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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 parti es from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b)

. This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPEL L ATE DISTRICT

DIVISION EIGHT

MAUREEN TARICCO
,
Plaintiff and Appellant
,

v.

DEANE T ARICCO
,
Def e ndant and Responde nt

. B 3 123 03

Los A ngeles County Super. Ct. No

. YC071264

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert B. Broadbelt
, Judge. Aff irmed.

Den tons US, Robert F. Sc o ular
, D avid Simonton ; Primary Law Grou p and Joshua Kroot for Pla in t iff and Appellant.

Sauer & Wagner, Gerald L. Sa uer and Amir A. Torkamani for Defendant and Respondent.

__________________________2 SUMMARY This case presents a dispute over ownership of a fam ily

o wned co m pany w hose business consist s of owning and leasi n g

commer cial property. The mother , Deane Taricco (defendant here)
, was the majority shareholder . H er son , Tari Taricco
, was the mino rity shareholde r and president of the comp any . In a
two

- sen tenc e “

Agree m ent to Sell Shares ” si gned in 2008, defenda nt agr eed to sell all her shares to her son, at an y 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 sh e wa s in a h u rry at the time and did not read it
, and he r son did not give h e r a copy of it

. In November 2013, the son died in an accident

. His wife Ma ureen Tar ic co ( the personal representative of the son ’ s estate ) s ued his mother for specific performance of t he 2008 agreement. After a 14

- day court tri al, the court found Mauree n 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 o ption to pu rcha s e sto ck while he was an employee of the company
, wh ich provided

an incentive to continue his employment

. T he court rejected defendant ’ s un clean hands defense, finding nothing prevented her from rea ding the agreement before she signed it, or from maki ng a copy of it when she signed it. The

c ourt also fou nd that, since n either party pre sented evidence of the value of defendant ’ s shares in 2008
, there was no evidence to support defe ndant ’ s assertion that the option price undervalued her shares of the co m pan y

. Defe n dant sought a ne w trial , cont ending, among other things, an error of law : that s pecific performance “ cannot be3

enforced against a party to a contract ” in cases where “ he has no t received an adequate consideration for the contract ” or “ [i]f it is

n ot, as t o him, just and reasonable. ” (Civ. Code, § 3391, subds. 1. & 2.) Defendant a r gued the trial court ’ s failu re to make any express findings as to whether plaintiff met her burden of proof on this issue precluded the grant of speci fic performanc e. T he tria l co urt agreed, and granted a new trial, limited to the issues of w hether 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 testi mony , that t h e f

air market value of defendant ’ s shar es in 2008 was more than $ 5 .4 million
, while the option price in the 2008 agreement was approximately $5 30,000

. The court concluded plaintiff did not meet her burden of provi ng defendant received adequat e co n siderat i on

. Further, the court found t h a t,
t aken together, the gross disparity between the fair market value and the option price, and the circumstances in which defendant signed the 2008 agree ment, “ establish that the 2008 Agreement is not just and re as o nabl e a s to defendant. ” O n 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 ” a t the sec ond t rial. P laintiff also rais e s 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 contrad iction in the trial court ’ s findings in the two trial s ; nor do we fin d any er r or in the court ’ s

e videntiary ruling or its summary adjudication

. Accordingly, we aff irm the judgment

.4 F ACT S 1

. The Background We recite the backgrou nd facts , for the most part as found in the trial court ’ s statement of decision a fte r the fir st t r ial, of t en quoting without at tribution from the trial court ’ s rul ing. The company whose ownership is at issue is Fuel Engineering Corporati on (FE C), a nominal defendant. FE C owns commercial real estat e , and its prin cip al activity is leasi ng its

prope rty t o sever a l tenants. Defendan t ’ s late hus band, Lawrence Taricco, co

- founded the company in the 1950 ’ s. In 1976, defendant a nd her husband acquired all 100 outstanding shares of FEC. They gave five shares to each of their two sons, T ari an d T odd Taric co. In 1980
, defend ant became F EC ’ s pres ident; her husban d was vice president; and Ta ri and Todd were secretary an d
treasu rer, respectively. In 1981, d efendant and Tari were responsible for the company ’ s day

- to

- day business opera tio ns

. Lawrence Taricco died i n July 1981, and d efe ndant was then the

owne r of their 90 shares. In 1984, d efendant redeemed some of her shares, reducing her ownership from 90 shares to 62.61 shares . With the so ns each having five shares, a tot al of 72.61 shares were outstandin g

. In 1 9 91, def

endant 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, de fendant signed

a n “ Agree ment to Sell and Transfer Stock. ” Defendan t ag r e ed to

s ell all her shares to Tari for $28,000 per share , if purchase d i n who le or in part within fiv e years, on or before May 25, 1997. The trial court stated: “ Pur s ua nt to that agreement Tari5

purchased a certain number of shares of FE C from defend ant. ” (More about the number of shares later.) Effec tive December 29, 1992, de fendant retired as president of FEC, and Tari became “ chief o fficer ”

— p resident
,
s ecr etary and treasure r

— with sole responsibility for FEC ’ s management and operations. In August 1 998 , Tari pu rchase d his brother Todd ’ s five

s hares, for $150, 000. Def endant and her son Tari were then the

s ol e s hareholders of FEC. On January 22, 2008, defe ndant and Tari entered into the

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

a gre e m ent sta tes, in its e ntirety: “ Deane Taricco agrees to sell all shares h eld in Fuel Engineer ing Corporation, a Cal ifornia Corporation to Tari Tar i cco for the sum of $10,000 per each 1% of share ownership of said Corporation held by Deane Taricco. Th i s

a g r eement may be exe rci sed at any time at the election of Tari Tari cco and shall be binding upo n a ny will or estate o f Deane Taricco. ” Tari died in an airplane cra sh on November 19, 2013. At the time of his death , Tari owned 34 of FEC ’ s out standing 72

