Filed 12/2/15 Lion 2020 7th Street v. Zepeda CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LION 2020 7th STREET, LLC,

Plaintiff and Respondent,

v.

SALVADOR ZEPEDA et al.,

Defendants and Appellants.

 B258424

 (Los Angeles County

 Super. Ct. No. BC544259)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Gregory W. Alarcon, Judge. Affirmed.

Law Offices of Lottie Cohen and Lottie Cohen for Defendants and Appellants.

Hollenbeck & Cardoso and Tania Cardoso for Plaintiff and Respondent.

__________________________
2

Salvador Zepeda and Agustin Zepeda appeal from both the unlawful detainer 

judgment in favor of the lessor of the building where they operated their restaurant and 

the trial court’s order denying their motion for relief from forfeiture of the lease on the 

ground of undue hardship. Because the appellate record does not include a reporter’s 

transcript of the unlawful detainer trial, we presume that the findings in the trial court’s 

statement of decision and order denying relief from forfeiture were correct. We affirm 

both rulings.

FACTS AND PROCEDURAL HISTORY

In April 2002, Salvador Zepeda entered a four-year written lease of a building on 

East 7th Street in Los Angeles where he operated his restaurant and dance/banquet hall 

known as the Chavas Café. (We will refer to Salvador and Agustin Zepeda by their first 

names, or collectively as appellants.) The lease required Salvador to: (1) provide copies 

of all necessary business licenses and operation permits; (2) keep in place a liability 

insurance policy with coverage limits of $2 million per occurrence that named the lessor

as an additional insured; (3) pay the cost of any insurance premium increases; and 

(4) cover his proportionate share of any property tax increases.

In 2005, the lessor and Salvador signed an addendum extending the lease until 

2012, along with scheduled increases in the monthly rent. The addendum also provided 

an option to extend the lease another five years. Although Salvador was the sole lessee, 

the 2005 addendum stated that “these options” were also extended to Salvador’s son, 

Agustin. Both Salvador and Agustin signed the 2005 addendum. Another undated 

addendum signed by Salvador and Agustin describes a five-year lease extension option 

that would run until 2010. The undated addendum refers to the parties as being Salvador 

and the original lessor. Another addendum dated in July 2011 extended the lease through 

April 2017, along with scheduled rent increases. That addendum referred to both 

Salvador and Agustin as lessees and was signed by each of them.

The original lessor sold the property to Lion 2020 7th Street, LLC in December 

2013. On December 31, 2013, Lion sent four letters to Salvador demanding that, 

pursuant to the lease, he: (1) provide copies of all required business licenses and permits; 
3

(2) provide a copy of a liability insurance policy with limits of $2 million per occurrence 

that named Lion as an additional insured; and (3) pay a property tax increase of more 

than $19,000 that resulted from the sale of the property. On March 18, 2014, Agustin 

gave Lion a copy of an insurance policy with coverage limits of $1 million per 

occurrence, but made no further attempts to comply with Lion’s demands at that time.

On March 27, 2014, Lion gave 10- and 30-day notices to comply with the lease 

provisions or quit the premises. The notices were served on Salvador but stated that they 

applied to all others in possession. The 10-day notice was based on the failure to provide 

copies of both the requisite business licenses and permits as well as a copy of an 

insurance policy that named Lion as an additional insured in the amount of $2 million per 

occurrence. The 30-day notice was based on the failure to pay the property tax increase 

of $19,000 or a liability insurance premium increase of more than $6,100.

On April 17, 2014, Agustin provided copies of all required permits and licenses 

except one: a City of Los Angeles tax registration certificate for retail sales. Instead, 

Agustin provided only a copy of a tax registration certificate for “music machines.” 

Appellants never paid the property tax or insurance premium increases. On April 30, 

2014, Lion brought an unlawful detainer action against Salvador only.

Agustin was the lone defense witness at the two-day bench trial in June 2014. One 

of the primary issues raised both at trial and on appeal was whether Agustin was in fact 

Salvador’s cotenant. If so, as appellants contend, then the notices to quit and the 

complaint were both defective because they did not name and were not served on 

Agustin. As a result, any judgment for Lion would have no effect on Agustin’s right to 

stay on the property.

