Multani v. Knight ( 2018 )

Filed 5/24/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SALIMA MULTANI, B276508
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC531587)
v.
EVELYN KNIGHT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Terry A. Green and Lawrence H. Cho, Judges. Affirmed.
Law Office of Gary Kurtz and Gary Kurtz for Plaintiff and
Appellant.
Law Offices of Marc Coleman and Marc Coleman for Defendant
and Respondent.
The primary question presented in this case is: Can a landlord be
held liable to a commercial tenant for damage to the tenant’s property
resulting from an alleged sewer backup when the tenant (who had a
month-to-month tenancy in the premises after her lease expired) had
stopped paying rent, had been served (but failed to comply) with a
three-day notice to pay rent or quit, and had been named in an unlawful
detainer action filed before the alleged sewer backup occurred? We find
that the month-to-month tenancy was terminated by the tenant’s
failure to pay rent coupled with the landlord’s filing of the wrongful
detainer action. Therefore, as of the filing of the wrongful detainer
action, the tenant was a tenant at sufferance who had no lawful right to
possession of the premises. Accordingly, the landlord is not liable for
damage to the tenant’s property left on the premises when that damage
was not caused by the landlord’s intentional act or negligence.
In this case, plaintiff Salima Multani (Salima1), who operated a
medical clinic in a space she leased from defendant Evelyn Knight,
brought claims against Knight for conversion, breach of the covenant of
quiet enjoyment, nuisance, negligent maintenance of property and/or
strict liability (negligence/strict liability), negligent interference with
contract relations (contract interference), and violations of Business and
Professions Code section 17200 (section 17200). The trial court granted
Knight’s motion for summary adjudication as to all of the claims except
1 Because we will be referring to Salima’s two sons, Rahim and Khaleel,
who share Salima’s last name, we will refer to each of them by their first
names. We do so for clarity, and mean no disrespect.
2
the contract interference claim, finding that Salima was not lawfully on
the premises when the alleged sewage spill occurred. The contract
interference claim went to trial before a jury, and the jury found in
favor of Knight, finding that the alleged contractual or economic
relationship did not exist.
On appeal, Salima contends the trial court erred by granting
summary adjudication because a tenant who does not pay rent retains
all legal rights of possession up until the time she is dispossessed
following the successful conclusion of an unlawful detainer action. She
also contends the jury’s verdict was not supported by substantial
evidence. Neither contention has merit. Accordingly, we affirm the
judgment.
BACKGROUND
A. Facts Leading to the Lawsuit
The following facts are, for the most part, undisputed.2
Knight owned commercial property located in Long Beach,
California (the premises). She entered into a five-year lease for the
premises with Salima in 1993, with rent due on or before the first of
every month. Salima, who was a physician, ran a medical clinic on the
premises. In 1998, Knight and Salima entered into a second five-year
2 Salima purported to dispute some of the facts, but the trial court found
that either she failed to submit any admissible evidence to establish a
dispute, or the evidence submitted contradicted Salima’s deposition
testimony and therefore the court rejected it. Salima does not challenge the
trial court’s evidentiary rulings on appeal.
3
lease. After that lease expired in 2003, Salima continued to pay the
agreed-upon rent on or before the first day of every month, and Knight
accepted those payments; thus by law, Salima had a month-to-month
tenancy beginning in 2003 under the same terms as the expired lease.
In or before May 2011, Dr. Boniface Onubah heard from Salima’s
son Rahim that Salima was winding down her medical practice, and he
asked about the future of the clinic. He was told that the clinic,
including its health contracts and equipment, would be available for
purchase. On May 26, 2011, Onubah purportedly entered into a written
agreement with Salima to purchase the clinic for $400,000.3 The sale
was supposed to close in January 2012, but it did not go through.
In July 2011, Salima was experiencing knee problems and stopped
working at the clinic.4 She failed to pay rent for July 2011, and paid no
rent thereafter. In early December 2011, Knight caused a three-day
notice to pay rent or quit to be conspicuously posted on the premises,
with a copy mailed to Salima. Salima did not respond to the notice.
3 Although there is a written agreement purportedly signed by Salima
(which signature was notarized), Salima testified at her deposition that she
never attempted to sell her medical practice and she did not remember
entering into a contract to sell her clinic. Her son Khaleel testified at trial
that he and his brother Rahim made all business decisions regarding the
clinic, and that he did not think that she knew that she was selling the clinic
to Onubah.
4 Although Salima stopped working at the clinic, whether the clinic
remained open is disputed. Rahim, Khaleel, and their sister Afshan testified
that the clinic, staffed by other physicians, remained open through December
2011. Salima testified at her deposition, however, that the clinic closed when
she stopped working, and Knight presented evidence that the clinic appeared
to have been unoccupied for some time as of early December 2011.
4
On December 9, 2011, Knight filed an unlawful detainer action
against Salima. Salima defaulted, and judgment was entered in favor
of Knight. Knight obtained a writ of possession, and Salima was
evicted from the premises on May 17, 2012.
In the meantime, according to Rahim and Khaleel, sometime
between late December 2011 and January 6, 2012, the sewer line for the
premises had backed up, causing raw sewage to flow from all of the
sinks, contaminating all of the medical equipment, supplies, and
patient files for the clinic, rendering them unusable. As a result, the
sale to Onubah could not be completed.
