Filed 1/27/23 Taricco v. Taricco CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MAUREEN TARICCO,

Plaintiff and Appellant,

v.

DEANE TARICCO,

Defendant and Respondent.

 B312303

 Los Angeles County

 Super. Ct. No. YC071264

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Robert B. Broadbelt, Judge. Affirmed.

Dentons US, Robert F. Scoular, David Simonton; Primary 

Law Group and Joshua Kroot for Plaintiff and Appellant.

Sauer & Wagner, Gerald L. Sauer and Amir A. Torkamani 

for Defendant and Respondent.

__________________________
2

SUMMARY

This case presents a dispute over ownership of a familyowned company whose business consists of owning and leasing 

commercial property. The mother, Deane Taricco (defendant 

here), was the majority shareholder. Her son, Tari Taricco, was 

the minority shareholder and president of the company. In a 

two-sentence “Agreement to Sell Shares” signed in 2008, 

defendant agreed to sell all her shares to her son, at any time he 

chose (including after her death), for the sum of $10,000 for each 

1 percent of her share ownership. Defendant signed the 

agreement, but she was in a hurry at the time and did not read it,

and her son did not give her a copy of it. In November 2013, the 

son died in an accident.

His wife Maureen Taricco (the personal representative of 

the son’s estate) sued his mother for specific performance of the 

2008 agreement. After a 14-day court trial, the court found 

Maureen Taricco (plaintiff) was entitled to specific performance. 

Among other things, the court found there was consideration for

the agreement because it granted the son an option to purchase 

stock while he was an employee of the company, which provided 

an incentive to continue his employment.

The court rejected defendant’s unclean hands defense, 

finding nothing prevented her from reading the agreement before 

she signed it, or from making a copy of it when she signed it. The 

court also found that, since neither party presented evidence of

the value of defendant’s shares in 2008, there was no evidence to 

support defendant’s assertion that the option price undervalued 

her shares of the company. 

Defendant sought a new trial, contending, among other 

things, an error of law: that specific performance “cannot be 
3

enforced against a party to a contract” in cases where “he has not 

received an adequate consideration for the contract” or “[i]f it is 

not, as to him, just and reasonable.” (Civ. Code, § 3391, subds. 1. 

& 2.) Defendant argued the trial court’s failure to make any 

express findings as to whether plaintiff met her burden of proof 

on this issue precluded the grant of specific performance. The 

trial court agreed, and granted a new trial, limited to the issues 

of whether defendant received adequate consideration and 

whether the agreement was, as to defendant, just and reasonable.

At the second trial, the court found, based on expert 

testimony, that the fair market value of defendant’s shares in 

2008 was more than $5.4 million, while the option price in the 

2008 agreement was approximately $530,000. The court 

concluded plaintiff did not meet her burden of proving defendant 

received adequate consideration. Further, the court found that, 

taken together, the gross disparity between the fair market value 

and the option price, and the circumstances in which defendant 

signed the 2008 agreement, “establish that the 2008 Agreement 

is not just and reasonable as to defendant.”

On appeal, plaintiff’s principal contention is that the trial 

court was bound by factual and legal findings at the first trial

that were not vacated, and “improperly ignored, recast and 

contradicted those findings” at the second trial. Plaintiff also 

raises an evidentiary issue and a separate issue about ownership 

of nine shares that was resolved against her in a summary 

adjudication. We do not find any contradiction in the trial court’s 

findings in the two trials; nor do we find any error in the court’s 

evidentiary ruling or its summary adjudication. Accordingly, we 

affirm the judgment.
4

FACTS

1. The Background

We recite the background facts, for the most part as found 

in the trial court’s statement of decision after the first trial, often 

quoting without attribution from the trial court’s ruling.

The company whose ownership is at issue is Fuel 

Engineering Corporation (FEC), a nominal defendant. FEC owns 

commercial real estate, and its principal activity is leasing its 

property to several tenants. Defendant’s late husband, Lawrence 

Taricco, co-founded the company in the 1950’s. In 1976, 

defendant and her husband acquired all 100 outstanding shares 

of FEC. They gave five shares to each of their two sons, Tari and 

Todd Taricco.

In 1980, defendant became FEC’s president; her husband 

was vice president; and Tari and Todd were secretary and 

treasurer, respectively. In 1981, defendant and Tari were 

responsible for the company’s day-to-day business operations. 

Lawrence Taricco died in July 1981, and defendant was then the 

owner of their 90 shares.

In 1984, defendant redeemed some of her shares, reducing 

her ownership from 90 shares to 62.61 shares. With the sons 

each having five shares, a total of 72.61 shares were outstanding.

In 1991, defendant sold six shares of FEC to Tari for 

$168,000 ($28,000 per share). 

On May 25, 1992, in preparation for defendant’s retirement 

and Tari assuming sole management of FEC, defendant signed 

an “Agreement to Sell and Transfer Stock.” Defendant agreed to 

sell all her shares to Tari for $28,000 per share, if purchased in 

whole or in part within five years, on or before May 25, 1997.

The trial court stated: “Pursuant to that agreement Tari 
5

purchased a certain number of shares of FEC from defendant.”

(More about the number of shares later.)

Effective December 29, 1992, defendant retired as 

president of FEC, and Tari became “chief officer”—president,

secretary and treasurer—with sole responsibility for FEC’s 

management and operations. 

