Barraco v. Ramalho
Filed 6/28/12 Barraco v. Ramalho CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOSEPH A.
BARRACO et al.,
Plaintiffs and Respondents,
v.
LAWRENCE
RAMALHO,
Defendant
and Appellant.
E054126
(Super.Ct.No.
INC086200)
OPINION
APPEAL
from the Superior Court
of
County. John G. Evans,
Judge. Reversed.
Law
Offices of Ronald T. Golan and Ronald T. Golan; Sheila A. Williams,
Walter R. Nelson, and Laura J. Fuller for Defendant and Appellant Lawrence
Ramalho.
Anderholt
Whittaker, J. John Anderholt III, Roman M. Whittaker, and Nikki B. Allen
for Plaintiffs and Respondents.
Plaintiffs
and respondents Joseph A. Barracco and Jaroslaw Paluha, individuals doing
business as JJ Sage Place,
filed a complaint against defendants Lawrence Ramalho and Sarika Ramalho
(Lawrence and Sarika) for breach of a written
contract. Plaintiffs claimed that
Lawrence and Sarika breached the lease agreement entered into between the
parties. Plaintiffs moved for and were
granted summary judgment. Defendant and appellant Lawrence Ramalho
appeals,
summary judgment because triable issues
of fact exist as to their claim of breach and one or more of their affirmative
defenses. We agree and reverse.
I. PROCEDURAL BACKGROUND AND FACTS
On
November 14, 2006, plaintiffs entered into a Standard Commercial Multi-Tenant
Lease (the Lease) with Lawrence and Sarika, whereby Lawrence and Sarika agreed
to lease premises located at 73-255 El Paseo, Suite 21, Palm Desert, California
(the Premises) for a term of five years, commencing on November 1, 2006,
and ending on October 31, 2011.
Lawrence and Sarika paid a $15,000 security deposit. Lawrence’s
ex-wife, Sarika,
title="">[2] opened a furrier store called Furrari.
Shortly
after the opening of Furrari, plaintiffs leased the adjoining space to a pet
store. According to Lawrence,
patrons of the pet store verbally criticized the fur business, scaring off
customers. In April 2008, Lawrence and
Sarika ceased making payments on the Lease.
On June 19, 2008,
plaintiffs caused a three-day notice to pay rent or quit and a three-day notice
to cure or quit to be served on Lawrence and Sarika. On or about June 30, 2008, Lawrence and Sarika vacated and
surrendered possession of the Premises to plaintiffs; however, they failed to
pay the past-due rent and other charges, as well as the rent for the remainder
of the Lease’s term, less the amount received by plaintiffs for re-letting the
Premises. Upon Lawrence and Sarika
vacating the Premises, plaintiffs made repairs costing $1,015.78, including
$525 on the air conditioning unit, $203.01 on electrical, and $287.77 for a
locksmith to change the locks.
name="_ftnref3" title="">[3]
According
to plaintiffs, they were unable to relet the Premises until January 2009. They claimed that they used a good faith
effort to do so by utilizing online and newspaper advertising, multiple
meetings and telephone calls with local and national brokers, meetings with
retailers, and placing a “For Lease” sign on the Premises.
2008, plaintiffs entered into a lease agreement with a new tenant
for a term commencing on January 1,
2009, which plaintiffs claim provided for a lower rental rate than
the rate in the Lease.
name="_ftnref5" title="">[5]
On
May 4, 2009, plaintiffs
filed a complaint for breach of the Lease against Lawrence and Sarika. Plaintiffs sought damages to recover the
value of the Lease, plus attorney fees and costs, less any offsets. Lawrence
filed his answer on December 10,
2009, and Sarika filed her separate answer on August 11, 2010. On February 16,
2011, plaintiffs moved for summary judgment. Lawrence and Sarika filed separate
oppositions on April 19, 2011. On June 22,
2011, plaintiffs’ motion was granted and judgment was entered. Lawrence
appeals.
II. STANDARD OF REVIEW
“[A]fter
a motion for summary judgment has been granted, we review the record de novo,
considering all the evidence set forth in the moving and opposition papers
except that to which objections have been made and sustained. [Citation.]”
(Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) “The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute. [Citation.]”
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 (Aguilar).)
“
apply to summary judgment motions under Code of Civil Procedure section
437c. [Citation.] Generally, if all the papers submitted by the
parties show there is no triable issue of material fact and the ‘moving party
is entitled to a judgment as a matter of
law’ [citation], the court must grant the motion for summary judgment. [Citation.]
Code of Civil Procedure section 437c, subdivision (p)(1), states: [¶] ‘A
plaintiff . . . has met his or her burden of showing that there
is no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on that cause of action. Once the plaintiff . . . has
met that burden, the burden shifts to the defendant . . . to
show that a triable issue of one or more material facts exists as to that cause
of action or a defense thereto. The
defendant or cross-defendant may not rely upon the mere allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action or a defense thereto.’” (Troyk
v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1320.) “In reviewing whether these burdens have been
met, we strictly scrutinize the moving party’s papers and construe all facts
and resolve all doubts in favor of the party opposing the motion. [Citations.]”
(Innovative Business Partnerships,
Inc. v. Inland Counties Regional Center, Inc. (2011) 194 Cal.App.4th 623,
628 [Fourth Dist., Div. Two].)
III. WERE PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT
Lawrence
contends the trial court erred in granting plaintiffs’ motion for summary
judgment because triable issues of fact exist as to their claim of breach and
one or more of Lawrence and Sarika’s affirmative defenses.
“[T]he
elements of a cause of action for breach of contract are (1) the existence of
the contract, (2) plaintiff’s performance or excuse for nonperformance,
(3) defendant’s breach, and (4) the resulting damages to the
plaintiff. [Citation.]” (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Plaintiffs’ sole cause of action is that
Lawrence and Sarika breached the Lease, causing plaintiffs to suffer
damages. In their motion for summary
judgment, plaintiffs submitted the declaration of Paluha, the Lease, Notice to
Quit, and Lawrence and Sarika’s letter that they were vacating the
Premises. According to plaintiffs’
evidence, they entered into the Lease with Lawrence and Sarika, plaintiffs
performed their obligations, Lawrence and Sarika breached the contract by
failing to make all of the payments required pursuant to its terms, and
plaintiffs suffered damages. After
plaintiffs proved each element of their breach of contract cause of action, the
burden shifted to Lawrence and Sarika.
In
opposing the motion, Lawrence argued that (1) plaintiffs failed to comply with
the requirements of Business and Professions Code, sections 17913, 17914,
17915, and 17917, (2) Paluha’s declaration was not based on personal knowledge,
was speculative and conclusory, (3) plaintiffs harmed Sarika’s business by
leasing the adjoining space to a pet store, and (4) plaintiffs refused to relet
the Premises to Lawrence for the purpose of medical suite of offices. Regarding Paluha’s declaration, Lawrence
raised several evidentiary objections, all of which the trial court
overruled. We consider Lawrence’s
challenges.
To
begin with, Lawrence claims that plaintiffs should not have been allowed to proceed
with their lawsuit because they failed to file a fictitious business name
statement with the county clerk.(Bus. & Prof. Code, § 17913, et
seq.) However, according to the record
before this court, plaintiffs did file a fictitious business name statement
during the relevant period of time.
Next,
Lawrence objected to Paluha’s declaration to the extent Paluha claimed:
(1) a three-day notice was served on Lawrence and Sarika;
(2) Lawrence and Sarika served a letter notifying that they had vacated
the Premises; (3) Lawrence and Sarika received free rent in November and
December 2006; (4) the monthly rent from April through October 2008 was
$10,350, and in November and December 2008 it was $10,822; (5) the monthly
late fees from April through December 2008 were $621; (6) Lawrence and
Sarika’s portion of the monthly common area maintenance fees for 2008 was
$1,265.93; (7) plaintiffs were unable to relet the Premises, despite a good
faith effort to do so, until January 1, 2009; (8) the new lease on the
Premises was for less than the amount plaintiffs would have received under the
Lease; and (9) plaintiffs’ total damages amounts to $141,441.43. Lawrence challenges Paluha’s declaration,
contending the trial court erred in overruling Lawrence’s nine objections.
