1

Filed 10/25/13 R. Lawson Enterprises v. Dole Fresh Vegetables CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

R. LAWSON ENTERPRISES, LLC,

Plaintiff and Appellant,

v.

DOLE FRESH VEGETABLES, INC.,

Defendant and Respondent.

C070740

(Super. Ct. No. CV031798)

In this case for breach of contract and fraud, the trial court ruled that the 

interpretation of the contract at issue would be tried first to the court before the trial of 

the remaining issues before the jury. Ultimately, however, the trial court interpreted the 

contract in ruling on an in limine motion, then granted another in limine motion to 

exclude evidence of an appraisal the plaintiff wanted to offer because the appraiser had 

not followed the terms of the contract as the court had interpreted it. The plaintiff 

conceded that it could not prove its case without the excluded evidence. The defendant 

then moved for nonsuit, which the court granted. 

On appeal, the plaintiff contends the trial court erred in granting a separate court 

trial on the interpretation of the contract, erred in its interpretation of the contract, and 
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erred in excluding the plaintiff‟s appraisal evidence based on the erroneous interpretation 

of the contract. Finding no merit in any of these arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 1999, Robert Lawson1 contracted to purchase from Dole Bakersfield, Inc., 

approximately 22 acres of rural land in San Joaquin County on which the company had 

operated a cherry packing facility used in the manufacture of maraschino cherries, which 

involves the use of brine.2 The property included approximately 1.5 acres that had been 

used for percolation ponds into which wastewater from the brining was discharged. 

Lawson bought the property intending to use it to grow grapes and as a winery. 

As part of the purchase agreement, the seller agreed that if any environmental 

agency ever contended the discharges into the ponds had adversely affected groundwater, 

the seller would indemnify and hold the buyer harmless from “any costs of closure, 

remediation or other cost . . . incurred in connection with, or arising from, any legal 

obligation to take corrective action with regard to [the] percolation ponds.” 

The seller‟s obligations under the purchase agreement were apparently later 

assigned to defendant Dole Fresh Vegetables, Inc. (Dole). The buyer‟s rights under the 

agreement were apparently assigned to Wild Rose Vineyards LLC (Wild Rose). (Robert 

Lawson was president of Wild Rose.) 

In August 2004, a cleanup and abatement order was issued to Dole and Wild Rose 

ordering them to “close” the wastewater ponds. One potential method of closing the 

 

1 To the extent there is no reason for distinguishing between them, we will refer to 

Robert Lawson and the limited liability company he manages, plaintiff R. Lawson 

Enterprises, LLC, interchangeably as Lawson. When it is necessary to refer to Robert 

Lawson in particular, we will use his full name.

2 “The modern maraschino cherry is soaked in a salt brine to remove its natural 

color and flavoring,” “then pitted and soaked in a sweetener,” then “dipp[ed] in artificial 

coloring.” (http://cocktails.about.com/od/embellishments/p/maraschino_cherry.htm)
3

ponds involved putting a limited deed restriction on the area of the ponds, precluding the 

land from ever being used to grow crops or otherwise irrigating the land. At some point, 

the parties began negotiating over how much Dole would pay Wild Rose for the deed 

restriction. 

On May 5, 2005, Dole faxed a letter to Robert Lawson proposing that in exchange 

for the limited deed restriction, Dole would place $150,000 in escrow pending an 

appraisal by Randy Edwards of the fair market value of the land to be restricted. The 

land was to be “valued as if [it] had no environmental issues and no deed restrictions, 

constituted a separate parcel and could only be used for agricultural purposes.” Dole 

explained that Edwards “would be looking at the value, on a per acre basis, of 

comparable land, in the same general vicinity, that can be used only for agriculture, on 

the theory that you would use the proceeds from Dole to purchase replacement land for 

growing crops.” If the appraised value was less than $150,000, the amount would be paid 

from the escrow; if it was more, Dole would make up the difference. The appraised 

amount would be final and binding on all parties. 

