Tadevosyan v. Superior Court CA2/5 ( 2022 )

Filed 12/9/22 Tadevosyan v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ROZIK TADEVOSYAN, B319714
Petitioner, (Los Angeles County
Super. Ct.
v. No. 21STCV20845)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
SYLVIA ROSALES, as Trustee, etc.,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Stephen I.
Goorvitch, Judge. Petition granted.
Yu Mohandesi, Pavel Ekmekchyan; KP Law and Zareh A.
Jaltorossian for Petitioner.
No appearance for Respondent.
Arturo Santana for Real Party in Interest.
INTRODUCTION
In granting a motion to expunge a lis pendens, the trial
court found that plaintiff Rozik Tadevosyan, who contracted to
buy real property from real party in interest, trustee Sylvia
Rosales, had not established the probable validity of a claim for
specific performance. The court found the underlying purchase
agreement—which failed to set a deadline for performance,
stating only that the close of escrow would occur after March 1,
2014—was unenforceable as uncertain. We conclude the
agreement was not uncertain. Where an agreement fails to
specify a deadline for performance, a “reasonable time” for
performance may be implied.
Without specifying the date of a reasonable time for
performance here, the court determined that it had expired,
thereby imposing a bar to the claim for specific performance. We
conclude that the court conflated the expiration of the
“reasonable time” for performance with the expiration of the time
to file suit. A lawsuit is not time barred simply because it was
filed after an implied “reasonable time” for performance: the
expiration of a “reasonable time” for performance marks the point
at which the statute of limitations begins to run, and not when it
ends. Under the facts of this case, where the seller repeatedly
asked to extend the time for the buyer’s performance, and then,
without notice, attempted unilaterally to withdraw from the sale,
Tadevosyan has amply demonstrated the probable validity of her
claim for specific performance. We grant the petition for writ of
mandate.
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BACKGROUND
Real party/defendant Sylvia Rosales, as Trustee of the
Rodriguez Living Trust, owns property at 1919 Rosalia Road, Los
Angeles (the Property). In 2013, the Property was owned by her
grandfather, Refugio Rodriguez, as then-Trustee. The parents of
Ruben Sukiasyan live next door to the Property. Sukiasyan is
the son-in-law of Tadevosyan.
After noticing the Property listed for sale, Sukiasyan
initiated discussions with Rosales and Rodriguez to inquire about
purchasing the Property. Rodriguez and Tadevosyan entered
into an agreement (the Purchase Agreement) whereby
Tadevosyan agreed to buy the Property for $650,000. The
agreement, which appears on a standard form titled
“CALIFORNIA RESIDENTIAL PURCHASE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS” and bears a date of
April 19, 2013, provides that “CLOSE OF ESCROW shall occur
on AFTER MARCH 1, 2014.” Sukiasyan sent Rosales the draft
agreement on April 24, 2013. Rosales responded that she wanted
to have the agreement reviewed by her attorney. She got back to
Sukiasyan on May 17, 2013 and agreed to execute the Purchase
Agreement. The Purchase Agreement is signed by Rodriguez, for
the seller, dated May 17, 2013, and by Tadevosyan, for the buyer,
dated July 1, 2013.
On May 17, 2013, Sukiasyan handed Rosales and
Rodriguez a cashier’s check for the $10,000 deposit required by
the Purchase Agreement. Rosales told Sukiasyan she and
Rodriguez were looking to move to San Bernardino where some
family members lived. After several months, Rosales said she
was having issues with her credit but she would have a friend
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cosign and was actively looking to buy another home. According
to Sukiasyan, Rosales “always had some explanation for the
continued delays and continuously promised that she and
Mr. Rodriguez were going to move out soon.” Sukiasyan
responded that he would work with them to ensure they had a
place to move before Sukiasyan would push to complete the sale.
In March 2017, Sukiasyan asked Rosales to execute an
addendum, which Rosales’s sister Maggie Rosales signed on
March 27, 2017, under power of attorney for Rodriguez. The
addendum “[e]xtend[ed] the original agreement dated 4/19/2013
until Sylvia Rosales, Rodriguez family finds a property so they
can move out.”
Later in 2017, Rosales asked Sukiasyan if Tadevosyan
would pay an additional $50,000 toward the purchase price and
Tadevosyan agreed, on the condition they go through a real
estate broker and record a document on the title to reflect the
additional amount. Rosales agreed and on September 18, 2017,
Rosales and Sukiasyan met with a real estate broker. The broker
told Rosales she needed a note from Rodriguez’s physician saying
he was mentally incompetent, as that was the only way Rosales
could make decisions for him. Rosales said she would work on it.