B. The Present Lawsuit
A year and a half after she was evicted, Salima filed the instant
lawsuit against Knight, alleging claims for conversion, breach of the
covenant of quiet enjoyment, nuisance, negligence/strict liability,
contract interference, and violations of section 17200. In the complaint,
Salima is named as “an individual d/b/a FAMILY HEALTH SERVICES
MEDICAL CLINIC.”
Knight filed a cross-complaint against Salima seeking the rent
Salima failed to pay from July 2011 until she was evicted. Knight also
alleged claims for nuisance and negligence based upon water damage to
the premises that occurred while Salima was in sole possession of the
premises.5
5 The parties ultimately entered into a stipulation regarding the cross-
complaint. Because no issues are raised on appeal regarding the cross-
complaint, we will not address it further in this opinion.
5
1. The Motion for Summary Judgment/Adjudication
a. Knight’s Motion
Knight filed a motion for summary judgment or summary
adjudication of each of Salima’s claims. She argued that Salima could
not prevail on any of her claims because she was unlawfully on the
premises at all times after July 1, 2011, and was illegally on the
premises after December 9, 2011. She also argued that (1) the
conversion claim failed because Salima abandoned and did not try to
recover her property left on the premises; (2) the breach of the covenant
of quiet enjoyment failed because Salima’s occupancy of the premises
was illegal after December 9, 2011, and because this claim did not exist
for commercial property as a matter of law; (3) the nuisance claim failed
because Salima’s occupancy of the premises was illegal and there was
no evidence of a legally sufficient nuisance; (4) the negligence/strict
liability claim failed because Salima’s occupancy of the premises was
illegal, there was no strict liability as a matter of law, and Knight was
not negligent; (5) the contract interference claim failed because Salima
did not have a contract to sell her business, but even if she did, Knight
was unaware of it and did nothing to harm any alleged relationship,
and Salima sustained no damages; and (6) the section 17200 claim
failed because all the underlying claims failed, there was no business
practice within the meaning of that statute, and Salima sustained no
actual injury.
6
In support of her motion, Knight submitted, among other things,
her own declaration, the declaration of a maintenance man who
maintained Knight’s commercial real estate, including the premises,
and excerpts from Salima’s deposition.
In her own declaration, Knight described the history of Salima’s
tenancy and rental payments (or lack thereof), her service of the three-
day notice to pay rent or quit, and the wrongful detainer action. She
also stated that at no time during Salima’s possession of the premises
did Salima or anyone on her behalf inform Knight that there were any
problems with the plumbing or with sewage on the premises, and she
was not aware of any such problems other than one incident in March
2012. With regard to that incident, she explained that she was
contacted by neighbors of the premises, who told her that the Long
Beach Hazmat team had been called to the premises to investigate
water damage. She contacted her maintenance man, Salvador Ornelas,
and asked him to go to the premises to see what had happened.
Ornelas reported back to her that all of the sinks except one were
clogged and filled with water; he said the faucets had been left on,
causing the sinks to overflow onto the floors and carpets and out the
front door. He also reported that there were no sewage problems, and
that the two bathrooms on the premises were working fine. Knight also
declared that Salima had changed the locks, and she (Knight) did not
have a key; therefore, the only people who had access to the premises at
the time of the incident were Salima and anyone to whom she entrusted
a key. Finally, Knight declared that all of Salima’s medical and office
equipment on the premises were intact and undamaged, that neither
7
Salima nor anyone on her behalf ever responded to Knight’s several
attempts to contact Salima to ask her to remove the property, and that
no one ever informed her (and she was not aware) that Salima was
attempting to enter into or had entered into a contract to sell Salima’s
medical practice.6
In his declaration, Ornelas also described the March 2012
incident. He stated that he went to the premises at Knight’s request.
When he arrived, neither Salima nor anyone from the clinic was there.
He had to cut the locks on the security gates to gain access because
neither he nor Knight had a key. He went through all of the rooms on
the premises, and found that all of the sinks except one were clogged
with dirty water. He observed that water had come from the faucets
into the sinks, and the sinks had overflowed onto the floors and carpet
and out the front door. It appeared to him that the dirty water and
dirty carpet had been there for some time, which caused a stench inside.
He did not observe any sewage damage or leak of any kind, and noted
that none of the medical equipment or furniture on the premises was
damaged by the water leak. Finally, Ornelas stated that at no time
from 2010 to March 2012 was he made aware of any plumbing issues at
the premises.
6 Knight attached as an exhibit to her declaration a Hazmat report dated
March 1, 2012. The report described the incident as follows: “Vacant
building with clogged plumbing; possibly from vandalism. Water damage to
floors and carpets. Plumber dumped 0.5 gallons residual stagnant water in
alley from snaking drains. Neighbor called regarding smell. E-7 covered
liquid with absorbent to reduce smell. No public health hazard. Building
owner on scene [E. Knight]. Adv to dump no more residue or debris outside.”
