Kashani v. Wilshire House Association CA2/1 ( 2020 )

Filed 11/24/20 Kashani v. Wilshire House Association CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
MOUSSA MORADIEH KASHANI, B296976
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC557414)
v.
ORDER MODIFYING
WILSHIRE HOUSE ASSOCIATION, OPINION AND DENYING
REHEARING; NO
Defendant and Respondent. CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed on October 28, 2020, be
modified as follows:
1. On page 3, the third sentence of the first full paragraph
is modified to read as follows:
Also, Kashani contends he is entitled to nominal
damages.
2. On page 6, line 6 of the first full paragraph, the word
“[cover]” is inserted between the words “required” and “letter”
and after the word “letter” add as footnote “[1]” so that the line
and footnote read as follows:
required [cover] letter,[1] deposit, and accompanying
documents agreeing
1 We express no opinion as to whether
Kashani’s cover letter was required.
3. On page 6, the last sentence of the second full
paragraph, beginning with “In the ‘required letter,’ ” is modified
to read as follows (the current footnote at the end of this sentence
remains):
Kashani’s cover letter, however, indicated Kashani
sought to change this term, stating he would like to
exercise his right of first refusal “through
representation of my broker and my sister [Yasmin
Moradieh-Kashani].”
4. On page 7, second full paragraph, the first sentence is
modified to read as follows:
On Kashani’s cover letter, Gerowitz handwrote
“Received package 5/22/2014 [at] 5:15 p.m.
5. On page 9, line 5 is modified to read as follows:
(2) Kashani’s cover letter, indicating he wished to use
his
6. The paragraph commencing at the bottom of page 21
with “First, ‘any notice or communication’ ” and ending on page
22 with “face the consequences” is deleted and replaced with the
following:
First, section 17 of the CC&Rs required
Kashani to submit “a fully executed written offer to
purchase the [u]nit, including all exhibits referred to
therein, which such offer shall be identical in all
2
respects to the offer contained in the [o]ffer
[n]otice . . . .”9 (Italics added.) Yet, Kashani’s written
submission unequivocally sought to modify a
material term of the original purchase and sale
agreement. Specifically, Kashani’s cover letter stated
that his sister would serve as his agent. Although he
orally agreed during an in-person meeting with
Gerowitz to use Manns as his agent, he did not make
any written correction to this cover letter to reflect
such an agreement. Nor did Kashani correct the 5:18
p.m. email from his sister to Gerowitz on which he
was copied that stated he wanted his sister to serve
as his agent. Even if WHA would have accepted
Kashani’s oral representation to have Manns act as
his agent, Kashani thereafter communicated in
writing to Gerowitz that his sister was to act as his
agent. At 9:31 p.m., Kashani emailed Gerowitz to
express dissatisfaction with Manns. He complained
Manns’s refusal to show Unit 704 jeopardized her
license and that she would have to face the
“consequences.” Kashani did not state in this email
that he agreed to Manns as his agent. Rather,
Kashani attached to this email the same cover letter
that he submitted earlier in which he stated his
sister would serve as his agent. At 11:02 p.m.,
Kashani’s sister also sent an email to Gerowitz in
which she echoed Kashani’s complaints and insisted
she would serve as her brother’s agent. Then, at
11:18 p.m., Kashani delivered the cover letter to
WHA, again. Thus, Kashani’s written submission
was not “identical in all respects” to the original
purchase agreement as required under the CC&Rs.
9Section 19.8 of the CC&Rs also state that
“any notice or communication . . . required by [the
CC&Rs] shall be in writing.”
3
7. On page 22, at the end of the first full paragraph, after
the sentence ending “which was flawed in this respect,” add as
footnote 10, the following footnote:
10 Kashani also points to Rabkin’s deposition
testimony that Kashani’s purchase agreement itself
made no modification to the real estate agent.
However, Rabkin also testified Kashani’s cover letter
sought to modify that term.
8. At pages 23 to 28, subsection C of the Discussion is
deleted and replaced with the following:
C. The Trial Court Properly Granted Summary
Judgment of Kashani’s Cause of Action for
Fraud
Kashani alleged WHA made two misrepresentations.
First, Kashani claims Gerowitz12 advised him that in order
to exercise his right of first refusal, he needed to “simply
cross out each instance in which the name of Soltan[i]
Family Trust appeared on the [purchase and sale
agreement], to write and initial [Kashani’s] name next to
each such instance, and then cross out the signature for
Soltan[i] Family Trust at the end of the [purchase and sale
agreement] and sign the [purchase and sale agreement]
himself.” Second, Gerowitz told him that he was “in,”
___________________
12 Although Kashani contends in the general
allegations of his first amended complaint that attorney
Rabkin also advised him how to exercise his right of first
refusal, in his cause of action for fraud, Kashani alleges
that only Gerowitz made false statements.
4
which Kashani interpreted to mean that his offer was
acceptable.13 Kashani also alleges that had he known the
truth, he would have corrected his submission.
None of Kashani’s challenges demonstrates that
there was a disputed material fact as to causation. The
elements of fraud are: “ ‘ “(a) misrepresentation (false
representation, concealment, or nondisclosure);
(b) knowledge of falsity (or ‘scienter’); (c) intent to defraud,
i.e., to induce reliance; (d) justifiable reliance; and
(e) resulting damage.” ’ ” (Tenet Healthsystem Desert, Inc.
v. Blue Cross of California (2016) 245 Cal. App. 4th 821,
837.) “ ‘A plaintiff asserting fraud by misrepresentation is
obliged to . . . “ ‘establish a complete causal relationship’
between the alleged misrepresentations and the harm
claimed to have resulted therefrom.” ’ [Citation.] ‘The
causation aspect of actions for damage for fraud and deceit
involves three distinct elements: (1) actual reliance,
(2) damage resulting from such reliance, and (3) right to
rely or justifiable reliance.’ [Citation.]” (Beckwith v. Dahl
(2012) 205 Cal. App. 4th 1039, 1062.)
First, as to Gerowitz’s instruction that Kashani
“simply cross out each instance” of the buyer’s name and
“write and initial [Kashani’s] name next to each such
instance,” Kashani did not actually rely on this instruction.
To the contrary, as described above, he failed to follow it.
This failure substantially caused his submission to be
noncompliant.
___________________
13 We observe that such a statement could have
meant only that Kashani submitted his paperwork, sans
deposit check, within the required time.
5
Second, Kashani’s alleged damages were not the
result of Kashani’s actual reliance on Gerowitz’s statement
that he was “in.” Rather, a substantial cause of Kashani’s
alleged damages was his continued effort to have his sister
serve as his agent. As described above, hours after
Gerowitz told Kashani he was in, Kashani (and his sister)
expressed vehement dissatisfaction with Manns, Kashani’s
sister sent an email insisting she would act as his agent,
and he twice more submitted his cover letter in which he
stated his sister would act as his agent. Thus, Kashani’s
own intervening actions after Gerowitz told him he was “in”
substantially caused his submission to be noncompliant.
