Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG4184477
Margulies, J.
Plaintiff Sony Electronics Inc. (Sony) was the sublessee of a building owned by defendant Pinole Point Properties, Inc. (Pinole) under a lease that imposed upon Sony responsibility for repair and maintenance of the building. Upon the expiration of the sublease, Pinole contended that Sony had allowed the property to deteriorate and that, in particular, flooring installed by Sony was both substandard and in poor condition. After a dispute arose over the repairs, Sony brought an action for declaratory relief as to its obligations under the lease. Pinole cross-complained for the amounts it contended were owed to bring the property into proper repair.
The trial court found that Sony was liable for many repairs to the property under the repair and maintenance provision of the lease. In addition to miscellaneous repairs that are not individually challenged here, the court found Sony liable for the cost of replacing the floors it had installed during its tenancy. Sony challenges that finding on several grounds, in addition to contesting the award of prejudgment interest and attorney fees. While we agree that cross-defendants are not liable for prejudgment interest, we otherwise affirm the judgment of the trial court.
I. BACKGROUND
Pinole is the current owner of a large building in Fremont (the premises) constructed as a warehouse to suit Nestle USA (Nestle), the original lessee on a 15-year lease (Lease) that dates from June 1988. Sony gained possession of the premises as a sublessee. The relevant sublease ran from 1998 to March 31, 2004, the expiration date of Nestle’s original lease (Sublease). Pinole consented to the Sublease.
The Lease placed virtually all responsibility for upkeep of the premises on the tenant. Section 7 of the Lease, entitled “Maintenance and Repairs: Warranties,” stated that “Tenant shall at its expense keep in good and safe condition, order and repair the Premises . . . . All repairs required to be made by Tenant shall be made promptly with materials of like kind and quality to the original work or installation. . . . Tenant hereby waives the benefit of any statute now or hereinafter in effect which would otherwise afford Tenant the right to make repairs at Landlord’s expense or to terminate this Lease because of Landlord’s failure to keep the Premises in good condition, order and repair.” The landlord’s responsibilities were restricted to a one-year warranty of various fixtures and a term-long warranty against “latent or similar” defects in “structural elements” of the premises, including the “floor slab.” Sony assumed the tenant’s responsibilities under the Lease in section 7 of the Sublease.
After taking possession of the premises, Sony proposed to construct a number of tenant improvements, converting a portion of the property from warehouse to office or similar use. When Sony began its tenancy, nearly all of the floor was an unfinished concrete slab. Among other things, Sony proposed to install flooring in a significant portion of the premises, at various places putting down carpet, common vinyl tile, and electrostatic dissipating (ESD) tile intended for use around electronic equipment. Pinole was made aware of the plans for the alterations, reviewed and approved them, and monitored the construction as it was occurring. Under the Lease, the tenant was required to remove all tenant improvements upon expiration of the Lease unless the landlord elected to have them remain. Pinole elected to have the Sony improvements remain.
Prior to installation of the flooring, Sony hired a consultant to evaluate the transmission of water vapor through the concrete floor slab, which had been laid on bare moist ground. The consultant found that significant water vapor was penetrating the slab and recommended that Sony place a moisture barrier over the concrete before installing any tile flooring. Vapor barriers come in various degrees of impermeability, and the consultant recommended that Sony place a “System III” barrier beneath the vinyl tile and a less permeable “System IV” barrier beneath the ESD tile. When Pinole’s expert examined the installed floor in 2004, she concluded that, despite the recommendation, Sony had installed a System III barrier beneath the ESD tile and no vapor barrier at all beneath the vinyl tile. Pinole had been aware of the moisture issue at the time Sony installed the flooring, and Pinole’s representative described himself as “satisfied” with Sony’s chosen resolution at the time. Within a few months of the floors’ installation, Sony was experiencing problems with adhesion of the tile.
By the end of 2002, Sony had largely ended its occupancy, and it subleased a portion of the warehouse space to another tenant. Near the close of the Lease/Sublease term in 2004, the parties engaged in discussions about the repairs Sony was required to make under the repair and maintenance clause of the Lease. Sony made many of the repairs requested by Pinole, but the parties disagreed about others.
A particular problem was the flooring Sony had installed. After Sony vacated the premises, Pinole’s expert found cracked, broken, and delaminated floor tiles in various places in the premises, which she attributed to moisture penetration through the concrete slab. The ESD flooring had failed, which means that it no longer fulfilled its function of dissipating electrostatic electricity, as a result of the tiles’ poor adherence to the slab. Pinole concluded that repair was impossible and that the only solution was to tear up the floor, lay a better moisture barrier, and install new tiles. Sony refused to repair or replace the floor.
