SHAIKH v. MARTIN

No. A146909.

ANIS C. SHAIKH, et al. Plaintiffs and Appellants, v. BRIAN J. MARTIN, et al. Defendants and Respondents.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

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.

BACKGROUND

The Facts

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:

1. The Shaikhs would dismiss the Martins with prejudice in action No. HG11610044, the separate case the Shaikhs had filed against their former lender and others. 2. The Shaikhs would pay a nonrefundable deposit of $25,000 to the Martins, with $20,000 of that deposit to be applied to the $500,000 purchase price if the Shaikhs completed the purchase of the property by May 15, 2012, with the entire $25,000 to be retained by the Martins if the Shaikhs did not complete the purchase of the property by May 15, 2012. 3. The Shaikhs would vacate the property by May 15, 2012, unless prior to that date they (or their designee) completed a purchase of the property from the Martins for $500,000.

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:

"The Shaikhs shall: "a. Stipulate to the entry of a judgment against them and all occupants in possession in favor of the Martins in the eviction action. . . . The judgment pursuant to stipulation shall be held by the Martins and shall not be filed in the eviction action and enforced except as provided in the Agreement. . . . "b. Waive any right to appeal from and/or seek a delay in enforcement of the judgment pursuant to stipulation in the eviction action upon the entry of same in the eviction action. "c. Vacate possession of the property and deliver possession of same to the Martins by 5-15-2012 unless they successfully purchase, via close of escrow the property from the Martins for $500,000 and pay all costs, expenses and fees in connection with the close of escrow. (Emphasis added) "d. Within 5 days of entering into the Agreement file a dismissal of the Martins from the quiet title action with prejudice; file a dismissal with prejudice of all causes of action in quiet title action which seek to set aside the trustee's sale of the property to the Martins or otherwise seek any relief regarding the property and issue and record a withdrawal of lis pendens that the Shaikhs had recorded against the property in the quiet title action. (Emphasis added.) "The Agreement also provided that the Martins stipulate to the entry of judgment in their favor against the Shaikhs and all occupants in possession in the eviction action, with the stipulation for judgment being filed forthwith and refrain from filing the judgment pursuant thereto and thereafter enforcing same until after 5-15-2012 and shall sell the property to the Shaikhs (or the Shaikhs designee) on the following terms: (Emphasis added) "a. $500,000 sale price; "b. $25,000 down payment to be paid by Shaikhs to Martins by 2-27-2012 as a non-refundable deposit and the balance of the sale price over and above the deposit shall be paid into escrow by the Shaiks not later than 5/15/2012. (Emphasis added) "c. Escrow for the sale of the property is to be closed not later than 5-15-2012. (Emphasis added) "d. Shaikhs to pay all of the fees and expenses of escrow and purchase of the property. Shaikhs shall select an escrow company and/or title company to handle Shaikhs' purchase of the property and shall inform the Martins and their attorney of the name, address, phone number, email address and escrow number for the escrow, plus the escrow officer's name no later than 30 days after the execution of the agreement. "e. The property is to be sold by the Martins to the Shaikhs (or Shaikhs designee) and purchased by the Shaikhs from the Martins `As Is' since the Shaikhs currently occupy same and since the Martins never had possession of same. "f. If escrow fails to close by 5-15-2012 the Shaikhs (and/or Shaiks' designee) shall forfeit any and all rights under the agreement to purchase the property from the Martins. Further if escrow fails to close by 5-15-2012 the Martins may apply to the court in the eviction action, by ex parte application, for the entry of the Judgment Pursuant To Stipulation and thereafter enforce said judgment. If escrow fails to close by 5-15-2012 the $25,000 deposit shall be credited by the Martins to the monies owed under the Judgment Pursuant To Stipulation. If escrow closes by 5-15-2012 $20,000 of the $25,000 deposit will be applied to the $500,000 purchase price. (Emphasis added)."

Judge Pulido then discussed the evidence before him, including this:

