Filed 4/29/14 Coleman v. Woosley CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


MARK E. COLEMAN, as Administrator,
etc.,
                                                                       G048730
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 30-2009-00317193)
         v.
                                                                       OPINION
BYRON WOOSLEY,

     Defendant and Appellant.



                   Appeal from a judgment and order of the Superior Court of Orange County,
Craig L. Griffin, Judge. Affirmed.
                   Fransen and Molinaro and Nathan W. Fransen for Defendant and
Appellant.
                   Kimball, Tirey & St. John, Karl P. Schlecht and Michaelene H. Kapson, for
Plaintiff and Respondent.
                                              INTRODUCTION
                  This is a one-issue appeal: Whether appellant Byron Woosley is liable for
unpaid rent as the guarantor of a sublease after the subtenants defaulted. Both Woosley
and respondent Mark Coleman moved for summary judgment on this one issue. The trial
court granted Coleman’s motion and denied Woosley’s. Judgment was then entered in
Coleman’s favor.
                  We affirm both the judgment and the denial of Woosley’s motion.
Woosley’s guaranty was indeed enforceable. His main argument – that the sublease had
expired and so had his guaranty – is contradicted by the evidence he himself produced or
agreed to. The court correctly entered judgment against him.


                                                     FACTS
I.                Facts Underlying the Motions for Summary Judgment
                  Both parties agree as to the basic facts. Coleman is the administrator of the
Lawrence P. Conte Estate, which owned the real property that is the subject of this
appeal. Karly Brown leased this property from Conte. Brown in turn subleased the
property to Michael and Dawna Brandon. The sublease commenced in September 2008.
It terminated in September 2010, although another termination date was handwritten
                                         1
above the original printed date.
                  Appellant Woosley guaranteed the sublease between Brown and the
Brandons in September 2008. The guaranty provided, “In consideration of the execution
of the Agreement by and between [Brown] and [the Brandons] and for valuable
consideration, receipt of which is hereby acknowledged, the undersigned (“Guarantor”)



         1
                    The month of the handwritten termination date is illegible. The day is the 29th in 2009. Michael
Brandon stated in a declaration that a change in the sublease termination date occurred after he executed the original
document, but the new date was not the 29th. The objection to the portion of his declaration in which he opined as
to the effect of the change in date was sustained.


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[Woosley] does hereby: (i) guarantee unconditionally to [Brown] and [Brown’s] agents,
successors and assigns, the prompt payment of Rent or other sums that become due
pursuant to this Agreement, including any and all court costs and attorney fees included
in enforcing the Agreement; (ii) consent to any changes, modifications or alterations of
any term in this Agreement agreed to by [Brown] and [the Brandons]; and (iii) waive any
right to require [Brown] and/or [Brown’s] agents to proceed against [the Brandons] for
any default occurring under this Agreement before seeking to enforce this Guarantee.”
                  The Brandons last paid rent to Brown under the sublease in April 2009,
which rent Brown accepted. The Brandons failed to pay rent from May 2009 until
December 2009, when they were evicted. Coleman regained possession of the premises
in December 2009.
                  A feature of the sublease that the parties hotly debated was the existence
and effect of an alleged subsequent addendum to the sublease, purportedly changing the
expiration date from September 14, 2010, to March 23, 2009. This addendum was not
signed by the Brandons, and, although Brown’s signature ostensibly appeared on it, under
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the date October 17, 2008, this signature was not authenticated.


II.               Procedure
                                                                                           3
                  The parties made cross-motions for summary judgment. The trial court
granted Coleman’s motion and denied Woosley’s, on the grounds that Woosley’s
guaranty was a continuing one, even after the stated term of the sublease had expired.
The court entered judgment against Woosley for $25,240 in back rent, plus costs and




         2
                   The court sustained objections to statements in Michael Brandon’s declaration regarding the effect
of this addendum. Woosley did not contest any of the evidentiary rulings in this appeal.
          3
                   Coleman asserted that he had obtained an assignment of all Brown’s rights against the Brandons
for breach of the sublease, an assertion Woosley did not dispute.


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attorney fees for a total judgment of $55,784. Woosley has appealed from both the
judgment entered against him pursuant to Coleman’s motion and the denial of his motion
against Coleman.
                                       DISCUSSION
              “A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
[Citation.] We review the trial court’s decision de novo, considering all of the evidence
the parties offered in connection with the motion (except that which the court properly
excluded) and the uncontradicted inferences the evidence reasonably supports.
[Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
              “A surety or guarantor is one who promises to answer for the debt, default,
or miscarriage of another. . . . Guaranties of collection and continuing guarantees are
forms of suretyship obligations . . . .” (Civ. Code, § 2787.) “A guaranty relating to a
future liability of the principal, under successive transactions, which either continue his
liability or from time to time renew it after it has been satisfied, is called a continuing
guaranty.” (Civ. Code, § 2814.) “The guaranty of payment of a tenant’s present and
future rent liability is an example of a continuing guaranty.” (Central Building, LLC v.
Cooper (2005) 127 Cal.App.4th 1053, 1059.)
              The basic facts as to both motions are undisputed. The Brandons subleased
the property; Woosley guaranteed the sublease. The Brandons failed to pay rent between
May and December 2009 while still living there. The Brandons are no longer in
possession of the property. The terms of the sublease and the guaranty are also
undisputed – except for the date.
              There is no admissible evidence that Brown and the Brandons agreed the
sublease would expire on a date different from the date originally specified in the
sublease, September 14, 2010. The court sustained objections to Michael Brandon’s



                                               4
declaration statements that the sublease’s expiration date was changed from September
                                       4
14, 2010, to March 23, 2009. Thus Woosley’s main argument – his guaranty expired in
March 2009 when the lease expired, and he was not liable for the May through December
unpaid rent while the Brandons were holdover tenants – is based on an incorrect premise.
Whether he could be liable on the guaranty if the Brandons became holdover tenants is
irrelevant. There is no evidence that the Brandons were ever holdover tenants. The
sublease lasted until September 2010, and Woosley was on the hook at least until that
date. The Brandons were gone by December 2009. No holding over took place.
                   Woosley does not dispute that he guaranteed the Brandons’ sublease.
From the evidence before us, that sublease – and therefore Woosley’s guaranty – expired
                          5
in September 2010. Brown had the right to collect rent from the Brandons until that time
                                                                                6
– barring any change in lease terms agreed to by both sides. If the Brandons did not pay,
Brown had the right to look to Woosley to pay in their stead. Woosley did not dispute
the calculation of the amount of rent owing, and he did not appeal from the subsequent
award of attorney fees.




         4
                   This is a different issue from the handwritten change in the expiration date on the first page of the
sublease itself. No one provided any evidence at all about that date, which was the 29th of some illegible month in
2009. Under Evidence Code section 1402, a party producing a materially altered document has to account for the
alteration. No one did. Depending on who made the change, the alteration may have extinguished some important
obligations. (See Civ. Code, § 1700.)
          5
                   There was some question about when Brown’s lease from Conte expired, which might have
complicated matters if it turned out that Brown’s sublease with the Brandons ran longer than her lease with Conte.
No one obtained a declaration from Brown, however, and the Conte/Brown lease was not in evidence. We therefore
cannot consider this issue.
          6
                   Under the guaranty, Woosley consented in advance to “any changes, modifications or alterations
of any term in this agreement agreed to by [Brown] and [the Brandons].”


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                                   DISPOSITION
              The judgment after the grant of summary judgment to Coleman is affirmed.
The order denying Woosley’s motion for summary judgment is affirmed. Respondent is
to recover his costs on appeal.




                                               BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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