1

Filed 4/29/22 Transmart v. San Francisco Bay Area Rapid Transit Dist. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

opinions not certified for 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 This opinion has not been certified for publication or ordered published for 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

TRANSMART, INC.,

 Plaintiff and Appellant,

v.

SAN FRANCISCO BAY AREA 

RAPID TRANSIT DISTRICT,

 Defendant and Respondent.

 A159044, A160511

 (Alameda County

 Super. Ct. No.

 RG17853926)

Plaintiff TransMart, Inc. (TransMart) entered into an 

option contract with defendant San Francisco Bay Area Rapid 

Transit System (BART) giving it the opportunity to lease space in 

BART’s train stations for the purpose of developing retail space. 

When the deal fell apart and BART rejected TransMart’s effort to 

exercise the option, TransMart brought this civil action for 

breach of contract. A monthlong jury trial was held after which 

the jury returned a special verdict in favor of BART. We affirm.

I. BACKGROUND

In 2008, real estate developer Alexis Wong (Wong)

approached BART about a proposal to start a retail program in 

its train stations. The general concept was that Wong’s company, 

which eventually became TransMart, would lease space at 
2

BART’s 43 stations, build kiosks, and sublease the kiosks to 

various retailers who would serve BART’s passengers. In 2011, 

BART and TransMart entered into an exclusive negotiating 

agreement.

On June 11, 2013, BART and TransMart executed a Lease 

Option Agreement (LOA) giving TransMart the right to lease 

space at BART stations for a period of 30 years with options to 

extend if it met a number of conditions precedent. The LOA 

required that all conditions precedent be met before BART would 

be obligated to perform. The project included four phases, each

with specific designated stations and with specified option 

exercise dates. The termination date of the LOA was June 10, 

2016. 

Three of the conditions precedent are relevant to this 

appeal. First, TransMart needed to complete, and BART needed 

to approve, what the parties called Tier 1 and Tier 2 studies

regarding the effect the proposed retail kiosks would have upon 

the stations. Tier 1 studies would examine the single issue of

how passenger flow would affect the placement of the kiosks. 

Once the Tier 1 studies had been completed, Tier 2 would address

the impact of the proposed kiosk locations on a wide variety of 

issues, including utilities, access improvements, station utility 

needs, security, wayfinding and existing retail and advertising. 

Second, the LOA conditioned TransMart’s exercise of the 

option on TransMart providing the necessary design 

documentation to obtain BART’s approval of the design of the 

kiosks. The LOA stated that BART had to approve 
3

“documentation that describes the design scope” “including 

concept drawings and one hundred percent (100%) design

development and engineering drawings (the ‘Design 

Documentation’).” 

Third, the LOA obligated TransMart to provide BART with 

proof of funding to show that it had enough money to complete 

the project. The proof of funding would show “TransMart’s 

ability to fund one hundred percent (100%) of the costs of 

constructing the Retail Facilities on the applicable Leased Site,” 

and provided that “[e]xamples of such evidence include binding 

written loan commitments . . . to fund construction of the 

applicable Retail Facilities in favor of TransMart.” 

TransMart submitted Phase 1/Tier 1 studies in October

2013, which were approved by BART the following month. 

TransMart did not, however, provide BART with Phase 1/Tier 2 

studies until August 2015, almost two years later, when it 

submitted Tier 2 utility studies to BART.

1 These studies were 

only utility studies that did not complete other aspects of the Tier 

2 analysis. BART also considered them to be flawed because they 

called for electricity to be drawn from BART’s own supply, but 

because BART pays wholesale prices for electricity, it is limited 

as to who can use its electricity. Representatives of BART 

evaluated the studies and exchanged comments with TransMart, 

which submitted revised studies.

1 The studies were completed in August 2014, but were not 

given to BART until a year later. 
4

On September 30, 2015, the parties signed the First 

Amendment to Lease Option Agreement (First Amendment), 

which set the option exercise deadlines at December 31, 2015 for 

Phase 1 and March 31, 2016 for Phase 2. On December 30, 2015, 

TransMart notified BART that it was exercising its option for 

Phase 1. At the time, the Tier 2 Studies and the design approval 

had been submitted to BART but had not been approved. 

On January 8, 2016, TransMart submitted its proof of 

funding for Phase 1: a cover letter from “blinq,” which is the 

marketing brand for the TransMart retail program, and an 

attached bank statement for Lucendro Investment Fund relating 

to its account with the Singapore branch of Westpac, an 

Australian bank. According to Wong, Lucendro was owned by 

TransMart’s major shareholder. 

