Plaintiff Parmanand Kumar appeals from a judgment in favor of defendant Alan Tsung Yu. We affirm in part and reverse in part.
In June 1998, George Chiu (Chiu) and defendant Alan Tsung Yu (collectively, Lessees) entered into a commercial lease (Lease) with plaintiff Parmanand Kumar pursuant to which Lessees leased a store (Premises) in a shopping center at 19251 East Colima Road in Rowland Heights. In June 2001, the parties amended the lease to extend the term, resulting in a total lease term commencing July 15, 1998, and ending July 14, 2006.
According to plaintiff, beginning with the July 1, 2003 rent payment, Lessees were continuously behind in paying the rent. They never paid the rent due on October 1, 2003, and, hence, were in breach of the Lease in November 2003. Plaintiff initiated an unlawful detainer action against Lessees and as a result, they were evicted. In his unlawful detainer action, plaintiff obtained a default judgment against Lessees in the amount of $14,174.86. Defendant obtained an order setting aside the default judgment.
In February 2004, plaintiff entered into a lease for the Premises with Yanthang Li. Li defaulted. In the ensuing unlawful detainer action, plaintiff obtained a judgment in the amount of $22,855.15. Plaintiff filed an acknowledgment of satisfaction of the Li judgment in September 2005.
In May 2007, plaintiff filed a complaint against Chiu
Defendant answered the complaint. In January 2008, defendant filed a cross-complaint against plaintiff to recover sanctions and costs awarded to defendant in a prior case regarding the Lease and to seek damages for property plaintiff had allegedly failed to return to defendant after Lessees were evicted.
The action proceeded in a court trial on February 2 and 5, 2009. After receiving and considering objections from the parties with respect to a proposed statement of decision, the trial court issued a statement of decision on May 31, 2009, and a supplemental statement of decision on November 25, 2009 (collectively, the statement of decision). The statement of decision set forth the trial court's findings, including the rationale and dollar amounts for the elements used to calculate plaintiff's damages. Plaintiff prepared a proposed judgment based upon the two documents. Defendant objected and submitted his proposed judgment. The trial court signed and entered plaintiff's version of the judgment on January 26, 2010.
Defendant brought a motion to vacate the judgment based principally upon defendant's claim that the trial court had miscalculated the amounts deducted as mitigation of damages. The trial court granted the motion, amended its supplemental statement of decision, and recalculated mitigation amounts with the result that the mitigation amounts exceeded plaintiff's damages claim. The court entered a new judgment awarding nothing to plaintiff on his complaint and awarding defendant his attorney's fees and costs.
Defendant filed a motion for attorney's fees. Plaintiff filed a motion to vacate the judgment, contending the mitigation amounts were incorrect and that the judgment failed to address defendant's cross-complaint. On June 3, 2010, after a hearing, the trial court granted both motions in part. As to attorney's fees, the trial court ruled that defendant was the prevailing party on the complaint and plaintiff was the prevailing party on the cross-complaint.
Plaintiff makes three claims. First, the trial court materially miscalculated plaintiff's damages, in that the court treated the excess rents as an offset against unpaid rents and not just a mitigation of plaintiff's damages. Second, the trial court materially miscalculated plaintiff's loss of rent and consequential damages as well as the mitigation amounts. Specifically, the court "double-deducted" maintenance fees, deducted payments made by subsequent tenants beyond rent, and failed to consider late fees and interest. Third, the trial court erroneously found that both plaintiff and defendant are prevailing parties and awarded attorney's fees on that basis.
Plaintiff contends that the rent he received from the two subsequent tenants can be applied as mitigation (or an "offset") only against the damages defendant owed after he vacated. Plaintiff claims the subsequent tenants' rents (excess rents) cannot be used as an offset for, or in mitigation of, the rent defendant failed to pay before he vacated (the unpaid rent). On that basis, plaintiff claims the trial court should have awarded to him unpaid rent of $8,539.72.
On this question, the parties have both relied upon Willis v. Soda Shoppes of California, Inc. (1982) 134 Cal.App.3d 899 [184 Cal.Rptr. 761] and its interpretation of Civil Code section 1951.2, subdivision (a),
Plaintiff argues that the excess rents cannot be used as a setoff against unpaid rents. Plaintiff quotes the Willis court's statement that "the allowance for such excess [rents] is not . . . a setoff." (Willis v. Soda Shoppes of California, Inc., supra, 134 Cal.App.3d at p. 905.) Plaintiff is correct, but omits the remainder of the sentence. The Willis court's complete explanation is that "the allowance for such excess is not . . . a setoff, but is simply a method of determining the actual damages sustained by the lessor as a result of the breach." (Ibid.)
As defendant points out, the Willis court noted that "the measure of damages for such breach [of a lease] is subject to the well established rule that a party damaged by a simple breach of contract may not recover more on the breach than the party would have received by performance. Civil Code section 3358 provides: `Except as expressly provided by statute, no person can recover a greater amount in damages for the breach of an obligation, than he could have gained by the full performance thereof on both sides.'" (Willis v. Soda Shoppes of California, Inc., supra, 134 Cal.App.3d at p. 905.) The court held: "Unless the total detriment suffered, whether by loss of rentals or consequential damages, exceeds the amount to be received under the new lease there is in fact no detriment, and hence no damages." (Ibid.) On this basis, we conclude that the trial court properly used the excess rents in calculating the amount of plaintiff's damages for breach of the Lease.
