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Scott Molinari et al v. Stephen Tebo

April 3, 2013

SCOTT MOLINARI ET AL., PLAINTIFFS, CROSS-DEFENDANTS AND APPELLANTS,
v.
STEPHEN TEBO, DEFENDANT, CROSS-COMPLAINANT AND RESPONDENT.



(Super. Ct. No. CV032014)

The opinion of the court was delivered by: Hull , Acting P. J.

Molinari v. Tebo

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this action for damages for breach of a lease, plaintiffs and cross-defendants Scott Molinari and Luz Molinari doing business as Minerva's (collectively Molinari) appeal from a judgment entered after a non-jury trial awarding defendant and cross-complainant Stephen Tebo doing business as Tebo Development Co. (Tebo) certain amounts of rent as damages on the cross-complaint and denying Molinari all relief upon his complaint. We affirm the judgment.

FACTS AND PROCEEDINGS

Molinari operated a furniture business in Lodi, California. Tebo, who resides in and conducts his business from Colorado, owns an approximately 15,805 square foot commercial building in Lodi. The building includes a first floor and a basement, which are connected by stairs as well as a freight elevator.

On April 30, 2002, Molinari and Tebo executed a one-year lease agreement for 5,400 square feet of the first floor of Tebo's building for Molinari to use as a furniture store (Lease). The term of the Lease ran from May 15, 2002 to June 14, 2003. Another tenant--Thornton House furniture store--also occupied a portion of Tebo's building, including the portion with the freight elevator. Thornton House used the freight elevator to move furniture between the basement and its portion of the first floor.

On January 30, 2003, Molinari and Tebo executed an amendment to the Lease, extending the lease term five years, from June 15, 2003 to June 14, 2008, and adding 1,200 square feet of additional retail space on the building's first floor (Amendment). The Amendment is not included in the record on appeal.

Thornton House eventually vacated its portion of Tebo's building, and on September 16, 2005, Molinari and Tebo executed an addendum to the Lease as amended (Addendum) for Molinari to lease the entire building, including the freight elevator. The term of the Lease remained the same, and the rent increased annually over the remainder of the Lease.

The specific Lease and Addendum provisions relevant to this appeal are described more fully in the Discussion that follows.

Molinari took possession of the entire building under the Addendum on or about September 27, 2005. For three days, Molinari used the elevator several times a day to move furniture between the basement storage area and the first floor display area. On October 4, 2005, Molinari used the elevator one time. On that occasion the elevator descended to the basement but would not go back up to the first floor.

Molinari called Tebo to tell him the elevator was broken. During the conversation either Tebo asked or Molinari stated that he would call an elevator company to look at the elevator. Molinari then contacted Elevator Technologies to determine the cause of the malfunction. Elevator Technologies inspected the elevator at the end of October 2005. Molinari then requested a written bid from Elevator Technologies for fixing the elevator.

Elevator Technologies prepared a written service repair proposal estimating it would cost $7,800 to fix the elevator, which Tebo accepted. Tebo paid Elevator Technologies a $4,000 deposit to begin work on the elevator and the remaining $3,800 was due upon state inspection of the elevator and before Elevator Technologies would return the elevator to service.

Elevator Technologies repaired the elevator in December 2005, but it was non-operational until the California Division of Occupational Safety and Health (OSHA) inspected it. On January 19, 2006, OSHA and Elevator Technologies inspected the elevator. The elevator passed the inspection, and to expedite return of the elevator to service, Molinari agreed with Tebo to pay Elevator Technologies the remaining $3,800, which was to be deducted from the next month's rent. Elevator Technologies returned the elevator to service on January 19, 2006.

On January 20, 2006, the day after the inspection, the elevator fell to the basement floor and began emitting smoke the first time Molinari tried to use it. That was the last time the elevator functioned.

Molinari called Tebo and told him the elevator fell and that oil was missing from the reservoir. Molinari also called Elevator Technologies, which sent a crew to inspect the elevator. Elevator Technologies confirmed oil was missing from the elevator and concluded the hydraulic jack unit which pushes the elevator up had failed and the oil had leaked underground. Elevator Technologies later verbally estimated it would cost between $40,000 and $100,000 to fix the elevator.

Nearly a month after the elevator failed the second time, Molinari called Tebo's office in Colorado to ask about the status of repairing the elevator and left a message with the receptionist. Molinari called Tebo six days later and left another message again requesting information on the elevator's status.

On March 6, 2006, Molinari phoned Tebo and told him it would cost approximately $40,000 to repair the elevator. Tebo asked Molinari to get a written bid. Although Molinari requested Elevator Technologies prepare a written bid, he never obtained one, and Molinari never provided Tebo with a written bid for fixing the elevator. March 2006 was the last time Molinari personally spoke with Tebo prior to filing this lawsuit a year later.

In the summer, Molinari began looking for a new location to operate his furniture business. Molinari executed a purchase agreement for a new building in Lodi in October 2006. The sale closed and title transferred to Molinari on December 22, 2006.

Six days before the sale closed, counsel for Molinari wrote to Tebo about the elevator issues and asserted that it was Tebo's responsibility to maintain the elevator.

On December 21, 2006, counsel for Tebo responded in writing that Tebo had been notified that Molinari had a contract to purchase a building in Lodi for its retail operation. This letter stated, "[i]f your client's main objective is seeking to defeat the lease in an effort to free them up to eliminate their obligation so they can move, we are going to have a problem. [ΒΆ] If your client's object [is] simply how to effectively address the proper functioning of the elevator, Mr. Tebo is open to discussing what may need to be done to the ...


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