Martikian v. Kyong Wan Hong

Opinion

ROTH, P. J.

Appellant Kyong Wan Hong (Hong) determined to do business in a small shopping center as the Glendale House of Liquor and Deli. Respondent Edward Martikian (Martikian) operated Edna’s Coffee Shop in the same shopping center. On June 3, 1983, Hong went to Martikian’s place of business, accompanied by his broker and by the shopping center landlord, for the purpose of entering into an agreement with Martikian to the effect that Hong would sell no middle eastern grocery items in his store if Martikian would sell no beer or wine in his. Martikian was willing to make such a contract and the same was then drafted by Hong’s broker and executed by the parties.

On August 1, 1983, Hong took possession of the premises designated for his establishment under a five-year lease which, inter alia, provided that: [Section 2] “Lessee is leasing the premises and will use and manage said premises

exclusively for operating and conducting thereon a liquor store.

Lessee agrees not to use or permit the premises to be used for any other business or purpose without first obtaining the written consent of Lessor.” (Italics added.)

[Section 35] “So long as Leasee

(sic)

is not in default in the performance of any of the terms and conditions of this Lease, Lessor will not rent or lease or permit the occupation by himself or another of any portion of the shopping center of which said premises are a part, for a business of a type specified in section 2 of this Lease.”

After commencing to operate his business, Hong began to sell middle eastern products. Having filed suit for specific performance of the June 3 agreement, Martikian sought and obtained a preliminary injunction enjoining Hong from making such sales. When Hong ignored the injunction, Martikian obtained an order to show cause re contempt and Hong was fined for his conduct. Being by then of the conviction the agreement was invalid as an illegal restraint of trade, Hong did not pay the fine and continued to ignore the injunction.

At the hearing on a second contempt order and in the light of Hong’s apparent intransigence toward the subject, the trial court suggested, and there ensued with the consent of both sides, arbitration proceedings which resulted in a decision in favor of Martikian. Still dissatisfied, Hong persisted