Filed 8/11/20 Reynolds v. Royal Garden Apartments CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CARL REYNOLDS et al.,
Plaintiffs and Respondents,
v.
ROYAL GARDEN APARTMENTS, INC.,
Defendant and Appellant.
B298112
(Los Angeles County
Super. Ct. No. EC068207)
APPEAL from an order of the Superior Court of the County of Los Angeles, John J. Kralik, Judge. Affirmed.
The Cameron Law Firm, Parry G. Cameron, James K. Autrey, and Howard P. Brody for Defendant and Appellant.
OceanBridge Law Firm and Macauley Ekpenisi; Samuel Ogbogu, Inc. and Samuel O. Ogbogu for Plaintiffs and Respondents.
I. INTRODUCTION
II.
Defendant Royal Garden Apartments, Inc. (landlord) appeals from the trial court’s denial of its motion to compel arbitration of a dispute with plaintiffs Carl and Natalie Reynolds (tenants). Landlord contends that the arbitration clause in the parties’ residential lease agreement is valid and enforceable. We affirm.
III. FACTUAL AND PROCEDURAL BACKGROUND
IV.
In September 2010, tenants entered into a written residential lease agreement (the lease) with landlord. The lease included section XVIII (the arbitration clause), which stated:
“Should any dispute arise between LANDLORD and TENANT relating to any matter (excluding an Unlawful Detainer case or other case, filed by LANDLORD, for possession, arrearages under this LEASE, as such may constitute past due rent/fees/costs and associated damages), such dispute shall be submitted to Arbitration instead of litigated in Court. The specific terms of Arbitration are stated in Addendum ‘B’, receipt of which is hereby acknowledged by TENANT.”
A space for “TENANT initials” followed the arbitration clause. On the copy of the lease attached to plaintiff’s complaint, the space does not appear to include initials.
The lease included an Addendum B, a three page, single-spaced document, which stated, in part, that the parties “VOLUNTARILY WAIVE ANY CONSTITUTIONAL RIGHT TO HAVE ANY DISPUTE BETWEEN THEM DECIDED BY A COURT OF LAW AND/OR BY A JURY IN COURT.” Addendum B was not separately signed or initialed by any of the parties.
On August 13, 2018, plaintiffs filed the operative first amended complaint against landlord alleging: (1) negligence; (2) breach of the warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) premises liability; (5) nuisance; and (6) intentional infliction of emotional distress.
On March 15, 2019, landlord filed its motion to compel arbitration, contending that plaintiffs agreed to arbitrate any dispute with landlord by signing the lease, which contained the arbitration clause. Tenants opposed the motion. They argued that the arbitration clause was void as contrary to public policy and substantively and procedurally unconscionable.
On April 26, 2019, the trial court conducted a hearing on landlord’s motion. The record does not include a reporter’s transcript or a suitable substitute, such as a settled or agreed statement. On May 1, 2019, the court issued a minute order denying the motion to compel arbitration. The minute order does not include a statement of reasons.
Landlord timely filed a notice of appeal from the trial court’s order.
V. DISCUSSION
VI.
A. Standard of Review
B.
“There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.” (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) If the trial court’s opinion rests upon a decision of fact, the reviewing court employs a substantial evidence standard. (Ibid.) If, however, the court’s denial relies upon a decision of law, the reviewing court adopts a de novo standard of review. (Ibid.)
C. Inadequate Record on Appeal
D.
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) An appellant must affirmatively establish error by an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) In the absence of a proper record on appeal, the appealable judgment or order is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296.)
Landlord contends that the trial court denied its motion to compel based upon a misapprehension of Jaramillo v. JH Real Estate Partners, Inc. (2003) 111 Cal.App.4th 394 (Jaramillo). As noted, the record, however, does not include the grounds for the trial court’s order: the minute order does not include an explanation for the ruling and there is no reporter’s transcript of the proceedings or a suitable substitute. (See Cal. Rules of Court, rule 8.120(b).) In its supplemental letter brief on the adequacy of the record, landlord maintains that we can infer from the record that the court adopted the reasoning of its tentative ruling. We disagree. Nothing in the record suggests that the court adopted all or even a portion of the reasoning in the tentative ruling when making its final decision after argument. Thus, we can, and do, affirm the denial of the motion on the grounds that landlord has failed to establish error by an adequate record.
E. We Would Affirm on the Merits
F.
Even if we were to consider the merits of landlord’s appeal based on the record provided, we would affirm. We agree with the reasoning of our sister court in Jaramillo, supra, 111 Cal.App.4th 394, that Civil Code section 1953, subdivision (a)(4) “establishes the general rule that a tenant of a residential premises cannot validly agree, in a residential lease agreement, to binding arbitration to resolve disputes regarding his or her rights and obligations as a tenant.” (Jaramillo, supra, 111 Cal.App.4th at p. 404., fn. omitted.) Here, the arbitration clause was contained in a residential lease agreement and is thus void.
Landlord contends, in its reply brief, that Addendum B constitutes a separate agreement and is thus enforceable. Landlord cites the following language from Jaramillo, supra, 111 Cal.App.4th 394 in support of its argument: “[N]othing in section 1953 precludes a tenant of residential premises and the tenant’s landlord from entering into a separate agreement to arbitrate that is entirely independent of any lease agreement. Certainly, section 1942.1 expressly authorizes a written agreement to arbitrate controversies ‘relating to a condition of the premises claimed to make them untenantable.’” (Id. at p. 404.) We reject landlord’s contention for numerous reasons.
First, we do not consider arguments raised for the first time in a reply brief. (Varjebedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11). Second, Addendum B is, by definition, an “addition” or “supplement” to the lease agreement (Merriam-Webster’s Online Dict. (2020)
VII. DISPOSITION
VIII.
The order denying the motion to compel arbitration is affirmed. Tenants are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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