Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 04CECG01797, Alan M. Simpson, Judge.
Lozano Cross, Jerome M. Behrens, Gregory A. Wedner and Scott G. Cross for Defendant and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Timothy L. Thompson and Timothy J. Buchanan for Plaintiff and Respondent.
OPINION
CORNELL, Acting P. J.
This appeal involves 21 lots of real property located adjacent to State Center Community College District’s (SCCCD) new Clovis campus. Three of the lots are the subject of this appeal. SCCCD had a right of first refusal from the owner, American Property Holdings, LLC (APH). During the time in which SCCCD was entitled to exercise its right of first refusal, it exercised the right. During this same period, APH entered into a contract of sale with Golden Bear, Inc. (Golden Bear), and notified Golden Bear of SCCCD’s right of first refusal. When ACH and Golden Bear could not agree on a value to be deducted from the contract price as a result of the three lots being sold to SCCCD instead of being included in the sale to Golden Bear, Golden Bear filed for specific performance. The trial court found the right of first refusal document to be unenforceable and granted the request by Golden Bear for specific performance. We will reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In 1995, Velma Dyck entered into a memorandum of understanding (MOU) with SCCCD whereby she granted SCCCD a right of first refusal on four of 21 lots she owned, which were adjacent to SCCCD’s Clovis campus. The MOU provided that Velma would notify SCCCD whenever the lots were offered for sale and SCCCD would have a period of 30 days from the date of notification to exercise its right of first refusal. The MOU further provided that the MOU was not recordable in the chain of title. The MOU was entered into in conjunction with a sale of adjacent property by Velma to SCCCD.
We refer to Velma Dyck and William Dyck by their first names, not out of disrespect but to avoid any confusion to the reader.
In July 2003, Velma transferred title to all 21 lots to APH, whose partners were Velma and Alan Fishman. By agreement dated January 6, 2004, Velma apparently sold her interest in APH to her son, William Dyck.
On January 23, 2004, APH received an offer from Golden Bear to purchase all 21 lots for the sum of $3.8 million. On January 30, 2004, William, on behalf of APH, notified SCCCD that it had 30 days in which to exercise its right of first refusal and specified the purchase price for each lot.
On February 13, 2004, in a phone call, William informed Golden Bear’s agent, Brett Fugman, that there was an “issue” that needed to be resolved with SCCCD, “but it’s not going to be a problem.” Fugman did not inquire into the nature of the “issue” during the conversation. On February 18, William faxed a letter to Fugman stating he was meeting with SCCCD the next day and inquiring if Fugman or his client wanted to attend. Later, on February 20, 2004, William sent a fax transmittal to Fugman, as the agent for Golden Bear, stating, in relevant part:
“I met with State Center again yesterday to discuss their first right agreement on Herndon/Peach. As we discussed before they don’t want to purchase the property, however[,] their parking situation needs to be addressed with a new owner. Doug Brinkley, the Vice Chancellor[,] would like [to] meet with Mike Thomason [of Golden Bear] to discuss parking options and possibly a temporary lease of a few lots. Doug will wait for Mike to contact him. Please pass his contact info along to Mike.”
The fax transmittal then concluded with all the contact information for Brinkley, including his street address, telephone number, fax number, and e-mail address.
On February 18, 2004, before expiration of the 30-day period for SCCCD to exercise its right of first refusal, APH executed a contract with Golden Bear for the sale of all 21 lots to Golden Bear. The contract of sale provided that APH was to provide Golden Bear with documentation regarding title to the property and covenants, conditions, and restrictions; Golden Bear was to be given 90 days to conduct a due diligence investigation. The contract of sale was subject to Golden Bear’s approval of the due diligence investigation. If Golden Bear did not approve of any contingencies or conditions, it reserved the right to cancel the sale and obtain a full refund of any monies deposited.
The due diligence package was received by Golden Bear on February 25, 2004, and included the documentation pertaining to SCCCD’s right of first refusal and the January 30, 2004, notification to SCCCD of the timeframe in which to exercise its right.
On February 19, William met with Brinkley to arrange a meeting between SCCCD and Golden Bear. At this meeting, Brinkley reiterated that SCCCD was willing to discuss a potential lease of the lots, but was retaining its right to purchase the lots under the MOU. Brinkley asked William what would happen with the potential buyer if SCCCD decided to exercise its right to purchase three lots. William responded that the buyer would have to make a decision as to whether to purchase without those three lots. William did not tell Brinkley that, on behalf of APH, he had already executed a contract of sale for all 21 lots to Golden Bear.
