Filed 11/15/22 1351 Orizaba Avenue v. Nissani CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

 

1351 ORIZABA AVENUE, LLC,

Cross-complainant and 

Respondent,

 v.

HOOMAN MICHAEL NISSANI,

Cross-defendant and 

Appellant.

 B305765

 Los Angeles County

Super. Ct. No. BC651307

APPEAL from a judgment of the Superior Court of Los 

Angeles County, David Sotelo, Judge. Affirmed.

 McCreary and Duncan J. McCreary for Cross-defendant 

and Appellant.

Madden, Jones, Cole & Johnson and Montgomery Cole for 

Cross-complainant and Respondent.

____________________
2

HTL Automotive, Inc. and Hooman Michael Nissani 

(together, Tenant) leased commercial property from 1351 Orizaba 

Avenue, LLC (Landlord). The lease obliged Tenant to repair the 

property, to maintain it, and to surrender it in good order. The 

lease addendum warned “the roof of the Premises leaks.” Tenant 

did not repair the property during the entire nine-year lease term 

and surrendered it in bad shape. The parties sued each other, 

with Tenant seeking damages from environmental remediation 

efforts unrelated to any roof leaks, and Landlord seeking unpaid 

rent, late fees, and damages relating to the property’s condition. 

After a bench trial, the trial court awarded Landlord roughly 

$750,000 and Tenant nothing. We affirm. Tenant failed to 

demonstrate reversible error. 

As in other appeals, we presume the trial court reached the 

right result. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) 

Appellants have the burden to establish error justifying reversal 

by presenting pertinent legal authority and factual analysis 

supported by appropriate record citations. (Ibid.; Keyes v. Bowen

(2010) 189 Cal.App.4th 647, 655.) They also must provide a 

summary of significant facts of record and must state the facts 

fairly. (Cal. Rules of Court, rule 8.204(a)(2)(C); Fernandes v. 

Singh (2017) 16 Cal.App.5th 932, 940–941, 944.) As we will 

explain below, Tenant failed to carry its burden here. 

The following principles guide our review. Generally, the 

meaning of the parties’ contract is a legal question subject to our 

independent review. (See Bear Creek Master Assn. v. Southern 

Cal. Investors, Inc. (2018) 28 Cal.App.5th 809, 818–819.) To the 

extent Tenant’s appeal challenges the trial court’s factfinding, we 

determine whether substantial evidence supports the 

findings. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 
3

581–582.) Finally, we review a trial court’s refusal to exclude 

expert testimony for abuse of discretion. (Burton v. Sanner

(2012) 207 Cal.App.4th 12, 18, 22.)

We now turn to Tenant’s three appellate arguments.

I

Tenant first contends the damages award was improper

because “a significant portion” of it arose from conditions (a leaky 

roof) that predated the lease, and a tenant is not responsible for 

improving the landlord’s property. There are multiple problems 

with this contention. 

A

Tenant relies entirely on distinguishable cases involving 

different leases. 

This lease makes Tenant solely responsible for repairs and 

maintenance, including restorations and replacements when 

needed to keep the property in good order. We excerpt the key 

language from the section titled “Maintenance; Repairs, Utility 

Installations; Trade Fixtures and Alterations” and include the 

subsection titles. The emphasis is ours:

Section 7.1(a), Lessee’s Obligations: “Lessee shall, at 

Lessee’s sole expense, keep the Premises . . . in good order, 

condition and repair (whether or not the portion of the Premises 

requiring repairs, or the means of repairing the same, are 

reasonably or readily accessible to Lessee, and whether or not the 

need for such repairs occurs as a result of Lessee’s use, any prior 

use, the elements or the age of such portion of the Premises), 

including, but not limited to, all equipment or facilities, such as 

. . . walls (interior and exterior), foundations, ceilings, roofs, roof 

drainage systems, floors, windows, doors . . . located in, on, or 

adjacent to the Premises. Lessee in keeping the Premises in good 
4

order, condition and repair, shall exercise and perform good 

maintenance practices, . . . . Lessee’s obligations shall include 

restorations, replacements or renewals when necessary to keep the 

Premises and all improvements thereon or a part thereof in good 

order, condition and state of repair.”

