Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC 07640, Stanley M. Weisberg, Judge.
Law Offices of Benjamin Donel & Associates and Benjamin Donel for Plaintiffs and Appellants.
Jones & Ayotte and Normand A. Ayotte for Defendant and Respondent.
MANELLA, J.
In the underlying action by appellants Hassan and Fatemeh Khanbabapour, doing business as Venus Oriental Rug & Furniture, the trial court granted summary judgment in favor of respondent H.C. Makabe & Sons, LLC (Makabe), on appellants’ claims for breach of a lease, breach of the implied covenant of quiet enjoyment, and negligence. We affirm.
Appellants’ surname is sometimes stated as “Khan Baba Pour” in the record. We use the surname found on the caption of their opening brief.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Makabe owns a shopping center in Tarzana. On December 11, 2004, appellants leased commercial space within the shopping center for a term of five years and two weeks. The tenant on the lease is identified as “Venus Oriental Rug & Furniture.”
Pertinent here are two provisions in the lease. Paragraph 25, which is captioned “Quiet Enjoyment,” states: “Lessor covenants and agrees with Lessee that conditioned upon Lessee’s prompt payment of the rent and the observance and performance of all the terms, covenants, and conditions hereof Lessee’s part to be observed and performed, Lessee may peaceably and quietly enjoy the Premises in accordance with the provisions of this Lease.” (Underlining deleted.) Paragraph 11.7, which is captioned “Exemption of Lessor from Liability,” provides: “Lessee hereby agrees that Lessor shall not be liable for injury to Lessee’s business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of [the] Lessee..., whether such damage or injury is caused by or results from fire, steam, electricity, gas, water, or rain, or from the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the said damage or injury results from conditions arising upon the Premises or upon other portions of the Shopping Center of which the premises are a part, or from other sources or places and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible to Lessee.”
On November 28, 2006, appellants initiated the underlying action against Makabe and Pozi’s Grill, another tenant in Makabe’s shopping center. Their complaint alleged that Makabe and Pozi’s Grill were responsible for water damage to appellants’ merchandise in February and July 2006. The complaint asserted claims for breach of a lease, breach of the covenant of quiet enjoyment, and negligence against Makabe, and a claim for negligence against Pozi’s Grill.
Pozi’s Grill is not a party to this appeal.
Pozi’s Grill cross-complained against Makabe, alleging claims for equitable indemnity, apportionment of comparative negligence, and declaratory relief.
On October 30, 2007, Makabe filed a motion for summary judgment against appellants. Makabe contended that appellants’ claims failed in view of the exemption for lessor liability in the lease, and that appellants lacked adequate evidence to support the claims. On February 28, 2008, the superior court granted summary judgment in Makabe’s favor on appellants’ complaint.
Makabe’s motion also sought summary judgment on the cross-complaint by Pozi’s Grill. Makabe later entered into a settlement with Pozi’s Grill, and withdrew its motion for summary judgment, insofar as it challenged the cross-complaint by Pozi’s Grill.
DISCUSSION
Appellants contend that summary judgment was improperly granted. We disagree.
A. Standard of Review
“A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A grant of summary judgment is reviewed de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.)
Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To carry the initial burden, a defendant may show “that the plaintiff cannot establish at least one element of the cause of action -- for example, that the plaintiff cannot prove element X.” (Id. at p. 853.) Once the defendant carries this substantive burden, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to the plaintiff’s case. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) To determine whether there is a triable issue of fact, we review all the evidence submitted in connection with summary judgment, with the exception of evidence to which objections have been appropriately sustained. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711; Code Civ. Proc., § 437c, subd. (c).)
B. Analysis
The trial court granted summary judgment on two independent grounds, finding (1) that the exemption for lessor liability in the lease barred appellants’ claims, and (2) that appellants lacked evidence that Makabe was responsible for the water damage. Appellants attack each ground. In our view, the trial court ruled correctly on both matters.