Because appellants failed to designate the reporter’s transcript of the trial, we are 

left with only the trial court’s statement of decision and concomitant findings to describe 

the trial testimony. The lease required the landlord’s written consent before Salvador 

could assign any portion of his interest to another person and Agustin “testified that he 

had not signed an addendum adding him to the lease as a formal tenant.”
4

According to the statement of decision, a witness for Lion testified that Salvador

received both notices to quit. Agustin admitted seeing the 30-day notice, but denied 

seeing the 10-day notice. Agustin testified that after reading Lion’s demand letters he 

consulted a lawyer and an accountant. He claimed that he did not review the lease terms 

dealing with liability insurance or licensing requirements because he believed the 

property tax and insurance premium demands were more important. Agustin also 

testified that he did not obtain a liability insurance policy in the correct amount and form 

until May 28, 2014.

The trial court found that the 30-day notice to quit was defective because it was 

premature and because Lion’s estimate of the property tax owed “far exceeded” a 

reasonable estimate. However, the trial court found for Lion on the 10-day notice to quit

based on the failure to provide copies of all required business operation permits and the 

failure to have had in place the proper liability coverage. The trial court awarded Lion 

holdover damages of nearly $14,000 and attorney fees and costs of nearly $3,000.

As for the status of Agustin’s possessory interest, if any, in the leased premises, 

the trial court found that he “had not signed any specific addendum specifically adding 

himself to the lease as a formal tenant.” Code of Civil Procedure section 1164 states that 

only tenants and subtenants who actually occupy the premises need be named in an 

unlawful detainer complaint.1It also provides that anyone who “enter[s] the premises 

under the tenant” after the action starts is bound by the judgment as if they had been 

made a party. Relying on this provision, the trial court found that Agustin’s absence 

from the complaint was not fatal to the unlawful detainer claim and that he was bound by 

the judgment.

The trial court then granted a motion by Lion to add Agustin as a defendant, 

stating that the amendment was “not at material variance with the complaint” and did not 

mislead Agustin or prejudice his ability to defend the action. The trial court found that 

Agustin “had every right and opportunity to be heard by the court, was heard by the 

 

1 All further section references are to the Code of Civil Procedure.
5

court, and has been added as a Defendant.” As a result, Agustin would be “treated as a 

co-lessee.” Although the statement of decision said that judgment would be entered 

against both Salvador and Agustin, the judgment itself identified only Salvador and all 

occupants of the premises.

Before judgment was entered appellants filed a motion asking for relief from their 

lease forfeiture on the ground that the judgment would create undue hardship to 

themselves, their employees, and customers who had rented the banquet hall for 

upcoming special occasions. (§ 1179.) Agustin’s supporting declaration claimed that the 

family-run business stood to lose capital investments over the years that exceeded 

$500,000. In addition, they would lose their clientele and good will that they had built up 

since the restaurant began operating in 1979. Agustin also listed numerous deposits taken 

to reserve the banquet hall from July through December 2014. In addition to losing the 

deposits, those events would be disrupted, he said. Based on the restaurant’s past 

performance, Agustin estimated lost income of $640,000 due to the early termination of 

the lease.

Agustin said that insurance had always been in effect, albeit in the amount of 

$1 million per occurrence and $2 million in the aggregate, and that he had simply 

misunderstood the lease requirement of a policy with limits of $2 million per occurrence. 

A policy in the correct amount was obtained in May 2014, which was “retroactive.” He 

also said that the Los Angeles city tax registration statement for “music machines” was 

meant to include retail sales. Agustin said he had tendered the monthly rent to Lion’s 

counsel for May through July 2014 and that he would comply with court-imposed 

conditions for forfeiture relief, including the property tax increases.

