Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. BC316793 of Los Angeles County John L. Lynch, Judge. Affirmed.
Mark Brifman for Defendant and Appellant.
Mesisca, Riley & Kreitenberg; Dennis P. Riley and Rena E. Kreitenberg for Plaintiff and Respondent.
BIGELOW, J.
We affirm a judgment for specific performance of a contract for the sale of real property. We deny respondent’s motion for sanctions for a frivolous appeal.
FACTS
Bahram Hojabri entered a written contract to sell a residential property to Robert Adhalla for $470,000. Abdalla thereafter deposited $25,000 into an escrow account, but Hojabri refused to proceed with the sale, and refused to authorize the return of Abdalla’s deposit.
In June 2004, Abdalla sued Hojabri for breach of the sales contract, fraud, and specific performance; Hojabri filed a cross-complaint against Abdalla. The case was tried to a jury in November 2005, and, on November 28, 2005, the jury returned a special verdict which included findings that Hojabri breached the contract to sell the property to Abdalla. The jury’s verdict also included findings that the sales contract “[s]hould... be specifically enforced,” and that Abdalla had been damaged in the form of the lost “benefit of the bargain” (which the jury fixed at $470,000) and in the form of the loss of his deposit ($25,000). On December 13, 2005, the trial court, the Honorable Irving S. Feffer, entered judgment in favor of Abdalla, and against Hojabri, in accord with the jury’s special verdict.
We do not concern ourselves with the other parties to the action who are not involved in the current appeal.
Hojabri filed an appeal, and, in April 2007, we ruled that the judgment provided an improper “double recovery” because it included provisions for two alternate remedies, i.e., specific performance and damages. (CV Properties, Inc. v. Hojabri (Apr. 23, 2007, B189235) [nonpub. opn.].) We reversed the judgment in favor of Abdalla, and remanded the cause to the trial court with directions to issue an order requiring Abdalla “to elect between the remedies of specific performance and contract damages.” (Id. at p. 18.) In a separate opinion, also in April 2007, we ruled that Abdalla was entitled to recover contract-based attorneys’ fees. (Abdalla v. Hojabri (Apr. 24, 2007, B190707) [nonpub. opn.].)
In June 2007, the clerk of our court issued remittiturs as to both appeals, and, on August 13, 2007, Abdalla filed notice in the trial court that he elected the remedy of specific performance.
On August 23, 2007, Abdalla filed a motion to enter a new judgment, including an award of attorneys’ fees. In September 2007, Hojabri filed opposition to the motion for attorneys’ fees, arguing that such fees could not simply be “slipped” into the judgment, and that he was entitled to a hearing on the amount of such fees. Hojabri thereafter hired new counsel, and, in December 2007, Hojabri filed a further objection to entry of judgment, this time arguing that Abdalla’s election of the remedy of specific performance had “substantially and profoundly changed the posture of the case,” and had “render[ed the trial court] the finder of fact in this matter, and render[ed] the jury verdict advisory at best, and arguably nugatory.”
On a date not ascertainable from the record submitted to us on the current appeal, Judge Feffer became unable to continue his judicial duties.
Our internet search disclosed that Judge Feffer retired effective in May 2008.
On April 7, 2008, “the Honorable Jerry K. Fields sitting for the Honorable Irving Feffer pursuant to stipulation of the parties,” signed and entered a formal written “order after hearing” on Abdalla’s motion to enter judgment. Judge Fields’s order set forth his decision to enter a judgment of specific performance in favor of Abdalla, and against Hojabri, and included a finding on the amount of Hojabri’s reasonable attorneys’ fees. On April 30, 2008, the Honorable John L. Lynch signed and entered a judgment which incorporated (1) the special verdict returned by the jury, and (2) our prior opinions, and which included a provision awarding attorneys’ fees.
On June 27, 2008, Hojabri filed a notice of appeal from the judgment which was signed and entered by Judge Lynch.
On August 6, 2008, Judge Fields signed and entered an “amended” judgment for specific performance in favor of Abdalla and against Hojabri; that judgment includes an award in the amount of $265,039.81 for attorneys’ fees, plus costs in the amount of $23,953.61, plus an additional $22,496.41 for so-called “incidental damages” in the form of lost rent from June 2007 to the date of the judgment. The parties’ briefs on appeal do not address the validity of the “amended” judgment signed and entered by Judge Fields in August 2008, and we express no view on the subject.