1. Exemption for Lessor Liability
Appellants contend that the exemption for lessor liability in the lease does not preclude their claim for breach of the covenant of quiet enjoyment. In assessing this contention, we look first to the allegations in appellants’ complaint, which frame the issues pertinent to a motion for summary judgment. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662 [“‘“[I]t is [the complaint’s] allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citation.]”’”].) Here, the complaint alleges that Makabe breached the covenant of quiet enjoyment “through negligent maintenance and repair of the premises,” which allowed water to leak into appellants’ business, and that appellants “suffered property damage and economic loss from water damage to [their] merchandise.”
Although we independently review the grant of summary judgment, our inquiry is limited to the contentions adequately raised in appellants’ opening brief. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.) Generally, contentions unsupported by argument (with citations to appropriate legal authorities) are forfeited. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 844.) As appellants present no argument that their claims for breach of the lease and for negligence fall outside the scope of the exemption, we do not examine the propriety of summary judgment regarding these claims.
Generally, “[i]n every lease the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. In California this covenant is partially expressed in Civil Code section 1927, which guarantees the tenant against rightful assertion of a paramount title. Beyond the statutory covenant, the landlord is bound to refrain from action which interrupts the tenant’s beneficial enjoyment. [Citations.]” (Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 138.) Thus, the covenant “insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]” (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.) When the landlord breaches the covenant, the tenant ordinarily has a choice of remedies: the tenant may surrender possession of the premises, halt the payment of rent, and seek damages, or alternatively, remain in possession, continue paying rent, and seek injunctive or other appropriate relief. (Id. at pp. 846-847.)
Civil Code section 1927 provides: “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.”
California courts have long held that the tenant to a commercial lease may agree to limit the scope of the covenant. (Kushner v. Home Service Co. (1928) 91 Cal.App. 692, 697-698.) Courts have affirmed lease terms that exempted the landlord from liability arising from conduct by the landlord (id. at pp. 696-698) and neighboring tenants (Conterno v. Brown (1968) 263 Cal.App.2d 135, 135-137), as well as lease terms that limited the tenant’s remedies for breach of the covenant (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 512-513 (Lee)).
The rationale underlying these holdings is explained in Lee. There, the tenant leased office space in a shopping center. (Lee, supra, 28 Cal.App.4th at p. 506.) The lease provided that the tenant was entitled to quiet possession of the premises, “‘subject to all the provisions of [the l]ease.’” (Id. at pp. 511-512.) A separate provision stated: “‘In no event shall Tenant have the right to terminate this Lease as a result of Landlord’s default and Tenant’s remedies shall be limited to damages and/or an injunction.’” (Id. at p. 512, italics deleted.) While the lease was effective, the tenant stopped its rent payments and vacated the premises due to fumes from an adjoining dry cleaning business. (Id. at p. 506.) When the landlord filed a complaint for breach of the lease, the tenant asserted that the landlord, in permitting the adjoining business to operate, had breached the covenant of quiet enjoyment, and that the breach entitled the tenant to surrender the premises and halt its rent payments. (Id. at pp. 506-507.)
In affirming the judgment in the landlord’s favor, the appellate court concluded that the lease limited the tenant’s remedies for a breach of the covenant to damages and injunctive relief. (Lee, supra, 28 Cal.App.4th at p. 513.) On this matter, the appellate court explained that the statute codifying the covenant is among the statutes governed by Civil Code section 3268, which states: “‘Except where it is otherwise declared, the provisions of the foregoing titles of this part, in respect to the rights and obligations of parties to contracts, are subordinate to the intention of the parties, when ascertained in the manner prescribed by the chapter on the interpretation of contracts; and the benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy.’” (Lee, supra, 28 Cal.App.4th at p. 513.) Accordingly, “the covenant of quiet enjoyment can be modified or waived by the tenant in a commercial lease setting.” (Ibid.)
Here, the lease entitled appellants to the quiet enjoyment of their premises “in accordance with the provisions of th[e] Lease,” but expressly exempted Makabe from liability for damage and injury to merchandise “caused by... water,” regardless the water’s source, including “defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause,” and regardless of “whether the cause of [the] damage or injury or the means of repairing the same [was] inaccessible to [appellants].” In view of Lee, the exemption bars appellants’ claim for breach of the covenant of quiet enjoyment.