8
The excerpts of Salima’s deposition testimony submitted in
support of Knight’s motion included her testimony that (1) she stopped
working after undergoing knee surgery in July 2011; (2) she stopped
paying rent in July 2011; (3) she was the only doctor who worked at the
clinic, so the clinic closed when she stopped working; (4) she was
renting the premises on a month-to-month basis; (5) she did nothing to
retrieve her property from the premises after the clinic closed in July
2011, even though she had opportunities to do so; and (6) she did not
attempt to sell her medical practice, and did not remember entering
into a contract to sell the clinic.
b. Salima’s Opposition
In opposition to Knight’s motion, Salima argued that she was
lawfully in possession of the premises, and retained all legal rights of
possession up to the time she was dispossessed following the completion
of the unlawful detainer process. With regard to the conversion claim,
Salima argued that Knight’s defense that Salima had abandoned her
property was legally deficient because her claim was based upon
environmental contamination, and that the act of conversion was
completed when her medical equipment and supplies were
contaminated as a result of the raw sewage spill. She also argued that
the abandonment defense was factually deficient because Knight failed
to show that she complied with statutory notice requirements that
apply when premises are vacated. With regard to the breach of the
covenant of quiet enjoyment claim, Salima agreed with Knight’s
assertion that this kind of claim does not apply to commercial
9
properties, but argued that the allegations of the claim adequately
pleaded a claim for constructive eviction; she asked the court to ignore
the label of the claim and treat it as a claim for constructive eviction.
Addressing the nuisance claim, Salima argued that Knight’s illegality
argument was baseless, and that there were disputed factual issues
raised by Rahim’s testimony. Salima argued that the negligence/strict
liability claim could not be resolved on summary judgment because
there was evidence that Knight was given notice of plumbing problems
in the past, and was given notice of the sewage issue immediately after
it occurred. With regard to the contract interference claim, Salima
argued there were factual disputes regarding Knight’s knowledge of the
sale and the fact of the sale; she noted there was a signed contract for
the sale, and that her deposition testimony that she did not sell her
practice was of “no moment” because she was not involved in the
business end of the practice. Finally, Salima argued there were no
grounds to grant summary adjudication of the section 17200 claim
because it is based upon her other claims, all of which should survive
summary adjudication.
In support of her opposition, Salima submitted declarations from
Khaleel, Rahim, Onubah, and expert witness Dr. Marvin Pietruszka. In
addition, Salima submitted a copy of an asset purchase agreement
between Salima and Onubah for the sale of the clinic, as well as
10
undated photographs of the premises, purportedly showing the damage
caused by the alleged sewage spill.7
Khaleel stated in his declaration that he was the administrator
and manager for Family Health Services Medical Clinic from 1993
through 2012, with primary responsibility for the business aspects of
the clinic; his brother Rahim assisted him. He declared that he did not
regularly consult his mother regarding business aspects of the clinic,
particularly toward the end of the clinic’s operation, and therefore there
were many business matters that took place of which she was not
aware. He stated that there were physicians in addition to Salima who
were employed by the clinic between 2007 and 2011, including Dr.
Onubah. He also stated that in 2011, Salima entered into a contract (a
copy of which was attached to his declaration) to sell the clinic to
Onubah; Onubah agreed to purchase every item in the office, including
the medical equipment and devices, office furniture and equipment, and
patient files. Although Khaleel’s declaration included a discussion
about the alleged sewage backup incident, Knight’s objections to that
discussion were sustained, except for Khaleel’s statement that after he
and Rahim discovered the alleged sewage backup they attempted to
contact Knight and left messages for her, telling her about the condition
of the property.
7 The record on appeal does not include the original photographs;
instead, it includes black-and-white photocopies of photographs. Because of
the poor quality of the photocopies, one cannot tell by looking at them
whether there was any damage to the equipment or furniture. We do not
know whether the original photographs or photocopies were before the trial
court. This does not, however, affect our review of the issues on appeal.
11
Rahim stated in his declaration that he negotiated the original
lease for the premises in 1993, and arranged (along with Salima) to
purchase the office furniture and equipment, the medical equipment,
and the medical supplies. He noted that over the years, Salima’s
medical practice became very successful, and she hired additional
physicians and medical staff, and upgraded the clinic’s equipment. By
2011, the clinic had approximately 4,000 active patients and the latest
advanced technological medical equipment. Rahim declared that he
arranged for Onubah to purchase the practice. He stated that he spoke
to Knight, explained that Salima would be winding down her treatment
of patients, and that he had arranged for Onubah to take over the
practice, although it would take Onubah between three to six months to
get the accreditation in various health plans and staff privileges in
nearby hospitals that were necessary for him to take over the practice.
Rahim stated that Knight agreed to assign the lease for the premises to
a new tenant physician, and that Onubah’s ownership was to be
complete by January 2012.
Rahim declared that Salima and her staff closed the clinic for the
New Year’s holiday in December 2011 and reopened it on January 6,
2012. When they went to reopen it, he and Khaleel discovered that
“raw human sewage exploded from each of the sinks of the clinic
spilling sewage onto and over everything in the clinic,” and that the
medical equipment, supplies, drug samples, and patient files were all
contaminated with sewage and permanently ruined. He stated that he
and Khaleel both tried to contact Knight, and left detailed messages on
her voicemail describing the condition of the premises, but she ignored
12
their requests to address the situation. He declared that as a result of
the sewage spill, the sale of the practice to Onubah could not be
completed, and Salima lost the $400,000 purchase price. Finally,
Rahim declared that the December 2011/January 2012 incident was not
the first plumbing problem at the premises. He stated that in 2009,
water backed up from a drain in one of the sinks and filled the sink
with foul-smelling water, which, Rahim declared, “suggested a problem
with the main line of the building.” He noted that Knight promptly
remediated the problem (although not with a licensed plumber) but did
not address the “more systemic problem.”8
Onubah stated in his declaration that he worked at Family Health
Services Medical Clinic at various times from 2008 through 2011.