. 61 s h ares, o r 47 percent, and d efendant owned 38.61 shares, or 53 percent. After Ta ri ’ s death, plaintiff asked defendant a number of times to honor the stock option in the 2008 agreement, and plaintiff ’ s counsel sent a deman d lett er to defendant on Novem b e r 1 9 , 2015. Defendant refused the demand. Plaintiff filed this lawsui t i n April 2016 , and her first amended complaint in July 2016. S he alleged caus es of action for specific performance, fraud, breach of fi d uciary d uty, declaratory relief, a nd involunt ar y d i ssoluti on. Defendant answered and6

filed a cross

- compla int for dec laratory re lief and money had an d received

. Defendant ’ s answer included unclean hands as an affirmative defen se. 2. The Liti gation Several c l aims and cross

- claims were disposed of be fo re t he firs t trial. Plaintiff a lle ged a ca use of action for specific performance of a May 1992 agreement with Tari to provide “ the stock certificate for the 9 sh a r es of sto ck he purchased f rom [defendant] in 1992. ” The trial court granted summary adjud ic at i o n for d efendant on that issu e o n the ground the claim was time

- barred because it accrued w hen the shares were paid for in 1992. Plaintiff dis missed he r causes of acti o n for fraud and involuntar y dissolution before trial. The court also gra nted summ ary j u dgment to plaintiff on defendant ’ s cross

- complaint. In her cross

- complaint, defendant sought a declaration that she transferred only nine shares of FEC

s t ock to Tari in 1992 , and mistakenly dou ble

- counted when she record ed their shareholdin gs and ex ecu t e d a stoc k certificate for 24 shares ( which also included the 1991 sale o f six shares)

. The court found defendant ’ s causes of action were likewis e b a rred by the statu te of limitations.

a . T he fi rst trial The c auses of act ion at issue in the first tri al w e r e for

s pecific performance of the 2008 agreement, two claims for breach of fiduciary duty, and declaratory r elie f. The c ourt resolved the fi duciar y duty claims in favor of def endant, and they

a re not at issu e i n plaintiff ’ s appeal. At the close of t he f

i r st tria l, plaintiff argued defendant had

“ failed to meet her burden of proving want of consider ation ” ; d efendant was bou n d by the 2008 agreement despite her7

testimony she did n ot read it; and de fe ndant ’ s “ unc lea n h ands ” argument was unfounded. Plain tiff a lso con tended: “ Whatever Defendant ’ s ‘ undervaluation ’ point may be, it is irrelev ant and
t here is no compe t ent evidence to support it. ” Defendant co ntended , a long with points not r ele vant , tha t the 2008 agreement was unenforceable due to lack of

co nsid e r atio n. Further
, specific performance was ba rred by unclean hands bec ause Tari Taricco “ essent i ally tricked [defendant] into signing a document that c ould purp ortedly div est her of t he entirety of her ownership of FE C ’ s shares for $530,000
, ” while th e va l u e of FE C ’ s assets was , defendant claimed, approxima tely $23 million. And in p revious
transact i ons in 19 91 and 1992, Deane sold her shares to Tari for $28,000 and $30,000 per share r esp ectively, far more than the price in the 2008 agreement

. “ Thus, Tari k nowingl y and intentionally misled [defendant] into signing a document that

sev erely undervalue d he r shares of FEC. ” In addition to t he background facts described ea rli er, the trial court ma de the following factual and legal findings. The trial c ourt b egan by rejecting defendant ’ s affirmative defense of la ck of con siderat ion

. The court found d efendant did
not meet her burden to rebut the presumption un der Civil Code section 1614 that a writt en agreement “ is pr esumptive evidence of a consideration

. ” ( § 1614.) And, the court f o und the 2008

a greement was supported by consideration because

“ ‘ [ c ] onsideration is i nherent where stock options are granted to employees and the employee continues emp loyment knowing of the o ptions, ’ ” quoting Newberge r v. Rifk i n d (1972 ) 28 Cal. App.3d 1070, 107 3 (

Newberger )

. In th at connection, the court found:8 “ [D]efendant and Tari had a dual r elationship

— ( 1) they had a fam ily relationship as mother and son, and (2) t hey also had a business relationship as majority share ho lder a nd di re ctor in a co rporation ( d efendant) and minority shareholder, director, employee, and Pres ident in the c orporati on (Tari). ”

“ [A]t the time defendant and Tari entered into the 2008 Agreemen t, Tari was an employee and Pres ident of FE C, defendan t expe c t e d that Tari woul d continue his employment at FEC, and defendant expected and wanted Tari to con tinue to manage and operate FEC. ”

“ In addition, after defendant and Tari entered into the 2008 Ag reement, Tari continue d his employment in that cap acity at F E C for an other five years until he died in Nove mber 2013. Thus, applying the Court o f Appeal ’ s ruling in Newberger, the

cour t f inds that Tari ’ s continued employment at FEC was consideration that supported the 2008 Agreement.

. . . Like th e Co u rt o f A ppea l in Newb e rger, the court finds that t he bargain supporting the stock option agreement w as im plied from the circumstances pre sented in this case. ” After rejecting two other aff irmati ve defen ses not at issue here, the court tur ned to de fendant ’ s affirm a tiv e defense of unclean hands. The court found defendant did not meet her burd en of proving Tari ’ s conduct in o btai ning d efendant ’ s signature on the 2008 a greement barred recovery. The co urt found defendant testified “ that she si gned the 2008 Agr e ement w i tho u t readin g it and that she did not discuss its contents with Tari ei ther be fore signing it or at any other time. ” The court stated “ [t]here was nothing tha t pre vented defendant from reading the one

paragraph 2008 Agreement before she sign e d it
, Tari d id n o t9

make a ny representations to defendant about the contents of the agreement to mislead her or to i nduce her to sign it, and there was nothing preven ting defendant from making a copy of it before Tari left her hous e that mo rning. ” The cou r t ci t ed case s ho l ding tha t parties are bound by contracts even if they do not read them; and that i t is ge nerally n ot rea sonable to fail to read a
contract