According to Sukiasyan, Rosales was aware Tadevosyan
passed up several opportunities to buy other properties because
they had an agreement to buy the Property that is “literally
attached to [Sukiasyan’s] parents’ house.” Then Rosales’s father,
who lived with Rodriguez and Rosales at the Property, passed
away. Sukiasyan agreed to give them more time at the Property
so they could grieve.
Over time, Sukiasyan noticed Rodriguez’s health was
declining and paramedics were at the Property on a regular
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basis. When Sukiasyan followed up, Rosales said she was
“dealing with a lot” and needed more time. In early 2021,
Rosales and Rodriguez packed up and left the Property without
providing any information to Sukiasyan. The next day, several
people came by the Property and said they were contractors who
are going to buy and remodel the Property. Sukiasyan tried to
reach Rosales, but she ignored him. At some point, Rodriguez
passed away.
On June 3, 2021, Tadevosyan submitted a complaint
against Rosales, as Trustee of the Rodriguez Living Trust,
alleging claims for quiet title, specific performance, and breach of
contract. Tadevosyan also recorded a notice of lis pendens on the
Property.
Rosales submitted a motion to compel arbitration on
November 29, 2021, followed by a motion to expunge lis pendens
on January 24, 2022. Tadevosyan filed an opposition to the
motion to expunge the lis pendens, supported by Sukiasyan’s
declaration. The trial court held a hearing on the motions on
March 14, 2022 and then granted both motions in a written
minute order on March 15, 2022.1
Tadevosyan timely filed a writ petition challenging the
order expunging lis pendens. After receiving preliminary
opposition and a reply to the preliminary opposition from the
parties, we issued an order to show cause why relief should not
be granted. Rosales did not file a return to the order to show
cause. We now grant the petition.
1 The parties stipulated in the court below to proceed by
way of arbitration, and the court granted the motion to compel
arbitration based on that stipulation. The court’s order on the
motion to compel is not at issue in this writ proceeding.
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DISCUSSION
A. Legal standards
A “notice of lis pendens gives constructive notice that an
action has been filed affecting title or right to possession of the
real property described in the notice. [Citation.] Any taker of a
subsequently created interest in that property takes his interest
subject to the outcome of that litigation.” (Campbell v. Superior
Court (2005) 132 Cal.App.4th 904, 910–911.) If an action asserts
a “real property claim,” any party to the action may record a lis
pendens. (Code Civ. Proc., § 405.20.)
Upon motion, a “court shall order” expungement of a lis
pendens if the pleading on which the lis pendens is based does
not state a real property claim, if the claimant fails to establish
by a preponderance of the evidence the probable validity of the
claim on which the lis pendens is based, or if the giving of an
undertaking would secure adequate relief to the claimant. (Code
Civ. Proc., §§ 405.31, 405.32, 405.33.)
The party opposing expungement bears the burden of proof.
(Malcolm v. Superior Court (1981) 29 Cal.3d 518, 525–526.) The
“plaintiff must ‘at least establish a prima facie case. If the
defendant makes an appearance, the court must then consider
the relative merits of the positions of the respective parties and
make a determination of the probable outcome of the litigation.’ ”
(Howard S. Wright Construction Co. v. Superior Court (2003)
106 Cal.App.4th 314, 319.)
This action indisputably involves a real property claim. At
issue is whether Tadevosyan has established the “probable
validity” of her claim to specific performance by a preponderance
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of the evidence. “To obtain specific performance after a breach of
contract, a plaintiff must generally show: ‘(1) the inadequacy of
his legal remedy; (2) an underlying contract that is both
reasonable and supported by adequate consideration; (3) the
existence of a mutuality of remedies; (4) contractual terms which
are sufficiently definite to enable the court to know what it is to
enforce; and (5) a substantial similarity of the requested
performance to that promised in the contract.’ ” (Real Estate
Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)
We review the trial court’s factual findings for substantial
evidence. (Howard S. Wright Construction Co. v. Superior Court,
supra, 106 Cal.App.4th at p. 320.) “If, however, the material
facts are not disputed, then the issue becomes a question of law
for our de novo review.” (Ibid.)
