Filed 1/5/15 Stevens v. Multibank 2009-1 RES-ADC Venture CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ANDREW E. STEVENS,
Plaintiff and Respondent, G049835
(Consol. with G049833 &
v. G049839)
MULTIBANK 2009-1 RES-ADC (Super. Ct. No. INC079716)
VENTURE, LLC,
OPINION
Defendant and Appellant.
Appeals from orders and a judgment of the Superior Court of Riverside
County, Randall D. White, Judge. Motion to dismiss appeal. Motion granted in part and
denied in part. Appeals from orders dismissed. Judgment affirmed as modified.
Miltner, Polk & Menck, William L. Miltner and Teresa L. Polk; Katten
Muchin Rosenman, Steve Cochran, Joshua D. Wayser and Rebecca F. Ganz for
Defendant and Appellant.
Nethery & Ofseyer, D. Martin Nethery and Jeremy J. Ofseyer;
Mueller/Olivier/Whittaker, Martin A. Mueller and Julie A. Rosser for Plaintiff and
Respondent.
* * *
These consolidated appeals arise from multiparty litigation concerning an
unsuccessful real estate development project. Plaintiff Andrew E. Stevens sued
numerous parties, including 1st Centennial Bank (1st Centennial), to establish the priority
of his interest in a portion of the land. He obtained a preliminary injunction prohibiting,
1st Centennial from conducting a trustee’s sale or otherwise transferring or encumbering
the property in which he claimed to have an interest. During the litigation the Federal
Deposit Insurance Corporation placed 1st Centennial into receivership and assigned its
interest in the property to defendant Multibank 2009-1 RES-ADC Venture, LLC. The
trial court denied defendant’s motion to dissolve the preliminary injunction. Defendant’s
first appeal is from the latter ruling. (Case No. G049835.) Plaintiff has moved to dismiss
the appeal from this order on several grounds, including mootness.
The court conducted a nonjury trial divided into three phases. The first and
second phases concerned the causes of action in plaintiff’s amended complaint, which
sought quiet title, declaratory relief, and injunctive relief against defendant and several
parties collectively identified as the Shenandoah entities and alleged breach of contract,
breach of the implied covenant of good faith and fair dealing, and specific performance,
against the Shenandoah entities. The trial’s third phase concerned defendant’s claims for
damages from one of the Shenandoah entities.
After trial on phases one and two, the court issued a statement of decision
and an interlocutory judgment for plaintiff on all of his causes of action. Defendant
appealed from the portion of this judgment for plaintiff on the quiet title, declaratory
relief, and injunctive relief claims. (Case No. G049833.) Although denominated an
interlocutory judgment, for the purpose of deciding whether it is appealable, we look to
see whether it is final in substance and effect. (Lyon v. Goss (1942) 19 Cal.2d 659, 669-
670.) Here, the interlocutory judgment had the effect of resolving all of the issues
between plaintiff and defendant and thus is appealable. (Code Civ. Proc., § 577; Wilson
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v. Sharp (1954) 42 Cal.2d 675, 677; Randle v. City and County of San Francisco (1986)
186 Cal.App.3d 449, 454.)
Thereafter, the court denied defendant’s motion to strike plaintiff’s
memorandum of costs and awarded him nearly $38,000. Defendant also filed an appeal
from this order. (Case No. G049839.)
Defendant now acknowledges its appeal from the postjudgment ruling
awarding costs is moot and based on this concession we dismiss the appeal from that
order. We also agree defendant’s appeal from the denial of the motion to dissolve the
preliminary injunction is moot and grant plaintiff’s motion to dismiss the appeal from this
ruling. However, we deny his motion to the extent it seeks to dismiss the appeal on other
grounds and his requests for attorney fees and sanctions. While we affirm the judgment,
we shall direct that it be modified to clarify the procedure to be followed if plaintiff fails
to timely create a lawful parcel on the remaining commercial property. (Code Civ. Proc.,
§ 43; Goldsworthy v. Dobbins (1952) 110 Cal.App.2d 802, 810.)