In August 1998, Tari purchased his brother Todd’s five 

shares, for $150,000. Defendant and her son Tari were then the 

sole shareholders of FEC.

On January 22, 2008, defendant and Tari entered into the

“Agreement to Sell Shares” on which this lawsuit is based. The 

agreement states, in its entirety: “Deane Taricco agrees to sell all 

shares held in Fuel Engineering Corporation, a California 

Corporation to Tari Taricco for the sum of $10,000 per each 1% of 

share ownership of said Corporation held by Deane Taricco. This 

agreement may be exercised at any time at the election of Tari 

Taricco and shall be binding upon any will or estate of Deane 

Taricco.”

Tari died in an airplane crash on November 19, 2013. At 

the time of his death, Tari owned 34 of FEC’s outstanding 

72.61 shares, or 47 percent, and defendant owned 38.61 shares, 

or 53 percent. 

After Tari’s death, plaintiff asked defendant a number of 

times to honor the stock option in the 2008 agreement, and 

plaintiff’s counsel sent a demand letter to defendant on 

November 19, 2015. Defendant refused the demand.

Plaintiff filed this lawsuit in April 2016, and her first 

amended complaint in July 2016. She alleged causes of action for 

specific performance, fraud, breach of fiduciary duty, declaratory 

relief, and involuntary dissolution. Defendant answered and 
6

filed a cross-complaint for declaratory relief and money had and 

received. Defendant’s answer included unclean hands as an 

affirmative defense. 

2. The Litigation

Several claims and cross-claims were disposed of before the 

first trial. Plaintiff alleged a cause of action for specific 

performance of a May 1992 agreement with Tari to provide “the 

stock certificate for the 9 shares of stock he purchased from 

[defendant] in 1992.” The trial court granted summary 

adjudication for defendant on that issue on the ground the claim 

was time-barred because it accrued when the shares were paid 

for in 1992. Plaintiff dismissed her causes of action for fraud and 

involuntary dissolution before trial. 

The court also granted summary judgment to plaintiff on 

defendant’s cross-complaint. In her cross-complaint, defendant 

sought a declaration that she transferred only nine shares of FEC 

stock to Tari in 1992, and mistakenly double-counted when she 

recorded their shareholdings and executed a stock certificate for 

24 shares (which also included the 1991 sale of six shares). The 

court found defendant’s causes of action were likewise barred by 

the statute of limitations. 

a. The first trial

The causes of action at issue in the first trial were for 

specific performance of the 2008 agreement, two claims for 

breach of fiduciary duty, and declaratory relief. The court 

resolved the fiduciary duty claims in favor of defendant, and they 

are not at issue in plaintiff’s appeal.

At the close of the first trial, plaintiff argued defendant had 

“failed to meet her burden of proving want of consideration”; 

defendant was bound by the 2008 agreement despite her 
7

testimony she did not read it; and defendant’s “unclean hands”

argument was unfounded. Plaintiff also contended: “Whatever 

Defendant’s ‘undervaluation’ point may be, it is irrelevant and 

there is no competent evidence to support it.”

Defendant contended, along with points not relevant, that 

the 2008 agreement was unenforceable due to lack of 

consideration. Further, specific performance was barred by 

unclean hands because Tari Taricco “essentially tricked 

[defendant] into signing a document that could purportedly divest 

her of the entirety of her ownership of FEC’s shares for 

$530,000,” while the value of FEC’s assets was, defendant 

claimed, approximately $23 million. And in previous 

transactions in 1991 and 1992, Deane sold her shares to Tari for

$28,000 and $30,000 per share respectively, far more than the 

price in the 2008 agreement. “Thus, Tari knowingly and 

intentionally misled [defendant] into signing a document that 

severely undervalued her shares of FEC.”

In addition to the background facts described earlier, the 

trial court made the following factual and legal findings.

The trial court began by rejecting defendant’s affirmative 

defense of lack of consideration. The court found defendant did 

not meet her burden to rebut the presumption under Civil Code 

section 1614 that a written agreement “is presumptive evidence 

of a consideration.” (§ 1614.) And, the court found the 2008 

agreement was supported by consideration because

“ ‘[c]onsideration is inherent where stock options are granted to 

employees and the employee continues employment knowing of 

the options,’ ” quoting Newberger v. Rifkind (1972) 28 Cal.App.3d 

1070, 1073 (Newberger). In that connection, the court found:
8

“[D]efendant and Tari had a dual relationship—(1) they 

had a family relationship as mother and son, and (2) they also 

had a business relationship as majority shareholder and director 

in a corporation (defendant) and minority shareholder, director, 

employee, and President in the corporation (Tari).”

“[A]t the time defendant and Tari entered into the 2008 

Agreement, Tari was an employee and President of FEC, 

defendant expected that Tari would continue his employment at 

FEC, and defendant expected and wanted Tari to continue to

manage and operate FEC.”

“In addition, after defendant and Tari entered into the 2008 

Agreement, Tari continued his employment in that capacity at 

FEC for another five years until he died in November 2013. 

Thus, applying the Court of Appeal’s ruling in Newberger, the 

court finds that Tari’s continued employment at FEC was 

consideration that supported the 2008 Agreement. . . . Like the 

Court of Appeal in Newberger, the court finds that the bargain 

supporting the stock option agreement was implied from the 

circumstances presented in this case.”

