Opinion
C080748
03-06-2018
CHRISTOPHER PERKINS et al., Plaintiffs and Respondents, v. AFSANEH ROYO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV0033888)
Defendant and appellant Afsaneh Royo and non-party Clovis Herndon Ventures, LLC (CHV) each owned an undivided 50 percent interest in certain undeveloped real property in Clovis. Following months of negotiations, Afsaneh entered into an agreement with two individual members of CHV, plaintiffs and respondents Christopher Perkins and James Svoboda, whereby (1) Perkins and Svoboda would pay back taxes due and owing on the property, (2) Afsaneh would transfer her interest in the property to Perkins and Svoboda, and (3) Perkins and Svoboda would pay Afsaneh $500,000 over the course of seven years. Perkins and Svoboda paid the back taxes, thereby avoiding a scheduled tax sale. Afsaneh failed to transfer her interest in the property.
As we shall discuss, Afsaneh Royo's late husband Paris Royo also plays a part in the events underlying this case. For clarity, we will refer to Afsaneh and Paris individually by their first names, and collectively as the Royos.
Perkins and Svoboda sued for specific performance and declaratory relief or, in the alternative, for breach of contract and fraud (false promise). A jury trial was conducted on the legal issues and equitable issues were tried concurrently by the trial court. The jury found in favor of Perkins and Svoboda on the breach of contract cause of action, awarding a total of $812,858 in damages. The jury found in favor of Afsaneh on the false promise cause of action. In the equitable portion of the case, the trial court found that the jury's determination that the parties intended to enter into a contract was supported by substantial evidence, and ordered specific performance of the contract within fifteen days of entry of judgment.
On appeal, Afsaneh primarily contends (1) no contract was formed because her attorney lacked authority to make a binding offer on her behalf, (2) no contract was formed because there was no mutual assent, (3) the contract violates the statute of frauds, (4) the trial court abused its discretion in ordering specific performance, (5) the judgment is void because the trial court lacked jurisdiction over the estate of Paris, (6) the trial judge committed judicial misconduct, and (7) the trial court erred in instructing the jury. We reject these contentions and affirm the judgment.
I. BACKGROUND
A. The Parties and Property
Perkins and Svoboda began purchasing property in Clovis in the early 1990s. By 2005, they had accumulated approximately 17 acres, which they sold to CHV for $6,581,300. Perkins and Svoboda took back a note secured by the property in the amount of $4,982,928 and received the balance of the purchase price in cash. Shortly thereafter, James Allen, then the managing member of CHV, sold an undivided 50 percent interest in the property to the Royos for $6,230,000. The Royos took title to their interest in the property as community property.
At the time, Perkins and Svoboda were not yet members of CHV.
In 2007, CHV entered into a contract with Agrium Company to build and lease a building on several parcels of the property. The building was to be constructed with a loan from U.S. Bank.
Perkins and Svoboda became members of CHV in 2008. They contributed their note in consideration for their membership interests. Perkins and Svoboda then entered into a master agreement with the Royos. The master agreement provides for priority repayment to Perkins and Svoboda based upon a ratio of the square footage being sold or developed, the total existing property, and the balance due on the note.
The parties disagree as to the circumstances in which Perkins and Svoboda would be entitled to priority repayment under the master agreement. That issue, though relevant to the trial court's analysis of the adequacy of the consideration for the parties' subsequent agreement, is not directly before us.
By 2010, construction on the building was complete, but Agrium, the would-be-tenant, declined to occupy it. Litigation ensued on two fronts. First, U.S. Bank foreclosed, resulting in the loss of approximately 3.8 acres. Second, CHV sued Agrium, resulting in an award of damages. When the dust settled, CHV retained a total of nine parcels, amounting to approximately thirteen acres. Perkins and Svoboda met the Royos for the first time during the course of the Agrium litigation.
Perkins became the managing member of CHV during the Agrium litigation. In 2012, Perkins discovered that CHV had not paid property taxes for several years. As a result, CHV owed approximately $600,000 in unpaid taxes on nine parcels, six of which were subject to a tax sale by Fresno County. The amount required to avoid the tax sale was $415,975. The tax sale was ultimately set for March 14, 2013.
Paris passed away on October 29, 2012. Afsaneh did not tell Perkins or Svoboda that Paris was deceased. B. The Agreement
Negotiations began in earnest in December 2012. The parties discussed a number of possible solutions to the tax problem, including selling some of the parcels, splitting parcels, sharing the tax liability, and walking away from the property. The parties also discussed the possibility of Perkins and Svoboda buying Afsaneh out. These proposals were communicated in a series of letters and emails exchanged between Afsaneh's attorney, Belan Wagner, and Perkins and Svoboda's attorney, Richard Conway. Wagner told Conway that Paris had passed away, but Conway did not discuss this fact with Perkins or Svoboda.
On December 6, 2012, Conway sent Wagner a letter inquiring about the Royos' intentions for the property in light of the upcoming tax sale. The letter identified Wagner's clients as "[Afsaneh] and Paris Royo." The letter identified the subject matter as "Jointly Owned Property." The letter proposed, as an offer of compromise and settlement, that Perkins and Svoboda would "assume the Royos' proportionate share of the existing tax obligation in exchange for the Royos' [sic] conveying their interest in the real property to [Perkins and Svoboda]." Afsaneh declined the offer.
By the time of the December 6, 2012, letter, Paris had passed away, though Conway was not yet aware of this fact.
Conway and Wagner communicated regularly over the next several weeks. During the course of these communications, Conway became aware that Paris had died. Based on his communications with Wagner, Conway believed that Paris' interest in the property had passed to Afsaneh. Wagner never said anything to Conway to suggest that Afsaneh was differentiating between her share of the Royos' undivided 50 percent interest in the property, and that of her late husband.
On February 13, 2013, Conway sent Wagner a letter, stating: "I have been authorized by my clients to offer [Afsaneh] $200,000 for her interest in the jointly held properties. They will, additionally, assume exclusive responsibility for the outstanding taxes. The $200,000 would be paid when the first parcel is sold or in three (3) years, whichever first occurs." Wagner responded by letter dated February 22, 2013, stating: "[Afsaneh] would like to make a counter proposal. [¶] $150,000 upon execution of the settlement agreement. $350,000 payable upon the first sale of the property." Conway rejected the counterproposal.
In the weeks that followed, negotiations focused on the amount Afsaneh would be willing to accept for the property, over and above her proportionate share of the back taxes. On February 25, 2013, Conway offered $300,000 over a period of three years. On March 1, 2013, Wagner countered with $500,000 over five years. Later that day, Conway countered with $375,000 over five years.
