Ebrahimzadeh v. Lee
Filed 9/13/11 Ebrahimzadeh v. Lee CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
| ESHAGH EBRAHIMZADEH, Plaintiff and Respondent, v. GORDON LEE, Defendant and Appellant. | B226632 (Los Angeles County Super. Ct. No. SC106821) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Irving Shimer, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
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Thomas Castorina & Associates and Bryan Castorina for Defendant and Appellant.
Law Offices of Saul Reiss, Saul Reiss; and Gary Scott Wimenitz for Plaintiff and Respondent.
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Gordon Lee, the tenant in real property on Ensley Avenue in Los Angeles, appeals from the judgment entered against him in an unlawful detainer action. Lee contends that the three-day notice to pay rent or quit was not admitted into evidence at trial and, as a result, no evidence established that the notice complied with statutory requirements. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
On February 16, 2010, Eshagh Ebrahimzadeh, the landlord of the Ensley Avenue property, filed a verified complaint against Lee and his company, Smart SMS Corporation (Smart SMS), for unlawful detainer. Ebrahimzadeh attached to the complaint as an exhibit a copy of a three-day notice to pay rent or quit dated February 8, 2010, indicating that Lee had not paid the monthly rent from November 2009 through February 2010.
2. The Bench Trial
After a default was entered as to Smart SMS, the trial court held a bench trial as to the case against Lee on May 20, 2010.[1] According to the evidence, on July 27, 2009, Ebrahimzadeh entered into a residential lease agreement with Lee and Smart SMS to rent the Ensley Avenue property. The lease term was August 1, 2009 to July 31, 2010 at $5,500 per month. Pursuant to the lease, Lee initially paid $22,000, consisting of $11,000 as a security deposit, $5,500 as rent for the first month of August and $5,500 as the last month’s rent. He then paid rent of $5,500 for September and October 2009.
After October 2009, however, Lee did not pay rent from November 2009 through February 2010. On February 8, 2010, Mario Padilla went to the Ensley Avenue property to serve a three-day notice to pay rent or quit.[2] He rang the doorbell, but no one answered the door. Padillo posted the three-day notice on the door, placed a copy of it in an envelope in the mailbox and mailed copies to Lee and Smart SMS. Lee said that he did not receive the notice either by mail or at the property. He did not see the notice until he received the unlawful detainer complaint, which had the notice attached as an exhibit.
Lee also believed that the February 8, 2010 notice overstated the amount of rent due. According to Lee, during November 2009, Tony Ebrahams, Ebrahimzadeh’s son and property agent, and an attorney came to the Ensley Avenue property to inquire about the unpaid rent for that month. Lee told Ebrahams and the attorney that his friend had mentioned to him that it was illegal to collect more than two months’ rent as a security deposit and that his payment of the last month’s rent counted toward the security deposit. Lee maintained that the security deposit thus was equivalent to three months’ rent and that he should be able to use the extra $5,500 to pay the November rent. Lee said that Ebrahams and the attorney told him that they would send him a letter stating whether using part of the security deposit would be an appropriate way to pay the November rent. Lee never received such a letter. Ebrahams acknowledged that he and an attorney had come to the Ensley Avenue property in November 2009, but said the visit was in response to a neighbor’s complaint about illegal activity occurring inside the house. Ebrahams said that no discussion concerning the unpaid rent for November 2009 took place at that time.
3. The Trial Court’s Ruling and Judgment
After hearing and considering the testimony, documentary evidence and argument, and based on the default entered against Smart SMS, the trial court entered judgment against Lee and Smart SMS for $27,875, consisting of $38,500 for unpaid monthly rent of $5,500 from November 2009 through May 2010, plus $5,000 in attorney fees and $355 in costs, less a credit of $15,980 (representing the $16,500 paid for the security deposit and last month’s rent, minus certain late charges and fees incurred by Lee). The court awarded Ebrahimzadeh immediate possession of the property and ordered forfeiture of the lease. Lee timely appealed from the judgment.[3]
DISCUSSION
In the context of unlawful detainer, a landlord’s three-day notice to pay rent or quit served on a tenant must contain “the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours [the landlord] will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner) . . . .” (Code Civ. Proc., § 1161, par. 2.) In addition, a landlord is entitled to judgment awarding him or her possession of the property and forfeiture of the lease only if the three-day notice “states the election of the landlord to declare the forfeiture” of the premises. (Id. at § 1174, subd. (a).)