. The court added: “ [T]here was no expert testimony or other competen t evidence prese n ted to establish t he valu e of defendan t ’ s shares in FEC at the time she entere d int o the 2008 Agreement. Thus , the re is no evidence to support defe ndant ’ s assertion that the option price for defendant ’ s shares s et forth in the 20 08 Agreem ent ‘ undervalued her shares of FEC

. ’ ” Af ter r ejecting plaintiff

’ s claims that de fenda nt had breached her fiduciary du t ies t o m inority shareholders and t o the company in multiple ways, the court found plaintiff was entitled
to a decl aratory j udgment that the 2008 agreement was valid and

r e quired defe n dant to sell all her shares to plai ntiff as personal representative of T ari ’ s estate. b. The second trial As described at the outset, defendant sought and the trial court gr anted a n ew trial . The c o urt limited the new trial to two issues: w h ether d efen d ant rece ived adequate c onsi deration and whether the agreeme nt was, as to defendant, just and reasonable. ( See , e.g., Lucientes v. Bliss (1958) 157 Cal.App.2d 565, 5 68 [ “ It is a well r ecognized princi p le of law in this state that in an action f or spec ific performa nce of a contra ct a plaintiff must not only allege but mus t also prove that the contract sought to be specifica lly enforced is not only just and reasonable but that th e consi de ration is adequa t e , ” citing Civ. Code, § 3391 ] .)10 i. Whether co n sider at ion w a s adequ ate The court f

irst considered whether defendant re ceived adequate consideration for the 2008 agreement. The court concluded plaintif

f did not mee t her bur den of proof on t h at issue. The court discussed in d etail the ex pert testimony b oth p a rtie s present ed. We need not describe that testimony, as plaintiff does
not c hallen ge the court ’ s conclusion about the va lue of de fendant ’ s shares

. The court ’ s findings were these. The exer cise price for the stock option t o purc hase all defendant ’ s share s wa s $ 531,74 4.94 , about $13,772 per share. The expert witne sses agreed that defen dant ’ s ownership inter est in FE C as of January 2 2, 2008, was worth “ millions. ” (Plaintiff

’ s real estate appr aiser valued FEC ’ s re al estate at $11.9 million, and def enda nt ’ s app r aiser va lued it at $14 million. Plaintiff ’ s business valuation expert opined the fa ir market value of FEC on January 22, 2008
, was $6,765,500, or $93,17 6 per share. Defendant ’ s exp ert opi ned the value was $14,302,200, or $1 9 6 ,972 per share. ) The co urt f

oun d (ex plaining why in detail ) the fair market value of the equity in terest in FEC was $10, 302, 200, and defendant ’ s 38. 61 shares were worth $5,478,142. This w as 1 0. 3 times greater than the optio n purch ase price , and even und e r plaint iff

’ s ex pert ’ s a naly s is, 6.7 times greater than the option purchase price. T he court co ncluded that un der either analy sis, there was “ a gross disparity between the $531,744 option pric e for defendant ’ s FEC shares and the fa ir market value. ” The c ourt also found that Tar i ’ s c on tinued employment at FEC was an element o f the considerati on defendan t received for the 2008 ag r eement. However, “ plaint iff did not establish that11

the value of Tar i ’ s cont inued empl oyment t o d e f e n d a n t justified the i ncredible dispar ity between the opti o n price at which sh e
was comp elled to sell he r FEC shar es under the 2008 Agreem ent and their fair market value at the time

. ” Tari ’ s continued

em ploymen t “ had some value to d efendant, ” but “ it does not appear that it h a d so much value to defendant as to j u stify he r agree ing to divest he rself of h er ownership interest in FEC for 10 .3 times (or even 6.7 times) less tha n it was worth. ” The tri al court also considered other circu mstances relevant to the adequacy of conside r ation. (See, e. g., Berkeley Law n Bo w l ing Clu b v. City of Berkel ey (1974) 42 Cal.App.3d 280, 290 [a challenge based on Civ

. Code
, § 3391 principles “ must be consi dered i n view of the entire circums tances [citation]
, including the object to b e obtained by the contract and the

re lationship of t he parti es and must b e determined as of the time the contract was made ” ].) The court ad dres sed plaintiff ’ s contention the o bject o f the agreement was to ensur e Tari ’ s continued management of FEC and “ to effec tuate the i ntent

. . . that Tari wo uld be come 100%

own er of F EC, keepin g the family business in the family. ” The court found there was “ very lit tle, if any, evidence i ndicating what the parties ’ mutual int ention was a s to the object to be obtained b y the 2008 Agreem ent. The words of t he two

- sen tenc e 2008 Ag ree ment do not shed any light on the parties ’ intention as to the objec t to be ob t ained by it other tha n to give T ari the right, at his e lection, to pur chase defendant ’ s shares of FEC at the
st ate d price. ” T he co urt c onsidered testim ony from p lai n tiff tha t defendant had told her several times that Tari and pl a intiff ’ s family “ ‘ will own [FEC ] ’ ” and “ ‘ [t]his is the legacy for your12

family
, ’ ” and similar statements. But the cou rt found that, “ in l ight of the circ u msta nces under which defendan t si g ned the 2008 Agreement

. . . , the fact tha t these stateme nts we re ma de in various contexts not addressing the 2 008 A greement , and the great disparity between the option price and the fair market value of defenda nt ’ s shar es, these statements do no t es tabl i s h the

o bject to be obtained b y the 2008 Agreement or that defen da nt received adequate considera tion for that co ntract. ” The court also considered pri or transactions in which defe ndant tra nsferr e d shares of her FEC s tock to Tari

