Triwest Homes II v. Ostayan CA2/2 ( 2022 )

Filed 12/21/22 Triwest Homes II v. Ostayan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TRIWEST HOMES II, LP, B307708
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC072373)
v.
SAM OSTAYAN,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Kuzyk Law, Reid H. Breitman; Benedon & Serlin,
Douglas G. Benedon and Judith E. Posner for Plaintiff and
Appellant.
The Ryan Firm, Timothy M. Ryan and Andrew Mase for
Defendant and Respondent.
******
Triwest Homes II, LP (Triwest Homes), appeals from a
judgment entered after the trial court granted summary
judgment in favor of Sam Ostayan1 on Triwest Homes’ causes of
action against Ostayan including breach of contract, breach of the
covenant of good faith and fair dealing, fraud, and negligent
misrepresentation arising out of a real property sale.
Triwest Homes purchased real property, consisting of
incomplete construction, from Ostayan located at 2950
Crownview Lane, Palos Verdes, California 90275 (the property).
In its complaint, Triwest Homes alleged that Ostayan failed to
inform Triwest Homes of a city-imposed road widening
requirement, which needed to be completed at the property prior
to Triwest Homes’ purchase.
The trial court granted Ostayan’s motion for summary
judgment on the ground that Triwest Homes lacked standing to
assert its claims against Ostayan due to Triwest Homes’ failure
to provide evidence of a valid assignment of rights from the
initial proposed buyer of the property, DAS Fund I, LLC (DAS
Fund), to Triwest Homes. Alternatively, the trial court granted
summary judgment on the ground that Triwest Homes had
constructive notice of the road widening requirement. We
conclude that the trial court properly granted Ostayan’s motion
1 The defendants in this action were originally Ostayan and
Arden Management, LLC (Arden). By order of the court dated
September 24, 2018, Ostayan was substituted in the place and
stead of Arden. Arden thereafter had no further duty to
participate in the litigation but would be bound by and subject to
enforcement of any judgment against Ostayan in the action. The
order was not deemed an admission of an alter-ego relationship
between Arden and Ostayan.
2
for summary judgment, and accordingly affirm the judgment.
Because we affirm the judgment, we also affirm the postjudgment
award of attorney fees in favor of Ostayan.
FACTUAL BACKGROUND
Ostayan’s work on the property
Ostayan purchased the property at a foreclosure sale in
November 2012. It was a “single-family residence under
construction.”
Ostayan hired John Schuricht as an engineer to complete
the construction at the property. According to Schuricht, the
project initially seemed simple until Ostayan and Schuricht
discovered that the fire department required the construction of a
20-foot-wide fire road leading to the property. Schuricht adjusted
the plans accordingly. The fire department then informed
Schuricht that a turnaround was also necessary. The fire road
and turnaround requirements made the project more expensive
than what was initially anticipated. Schuricht testified that
“there would have to be retaining walls . . . [b]ecause the existing
road that was there was right up against the hill.” In addition,
there were concerns about property lines. Schuricht testified that
he would have to “cut into other peoples’ slopes,” which meant
“getting permission from the owner to build the retaining
wall, . . . plus the cost of the wall.” Schuricht testified that the
entire project “suddenly . . . became . . . a lot more expensive.”
In March 2014, the proposed building plans for the
property were submitted to the City of Ranchos Palos Verdes
(city). The March 2014 plans included the 20-foot-wide access
road and the “turnaround” area, as required by the fire
department. The March 2014 plans also included a “Boundary
3
Retracement Topographic Survey,” which contained a box
including the following statement in all capital letters: “FINAL
OCCUPANCY CERTIFICATION CONTINGENT UPON
COMPLETION OF PAVED 20’-0” WIDE ROAD FOR
EMERGENCY VEHICLE ACCESS.” The road requirement was
printed in red on the first sheet of the plans. Schuricht testified
that “we put it in red so people don’t miss it, because it’s a really
important requirement.” Tom DeFazio, a representative of the
city, testified that the city had a complete set of plans that
included the road widening requirement. The city ultimately
approved the plans and issued a building permit in March 2014.
Escrow and sale of the property
In August 2014, Ostayan listed the property for sale at
$1,549,000. The listing described the property as “[p]rivate drive
leads to this custom designed one story home of 4,550 [s]quare
[f]eet of living area with flowing floor plan and ocean view flat
yard and center courtyard that is ready to be completed, all
permits are active and all work done to date ha[s] been inspected
and passed by city.” (Boldface omitted.) The agent remarks in
the listing indicated, “Out of area [b]roker [o]wner wants [the
property] SOLD[.] Selling as is in present condition, all permits
are current and paid for, all work done to date inspected and
passed by city, perfect for someone who wants to build a new
house without spending 2 years for planning and permits etc.
[L]isting agent, seller related[.] [B]uilding plans available and
can be emailed to serious prospect. Shown by appointment only,
this one is priced right.”
By September 2014, Justin Thomas, a local realtor, was in
contact with Ostayan about the property. After visiting the
property with his client, Thomas asked Ostayan about his
4
motivation behind the sale. Thomas stated, “It appears that you
were on track to complete this project and then just stopped. Are
there problems with the neighbors? Anything else that we should
be aware of?” Ostayan did not mention the fire road, but stated
that it was “too far” for him and he had other projects he needed
to finish.