The trial court denied the forfeiture relief motion at the same time it issued its final 

statement of decision. The trial court found that relief based on hardship to others was 

improper because separate petitions had not been filed by those supposedly harmed. As 

for appellants, the trial court found that the petition did not show extreme or convincing 

hardship because appellants could move to a new location. Finally, the trial court found 

that appellants’ failure to comply with Lion’s lease performance demands appeared 
6

willful in light of Agustin’s testimony that he chose to ignore the 10-day notice to quit 

and instead continued to book banquet hall reservations and take deposits even after the 

initial statement of decision was issued. Weighing the equities, the trial court found that 

appellants effectively brought about their own difficulties.

On August 25, 2014, appellants filed a notice of appeal from the judgment, and the 

next day filed a petition for writ of mandate with this court, along with a request to stay 

enforcement of the judgment (case No. B258418). On August 28, 2014, we issued a 

temporary stay and ordered Lion to respond. We denied the writ petition on October 2, 

2014. On October 17, 2014, appellants filed with this court a motion to stay the 

judgment pending appeal. Five days later the Los Angeles County Sheriff’s Department 

executed a lockout of the premises. On November 25, 2014, we decided to treat the stay 

motion as a writ of supersedeas and issued a stay of execution. We denied that writ on 

December 16, 2014, after Lion informed us that appellants were no longer in possession 

of the premises.

DISCUSSION

1. The Incomplete Appellate Record Compels Affirmance of the Judgment

A. The record supports a finding that Agustin was not a cotenant.

If the appellate record does not include a reporter’s transcript, and if no error is 

apparent on the face of the existing appellate record, the judgment must be conclusively 

presumed correct as to all evidentiary matters. We therefore presume that the unreported 

trial testimony would show that no error occurred. (Estate of Fain (1999) 75 Cal.App.4th

973, 992.) As a result, an appellant who fails to provide a reporter’s transcript cannot 

challenge a judgment based on the sufficiency of the evidence. (Ibid.)

Appellants contend this rule does not apply here because the 2011 lease addendum 

that purports to identify both Agustin and Salvador as lessees conclusively shows that 

Agustin was a cotenant. This contention overlooks the statement of decision, where the 

trial court said that, after reviewing the undated option to extend the lease signed by both 

Agustin and Salvador, Agustin testified that “he had not signed an addendum adding him 

to the lease as a formal tenant.” One representative of Lion testified that it was not clear 
7

in what capacity Agustin had signed either document. Another testified that Agustin 

acted as Salvador’s interpreter and that Agustin said his father was the decision maker. 

Based on this, the trial court found that Agustin “had not signed any specific addendum 

specifically adding himself to the lease as a formal tenant.”

Based on Agustin’s testimony that he never signed an addendum adding him as a 

cotenant, the trial court might well have found that the 2011 addendum did not actually 

approve Agustin as a cotenant and was simply recognition that Agustin was involved in 

the business and took part in any negotiations as Salvador’s interpreter. We must 

presume that the trial court did so and therefore see no error appearing on the face of the 

record. (Estate of Fain, supra, 75 Cal.App.4th at p. 994.) As a result, there was no need 

to serve Agustin with the notices to quit or name him in the complaint. (§ 1164 [only 

tenants and subtenants need be served].)

B. Agustin waived any objections to being added as a party.

Appellants contend the trial court erred by amending the complaint to add Agustin 

as a defendant after the trial ended. Lion contends the trial court properly exercised its 

discretion to do so under section 473, which permits amendments that add new parties at 

any time before judgment is entered. Appellants counter that amendments adding new 

defendants have been allowed only to correct technical pleading defects or misnomers. 

We need not resolve that issue, however. Instead, we turn once more to the statement of 

decision, where the trial court said Agustin “desired to make himself a party to the 

action.” Because the record does not include the reporter’s transcript from the trial or the 

hearing on Lion’s motion to amend, we presume that the trial court found Agustin asked 

to be added as a party and therefore waived any objections to the court doing so. (See 

Cochran v. Brown (1927) 84 Cal.App. 743, 748 [finding waiver of irregularity in adding 

a party defendant].)

We alternately hold that even if the trial court erred by adding Agustin as a 

defendant, that error was harmless because judgment was not entered against Agustin. 