"The Shaikhs did pay to the Martins the $25,000 non-refundable deposit by 2-27-2012. "The Shaikhs did not file a dismissal of the Martins from the quiet title action within 5 days of entering into the Agreement, nor did the Shaikhs file a dismissal with prejudice of all causes of action in the quiet title action which seek to set aside the trustee's sale of the property to the Martins within 5 days of entering into the Agreement. The Shaikhs also failed to issue and record a withdrawal of the lis pendens that the Shaikhs recorded against the subject property in the quiet title action within 5 days of entering into the Agreement. "The designated buyers for the Shaikhs and the Martins signed the `California Residential Purchase Agreement And Joint Escrow Instructions' on 4-16-2012 providing for a purchase price of $500,000 and reflecting the receipt of an initial deposit by the Martins from the Shaikhs in the amount of $20,000 on 2-27-2012, a first loan of $400,000 and the balance of the purchase price or down payment of $80,000. (Exhibit 103) Said Residential Purchase Agreement reflects a close of escrow of 5-15-2012 and states in paragraph 28 that, `Time is of the essence.' "The Court further finds that the Shaikhs did not select an escrow company and/or title company to handle the Shaikhs purchase of the property within 30 days after the execution of the Agreement and did not inform the Martins and their attorney of the name, address, phone number, email address and escrow number for the escrow, plus the escrow officer's name within 30 days after the execution of the Agreement. As stated below, the evidence at trial indicates that the Shaikhs did not contact their mortgage broker until April 20, 2012 regarding obtaining financing to purchase the subject property from the Martins and the Martins did not receive the escrow company details from Mr. Syed until May 2, 2012. "The mortgage broker, Syed Ali Farhan, testified that initially he was first contacted by Mr. Shaikh on April 20, 2012. Mr. Farhan testified that the Shaikhs were the `real buyers' in this case but needed designated buyers because of their `bad credit' issues. Mr. Syed testified that initially he did not know that the sum of $20,000 had already been paid by the Shaikhs to the Martins. Mr. Syed told the Shaikhs that that the $20,000 needed to be `back in escrow.' The Martins would not agree to put the $20,000 into escrow. "On May 1, 2012, the Shaikhs and the Martins signed an Amendment to the Settlement Agreement And Mutual Release signed by the parties on 2-17-2012, in which the parties agreed that, `In exchange for reducing the purchase price of 40200 Antigua Rose Terrace from $500,000 to $480,000 the $25,000 deposit money received by Brian Martin from Anis and Ghousia Shaikh 2/27/2012, is no longer tied to the sale of said property per the SETTLEMENT AND MUTUAL AGREEMENT signed 2/17/2012. The $25,000 received is for Brian and Nancy Martin to keep as a non-refundable portion of the judgment owed to them by Anis and Gousia Shaikh.' (Exhibit 104) "The Amendment to the Settlement Agreement And Mutual Release concludes as follows: "Changes to the SETTLEMENT AGREEMENT: "1. The purchase price per item 2c and 3a is to be $480,000. "2. The $25,000 received is no longer part of the `down payment' per item 3b. "3. Portion of the hand written and initialed clause of item 3f `If escrow closes by 5-15-2012 $20,000 of the $25,000 deposit will be applied to the $500,000 purchase price' is hereby removed. "The remainder of the SETTLEMENT AGREEMENT is to stay intact. (Emphasis added) "An Addendum to the California Residential Purchase Agreement and Joint Escrow Instructions' dated 4-16-2012 was signed by the designated buyers and the Martins on May 2, 2012 reflecting the terms of the Amended Settlement Agreement, specifically the following: "1. Purchase price to be $480,000 "2. Earnest Money deposit of $20,000 not required. "3. All other terms and conditions remain the same. (Emphasis added) "As of May 12, 2012, the Shaikhs did not yet have the full amount of money needed to complete the purchase of the subject property from the Martins. One of the designated buyers, Seshadri Yillayavilli indicated that he could get money from his 401K plan to make up the difference in funds needed. The 401K check was received on May 12, 2012 and Mr. Shaikh testified that the check cleared the bank on May 14, 2012. However, the lender needed more time to close escrow. "On May 14, 2012, Mr. Syed contacted the Martins to ask for a 3-day close of escrow extension in order to allow the lender to review the file and draw loan documents. Mr. Martin wrote back and indicated that he and his wife `are obligated to allow the Shaikhs or the buyers they designated to complete the purchase by 5/15. After that point we will evaluate the (sic) our position and let you know.' (Exhibit 10) "Mr. Shaikh testified that he did not contact his attorney during the above periods of time May 15, 2012 because he believed that the escrow would close by May 15, 2012. On May 15, 2012 at 11:24pm Mr. Shaikh emailed Mr. Martin and asked for an extension of time to close escrow of 3 to 5 working days. In said email Mr. Shaikh stated, `I understand and agree that today was the last day for closing on purchase of our Home per agreement signed.' (Exhibit 11) "The Court finds that the Shaikhs failed to purchase the subject property from the Martins by 5-15-2012 and that escrow did not close by 5-15-2012. These findings are undisputed by the parties. "The Court finds that no funds were ever deposited into the escrow account set up for the purchase of the subject property. "The Court further finds that the Shaikhs failed to timely comply with certain terms of The Settlement Agreement And Mutual Release signed by the parties on 2-17-2012 as detailed above and unreasonably delayed contacting a mortgage broker to arrange a loan for them to purchase the subject property from the Martins. . . . The fact that the Shaikhs did not contact a mortgage broker until April 20, 2012 and the Martins were not advised of the escrow company specifics until May 2, 2012 does not demonstrate active and timely pursuit of the purchase by the Shaikhs of the subject property . . . within the parameters of the Settlement Agreement."

