Filed 2/2/21 4444 W. Sunset Rd. v. Y Travel CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

4444 W. SUNSET RD., LLC et al.,

 Plaintiffs and Respondents,

v.

Y TRAVEL, LLC,

 Defendant and Appellant.

 G058803

 (Super. Ct. No. 30-2016-00831120)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James L. 

Crandall, Judge. Affirmed.

Wolfe & Wyman, Michael H. Shen; Marquis Aurbach Coffing and Terry 

A. Coffing for Defendant and Appellant.

Law Offices of John A. Belcher and John A. Belcher for Plaintiffs and 

Respondents.

* * *
2

Y Travel, LLC (Y Travel, or lessee) appeals from the trial court’s decision, 

after a bench trial, in favor of 4444 W. Sunset Rd., LLC (Sunset, or lessor) on the latter’s 

claim for back rent on its breach of contract cause of action.1Y Travel contends reversal 

is required because “there was substantial credible evidence [that] undermines the 

Superior Court’s finding that Y-Travel breached the Lease. As such, this Court may 

reverse the Superior Court’s Decision as a matter of law.” As we explain, that argument 

misstates our standard of review, which requires the appellate court to view the evidence 

in the light most favorable to the trier of fact’s decision. Substantial evidence supports 

the trial court’s ruling here. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We briefly set out the relevant background material in the light most 

favorable to the trial result below.2

Y Travel, a Nevada-based tour bus company, agreed in a 2012 lease to rent 

a portion of Sunset’s namesake, 2-acre property in the Las Vegas area. Then, in the 2013 

lease under consideration here, Y Travel agreed to rent the whole property for its bus 

operations, commencing on February 1, 2013. The parties mutually agreed the lease 

would be for five years, with rent beginning at $7,000 a month and then potentially 

1

Sunset’s owner, Michael P. Haggerty, also sued Y Travel for breach of a 

consultant agreement that he claimed Y Travel entered into with him after the parties 

agreed to terminate the leasehold. The trial court found against Haggerty on his 

consulting claim; he does not appeal that determination. We therefore do not address it 

further. 

2

In a prior appeal, this court reversed a different bench officer’s pretrial 

ruling on an issue the court raised sua sponte: dismissal of Haggerty and Sunset’s lawsuit 

on forum non conveniens grounds (Code Civ. Proc., § 410.30). (4444 W. Sunset Rd., 

LLC v. Y Travel, LLC (July 26, 2018, G055103) [nonpub. opn.].) That ruling and our 

reversal there have no bearing on this appeal. 
3

increasing every two years with a cost of living adjustment. The lease did not last to see 

a rent increase. The court found the lease was terminated after just 15 months.

Following a one-day bench trial in which the court heard from three 

witnesses, including Haggerty, the court found that Y Travel “paid $3,000 for the first 

four months of the lease and nothing thereafter.” Y Travel continued to occupy the 

premises, but it did not pay any rent through the rest of 2013, or in 2014. Sometime near 

the end of April 2014, Sunset sold the property. The court found that before doing so, 

Sunset “paid the defendant $10,000 to move out.” The $10,000 check Sunset gave 

Y Travel was dated April 25, 2014. The court noted that “[t]he memo line on the check 

says, ‘Ended lease, Moved out.’”

At trial, the court asked Haggerty during his testimony, “Well, here is my 

question. If you thought somebody owed you [back rent], why would you pay them ten 

[thousand dollars]?” Haggerty answered, “Because I didn’t have legal fees that I was 

going to have to pay [to evict Y Travel],” and even if he could gather the fees, he 

believed the ensuing delay for eviction would only make him “fall further behind” on the 

value of the property. He was trying to sell the property and had found a buyer. He 

explained, “The timing—you know, time was of the essence if I was going to have this 

potential buyer perform.” 