When he heard from Rahim that Salima was winding down her practice
of medicine, he asked about the future of the clinic and was told that it
would be available for purchase. He stated that on or about May 26,
2011, he entered into an agreement to purchase the clinic for $400,000,
which included everything in the clinic; he understood that a new lease
would be generated for the premises. He declared that the sale was
scheduled to close in January 2012, and that in the meantime he began
the process of becoming a provider for all of the health plans, HMOs,
and PPOs for which Salima was a provider, and obtained staff
privileges at a nearby hospital.
8 Rahim stated that portions of his deposition testimony were attached
as an exhibit to his complaint, but no such testimony was attached to the
declaration filed with the trial court, and it is not included in the record on
appeal.
13
Expert witness Pietruszka declared that he was a physician with
board certification in anatomic pathology, clinical pathology,
occupational medicine, and forensic toxicology. He stated that he
reviewed the photographs and other materials, including unidentified
declarations, and a “Hazmat report concerning this incident.”9 Based
upon that review, he opined that the alleged sewage spill and the
failure to remediate it immediately resulted in a serious health risk.
c. The Trial Court’s Ruling
At the hearing on the summary adjudication motion, the trial
court (Hon. Terry A. Green, presiding) ruled on Knight’s objections to
Salima’s evidence and, in light of those rulings found that many of the
facts listed in Knight’s separate statement of undisputed facts were, in
fact, undisputed. Based upon the undisputed facts that Salima did not
pay rent after June 2011, was served with a three-day notice to pay rent
or quit, and failed to respond to the notice, the trial court found that
Salima was illegally in possession of the premises after December 9,
2011 (when the unlawful detainer action was filed). The court then
addressed each of the causes of action.
As to the conversion claim, the court observed that Salima had the
only keys to the premises and admitted she could have gone there to
9 It is unclear which “incident” Pietruszka references. According to
Rahim, the alleged sewage spill occurred sometime between late December
2011 and January 6, 2012. The only Hazmat report in the record is from
March 2012, and describes the incident as involving only water damage, with
no public health hazard.
14
retrieve her property at any time between June 2011 and May 2012.
Although the court noted there was a dispute regarding whether all the
medical equipment and furnishings were destroyed by sewage, it
concluded that Salima abandoned her property and therefore could not
establish a conversion claim.
With regard to the breach of the covenant of quiet enjoyment
claim, the court agreed with the parties that it does not apply to a
commercial lease. The court declined to treat the claim as one for
constructive eviction for two reasons: first, there was no lease; and
second, by December 2011 or January 2012, Salima was not lawfully on
the premises.
Although the court found that Salima raised a disputed issue as to
whether there was a sewage spill (as opposed to a water spill), it
concluded she could not establish a nuisance claim for two reasons.
First, the court found that Salima could not establish that she was
lawfully in possession of the premises at the time of the incident.
Second, the court found there was no evidence that Knight knew or
should have known that a sewer backup was likely; the court found that
the evidence that there had been a clogged drain many years before was
insufficient to establish that fact.
The court did not address the negligence/strict liability claim
other than to state that it “think[s] you agree that summary
adjudication should be granted on that.”
The court granted summary adjudication of the section 17200
claim on the ground there was no evidence of fraud or unlawful
behavior.
15
Finally, the court found there were factual issues precluding
summary adjudication of the contract interference claim. Therefore, the
court denied summary judgment, but granted summary adjudication on
all claims except the contract interference claim.
2. The Trial
A jury trial on the contract interference claim was held before a
different trial judge (Hon. Lawrence H. Cho). Our discussion of the
evidence presented at trial is limited to evidence related to the issue on
appeal, i.e., whether there was substantial evidence to support the
jury’s finding that no economic relationship existed between Salima and
Onubah.
Salima did not testify at trial. Instead, the only evidence of the
existence of an economic relationship between Salima and Onubah was
the written contract dated May 26, 2011 that Salima and Onubah
purportedly signed, and the testimony of Rahim, Onubah, and Khaleel.
Rahim testified that he, Khaleel, and their father “were
controlling the business or operating the business.” He explained that
as Salima’s health got worse in 2011 “a decision was made to find a
buyer” for the clinic. He knew a doctor—Onubah—who had expressed
an interest in acquiring the practice, and he brokered a deal with
Onubah that resulted in a written agreement to sell the practice to him.
Salima was not present when Onubah signed the agreement, although
Rahim testified that Salima met with Onubah several times in 2011
and discussed her patients, her retirement, and the sale of her practice.
16
Rahim also testified about entering the clinic on January 6, 2012
and discovering the alleged sewage spill. He had a meeting scheduled
with Onubah the next day, but after discovering the spill he cancelled
it; he did not tell Onubah the reason. Rahim determined the sale could
not go forward because all of the medical equipment was contaminated
and could not be used in the care and treatment of patients. He did not
tell Onubah, however, and Onubah continued to follow up, wanting to
finalize and consummate the deal; Rahim kept giving him excuses for
not being able to meet with him. The deal never closed, and he later
learned that Onubah entered into an arrangement with another
medical office.
Following his testimony, the court asked Rahim several questions
that had been submitted by jurors,10 including one about whether he
informed Salima that the family had a signed contract for the sale of
her practice to Onubah. Rahim answered that he did.
