Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 55265
NICHOLSON, J.
During the course of a real property sales transaction, the seller discovered he did not own all interest in the property. The deed by which he took title to the property from his now deceased mother had conveyed title to him and her as tenants in common instead of joint tenants. The discovery of this fact stalled the transaction for 18 months without resolution. Ultimately, the purchasers sued for specific performance.
Following a court trial, the trial court reformed the deed to state the seller had taken property as a joint tenant, and then granted a judgment ordering performance of the purchase agreement in full. It also enforced the listing agreement under which the seller’s agents had acted.
Seller appeals, claiming the trial court erred in reforming the deed and granting specific performance. We agree with seller in part. Reformation of the deed was improper because other persons with interest in the property were not joined to the reformation action. However, we affirm the judgment to the extent it enforces sale of the seller’s interest in the property, and we remand the matter for further proceedings.
FACTS
The facts, as found by the trial court or as undisputed at trial, are as follows:
Phyeria Scribner was previously the sole owner of real property located at 271 Yawl Place, Lake California, Tehama County. By grant deed recorded August 7, 1990, she transferred part of her interest in the property to her son, defendant Harry J. Scribner, Sr. The deed stated she granted the property to herself “as her sole & separate property and Harry J. Scribner Sr. a married man as his sole and separate property . . . .” By its failure to expressly declare the creation of a joint interest in the property, the deed presumably conveyed common interests to both Phyeria and defendant without the right of survivorship. (Civ. Code, § 686.)
In November of 1990, Phyeria transferred her interest in the property into a newly created trust, the Scribner Trust. Under the terms of the trust, her interest in the property upon her death would pass as part of her estate to her three sons and six grandchildren in equal shares. Phyeria served as trustee of the trust. Upon her death, her sons, defendant, Thomas Scribner, and Richard Scribner, would assume the role of successor cotrustees.
In 1996, Phyeria restated the trust’s assets. In this new rendition, she described the property as an “[u]nimproved parcel of real property in Lake California, CA, held in joint tenancy with HARRY SCRIBNER, SR.” No deed reflecting this change, or correction, in tenancy was recorded.
Phyeria passed away in 1997.
Defendant Harry Scribner, Sr. believed, based on the representation in the 1996 restatement of trust assets, that he and his mother held the property in joint tenancy, and that upon her death, her interest automatically transferred to him under a right of survivorship. His two brothers, as cosuccessor trustees, never challenged his assumption. Acting on that assumption, Scribner paid all property taxes and assessments on the property. He did not seek reimbursement of those expenses from his brothers or the trust.
In March 2003, Scribner decided to sell the property. He entered into a listing agreement with Re/Max Top Properties of Red Bluff to sell the property for $75,900. In the listing agreement, Scribner warranted he was the owner of the property, no other person had title to the property, and he had authority to execute the listing agreement and transfer the property.
As discussed in further detail below, Scribner claims the listing agreement was unenforceable because he did not sign it. He did, however, initial each page of the listing agreement except the last page, and he informed the Re/Max agents in a letter dated March 18, 2003, that he had decided to list the property with them.
Gary and Lyn Beem of Re/Max Top Properties served as Scribner’s agents. They listed the property on the multiple listing service. They did so in reliance upon Scribner’s warranties of ownership. They would not have agreed to list the property without Scribner’s consent.
Todd Ross, also an agent with Re/Max Top Properties, presented the Beems with an offer from his clients, plaintiffs Mark and Donna Morehead, to purchase the property on April 27, 2003. Scribner orally accepted the offer that evening. He signed the purchase agreement the following day and faxed it to the Beems.
Under the terms of the purchase agreement, the Moreheads agreed to purchase the property for $76,000 in cash. The purchase was contingent on their obtaining a setback variance by the county. The Moreheads provided a $1,000 deposit, which was used to open escrow. The purchase agreement called for a 30-day escrow.