On September 25, 2014, Thomas informed his client that he
had checked out the file on the property at the building
department. He stated that the file “is THICK, to say the least.”
He included a link to “full size plans” of the property. Thomas
informed the client that Ostayan was “selling as is, where is. No
warranties, or guarantees. Buyer advised to bring own
contractors to inspect what is there.” Thomas told the buyer “be
sure to go to the City of Palos Verdes into the building and safety
department and the planning department and look at all the
plans” for the property.
On September 26, 2014, Thomas formally presented an
offer on behalf of his client for the property, identified as “DAS
Fund I, LLC and/or assignee.” Thomas described the client as an
“investor[] . . . involved in developments across the nation.”
Thomas noted several “major downfalls” with the property,
including “very low ceilings, hard to find road, location being on
the east side of the hill, driveway that will require a lot of work to
make a proper entrance, master bathroom being right up against
a retaining wall, etc. On top of these issues, this home has been
under construction for the last 10 years and has had two different
owners.” The offer listed as additional items included in the sale
“[a]ll plans, permits, reports and materials for this home.” It also
specified, “Buyer is to purchase the property as is, where is.
5
Buyer to choose vesting during close of escrow.” The offer was
signed by Rob Brauchli, DAS Fund manager.
Brauchli also signed a “Buyer’s Inspection Advisory,” dated
September 26, 2014, which stated that the buyer had “an
affirmative duty to exercise reasonable care to protect yourself,
including discovery of the legal, practical and technical
implications of disclosed facts, and the investigation and
verification of information and facts that you know or that are
within your diligent attention and observation.”
DAS Fund involved experienced general contractor, Chuck
Rowland, to assist with the purchase. As part of his work
responsibilities, Rowland oversaw the vetting of properties on
behalf of certain businesses, including the “Triwest group.”
Rowland visited the property and met Ostayan. Rowland asked
Ostayan if there was anything he should know about the
property, and Ostayan told him “it was a simple build-out, that
everything needed to complete the project was there, that
someone was going to make a lot of money, and that the only
reason he was selling the property was because it was too far for
him to travel.” Rowland reviewed the architectural plans for the
property, which did not include mechanical, electrical or
plumbing specifications. Rowland also went to the city’s Building
and Safety Department to review the complete file. During his
inspection of the city’s files, he did not see any civil or structural
plans or anything that suggested the existence of any road work
requirements tied to the project.
On October 1, 2014, Ostayan countered DAS Fund’s offer.
The counteroffer listed the sale price as $1.41 million and
included additional demands regarding escrow and deposit.
6
DAS Fund made a second counteroffer on October 2, 2014,
listing additional demands: “–Sales price to be $1,300,000 cash
[¶] –22 day escrow [¶] –17 days to complete buyers
investigations.” Ostayan again countered, asking that escrow
close on or before October 24, 2014, and “Assignee to be
designated with 1 day from opening escrow.” In a final
counteroffer, DAS Fund stated, “Buyer to complete investigations
and remove all contingencies on/before October 24, 2014,” and
“[c]lose of escrow date to be on/before October 27, 2014.”
Ostayan and DAS Fund also executed a “Real Estate
Transfer Disclosure Statement” wherein DAS Fund’s real estate
agent, Thomas, added the following term: “Buyer is strongly
urged to conduct inspections including but not limited to . . .
permits/finals with the City of RPV to Buyer’s complete
satisfaction.” The document was submitted with a “Buyer’s
Inspection Waiver,” which again advised DAS Fund that “[y]ou
have an affirmative duty to exercise reasonable care to protect
yourself, including discovery of the legal, practical and technical
implications of disclosed facts, and to investigate and verify
information and facts that you know or that are within your
diligent attention.”
During escrow, DAS Fund continued to investigate the
property. In an e-mail to Brauchli dated October 13, 2014,
Thomas included a link to the file at the city. Thomas wrote,
“**Disclaimer**: I recommend that a member of your team go to
the city to verify that the entire file was copied.”
On October 24, 2014, Thomas sent Ostayan an e-mail,
stating, “I want to let you know that the buyers have been
working very hard inspecting the property and getting as many
people as they can to go over the work that has been done. I met
7
with them yesterday at the site and they are still diligently
reviewing a few items that need a closer look.” Thomas asked
Ostayan for an extension of the escrow period, stating, “I’m sure
you understand that this project requires a lot more investigation
than a normal home would . . . .”
Thomas later made copies of the Planning Department’s
file for the property. On October 31, 2014, Thomas sent Rowland
an e-mail with links to “Crownview Plans” and the “City File.” A
few days later, Thomas sent Rowland another e-mail with a
Dropbox link titled “2950 Crownview Plans.”
On November 3, 2014, Ostayan and Brauchli on behalf of
DAS Fund executed an “Addendum.” The addendum added the
following terms:
1. Buyer to request a $25,000 price reduction in lieu of
missing items and repairs. Final purchase price to be $1,275,000.
2. Buyer to release their deposit through escrow to seller
upon acceptance of all terms.
3. Final closing date to be on or before November 7, 2014.
4. Seller to provide buyer the following documentation:
A. Full set of original approved building plans and
working drawings.
