Thursday, December 29, 2016
Court Decides Unlawful Detainer Appeal Though Tenant Has Vacated Premises
By a MetNews Staff Writer
A judgment in favor of a landlord in an unlawful detainer action was reversed by this district’s Court of Appeal yesterday notwithstanding that the tenant has surrendered possession.
The opinion, which was not certified for publication, came in 6000 Woodman v. Tosunyan, B261436. Justice Luis Lavin of Div. Three was the author.
Reversing Los Angeles Superior Court Judge William F. Fahey, who granted judgment to the landlord, 6000 Woodman, LLC, the appeals court said that, under the lease, tenant Kirakos Tosunyan should have been served with a three-day notice at 6000 Woodman Ave., in Van Nuys, rather than 6002, the space he actually occupied.
On Oct. 27, the court received a notice from 6000 Woodman, LLC that the appeal was moot. On the same day, an order was filed denying permission to file the notice.
Appeal Not Moot
Lavin explained why the appeal proceeded:
“At oral argument, counsel for both parties stipulated that Tosunyan surrendered possession of the property to landlord. We requested and received supplemental letter briefs from the parties on the issue of mootness….We conclude the appeal is not moot because the erroneous judgment of possession may have some collateral effect on future proceedings between these parties concerning the commercial lease. In addition, because we reverse the judgment entered in favor of landlord, Tosunyan is entitled to seek restitutionary relief in the trial court on remand….With that limited exception, however, further unlawful detainer proceedings are inappropriate because possession of the property has been restored to landlord….Accordingly, if the parties wish to litigate any other issues following our remand, the case must proceed as an ordinary civil case.”
The jurist added in a footnote:
“We express no opinion as to whether Tosunyan is entitled to any restitutionary relief; we simply remind the court that he must be given the opportunity to seek such relief on remand.”
Triable Factual Issue
Reversal was on the ground that “there is a triable issue of fact regarding the address of the leased premises and, consequently, the validity of the 3-day notice.”
“First, landlord asserts there is no discrepancy between the proof of service and the lease because ‘the handwritten notes on the Lease confirm the correct address as 6002 Woodman Ave.’ However, the record does not support landlord’s contention. It appears that the typed lease agreement originally stated the premises was located at 6004 Woodman Avenue. However, a handwritten interlineation changed the address to read 6000 Woodman Avenue. The record does not indicate who made the interlineations, but it is apparent that the address, as modified, reads 6000 Woodman Avenue—not 6002 Woodman Avenue.”
Here is the portion of the document bearing handwritten changes (taken from a brief filed in the trial court):
“Second, landlord attempts to reconcile the address of the leased premises as follows: “[Landlord] owns the shopping center located at 6000 Woodman Avenue, Van Nuys, California 91401 (the ‘Center’), which contains the subject premises having a separate address of 6002 Woodman Avenue, Van Nuys, California (the ‘Premises’).” It appears the court accepted landlord’s explanation, as the order granting summary judgment in favor of landlord states the parties had a valid lease agreement for the property located at 6002 Woodman Avenue, and landlord properly served the 3-day notice at that address. We see no evidence in the record to support this conclusion.”
Marc J. Schwartz was the lawyer for 6000 Woodman, LLC and Neufeld Marks and Paul S. Marks represented Tosunyan.
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