Onubah testified that while he was seeing patients for Salima
after her health problems prevented her from working as often as she
had, he spoke to Rahim and/or Khaleel about them having to transfer or
sell the clinic. He told them that he was interested in the practice, and
they reached an agreement for him to buy it. They entered into a
written agreement; only Rahim was present when he signed it.
10 The trial court allowed the jurors to submit questions for each witness,
which the court read at the end of the witness’s testimony (unless the
question sought inadmissible evidence). The court also allowed the jurors to
directly ask follow-up questions if their questions were asked but not
adequately answered.
17
Onubah testified that his primary interest in buying the practice
was the patient population. The equipment was important because it is
necessary to serve the patients, but the precise location of the clinic was
not, as long as the location was not too far from the present location of
the clinic. He testified that it would have been worth it to him to pay
$400,000 for the clinic even if he had to buy all new equipment. He
stated that he would not have backed out of the contract if Rahim had
told him about the damage to the clinic; he said that he would have
asked to renegotiate the amount, “but if they insisted, I will still pay for
it.”
Khaleel testified on direct examination that Salima was not
involved in the decision about what would be done with the clinic upon
her retirement, and that she did not participate in any way with the
sale of the clinic to Onubah. In fact, he did not even tell her about it.
On cross-examination, Khaleel was asked, “Is it correct to say that your
mother Salima Multani did not ever know that she was selling her
practice to Boniface Onubah?” He responded, “We made all the
business decisions on her behalf.” When asked whether Salima ever
knew that she was selling her practice to Onubah, Khaleel stated that
as far as he knew, he did not think she knew, but “Rahim may have told
her in passing.” Following his testimony, the court asked him several
questions from jurors, including the following: “Did you or Rahim then
or now have your mother’s legal power of attorney?” Khaleel responded
that Rahim had legal power of attorney. The juror followed up, asking,
“As of what date?” The reporter’s transcript does not indicate Khaleel’s
18
response. The trial court then asked, “You’re not sure?” Khaleel
responded, “He has the power of attorney.”
After the case was sent to the jury, the jury submitted two more
questions. The first asked, “From what date to what date did Rahim
Multani have power of attorney over Salima Multani? Additionally,
what areas did the power of attorney cover?” The second question
asked for a read back of testimony from Rahim and Khaleel regarding
whether Salima knew or was informed of the contract with Onubah or
of the sale in general. In response to the first question, the court (after
consultation with counsel) told the jury: “We have located the only
reference to power of attorney in the trial transcript and will have the
reporter read you that one and only passage. No power of attorney has
been admitted into evidence.” In response to the second question, the
court told the jury: “We have found no reference available in Rahim’s
testimony.”
Shortly thereafter, the jury reached its verdict in favor of Knight,
answering “No” to the first question on the special verdict form, which
read: “Were Salima Multani and Boniface Onubah in an economic
relationship including without limitation a contract that probably
would have resulted in a future economic benefit to Salima Multani?”
The trial court entered judgment in favor of Knight, from which
Salima now appeals.
19
DISCUSSION
A. Rights of a Non-Rent-Paying Month-to-Month Tenant
The most significant issue in this case centers on what rights
Salima possessed vis à vis the premises at the time of the alleged
sewage spill. Although the trial court’s finding on this issue was not
entirely dispositive of all its summary adjudication rulings, it was an
important factor in all of them.
Knight argues, and the trial court agreed, that Salima became a
tenant at sufferance no later than when Knight filed the unlawful
detainer action against her; therefore, she had only the right of “naked
possession,” i.e., the right not to be forcibly evicted without legal
process. Salima argues that despite her nonpayment of rent, she
retained all legal rights as a month-to-month tenant until she was
dispossessed following the conclusion of the unlawful detainer action.
None of the cases either party cites in support of her argument
addresses the precise issue presented here: the rights of a month-to-
month tenant (and the obligations owed to the tenant by the landlord)
after she has stopped paying rent and the landlord has initiated an
unlawful detainer action. Our research has not uncovered any such
cases. But applying basic landlord-tenant and contract principles, we
conclude that Knight has the better argument.
In this case Salima started out as a tenant under a written lease.
When, after Salima’s second lease expired, she continued to pay rent
and Knight accepted those payments, her tenancy became a month-to-
month tenancy under the same terms as the expired lease. (Civ. Code,
§ 1945 [“If a lessee of real property remains in possession thereof after
20
the expiration of the hiring, and the lessor accepts rent from him, the
parties are presumed to have renewed the hiring on the same terms and
for the same time, not exceeding one month when the rent is payable
monthly, nor in any case one year”].) Thus, during that tenancy,
Salima retained all the rights as a tenant that she possessed under the
written lease.
Ordinarily, a month-to-month tenancy is terminated only upon the
giving of 30 days notice. (Civ. Code, § 1946.) In this case, neither party
gave the other a specific notice of termination. However, Salima gave
an implied (albeit untimely) notice by failing to pay rent in July 2011
and for several months after. Put another way, because Salima failed
to tender rent, Knight could not accept it, and therefore the statutory
presumption that the parties “have renewed the hiring on the same
terms” (Civ. Code, § 1945) no longer applied. Thus, the implied month-
to-month lease terminated when Salima failed to pay rent.