B. Copy of building cards.
C. Active building permits.
D. Building and permit applications.
E. Subcontractor and their contact information.
5. Seller to disclose of any nonrecorded mechanic liens.
6. Final purchasing entity to be Triwest Development LLC
(Triwest Development).
7. Buyer hereby removes all contingencies upon seller
acceptance of all said terms.
8
Blake Overend, the managing member of OBC Pacifica
Investments, LLC, a general partner of Triwest Homes, oversaw
the closing of Triwest Homes’ purchase of the property.2 Prior to
authorizing the closing of the purchase of the property, Blake
received an e-mail from Rowland confirming that Rowland
reviewed the city’s Building and Safety Department files and
spoke with a Building and Safety representative. Rowland
advised Blake that based on the review and conversation, all
required permits were in place and that he saw no problems.
Blake also reviewed the plans that Ostayan had provided and
saw no reference to a road widening requirement or other concern
that made the property not worth purchasing. During escrow
Triwest Homes had another general contractor, Robert Jayne,
“inspect[] the property and ma[k]e a bid to complete
improvements. At no time did anyone mention [to Jayne] that
any widening of the access road to the property would be
required.”
On November 4, 2014, Thomas sent Ostayan an e-mail,
“Now that the buyers have released the deposit and are gearing
up to close on Friday, they have requested a copy of the
documentation, and then originals be left at the site upon close.”
Specifically, Thomas requested, “-full set of plans, [¶] -copy of
building cards, [¶] -active building permits, [¶] -building and
permit applications, [¶] -subcontractor list and their contact
info.” On November 5 and 6, 2014, Ostayan sent scanned
documents to Thomas at Thomas’s request.
2 Blake Overend and Bryce Overend will be referred to by
their first names due to their common last name. No disrespect
is intended.
9
On November 5, 2014, a document entitled “Escrow
Amendment” identified “Triwest Development LLC” as the
assignee of DAS Fund. The document specified that it “shall not
have any effect until signed by all parties as indicated below.”
Three signatures were required: Ostayan on behalf of Arden;
Blake on behalf of Triwest Development; and an authorized
signer on behalf of DAS Fund. This escrow amendment was
signed by Ostayan but was not signed by Triwest Development or
DAS Fund.
A second document captioned “Escrow Amendment—
Revised” dated November 5, 2014, identified Triwest Homes as
the assignee of DAS Fund. The escrow amendment specified that
it “shall not have any effect until signed by all parties as
indicated below.” Again, three signatures were required:
Ostayan on behalf of Arden, Blake on behalf of Triwest Homes,
and an authorized signer on behalf of DAS Fund. The “Escrow
Amendment—Revised” was signed by Blake as representative for
Triwest Homes, and by a representative of DAS Fund. It was not
executed by Ostayan.
On November 5, 2014, Ostayan signed a grant deed on
behalf of Arden, deeding the property to Triwest Homes.
Events following the close of the property sale
On November 13, 2014, Bryce, acting on behalf of Triwest
Development, executed a “Receipt for Reports No. 1.” The
document indicated it was associated with “the terms and
conditions of the California Residential Purchase Agreement . . .
between Triwest Development LLC (‘Buyer’) and Arden
Management, LLC (‘Seller’).” It also indicated that buyer
acknowledged receipt of “Pages 1-247 copied from City of RPV file
given as a courtesy only and buyer to verify all to buyer’s
10
complete satisfaction.” The document specified “[t]hese Reports
should not be considered as a substitute for obtaining your own
inspections and Reports covering the same items and any other
matter affecting the value and desirability of the property.”
On December 4, 2014, Jayne contacted Brauchli, to
determine if Ostayan had provided “the stamped plans from the
seller” so the needed inspection could happen before commencing
further construction at the property. Brauchli advised that the
plans were left in his office on December 5, 2014. Once Jayne
had possession of the “stamped” plans, he arranged for an
inspection on or about December 9, 2014. At that time, the city
inspector, DeFazio, asked if Jayne was aware of the road
widening that the fire department was requiring. Jayne was not.
The inspector went through the plans and advised Jayne that two
pages pertaining to the road widening were missing. Following
the meeting, Jayne contacted Rowland and informed him of the
information he received.
Jayne’s December 9, 2014, e-mail to Rowland stated: “the
inspector today said we are responsible for widening the road 3’
all the way from the house to Crown view, and that it’s an item
from the Fire Dept. I haven’t verified, as I will let you take it
from here. I find it strange that we weren’t provided this
information previously, as the city inspector said [Ostayan] was
aware of it. The length of the road widening would be about 245’
feet, with a retaining wall. When you want to, we can address
the items with the Fire Dept. I checked the files at the city, and
they don’t have a copy of the fire dept plan, only the original
plans for building.” Triwest Homes claims that this was the first
time it heard of the road widening requirement.
11
On February 9, 2015, Jayne wrote Schuricht asking for a
complete set of plans for the property. Schuricht sent Jayne a
complete set, including the road widening plans, on February 12,
2015. This was the first time Jayne saw the road widening plan.
Brauchli testified that he relied on the “incomplete plans
that Mr. Ostayan provided to Mr. Thomas that he
misrepresented were complete plans but omitted plans pertaining
to the road widening required by the LA Fire Department.”