Third, Kashani undertook an independent
investigation by which he broke the chain of causation. “A
plaintiff who has access to the necessary information and
actually makes an independent investigation that the
defendant does not hinder will be charged with knowledge
of the facts that reasonable diligence would have disclosed
and cannot claim reliance on the representations.” (5
Witkin, Summary of Cal. Law (11th ed. 2020) Torts, § 930.)
Here, Kashani admits that between the time that Gerowitz
advised him that he was “in” and the time he delivered the
deposit check several hours later, Kashani reviewed his
submission and discovered Gerowitz was wrong. He was
not “in” because he discovered a mistake that Gerowitz had
overlooked. Kashani further admits facts that demonstrate
he was a sophisticated party to the transaction: Kashani
had been a real estate investor for 28 years and had
purchased units at Wilshire House on two prior occasions
through the right of first refusal procedure. Thus, there is
6
no question that reasonable diligence would have revealed
to him that his offer did not comply by both failing to agree
unequivocally and in writing to use Manns as his agent and
failing to cross out at least two instances of Soltani Family
Trust and write in his own name. There is no evidence in
the record that WHA hindered Kashani from exercising
such diligence.
Given our ruling, Kashani’s argument that he may
seek nominal damages is moot as is WHA’s argument that
the business judgment rule or reliance on advice of its
attorney shields it from liability.
There is no change in the judgment. Appellant Kashani’s
petition for rehearing is denied.
SINANIAN, J.* ROTHSCHILD, P. J. BENDIX, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
7
Filed 10/28/20 Kashani v. Wilshire House Association CA2/1 (unmodified opinion)
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 ONE
MOUSSA MORADIEH KASHANI, B296976
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC557414)
v.
WILSHIRE HOUSE ASSOCIATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard E. Rico, Judge. Affirmed.
Stubbs Alderton & Markiles, Jeffrey F. Gersh and James A.
Sedivy for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, R. Scott Sokol, Matthew
G. Kleiner and Jordan T. Golden for Defendant and Respondent.
______________________
Plaintiff and appellant Moussa Moradieh Kashani is an
owner of several condominium units in a real estate development
commonly known as Wilshire House Condominiums (Wilshire
House). Defendant and respondent Wilshire House Association
(WHA) is the homeowners’ association for Wilshire House. In
May 2014, Kashani sought to exercise his right of first refusal
pursuant to WHA’s Declaration of Covenants, Conditions and
Restrictions (CC&Rs) to buy condominium unit 704 at Wilshire
House (Unit 704). Another Wilshire House condominium unit
owner, Andres Cantor, also sought to exercise his right of first
refusal to purchase Unit 704. Under the CC&Rs, if more than
one owner exercises his or her right of first refusal, WHA is to
conduct a random drawing to determine which owner may
purchase the unit.
WHA, through its attorney Michael Rabkin, determined
that Cantor’s exercise of his right of first refusal complied with
the CC&Rs and that Cantor could purchase Unit 704. Rabkin
also determined Kashani’s attempt to exercise his right of first
refusal did not comply with the CC&Rs, and WHA informed
Kashani that he was not eligible to purchase Unit 704. Because
there was only one valid exercise of the right of first refusal,
WHA did not conduct a random drawing.
Kashani sued, asserting WHA breached the CC&Rs and
fraudulently misrepresented to him how to comply with the
CC&Rs and that his submission did comply.
WHA moved for summary judgment. Relying on Kashani’s
discovery responses in which he stated WHA had an obligation
under the CC&Rs to conduct a random drawing, the trial court
concluded Kashani had only a 50 percent chance of winning the
drawing and, thus, could never establish causation or damages by
2
a preponderance of the evidence. Although Kashani argued in
his opposition that his was the only valid offer and a random
drawing was not required, the trial court concluded that Kashani
could not contradict his earlier position to avoid summary
judgment. The trial court also awarded attorneys’ fees and costs
to WHA.
On appeal, Kashani argues the trial court erred in granting
summary judgment because his opposition raised triable issues of
material fact—principally, that his offer complied with the
CC&Rs and Cantor’s offer did not. Kashani further argues the
trial court erred in not considering his arguments and supporting
evidence that Cantor’s offer did not comply with the CC&Rs
because his declaration did not contradict his discovery responses
on this issue. Also, Kashani contends, for the first time on
appeal, that he is entitled to nominal damages. Kashani also
appeals the award for attorneys’ fees and costs on the bases that
in reversing the motion for summary judgment such fees must
also be reversed, and regardless of whether we reverse the
summary judgment ruling, the trial court abused its discretion in
awarding certain attorneys’ fees and costs.
We agree with Kashani that his declaration did not
contradict his discovery responses as to whether Cantor’s offer
complied with the CC&Rs or whether there should be a random
drawing. However, we conclude that there is no disputed issue of
material fact that Kashani’s offer did not comply with the
CC&Rs. We also conclude Kashani cannot demonstrate a dispute
of material fact as to whether WHA’s general manager Stacy
Gerowitz’s allegedly fraudulent statements caused Kashani’s
alleged damages. We also conclude, as to the attorneys’ fees and
3
costs that we have jurisdiction to review, that the trial court did
not abuse its discretion. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We base our factual summary on the parties’ undisputed
facts or otherwise identify the source of the facts.
A. Procedure for Exercising a Right of First Refusal
According to the CC&Rs
Section 17 of the CC&Rs provides the WHA board (Board)
and each owner of a condominium unit in Wilshire House with “a
[r]ight of [f]irst [r]efusal to purchase any [c]ondominium upon its
[o]wner’s voluntary election to sell” the unit. Section 17.2
requires the Board to mail to each owner “written notice” of the
potential sale, including a complete copy, with exhibits, of the
third party’s offer to purchase the unit. This mailing triggers the
running of a refusal period that concludes at 11:59 p.m. on the
15th day from the mailing. During the refusal period, the Board
or any owner may exercise their right of first refusal.
Section 17.3 of the CC&Rs states, in part, that “[a]ny
attempt to exercise the [r]ight of [f]irst [r]efusal shall be invalid
and unenforceable unless accomplished during the [r]efusal
[p]eriod and in the following manner: an [o]wner shall submit to
the Board a fully executed written offer to purchase the [u]nit,
including all exhibits referred to therein, which such offer shall
be identical in all respects to the offer contained in the [o]ffer
[n]otice, but for the name of the [o]wner making the offer.”