The parties made various promises under the purchase agreement. Scribner warranted he was the owner of the property, or that he had the authority to execute the purchase agreement. He also agreed to provide the Moreheads with certain disclosures regarding the condition and use of the property and the existence of any hazards on the property.
The Moreheads agreed to provide Scribner with written verification they had sufficient funds to close the transaction. They agreed to take title “in its present condition subject to all encumbrances,” but their agreement was subject to their prior review of a preliminary title report and any other matter that could affect title. They agreed that time was of the essence.
The parties agreed to mediate any dispute that arose under the agreement before initiating a legal action. They also agreed the prevailing party in a legal action was entitled to attorney fees and costs so long as that party had first attempted to resolve the matter through mediation.
When the preliminary title report was released, Scribner learned for the first time he did not own all interest in the property. As already mentioned, the deed his mother had used to transfer title to him and her stated title was granted to them as their separate property.
When this discrepancy surfaced, there was concern whether the transaction would go forward. Scribner told the Beems he would be able to clear title. He thought his brothers would approve the transaction. The Beems informed Ross of Scribner’s statement. It was the parties’ intent that the transaction would continue to allow Scribner sufficient time to clear title. Based on that representation, Ross told the Moreheads the transaction was still alive.
In addition to his not providing clear title, Scribner failed to provide the Moreheads with any of the disclosures required by the purchase agreement.
Meanwhile, Ross had been working to obtain the variance from the county which the Moreheads had made a condition of the transaction going forward. Ross had started that process the same week Scribner accepted the offer. The county received the application for the variance on May 14, 2003. At that time, the next possible hearing date was June 4, 2003, after the 30-day escrow was scheduled to close. There was no possible way for the variance to be heard or approved sooner.
Ross asked Scribner, through the Beems, to extend escrow to accommodate this delay. The Beems forwarded to Scribner for his signature an addendum extending escrow from June 2 to June 5, 2003, or no later than June 9, 2003.
Scribner did not sign the extension. He told the Beems he was concerned with the status of his title to the property and was not willing to sign the extension at that point. However, Scribner and his agents never objected to Ross or the Moreheads about the delay in obtaining the variance. The county granted the Moreheads their variance on June 4, 2003.
From that point, Ross believed that only the clearing of title prevented escrow from closing. Both Ross and the Beems submitted five extensions over the next year and a half for Scribner’s signature to try to protect escrow. Ross prepared three; the Beems prepared two. Scribner did not sign any. The Beems told Ross they were having difficulty making contact with Scribner. At one point, Ross discussed with the Moreheads putting the purchase money into escrow to show they were willing to close. The Moreheads were willing to do this, but the Beems told them it was not necessary.
The Moreheads never gave Scribner written verification of their ability to fund the purchase. However, Scribner never demanded they cure this omission. At trial, the parties stipulated the Moreheads at all times had possessed the financial resources to fund immediately the balance of the purchase price.
The Beems informed Ross they were waiting for the extension requests to be returned signed, and they still believed the transaction was alive. Scribner continued to affirm to them his willingness to proceed with the transaction as long as he could deliver title. However, at some point, Scribner told Lyn Beem that he was not signing anything until he could get clear title. Scribner had also informed Gary Beem that if and when he could get the title cleared, and if the buyers were still willing to buy the land, they would renegotiate.
Ross and the Beems contacted a lawyer to try to help Scribner clear title. The attorney drafted a letter explaining what had to happen to clear title. Scribner refused to follow through with the attorney, objecting to the potential for incurring high attorney fees.
The Beems continued to work with Scribner to clear title through the fall of 2004. In December of that year, they wrote a letter to Scribner asking him to let them know how he was progressing in clearing title. A note written by Mr. Beem said, “Scribner called. Can’t get response from brother.”
By December 2004, Ross believed the transaction would not proceed. He wrote to the Moreheads recommending they file a lis pendens to prevent Scribner from selling the property. He had learned the Beems had accepted backup offers on the property. Property values were increasing rapidly at this time.