FACTS AND PROCEDURAL BACKGROUND
The evidence presented at trial established the following relevant facts.
Plaintiff owned land in an unincorporated area of Riverside County adjacent to Varner
Road. He obtained county approval of tentative tract maps referred to as maps 29150 and
29151. The latter map depicted an existing golf course, parcels for potential residential
development, and a strip of land along Varner Road with designations indicating it was
zoned for commercial uses.
In September 2001, plaintiff signed an agreement to sell the property
depicted in maps 29150 and 29151 to Shenandoah Springs LLC’s (SSLLC) predecessor
in interest. The agreement’s recitals state the buyer’s intent was to develop over 300
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residential lots on the property. The purchase price was specified as $9,756.10 for each
residential lot “contained within the Property upon recordation of final tract maps,” with
a proviso the price would be “adjusted” in the event “the number of actual [l]ots
contained within the Tracts upon the recordation of the Final Maps differs from the
number estimated . . . .” Ronald Safren, a principal of the Shenandoah entities, signed the
sale contract on behalf of the buyer.
Safren testified the purchase price did not include the value of the golf
course or the portion designated as commercial property on map 29151. He explained
however that the purchase agreement referenced the entire parcel “because under the
Subdivision Map Act . . . you have to split the property to create legal entities that can be
recorded, and this tract map was overlaid on one parcel that was all in one piece. And
there was no way that we could split it off.”
On April 22, 2002, before the sale agreement’s escrow closed, Safren
signed a letter to plaintiff and the escrow holder that stated: “Please be advised that if
there is any property conveyed to [SSLLC] through the closing of the above referred to
Escrow that is outside the Tentative Tract number 29150 pages 1 and 2 and 29150 pages
1 and 2, then [SSLLC] agrees to deed any such property back to [plaintiff] . . . .” Plaintiff
also signed the letter below the phrase, “Received and acknowledged.” Both Safren and
plaintiff testified the second reference to tract number 29150 was a typographical error
and that it should have referred to tract number 29151. Safren explained this
ambiguously phrased letter “memorializ[ed] my understanding with [plaintiff] regarding
returning to him any land that’s beyond the residential lots.”
To complete development of the residential lots and to create final
subdivision maps, the Shenandoah entities obtained a loan from 1st Centennial secured
by the parcels depicted in maps 29150 and 29151 in 2004. They refinanced the loan with
1st Centennial in 2006.
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Safren and the Shenandoah entities’ other principals, Cary Safren and
Ronald Edwards, testified that when negotiating both loans with 1st Centennial’s vice-
president for real estate lending, Clifford Schoonover, they mentioned their obligation to
reconvey a portion of the property to plaintiff. Cary Safren and Edwards also testified
Sandra Parmer, a loan processor with the bank, was present at a meeting on the 2006
loan. To corroborate this testimony, plaintiff introduced preliminary commitment letters
for the 2004 loan that Schoonover had signed. The letters included a statement the
bank’s approval was “subject to the receipt of an appraisal” showing “[t]he retail LTV
[loan-to-value] shall not exceed 65% of the bulk value of [the] . . . finished lots.”
Both Schoonover and Parmer denied discussing plaintiff’s interest in the
property during the loan negotiations. But on cross-examination, Schoonover
acknowledged sending Safren the commitment letters and that on one occasion he told
Safren the bank “would consider the collateral for residential only.” Parmer testified 1st
Centennial limited construction loans to 65 percent of the collateral’s appraised value and
an appraisal for the 2006 loan reflected the loan amounted to 65.17 percent of the value
of the residential portion of the property alone.
On March 27, 2006, after 1st Centennial approved the second loan, but
before funding it and closing escrow, Parmer received a preliminary title report that
reflected title to the property was vested in the names of both plaintiff and Shenandoah
Springs Development Company, Inc. (SSDC). She circled that part of the report and
faxed it to Edwards. A few hours later, Edwards sent Parmer a fax that contained a copy
of Safren’s April 22, 2002 letter and a copy of a page from a 2005 amendment to escrow
instructions that stated as follows: “Upon the recording of the complete final maps
numbers 29150 and 29151 . . ., Shenandoah Springs, Inc. will deed to [plaintiff]
simultaneously any real property with legally recordable legal descriptions which belong
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to [plaintiff], that lies outside Tract Maps No. 29150 and 29151, which were deeded to
[SSLLC] . . . and as per letter to [plaintiff] dated April 22, 2002, attached hereto . . . .”