Brauchli testified that “[i]f I had known the truth about the road
widening requirement, I would not have agreed to purchase the
property or to the Addendum.”
Triwest Homes could not complete construction at the
property without complying with the road widening requirement.
Such compliance created more than four years of additional work
and cost approximately $1.5 million.
In September 2017, Thomas and Bryce on behalf of Triwest
Development executed a “Release of Claims Re Crownview Drive”
(release), stating, “In consideration of his cooperation in the
assertion of claims against Sam Ostayan and his affiliated
companies, . . . Triwest Development, LLC, . . . hereby fully,
completely, and finally releases and discharges Justin
Thomas . . . from and against any and all claims . . . arising from
or related to Triwest’s purchase of the Crownview property from
Ostayan . . . .”
PROCEDURAL HISTORY
The complaint
On October 17, 2017, Triwest Development filed a
complaint against Ostayan alleging (1) breach of contract, (2)
breach of covenant of good faith and fair dealing, (3) fraud, (4)
12
negligent misrepresentation, (5) rescission and restitution, and
(6) common counts arising out of the purchase of the property and
Ostayan’s alleged failure to deliver a full set of plans to Triwest
Development prior to the close of escrow.
Stipulations regarding the parties
After the complaint was filed, the parties entered a
stipulation that Ostayan agreed to “assume responsibility for all
contract obligations and liabilities of Arden alleged in the
[c]omplaint to the extent that any such obligations or liabilities
exist,” thus relieving Arden of any duty to participate in the
action.
In December 2017, the parties executed a joint stipulation
to “substitute Triwest Homes II, LLP [sic] as Plaintiff.” (Boldface
and capitalization omitted.) The stipulation provided that “it has
been determined that the named Plaintiff, Triwest Development
LLC, is not the title holder to the real property that is the subject
of this action, and the action involves title to the property, such
that it is necessary and proper to substitute the record title
holder, Triwest [Homes], a Delaware limited partnership, in its
place, the defendants will not be prejudiced by the substitution.”
On January 24, 2018, Triwest Development filed a motion
to substitute Triwest Homes as plaintiff and sought an order
relating substitution back. The motion was brought pursuant to
Code of Civil Procedure section 473.3 In its motion, Triwest
Homes stated, “Based on the contract documents, Triwest
3 Code of Civil Procedure section 473, subdivision (a)(1)
permits the court to “allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any
other respect . . . .”
13
Development, LLC was named as the Plaintiff in this action.
However, during the preparation of responses to Defendants’
initial discovery, it was determined that Triwest Homes II, LP, is
the actual assignee of the contract and title holder of the
property, and thus the real party in interest in the claims
asserted in the Complaint.” The motion noted that while the
parties had stipulated to this change, the court had not yet
entered an order.
The court signed and filed the stipulation and order on the
stipulation on February 15, 2018. On March 9, 2018, the court
held a hearing on Triwest Development’s unopposed motion for
substitution of Triwest Homes as plaintiff. After reviewing the
motion papers, including the stipulation and prior order granting
the requested substitution, the court entered a ruling granting
the motion as the order of the court. In its discussion, the court
noted that “Plaintiff has presented evidence to show that the
actual assignee of the contract and title holder of the property is
named ‘Triwest Homes II, LP.’” Further, the plaintiff
“adequately demonstrated that an order to substitute Triwest
Homes II, LP as plaintiff in this action and for an order relating
the substitution back to the filing date of the complaint is
proper.” Thus, the court ordered “that Triwest Homes II, LP is
substituted as plaintiff in this action in the place of Triwest
Development, LLC.” The court further ordered that the
substitution relate back to the filing date of the original
complaint.
Motion for Summary Judgment
On January 10, 2020, Ostayan filed a motion for summary
judgment or, in the alternative, motion for summary adjudication
(MSJ). As to the contract causes of action, Ostayan primarily
14
argued that Triwest Homes lacked standing to assert the causes
of action alleged because Triwest Homes was never assigned the
purchase agreement. Ostayan also argued that Triwest Homes
waived any alleged breach and that Triwest Homes “was not
harmed by any alleged breach as it had notice of the Road
Widening Requirements prior to close of escrow.”
As to the third cause of action for fraud, Ostayan argued
that DAS Fund never assigned Triwest Homes its right to the
fraud claim. Ostayan further argued that because Triwest
Homes was never assigned the purchase contract, and because no
representations were made to it, and Triwest Homes did not rely
on any alleged representations made by Ostayan, the fraud cause
of action failed. Ostayan argued that the cause of action for
negligent misrepresentation failed for the same reasons. In
addition, Ostayan argued that the negligent misrepresentation
cause of action failed because of DAS Fund’s use of the “as is,
where is” language and DAS Fund’s affirmative duty to
investigate.
As to the causes of action for restitution and rescission,
Ostayan argued that these were not causes of action but
remedies, which were irrelevant due to the failure of Triwest
Homes’ substantive causes of action.
As to the sixth cause of action for common counts, Ostayan
similarly argued that this cause of action failed because it was
based on the same facts as the previous causes of action, which
also failed.