We
review the trial court’s evidentiary rulings for an abuse of discretion. (Carnes
v. Superior Court (2005) 126 Cal.App.4th 688, 694 [weight of authority
holds that an appellate court reviews a trial court’s final rulings on
evidentiary objections on a motion for summary judgment for an abuse of
discretion].) This standard is guided by
various principles set out in the case law:
“‘[T]he appropriate test of abuse of discretion is whether or not the
trial court exceeded the bounds of reason, all of the circumstances before it
being considered.’ . . .
Other cases suggest that a court abuses its discretion only when its
ruling is arbitrary, whimsical, or capricious.
[Citations.]” (
(2009) 176 Cal.App.4th 1210, 1218.) As
the appellant and proponent of his evidentiary objections, Lawrence has the
burden of demonstrating reversible error.
(Ballard v. Uribe (1986) 41
Cal.3d 564, 574.)
Although
the trial court overruled each of Lawrence’s evidentiary objections to Paluha’s
declaration, we conclude that some of the objections had merit and should have
been sustained. Specifically, to the
extent the declaration states that JJ Sage Place was unable to relet the
Premises, despite a good faith effort to do so, until January 1, 2009, we
note that Paluha offers no evidence, other than his mere claim, of what those
efforts consisted. There are no copies
of advertisements, notices, or signs showing the Premises available to rent,
attached to his declaration. Nor does
Paluha claim that he personally caused such advertisements, notices or signs to
be posted. Rather, he generically claims
“JJ Sage Place displayed a ‘for rent’ sign at the Premises and advertised both
online and in the Desert Sun newspaper.
JJ Sage Place held multiple meetings and phone
calls . . . . JJ
Sage Place also responded to online inquiries of potential
tenants . . . . JJ
Sage Place held meetings with other retailers . . . . Finally, JJ Sage Place also spoke with other
local business people to generate interest in the Premises.” Paluha is not declaring that he exerted these
efforts to relet the Premises. Rather,
he generically claims that JJ Sage Place took such actions. JJ Sage Place is merely a fictitious business
name under which Paluha and Barraco were conducting business. However, to the extent the actions were not
taken by Paluha himself, his statements are based on what someone else told him
JJ Sage Place had done. As such, the
statements were based on hearsay and thus inadmissible. Further, Lawrence claimed that he “proposed
to plaintiffs, [that he] be allowed to convert the [P]remises into a Medical
Suite of offices and that [he] would open up a Medical Practice on the
[P]remises.” However, they denied his
request. Plaintiffs’ only response is
via Paluha’s supplemental declaration, which denies that Lawrence ever made
such offer.
Moreover,
regarding Paluha’s claim that the Premises were relet for a lower monthly
rental fee, again, we note there is no copy of such lease attached to Paluha’s
declaration. Again, Paluha’s statement
is based on hearsay and is thus inadmissible.
Paluha’s statements regarding plaintiffs’ attempt to relet the Premises,
and their subsequent damages, are at best equivocal, and the trial court abused
its discretion in overruling Lawrence’s Objection Numbers 7, 8, and 9.
Finally,
Lawrence claims that any performance due on the part of him and Sarika under
the Lease was excused because plaintiffs leased adjoining space to a pet store,
which hurt Sarika’s furrier business.
However, Lawrence failed to offer any letters or notices that were sent
to plaintiffs regarding animal lovers harassing the Furrari customers and
causing the store to lose business.
Further, assuming the customers of Furrari were harassed, Lawrence has
failed to offer any statement from any customer regarding such harassment. His statements amount to nothing more than
hearsay. Nonetheless, since we have
found sufficient reason, as stated above, to reverse the judgment on the
grounds that Lawrence has established the existence of a triable issue of fact,
this issue may be more fully developed during discovery.
IV. DISPOSITION
The
judgment is reversed. Lawrence shall
recover his costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MILLER
J.
name="_ftn1" title=""> [1] We note that only Lawrence has appealed, not
Sarika.
name="_ftn2" title=""> [2] According to Lawrence’s declaration filed
April 19, 2011, he is now divorced from Sarika, although he was married to
her at the time they entered into the Lease.
