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Newman v. Parmar

Jan 19, 2012
A130647 (Cal. Ct. App. Jan. 19, 2012)




ABE NEWMAN et al., Plaintiffs and Respondents, v. SURESH PARMAR, Defendant and Appellant.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(City & County of San Francisco Super. Ct. No. CUD-10-633760)

Defendant Suresh Parmar appeals a judgment entered after the trial court ruled in favor of plaintiffs Abe Newman and Phylis Kurzbard in their unlawful detainer action, allowing plaintiffs to recover possession of a commercial building and ordering defendant to pay past due rent. Defendant contends the trial court erred in hearing the matter as an unlawful detainer action, rather than as a civil action. We shall affirm the judgment.


Suresh Parmar has been the sole tenant of two adjoining commercial rental units owned by Abe Newman and Phylis Kurzbard since 1982. One lease governed both units. In 2007, Parmar signed a new lease setting rent at $6,000 per month and providing that "Lessee(s) shall maintain the premises in good and safe condition, including the roof and exterior walls, plate glass, electrical wiring, plumbing and heating installation . . . ." The lease required the lessors to repair the property "in the event of a partial destruction of the premises."

Most of the factual assertions in Parmar's brief on appeal are unsupported by citations to the record. We remind him of his obligation to provide appropriate citations. (Cal. Rules of Court, rule 8.204(a)(1)(C) & (a)(2)(C).)

In early 2010, according to Parmar, part of the roof collapsed. Parmar had fallen behind on rent toward the end of 2009, and stopped paying rent after February 2010. Parmar did not tell plaintiffs the condition of the roof was the reason he was not paying rent.

In July 2010, Newman and Kurzbard filed an unlawful detainer action against Parmar. Parmar continued to operate his businesses through mid-October of 2010. At that point, the roof suffered greater damage, leading to leaking, and Parmar closed his businesses.

At the November 4, 2010 trial, Parmar sought to introduce testimony from two city inspectors to establish "the condition of the building as of October 19[, 2010]." Parmar's counsel argued that "the Plaintiff is trying to collect money up through now. . . . [Parmar] hasn't occupied the premises, technically, since October 19th when his business was completely destroyed. So we think [the inspectors' testimony is] relevant in that regard in terms of collecting of any rent." In response, Newman and Kurzbard's counsel stated that "for purposes of [the] trial the landlord would be happy to collect damages through October 15th." The parties stipulated that the City of San Francisco had taken action as a result of the leakage, which caused Parmar to close down his business. The court denied Parmar's request for the city inspectors to testify once the parties agreed to stipulate to those facts, stating, "[I]f we can have a stipulation as far as the roof collapse, I don't know that there's anything further that the building inspectors could offer to these proceedings as it relates to the unlawful detainer action." Parmar's counsel did not submit any other ground for the city inspectors' testimony.

During the hearing, Parmar, Newman, and Kurzbard all testified that Parmar was still currently in possession of the premises. Parmar admitted that he had not paid rent since February of 2010. However, he argued that Newman and Kurzbard had breached their contractual obligation to fix the roof, that he therefore had no duty to pay rent, and that he should be allowed to retain possession so he could resume his businesses. The court awarded possession of the premises to Newman and Kurzbard, including a monetary judgment for past due rent from March 1, 2010 to July 1, 2010, daily rental damages from August 1, 2010 to October 15, 2010, and costs. This timely appeal ensued.


Parmar contends he was no longer in possession of the premises at the time of trial, and therefore the trial court erred in hearing the matter in an unlawful detainer proceeding, rather than as an ordinary civil action in which he could present affirmative defenses. (See Civ. Code, § 1952.3, subd. (a)(2).) "An unlawful detainer action is a summary proceeding; calendar precedence is given, and only the right to possession is in issue. [Citation.]" (Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d 654, 658.) Civil Code section 1952.3, subdivision (a), provides that, with exceptions not relevant here, "[I]f the lessor brings an unlawful detainer proceeding and possession of the property is no longer in issue because possession of the property has been delivered to the lessor before trial or, if there is no trial, before judgment is entered, the case becomes an ordinary civil action."

Parmar purports to rely on two documents to show that he was no longer in possession of the contested premises at the time of trial. According to Parmar's opening brief, these documents are an October 26, 2010 "Notice of Closure" posted by the City and County of San Francisco's Department of Public Health, and an October 29, 2010 "Notice of Violation" posted by the Department of Building Inspection for the City and County of San Francisco. These notices are not contained in the record on appeal, and there is no indication they were before the trial court. We may not consider alleged facts that are outside of the record on appeal, and accordingly, we will disregard Parmar's reference to the notices. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn 1.)

At no point in the proceedings below did Parmar take the position that the case should be heard as a civil action rather than as an unlawful detainer proceeding. Indeed, not only did Parmar fail to argue he was no longer in possession of the premises, he testified at trial that he was still in possession of the premises and that he had not surrendered possession to plaintiffs, and his counsel argued that he should be allowed to retain possession. It is well established that matters not raised in the trial court will not ordinarily be considered on appeal. (Baugh v. Garl (2006) 137 Cal.App.4th 737, 746.) This rule prevents parties from asserting claims and defenses on appeal that were not presented in the court below. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.) Accordingly, we will not consider Parmar's contentions now.

We are not persuaded otherwise by Parmar's argument that the trial court was put on notice of this issue when he sought to introduce the testimony of the city inspectors that the building's roof had suffered a major collapse in October 2010. Parmar offered the inspectors' testimony to show that he was not liable for rent after October 19, 2010, because of the condition of the building, not to show he was no longer in possession of the property. And, as we have explained, Parmar himself acknowledged he was still in possession.


The judgment is affirmed.


We concur: ____________

Summaries of

Newman v. Parmar

Jan 19, 2012
A130647 (Cal. Ct. App. Jan. 19, 2012)
Case details for

Newman v. Parmar

Case Details

Full title:ABE NEWMAN et al., Plaintiffs and Respondents, v. SURESH PARMAR, Defendant…


Date published: Jan 19, 2012


A130647 (Cal. Ct. App. Jan. 19, 2012)