Parmer testified she did not remember looking at the latter fax’s attached
documents, but admitted she must have received it because the cover page contained her
handwriting. She also acknowledged that had she seen these documents she would have
shown them to Schoonover. Although he also denied seeing Edwards’ fax, Schoonover
admitted “it would have raised a red flag.” The deed encumbering the property for the
2006 loan was filed April 4. It named only SSDC as the trustor.
In August 2006, the Shenandoah entities recorded a lot line adjustment and
grant deed for a portion of the property depicted on map 29151. One lot established by
this recording, identified as Parcel A, covered a portion of map 29151 that was
designated as zoned for commercial use.
In 2007, plaintiff entered into contract with another Shenandoah entity, The
Club at Shenandoah Springs, Inc., to sell a portion of his interest in the golf course. The
parties’ amended contract contained a paragraph declaring SSLLC and SSDC
“confirm[ed] . . . they are obligated to re-convey . . . the Commercial Property to
[plaintiff] . . . as evidenced by that certain letter agreement . . . dated April 22, 2002,” and
that SSLLC and SSDC would “convey . . . the Commercial Property to [plaintiff] no later
than three (3) years from the Closing [i.e., June 15 2010].”
The next year, SSDC defaulted on the 2006 loan. 1st Centennial recorded a
notice of default and election to sell the property covered by the trust deed. Plaintiff filed
this action, and obtained a preliminary injunction prohibiting 1st Centennial from
proceeding with the foreclosure sale. Defendant moved to dissolve the preliminary
injunction, but the court denied the motion.
At the completion of the trial’s first and second phases, the court issued a
statement of decision and ruled in plaintiff’s favor. In support of this ruling the court
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made the following findings. The contract between plaintiff and the Shenandoah entities
“consisted of a number of documents,” which included the original purchase agreement,
the April 2002 letter, the 2005 escrow instruction, and the 2007 amended purchase and
sale agreement. “[T]he intent of the agreement . . . was that the reconveyance of the
property would take place after legally[]subdivided parcels were created for . . . the
Commercial Property.” Thus, “the contract . . . did not violate the Subdivision Map Act
in any respect.” In addition, 1st Centennial either knew of plaintiff’s interest in the
property or had received “notice of circumstances sufficient to put a prudent person on
inquiry as to [his] interest” and “reasonable pursuit of such inquiry . . . would have
resulted in its learning of [plaintiff’s] interest.” Thus, 1st Centennial “was not a bona fide
encumbrance for value without notice” when the bank “acquired its 2004 encumbrance or
its 2006 encumbrance.”
The court also ruled Parcel A, which was created by the August 2006 lot
line adjustment, “is a lawful parcel which satisfies the Subdivision Map Act.” But it
found “[t]he balance of the Commercial Property has not been lawfully[]subdivided” and
thus “retain[ed] jurisdiction . . . to allow Stevens and/or the Shenandoah Defendants to
engage in the necessary process to create a lawful parcel.”
The interlocutory judgment awarded plaintiff “Fee Simple Absolute title
to, and possession of” Parcel A. As for the remainder of the commercial property, the
court declared plaintiff “is entitled to Fee Simple Absolute title . . ., subject to said
property . . . being lawfully-created, consistent with County of Riverside requirements
and approval,” and gave plaintiff “two years from the date of entry of this judgment
to take such actions as are necessary and appropriate to cause to be created a lawful
parcel . . . .” The judgment enjoined defendant from seeking to foreclose on the
commercial property parcels or interfering with plaintiff’s efforts to create a lawful parcel
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on the remainder of the commercial property, and also directed to “execute such
documents as may be necessary or appropriate to carry out this judgment.”