On February 14, 2005, the Moreheads filed a complaint against Scribner individually and as successor to Phyeria’s estate. They did not name the cotrustees of the trust as parties. They also filed, on May 4, 2005, a notice of lis pendens with the Tehama County Superior Court. The notice was recorded by the Tehama County recorder.
Scribner never deposited a grant deed into escrow. Ross never received any notice from Scribner or the Beems demanding the Moreheads proceed or somehow take action to close the transaction.
The first request on file to cancel escrow was sought by Scribner in January 2005. Escrow remained open as of the time of trial.
We provide additional facts as necessary.
PROCEDURAL HISTORY
The Moreheads amended their complaint to name Re/Max Top Properties, the Beems and Ross as defendants. They sought specific performance of the purchase agreement and damages for breach of contract, fraud, negligent misrepresentation, negligence, and breach of fiduciary duty. They also sought to recover punitive damages and attorney fees.
Prior to trial, the Moreheads settled their disputes with the Beems and Ross, who had filed a cross-complaint against Scribner. As part of the settlement, the Moreheads succeeded to the Re/Max defendants’ rights and remedies against Scribner. The trial court approved the settlement as a good faith settlement pursuant to Code of Civil Procedure section 877.6. Thus, at trial the Moreheads sought not only to enforce the purchase agreement, but also to enforce the listing agreement through recovery of the realtors’ 6 percent commission, indemnification for the amount the realtors paid in settlement, and attorney fees and costs the realtors incurred on their cross-complaint.
The parties waived their right to a jury trial, and all issues were submitted to the trial court for determination. Following the presentation of evidence, the trial court granted judgment in favor of the Moreheads. At the Moreheads’ request, the court first reformed the original deed from Phyeria Scribner to read the property was transferred to her and Scribner “as joint tenants with right of survivorship.”
The court then granted specific performance of the purchase agreement, ruling Scribner had waived the “time is of the essence” clause and thereby excused any late performance by the Moreheads. The court ordered Scribner to pay the Moreheads’ attorney fees and costs under the purchase agreement’s attorney fee provision.
The trial court also awarded judgment to the Moreheads on their assigned claims under the listing agreement. It granted the Moreheads the amount the realtors paid in settlement ($7,400), the value of the realtors’ commissions ($4,560), and the value of the realtors’ attorney fees and costs.
Scribner appeals, claiming the trial court erred by:
1. Reforming the original deed, as the court lacked jurisdiction and authority to grant that relief;
2. Awarding judgment under the purchase agreement, as the Moreheads did not perform conditions precedent, the court enforced a materially different agreement, and he did not waive the “time is of the essence” clause;
3. Awarding attorney fees under the purchase agreement, as the Moreheads failed to pursue mediation before bringing this action; and
4. Awarding judgment under the listing agreement, as that agreement was unenforceable.
We asked the parties for additional briefing on the issue of whether the cotrustees or beneficiaries of the trust should have been joined to the reformation action as indispensable parties under Code of Civil Procedure section 389 on account of their and the trust’s interest in the property. We turn first to that question.
DISCUSSION
I
Indispensable Parties
The Moreheads did not name the successor cotrustees or beneficiaries of the Scribner Trust to their action for reformation of the deed. Consequently, those persons may have lost their interest in the land without notice and an opportunity to be heard when the trial court reformed the deed. We asked the parties to discuss in additional briefing whether the cotrustees or beneficiaries of the trust should have been joined to the action as indispensable parties under Code of Civil Procedure section 389 (section 389). We conclude the cotrustees and beneficiaries were indispensable parties, and thus the portion of the judgment reforming the deed cannot stand.
A person must be made a party to a proceeding if “(1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (§ 389, subd. (a).)
If such a person cannot be joined, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (§ 389, subd. (b).)
