KEN CRANE MAGNAVOX CITY INC v. LOUIS MILLER

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Court of Appeal, Second District, California.

KEN CRANE'S MAGNAVOX CITY, INC., Plaintiff and Appellant, v. LOUIS G. MILLER et al., Defendants and Respondents.

B219691

Decided: August 23, 2011

Meserve, Mumper & Hughes, Bernard A. Leckie and Cliff Melnick for Plaintiff and Appellant. Valensi Rose, M. Laurie Murphy and David Krol for Defendants and Respondents, Louis G. Miller, Judith Miller and Westminster Plaza Property Management Company.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In 1991 Ken Crane's Magnavox City, Inc. (Ken Crane's) leased a retail store in Westminster Plaza for 10 years with two five-year options to renew.   In September 2001 Ken Crane's belatedly informed Westminster Plaza Property Management Company—the company formed to manage the shopping center by its owners, the Miller family—it was exercising the renewal option but requested the extended term be for 10 years.   Westminster Plaza Property Management Company agreed.

After moving out five years later, Ken Crane's filed a declaratory relief action alleging the notice it had given exercising the option was defective and therefore void.   Westminster Plaza Property Management Company, the Millers and related parties,1 filed a cross-complaint for breach of lease.   The jury, finding no valid option to renew had been exercised for either five or 10 years, awarded Westminster more than $500,000 in damages for “holdover” rent.   Ken Crane's has not appealed from the judgment entered following the jury's verdict, but it does appeal from postjudgment orders denying its motion for a judgment notwithstanding the verdict and vacating an earlier order granting it a new trial.   We dismiss the appeal from the order vacating the new trial order for lack of jurisdiction;  we affirm the order denying the motion for judgment notwithstanding the verdict.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties and Principal Actors

Ken Crane's is a family-owned corporation that operates retail electronic stores in Southern California.   Charles K. Crane, also known as Ken Crane, founded the company and represented it in connection with the Westminster Plaza lease until he died in November 2004.   Casey Crane, Charles Krane's son, then assumed this responsibility.

Westminster is a general partnership comprised of the Miller Family Trust, the Meyer Miller and Sally E. Miller Intervivos Trust and Bernard D. Miller.   Louis Miller (Miller) is Westminster's managing partner and makes all major decisions regarding Westminster Plaza, which the Miller family acquired in 1993.   Louis Porga is a long time-employee of Miller's, whose responsibilities regarding Westminster Plaza include bookkeeping, working with Westminster's accountant to prepare financial statements and responding to tenant complaints.

2. The Lease ;  Exercise of the Option To Renew ;  Ken Crane's Vacation of the Premises

On September 5, 1991 Charles Krane, on behalf of Ken Crane's, signed a 10–year commercial lease with the then-owners of Westminster Plaza.2  The lease had two consecutive, five-year renewal options, exercisable by delivering notice to the landlord between 180 and 270 days prior to the expiration of the initial term or renewal term.   The lease provided it would “terminate concurrently with the last day of the Lease term or the last day of the then existing option term” if notice was not given “in the manner prescribed herein․”  The lease also provided, “The waiver by either party of any default in the performance by the other of any covenant contained herein shall not be construed to be a waiver of any preceding or subsequent default of the same or any other covenant contained herein.”

The lease included a holdover provision creating, in the absence of a written agreement extending the lease term, a month-to-month tenancy in the event Ken Crane's continued to occupy the premises after the lease had expired.   Rent for the monthly holdover tenancy was set at 1.5 times the monthly rent for the preceding year.   The holdover provision stated, “Neither acceptance of rent nor of anything contained in this subparagraph shall be construed as an express or implied consent to such holding over, nor affect Landlord's right to recovery of possession as a consequence of holding over.” 3

According to Miller, just prior to the September 30, 2001 expiration of the initial lease term (that is, well after the deadline for exercising the option specified in the lease), Charles Crane called and asked whether Ken Crane's could exercise the option and extend the term to 10 years.   Miller agreed, but asked Charles Krane to send him a letter to that effect.   In a letter dated September 27, 2001 to Porga, Charles Krane wrote, “[Ken Crane's] hereby exercises the option to extend the lease for our store [in Westminster].   We wish the extension to be for ten (10) years with terms and conditions continuing as per our present lease.”   On October 2, 2001 Porga wrote in response, “Your offer to extend your option from 5 years to 10 years is accepted.”   Casey Crane denied Ken Crane's ever received the October 2, 2001 letter, contending it is not in the company's files.

In April 2006, about 17 months after Charles Krane had died, Miller learned from Westminster Plaza's leasing agent that Ken Crane's would be vacating the premises in September 2006.   In a June 22, 2006 letter Westminster's counsel advised Ken Crane's it would be a breach of the lease if it left after only five years of the 10–year lease extension period.   In response, counsel for Ken Crane's claimed the September 27, 2001 letter was “ineffective as a notice of election to renew” because, among other reasons, the letter was untimely and not sent in the manner provided for in the lease.   Ken Crane's also asserted the signature on the letter had been forged.4  Ken Crane's moved out of Westminster Plaza on September 30, 2006.