According to section 17.4, “If the Board receives more than
one offer prior to the expiration of the [r]efusal [p]eriod, it shall
determine by random drawing the offer which shall constitute the
sole exercise of the [r]ight of [f]irst [r]efusal contained herein.” If
4
the owners do not make an offer prior to the expiration of the
refusal period, the seller of the unit may sell the unit to the
original prospective third-party buyer.
Section 19.8 of the CC&Rs requires that except as
otherwise provided, “any notice or communication . . . required by
[the CC&Rs] shall be in writing.”
B. WHA Notifies the Owners of Their Opportunity to
Exercise Their Right of First Refusal for Unit 704
Kashani received a letter dated May 7, 2014, from WHA,
signed by Gerowitz. The letter provided notice that The Geldin
Family Trust intended to sell Unit 704 to the Soltani Family
Trust. The letter stated that section 17 of the CC&Rs grants
each owner a right of first refusal to purchase Unit 704 and that
any exercise of the right of first refusal must be received by the
Wilshire House management office by May 22, 2014, at 11:59
p.m. The letter attached a document dated May 5, 2014, which
summarized the basic terms of the transaction and indicated that
Diane Manns of Coldwell Banker was the agent for the buyer and
seller and would receive 5 percent commission (May 5, 2014
Agent Information). The letter also attached a copy of the
purchase and sale agreement, with exhibits, and advised the
owners to “[p]lease refer to the CC&Rs for additional details.”
On May 21, 2014, owner Dr. David Cantor, acting on behalf
of his son Cantor, submitted documents and a deposit check in an
effort to exercise his right of first refusal.
C. Kashani Attempts to Exercise His Right of First
Refusal for Unit 704
According to his discovery responses, Kashani has been a
real estate investor since 1986. Thus, as he averred in his
declaration in support of his opposition to the motion for
5
summary judgment, in May 2014, Kashani owned three
condominium units at Wilshire House, “two of which [he]
purchased by exercising [his] right of first refusal.” On May 22,
2014, Kashani sought to exercise his right of first refusal again,
this time to purchase Unit 704.
As Kashani alleged in his first amended complaint: “On
May 22, 2014, pursuant to the . . . instructions of WHA’s
representatives, . . . Gerowitz and WHA’s attorney [Rabkin],
[Kashani] timely and properly exercised his [r]ight of [f]irst
[r]efusal . . . by personally delivering to . . . Gerowitz . . . the
required letter, deposit, and accompanying documents agreeing
to enter into (i.e., accepting) the [p]urchase and [s]ale
[a]greement with . . . Geldin Family Trust to purchase [Unit 704]
. . . on the same terms and conditions that were previously agreed
between” the Geldin Family Trust and the Soltani Family Trust.
The “accompanying documents” included a copy of the
purchase and sale agreement with all exhibits. This document
had been executed by the Geldin Family Trust and the Soltani
Family Trust, but modified by Kashani in an effort to comply
with CC&Rs’ section 17.3. This purchase and sale agreement
identified Coldwell Banker as the buyer’s and seller’s agent. In
the “required letter” of Kashani’s intention to exercise his right of
first refusal, however, Kashani indicated he sought to change this
term, stating he would like to exercise his right of first refusal
“through representation of my broker and my sister [Yasmin
Moradieh-Kashani].”1
1 To avoid confusion, we refer to Yasmin Moradieh-Kashani
by her first name.
6
In interrogatory responses, Kashani described the
circumstances surrounding his submission with more specificity:
“At approximately 5:00 p.m. on May 22, 2014, [Kashani] went to
the Wilshire House Association management office to exercise his
right of first refusal. [Kashani] spoke to Stacy Gerowitz who
informed him that he must use Diane Manns as the realtor, not
Yasmin Kashani. [Kashani] agreed. She then called Michael
Rabkin and put him on speakerphone who instructed [Kashani]
to initial and sign everywhere the buyer signed. Plaintiff [sic]
then reviewed [Kashani’s] offer and told him it was acceptable.”
Kashani also stated in his interrogatory responses that “Gerowitz
reviewed [his] offer page by page and approved [Kashani’s] offer.
She then told him that his offer is accepted, specifically, she told
him, ‘you’re in’ and then instructed him to drop off the deposit
check.”
On Kashani’s letter of intention, Gerowitz handwrote
“Received package 5/22/2014 [at] 5:15 p.m. Deposit check not
included. Will bring tonight.” She initialed this note. There was
no modification made to the statement that Kashani wanted to be
represented by his sister in the transaction. Earlier that
afternoon, at 4:25 p.m., Kashani sent an email to his sister that
included a draft of the cover letter to Gerowitz, indicating
Kashani wanted his sister to represent him in the transaction.
At 5:18 p.m., Kashani’s sister forwarded this email to Gerowitz
with a carbon copy to Kashani. The record does not reflect a later
email from Kashani to Gerowitz correcting Kashani’s statement
that he wanted his sister to serve as his agent.
During her deposition, Gerowitz was asked whether, on
May 22, 2014, Kashani asked her for advice regarding how to fill
out the purchase and sale agreement. She responded that she
7
“did indicate a couple of times that I was unable to assist him in
filling it out.” The record does not otherwise reflect whether
WHA disputes Kashani’s version of facts regarding his visit to
the management office and conversation with Gerowitz and
Rabkin.
Then, according to paragraph 6 of Kashani’s declaration
submitted in support of his opposition to the motion for summary
judgment, “On May 22, 2014, at 9:31 p.m. I sent an email to
Stacy Gerowitz that included as an attachment the first page of
my purchase agreement where I ‘crossed-off’ the name of ‘The
Soltani Family Trust’ which was replaced with my name as the
buyer, with my initials next to that. In preparing the deposit
check I noticed that my name was not listed as the buyer, so I
made that change at that time.” Kashani appended the 9:31 p.m.
email and attachments thereto as exhibit 13 to his declaration.
The email stated, “enclosed please find copy of deposit check for
the total amount of $55,050 that represent 3[ percent] of
purchase price at $1,835,000 according to the documents that
Diane Manns filed with [W]ilshire [H]ouse on May 5, 2014[,]
along with other documents[,] for your review and
documentation. [¶] . . . [¶] We have contacted listing agent
Diane Manns again to visit [U]nit 704 however, she has flatly
rejected to show the unit which jeopardize[s] her license. I hope
. . . she realize[s] that this is part her duty as a listing agent
otherwise she has to face consequences.” Notwithstanding
repeated references to Manns, Kashani’s email does not indicate
that he agreed to use Manns as his agent in the transaction.
According to paragraph 7 of Kashani declaration, at
11:18 p.m., he delivered the deposit check and a copy of the
9:31 p.m. email and attachments to Gerowitz’s office. Kashani
8
appended the 11:18 p.m. submission to his declaration as exhibit
14. Exhibit 14 is labeled with a WHA prefix, and Kashani
contends that WHA produced these documents in the litigation.
