
CHANEY, J.
In 1993, plaintiff Edward C. Snow (“Snow”) executed a written lease agreement to operate a convenience and liquor store at a shopping center in Long Beach, California. That lease agreement was amended in 1997. In 2004, appellant 2340 PCH, LLC (“Landlord”) purchased the shopping center and, soon after, significantly raised Snow’s monthly rent. Snow disagreed with the rent increase and, eventually, assigned the lease to another company that took over operation of the store. Snow and the new tenant paid the increased rent under protest. Landlord declared the lease terminated and claimed the new tenant was occupying the space on a month-to-month basis.
Snow sued Landlord for declaratory and injunctive relief based on the 1993 written lease agreement, as amended in 1997. The trial court entered judgment in favor of Snow and Landlord appealed. We affirm.
Background
1. The 1984 Lease
In 1984, Snow’s father Edward A. Snow (through his company Supreme Euphoria, Inc.) owned and operated a market located in a Long Beach shopping center at 2340 East Pacific Coast Highway. Snow’s father leased the space from Long Beach Pacific Coast, LP under a shopping center form lease (the “1984 lease”). The managing partner of Long Beach Pacific Coast was Lunnen Development.
The 1984 lease carried an initial term of 10 years, with two options to extend the term of the lease for five years. Monthly rent started at $3,200.00 and included a yearly Consumer Price Index (“CPI”) increase.
Supreme Euphoria eventually went bankrupt.
2. The 1993 Lease
In an effort to keep the space occupied after Supreme Euphoria’s bankruptcy, William Lunnen of Lunnen Development offered to lease the space to Snow and his wife Karen Snow. In late 1993, the Snows entered into a shopping center form lease with Long Beach Pacific Coast, LP (the “1993 lease”) for the operation of a convenience and liquor store. The 1993 lease took effect in May 1994. Snow formed a corporation for the business and named it Eddie’s Convenience Stores, Inc.
The 1993 lease had an initial 10-year term and two options to extend the lease for five years “upon the same terms and conditions as herein provided.” Thus, because the 1993 lease did not take effect until May 1994, the initial term ran through April 2004. Monthly rent started at $3,500 and included a yearly Consumer Price Index (“CPI”) increase, which increase also would apply if the Snows exercised either of the five-year options to extend. The 1993 lease was a triple net lease, meaning the Snows were responsible for a prorated share of taxes, insurance and maintenance costs on the property.
Paragraph 20 of the 1993 lease addresses “Assignment and Subletting.” Immediately after its heading, paragraph 20 states “SEE EXHIBIT ‘D’” to the lease. Exhibit D provides in its entirety: “20. ASSIGNMENT AND SUBLETTING. [Snow] shall have the right to assign or sublease the premises, provided that any assignment or sublease shall be subject to all of the terms and conditions of this lease and [Snow] shall remain primarily liable for the payment of the rent and the performance of the terms and conditions of this lease.” Immediately after the notation “SEE EXHIBIT ‘D,’” however, paragraph 20 picks up in the middle of a sentence. The parties disputed whether the remaining, incomplete language of paragraph 20-including an apparent requirement that the landlord give written approval for any assignment of the lease-was valid in light of the notation to “see Exhibit D.”
Despite its importance to this case, Exhibit D to the 1993 lease is not in the record. The language we quote is from Exhibit D to the 1984 lease, which, based on our review of the reporter’s transcript, appears to be the same as that attached to the 1984 lease.
In March 1995, Snow exercised one option to extend the 1993 lease an additional five years, extending the lease term into 2009. Landlord argued at trial that the option extended the 1984 lease, not the 1993 lease.
3. The 1997 Amendment
In 1997, Snow, his father (as guarantor) and Lunnen Development (as manager for Long Beach Pacific Coast, LP) executed an “Amendment to Lease” (the “1997 amendment” or “amendment”). Although the 1997 amendment mistakenly included Supreme Euphoria, Inc. as a party to the amendment, that name was crossed out and Snow and his father added their names and initialed the changes. Mr. Lunnen also initialed the changes.
The 1997 amendment made three changes to the original lease. First, the monthly rent was set at $3,500 and did not indicate that the stated monthly rent was only for a particular year. Second, the amendment added a third five-year option to extend the lease. And, finally, the lease was converted from a triple net lease to a gross lease rate. Snow understood that, by executing the 1997 amendment, his monthly rent was fixed at $3,500.