After rejecting two other affirmative defenses not at issue 

here, the court turned to defendant’s affirmative defense of 

unclean hands.

The court found defendant did not meet her burden of

proving Tari’s conduct in obtaining defendant’s signature on the 

2008 agreement barred recovery. The court found defendant 

testified “that she signed the 2008 Agreement without reading it 

and that she did not discuss its contents with Tari either before 

signing it or at any other time.” The court stated “[t]here was 

nothing that prevented defendant from reading the oneparagraph 2008 Agreement before she signed it, Tari did not 
9

make any representations to defendant about the contents of the 

agreement to mislead her or to induce her to sign it, and there 

was nothing preventing defendant from making a copy of it 

before Tari left her house that morning.” The court cited cases 

holding that parties are bound by contracts even if they do not 

read them; and that it is generally not reasonable to fail to read a 

contract.

The court added: “[T]here was no expert testimony or other

competent evidence presented to establish the value of

defendant’s shares in FEC at the time she entered into the 2008 

Agreement. Thus, there is no evidence to support defendant’s 

assertion that the option price for defendant’s shares set forth in 

the 2008 Agreement ‘undervalued her shares of FEC.’ ”

After rejecting plaintiff’s claims that defendant had 

breached her fiduciary duties to minority shareholders and to the 

company in multiple ways, the court found plaintiff was entitled 

to a declaratory judgment that the 2008 agreement was valid and 

required defendant to sell all her shares to plaintiff as personal 

representative of Tari’s estate. 

b. The second trial

As described at the outset, defendant sought and the trial 

court granted a new trial. The court limited the new trial to two 

issues: whether defendant received adequate consideration and 

whether the agreement was, as to defendant, just and reasonable. 

(See, e.g., Lucientes v. Bliss (1958) 157 Cal.App.2d 565, 568 [“It is

a well recognized principle of law in this state that in an action 

for specific performance of a contract a plaintiff must not only 

allege but must also prove that the contract sought to be 

specifically enforced is not only just and reasonable but that the 

consideration is adequate,” citing Civ. Code, § 3391].)
10

i. Whether consideration was adequate

The court first considered whether defendant received 

adequate consideration for the 2008 agreement. The court 

concluded plaintiff did not meet her burden of proof on that issue. 

The court discussed in detail the expert testimony both parties

presented. We need not describe that testimony, as plaintiff does 

not challenge the court’s conclusion about the value of 

defendant’s shares. The court’s findings were these.

The exercise price for the stock option to purchase all 

defendant’s shares was $531,744.94, about $13,772 per share. 

The expert witnesses agreed that defendant’s ownership 

interest in FEC as of January 22, 2008, was worth “millions.” 

(Plaintiff’s real estate appraiser valued FEC’s real estate at 

$11.9 million, and defendant’s appraiser valued it at $14 million. 

Plaintiff’s business valuation expert opined the fair market value 

of FEC on January 22, 2008, was $6,765,500, or $93,176 per 

share. Defendant’s expert opined the value was $14,302,200, or 

$196,972 per share.)

The court found (explaining why in detail) the fair market 

value of the equity interest in FEC was $10,302,200, and 

defendant’s 38.61 shares were worth $5,478,142. This was 

10.3 times greater than the option purchase price, and even 

under plaintiff’s expert’s analysis, 6.7 times greater than the 

option purchase price. The court concluded that under either 

analysis, there was “a gross disparity between the $531,744 

option price for defendant’s FEC shares and the fair market 

value.”

The court also found that Tari’s continued employment at 

FEC was an element of the consideration defendant received for 

the 2008 agreement. However, “plaintiff did not establish that 
11

the value of Tari’s continued employment to defendant justified 

the incredible disparity between the option price at which she 

was compelled to sell her FEC shares under the 2008 Agreement 

and their fair market value at the time.” Tari’s continued

employment “had some value to defendant,” but “it does not 

appear that it had so much value to defendant as to justify her 

agreeing to divest herself of her ownership interest in FEC for 

10.3 times (or even 6.7 times) less than it was worth.”

The trial court also considered other circumstances 

relevant to the adequacy of consideration. (See, e.g., Berkeley

Lawn Bowling Club v. City of Berkeley (1974) 42 Cal.App.3d 280, 

290 [a challenge based on Civ. Code, § 3391 principles “must be 

considered in view of the entire circumstances [citation], 

including the object to be obtained by the contract and the 

relationship of the parties and must be determined as of the time 

the contract was made”].) 

The court addressed plaintiff’s contention the object of the 

agreement was to ensure Tari’s continued management of FEC

and “to effectuate the intent . . . that Tari would become 100% 

owner of FEC, keeping the family business in the family.” The 

court found there was “very little, if any, evidence indicating 

what the parties’ mutual intention was as to the object to be 

obtained by the 2008 Agreement. The words of the two-sentence

2008 Agreement do not shed any light on the parties’ intention as 

to the object to be obtained by it other than to give Tari the right, 

at his election, to purchase defendant’s shares of FEC at the 

stated price.”