Both exhibits 13 and 14 include (1) Kashani’s 9:31 p.m. email;
(2) Kashani’s letter of intention, indicating he wished to use his
sister as his agent, which was not modified to strike out or retract
this statement; (3) a copy of the May 5, 2014 Agent Information
document signed by Kashani; (4) a copy of the deposit check; and
(5) a corrected first page to the purchase and sale agreement in
which Soltani Family Trust was crossed out as the buyer and
Kashani’s name written in.
On May 22, 2014, at 11:02 p.m., Kashani’s sister sent an
email to Manns with a carbon copy to Gerowitz. In her email, she
complained that Manns would not show her and her brother Unit
704 and stated, “Just [to] let you know I am representing my
brother Moussa Kashani in this deal and I am buyer’s agent and
have to get my commission of 2.5[ percent] from the seller.”
Yasmin forwarded this email to her brother the next day at
5:00 p.m. During her deposition, Yasmin could not recall
whether Kashani advised her before or after she sent the 11:02
p.m. email that she could not represent him in the transaction.
In discovery, Kashani referred to an email from his sister to
Manns as “an unauthorized e-mail.”
D. WHA Determines Cantor’s Submission Complies with
the CC&Rs and Kashani’s Does Not
The next day, May 23, 2014 at 6:31 a.m., Gerowitz sent an
email to Rabkin in which she stated “I needed Mr. Kashani to
hear the rules directly from you. [¶] He sat in my office and
cross out signatures, signed his own and gave me the paperwork.
He did not white-out the prior buyer’s name so it basically has
9
‘Soltani Family Trust’ as the buyer and Moussa Kashani as the
signer. [¶] I will be calling in the morning, requesting that you
review both executed contracts in order to approve them as
appropriate for the name draw. Of course, if one is deemed
invalid, it goes to the other by default. [¶] And just as a point of
interest, I am attaching the letter Mr. Kashani’s sister, Yasmin,
sent to the unit broker.” During her deposition, Gerowitz
testified that she got Kashani’s check, put it with “the other stuff”
and took both Cantor’s and Kashani’s submissions to Rabkin.
During his deposition, Rabkin testified he did not receive
the corrected first page of the purchase and sale agreement as
part of Kashani’s submission.
On May 23, 2014, at 11:59 a.m., Rabkin sent an email to
Gerowitz in which he stated that in his opinion, “Andres Cantor
has complied with the exercise of the right of first refusal to the
letter requirement[s] of the CC&Rs, and Moussa Kashani has
failed to do so. . . . [¶] . . . [¶] The documents submitted by
Andres Cantor are ‘identical’ to the original offer in ALL respects,
except that he has whited out every reference to the original
buyer, and placed his name in each such location. Every buyer
signature has been replaced by his; every buyer initial has been
replaced by his. Mr. Cantor has strictly complied with the
requirements and so qualified to be the buyer of the unit, under
the [r]ight of [f]irst [r]efusal language. [¶] Mr. Kashani, on the
other hand, has submitted a copy of the original offer, where he
simply signed his name by SOME but not all of the purchase
documents, and he has left the original buyer’s name and
signature (Soltani Family Trust) throughout the document as the
buyer of the unit. Please remember, the CC&Rs say that the one
required change is ‘the name of the [o]wner making the offer.’
10
While his intent is clear, he hasn’t followed the letter of the
CC&Rs, and the CC&Rs give the [B]oard no latitude here, since
they say ‘any attempt to exercise the [r]ight of [f]irst [r]efusal
shall be invalid and unenforceable unless . . . in the following
manner’ which wasn’t done here. Lastly, Mr. Kashani submitted
a cover letter with his offer stating that the broker under the
agreement would be his sister . . . , which is a change in the
terms of the original offer, which states that the broker is Diane
Manns of Coldwell Banker. [¶] Therefore, you should advise the
unit owner that Mr. Cantor is the buyer of the unit, and advise
Mr. Kashani that he is not.”
Gerowitz testified that she was not involved in determining
whether the offers complied with the CC&Rs other than
providing the paperwork to Rabkin.
It is undisputed that on or about May 29, 2014, Cantor
completed his purchase of Unit 704.
E. Kashani Alleges Causes of Action for Breach of
Contract and Fraud Against WHA
In September 2014, Kashani initiated this lawsuit. In May
2016, Kashani filed a first amended complaint against WHA,
Cantor, Dr. David Cantor,2 the individual successor trustees of
the Geldin Family Trust, and Gerowitz. Following several
voluntary requests for dismissal, only Kashani’s causes of action
against WHA for breach of the CC&Rs and fraud remained.
In his cause of action for breach of the CC&Rs, Kashani
alleged that he “timely submitted his properly drafted [right of
2 Dr. David Cantor is not listed on the caption page as a
defendant, however, Kashani brought the sixth cause of action for
breach of fiduciary duty against him.
11
first refusal] and acceptance of the [purchase and sale agreement]
to purchase [Unit 704] pursuant to the CC&Rs” and performed
all his obligations. He further alleged WHA breached section 17
of the CC&Rs by refusing to sell Unit 704 to Kashani and instead
allowing Cantor to purchase the property “to the exclusion of
[Kashani].” As a result, Kashani claimed he suffered damages
according to proof, but not less than $700,000.
In his cause of action for fraud, Kashani alleged that
“WHA, through its [g]eneral [m]anager, [defendant] Gerowitz,”
falsely represented to Kashani how to prepare and submit a
proper right of first refusal and written acceptance of the
purchase and sale agreement and that his right of first refusal
and acceptance of the purchase and sale agreement were
submitted in proper form and substance pursuant to the CC&Rs.
“More specifically, . . . Gerowitz told [Kashani] that it was proper
for him to simply cross out each instance in which the name of
Soltan[i] Family Trust appeared on the [purchase and sale
agreement], to write and initial [Kashani’s] name next to each
such instance, and then cross out the signature for Soltan[i]
Family Trust at the end of the [purchase and sale agreement]
and sign the [purchase and sale agreement] himself.”
Kashani further alleged the representation “was in fact
false and known by [WHA and Gerowitz] to be false when made
in that . . . WHA and Gerowitz now claim that [Kashani’s right of
first refusal] was improperly formatted for doing the very things
they told him to do”; that he justifiably relied upon the alleged
misrepresentations in submitting his offer to purchase Unit 704;
that at the time the representations were made he did not know
nor reasonably could have known the representations were false
and that if he had known they were false, he “would have
12
corrected his [right of first refusal] and written acceptance of the
[purchase and sale agreement] and submitted them in the proper
form.” Kashani again claimed at least $700,000 in damages and
sought punitive damages.