In the meantime, Pinole leased the premises to Sony’s subtenant. As part of the transaction, it was agreed that a portion of the Sony floor would be removed, restoring the floor to bare slab, while other portions of the floor would be repaired, including restoration of the electrostatic dissipating function. The tenant fell into bankruptcy before Pinole installed a new ESD floor, however, and the premises were put back on the market without further work on the floors.
When the parties were unable to resolve their differences regarding Sony’s repair obligations, Sony filed an action for declaratory relief. Pinole cross-claimed against both Sony and Nestle, which was liable for any Sony default under the Lease. At trial, Pinole submitted a statement of damages that, in effect, contended that Sony’s duty under the repair and maintenance provision of the Lease was to install a new and better floor with adequate moisture protection, estimating the cost of the work to be over $790,000. It also sought recovery for work on the roof, repairs that had been made to the floor to accommodate the replacement tenant, and miscellaneous other expenses.
The matter was tried to the court. In its statement of decision, the court rejected the various legal defenses to recovery asserted by Sony and found that Sony was bound by the repair and maintenance provision of the Lease. It held, however, that this provision did not require Sony to leave the premises in “like-new” condition or to make “repairs of a substantial nature.” The court then reviewed the various requests for damages asserted by Pinole, finding Sony responsible for many, but not all, of the claimed repairs. This included some, but not all, of the completed floor work. Regarding wholesale replacement of the floors, which had not been completed, the court concluded that Sony “was negligent in its installation of the flooring” and was therefore “responsible for damages to the structure caused by its negligent maintenance and repair.” As an alternate basis for liability, the court held that Sony “is liable for the remaining costs of repairing the floor pursuant to the covenant to maintain the premises. Once the parties agreed that the new flooring was to become a permanent fixture in the structure, the flooring came within the maintenance covenant. The proper measure of damages for the breach of that covenant is the cost of repairs, whether or not those repairs have actually been completed by Landlord.” As a result, the court awarded Pinole the full amount sought for future floor repair, as well as prejudgment interest and contractual attorney fees and costs.
II. DISCUSSION
A lease is a contract, governed by the same rules of interpretation as other types of contracts. (Robert T. Miner, M.D., Inc. v. Tustin Ave. Investors (2004) 116 Cal.App.4th 264, 270–271.) “ ‘[T]he traditional rules governing interpretation of contracts . . . “teach us that the overriding goal of interpretation is to give effect to the parties’ mutual intentions as of the time of contracting. . . . Where contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further.” ’ ” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1605.)
Where, as here, the interpretation does not turn upon the credibility of extrinsic evidence, “interpretation of a contract is purely a judicial function.” (Hartzheim v. Valley Land & Cattle Co. (2007) 153 Cal.App.4th 383, 389.)
A. Sony’s Liability for the Condition Upon Surrender
Sony’s first argument is that the trial court erred in concluding that “the repair and maintenance covenant applied throughout the entire lease term, up to and including its termination point.” Instead, Sony argues, the trial court should have accepted the evidence of custom and usage offered by Sony which, Sony contends, described an obligation different from that in the repair and maintenance covenant. The argument is premised on paragraph 7 of the Sublease, which states, “At the expiration or earlier termination of this Sublease, Subtenant shall surrender the Premises in the condition required by the Prime Lease . . . .” Because the Lease contains no provision expressly addressing the condition of the property upon surrender, Sony argues, that void should be filled with custom and usage evidence.
We cannot agree. Sony’s argument is premised on an artificial distinction between the “termination point” of the Lease and remainder of the lease term. The maintenance and repairs provision of the Lease required Sony to maintain the premises in “good and safe condition, order and repair” throughout the term of the Lease. Because the provision contains no time restriction, its obligations necessarily extended up to and including the “termination point,” the final moment of the Lease term. The maintenance and repair provision therefore describes, by clear and inescapable implication, the condition in which the premises were to be surrendered, even if the provision is not expressly labeled as doing so. At the time of surrender, the premises were to be in “good and safe condition, order and repair,” as required by the provision, just as they were in every other moment of the Lease term. To the extent Sony surrendered the property in a condition that was in breach of this term, it was liable for appropriate contractual damages.