The court considered testimony from plaintiff that 

defendant had told her several times that Tari and plaintiff’s 

family “ ‘will own [FEC]’ ” and “ ‘[t]his is the legacy for your 
12

family,’ ” and similar statements. But the court found that, “in 

light of the circumstances under which defendant signed the 2008 

Agreement . . . , the fact that these statements were made in

various contexts not addressing the 2008 Agreement, and the 

great disparity between the option price and the fair market

value of defendant’s shares, these statements do not establish the 

object to be obtained by the 2008 Agreement or that defendant 

received adequate consideration for that contract.”

The court also considered prior transactions in which 

defendant transferred shares of her FEC stock to Tari. 

Defendant and her late husband gave Tari five shares in 1976; in 

1991, defendant sold Tari six shares for $168,000 ($28,000 per 

share); and in 1992, Tari purchased nine shares for $270,000

($30,000 per share). (Tari also purchased his brother’s 

five shares in 1998 for $30,000 per share.) While Tari owned 

34 shares when he died (rather than only the 25 just described), 

the court “[found] credible defendant’s explanation that nine 

additional shares of her FEC stock were transferred to Tari by 

mistake when defendant prepared a stock certificate for Tari for 

24 shares that was inaccurate because it should have been for 

15 shares.”

Plaintiff argued these transactions showed defendant 

historically sold her shares to Tari at below fair market value. 

But the court found that, “given the substantial length of time 

between the prior transactions where defendant transferred 

shares of her stock to Tari (in 1976, 1991, and 1992) and the 2008 

agreement, and the lack of competent evidence to show what the 

fair market value of defendant’s shares were at the time of each 

of the prior transactions” (except for the 1976 gift), “these prior 

stock transactions . . . have little probative value in determining 
13

whether defendant received adequate consideration for the 2008

Agreement. The previous stock transactions . . . are also not 

probative of the parties’ mutual intention as to the object of the 

2008 Agreement because . . . at the time defendant signed the 

2008 Agreement, she did not know she was signing a contract 

that would allow plaintiff to buy her stock.”

The court specifically found defendant’s testimony about 

the circumstances in which she signed the 2008 agreement to be 

credible. The court described defendant’s testimony. Defendant 

was getting ready to go golfing. She was in a hurry and was “on 

her way out the door when Tari appeared unannounced at 

defendant’s home with a paper for her to sign between 8:00 and 

9:00 a.m.” Tari came in and said, “ ‘mother I need your signature

on this.’ ” Defendant signed the document but did not read it.

“Defendant knew nothing about what was on that paper”; she 

“did not know that she had agreed to sell all of her shares to Tari 

for less than fair market value.” “Although defendant asked Tari 

for a copy of the document, Tari never gave her a copy of it.” 

“After defendant signed the document, she never had a discussion 

with Tari about it.” Also, the price per share is not apparent on 

the face of the document and requires a computation; defendant

testified “she was not able to determine the price per share 

without a calculator.”

The court concluded that, “[t]aken together, all of these 

facts concerning the circumstances in which defendant signed the 

2008 Agreement show that the parties did not have a ‘mutual 

intention’ to be obtained by the contract other than the objective

meaning of the words stated in the contract.”

Finally, the court also considered the “dual relationship” of 

defendant and her son, including expert testimony that it is 
14

common for parents to transfer shares in businesses to children 

at less than fair market value (and other expert testimony that 

the IRS can impose additional tax and penalties against parents 

who do so). The court found that neither the mother-son

relationship nor the business relationship “made either the 

exercise price for the stock option . . . or Tari’s continued 

employment at FEC . . . adequate consideration for the contract.”

Those relationships “might justify a below-market sale of 

defendant’s stock to Tari,” but “they do not justify the gross 

disparity between the fair market value of defendant’s shares 

and the option price which plaintiff seeks to enforce.”

ii. Whether the contract was just and 

reasonable as to defendant

The court also found the 2008 agreement was not just and 

reasonable as to defendant. This finding was based on the gross 

disparity between the fair market value and the option price, and 

on the circumstances in which defendant signed the agreement. 

The court stated as follows.

“Defendant is bound by the terms of the agreement even 

though she did not read it.” But, the court explained, “the fact 

that defendant is bound by the contract does not mean that it 

may be specifically enforced against her,” citing Civil Code 

section 3391. The court repeated the findings we have described 

above about the circumstances of the signing. Specifically, “the 

evidence established” that defendant did not know the contents of 

the agreement when she signed; she did not know she had agreed 

to sell her shares for less than fair market value; Tari did not 

leave a copy with defendant that day and never gave her a copy of 

it despite her request; and defendant could not determine the 

price per share without a calculator.
15

The court observed that it had found in the first trial that

defendant did not meet her burden of proving Tari’s conduct

barred recovery based on unclean hands. But “that finding 

addressed defendant’s affirmative defense of unclean hands and 

did not address Civil Code section 3391’s separate rule that 

specific performance cannot be enforced against a party to a 

contract if it is not just and reasonable as to that party.” 

Defendant’s affirmative defense “focused on Tari’s and plaintiff’s 

conduct,” while “section 3391’s restriction on specific performance 

focuses on whether the contract is just and reasonable as to 

defendant.” And, there was no evidence presented in the first 

trial to support defendant’s assertion that the option price 

undervalued her shares in FEC, while there was expert 

testimony in the second trial to establish the value of her shares

in 2008. 

On January 20, 2021, the trial court entered its amended 

judgment in favor of defendant. 

Plaintiff filed a timely notice of appeal.