At trial, the parties disputed which lease the 1997 amendment amended. This confusion arose because the amendment stated it “served as an amendment to the [1984 lease].” Snow and Mr. Lunnen testified that, despite its reference to the 1984 lease, the 1997 amendment amended the 1993 lease. Although the 1984 lease had expired years before and Snow was not a party to the 1984 lease, Landlord argued the 1997 amendment amended the 1984 lease, not the 1993 lease.
4. Lender and Landlord Changes
In late 1998, Long Beach Pacific Coast, LP sold the property to Ted Beresford. In connection with that sale, Snow signed a Tenant’s Estoppel Certificate and a Lease Subordination, Attornment and Non-Disturbance Agreement. Both documents stated the operative lease was the 1993 lease, and the estoppel certificate indicated monthly rent was $3,500 and that the lease would expire in 2003, but could be extended to 2018. A separate attornment agreement, however, referred to the 1984 lease. Mr. Lunnen gave all his documents pertaining to the property to Mr. Beresford. Soon after Mr. Beresford became owner, Snow agreed to pay an additional $50 a month to cover rising utility costs. Thus, in early 1999, the monthly rent became $3,550. For over five years, Snow paid, and Mr. Beresford accepted, rent in the amount of $3,550.
Apparently, the estoppel certificate does not take into account the May 1994 effective date of the 1993 lease.
In August 2004, the property was sold again, this time to Landlord (defendant 2340 PCH, LLC). Farid Mahbobian-Fard (Mr. Fard) is the managing member of Landlord. His wife Diana Mahbobian is the general manager and is authorized to bind Landlord to contractual obligations. In connection with the 2004 sale, Snow executed another Tenant Estoppel Certificate, which again indicated the operative lease was the 1993 lease. The 2004 estoppel certificate stated monthly rent was $3,550 and that the lease would expire in 2009, but could be extended to 2019. In connection with the sale, Mr. Beresford gave a copy of the 1984 lease to Landlord’s real estate broker. Before escrow closed on the sale of the property, Mr. Fard and his broker also were aware of the 1993 lease and the 1997 amendment. Mr. Fard’s broker stated that Mr. Beresford’s rent roll reflected that Snow paid a fixed gross rent of $3,550.
In October 2004, Landlord raised Snow’s monthly rent by 11.26 percent, claiming this was an appropriate CPI increase. Snow objected to the increase. On his rental checks to Landlord, Snow wrote “tenant paying CPI increase” under protest. It became increasingly difficult for Snow to make the larger rent payments. Mr. Fard discussed various options with Snow, such as Snow selling his business.
5. Sale and Assignment to Global
In 2006, Snow sold his business to C & C Global Link, Inc. (“Global”) and assigned his rights under the lease to Global under paragraph 20 of the 1993 lease. In connection with that transaction, Snow gave a copy of the 1993 lease and 1997 amendment to Global. Prior to the close of the sale, Snow notified Landlord (through Ms. Mahbobian) of the sale and assignment to Global. Snow instructed Global to send its rent checks directly to Landlord, and Snow told Landlord it would be receiving rent checks from Global. He also explained to Global his belief that Landlord had improperly raised the rent and that, until Snow resolved the issue, Global should indicate on each of its rent checks that Global paid the increased rent under protest.
In February 2007, Landlord notified Global that, because Global failed to exercise its final five-year option, the tenancy had become month-to-month. By August 2007, Landlord had raised the monthly rent to $4,500. Snow agreed to pay the difference between the $4,500 and what Global had been paying. He and Global continued to pay the increased rent under protest. Snow told Global he would hire a lawyer and “resolve the issue of the lease once and for all.”
In 2008, Snow exercised a second option to extend the 1993 lease by another five years.
6. Lawsuit
In light of the obvious dispute between the parties, Snow sued Landlord for declaratory and injunctive relief.
Originally, Ms. Snow was a plaintiff to the lawsuit, but she was dismissed without prejudice.
During discovery, Snow learned for the first time that Landlord believed the 1984 lease (not the 1993 lease) governed the parties’ relationship. And, just prior to trial, Mr. Fard filed a declaration conceding Snow had “assigned his interest without [Landlord’s] written consent to C & C Global, Inc.” In his declaration, Mr. Fard also stated that Landlord (a) would release Snow from his obligations as assignor and (b) would not seek recourse against Snow for Global’s future rent.