On August 23, 2007 Ken Crane's filed a verified complaint and on October 30, 2007 a first amended complaint for declaratory and injunctive relief alleging the September 27, 2001 notice letter was a forgery and not served within the time frame or in the manner provided for in the lease.   Ken Crane's sought a declaration the “Notice is void and of no force or effect.”   On November 2, 2007 Westminster filed a cross-complaint for breach of lease alleging, although the September 27, 2001 letter did not strictly comply with the lease, Westminster nevertheless accepted Ken Crane's late notice and exercise of the lease option, effectively modifying the terms of the lease and renewing it for an additional 10 years.

3. Pretrial Proceedings ;  the Trial

In March 2009 Ken Crane's dismissed its complaint, and Westminster's cross-claim proceeded to trial.   By the time of trial Ken Crane's had abandoned its arguments the September 27, 2001 letter was a forgery and otherwise without legal effect, contending instead the letter had extended the lease for only five years.5  The additional language requesting the renewal period be increased to 10 years, Ken Crane's insisted, was at most an offer that was never accepted.   Ken Crane's denied it had received Porga's October 2, 2001 letter accepting the offer and also denied there had been a telephone call between Charles Crane and Miller in which Miller purportedly agreed to extend the term to 10 years.

Ken Crane's moved in limine to preclude reference to holdover rent as an item of damages on the ground it had not been pleaded in the cross-complaint or raised until Westminster's expert's deposition the month before trial.   In opposition Westminster contended the issue of holdover rent had been raised in other depositions, including Casey Crane's, and in its responses to interrogatories.   Westminster argued, “Basically, Ken Crane's wants the Court or jury to find that the parties amended the Lease to extend the term for five years based upon the September 21, 2007 letter but not ten years, even though the letter requested ten years and there is nothing permitting Ken Crane's to stay only five years.   But, Ken Crane's does not want to be considered a holdover tenant during that period.”

On April 15, 2009 the court denied the motion in limine.   Additionally, in response to Westminster's counsel's observation the entire case “is fraught with legal issues combined with factual issues, and ․ I don't know how you will sort it out,” the court stated, “We need to clarify and resolve to the extent possible any legal issues before the case starts.  [Ken Crane's] would like a jury trial, and they are entitled to one.   So we will have one.”

The case was tried to a jury for six days.   On May 11, 2009 the jury returned a special verdict, agreed to in form by both parties, finding that the option to renew had not been exercised for five years, let alone extended to 10 years, and that by vacating the premises Ken Crane's did not breach the lease.   However, the jury awarded Westminster $543,939 in holdover rent damages.6

On May 12, 2009 the court entered judgment on the verdict.   On June 4, 2009 Westminster served a notice of entry of judgment, which was filed the next day.   On June 24, 2009, after briefing and argument, Westminster was awarded attorney fees of $133,199.50.

4. Ken Crane's Motions for Judgment Notwithstanding the Verdict and New Trial

On June 4, 2009 Ken Crane's moved for judgment notwithstanding the verdict or, alternatively, a new trial.   Ken Crane's argued Westminster should be estopped from denying the validity of the five-year extension, and thus precluded from claiming holdover rent, because it had billed Ken Crane's and accepted payments at the rate applicable for a lease extension without objection and had represented to its lender that Ken Crane's lease expired in 2006.   Ken Crane's also argued Westminster had waived formal exercise of the option—that is, strict compliance with the terms of the lease.   Ken Crane's asserted estoppel and waiver are legal issues to be decided by the court upon completion of the jury trial.

In opposition to the postjudgment motions, Westminster argued Ken Crane's had insisted on a jury trial on all issues and failed to reserve any equitable issues for the trial court's consideration;  Ken Crane's had failed to propose jury instructions on estoppel or argue it;  and the jury had been instructed on waiver.   Westminster further argued estoppel was not a question for the court because there was conflicting evidence on the issue that would have to be resolved by a jury.

At a hearing on July 13, 2009 the court expressed its tentative opinion a jury should consider the issue of estoppel even though it had not been presented during the trial:  “As I told you before, I didn't understand the verdict except to the extent that, given the evidence, the jury determined that there was no contract, there was no five-year option, there was no ten-year option.   And because they were not given any alternatives, except holdover rent, ․ that's what they returned, but—which is fine with me, except that I told you folks at the beginning of trial that it seems to me that there's an issue here that you're overlooking, and that is the issue that is between no five-year option, no ten-year option, on the one hand, and the holdover rent on the other, and that is the issue of what happened during the first five years after the lease had expired.   The landlord was accepting the increased rent and the tenant was paying it.   There was no dispute as to what they were doing, and if that's not a novation or a waiver, or some sort of basis for estoppel, that's the way I looked at it․  But what I'm saying is that before there's a miscarriage of justice, that the issue ought to be vetted to a jury and it should be determined one way or another what the legal significance and the consequence of the tenant and the landlord's action during those five years in accepting the rent that was paid at the increased amount.”

After extensive argument the trial court requested supplemental briefing on whether there were any disputed facts requiring resolution before the applicability of the doctrine of estoppel could be determined.

On August 26, 2009 the court issued a minute order granting the motion for new trial “on the limited issues of novation and/or estoppel” and denying the motion for judgment notwithstanding the verdict.   The order stated, “[B]ecause the issues of novation and/or estoppel were not litigated, the jury's consideration of the holdover issue was premature and not fairly determined without consideration of novation.”