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.)] [¶] . . . [¶]

"To establish the claim of a breach of implied covenant of good faith and fair dealing the Shaikhs must prove all of the following by a preponderance of the evidence: "1. That the Shaikhs and Martins entered into a contract; "2. That the Shaikhs did all, or substantially all of the significant things that the contract required them to do or that they were excused from having to do those things; "3. That all conditions required for the Martins' performance had occurred or were excused; "4. That the Martins unfairly interfered with the Shaikhs' right to receive the benefits of the contract; and "5. That the Shaikhs were harmed by the Martins' conduct. [¶] [CACI 325] "As to the issue of substantial performance, said doctrine does not apply to escrow agreements. In this state, the terms and conditions of an escrow must be performed. The doctrine of substantial performance does not apply, and no title passes prior to full performance of the terms of the escrow agreement. (Love v. White (1961) 56 Cal.2d 192, 192; Hildebrand v. Beck (1925) 196 Cal. 141, 145; Todd v. Vestermark (1956) 145 Cal.App.2d 374, 377; Altadena Escrow Corp. v. Beebe (1960) 181 Cal.App.2d 743)."

Following all that, Judge Pulido concluded as follows:

"The Court finds that the Plaintiffs did not prove, by a preponderance of the evidence, that they did all, or, to the extent relevant substantially all of the significant things required of them to do pursuant to the Settlement Agreement And Mutual Release signed by the parties on 2-17-2012 as found by the Court in its Factual Findings contained in this Tentative Decision. Most importantly, the Plaintiffs failed to complete the purchase of the subject property from the Defendants by 5-15-2012 as required by the Settlement Agreement and Mutual Release. Time was of the essence in said agreement. [¶] . . . [¶] "The court finds that the Plaintiffs failed to prove by a preponderance of the evidence that all conditions required for the Defendants' performance had occurred or were excused. The Plaintiffs failed to deposit any sum of money in an escrow account at any time prior to 5-15-2012. "The Court further finds that the Plaintiffs failed to prove by a preponderance of the evidence that the Defendants unfairly interfered with the Plaintiffs' right to receive the benefits of the contract. The Court finds that the Plaintiffs' conduct and/or failure to timely carry out their responsibilities under the Settlement Agreement And Mutual Release signed by the parties on 2-17-2012 caused the Plaintiffs to fail to receive the benefits of the contract. "The Court finds that the Defendants were under no obligation to agree to an extension of the date to complete Plaintiffs' purchase of the subject property and the underlying date for close of escrow. The Court further finds that requiring the Defendants to do so would have created obligations that were inconsistent with the terms of the Settlement Agreement And Mutual Release signed by the parties on 2-17-2012."

Judgment was entered on October 20, 2015, from which the Shaikhs appealed.

DISCUSSION

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:

"California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant's opening brief shall `[p]rovide a summary of the significant facts. . . .' And the leading California appellate practice guide instructs about this: `Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly "undo" an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case!' (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 9:27, p. 9-8 (rev. # 1 2010), italics omitted.) [Appellants'] brief does ignore such instruction. "[The Shaikhs'] brief also ignores the precept that all evidence must be viewed most favorably to [the Martins] and in support of the [decision]. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) This precept is equally applicable here, where Judge [Pulido] issued a statement of decision: `Where statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.' (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.)"

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:

"LEGAL DISCUSSION...... "I. A. The Purchase Agreement Should Also Be Considered as Part of the Contract...... "B. The Elements of the Covenant of Good Faith and Fair Dealing...... "C. The Covenant of Good Faith and Fair Dealing...... "D. Substantial Performance Doctrine is Fully Applicable Here...... "E. The Shaikhs Substantially Performed...... "F. Time Was Not of the Essence Here...... "G. Martins' Conduct Was the Cause of the Shaikhs' Failure to Receive the Benefits of the Contract...... "H. Conditions Required for the Martins Performance had Occurred..... "I. The Martins Unfairly Interfered with Plaintiffs' Right to Receive the Benefits of the Contract...... "J. The Negotiations that Occurred After May 15 Are Relevant in a Continuous Course of Conduct...... "K. The Addendums to the Settlement Agreement and Purchase Agreement Are Void and Unenforceable....."

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.

DISPOSITION

The judgment is affirmed. The Martins shall recover their costs on appeal.

Stewart, J. and Miller, J., concurs.


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