B. Uncertainty
The trial court concluded the Purchase Agreement was
uncertain and therefore unenforceable. An agreement may not
be specifically enforced if its terms “are not sufficiently certain to
make the precise act which is to be done clearly ascertainable.”
(Civ. Code, § 3390, subd. (e).) Uncertainty is not a favored
defense and available “only when the uncertainty or
incompleteness of the contract prevents the court from knowing
what to enforce.” (Hennefer v. Butcher (1986) 182 Cal.App.3d
492, 500.)
To be enforceable, a contract need not include “every term
and condition of an agreement.” (Hennefer v. Butcher, supra,
182 Cal.App.3d at p. 500.) “ ‘The usual and reasonable terms
found in similar contracts can be looked to, unexpressed
provisions of the contract may be inferred from the writing,
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external facts may be relied upon, and custom and usage may be
resorted to in an effort to supply a deficiency if it does not alter or
vary the terms of the agreement.’ ” (Id. at pp. 500–501.) “Parol
evidence which does not vary or contradict the written terms of
the contract is admissible to explain ambiguities or give meaning
and content to words used, provided it does not vary or contradict
the terms of the contract.” (Id. at p. 501.) “ ‘It is only when the
extrinsic evidence fails to remove the ambiguity that specific
performance must be refused.’ ” (Ibid.)
The trial court here concluded the Purchase Agreement
was uncertain and therefore unenforceable because it did not
include a deadline for the sale to occur, as the Purchase
Agreement states only that the close of escrow shall occur
“AFTER MARCH 1, 2014.” Although Sukiasyan stated in his
declaration that the parties kept agreeing to extend the closing
date, the court found any such extensions invalid; the court
reasoned that the extensions were not memorialized in writing
and real estate purchase agreements must be in writing pursuant
to the statute of frauds. The court further concluded that the
written addendum did not resolve the uncertainty, because it
states only that the original agreement is extended until the
“Sylvia Rosales Rodriguez family finds a property so they can
move out” and “did not set a specific date for the close of escrow.”
The court summed up its ruling on uncertainty as follows: “The
absence of a date certain is fatal to this contract, given the
amount of time that has passed.”
We disagree that the Purchase Agreement was rendered
uncertain by the agreement’s failure to specify a deadline for the
sale to conclude. It is sometimes said that “[i]n a real property
transaction, the ‘material factors to be ascertained from the
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written contract are the seller, the buyer, the price to be paid, the
time and manner of payment, and the property to be transferred,
describing it so it may be identified.’ ” (Hennefer v. Butcher,
supra, 182 Cal.App.3d at p. 501; see Blackburn v. Charnley
(2004) 117 Cal.App.4th 758, 766; Doryon v. Salant (1977)
75 Cal.App.3d 706, 711.)
However, in Patel v. Liebermensch (2008) 45 Cal.4th 344,
350, footnote 2 (Patel), the Supreme Court clarified this
formulation, holding that the “manner of payment, like the time
of payment, is a matter that may be determined by reference to
custom and reason when the contract is silent on the question.”
This holding is consistent with Civil Code section 1657, which
provides, “If no time is specified for the performance of an act
required to be performed, a reasonable time is allowed. If the act
is in its nature capable of being done instantly—as, for example,
if it consists in the payment of money only—it must be performed
immediately upon the thing to be done being exactly
ascertained.”
In Patel, supra, 45 Cal.4th at page 347, the parties entered
into a lease agreement that granted the tenant the following
option to buy: “Through the end of the year 2003, the selling
price is $290,000. The selling price increases by 3% through the
end of the year 2004 and cancels with expiration of your
occupancy.” The tenant gave notice he was exercising the option
to buy, but the parties could not agree on a time frame for closing
escrow. (Id. at pp. 347–348.) The sale fell through, and the
tenant sued for specific performance. Citing the lack of
agreement on the time and manner of payment, the court of
appeal found the agreement too uncertain to enforce. (Id. at
p. 349.) The Supreme Court reversed. It held escrow
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specifications are not “necessary terms” in a real estate contract.
