Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-02-405581
Kline, P.J.
INTRODUCTION
Defendants Donald Mann and James A. Hennefer appeal from a judgment of the San Francisco Superior Court entered in favor of plaintiff APS West Coast, Inc. (APS) in its action for breach of contract involving defendants’ personal guaranty of payment and performance on a commercial lease.
Defendants contend the trial court erred in concluding (1) that the judgment in a 1993 unlawful detainer action provided for the conditional forfeiture and termination of the lease defendants had guaranteed; (2) that payment by the tenant of the sum needed to reinstate the lease was insufficient, by itself, to trigger reinstatement where the payment was not timely; and (3) that the landlord by its conduct could and did waive the provision in the judgment that the payment must be received by a certain date. Defendants also challenge the court’s finding that they were aware the lease had been reinstated in 1993.
FACTS AND PROCEDURAL BACKGROUND
Our factual statement is taken in large part from the court’s statement of decision. Most of the essential facts are undisputed. Where facts are disputed, we state the facts in the manner most favorable to the judgment, resolving conflicts and drawing inferences in favor of APS, the prevailing party. (Principal Mutual Life Ins. Co v. Vars, Pave, McCord & Freedman (1998) 65 Cal. App.4th 1469, 1475, fn. 1.)
Lease and guaranty
Donald F. Curtis, doing business as Curtis Marine, leased a commercial property on East H Street in Benicia, California from Benicia Industries, Inc. (Benicia), the predecessor in interest of plaintiff APS. Curtis and Benicia executed a written lease dated November 17, 1988 (the Lease). The term of the Lease was five years, expiring on December 31, 1993, unless sooner terminated. On or about December 12, 1988, Curtis and defendants Hennefer and Mann executed a “Guaranty of Lease,” protecting the landlord from the default of the tenant under the Lease. The guaranty provided that it was “attached to and made part of” the Lease. It is undisputed that Benicia would never have entered into the Lease with Curtis absent the guaranty from Mann and Hennefer, who wished to store personal property (such as boats, cars and boxes) on the leased premises. (Mann’s stored items occupied approximately 10 to 15 percent of the total area of the 12,000-square-foot floor space of the building, while Hennefer’s usage varied, depending upon which boats he had there in a given month.)
The 1993 unlawful detainer, settlement and judgment
Curtis was consistently late with his Lease payments. On July 30, 1993, Benicia filed an unlawful detainer action against Curtis regarding the leased premises. Benicia was represented by attorney Thomas R. Cave. Curtis was represented by Hennefer. Hennefer and Cave negotiated a settlement of the unlawful detainer and on September 1, 1993, a “Stipulation for Entry of Judgment” was signed by the two attorneys on behalf of their clients.
On September 8, 1993, a judgment was entered in the 1993 unlawful detainer action (Judgment or 1993 Judgment). The Judgment precisely tracked the terms of the Stipulation for Entry of Judgment. The Judgment awarded plaintiff “restitution and possession” of the premises and provided that the Lease “is declared forfeited and terminated,” and that the clerk “shall immediately issue a writ of possession . . . .” The Judgment awarded plaintiff past due rents and damages, plus attorney fees and costs for a total judgment of $4,984.28. However, the judgment also provided: “If Defendant [Curtis] pays the sum of $6,396.56, representing the judgment amount herein plus one months rental value which would be applied to September 1993 rents, by cashier’s check or money order, not later than midnight, September 30, 1993, Defendant[’]s tenancy shall be reinstated and Plaintiff shall dismiss this action. Such payment must be actually received by Plaintiff’s property manager, Dennis Henry, on or before the payments due date.”
On September 14, 1993, a writ of possession was issued by the municipal court, based on the Judgment. Curtis did not pay the sum of $6,396.56 by cashier’s check or money order by midnight, September 30, 1993. On October 4, 1993, the sheriff came to the premises and personally served Curtis a “Notice to Vacate,” pursuant to the writ of possession, but did not take possession of the premises. Sometime between October 4 and October 8, 1993, the payment of $6,396.56 from Curtis was received and accepted by Henry on behalf of Benicia. Curtis remained in possession of the premises after acceptance of the payment for the next eight years, until August 2001.
Mann and Hennefer had actual knowledge that Curtis was allowed to remain in possession and that Curtis maintained a landlord-tenant relationship with Benicia. The landlord-tenant relationship continued as before, and all parties, including guarantors Mann and Hennefer, behaved as if the Lease were still in place after the 1993 Judgment, believing that the Lease had been reinstated. The guarantors continued to store personal property at the leased premises until termination of the tenancy in 2001.
Neither Benicia nor its successor APS sought to vacate the Judgment in the 1993 unlawful detainer action or to dismiss that action. However, on April 4, 1994, at Curtis’s request in connection with the refinancing of his home, Benicia filed an “Acknowledgement of Satisfaction of Judgment” in the 1993 unlawful detainer action. The acknowledgement stated that the “judgment creditor has accepted payment or performance other than that specified in the judgment in full satisfaction of the judgment.”