. D efendant and her l ate h usband g ave Tari five shares in 1976; in 1991 , def

enda n t sold Tari six shares for $168,000 ($28,00 0 per share) ; and in 1992, Tari purchased nine shares for $270,000 ($30,000 per share). ( Tari al s o purchased his brother ’ s five shares in 1998 fo r $30,0 00 p e r sh are. ) Whi le Tari owned 34 shares when he died (rat her than only the 25 just d escribed)
, the c ourt “ [found] credible defendant ’ s explanation that n ine additional shares of her FEC stock were t ransferred to Ta ri by mista ke when def

enda nt pre pared a sto c k ce rtif icate for Tari for 24 shares that was in ac cur at e because it should have be en for 15 shares

. ” Plain tiff argued thes e transactions showed defend ant historically sold her shares to Tar i at b elow fair market value

. But the court found that
, “ giv en t h e substa ntial length of time betwee n the prior transactions where d efendant transfe rred shares of her stock to Tari (in 1976, 1991, and 1992) and the 2 008 agreement, and the lack of competent evi d ence to show wha t the f air market value of defend ant ’ s shar e s were a t the time of each of the p rior transactions ” (except for t he 19 76 gift ), “ these prior stock transactions

. . . have little probative value in determining13

whether defendant received adequ a te considerat ion for the 20 08 Agreement. The previou s s toc k transac tion s

. . . are also not

pr obative of th e parties ’ mu tual i ntention as to the o bjec t of the 2008 Agreement because

. . . at the time defendant signed the 2008 Agreement, she did not know s he was signing a contract that would allow p l aintiff to buy he r stoc k. ” The cour t specifically fou nd defenda nt ’ s testimony about the c irc umst ances in which she signed the 2008 agreement to be credible. The cou rt described defendant ’ s testimony. Defenda n t
was ge tting re ady to go golfing

. She was in a hurry and w as “on h er way out the do or when Tari a ppeared unannounced at de fend ant ’s home with a paper for her to sign between 8:00 and 9:00 a.m. ” Tari came in a nd said, “ ‘ mother I need your signature

on t his

. ’ ” Defenda nt signed the docu ment but did not read it.

“ Defen d ant knew nothing about what wa s on that paper ” ; she

“ did not know that she had agreed to sell all of her s hares to Tari for less than fair mark et value

. ” “ Although defendant asked Tari f o r a copy of the doc ument, Tari nev er gave her a copy of it. ”

“ Afte r defendant signed the document
, she never had a discussi on

w ith Tari about it. ” Also, the price per share is not apparent on the face of the d ocument and requires a computation ; defendan t testifi ed “ she was not able to de termine the price per sha r e witho u t a calculator. ” The court conclude d th at, “ [ t]aken toge ther, all of these facts concerning the circumstances in which defendant signed the 20 08 Agreement show that the partie s did not h a ve a ‘ mutual i nt ention ’ to be obtained by the c ontract othe r tha n th e objectiv e meaning of the words sta ted in the con tract. ” Finally, the court also considered the “ dual relationship ” of defendant and her son, including expert t estimony that it is14

commo n for parents to transfer shares i n businesses to ch ildr en

a t le s s th an fair market value ( and other expert testimony that the IRS can impose additional tax and penalties against parents who do so). The court fo und t h at neither the mother

- son relationship nor the business re lationsh ip “ made e ith er the

exe r cise pri c e for th e stock opti on

. . . or Tari ’ s continued employment at FEC

. . . adequate consideration for the contract. ” Those relationships “ might j ustify a below

- market sale of defendant ’ s stock to T ari, ” but “ they do not ju stify the gro ss disparity betw een t he f air market v alue 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 th e 2008 agre e ment was no t j us t and

re asonable as to defe ndant . Thi s fin d ing was based on t he gross disparity between the fair market value and the option price
, and on the circumstances in which defendant signed the agreeme nt. The court s tat ed as follows.

“ Defenda nt is b ound by the terms of the agreement e ven though she did n ot r ead it. ” But , the court e xplained, “ the fact that defendant is bound by the contract does not mean that it may be specifi cally enforced against he r , ” citing Civil Co de section 3391. The cou r t repeated th e f indings we have d escribed abo v e ab out t he c i rcumstan ces of t he signing. Specifically, “ the evidence established ” that defendant did not know the contents of the agreement when she signed; she di d not know she had agreed
to se ll her shares for less than fa ir marke t value; Tari did not leav e a c opy w ith defe ndant th at 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 T he court observed that it had fo und in the first trial that defendant did not meet her burden of p rovi n g Tari ’ s conduct barred recovery base d on unclean hands. But “ that finding addressed defendant ’ s affirmative defense of unclean hands and did not addr es s C ivil Code section 3391 ’ s s epa rate rule t hat specific per formance c annot be enforced agains t a p arty to a

con tract if it is not just an d reasonable as to that party

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

’ s conduct, ” while “ se cti on 3391 ’ s restriction o n s pec ific perfo r mance focuses on whether t he contract is just and reaso nabl e as to d efendant

. ” And, there was no ev idence presented in the first trial to support defe ndant ’ s assertion that the option price

un der valued her shar es in FE C, whi le the r e was expert testimony i n the second tri al to establis h the value of her shares in 2 008. On January 20, 2021, the trial court entered its amended judgment in favor o f defendant. Pl a int iff filed a timely noti ce of appeal.