DISCUSSION
1. The Statute of Frauds
Defendant challenges the trial court’s judgment on the ground plaintiff’s
original agreement with the Shenandoah entities did not contain a description of the
property to be reconveyed to him that satisfied the statute of frauds.
Initially, we question whether defendant can assert this claim. Generally,
“the statute of frauds can be invoked only by the parties” to the agreement and “is not
available to third persons” unless they are in privity with one of the contracting parties.
(Demeter v. Annenson (1947) 80 Cal.App.2d 48, 57; see O’Banion v. Paradiso (1964) 61
Cal.2d 559, 562.) This rule protects against third parties lacking privity from
“invalidat[ing] contracts which the parties themselves were in favor of enforcing.”
(O’Banion v. Paradiso, supra, 61 Cal.2d at p. 563; see Mitchell v. Locurto (1947) 79
Cal.App.2d 507, 512-513 [“It would seem to be the rule that third parties cannot avail
themselves of the defense of the statute if the two principals acquiesce”].) Both plaintiff
and the principals of the Shenandoah entities acknowledged they agreed to a
reconveyance of the commercial property upon the recording of a final map and
defendant has made no attempt to establish it qualifies for the exception to this rule.
But even on the merits, defendant’s statute of frauds claim fails. Civil
Code section 1624, subdivision (a)(3) declares “[a]n agreement . . . for the sale of real
property, or of an interest therein” is “invalid, unless” the contract “or some note or
memorandum thereof, [is] in writing and subscribed by the party to be charged . . . .” “A
description [of real property] fulfills the test of reasonable certainty [for the statute of
8
frauds] if it furnishes the ‘means or key’ by which the description may be made certain
and identified with its location on the ground. [Citation.] In this regard, ‘[c]ourts have
been most liberal in construing executory contracts for the sale of real estate and have
sought, as far as is consistent with the above established rules, to give effect to the
intention of the parties in applying descriptions to property.’” (Alameda Belt Line v. City
of Alameda (2003) 113 Cal.App.4th 15, 21.)
In the Alameda Belt Line case, the city sold a municipal railroad to the
plaintiff. A clause in the agreement gave the city the option to repurchase “‘said belt line
railroad including all extensions thereof.’” (Alameda Belt Line v. City of Alameda, supra,
113 Cal.App.4th at p. 19.) When the city sought to enforce the repurchase option, the
Court of Appeal held the clause’s language satisfied the statute of frauds. “[T]he
contractual language, ‘said belt line railroad including all extensions thereof,’ (italics
added) is a sufficient ‘means or key’ by which extrinsic or parol evidence could be used
to define the property which is the subject of the option.” (Id. at p. 22.)
The same is true here. The trial court found the reconveyance agreement
established by the terms of several documents. These documents clarified that the
Shenandoah entities purchased plaintiff’s property to develop only the residential portion
of it. Plaintiff had obtained approved tentative tract maps, but for the Shenandoah
entities to proceed with their development of the residential parcels, it was necessary to
create and obtain approval for final tract maps that established the existence of legally
recordable lots. In accomplishing this task, the Shenandoah entities agreed to create and
record final maps and then reconvey to plaintiff legally recordable lots along Varner
Road that were zoned for commercial uses.
Defendant focuses on individual documents such as the tentative tract map
and the 2002 letter to support its claim the description of the commercial property was
fatally inadequate. But here, the trial court relied on several additional documents to
9
establish the existence of the reconveyance agreement. It properly did so. “[I]t is the
general rule that several papers relating to the same subject matter and executed as parts
of substantially one transaction, are to be construed together as one contract. . . . The
documents need not be executed contemporaneously.” (Nevin v. Salk (1975) 45
Cal.App.3d 331, 338; see Civ. Code, § 1642 [“Several contracts relating to the same
matters, between the same parties, and made as parts of substantially one transaction, are
to be taken together”].) The question of “whether several writings comprise one
transaction” presents “a question of fact,” which we review for substantial evidence.
(Nevin v. Salk, supra, 45 Cal.App.3d at p. 338.)