After a court trial, the trial court concluded the operative lease is the 1993 Lease, with an effective date of May 1994. The court held the 1993 Lease was amended in 1997, when an additional five-year option was added, monthly rent was continued at $3,500, and the lease was converted from triple net to gross. The court also held, however, that, in 1999, Snow agreed to pay an additional $50 in rent, bringing the monthly rent to $3,550. The court held that, in July 2006, Snow assigned the 1993 Lease to Global.
The court concluded the 1993 Lease was “in full force and effect through June 30, 2014, with one remaining five-year option [to extend], which, if exercised, will terminate the Lease as of June 30, 2019.” The court based this conclusion on its findings that (a) the effective date of the 1993 Lease was May 1, 1994, making the initial lease term through May 1, 2004, (b) in 1995, Snow exercised one five-year option, extending the lease term to 2009, (c) in 2008, Snow and Global together exercised the second five-year option, extending the lease to 2014, and (d) the final five-year option remains, which, if exercised, would carry the lease’s term into 2019.
Because the effective date of the 1993 lease was May 1, 1994, it is not clear from the record why the lease term would run through June 30, as opposed to April 30. But, because the parties do not raise this point, we do not address it.
The trial court permanently enjoined Landlord and any successors and assigns “from changing any of the terms and conditions of the [1993] Lease as outlined above without the consent of all parties” and awarded Snow $27,396.08, which represented the amount of rent increases paid under protest.
Landlord appealed from the judgment.
Almost two months after Landlord filed its notice of appeal, the trial court awarded Snow attorney fees under Code of Civil Procedure, section 2033.420.
Discussion
1. Motion to Dismiss
Landlord argues the trial court should have granted the motion to dismiss because Snow assigned the lease to Global and, therefore, Snow has no standing to bring this action, and because there is no actual controversy between Snow and Landlord. We disagree.
When the facts relevant to standing are undisputed, standing is a question of law we review de novo. (Save the Plastic Bag Coalition v. City of Manhattan Beach (2010) 181 Cal.App.4th 521, 535.) When the relevant facts are disputed, however, we review the trial court’s standing determination for substantial evidence. (Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1137.) Under either standard of review, we conclude the trial court correctly determined Snow has standing.
Snow brought this action seeking a declaration and injunction based on contracts to which he is a signatory. Although Snow assigned the 1993 lease to Global, Snow remains “primarily liable” under the 1993 lease for payment of rent and performance of conditions. As noted above, Exhibit D to the 1993 lease states that “[Snow] shall have the right to assign or sublease the premises, provided that any assignment or sublease shall be subject to all of the terms and conditions of this lease and [Snow] shall remain primarily liable for the payment of the rent and the performance of the terms and conditions of this lease.”
In an unsuccessful attempt to avoid Exhibit D, Landlord relies on the declaration of Mr. Fard, in which Landlord offered to relieve Snow from liability for rent. The declaration does not help Landlord. Snow is not obligated to accept Landlord’s offer and, in any event, Snow remains “primarily liable for... the performance of the terms and conditions” of the Lease, which the declaration does not address. Similarly, the declaration does not address what might happen if Global and Snow terminate their sublease agreement. Snow clearly has standing.
Just as clearly evident, there is an actual present controversy. Landlord insists the tenancy is month-to-month and that monthly rent is $4,500, which Landlord has been collecting and which Snow and Global together have been paying under protest. Snow claims the Lease remains in effect and that monthly rent is $3,550.
2. Parol Evidence
Landlord argues the trial court erred in admitting extrinsic evidence to establish that the 1997 amendment (a) amended the 1993 lease, and not the 1984 lease, and (b) removed the CPI rent increase provision in the 1993 lease. We disagree and conclude the trial court properly considered extrinsic evidence to interpret ambiguities in the 1997 amendment.
a. The parol evidence rule
The parol evidence rule is codified at section 1856 of the Code of Civil Procedure and provides that parties to a contract may not contradict the terms of their agreement with evidence of any prior agreement or of a contemporaneous oral agreement. (Code Civ. Proc., § 1856, subds. (a) and (h).) The rule permits, however, that the terms of an agreement “may be explained or supplemented by course of dealing or usage of trade or by course of performance” and that the court may consider “other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud.” (Code Civ. Proc., § 1856, subds. (c) and (g).)