DISCUSSION 1

. The Standard of Review

“ To be entitled to s pecific performa nce of a contract, a plaintiff must ple ad a n d prove that the contract is just and reasonable and the conside ration adequate, as required by [Ci vil C ode] section 3391

. ” ( Pe ter sen v. Hartell (1985 ) 40 Cal.3d 102, 110 .) “ Since that remedy i s discretionary [ citation s ], we must consider whether th e de n ial was an abuse of discretion. ” ( Ibid

. ) Plaintiff does not base her challenge to the judgment on a n absence of substantial e videnc e, instead assertin g “ fundamental and prejudic ial errors of law

. ”16

2

. The Cl aim o f Contradict ory Findings As mentioned at t h e outset , plaintiff ’ s principal contention is that the trial court was bound by factual and legal findi ngs at the first trial that were not vacated, an d “ improperly ignored, recast and contradict e d those fin dings ” at the second trial

. According to pla inti f

f, the c ourt ’ s 2 019 decision and it s 2021 decis ion “ are fun damentally i nconsistent ” and “ cannot l egally co

exist. ” We ha ve described the trial court ’ s findings at both trials in

con siderable det a il. We find it apparent from a reading of the
court ’ s sta t e ments of deci sion that there is no inconsistency or contradi ction

. There were no fi nd ings at the f irst trial on the poin ts th at must be pleaded and pr oved by plaintiff to obtain specific perform a nce. Plaintiff blames defendant, who a sserted
, unsucce ssfu l ly, defe n se s of a total abs ence of consideration a nd unclea n hands. But it wa s plai nt iff ’ s burden to prove adeq uacy of

c onsideration and t h at the agre ement was just and reas onable as to defendan t

. Plaintiff fai led to do so at either trial. We have exa m ined pla intiff ’ s claims the tri al court

“ disre garded or misstated key evidence ” ; “ cast aside and

c ontravene d ” findings at the first trial ; “ fixate[d] s olely on a hypothesized arm ’ s length [fair m a rket value] tran saction ” ; relied

“ on the improp er about

- fac e finding that [ defendant ] ‘ did not know she was signing a contr a ct tha t woul d allow plaintiff to buy her stock
, ’ ” and so on. None of these claims wit hstands scrutiny. Preliminarily, we note tha t plaintiff twice asserts , at the outset of her argument and at it s e nd
, t ha t at the first trial defendant “ waive d and fo rfeit ed ” the i ssues that were decided at the second trial. Plaintiff has not stated th is p oint u nder a separate heading or subheading, as r equired by c ourt rules17

(Ca l. Rul es of Court, rule 8 .204 ( a)(1)(B ) ); no r has plaintiff supported the point with argument ( ibid. ) . She states only that the specific performance issues (adequacy of consideratio n and ju stnes s and reasonableness to defenda n t) w ere not in i ssue at the fi rst tr ia l “ [a]s a re sult of [ d efendant ’ s] d eliberate course of conduct from the outset of the case, and express renunciation. ” (Plaintiff raised this point below in oppositi on to d efenda nt ’ s new trial motion, and the court r e jected it.) In the absence of any argumen t explaining the p oint, w e consider it forfeited , and turn to the cl aims plaintiff has presented.

a. Defendant ’ s signing of the 2008 agreement Plaintiff ar gu es that at the first trial, the cour t “ found that [def enda nt ] knowingly signed the 2008 Agreement ” and then, “ in

a s tartlin g about

- face, ” found in the second trial that defendant did not know what she was signing. Plaintiff misstates the
court ’ s finding at the firs t tri al, adding the word “ k nowi ngly. ” The court made no such finding; the court found that defendan t si g ned the agreement

— a point that has never been disputed. It is plaintiff who has “ recast ” the finding , not the trial court. Plaintiff also poin ts to the trial court ’ s fi n di ng th a t Tari made no representat ions to def endant about the co ntents of the
ag ree m e nt to mi slead or induce her to sign it, and to the court ’ s legal conclusion th at parties are bound by agreements even if they do not read them. Those findings are no t in c onsis tent either ; they are irrel ev ant to the issues before the court at the

seco nd t r ial. Th e existence of a contract does not mean that the
contract ma y be specifically enforced; that is an entirely different question , as Civil Code section 33 91 tel ls u s

.18 b. Defendant ’s knowledge of th e contents of the 2008 agreement Plaintiff ins ists the evid ence “ confirms [ defendant ] knew full well the contents ” of the 2008 agree ment. Plaintiff then recites eviden ce of conversations in 201 3 and 20 14, after Tari ’ s de a th, which she c laims “ established without contradiction that [defenda nt] was ful ly a w are of t he contents of the 2008 Ag reement. ” This is wrong , too. For one thi ng, that evidence does not e stablish defendant knew th e cont en ts of the agreement when she sig n ed it in 2008. For a nother, most of these conversations were hotly disputed at the f irst tri al , and plaintiff cites no findings ( and there are none) by the trial court indicating it agreed with plaintiff ’ s versio n of

eve nt s. Fo r example, plaintiff testi f ie d that in a telepho n e call in No vember 2013, immediately after Tari ’ s death (a nd w h ile defe ndant was on a cruise off the African coast with her
gra nddaughter ), plaintiff asked defendant i f she would hon or the 2008 agree me nt and defenda nt said, “ my word i s my bond. ” D efenda nt , however, te stified to the contrary: that plaintiff said noth i ng about a 2008 agreement during that call , and that she had no idea of its existence. Another examp le is a tape

- recorde d December 18, 20 14 boa rd meeting

. Plaintiff asserts that “ [i]n [defenda nt ’ s] own

wo rds on the recording, heard by the court, she ack n owledged that her stock ‘ was supposed to go to or iginally a nd always t o Tari. ’ ” It was plaintiff, not defenda nt, w h o said de f endant ’ s stock

“ wa s supposed to go to originally and always to Tari

. ” Defendan t ’ s response cannot fa irly b e read as “ acknow ledg [ ing] ” pl aintiff ’ s statement or as showing knowle d ge of th e 200819

agreement ; defen dant said, during the exchange, “ No, my stock

w as not going to Ta ri. ” In short, at the second trial, the trial court specifi cally credited d efenda nt ’ s testimony that she “ did not know that she had a greed to sell all of he r s hares to Tari for less than fair

m arket val u e

. ” The court made no findings in the first trial that undermine its conclusion about the ver acity of defendant ’ s testimony. There was no contradiction of p revi o us findi ngs , a nd theref ore no legal erro r. Pla intiff further complains that t he cou rt decisi o n in the second trial “ omits [defendant ’ s] knowledg e of the v alue of FEC ’ s stock prior to entering into the 2008 Agreement. ” (Plaintiff cites evidence in the se c o nd tria l of an appraisal in 20 06 of FEC ’ s real estate holding s.) W e fail to see how defenda n t ’ s alleged knowledge in 2008 of the v alue of her s tock is relevant to plaintiff ’ s burden to establish the adequ acy of con sideration and the justness of the 2 008 a greemen t