(Id. at p. 351.) In the absence of a specified time for performance,
a “reasonable time” is supplied by implication under Civil Code
section 1657. (Id. at p. 351; see House of Prayer v. Evangelical
Assn. for India (2003) 113 Cal.App.4th 48, 54 [“Pursuant to Civil
Code section 1657, courts of this state have consistently held a
contract for the sale of real estate is not unenforceable for failure
to specify a time of performance, because the law implies a
reasonable time”].) As in Patel, it is possible to imply a
“reasonable time” for performance of the Purchase Agreement
here. As a result, the agreement is not unenforceable as
uncertain.2
C. Reasonable time for performance
The essence of the trial court’s ruling was not that the
Purchase Agreement was uncertain because it did not specify a
2 For the same reason, we reject the trial court’s suggestion
that “other problems” with the Purchase Agreement contribute to
its uncertainty, including the agreement’s failure to specify
whether Tadevosyan would pay with the proceeds of a loan or all
cash, whether the prior owner will vacate the Property
immediately or remain in possession for a specific period of time,
and whether there are relevant contingencies. Like the time for
performance, the manner of performance and incidental matters
relating to the opening and closing of escrow may be implied by
extrinsic evidence and custom. (See Patel, supra, 45 Cal.4th at
p. 350, fn. 2 [manner of payment implied by custom and reason
when contract is silent on question]; King v. Stanley (1948)
32 Cal.2d 584, 589 [“In the absence of express conditions, custom
determines incidental matters relating to the opening of an
escrow, furnishing deeds, title insurance policies, prorating of
taxes, and the like”], disapproved on another ground by Patel, at
p. 349, fn. 2.)
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time for performance, but that, under the facts of this case, the
“reasonable time” for performance has elapsed. However, the
court erred when it conflated the expiration of the “reasonable
time” for performance with the expiration of the time to file suit.
Typically, if one party to a contract fails to perform, e.g.,
does not open or close escrow by the deadline, whether the
deadline is explicit or implied, the other party may sue to enforce
the contract. Where the time for performance is implied, the
“statute of limitations . . . does not begin to run until expiration of
a ‘reasonable time.’ ” (Banke & Segal, Cal. Practice Guide: Civil
Procedure Before Trial Statutes of Limitations (The Rutter
Group, 2022), § 4:180, citing Pitzer v. Wedel (1946) 73 Cal.App.2d
86, 91; see Caner v. Owners Realty Co. (1917) 33 Cal.App. 479,
481 [where contract does not specify time for performance,
statute of limitations begins to run at expiration of reasonable
time].) In other words, the expiration of the “reasonable time” for
performance triggers the start, not the end, of the statutory
limitations period.
“ ‘ “[W]hat constitutes a reasonable time is a question of
fact . . . . ,” ’ which depends on ‘ “the situation of the parties, the
nature of the transaction, and the facts of the particular case.” ’ ”
(The McCaffrey Group, Inc. v. Superior Court (2014)
224 Cal.App.4th 1330, 1351; see CACI No. 319 [“If a contract does
not state a specific time in which the parties are to meet the
requirements of the contract, then the parties must meet them
within a reasonable time. What is a reasonable time depends on
the facts of each case, including the subject matter of the
contract, the reasons each party entered into the contract, and
the intentions of the parties at the time they entered the
contract”].)
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In ruling on Rosales’s motion to expunge lis pendens, the
trial court did not determine when the “reasonable time” for
performance expired, only that it had expired. (See Pitzer v.
Wedel, supra, 73 Cal.App.2d at p. 91 [where time for performance
is implied, it is court’s duty to hear evidence and fix “reasonable
time” for performance].) As a result, the trial court’s findings do
not establish a factual basis for determining that the statute of
limitations even commenced running, or for determining that
Tadevosyan’s lawsuit could be barred by laches.
The trial court concluded the parties’ various oral and
written agreements to extend the time for performance were
invalid under the statute of frauds or, in the case of the
addendum, because there was no evidence Maggie Rosales was
empowered to sign the agreement under power of attorney. Even
if we accept these legal rulings (without deciding them), however,
the oral and written communications between the parties in
connection with the purported extensions constitute extrinsic
evidence the court should have considered in determining and
fixing a reasonable time for performance under the original
Purchase Agreement. (See Morey v. Vannucci (1998)
64 Cal.App.4th 904, 912 [mutual intent determined by objective
manifestations of parties’ intent, including subsequent conduct].)
In view of the extensive extrinsic evidence of the seller
requesting, and the buyer granting, extensions of time to close
the transaction, Tadevosyan has made more than a sufficient
showing of the probable validity of her claim for specific
performance to support the lis pendens.
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DISPOSITION
The petition for writ of mandate is granted. The trial court
is directed to vacate its March 15, 2022 order granting Rosales’s
motion to expunge lis pendens and enter a new and different
order denying the motion. Tadevosyan is to recover her costs in
this proceeding.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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