The 2001 unlawful detainer
On May 3, 2001, APS filed a second unlawful detainer against Curtis regarding the Lease. (APS West Coast, Inc. vs. Curtis Marine et al., Super. Ct. Solano County, 2001, No. 077285.) In that action, Hennefer again represented Curtis, taking the position that the 1988 Lease was reinstated in 1993. In the 2001 unlawful detainer action, the court determined that the Lease remained in effect until August 2001. The court’s judgment in the 2001 unlawful detainer was filed on August 3, 2001, and terminated Curtis’s tenancy under the Lease. The court awarded APS the sum of $10,072.30 in damages and $74,087.24 in attorney’s fees and costs against Curtis.
Specifically, in the 2001 unlawful detainer, Hennefer, on behalf of Curtis, argued that a 30-day notice was insufficient and that the six-month notice requirement applicable during the five-year lease term remained in effect following the expiration of the initial five-year term. APS argued that only 30 days’ notice was required after expiration of the lease term under the holdover provision of the Lease. The trial court in that action observed that the Lease itself provided that after the five-year term, “any consensual holding over would be construed as a tenancy from month to month ‘on the terms and conditions herein specified so far as applicable.’ ” The court ruled that “a month-to-month tenancy being expressly established by Article 20.01 of the lease (rather than by operation of law), it is more reasonable to conclude the parties did not intend a six-month notice requirement be included.”
The present action on the guaranty
The award against Curtis in the 2001 unlawful detainer action remained unpaid and APS filed the instant action for breach of the guaranty seeking to recover from defendants Mann and Hennefer as guarantors of the Lease.
On April 25, 2003, the court granted summary adjudication in favor of APS as to several of defendants’ affirmative defenses, leaving for trial affirmative defenses of exoneration and forfeiture based on triable issues, including whether the Lease was forfeited as a result of the stipulated Judgment entered in 1993, whether Curtis met the conditions for payment set forth in the stipulation that may have required Benicia to vacate the Judgment, and the nature of Curtis’s occupation of the premises after September 30, 1993.
Following a bench trial, the court found in favor of APS. In its statement of decision, the court concluded as follows: The Judgment filed on September 8, 1993 “by its terms provided for the conditional forfeiture and termination of the Lease” and “was a self-executing judgment pursuant to the express, conditional terms of the Judgment in that, once the back rent was paid, the Lease was reinstated and the tenancy was resumed.” The parties intended the terms “tenancy” and “lease” to be used interchangeably and the court construed the term “tenancy” in the reinstatement provision of the 1993 stipulated Judgment “to mean ‘the Lease.’ ” The lateness of the $6,395.56 payment by Curtis was de minimis and was waived by the landlord “who fully accepted the payment, thereby the Lease was automatically reinstated under the Stipulated Judgment; the parties thereafter continued to operate under the Lease and conducted themselves accordingly. [¶] “The guaranty is part and parcel of the Lease, and once the Lease was reinstated, the guaranty . . . was also reinstated.” The court also concluded there was no material “ ‘alteration’ of the Lease” as the term is construed under Civil Code section 2819, “[t]he guarantors’ obligation to the landlord was not materially altered by the conditional forfeiture of the 1993 ‘Judgment’ and after reinstatement, the parties were placed back into the identical position they occupied prior to the ‘Judgment.’ ” The “actual consent of the guarantors to the reinstatement of the Lease was not necessary since the guarantors were aware that the Lease was reinstated in 1993 and the guaranty was part of the Lease . . . .” Moreover, the guarantors’ consent to the reinstatement of the Lease was “implied” in that they “continued to store their personal property on the premises and to otherwise act as if the Lease remained in effect” at all times until termination of the tenancy in 2001.
Defendants have expressly disavowed any contention on this appeal that the actions of Benicia materially altered Curtis’s obligations under the Lease so as to exonerate the guaranty pursuant to Civil Code section 2819.
Judgment was entered on June 3, 2004, in favor of APS and against Mann and Hennefer, jointly and severally, in the sum of $84,159.54, plus interest. Mann and Hennefer filed a timely notice of appeal (No. A107457). On November 18, 2004, the court awarded APS its attorney fees and costs in the total sum of $392,920.47. An amended judgment was filed, and a timely appeal followed (No. A109115).
According to the amended judgment in favor of APS, as of December 2, 2004, the sum owed under the judgment (with interest) was $108,706.06, plus interest of 10 percent per annum until fully satisfied, plus attorney fees and costs of $392,920.47, subject to interest at the rate of 10 percent per annum from June 3, 2004, until fully paid.
On March 9, 2005, we consolidated the appeals upon stipulation of the parties. Hennefer filed a notice of commencement of bankruptcy on March 21, 2005. In July 2006, the bankruptcy court ordered the automatic stay lifted so this appeal could move forward. Accordingly, on September 11, 2006, we entered an order restoring the appeal to active status.
On February 16, 2007, we granted the application of the Rental Housing Association of Northern Alameda County (RHANAC) to file an amicus curiae brief in support of defendants.