Appellants suggest that the exemption is invalid because its enforcement “would be against public policy” (Civ. Code, § 3268). We disagree. In Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1062, 1065-1066, the court rejected the contention that enforcement of the exemption at issue would affront public policy, reasoning that “‘“[a] [commercial] lease is a matter of private contract between the lessor and the lessee with which the general public is not concerned.”’” (Quoting Inglis v. Garland (1936) 19 Cal.App.2d Supp. 767, 773.)
Appellants also contend that their claim for breach of the covenant of quiet enjoyment may be framed as one for breach of the “implied warranty of fitness or suitability for commercial purposes,” which appellants argue is akin to, or rooted in, the implied warranty of habitability. Generally, appellants may not challenge summary judgment by raising factually novel legal theories of liability on appeal. (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 498, fn. 9.) As explained below, because appellants’ contention implicates factual questions not raised before the trial court, it cannot defeat summary judgment.
In Green v. Superior Court (1974) 10 Cal.3d 616 (Green), our Supreme Court enunciated the implied warranty of habitability in its current form, which is founded on modern legal decisions that have protected the reasonable expectations of consumers by “impl[ying] a warranty of fitness and merchantability in the case of the sale of goods.” (Id. at p. 626.) Reasoning that “the modern urban tenant is in the same position as any other normal consumer of goods,” and thus “reasonably expect[s] that the product he is purchasing is fit for the purpose for which it is obtained, that is, a living unit,” the court held that leases contain an implied warranty that protects these expectations. (Id. at p. 627.) The warranty is not waivable. (See id. at p. 625, fn. 9; Knight v. Hallsthammar (1981) 29 Cal.3d 46, 53; Civ. Code, § 1953, subd. (a)(5).)
The holding in Green is ordinarily inapplicable to commercial leases. (Muro v. Superior Court (1986) 184 Cal.App.3d 1089, 1096-1097 (Muro).) As the court explained in Muro, “the rationale of the Green decision... is the need to insure safe, adequate housing for modern, urban residential tenants who, like ordinary consumers, are powerless to protect themselves.” (Muro, supra, 184 Cal.App.3d at p. 1096.) However, this consideration is “‘not present in the leasing of nonresidential premises where the tenant is more sophisticated, his bargaining power is more equal to that of the landlord and, in the usual case, the contents of the lease, including the obligation of maintenance, are negotiated between the parties.’” (Id. at p. 1097, quoting 4 Miller & Starr, Cal. Real Estate (1977) § 27:75, pp. 364-365.)
Nonetheless, two courts have suggested that some commercial leases may contain an implied warranty of habitability. In Golden v. Conway (1976) 55 Cal.App.3d 948, 961-962 (Golden), the tenant leased commercial property that also contained residential facilities, namely, a kitchen, bath, and extra room. When a fire occurred on the premises, the landlord sued the tenant, asserting that the tenant’s employee, who lived on the premises, had negligently placed combustible materials near a wall heater. (Id. at p. 952.) After the presentation of evidence at trial, the trial court rejected the tenant’s theory that the landlord was responsible for a latent defect in the wall heater, and directed a verdict in favor of the landlord. (Id. at p. 953.) In reversing the judgment, the appellate court noted in dicta the holding in Green and stated: “The philosophy behind that holding is compelling if the premises are treated as adapted for and actually used as a dwelling, and persuasive if they are considered as merely a small commercial outlet.” (Golden, supra, 55 Cal.App.3d at p. 962.)
In Four Seas Inv. Corp. v. International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 604, 608 (Four Seas), tenants residing in a hotel formed an association, which itself leased space within the hotel. When the hotel’s owner decided to demolish the hotel, the association and its members refused to vacate it and halted their rent payments. (Ibid.) In the owner’s unlawful detainer action against the association, the trial court instructed the jury that it could consider the owner’s breach of the implied warranty of habitability in determining the owner’s damages. (Id. at p. 609.) Although the owner prevailed in the action, it asserted on appeal that the trial court had improperly informed the jury that the association’s lease contained an implied warranty of habitability. (Id. at p. 612.) The appellate court rejected this contention, reasoning that the association’s lease was primarily residential in character, as the association represented tenants. (Id. at p. 613.) Pointing to Golden, the court added: “Moreover, the warranty of habitability could... extend to small commercial operations if the facts warranted, which they do not.” (Four Seas, supra, 81 Cal.App.3d at p. 613.)