“While it is just one of the four factors listed in Code of Civil Procedure section 389, subdivision (b), to be considered in determining whether an unjoined person is an indispensable party, potential prejudice to that unjoined person is of critical importance. ‘The controlling test for determining whether a person is an indispensable party is, “Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party. [Citation.]” [Citation.] More recently, the same rule is stated, “A person is an indispensable party if his or her rights must necessarily be affected by the judgment. [Citations.]” [Citation.]’ (Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 692–693 . . . .)” (Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1298.)
Here, there is no doubt the rights of the cotrustees and beneficiaries are necessarily affected by the judgment. Under the terms of the deed, those persons owned a 50 percent common interest in the property. The reformation judgment destroyed that interest without them receiving notice of the pending action or having an opportunity to protect their interests. The cotrustees and beneficiaries thus qualify under section 389, subdivision (a)(2)(i), as indispensable parties and should have been named as parties to the reformation action.
The Moreheads raise numerous arguments claiming the cotrustees and beneficiaries are not indispensable parties, but none of their arguments are persuasive. First, they assert there is no evidence in the record that any person other than Scribner actually claims an interest in the property. This is not necessarily correct. Scribner could not clear title because apparently the cotrustees would not respond to his requests, implying the cotrustees were aware of their interest in the property and perhaps out of animosity chose to enforce it.
More significantly, the argument ignores the reality that the cotrustees and beneficiaries have a legal interest in the property. The last recorded conveyance gave Phyeria a one-half common interest in the property which she then placed into a trust. Her restatement of the trust assets was not a reconveyance. The mere recital of a conveyance not made cannot constitute a devise. (Estate of Case (1938) 28 Cal.App.2d 264, 265-266.) Thus, according to the terms of the trust, her one-half interest did not pass solely to Scribner, but instead it passed upon her death as part of her estate in equal shares to the beneficiaries. We are not at liberty to ignore what the law recognizes and protects.
Second, the Moreheads claim a distinction exists between “indispensable” parties and “necessary” parties, and the cotrustees and beneficiaries at best are only necessary parties. This distinction, however, has not existed in California law since the Legislature revised the joinder statutes in 1971. Today, if a person meets the requirements of section 389, subdivision (a), he is to be joined as a party unless it is not feasible to do so, and then the court must determine under subdivision (b) whether to proceed with the action. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 179-180, pp. 249-252.) Whether the cotrustees and beneficiaries would have been considered to have been “necessary” parties under the old system is irrelevant to our analysis.
Third, the Moreheads claim the cotrustees and beneficiaries cannot be indispensable parties because, as a result of the trial court’s finding in the reformation action that Phyeria intended to transfer title to the property in joint tenancy, the cotrustees and beneficiaries never obtained any interest in the property. This argument puts the proverbial cart before the horse. The court made its finding without having indispensable parties before it. As a result, Scribner is now theoretically exposed to liability towards the cotrustees and beneficiaries -- the very situation the joinder statutes are designed to prevent.
The Moreheads’ reliance on Arthur v. Davis (1981) 126 Cal.App.3d 684, to support their argument is misplaced. In that case, Mr. and Mrs. Arthur signed a piece of paper that turned out to be a grant deed transferring their property back to their seller, the previous owner. (Id. at p. 688.) After Mr. Arthur died, Mrs. Arthur sued the seller for slander of title, cancellation of the deed, and to quiet title in her. (Id. at p. 689.) A jury awarded her damages on the legal claims, and the trial court granted the requested equitable relief. (Id. at pp. 689-691.)
On appeal, the seller claimed the court erred in quieting title in Mrs. Arthur because Mr. Arthur’s estate was not made a party to the action but the trial court had quieted title in his one-half interest in the property. The Court of Appeal disagreed with the seller, noting her theory of the case was incorrect. The seller apparently believed that Mr. Arthur had obtained his wife’s signature on the grant deed without her consent or capacity, and that as a result, when he transferred the deed to the seller, his and his wife’s joint tenancy in the property terminated. (Arthur v. Davis, supra, 126 Cal.App.3d at pp. 692-693.)