DISCUSSION
Defendants contend on appeal that the 1993 Judgment did not provide for the “conditional” forfeiture and termination of the Lease, as found by the trial court, but in actual effect declared the Lease forfeited and terminated on the day of entry of the Judgment, September 8, 1993. The settlement reached by the parties and the 1993 Judgment entered in accordance therewith allowed Curtis to exercise an option to reinstate the Lease upon his complying with the terms of the Judgment. Defendants argue that because Curtis did not strictly comply with the exact terms of the Judgment for reinstatement of the Lease, the forfeiture and termination of the Lease remained in place. Consequently, defendants’ guaranty of the Lease was also terminated and defendants were released from any and all obligations on the guaranty.
Critical to defendants’ argument is their claim that mere payment of the $6,396.56 by Curtis was insufficient to reinstate the Lease, absent compliance with the specified conditions for time of payment and the actual receipt of payment by Benicia by September 30, 1993. They contend Benicia could not and did not “waive” the late payment, because Benicia was unable to “waive” or even modify portions of the 1993 Judgment once the writ of possession had issued, except through court involvement. Defendants acknowledge that Benicia opted not to enforce its rights under the judgment to evict Curtis, but rather allowed him to remain in possession. However, defendants maintain that in so doing, Curtis and Benicia created a new landlord-tenant arrangement established by conduct, on terms comparable to those that had been operative under the Lease, but did not reinstate the original Lease and so did not reinstate the guaranty that was part of that Lease.
The trial court determined that the 1993 Judgment “by its terms provided for the conditional forfeiture and termination of the Lease” and “was a self-executing judgment pursuant to the express, conditional terms of the Judgment in that, once the back rent was paid, the Lease was reinstated and the tenancy was resumed.”
Defendants spend considerable effort in arguing that a judgment is not a contract for all purposes. We agree. (See e.g., California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 663-664 [“stipulated judgments bear the earmarks both of judgments entered after litigation and contracts derived through mutual agreement” resulting in different treatment for different purposes].) However, it is well recognized that “[t]he same rules of interpretation apply in ascertaining the meaning of a judgment as in ascertaining the meaning of any other writing. [Citations.] It has been stated that: ‘The rule is well settled that a consent judgment, being regarded as a contract between the parties, must be construed as any other contract.’ [Citations.]” (Yarus v. Yarus (1960) 178 Cal.App.2d 190, 197; see also Becker v. Becker (1950) 36 Cal.2d 324, 326.) “[W]hile a consent judgment is contractual in its nature and should be construed as though it were a contract, it cannot be vacated merely because of a subsequent failure to perform a condition on which the consent was based, and unless it is vacated or set aside in the manner provided by law it stands as a final disposition of the rights of the parties thereto.” (Stevens v. Stevens (1968) 268 Cal.App.2d 426, 436.) Here, the pertinent question is not whether the 1993 Judgment was vacated, but whether it operated to reinstate the Lease upon Benicia’s acceptance of Curtis’s payment.
The Judgment refers to reinstatement of Curtis’s “tenancy” rather than to reinstatement of the “Lease.” However, defendants expressly “accept the superior court’s ruling . . . that the parties to the stipulated Judgment intended the terms to be used interchangeably.” Defendants also concede that if the Lease was reinstated, so was the guaranty.
Defendants dispute the court’s characterization of the Judgment as “self-executing” and as providing for “conditional forfeiture and termination of the Lease.” Instead, they contend that, unlike a contract, once entered the Judgment could not be modified or altered and Benicia could not waive the condition of timely payment.
We agree with the trial court’s characterization of the 1993 Judgment as “conditional.” By its terms, the judgment was subject to a condition subsequent by which Curtis could fully reinstate the Lease. A “conditional” judgment “is usually interlocutory, so that the court renders a final judgment after the conditions are performed or the time for performance has elapsed. It may, however, be final, if compliance with the conditions or rights on default is a matter of enforcement or if, so far as the condition is concerned, the judgment is self-executing and requires no further judicial act [citation].” (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 23, pp. 558-559, citing Taper v. Long Beach (1982) 129 Cal. App.3d 590, 605; see People v. Sue Sarkis Bail Bonds (1986) 182 Cal. App.3d 650, 653.) An unlawful detainer judgment awarding the landlord possession of the premises pursuant to Code of Civil Procedure section 1174, subdivision (a), is generally “not self-executing, however, and the landlord must obtain a writ of possession from the court to have a tenant who does not voluntarily vacate the premises removed by a sheriff or marshall. [Citation.]” (2 Cal. Landlord-Tenant Practice (Cont. Ed. Bar 2d ed. 2007) § 13.64, p. 1312.) However, here, the stipulated Judgment itself provided that the clerk of the court should immediately issue a writ of possession, rendering that issuance a mere ministerial act. (See People v. Sue Sarkis Bail Bonds, at p. 653.)