DISCUSSION

1. The Standard of Review

“To be entitled to specific performance of a contract, a 

plaintiff must plead and prove that the contract is just and 

reasonable and the consideration adequate, as required by [Civil 

Code] section 3391.” (Petersen v. Hartell (1985) 40 Cal.3d 102, 

110.) “Since that remedy is discretionary [citations], we must 

consider whether the denial was an abuse of discretion.” (Ibid.)

Plaintiff does not base her challenge to the judgment on an 

absence of substantial evidence, instead asserting “fundamental 

and prejudicial errors of law.”
16

2. The Claim of Contradictory Findings

As mentioned at the outset, plaintiff’s principal contention 

is that the trial court was bound by factual and legal findings at 

the first trial that were not vacated, and “improperly ignored, 

recast and contradicted those findings” at the second trial.

According to plaintiff, the court’s 2019 decision and its 2021 

decision “are fundamentally inconsistent” and “cannot legally coexist.”

We have described the trial court’s findings at both trials in 

considerable detail. We find it apparent from a reading of the

court’s statements of decision that there is no inconsistency or 

contradiction. There were no findings at the first trial on the 

points that must be pleaded and proved by plaintiff to obtain 

specific performance. Plaintiff blames defendant, who asserted, 

unsuccessfully, defenses of a total absence of consideration and

unclean hands. But it was plaintiff’s burden to prove adequacy of 

consideration and that the agreement was just and reasonable as 

to defendant. Plaintiff failed to do so at either trial. 

We have examined plaintiff’s claims the trial court 

“disregarded or misstated key evidence”; “cast aside and 

contravened” findings at the first trial; “fixate[d] solely on a 

hypothesized arm’s length [fair market value] transaction”; relied 

“on the improper about-face finding that [defendant] ‘did not 

know she was signing a contract that would allow plaintiff to buy 

her stock,’ ” and so on. None of these claims withstands scrutiny.

Preliminarily, we note that plaintiff twice asserts, at the 

outset of her argument and at its end, that at the first trial 

defendant “waived and forfeited” the issues that were decided at 

the second trial. Plaintiff has not stated this point under a 

separate heading or subheading, as required by court rules 
17

(Cal. Rules of Court, rule 8.204(a)(1)(B)); nor has plaintiff 

supported the point with argument (ibid.). She states only that 

the specific performance issues (adequacy of consideration and 

justness and reasonableness to defendant) were not in issue at 

the first trial “[a]s a result of [defendant’s] deliberate course of 

conduct from the outset of the case, and express renunciation.”

(Plaintiff raised this point below in opposition to defendant’s new 

trial motion, and the court rejected it.) In the absence of any 

argument explaining the point, we consider it forfeited, and turn 

to the claims plaintiff has presented.

a. Defendant’s signing of the 2008 agreement

Plaintiff argues that at the first trial, the court “found that 

[defendant] knowingly signed the 2008 Agreement” and then, “in 

a startling about-face,” found in the second trial that defendant 

did not know what she was signing. Plaintiff misstates the 

court’s finding at the first trial, adding the word “knowingly.” 

The court made no such finding; the court found that defendant 

signed the agreement—a point that has never been disputed. It 

is plaintiff who has “recast” the finding, not the trial court.

Plaintiff also points to the trial court’s finding that Tari 

made no representations to defendant about the contents of the 

agreement to mislead or induce her to sign it, and to the court’s 

legal conclusion that parties are bound by agreements even if 

they do not read them. Those findings are not inconsistent 

either; they are irrelevant to the issues before the court at the 

second trial. The existence of a contract does not mean that the 

contract may be specifically enforced; that is an entirely different 

question, as Civil Code section 3391 tells us.
18

b. Defendant’s knowledge of the contents of the 

2008 agreement

Plaintiff insists the evidence “confirms [defendant] knew 

full well the contents” of the 2008 agreement. Plaintiff then 

recites evidence of conversations in 2013 and 2014, after Tari’s 

death, which she claims “established without contradiction that 

[defendant] was fully aware of the contents of the 2008 

Agreement.” This is wrong, too.

For one thing, that evidence does not establish defendant 

knew the contents of the agreement when she signed it in 2008. 

For another, most of these conversations were hotly disputed at 

the first trial, and plaintiff cites no findings (and there are none) 

by the trial court indicating it agreed with plaintiff’s version of 

events. For example, plaintiff testified that in a telephone call in 

November 2013, immediately after Tari’s death (and while 

defendant was on a cruise off the African coast with her 

granddaughter), plaintiff asked defendant if she would honor the 

2008 agreement and defendant said, “my word is my bond.”

Defendant, however, testified to the contrary: that plaintiff said 

nothing about a 2008 agreement during that call, and that she 

had no idea of its existence.

Another example is a tape-recorded December 18, 2014

board meeting. Plaintiff asserts that “[i]n [defendant’s] own 

words on the recording, heard by the court, she acknowledged

that her stock ‘was supposed to go to originally and always to

Tari.’ ” It was plaintiff, not defendant, who said defendant’s stock 

“was supposed to go to originally and always to Tari.” 

Defendant’s response cannot fairly be read as “acknowledg[ing]”

plaintiff’s statement or as showing knowledge of the 2008 
19

agreement; defendant said, during the exchange, “No, my stock 

was not going to Tari.”