The fact that, as Sony’s expert witness testified, many commercial leases contain clauses that expressly address the condition of the property at surrender does not create a void in the lease. “Generally, ‘[u]sage can be invoked only to interpret, not create contractual terms [citations]. . . . ’ . . . [¶] . . . It is clear that where a written contract states a term clearly and unambiguously, usage or custom that would vary or contradict the term is not admissible.” (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 889; see also Bert G. Gianelli Distributing Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1040, disapproved on other grounds in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389–390, 394, fn. 2 [evidence of custom and usage in a trade may be used to “prove the existence of such usage at trial unless the proposed custom or trade usage contradicts the contractual terms”].) Here, the ordinary and reasonable meaning of the contract language required Sony to surrender the premises in the same condition it was required to maintain them for the duration of the Lease—in other words, to adhere to the maintenance and repairs provision for the entire Lease term. There is no ambiguity or omission that custom and usage evidence could fill.
Citing such cases as Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, and Lynn v. DePue Warehouse Co. (1962) 198 Cal.App.2d 742, 746, Sony argues that a tenant’s general obligation is to use ordinary care and that, in the absence of specific contract language, a tenant has no obligation to renovate premises at the end of the tenancy. The argument misses the point. First, there is specific language governing Sony’s duties in this lease, and, second, there was no holding that Sony had an obligation to renovate. The trial court held, consistent with the contract language, that Sony’s only duty was to maintain the premises and keep them in good repair.
Sony also argues that the repair and maintenance provision cannot be interpreted to require more than the making of repairs during the Lease term. This is both true and not true. We agree that Sony was not required to make repairs that became necessary because of events occurring after the expiration of the Lease. On the other hand, Sony was liable for breach of contract to the extent repair and maintenance obligations that arose during the term of the Lease remained unperformed upon surrender of the premises. The fact that Sony failed to make required repairs during the period of its occupancy does not absolve it of liability for the cost of those repairs now.
B. Damages Associated with the Floor Repair
Sony next contends that the trial court erred in awarding to Pinole damages associated with the poor condition of the floor at surrender.
Sony’s first argument is that Pinole was responsible under the Lease for the damage to the floor. The argument is premised upon section 7.2(b) of the Lease, which states that “Landlord also warrants and guarantees for the Term against any and all latent or similar defects in the structural elements of the Building or the Premises, including but not limited to the Building floor slab, walls, roof and exterior architectural finish, as a result of design, construction, installation or materials . . . .” The evidence at trial was that the building slab was constructed without a vapor barrier or other means of preventing transmission of water vapor, thereby permitting vapor to travel through the slab and cause premature deterioration of the floor tiles. Because the deterioration ultimately resulted from the condition of the slab, Sony argues, Pinole was responsible for the flooring deterioration under section 7.2(b).
Under the terms of the Lease, however, Pinole is responsible for the damage only if the slab’s lack of vapor prevention constituted a “latent or similar defect[].” Sony cites no evidence, expert or otherwise, suggesting that the absence of a vapor retarder was a defect in the floor slab. A defect, particularly when that term is used, as here, in the context of a warranty, is a flaw that renders a product unsuitable for its intended use. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; e.g., Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal.App.4th 17, 28.) The premises were designed to serve as a warehouse. There was no testimony that the lack of a vapor retarder would have made the premises unsuitable for warehouse use. On the contrary, Pinole’s expert testified that “if you never intend to put anything on top of [the slab] that’s going to have a problem with moisture, then [the lack of vapor prevention] shouldn’t be a concern.” Further, she testified, there are risks associated with installing a vapor retarder. A vapor retarder can result in a gradient in moisture content in the slab that can cause the slab to “curl,” which in turn leads to cracking when heavy equipment is run over the slab, as is often the case in a warehouse.
Moreover, Sony was aware of the problem of vapor transmission when it made plans to proceed with that alternative use. Even if the lack of a vapor retarder had been a defect, it was not a “latent or similar” defect, as required by the Lease. Under these circumstances, there is no evidence to support Sony’s argument that Pinole was responsible for the flooring deterioration under section 7.2(b) of the Lease.