In opposition, Triwest Homes argued that Ostayan could
not now avoid the stipulation and court order substituting
Triwest Homes as the proper plaintiff in the matter. In addition,
Triwest Homes argued that Ostayan “cannot now challenge the
15
propriety of the assignment to Triwest [Homes], as affiliate of the
named assignee . . . .” Further, Triwest Homes argued that
Ostayan deeded the property to it without objection and could not
challenge the authenticity of the deed. As to Ostayan’s argument
regarding constructive notice, Triwest Homes responded that
constructive notice is not a contract defense and that the issue
involved numerous disputed facts.
The evidence Triwest Homes used to oppose the issue of
standing were the grant deed to Triwest Homes, the order on the
stipulation to substitute the plaintiff, and the order granting the
motion to substitute the plaintiff.
On June 29, 2020, the trial court issued a written order
granting Ostayan’s MSJ in full. The court noted that on March 9,
2018, it granted a motion to substitute Triwest Homes as the
plaintiff. Regarding its language that “Triwest Homes was the
assignee under the contract,” the court stated “Plaintiff’s counsel
presented the deed to the Palos Verdes property as evidence that
Triwest Homes [] was the actual assignee under the contract.
Plaintiff’s counsel did not present evidence of an actual contract
where Triwest Development, LLC or DAS Fund assigned to
Plaintiff Triwest Homes the rights under the contract.”
The trial court noted that the existence of a contract
between the parties was an essential element of the causes of
action for breach of contract and breach of the covenant of good
faith and fair dealing. The court found Ostayan had presented
evidence “that DAS Fund did not separately assign its rights
under the purchase agreement to another entity, including
Triwest Development.” Thus, for the purposes of summary
judgment, Ostayan “met his burden establishing that the
purchase agreement was not assigned to Plaintiff.” Without
16
evidence of an assignment, Triwest Homes’ contract claims failed.
Alternatively, the trial court also found Ostayan met its burden
of showing that Triwest Homes had constructive knowledge of
the plans such that Ostayan’s failure to provide the plans did not
cause Triwest Homes damage, and Triwest Homes failed to refute
this claim.
As to the fraud and negligence causes of action, the trial
court held that since Triwest Homes failed to allege it was
assigned the tort claims, Ostayan was entitled to summary
adjudication of these two causes of action.
As to restitution and rescission, the trial court agreed with
Ostayan these were in fact remedies, and because Triwest
Homes’ underlying causes of action had no merit, Ostayan was
entitled to summary adjudication as to these causes of action.
As to the common counts, the trial court found that because
Triwest Homes failed to meet its burden on the previous causes of
action, Ostayan was entitled to summary adjudication on this
cause of action as well.
On July 15, 2020, the trial court entered judgment in favor
of Ostayan and against Triwest Homes.
On September 9, 2020, Triwest Homes filed its notice of
appeal from the judgment.
Attorney fees
On September 14, 2020, Ostayan filed a motion for attorney
fees pursuant to Code of Civil Procedure sections 1021, 1032,
1033.5, Civil Code section 1717, and the terms of the purchase
agreement. Ostayan requested attorney fees of $360,965.50.
Triwest Homes opposed the motion. After considering the briefs
and oral arguments, the trial court granted the motion in full.
17
On April 15, 2021, Triwest Homes appealed from the attorney fee
order.
In July 2021, we granted Triwest Homes’ motion to
consolidate the appeals.
DISCUSSION
I. Applicable law and standard of review
“‘A trial court properly grants a motion for summary
judgment only if no issues of triable fact appear and the moving
party is entitled to judgment as a matter of law.’” (Wilson v. 21st
Century Ins. Co. (2007) 42 Cal.4th 713, 720; see Code Civ. Proc.,
§ 437c, subd. (c).) “‘The moving party bears the burden of
showing the court that the plaintiff “has not established, and
cannot reasonably expect to establish,”’ the elements of his or her
cause of action.” (Wilson, at p. 720, quoting Miller v. Department
of Corrections (2005) 36 Cal.4th 446, 460.)
“If a defendant satisfies this initial burden, the burden
shifts to the plaintiff to present evidence demonstrating there is a
triable issue of material fact.” (Dix v. Live Nation Entertainment,
Inc. (2020) 56 Cal.App.5th 590, 604 (Dix); see Code Civ. Proc.
§ 437c, subd. (p)(2).)
“‘We review a grant of summary judgment . . . de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party or a
determination a cause of action has no merit as a matter of law.’”
(Dix, supra, 56 Cal.App.5th at p. 604.) Any doubts as to the
propriety of granting the motion should be resolved in favor of
the party opposing the motion. (Ibid.) “‘“We liberally construe
the opposing party’s evidence and resolve all doubts in favor of
the opposing party. [Citation.] We consider all evidence in the
18
moving and opposition papers, except that to which objections
were properly sustained.”’” (Ibid.) Generally, in reviewing a
summary judgment, we “consider only those facts before the trial
court, disregarding any new allegations on appeal.” (American
Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d
1271, 1281.) “Thus, possible theories that were not fully
developed or factually presented to the trial court cannot create a
‘triable issue’ on appeal.” (Ibid.)