In short, at the second trial, the trial court specifically

credited defendant’s testimony that she “did not know that she 

had agreed to sell all of her shares to Tari for less than fair 

market value.” The court made no findings in the first trial that 

undermine its conclusion about the veracity of defendant’s 

testimony. There was no contradiction of previous findings, and 

therefore no legal error.

Plaintiff further complains that the court decision in the 

second trial “omits [defendant’s] knowledge of the value of FEC’s 

stock prior to entering into the 2008 Agreement.” (Plaintiff cites 

evidence in the second trial of an appraisal in 2006 of FEC’s real 

estate holdings.) We fail to see how defendant’s alleged 

knowledge in 2008 of the value of her stock is relevant to 

plaintiff’s burden to establish the adequacy of consideration and 

the justness of the 2008 agreement. The point is the court found 

defendant did not know she had agreed to sell all her shares in 

the first place, at less than fair market value or otherwise.

c. The signing circumstances

Plaintiff next contends the trial court’s reliance on 

defendant’s testimony about the circumstances under which she 

signed the agreement (see pp. 13–14, ante) “is foreclosed as a 

matter of law.” According to plaintiff, the court’s 2019 ruling 

“reject[ed] . . . the exact same factual premises” in connection 

with defendant’s unclean hands argument in the first trial. That 

is plainly not the case.

As should be apparent from our recitation of the trial 

court’s rulings, the trial court did not “cast aside” its findings in 

the first trial: that is, that Tari “did not make any 
20

representations to defendant about the contents of the agreement 

to mislead her or to induce her to sign it.” Because there were no 

representations, and because nothing prevented defendant from 

reading or copying the agreement, and because parties are bound 

by contracts even if they do not read them, defendant failed to 

prove her unclean hands defense in the first trial. But at the

second trial, plaintiff had to prove the consideration was

adequate and the agreement was just and reasonable as to

defendant. These were different issues, and the trial court’s 

ruling at the second trial did not, as plaintiff asserts, “insinuat[e] 

some wrongful concealment” or “insinuat[e] that Tari’s conduct 

. . . was somehow misleading and inequitable.” On the contrary,

the trial court credited defendant’s testimony that she did not 

read the agreement and did not know what she was signing. The 

court made no contradictory findings about Tari’s conduct.

d. The object of the 2008 agreement: 

the relationship of the parties

As plaintiff points out, the test for adequacy of 

consideration “is not whether the promisor received the highest 

price obtainable for his property, but whether the price he

received is fair and reasonable under the circumstances,” and “in 

addition to the value of the property to be conveyed, the court 

may consider such factors as the relationship of the parties, their 

friendship, love, affection, and regard for each other, and the 

object to be obtained by the contract.” (Henderson v. 

Fisher (1965) 236 Cal.App.2d 468, 474; see also O’Hara v. 

Wattson (1916) 172 Cal. 525, 528 [“[j]ust how far such matters [as 

the relations of the parties and the object to be attained by the 

contract] should incline a court, in its sound discretion, to 

conclude that a price less than the value as found, is nevertheless 
21

adequate to justify specific performance, we cannot state by any 

general formula of words”].) Plaintiff contends the trial court 

disregarded its previous findings about the object of the 2008 

agreement and the relationship of the parties. Again, that is not 

the case.

Plaintiff tells us the objects of the 2008 agreement were 

“ensuring Tari’s continued management, effectuating that he 

would become 100% owner of FEC, and keeping the family 

business . . . in the family.” But the trial court made no findings 

at the first trial concerning “the object to be obtained by the 

contract.” Plaintiff cites four findings we have described above

(ante, at pp. 4–5 & 8), but none of them says anything about the 

object of the 2008 agreement. The court merely found that 

defendant and Tari had a “dual relationship” (family and 

business); Tari was president of FEC in 2008 and defendant 

expected and wanted him to continue managing FEC; Tari 

continued in FEC’s employ for five years; and in 1992—more 

than 15 years earlier—defendant had entered into an agreement,

to sell all (or any part) of her stock to Tari for $28,000 a share if 

he purchased within five years (by 1997).

None of those findings contradicts or is inconsistent with 

the trial court’s finding at the second trial that “there is very 

little, if any, evidence indicating what the parties’ mutual 

intention was as to the object to be obtained by the 2008 

Agreement.” The court specifically considered plaintiff’s 

testimony that defendant told her several times over the years 

that Tari and his family would own FEC, but concluded in light of 

the context of those statements and other circumstances that the

statements “do not establish the object to be obtained by the 2008

Agreement or that defendant received adequate consideration for 
22

that contract.” We see no basis to disagree with the trial court’s 

assessment.

e. The object of the 2008 agreement:

historical stock transactions

Plaintiff next contends the trial court “fixates solely on a 

hypothesized arm’s length [fair market value] transaction, not 

the entire circumstances of these parties,” and “contradicts the 

undisputed critical fact” that the average price of the shares Tari 

purchased from defendant was $5,793 per share, compared to 

$13,727 per share in the 2008 agreement. Both of these claims 

are false.

First, the trial court considered the “entire circumstances”

at length (see pp. 10–14, ante). In addition to the fair market 

value of defendant’s shares, the court considered the stock option 

price; Tari’s continued employment; the object to be obtained by 

the agreement; defendant’s statements about Tari and his family 

owning FEC; the prior stock transfers; the circumstances under 

which defendant signed the agreement; and the relationship

between defendant and Tari. Plaintiff’s claim to the contrary is

not borne out by the record.