We agree with Sony’s second argument that the trial court erred in concluding that Sony “was negligent in its installation of the flooring” and was therefore “responsible for damages to the structure caused by its negligent maintenance and repair.” The trial court rested its conclusion that Sony owed a duty of ordinary care in making the tenant improvements on two cases, Lynn v. DePue Warehouse Co., supra, 198 Cal.App.2d 742, 747, and Pappas v. Carson (1975) 50 Cal.App.3d 261, 269, both of which concern work performed by tenants pursuant to repair and maintenance clauses. Those courts held that when tenants undertake repair and maintenance, they must use ordinary care in doing so. (See also Civ. Code, §§ 1928, 1929.)
The flaw in the trial court’s reasoning is that the new flooring was not installed pursuant to Sony’s repair and maintenance obligation, and accordingly was not governed by this standard. When a tenant makes repairs to preexisting structures and fixtures, in effect replacing the property of the landlord, it is held to a standard of ordinary care. In installing the flooring, Sony was not making repairs to property of the landlord. Rather, installation of the flooring was an improvement to the premises, paid for by Sony and installed with the agreement, cooperation, and monitoring of Pinole.
For this reason, the trial court’s conclusion that Sony “was negligent in its installation of the flooring” and was therefore “responsible for damages to the structure caused by its negligent maintenance and repair” is a non sequitur. The installation of the flooring was neither maintenance nor repair. Rather, Sony was, in effect, creating new fixtures for the property. In creating these new fixtures, no warranty was given by Sony to Pinole with respect to the quality of the flooring. Sony was therefore under no obligation to make improvements other than, or of a different quality than, those disclosed to and approved by Pinole.
Because we conclude that the trial court erred in concluding that Sony was liable on a theory of negligent installation of the flooring, we do not address Sony’s argument that a negligence claim was outside the pleadings.
That conclusion, however, does not necessarily require us to reverse the award of damages for the new flooring. As Sony recognizes, the trial court rested its award of these damages on the additional alternate theory that Sony was responsible for the installation of a new floor as a result of its failure to maintain and repair the floor once it had been installed. We agree with the trial court that once Sony installed the flooring, that flooring was covered by the repair and maintenance clause to the same extent as preexisting fixtures.
Recognizing the alternative basis for the trial court’s order, Sony raises several challenges to the court’s conclusion that it was liable for the flooring under the repair and maintenance clause.
First, Sony argues that it is not responsible because the “floor tile distress was not caused by any improper maintenance on Sony’s part” but rather resulted from excess vapor penetration. The repair and maintenance clause, however, did not limit Sony’s obligation to conditions it caused. Rather, the clause required Sony to maintain the premises in “good and safe condition, order and repair,” without any limitation on the cause of the condition requiring repair and maintenance. There was substantial evidence to support the trial court’s conclusion that the floor required at least some repair and/or maintenance to bring it into a condition that was “good and safe,” given the presence of cracked, broken, and loose tile. Further, we find substantial evidence to support the trial court’s conclusion that the floor’s degraded condition exceeded the consequences expected from ordinary wear and tear over the course of seven years. Under the lease, the needed repair and maintenance was Sony’s responsibility.
Second, Sony argues that even if the maintenance and repair clause applied to the floor, the clause did not require the total replacement of the tile flooring. The maintenance and repair clause required Sony only to make repairs, and those repairs were required to be “with materials of like kind and quality to the original work or installation.” As the trial court properly recognized, Sony was not required to make the floors “like new,” and it certainly was not required to upgrade them, as insisted by Pinole. The general rules are noted in Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559: “The exception of ordinary wear and tear contemplates that deterioration will occur by reason of time and use despite ordinary care for its preservation. [Citation.] A tenant is not required to renovate the premises at the expiration of his lease; a covenant to repair should be reasonably interpreted to avoid placing any unwarranted burden of improvement of the lessor’s premises on the lessee. [Citations.] The tenant is certainly not obligated to restore the premises to his landlord in a better condition than they were at the inception of the tenancy.” (Id. at pp. 565–566.)
We do not agree with Pinole that Sony “had the responsibility to install a functioning floor” when it made the original improvements. From the record, it appears that Sony disclosed its plans to Pinole, and those plans were approved by Pinole’s representative, who also oversaw the installation of the improvements. Having approved the plans, Pinole has no contractual right to assert that other superior improvements should have been made.
It is entirely possible that, as Sony contends, mere replacement of broken tiles and re-adhesion of loose tiles could have brought the floors back into an acceptable condition, particularly given the allowance for wear and tear to which Sony was entitled. Further, the bill for damages submitted by Pinole did not anticipate “materials of like kind and quality to the original [Sony] work or installation,” but rather included substantially upgraded vapor protection. By insisting on flooring superior to that originally installed by Sony, Pinole was demanding more than its entitlement under the repair and maintenance clause.