That same day (May 5), Robert Lawson sent a counteroffer to Dole that varied the 

terms of the proposed appraisal. Under the counteroffer, an agreed-upon escrow agent 

would choose a qualified independent appraiser who would “determine the fair market 

value of the deed restricted property, valued as if the property had no environmental 

issues and no deed restrictions, [and] constituted a separate parcel in an area zoned AG40 (agriculture zoning minimum 40 acres).” The appraiser “would value based on 

property from comparable land of the same area, similar zoning, etc.” 

On May 6, 2005, Dole responded to the counteroffer. In its response, Dole agreed 

the land would be appraised by an independent appraiser in the Stockton-Lodi area who 

would appraise it as if it constituted a separate parcel in an area zoned AG-40. Dole 

continued to insist, however, that the appraised value would be “based on property from 

comparable land, in the same general vicinity, with the same zoning that can only be used 
4

for agriculture.” Dole proposed that the appraiser would be chosen, not by the escrow 

agent, but by each party faxing the other a list of three appraisers within five days of 

delivery of the escrow agreement. If there was a name in common on the two lists, then 

that person would be the appraiser. If there was more than one name in common, the 

appraiser would be the person whose last name came first in the alphabet. If there were 

no names in common, then each party would select one appraiser, and those two 

appraisers would select a third appraiser who was not on either of the lists, and that 

person would be the appraiser for purposes of valuing the land. 

Robert Lawson responded to Dole‟s May 6 letter with one of his own dated May 

9. The May 9 letter included the following statement: “In regards to the phrase in your 

5-6-2005 offer „that can be used only for agri[c]ulture‟, such property does not exist in 

general. We, therefor[e], cannot go out and purchase such a parcel. If this phrase is 

removed and our engineering cost recovered I will agree to your proposal.” 

On May 23, 2005, Dole faxed Lawson a final offer that both parties ended up 

signing. That agreement provided in pertinent part as follows:

1) Dole would place $150,000 in an escrow “pending appraisal by an independent 

appraiser in the Stockton-Lodi area of the fair market value of the Deed Restricted 

Property, valued as if the property had no environmental issues, was not subject to the 

Limited Deed Restriction and constituted a separate parcel in an area zoned AG-40.” 

2) “In appraising the Deed Restricted Property, the appraiser would value based on 

property from comparable land, in the same general vicinity, zoned AG-40. The 

appraiser will not consider as comparable any land (1) that is near to a developed parcel, 

(2) as to which any rezoning request or any development plan or proposal has been 

submitted, (3) as to which rezoning is being considered by the applicable governmental 

authority or (4) a substantial portion of the value of which reflects prospects for rezoning 

and development.” 
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3) “The reason for the restrictions set forth in the [preceding] paragraph is so that 

we can have an apples-to-apples comparison, as the Limited Deed Restriction only 

requires you to forego crop-growing uses of the Deed Restricted Property. This is the 

only approach consistent with your claim that you need the proceeds from Dole to 

purchase land for growing crops to replace the Deed Restricted Property. We will not 

pay you for the added value of land that comes from its being convenient for 

development, since the Limited Deed Restriction does not in any way restrict you from 

developing the Deed Restricted Property.” 

4) “The appraiser will use this agreement as instructions for the appraisal.” 

The agreement went on to provide for selection of the appraiser in the manner first 

set forth in Dole‟s May 6 letter. 

On June 6, 2005, the parties entered into the escrow agreement provided for in the 

May 23 agreement. (The escrow agreement identifies the party on Lawson‟s side of the 

deal as R. Lawson Enterprises, LLC, d/b/a WildRose Vineyard.) For whatever reason, in 

the five days that followed, neither side faxed the other the required list of three 

appraisers. Over eight months later, in February 2006, Lawson submitted a list of three 

appraisers to the title company that was serving as the escrow agent. Dole apparently did 

nothing. 

In the summer of 2006, Lawson engaged one of the appraisers on its list, Bruce 

Willmette, to appraise the property. Instead of giving Willmette the May 23 agreement 

as instructions for the appraisal, however, Lawson gave him the May 5 counteroffer. 