Second, the claim that Tari’s purchases of defendant’s stock 

averaged $5,793 per share is about as far from an “undisputed 

critical fact” as one can possibly imagine. The trial court’s 

recitation of Tari’s stock acquisitions from defendant was not 

“plain error,” nor was it “inaccurate and incomplete.”

The trial court found Tari was given five shares by his 

parents in 1976, bought six shares from defendant in 1991 for 

$28,000 a share and nine shares in 1992 for $30,000 a share. The 

court also found defendant transferred nine other shares by

mistake. Plaintiff bases her $5,793 “average price” in part by 
23

eliminating the $270,000 Tari paid for nine shares in 1992 (and 

by ignoring the court’s finding that another nine shares were 

transferred by mistake). Plaintiff eliminates the $270,000 by 

pointing out that defendant gave Tari the $270,000 he used to 

purchase those shares. Plaintiff fails to point out that defendant 

gave $270,000 to each of her sons. Tari chose to use his gift to

purchase shares; his brother Todd did not. If anyone has 

“rejigger[ed] and reconstruct[ed]” the history of the stock 

transfers, it is plaintiff, not the trial court.

In any event, the court’s conclusion that stock transactions

in 1991 and 1992 have little probative value in determining 

either the object of, or the adequacy of consideration for, the 2008 

agreement was a reasonable assessment, not “plain error.”

f. Tari’s continued employment

Plaintiff next contends the trial court ignored Tari’s 

continued employment as consideration for the 2008 agreement.

That, of course, is not so. The court considered that factor (as we 

describe ante, at p. 11), and concluded Tari’s continued

employment had some value to defendant, but not so much value 

as to justify an agreement divesting herself of ownership “for 

10.3 times . . . less than it was worth.”

Plaintiff asserts that defendant’s acceptance of 

consideration in the form of Tari’s employment “waived any 

Section 3391 objection she may have had.” For this proposition,

plaintiff cites J.J. Howell & Associates, Inc. v. Antonini (1954) 

124 Cal.App.2d 388, 391 (J.J. Howell) (“ ‘fairness and adequacy of 

consideration need not be alleged where an agreed upon 

consideration has been accepted, the acceptance constituting a 

waiver of any claim of inadequacy’ ”).
24

J.J. Howell has no application here. In that case, the court

affirmed an order for specific performance of a contract to convey

real property, where the court found the description in the grant 

deed erroneously omitted a portion of the property agreed to be 

conveyed. (J.J. Howell, supra, 124 Cal.App.2d at pp. 389–390.) 

One of the defendant seller’s contentions was that the plaintiff

failed to plead and prove there was adequate consideration and 

that the contract was just and reasonable as to defendant. (Id. at 

pp. 390–391.) The court observed there was an exception to that

rule “where an agreed upon consideration has been accepted.” 

(Id. at p. 391.) The evidence showed the plaintiff “paid the

purchase price of the property involved” and the complaint had 

alleged “that plaintiff paid the agreed purchase price for the 

property.” (Ibid.) Consequently, there was no merit to the

defendant’s objection to the sufficiency of the complaint. (Ibid.)

The circumstances here, where Tari’s employment 

constituted only part of the consideration—and a part the court 

found was “implied from the circumstances” under Newberger, 

supra, 28 Cal.App.3d at page 1075—are not remotely analogous. 

There was no waiver of the section 3391 requirement to prove 

adequate consideration in order to obtain specific performance.

g. Plaintiff’s evidentiary claim

In connection with her claims about the object of the 2008 

agreement and the relationship of the parties, plaintiff argues 

the trial court erred in excluding testimony about statements 

made by Tari.

The court sustained defendant’s hearsay objection when 

counsel asked plaintiff what Tari told her about “why he stayed 

on after the option agreement.” The court also sustained 

defendant’s hearsay objection to a question to plaintiff as to what
25

Tari said to her when he acquired shares from defendant in 1992. 

And, the court granted defendant’s motion to strike plaintiff’s 

testimony that “I was told that by Tari, that he was the 

majority.” (This referred to plaintiff’s claim that Tari owned nine 

additional shares of FEC, purportedly giving him a majority 

interest in FEC.)

Plaintiff contends the excluded testimony is admissible 

under Evidence Code sections 1261 and 1250. We disagree.

Evidence Code section 1261 states an exception to the 

hearsay rule: “Evidence of a statement is not made inadmissible 

by the hearsay rule when offered in an action upon a claim or

demand against the estate of the declarant if the statement was 

made upon the personal knowledge of the declarant at a time 

when the matter had been recently perceived by him and while 

his recollection was clear.” (Id., subd. (a), italics added.)