By March 13, 2013, Conway and Wagner had exchanged multiple offers and counteroffers, all following the same basic framework. With the clock ticking towards the tax sale, Wagner sent Conway an email, with a copy to Afsaneh. The email, which was admitted as exhibit 23 at trial, reads as follows: "Rick, [¶] [Afsaneh] will: [¶] (1) Split parcels and each pay own taxes. [¶] (2) 200 3 years or first sale, 175 5 years or second sale, 125 7 years third sale (whichever occurs first). Chris pays taxes. [or] (3) Reverse of[] 2. [¶] You know that if your clients intend to buy the property at the tax sale. They will hold it in trust for [Afsaneh]."
Based upon their prior communications, Conway understood Wagner's second point to mean that (1) Afsaneh would transfer the property to Perkins and Svoboda, (2) Perkins and Svoboda would pay the amounts required to avoid the tax sale, and (3) Afsaneh would receive $200,000 within three years or the first sale of any portion of the property, an additional $175,000 within five years or the second sale of any portion of the property, and an additional $125,000 within 7 years or the sale of the third section of property, whichever occurred first. During the trial, Wagner and Afsaneh confirmed that Wagner's March 13, 2013, email proposed an arrangement whereby Afsaneh would receive $500,000 over the course of seven years.
Conway responded to Wagner's email within the hour. In his responding email, which was admitted at trial as exhibit 24, Conway wrote: "Thank you for your email of this morning. [Perkins] and [Svoboda] accept [Afsaneh's] offer as described in Item No. 2 of your email. [¶] I will put together the formal Purchase and Sale Agreement and forward the same to you sometime next week. [¶] I have instructed [Svoboda] and [Perkins] to go ahead and pay the taxes this afternoon. [¶] I am glad we are able to finally reach an understanding which will allow our clients to go their separate ways. I believe, in the long run, this will be a win for both sides." Later that day, the amount of $416,000 was paid to the Fresno County Tax Collector in the form of a cashier's check. Although the cashier's check was drawn on CHV's account, the source of the funds was Perkins and Svoboda.
Conway received another email from Wagner early the next morning, March 14, 2013. Wagner's email, which was admitted as exhibit 25, reads in relevant part: "Thanks and I will look forward to seeing the proposed draft. There will only be a contract when the documents are signed to make sure that we have covered the details, which I don't believe will be a problem. [¶] I have worked with you long enough that I know that the offer/acceptance language in your [email] was not unintentional. We have exchanged various [emails] describing general terms and conditions over several weeks in a mutual effort to find a basic framework for a deal that would work and, up until this point, none of them have been characterized as offers/acceptances. I think it is clear that both of us knew that, as with any agreement relating to a purchase and sale of property, it has to be written and signed by the party to be charged. [¶] I am not mentioning this because I believe that there will be any problem in consummating this deal, I just know how you think and want to be clear." Conway wrote Wagner later that day, asking for an update on the status of Paris' estate for purposes of the formal agreement. Wagner did not respond.
Conway forwarded a draft of the purchase and sale agreement to Wagner on March 22, 2013. Wagner did not respond for several weeks, and then told Conway that he was having trouble reaching Afsaneh. On June 4, 2013, Conway received an email from Afsaneh reading, in relevant part, as follows: "I have given the investment in [CHV] some thoughts the past few days and have not been able to justify walking away from a cash investment of $3.8 mil[lion] for a payment of $500,000 over the next 7 years. [Perkins] and [Svoboda] sold this property for $4 million[,] their cost basis and initial investment much smaller, most likely about $1 million. There is a big difference between investing $3.8 mil[lion] cash versus expecting a $4 mil[lion] profit."
Afsaneh continued, "This asset happens to be my largest investment and with the changing real estate climate in the area, I think I need to hold on to my share and investment. I have been provide [sic] information that lots are selling around $8/sq. ft." Afsaneh concluded, "I am sure you can appreciate and understand my position and my decision." Afsaneh did not offer to reimburse Perkins and Svoboda for the $416,000 they paid to cure the tax delinquency. This lawsuit followed. C. The Trial Court Proceedings
Perkins and Svoboda filed a complaint, and then an amended complaint, against Afsaneh. The first amended complaint, which is the operative pleading, seeks specific performance and declaratory relief or, in the alternative, damages for breach of contract and fraud (false promise). The first amended complaint defines the subject property by assessor's parcel number, and attaches a metes and bounds description as an exhibit.
Perkins and Svoboda's legal claims were tried before a jury in June 2015. The trial court contemporaneously heard evidence on Perkins and Svoboda's equitable claims. The case was submitted to the jury for deliberation on the legal claims on June 29, 2015. The trial court simultaneously took the equitable claims under submission.
The jury returned a verdict on the legal claims on June 30, 2015. The jury accepted Perkins and Svoboda's theory that the March 13, 2013, emails (exhibits 23 and 24) constituted a contract. The jury specifically found that (1) the terms of the contract were clear enough so that the parties could understand what was required of them, (2) the parties agreed to give each other something of value, (3) the parties agreed to the terms of the contract, (4) Perkins and Svoboda did all, or substantially all, of the significant things the contract required them to do, (5) the conditions required for Afsaneh's performance had occurred, (6) Afsaneh failed to do something the contract required her to do, and (8) Perkins and Svoboda were harmed by that failure. The jury awarded Perkins and Svoboda $812,858 in damages. The jury rejected Afsaneh's affirmative defenses of unilateral mistake of fact, duress, fraud, and undue influence. The jury also rejected Perkins and Svoboda's fraud cause of action for false promise.
The trial court issued a final statement of decision on August 18, 2015. In the statement of decision, the trial court treated the jury's verdict as advisory, adopting its findings as to the existence of a contract and independently finding that "the parties intended to enter into a contract based upon the March 13, 2013[,] email correspondences. (Ex. 23 and 24)." (See generally Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 157, 158 ["a jury's determination of legal issues may curtail or foreclose equitable issues" and thus, "[w]here legal claims are first tried by a jury and equitable claims later tried by a judge, the trial court must follow the jury's factual determinations on common issues of fact"].) The trial court rejected Afsaneh's contention that the terms of the agreement were too uncertain to be enforceable. The trial court found that, "The email dated March 13, 2013[,] [exhibit 23] from Wagner to Conway contains the essential and material terms of the purchase. [Afsaneh] agreed to transfer her 50 [percent] interest in the property held jointly with [CHV] to [Perkins and Svoboda]. In exchange, [Perkins and Svoboda] were to be solely responsible for all back taxes on the property and were to pay her $500,000.00 over the course of 7 years." The trial court also rejected Afsaneh's contention that the terms of the agreement were incapable of specific performance. Noting that Perkins and Svoboda had elected the remedy of specific performance, the trial court ordered Afsaneh to convey her undivided 50 [percent] interest in the property within 15 days of entry of judgment.
Afsaneh filed a timely notice of appeal.