Most significantly, that counteroffer did not contain the language from the May 23 

agreement regarding the types of property that could not be considered comparable.3

 

3 “The appraiser will not consider as comparable any land (1) that is near to a 

developed parcel, (2) as to which any rezoning request or any development plan or 

proposal has been submitted, (3) as to which rezoning is being considered by the 
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Willmette produced a written appraisal report in which he appraised the property 

at $250,000 effective July 11, 2006. In reaching this valuation, Willmette determined 

that “the highest and best use of the site, as if vacant, would be for rural residential 

utilization.” Accordingly, in seeking to identify sales of comparable properties, he 

“search[ed] for approximate 1.65-acre sites suitable for building a residence.” 

On August 10, Lawson‟s attorney sent the appraisal to Dole and demanded release 

of the $150,000 and payment of an additional $100,000. Dole‟s response, if any, does 

not appear in the record. Whatever happened, it did not resolve the matter because in 

February 2007 Lawson commenced the present action by filing a complaint for breach of 

contract and fraud against Dole.4 

In September 2008, Dole took Willmette‟s deposition. At the same time, with the 

trial in the action set for December, the trial court issued a trial management order that 

authorized the parties to file motions in limine regarding legal issues on the law and 

motion calendar prior to the start of trial. In October 2008, Dole filed a motion that, as 

relevant here, requested a separate court trial “on issues relating to construction of the 

appraisal instructions and valuation provisions of the underlying contract.” Dole argued 

the contract was “clear and unambiguous” and thus its construction was “a pure question 

of law for the Court to determine.” 

In opposing the motion, Lawson asserted that it intended to offer extrinsic 

evidence “regarding the meaning of the words used in th[e] contract” and “regarding 

whether the agreement is reasonably susceptible to the particular meaning advanced” but 

 

applicable governmental authority or (4) a substantial portion of the value of which 

reflects prospects for rezoning and development.”

4 The fraud claim was based on the premise that Dole never intended to compensate 

Lawson for the fair market value of the property subject to the deed restriction. Thus, it 

was essentially a claim of promissory fraud.
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admitted that it had “no way of knowing whether [Dole] intends to offer extrinsic 

evidence.” 

In November 2008, the trial court granted Dole‟s motion, ordering that the court 

trial on the issue of contract interpretation would be held on the first scheduled trial date, 

with the jury trial of the remaining issues to follow. 

The matter was not tried in December 2008; instead, the trial was continued 

several times for various reasons. Eventually, trial was set for June 21, 2010. In advance 

of that trial date, in May 2010 Lawson filed a motion in limine to preclude Dole‟s expert 

witness, Robert Arnold, from testifying as to the value of the property because, according 

to Lawson, Arnold‟s method of valuing the property was inconsistent with the May 23 

agreement. For its part, Dole filed its own motion in limine to preclude Lawson from 

offering expert opinion testimony from Willmette regarding the value of the property 

because Willmette had been provided with the wrong appraisal instructions and had used 

residential and/or developed parcels as comparable properties/sales when he should have 

used only agricultural parcels. 

Originally, the hearing on the motions in limine was set for June 11, 10 days 

before trial. For some reason, however, not made clear by the record or the parties, the 

motions were not resolved on that date but were continued to the trial date. 

Three days before trial, on June 18, Lawson filed a motion to continue the trial on 

the ground that he had just discovered the day before that Willmette‟s license as a real 

estate appraiser had been revoked in October 2009 due to three misdemeanor convictions 

for possessing child pornography. Lawson‟s attorney asserted that “even if [he] was 

prepared to call one convicted of possessing child pornography as a witness, to do so 

would likely be to cause the commission of a crime,” namely, “real estate appraisal 

activity by a person without a license.” Accordingly, he had to move for a continuance 

“to obtain a new appraiser.” 
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On June 21, the court vacated the trial date and scheduled a trial setting conference 

for September. Meanwhile, the parties agreed “to have a motion in limine hearing 

regarding contract interpretation” on July 28. As the court later explained, the court was 

“to determine by this motion in limine the contract terms for the methodology to be used 

by the appraiser in opining on the fair market value that Dole is to compensate Lawson 

for the Deed Restricted portion of the property in question.” The parties apparently 

believed “it would be fruitful in resolving the case to have [the court] tell [them] what the 

contract meant,” and they “agreed [the court] should make that interpretation.” 