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
Although defendants contend the 1993 Judgment not entirely self-executing, they concede that the provisions of the Judgment effecting the immediate forfeiture and termination of the Lease, ordering the clerk to immediately issue a writ of possession, and awarding Benicia damages and costs of $4,984.28, were self-executing because they required no further judicial act. Defendants also agree that the provision regarding reinstatement of the Lease upon timely receipt of payment of the sum of $6,396.56 in accordance with the Judgment’s terms was self-executing, regardless of whether Curtis met the specified conditions. If he met the condition, the Lease was reinstated. If he did not, the Lease continued to be forfeited and terminated. Most importantly, defendants concede that the Lease would be reinstated, together with their guaranty, upon timely receipt by Henry of payment under the terms of the Judgment.
The only provision of the 1993 Judgment that defendants maintain was not self-executing was that requiring that Benicia “shall dismiss this action” upon timely receipt of the $6,396.56 payment and then, only if Curtis met the specified conditions. Defendants argue that if Curtis met the conditions, that provision would not be self-executing as it would require Benicia to seek further judicial action in causing the Judgment to be removed from the books. According to defendants, Benicia would be required to move for a new trial pursuant to section 662 and then, after the motion had been granted, to request a voluntary dismissal of the 1993 unlawful detainer action pursuant to section 581, subdivision (e). On the other hand, they acknowledge that if Curtis failed to meet the judgment’s conditions, the Judgment was self-executing as no further judicial action would be required and Benicia would have no further obligation to seek removal of the Judgment.
Defendants argue that the court’s conclusion that Benicia waived the condition of timely payment was belied by the fact that Benicia took no steps after accepting the payment to dismiss the unlawful detainer judgment. Defendants contend Benicia’s inaction supports their claim that Benicia did not believe it was operating under the old Lease, but under a new landlord-tenant agreement. Issues of intent and waiver are quintessentially questions of fact for resolution by the trial court. (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319; St. Agnes Medical Center v. Pacifi Care of California (2003) 31 Cal.4th 1187, 1196; Old Republic Ins. Co. v. FSR Brokerage, Inc. (2000) 80 Cal. App.4th 666, 679.) Substantial evidence supports the court’s findings that Benicia intended to waive the condition of timely receipt of payment and did so. Benicia property manager Henry testified that, following receipt of the $6,396.56 from Curtis, Benicia believed the Lease had been reinstated. In communications between Curtis and Benicia thereafter, the term “Lease” meant to refer to the reinstated Lease. If Benicia could waive the provision, it clearly did so. Consequently, the question of waiver in this case boils down to whether as a matter of law a landlord in the position of Benicia can waive the timely performance of the payment provision of the Judgment.
Defendants contend that the forfeiture and termination of the Lease was not “conditional,” but had already occurred on September 8th, when Judgment was entered, and the Lease had been forfeited and terminated upon entry of the 1993 Judgment so that equitable considerations such as “waiver” could not apply to prevent strict enforcement according to its terms. However, it appears to us that the parties chose to structure their settlement of the 1993 unlawful detainer action so as to parallel section 1179, providing relief from forfeiture in cases of hardship under the unlawful detainer statutes. Section 1179 provides that the “court may relieve a tenant against a forfeiture of a lease or rental agreement . . . whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship.” (Italics added.) A section 1179 application may be made “at any time prior to restoration of the premises to the landlord” and is conditioned upon “full payment of rent due . . . .” (§ 1179.) Although the writ of possession had issued, possession of the premises had not in fact been restored to the landlord at the time Benicia accepted Curtis’s belated payment of the sum specified by the Judgment to reinstate the Lease.
Section 1179 states: “The court may relieve a tenant against a forfeiture of a lease or rental agreement, whether written or oral, and whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion. [¶] An application for relief against forfeiture may be made at any time prior to restoration of the premises to the landlord. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served at least five days prior to the hearing on the plaintiff in the judgment, who may appear and contest the application. Alternatively, a person appearing without an attorney may make the application orally, if the plaintiff either is present and has an opportunity to contest the application, or has been given ex parte notice of the hearing and the purpose of the oral application. In no case shall the application or motion be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.”
By stipulating to the 1993 Judgment, the parties avoided not only the need for a trial of the unlawful detainer action, but also avoided proceedings in connection with the tenant’s likely filing of a petition for relief from forfeiture pursuant to section 1179.
“Section 1179 is a specific statutory procedure that vests a trial court with the authority to affect a judgment after its entry. The provision applies solely in unlawful detainer actions. [Citation.] It vests the court with discretion to relieve a tenant from forfeiture and restore him or her to his or her former estate or tenancy. So long as the court imposes the statutory conditions, the full payment of rent due or full performance of conditions or covenants so far as practicable, the court has broad equitable discretion to determine the conditions upon which relief will be granted. [Citation.]” (Gill Petrolium, Inc. v. Hayer (2006) 137 Cal. App.4th 826, 832-833, fn. omitted (Gill).) In Gill, the appellate court held that section 1179 gave the trial court authority to order the tenants to pay only the contract amount of rent, rather than the per diem damages set forth in the unlawful detainer judgment in granting them relief from forfeiture. (Id. at p. 833.)