II. DISCUSSION
On appeal, Afsaneh argues that (1) Wagner lacked authority to make a binding offer on March 13, 2013, (2) Paris' interest in the property had been transferred to the Royo Family Trust, which was not a party to the agreement or the litigation, (3) there was no contract because there was no meeting of the minds, (4) the contract fails to comply with the statute of frauds, (5) the trial court abused its discretion in ordering specific performance, (6) the judgment is void for lack of jurisdiction, (7) the trial judge committed judicial misconduct, and (8) the trial court erred in instructing the jury. We address these contentions seriatim. A. Wagner's Authority
Afsaneh argues that Wagner lacked authority to make a binding offer on March 13, 2013. She acknowledges that Wagner was authorized to negotiate on her behalf on March 13, 2013, but insists that Wagner's email of March 13, 2013, was merely a continuation of negotiations, rather than a binding offer. The trial court considered these arguments and rejected them as noncredible.
"An attorney is an agent of his client [citation], and the attorney-client relationship is governed by the rules applicable to the relationship of principal and agent in general. [Citation.]" (Yanchor v. Kagan (1971) 22 Cal.App.3d 544, 549; 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 235, p. 309 ["Generally speaking, an attorney is the agent of the client [citation], and the client as principal is bound by the attorney's acts within the scope of the attorney's actual (express or implied) or apparent or ostensible authority, or by unauthorized acts ratified by the client"].)
" ' "[T]he existence of an agency relationship is usually a question of fact, unless the evidence is susceptible of but a single inference." ' " (Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 214, italics omitted.) Where conflicting inferences may reasonably be drawn from the evidence, the determination of the trial court will be accepted on review even though a contrary determination could likewise have been upheld. (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 93, p. 140.) "The question whether an agent acted within his authority is a question of fact for the trier of fact, and on appeal the finding of the trial court will not be disturbed where it is supported by substantial evidence." (Ripani v. Liberty Loan Corp. (1979) 95 Cal.App.3d 603, 611.)
Substantial evidence supports the trial court's implied finding that Wagner was acting as Afsaneh's actual or ostensible agent when he emailed Conway on March 13, 2013. At the time, Wagner had represented Afsaneh for "many years." Among other things, Wagner was involved in the purchase of the property in 2005, the negotiation and drafting of the master agreement in 2008, and the Agrium litigation in 2010 and 2011. Wagner and Afsaneh both testified that Wagner was authorized to negotiate on Afsaneh's behalf during the period leading up to the tax sale, and Afsaneh specifically testified that Wagner was authorized to send the email on March 13, 2013. Wagner and Afsaneh also testified that they understood the tax sale was scheduled for the following day, March 14, 2013. Neither Wagner nor Afsaneh said anything to Conway, Perkins or Svoboda to suggest that there was any limitation on Wagner's authority to make a binding offer on Afsaneh's behalf. On this record, the trial court could reasonably conclude that Wagner was acting as Afsaneh's actual or ostensible agent when he emailed Conway.
Substantial evidence also supports the trial court's finding that the email was a binding offer, rather than a continuation of negotiations. As the trial court observed, "the testimony by both [Afsaneh] and Wagner that Exhibit 23 was just ongoing negotiations is not credible in light of the circumstances facing the parties on the eve of the tax sale. There was no time for ongoing negotiations. Either they were going to reach an agreement or not on March 13, 2013." Furthermore, "once [Perkins and Svoboda] paid the taxes, there were no further negotiations. At no time did either Wagner or [Afsaneh] suggest additional terms to be included in the contract. Instead, [Afsaneh] relied on [Perkins and Svoboda] paying the taxes and then disappeared." Viewing the evidence in the light most favorable to the judgment, as we must, substantial evidence supports the finding that Wagner's March 13, 2013, email was a binding offer, rather than a continuation of negotiations.
Afsaneh also argues for the application of the equal dignities rule in this case. We are not persuaded. Under the equal dignities rule, when a contract must be in writing to be effective, an agency relationship with respect to that contract must also be in writing. (Civ. Code, § 2309 ["An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing"].)
"A principal is estopped to raise the equal dignities rule against a contracting third party if the principal, by its own conduct, lulls the third party into believing that its agent has written authority to enter the contract or has no need of written authority." (Kerner v. Hughes Tool Co. (1976) 56 Cal.App.3d 924, 934.) Assuming without deciding that Afsaneh's relationship with Wagner was required to be in writing, the evidence supports a finding that Afsaneh was estopped from denying the existence of an agency relationship. As previously discussed, Afsaneh authorized Wagner to send the March 13, 2013, email, which would have led a reasonable third party to believe that Wagner either had written authority to enter the contract or had no need of written authority. (Ibid.) Under the circumstances, substantial evidence supports the trial court's implied finding that Afsaneh was estopped from relying on the equal dignities rule. B. Estate of Paris
As noted, Afsaneh's husband, Paris, passed away during the course of the parties' preliminary discussions concerning the delinquent taxes. On appeal, Afsaneh claims that Paris's interest in the property was transferred to the Royo Family Trust, which is not a party to the agreement or the litigation. Building on this premise, Afsaneh argues that (1) no contract was formed, as there was no meeting of the minds with respect to the identities of the sellers or description of the property, (2) the trial court lacked authority to order specific performance with respect to property held by the Royo Family Trust, and (3) the judgment is void insofar as it orders specific performance with respect to such property. We reject these contentions.
" 'For the purpose of determining the character of real property upon the death of a spouse, there is a rebuttable presumption that the character of the property is as set forth in the deed. . . . The burden is on the party seeking to rebut the presumption to establish that the property is held in some other way; this may be done by a showing that the character of the property was changed or affected by an agreement or common understanding between the spouses.' " (Estate of Gallio (1995) 33 Cal.App.4th 592, 596.)
"The form of title presumption affects the burden of proof. [Citations.] That is, the party asserting that title is other than as stated in the deed . . . has the burden of proving that fact by clear and convincing evidence. [Citations.] The presumption can be overcome only by evidence of an agreement or understanding between the parties that the title reflected in the deed is not what the parties intended." (In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 189 (Brooks), disapproved on other grounds by In re Marriage of Valli (2014) 58 Cal.4th 1396, 1405; see also Evid. Code, § 662 ["The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof"].)
Here, the Royos took title to their undivided 50 percent interest in the property as community property. Absent clear and convincing evidence of a contrary intent, Afsaneh became the owner of the entire undivided 50 percent interest in the property when Paris died. (Prob. Code, § 6401, subd. (a) ["As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under [Probate Code] Section 100"].)