Representatives of SCCCD and Golden Bear met on February 24, 2004. A “big issue” in the meeting was SCCCD’s impending deadline of March 1 in which to decide whether to exercise the right to purchase the four lots. Also discussed was a lease of one or more lots to SCCCD if Golden Bear purchased all 21 lots. During the meeting, SCCCD asked Golden Bear to get William to agree to a 15-day extension of time in which SCCCD could exercise its right to purchase. Golden Bear agreed to this request.
William granted Golden Bear’s request to extend the SCCCD purchase deadline. Shortly thereafter, SCCCD timely exercised its right to purchase three lots for the specified price of $600,000. On March 18, 2004, William responded, acknowledging receipt of the “exercise of option to purchase lots 18, 19 & 20” and stated APH was in the process of amending the escrow with Golden Bear to “reflect the exclusion of these lots.”
On March 19, 2004, William sent a fax transmittal to Fishman, the other partner in APH, stating that SCCCD had been unable to “come to terms” with Golden Bear regarding a lease of property from Golden Bear and therefore SCCCD had exercised its right to purchase three lots. William expressed the opinion that Golden Bear might “walk,” but that he was not concerned if this should happen because the price paid by SCCCD was greater than the price being offered by Golden Bear and “demand is still strong.” Also on March 19, William notified the escrow company handling the sale to Golden Bear that lots 18, 19, and 20 were excluded from that sale.
On March 31, 2004, Fugman, on behalf of Golden Bear, acknowledged notification of the exercise of SCCCD’s right to purchase lots 18, 19, and 20. The letter stated Golden Bear would expect a reduction in its purchase price by $725,000. William notified his partner, Fishman, of Golden Bear’s request for a $725,000 reduction in the sale price and expressed concern that Golden Bear expected a reduction of this amount, when SCCCD was paying only $600,000 for the lots. In William’s words, Golden Bear was “asking for the world.”
On April 6, 2004, William notified Fugman that APH would agree to a reduction in the purchase price by $474,230, as calculated in accordance with the purchase agreement between Golden Bear and APH. Golden Bear was asked to respond by April 13, 2004, or APH would assume Golden Bear wished to cancel the escrow.
On April 14, 2004, William notified the escrow company to cancel the pending sale to Golden Bear and to return Golden Bear’s deposit to Golden Bear. Also on April 14, William notified Fugman that APH was cancelling the escrow because Golden Bear had not responded to the April 6 notification and APH assumed it no longer wanted to proceed.
On April 19, 2004, Fugman notified William that APH had “no legal right to cancel the contract.” According to Fugman, Golden Bear was demanding APH proceed with a sale of all 21 lots to Golden Bear.
On April 30, 2004, APH’s attorney John E. Peterson notified Golden Bear that APH would agree to a reduction of $474,230 in Golden Bear’s purchase price. The reduction in price was calculated in accordance with Golden Bear’s contract, which provided for a purchase price of $3.94 per square foot. SCCCD’s purchase of the three lots reduced the total square footage by 120,363 square feet -- 120,363 times $3.94 equates to $474,230. In the alternative, APH offered to cancel the entire contract with Golden Bear and refund Golden Bear’s entire deposit.
In a letter dated May 11, 2004, Golden Bear responded to Peterson’s letter on behalf of APH. Golden Bear acknowledged in its letter that it had received the “due diligence package” from APH on February 25, 2004, which included the documentation regarding SCCCD’s right to purchase certain lots, and the January 30, 2004, letter notifying SCCCD of the timeframe in which to exercise its right to purchase. The letter further stated that on March 31, 2004, Golden Bear had its agent, Fugman, establish with APH “the pricing schedule for the parcels subject to [SCCCD’s] option.”
Golden Bear’s May 11 letter went on to state that on April 6 it had received a letter from APH stating SCCCD would be exercising its option, which was contrary to previous representations made by APH that SCCCD would not be exercising its option. Golden Bear’s letter then states, “the reduction to our contract would in fact be less than the price as per my previous correspondence dated March 31, 2004, and in fact the reduction as proposed by [APH] would be less than the option price as provided to [SCCCD].”
