Filed 5/29/14 3328 Oakhurst v. Oakhurst National Plaza CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

3328 OAKHURST, LLC,
Plaintiff and Respondent,

v.
OAKHURST NATIONAL PLAZA, LLC et al.,
Defendants and Appellants. B242868
(Los Angeles County Super. Ct. No. SC110202)

APPEAL from a judgment of the Superior Court of Los Angeles County. Allan J. Goodman, Judge. Affirmed.

Law Offices of James B. Smith, James B. Smith; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Defendants and Appellants.

Egerman & Brown, Mark Egerman, Philip Brown and Lee A. Egerman for Plaintiff and Respondent.

_____________ ____________2 Defendant and appellant Oakhurst National Plaza, LLC (Oakhurst National), through its manager, LM Management LLC (LM), entered into a purchase and sale agreement (the purchase agreement) to se ll its apartment building for $7.5 million to Mark Egerman (Mark) (the transaction). Pursuant to an amendment to the purchase agreement, plaintiff and respondent 33 28 Oakhurst, LLC (3328 Oakhurst) was subsequently substituted in for Mark as the buyer.
After Oakhurst National cancelled escrow and terminated the transaction, 3328 Oakhurst sued Oakhurst National, LM, an d LM’s sole owner and member, Marvin Markowitz (Markowitz), for, inter alia, breac h of the purchase agreement. Oakhurst National, LM, and Markowitz cross-complained for breach of the same agreement. Following trial, a jury found in favor of 3328 Oakhurst, and judgment was entered. Oakhurst National and LM appeal. They argue: (1) they were discharged from performance because 3328 Oa khurst did not perform a c oncurrent condition and/or condition precedent; and (2) LM was not a part y to the purchase agre ement. According to Oakhurst National and LM, be cause the judgment must be reversed, so too must the award of attorney fees and co sts in favor of 3328 Oakhurst.
We affirm. FACTUAL AND PROCED URAL BACKGROUND The Purchase Agreement Oakhurst National owned a 31-unit apar tment building located at 3328 Oakhurst Avenue in Los Angeles (the building). LM was Oakhurst National’s managing member; Markowitz was LM’s manager as we ll as its sole member and owner. Oakhurst National elected to sell the property. Mark and his son, Lee Egerman (Lee), learned of the listing and thought the property presented a good investment opportunity.3 In February 2010, Oakhurst National a nd Mark executed the purchase agreement. 1 Pursuant to the purchase agreement, Mark agreed to purchase the property for $7.5 million. Also pursuant to the terms of th e purchase agreement, Mark was to assume Oakhurst National’s existing loan with Chas e Bank (the Chase Ba nk Loan), which was approximately $5.135 million and tender the $2.365 m illion balance into escrow. The purchase agreement provides that time is of the essence. Buyer’s Loan to Seller The parties met on February 17, 2010. At the meeting, Markowitz revealed that he was under tremendous financial pressure and that Oakhurst Nati onal needed funds to meet third party obligations before the close of escrow. Because th ey shared community ties, Mark agreed to loan Oakhurst National $1 million in exchange for an option agreement. In turn, Markowitz promised that Oakhurst National would “not cancel.”
Amendment to Pu rchase Agreement The purchase agreement was formally amended on March 25, 2010. The amendment accomplished three prim ary objectives: (1) Mark a ssigned his interest in the purchase agreement to 3328 Oakhurst, an entity in which Mark and Lee were comanaging members; (2) In lieu of depos iting $225,000, 3328 Oakhurst deposited $1
million into escrow with instructions to rele ase it to Oakhurst National; and (3) Oakhurst National agreed that it could not cancel the purchase agreement while the $1 million loan was still outstanding. Under the terms of the amendment, the $1 million released would be applied to the purchase price of the property, but if, for what ever reason, the transaction did not close, Oakhurst National would still be obligated to repay the loan within six months. If the
transaction did not close and Oakhurst National failed to tim ely repay the $1 million loan, title to the property would be transferred to 3328 Oakhurst, in which Oakhurst National