This theory was contrary to the trial court’s finding that Mrs. Arthur and Mr. Arthur had held the property in joint tenancy at all times, that neither of them intended to transfer any interest in the property back to the seller, and that upon Mr. Arthur’s death, all interest in the property passed to Mrs. Arthur. Thus, the trial court had not erred in quieting title in Mrs. Arthur without the estate of her late husband being named as a party. (Arthur v. Davis, supra, 126 Cal.App.3d at p. 693.)
The Moreheads claim the case demonstrates that, just as the seller did not gain an interest in the Arthurs’ property despite the deed to her, the cotrustees and beneficiaries here did not gain an interest in the property despite the deed and the terms of the trust. This formulation, however, omits a crucial distinction. In the Arthur case, Mr. and Mrs. Arthur owned their property in joint tenancy before they gave the deed to the seller. As a result, there was no need to name the deceased husband’s estate when the deed was ultimately cancelled. His estate no longer had an interest in the property. Here, the trustees and the beneficiaries had a legally recognizable interest in the property at the time the Moreheads sought to reform the deed. It was thus essential for them to participate in the reformation action before the judgment could have eliminated their interests, which it ultimately did.
Fourth, the Moreheads claim we can deem Scribner to have represented the cotrustees and beneficiaries in the reformation action under Code of Civil Procedure section 382 because he and the cotrustees had a common interest in the issues before the court. We cannot know they had a common interest from this record. Indeed, the cotrustees’ apparent refusal to consent to the transaction suggests their interests were not in common with Scribner’s interests.
Fifth, the Moreheads assert that Scribner, as one of the cosuccessor trustees of the trust, had authority under the terms of the trust to bind the trust. This is not correct. The trust agreement states that “[i]f there are three or more Trustees, then the act of a majority of the Trustees shall constitute the act of the Trust.” In other words, because there were three cotrustees, none of the trustees could act individually on behalf of the trust without the approval of at least one other trustee. Scriber could not on his own bind the trust to the purchase agreement and sell the beneficiaries’ interests in the property.
Sixth, the Moreheads assert Scribner bound the cotrustees and beneficiaries to the sale of the property by acting as the trust’s ostensible agent. The doctrine of ostensible agency does not apply. There is no evidence in the record suggesting the cotrustees or beneficiaries took any action that would cause the Moreheads to believe Scribner was the trust’s agent. The evidence shows only that the Moreheads understood Scribner to be acting for himself. An essential element of ostensible agency, that of a representation by the principal creating an ostensible agency, is missing in this case. (Civ. Code, § 2317.)
Finally, and as an alternative, the Moreheads claim that if we conclude the cotrustees were indispensable parties, we should affirm the judgment as to Scribner’s one-half interest in the property. (See Milkes v. Smith (1949) 91 Cal.App.2d 79, 82.) This is an election by the Moreheads for the trial court to consider in the first instance.
We will reverse the judgment and remand the matter to the trial court to take further proceedings consistent with this opinion. The Moreheads may seek to join the indispensable parties and attempt again to reform the deed to enforce the purchase agreement as to all interest in the land, or they may seek to enforce the purchase agreement as to Scribner’s one-half interest as granted him in the unreformed deed.
If the Moreheads attempt to join the cotrustees and beneficiaries to the action, and for some reason those persons cannot be joined, the trial court can then weigh the factors set forth in subdivision (b) of section 389 to determine whether to hear the request for reformation or dismiss it.
For the remainder of our opinion, we will address Scribner’s other grounds of appeal as they apply to the judgment against his one-half interest in the property.