Code of Civil Procedure, section 1860 states that “[f]or the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the Judge be placed in the position of those whose language he is to interpret.”
The central issue here is whether the trial court correctly interpreted the 1997 amendment so that the 1993 lease remains in effect until 2014, with a five-year option to extend, and with no built-in rent increases. “We begin by noting the oft-stated rule that parol evidence is properly admitted to construe a written instrument when its language is ambiguous. The test of whether parol evidence is admissible to construe an ambiguity is not whether the language appears to the court to be unambiguous, but whether the evidence presented is relevant to prove a meaning to which the language is ‘reasonably susceptible.’ (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) [69 Cal.2d 33, 37, 69 Cal.Rptr. 561, 442 P.2d 641].)” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet).)
“The decision whether to admit parol evidence involves a two-step process. First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ‘ambiguity,’ i.e., whether the language is ‘reasonably susceptible’ to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is ‘reasonably susceptible’ to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step-interpreting the contract.” (Winet, supra, 4 Cal.App.4th at p. 1165.)
b. Standard of review
Different standards of review may apply to the trial court’s consideration of extrinsic evidence and interpretation of the 1997 amendment. The court’s ruling on the threshold determination of “ambiguity” (i.e., whether the proffered evidence is relevant to prove a meaning to which the language is reasonably susceptible) is a question of law, which we review de novo. (Winet, supra, 4 Cal.App.4th at p. 1165.)
As to the second step of the inquiry (i.e., the interpretation of the ambiguous language), the applicable standard of review depends on the parol evidence used to construe the agreement. “When the competent parol evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld as long as it is supported by substantial evidence. [Citation.] However, when no parol evidence is introduced (requiring construction of the instrument solely based on its own language) or when the competent parol evidence is not conflicting, construction of the instrument is a question of law, and the appellate court will independently construe the writing.” (Winet, supra, 4 Cal.App.4th at p. 1166.)
c. The 1997 amendment is ambiguous.
We conclude the 1997 amendment is ambiguous in two respects and, therefore, the trial court properly admitted extrinsic evidence to interpret the amendment. In addition, because the extrinsic evidence conflicts, we review the trial court’s interpretation of the amendment for substantial evidence. (Winet, supra, 4 Cal.App.4th at p. 1166.)
First, the 1997 amendment is ambiguous with respect to which lease it amended. Although the amendment states it amends the 1984 lease, that lease was not in effect in 1997, when the amendment was executed. Moreover, Snow-who signed the amendment and inserted his name in place of Supreme Euphoria-was not a party to the 1984 lease. It is unclear why Snow would sign an agreement amending an expired lease to which he was not a party.
Substantial evidence supports the trial court’s conclusion that, despite referring to the 1984 lease, the 1997 amendment amended the 1993 lease. Snow and Mr. Lunnen both testified the amendment changed the 1993 lease. In addition, although Landlord relied on an attornment agreement referencing the 1984 lease, a separate attornment agreement and two tenant estoppel certificates indicate the 1993 lease was the operative lease. Finally, if the 1997 amendment amended the 1984 lease, the parties to the amendment would not have crossed out the name Supreme Euphoria, Inc. since that was a party to the 1984 lease.
Second, the 1997 amendment is ambiguous with respect to how it amended the monthly rental rate under the 1993 lease. Paragraph 4(A) of the 1993 lease (which is on page two of the lease) states Snow “shall pay to Landlord as minimum monthly rental... the sum of:
YEARS
MONTHLY RENTAL
ANNUAL RENTAL
1
$3500.00
$42,000.00”
The 1997 amendment states that the “Terms listed on page (2) [of the lease] item #4 Rental will change to:
YEARS
MONTHLY RENTAL
ANNUAL RENTAL
$3,500.00
$42,000.00”
Thus, other than minor typographical differences, the amendment makes only one substantive change to paragraph 4 of the 1993 lease-namely, the removal of the number “1” under the heading “YEARS.”
This change is ambiguous because it is unclear how it should be read with the remainder of paragraph 4, which the 1997 amendment did not strike or change. On the one hand, by deleting reference to the first year of the lease, the amendment appears to set monthly rent at $3,500 for the entire term of the lease. This is the position Snow takes. But, on the other hand, paragraph 4(B) of the 1993 lease provides for a yearly CPI increase to the rental rate. Landlord argues that, because the amendment did not alter the remainder of paragraph 4, the lease still provides for and permits a yearly rental increase.