The May 11 letter further stated that in Golden Bear’s opinion APH had not “pursued this contract in good faith” and had made “gross misrepresentations.” Golden Bear indicated that the price reduction proposed by APH was unacceptable and that Golden Bear had suspended its due diligence as of April 6 and “will resume again upon a mutually satisfactory agreement as to the reduction in price.” Golden Bear’s letter concluded with the request that Golden Bear and APH “meet or via correspondence agree to a reasonable price reduction, for the parcels in question.”
Apparently, APH and Golden Bear never reached an agreement on an acceptable price reduction for the exclusion of the three lots from the sale to Golden Bear and on June 18, 2004, Golden Bear sued APH for breach of contract and specific performance. SCCCD was named as a defendant as to the cause of action for specific performance.
On June 15, 2006, the trial court signed the “Proposed Statement of Decision Following Court Trial” submitted by counsel for Golden Bear. APH and SCCCD filed objections to the proposed statement of decision on June 30 and July 5, 2006, respectively. In its statement of decision, the trial court concluded that the MOU did not create any legally enforceable right of first refusal and that SCCCD was not a good-faith purchaser under the MOU. The record does not disclose any change to the statement of decision and on August 17, 2006, judgment issued. The trial court granted Golden Bear’s request for specific performance against APH and SCCCD.
DISCUSSION
SCCCD contends the trial court erred in determining (1) the MOU was unenforceable; (2) SCCCD was not a good-faith purchaser; (3) Golden Bear was a good-faith purchaser; (4) Golden Bear did not waive and was not estopped from asserting a right to purchase the three lots in question; and (4) specific performance against SCCCD was an appropriate remedy.
I. Standard of Review
On appeal, we review a trial court’s grant or denial of specific performance under an abuse of discretion standard. (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472 (Real Estate Analytics).)
To obtain specific performance, a plaintiff generally must establish that monetary damages are an inadequate remedy. (Real Estate Analytics, supra, 160 Cal.App.4th at p. 472.) Under Civil Code section 3387, there is a rebuttable presumption that monetary damages are not an adequate remedy for breach of a commercial real property contract. (Real Estate Analytics, at pp. 473-474.) Because it is a rebuttable presumption, the “Legislature necessarily contemplated that there may be circumstances when the presumption that damages are inadequate can be overcome.” (Id. at p. 474.) The rebuttable presumption shifts the burden to the breaching party to prove the adequacy of damages. (Ibid.)
All further statutory references are to the Civil Code unless otherwise specified.
II. Enforceability of the MOU
We first address the issue of the enforceability of the option under the MOU. The trial court found that the MOU did not create any valid legal option or right of first refusal. SCCCD contends that the trial court erred in addressing this issue because the MOU had been fully performed, and Golden Bear did not challenge the validity of the MOU and right of first refusal until after it had been fully performed. SCCCD also contends that to the extent Golden Bear had standing to challenge the MOU, it waived that right. Contrary to the trial court’s holding, the MOU constituted an enforceable right of first refusal.
Between APH and SCCCD
The trial court found that the MOU (1) failed to specify a purchase price and terms, (2) was not recorded, (3) did not contain a specific clause stating that it was assignable by Velma to APH, and (4) lacked consideration. Based upon these factual findings, the trial court concluded that the MOU “did not create a legally valid option right” between APH and SCCCD. The trial court’s finding that the MOU lacked consideration is unsupported by the facts. The remainder of these factual findings does not support the conclusion that the MOU was not enforceable as between APH and SCCCD.
A right of first refusal, or preemptive right, gives the holder of the right a conditional right to acquire property if the owner elects to sell the property. The right of first refusal ripens into an option when the owner of the property elects to sell the property and receives a bona fide offer from a third party. (Hartzheim v. Valley Land & Cattle Co. (2007) 153 Cal.App.4th 383, 389.) A right of first refusal need not specify any price or terms in order to be enforceable. (7 Miller & Starr, Cal. Real Estate (3d ed. 2004) § 19:138, p. 427.)
The right of first refusal is enforceable against any successor in interest to the owner of the property who has notice of the existence of the right. (Rollins v. Stokes (1981) 123 Cal.App.3d 701, 705-711 (Rollins); 7 Miller & Starr, Cal. Real Estate, supra, § 19:136, p. 422.) Velma, as an initial partner in APH, certainly was aware of the MOU. Furthermore, every partner is the agent of the partnership and knowledge of one partner with respect to the business of the partnership is imputed to the other partners and the partnership. (§ 2332; GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 881.)