During the trial, Afsaneh attempted to rebut the form of title presumption in two ways. First, she offered excerpts of a document entitled "Royo Family Trust . . . Trust Agreement." (Emphasis omitted.) According to Afsaneh, the excerpts show that Paris transferred his share of the Royos' interest in the property to the Royo Family Trust. Second, Afsaneh offered her own testimony that Paris transferred his share of the Royos' interest in the property to an entirely different trust known as the "Paris E. Royo Trust." The trial court excluded the excerpts of the trust agreement on relevance grounds, and found that Afsaneh failed to produce credible evidence that Paris transferred his interest in the property to the Royo Family Trust. Accordingly, the trial court concluded that Afsaneh failed to rebut the presumption that the Royos held their undivided 50 percent interest in the property as community property, such that Afsaneh acquired the entire interest upon her husband's death. (Prob. Code, § 6401, subd. (a).)
Relying on Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156 (Ukkestad), Afsaneh argues the trial court's evidentiary ruling was "contrary to California law" because real property may be made part of a trust's assets without a separate deed in certain circumstances. (See generally Ukkestad, supra, at pp. 160-161.) Afsaneh's argument misapprehends the question before us. Contrary to Afsaneh's suggestion, we need not decide whether the excerpts of the trust agreement effectively transferred Paris' interest in the property to the Royo Family Trust. Rather, we must decide whether the trial court erred in excluding the proferred excerpts. We perceive no error.
We review evidentiary rulings for abuse of discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.) "This standard is not met by merely arguing that a different ruling would have been better. Discretion is abused only when in its exercise, the trial court 'exceeds the bounds of reason, all of the circumstances before it being considered.' " (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) Moreover, "[i]t is for the trial court, in its discretion, to determine whether the probative value of relevant evidence is outweighed by a substantial danger of undue prejudice. The appellate court may not interfere with the trial court's determination . . . unless the trial court's determination was beyond the bounds of reason and resulted in a manifest miscarriage of justice." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596.) "[I]t is the appellant's burden to establish an abuse of discretion." (Shaw v. County of Santa Cruz, supra, at p. 281.) Afsaneh has not come close to meeting her burden.
As an initial matter, Afsaneh has not even attempted to address the applicable standard of review. "Failure to acknowledge the proper scope of review is a concession of lack of merit." (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) An appellant's failure to discuss a trial court ruling excluding evidence in light of the applicable standard of review constitutes a failure to show abuse or an error in judgment. (Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1374.) Nowhere does Afsaneh address the applicable abuse of discretion standard or articulate her challenge to the trial court's evidentiary ruling in light of that standard.
Furthermore, even if Afsaneh had properly presented her claim of error, we would reject it. As previously discussed, Afsaneh had the burden to show by clear and convincing evidence that the Royos had an intention, understanding or agreement that their interest in the property would be held by the Royo Family Trust, despite holding title as "Paris Royo and Afsaneh Royo, husband and wife, as Community Property" (emphasis omitted). (Evid. Code, § 662; Brooks, supra, 169 Cal.App.4th at pp. 189-190.) Afsaneh attempted to carry her burden by offering six selected pages of an agreement comprising at least 38 pages, most of which are so heavily redacted as to make any meaningful evaluation of the terms of the trust impossible. To the extent we can glean anything from the proferred excerpts, the agreement purports to transfer the Royos' interest in "Clovis Herndon Ventures, LLC" to the Royo Family Trust. However, the Royos did not own a membership interest in CHV, and the agreement does not say anything about the subject property. To make matters even more confusing, Afsaneh testified that Paris transferred his interest in the property to the Paris E. Royo Trust, and not the Royo Family Trust. Afsaneh also admitted in verified discovery responses that she owned an undivided 50 percent interest in the property, with the other half owned by CHV.
Under these circumstances, the trial court could reasonably conclude that the risk of confusing the jury with conflicting evidence regarding Paris' estate planning goals substantially outweighed any probative value, particularly in light of the applicable standard of proof. We perceive no abuse of discretion. We therefore reject Afsaneh's challenge to the trial court's evidentiary ruling.
Afsaneh does not challenge the sufficiency of the evidence supporting the trial court's finding that she failed to rebut the form of title presumption by clear and convincing evidence. We therefore reject Afsaneh's contention that Paris' share of the Royos' undivided 50 percent interest in the property was other than as described in the grant deed. As we shall discuss, our conclusion compels us to reject many of Afsaneh's other contentions, a number of which proceed from the same premise. C. Meeting of the Minds
Next, Afsaneh argues that no contract was formed because there was no meeting of the minds with respect to the time for payment or identity of the property. Afsaneh also appears to argue that there was no meeting of the minds because the agreement was negotiated by the parties' attorneys, rather than the parties themselves. We are not persuaded.
" ' "Contract formation requires mutual consent, which cannot exist unless the parties 'agree upon the same thing in the same sense.' " ' [Citation.] 'The manifestation of mutual consent is generally achieved through the process of offer and acceptance.' [Citation.]" (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 309.) " 'Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.' [Citations.]" (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208.)
As previously discussed, Conway and Wagner exchanged multiple offers and counteroffers in the months leading up to the tax sale. On December 6, 2012, Conway sent Wagner a letter conveying an offer to purchase the Royos' interest in the property in exchange for assumption of their tax obligation. The letter clearly identified the Royos as the sellers, Perkins and Svoboda as the buyers, and the "jointly owned property" as the property. During the course of negotiations, Conway learned that Paris had died. From that point forward, Conway identified the seller as "Afie," a diminutive of Afsaneh. He continued to identify the property as "the jointly owned property," which Wagner understood to mean the nine parcels that Afsaneh owned in common with CHV. There was no evidence that Afsaneh owned any other property in common with CHV or Perkins and Svoboda.
Afsaneh argues there was no meeting of the minds with respect to the identity of the property because she was only offering to sell her share of the Royos' undivided 50 percent interest in the property, while Perkins and Svoboda thought they were purchasing the Royos' entire undivided 50 percent interest. As previously discussed, the trial court found that Afsaneh failed to rebut the presumption that title was other than as set forth in the grant deed, leading to the conclusion that Afsaneh acquired the Royos' entire undivided interest in the property upon Paris's death. Thus, Afsaneh's interest in the "jointly owned property" necessarily included the share previously held by Paris. (Prob. Code, § 6401, subd. (a).) Moreover, setting aside the form of title presumption, nothing in the record suggests that Afsaneh ever communicated any intent to sell something less than the entire undivided 50 percent interest in the property. Far from expressing any such intent, Conway testified that Wagner never said anything to suggest that Afsaneh was differentiating between her share of the Royos' undivided interest in the property, and that of her late husband. Whatever Afsaneh's undisclosed intentions may have been, her outward manifestations would lead a reasonable person to believe she intended to sell her entire interest in the "jointly owned property," including the share previously held by Paris.