II
Enforceability of Purchase Agreement
Scribner claims the court erred in enforcing the purchase agreement and awarding specific performance. He claims the agreement was automatically terminated when the Moreheads did not deposit the purchase money into escrow and did not perform other conditions precedent prior to the scheduled close of escrow when time was of the essence. He also argues the trial court erred when it determined he had waived the “time is of the essence” clause, resulting in the court enforcing a materially different agreement.
The Moreheads argue the court correctly granted specific performance. They claim the purchase agreement did not automatically terminate because it was Scribner who prevented the Moreheads from performing their obligations. They also claim their obligations to perform were dependent on Scribner’s obligation to provide clear title and the disclosures required by the purchase agreement. Because Scribner failed to provide clear title and the disclosures, they argue they were not required to deposit the purchase price into escrow. We agree with the Moreheads.
Scribner claims the Moreheads did not fulfill the following conditions precedent before escrow was to have expired: verifying they had sufficient cash to complete the transaction, obtaining a set-back variance, “repudiating title” after reviewing the preliminary title report, and tendering the purchase price into escrow. Scribner argues that each of these alleged defaults was a material breach and resulted in the purchase agreement expiring upon the proposed close of escrow.
The purchase agreement, however, imposed conditions precedent and concurrent on the parties, and it gave them the right to extend the escrow period beyond the proposed closing date until either the Moreheads satisfied the contingencies or Scribner canceled the agreement. The parties’ actions under these provisions prevented the agreement from automatically terminating and nullified the “time is of the essence” clause.
The purchase agreement worked as follows: The agreement required Scribner to provide his disclosures to the Moreheads within seven days after accepting their offer. It also required him to deposit a grant deed into escrow conveying title to the Moreheads.
The agreement required the Moreheads to verify they had sufficient funds to close the transaction within seven days of Scribner’s acceptance. It gave them 17 days after Scribner’s acceptance to approve all disclosures which Scribner gave them.
The agreement also gave the Moreheads the same 17-day period either to remove all contingencies in writing or cancel the agreement. The Moreheads’ review of the preliminary title report “and any other matters which may affect title are a contingency” of the agreement. So, too, was acquiring the variance from the county.
The purchase agreement did not automatically expire if the Moreheads did not timely verify their cash or, in the case of a contingency, remove the contingency in writing or cancel the agreement. Despite the existence of a “time is of the essence” clause, the Moreheads retained the right to remove the contingencies in writing or cancel the agreement after the prescribed time periods had expired up until Scribner gave them a 24-hour notice to perform, a prerequisite for his cancelling the agreement. If, prior to receipt of a notice to perform, the Moreheads removed all contingencies, Scribner lost the right to cancel the agreement.
Scribner took no actions to fulfill his covenants or concurrent conditions, nor did he cancel the purchase agreement. Thus, the agreement did not automatically terminate. First, he did not fulfill his covenant to provide disclosures to the Moreheads. The Moreheads’ obligation to review the disclosures and proceed on the contract was conditioned on Scribner providing the disclosures. They cannot be held in breach when it was Scribner who prevented their performance.
Second, Scribner did not fulfill his concurrent condition to deposit a grant deed into escrow. Generally, delivery of the deed and payment of the purchase price are concurrent conditions, and there must be performance, or tender of performance, by one party to put the other in default. (1 Witkin, Summary of Cal. Law, Contracts (10th ed. 2005) § 792, p. 882.) Scribner did not tender performance. Thus, the Moreheads cannot be held in default for not depositing the purchase price into escrow.
Third, Scribner never gave the Moreheads a notice to perform, and he never cancelled the purchase agreement. As a result, the time within which the Moreheads had to release the contingencies in writing, including any concern about the condition of title, or cancel the agreement did not expire. They obtained the variance without objection from Scribner, and he and his agents communicated his intention to clear title even after the 30-escrow period had expired. There was nothing more for the Moreheads to do.
Where a party to a real property purchase agreement has fulfilled its obligations and the inability to close escrow was not due to anything that party had failed to do, the agreement is not automatically terminated upon one or both parties’ failure to perform within the time specified in the contract. (Ninety Nine Investments, Ltd. v. Overseas Courier Service (Singapore) Private, Ltd. (2003) 113 Cal.App.4th 1118, 1132-1135.)