5. Westminster's Motion To Vacate the Trial Court's Order Granting New Trial

On September 8, 2009 Westminster moved to vacate the order for new trial on the ground the order was void because the trial court had failed to rule within 60 days of service of the notice of entry of judgment, a jurisdictional deadline.   Ken Crane's responded the May 12, 2009 judgment was only interlocutory because equitable issues remained to be determined.   It also argued the court should deem its motions for new trial and judgment notwithstanding the verdict as “a motion for continuance or recommencement of trial or something else,” thus circumventing the mandatory 60–day time limit set forth in Code of Civil Procedure section 660.7

On October 8, 2009 the court vacated its order granting new trial.   The court stated in part, “In Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 523–[5]24, the court reiterated the mandatory nature of 660 and suggested that the party moving for a new trial should have appeared ex parte prior to the deadline to remind the court of the deadline.   The court made clear that equitable relief was not available.  [Citation.]  The arguments raised by Ken Crane's in opposition [are] unavailing.   First, the judgment was not an interlocutory judgment.   Simply because jury instructions were not submitted as to novation and estoppel does not transform the final judgment into an interlocutory judgment.   Ken Crane's attempt to recast the motion as a motion for continuance is not supported with any legal authority.”

6. The Notice of Appeal

On October 8, 2009 Ken Crane's filed a notice of appeal identifying the orders appealed as those entered on August 26, 2009 and October 8, 2009.   In its civil case information statement Ken Crane's indicated it was appealing from “[a]n order after judgment under Code Civ. Proc., § 904.1(a)(1),” yet inconsistently also asserted, “[t]he Judgment was interlocutory per the Court's Findings made on the record on July 13, 2009.”   In the section of the information statement concerning timeliness, Ken Crane's stated a motion for new trial was “filed 6/4/09, vacated 10/8/09,” and a motion for judgment notwithstanding the verdict was “filed 6/4/09, denied 8/26/09.”

DISCUSSION

1. Jurisdiction To Decide Ken Crane's Appeal

The existence of an appealable order or judgment is a jurisdictional prerequisite for an appeal.  (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21 (Walker );  Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696;  see Harrington–Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1494.)   Similarly, absent a timely notice of appeal, we have no jurisdiction to consider an appeal from an otherwise appealable order or judgment.  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 662 [appellate court has no jurisdiction to review untimely appeal];  In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219 [policy of liberal construction of appeal does not confer power on court to consider untimely appeal].)   Determining which, if any, of the issues Ken Crane's attempts to raise are properly before us based on its October 8, 2009 notice of appeal necessarily begins with its contention the May 12, 2009 judgment was interlocutory, not final—an argument it advances to avoid the jurisdictional bar of section 660.

a. The May 12, 2009 judgment is final and appealable

Ken Crane contends the May 12, 2009 judgment was interlocutory because further trial on the defenses of waiver and estoppel was required and, as a result, the jury's verdict and ensuing judgment were subject to modification.  (See European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, 1214 [“an interlocutory judgment is subject to modification at any time prior to entry of a final judgment”].) 8  Ken Crane's argues, in essence, the trial that occurred should be treated as simply the first stage of a bifurcated proceeding.  (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1475 [“trial court can also bifurcate the trial for discrete resolution of special defenses or any issue or part of an issue”].)

Without doubt, the trial court at the request of a party or on its own motion could have bifurcated the trial, reserving to a later time the trial of estoppel and related issues.  (See § 598 [permitting court to bifurcate trial].)   Had it done so, the jury's verdict would have been an interim ruling, not a final appealable judgment.  (See Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 524 [When a trial is bifurcated, “a ‘verdict in favor of the party seeking to impose liability upon the others cannot provide the basis for a final judgment.   Issues remain to be litigated, thus no final determination of the rights of the parties has occurred.’ ”].) 9

The trial, however, was not bifurcated.   At one point during a pretrial discussion of whether and how the issue of holdover rent as damages would be presented to the jury, the court asked if there was any point in bifurcating.   Counsel for Ken Crane's responded, “I think there is,” but did not suggest what issues should be bifurcated;  never asked the court to bifurcate trial of, or reserve for a court ruling on, any equitable defenses; 10  and failed to revisit the matter of bifurcation until after the adverse judgment was entered on May 12, 2009.   Indeed, although counsel specifically argued it was “an estoppel for the landlord to deny the existence of the extension”—demonstrating he was aware of the issue—counsel never requested a bifurcated trial or suggested estoppel or waiver were legal issues that should be reserved for determination by the court.

There is simply no question when the judgment was entered the parties and the court viewed it as a final judgment disposing of all causes of action.  (See Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [“judgment is the final determination of the rights of the parties [citation] ‘ “when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined” ’;  ‘ “[i]t is not the form of the decree but the substance and effect of the adjudication which is determinative” ’ ”];  cf.  Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 326 [“after the first stage of a bifurcated proceeding, the trial court should enter a minute order (and not a judgment) and then proceed with the trial of any remaining issues”];  Valentine v. Baxter Healthcare Corp., supra, 68 Cal.App.4th at p. 1477.)   Indeed, after the verdict was returned, the court inquired of counsel whether there would be any credit applied to the judgment.   Both counsel said no.   No mention was made by the parties or the court that any issues were left to be determined.