II. Triwest Homes’ claims fail as a matter of law as there
was no valid assignment of the purchase agreement
or tort claims
Triwest Homes’ breach of contract causes of action were
based on “the terms of the applicable written contract, which was
made between [Ostayan] and DAS Fund I, LLC.” Triwest Homes
alleged that “Plaintiff is the permitted assignee of DAS.” As the
alleged assignee of DAS Fund, Triwest Homes asserted that “the
close of escrow was subject to various conditions precedent,
including, inter alia, delivery to Plaintiff of a ‘Full set of original
approved building plans and existing drawings.’ Triwest Homes’
allegation that it was the assignee of the purchase agreement
between Ostayan and DAS Fund is not supported by any
competent evidence in the record.
In the record two different documents identifying different
assignees exist.4 Neither is fully executed by the necessary
parties. A document entitled “Escrow Amendment” identified
“Triwest Development LLC” as the assignee of DAS Fund. The
document specified that it “shall not have any effect until signed
4 Triwest Homes does not dispute that Triwest Homes and
Triwest Development are distinct legal entities.
19
by all parties as indicated below.” Three signatures were
required: Ostayan on behalf of Arden, Blake on behalf of Triwest
Development, and an authorized signer on behalf of DAS Fund.
This escrow amendment was not signed by Triwest Development
or DAS Fund.
A second document captioned “Escrow Amendment—
Revised,” identified Triwest Homes as the assignee of DAS Fund.
The escrow amendment specified that it “shall not have any effect
until signed by all parties as indicated below.” Again, three
signatures were required: Ostayan on behalf of Arden, Blake on
behalf of Triwest Homes, and an authorized signer on behalf of
DAS Fund. The “Escrow Amendment—Revised” was not
executed by Ostayan.
As neither of these escrow amendments was signed, as
required by the contractual language, by all parties, neither was
effective to transfer DAS Fund’s rights under the purchase
agreement, including DAS Fund’s right to receive a full set of
original approved building plans and existing drawings. Triwest
Homes makes no argument that either of these partially executed
assignments, standing alone, created a valid legal assignment of
DAS Fund’s rights in contract or tort.
A necessary element of Triwest Homes’ breach of contract
claim is the existence of a contract between the parties. (Reichert
v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) A contractual
relationship between the parties is also a necessary element of
Triwest Homes’ cause of action for breach of the covenant of good
faith and fair dealing. (Waller v. Truck Ins. Exchange, Inc. (1995)
11 Cal.4th 1, 35.) Because the evidence before the trial court
showed that no such contractual relationship between the parties
existed, the contractual claims fail as a matter of law.
20
Triwest Homes’ causes of action for fraud and negligent
misrepresentation fail for the same reason—the lack of a valid
assignment of DAS Fund’s tort claims. In its cause of action for
fraud, Triwest Homes alleged that Ostayan made
misrepresentations “to Plaintiff and its representatives” prior to
and during the escrow period, between approximately
September 2014 through October 2014.5 Specifically, Ostayan
allegedly misrepresented “(1) his reason for selling the property,
(2) that defendants had obtained all required permits, (3) that all
work had been inspected and approved by the City, and (4) the
existence, scope and expense of complying with the Road
Widening Requirements.” Such representations were made to
DAS Fund during the escrow period. As there was no valid
assignment of the purchase agreement at any time during the
negotiation and escrow process, the alleged misrepresentations
were made to DAS Fund alone.
DAS Fund had the right to assign its fraud claim under the
circumstances. (Wikstrom v. Yolo Fliers Club (1929) 206 Cal.
461, 463 [holding that among the rights of action held to be
assignable are “causes of action arising from torts which affect
the estate rather than the person of the individual who is
injured”].) However, an assignment of DAS Fund’s tort claims
was required to be “distinct from an assignment of . . .
contractual rights.” (Heritage Pacific Financial, LLC v. Monroy
(2013) 215 Cal.App.4th 972, 985.) There is no evidence that DAS
5 The complaint appears to contain a typographic error
suggesting that the Real Estate Disclosure Statement and the
Seller Property Questionnaire were completed in October 2016.
The record shows that these documents were executed in October
2014, prior to the sale closing.
21
Fund ever assigned its fraud claim, or any other tort claim, to
Triwest Homes or any other entity. Therefore Triwest Homes
has no standing to assert the fraud claim, and the claim fails as a
matter of law.
As there is no valid assignment of any tort claim from DAS
Fund to Triwest Homes, Triwest Homes’ cause of action for
negligent misrepresentation fails as well.
As to its causes of action for rescission and restitution,
Triwest Homes concedes that these are remedies, not
independent causes of action, thus Triwest Homes could only
pursue them if the MSJ were reversed. As the MSJ is affirmed
on the grounds that Triwest Homes was never assigned either
the contractual or tort claims it seeks to pursue, we decline to
discuss these remedies.6
III. The stipulation and court order
In support of its position that it was the proper assignee of
the purchase agreement between Ostayan and DAS Fund,
Triwest Homes points to the stipulation and court order
substituting Triwest Homes in lieu of Triwest Development as
the plaintiff. Neither document supports Triwest Homes’
position that it was the assignee of the purchase agreement
between Ostayan and DAS Fund.
The stipulation between the parties, filed February 15,
2018, provides: “it has been determined that the named Plaintiff,
Triwest Development, LLC, is not the title holder to the real
property that is the subject of this action, and the action involves
title to the property, such that it is necessary and proper to
6 Triwest Homes has failed to separately address its cause of
action for common counts, therefore we decline to address it.
