NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHMAN, Acting P.J.
In September 2008, appellants Anis and Ghousia Shaikh (when referred to collectively, the Shaikhs) bought a home in Fremont under a city program to benefit low-income people, in connection with which they took out a loan with Wells Fargo Bank. The Shaikhs defaulted after eight payments, and the house was ultimately sold at foreclosure in August 2011. Respondents Brian and Nancy Martin (when referred to collectively, the Martins) bought it. The Shaikhs refused to leave, and the Martins filed an unlawful detainer action. The Shaikhs' attempts to thwart that action were ultimately unavailing, and the unlawful detainer action was set for trial in February 2012. An eve-of-trial, court supervised settlement conference led to a settlement agreement, under which the Shaikhs could repurchase the house under specified conditions. The Shaikhs did not meet those conditions, and they were evicted.
The Shaikhs then filed this lawsuit against the Martins, alleging six causes of action. Five of the six were dismissed on summary adjudication, leaving only the claim for breach of the covenant of good faith and fair dealing. That claim proceeded to a bench trial, following which the trial court entered a comprehensive statement of decision, finding against the Shaikhs on several bases, including that they did not meet their burden of proof on two critical elements of their claim, failing to demonstrate (1) their own performance and (2) that the Martins unfairly interfered with them. The Shaikhs appeal that decision. We affirm.
The City of Fremont enacted an "Inclusionary Housing Ordinance" to assist low-income people in acquiring housing. In September 2008, the Shaikhs entered into an agreement with the City of Fremont to buy the home located at 40200 Antigua Rose Terrace (the home). The purchase price was $348,425, and the agreement provided that the Shaikhs were obtaining a first mortgage loan from Wells Fargo Bank. The agreement also included a resale restriction agreement that prevented the Shaikhs from reselling the home for a profit.
The Shaikhs defaulted on their loan after only eight payments. Sometime later foreclosure proceedings were begun, though precisely when or precisely what occurred is not in the record. The upshot of those proceedings is—in August 2011, the property was sold at foreclosure, bought by the Martins.
The Martins advised the Shaikhs of their ownership and requested they move out. They refused. So, on September 21, 2011, the Martins filed an unlawful detainer action in the Alameda County Superior Court. The response by the Shaikhs was multifaceted. One thing they did was file a lawsuit in Alameda County against Wells Fargo Bank, various other entities, and the Martins (action No. HG11610044). They filed a demurrer in the unlawful detainer action, which was overruled. And they also filed a petition in bankruptcy, which petition was ultimately dismissed (Bankr. N.D. Cal. 2011), case No. 11-72522.
Having overcome the Shaikhs' resistance, the Martins had the unlawful detainer action set for trial, on February 17, 2012, before the Honorable Frank Roesch, a most experienced judge. Judge Roesch ordered the parties to engage in settlement discussions. They did, and they were successful: on February 17, the parties entered into a settlement, detailed in a written settlement agreement and mutual release (the settlement agreement). The settlement agreement provided that the Shaikhs could repurchase the home for $500,000 if they met the specified conditions. It also provided that if they did not, they would enter a stipulation for entry of judgment in the unlawful detainer action. All parties were represented by counsel at the time of the signing of the settlement agreement. And all parties and their counsel appeared before Judge Roesch to present the settlement agreement to the court.
The settlement agreement will be discussed in detail below, as it and its performance—more accurately, nonperformance—were at the heart of the trial. Suffice to say here that the key terms of the settlement included these:
As also discussed in detail below, the Shaikhs failed to complete the purchase of the property by May 15, 2012, but nevertheless refused to vacate the property. The Martins filed an ex parte application for entry of judgment pursuant to the settlement agreement, and the Shaikhs filed written opposition. For reasons not apparent from the record, that motion was not scheduled before Judge Roesch, but before Judge Smith, who determined that the request to enter judgment must proceed by noticed motion.
In early July 2012, following the dismissal by the bankruptcy court of a second bankruptcy petition filed by the Shaikhs (Bankr. N.D.Cal. 2012), case No. 12-46532, the Martins filed a motion for entry of judgment. The Shaikhs filed opposition, the Martins a reply, and the matter was argued before Judge Roesch, following which he issued an order granting the motion and awarding immediate possession to the Martins together with attorney fees in the sum of $2,275. Judgment followed.