Defendant also argues the trial court erred by considering the 2007
amended agreement between plaintiff and The Club at Shenandoah Springs, Inc. to
establish the existence of the reconveyance clause because that agreement was prepared
after the recording of 1st Centennial’s 2006 trust deed. The court’s statement of decision
recognized this document was subsequent to the 2006 encumbrance, but noted it merely
confirmed the reconveyance obligation to which plaintiff and the Shenandoah entities had
previously agreed. Thus, it found plaintiff’s “interest in the property existed, and 1st
Centennial had knowledge and notice of it sufficient to constitute actual or constructive
notice, prior to the creation of the . . . encumbrance.”
Further, defendant’s attack on the trial court’s consideration of parol
evidence to eliminate any ambiguity is unavailing. “[W]hen ambiguous terms in a
memorandum are disputed, extrinsic evidence is admissible to resolve the uncertainty.”
(Sterling v. Taylor (2007) 40 Cal.4th 757, 767.) In deciding whether an agreement
satisfies the statute of frauds, parol evidence “cannot supply” an “essential contractual
term[]” (ibid.), but it “is admissible to identify the property mentioned in a written
agreement” (Alameda Belt Line v. City of Alameda, supra, 113 Cal.App.4th at p. 21) and
“can . . . be used to explain essential terms that were understood by the parties but would
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otherwise be unintelligible to others” (Sterling v. Taylor, supra, 40 Cal.4th at p. 767).
The testimony at trial concerning which parcels the Shenandoah entities would reconvey
to plaintiff was consistent with the terms of the documents identified by the court as the
reconveyance agreement.
We conclude defendant’s statute of frauds claim lacks merit.
2. The Subdivision Map Act
Citing only the 2002 letter agreement and the 2005 escrow amendment,
defendant claims the reconveyance agreement is void because it amounted to merely an
agreement to sell unsubdivided property and was not expressly conditioned on the
recording of a final map. Plaintiff responds by quoting the language of the 2005 escrow
amendment, arguing it “expressly makes clear . . . that the required reconveyance . . . was
to occur upon the recording of the complete final maps – that is, that the only property
that could be reconveyed was that property with legally recordable legal descriptions.”
We agree with plaintiff’s argument. The Subdivision Map Act (Gov. Code,
§ 66410 et seq.; SMA) generally invalidates any contract to “sell, lease, or finance
any parcel or parcels of real property . . . for which a final map is required by this
division or local ordinance, until the final map thereof in full compliance with this
division and any local ordinance has been filed for record by the recorder of the county
in which any portion of the subdivision is located.” (Gov. Code, § 66499.30, subd. (a);
see Black Hills Investments, Inc. v. Albertson’s, Inc. (2007) 146 Cal.App.4th 883, 896
[“contracts . . . illegal under the SMA [are] as a matter of public policy . . . void, not
voidable”].)
But an exception to this rule applies where a “contract to sell . . . is
expressly conditioned upon the approval and filing of a final subdivision map or parcel
map, as required under this division.” (Gov. Code, § 66499.30, subd. (e).) Plaintiff
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argues the reconveyance agreement satisfied the exception. The trial court so found and
we agree with its conclusion. The 2001 purchase and sale contract contained several
references to the need to complete “final recorded tract maps.” The 2005 escrow
amendment expressly conditioned the Shenandoah entities’ obligation to reconvey the
commercial property “[u]pon the recording of the complete final maps.” (Capitalization
omitted.) As with its statute of frauds claim, defendant focuses primarily on the 2002
letter agreement and argues it did “not expressly condition the [re]conveyance on the
recording of a final map.” But as discussed, the trial court found plaintiff’s reconveyance
agreement with the Shenandoah entities consisted of several documents. The evidence
supports its conclusion and, on appeal, we are bound by its finding.
The cases on which defendant relies, Black Hills Investments, Inc. v.
Albertson’s, Inc., supra, 146 Cal.App.4th 883 and Sixells, LLC v. Cannery Business Park
(2008) 170 Cal.App.4th 648, are distinguishable. Each found a contract for the sale of
unsubdivided properties void because it gave a party the option of waiving compliance
with the SMA.