The court’s line of questioning at trial indicated it concluded Sunset was 

“motivated to sell the property.” Additionally, when the court asked Haggerty whether, 

“to your knowledge, [were] there any defenses that Y-Travel could assert that would 

prevent you from evicting them,” Haggerty rephrased the question as, “Would there be a 

reason why they could say they didn’t have to pay us?” The court responded, “Correct,” 

and Haggerty answered, “No.” Haggerty also testified that “[t]here was certainly not a 

discussion [with Y Travel], ‘Oh, you don’t owe me for the back rent that you didn’t pay 

me.’ That didn’t happen.” 
4

The court in its ruling found that “by selling the leased premises, the 

plaintiff was releasing defendant from the lease and excusing any future rent due as of 

4-25-2014.” (Italics added.) The court found that neither selling the property, nor paying 

Y Travel to move out excused Y Travel’s obligation to pay back rent. The court relied on 

a provision in the lease stating that the lessor’s reentry and repossession of the property 

did not “‘work[] a forfeiture of the rents to be paid . . . .’”

Curiously, although the court found Y Travel’s rent shortfall was $4,000 

for each of the first four months of the lease—with lessee paying only $3,000 of the 

$7,000 due in those months—the court in its ruling appears to have given Y Travel credit 

for six months of payments. Sunset does not challenge that finding on appeal. 

Specifically, the court found “[t]he unpaid rent was $4,000 times 6 months and $7,000 

times 9 months as of 4-25-2014,” totaling $87,000. 

Sunset also does not challenge the trial court’s liquidated damages finding. 

The court concluded that although the rent due before the parties terminated the lease 

going forward “equals $87,000, the plaintiff admits that it is limited by the liquidated 

damages clause in the lease to $72,305.” The court awarded Sunset that amount as its 

damages on its breach of contract cause of action. Y Travel now appeals. 

DISCUSSION

As a preliminary matter, we note that Y Travel appeals from the trial 

court’s statement of decision following its minute order in Sunset’s favor. “The general 

rule is that a statement or memorandum of decision is not appealable. [Citations.] The 

rule’s practical justification is that courts typically embody their final rulings not in 

statements of decision but in orders or judgments.” (Alan v. American Honda Motor Co., 

Inc. (2007) 40 Cal.4th 894, 901 (Alan).)

Nevertheless, “[r]eviewing courts have discretion to treat statements of 

decision as appealable when they must, as when a statement of decision is signed and 
5

filed and does, in fact, constitute the court’s final decision on the merits.” (Alan, supra, 

40 Cal.4th at p. 901.) That is the case here. “[A] statement of decision is not treated as 

appealable when a formal order or judgment does follow . . . ” (ibid., italics added), but 

that did not occur here. The court’s signed statement of decision resolved all the issues 

between the parties, including damages in favor of Sunset. We therefore proceed with 

our analysis, treating the statement of decision as the judgment. (Ibid.) 

We review the trial court’s interpretation of a contract de novo, except 

when conflicting extrinsic evidence was admitted, in which case the substantial evidence 

rule applies. (Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 625.) 

When the extrinsic evidence is in conflict, “and thus requires resolution of credibility 

issues, any reasonable construction will be upheld if it is supported by substantial 

evidence.” (Founding Members of the Newport Beach Country Club v. Newport Beach 

Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.)

In its opening brief, Y Travel contends that Sunset’s decision to terminate 

the lease in order to sell the property constituted an anticipatory breach by Sunset of the 

remaining term of the lease. Y Travel argues this preemptive breach gave it a right to 

“damages for [Sunset] terminating the Lease.” In essence, Y Travel suggests the $10,000 

Sunset paid it to vacate the premises constituted a net damages calculation. In other 

words, Y Travel contends that the parties implicitly agreed the $10,000 figure offset in 

Y Travel’s favor its damages for giving up the remaining years on the leasehold against 

Sunset’s right, if any, to back rent up to the point Y Travel vacated the property.

The flaw in Y Travel’s argument is that no evidence indicates it suffered 

any damages from ending the lease early. Y Travel does not explain how it would be 

entitled to damages for being deprived of a remaining lease period for which the record 

strongly suggested it could not pay. Furthermore, Y Travel points to no evidence that, 

even assuming it was able to pay the current rent, it suffered damages because 

comparable premises were only available at a higher rent. If other locations were 
6

available at a cheaper rent, Y Travel did not suffer damages from what it characterizes as 

an anticipatory breach which forced it out of the property. The parties must produce their 

evidence at trial (e.g., Evid. Code, §§ 350-351, 412), and Y Travel presented none 

bearing on the net damage calculation it now implies in its argument related to the 

$10,000 payment. 