F. Kashani’s Discovery Responses Relevant to this
Appeal
Approximately three and a half years into the litigation,
Kashani served discovery responses in which he acknowledged
his offer contained flaws and repeatedly stated that WHA had an
obligation to conduct a random drawing. For example, to special
interrogatory number 19, Kashani stated, “The CC&R[s] require
there to be a random draw if there are competing offers to
exercise the right of first refusal. There were two competing
offers with similar, if not the same, flaws. Yet one, specifically,
[Kashani’s], was rejected as improper and WHA failed to conduct
the random draw.” Kashani insisted WHA should have
conducted a random drawing in at least three more interrogatory
responses.
In response to a special interrogatory that asked for all
facts supporting Kashani’s allegation that he properly exercised
his right of first refusal, Kashani responded that Gerowitz and
Rabkin “instructed [Kashani] to initial and sign everywhere the
buyer signed. [Kashani] did so and gave the offer to Ms.
Gerowitz. Ms. Gerowitz reviewed the offer page by page and
approved [Kashani]’s offer. She then told him that his offer is
accepted, specifically, she told him, ‘you’re in’ and then instructed
him to drop off the deposit check.”
WHA also asked Kashani to admit that in his offer
submitted on May 22, 2014, he “did not cross out the name of the
original buyer Soltani Family Trust as the buyer.” Kashani
13
responded, “Neither admit or deny.” In explaining this response,
Kashani stated he “crossed out the signature of the original buyer
Soltani Family Trust where it appeared on the [p]urchase and
[s]ale [a]greement,” leaving the question of whether he crossed
out the name of the buyer unaddressed. (Italics added.)
Notwithstanding that the interrogatories posed to Kashani
followed the format of asking him to “state all facts,” none of
Kashani’s discovery responses describes his later submission of
the corrected first page of the purchase and sale agreement.
As to damages, Kashani stated in discovery responses that
his damages consisted of lost profits from the difference between
the purchase price of Unit 704 and the fair market value of the
unit or rent of Unit 704. Kashani affirmed that there were no
other damages.
As to Cantor’s attempt to exercise his right of first refusal,
Kashani consistently stated in discovery that Cantor’s offer
contained flaws or defects.
G. WHA’s Motion for Summary Judgment
On June 28, 2018, WHA moved for summary judgment.
WHA argued that Kashani could not establish that he performed
as required under section 17 of the CC&Rs because his right of
first refusal offer was flawed and Kashani admitted in discovery
responses that his offer was flawed. Moreover, WHA argued,
Kashani could not establish causation or damages for either his
breach of contract or fraud causes of action. The only damages
Kashani claims to have suffered were lost profits, which WHA
argued must be proven as certain not only as to the amount, but
as to their occurrence. Kashani could not do so because Kashani
would have, at best, a 50 percent chance of winning the random
draw. WHA also argued that the business judgment rule, based
14
in WHA’s decision to follow the advice of its attorney, insulated
WHA from any liability.
In his opposition to the motion for summary judgment,
Kashani argued issues of material fact exist as to, among other
things, whether his offer complied with section 17 of the CC&Rs
and whether Cantor’s offer complied with section 17. Kashani
concluded, “[t]hus, there would be no random drawing because
[Kashani’s] offer would have to be accepted as the only offer to
properly exercise the right of first refusal under the CC&R’s.”
(Italics added.)
In response to WHA’s proposed undisputed material facts
that Kashani’s offer did not comply with section 17, Kashani’s
offer was defective and flawed, and that Kashani alleged that his
offer contained the same flaws as Cantor’s offer, Kashani cited
paragraphs 4, 6 and 7 of his declaration and exhibits 13 and 14
thereto.3 As we already described, Kashani stated in paragraphs
6 and 7 that he submitted a corrected first page of the purchase
and sale agreement in which he crossed out the Soltani Family
Trust and wrote in his name.4 According to paragraph 4 of his
3 Kashani also cites WHA’s May 7, 2014 notice letter
attaching the original purchase agreement with the Soltani
Family Trust as buyer, Cantor’s executed documents to exercise
his right of first refusal, Kashani’s executed documents to
exercise his right of first refusal, and Rabin’s deposition
testimony that he was not aware that Kashani corrected the offer
from the Soltani Family Trust to his name. None of this evidence
tends to prove Kashani properly exercised his right of first
refusal.
4 Kashani did not provide an explanation in his declaration
as to why his discovery responses never referred to his correction
to the first page of the purchase and sale agreement.
15
declaration, when Gerowitz advised Kashani that he must use
Manns as his broker, Kashani stated “I told Ms. Gerowitz that I
would agree to do [so].”
In its reply, WHA argued that Kashani was bound by his
prior discovery responses that his offer was flawed and that a
random drawing was required. Kashani could not contradict
such responses to avoid summary judgment. WHA also objected
to certain evidence that Kashani submitted with his opposition,
including paragraphs 6 and 7 of his declaration and exhibits 13
and 14 thereto, on the basis that it was being used to contradict
Kashani’s prior discovery responses.
The trial court granted WHA’s motion for summary
judgment. The trial court determined that, “[E]ven assuming
[Kashani’s] bid was compliant, [Kashani] would only be entitled
to participate in the random drawing. . . . As a matter of simple
math, [Kashani] had no better than a 50[ percent] chance to win
the draw and he cannot establish that his victory was more
probable than not. . . . [¶] Moreover, it is well settled that
contract damages must be certain. [Citation.]” (Fn. omitted.)
The trial court also addressed Kashani’s arguments in his
opposition that a random drawing was not required: “For the
first time, [Kashani] contends that his offer was the only offer to
comply with the [CC&Rs]. . . . Therefore, WHA was not obliged
to perform the random draw and should have been deemed the
buyer of the unit outright. [¶] It is well-established that ‘a party
cannot create an issue of fact by a declaration which contradicts
his prior discovery responses.’ (Shin v. Ahn (2007) 42 Cal. 4th
482, 500, fn. 12 . . . .) . . . [¶] [Kashani] has consistently
maintained that there were two competing offers and that WHA
should have conducted a random drawing between [Kashani] and
16
Cantor to determine who would win the right to purchase Unit
[7]04. . . . [Kashani] cannot sidestep the random-drawing issue
by proffering a new, eleventh-hour theory for recovery. It
remains undisputed that, at best, [Kashani] was entitled to
participate in a random draw for the chance to own Unit 704.” As
to the fraud claim, the trial court stated, “The same analysis
applies equally to the fraud claim.”
On October 17, 2018, the trial court entered judgment in
favor of WHA and awarded attorneys’ fees and costs, in an
amount to be determined, to WHA. Kashani timely appealed the
judgment.