Ken Crane's belated realization it did not adequately present certain defenses was the proper basis for its postjudgment motion for new trial.  (See § 657.)   The adverse outcome of the new trial motion, however, cannot transform (1) a final judgment that disposed of the tried issues into an interlocutory judgment, (2) the properly-styled posttrial motion for new trial into a “motion for continuance or recommencement of trial or something else”or (3) the full trial into a belatedly partial, bifurcated one.

b. The October 8, 2009 notice of appeal cannot be liberally construed to constitute a timely notice of appeal from the May 12, 2009 judgment

Judgment was entered on May 12, 2009.   Notice of entry of judgment was served on June 4, 2009.   Accordingly, unless the time to appeal was extended pursuant to California Rules of Court, rule 8.108, Ken Crane's notice of appeal from that judgment was due 60 days thereafter, or August 3, 2009.

Pursuant to California Rules of Court, rule 8.108(b)(1)(B), if a party serves and files a valid notice of intention to move for a new trial, the time to appeal from the judgment is extended to 30 days after denial of the motion by operation of law.   As the trial court found, and as we confirm in a subsequent portion of this opinion, Ken Crane's motion for a new trial was denied by operation of law on August 3, 2009.   Accordingly, this rule extended its time to appeal only until September 2, 2009.   Similarly, pursuant to California Rules of Court, rule 8.108(d)(1)(B), Ken Crane's timely filing of a valid motion for judgment notwithstanding the verdict extended its time to appeal the judgment only until September 2, 2009, 30 days after denial of the motion by operation of law.

Ken Crane's correctly observes we are obligated to liberally construe the notice of appeal.  (Cal. Rules of Court, rule 8.100(a)(2);  Walker, supra, 35 Cal.4th at pp. 20–21.)   If it is reasonably clear the appellant was attempting to appeal from the underlying judgment and no prejudice would accrue to the respondent, we will treat the notice of appeal identifying only nonappealable postjudgment orders (that is, an order denying a motion for new trial) as from the judgment itself, as well as from the otherwise nonappealable order, thereby “saving” the appeal (Walker, at p. 22), provided the underlying judgment remains appealable.  (See id. at pp. 19–20;  City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819–820.)   Here, however, unlike in Walker, by the time Ken Crane's filed its notice of appeal on October 8, 2009, the time for appealing the May 12, 2009 judgment had long since passed.   Accordingly, we cannot construe that notice of appeal as seeking review of both the judgment itself and the denial of the Ken Crane's postjudgment motions.  (Glair, at p. 820[“[b]ecause the underlying judgment is no longer appealable, we cannot construe the notice of appeal as seeking review of both the judgment itself and the denial of the new trial motion”].)

c. Denial of a motion for new trial is not appealable

Ken Crane's concedes, as it must, that denial of a motion for new trial itself is not appealable (Walker, supra, 35 Cal.4th at p. 18);  and it does not purport to seek direct review of the August 3, 2009 denial by operation of law of its motion.   That the motion was denied on that date and the trial court's subsequent order of August 26, 2009 purporting to grant a new trial was void cannot be seriously questioned.

Section 660 limits the power of the court to rule on a motion for a new trial to a 60–day period commencing with the filing of the notice of entry of judgment.  (Sanchez–Corea v. Bank of America (1985) 38 Cal.3d 892, 899 [“After the court is presented with a motion for a new trial, its power to rule on the motion expires at the end of the 60–day period provided by section 660․  If no determination is made within the 60–day period, the motion is deemed to have been denied.”].) “The time limits of section 660 are mandatory and jurisdictional, and an order made after the 60–day period purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void.”  (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101;  see Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1048 [no jurisdiction to grant a new trial 61 days after service of notice of entry of judgment];  In re Marriage of Liu (1987) 197 Cal.App.3d 143, 150–151 [when notice of entry of judgment not served, trial court lacked jurisdiction to grant new trial 78 days after notice of intention to move for new trial filed].)   Because the 60–day time limit is jurisdictional, it cannot be extended at the discretion of the trial court.   (Jones v. Sieve (1988) 203 Cal.App.3d 359, 369.)   Otherwise, “the purpose and effect of section 660 would be nullified and the power of the court to rule on a motion for a new trial would be extended indefinitely.”  (Id. at p. 370.)   For the same reason, the 60–day time limit “may not be changed by consent, waiver, agreement, or acquiescence.”  (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 825;  see Tabor v. Superior Court (1946) 28 Cal.2d 505, 507 [“it is not within the power of the litigants to invest the court with jurisdiction to hear and determine the motion for a new trial by consent, waiver, agreement or acquiescence”];  Fong Chuck v. Chin Po Foon (1947) 29 Cal.2d 552, 554 [same].)   Because the trial court failed to timely rule on the motion for new trial, it was denied by operation of law on August 3, 2009;  and any appeal of that denial had to be timely taken from the May 12, 2009 judgment itself.

Relying on language from Marriage of Brockman (1987) 194 Cal.App.3d 1035, Ken Crane's suggests this case falls into an exception to the general rule that the denial of a motion to vacate or a motion for new trial is not an appealable order for situations in which “the record made at the time of the judgment does not disclose the grounds for appeal.”  (Id. at p. 1043.)   As the Brockman court explained, “Such cases frequently arise where the error complained of occurs around the time the judgment is entered or afterwards.   The only way to bring the issue to the attention of the trial court or to make a record for appeal is by bringing a motion to vacate.   In such instances, the denial of the motion to vacate is then appealable.”  (Id. at p. 1043.)