22
substitute the record title holder, Triwest [Homes], a Delaware
limited partnership, in its place, the defendants will not be
prejudiced by the substitution; . . . the parties hereby stipulate to
the substitution of [Triwest Homes] as the Plaintiff in this
action.” The stipulation contains no language suggesting that
Ostayan agreed that Triwest Homes was the legal assignee of the
purchase agreement or DAS Fund’s tort claims against Ostayan.
Triwest Homes makes much of Ostayan’s assertion that he
was not prejudiced by the substitution. However, as the trial
court noted, Ostayan’s assertion that he was not prejudiced by
the substitution in no way waived his right to argue the
assignment issue. In fact, because no valid assignment exists in
the record, it made no difference to Ostayan whether Triwest
Homes or Triwest Development was pursuing the action. Either
way, Ostayan could have successfully argued that the plaintiff
lacked a valid assignment of rights.
On March 9, 2018, the trial court entered an order
substituting Triwest Homes as plaintiff in this action. In the
“Discussion” section of the order, the trial court wrote:
“Plaintiff has presented evidence to show that the
actual assignee of the contract and title holder of the
property is named ‘Triwest Homes II, LP.’ (Decl.,
David J. Myers, ¶ 3). The substitution does not give
rise to a wholly distinct and different legal obligation
against defendants. Therefore, plaintiff has
adequately demonstrated that an order to substitute
Triwest Homes II, LP as plaintiff in this action and
for an order relating the substitution back to the
filing date of the complaint is proper.”
Based on the stipulation and language of the court order,
Triwest Homes claims that “[n]o need existed for Triwest Homes
23
to produce evidence of an assignment,” as the issue had been
settled.
While the order contained language that Triwest Homes
had presented evidence that it was the “actual assignee” of the
purchase agreement, the order made no findings of fact regarding
the legal assignee of that agreement. The order itself related
only to substitution of the plaintiff, stating: “The court orders
that Triwest Homes II, LP is substituted as plaintiff in this
action in the place of Triwest Development, LLC. The court
further orders that the substitution relates back to the filing date
of the original Complaint.”
As set forth above, neither the stipulation nor the court
order presents a factual finding regarding Triwest Homes’ legal
status as assignee of the purchase agreement at issue. To the
extent that the court mentioned that there was evidence that the
assignee was Triwest Homes, “[e]xpressions of a judge during the
[proceedings] cannot be considered for the purpose of
contradicting deliberate findings of fact and conclusions of law
that he subsequently makes and files.” (Martin School of
Aviation, Inc. v. Bank of America (1957) 48 Cal.2d 689, 695; see
Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268
[“a trial judge’s prejudgment oral expressions do not bind the
court or restrict its power to later declare final findings of fact
and conclusions of law in the judgment”].) To the extent that the
statement in the prejudgment order substituting Triwest Homes
as plaintiff indicating that Triwest Homes was assignee of the
purchase agreement can be considered a factual finding, it is not
supported by any evidence in the record. Triwest Homes had the
burden of presenting evidence of such an assignment. Without
evidence of such an assignment, Triwest Homes’ claims fail.
24
IV. Ratification
Triwest Homes argues that Ostayan ratified the
unexecuted assignment when he executed the grant deed
transferring the property to Triwest Homes.7 In support of this
argument, Triwest homes cites Chatfield v. Continental Bldg. etc.
Assn. (1907) 6 Cal.App. 665 (Chatfield). Chatfield involved a
property owner’s assignment of the right to sell his property. (Id.
at p. 666.) The property owner settled his mortgage with the
defendant by “conveying his title in the land to defendant,” in
exchange for the defendant’s written agreement to allow the
plaintiff-assignees to sell the property on commission. (Ibid.)8
7 “. . . California law provides that ratification generally is an
affirmative defense and must be specially pleaded by the party
asserting it.” (Glaski v. Bank of America (2013) 218 Cal.App.4th
1079, 1097, fn. 16.) Although its complaint does not allege
ratification, Triwest Homes argues that there was no need for the
complaint to allege ratification when it realized that Triwest
Homes was the proper plaintiff during discovery and because
Ostayan did not object to the substitution of Triwest Homes as
plaintiff. Triwest Homes also argues generally that summary
judgment should not be granted on technicalities in this matter
because it “could have amended the complaint.” Triwest Homes
fails to point to any suggestion in the record that it sought leave
to amend its complaint at any time, nor does it provide legal
authority suggesting that, in the absence of a specific allegation
in the complaint, its theory of ratification is viable at this stage of
the litigation. Despite Triwest Homes’ failure to plead
ratification as an affirmative defense, or seek leave to amend its
complaint, we briefly address the merits of the ratification
theory.
8 The written agreement stated: “‘We hereby agree to give
you the exclusive sale of property located in Novato . . . until
25
When the assignees sold the property, the defendant refused to
convey it. (Chatfield, at p. 667.) Under those very different facts,
the trial court found that the defendant “‘ratified and confirmed
said assignment of said contract and consented thereto, and
authorized and empowered said plaintiffs to proceed under said
contract to sell said real property.’” (Id. at p. 669.) The case does
not suggest that the signing of a grant deed ratifies an
assignment of tort claims or contractual obligations under a
purchase agreement.