In advance of the July 28 hearing, the parties stipulated that the trial court could 

consider the following documents “to interpret the appraisal instructions of the 5/23/05 

contract in question”: (1) an aerial photograph of the property; (2) the May 5, 2005 letter 

from Dole to Lawson; (3) the May 5, 2005 letter from Lawson to Dole; (4) the May 6, 

2005 letter from Dole to Lawson; and (5) the May 23, 2005 agreement. The parties 

apparently also agreed that the court could consider various excerpts of certain deposition 

transcripts.5 

On July 28, the court issued a tentative ruling, setting forth the various terms from 

the agreement regarding the conditions of the appraisal and concluding that it was “clear 

from the language in the letter agreement that the parties intended that agricultural land 

rather than residential property be considered as a basis for the appraisal.” Lawson 

requested a hearing on the tentative ruling, “not so much [for] what was in the . . . ruling, 

but [for] something [he] did not find.” Noting that there had originally been two motions 

 

5 For some reason, Robert Lawson‟s letter of May 9, 2005, was not among the 

documents the parties agreed the court could consider at this point in the proceedings. 

Later, however, in connection with the dispositive motion for nonsuit that followed the in 

limine ruling excluding evidence of Willmette‟s appraisal, Lawson offered the May 9 

letter as part of its offer of proof as to what the evidence at trial would have been, so that 

there would be “a full record on appeal to be able to show what we would have proved 

had the Court not ruled the way it did.” 
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in limine before the court -- one of which was now moot because Willmette “can‟t 

testify” -- Lawson noted that the motion to exclude Arnold‟s testimony had been based 

on the fact that Arnold “look[ed] at large vineyards or ranches” in making his valuation, 

and Lawson wanted to be sure that the court‟s ruling made it clear that what “the 

appraiser was supposed to look at was a separate parcel, an acre and a half separate parcel 

in an AG-40 zone.” The court instructed Dole‟s attorney to “add that part in” in 

preparing the formal order. Accordingly, in August, the court ruled that “[t]he letter 

contract requires appraisal for agricultural uses not residential” and “[the l]etter contract 

requires appraisal of approximately 1.5 acres as a separate parcel.” 

Eventually the case was set for trial on December 5, 2011. In advance of that trial 

date, Dole filed a number of motions in limine, including a motion to exclude Willmette‟s 

appraisal report from evidence. Based on the belief that Willmette would “not be 

available to testify at trial due to a recent criminal conviction,” Dole argued that 

Willmette‟s appraisal report would “lack foundation” and was “irrelevant” because 

Willmette “failed to follow [the] criteria” in the May 23 agreement (as interpreted by the 

court in its August 2010 order). Dole also argued that Willmette‟s appraisal report would 

be inadmissible hearsay evidence and could not be authenticated. 

For its part, Lawson filed a motion in limine seeking to preclude any revelation to 

the jury that Willmette‟s appraisal license was revoked because he was convicted of 

possessing child pornography. 

On the first day of trial on December 5, the court and the parties began with a 

conference on the motions in limine. Lawson‟s attorney said that he intended to offer 

Willmette‟s deposition into evidence under Code of Civil Procedure section 2025.620 on 

the ground that Willmette was unavailable to testify. In ruling on Lawson‟s motion in 

limine, the court decided that in advance of Willmette‟s deposition being read to the jury, 

the jury would be told that Willmette was no longer a licensed appraiser, had not 

practiced since 2009, and was, therefore, unavailable as a witness. 
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The court then turned to Dole‟s motion to exclude the evidence of Willmette‟s 

appraisal. The court told the parties its tentative ruling was to grant the motion on the 

grounds that (1) Willmette‟s appraisal was irrelevant because it “was not based on the 

parameters of our case facts” in that it “was based on residential use of the property,” 

(2) there would be a lack of foundation without Willmette testifying, and (3) there would 

be “authentication problems with Willmette‟s actual appraisal report which would also, 

most likely, implicate inadmissible hearsay.” 