 Section 7.2, Lessor’s Obligations: “it is intended by the 

Parties hereto that Lessor have no obligation, in any manner 

whatsoever, to repair and maintain the Premises, or the 

equipment therein, all of which obligations are intended to be 

that of the Lessee. It is the intention of the Parties that the 

terms of this Lease govern the respective obligations of the 

Parties as to maintenance and repair of the Premises, and they 

expressly waive the benefit of any statute now or hereafter in 

effect to the extent it is inconsistent with the terms of this 

Lease.” 

Section 7.4(c), Surrender; Restoration: “Lessee shall 

surrender the Premises by the Expiration Date or any earlier 

termination date, with all of the improvements, parts and 

surfaces thereof broom clean and free of debris, and in good 

operating order, condition and state of repair, ordinary wear and 

tear excepted. ‘Ordinary wear and tear’ shall not include any 

damage or deterioration that would have been prevented by good 

maintenance practice.” 

The addendum to the lease states: “Lessee will assume all 

obligations and liability with respect to use, maintenance, repair 

or possession of the Premises during the term of the Lease. 

Lessee will at Lessee’s own expense maintain the property in 

good mechanical condition and running order, allowing for 

reasonable wear and tear.” 
5

As mentioned, the addendum also told Tenant the roof 

leaks and therefore alerted Tenant to a specific area in need of 

repair and maintenance. Yet Tenant concedes it made no repairs 

during the tenancy. Tenant has not established the trial court 

erred in concluding that the lease was unambiguous and that 

Landlord “is entitled to recover damages for the reasonable cost 

of repairing the damage to the premises caused by the abject 

failure of [Tenant] to perform any maintenance or repair for over 

nine years.” 

As for Tenant’s cases, Haupt v. La Brea Heating & Air 

Conditioning Co. (1955) 133 Cal.App.2d.Supp. 784, 788–789 is 

distinguishable because the lease there, unlike the one here, had 

no provision regarding the tenant’s duty to make repairs other 

than a provision regarding the floor; the court accordingly found 

awarding roof-related damages was improper. Haupt made clear 

there is no burden to improve property absent an express 

covenant to do so. (Ibid.) 

In Lynn v. De Pue Warehouse Co. (1962) 198 Cal.App.2d 

742, 743–744, 746–747 (Lynn), the court found property damage 

met various exceptions to the tenant’s covenant to repair and 

therefore was the landlord’s responsibility under the lease. 

Tenant points to no applicable lease exception here.

Iverson v. Spang Industries, Inc. (1975) 45 Cal.App.3d 303, 

310–311 (Iverson) and Kanner v. Globe Bottling Co. (1969) 273 

Cal.App.2d 559, 563, 565–566 (Kanner) rely on Haupt and Lynn

and do not involve repair and replacement provisions like those 

here. Thus their comments regarding a tenant’s general lack of 

duty to improve property or to repair preexisting damage are not 

controlling. 
6

In dicta, most of these cases mention a general rule of 

interpreting repair covenants to avoid an unwarranted burden of 

improvement on tenants. (Lynn, supra, 198 Cal.App.2d at p. 746; 

Iverson, supra, 45 Cal.App.3d at p. 310; Kanner, supra, 273 

Cal.App.2d at p. 565.) But Tenant’s trial court and appellate 

court presentations do not establish any such burden was 

unwarranted here, in light of the lease language and Tenant’s 

failure to make any repairs during the lease term.

B

The second problem with Tenant’s damages argument is it 

springs from a faulty premise. Tenant maintains it was 

undisputed the roof was dilapidated at the start of the lease. 