BART rejected TransMart’s Phase 1 submission. The 

parties executed the Second Amendment to Lease Option 

Agreement (Second Amendment) which extended the deadline for 

Phase 1 to June 10, 2016 and the deadline for Phase 2 to August 

31, 2016, and provided for no further extensions of the deadlines. 

TransMart continued to work on its Tier 2 studies in 2016, 

and despite back-and-forth regarding revisions, BART concluded 

they were inadequate because they did not include an analysis of 

wayfinding conflicts or safety and the proposed placement of the 

kiosks conflicted with BART’s existing advertising contracts. 

During the process of studying these issues, BART reduced the 

potential space for the kiosks, which TransMart considered 

significant (although the LOA did not guarantee TransMart any 
5

particular space until the approvals for the option exercise were 

complete).

The parties also continued to work on the design 

documents, with TransMart submitting its proposals to BART

and getting feedback. In May 2016, TransMart hired an 

architectural firm, TEF, which reviewed the design work done to 

date and marked the drawings with suggested improvements. 

These design documents were rough schematic designs, and 

indeed, were marked “DRAFT SCHEMATIC DESIGNS.” 

On June 10, 2016, TransMart provided its option exercise 

submittal package for Phase 1 to BART. BART had not approved 

TransMart’s designs as of that date. BART formally rejected 

TransMart’s attempt to exercise its option for Phase 1, citing 

several provisions it claimed TransMart did not satisfy—section 

1.8 and 7.1(e) of the LOA (requiring 100% design 

documentation);2 section 7.1(a) (requiring approval of Tier 1 and 

Tier 2 studies) and 7.1(d) (requiring sufficient proof of funds). 

TransMart had submitted the Phase 2/Tier 1 studies to 

BART in December 2015. It began the Tier 2 studies and design 

2 In early 2014, TransMart had proposed a pilot program 

which would install temporary retail kiosks at some stations. 

The LOA did not contemplate a pilot program, and the parties set 

up the program through a separate permit to enter, which did not 

require approval from BART’s board. TransMart installed two 

pilot program kiosks in November 2015. In his closing argument, 

counsel for TransMart argued that because BART had approved 

the design of the kiosks in the pilot program, those standards 

applied to the LOA, and BART’s rejection of the design 

documents was unreasonable. 
6

drawings for Phase 2 and continued to use TEF. Viral Vithalani 

was the architect with TEF who worked on Phase 2 beginning in 

June 2016. He started from scratch because BART had not 

approved Phase 1, and he submitted design documents and Tier 2 

studies on July 22, 2016. Although these documents were an 

improvement over TransMart’s past submissions, BART 

identified several issues with the studies and drawings: (1) sightline issues; (2) failure to identify components of a proposed 

electrical closet; (3) conflicts with existing signage; (4) conflicts 

with modernization projects BART had scheduled in the future; 

(5) a failure to mitigate impacts to sprinklers that the kiosks 

would cause; and (6) a failure to include all the necessary 

structural details. 

On August 30, 2016, one day before the deadline for 

exercising the Phase 2 option, Wong sent documentation to BART 

to satisfy the proof of funding requirement. This included a letter 

from Boris Schakowski of ASTC Investment Pte Ltd, stating that 

ASTC was a “significant stakeholder” in TransMart, and that 

ASTC was holding $7,000,000 for TransMart to fund construction 

of Phase 2. TransMart submitted its paperwork to attempt to 

exercise its option for Phase 2 on August 31, 2016. BART 

rejected the attempt to exercise the option on Phase 2 for the 

same reasons that it had rejected the attempt to exercise the 

Phase 1 option. 

TransMart filed suit against BART in March 2017. The 

operative complaint is TransMart’s first amended complaint, 

which asserts two counts: breach of contract and breach of the 
7

implied covenant of good faith and fair dealing. TransMart 

alleged that BART breached the LOA by denying TransMart’s 

notice of exercising its option, TransMart having either complied 

with its obligations under the contract or having been excused 

from doing so because of BART’s actions.

The case proceeded to jury trial, and the issue of damages 

was bifurcated from the issue of liability. TransMart took the 

position that it had complied with its obligations but had been

stymied by BART’s actions in unreasonably withholding its 

approvals, misinterpreting the contract and unreasonably 

delaying the project. TransMart blamed BART for its delays in 

presenting the design documentation and Tier 2 studies, because 

the retail kiosks were required to meet BART’s “Design 

Standards,” which it was supposed to approve by September 13, 

2013, but which it did not finalize until March 2014. TransMart

also maintained that it was waiting for BART to set up a Design 

Review Committee made up of volunteer architects, which BART 

discussed forming in 2014 but which never got off the ground.