In August 2012, the Shaikhs filed a motion to set aside the judgment. The Martins filed opposition and the matter was argued before Judge Roesch. He again ruled for the Martins, denying the motion and awarding the Martins attorney fees.
The Shaikhs appealed both the judgment and the order denying their motion to set it aside to the appellate department. Judge Roesch granted the Shaikhs' request for a stay pending that appeal, subject to payment of the fair rental value of the property in the sum of $2,800 per month. Oral argument on that appeal was heard in August 2013, following which the appellate department affirmed.
Meanwhile, the Shaikhs also filed the action here.
The Proceedings Below
In September 2012, the Shaikhs filed a complaint against the Martins. Following two demurrers, the matter came to issue on the second amended complaint, filed on March 27, 2013. That complaint alleged six causes of action, for (1) specific performance/breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) conversion; (4) negligence; (5) interference with tenants' use of premises (Civ. Code, § 789.3); and (6) trespass.
In November 2013, the Martins moved for summary judgment. The Shaikhs filed opposition, the Martins a reply, and the motion came on for hearing on February 10, 2014 before the Honorable John True. Judge True thereafter entered a detailed order granting summary judgment, a summary judgment the Shaikhs did not appeal.
The Shaikhs did move to vacate the summary judgment. The Martins filed opposition, and the Shaikhs a reply, followed by supplemental briefing from both sides. Following a hearing, Judge True entered a seven-page order that affirmed summary adjudication of five of the six causes of action. Judge True's order permitted the Shaikhs to proceed with their second cause of action, for breach of the covenant of good faith and fair dealing. In short, one cause of action remained to proceed to trial.
Testimony in that trial began on April 27, 2015 before the Honorable Stephen Pulido. Prior to that date, the Shaikhs filed a trial brief and also 10 motions in limine. The Martins also filed a trial brief and 10 motions in limine of their own. Both sides filed opposition to all motions in limine, the effect of which was that prior to the testimony Judge Pulido had before him 303 pages of material.
The testimony proceeded over three days, during which Judge Pulido heard from eight witnesses, including both Shaikhs and both Martins. Following conclusion of the evidence, Judge Pulido heard closing arguments, after which he took the matter under submission, though allowing further briefing on the issue of the Shaikhs' standing. That briefing was received.
On August 31, Judge Pulido issued his tentative statement of decision. The Shaikhs filed objections, objections the Martins characterize as "mirror[ing] precisely those arguments made in their opening brief" here—a description the Shaikhs do not deny in their reply. The Martins filed a response to the objections, and on September 29 Judge Pulido entered his statement of decision.
Judge Pulido's statement of decision was comprehensive indeed, 13 pages of detailed analysis of the one cause of action before him. In light of that detail, and in further light that the Shaikhs' reply brief represents that they "request application of the law to undisputed facts," we quote extensively from Judge Pulido's statement of decision, beginning with the February 2012 settlement agreement which, he found, "was placed on the record before Judge Frank Roesch on February 17, 2012 and signed by all parties on said date." Going on to note "the following terms of the Agreement," this is what Judge Pulido said:
Judge Pulido then discussed the evidence before him, including this:
Judge Pulido then discussed some facts after the May 15 "deadline." Then, following a discussion of standing, Judge Pulido turned to the applicable law, which included this: "The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made. The covenant thus cannot `be endowed with an existence independent of its contractual underpinnings.' It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement. (Guz v. Bechtel National, Inc. (2000)[24 Cal.4th 317.)] [¶] . . . [¶]
Following all that, Judge Pulido concluded as follows:
Judgment was entered on October 20, 2015, from which the Shaikhs appealed.
The Issue and the Standard of Review
As noted, only one claim remained in the case, the claim that went to trial before Judge Pulido—breach of the covenant of good faith and fair dealing. The elements of that claim, as Judge Pulido properly noted, are the five set forth in CACI No. 325. Those five elements include that the Shaikhs did all, or substantially all, that was required of them (or were excused from doing so); and that the Martins "unfairly interfered with [the Shaikhs'] right to receive the benefits of the contract." Judge Pulido concluded that the Shaikhs failed to prove either of these two elements. That ends the matter, especially in light of the Shaikhs' briefing here.