(Moon v. Marker (1938) 26 Cal.App.2d 33, 38-39.)
8

C. The judgment against Salvador also binds Agustin.

The trial court found that its judgment would also bind Agustin pursuant to 

section 1164, which provides: “All persons who enter the premises under the tenant, 

after the commencement of the [unlawful detainer] suit, shall be bound by the judgment, 

the same as if he or they had been made party to the action.” Appellants contend the trial 

court erred because this section applies to only tenants and subtenants.

Appellants base this contention on the first sentence of section 1164, which states 

that “[n]o person other than the tenant of the premises and subtenant, if there be one, in 

the actual occupation of the premises when the complaint is filed, need be made parties 

defendant in the proceeding . . . .” However, the last sentence of this statute also provides 

that any unlawful detainer judgment is binding on all those who enter the premises under 

the tenant after the action is brought as if they had been made parties to the action. 

Therefore, the statute provides that although tenants and subtenants must be named as 

defendants to an unlawful detainer action, nonparties who enter the premises after the 

action is brought will be bound by the judgment.

At bottom, appellants’ contention rests on their mistaken belief that Agustin was a 

cotenant. As discussed above, the limited record on appeal supports the trial court’s 

finding that he was not a cotenant. Appellants do not address whether Agustin entered 

the premises under Salvador after the action was brought. We therefore deem that issue 

waived. (Luckett v. Keylee (2007) 147 Cal.App.4th 919, 927, fn. 11.)

Alternatively, given the silent record on this matter, we presume that the reporter’s 

transcript would show that Agustin, who had no legal possessory interest in the premises, 

entered at his father’s request after the unlawful detainer action commenced in order to 

protect his father’s possessory interest and is therefore bound by the judgment.

2. Judgment Was Proper Based Solely on the 10-day Notice to Quit

Section 1161.1 provides that a notice to cure unpaid rent or quit may state that the 

amount specified as owing is an estimate. (§ 1161.1, subd. (a).) So long as the amount 

stated was reasonably accurate, the landlord may still prevail in an unlawful detainer 

action. (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 534 (WDT-
9

Winchester).) If the estimate is within 20 percent of the amount actually owed, there is a 

rebuttable presumption that the estimate was reasonable. (§ 1161.1, subd. (e).) If the 

estimate was not reasonable, however, then the landlord cannot prevail. (WDTWinchester, supra, at p. 534.)

Relying on WDT-Winchester, supra, 27 Cal.App.4th 516, appellants contend they 

were entitled to judgment on the 10-day notice to quit because the trial court found that 

the 30-day notice to quit was defective for having overestimated the amount of property 

taxes owed. This contention rests on a misreading of WDT-Winchester. In that case, the 

lessor served two notices to cure or quit. The first specified the amounts owed for unpaid 

rent and property taxes, but did not state that those were estimates. The second notice did 

state that the amounts claimed were estimates. In both cases, the property tax figures 

were significantly higher than the actual amount owed. (Id. at pp. 523-524.) In reversing 

a judgment for the lessor, the WDT-Winchester court noted that the lessor argued on 

appeal that the first notice, which did not purport to supply an estimate, was the operative 

one, and that as a result, section 1161.1 did not apply. The Court of Appeal refused to 

consider that issue because it had not been raised below. (Id. at pp. 526-527.)

Appellants extrapolate from this that if one notice to cure a default or quit is 

defective, then judgment must be entered for the defendant even if another notice was 

proper. However, an appellate decision is authority for only those issues actually 

decided. (Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 956, 962.) Therefore 

appellants’ reliance on WDT-Winchester is misplaced.