We have, however, found nothing in the record that would have allowed the trial court to make an award of damages other than that proposed by Pinole, and we therefore find no basis in the record for reversing the trial court’s acceptance of Pinole’s estimate. Pinole’s expert testified that replacement was the only solution for repair of the floor. We have found no evidence in the record to refute this testimony. Sony apparently provided no evidence that repair of the floor short of replacement would have been adequate to place it in “good and safe condition.” Further, although Pinole may have overestimated the amount necessary to put the floors back in their original condition, minus an allowance for wear and tear, we have found no indication that Sony provided an alternative estimate for the cost of repair necessary to bring the flooring into the required condition. Certainly Sony does not refer to such an estimate in its briefing. Apparently because Sony took the position that it was not responsible for the condition of the floors, it elected not to submit any evidence of a lesser level of repair that would satisfy its obligation. The trial court was therefore without evidence to support an award for floor repair less than that demanded by Pinole.
Further, there was not an adequate evidentiary record to permit the trial court to pick and choose among the items listed in the Pinole estimate in order to arrive at an estimate that adhered more closely to Sony’s actual obligation. For example, while the estimate provided by Pinole appeared to call for vapor barriers superior to those originally installed by Sony, we have found no evidence in the record that would have permitted the trial court either (1) to conclude that the existing vapor barrier was intact and did not need replacement or (2) to make an award based on the cost of a replacement vapor barrier identical to the original. Lacking such evidence, the trial court did not abuse its discretion in accepting the evidence provided by Pinole. On the record created by the parties the trial court had no alternative other than to adopt the estimate Pinole provided, even if that estimate overstated the true obligations of Sony.
Finally, Sony argues that the trial court erred in awarding Pinole the cost of repairing the floor because there was no evidence that Pinole did, or ever would, make the necessary repairs. The general rule is that “[t]he relief to be awarded a prevailing lessor for breach of a covenant to restore the premises may be based upon one of three possible measures: The cost of restoring the premises, the diminution in the market value of the premises, or specific performance of the covenant. [Citation.] In the majority of jurisdictions, including California, the restoration principle is employed; i.e., where an action is brought after expiration of a term for breach of a lessee’s covenant to keep the premises in repair or to surrender them in good repair or in a specified condition, the measure of damages is the reasonable cost of putting the demised premises into the required state of repair or the condition contemplated by the covenant.” (Iverson v. Spang Industries, Inc. (1975) 45 Cal.App.3d 303, 308.) In Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427 (Polster, Inc.), the court concluded that the tenant remains liable for the reasonable cost of restoring the premises even if the landlord has arranged, through a subsequent lease, for a subsequent tenant to make the actual repairs. (Id. at p. 433.) There is no requirement that a landlord actually intend to make repairs in order to receive compensation for breach of a repair and maintenance obligation.
We do not accept Sony’s argument that the damages are speculative because Pinole has not made, and may never make, the repairs. The cost of repairs is compensation for diminution in the value of the property. Regardless of whether Pinole ever repairs the floors, that diminution is not speculative but real. The cost of repair is a nonspeculative measure of that diminution.
Sony argues that because Pinole entered into a subsequent lease that did not require repair of the flooring, it was no longer entitled to the cost of repair. The contention is refuted by Polster, Inc., as well as by logic. The cost of repair or restoration is a quantification of the diminution in property value suffered by the landlord as a result of the tenant’s breach. Merely because the landlord was able to lease the property again without repairing the damage does not mean that the value of the property was not diminished by the breach.
Sony distinguishes Polster, Inc. by arguing that, in Polster, Inc., there was no doubt the value of the property had been diminished by the failure of the tenant to fulfill its obligation to restore, as demonstrated by the rent concessions the landlord was required to make to obtain a new lease. Here, although there was no evidence of rent concessions, there was nonetheless little doubt that the value of the premises was less than it would have been if Sony had restored the floors. It is illogical to argue, as Sony does, that a building with floors in a substandard condition is worth no less than a building with properly maintained floors. More importantly, as with the cost of repair, Sony provided no evidence to support the argument that the value was not diminished. In the absence of proof to the contrary, the cost of repair can be assumed to be a reasonable proxy for loss of value. There is no requirement that the landlord show rent concessions in order to receive compensation for the breach.