Had the parties here proceeded under section 1179, instead of effectively paralleling its process in their stipulated Judgment, there is little doubt that the court could have exercised its equitable discretion to forgive Curtis’s late payment as deminimis, particularly as the landlord had accepted the payment and Benicia, Curtis and defendants had continued to operate under the 1988 Lease with the understanding that it had been reinstated.
Defendants argue that litigants may not modify the terms of a judgment—even a stipulated judgment—by outside-of-court conduct. They cite cases in other contexts for the general proposition that once a judgment has been entered, it finally establishes the rights of the parties and may be changed only through certain limited procedures, such as motions for new trial, motions to vacate the judgment, or in the case of unlawful detainer actions, a section 1179 motion. (E.g., APRI Ins. Co. v. Superior Court (1999) 76 Cal. App.4th 176, 181; In re Marriage of Carletti (1975) 53 Cal. App.3d 989, 993-994.)
The cases upon which defendants rely do not arise in the unlawful detainer context. APRI Ins. Co. v. Superior Court, supra, 76 Cal. App.4th 176, arose in the context of an insurance dispute. The issue there was whether a court that had quashed service of process and dismissed the defendant from the action had jurisdiction to reconsider its ruling when the motion for reconsideration was made before entry of judgment, but the court’s grant of the motion to reconsider came after judgment had been entered. The appellate court held that the trial court lacked jurisdiction to grant a motion for reconsideration after entry of judgment. (Id. at pp. 178, 182.) The court identified the issue as involving the propriety of a post judgment attack. (Id. at p. 184.) In so doing, it refused to consider the motion for reconsideration to be a motion to vacate the judgment. (Id. at pp. 182-184.) In re Marriage of Carletti, supra, 53 Cal. App.3d 989, arose in the context of a motion to set aside a stipulated judgment determining support on grounds of mutual mistake in the valuation of community property. The appellate court held that such a mutual mistake in valuation, although sufficient to set aside a contract, was not sufficient to set aside a final judgment of dissolution of marriage, absent a showing of extrinsic fraud or mistake. (Id. at p. 993.)
In their reply brief, defendants cite Justice Traynor’s concurring opinion in Becker v. Becker, supra, 36 Cal.2d at pages 328-329, for the proposition that “[a] judgment is not less a judgment when it is likened to a contract for certain purposes [citations], or included within the meaning of the term ‘Contract’ in certain statutes [citations]. Its interpretation, effect, and enforcement are still subject to the rules of law governing judgments.” However, the case actually supports plaintiff in that the majority use a contract analogy to support the proposition that parties to a stipulated judgment may seek to enforce the judgment within a reasonable time after that set forth in the judgment for enforcement. In Becker v. Becker an interlocutory divorce decree, incorporated into a final decree, provided that husband should pay to wife a specified sum of money representing one-half the value of the community property within two years of entry. Thereupon wife was to execute a conveyance of the property to husband. (Id. at pp. 324-325.) Neither party attempted to comply with or enforce the terms of the judgment until nine years later, when husband sought to enforce the terms of the judgment. The property value had increased greatly in the interim. (Id. at p. 325.) The trial court purported to modify the terms of the interlocutory judgment to provide that the husband pay one-half the proceeds of sale after various deductions. (Ibid.) The Supreme Court concluded that the court had erred in modifying the decree, holding that a divorce decree adjudicating the property rights of the parties is not subject to modification. (Id. at p. 328.) However, the court did not strictly limit the time within which the parties could seek to enforce the terms of the judgment to the two years set forth in the judgment. Rather, reasoning that an interlocutory judgment of divorce is a contract between the parties insofar as it determines the rights of the parties (id. at p. 326), the majority stated: “The terms of the decree should have been complied with during the two-year period, but were not. Likening it to a contract in which we assume that time was not of the essence, performance should have been within a reasonable time thereafter.” (Id. at p. 326, italics added.) Hence, the majority in Becker v. Becker applied principles applicable to contracts to determine that performance should have been within a reasonable time after expiration of the time set forth therein. The Supreme Court then concluded that the nine-year lapse in seeking enforcement was not reasonable and concluded that the result was the same as if the parties had no agreement. The divorce decree adjudicating the property rights of the parties was not subject to modification regardless of whether it was based on the parties’ agreement. (Id. at p. 328.) Consequently, the provisions of the decree purporting to make a division were of no force and effect, and the parties held title as tenants in common. A separate action was required in which the spouses were to prove the property to which they were entitled. (Ibid.) Concurring, Justice Traynor agreed that the trial court could not modify the judgment. It must either issue the writ of execution enforcing the judgment or deny it, but could not modify the judgment. (Id. at pp. 329-331.) Justice Traynor would have reached the same result as the majority by a different route, relying upon statutes governing the enforcement of judgments that allowed execution on a judgment as a matter of right for five years from the date of entry and thereafter within the sound discretion of the trial court. “The majority . . . holds by analogy to contract law that the judgment may be enforced only for two years ‘plus a reasonable time’ thereafter. What is a reasonable time will depend on the circumstances of each case. It may be less than five years after performance becomes due. The rule of the majority opinion is directly in conflict with the statutory provision that the judgment is enforceable as a matter of right for a period of five years from the date of its entry, excluding any time during which enforcement is stayed or postponed by order of the court. The latter rule must govern, since it is the rule controlling the enforcement of judgments.” (Id. at p. 330 (conc. opn. of Traynor, J.).)