Regardless, section 1161.1 applies only to notices to cure defaults for unpaid rent 

or other amounts owed. (§ 1161.1, subd. (a) [stating it is applicable to unlawful detainer 

actions for unpaid rent brought under § 1161, subd. 2].) Lion’s 10-day notice sought 

unlawful detainer under section 1161, subdivision 3 for defaults in conditions or 

covenants other than the payment of rent. Therefore, although section 1161.1 governed 

Lion’s 30-day notice based on estimates of amounts owed for property taxes and 

insurance premiums, it did not apply to the separate 10-day notice based on the failure to 

fulfill the lease covenants of supplying proof of the correct insurance and of having the
10

necessary business licenses and permits. Lion’s complaint was based on both notices to 

quit, and we view each as analogous to separate causes of action. This case is therefore 

unlike WDT-Winchester, supra, 27 Cal.App.4th 516, where the lessor’s notices to cure 

were based solely on claims for unpaid rent, property taxes, and other charges. We 

therefore conclude that the judgment for Lion was proper based on the 10-day notice to 

quit.

3. The Trial Court Did Not Err by Denying Appellants’ Motion for Relief From 

Forfeiture of the Lease

After the trial court issued its statement of decision, appellants moved for relief 

from the forfeiture of Salvador’s lease under section 1179. Under that section, 

application for such relief can be made by a tenant, subtenant, or any interested person. 

A ruling on such a motion lies so largely in the discretion of the trial court that it would 

require a very clear showing of an abuse of discretion to justify a reversal of an order 

granting or denying the motion. (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 

195 Cal.App.3d 1032, 1064.)

The mere fact that a hardship exists is not enough to warrant granting the motion 

because a hardship will exist in almost all unlawful detainer actions. (Thrifty Oil Co. v 

Batarse (1985) 174 Cal.App.3d 770, 777.) In balancing the equities, the trial court 

should consider the circumstances of the case, the hardships to both lessor and lessee 

from either granting or denying the motion, and whether the breach of lease was willful. 

(Ibid.)

The trial court’s written order denying the motion for relief from forfeiture found 

that appellants could not rely on hardships to others because the others – their employees 

and customers – had not filed separate applications for relief. The hardship to appellants 

was not sufficiently extreme, the trial court found, because a Lion representative testified 

he offered to help appellants relocate but they refused and took no steps to do so. 

According to the trial court, “loss of possession of the premises does not equate to loss of 

the business.”
11

The trial court also noted that appellants continued to book banquet hall 

reservations and take deposits even after the statement of decision was issued, showing 

that they had contributed to their own hardships. The trial court found that even after 

appellants had been counseled by a lawyer and an accountant they ignored their lease 

obligations. The trial court pointed to testimony by Agustin that he admitted ignoring the 

10-day notice to quit, although with an explanation, making the lack of compliance 

willful.

The trial court concluded that, by failing to obtain the proper insurance until after 

the action was filed, appellants exposed Lion to a risk of potential liability. Granting 

relief from forfeiture and reinstating Salvador until 2017 would prejudice Lion, which 

had properly made its formal demands for compliance, waited for compliance, and 

brought and litigated the unlawful detainer action, the trial court found. The trial court 

therefore found that the equities weighed in Lion’s favor and denied the motion.

Appellants raise three challenges to the trial court’s ruling: (1) a separate 

application by other affected parties was not required; (2) the trial court should not have 

relied on findings that appellants contributed to their own problems; and (3) the trial 

court’s findings and interpretation of the evidence are unsupported.

Accepting for the sake of discussion that the first contention is correct, we see 

little effect on our analysis because the essential claim of hardship was the effect on the 

business and, by extension, the Zepeda family.2 We disagree with the second for two 

reasons. First, denial of relief from a lease forfeiture may be based on the existence of 

hardships that are self-imposed. (Cambridge v. Webb (1952) 109 Cal.App.2d Supp. 936, 

938.) Second, the evidence is also relevant to the extent it shows a lack of good faith. 

(Thrifty Oil Co. v. Batarse, supra, 174 Cal.App.3d at p. 778.)