Defendant also argues “[n]either the 2002 Letter Agreement nor the 2005
escrow amendment provide for a remedy if the final tract map is never obtained.” First,
as just mentioned, the latter document expressly conditioned the Shenandoah entities’
reconveyance obligation on the recordation of the final maps. Second, defendant cites no
authority for the proposition the exception created by Government Code
section 66499.30, subdivision (e) requires an agreement to provide an alternative remedy.
In its reply brief, defendant attempts to rely on the recent decision in Corrie
v. Soloway (2013) 216 Cal.App.4th 436. That case actually supports a conclusion the
reconveyance agreement at issue here is valid. In Corrie, the parties entered into an
option agreement giving the plaintiff an option to purchase a portion of a parcel that had
not been subdivided. The parties renewed the option twice with additional terms. Both
12
the original option and the first renewal failed to comply with the SMA. But the second
renewal provided that it was conditioned on compliance with the Act. The Court of
Appeal held the second renewal option constituted an enforceable agreement, noting in
part: “Section 66499.30(e) does not specify a particular form of words required to
expressly condition a sale of real property on compliance with the SMA. We decline to
construe it as a trap for the unwary. The parties in this case used language obviously
designed to track and comply with section 66499.30(e), not to evade it. ‘A contract must
receive such an interpretation as will make it lawful, operative, definite, reasonable, and
capable of being carried into effect, if it can be done without violating the intention of the
parties.’ (Civ. Code, § 1643.) We therefore find that the option agreement created by
Amendment No. 2 satisfied the [SMA’s] requirements.” (Corrie v. Soloway, supra, 216
Cal.App.4th at p. 452.)
The same is true here. We conclude the trial court properly held the
reconveyance agreement complied with the SMA.
3. Parol Evidence
Defendant’s final argument is that the trial court committed prejudicial
error by allowing plaintiff to present “parol evidence . . . to prove that the actual
agreements between the Shenandoah entities and 1st Centennial in 2004 and 2006 were
different from the terms and conditions of the written agreements,” while “limit[ing its]
efforts to introduce the written terms of 1st Centennial’s agreements with SSDC, and to
inquire [about] . . . Safren’s understanding of the written representations he made to 1st
Centennial in those documents.” Plaintiff responds that he “did not offer . . . evidence to
alter the terms of any contracts between the Shenandoah entities and 1st Centennial
Bank,” and thus defendant “has confused the issue of which agreement was actually at
13
issue during trial.” We agree defendant’s argument misconstrues the issues at trial and
the court’s rulings on the admission of evidence.
The trial did not concern the terms of the 2004 and 2006 loan agreements.
Rather, it focused on whether plaintiff held an enforceable interest in the portion of tract
map 29151 designated as commercial property and whether 1st Centennial Bank,
defendant’s predecessor in interest, had notice of or reason to inquire about plaintiff’s
interest in the property before encumbering it. Defendant’s statute of frauds and the
SMA claims addressed the first issue, while its parol evidence argument concerned the
second question.
As previously discussed plaintiff carried his burden of proof on the first
issue. The evidence also supports the trial court finding 1st Centennial knew of
plaintiff’s interest in the commercial parcels or had been placed on inquiry notice as to
his interest. “The determination whether a party is a good faith purchaser or
encumbrancer for value ordinarily is a question of fact; on appeal, that determination will
not be reversed unless it is unsupported by substantial evidence.” (Triple A Management
Co. v. Frisone (1999) 69 Cal.App.4th 520, 536.) “On appeal, we presume the judgment
is correct and indulge all intendments and presumptions in favor of its correctness.”
(Chin v. Namvar (2008) 166 Cal.App.4th 994, 1009.) Defendant’s effort to rely on the
testimony of Schoonover and Parmer and to attack the credibility of plaintiff’s witnesses
lacks merit. “[N]either conflicts in the evidence nor ‘“testimony which is subject to
justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive
province of the [trier of fact] to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.”’” (Oldham v. Kizer (1991) 235
Cal.App.3d 1046, 1065.)