Further, even if Salima’s failure to pay rent, in itself, did not
terminate the statutorily-implied lease, it nevertheless constituted a
material breach of the lease. And, when one party to a contract
breaches a material term of the contract, the other party has the option
to terminate the contract for cause. (See, e.g., B. L. Metcalf General
Contractor, Inc. v. Earl Erne, Inc. (1963) 212 Cal. App. 2d 689, 693; see
also Wood, Curtis & Co. v. Scurich (1907) 5 Cal. App. 252, 254 [“the
refusal of one party to a contract to make payment as called for by the
terms of a contract excuses the other party from further performance on
his part”].) Here, Knight’s service of a three-day notice to pay rent or
quit and her initiation of an unlawful detainer action when Salima
21
failed to comply with the notice indisputably establishes Knight’s
election to terminate the implied lease. Thus, even if Salima’s initial
failure to pay rent did not terminate her month-to-month tenancy, her
failure to comply with the three-day notice to pay rent or quit, followed
by Knight’s filing of an unlawful detainer action, terminated the
implied lease and Salima’s legal right to possession of the premises.
In short, contrary to Salima’s assertion that she retained all the
rights of a month-to-month tenant until the conclusion of the unlawful
detainer action, the trial court correctly found that by remaining in
possession of the premises without Knight’s consent after termination of
her month-to-month tenancy (which occurred no later than when
Knight initiated the unlawful detainer action after Salima failed to
comply with the three-day notice to pay rent or quit), Salima became a
holdover tenant or tenant at sufferance. Thus, at the time of the events
at issue in the lawsuit, she had no contractual relationship with Knight,
and “ha[d] but ‘“naked possession”’” of the premises. (Aviel v. Ng (2008)
161 Cal. App. 4th 809, 820.)
B. The Trial Court Properly Granted Summary Adjudication
Having concluded that the trial court correctly reasoned that
Salima’s possession of the premises was unlawful at the time of the
alleged sewage spill, we now address Salima’s additional arguments
specifically challenging the trial court’s summary adjudication of her
22
conversion, breach of the covenant of quiet enjoyment, nuisance, and
negligence/strict liability claims.11
1. Conversion
“The tort of conversion is an ‘act of dominion wrongfully exerted
over another’s personal property in denial of or inconsistent with his
rights therein.’” (Collin v. American Empire Ins. Co. (1994) 21
Cal. App. 4th 787, 812.) In this case, as noted, the trial court found that
Knight was entitled to summary adjudication of the conversion claim
because the undisputed evidence—Salima’s deposition testimony that
she had the only keys to the premises and she could have gone to
retrieve her property at any time—established that Salima abandoned
her property. Salima challenges that ruling, contending that “the act of
conversion was completed when the environmental contaminant [i.e.,
the alleged sewage spill] destroyed [Salima’s] expensive medical
equipment and supplies,” and therefore there was nothing left for
Salima to recover.
We begin our discussion by noting that the basis for Salima’s
conversion claim changed from the complaint to the summary
adjudication motion. In her complaint, she alleged a generic conversion
claim—i.e., that Knight wrongfully took possession of Salima’s property.
The allegations of the claim did not mention environmental
contamination. At the hearing on the motion for summary adjudication,
11 Salima does not challenge the ruling granting summary adjudication of
her section 17200 claim.
23
however, Salima’s counsel stated: “[T]he conversion that’s defended in
the summary judgment motion is a particular and unusual kind of
conversion, conversion caused by an environmental contaminant. It’s
not like the landlord went in and took the property. We’re not claiming
conversion based on a post-lockout failure to inventory and return the
items after the unlawful detainer.” (Italics added.)
In light of counsel’s statement, which expressly waived any claim
for conversion based upon Knight’s alleged retention of the property, we
confine our discussion to the propriety of summary adjudication of the
conversion claim based upon environmental contamination.12 We
conclude that even if Salima is correct that there was no abandonment
because the alleged conversion took place at the time of the purported
12 We note that Salima included a passing reference in her appellant’s
opening brief that seems to suggest that she is, in fact, also relying upon
Knight’s alleged retention of the property. After arguing that the conversion
occurred at the time of the sewage spill, which so contaminated the property
that “there was nothing [for Salima] to attempt to recover,” Salima states:
“Finally, [Knight’s] abandonment [defense] was insufficient because she has
failed to evidence compliance with the notice requirements of Civil Code
§ 1993.03. Accordingly, [Knight] would have liability for conversion based on
failing to comply with this statutory notice requirement even after she
regained possession of [the premises].” Although Salima provided a more
complete argument in her appellant’s reply brief, the above-quoted two
sentences are the entirety of the discussion of this issue in the appellant’s
opening brief. That is insufficient to preserve the issue for review. (Allen v.
City of Sacramento (2015) 234 Cal. App. 4th 41, 52 [“It is the responsibility of
the appellant, here plaintiffs, to support claims of error with meaningful
argument and citation to authority. [Citations.] When legal argument with
citation to authority is not furnished on a particular point, we may treat the
point as forfeited and pass it without consideration. [Citations.] In addition,
citing cases [or statutes] without any discussion of their application to the
present case results in forfeiture”].)
24
sewage spill (although we make no such finding), we nevertheless find
that the trial court properly granted summary adjudication because the
undisputed facts establish there was no conversion under Salima’s
environmental contamination theory. (See California School of
Culinary Arts v. Lujan (2003) 112 Cal. App. 4th 16, 22 [“‘the appellate
court may affirm a summary judgment on any correct legal theory, as
long as the parties had an adequate opportunity to address the theory
in the trial court’”].)