H. Attorneys’ Fees and Costs, Including Expert Fees
After entry of judgment, WHA sought attorneys’ fees in the
amount of $198,942 and costs, excluding expert witness fees, in
the amount of $9,668.02. WHA contended it was entitled to such
fees as the prevailing party pursuant to an attorneys’ fees
provision in the CC&Rs. Specifically, section 19.3 of the CC&Rs
state, “In the event the Board or any [o]wner or [o]wners shall
bring legal action to enforce the terms, covenants, conditions and
restrictions of [the CC&Rs], the court shall award reasonable
attorneys fees and court costs to the prevailing party.”
WHA also argued it was entitled to expert witness fees in
the amount of $2,195 under Code of Civil Procedure section 998,
subdivision (c). WHA provided an offer to compromise to Kashani
on May 5, 2015. Kashani did not accept the offer.
Following briefing and oral argument, the trial court
awarded to WHA attorneys’ fees in the amount of $180,442; the
costs requested less certain appearance fees, a duplicate
17
telephone appearance fee, and hotel costs for mediation;5 and
expert witness fees in the amount of $2,195.
DISCUSSION
A. Standard of Review
A “motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. . . .” (Code Civ. Proc., § 437c, subd. (c).) A
defendant seeking summary judgment has met the “burden of
showing that a cause of action has no merit if the party has
shown that one or more elements of the cause of action . . . cannot
be established, or that there is a complete defense to the cause of
action.” (Id., subd. (p)(2).) Once the defendant has met that
burden, the burden shifts to the plaintiff “to show that a triable
issue of one or more material facts exists as to the cause of action
or a defense thereto.” (Ibid.)
We review the trial court’s summary judgment rulings de
novo. In doing so, we liberally construe the plaintiff’s evidentiary
submission while strictly scrutinizing the defendant’s own
showing, and resolve any evidentiary doubts or ambiguities in
the plaintiff’s favor. (Whitmire v. Ingersoll-Rand Co. (2010) 184
Cal. App. 4th 1078, 1083, citing Weber v. John Crane, Inc. (2006)
143 Cal. App. 4th 1433, 1438.) However, “when discovery has
produced an admission or concession on the part of the party
opposing summary judgment which demonstrates that there is no
factual issue to be tried, certain of those stern requirements
5 Neither the trial court’s ruling nor the parties’ briefs
states the exact amount awarded for costs.
18
applicable in a normal case are relaxed or altered in their
operation.” (D’Amico v. Board of Medical Examiners (1974) 11
Cal. 3d 1, 21 (D’Amico).)
B. Summary Judgment of Kashani’s Cause of Action for
Breach of the CC&Rs Is Proper
“[A] party cannot create an issue of [material] fact by a
declaration which contradicts his prior discovery responses.”
(Shin v. Ahn, supra, 42 Cal.4th at p. 500, fn. 12.) “In determining
whether any triable issue of material fact exists, the trial court
may give ‘great weight’ to admissions made in discovery and
‘disregard contradictory and self-serving affidavits of the party.’
[Citation.]” (Whitmire v. Ingersoll-Rand Co., supra, 184
Cal.App.4th at p. 1087.) “Our Supreme Court has explained that
such admissions ‘have a very high credibility value,’ particularly
when they are ‘obtained not in the normal course of human
activities and affairs but in the context of an established pretrial
procedure whose purpose is to elicit facts.’ [Citation.] . . . Where
a declaration submitted in opposition to a motion for summary
judgment clearly contradicts the declarant’s earlier deposition
testimony or discovery responses, the trial court may fairly
disregard the declaration and ‘ “conclude there is no substantial
evidence of the existence of a triable issue of fact.” ’ [Citation.]”
(Ibid., citing D’Amico, supra, 11 Cal.3d at pp. 21, 22.)
On appeal, Kashani argues whether a random drawing
should take place depends upon first determining which, if any,
of the submitted offers complied with the CC&Rs. Further,
Kashani argues his declaration did not mention, let alone
contradict his earlier discovery responses on, the issue of whether
Cantor’s offer complied with the CC&Rs. Nor does his
declaration or first amended complaint mention the issue of a
19
random drawing. Thus, Kashani concludes the trial court
improperly disregarded his argument that a random drawing was
not required based on the principle articulated in D’Amico, supra,
11 Cal.3d at pages 21, 22 and Shin v. Ahn, supra, 42 Cal.4th at
page 500, footnote 12.
We agree that D’Amico and its progeny apply only when a
party submits a declaration or affidavit that clearly contradicts
prior statements made in discovery. (See Scalf v. D. B. Log
Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1521 [“Properly
applied, D’Amico is limited to instances where ‘credible
[discovery] admissions . . . [are] contradicted only by self-serving
declarations of a party’ ” (italics omitted)].) We further agree
that Kashani has consistently stated in discovery that Cantor’s
offer was defective, that Kashani did not contradict this position
in his declaration, and that Kashani does not refer to the issue of
random drawing in his declaration. Accordingly, the principle
articulated in D’Amico does not apply to the issues of Cantor’s
compliance and the random drawing. However, we conclude the
trial court properly granted summary judgment as to both
Kashani’s breach of contract and fraud claims.6
“To prevail on a cause of action for breach of contract, the
plaintiff must prove (1) the contract, (2) the plaintiff’s
performance of the contract or excuse for nonperformance, (3) the
defendant’s breach, and (4) the resulting damage to the plaintiff.”
(Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186.)
6 On summary judgment, we may affirm the trial court’s
ruling on any correct legal theory as long as the parties have
adequately addressed the theory in the trial court. (California
School of Culinary Arts v. Lujan (2003) 112 Cal. App. 4th 16, 22.)
20
Kashani cannot demonstrate the second element that he
performed under the contract because the evidence supports only
one conclusion: Kashani’s offer did not comply with the CC&Rs.
Kashani admits in his interrogatory responses that his
submission contained flaws. This concession is further supported
by Kashani’s failure to deny a request for admission that he did
not cross out the name of the buyer Soltani Family Trust and his
form interrogatory response explaining that he crossed out the
signature, impliedly conceding he did not cross out each instance
of the name of the buyer.
Kashani attempts to contradict his concession that his
submission was flawed in paragraphs 6 and 7 of his declaration
and exhibits 13 and 14 thereto by describing his correction to the
first page of the purchase and sale agreement. We need not
address whether these paragraphs may be properly disregarded
pursuant to D’Amico.7 Even if they are taken as true, Kashani’s
submission still failed to comply with the CC&Rs.
First, “any notice or communication . . . required by [the
CC&Rs] shall be in writing.” Kashani’s written submission
delivered to Gerowitz unequivocally modified the terms of the
original purchase and sale agreement by stating that his sister
would serve as his agent. He did not make any written correction
to this submission to indicate a change in his position. Instead,
he submitted this letter without modification on two more
occasions to WHA on the night of May 22, 2014, despite having
7 At the hearing on the motion for summary judgment, the
trial court stated “For the most part I would probably overrule
[WHA’s] objections[, including to paragraphs 6 and 7 and exhibits
13 and 14]. I think that’s what my ruling is.”