Lee contends that Ebrahimzadeh did not prove at trial that the February 8, 2010 three-day notice complies with the statutory requirements that the notice contain (1) a statement of the amount of rent due; (2) the logistics for payment of the rent due; and (3) a declaration of forfeiture to support awarding the landlord possession of the property and forfeiture of the lease. According to Lee, the three-day notice was not admitted into evidence, and no other evidence demonstrated statutory compliance.
Contrary to Lee’s argument, the May 20, 2010 minute order, reflecting the trial proceedings, indicates that the three-day notice was “received into evidence” as one of Ebrahimzadeh’s exhibits. The notice satisfies all of the statutory requirements that Lee contends Ebrahimzadeh did not prove at trial. It states that the total amount of rent due is $22,000, indicating that November 2009 through February 2010 were in arrears at $5,500 per month. It gives logistics for payment, providing that “[t]he past due rent shall be delivered by mail or personally delivered to Eshagh Ebrahimzadeh in c/o Bankers Fiscal Services, Inc., located at 280 S. Beverly Drive, Suite 400, Beverly Hills, California 90212, 310/277-6500, Monday through Friday 9:00 A.M. to 5:00 P.M.” And it directs that the “[l]andlord shall and does hereby elect a forfeiture of the lease agreement.” Lee thus has not demonstrated that Ebrahimzadeh failed to prove statutory compliance to entitle him to judgment in his favor and to possession of the property and forfeiture of the lease.[4]
Lee asserts that the May 20, 2010 minute order is incorrect in stating that the three-day notice was “received into evidence” and that the notice merely was marked for identification as noted in the May 20, 2010 reporter’s transcript. Even if the minute order were inaccurate, Lee does not argue that no foundation existed for admission of the notice or that it otherwise should not have been admitted.[5] Given the notice contains all of the statutorily required information that Lee contends it lacks, any failure to admit the exhibit into evidence after its identification is harmless error. (In re Marriage of Goddard (2004) 33 Cal.4th 49, 59-60 [party’s failure to enter notice of trial date into evidence as required by evidentiary rule in Code Civ. Proc., § 594, subd. (b), or demonstrate it by other competent evidence was harmless error when record was clear that “notice was given . . . but was simply not received into evidence”]; see Code Civ. Proc., § 475.) In any case, reversal of the judgment simply for the trial court on remand to admit the statutorily compliant and already identified exhibit would be an idle act and thus is unnecessary. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1398 [no reversal on appeal for trial court to perform only idle act on remand, such as preparing a properly requested statement of decision].) As a result, Lee has presented no basis to reverse the judgment in favor of Ebrahimzadeh.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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[1] Before trial, Lee moved for summary judgment. In his motion, Lee pointed out that, although the three-day notice attached to the complaint was dated February 8, 2010, Ebrahimzadeh alleged in the complaint that the notice had been served on November 13, 2009. Lee argued that November 13, 2009 was the governing date, that the amount of rent due was overstated by $16,500 for the months of December, January and February, and that he therefore was entitled to judgment in his favor as a matter of law. The trial court denied the motion. Although recognizing that the complaint alleged service of the three-day notice on November 13, 2009, the court concluded that the date alleged in the complaint was a typographical error and that the date of February 8, 2010 on the notice attached to the complaint controlled. (See Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)
[2] The May 20, 2010 reporter’s transcript indicates that the three-day notice was marked for identification, but does not reflect that it was admitted into evidence. The May 20, 2010 minute order, however, states that the notice was received into evidence. We augment the appellate record on our own motion to include the May 20, 2010 minute order. (Cal. Rules of Court, rule 8.155(a)(1).)
[3] Smart SMS did not appeal from the judgment and thus is not a party to this appeal.
[4] Although neither party provided this Court with the trial exhibits, the three-day notice is in the appellate record as an exhibit to Ebrahimzadeh’s verified complaint.
[5] Although at trial Lee claimed that the amount due stated in the three-day notice was incorrect, he makes no such argument on appeal, contending only that no evidence established the amount of rent due because the notice was not admitted into evidence. Lee thus has abandoned the argument that the facts stated in the notice were incorrect. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 381 [appellant abandons issue by failing to raise it before appellate court].)