Here the stipulated 1993 Judgment effectively adopted the process outlined in section 1179 for reinstating the Lease. The out-of-court conduct of Curtis’s payment of the sums set forth in the Judgment for reinstating the Lease was expressly anticipated in the Judgment necessarily to occur after entry of the Judgment. Moreover, neither the court nor the parties modified the judgment. Rather, Benicia waived the strict time provision contained in the Judgment by accepting the late Lease renewal payment and all parties continued to operate under the Lease. Defendants fail to cite a single case that precludes the waiver of a time condition in a self-executing judgment and they ignore the substantive interactions between the parties—Curtis’s payment of the reinstatement amount of $6,396.56 rather than the lesser judgment amount, Benicia’s acceptance of that amount, and the continuing conduct of their relations as under the full force and effect of the Lease thereafter and for the next eight years.
Although we conclude the court did not modify the Judgment here, cases recognize the equitable power of the court to change non substantive provisions of a judgment (including the power to extend the time for performance of an act anticipated in the judgment), particularly in equitable actions pertaining to real property, such as foreclosure, specific performance of land sales contracts and quiet title actions. (E.g., Barnes v. Chamberlain (1983) 147 Cal. App.3d 762, 767-769 (Barnes), and cases cited therein.) In Barnes, buyers sued sellers for specific performance of a real estate contract. The trial court judgment provided that plaintiff buyers were entitled to conveyance of the property “ ‘on the condition that within ninety (90) days of the entry of judgment herein they cause to be delivered to [seller] through escrow the sum of $27,500.’ ” (Id. at p. 765.) The seller appealed and the buyers did not seek a stay of execution of the judgment pending appeal. Buyers also took no action to comply within the 90 days set forth in the judgment. (Id. at pp. 765-766.) Following affirmance, the trial court granted an extension of time to allow for the required performance by the buyers, although it had not expressly reserved jurisdiction to supervise performance. (Id. at pp. 765, 767-768.) On seller’s appeal, the appellate court “confirm[ed] the inherent power of a court of equity to make its judgment effective by additional orders supervising the details of the decreed performance.” (Id. at p. 769.) “This was a case in equity involving the specific performance of a land contract. An equity court has inherent power to make its decree effective by additional orders affecting the details of performance, irrespective of reservation of power in the decree. [Citations.]” (Id. at p. 767.)
Defendants characterize the procedure set forth in the 1993 Judgment for reinstating the Lease as an “option” and rely upon Simons v. Young (1979) 93 Cal. App.3d 170 (Simons), and Bekins Moving & Storage Co. v. Prudential Ins. Co. (1985) 176 Cal. App.3d 245 (Bekins), for the proposition that the failure to exercise an option to obtain or renew lease rights cannot be deemed to constitute a “forfeiture” of the lease such that the court could grant relief from the forfeiture. Simons was an action by the lessee for specific performance of an option to renew a lease. In Simons the lessee did not timely exercise his option to renew the lease. The trial court, finding the lessee would suffer extreme hardship if his right to renew the lease were forfeited and that the lessors suffered no damage as a result of the late notice to renew, granted relief from forfeiture and specific performance of the lessor’s obligation to extend the lease. (Id. at pp. 176-178.) The appellate court reversed, holding that neither Civil Code section 3275, which provides relief from forfeiture, nor the court’s general equitable powers to grant relief from forfeiture, applied to the failure of the lessee optionee to exercise the option to renew the lease within the agreed time specified in the lease. The court concluded: “(1) that Civil Code section 3275 is inapplicable; (2) that, while a court may grant relief on traditional grounds for equitable intervention such as fraud, accident or mistake, it may not grant equitable relief to extend an option period beyond that agreed to by the parties when, as here, the failure to timely exercise the option is due entirely to the inadvertence or neglect of the optionee to which the option or in no way contributed.” (Simons, at pp. 181-182.)
Bekins was an action for declaratory relief by the lessee where the landlord tripled the rent after the lessee’s failure to timely exercise its option and expiration of the lease. Bekins followed Simons in holding that “[i]n order for there to be a ‘forfeiture’ there must be some right or vested interest involved. An option is merely an offer.” (Bekins, supra, 176 Cal. App.3d at p. 253.)