Nor does the grant deed itself purport to convey any rights
other than to grant to Triwest Homes “real property in the City of
Rancho Palos Verdes,” with a detailed description of such
property.
Triwest Homes has failed to show that its theory of
ratification is legally tenable.
V. Judicial estoppel and equitable estoppel
Triwest Homes asserts that the principle of judicial
estoppel is applicable to prevent the trial court’s purported
failure to enforce the parties’ stipulation. Triwest Homes cites
People v. Castillo (2010) 49 Cal.4th 145, 155, for the proposition
that enforcing a stipulation supports the dual goals of judicial
estoppel to (1) maintain the integrity of the judicial system and
(2) protect parties from an opponent’s unfair strategies. The
doctrine of judicial estoppel “‘prohibits a party from asserting a
position in a legal proceeding that is contrary to a position he or
April 1, 1903. Should you succeed in selling this property or any
portion of it, at an approximate value of over $ 5,160.10, the
amount due this Association, same may be retained by you as a
commission for said sale.’” (Chatfield, supra, 6 Cal.App. at
p. 666.)
26
she successfully asserted in the same or some earlier
proceeding.’” (Kerley v. Weber (2018) 27 Cal.App.5th 1187, 1195.)
Triwest Homes asserts that the dual goals of judicial estoppel are
served in this case by preservation of the stipulation to substitute
Triwest Homes as the plaintiff.
The elements for the application of judicial estoppel are
“‘(1) the same party has taken two positions; (2) the positions
were taken in judicial or quasi-judicial administrative
proceedings; (3) the party was successful in asserting the first
position (i.e., the tribunal adopted the position or accepted it as
true); (4) the two positions are totally inconsistent; and (5) the
first position was not taken as a result of ignorance, fraud, or
mistake.’” (Owens v. County of Los Angeles (2013) 220
Cal.App.4th 107, 121.) Triwest Homes fails to address these
elements in its opening brief or explain how they apply to this
case. In considering these elements in connection with the facts
of this case, we conclude the doctrine does not apply. There is no
evidence in the record that Ostayan ever agreed that Triwest
Homes was the legal assignee of the purchase agreement or any
tort claims. Ostayan only stipulated that Triwest Homes could
be substituted as the plaintiff in this action. No language in the
stipulation suggests that Ostayan was stipulating to the fact that
Triwest Homes was assignee of the purchase agreement.
Triwest Homes’ argument fails to recognize that the
stipulation and order did nothing more than substitute Triwest
Homes as plaintiff in this action. It did not resolve any legal or
factual issues presented in the lawsuit, including whether or not
Triwest Homes was the valid assignee of the purchase agreement
or DAS Fund’s tort claims. In contrast to Triwest Homes’
27
position, the stipulation was enforced at all times, and Triwest
Homes was permitted to be the plaintiff in the action.
Triwest Homes further argues that a similar analysis
applies under principles of equitable estoppel. Under the
doctrine of equitable estoppel, “‘“[w]henever a party has, by his
own statement or conduct, intentionally and deliberately led
another to believe a particular thing true and to act upon such
belief, he is not, in any litigation arising out of such statement or
conduct, permitted to contradict it.”’” (Moncada v. West Coast
Quartz Corp. (2013) 221 Cal.App.4th 768, 782.) Triwest Homes
argues that after deeding the property to Triwest Homes and
later agreeing to allow Triwest Homes as the plaintiff in this
action, Ostayan cannot contradict that conduct by arguing lack of
standing to avoid trial of his breaches of the purchase agreement.
Ostayan’s acts of deeding the property to Triwest Homes
and agreeing to substitute Triwest Homes as plaintiff in this
action are not equivalent to accepting Triwest Homes as the legal
assignee of the purchase agreement or DAS Fund’s tort claims.
As set forth above, the deed transferred the property—there is no
language suggesting any other legal rights were transferred. The
stipulation is similarly narrow. Through the stipulation,
Ostayan agreed only that Triwest Homes was “the record title
holder” to the property and that Ostayan would not be prejudiced
by the substitution. By agreeing to the substitution, Ostayan did
not waive any legal arguments regarding the merits of Triwest
Homes’ complaint. Because Ostayan has not made any
contradictory statement or taken any contradictory action, the
doctrine of equitable estoppel does not apply.
28
VI. Constructive notice and Ostayan’s alternative
theories
The trial court granted the MSJ on the alternative ground
that Triwest Homes had constructive notice of the road widening
requirement based on the plans available at the city. Because we
have determined that the MSJ was properly granted on the
ground that Triwest Homes was not the legal assignee of the
purchase agreement nor any tort claims, we need not address the
constructive notice theory or any alternative theories upon which
Ostayan relied and which the trial court rejected. (Vulk v. State
Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 254 [“we may
affirm on any basis supported by the record and the law”].)
VII. Attorney fees
Triwest Homes’ sole argument on appeal challenging the
trial court’s award of attorney fees is that reversal of the
judgment also requires reversal of the attorney fee award.
Because we have affirmed the judgment, we also affirm the
award of attorney fees in favor of Ostayan.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs
of appeal.
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. HOFFSTADT, J.
29