Afsaneh also argues that the parties failed to agree on the time for payment. Specifically, she notes that the parties' March 13, 2013, emails are silent on the question whether the three year period for the first payment of $200,000 begins to run on the date of contracting or the date the property is transferred to Perkins and Svoboda. Nothing in the record suggests the parties considered the triggering event for the first payment to be an essential element of their eleventh hour agreement to avoid a tax sale. That the parties later disagreed on the issue, prompting Perkins and Svoboda to file a motion for clarification of the judgment, does not mean that no contract was formed.
Finally, Afsaneh suggests there was no meeting of the minds because negotiations were conducted by the parties' attorneys, rather than the parties themselves. We have already addressed Afsaneh's contention that Wagner lacked authority to bind her interests. To the extent Afsaneh contends the involvement of attorneys otherwise interfered with the mutual assent required for the formation of a contract, we reject the contention as unsupported by reasoned argument or authority. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived' "].) D. Statute of Frauds
Next, Afsaneh argues that the parties' March 13, 2013, emails do not constitute a memorandum sufficient to satisfy the statute of frauds. Specifically, Afsaneh argues that the emails fail to identify the parties and property, and fail to address the purportedly essential requirement of a formal writing. We are not persuaded.
" 'An agreement for the purchase or sale of real property does not have to be evidenced by a formal contract drawn with technical exactness in order to be binding.' " (Patel v. Liebermensch (2008) 45 Cal.4th 344, 349 (Patel), quoting King v. Stanley (1948) 32 Cal.2d 584, 588 (King).) "A memorandum of the agreement (Civ. Code, § 1624(4)) is sufficient, and this may be found in one paper or in several documents, including an exchange of letters or telegrams or both [citations], or in a letter from the vendor to the purchaser which is accepted and acted upon by the latter." (King, supra, at p. 588.) " 'Equity does not require that all the terms and conditions of the proposed agreement be set forth in the contract.' " (Patel, supra, at p. 349, quoting King, supra, at p. 588.)
"A memorandum satisfies the statute of frauds if it identifies the subject of the parties' agreement, shows that they made a contract, and states the essential contract terms with reasonable certainty." (Sterling v. Taylor (2007) 40 Cal.4th 757, 766 (Sterling).) "Because the memorandum itself must include the essential contractual terms, it is clear that extrinsic evidence cannot supply those required terms. [Citation.] It can, however, be used to explain essential terms that were understood by the parties but would otherwise be unintelligible to others." (Id. at p. 767.) Put another way, "if a memorandum includes the essential terms of the parties' agreement, but the meaning of those terms is unclear, the memorandum is sufficient under the statute of frauds if extrinsic evidence clarifies the terms with reasonable certainty and the evidence as a whole demonstrates that the parties intended to be bound." (Id. at p. 771.) "Conflicts in the extrinsic evidence are for the trier of fact to resolve, but whether the evidence meets the standard of reasonable certainty is a question of law for the court." (Ibid.)
Afsaneh contends the March 13, 2013, emails fail to sufficiently identify the parties. We disagree. Wagner's email specifically states that "Afie will [¶] . . . [¶] [$]200 3 years or first sale, 175 5 years or second sale, 125 7 years third sale (whichever occurs first). Chris pays taxes." Conway's responding email specifically states that, "Chris and Jim accept Afie's offer as described in Item No. 2 of your email." To the extent that the use of first names creates any ambiguity, the record of correspondence establishes the identities of the parties with reasonable certainty.
It is true, as Afsaneh observes, that Conway subsequently circulated a proposed formal agreement identifying the seller as "Paris Royo and Afsaneh Royo, husband and wife," with a bracketed notation reading, "AND/OR PARIS' ESTATE - SELLER'S COUNSEL WILL ADVISE." It is also true that the proposed formal agreement identified the buyer as "James Svoboda and Suanne Svoboda, husband and wife, as community property with right of survivorship, as to a one-half (1/2) interest, and The Perkins Family Revocable Trust, dated May 4, 2011, as to a one-half (1/2) interest." However, extrinsic evidence clearly establishes the identities of the parties, and the trial court could reasonably conclude that the proposed formal agreement was merely an attempt to formalize the names of the previously identified parties. Nothing in the record suggests that the proposed formal agreement was an attempt to add new parties or otherwise vary the terms of the agreement reached on March 13, 2013. The March 13, 2013, emails adequately identity the parties.
Next, Afsaneh contends the March 13, 2013, emails fail to sufficiently identify the property. Again, we disagree. Although neither email specifically identifies the property by address, legal description, or assessor's parcel number, Wagner's email clearly refers to "the property," and extrinsic evidence clarifies the identity of the property with reasonable certainty.
"It is the rule that even a description in general terms which actually corresponds with an estate owned by a contracting party is sufficient to support a decree for specific performance where there is but one tract owned by the vendor which will answer the description. [Citation.] In addition, it is also the rule that a description of real property is sufficient even though the terms may be abstract and of a general nature, if with the assistance of external evidence the description, without being contradicted or added to, can be connected with and applied to the very property intended, to the exclusion of all other property." (Vezaldenos v. Keller (1967) 254 Cal.App.2d 816, 823 (Vezaldenos).) Here, extrinsic evidence clarifies that Wagner's email conveyed an offer to sell Afsaneh's undivided 50 percent interest in the "jointly owned property," which Conway and Wagner both understood to mean the property that Afsaneh owned in common with CHV. As previously discussed, there was no evidence that Afsaneh owned any other property in common with CHV, and the parcels constituting the "jointly owned property" can be identified with reasonable certainty by reference to the grant deed by which the Royos took title to their undivided 50 percent interest in 2005.
Afsaneh cautions against reliance on the grant deed, noting that the metes and bounds descriptions in the grant deed and proposed formal agreement are different. We need not parse the differences, if any, between the grant deed and the proposed formal agreement, because the statute of frauds does not require such technical exactitude. (Calvi v. Bittner (1961) 198 Cal.App.2d 312, 15 ["The law is extremely liberal in favor of the sufficiency of descriptions of land in contracts to convey realty. Much less certainty and particularity of description are required in a contract to sell land than in a deed conveying that land"]; see also Preble v. Abrahams (1891) 88 Cal. 245, 250 [memorandum that described the property to be sold as " 'forty acres of the eighty-acre tract at Biggs' " was sufficient where extrinsic evidence was available to clarify which forty acres were meant].)
Among other things, the grant deed describes eleven parcels, while the proposed formal agreement describes only nine.