We need not decide whether we agree with the Brockman court's creation of a nonstatutory exception to the normal principles of appealability;  for no such late developing error occurred in this case.   To be sure, Ken Crane's contends the trial court erroneously advised the parties the court had 90 days to rule on its motion for new trial.   Even if the failure to timely decide the new trial motion is fully attributable to the trial court's mistake, however, Ken Crane's is charged with knowing the law and procedure.  (See Hughes v. De Mund (1924) 195 Cal. 242, 244[“[w]here a motion for new trial is automatically denied by force of the statute, the appellant is deemed to have notice thereof as of the date of the expiration of the statutory period”].)   Ken Crane's could have filed an ex parte motion, supported by appropriate legal authority, informing the court it must rule within 60 days.  (See Dodge v. Superior Court, supra, 77 Cal.App.4th at pp. 523–524.)   Had it done so and the court nevertheless refused to timely rule on its motion, Ken Crane's would have had ample time to file a timely appeal from the judgment and pursue other appropriate relief.

d. The court's October 8, 2009 order vacating the void grant of a new trial is not appealable

In an effort to avoid these myriad jurisdictional obstacles, Ken Crane's argues it is not appealing an order denying its motion for new trial, but the October 8, 2009 order vacating the August 26, 2009 grant of new trial.   This contention borders on the frivolous.   Even if the order granting the new trial were not void as a matter of law, the trial court's subsequent order is functionally equivalent to a nonappealable order denying a motion for new trial.   We look to the substance of an order or judgment to determine if it is appealable under section 904.1.  (See Jackson v. Wells Fargo Bank (1997) 54 Cal.App.4th 240, 244;  cf.  Don Jose's Restaurant, Inc. v. Truck Insurance Exchange (1997) 53 Cal.App.4th 115, 116;  Harrington–Wisley v. State of California, supra, 156 Cal.App.4th at pp. 1495–1496.)   There is no statutory authority permitting the October 8, 2009 order to be treated differently from any other denial of a motion for new trial for purposes of appeal.  (See generally 9 Witkin, Cal. Procedure (5th ed.   2008) Appeal, § 195, p. 272[“[a] vacating order is not appealable unless it vacates a prior appealable judgment”].)

Here, of course, the August 26, 2009 new trial order was void, having been denied as a matter of law on August 3, 2009, the last day the court had jurisdiction to rule.   The October 8, 2009 order was simply a ministerial act, cleaning up the trial court's docket, which improperly reflected a new trial was to occur.   It was not a substantive, postjudgment order.

Finally, even if we arguably had jurisdiction to consider an appeal from the October 8, 2009 order pursuant to section 904.1, subdivision (a)(2), as an “order made after a judgment made appealable” by section 904.1, subdivision (a)(1), the only possible outcome would be a summary affirmance:  The underlying order granting a new trial violated the time limit specified in section 660 and was, therefore, void.   That void order was properly vacated by the trial court.   Whether we dismiss this portion of Ken Crane's appeal as from a nonappealable order or affirm the October 8, 2009 order makes no practical difference.

e. There is jurisdiction to review the denial by operation of law of Ken Crane's motion for judgment notwithstanding the verdict

An order denying a motion for judgment notwithstanding the verdict is independently appealable within the timelines prescribed by California Rules of Court, rules 8.104 and 8.108. (§ 904.1, subd. (a)(4);  see City of Los Angeles v. Glair, supra, 153 Cal.App.4th at p. 819.)   Like the motion for new trial, the motion for judgment notwithstanding the verdict was denied by operation of law.  (§ 629 [“The power of the court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial.   If a motion for judgment notwithstanding the verdict is not determined before such date, the effect shall be a denial of such motion without further order of the court.”];  Pratt v. Vencor, Inc. (2003) 105 Cal.App.4th 905, 909.)   Because there was no notice of entry of the inadvertent denial of the motion by operation of law, Ken Crane's had 180 days from August 3, 2009 to file its notice of appeal.  (Cal. Rules of Court, rule 8.108(d)(2);  Glair, at p. 819.)   Consequently, Ken Crane's October 8, 2009 notice of appeal from the denial of its motion for judgment notwithstanding the verdict is timely.11

2. Ken Crane's Was Not Entitled to a Judgment Notwithstanding the Verdict

a. Standard of review

“A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.”   (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68;  see Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510 [“ ‘trial court's discretion in granting a motion for judgment notwithstanding the verdict is severely limited’ ”].)  “ ‘The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses.  [Citation.]  If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied.’ ”   (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877–878.)

On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's verdict.  (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68;  Hansen v. Sunnyside Products, Inc., supra, 55 Cal.App.4th at p. 1510.)   Even the uncorroborated testimony of a single witness may constitute substantial evidence.  (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)   If there is any substantial evidence, we must affirm the denial of the motion.  (Sweatman, at p. 68;  Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)

b. Substantial evidence supports the verdict

Westminster's position at trial was that the parties had agreed to a 10–year extension of the lease as reflected by the September 21, 2001 letter from Charles Crane.   Ken Crane's denied that was the import of the September 21, 2001 letter, insisting instead it evidenced only Ken Crane's late exercise of a five-year option, as specified in the parties' lease, with a request for an additional five-year term that was never effectively accepted.   Each side presented evidence in support of its interpretation of the status of the lease extension.   The jury apparently accepted only part of each party's version of events—Ken Crane's wanted (and requested) a 10–year extension of the lease;  Westminster never accepted Ken Crane's proposal—and concluded there was no valid extension of the lease for either five or 10 years, leaving Ken Crane's as a holdover tenant, a result plainly invited by the special verdict form approved by both Ken Crane's and Westminster.   Substantial evidence supports that interpretation of the parties' conflicting presentations.