 

2

In finding that a separate application from injured third parties was required, the 

trial court relied on Artesia Medical Development Co. v. Regency Associates, Ltd. (1989) 

214 Cal.App.3d 957, 964-965. As appellants point out, the Artesia court merely recited 

section 1179 for the proposition that applications for relief may be made by affected 

persons other than a displaced tenant.
12

Most important, however, is the third contention, which asks us to examine (and 

essentially reweigh) the evidence at trial, yet does so in the absence of a reporter’s 

transcript. As we read the trial court’s order, it depended heavily on its own view of the 

evidence. Without the reporter’s transcript, we must presume that the unreported 

proceedings support the trial court’s factual findings. While we share appellants’ 

concerns and sympathize with their loss of the premises, the rules of appellate review 

compel us to affirm the trial court’s order.3

DISPOSITION

The unlawful detainer judgment against Salvador Zepeda, and the order denying 

appellants’ motion for relief from forfeiture of the lease, are affirmed. Respondent shall 

recover its appellate costs.

GRIMES, J.

I CONCUR:

FLIER, J.

 

3 Because we affirm on this basis, we need not reach Lion’s contention that our 

denial of appellants’ petition for writ of mandate collaterally estopped appellants from 

raising the issue again on appeal.
Lion 2020 7th Street v. Zepeda – B258424

RUBIN, J. – Concurring and dissenting.

I concur in the majority’s decision to the extent it affirms the unlawful detainer 

judgment for respondent Lion 2020 7th Street, but dissent from that part of the decision 

that affirms the order denying appellants’ motion for relief from forfeiture of the lease.

I acknowledge the trial court’s broad discretion in granting or denying motions for 

relief from lease forfeiture under Code of Civil Procedure section 1179. I also agree with 

the majority that, regardless of whether separate petitions were required by all those who 

might suffer hardship from the unlawful detainer judgment, the true focus here is on the 

hardship to the Zepeda Family, not to its customers. I believe that the hardships the 

family will suffer, seen in light of undisputed circumstances, mandate relief from the 

lease forfeiture.

Agustin Zepeda’s declaration in support of the forfeiture relief motion showed that 

Chava’s Café had been in operation since 1979. That is 35 years. It was a family-run 

business that served as the sole source of income for nine family members and their 

children, the loss of which left them unable to make the monthly mortgage payments on 

their homes or otherwise provide for their families. The Zepedas had made more than 

$500,000 in capital improvements to the premises, all of which will be forfeited. They 

were unable to relocate on such short notice.

As for their lease defaults, it is important to note that the Zepedas never defaulted 

in their rent and continued to tender rent payments while the unlawful detainer action was 

pending. The purported default for non-payment of property tax increases was rejected 

by the trial court as unsupported by the evidence. Instead, the Zepedas’ lease was 

terminated because they failed to maintain property insurance in the correct amount and 

because they could not show that they had obtained a proper business license from the 

City of Los Angeles.
2

Agustin explained that liability insurance had always been in place, with aggregate 

coverage limits of $2 million instead of the $2 million per occurrence limits required by 

the lease. This was due to his misunderstanding of what the terms “aggregate” and “per 

occurrence” meant. Misunderstanding is the stuff of which relief from forfeiture is made. 

And Agustin obtained a policy in the correct amount as soon as he learned of his error.

As for the supposedly unpaid business license fee, the judgment was based on a 

City of Los Angeles business license certificate that listed “Music Machines” as the 

described business, leading the trial court to conclude that the license did not cover the 

full spectrum of the café’s business operations. However, as Agustin explained and as 

the documents show, this was not the case. The account number on the “Music 

Machines” business license is 215698-0001-1. The city’s license renewal form for 2014 

lists as applicable under that account number a retail sales tax basis of more than 

$230,000, with a tax basis of $2 for amusement machines and $1 for music machines, for 

a total license fee of $362.42. Accompanying these documents is a check from Chava’s 

Café to the City of Los Angeles in that sum payable for that account number. In short, 

the Zepedas in fact had the proper business license, and the unlawful detainer judgment 

was based solely on a mix-up over the amount of property insurance required by the 

lease.

