Superior Court Judge Found He Lacked Credibility in Denying Having Promised the Lessee of Premises That He Would Cause Power to Be Restored to Fire-Damaged Building; Manella Sees No Error
By a MetNews Staff Writer
Above is a shot of the premises at 13120 Pearblossom Highway where space had been leased to a woman pursuant to a promise that power would be restored there. A $55,885.70 judgment against the lawyer/realtor who made, and breached, the promise was affirmed yesterday by the Court of Appeal for this district.
A non-practicing lawyer with a disciplinary record who leased a fire-damaged unit to a woman upon the promise he would restore power to it, but failed to do so, then disclaimed ever having made the commitment, must pay the former tenant nearly $40,000 in attorney fees, in addition to damages, under an opinion of this district’s Court of Appeal, filed yesterday.
Presiding Justice Nora M. Manella of Div. Four authored the opinion, which was not certified for publication. It affirms a judgment by Los Angeles Superior Court Judge Wendy Chang in favor of the ex-tenant, Connie Hernandez.
Hernandez sued after repudiating the lease. Months had passed since she leased the premises in Pearblossom, an unincorporated area of the Antelope Valley, and power for the premises, which she had intended to use for a restaurant, had not been restored.
The lessor, Phoenix Thottam, a lawyer on active status who is in the real estate business, insisted that he had never promised to reinstate electricity, though the Craigslist ad to which Hernandez responded said that the lessor was “in the process of restoring power.”
Chang said in her decision, following a bench trial:
“The court… finds that Defendant’s denials of his assurances of restoring power by August 2018 to lack credibility.”
Thottam claimed that the intended purpose of the space being leased was for storage, but Chang said: “The court finds Defendant’s assertion that the Lease was not for a restaurant, but rather, for storage, to lack credibility and in contravention of the terms of the Lease itself. The Lease, drafted by Defendant, asserts that it is for the purpose of a Mexican seafood restaurant.”
The judge determined that “Defendant did not lack good faith in attempting to make repairs—what he lacked were funds.”
She awarded damages in the amount of $13,200, costs totaling $2,895.70, and ruled that attorney fees were due because Thottam had inserted a provision in the lease that he would be entitled to such fees if he prevailed in litigation and, under Civil Code §1717, Hernandez would necessarily have a like entitlement if she won. Chang later set the fees at $39,790.
In her opinion affirming the judgment, Manella rejected Thottam’s contention that Chang violated the parol evidence rule by considering extrinsic evidence as to a promise to restore power when the lease, itself, said the premises were being let “as is.”
“The trial court correctly concluded that the lease was ambiguous as to appellant’s obligation to restore power to the unit. On one hand, the lease repeated several times that the unit was provided on an ‘as is’ basis and that respondent would be responsible for all necessary repairs. On the other hand, the lease repeatedly referenced appellant’s work to restore power to the unit:…These provisions, which tied appellant to the task of restoring power to the unit, appear to depart from the “as is” provisions, which generally laid responsibility for all repairs on respondent.”
There was no error in resolving that ambiguity against Thottam, she said, and no error in construing against him an ambiguity as to attorney fees. Manella noted Chang’s reliance upon the fact that it was Thottam who drafted the lease, and said:
“[T]he trial court’s reasoning was correct.”
The case is Hernandez v. Thottam, B306547.
Robin E. Paley and Shivali Kasbekar of the Encino Law Offices of Robin E. Paley represented Hernandez. Thottam was in pro per.
Thottam was suspended from law practice from Oct. 31, 2008 to Jan. 29, 2009 based on an Aug. 26, 2004 conviction for petty theft.
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