Nor does Y Travel suggest that in having to leave the premises it lost out on 

business profits from scuttled bus trips or otherwise. It has long been the rule that 

damages for prospective losses must be established by evidence that “makes reasonably 

certain their occurrence and extent.” (Grupe v. Glick (1945) 26 Cal.2d 680, 693.) 

Y Travel offered no evidence to show it suffered damages of any kind from ending the 

lease early.

Y Travel cites the Restatement Second of Contracts to argue that, upon an 

anticipatory breach, the innocent party’s “remaining duties or obligations under the 

contract would have been discharged.” (Rest. 2d, Contracts (1981) § 253.) Y Travel 

invokes this authority to assert it owed no back rent. But when this provision is closely

examined, it makes clear that the party’s future performance is excused by the other’s 

anticipatory breach—it says nothing about absolving the party of its obligation to pay 

back rent or any other liability for past obligations it did not perform.

In any event, the record does not suggest an anticipatory breach here. 

Instead, the parties’ 2013 lease contract provided that they could amend the lease in a 

“writing . . . signed by both parties.” The $10,000 check on its face meets that 

requirement stating, “Ended Lease [and Y Travel] Moved out.” The check was signed by 

Haggerty on behalf of Sunset, and by Y Travel’s representative to cash it. The check did 

not say that the $10,000 figure was for damages owed to Y Travel or that it released 

Y Travel from back rent responsibility. 

The trial court heard extrinsic evidence related to the parties’ intent in 

terminating the lease, and the court’s ruling indicates it credited Haggerty’s explanation 
7

that there was no mutual intent to relieve Y Travel of its duty to pay rent that was past 

due. This rebutted what Y Travel characterizes as a “disputable” (presumably meaning 

“rebuttable”) presumption “‘[t]hat money paid by one to another was due to the latter.’” 

(Citing Nev. Rev. Stat. § 47.250 (italicized by Y Travel).)

Haggerty’s testimony was also consistent with the 2013 lease’s express 

provision that upon nonpayment of rent or other default, “The Lessor may . . . at its 

option . . . re-enter and take possession of” the property “without such re-entering 

working a forfeiture of the rents to be paid . . . .” This language furnished objective 

evidence that both parties intended past due rent to be paid. “The parties’ expressed 

objective intent, not their unexpressed subjective intent, governs.” (Securitas Security 

Services USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1125.) Because the 

parties did not alter this language when they ended their lease, the trial court reasonably 

could find it was still controlling. 

The fact that the parties terminated the lease with the issuance of a check on 

a specific date supports the court’s conclusion that the lease was terminated from that day 

forward, rather than that the parties meant to void the lease from its inception. The 

parties chose not to use language like “ended ab initio” or “void from the beginning.” 

Sunset’s sale of the property and termination of the lease supported the court’s 

conclusion Y Travel’s obligation to pay rent was “release[ed]” going forward because 

Y Travel could not continue to use the property. That did not require the court to 

conclude Y Travel was no longer required to pay for its previous occupancy under the 

lease. Viewed as a whole, the record supports the trial court’s ruling that Y Travel’s 

unpaid rent—up until termination of the lease—was still due.3

3

The trial court reduced this amount, $87,000, to what it viewed as the 

$72,305 in “liquidated damages” that was conceded by Sunset. Sunset in its trial brief 

sought both the $87,000 figure and $72,305 in what it characterized as liquidated 

damages for the remaining term on the 2013 lease after April 2014. The trial court 

concluded Sunset was not entitled to any rent after April 2014 because the parties ended 
8

Y Travel complains Sunset gave “no written notice of default” for unpaid 

rent before filing its breach of contract claim; but notice was not required. Thirty days’ 

notice was required when the lessor alleged breach of “any of the other covenants” in the 

lease (¶ 9.01(c), italics added), but not for unpaid rent (¶ 9.01(a)). 