. The point is the co urt found defendant did not kno w she had a greed to sell all he r shares in the first place, at less than fair marke t value or otherwise.

c . The signing circumstances Plaintif f next contends the trial court ’ s reliance on def e n dant ’ s t estimony about t he cir cumstances under which she sign ed the agreement (see pp. 1 3



### – 14 , ante ) “ is foreclosed as a matter of law. ” Acc ordi ng to plaintiff, the court ’ s 2019 ruling

“ reject[ed]

. . . th e exact same factual premises ” in connection

w ith d efendant ’ s un clean hands a rgum ent in the first trial. That is plainly not the case. As sho u ld be apparent from our recitation of the trial

cou rt ’ s rulings , the trial court did not “ cast aside ” its findin gs in the first tri al: that is, that Tari “ di d no t make an y20

repr esentations to defendant about the cont ents of the agreement to mislead her or to induce her to sign it. ” Because there were no

r epresentations
, and because nothing prevented defendant from reading or copying the agreement, and because part i es are b ou nd b y contracts even if they do not read the m, defendant failed to
pr ove her un clean hands defense in the first trial. But at t he second trial, plaintiff had to prove the consideration was adequate and the agreement was just and re asonable as t o d efenda nt. Th e se were different issues, and the tria l court ’ s

r uling at the s econd t r ial did not , as plaintiff asserts, “ insinuat [e]

som e wrongful conce alment ” or “ insinuat [ e] that Tari ’ s conduct

. . . was some how misleading and inequita ble. ” On th e co n tr ary, t he trial court credited defend ant ’ s testimony that she did no t read the agreement and did not know what she was signing. T he court made no contradictory f indings about Tari ’ s co nduct. d

. The object of the 2008 agreement : the relationship o f th e parties As plaintiff points out, the t est for adequacy of consideration “ is no t whether the promisor received the highest price ob tainable for his property, but whether the price he received is fair and reasonable under the circumstances, ” and “ in ad d iti o n to the value of the property to be c o nveyed, the court may consider such fact o rs as the relationship of the parties, their friend ship, love, affection, and regard for each other, and the obj ect to be obtained by the co ntract. ” ( Henderson v. Fisher ( 196 5 ) 236 Ca l.App.2d 468, 474 ; see also O ’H ara v. Wattson (191 6) 172 Cal. 525, 52 8 [ “ [ j ] ust how far such matters [ as the relations of t he parties and the object to be attained by the contract] sho uld incline a cou rt, in its sound discretion, to conclude t h at a price l ess than the value as found, is nevertheless21

adequate to justify specif i c performance, we can n ot state by any general formu la of words ” ]

. ) P laintiff contends the trial court dis reg ard ed its previous findings abo ut the object of the 2008
agree m ent and the relatio nship of the parties. Again, that is not the case. Plaintiff te l ls us the objects of th e 2008 a greement were

“ ensur ing Tari ’ s continued management, effectua t ing that he would b ecome 100% o wner of FEC, and keeping the fam ily business

. . . i n the fa mily

. ” But the trial court made no findings at the first trial concern i ng “ the object to be obtained by the
contract. ” P l aintiff cites four findings we have described above ( ante , a t p p. 4



### – 5 & 8 ) , but none of them say s an ything a bout the obj ect o f the 20 08 agreement . The court merely found that defendant and T ari had a “ dua l relationship ” (f amily and business); Tari was pres ident of FEC in 2008 and defendant expected and wanted him t o continue managing FEC ; Tari

co ntinued in FEC ’ s employ for fiv e years; and in 1992

— m ore than 15 years earlie r

— d efendant had entered into a n agr e ement, to sel l all (or any part) of her stock to Ta ri for $28,000 a share if he purchased within five years (by 1997). None of those findin gs contradicts or is inconsiste nt w i th the t rial court ’ s finding at the second trial that “ there is very little, if a ny, evidence indicating what the parties ’ mutual in tention was as to the object to be ob tained by the 2008 A greement

. ” The c ourt specifically considered plaintiff ’ s te st imon y that de fendant told her several times over the years that Tari and his family w ould own FEC , but concluded in light of the context of th ose statements and other circumstance s that the

s tatements “ do not es tablish the object to be obtained by the 20 08 Agr e ement or that defendant received adequate consideration for22

that contra c t. ” We see no basis to disagree with the trial cou rt ’ s assessment.

e . The object of the 2008 agreement : histo rical st ock transactions Plaintiff next contends th e trial court “ f ixat e s solely on a hypothesized arm ’ s length [fair market value] transa c tion, not the e ntire circumstances of t hese parties
, ” and “ contradicts the undisputed critical fact ” that the av erage price of the shares Tar i purchased from defendant was $5,793 per s hare
, compare d to $13,727 per share in the 2008 agreement

. Both of th e s e claims are false. First, the trial court consider ed the “ entire circumstances ” at length ( see p p

. 10



### – 14 , ante ) . In addit i on to the fair market value of defen dant ’ s sh ares , the court con s idered t he stock option price; Tari ’ s continued employment ; the ob j ect to be obtained by the agreement; defendant ’ s st atements about Tari and his famil y owning FEC; the prior stoc k trans fers ; the circumstan ces under which defendant s igned the agreemen t; a n d the re lationsh ip between defendan t and Tari. Plaintiff ’ s claim t o the contrary is not bor ne out by the reco r d. Second, the claim that Tari ’ s purchases of defen d ant ’ s sto ck averaged $5,793 per share is a bout as far from an “ undisputed

cr itical fact ” as o ne can p ossibly imagine

. The trial court ’ s recitation of T a ri ’ s stock acqui s it ions from defendant was not