21
been advised he must use Manns as his broker. Nor did Kashani
correct, in writing, the 5:18 p.m. email from his sister to Gerowitz
on which he was copied that stated he wanted his sister to serve
as his agent. Nor did Kashani state in his 9:31 p.m. email that
he agreed to having Manns act as his agent notwithstanding that
he referred to Manns at least twice in that communication,
complaining that she was not doing her job and would have to
face the consequences.
At oral argument, Kashani contended that he did agree in
writing to Manns acting as his agent. Kashani points to the first
page of the purchase and sale agreement that indicates, among
several other contract terms, that the buyer and seller agree to
Coldwell Banker as their agent. He argued his re-submission of
this page at 9:31 p.m. and 11:18 p.m. constitutes an agreement in
writing to use Coldwell Banker as his agent. Kashani ignores,
however, that at 9:31 p.m. and 11:18 p.m., he also submitted his
cover letter in which he specifically sought to modify this term to
use his sister as his agent. Indeed, on the issue of using Manns
as his agent, his re-submission did not differ in any respect from
his original written submission which was flawed in this respect.
Second, reasonable minds cannot differ that
notwithstanding Kashani’s single correction to the first page of
the purchase and sale agreement, he still failed to cross out the
name of the buyer in at least two more instances.8 (Ambriz v.
Kelegian (2007) 146 Cal. App. 4th 1519 [acknowledging what may
8 Specifically,
Kashani did not cross out the name of the
buyer for the Wood Destroying Pest Inspection and Allocation of
Cost Addendum or for the “For Your Protection: Get a Home
Inspection” form.
22
ordinarily be a question of fact on summary judgment may be
resolved as a matter of law when reasonable minds could not
differ as to the legal effect of the evidence presented]). Indeed,
Kashani impliedly concedes he did not cross out the buyer’s name
on these pages in his reply brief. Because Kashani has failed to
identify a disputed issue of material fact as to his lack of
compliance with the CC&Rs, whether Cantor’s submission
complied is moot.
C. The Trial Court Properly Granted Summary
Judgment of Kashani’s Cause of Action for Fraud
Kashani alleged WHA made two misrepresentations. First,
Gerowitz9 told him how to exercise his right of first refusal.
Second, Gerowitz told him that he was “in,” which Kashani
interpreted to mean that his offer was acceptable.10 Kashani also
alleges that had he known the truth, he would have corrected his
submission.
As a preliminary matter, we note the parties’ arguments
relating to Kashani’s fraud claim are underdeveloped and
problematic. For example, given the nature of Kashani’s fraud
allegations, it logically follows that in order to prevail on his
fraud claim, it must be presumed that Kashani’s submission did
not comply with the CC&Rs and, thus, he would have never been
9 While Kashani contends in the general allegations of his
first amended complaint that attorney Rabkin also advised him
how to exercise his right of first refusal, in his cause of action for
fraud, Kashani alleges that only Gerowitz made false statements.
10 We observe that such a statement could have meant only
that Kashani submitted his paperwork, sans deposit check,
within the required time.
23
eligible for a random drawing. However, neither Kashani nor
WHA takes this position in their briefs, even as an argument in
the alternative. Rather, Kashani and WHA advance the same
arguments they made with respect to Kashani’s breach of
contract cause of action.
“[W]e ‘must presume the judgment is correct, and the
appellant bears the burden of demonstrating error.’ [Citation.]”
(Tubbs v. Berkowitz (2020) 47 Cal. App. 5th 548, 554.) An
appellant who does not develop arguments risks waiving them on
appeal. (See Nelson v. Avondale Homeowners Assn. (2009) 172
Cal. App. 4th 857, 862-863.) Even accepting Kashani’s
underdeveloped fraud arguments, however, we still conclude the
trial court properly granted summary judgment because Kashani
cannot demonstrate a dispute of material fact as to causation.
As to the first alleged fraudulent statement, it is unclear
what Kashani contends is false. Kashani claims Gerowitz
advised him, “simply cross out each instance in which the name
of Soltan[i] Family Trust appeared on the [purchase and sale
agreement], to write and initial [Kashani’s] name next to each
such instance, and then cross out the signature for Soltan[i]
Family Trust at the end of the [purchase and sale agreement]
and sign the [purchase and sale agreement] himself.” As
described above, however, Kashani did not follow these
instructions because he failed to cross out the name of the buyer
in at least two instances. Accordingly, Kashani cannot establish
this statement was a substantial cause of his alleged damages.
As to the second alleged misrepresentation that Kashani
was “in,” we conclude Kashani cannot establish causation as a
matter of law. “A plaintiff who has access to the necessary
information and actually makes an independent investigation
24
that the defendant does not hinder will be charged with
knowledge of the facts that reasonable diligence would have
disclosed and cannot claim reliance on the representations.” (5
Witkin, Summary of Cal. Law (11th ed. 2020) Torts, § 930.)
Here, Kashani admits that between the time that Gerowitz
advised him that he was “in” and the time he delivered the
deposit check several hours later, Kashani reviewed his
submission and discovered a mistake. Kashani further admits
facts that demonstrate he was a sophisticated party to the
transaction: Kashani had been a real estate investor for 28 years
and had purchased units at Wilshire House on two prior
occasions through the right of first refusal procedure. Thus,
there is no question that reasonable diligence would have
revealed to him that his offer did not comply by both failing to
agree unequivocally and in writing to use Manns as his agent and
failing to cross out at least two instances of Soltani Family Trust
and write in his own name. There is no evidence in the record
that WHA hindered Kashani from exercising such diligence.
We also observe the record supports another reason to
affirm the trial court’s ruling as to the fraud cause of action. In
its separate statement and by the evidence cited therein, WHA
advances an argument that Gerowitz’s alleged
misrepresentations may not be attributed to WHA. Specifically,
WHA contended that “WHA provided its attorney Michael
Rabkin with the [r]ight of [f]irst [r]efusal offers from [Kashani]
and Cantor for review to determine compliance with Section 17.”
In support of this fact, WHA cites Gerowitz’s deposition
testimony that she was not involved in the determination of
whether the offers complied; that was for Rabkin to determine.
In his response to WHA’s separate statement, Kashani disputed
25
this fact only on the basis that Gerowitz allegedly did not deliver
his corrected first page of the purchase and sale agreement to
Rabkin. He did not cite any evidence to contradict WHA’s
statement.