Before turning to a demonstration of why, we begin by observing that the Shaikhs' brief violates settled principles of appellate review, essentially by setting forth a version of facts favorable to them. We said in In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531 that such conduct is "not to be condoned," going on to explain why:
In short, the Shaikhs' argument is based on a treatment of the record that is contrary to all principles of appellate review—not to mention that it ignores Judge Pulido's findings, which included that they failed to meet their burden of proof. In light of this, the Shaikhs have a heavy burden on appeal, as set forth, for example, in Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466: "`Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."' (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528].)" (Accord, Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 967.)
The Supreme Court described the same principle over 70 years ago, in Roesch v. De Mota (1944) 24 Cal.2d 563, observing as follows: "In substance the trial court found and concluded that the plaintiffs and those equally charged with them in sustaining the burden had not proved payment by a preponderance of evidence. The problem here is not whether the appellants on the issue of payment failed to prove their case by a preponderance of the evidence. That was a question for the trial court and it was resolved against them. The question for this court to determine is whether the evidence compelled the trial court to find in their favor on that issue." (Id. at pp. 570-571.)
One Court of Appeal has described the Shaikhs' burden as "almost impossible" for them to prevail on appeal by arguing the evidence compels a judgment in their favor. (Bookout v. State of California ex. rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.) The Shaikhs fail to meet their burden.
To begin with, the Shaikhs' opening brief does not even contain one "argument," itself fatal to the Shaikhs, as we recently held in Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 762. There, rejecting a plaintiff's appeal from a demurrer sustained against him, we noted that "It is not this court's role to construct arguments that would undermine the lower court's judgment and defeat the presumption of correctness. Rather, an appellant is required to present a cognizable legal argument in support of reversal of the judgment and when the appellant fails to support an issue with pertinent or cognizable argument, `it may be deemed abandoned and discussion by the reviewing court is unnecessary.' (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Issues not supported by argument or citation to authority are forfeited. (See, e.g., People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 873; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)"
Instead, following their nine-page "Statement of Facts"—a statement, as noted, that inappropriately sets forth the facts as the Shaikhs would have them—the brief then has a 37-page "Legal Discussion." Nowhere in that legal discussion is there anything labeled "Argument," as a reading of the table of contents reveals. The legal discussion is as follows:
Focusing on items E, G, and H, the only items that could possibly be said to be "arguments," illustrates the problem with the Shaikhs' position, as, simply, Judge Pulido found to the contrary. That ends the inquiry.
Beyond that, a fair reading of the evidence is to the contrary.
As to items E and H, the Shaikhs claimed performance, while they paid the Martins the $25,000 nonrefundable payment, they were late in their next three obligations, to: (1) dismiss the Martins from case No. HG11610044, (2) withdraw the lis pendens they recorded against the property, and (3) provide the Martins with escrow information within 30 days of signing the settlement agreement. Moreover, the Martins' expert Harold Justman testified that escrow never closed because it was a judicially supervised escrow, and no changes to it could have been made without presentation to the court. Moreover, Justman testified that the underwriter's checklist showed that both a financial and title closing must occur to close escrow, and the financial closing was nowhere close to being done in time. The money that was supposed to be in escrow in a timely fashion was never in place to allow the financial element to close. Further, Justman found that the preliminary title report demonstrated that there was no title closing imminent.
As to item G, the claim that the Martins unfairly prevented the contract, the fact is that it was Mr. Martin who initiated contact with the Shaikhs in mid-April to check on the status of the deal. And in furtherance of closing the deal by May 15, he asked the Shaikhs to complete and send over a purchase agreement. Mr. Shaikh told Mr. Martin to do it himself. Mr. Martin said that he believed the Shaikhs (or their designated buyers) should prepare the agreement with the assistance of a real estate professional. Mr. Shaikh responded by sending Mr. Martin a blank purchase agreement on a standard form. Mr. Martin reluctantly completed the purchase agreement by himself, despite that he was not aware of the Shaikhs'/buyers' financing terms. He then filled out the form and sent it back to the designated buyers for approval and their signatures. This was hardly bad faith.
The judgment is affirmed. The Martins shall recover their costs on appeal.
Stewart, J. and Miller, J., concurs.