DISCUSSION
I. The Judgment Was Properly Signed and Entered By Judge Lynch
Hojabri first contends it was an “abuse of discretion” for Judge Lynch to enter the judgment for specific performance in favor of Abdalla, “rather than... set the matter for a new trial.” Next, Hojabri argues Judge Lynch “had no discretion to enter a judgment without hearing the evidence.” Under either of his mixed standards, Hojabri appears to contend that he became entitled to a new trial when Judge Feffer was unable to return to the bench. We disagree.
Hojabri cites the well-settled rule that a party litigant is entitled as a matter of due process to have a decision on the facts of his or her case made by the judge who hears the evidence, where the matter is tried without a jury, or by the jury that hears the evidence, where the matter is tried to a jury. (See, e.g., European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, 1214.) Hojabri construes this rule to mean that one judge “cannot... enter a judgment upon evidence taken before another judge.” Hojabri’s superficial reading of his own rule has led him to an incorrect conclusion of law.
Where, as in the current case, competing claims are tried to a jury, the parties are entitled to have the facts decided by that jury. This rule, however, has little to do with the case before us today, and no proceeding which transpired in the course of the current case has resulted in a violation of the rule requiring the jury which heard the evidence to then decide the facts. The jury which sat in judgment of the facts at the original trial in 2005 found that Hojabri had breached the parties’ sales contract, and nothing in Hojabri’s arguments, nor in his cited legal authorities, persuades us that Judge Lynch’s succession of Judge Feffer requires the undoing of the jury’s factual findings. And, apart from the continuing validity of the jury’s finding that Hojabri breached the parties’ contract, it is another well-settled rule that, when a cause has been remanded from an appellate court to the trial court with directions to enter a particular judgment, it is the trial court’s duty enter judgment conforming with the order of the appellate court; the lower court may neither reopen the case on the facts, nor allow the filing of amended or supplemental pleadings, nor retry the case. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 301.) In short, upon Abdalla’s election of the specific performance remedy, the trial court’s entry of a redrafted judgment essentially became a ministerial act, and did not require any new evidence nor findings with regard to the jury’s existing finding of breach of contract. For this reason, there was nothing improper in Judge Lynch’s act of signing and entering the judgment as a “successor judge.” (Code Civ. Proc., § 635.) The trial court’s findings with regard to the amount of attorneys’ fees –– which the record shows were made by Judge Fields “sitting... pursuant to stipulation of the parties” –– need not be reversed because, as noted, the record suggests that the parties agreed to have a judicial officer (Judge Fields) other than Judge Feffer determine that issue. Hojabri’s showing on appeal has simply not persuaded us that there was error in this case requiring reversal.
II. There Was No Instructional Error
Hojabri next contends, as best as we are able to understand from his opening brief, that the jury’s special verdict must be reversed because the trial court did not instruct the jury that the remedy of specific performance was unavailable unless Abdalla proved his breach of contract claim by clear and convincing evidence. We reject this argument for several reasons. First, Hojabri did not raise his assignment of instructional error in his prior appeal, and it may not be raised now for the first time in his second appeal. Second, Hojabri has not shown us that he objected to the trial court’s jury instructions, or that he requested the instruction which he now claims was improperly omitted. Finally, the burden of proof rule which Hojabri cites applies in the context of an alleged oral contract only (see, e.g., Khoury v. Barham (1948) 85 Cal.App.2d 202, 211), and the current case involves a written real estate sales contract. While it is reasonable to require a higher standard of proof in an action for specific performance of an oral contract, to assure the terms of the contract are plainly established, Hojabri has not convinced us that an increased degree of proof is need for specific performance of a written contract.
III. Sanctions On Appeal Are Denied
Abdalla has filed a combined motion to dismiss and for an award of sanctions on appeal on the ground that Hojabri’s claims of error are frivolous. Although we agree that Hojabri’s appeal lacks merit, we decline to impose sanctions because we are not persuaded that Hojabri has pursued his appeal for an improper purpose such as delay or to harass Abdalla. Having said that, we advise Hojabri that it appears to us that is now time for him to obey, without further delay, the judicial processes which have resulted in the final judgment in this case.
DISPOSITION
The judgment is affirmed. The motion to dismiss the appeal and/or for sanctions on appeal is denied. Respondent is awarded costs on appeal.
We concur: RUBIN, Acting P. J., FLIER, J.