2845 Monterey Road, LLC v. Posada CA6

Filed 6/23/14 2845 Monterey Road, LLC v. Posada CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

2845 MONTEREY ROAD, LLC, H039053 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CV195218)

v.

CARLOS POSADA,

Defendant and Appellant.

After a court trial, appellant Carlos Posada and his cousin, Camilo Posada, were found liable in an action for breach of contract brought by respondent 2845 Monterey Road LLC. Appellant challenges only the award of attorney fees to respondent under a prior lease pursuant to Civil Code section 1717. Appellant contends that he was the prevailing party entitled to attorney fees because he successfully defended against respondent's claim that the lease had been extended. We will affirm the judgment. Background The facts of the underlying litigation are not disputed. In April 2001 appellant and respondent's predecessor, Michel Developments, executed a commercial lease permitting appellant to operate Alfa Autoland, an automobile heating and air conditioning repair business in San Jose. The lease provided for a five-year term with an option to renew for another five years. Among its terms was a provision for attorney fees, which stated, "If Landlord incurs any expense, including attorneys' fees and costs, as a result of a default

by Tenant hereunder, the sum or expense incurred by Landlord, shall be due immediately from Tenant to Landlord." In September 2004 appellant's cousin, Camilo Posada, took over the operation of appellant's business and assumed the obligations of the lease. The five-year term expired on April 30, 2006, and the lease terminated, no one having exercised the option to renew. Thereafter, the court found, Camilo Posada occupied the premises under a month-to- month tenancy. On July 26, 2010, Camilo Posada's business license was revoked. He paid the rent for August, but then appellant moved back into the property, and while conducting business on the premises he paid the rent for September and October 2010. Thus, appellant began a new month-to-month tenancy in September 2010. On November 3, 2010, appellant gave written 30-day notice of his intention to terminate the tenancy. As instructed by Paul Michel, appellant returned possession of the premises to respondent on December 7, 2010, by leaving the keys with another tenant. The property, however, was in a damaged condition, "beyond normal wear and tear." The court therefore found appellant liable for repairs that totaled $4,900. Although the lease had not been extended, the court found that appellant "had an obligation under the lease to return the premises in satisfactory condition." 1 Appellant also owed respondent $6,131 in unpaid rent, from which was deducted appellant's $4,260 security deposit, leaving $1,871 due to respondent. Appellant was deemed liable for the $1,871, while he and Camilo Posada were jointly and severally liable for the $4,900 property damage. Both appellant and respondent moved for attorney fees, claiming prevailing party status pursuant to the lease and section 1717.2 The court found respondent to be the