1 The agreement was signed by LM on Oakhurst National’s behalf.4 would retain the $1 million and 3328 Oakhurst would acquire title to the property subject to the existing lien held by Chase Bank.
Escrow On March 30, 2010, escrow opened, 3328 Oakhurst was to apply to Chase Bank for approval within five days after escrow opened. In fact, 3328 Oakhurst applied to
Chase Bank to assume the Ch ase Bank Loan on February 19 , 2010, six weeks before it was required to do so. And, pursuant to th e terms of the parties’ agreement, Chase Bank was to approve 3328 Oakhurst’s loan assu mption within 45 days of the opening of escrow (May 14, 2010). On May 13, 2010, the day before the e xpiration of the 45-d ay loan assumption deadline, 3328 Oakhurst met with Oakhurst National to discuss the timing of Chase Bank’s approval. It had become apparent that Chase Bank was not going to act within the time frame established by the purchase agr eement. 3328 Oakhurst wanted Oakhurst National to reaffirm its prior representation that it would close the deal, even if Chase Bank did not approve the loan assump tion within the contractual 45 days. At the meeting, Markowitz was very ag itated and distracted by his financial
burdens. He confirmed that “he had to close. He’d give [3328 Oakhurst] whatever time was necessary to get the approval [and that 3328 Oakhurst] shoul d continue to move forward.” He advised 3328 Oakhurst to “[t] ake the time” it needed and expressly stated
that Oakhurst National would not cancel. Also at the meeting, Mark handed Markowitz a draft of a second amendment to the purchase agreement, which would have ex tended the closing date for the escrow. Markowitz was concerned by this amendment because he believed that it put Oakhurst National at risk of losing the property. Mar kowitz stated that he would show it to his attorney and then return it. Based in part on Markowitz’s representati ons made at the May 13, 2010, meeting,
3328 Oakhurst continued to move forward w ith its assumption of th e Chase Bank Loan. However, when Oakhurst National failed to return a signed copy of the second5 amendment to the purchase agreement, 33 28 Oakhurst became concerned about the purchase. Chase Bank’s Approval of 3328 Oak hurst’s Assumption of the Chase Loan On June 3, 2010, Chase Bank sent 3 328 Oakhurst a letter conditionally approving the loan assumption subject to 3328 Oakhurst agreeing to spec ified terms and conditions. The following day, 3328 Oakhurst notif ied both Oakhurst Na tional and its real estate agent that Chase Bank had “tentatively approved the assumption of the loan.” That same day, 3328 Oakhurst also sent Chase Bank an e-mail informing it that it had accepted Chase Bank’s specified terms and conditions.
Oakhurst National Cancels Escrow On June 16, 2010, Oakhurst National notified escrow that it was canceling the sale. Markowitz explained that he was “ unable to wait any longer” and accused 3328 Oakhurst of failing “to comply with the terms of the Purchase Agreement.” 3328 Oakhurst was surprised by Oakhurst Nati onal’s cancellation notice. Believing that
Oakhurst National must have been confused with the loan assumpti on process, Lee sent an e-mail to Oakhurst National detailing where the parties stood in the process.
3328 Oakhurst believed that Oakhurst Na tional did not have the right to cancel escrow and continued its attemp ts to close. On June 21, 2010, Lee, on behalf of 3328 Oakhurst, sent Oakhurst National’s real estate agent an e-mail giving notice that Fannie Mae had approved 3328 Oakhur st’s loan assumption and that escrow was in a position to
close but for Oakhurst National’s notice of canc ellation. By this time, the loan had been approved and Chase Bank had “eve rything [it] needed to pr epare loan documents.” Mark followed up with a seco nd e-mail to Oakhurst Na tional’s real estate agent
about whether Oakhurst National would resci nd its cancellation a nd close and whether
3328 Oakhurst should wire th e requisite funds to escrow. 3328 Oakhurst continued to
make efforts to close the transaction. Throughout this time, Chase Bank remained willing to proceed with 3328 Oa khurst’s assumption of the loan.6 By the end of June 2010, 3328 Oakhur st notified Oakhurst National that it could close within a day and pushed for a closing of escrow. Escrow se nt 3328 Oakhurst and Oakhurst National the loan assumption docu ments, which 3328 Oa khurst executed, but