Relying on Vezaldenos, supra, Afsaneh also implies that a general description of the property may not suffice where, as here, the agreement contemplates the sale of multiple parcels. Although Vezaldenos speaks in terms of "one tract," we do not understand the case to mean that contracting parties cannot rely on general descriptions where multiple parcels are involved. (Vezaldenos, supra, 254 Cal.App.2d at p. 823.) Rather, we read Vezaldenos for the proposition that a general description will suffice where an identifiable interest in land answers the description. Here, though the "jointly owned property" consisted of multiple parcels, there was no evidence that Afsaneh owned any other property in common with CHV, and there was nothing in the record to suggest the parties contemplated the sale of some parcels, but not others. On this record, we conclude that the March 13, 2013, emails sufficiently identify the property for purposes of the statute of frauds.
Afsaneh also argues that the March 13, 2013, emails fail to comply with the statute of frauds because they do not address the purportedly essential element of a formal writing. Specifically, Afsaneh argues that the parties did not intend for the agreement reflected in the March 13, 2013, emails to become binding until such time as a formal writing was prepared and executed. Afsaneh purports to find support for this argument in Wagner's March 14, 2013, email, which states, "There will only be a contract when the documents are signed." Afsaneh's argument founders on the premise that a formal writing was an essential element of the parties' agreement.
As noted, a memorandum, to satisfy the statute of frauds, must state the essential elements of the contract with reasonable certainty. (Sterling, supra, 40 Cal.4th at p. 766.) "What is essential depends on the circumstances of the agreement, including the agreement and its context, the subsequent conduct of the parties, and the remedy sought." (House of Prayer v. Evangelical Assn. for India (2003) 113 Cal.App.4th 48, 53.) We conclude that a formal writing was not an essential element of the parties' agreement.
A contract need not be formalized in a signed writing to be valid. (Mitchell v. Exhibition Foods, Inc. (1986) 184 Cal.App.3d 1033, 1048.) Rather, oral or written negotiations of the parties " 'ordinarily result in a binding contract when all of the terms are definitely understood, even though the parties intend that a formal writing embodying these terms shall be executed later.' " (Pacific Grove-Asilomar Operating Corp. v. County of Monterey (1974) 43 Cal.App.3d 675, 686, quoting 1 Witkin, Summary of Cal. Law (8th ed.) Contracts, § 102, pp. 103-104; see also Rennick v. O.P.T.I.O.N. Care, Inc. (9th Cir. 1996) 77 F.3d 309, 324 ["A manifestation of assent sufficient to conclude a contract is not prevented from doing so because the parties manifest an intention to memorialize their already made agreement in writing"], citing Restatement (Second) of Contracts, § 27 (1981) and Columbia Pictures Corp. v. De Toth (1948) 87 Cal.App.2d 620.) Here, the circumstances surrounding the making of the contract convince us that a formal writing was not an essential element of the parties' agreement.
As previously discussed, the parties were racing to reach an agreement before the scheduled tax sale. By the morning of March 13, 2013, the time for formal writings was largely over. With the tax sale scheduled for March 14, 2013, there was little time in which to prepare and execute a formal writing, and the parties' emails give no indication that they intended to attempt one. Although Conway's responding email included an offer to "put together the formal Purchase and Sale Agreement and forward the same to [Wagner] sometime [the following] week," we cannot conclude that the parties intended to make that document an essential element of their agreement, even when we consider Wagner's March 14, 2013, email.
As noted, Wagner's March 14, 2013, email states, "There will only be a contract when the documents are signed to make sure that we have covered the details." Afsaneh argues that Wagner's email should be viewed as one of the writings constituting the memorandum of the parties' agreement, such that Wagner's insistence upon a formal writing was part of the contract. But the timing of the email causes us to reject Afsaneh's argument. We note that Wagner waited until after Perkins and Svoboda had performed their end of the bargain by paying the back taxes to demand a formal writing. We also note that Wagner's ostensible demand for a formal writing would have defeated the entire purpose of the agreement: To save the property from the tax sale. Had the parties intended to make a formal writing a part of their agreement, and taken the time necessary to negotiate and prepare such a writing, they would have missed their opportunity to pay the delinquent taxes and save the property, thereby defeating the very purpose of the agreement.
Nothing in the parties' conduct after the time of contracting suggests they intended such a self-defeating result. To the contrary, the record reveals that Conway circulated a proposed formal agreement on March 22, 2013, to which Afsaneh failed to respond. Afsaneh's nonresponse to the proposed formal agreement raises a reasonable inference that a formal writing was not an essential element of the parties' contract. (Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 921 [" 'The conduct of the parties after execution of the contract and before any controversy has arisen as to its effect affords the most reliable evidence of the parties' intentions' "].) Under the circumstances, we conclude that the March 13, 2013, emails did not fail to address an essential element of the parties' agreement, and are not barred by the statute of frauds. E. Specific Performance
Next, Afsaneh argues that the trial court erred in ordering specific performance because (1) the terms of the contract were fatally uncertain, (2) the contract was not supported by adequate consideration, (3) there was no mutuality of remedies, and (4) the property was not unique. We are not persuaded.
"To obtain specific performance after a breach of contract, a plaintiff must generally show: '(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract.' " (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472 (Vallas).) "A grant or denial of specific performance is reviewed under an abuse of discretion standard." (Ibid.)
1. Certainty of Contract Terms
In a variation on a theme, Afsaneh argues the agreement was too uncertain for specific performance because the March 13, 2013, emails failed to adequately identify the parties or the property. "Even when the uncertainty of a written contract goes to ' "the precise act which is to be done" [citation], extrinsic evidence is admissible to determine what the parties intended. [Citations.] It is only when the extrinsic evidence fails to remove the ambiguity that specific performance must be refused.' " (Okun v. Morton (1988) 203 Cal.App.3d 805, 819.) Here, there was ample evidence identifying the parties to the agreement as Afsaneh, on the one hand, and Perkins and Svoboda, on the other. There was also ample evidence identifying the property as Afsaneh's undivided 50 percent interest in the property she co-owned with CHV. That Afsaneh formerly held the undivided 50 percent interest as community property with Paris does not render the terms of the agreement fatally uncertain, particularly in view of the trial court's determination that Afsaneh failed to rebut the form of title presumption. We therefore reject Afsaneh's argument that the trial court abused its discretion in ordering specific performance because the terms of the agreement were fatally uncertain.
2. Adequacy of Consideration
Afsaneh argues that the consideration for the agreement was inadequate. " 'The requirement of an adequate consideration in an action for specific performance does not mean that the contract price shall measure up to the highest market value of the property, but merely that it shall be a substantially just and fair valuation under all the circumstances of the case.' [Citation.]" (Dennis v. Overholtzer (1960) 178 Cal.App.2d 766, 777, disapproved on other grounds in Ellis v. Mihelis (1963) 60 Cal.2d 206, 221.) "A trial court's finding the consideration was adequate will not be disturbed on appeal if it is supported by substantial evidence." (Cubic Corp. v. Marty (1986) 185 Cal.App.3d 438, 448.)