This is incorrect, and there was substantial evidence that much 

roof-related damage arose during the tenancy. Landlord 

witnesses testified there was one leak at the outset of the lease, 

roof cracks present at that time are not uncommon and were 

repairable, and the property was in “decent shape” before Tenant 

leased it; but after the tenancy, water poured into the building 

everywhere “like a waterfall,” the roof was “severely 

compromised” and beyond repair, and the water damage was, 

according to one expert, “probably the worst situation” he had 

ever seen. 

Nissani and other Tenant witnesses disputed the roof was 

ever in good shape, claiming the preexisting roof damage and 

leaks were extensive. The trial court sided with Landlord’s 

witnesses over Tenant’s. We may not substitute the trial court’s 

assessment of witnesses’ credibility with ours. 

C

A third problem relates to Tenant’s insufficient argument 

and presentation of the facts. 
7

Landlord’s claimed damages concerned physical damage to 

many parts of the property, including damage seemingly 

unrelated to roof leaks. For example, there was testimony about 

removed bathrooms, a nonfunctioning/“deconstructed” HVAC 

system, a damaged sprinkler system, and doors with holes and 

missing or broken push bars. Yet Tenant’s briefs never spell out 

what damage the award covers. Tenant says Landlord should 

not have received a new roof and other repairs necessitated by 

“the leaking roof” but never identifies what these repairs are. 

(There was testimony the property actually was five connected 

buildings with either wood or metal roofs.) Accordingly, even if 

Tenant’s broad arguments about roof and related water damage 

were correct, Tenant has not established how the award is 

erroneous using references and citations to the evidence. 

Our job is not to develop appellants’ arguments for them or 

to scour the record for evidence supporting their positions. (See 

United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 

Cal.App.5th 142, 153, 156; see also Nielsen v. Gibson (2009) 178 

Cal.App.4th 318, 324 [“[A]n appellant must not only present an 

analysis of the facts and legal authority on each point made, but 

must also support arguments with appropriate citations to the 

material facts in the record. If he fails to do so, the argument is 

forfeited.”].)

II

Tenant next argues Landlord improperly passed off its 

renovation costs through its expert, and the trial court should 

have excluded this expert’s testimony. The expert studied the 

damage to the property, determined what it would cost to repair 

the damage, and tried to include only repairs attributable to the 

damage in his report, not upgrades or improvements. He 
8

admittedly did not know the condition of the property at the 

outset of the tenancy; he got involved in the property after 

Tenant left. 

This does not mean the testimony was irrelevant or 

improper, however, as the Landlord’s principal was a gatekeeper 

on damages: he was familiar with the condition of the property 

before the tenancy and testified he only sought damages 

attributable to the tenancy, excluding normal wear and tear, and 

he did not include renovations. The expert’s testimony was 

needed to establish the costs of remedying the damage identified. 

It was relevant. The trial court properly noted Tenant’s 

objections went to the weight of the evidence and properly 

permitted the testimony. 

III

Finally, Tenant argues the waste cause of action fails 

because there was no evidence of a substantial or permanent 

diminution of the property’s market value, as required under 

cases like Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 

776–777. Proof of the amount of property damage is not enough, 

Tenant maintains. But Smith signals courts can infer a drop in 

market value from certain property conditions, and the roofrelated testimony of Landlord’s witnesses highlighted above 

arguably suffices. (Id. at pp. 777–778; see also id. at p. 777 [loss 

of market value is a measure that “will be applied flexibly”].) 

Even if it did not, the trial court’s finding of waste was 

harmless: the court did not segregate damages between 

Landlord’s two causes of action (breach of contract and waste) 

and did not say what damages, if any, were attributable to the 

waste claim alone. 
9

Tenant has established neither improper damages nor 

error requiring reversal. 

DISPOSITION

We affirm the judgment and award costs to 1351 Orizaba 

Avenue, LLC. 

 WILEY, J.

We concur: 

 STRATTON, P. J. 

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.