In responding to the tentative ruling, Lawson argued that even though Willmette 

did not have the May 23 agreement to work from and therefore did not have before him 

the language regarding the types of property that could not be considered comparable in 

completing the appraisal, Lawson intended to offer the testimony of another appraisal 

expert who would testify that he looked at the comparables Willmette used and all of 

them were consistent with the criteria in the May 23 agreement. As for the issues of 

foundation and authentication, Lawson argued that Willmette testified to his 

qualifications and authenticated his appraisal report at his deposition. Additionally, 

Robert Lawson would be able to authenticate the appraisal report as the one he received 

from Willmette and sent to Dole. 

In response, Dole‟s attorney complained that without Willmette testifying, he 

could not “cross-examine [Willmette] as to his qualifications or the basis for his opinion” 

but would be “stuck with the deposition.”6 Lawson replied that Dole was able to crossexamine Willmette at his deposition. Dole then argued (for the first time) that Willmette 

was not unavailable; he just did not want to testify. Dole also complained that Willmette 

 

6 The attorney who took Willmette‟s deposition for Dole was not the same attorney 

who appeared at trial for Dole. Thus, this complaint appears to have been personal to the 

attorney who appeared at trial, i.e., he would be stuck with the deposition conducted by 

his predecessor.
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“said the highest and best use [that he was] using to value this property [wa]s rural 

residential,” and the court “subsequently said that is not right.” 

The trial court likened the situation to an eminent domain proceeding, where the 

testimony of an appraisal expert is subject to exclusion if the expert did not follow a 

legally required valuation formula. The court then said, “Now, if my prior ruling in this 

case was wrong -- and it may be -- everything thereafter is going to be wrong. . . . I‟m 

basing subsequent motions in limine rulings in part on that earlier one. And, yes, if I was 

wrong upstream, I‟m going to be still wrong downstream, because I‟m basing it on my 

prior ruling. That‟s where I‟m finding Wil[l]mette‟s valuation is not in accordance with 

what I found to be the parties‟ agreement.” The court then ruled that “Wil[l]mette‟s 

appraisal would not be helpful to the jury. And, in part, it is based on what I previously 

have ruled already as to what the proper parameters were for the appraisal in this case. 

[¶] So I am granting Defense motion in limine number one.” 

Lawson conceded that it could not prove its case without Willmette‟s appraisal. 

Dole then moved for nonsuit. The court granted nonsuit in favor of Dole and entered 

judgment against Lawson in January 2012. Lawson timely appealed. 

DISCUSSION

I

Order For Separate Trials

Lawson contends the trial court erred in granting Dole‟s motion for a separate 

court trial on the issue of contract interpretation. According to Lawson, the court‟s order 

must have been based on the premise that Lawson was not entitled to offer extrinsic 

evidence of an interpretation of the agreement to contradict the interpretation advanced 

by Dole. Because Lawson intended to offer such evidence, he contends the proper 

procedure would have been “for the trial court to require the jury to make findings on 

disputed issues and base its interpretation of the contract on those findings.” 
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Dole argues that the separate trials ruling was not an abuse of discretion because 

“in opposing the motion, Lawson did not point to any purportedly conflicting evidence 

giving rise to an issue triable to a jury. Instead, it merely speculated that the parties 

might offer conflicting extrinsic evidence bearing on the meaning of the parties‟ 

agreement.” We agree.