WHA also contends in another two facts that Kashani “does
not allege that any WHA director made any false representations
to him” and that Kashani “had no interaction with any WHA
director regarding his offer.” Kashani does not dispute that he
did not speak directly with a director. Rather, to each of these
facts, Kashani responds that Gerowitz was WHA’s agent. But
Kashani does not cite evidence sufficient to create a disputed
issue of material fact that Gerowitz’s statements were within the
scope of her agency. At oral argument, Kashani argued the
following evidence established agency: Gerowitz sent notice to
the owners that they could exercise their right of first refusal;
Gerowitz collected the submissions; Gerowitz knew to call Rabkin
for advice as to how Kashani should complete his submission; and
Gerowitz communicated to Kashani the determination that his
offer did not comply with the CC&Rs. This evidence
demonstrates only that Gerowitz acted in an administrative role
for WHA.11
11 Ostensible authority exists when a principal,
“intentionally or by want of ordinary care, causes or allows a
third person to believe the agent to possess.” (Civ. Code, § 2317.)
While a person may act as an agent for certain purposes, he may
not have authority to act as the principal’s agent for others. (See
Rest.3d Agency, § 1.01, com. a [“Agents who lack authority to
bind their principals to contracts nevertheless often have
authority to negotiate or to transmit or receive information on
their behalf” (italics added)].)
26
Moreover, the evidence in the record establishes that
advising Kashani whether his offer complied with the CC&Rs
was not within the scope of Gerowitz’s agency.12 During her
deposition, Gerowitz unwaveringly testified that she was not
involved in the determination of whether the right of first refusal
submissions complied with the CC&Rs. Rather, Rabkin was
tasked with deciding whether the submissions complied with the
CC&Rs. WHA’s May 7, 2014 notice, signed by Gerowitz, supports
this description of Gerowitz’s duties: it advised its recipients of
their opportunity to exercise their right of first refusal and
directed them to refer to the CC&Rs for additional information.
Also, Kashani acknowledges that when he asked Gerowitz
how to exercise the right of first refusal, she did not answer the
question by herself. Rather, she contacted WHA’s attorney,
Rabkin, to provide that information directly to Kashani, thereby
indicating to Kashani that such knowledge was not within her
purview. Indeed, she emailed Rabkin that she needed Kashani to
hear the rules directly from him and told Kashani “a couple of
times that [she] was unable to assist him in filling it out.”
Further, as described above, Kashani concedes that even
though Gerowitz reviewed his submission, he thereafter
identified an error on the first page of the purchase and sale
agreement while preparing the deposit check. To the extent he
actually believed at the time that Gerowitz’s representations
12 The existence or scope of an agency relationship is
ordinarily a question of fact. However, “summary judgment is
appropriate where, as here, the evidence is undisputed and
susceptible of but a single inference.” (Universal Bank v.
Lawyers Title Ins. Corp. (1997) 62 Cal. App. 4th 1062, 1066; see
Magnecomp Corp. v. Athene Co. (1989) 209 Cal. App. 3d 526, 536.)
27
were made in the scope of her agency, the discovery of this
error—in addition to the other facts stated above—render it
unreasonable for him to have believed so.
Given our ruling, Kashani’s argument that he may seek
nominal damages is moot as is WHA’s argument that the
business judgment rule or reliance on advice of its attorney
shields it from liability.
D. The Trial Court Did Not Abuse Its Discretion in
Awarding Certain Attorneys’ Fees and Costs
Although Kashani appeals from only the trial court’s
October 17, 2018 judgment, we have jurisdiction to consider the
trial court’s later award of specific amounts of attorneys’ fees and
costs except for costs awarded as a result of WHA’s Code of Civil
Procedure section 998 offer to compromise. “ ‘[W]hen a judgment
awards costs and fees to a prevailing party and provides for the
later determination of the amounts, the notice of appeal
subsumes any later order setting the amounts of the award.’ ”
(Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1316,
quoting Grant v. List & Lathrop (1992) 2 Cal. App. 4th 993, 998.)
“[T]he determination of the amount of the award is ‘not a
collateral matter unrelated to the judgment’s validity and
finality,’ but ‘in essence defines the scope of the judgment itself.’
[Citation.]” (Pfeifer, supra, at pp. 1316-1317.) However, “ ‘[a]n
award of expert witness fees pursuant to [Code of Civil
Procedure] section 998 is not incidental to the judgment but is
instead a separately litigated issue. [Citation.] Prevailing
parties do not recover their expert witness fees as a matter of
right. When the opposing party has rejected a settlement offer
and fails to obtain a more favorable judgment, the trial court
may, in its discretion, make an award of expert witness fees.
28
[Citation.] . . . Because expert witness fees are not incidental to
the judgment, the propriety of a postjudgment award of expert
witness fees cannot be reviewed on an appeal from the judgment.’
[Citation.]” (Id. at p. 1317, quoting Fish v. Guevara (1993) 12
Cal. App. 4th 142, 148.)
Kashani contends the trial court abused its discretion in
awarding certain attorneys’ fees and costs. “An abuse of
discretion is shown when the award shocks the conscience or is
not supported by the evidence.” (Jones v. Union Bank of
California (2005) 127 Cal. App. 4th 542, 549-550.) Kashani argues
the award for fees should be reduced by $30,924 for (1) billings
for attending depositions that did not take place; (2) billings for
trial preparation after the motions for summary judgment was
granted; (3) billings for services rendered regarding other
defendants; and (4) billings that were not adequately described.
WHA contends that the trial court reflected its
consideration of these concerns in reducing the award for
attorneys’ fees by $18,500. We agree. The trial court’s ruling
states it heard argument relating to Kashani’s concerns,
reviewed the parties’ briefs, and reduced the attorneys’ fees
award by $18,500. Based upon our review, the billings relating to
attending depositions “that did not take place” totaled $8,000;
billings relating to trial preparation after the grant of summary
judgment totaled approximately $2,000; and fees in the third and
fourth categories are not clearly only for the benefit of other
defendants and are not necessarily inadequately described.
Accordingly, we find the trial court did not abuse its discretion in
awarding attorneys’ fees in the amount of $180,442.
Kashani also contends the trial court should not have
awarded costs for certain filing fees, messenger costs, telephonic
29
appearances, and expert witness fees. Code of Civil Procedure
section 1033.5 provides the court discretion to award costs not
expressly listed therein, and we find no abuse of discretion
relating to the filing fees, messenger costs, or telephonic
appearance fees awarded by the trial court. As to the cost
relating to expert fees awarded pursuant to Code of Civil
Procedure section 998, we are without jurisdiction to review such
fees. (Pfeifer v. John Crane, Inc., supra, 220 Cal.App.4th at
pp. 1316-1317.)
DISPOSITION
The judgment is affirmed. WHA is to recover its costs on
appeal.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
30