BART disputed that it was the cause of TransMart’s delays. 

According to Paul Voix, BART’s “point man” on the project, the 

completion of the Design Standards was a joint effort between 

TransMart and BART, and delays in completing them did not 

impact TransMart’s ability to pursue other parts of the project.

BART also presented evidence that the Design Review 

Committee was not contemplated by the LOA, and that BART 

had advised TransMart it was unlikely to be formed. In any
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event, the Design Review Committee would not have replaced the 

need for BART approval of the project. 

The jury returned a special verdict finding that TransMart 

did not do all the things it was required to do to exercise its 

option for Phase 1 and Phase 2. It made a similar finding on 

TransMart’s claim for breach of the implied covenant of good 

faith and fair dealing. The trial court entered judgment in favor 

of BART and awarded attorney fees and costs. TransMart has 

filed separate appeals from the judgment and the attorney fee 

award, which were consolidated on TransMart’s unopposed 

motion.3

II. DISCUSSION

A. Exclusion of Extrinsic Evidence to Prove Ambiguity

TransMart maintained that the terms “Design 

Documentation” and “Tier 2 Studies” were ambiguous as used in 

the LOA, and it filed a pretrial memorandum asking the court to 

allow it to present extrinsic evidence as to the meaning of those 

terms. The trial court did not hold a pretrial hearing on the issue 

and advised the parties during a conference on jury instructions 

that the terms were “susceptible to the plain and reasonable 

meaning by the jurors.” TransMart now argues that it should 

have been permitted to introduce extrinsic evidence to prove the 

meaning of the terms. We disagree there was any error requiring 

reversal.

3 TransMart has not raised any issues relating to the 

attorney fees and costs.
9

Some context is in order. We begin by observing that one of 

the primary points of dispute in this case was whether 

TransMart had either fulfilled the requirements of the LOA, or 

had been prevented from doing so by BART’s delays, such that 

BART was required to accept TransMart’s attempt to exercise its

option when notice was tendered. As part of its efforts to prove 

that it had held up its end of the bargain, TransMart claimed 

that its schematic drawings, which did not include the interior 

designs of the kiosks,4 complied with the requirement to provide 

Design Documentation, which was defined by paragraph 1.8 of 

the LOA as “including concept drawings and one hundred percent 

(100%) design development architecture and engineering 

drawings.” BART, on the other hand, took the position that “one 

hundred percent (100%) design development” meant that the 

plans would be sufficiently detailed, interiors included, that they 

could be turned over to a contractor to be built (“buildable and 

biddable”), and that the draft schematic plans submitted by 

TransMart fell short. 

TransMart notes that another point of contention, besides 

the degree of detail required in the design documents, was the 

meaning of and the responsibility for performing the Tier 2 

studies called for by the LOA. Although BART claimed that 

because no Tier 2 study was ever approved, TransMart had failed 

4 TransMart claims that because it would be a master 

tenant that would rent to other businesses, it did not yet know 

who its tenants would ultimately be and it was impossible to 

design the interiors of the kiosks until the ultimate user was 

ascertained.
10

to perform one of the conditions precedent under the LOA, 

TransMart claimed that BART was responsible for performing 

the bulk of the Tier 2 studies and that TransMart was not 

responsible for the fact that Tier 2 studies had not been approved 

before the deadline.

Under the parol evidence rule, the court generally may not 

consider parol or extrinsic evidence “ ‘of any prior agreement or 

contemporaneous oral agreement to vary or contradict the clear 

and unambiguous terms of a written, integrated contract.’ ” 

(Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432; see also Code 

Civ. Proc., § 1856, subd. (a).) However, extrinsic evidence is 

admissible to “ ‘prove a meaning to which the language is 

reasonably susceptible.’ ” (Goldstein, supra, 34 Cal.App.5th at 

page 432.)