Sony argues we should follow Bowes v. Saks & Company (7th Cir. 1968) 397 F.2d 113, in which the court denied to the landlord the cost of restoration. As the Bowes court acknowledged, however, its unusual holding resulted from the “curious history” of the building at issue. (Id. at p. 115.) Saks & Company (Saks) had leased the fourth and fifth floors of the plaintiff’s building, which was across from a building it already occupied. Saks then installed a sky bridge connecting the two buildings. As Saks’s lease was about to expire, the landlord insisted that Saks tear out the bridge and restore the building, as required by its lease. (Ibid.) Saks then learned that the landlord had sold the building, and Saks entered into a lease with the new buyer that permitted it to retain the sky bridge. (Id. at pp. 115–116.) The trial court denied cost of restoration damages to the seller/landlord, concluding that the landlord, having sold the building, failed to show any damage from Saks’s failure to tear out the sky bridge. (Id. at p. 117.) There is no parallel here. Pinole has not sought damages because Sony failed to restore the premises to their prior condition—i.e., without the flooring—but because Sony failed to maintain the improvements it installed. In Bowes, there was no contention that Saks had failed to maintain the sky bridge, thereby diminishing the value of the premises.
C. Prejudgment Interest
Sony contends that the trial court erred in awarding prejudgment interest. We agree.
Prejudgment interest is governed by Civil Code section 3287, subdivisions (a) and (b). Subdivision (a) permits the award of prejudgment interest in connection with a contract claim “ ‘on damages which are certain or capable of being made certain by calculation, where the right to recover has vested on a particular day.’ ” (American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1031.) Section 3287, subdivision (b) permits an award of prejudgment interest on an unliquidated contract claim in the discretion of the court. Under subdivision (b), the date of accrual of prejudgment interest must be fixed by the court, in no event earlier than the filing of the complaint. (See, e.g., North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828–829.) The trial court’s statement of decision did not specify under which subdivision it awarded prejudgment interest.
We must first determine under which subdivision of Civil Code section 3287 the trial court intended to award prejudgment interest, since the two subdivisions have very different requirements. (See, e.g., Track Mortgage Group, Inc. v. Crusader Ins. Co. (2002) 98 Cal.App.4th 857, 871 [appellate court must determine basis for award of interest when not specified by trial court].) Based on the nature of the trial court’s statement, we conclude that subdivision (a) of section 3287 was intended. First, the court’s award of prejudgment interest on the flooring damages ran from August 11, 2004. Pinole’s cross-complaint, in which those damages were first sought, was filed on January 5, 2005. Because the interest was awarded from a date preceding the filing of the cross-complaint, the award would have been appropriate only under subdivision (a). Second, the trial court gave no explanation for either its decision to award interest or the dates from which interest was awarded. This is consistent with an award under subdivision (a), which is mandatory, but not an award under subdivision (b), which requires an affirmative exercise of the court’s discretion. (See, e.g., A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 496 [discussing discretionary factors to be considered in award under § 3287, subd. (b)].) The court’s failure to explain suggests that it concluded it had a mandatory obligation to award interest under subdivision (a).
Further, Pinole defends the award of prejudgment interest almost exclusively under Civil Code section 3287, subdivision (a). Its argument under subdivision (b) reads, in its entirety, as follows: “Finally, the court has the discretion to decide whether prejudgment interest should be awarded if any amount of damages is unliquidated. Civ. Code §3287(b); North Oakland Medical Clinic [v. Rogers], supra, 65 Cal.App.4th at 829. The trial court did not abuse its discretion in awarding prejudgment interest.” Because this conclusory argument addresses none of the discretionary factors that must be considered by the trial court in awarding prejudgment interest under subdivision (b), we find any argument to support such discretionary interest to have been waived by Pinole.
As an award of prejudgment interest under Civil Code, section 3287, subdivision (a), the court’s order was erroneous. As noted above, section 3287, subdivision (a) permits an award of prejudgment interest only where damages “ ‘are certain or capable of being made certain by calculation, where the right to recover has vested on a particular day.’ ” (American Federation of Labor v. Unemployment Ins. Appeals Bd., supra, 13 Cal.4th at p. 1031.) The paradigm situation for an award of prejudgment interest is a suit for the recovery of principal and fixed interest on a note that matures on a specified date. In such a lawsuit, the amount due is either known, based on information specified in the note itself, or readily calculated from such information, without reference to evidence outside the note. Further, the sum becomes due on a fixed determinable date. In contrast, subdivision (a) “ ‘does not authorize prejudgment interest as a matter of law where the amount of damages depends upon a judicial determination based upon conflicting evidence.’ ” (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1072–1073.)