Contrary to defendant’s argument, plaintiff made no attempt to introduce
evidence to vary the terms of either the 2004 or the 2006 loans 1st Centennial made to the
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Shenandoah entities. Rather, plaintiff sought to establish that 1st Centennial’s loan
officers, Schoonover and Parmer, knew about or had reason to inquire regarding
plaintiff’s interest before funding the Shenandoah loans and recording the bank’s trust
deeds securing them. As a result, defendant’s claim that the trial court erroneously
excluded its parol evidence concerning Safren’s understanding of the loan documents is
simply irrelevant.
Defendant also contends plaintiff was improperly allowed to introduce
evidence that 1st Centennial and the Shenandoah entities had a “side deal” to “only rely
on the residential lots as collateral despite the loan documents.” To the contrary, plaintiff
introduced the evidence of the preliminary commitment letters, the appraisal, and oral
testimony to corroborate his claim Schoonover and Parmer knew of or should have
known of his interest in the commercial property. Defendant’s claim that Edwards’
March 27, 2006 fax could not “put 1st Centennial on its guard” is contrary to Parmer’s
testimony. She testified she could not recall seeing the documents attached to the fax, but
that if she had seen them, she would have shown them to Schoonover. In turn,
Schoonover acknowledged that had he seen the documents “it would have raised a red
flag.”
Thus, we reject defendant’s attempt to rely on the parol evidence rule to
overturn the trial court’s judgment.
4. The Injunctions
Defendant’s first appeal (Case No. G049835) challenged the trial court’s
order denying its motion to dissolve the preliminary injunction. That order was
appealable. (Code Civ. Proc., § 904.1, subd. (a)(6) [“An appeal . . . may be taken from”
“an order . . . refusing to . . . dissolve an injunction”]; see San Francisco v. Muller (1960)
177 Cal.App.2d 600, 602.) But while that appeal was pending, this case proceeded to
15
trial and the court entered a judgment on the first and second phases, which included a
permanent injunction affording plaintiff the same relief as the preliminary injunction.
Consequently, defendant’s appeal from the order denying its request to dissolve the
preliminary injunction is now moot. (Pacific Gas & Electric Co. v. City of Berkeley
(1976) 60 Cal.App.3d 123, 126, fn. 4; Peoples Ditch Co. v. Foothill Irr. Dist. (1930) 103
Cal.App. 321, 326 [“‘Upon the entry of the final decree th[e] provisional remedy was
merged in the perpetual injunction . . . and ceased to have any operative effect’”].)
Therefore, we shall dismiss defendant’s appeal from the order denying its motion to
dissolve the preliminary injunction.
Defendant claims the permanent injunction contained in the judgment is too
broad because it “enjoin[s it] from foreclosing against any of the collateral.” But at the
time the trial court entered its interlocutory judgment, a final map creating legally
described lots for the balance of the land covered by tract map 29151 had not yet been
recorded. Thus, the court could not simply allow defendant to proceed with a foreclosure
on the remaining portion of that land.
Finally, it also argues that enjoining foreclosure was improper because
plaintiff could be fully compensated by money damages. Whether a party has an
adequate remedy at law presents a factual question and our review is limited to the
question “whether there is any substantial evidence to support the finding thereon.”
(People v. Monterey Fish Products Co. (1925) 195 Cal. 548, 564.) Defendant fails to
show the trial court’s injunction lacks evidentiary support.
DISPOSITION
Respondent’s motion to dismiss is granted as to appellant’s appeal from the
order denying the motion to dissolve the preliminary injunction. The appeal from that
16
order is dismissed on the ground the ruling is moot. In all other respects, respondent’s
motion is denied. The appeal from the order denying the motion to strike respondent’s
memorandum of costs is dismissed at appellant’s request. The judgment is modified to
state that, if it is determined a lawful parcel cannot be timely created on the remaining
commercial property, appellant may foreclose on it after compensating respondent for the
value of his interest in an amount to be determined by the superior court. As so modified
the judgment is affirmed. Respondent shall recover his costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
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