These option cases are easily distinguishable. First, neither was an unlawful detainer action. More importantly, the appellate court in each case expressly stated that the case was not one involving issues of waiver by the landlord of the timely exercise of the option. The Simons court specifically acknowledged: “There is no question but that upon sufficient evidence in an appropriate case a lessor may be found to have waived timely notice of his lessee’s election to exercise an option to renew or be estopped to assert such a requirement embodied within a lease. However, this is not such a case. In the first place, the court did not purport to find any such waiver or estoppel. Secondly, there is no substantial evidence of any waiver by lessors of the right to 90 days’ notice of lessee’s election to exercise the option to renew the lease . . . .” (Simons, supra, 93 Cal. App.3d at pp. 178-179; see Bekins, supra, 176 Cal. App.3d at p. 251 [“There is absolutely no showing in the instant case that [landlord], by its conduct, waived the requirement of written notice. [Citation.]”])
The same cannot be said here where substantial evidence supports the court’s finding that Benicia waived the provision regarding the date for receipt of the reinstating payment.
Notice
Defendants challenge the court’s conclusion of law (h), that “[b]ased on the facts of this case, actual consent of the guarantors to the reinstatement of the Lease was not necessary since the guarantors were aware that the Lease was reinstated in 1993 and the guaranty was part of the Lease, no separate consent to the reinstatement by the guarantors was required.” They assert that neither Hennefer nor Mann was aware of the relevant facts, which defendants identify as the fact that Curtis’s payment was untimely and that the 1993 Judgment remained in place and had not been vacated by Benicia. However, the court need not have believed Hennefer’s self-serving testimony that he was unaware until 2001 that Curtis’s payment was not timely and that had he known, he would have notified Benicia that he was can celling the guaranty. Moreover, defendants do not dispute that they believed the Lease had been reinstated and acted accordingly. Furthermore, substantial evidence supports the court’s conclusion (i), that “the guarantors implied their consent to the reinstatement of the Lease in that at all times until the termination of the tenancy at the Premises in 2001, they continued to store their personal property in the Premises and to otherwise act as if the Lease remained in effect.” Defendants presented no evidence that either of them acted to cancel the guaranty at any time during the eight years following reinstatement of the Lease, even though the initial five-year term of the Lease expired in December 1993, after Benicia accepted the reinstatement payment, and defendants could have notified the landlord thereafter that they were withdrawing the guaranty. Such action would likely have resulted in the landlord’s cancellation of the Lease and Curtis’s tenancy, requiring defendants to remove their personal property from the premises. Substantial evidence supports the court’s finding that defendants were aware the Lease had been reinstated in 1993.
Other issues raised by plaintiff
Plaintiff contends that Benicia was legally obligated to accept the late payment under Civil Code section 3275 and equitable principles relating to avoiding a forfeiture. Our determination that the trial court correctly found Benicia could and actually did waive the lateness of the payment makes it unnecessary to address this claim.
Civil Code section 3275 provides: “Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.”
Plaintiff also argues that defendants are judicially and equitably estopped from asserting that the Lease was not reinstated under the 1993 Judgment by the court’s ruling on the validity of the Lease in the 2001 unlawful detainer action against Curtis, despite the fact that defendants were not parties to the action. Plaintiff APS asserts the estoppel on the grounds that Hennefer represented Curtis in the 2001 action, that Hennefer took a position in that action contrary to that he asserts here, and that defendants were in privity with Curtis in that action insofar as defendants were guarantors of the Lease. We find these contentions doubtful at best, but our affirmance of the judgment on other grounds makes it unnecessary to address these arguments.
Amicus RHANAC’s argument
RHANAC has filed an amicus brief in support of defendant guarantors Hennefer and Mann. However, RHANAC seeks to expand the issues beyond those the parties have raised in this court and adopts positions that defendants have disavowed.
RHANAC argues that the terms “lease” and “tenancy” as used in the 1993 Judgment have precise meanings and legal consequences and that the plain meaning of the 1993 Judgment itself was that, upon complying with the terms of the Judgment, Curtis could reinstate his tenancy (presumably as a month-to-month tenancy); but that he could not reinstate or renew the original 1988 Lease and the accompanying guaranty. The trial court found, and defendants have conceded on appeal, that the parties to the 1993 Judgment had intended the terms “tenancy” and “Lease” to be used interchangeably.
RHANAC also argues that even if Curtis had renewed or reinstated the Lease, and not just his tenancy, the reinstated lease agreement was not the same as the 1988 Lease and could not bind guarantors of the 1988 Lease, because the guaranty was not a continuing guaranty specifically including lease renewals or reinstatements. This is contrary to the concession made by defendants, who have stated they “accept the superior court’s conclusion that the Guaranty was part and parcel of the Lease, and that, had the Lease been reinstated, the Guaranty would have been reinstated as well.”