We assume for the sake of argument that TransMart is 

correct in asserting that the terms “Design Documentation” and 

“Tier 2 Studies” were ambiguous, and that extrinsic evidence was 

admissible to prove that the terms were reasonably susceptible to 

the meanings ascribed to them by TransMart. But TransMart

suggests the court excluded all extrinsic evidence on the 

ambiguity whereas in fact TransMart was allowed to present

such evidence at trial.5 For example, TransMart presented 

testimony by Wong that the “100 percent design” condition did 

not require TransMart to include interior details of the kiosks or 

5 At one point, the court stated, “Counsel, to be clear, the 

court has no problem with you pointing to language in the lease 

option agreement and asking her what she understood that 

meant.”
11

required the plans to be biddable, and Vithalani testified that he 

thought the final design submission was in substantial 

conformity with BART’s Design Guidelines. This stood in 

contrast to the testimony of witnesses for BART, to the effect that 

“one hundred percent (100%) design” meant a complete design, 

interiors included, that was construction-ready and could be 

turned over to a contractor (“buildable and biddable”).

“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; City of Hope National Medical 

Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [jury may 

interpret agreement when construction turns on the credibility of 

evidence].) This is what happened here: the jury was charged 

with determining which side’s view of the disputed evidence was 

correct.

To the extent the trial court indicated it would exclude 

evidence regarding the disputed terms that predated the LOA, 

TransMart has failed to identify any particular items of extrinsic 

evidence that it was prevented from introducing at trial. “By 

appealing, [TransMart] assumed ‘the burden of 

showing reversible error by an adequate record.’ [Citation.] One 

aspect of that burden requires that the appellant develop the 

fullest possible evidentiary record before seeking review. Thus, 
12

an appellant must make an offer of proof in the trial court in 

order to claim on appeal that evidence was wrongly excluded. 

[Citation.] Similarly, if an appellant wishes to argue a point 

on appeal, it must first make a record by raising the point in the 

trial court. [Citations.]” (Tudor Ranches, Inc. v. State Comp. Ins. 

Fund (1998) 65 Cal.App.4th 1422, 1433.) TransMart did not 

carry its burden of demonstrating reversible error.

We reject TransMart’s suggestion that Wolf v. Superior 

Court (2004) 114 Cal.App.4th 1343, 1350–1351 (Wolf)

automatically requires reversal any time a court erroneously 

rules that extrinsic evidence is not admissible to prove the 

meaning of an ambiguous term in a contract, without an 

evaluation of prejudice. Wolf involved a writ that challenged an 

order granting summary adjudication that was entered because 

the trial court determined that a contractual term (“gross 

receipts”) was unambiguous and not reasonably susceptible to the 

interpretation offered by the plaintiff. (Id. at pp. 1346–1350.) 

The appellate court granted the writ, concluding that there was a 

triable issue as to the meaning of the term and that the trial 

court erred in excluding extrinsic evidence offered to show there 

was an ambiguity and to interpret the term. (Id. at pp. 

1359–1360.) Wolf did not involve the resolution of an ambiguity 

by the jury, and does not suggest that harmless error analysis is 

inapplicable when the jury is given the task of interpreting a 

contract.
13

B. Rejection of CACI No. 314

The court instructed the jury with CACI No. 318, which 

provided, “In deciding what the words in a contract meant to the 

parties, you may consider how the parties acted after the contract 

was created but before any disagreement between the parties 

arose.” It declined TransMart’s oral request to also give CACI 

No. 314, which would have identified the disputed language in 

the LOA and advised the jury, “In deciding what the words of a 

contract mean, you must decide what the parties intended at the 

time the contract was created. You may consider the usual and 

ordinary meaning of the language used in the contract as well as 

the circumstances surrounding the making of the contract.”

TransMart contends the court erred in failing to give the 

requested instruction.

BART responds that while TransMart requested CACI No. 

314 orally, the court did not abuse its discretion in denying the 

instruction because TransMart never included a written copy in 

the packet of proposed jury instructions. (Green v. County of 

Riverside (2015) 238 Cal.App.4th 1363, 1370–1371 [counsel must 

provide court with correct written instruction].) But assuming 

TransMart’s oral request for the instruction was sufficient to 

preserve the issue, there was no reversible error.

“A party is not entitled to have the jury instructed in any 

particular fashion or phraseology, and may not complain if the 

court correctly gives the substance of the applicable law.” 

(Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 

155 Cal.App.4th 525, 553.) “[T]here is no rule of automatic 
14

reversal or ‘inherent’ prejudice applicable to any category of civil 

instructional error, whether of commission or omission. A 

judgment may not be reversed for instructional error in a civil 

case ‘unless, after an examination of the entire cause, including 

the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice.’ ” (Soule v. 

General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule), quoting 

Cal. Const., art. VI, § 13.)