Although the significance of the parties' actions was hotly contested, most of the essential facts were not:  Ken Crane's sent the September 21, 2001 letter belatedly attempting to exercise the option;  the letter was not sent within the time or in the manner provided for in the lease;  the lease contained a provision unequivocally stating it would terminate on the last day if notice was not given in the manner prescribed in the lease;  as Miller readily admitted, Westminster often let tenants exercise their options late notwithstanding what the lease said;  and Westminster billed Ken Crane's as though the lease had been extended.   Certainly, from this evidence the jury could have reasonably concluded Ken Crane's had exercised the option for at least some period of time.

The jury, however, was also presented with evidence from which it could reasonably conclude, notwithstanding Miller's belief and concomitant action, that Ken Crane's had not properly exercised the option with the legal consequence it would be considered a holdover tenant under the express terms of the lease.   There is no question the September 21, 2001 letter was untimely and not sent in the manner provided for in the lease.   Ken Crane's itself claimed until the outset of trial that, in addition to being a forgery, the letter was not effective notice because of these technical defects.   The jury was entitled to find more credible Ken Crane's initial position the notice was defective, not its later contention the notice was effective but for only five years—a position the jury could have reasonably viewed with suspicion as a strategy developed once Ken Crane's realized it may be held responsible for holdover rent if the notice was deemed void.

To be sure, Ken Crane's presented evidence that would support a finding of waiver by Westminster of the technical requirements for exercise of the option and, if believed, could have justified a defense verdict—that is, a finding that Ken Crane's exercise of the five-year option was effective, but that there had been no meeting of the minds with respect to the suggested modification of the option term from five to 10 years.12  Although Ken Crane's elected not to clearly articulate this concept in its closing argument, the jury was fully instructed on the elements of waiver.13  Indulging all legitimate and reasonable inferences to uphold the verdict, as we must (Sanchez–Corea v. Bank of America, supra, 38 Cal.3d at p. 907), the nonwaiver provision in the lease, as well as the holdover provision's clause that “[n]either acceptance of rent nor of anything contained in this subparagraph shall be construed as an express or implied consent to such holding over,” constitute substantial evidence supporting the jury's rejection of Ken Crane's waiver defense—a defense it was required to prove by clear and convincing evidence.   (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [burden “ ‘is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” ’ ”].) 14

c. The evidence does not establish estoppel as a matter of law

Ken Crane's asserted in its postrial motions that Westminster should be estopped from denying the existence of a valid lease extension since it had accepted rent based on such an extension for five years.15  “While the question of waiver ordinarily turns on the intent of the party against whom it is asserted, estoppel focuses solely on the party's conduct ․”  (Oakland Raiders v. Oakland–Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1189.)   To establish equitable estoppel it must be shown:  (1) The party to be estopped was apprised of the facts and intended his or her conduct to be acted upon or so acted in a way that the party asserting the estoppel had a right to believe it was so intended;  (2) the other party was ignorant of the true state of facts;  and (3) he or she relied on the conduct to his or her injury.   (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725;  accord, Parmar v. Board of Equalization (2011) 196 Cal.App.4th 705, 717.)

Even if not forfeited because not properly raised before or during trial, the trial court in this case could not have decided as a matter of law that Westminster was estopped to deny the validity of a five year lease extension (as opposed to the 10–year extension it contended had been agreed to by the parties).  (See Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at pp. 877–878[“[i]f the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied”];  Oakland Raiders v. Oakland–Alameda County Coliseum, Inc., supra, 144 Cal.App.4th at pp. 1191, 1194.)

As Ken Crane's argues, citing Bettelheim v. Hagstrom Food Stores, Inc. (1952) 113 Cal.App.2d 873 (Bettelheim ), equitable estoppel has been applied when a landlord attempts to collect holdover rent from a tenant after initially accepting rent for several months at the rate applicable during the lease term.   Far from assisting Ken Crane's, however, Bettelheim demonstrates why it did not establish equitable estoppel as a matter of law.

In Bettelheim the landlord had contacted its tenant just prior to expiration of the lease to negotiate a new lease.   The tenant told the landlord it was not interested in a new lease but “ ‘would be willing to stay under the same terms and conditions that we had been under in the past years.’ ”   (Bettelheim, supra, 113 Cal.App.2d at pp. 874–875.)   For eight months the landlord accepted rent at the rate applicable during the lease and unsuccessfully tried to convince the tenant to enter into a new lease.   The landlord then served a notice to quit and filed suit to recover the difference between the rent paid and the penalty holdover rate specified in the lease.   (Id. at p. 875.)   In concluding the landlord was estopped from collecting holdover rent, the trial court found the landlord had accepted the monthly rent payments “ ‘with full knowledge of the manner in which they were computed and at no time prior to the filing of this suit raised any question as to the sufficiency or correctness of the amounts of said payments or any of them;  [and] that plaintiff's acquiescence in defendant's continued occupancy of the premises upon the 2 per cent basis of the prior term, induced defendant to remain in said premises until January 14, 1951.’ ”  (Id. at pp. 876–877.)   The Court of Appeal affirmed this finding, concluding the landlord “received rent for eight months longer than he would have received had he not by his conduct misled [the] defendant into thinking the old rental applied.”  (Id. at p. 878.)   Application of the doctrine of estoppel was therefore appropriate because the landlord's conduct was “inconsistent with a reliance upon the strict terms of the lease.”  (Id. at p. 879.)