Since this lawsuit is not an action upon “a claim or demand 

against the estate of the declarant” (Tari), we see no basis to fault 

the trial court’s ruling. Plaintiff’s only argument is a onesentence assertion that Evidence Code section 1261 allows 

admission of statements favorable to the estate as well as 

statements unfavorable to the estate. For this assertion, plaintiff 

cites Stewart v. Estate of Bohnert (1980) 101 Cal.App.3d 978,

989–990. Stewart, however, unlike this case, was a claim against 

an estate. (Id. at pp. 983–984.) The claim was one for which the 

estate would be liable “only . . . insofar as [the decedent’s] 

insurance cover[ed] [the plaintiff’s] claims.” (Id. at p. 985.) An 

exclusion from coverage was at issue. (Id. at p. 984.) The trial 

court admitted in evidence a declaration from the decedent’s 

insurance agent about statements the decedent made to him

showing he was aware of the exclusion. (Id. at p. 989.) The 
26

Court of Appeal ultimately enforced the exclusion. (Id. at 

pp. 989–990.) The court found the decedent’s statements were 

not hearsay (because they were admitted only to establish the 

statements were made), but even if they were hearsay, the 

evidence “would be acceptable under section 1261.” (Id. at 

p. 990.) We do not see how Stewart has any application to this 

case. 

Plaintiff also says the statements are admissible under

Evidence Code section 1250, “to the extent it goes to Tari’s thenexisting mental state or intent,” but explains no further and cites 

no authority to explain how Tari’s mental state or intent are 

relevant. 

Plaintiff has the burden on appeal of demonstrating 

prejudicial error in the trial court’s evidentiary rulings. She has 

demonstrated neither error nor prejudice.

3. The Summary Adjudication Ruling

In her complaint, plaintiff also alleged that in December 

1992 Tari purchased an additional nine shares of FEC stock for 

$270,000 ($30,000 per share), pursuant to a written agreement, 

giving Tari majority ownership of the company. The only written 

agreement at the time was defendant’s May 25, 1992 five-year 

agreement to sell Tari shares for $28,000 a share. (This nineshare allegation was very much disputed, with defendant 

contending the $270,000 was payment for the nine shares that 

were included in Tari’s 24-share certificate.)

Plaintiff alleged that Tari purchased the shares but 

defendant failed to deliver a share certificate. She sought specific 

performance. She claimed the contract was “executory” and was 

not breached until she demanded delivery of the share certificate 

more than 20 years later, in February 2014 after Tari’s death.
27

The trial court granted defendant’s motion for summary 

adjudication based on the four-year statute of limitations, finding 

no merit in plaintiff’s claim the contract was “executory by

nature.” The authorities plaintiff cited, the court said, “do not 

state a rule that a seller’s obligation to provide stock certificates 

is delayed until someone demands those certificates twenty years 

after someone pays for them.”

On appeal, plaintiff makes the same argument and cites 

the same authorities. We are not persuaded. 

Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241

(Robbins) involved “an exchange, or purported exchange” of stock 

in one company for stock in another. Plaintiffs in 173 actions

claimed the exchange was void as to them because it violated 

California securities laws. (Id. at p. 246.) The court discussed 

when title passes, and stated the question was “primarily one of 

intention.” (Id. at p. 274.) The documents in that case 

“indicate[d] an intention to have title pass upon delivery of the 

certificates, and not upon the deposit of [the stock of one of the 

companies].” (Ibid.) 

Plaintiff contends that here, “without transfer of the 

certificate, the contract was not fully performed and remained 

executory.” But this case is nothing like Robbins, and plaintiff 

omits pertinent observations by the court. “[I]n all cases physical 

delivery of the certificates is not necessary to effectuate the 

transfer of title to shares of stock.” (Robbins, supra, 8 Cal.2d at 

p. 275, citing cases; see ibid. [“[U]nder some circumstances title 

to shares of stock may pass without delivery of the certificates.”].) 

Robbins does not support plaintiff’s argument that the alleged 

contract to purchase another nine shares was not breached until 
28

20 years after Tari allegedly paid for the shares without receiving 

a certificate.

Leven v. Legarra (1951) 103 Cal.App.2d 319 does not assist 

plaintiff either. The court observed that “the intent ordinarily is 

that a contract for the sale of stock is performed and title to the 

shares transferred upon delivery of the stock.” (Id. at p. 321.) In 

Leven, the stock was sold in violation of California securities law, 

there was an attempt to evade California law by mailing a 

certificate to Nevada and then remailing it to California, and the 

only question was whether the court erred in finding the sale was 

made in California. (Id. at pp. 319–320.)

Neither Robbins nor Leven has any application here, except 

to show, as the trial court observed, “that delivery of a stock 

certificate is performance of a stock sale.” Neither case discusses

when the obligation to deliver share certificates arises. Here, 

defendant allegedly failed to perform by not delivering a share 

certificate. “If no time is specified for the performance of an act 

required to be performed, a reasonable time is allowed.” (Civ. 

Code, § 1657.) “If the act is in its nature capable of being done 

instantly—as, for example, if it consists in the payment of money 

only—it must be performed immediately upon the thing to be 

done being exactly ascertained.” (Ibid.)

Defendant’s obligation to perform arose when Tari 

allegedly paid for the shares in 1992. This is not a case where 

the defendant “has promised to do an act in the future” and 

therefore does not violate his agreement “unless and until” a 

demand for performance is made and refused. (Leonard v. Rose 

(1967) 65 Cal.2d 589, 592.) This alleged transaction was a 

payment for shares that could have been delivered immediately 
29

but were not. The trial court correctly concluded the four-year

statute of limitations had run.

DISPOSITION

The judgment is affirmed. Defendant shall recover her 

costs on appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J. 

WILEY, J.