Oakhurst National did not. Other than the parties signing the loan documents, no other documents were required to close escrow. On August 3, 2010, 3328 Oakhurst sent Oakhurst National’s attorney a letter detailing the history of its effo rt to purchase the property. In that letter, 3328 Oakhurst gave notice that Oakhurst National was in br each for failing to close and again attempted to persuade Oakhurst National to close. Oakhurst National di d not respond to that letter. Repayment of the Loan In September 2010, Oakhurst National re paid 3328 Oakhurst the $1 million loan. Complaint In November 2010, 3328 Oa khurst filed an action against Oakhurst National, LM, and Markowitz for breach of contract, breach of the implied covena nt of good faith and fair dealing, and fraud. Oakhurst Nati onal, LM, and Markowitz each filed a crosscomplaint against 3328 Oakhurst, Lee, and Mark. Motion for Summary Judgment 3328 Oakhurst moved for summary judgm ent against LM and Markowitz on their cross-complaints, arguing that they were not parties to the transaction and therefore had no right to sue for breach. The trial court ag reed and entered judgment against LM and Markowitz on their cross-complaints. Trial; Judgment; Appeal On April 24, 2012, a jury trial commenced. Followi ng a variety of dismissals, a motion for partial directed verdict, and a sti pulation, the only claims submitted to the jury were 3328 Oakhurst’s claims against Oakhur st National and LM for breach of contract and breach of the implied cove nant of good faith and fair dealing. The jury was instructed, pursuant to the stipulation, to treat Oakhurst National and LM as one and the same entity.7 The jury rendered a verdict in favor of 3328 Oakhurst, findi ng Oakhurst National and LM jointly and severally liable for breach of contract and breach of the implied covenant of good faith and fair dealing. It awarded compensatory damages in the amount of $605,100. Judgment was entered, and Oakhurst National, LM, and Markowitz’s timely appeal ensued. DISCUSSION
I. Standard of Review The parties agree as to the standard of re view. We are bound by the jury’s factual determinations if they are supported by subs tantial evidence, and we review questions of law de novo. ( SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461.)
II. Analysis Oakhurst National raises three argumen ts as to why the judgment should be
reversed. We address each in turn. A. Discharge from performance Oakhurst National argues that it was di scharged from its performance under the purchase agreement because 3 328 Oakhurst did not perfo rm. Thus, according to Oakhurst National, it cannot be liable for br each of contract or breach of the implied
covenant. The evidence indicates otherwise. On June 16, 2010, Oakhurst National cancelled and terminated the purchase agreemen t. At that time, 3328 Oakhurst had no obligation to fund the purchase price, since Oakhurst National had expressly waived the
condition that the Chase Bank Loan be assumed within 45 days. In fact, until Chase Bank approved the assumption, 3328 Oakhurst could not fund the purchase price because 3328 Oakhurst was first required to assume the loan, a requirement of the purchase agreement. But, 3328 Oakhurst was always able to tender performance; the only obstacle was Oakhurst Na tional’s refusal to close. Under these circumstances, Oakhurst National was not discharged from performance.8 Pittman v. Canham (1992) 2 Cal.App.4th 556 is di stinguishable. In that case, neither party performed for several months; th erefore, neither the buyer nor the seller was entitled to enforce the contract. ( Id . at pp. 559–560.) Here, 3328 Oakhurst tendered full performance, while Oakhurst National cance lled and terminated the transaction. Oakhurst National also argues that beca use it cannot be liable for breach of contract, it necessarily cannot be liable for breach of the implied covenant. As set forth above, we conclude that Oakhurst National is liable for breach of contract. Thus, this argument fails. B. Because LM was not a party to the purchase agreement, it cannot be liable for
its breach LM argues that as Oakhurst National’s agent, it was not liable for Oakhurst National’s breach of contract. But, LM forg ets that it stipulated that it and Oakhurst National were to be treated by the jury as one and the same company. 2 Specifically, they agreed that all instructions referring to Oakhurst National were to include LM. Following those instructions, the jury found LM “j ointly and severally liable” for Oakhurst
National’s breach of contract. LM cannot now complain that the jury did so. ( Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.) C. Attorney fees and costs Finally, Oakhurst National and LM assert that because the judg ment against each of them must be reversed, so too must the aw ard of attorney fees and costs. Because we affirm the judgment, this argument fails.

2 At oral argument, appellants’ counsel argued that the parties entered into a standard agency stipulation. The terms of that stipulation are never clarified for us. And, in any event, no agency instruc tions were given to the jury.9 DISPOSITION The judgment is affirmed. 3328 Oa khurst is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______ ____________________, J. ASHMANN-GERST

We concur:

________________ ______________, P. J. BOREN

___________________ ___________, J. * FERNS

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.