Conversion is an intentional tort. (Collin v. American Empire Ins.
Co., supra, 21 Cal.App.4th at p. 812.) “The act [constituting conversion]
must be knowingly or intentionally done, but a wrongful intent is not
necessary. [Citations.] Because the act must be knowingly done,
‘neither negligence, active or passive, nor a breach of contract, even
though it result in injury to, or loss of, specific property, constitutes a
conversion.’” (Taylor v. Forte Hotels International (1991) 235
Cal. App. 3d 1119, 1124.) As the Supreme Court explained in finding no
conversion in a case in which the plaintiff’s household furnishings and
effects were destroyed in a fire while in the possession of the defendant,
if return of the property to the plaintiff is impossible “because the goods
have been lost or destroyed, either without fault on the part of the
bailee or merely because of his negligence, there is no conversion.
Negligence in caring for the goods is not an act of dominion over them
such as is necessary to make the bailee liable as a converter.” (George
v. Bekins Van & Storage Co. (1949) 33 Cal. 2d 834, 838.)
25
In this case, there was no evidence presented at the summary
adjudication stage to indicate that Knight caused the alleged sewage
spill. In fact, as discussed in section B.4., post, the evidence presented
at the summary adjudication stage was undisputed that Knight was not
negligent in failing to prevent the spill. Accordingly, she cannot be held
liable for conversion based upon the alleged environmental
contamination, and summary adjudication was properly granted.
2. Breach of the Covenant of Quiet Enjoyment
In her appellant’s opening brief, Salima concedes that the trial
court correctly accepted Knight’s argument that there can be no claim
for breach of the covenant of quiet enjoyment in commercial tenancies,
but she argues the trial court erred by granting summary adjudication
because her complaint alleged, and she presented evidence to support, a
constructive eviction claim. Although we note that her concession was
misguided—every lease, including a commercial lease, includes an
implied covenant of quiet enjoyment, although the covenant may be
waived in commercial leases (Civ. Code, § 1927; Avalon Pacific-Santa
Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal. App. 4th
1183, 1191; Lee v. Placer Title Co. (1994) 28 Cal. App. 4th 503, 512-
513)—we conclude the trial court’s grant of summary adjudication
nevertheless was proper.
The trial court’s error in finding that breach of the covenant of
quiet enjoyment did not apply to commercial leases does not affect the
correctness of its grant of summary adjudication because the breach
that Salima asserted was that she was constructively evicted (see
26
Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281,
1299 [the covenant of quiet enjoyment “is breached upon actual or
constructive eviction of the tenant”]), and the trial court properly
rejected that assertion.
The covenant of quiet enjoyment, as codified in Civil Code section
1927, arises from a lease: “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.” (Civ. Code, § 1927.) “Under this section,
there is an implied covenant on the part of a landlord that a tenant
shall have quiet enjoyment and possession of the premises during the
continuation of the term.” (Lee v. Placer Title Co., supra, 28 Cal.App.4th
at p. 512, italics added.) In this case, the trial court found—based upon
the undisputed facts that Salima stopped paying rent and failed to
comply with Knight’s three-day notice to pay rent or quit—that at the
time of the alleged constructive eviction (i.e., when the purported
sewage spill occurred in January 2012) there was no lease, and Salima
was not lawfully in possession of the premises. As discussed in section
A., ante, these findings were correct in light of the undisputed facts
before the court. Therefore, the court properly granted summary
adjudication in favor of Knight on Salima’s breach of the covenant of
quiet enjoyment claim.
3. Nuisance
Salima alleged that the sewage spill constituted a nuisance, which
is defined by statute as “[a]nything which is injurious to health . . . or is
indecent or offensive to the senses . . . so as to interfere with the
27
comfortable enjoyment of life or property.” (Civ. Code, § 3479.) She
contends the trial court erred in granting summary adjudication of her
claim because she presented evidence that the sewage spill constituted
a nuisance, and none of Knight’s defenses—including her defense that
Salima’s occupation of the premises was illegal—has any application.
She is incorrect.
Section 731 of the Code of Civil Procedure governs who may bring
an action for nuisance. It provides: “An action may be brought by any
person whose property is injuriously affected, or whose personal
enjoyment is lessened by a nuisance, as defined in Section 3479 of the
Civil Code, and by the judgment in that action the nuisance may be
enjoined or abated as well as damages recovered therefor.” (Code Civ.
Proc., § 731.) It is long established that “an action based upon a private
nuisance as that the term is known to the law may be maintained only
by those whose property rights have been invaded; that while a [lawful]
possessor of land is allowed to recover incidental damages for harms to
his person or chattels in an action for private nuisance, the action is not
available for the protection of those interests to a person who has no
property rights or privileges in land.” (Neuber v. Royal Realty Co.
(1948) 86 Cal. App. 2d 596, 624, overruled in part by Porter v.
Montgomery Ward & Co., Inc. (1957) 48 Cal. 2d 846.)
In this case, the trial court found, based upon undisputed
evidence, that Salima was not lawfully in possession of the premises
when the alleged sewage spill occurred. As discussed in section A.,
ante, that finding was correct. Therefore, Salima did not have standing
28
to bring a nuisance claim, and the court’s summary adjudication of that
claim in favor of Knight was proper.