In the alternative, plaintiff claims that the reasoning applicable to his cause of action for breach of the Lease does not apply to his cause of action for common counts for rent owed. Plaintiff contends that, under his common counts cause of action, he is entitled not only to the unpaid rent, but also the cost of repairing damage defendant caused to the premises, and the only offset should be defendant's security deposit. On that basis, plaintiff claims
Plaintiff claims the trial court erred in calculating his damages based upon maintenance fees, so-called CAM (common area maintenance) fees, and calculations of interest payments or late fees to account for the difference in the value of dollars owed in 2004 and dollars received in 2006. However, plaintiff provides no citations to the record identifying the specific fee amounts and calculations which are at issue. It is an appellant's duty to provide citations to the record to identify those portions of the record on which his arguments are based. (Cal. Rules of Court, rule 8.204(a)(1)(C).) "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made." (In re S.C. (2006) 138 Cal.App.4th 396, 406 [41 Cal.Rptr.3d 453].) That there may be related record citations in the appellant's statement of the facts is insufficient to meet the requirement for pertinent record citations in the argument. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 [126 Cal.Rptr.2d 178].) In the absence of such record citations, we may treat the issues raised in the arguments as forfeited. (In re S.C., supra, at p. 407; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416].) While defendant addresses some of the issues in his brief and plaintiff revisits them in his reply brief, none of the discussions includes citations to the record identifying the specific fees or calculations at issue.
Plaintiff contends that the trial court erred in ruling that defendant was the prevailing party and entitled to attorney's fees on the complaint and, surprisingly, also that plaintiff was the prevailing party and entitled to attorney's fees on the cross-complaint.
Whether a party has been awarded compensation is not determinative as to whether the party is the prevailing party in the litigation. "[A] party who is denied direct relief on a claim may nonetheless be found to be a prevailing party if it is clear that the party has otherwise achieved its main litigation objective." (Hsu v. Abbara, supra, 9 Cal.4th at p. 877.) As the California Supreme Court has held, "in deciding whether there is a `party prevailing on the contract,' the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by `a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.' [Citation.]" (Id. at p. 876.)
Defendant contends that, if the trial court erred at all, it was in ruling that plaintiff was the prevailing party on the cross-complaint. We agree.
In his second amended cross-complaint, the operative pleading here, defendant alleges plaintiff violated Civil Code sections 1983 and 1988, in that plaintiff never gave notice, as required by the statutes, of defendant's personal property which was left on the premises after plaintiff took possession of the premises as the result of succeeding in the unlawful detainer action against Chiu and defendant. According to defendant, because of the lack of notice, he lost the opportunity to recover videotapes he owned, allegedly worth $500,000, from the premises.
Defendant's cross-complaint was not based upon an alleged breach of the Lease by plaintiff, but rather was based upon statutory violations not related to performance or interpretation of the Lease. The cross-complaint, therefore, was not an "action on a contract" as required for the award of attorney's fees pursuant to Civil Code section 1717. (See Santisas v. Goodin (1998) 17 Cal.4th 599, 619 [71 Cal.Rptr.2d 830, 951 P.2d 399] [§ 1717 applies only to contract claims and not to tort claims]; Hsu v. Abbara, supra, 9 Cal.4th at p. 868, fn. 3 ["the cross-complaint was not a contract action for breach of the ... agreement ... and thus section 1717 did not apply"]; see, e.g., Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 549 [20 Cal.Rptr.2d 193] ["an action for fraud seeking damages sounds in tort, and is not `on a contract' for purposes of an attorney fee award, even though the underlying transaction ... involved a contract containing an attorney fee clause"].) By its terms, Civil Code section 1717 mandates reasonable attorney's fees and costs only to "the party who is determined to be the party prevailing on the contract" (id., subd. (a), italics added) "upon final resolution of the contract claims" (Hsu, supra, at p. 876).
Given that the cross-complaint was not an action on the contract, the attorney's fees provision in the Lease is inapplicable and Civil Code section 1717 does not mandate the award of attorney's fees and costs to plaintiff. If an action asserts contract and noncontract claims, Civil Code section 1717 applies only to the fees and costs incurred in litigating the contract claims. (Santisas v. Goodin, supra, 17 Cal.4th at p. 615.)
For the foregoing reasons, the trial court's award of attorney's fees to plaintiff must be reversed. We are satisfied from our examination of the record that the judgment may be modified to reflect the reversal of the award by deleting the provisions for award of attorney's fees to plaintiff on defendant's cross-complaint. We also note that such a modification would be consistent with plaintiff's contention on appeal that the trial court erred in awarding attorney's fees to plaintiff (as well as to defendant) and that we should therefore vacate the attorney's fees awards to plaintiff (and to defendant as well).
The judgment is reversed as to the award of attorney's fees to plaintiff on the cross-complaint. In all other respects, the judgment is affirmed. Defendant shall recover his costs on appeal.
Perluss, P. J., and Zelon, J., concurred.