Here, in contrast, there is substantial evidence Miller reasonably believed Ken Crane's had exercised the option to renew and extended the term to 10 years.   From this perspective, it is not surprising Westminster accepted rent checks as it did and no issue of holdover rent was raised.   As soon as Westminster learned Ken Crane's intended to vacate after five years, it informed Ken Crane's it would be a breach of the lease to do so.   Westminster did not lull Ken Crane's into complacency, let alone actually deceive its tenant into believing it had validly exercised its extension for five years.   Unlike in Bettelheim, the facts here do not “cry aloud for the application of the doctrine of estoppel.”  (Bettelheim, supra, 113 Cal.App.2d at p. 878.)

DISPOSITION

Ken Crane's appeal of the October 8, 2009 order vacating the void order granting a new trial is dismissed.   The order denying judgment notwithstanding the verdict is affirmed.   Westminster is to recover its costs on appeal.

We concur:

FOOTNOTES

FN1. For ease of reference, we refer to these parties collectively, as well as to Westminster Plaza Property Management Company individually, as Westminster..  FN1. For ease of reference, we refer to these parties collectively, as well as to Westminster Plaza Property Management Company individually, as Westminster.

FN2. The lease was assigned to the Millers when they acquired Westminster Plaza..  FN2. The lease was assigned to the Millers when they acquired Westminster Plaza.

FN3. The nonwaiver provision further stated, “The subsequent acceptance of rent or other sums hereunder by Landlord shall not be deemed a waiver of any preceding default other than the failure of Tenant to pay the particular rental or other sum or portion thereof so accepted, regardless of Landlord's knowledge of such preceding default at the time of acceptance of such rent or other sum.”.  FN3. The nonwaiver provision further stated, “The subsequent acceptance of rent or other sums hereunder by Landlord shall not be deemed a waiver of any preceding default other than the failure of Tenant to pay the particular rental or other sum or portion thereof so accepted, regardless of Landlord's knowledge of such preceding default at the time of acceptance of such rent or other sum.”

FN4. The September 27, 2001 letter was signed by “Ken Crane.”   In contending the signature had been forged, counsel stated, “I am informed that the signature is not the way Ken Crane signed leases, letters or any legal documents when he was alive, and the signature is not recognized by persons at the Company.   Mr. [Crane] always signed leases and legal documents as Charles K. Crane.”.  FN4. The September 27, 2001 letter was signed by “Ken Crane.”   In contending the signature had been forged, counsel stated, “I am informed that the signature is not the way Ken Crane signed leases, letters or any legal documents when he was alive, and the signature is not recognized by persons at the Company.   Mr. [Crane] always signed leases and legal documents as Charles K. Crane.”

FN5. Ken Crane's was represented by new counsel at trial, its third set of lawyers since filing the initial complaint..  FN5. Ken Crane's was represented by new counsel at trial, its third set of lawyers since filing the initial complaint.

FN6. The special verdict contained five questions and answers:  “1. Did the plaintiff and defendant amend the lease to extend its term for [10] years?  [¶] Answer:  NO [¶] 2. By abandoning the property on September 30, 2006, did defendant breach the amended lease?  [¶] Answer:  NO [¶] 4. By remaining in the premises from September 30, 2001 through September 30, 2006, does defendant owe holdover rent to plaintiff?  [¶] Answer:  YES [¶] 5. What are plaintiff[']s damages for holdover rent?  [¶] Answer:  $543,939.00 [¶] 6. Did defendant exercise only the first five year option to extend the lease?  [¶] Answer:  NO.”.  FN6. The special verdict contained five questions and answers:  “1. Did the plaintiff and defendant amend the lease to extend its term for [10] years?  [¶] Answer:  NO [¶] 2. By abandoning the property on September 30, 2006, did defendant breach the amended lease?  [¶] Answer:  NO [¶] 4. By remaining in the premises from September 30, 2001 through September 30, 2006, does defendant owe holdover rent to plaintiff?  [¶] Answer:  YES [¶] 5. What are plaintiff[']s damages for holdover rent?  [¶] Answer:  $543,939.00 [¶] 6. Did defendant exercise only the first five year option to extend the lease?  [¶] Answer:  NO.”

FN7. Statutory references are to the Code of Civil Procedure..  FN7. Statutory references are to the Code of Civil Procedure.

FN8. Ken Crane notes even the trial court “tacitly acknowledged the interlocutory nature of the pending judgment” when it observed at the hearing on Ken Crane's posttrial motions that it was not sure if the judgment was final..  FN8. Ken Crane notes even the trial court “tacitly acknowledged the interlocutory nature of the pending judgment” when it observed at the hearing on Ken Crane's posttrial motions that it was not sure if the judgment was final.

FN9. If the May 12, 2009 judgment were an interlocutory order, rather than a final judgment, little, if anything at all, of Ken Crane's appeal would be properly before us.   Seemingly unaware of this consequence of its argument, Ken Crane's fails to address this issue..  FN9. If the May 12, 2009 judgment were an interlocutory order, rather than a final judgment, little, if anything at all, of Ken Crane's appeal would be properly before us.   Seemingly unaware of this consequence of its argument, Ken Crane's fails to address this issue.