This distinction forecloses Y Travel’s waiver claim. Y Travel relies on 

case authority that “[a] lessor’s acceptance of rents with knowledge of prior breaches can 

constitute a waiver of conditions precedent,” including payment of rent as a condition for 

“the exercise of an option to purchase.” (Summa Corp. v. Richardson (Nev. 1977) 

564 P.2d 181, 184.) Here, there was no purchase option at issue. 

More importantly, there were no contractual preconditions on the lessor’s 

right to collect rent. Thus, there was no waiver or “relinquishment of a known right” 

(Merrill v. DeMott (Nev. 1997) 951 P.2d 1040, 1046) when Sunset did not provide a 

notice of default or otherwise pursue rent before filing its lawsuit for breach of contract. 

No time limit in the lease constrained Sunset’s right to collect rent. Y Travel does not 

suggest Sunset’s suit fell outside the statute of limitations. Simply put, because there 

were no conditions precedent in the lease on Sunset’s right to pursue past due rent, Sunset 

cannot be said to have waived its right to collect rent by failing to fulfill collection 

prerequisites. There were none. Y Travel’s waiver claim therefore fails.

The same is true for estoppel. The elements of estoppel are identical under

California and Nevada law, on which Y Travel relies. They include, as Y Travel 

correctly sets forth, the following: “(1) the party to be estopped must be apprised of the 

true facts [relevant to the estoppel claim]; (2) he must intend that his conduct shall be 

acted upon, or must so act that the party asserting estoppel has the right to believe it was 

the lease, with Sunset’s sale of the property effectively “releasing defendant from the 

lease and excusing any future rent due.” The court nevertheless reduced Sunset’s 

damages for back rent to the liquidated damages amount. Because Sunset does not 

appeal that decision, we express no opinion on whether this was error.
9

so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; 

[and] (4) he must have relied to his detriment on the conduct of the party to be estopped.” 

(Cheqer, Inc. v. Painters & Decorators Joint Comm., Inc. (Nev. 1982) 655 P.2d 996, 

998-999; accord, e.g., Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 756.)

Y Travel asserts these elements were met because “Sunset was apprised of 

the true facts, specifically, that it agreed to terminate the Lease, that Y-Travel would 

move out, that Y-Travel would rent Haggerty’s other property, and that Y-Travel would 

owe no damages to Sunset.” But these “facts” do not establish estoppel. All but the last 

were known to both sides, not just Sunset, and therefore are not grounds for estoppel. 

Those facts include that they agreed to end the lease; Y Travel would move out; and 

Haggerty would rent another property to Y Travel. Y Travel discloses no information 

about the other rental, except to state that it was “Haggerty’s other location, and 

[Y Travel] stopp[ed] its rent payments on the Property” going forward. That says 

nothing about any back rent due on the former property that already accrued.

Y Travel’s assertion Sunset knew Y Travel “would owe no damages to 

Sunset” for back rent is argument; it is not a fact. It is a claim that both parties mutually 

agreed to a “no back rent” term. Y Travel failed to prove its claim. Haggerty denied this 

was the parties’ agreement, testifying to the contrary: “There was certainly not a 

discussion, ‘Oh, you don’t owe me for the back rent that you didn’t pay me.’ That didn’t 

happen.” 

The trial court’s ruling reflects that it believed Haggerty. That is fatal to 

Y Travel’s estoppel argument because, “with respect to equitable issues, the trial court is 

the trier of fact.” (Hopkins v. Kedzierski, supra, 225 Cal.App.4th at p. 745; accord, In re 

Harrison Living Trust (Nev. 2005) 112 P.3d 1058, 1061.) Y Travel presents nothing to 

indicate the trial court was required to disbelieve Haggerty as a matter of law. The 

parties’ agreement that the lease had ended was consistent with awarding Sunset back 
10

rent for amounts due up until the lease terminated, and none thereafter. We therefore 

affirm the trial court’s award.

DISPOSITION

The trial court’s decision awarding Sunset $72,305 on its breach of contract 

claim is affirmed. Sunset is entitled to its costs on appeal.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.