The role of a jury in the interpretation of a written agreement is limited. “Where 

the interpretation of contractual language turns on a question of the credibility of 

conflicting extrinsic evidence, interpretation of the language is not solely a judicial 

function. [Citations.] As trier of fact, it is the jury‟s responsibility to resolve any conflict 

in the extrinsic evidence properly admitted to interpret the language of a contract.” 

(Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912-913.) “[T]he proper procedure is 

„for the trial court to require the jury to make special findings on the disputed issues and 

then base its interpretation of the contract on those findings.‟ ” (Id. at p. 913.)

Here, while Lawson asserts that it intended to offer extrinsic evidence to assist in 

the interpretation of the agreement, Lawson fails to show that there was going to be a 

conflict in the extrinsic evidence requiring the involvement of a jury. On appeal, Lawson 

asserts that Dole would have had to offer extrinsic evidence to support its construction of 

the agreement, and thus the extrinsic evidence Lawson intended to offer in support of its

construction of the agreement would have been “contradictory.” But there was nothing in 

Dole‟s motion for separate trials that suggested Dole intended to offer any extrinsic 

evidence regarding the proper interpretation of the agreement, let alone extrinsic evidence 

that would be contradictory to evidence to be offered by Lawson. Instead, Dole expressly 

argued that the terms of the writing were “clear and unambiguous” and thus “construction 

of it is a pure question of law for the Court to determine.” In opposing the motion, 

moreover, Lawson admitted that it had “no way of knowing whether [Dole] intend[ed] to 

offer extrinsic evidence regarding the meaning of the words used in this contract, or 
13

regarding whether the agreement is reasonably susceptible to the particular meaning 

advanced.” 

In the absence of any reason for believing there was going to be conflicting 

extrinsic evidence bearing on the proper interpretation of the agreement, the trial court 

acted within its discretion in ruling that the interpretation of the agreement would be 

subject to a court trial to be held before the jury trial on the remaining issues.7

II

Interpretation Of The May 23 Agreement

Lawson contends the trial court erred in ruling that the May 23 agreement required 

appraisal for agricultural uses not residential. We disagree.

“An appellate court is not bound by a trial court‟s construction of a contract where 

(a) the trial court‟s contractual interpretation is based solely upon the terms of the written 

instrument without the aid of extrinsic evidence; (b) there is no conflict in the properly 

admitted extrinsic evidence; or (c) the trial court‟s determination was made on the basis 

of improperly admitted incompetent evidence.” (Morey v. Vannucci, supra, 64 

Cal.App.4th at p. 913, italics omitted.) Here, because there is no conflict in the extrinsic 

evidence the trial court considered in construing the agreement, we interpret the 

agreement de novo. In doing so, our goal is “to give effect to the mutual intention of the 

parties” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264), which “is 

determined by objective manifestations of the parties‟ intent, including the words used in 

the agreement, as well as extrinsic evidence of such objective matters as the surrounding 

circumstances under which the parties negotiated or entered into the contract; the object, 

 

7 As it turned out, the parties did not offer any conflicting extrinsic evidence and 

ended up stipulating to the court determining what the contract meant without any 

assistance from a jury.
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nature and subject matter of the contract; and the subsequent conduct of the parties.” 

(Morey, at p. 912.)

We begin with the words used in the agreement. The May 23 agreement provided 

that the appraiser was to determine “the fair market value of the Deed Restricted 

Property, valued as if the property had no environmental issues, was not subject to the 

Limited Deed Restriction and constituted a separate parcel in an area zoned AG-40.” The 

agreement further provided that, “[i]n appraising the Deed Restricted Property, the 

appraiser would value based on property from comparable land, in the same general 

vicinity, zoned AG-40. The appraiser will not consider as comparable any land (1) that is 

near to a developed parcel, (2) as to which any rezoning request or any development plan 

or proposal has been submitted, (3) as to which rezoning is being considered by the 

applicable governmental authority or (4) a substantial portion of the value of which 

reflects prospects for rezoning and development.” Finally, the agreement explained that 

“[t]he reason for the [foregoing] restrictions [on comparables] is so that we can have an 

apples-to-apples comparison, as the Limited Deed Restriction only requires you to forego 

crop-growing uses of the Deed Restricted Property. This is the only approach consistent 

with your claim that you need the proceeds from Dole to purchase land for growing crops 

to replace the Deed Restricted Property. We will not pay you for the added value of land 

that comes from its being convenient for development, since the Limited Deed 

Restriction does not in any way restrict you from developing the Deed Restricted 

Property.” 