In this case, the amount owed by Sony did not become certain until the ruling of the trial court, since the amount depended upon the trial court’s point-by-point resolution of the many claimed items of deficient repair and maintenance and the reasonable cost of repair for allowed items. The uncertainty did not arise because, as Pinole argues, liability was at issue. The trial court had no hesitation in finding that Sony was liable for substandard repair and maintenance. Rather, the primary issue at trial was the cost of bringing the property into compliance with the contractual standard, and that cost could not be determined without the careful weighing of evidence at trial. The mere fact Pinole was able prior to trial to assign a sum certain to each of the items it claimed did not make the damages certain of calculation under Civil Code section 3287, subdivision (a), since, until the court ruled, Sony did not know which of the claimed items was its responsibility and whether the sums demanded by Pinole for those items were reasonable.
Indicative of this uncertainty, Pinole acknowledges that it was awarded only 64 percent of the damages it claimed. It is commonly recognized that a significant discrepancy between the amount demanded and the award of damages militates against a conclusion that the damages were sufficiently certain to support an award of prejudgment interest. (Polster, Inc., supra, 164 Cal.App.3d at p. 435.)
This conclusion is consistent with two of the primary repair and maintenance clause decisions discussed above, Iverson v. Spang Industries, Inc., supra, 45 Cal.App.3d at page 311, and Polster, Inc., supra, 164 Cal.App.3d at page 434. In both cases, the courts reversed awards of prejudgment interest under Civil Code section 3287, subdivision (a) on the ground that the trial court’s resolution of what items of claimed damages were appropriately recovered was necessary before the damages could be ascertained.
D. Notice of Default
Sony argues that Pinole is barred from recovery because it did not send Sony an appropriate notice of default 30 days before the expiration of the lease term. Section 17.1 of the Lease states that “[t]he occurrence of any of the following events . . . shall constitute a default and breach of this Lease by Tenant.” Section 17.1(b) states that one event of default is “Tenant’s failure to perform any other material term, covenant or condition contained in this Lease and such failure shall have continued for thirty (30) days after written notice from Landlord specifying such failure is given to Tenant . . . .” Section 17.2 specifies the remedies in the event of default, including maintaining the Lease in force and suing for sums due or terminating the Lease and recovering possession.
We find no basis for concluding that the Lease required a notice of default prior to the filing of Pinole’s cross-claim for breach. Section 17.1 describes the conditions necessary for a “default,” not for a breach. While every default is a breach, not every breach is a default. Rather, a default is a breach that entitles the landlord to pursue the remedies listed in section 17.2, particularly the remedy of termination. A notice would therefore be required before Pinole could have pursued termination of the Lease in advance of its expiration. Section 17 does not, however, state that the remedies for default are the exclusive remedies available to the landlord for breach. On the contrary, section 17.5 expressly states that “[n]o remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies available, whether hereunder or otherwise.” One of those remedies is, of course, a lawsuit for damages for breach of contract.
In support of its position, Sony cites only Space Properties, Inc. v. Tool Research Co. (1962) 203 Cal.App.2d 819, 826, and Fageol & Tate v. Baird-Bailhache Co. (1931) 138 Cal.App. 1, 5. Both cases hold merely that a landlord cannot recover rent that accrues after the date on which the landlord re-enters the premises and terminates the lease. As noted by Fageol & Tate, however, the landlord retains the right to recover “what was due under [the lease] at the date of its termination.” (Id. at p. 5.) At the time the Lease terminated, any amounts owed by Sony as a result of its failure properly to repair and maintain the premises had already come due. Pinole therefore retained the right to sue to recover these amounts regardless of the termination of the Lease.
E. Attorney Fees
Sony and Nestle argue that we should reverse the award of attorney fees if we reverse the trial court’s judgment. Although we have reversed the award of prejudgment interest, we have left the trial court’s judgment on the merits intact. We therefore have no basis for modifying the attorney fees award.
III. DISPOSITION
The portion of the judgment awarding prejudgment interest is reversed, but the remainder of the trial court’s judgment is affirmed. The matter is remanded to the trial court for entry of an amended judgment in conformance with this decision. The parties shall bear their own costs on appeal.
We concur: Marchiano, P.J.,Stein, J.