Appellants argue that Golden and Four Seas establish “an implied warranty of suitability for commercial purposes” that relies on the rationale underlying the implied warranty of habitability. We disagree. As the discussions of the implied warranty of habitability in those decisions were dicta, neither court held that the warranty applied to a commercial lease. Moreover, assuming that a commercial lease may sometimes contain “an implied warranty of suitability for commercial purposes,” appellants made no showing that the rationale underlying the implied warranty of habitability applied to the facts of this case. In particular, they made no showing that they were “powerless to protect themselves” in negotiating the lease (Muro, supra, 184 Cal.App.3d at p. 1096), and Makabe had no opportunity to address this theory. Appellants may not challenge the grant of summary judgment on the basis of a theory not raised below. (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623.) Summary judgment was thus properly granted on the ground that the exemption for lessor liability barred appellants’ claims.
2. Source of Water
Appellants also challenge the trial court’s determination that they raised no triable issues that Makabe was responsible for the source of the water. As explained below, Makabe shifted the burden on summary judgment to appellants to raise a triable issue regarding the water’s source, which appellants failed to do.
The defendant, in seeking to show that the plaintiff cannot prove his or her claims, need not “conclusively negate” the essential elements of the claims; all that is required is a showing “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at pp. 853-854.) The defendant may carry its initial burden by presenting evidence of “admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) Thus, in Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 576-577, the plaintiffs asserted claims for fraud against a lender arising from its repossession of medical equipment that the plaintiffs had leased. To show that the plaintiffs could not prove their claims, the lender pointed to the plaintiffs’ discovery responses, which merely asserted their belief that the lender had engaged in fraud, and otherwise admitted that the lender had not engaged in misconduct in one portion of the underlying transaction. (Id. at pp. 577-579.) In opposing summary judgment, the plaintiffs submitted declarations reaffirming their belief that the lender had committed fraud. (Id. at p. 579.) The appellate court concluded that the lender’s showing was sufficient to shift the burden to the plaintiffs, who had failed to carry that burden. (Id. at pp. 592-593.)
In seeking summary judgment, Makabe submitted appellants’ responses to its special interrogatories, which asked them to identify the source of the water that allegedly had damaged their merchandise in February and July 2006. In responses dated August 9, 2007, appellants stated: “At this time, plaintiff [sic] believes that the source of the water derived from the ceiling which house[d] the air conditioning unit[;] however, investigation and discovery is still continuing regarding this issue, and plaintiff reserves the right to supplement this response when additional information is discovered.” In supplemental responses dated September 14, 2007, appellants stated: “Actual origination unknown at this time. Investigation and discovery continuing.”
Appellants’ opposition relied solely on an excerpt from Hassan Khanbabapour’s deposition. According to Khanbabapour, air conditioner repairmen hired by Makabe told him that the water came from an air conditioner located above his business. He also testified that he did not know the repairmen’s names or the name of the air conditioning service for which they worked. Makabe raised hearsay and other evidentiary objections to this testimony, which the trial court sustained in their entirety. Appellants do not challenge these evidentiary rulings on appeal.
In our view, the trial court properly determined there was no triable issue regarding the source of the water. Appellants’ discovery responses admitted they could not identify the water’s source, even though more than a year had elapsed since the most recent damage to their business. Faced with Makabe’s showing, appellants submitted no admissible responsive evidence, and made no request for a continuance to obtain such evidence. We conclude that Makabe shifted the burden to appellants to show that they could establish the water’s source, and that appellants failed to carry this burden. Summary judgment was therefore proper.
DISPOSITION
The judgment is affirmed. Makabe is awarded its costs on appeal.
We concur: EPSTEIN, P. J., WILLHITE, J.