As for the trial court’s finding that the MOU lacked consideration, the facts establish the contrary. When a buyer purchases a parcel of property and obtains a right of first refusal on another parcel, as a matter of law the purchase of the one parcel constitutes consideration for the granting of the right of first refusal on another parcel. (Mercer v. Lemmens (1964) 230 Cal.App.2d 167, 171-172; 1 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 2:10, pp. 39-40.)
A right of first refusal cannot be defeated by an owner entering into a sale for a larger parcel. In such cases, the owner must make a reasonable allocation of the sales price to the portion subject to a right of first refusal. If the owner fails to do so, the courts will determine the fair value of the portion subject to a right of first refusal. (Maron v. Howard (1968) 258 Cal.App.2d 473, 488-489; 7 Miller & Starr, Cal. Real Estate, supra, § 19:138, p. 429.)
Furthermore, in Rollins, supra, 123 Cal.App.3d at page 713, this court held that any defects in an option agreement, or the exercise of a preemptive right to purchase property, can be waived and that any defects are waived if the optionor remains silent at tender and then later seeks to raise hidden objections. APH, as optionor, did not raise any objections or challenge the enforceability of the right of first refusal by SCCCD at the time SCCCD sought to exercise the right of first refusal.
Velma and SCCCD in all likelihood could have prevented the subsequent litigation if they had agreed to record the MOU. Failure to record the MOU, however, does not defeat its enforceability. A right of first refusal can be created by contract or by a recorded covenant. (1 Miller & Starr, Cal. Real Estate, supra, § 2:10, p. 39.) The statute of frauds requires that the MOU be in writing to be enforceable, which it was, but not that it be recorded to be enforceable as between the parties. (§ 1624, subd. (a)(3); Pac. etc. Dev. Corp. v. Western Pac. R.R. Co. (1956) 47 Cal.2d 62, 68.) Moreover, as between SCCCD and APH, the MOU was enforceable because APH was a successor in interest with notice of the MOU, there was valid consideration for the MOU, and APH never objected to SCCCD’s exercise of the right of first refusal.
As these authorities demonstrate, the trial court’s factual findings cannot support a conclusion that the MOU was unenforceable as between APH and SCCCD. Therefore, the trial court erred in concluding that the MOU was unenforceable by SCCCD.
Enforceability against Golden Bear
We next address the issue of enforceability of the MOU against Golden Bear. Golden Bear sought to raise defects in the MOU at the time of trial, after the MOU had been fully performed between the parties to the agreement, APH and SCCCD. The trial court concluded that because the MOU was not a recorded instrument, it could not have placed Golden Bear or anyone else on notice. Golden Bear, however, was given actual notice of the right of first refusal and never raised an objection to its enforceability until after title had transferred to SCCCD.
The evidence presented at trial established that as of February 13, 2004, Fugman, as the agent for Golden Bear, was aware that SCCCD had some interest that impacted the sale to Golden Bear. Between February 18 and 20, Fugman learned that SCCCD’s interest was an option or right of first refusal. Once Golden Bear had notice that SCCCD had some right or interest in a portion of the property Golden Bear was interested in purchasing from APH, Golden Bear had a duty to investigate. Furthermore, Golden Bear cannot rely on any representations or misrepresentations made by APH or William with respect to the right of first refusal and SCCCD’s intentions regarding its preemptive right. It was Golden Bear who had the duty to investigate what interest, if any, was held by SCCCD once it had notice that SCCCD claimed some sort of right or interest. If Golden Bear fails to investigate fully, then it takes subject to SCCCD’s right. (Chalmers v. Raras (1962) 200 Cal.App.2d 682, 686-688; 5 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 11:77, p. 196.)
Golden Bear received further actual notice of the right of first refusal on February 24, 2004, when representatives of SCCCD and Golden Bear met. A “big issue” in the meeting was SCCCD’s impending deadline of March 1 in which to decide whether to exercise the right of first refusal. Additionally, during that meeting SCCCD asked Golden Bear to get APH to agree to a 15-day extension of time in which SCCCD could exercise its right to purchase. Golden Bear agreed to this request by SCCCD and asked William and APH to extend the time for exercise of the rights under the MOU. William granted Golden Bear’s request to extend SCCCD’s purchase deadline.