Here, the court instructed the jury on the elements of 

breach of contract, that the words in a contract should be given 

their ordinary meaning unless otherwise provided or unless they 

have a technical definition, that in interpreting the contract they 

should look to the contract as a whole, that the jury could 

consider the parties’ actions after the contract was executed in 

interpreting the contract, that if no time for performing an act 

was specified it was deemed to require performance within a 

reasonable time, and that BART only had continuing obligations 

under the LOA if TransMart met specified conditions precedent. 

(CACI Nos. 300, 303, 315, 316, 317, 318, 319, 322.) The jurors

were not instructed to construe the disputed terms of the contract 

in any particular fashion, and were well aware that BART and 

TransMart disagreed about the meaning of those terms. It is not 

reasonably probable that the jury would have reached a different 

result had CACI No. 314 been given. (Soule, supra, 8 Cal.4th at 

pp. 580–581.)
15

C. Proposed Special Instruction on Reasonableness

TransMart was required to satisfy conditions precedent 

before it exercised its option. The LOA gave BART the discretion

to review and approve various pieces of documentation necessary 

to satisfy those conditions. TransMart requested a special jury 

instruction that would have required BART’s discretion in this 

regard to be reasonable.

6 The trial court refused the instruction, 

instead reading a special instruction that mirrored the language 

in the contract defining the relevant conditions precedent.7 We 

disagree that this was error.

6 TransMart’s proposed special instruction would have 

provided: “A contract may give one of the parties discretionary 

power . . . to protect its interests or to make sure that it will 

receive the benefits of the contract. When the contract does this, 

the law requires the party to use their discretion reasonably. 

This means that the party who is given the discretionary power 

to do something to protect its own interests may not use that 

discretionary power to unreasonably or unfairly harm the other 

party or to deprive the other party of the benefits of the contract. 

[¶] For example, with respect to the Lease Option Agreement, 

BART’s approval is required before TransMart could move 

forward. The law requires BART to be reasonable in its approval 

and not to unreasonably or unfairly harm TransMart or to 

deprive TransMart of the benefits of the contract.” 

7 The court gave a modified version of CACI No. 322, which 

provided, “The parties agreed in their contract that BART would 

not have to continue with its obligations under the Lease Option 

Agreement unless TransMart met all of the following conditions 

precedent set forth in the Lease Option Agreement: [¶] (a) On 

or before the date TransMart delivers the Option Notice for any 

Leased Site, TransMart shall have delivered to BART the Tier 1 

Study and the Tier 2 Study Materials for such Leased Site and 

BART shall have Approved the Tier 1 Study and the Tier 2 Study 

and related analysis for such Leased Site. [¶] (b) On or before 
16

TransMart relies primarily on Guntert v. City of Stockton

(1974) 43 Cal.App.3d 203 for the proposition that absent an 

explicit provision to the contrary, a contractual directive that one 

party exercise its discretion will be construed to require an 

objective, “reasonable person” standard rather than a subjective 

standard. (Id. at 211–213, 217; see also FEI Enterprises, Inc. v. 

Yoon (2011) 194 Cal.App.4th 790, 805–806.) Nothing in Guntert

suggests it is error to instruct in the actual language of the 

contract, as the court did here. In any event, the special 

instruction that was given by the court did not suggest a

subjective standard applied.

Moreover, as BART notes, the issue of whether it was 

required to exercise its discretion reasonably was never an issue. 

the date TransMart delivers the Option Notice for any Leased 

Site, TransMart shall have received all Approvals as may be 

required for the development of the applicable Leased Site. 

[¶] (d) On or before the applicable Exercise Deadline, BART 

shall have approved, in BART’s reasonable discretion, 

TransMart’s ability to fund one hundred percent (100%) of the 

costs of constructing the Retail Facilities on the applicable 

Leased Site. . . Examples of such evidence include binding 

written loan commitments or other binding commitments. . . . 

[¶] (e) On or before the applicable Exercise Deadline, the Design 

Documentation for the applicable Retail Facilities shall have 

been Approved by BART in accordance with Section 1.8 of the 

Lease Option Agreement. [¶] BART contends that these

conditions did not occur and that it did not have a duty to 

continue with any obligations under the Lease Option 

Agreement. To overcome this contention, TransMart must prove 

that it satisfied all of the above conditions. [¶] If TransMart does 

not prove that it satisfied the above conditions, then BART was 

not required to continue with any obligations under the Lease 

Option Agreement; and was entitled to terminate the contract.” 
17

None of the witnesses for BART ever suggested they were 

entitled to act arbitrarily in reviewing TransMart’s submissions; 

rather, they took the position that BART at all times acted 

reasonably during the process. During closing argument, counsel 

for BART acknowledged that BART’s actions under the LOA had 

to be reasonable.8 TransMart obviously disputed that BART had 

acted reasonably, but there is no reasonable probability that the 

omission of the special jury instruction was the cause of the jury’s 

finding in favor of BART. (Soule, supra, 8 Cal.4th at pp. 