Substantial evidence supports the trial court’s conclusion that the 1997 amendment set monthly rent at $3,500 (later increased by agreement to $3,550) for every year, rather than for the first year of the lease only. Snow testified that, by signing the 1997 amendment, he believed the monthly rental rate of $3,500 was set for the remainder of the lease. Mr. Lunnen also testified that the 1997 amendment changed the 1993 lease to a flat rental rate without built-in increases. Prior to Landlord purchasing the property, Snow’s course of performance also buttresses this interpretation of the amendment. Mr. Beresford testified that, for over five years, he accepted Snow’s monthly rental payments of $3,550. Finally, it cannot reasonably be disputed that the 1997 amendment sought to change paragraph 4 of the lease. Having made only one substantive change to that paragraph, it is difficult to accept Landlord’s interpretation of the amendment, which, if accepted, would result in there being no change to paragraph 4 of the 1993 lease at all.
We conclude the trial court’s interpretation of the 1997 amendment is supported by substantial evidence.
3. Statute of Frauds
Landlord also argues Snow’s assignment to Global is invalid because it does not satisfy the statute of frauds. We disagree.
As a preliminary matter, we address Snow’s argument that Landlord waived the statute of frauds argument because Landlord did not raise the issue in its Answer. We conclude Landlord preserved its statute of frauds argument because Landlord included a general denial in its Answer, which is sufficient to preserve the issue. (Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552 (Secrest).) Moreover, the issue was raised at trial and addressed by the trial court and, therefore, not waived. (See id. at pp. 551-552.)
Civil Code section 1624 provides in relevant part: “(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: [¶] (1) An agreement that by its terms is not to be performed within a year from the making thereof.” In other words, “[a] contract coming within the statute of frauds is invalid unless it is memorialized by a writing subscribed by the party to be charged or by the party’s agent.” (Secrest, supra, 167 Cal.App.4th at p. 552.)
Simply put, the statute of frauds is not relevant here. In this case, Snow seeks to enforce his written lease agreement with Landlord, not the assignment agreement with Global. Yet, Landlord consistently confuses its agreement with Snow (the 1993 lease, including the 1997 amendment) with Snow’s separate agreement with Global, which is not at issue here. As Snow correctly points out, this lawsuit is not about enforcement of his agreement with Global, to which Landlord is not a party. Indeed, the record does not reveal any dispute between Snow and Global with respect to the existence of their assignment agreement. And, Landlord (through Mr. Fard’s declaration) conceded the existence of the assignment, stating that, in 2006, Snow “assigned his interest without [Landlord]’s written consent to [Global].” By focusing on the statute of frauds and the agreement between Snow and Global, Landlord directs attention to the wrong agreement.
“It is important to remember that ‘[t]he primary purpose of the Statute [of frauds] is evidentiary, to require reliable evidence of the existence and terms of the contract and to prevent enforcement through fraud or perjury of contracts never in fact made.... Where only an evidentiary purpose is served, the requirement of a memorandum is read in the light of the dispute which arises and the admissions of the party to be charged; there is no need for evidence on points not in dispute.’ [Citation.]” (Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 764-765, fn. omitted, overruled on another ground in Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85.) Here, there would be no purpose in applying the statute of frauds to negate the existence of a contract everyone agrees exists. (See Civil Code § 1624, subd. (b)(3)(C) [there is sufficient evidence of a contract when “[t]he party against whom enforcement is sought admits in its pleading, testimony, or otherwise in court that a contract was made”].)
4. Estoppel
Landlord argues the trial court erred in holding Landlord was estopped by Snow’s representations in the tenant estoppel certificates. It is not clear, however, that the trial court made such a finding. After determining Snow was not estopped from denying the 1997 amendment changed the 1984 lease (as opposed to the 1993 lease), the trial court stated that, “[i]f anything, it is Mr. Mahbobian-Fard who is estopped from denying the existence and validity of the 1993 Lease Agreement. Exhibit 9 was admitted by Mr. Beresford as the Estoppel Certificate received when he purchased the property and was given to Mr. Mahbobian-Fard in consideration of his purchase of the property.” Thus, it appears, based on Mr. Fard’s knowledge of Snow’s position with respect to his lease agreement, the trial court considered Mr. Fard estopped to deny the 1993 lease.