Lawson contends that, contrary to the trial court‟s ruling, the foregoing language 

did not require the appraiser to determine the value of the property by reference to other 

properties that could be used only for agricultural purposes, as opposed to also being 

suitable for the construction of a single family residence. In Lawson‟s view, the 

prohibitions on the consideration of land “near to a developed parcel,” land subject to a 

“rezoning request or any development plan or proposal,” land “being considered [for 
15

rezoning] by the applicable governmental authority,” or land the value of which 

substantially reflects “prospects for rezoning and development,” were intended to 

“prevent LAWSON from receiving a „windfall‟ should an appraiser find DOLE‟S 

apparent „bogeyman;‟ i.e., a 1.5 acre parcel near a „shopping center,‟ or „major residential 

subdivision.‟ ” According to Lawson, by construing the concept of “development” to 

include the construction of even a single family residence, the trial court subverted the 

intended meaning of the contract, because “[a]fter twice negotiating the „used only for 

agriculture‟ provision out of their agreement, here the Court, as a matter of law, put it 

back in.” Lawson also contends “[t]he Trial Court‟s interpretation is a directive to do the 

impossible - appraise a 1.5 acre parcel in a rural agricultural AG-40 zone, suitable only 

„for agricultural use, not residential,‟ when there is no dispute that „such property does 

not exist.‟ ” 

For its part, Dole contends the May 23 agreement is “not reasonably susceptible to 

Lawson‟s urged interpretation that the deed restricted property could be valued as 

residential property.” According to Dole, “[t]he agreement . . . provided that Dole would 

not pay Lawson for the added value of land that comes from its being convenient for 

development because the deed restriction did not prevent Lawson from developing the 

property. . . . Thus, under the agreement Lawson was not entitled to compensation for 

the loss of uses that it had not sustained, including the construction of a residence.” 

We believe Dole has the better argument here. Based on the idea that the purpose 

of the agreement was to provide Lawson with “the amount necessary for [it] to acquire a 

comparable 1.5 acre property,” Lawson takes the position that the appraiser could 

consider as comparable land on which a single family residence could be built because 

land suitable only for agricultural use, not residential use as well, “ „does not exist.‟ ” In 

support of this proposition, Lawson cites a statement of its own in the May 9 letter to 

Dole, where Lawson asserted that land that can be used only for agriculture “does not 
16

exist in general. We, therefor[e], cannot go out and purchase such a parcel.” The record, 

however, does not bear out this assertion.

In the very appraisal report Lawson wanted to offer into evidence, Willmette 

stated as follows regarding the property being valued: “The site is zoned AG-40, general 

agriculture with a 40-acre minimum lot size. Like many sites of this size zoned AG-40 it 

may or may not be legally buildable for a single family residence, dependent upon how 

and when the separate parcel was created. Newly created 1.65 acre sites would typically 

be zoned R-R, rural residential by San Joaquin County, but existing sites of that size, with 

and without residences do exist in AG-40 zone areas. Access is a primary consideration 

when a building permit is requested.” (Italics added.)

Willmette‟s appraisal report clearly implies that there may be parcels in the AG-40 

zone that are of comparable size to the subject property that are not “legally buildable” 

because of lack of access or some other reason related to how and/or when the parcel was 

created. This contradicts Lawson‟s assertion that “a 1.5 acre parcel in a rural agricultural 

AG-40 zone, suitable only „for agricultural use, not residential,‟ . . . „does not exist.‟ ” 

On this record, Lawson has not shown that there is no such thing as a 1.5-acre parcel 

zoned AG-40 on which a single family residence cannot be built and thus is suitable only 

for agricultural use.