The trial court's conclusion that the parties' agreement was supported by adequate consideration is supported by substantial evidence. The trial court heard evidence that the value of the property had declined considerably since the recession. As a result, the market value of the property in March 2013 was no more than $6-8 per square foot, resulting in a gross fair market value of $5,220,000. As previously discussed, the parties owed approximately $600,000 in back taxes in March 2013, which the trial court properly deducted from its estimate of gross fair market value. The trial court also found that Perkins and Svoboda were entitled to a priority repayment of at least $3,872,921 under the master agreement. As a result, the trial court reasonably concluded that the fair market value after the payment of taxes and priority repayment to Perkins and Svoboda was $748,000. The trial court found that Afsaneh's 50 percent share of $748,000 was $374,000, leading to the conclusion that the agreement, which provided for payment of Afsaneh's proportionate share of back taxes plus $500,000, was supported by adequate consideration. We perceive no abuse of discretion in the trial court's calculations or conclusion.
15 acres x 43,500 square feet per acre x $8 = $5,220,000.
Contrary to Afsaneh's suggestion, the trial court's calculations do not allocate the entire tax burden to her.
Afsaneh challenges the trial court's analysis in two ways. First, she suggests that the trial court's examination of the adequacy of the consideration for the contract was incomplete because the trial court refused to continue the trial to allow a real estate agent to testify as to the value of the property. Second, she suggests the trial court's analysis was flawed because the court failed to consider the circumstances surrounding the execution of the master agreement. Specifically, Afsaneh suggests that the master agreement was induced by fraud because Perkins and Svoboda allegedly failed to disclose the fact that they cancelled their note when they became members of CHV. These arguments seriously misapprehend the scope of our deferential review.
In a related vein, Afsaneh argues that the contract was unconscionable because Conway opined that Perkins and Svoboda would be entitled to priority repayment under the master agreement during the course of negotiations with Wagner. We decline to consider this argument, which Afsaneh forfeited by failing to address in a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); see San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1135.) Even if Afsaneh's unconscionability argument were properly presented, we would likely reject it in light of the trial court's finding (which Afsaneh does not challenge) that "each party was adequately and zealously represented by their respective lawyers (Conway and Wagner) during the negotiations of this contract." --------
The issue on appeal is not whether the real estate agent's testimony might have supported a different valuation of the property or whether the Royos made an informed decision to enter into the master agreement. Rather, the issue is whether substantial evidence supports the trial court's determination that the contract was supported by adequate consideration. (Natalie D. v. State Department of Health Care Services (2013) 217 Cal.App.4th 1449, 1455 ["The question is not whether there is substantial evidence that would have supported a contrary judgment, but whether there is substantial evidence supporting the judgment made by the trial court"].) As we have shown, the trial court's finding that the consideration was adequate was supported by substantial evidence. To the extent Afsaneh contends the trial court abused its discretion in denying the request for a continuance, we reject the contention. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002, fn. 11 ["The granting or refusal of a continuance is a matter of discretion with the trial court and its ruling will not be disturbed unless a clear abuse of discretion is shown"].) To the extent Afsaneh asks us to reweigh the evidence concerning the circumstances surrounding the execution of the master agreement, we decline to do so.
3. Mutuality of Remedies
Afsaneh argues that the trial court erred in ordering specific performance because the remedy was not mutual. Although Afsaneh's appellate briefs are not entirely clear, she appears to argue that the remedy lacks mutuality as to Afsaneh because Paris purportedly transferred his share of the Royos' undivided 50 percent interest in the property to a trust. We have already considered and rejected the premise for Afsaneh's argument. To the extent she contends the remedy of specific performance lacked mutuality as applied to the community property share of the property formerly held by Paris, we again reject the contention.
4. Inadequacy of Legal Remedy
Next, Afsaneh argues that the trial court erred in ordering specific performance because Perkins and Svoboda failed to establish that their legal remedy was inadequate. We disagree.
To obtain specific performance, a plaintiff generally must establish that monetary damages are an inadequate remedy. (Vallas, 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. (Vallas, supra, 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.)
Afsaneh argues that Perkins and Svoboda failed to introduce evidence showing that the property was unique. Afsaneh's argument turns the statutory presumption on its head. Contrary to Afsaneh's apparent belief, Perkins and Svoboda were entitled to rest on the statutory presumption that the property was unique. (Civ. Code, § 3387.) It was Afsaneh's burden to rebut the presumption with evidence showing that damages would adequately compensate Perkins and Svoboda for the breach. (Vallas, supra, 160 Cal.App.4th at p. 474.) This she failed to do. The trial court did not abuse its discretion in ordering specific performance. F. Alleged Defects in Judgment
Afsaneh contends the judgment is fatally uncertain and cannot be enforced. Specifically, she contends the judgment fails to identify the property by address, assessor's parcel number or legal description. She notes that the property purchased by the Royos in 2005 consisted of multiple parcels, some of which were lost to foreclosure as a result of the Agrium litigation. She adds that Perkins and Svoboda did not introduce evidence identifying which specific parcels were lost to foreclosure, resulting in an ambiguity as to which parcels would be subject to the judgment.
"It is the general rule that a judgment must be sufficiently certain to permit enforcement." (Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 185.) More particularly, a judgment affecting real property must be "specific and certain in its identity of the lands affected." (People v. Rio Nido Co., Inc. (1938) 29 Cal.App.2d 486, 488.) Nevertheless, uncertainties in a judgment may be resolved by reference to extrinsic evidence, including the record in the proceeding. (See, e.g., Estate of Careaga (1964) 61 Cal.2d 471, 475-476 [ambiguity in distribution decree may be resolved by reference to decedent's will]; Imperial Casualty & Indemnity Co. v. Sogomonian, supra, at p. 185 [ambiguous judgment for rescission might be "salvaged by examination of the complaint"]; 7 Witkin, Cal Procedure (5th ed. 2008) Judgment, § 42, p. 580.) But to the extent that ambiguities remain after resorting to extrinsic evidence, there is no final determination of the parties' rights and obligations and entry of judgment is improper. (Imperial Casualty & Indemnity Co. v. Sogomonian, supra, at pp. 185-186, citing Code Civ. Proc., § 577.)
Here, the judgment provides, "Defendant AFSANEH ROYO is ordered to convey her undivided 50 [percent] interest in the subject property to Plaintiffs within 15 days of entry of judgment." The judgment necessarily relates to the first amended complaint, which clearly identifies the property in question. We therefore conclude that the judgment is sufficiently certain. (Civ. Code, § 3538 ["That is certain which can be made certain"].) Our conclusion is bolstered by the preference for upholding judgments where possible. (California School Employees Assn. v. King City Union Elementary School Dist. (1981) 116 Cal.App.3d 695, 702.)