In any event, assuming without deciding that the trial court made such a finding and that we disagree with the finding, our ultimate decision here remains unchanged. In other words, it is irrelevant whether Mr. Fard is estopped from denying the 1993 lease.
5. Damages Award
Citing no authority, Landlord claims the trial court erred in awarding money damages to Snow and equitable relief in favor of Global. Again, we disagree.
As an initial matter, Landlord incorrectly asserts the trial court granted relief in favor of Global. Although Global benefits from the judgment in that the monthly rent has been set at a lower rate than that demanded by Landlord, the trial court entered no order, award or judgment in favor of Global.
Second, as Snow accurately explains, a court sitting in equity jurisdiction may issue a judgment awarding money damages. “To do equity, a trial court must have various options available to it including that of awarding damages.” (Wolford v. Thomas (1987) 190 Cal.App.3d 347, 354.) When damages are incidental to the equitable relief sought, a court sitting in equity may award damages. (Union Oil Company of California v. Reconstruction Oil Co. (1943) 58 Cal.App.2d 30, 33, 35; see also Wolford, supra, 190 Cal.App.3d at p. 354.) Here, as part of its ruling declaring the rights of the parties, the trial court held Landlord was wrong to increase the monthly rent in 2004 and that Snow was not required to pay those increases, but did so under protest. This is supported by Snow’s trial testimony, during which he said he paid the rent increases under protest and that the difference between what he should have paid and what he was forced to pay was $27,396.08, which amount he claimed was owed to him. Thus, incident to its conclusion that Landlord improperly increased the rent and Snow paid under protest, the trial court awarded damages in the amount Snow paid under protest. We conclude the court did not “exceed its authority” in doing so.
6. Post-Judgment Award of Attorney Fees
Landlord argues the trial court erred in awarding Snow attorney fees under Code of Civil Procedure section 2033.420 (“section 2033.420”). Because Landlord failed to appeal the post-judgment order awarding attorney fees, however, we lack jurisdiction to consider this issue.
Under section 2033.420, the trial court is required in certain circumstances to award the requesting party (here, Snow) reasonable expenses, including attorney fees, when “a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter.” (Code Civ. Proc., § 2033.420.)
Landlord appealed only from the judgment entered November 18, 2008. Landlord did not appeal from the February 10, 2009 post-judgment order awarding attorney fees. While the judgment awards costs to Snow, it does not address attorney fees or section 2033.420. Although Landlord argues to the contrary, the court’s Further Statement of Decision also does not address attorney fees or section 2033.420.
Because the judgment appealed from does not address attorney fees, and because Landlord did not appeal from the post-judgment order awarding attorney fees, Landlord has not perfected an appeal from the attorney fees order. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43-44. Compare Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997-998 [when judgment awards attorney fees, but leaves amount of fee award for later determination, appellant may challenge fee award on appeal from the judgment only].) Thus, we lack jurisdiction to consider Landlord’s arguments on appeal as to the award of attorney fees.
7. Motions on Appeal
a. Snow’s Motion for Sanctions
Snow filed a motion on appeal for sanctions against Landlord, arguing Landlord’s appeal is frivolous and taken for purposes of delay. Although we are not persuaded by Landlord’s arguments on appeal, we cannot say the appeal is frivolous or brought only for delay. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Accordingly, we deny Snow’s motion for sanctions on appeal.
b. Landlord’s Motion for Sanctions
Landlord also moved for sanctions on appeal against Snow. In its motion, Landlord argues we should sanction Snow because, following entry of judgment in this case, Snow “misappropriated” rent by telling Global to send its rent checks to Snow instead of to Landlord. Not only because Landlord’s motion involves new events and facts occurring after judgment was entered (and, indeed, after this appeal was filed), but also because Landlord again mistakenly focuses on the relationship between Snow and Global, which is not at issue in this appeal, we deny Landlord’s motion for sanctions on appeal.
Disposition
The judgment is affirmed. Insofar as the appeal purports to embrace the subsequent order awarding attorney fees, the appeal is dismissed. Appellant’s Motion for Sanctions is denied. Respondent’s Motion for Sanctions is denied.
We concur: MALLANO, P. J., JOHNSON, J.