“ pla in error, ” nor was i t “ inaccurate and i ncomplete. ” The trial court found Tari wa s given five shares by his parents in 1976, bou ght six shar es f r om defen dant in 1991 for $28,000 a share a nd nine share s in 1992 for $30,000 a share. The court also found def

endant transferred nine other shares by mi stake. Plainti ff b ases h er $ 5,793 “ average price ” in part by23

eliminating the $270,000 Tari paid f or n i ne share s in 1992 ( and by ignoring the court ’ s fin ding that another nine shares were transferred by mist ake )

. Plaintiff eliminates the $27 0,000 by pointi ng out that defend ant ga ve Tari the $270,000 he used to purchase th ose shares. Plaintiff fails t o po i nt out t hat defendant
gave $270,000 to each o f her sons. Tari chose to use his gift t o
pur chase shares; his brother Todd d id not. If anyone has

“ rejigger[ed ] and r econstruct[ed] ” the history of the stock transfers
, it is plaintiff, not the trial cour t. I n any eve nt, the court ’ s conclus i on that stock transactions in 1991 and 1992 have litt le proba tive value in d ete rmining

e ither the object of

, or the ad equacy of consideration for
, the 2008 agreement was a reasonable assessment, not “plain error. ” f

. Ta ri ’ s continue d empl oyment P laintiff n ex t contends t he trial court ignored Tari ’ s continued empl oyment as con sider ation for th e 2008 agreement. That, of course, is not so. The court considered that factor ( as we describe ante, at p

. 11 ) , and concluded Tar i ’ s c ontinued employment had some va l ue to defenda nt , but not so muc h value as to justify an agreeme nt divesting herself of o wnership “ for
1 0.3 times

. . . less than it was worth. ” Plaintiff asserts that defendant ’ s acceptance of consideration in the form of T ari ’ s em ployment “ waived any Se c ti on 3391 obj ecti on she may have had. ” For this proposition, plaintiff cites J

. J. Howel l & Assoc iates, Inc. v

. Antonini (1954) 1 24 Cal.App.2d 388, 391 ( J.J. Howell ) ( “ ‘ fairness and adequacy of consideration need not b e al l eged whe re an agreed upon consi d er at ion has b een accepted, the ac cep tance constituting a waiver of any claim of inadequa cy ’ ” ).24 J.J. Howell has no application here. In that case, the court affirmed an order for specific performance of a contract to c o nve y real pr operty , where the court fo un d the des cription in the gra n t d eed erroneously omitted a portion of the pro perty ag reed to be conveyed. ( J.J. Howell, supra, 124 Cal.App.2d at p p . 389



### – 390.) One of the defendant seller ’ s contentions was that the p lai n tiff fai led to plead and prove t he re was adeq uate consideration a nd that the contract was just and reasonable as to defe ndant. ( Id. at pp. 390



### – 391.) The court observed ther e was an exception to th at rule “ where an agreed upon consideration has been a cce p ted. ” ( Id

. at p. 391.) The ev i de nc e showed the plaintiff “ paid the purchase price of the property involved ” an d the co mplaint had alleged “ that plaintiff pa id the agreed pu rchase price for the property. ” (

Ibid. ) Consequently, there was no merit to the defendan t ’ s objection to the su f fi ci e ncy of t he complaint. ( Ibid

. ) The c ircum stances here , where Tari ’ s employm ent

cons tituted only part of the consideration

— and a part the court found was “ implied from the circumstances ” under Newb e rger,
supra, 28 C al.A p p.3d at p age 1075

— a re not remot e ly analogous

. Th e re was no waiver of the sec tion 3391 requireme nt to prove adequate con sideration in order to obtain specific performance.
g. Plaintiff

’ s evidentiary claim In connection with her claims about the object of t he 2008 agreement and the relat i on ship of the pa r t ies, p laintiff ar gues the trial court erred in excluding test imony abo ut statements made by Tari

. The court sustained defendant ’ s hearsay o bjection when counsel asked plaintiff what Tari told her a bo u t “ w h y he sta y e d

on after the option ag re ement. ” T he cou rt also sust ained defendant ’ s hearsay objection to a question to pla intiff as to what25

Tari said to her w he n he acq u i red shares from defendant in 1992

. And, t he court granted defenda nt ’ s motion to st r i ke plaintif f ’ s testimony that “ I was t old that by Tar i, that he was the majority. ” (This referred to plaintif f ’ s claim tha t T ari owned nine additional shares of FEC
, purportedly giving him a majorit y interest in FEC. ) Pla intiff co ntends t he excluded t es timo n y is adm issible

un der Evidence Cod e section s 1261 and 1250

. We disagree. Evidence Code section 1261 states an exceptio n to the h earsay rule: “ Evidence of a st atement is not made inadmissible by the he arsay rule when offered in an action upon a cl ai m or demand a

gains t the estate of the d eclarant if the state ment was made upon the personal knowledge of the declarant at a t ime when the matter had been recently per ceived by him and while his recol lection w as clear. ” ( Id. , subd. (a) , it alics added .) Si nce t his laws uit is not an action upon “ a claim or demand against the estate of the decla rant ” (Tari), we see no basis to fau lt the trial court ’ s ruling. Plaintiff ’ s only argu men t is a one

sentence assertion that Evidence Code sec t ion 1261 allo ws admis sio n of statemen ts favorable to the estat e as well as statements unfavorable to the estate

. For this assertion
, plaintiff cites Stewart v. Estate of Bohnert (1980) 10 1 Cal.App.3d 978,
989



### – 990

. Stew ar t , however, unlik e this case, was a claim a gain st
an estat e

. (

Id. at p p. 983



### – 9 84 .) The claim wa s one for which the estate would be liable “ only

. . . insofar as [the decedent ’ s] ins urance cover [ed] [the plaintiff ’ s] claim s. ” (