“Amic[us] curiae must take the case as they find it.” (California Assn. for Safety Education v. Brown (1994) 30 Cal. App.4th 1264, 1274-1275.) To the extent amicus advances arguments not raised by the parties, we will not consider them. “We adhere to the general rule that issues not raised by the appealing parties but advanced for the first time by amici curiae are not considered. (Mercury Casualty Co. v. Hertz Corp. (1997) 59 Cal. App.4th 414, 425.)” (Consumer Advocacy Group, Inc. v. Exxon Mobile Corp. (2002) 104 Cal. App.4th 438, 446, fn. 10; see Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 9:210.1, p. 9-54.) “[T]his rule is particularly appropriate where the party who stands to benefit from the argument has expressly disavowed any interest in it.” (Mercury Casualty Co. v. Hertz Corp., at p. 425.)
We recognize that we have discretion to consider new issues raised by amici (see Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 709-713 (conc. opn. of Bird, C.J.); Eisenberg et al., Civil Appeals & Writs, supra, ¶ 9:210.1, p. 9-54), and have done so in extraordinary cases. In Lavie v. Procter & Gamble Co. (2003) 105 Cal. App.4th 496, 502-503 (Lavie) we considered and rejected the claim of amicus the Attorney General regarding the appropriate standard to be applied in determining whether advertisements violated the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) (UCL). We pointed out that the Attorney General and district attorneys have an independent role in the enforcement of the false advertising laws and “[t]he possibility that a published decision could contain a misstatement of law as to a fundamental provision of these statutes is a cause of particular concern to the Attorney General.” (Lavie, at p. 503.)
In a policy argument in support of defendants, RHANAC argues that affirming the judgment in this case will wreak havoc on landlord-tenant relationships and unlawful detainer law. According to amicus, “[i]f . . . a final and enforceable judgment forfeiting a lease and awarding possession to a landlord can be challenged by an assertion that the landlord, post-judgment, extra-judicially and without any writing, has waived the forfeiture of the lease and the right to possession by his conduct, the whole statutory scheme in this regard becomes useless. Every tenant could claim, despite a final judgment forfeiting his lease and awarding possession to the landlord, that subsequent actions of the landlord had waived the lease forfeiture and re-established the lease. This could occur every time a tenant remained in possession and the landlord accepted rent after such a final judgment.” We disagree.
It is important to remember that this is not an action between a landlord and tenant. This is an appeal in the landlord’s later action against the guarantors of the Lease. Nor is this an action in which a tenant has asserted that the landlord waived its right to possession by post judgment conduct. Both the landlord and the tenant and defendant guarantors herein believed the Lease and accompanying guaranty had been fully reinstated under the terms of the Judgment upon the landlord’s accepting the reinstatement payment. The post judgment reinstatement of the Lease was anticipated in the Judgment itself and was consistent with the understanding and actions of all parties for eight years after the entry of Judgment. In substance, the effect of the trial court’s ruling here on the landlord-tenant relationship was not significantly different from the court’s granting of relief from forfeiture in an unlawful detainer action pursuant to section 1179 following entry of judgment therein. Amicus and defendants seek a blanket rule prohibiting landlords from waiving minor noncompliance with non substantive conditions running in the landlord’s favor. RHANAC offers no evidence supporting its prediction of dire consequences from our ruling in this factually unique case.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover its costs on appeal.
We concur:, Lambden, J., Richman, J.
Barnes, supra, 147 Cal. App.3d 762, 768, relied in part upon Gibson v. River Farms Co. (1942) 49 Cal.App.2d 278, a quiet title action. Gibson recognized the authority of a court of equity to reserve the right to later extend the time allowed in an interlocutory degree quieting title for a party to perfect its title by complying with a specified payment condition incorporated in the final decree. (Barnes, at pp. 280, 283.) The Gibson court stated: “We are of the opinion the extensions of time for the defendant to perfect its title to land involved in that suit were lawfully authorized as a just prerogative of a court of equity. These orders did not have the effect of changing substantial terms of the interlocutory decree. They merely extended the time for enabling the defendant to follow the procedure prescribed by the decree to secure the title and to apply funds belonging to defendant in satisfaction of delinquent assessments and taxes so as to redeem the land and to save it from forfeiture. The extensions were in the interest of equity which abhors forfeitures. . . . [¶] It is true that the material determinations of an interlocutory decree may constitute a final judgment with respect thereto, which may not ordinarily be modified or changed. But there is a clear distinction between material adjudicated portions of a judgment or decree, and mere procedural matters incident to the determined issues, which are incorporated as the proposed means of fulfilling the judgment, such as the granting of a limited period of time within which payments of alimony, delinquent taxes or deferred purchase money may be made.” (Id. at pp. 283-284.)
Moreover, the standard of review issue was “inherent” in Lavie, and “a rule of decision relying upon [an] incorrect standard could have profound precedential impact on the operation and enforcement of the UCL.” (Lavie, supra, 105 Cal. App.4th at pp. 503-504.) Such considerations do not appear to warrant our abandoning the general rule here, where we have an unusual dispute on a fairly unique set of facts, including a settlement agreement and stipulated judgment drafted by the parties, an amicus landlord organization that does not have a role comparable to that of the Attorney General in cases of this nature and that actually urges a position contrary to that of the plaintiff landlord in this case. Finally, we resolve the matter in a non published opinion of no precedential effect beyond this action.