Moreover, Golden Bear did not have to invest much effort in investigating exactly what right SCCCD might have in the lots. The due diligence package was received by Golden Bear on February 25, 2004, and included the documentation pertaining to SCCCD’s right of first refusal and the January 30 notification to SCCCD of the timeframe in which to exercise its right. There is no indication that Golden Bear, at any time prior to the recordation of the deed to the three lots to SCCCD, claimed the right of first refusal was unenforceable or objected to SCCCD’s exercise of its right of first refusal.
Both Fugman, Golden Bear’s agent, and Golden Bear’s principal testified that they understood as of February 24, 2004, that SCCCD had some right to purchase the three lots from APH. They did not dispute that right at that time, or at any time thereafter until the lawsuit was filed. Furthermore, neither Golden Bear’s principal nor its agent, Fugman, told SCCCD during the February 24 meeting that Golden Bear already was in contractual privity with APH to purchase the lots subject to the right of first refusal. Instead, Golden Bear requested that William extend the time for SCCCD to exercise the right to purchase the three lots under the MOU.
It is undisputed that SCCCD purchased three lots from APH and the deed transferring title was recorded on April 30, 2004. Upon notification that SCCCD intended to purchase three lots initially included in the contract of sale to Golden Bear, Fugman, on behalf of Golden Bear, acknowledged notification of the exercise of SCCCD’s right to purchase lots 18, 19, and 20. The March 31, 2004, letter from Fugman stated Golden Bear would expect a reduction in its purchase price by $725,000. The Fugman letter does not object to the sale, but acknowledges that SCCCD was exercising its option to purchase three lots.
Subsequent to the transfer of title to SCCCD by APH, Golden Bear’s principal issued a letter on May 11, 2004, acknowledging that SCCCD had an option on certain lots and had exercised that option and discussing the price reduction that would have to be granted under the contract between APH and Golden Bear. Golden Bear acknowledges that it and APH had a disagreement as to the amount of the price reduction, but nowhere in the letter does Golden Bear contend that the sale to SCCCD should not have moved forward and that it would expect specific performance and a sale of all 21 lots to Golden Bear. The letter concludes with a request that SCCCD be notified that APH and Golden Bear were in a dispute regarding the option price, not that Golden Bear had any objection to SCCCD’s exercise of the option.
At no time before SCCCD exercised its rights under the MOU did Golden Bear challenge that right or the enforceability of the MOU. Golden Bear did not object to the sale to SCCCD going forward when notified of the exercise of rights under the MOU, nor did Golden Bear make any attempt to stop the sale to SCCCD from going forward. No objection or challenge was raised until the lawsuit was filed.
As of February 13, 2004, Golden Bear, through Fugman, was on notice that SCCCD had some interest that affected the sale to Golden Bear, which date was prior to the date that there was a fully executed contract between APH and Golden Bear. At that point, Golden Bear had an obligation to investigate fully the nature of SCCCD’s claim and could not rely on any representations made by William as to the nature of SCCCD’s interest or intentions. Further, Golden Bear’s subsequent conduct, particularly its request to William to extend the time for performance by SCCCD, indicates that Golden Bear was aware of SCCCD’s preemptive right, did not raise any objection to the enforceability of the MOU, and acknowledged SCCCD’s right of first refusal. Consequently, the trial court’s finding that Golden Bear was a good-faith purchaser without notice was not supported by the evidence.
Golden Bear’s principal, Michael L. Thomason, as the owner of a real estate development company, presumably is sophisticated in the matter of real estate transactions. A review of the due diligence package, which Thomason apparently did not complete, would have disclosed the exact nature of SCCCD’s interest. At a minimum, one would not expect Golden Bear to ask William to extend the time for performance under the MOU if Golden Bear had had any objections to the enforceability of the MOU or if Golden Bear believed its contract was not subject to SCCCD’s right of first refusal.
Although the trial court concluded that Golden Bear was not estopped from challenging the MOU and the sale to SCCCD, under the facts of this case and relevant law, Golden Bear was estopped and its interest in the real property was subject to SCCCD’s preemptive right.
III. Adequacy of Damages
To the extent that it can be argued that Golden Bear’s contract was not subject to SCCCD’s right of first refusal, we address the issue of the adequacy of monetary damages as a remedy under the facts of this case.