4. Negligence/Strict Liability
Salima contends the trial court erred in granting summary
adjudication of her negligence/strict liability claim because there was a
disputed issue of fact regarding whether Knight knew or should have
known there were plumbing issues causing sewage to back up. We
disagree.
In her appellant’s opening brief, Salima states that “[t]hroughout
the terms of [Salima’s] tenancy of 18 years, there were several problems
with plumbing issues, all of which resulted in [Knight] arranging
inspections and some type of inadequate repairs by her brother and/or
an unlicensed handyman.” While it is true that there was evidence
presented at trial of multiple plumbing issues over the years, as the
trial court pointed out in ruling on the summary adjudication motion,
the only evidence before it on that motion regarding prior plumbing
issues was evidence of an incident in 2009 involving a backed-up drain
in a single sink, which filled the sink with foul-smelling water, and
which Knight promptly remediated. The court found that this single
incident was not sufficient to show that Knight knew or had reason to
know there was a significant plumbing problem that would result in a
major sewage back-up three years later, and therefore Knight was not
negligent in failing to repair it before the alleged spill. We agree with
the trial court’s assessment. (See, e.g., Mora v. Bakers Commodities,
Inc. (1989) 210 Cal. App. 3d 771, 782 [“The landlord’s obligation is only to
29
do what is reasonable under the circumstances. The landlord need not
take extraordinary measures or make unreasonable expenditures of
time and money in trying to discover hazards unless the circumstances
so warrant”].) Accordingly, we conclude the court properly granted
summary adjudication of the negligence/strict liability claim.
C. Substantial Evidence Supports the Jury’s Verdict on the Contract
Interference Claim
As noted, the jury in the trial of Salima’s contract interference
claim reached a verdict in favor of Knight, finding there was no
economic relationship between Salima and Onubah. On appeal, Salima
argues that the verdict was not supported by substantial evidence
because there was such overwhelming evidence of a sales agreement
between Salima and Onubah that no rational trier of fact could
conclude there was no economic relationship between them that
contained a reasonably probable future economic benefit or advantage.
“[W]hen the ‘findings of fact are challenged in a civil appeal, we
are bound by the familiar principle that “the power of the appellate
court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,” to support the
findings below. [Citation.]’ [Citation.] ‘In applying this standard of
review, we “view the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable inference and
resolving all conflicts in its favor . . . .” [Citation.]’ [Citation.]
‘“Substantial evidence” is evidence of ponderable legal significance,
evidence that is reasonable, credible and of solid value.’ [Citation.] We
30
do not reweigh evidence or reassess the credibility of witnesses.
[Citation.] We are ‘not a second trier of fact.’ [Citation.] A party
‘raising a claim of insufficiency of the evidence assumes a “daunting
burden.” [Citation.]’ [Citation.]” (Pope v. Babick (2014) 229
Cal. App. 4th 1238, 1245-1246.)
Salima did not meet her burden here. In her opening brief, she
sets forth the evidence presented at trial to show there was an economic
relationship: the written contract; Rahim’s testimony about finding a
buyer for Salima’s practice and contracting with Onubah; Onubah’s
testimony confirming the agreement; and Khaleel’s testimony that the
practice was sold.
What Salima does not acknowledge in her briefs on appeal is the
evidence, and reasonable inferences that could be drawn from the
evidence, that Salima was unaware of the alleged sale. Although
Rahim testified that Salima discussed the sale with Onubah and knew
there was a signed agreement, Onubah testified that he spoke only with
Rahim and/or Khaleel about the sale. More important, Khaleel testified
that Salima was not involved in the decision to sell the clinic to
Onubah, that he never told her about it, and that at most, Rahim “may
have told her in passing.”
Khaleel explained Salima’s lack of knowledge of the agreement
Rahim negotiated by stating that he and Rahim “made all the business
decisions on her behalf.” But the facts that Rahim and Khaleel took
care of business matters for Salima, and that Rahim reached an
agreement to sell the clinic to Onubah do not assist Salima here. The
cause of action was brought by Salima, as an individual doing business
31
as Family Health Services Medical Clinic. The business was not a legal
entity separate from Salima as an individual. (See Providence
Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal. App. 4th 1194,
1200 [“‘The designation “d/b/a” means “doing business as” but is merely
descriptive of the person or corporation who does business under some
other name. Doing business under another name does not create an
entity distinct from the person operating the business.’ [Citation.] The
business name is a fiction, and so too is any implication that the
business is a legal entity separate from its owner”].) That Rahim may
have told Salima about the sale does not show that she reached an
agreement to sell. Unless Rahim had Salima’s personal power of
attorney to act on her behalf in selling her practice or the clinic,
evidence of his agreement with Onubah is irrelevant. Indeed, the jury
apparently recognized this issue and sought evidence of such a power of
attorney, first asking Khaleel whether one existed, and then asking
during deliberations for additional information about it (information
that had not been presented, and therefore was unavailable to the jury).
In light of Onubah’s testimony that he spoke only to Rahim and
Khaleel about the sale, and Khaleel’s testimony that Salima did not
participate in the decision to sell the clinic, the jurors reasonably could
have viewed the written contract before them with skepticism, either
believing that she did not sign it herself (despite the notarization), or
that she signed it but did not know what it was that she was signing
(and therefore she herself did not reach any agreement with Onubah).
In short, we find that substantial evidence supports the jury’s verdict.
32
DISPOSITION
The judgment is affirmed. Knight shall recover her costs on
appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.
33