The trial court found that the absence of the proper insurance exposed respondent 

to potential liability. I acknowledge that theoretical possibility and the importance of 

insurance to the respondent, but the record does not show that any claims against the 

restaurant were made before the error was corrected, much less any that exceeded the 

incorrect coverage amount that had previously been in place. As for Agustin’s supposed 

bad faith in ignoring the 10-day notice to quit, there was no bad faith: Agustin was 

confronted with a claim that he owed $19,000 in readjusted property taxes. He dealt with 

that before other matters by asking respondent for proof of its property tax increase 

claim. Lack of bad faith was conclusively shown by the trial court’s finding that 

respondent had overstated the amount of the property tax increase, and that its claim was 

premature.
3

I acknowledge that this is an abuse of discretion case. I suggest that abuse of 

discretion is a standard that often defies articulation. Appellate courts often use the 

familiar “arbitrary, capricious or whimsical.” I do not suggest by my dissent that the trial 

court acted either capriciously or out of whimsy. Nor do I consider the ruling arbitrary in 

the sense that word is used to describe an act that is “done without concern for what is 

fair or right.” (Merriam-Webster’s Online Dictionary (2015) <http://www.merriamwebster.com/dictionary/arbitrary> [as of Dec. 2, 2015].) But appellate courts often hide 

behind the abuse of discretion standard to avoid addressing issues where deference to the 

trial court is questionable. This, I believe, is one of those cases.

Justice Howard Weiner wrote years ago that the abuse of discretion standard 

should be applied in terms of the proper roles of the trial and appellate processes in our 

jurisprudence:

“Focusing instead on the concept of ‘discretion,’ that term in one sense refers 

generally to the power to decide. But every court -- both trial and appellate -- has 

‘discretion’ in that sense. Whether the source of the power to decide is constitutional or 

statutory, the essence of the judicial function is decisionmaking. ‘Discretion’ in the sense 

of the ‘abuse of discretion’ standard refers instead to the relationship between the trial 

and appellate decisionmaking processes and, more particularly, to the amount of 

deference which appellate courts accord to trial court determinations. Discretion in this 

sense -- that is, trial court discretion -- is not a sacrosanct concept. Harsh as it may 

sound, the nature of the relationship between superior and inferior courts dictates that 

trial courts have discretion only to the extent appellate courts perceive a reason to defer. 

The breadth of trial court discretion is a function of the degree to which appellate courts 

exercise deference.” (Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 

1019, 1022, disapproved on another point in Shamblin v. Brattain (1988) 44 Cal.3d 474, 

479, fn. 4.) Justice Weiner suggests that the two areas where the appellate court should 

allow the greatest deference are situations in which factual determinations are involved 

and in trial management. (Id.)
4

We have neither here. To be sure there were factual determinations involved in 

the underlying trial but the facts related to the motion for relief from forfeiture were 

undisputed. Less deference should be afforded the trial court.

Even though the law abhors a forfeiture (Civ. Code, §§ 3275, 3369), not one 

reported appellate case has reversed the denial of a motion for relief from forfeiture under 

Code of Civil Procedure section 1179. Many of those cases deal with familiar facts such 

as a tenant refusing to pay rent for months in an attempt to force a landlord to make 

repairs when no obligation existed. (E.g. Cambridge v. Webb (1952) 109 Cal.App.2d 

Supp. 936, 938.) This is not that case. This case involves a venerable family owned 

business 35 years in operation, a family who had invested some $500,000 in capital 

improvements, a landlord found to have overreached when it demanded $19,000 in 

additional property tax reimbursements, and minor breaches of no practical consequence 

to the landlord. The hardship is obvious.

On the other hand, I see virtually no hardship to respondent by relieving the 

Zepedas of their lease forfeiture upon satisfaction of conditions that would remove any 

defaults. Nowhere does the landlord explain how it has been actually harmed by 

anything the Zepedas did or did not do. On the contrary the only apparent harm to the 

landlord by granting the relief from forfeiture would be the lost opportunity to deprive the 

Zepedas of favorable lease terms agreed upon with the landlord’s predecessor, and 

instead to lease the property to someone else.

Balancing the equities on the two sides compels the conclusion that there was no 

reasonable basis to deny the relief from forfeiture and, in the parlance of the present 

standard of review, the trial court abused its discretion in so ruling.

RUBIN, Acting P. J.