In the statement of decision, the trial court stated, “Specific performance of the Purchase Contract is the most appropriate remedy as the essential terms are present and all other remedies are inadequate as land is unique.” The trial court further stated, “it is presumed that damages would be an inadequate remedy as the land is deemed unique and specific performance is granted as a matter of course. The general rule on inadequacy of the damage remedy in a land sale contract applies to the transfer of any interest in real property. [Citation.] Thus, the remedy of specific performance is both appropriate and absolutely necessary in this case.”
The findings and conclusions of the trial court as set forth in the statement of decision fail to recognize that with respect to commercial property, section 3387 sets forth a rebuttable presumption. To state as an absolute that all other remedies at law are inadequate because land is unique, and therefore specific performance is granted as a matter of course, constitutes a misstatement of the law. Only in the case of a single family residence that the purchaser intends to occupy is there a conclusive presumption; in all other instances the presumption is rebuttable. (Real Estate Analytics, supra, 160 Cal.App.4th at p. 474.) The statement of decision fails to discuss, or even acknowledge, that a party has a right to rebut the presumption in a situation involving a land sale contract for commercial property.
SCCCD was not a party to the contract between Golden Bear and APH and, as set forth in part II., ante, Golden Bear’s contract was subject to SCCCD’s preemptive right and thus specific performance was not an available remedy as to those three lots. Regardless, evidence was produced rebutting the presumption that monetary damages are an inadequate remedy for any breach of the commercial real property contract between Golden and APH.
Before SCCCD exercised its right of first refusal, it was Golden Bear that secured an extension of time for SCCCD to exercise its preemptive right. Presumably, Golden Bear was willing to move forward with the purchase of the remaining lots even if SCCCD exercised a right of first refusal. Golden Bear also was agreeable to leasing one or more lots to SCCCD if Golden Bear purchased all 21 lots.
On March 31, 2004, Fugman, on behalf of Golden Bear, acknowledged notification of the exercise of SCCCD’s right to purchase lots 18, 19, and 20. The letter stated Golden Bear would expect a reduction in its purchase price by $725,000.
The May 11, 2004, letter from Thomason, Golden Bear’s principal, stated that on March 31 Golden Bear had its agent, Fugman, establish with APH “the pricing schedule for the parcels subject to [SCCCD’s] option.” Golden Bear indicated that the price reduction proposed by APH was unacceptable. The letter goes on to state, “the reduction to our contract would in fact be less than the price as per my previous correspondence dated March 31, 2004, and in fact the reduction as proposed by [APH] would be less than the option price as provided to [SCCCD].” Golden Bear’s letter concluded with the request that Golden Bear and APH “meet or via correspondence agree to a reasonable price reduction, for the parcels in question.”
One is left with the inescapable impression that Golden Bear sought specific performance against SCCCD, not because of the uniqueness of the three lots and its desire to utilize them, but because Golden Bear was unable to negotiate a mutually agreeable price reduction with APH. Throughout the time period from February 24, 2004, to the time the lawsuit was filed, Golden Bear actively participated in events that extended the time period for SCCCD to exercise its right, which would preclude any purchase of those lots by Golden Bear, actively engaged in negotiations to lease the lots to SCCCD if SCCCD decided not to exercise its preemptive right, and actively sought to negotiate a price reduction in its contract with APH after SCCCD exercised its right of first refusal.
At no time did Golden Bear oppose the sale by APH to SCCCD on any basis. At no time prior to trial did Golden Bear assert that the three lots purchased by SCCCD were in any way integral to its plans for the balance of the lots. At no time prior to trial did Golden Bear assert any lost investment opportunity if it failed to secure title to the lots subject to SCCCD’s preemptive right. Golden Bear itself at all times assigned a monetary value to the lots that it considered adequate for exclusion of the three lots from the contract for sale.
Although there is a “dearth of appellate court decisions in this state addressing the issue of the scope of the breaching party’s burden to rebut the presumption that the damages remedy is inadequate,” it was error to conclude that specific performance must be granted as a matter of course and an abuse of discretion to find that under the facts of this case monetary damages could not compensate Golden Bear adequately. (Real Estate Analytics, supra, 160 Cal.App.4th at p. 474.)
DISPOSITION
The findings and conclusions pertaining to SCCCD are hereby vacated. The judgment is reversed as to SCCCD. The matter is remanded with directions to enter a judgment in favor of SCCCD and against Golden Bear and to deem SCCCD the prevailing party. Costs of suit are awarded to SCCCD.
WE CONCUR: GOMES, J., KANE, J.