580–583.)

D. Proof of Funding

The LOA required TransMart to provide proof of funding to 

BART as a condition precedent to it exercising the option. The 

court excluded all evidence relating to proof of funding which had 

not been presented to BART as irrelevant to the question of 

whether BART had acted reasonably in rejecting it. TransMart 

claims that in light of this ruling, the court erred in allowing 

BART to present evidence that TransMart had caused delays on 

the project by failing to pay its subcontractors, regardless of 

whether BART knew about the issues with the subcontractors. 

We disagree.

A trial court has broad discretion in making evidentiary 

rulings at trial, and will be deemed to have abused that 

discretion only when it acts in an arbitrary, capricious or absurd 

8 “[Section] 1.8 [of the LOA] again doesn’t say, you know, 

BART controls it, BART can do whatever it wants. It says it has 

to be reasonable. And I don’t dispute that.” 
18

manner resulting in a manifest miscarriage of justice. (CondonJohnson & Assocs., Inc. v. Sacramento Mun. Util. Dist. (2007) 149 

Cal.App.4th 1384, 1392.) Here, BART moved in limine to prevent 

TransMart from introducing evidence to show it had sufficient 

funding for the project if that information had not been presented 

to BART, reasoning that because the issue was whether BART 

had acted reasonably in rejecting TransMart’s proof of funding, 

information that was not presented to BART, and which BART 

did not know about, was irrelevant. (Evid. Code, § 210.) The 

court granted the motion. This was not an abuse of discretion 

and indeed, TransMart’s counsel appeared to agree with the 

ruling, at least to the general principle that evidence not provided 

to BART was not admissible on the issue of whether BART acted 

reasonably in rejecting TransMart’s proffered proof of funding. 

TransMart complains that the court admitted evidence of 

TransMart’s indebtedness to its contractors without a showing 

that BART was aware of this indebtedness, arguing that this was 

inconsistent with its ruling that proof of funding information was 

only relevant if BART knew about it. But the challenged 

evidence concerning TransMart’s indebtedness was admitted on 

the issue of whether TransMart had caused delays by failing to 

pay some of the contractors it hired, an issue which is distinct 

from the sufficiency of the proof of funding it presented to BART.

TransMart offered the testimony of Raghav

Bindhumadhavan, a representative of one of TransMart’s 

investors (ASTC), who had authored the letter that was given to 

BART as an attempt to satisfy the proof of funding requirement
19

for Phase 2. Among other things, Bindhumadhavan would have 

explained that “ASTC has a direct stake in TransMart.” 

TransMart suggests the court should have allowed 

Bindhumadhaven to testify and explain the relationship between 

ASTC and TransMart, but Wong explained the relationship in 

her testimony.9 There was no abuse of discretion in admitting 

evidence of BART’s indebtedness, or in excluding the testimony of 

Bindhumadhavan.

III. DISPOSITION

The judgment is affirmed. Costs to respondent.

9 TransMart complains that in closing argument, counsel 

for BART “leveraged” the court’s ruling by characterizing the 

proof of funding submission for Phase 2 as a “ ‘funky little 

document’ ” from a “stranger, really, some guy named Boris who 

says yeah, funds are available.” The “funky little document” 

comment was made regarding the proof of funds for the Phase 1 

submission, rather than the submission for Phase 2, but the 

reference to a “stranger. . . named Boris” was a fair argument 

that BART had not been adequately advised of the relationship 

between ASTC and TransMart, regardless of the actual 

relationship between the two companies, or provided with the 

documentation necessary to prove there was a binding 

commitment for ASTC to provide the funds. In any event, there 

was no objection to this argument. (See Cain v. State Farm Mut. 

Auto. Ins. Co. (1975) 47 Cal.App.3d 783, 801.)
20

NEEDHAM, J. 

We concur.

JACKSON, P.J.

SIMONS, J.

Transmart v. S.F. Bay Area Rapid Transit Dist. /A159044