A “time is of the essence” clause does not trigger automatic termination where the party in whose benefit it acts waives it. A party may waive strict performance by the other merely by failing to insist on it. (See Johnson v. Goldberg (1955) 130 Cal.App.2d 571, 577.) A party may also waive a “time is of the essence” provision by continuing to deal with the other party after the date specified in the contract and without establishing a new time requirement. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1342.)
Here, by operation of the terms of the purchase agreement, by Scribner’s failure to give the Moreheads a notice to perform, and by the parties continuing to deal with each other after the original closing date, the “time is of the essence” clause in the purchase agreement was waived. Substantial evidence supports the trial court’s determination on this point. The agreement did not automatically terminate upon the Moreheads’ inability to satisfy their conditions precedent prior to the close of the original 30-day escrow period, and the “time is of the essence” clause did not prevent the court from awarding specific performance.
Awarding specific performance also did not result in the court enforcing a different agreement than the one the parties drew up. To the contrary, it resulted in the court enforcing the exact agreement the parties negotiated.
III
Award of Attorney Fees
The purchase agreement awarded attorney fees and costs to the prevailing party in a dispute over its terms provided the prevailing party first attempted to resolve the matter through mediation. Although Scribner raised the mediation requirement in its trial brief, the trial court awarded the Moreheads attorney fees without discussing the requirement. Scribner claims the court erred because the Moreheads did not attempt to mediate this matter before filing their action. We disagree.
On January 7, 2005, about five weeks before the Moreheads filed their first complaint, their attorney forwarded a letter to Scribner and the Beems. He sent the letter because of the Moreheads’ desire to resolve the matter “informally, without the need for litigation[.]” Counsel demanded Scribner and the Beems take all steps necessary to deliver clear title. If that was not done within 15 days, they were to “consider this letter a demand for arbitration pursuant to the terms of the purchase contract.”
Scribner acknowledged receiving this letter. He testified that in response to the letter, he had a conversation with the Moreheads’ attorney during which it became evident the two were not going to reach agreement.
This exchange satisfied the requirement that the prevailing party first attempt to resolve the dispute through mediation. An attempt was made, and when it became apparent that no agreement could be reached, the possibility of a mediation ended. The trial court did not err in awarding attorney fees to the Moreheads under the purchase agreement.
IV
Enforceability of Listing Agreement
Scribner claims the listing agreement is unenforceable under the statute of frauds because he did not sign it. He argues all of the relief granted under the listing agreement must be reversed. Scribner has forfeited this argument.
In his briefing and argument to the trial court, Scribner at no time claimed the listing agreement was not enforceable because he did not sign it. His failure to raise the argument at trial forfeits it here. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
Even if we were to consider his argument, we would reject it. The statute of frauds invalidates an agreement to employ an agent to sell real property unless the agreement, “or some note or memorandum thereof,” is in writing and is subscribed by the party to be charged. (Civ. Code, § 1624, subd. (a)(4).)
Here, Scribner’s agreement to list the property with the Beems was sufficiently memorialized in his letter of March 18, 2003, to the Beems to satisfy the statute of frauds. In that letter, Scribner agreed to list the property with the Beems for the selling price of $75,900, and he signed the letter. His subsequent initialing of the actual listing agreement’s commission provision completed the writing. The statute of frauds requires nothing more. (Sterling v. Taylor (2007) 40 Cal.4th 757, 765-766.)
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings, consistent with this opinion, at the Moreheads’ election either to join all indispensable parties, seek to reform the deed and enforce the purchase agreement as to all interest in the land, or to seek to enforce the agreement as to Scribner’s sole one-half interest as granted him in the unreformed deed.
The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: BLEASE, Acting P. J., ROBIE, J.