Afsaneh also takes issue with the requirement that she transfer her interest in the property to Perkins and Svoboda within 15 days of entry of judgment. Specifically, Afsaneh argues that the trial court improperly added the 15 day requirement to the parties' agreement. However, a decree for specific performance can properly order the conveyance of an interest in real property within a reasonable time. (Moser v. Pearce (1932) 124 Cal.App. 478, 483.) The trial court did not err in requiring Afsaneh to convey her interest in the property to Perkins and Svoboda within 15 days.
Finally, Afsaneh argues that the judgment is void because the trial court lacked jurisdiction over the estate of Paris. As before, Afsaneh's argument fails in its premise. As we have explained, Afsaneh failed to rebut the form of title presumption with clear and convincing evidence. As a result, we presume that title to the Royos' undivided interest in the property was as set forth in the grant deed, such that Afsaneh acquired Paris' community property share at the time of his death. (Evid. Code, § 662; Prob. Code, § 6401, subd. (a).) It follows that Paris' estate was not a necessary party to the agreement or the litigation. The judgment is not void for lack of jurisdiction over the estate of Paris. G. Other Issues
Afsaneh argues that the March 13, 2013, emails were inadmissible pursuant to Civil Code section 47. We need not decide whether the litigation privilege found in Civil Code section 47 applies to Perkins and Svoboda's contract claims (see generally Crossroads Investors, L.P. v. Federal National Mortgage Association (2017) 13 Cal.App.5th 757, 785-786 [describing circumstances in which Civil Code section 47 applies to contract claims]), because Afsaneh stipulated to the admission of the emails, thereby waiving the objection. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1530.)
2. Payment of Taxes by Co-Tenant
Afsaneh contends the trial court overlooked the legal significance of her cotenancy with CHV. She argues that, as a cotenant, CHV was entitled to a lien against the property for her share of the delinquent taxes, rather than a personal judgment. She emphasizes that the taxes were paid with a check drawn on CHV's account, suggesting that the only possible relief was a lien against the property in favor of CHV. (See generally 4 Miller & Starr, Cal. Real Estate (4th ed. 2016) § 11:10, pp. 11-20-11-21 ["A cotenant who pays more than his or her share of the common expenses of the property that are necessary to preserve the common estate may recover the overpayment from the other cotenants. The cotenant who pays the common expenses is entitled to a lien against the interests of the noncontributing cotenants. . . . The cotenant who pays the common expenses is not entitled to a personal judgment in the absence of an agreement to the contrary" fn. omitted].) We are not persuaded.
The trial court found that "the evidence overwhelmingly showed [Perkins and Svoboda] paid the overdue taxes to avoid the tax sale on March 13, 2013. . . . Specifically, Perkins and Svoboda testified they each deposited funds into the LLC account and then Perkins delivered a check written on the LLC account to the Fresno County tax office. The evidence clearly shows the LLC did not have adequate funds to pay the taxes."
Nothing in the record suggests Perkins and Svoboda ignored corporate formalities or used CHV's assets as their own. Rather, the record reveals that Perkins and Svoboda paid the delinquent taxes out of their own pockets, using a cashier's check drawn on the CHV account as a convenience. Under the circumstances, we agree with the trial court that the fact the check was drawn on CHV's account is not dispositive.
3. Application for Appointment of Elisor
Next, Afsaneh takes issue with various post-trial proceedings, including an application for appointment of an elisor. We have not been provided with a complete record of the relevant post-trial proceedings. Among other things, we have not been provided with Perkins and Svoboda's application for appointment of elisor or any order thereon. Although Afsaneh urges us to "cancel the grant deed signed by the elisor," we have not been provided with a copy of any such grant deed either.
It is the appellant's burden to provide an adequate record on appeal. Appellants must "present an adequate argument including citations to supporting authorities and to relevant portions of the record." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) To the extent that the record is inadequate, we make all reasonable inferences in favor of the judgment. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 ["Because they failed to furnish an adequate record . . . defendants' claim must be resolved against them"]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [finding that where record is insufficient to address the errors raised, "we indulge all presumptions in favor of the judgment"]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712 ["The plaintiff must affirmatively show error by an adequate record"].)
Afsaneh has not met her burden of providing an adequate record on appeal. She has failed to provide all of the pleadings, evidence, declarations and argument the trial court considered in rendering its decision on the application for appointment of elisor. In the absence of a complete record, appellate review is impossible. Instead, we presume the judgment was correct.
4. Judicial Misconduct
Afsaneh argues the trial judge committed judicial misconduct by giving "secret" instructions to the jury. Not so. During deliberations, the jury asked to have certain testimony read back. Specifically, the jury asked to hear testimony by Perkins regarding an offer for the property which was referred to during the trial as the "Cool Hand Luke's offer." The jury asked to hear Perkins' testimony regarding the Cool Hand Luke's offer "by his attorney." However, Perkins did not testify about the Cool Hand Luke's offer on direct examination. Rather, Perkins testified about the Cool Hand Luke's offer on cross-examination.
The trial court met with counsel. The trial court explained that the court intended to inform the jury that Perkins did not testify about the Cool Hand Luke's offer on direct. The trial court anticipated that the jury would follow up with a request to have Perkins' testimony on the Cool Hand Luke's offer on cross-examination read back. The trial court indicated that, in that circumstance, the court would direct the court reporter to read the relevant testimony on cross-examination back to the jury.
Although the record is not entirely clear, the trial court appears to have jumped the gun by instructing the court reporter to read back Perkins' testimony on the Cool Hand Luke's testimony on cross-examination before any follow up request could be made. The trial court promptly acknowledged the error, indicating that the instruction was given to the court reporter "in the midst of doing other things." Nothing in the record suggests the inadvertent readback was part of a "secret" plan to influence the jury. We reject Afsaneh's unsupported claim of bias.
Afsaneh also argues the trial judge criticized her counsel in front of the jury, made inappropriate comments on the evidence, and improperly sustained objections by Perkins and Svoboda's counsel. We have carefully reviewed the record and see no evidence of bias. Although the trial court admonished Afsaneh's counsel to stop arguing with Conway, and expressed frustration with counsel and Conway, nothing suggests the court demonstrated judicial bias against Afsaneh. Afsaneh's unsupported allegations do not require reversal.
5. Jury Instructions
Finally, Afsaneh argues that the trial court erred in instructing the jury. We reject these arguments as moot. We reiterate that the jury's verdict was advisory only, as Perkins and Svoboda elected the equitable remedy of specific performance. As a result, Afsaneh's claims of instructional error are moot.
III. DISPOSITION
The judgment is affirmed. Christopher Perkins and James Svoboda are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/S/_________
RENNER, J.
We concur:
/S/_________
RAYE, P. J.
/S/_________
MAURO, J.