Id. at p. 9 85 .) An exclusi on from cov erage was a t issu e. ( Id

. at p. 984.) The tria l

co u rt admi t ted in evidenc e a declarat ion from the decedent ’ s insurance agent about statements the decedent made to him showing he was aware of the exclusion. ( Id. at p . 989.) The26

C ourt of A ppeal ultimately enforced t he ex clusion

. ( Id. at
pp. 989



### – 990.) Th e court f ound the deced ent ’ s statements were not hear say (because they were admitted only to establ ish t he
st atements were made ), but even if they were he arsay , the evidence “ would be acceptable under sect ion 1261

. ” ( Id. at
p. 9 90.) We do not see how S te w art has an y applicatio n to this

case

. Plaintiff also says the state ments are admi ssible under Ev idence Cod e section 1250, “ to the extent it goes to Tari ’ s then

existing m ental state or intent
, ” but explain s no fu r ther and cite s no author ity to expla in h o w Tari ’ s mental st a te or intent are relevant

. Plaintiff has the burden on appeal of demonstrating prejudic ial error in the trial court ’ s ev ide n ti ary rulings . S he has demonstrated neither error nor prej udice

. 3

. The S ummary A dju dicati on R uling In her c om plaint
, p laintiff also alle ged that in December 1992 Tari purchased an additio nal ni ne shares of FEC stock for $270,000 ($30,000 per share) , pursuant to a w ritten agreement , givin g Tar i ma

jority own ership of the company. The o nly written agreement at t h e time w as defendant ’ s May 25, 1992 five

- year agreement to sell Tari shares for $28,000 a share

. (Th is nine

share allegation was very much di sputed, with def endant

co ntendin g the $270 ,00 0 was payment for t he nine sh ares that were included in Tari ’ s 2 4

- sh a re certi ficate .) Plaintiff a l leged that Tari purchase d the shares but defendan t failed to deliver a share certi ficate . She soug ht s p ecific performance. She claimed the co n tract was “ e xecutory ” and was

n ot breache d until she demanded del ivery of t h e s h a re certi ficate more than 20 years later, in February 2014 after Tari ’ s death.27 T he trial court gr anted defen dant ’ s motion for summ ary

a djudication based on the four

- ye ar stat u te of limita tions , finding

no m erit in pl ain tiff

’ s claim the contract was “ e xec u t ory by

n ature

. ” Th e authorities plaintiff cited, the court s aid, “ do not state a rule that a seller ’ s obligation to provi de stock c ertificates is delayed unt il som e one demands those certif icat es twenty years after someone pays for them. ” On appeal, pla i ntiff ma kes the same argument and cites the same authorities . We are not persuaded. Robbins v. Pacific Eas tern Corp. (1937) 8 Cal.2d 241 ( Robbins ) involved “an e x change, or p urp orted exch ange ” of stock in one company for stock in anoth er . P lainti f fs i n 173 act i ons claimed the exchange was void as to them because it viola ted California secu rities laws. ( Id. a t p. 246.) The court dis cussed when title passes, and s tated the qu estion was “p rimarily one of intention. ” (

Id

. at p. 274.) The documents in t h at case “indicate [d] an intention to have title pass upon delivery of the certificates, and not upon the depo sit of [the stock of one of the companies]. ” (

Ibid. ) Plaintiff co ntends that h ere , “ withou t transfer of th e certificate, the con tract was n ot f u lly perf ormed and remained executory. ” But this case is nothing like R obbins, and plaintif f omits pertinent observations b y the cour t. “[I] n all case s physical del i very o f the certificates is not necessary to effectuate the transfer of tit le to shar es o f stock. ” ( Robbins , supra , 8 Cal.2d at p. 275 , citing cases; see ibid. [ “ [U] nder some circu mstan ces title to shares of stoc k may pass without delivery of the certifi c ates. ”].) R obbins does not support plaintiff ’ s argument that the alleged

c ontract to pur c hase ano ther nine shares w as not b r ea ched until28

20 years after Tari all egedly paid for the shares without receiving a certi ficate

. Leven v. Legarra (1951) 103 Cal.Ap p .2d 319 does not assist pla intiff eith er. T he court observed that “ the int ent ordina rily is that a contract for the sale of stock is perform ed and tit l e to the shares tra nsferred u pon delivery of the st ock. ” ( Id

. at p. 321.) In Leven, t he stock was sol d in violatio n of Califo rnia securities law
, there was an attempt to evade C alifornia law b y ma ilin g a certificate to Nevada and then remailin g it to California, and the only questio n was whether the cour t erred in finding the sale was made in California. (

Id. at p p. 319



### – 320.) Nei t her Robbins nor Leven has any applica tion here
, except to show
, as the t rial court observed, “ that delivery of a s tock certificate is perfo rmance of a sto ck s ale. ” Neither case discuss es when the obligation to deli v er share cer tificat es ari se s

. Here, defendant allegedly failed to perform b y not delive ring a sha re

c e rtificat e. “ If no time is specified f or the performance of an act
requ ired to be performed, a reaso nable time is allowed. ” (Civ. Code, § 1657.) “ If t h e act is in its nature capa ble of being done instantly

— as, for example, if it consists i n the paym ent o f money only

— it must be performed imme diately upon the thing to be done being exa ctly ascertained. ” ( Ibid. ) D efendant ’ s obligatio n to perform arose whe n Tari

a llegedly pai d for the shares in 1992

. This is not a case where the defen dant “ ha s promised to d o an act in the future ” and therefo re does not violate his agre emen t “ unless and u ntil ” a demand for p erformance is made and refused

. ( Leo nard v . Rose (1967 ) 65 C al.2d 589 , 592.) This alleged transaction was a payment for shares th at could have been del i vered im mediately29

but were not. The trial court corr ectly conc luded t he four

- year statute of limitati ons had run. D ISPOSITION The judgment is a f

firmed. D ef

endant shall re cover her

c osts on appeal.

GRIMES, J.

W E CONCUR:

S TRATTON, P. J.

WILEY, J

.