Accepting the premise that the purpose of the agreement was to give Lawson 

enough money to purchase land for growing crops to replace the deed restricted property 

that could not be put to that use, and based on the clear implication from the evidence that 

comparable property suitable only for agricultural use could be found within the same 

general vicinity, we find no error in the trial court‟s determination that the May 23 

agreement required appraisal for agricultural uses not residential. And we do not find 

any inconsistency between this conclusion and the omission from the final agreement of 

the limiting phrase, “that can be used only for agriculture,” which Lawson finds so 

significant. It is true that limiting phrase, which appeared in previous versions of the 
17

agreement drafted by Dole, was omitted from the final agreement, but it was replaced by 

the language regarding “development” and “rezoning.” 

To the extent Lawson contends the extrinsic evidence shows that the 

“development” and “rezoning” language was intended to preclude consideration only of 

properties “next to a „shopping center or a big residential subdivision,‟ or „commercial 

development,‟ ” we disagree. The witness on whose deposition testimony Lawson‟s 

argument is based (Sanjeev Tandon, who negotiated the agreement for Dole) testified that 

“[t]he general principle underlying this [added language] was that our intention was to 

compensate Mr. Lawson for comparable agricultural land . . . , land to be used for 

agricultural purposes.” Tandon testified further that Dole was “going to compensate 

[Lawson] for a comparable agricultural 1.5 acres” and that it was his “contemplation that

an appraiser would go out, scour the immediate vicinity and try to find acre-and-a-half 

parcels that were similar to this one.” He further testified that “[t]he spirit of the letter 

was to provide Mr. Lawson fair compensation for -- for comparable agricultural land 

and . . . the idea was to provide him with fair compensation for agricultural land.” Thus, 

Tandon‟s deposition testimony was consistent with the trial court‟s conclusion that the 

appraisal was to be for agricultural uses not residential.

In summary, we find no error in the trial court‟s interpretation of the May 23 

agreement.

III

Exclusion Of Evidence Of Willmette’s Appraisal

In his final claim of error, Lawson contends the trial court erred in entering a 

judgment of nonsuit based on its exclusion of evidence of Willmette‟s appraisal because 

the exclusion of that evidence was error. Again, we disagree.
18

“A trial court may, and upon objection must, exclude opinion testimony that is 

based in whole or in significant part on matter that is not a proper basis for such an 

opinion. (Evid. Code, § 803.) . . . [¶] Whether an opinion should be held inadmissible in 

a particular case depends upon the extent to which the improper considerations have 

influenced the opinion. [Citation.] Such questions are addressed to the sound discretion 

of the trial court.” (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 

1268, 1277.)

Here, Willmette‟s opinion about the fair market value of the property, expressed in 

his appraisal report, was based on the determination that its highest and best use was as 

rural residential property, and in seeking out comparable properties he searched 

specifically for similarly-sized sites suitable for building a residence. This was 

inconsistent with the terms of the May 23 agreement (which Willmette was not given to 

guide his appraisal), as the trial court properly interpreted that agreement. Based on the 

premise that the purpose of the agreement was to give Lawson enough money to purchase 

land for growing crops to replace the deed restricted property that could not be put to that 

use, and based on the clear implication from Willmette‟s appraisal report that comparable 

property suitable only for agricultural use could be found within the same general 

vicinity, the trial court acted within its discretion in determining that Willmette‟s 

appraisal should be excluded from evidence because it was based on the improper 

consideration of the value of rural residential property, rather than rural agricultural 

property.

Once evidence of Willmette‟s appraisal was properly excluded, it was entirely 

proper for the trial court to grant Dole‟s motion for nonsuit based on Lawson‟s 

concession that it could not prove its case without that evidence.
19

DISPOSITION

The judgment is affirmed. Dole shall recover its costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(1).)

 ROBIE , J.

We concur:

 RAYE , P. J.

 NICHOLSON , J.