FN10. Ken Crane's counsel's closing argument demonstrates its strategic decision to essentially ignore any defenses with respect to holdover rent:  “Something I forgot to talk about and that was [another tenant's] lease.   This only becomes important if you find a lease for 10 years or a holdover because it goes to mitigation.   I hardly want to talk about it because I'm so set that we only had a five-year lease that this is just extra time of yours I'm taking talking about something I don't really think is really important.”.  FN10. Ken Crane's counsel's closing argument demonstrates its strategic decision to essentially ignore any defenses with respect to holdover rent:  “Something I forgot to talk about and that was [another tenant's] lease.   This only becomes important if you find a lease for 10 years or a holdover because it goes to mitigation.   I hardly want to talk about it because I'm so set that we only had a five-year lease that this is just extra time of yours I'm taking talking about something I don't really think is really important.”

FN11. Although Ken Crane's notice of appeal identifies the void August 26, 2009 order denying the judgment notwithstanding the verdict motion as the appealable order, we liberally construe the notice of appeal because it is clear Ken Crane's intends to appeal from the substantive denial of its motion.  (See Walker, supra, 35 Cal.4th at pp. 20–21;  ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1003, fn. 5 [“a notice of appeal is to be liberally construed in favor of its sufficiency [citation], and its sufficiency may be upheld if respondents have not been misled or prejudiced thereby”].).  FN11. Although Ken Crane's notice of appeal identifies the void August 26, 2009 order denying the judgment notwithstanding the verdict motion as the appealable order, we liberally construe the notice of appeal because it is clear Ken Crane's intends to appeal from the substantive denial of its motion.  (See Walker, supra, 35 Cal.4th at pp. 20–21;  ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1003, fn. 5 [“a notice of appeal is to be liberally construed in favor of its sufficiency [citation], and its sufficiency may be upheld if respondents have not been misled or prejudiced thereby”].)

FN12. The jury was instructed for an effective modification of the option period the “terms [must be] clear enough that the parties could understand what each was required to do․  [Y]ou must decide whether a reasonable person would conclude from the words and conduct of the plaintiff and defendant that they agreed to modify the lease.”.  FN12. The jury was instructed for an effective modification of the option period the “terms [must be] clear enough that the parties could understand what each was required to do․  [Y]ou must decide whether a reasonable person would conclude from the words and conduct of the plaintiff and defendant that they agreed to modify the lease.”

FN13. Contrary to Ken Crane's suggestion, waiver is generally a question of fact properly decided by the jury, not a question of law, unless the facts are undisputed and only one inference may reasonably be drawn;  and the trier of fact's finding is binding on the appellate court.  (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319;  see Moss v. Minor Properties, Inc. (1968) 262 Cal.App.2d 847, 857.)   Here, the jury was properly instructed in accordance with CACI No. 336, “Each party claims that it did not have to perform certain things under the lease because the other party gave up its right to have the party perform the obligations.   This is called a waiver.   To succeed, the party claiming the waiver, must prove both of the following by clear and convincing evidence:  1. That the other party knew that the claiming party was required to perform certain things under the lease;  and 2. That that the other party freely and knowingly gave up its right to have the claiming party perform these obligations.   A waiver may be oral or written or may arise from conduct that shows that the other party gave up that right.   If the claiming party proves that the other party gave up its right to the claiming party's performance [of] certain things under the lease then the claiming party was not required to perform the obligations.”.  FN13. Contrary to Ken Crane's suggestion, waiver is generally a question of fact properly decided by the jury, not a question of law, unless the facts are undisputed and only one inference may reasonably be drawn;  and the trier of fact's finding is binding on the appellate court.  (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319;  see Moss v. Minor Properties, Inc. (1968) 262 Cal.App.2d 847, 857.)   Here, the jury was properly instructed in accordance with CACI No. 336, “Each party claims that it did not have to perform certain things under the lease because the other party gave up its right to have the party perform the obligations.   This is called a waiver.   To succeed, the party claiming the waiver, must prove both of the following by clear and convincing evidence:  1. That the other party knew that the claiming party was required to perform certain things under the lease;  and 2. That that the other party freely and knowingly gave up its right to have the claiming party perform these obligations.   A waiver may be oral or written or may arise from conduct that shows that the other party gave up that right.   If the claiming party proves that the other party gave up its right to the claiming party's performance [of] certain things under the lease then the claiming party was not required to perform the obligations.”

FN14. On appeal Ken Crane's attempts to expand its argument to include Westminster's purported waiver of the right to receive holdover rent.   The nonwaiver and holdover provisions in the parties lease constitute substantial evidence supporting the jury's rejection of this variation of the waiver defense as well..  FN14. On appeal Ken Crane's attempts to expand its argument to include Westminster's purported waiver of the right to receive holdover rent.   The nonwaiver and holdover provisions in the parties lease constitute substantial evidence supporting the jury's rejection of this variation of the waiver defense as well.

FN15. Although pleaded as an affirmative defense, Ken Crane's did not again raise the estoppel issue until its posttrial motions..  FN15. Although pleaded as an affirmative defense, Ken Crane's did not again raise the estoppel issue until its posttrial motions.

WOODS, J. ZELON, J.