1

Filed 10/29/13 Lodging Property Brokers v. Chang 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

LODGING PROPERTY BROKERS, INC.,

Plaintiff and Appellant,

v.

JANE CHANG,

Defendant and Respondent.

 A136190

 (San Francisco City and County

 Super. Ct. No. CGC-11-508930)

Lodging Property Brokers, Inc. (LPB) sued Jane Chang to recover a real estate 

commission.1 After a bench trial, the trial court concluded that Jane did not owe LPB 

any money. Judgment and an order awarding attorney fees were entered in Jane‘s favor. 

LPB appeals. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Before December 17, 2010, the real property located at 700 Eddy Street, in San 

Francisco (the Property), was co-owned by Jane and Grace (the Changs), Harry P. Vance, 

John M. Vance III, Evelyn Peralta Ley-Coleman, William Vance Ley, the successor 

trustees of the 1995 Amelia Vance Ley Trust, Patricia A. Briggs, and Nancy J. EvansSundberg. The Changs collectively owned a 50 percent interest, while the remaining 

owners (collectively the Vance heirs) owned the remaining 50 percent interest. In 

addition, the Changs operated the Red Coach Motor Inn on the Property, under a written 

 

1 Because respondent and her sister, Grace Chang, share the same last name, we 

will refer to each by first name only. No disrespect is intended.
2

lease agreement. Under the lease, the Changs had a right of first refusal to buy the other 

owners‘ interests. Specifically, the lease provides: ―In the event the lessor receives a 

bona-fide offer to purchase the demised property at any time during the lease period, 

which offer is acceptable to lessor, then lessee shall have the right of refusal to purchase 

the demised property on the same terms and conditions as contained in said offer . . . .‖ 

(Italics added.)

The Changs sought to buy the Vance heirs‘ collective interest. The Vance heirs 

also made offers to buy out the Changs. Unable to agree, some of the Vance heirs filed a 

partition action in 2008. The Changs and the Vance heirs settled the partition action 

pursuant to a written settlement agreement. The settlement agreement contained 

procedures and terms for listing the Property, bids by the Vance heirs, and the Changs‘ 

exercise of their first refusal right (the Sales Protocol).

Under the Sales Protocol, the Vance heirs and the Changs agreed to form a threeperson management committee, composed of two of the Vance heirs and Jane, to act on 

behalf of all the owners. The management committee was directed to solicit proposals 

from real estate brokers, and select a real estate broker to solicit offers for the Property. 

The Sales Protocol provides: ―If the Changs exercise the Right of First Refusal, the 

purchase of the . . . Property shall close within thirty (30) days from the exercise thereof 

by the Changs, and the Changs shall be credited with fifty [percent] (50%) of the required 

sales price[], with the effect that the Changs shall only be obligated to pay 50% of the 

sales price in the offer subject to the Right of First Refusal to the Parties whose interests 

are being acquired.‖

The Changs‘ counsel prepared a request for proposals for listing the property, as 

well as a draft listing agreement, which was forwarded to LPB. John Richard Lopez is a 

licensed real estate broker who owns and operates LPB. Lopez responded with LPB‘s 

standard form listing agreement, which provided, in part: ―Compensation to LPB: 

Owner agrees to pay LPB as compensation for services irrespective of agency 

relationship(s): 5% of the listed or selling price (whichever is applicable) for a 
3

cooperative sale with another qualified broker, or 4% if LPB sells the property to a buyer; 

or 3% if the Chang‘s [sic] exercise their first right of refusal option.‖

The Changs and Vance heirs accepted LPB‘s commission schedule. However, the 

Changs demanded other modifications to the contract. Most important among these 

modifications, the Changs demanded that LPB eliminate the provision in LPB‘s standard 

form that would require the owners to pay a commission if LPB merely procured a ready, 

willing, and able buyer. LPB agreed to this change, and deleted this provision from the 

contract.

In August 2010, the representatives of the Vance heirs and Jane signed an 

exclusive authorization to sell (the Listing Agreement) with LPB. The Listing 

Agreement sets forth three conditions under which LPB may earn a commission. 

Specifically, section 1 of the Listing Agreement provides in relevant part: ―Owner shall 

pay a sales commission ( ̳commission‘), and the commission shall be deemed earned only 

upon the occurrence of any of the following: [¶] A. If the property is sold, exchanged, or 

otherwise transferred during the above listing period or any written extension, by owners, 

or through any other source. [¶] B. If the property is withdrawn from sale . . . or made 

unmarketable by owner‘s voluntary act during the above listing period. [¶] C. If an 

agreement to sell or exchange the property is made by owner within one hundred eighty 

(180) days after the termination of this agreement to persons with whom [LPB] has had 

contact or negotiations during the listing period . . . .‖

LPB‘s commission schedule reads as follows: ―5% of the listed or selling price 

(whichever is applicable) for a cooperative sale with another qualified broker, or 4% if 

LPB sells the property to a buyer, or 3% if the Chang‘s [sic] exercise their first right of 

refusal option.‖ (Underlining omitted.) The Changs and Lopez did not otherwise discuss 

the meaning of the term ―selling price‖ before executing the Listing Agreement. 

However, both Lopez and Jane understood the general custom and practice in the 

industry to be that sellers, not buyers, pay real estate commission.

The Listing Agreement also provides: ―In any action, proceeding, or arbitration 

between owner and LPB regarding the obligation to pay compensation under this 
4

agreement, the prevailing party shall be entitled to recover reasonable attorney‘s fees and 

costs. [¶] . . . [¶] This document contains the entire agreement of the owner and LPB and 

supersedes all prior agreements or representations . . . . [¶] . . . [¶] [LPB] acknowledges 

the property is encumbered by a lease that expires on September 30, 2016, with some of 

the owners in the sale of the property hereinafter known as Chang. The sale will be

subject to their rights of the lease agreement. The Chang‘s [sic] additionally have rights 

as described . . . below. [¶] [LPB] acknowledges the lease has a first right of refusal 

(FRR) with respect to a bona-fide offer to purchase the property acceptable to the owners. 

[LPB] will disclose the FRR to all prospective purchasers that the lease has fifteen 

(15) days from the expiration of any due diligence period and the removal of any 

contingencies to exercise the FRR.‖

LPB obtained a third party offer from Anish Khimani to purchase 100 percent of 

the fee interest, subject to the lease, for $2.65 million. The Khimani offer was accepted. 

On November 17, 2010, the Changs exercised their option to buy the Vance heirs‘ 

interests for half this amount, $1.325 million. The letter of exercise provides: ―This 

letter, effective November 18, 2010, evidences the exercise by [the Changs] . . . of the 

right of first refusal contained in the lease to purchase the subject property on the terms of 

that certain Standard Commercial/Investment Purchase Agreement dated October 31, 

2010 (the  ̳Purchase Agreement‘) with [Khimani], as Buyer, for the purchase price of 

$2,650,000.00. [¶] Pursuant to the [settlement agreement], . . . the Changs have this date 

deposited . . . the sum of $132,500.00, as the earnest money deposit under the Purchase 

Agreement. In accordance with the Sales Protocol, [the Changs] shall be credited with 

50% of the sale price, with the effect that the purchase price payable by the Changs at the 

closing shall be $1,325,000.00.‖ (Italics added.)

In escrow, the Vance heirs paid LPB a commission equal to three percent of the 

amount paid by the Changs ($1.325 million)—$39,750. Prior to the close of escrow, 

LPB demanded the Changs also pay it $39,750. The Changs refused and LPB sued Jane 

for breach of contract.
5

Following the submission of evidence at a bench trial, the trial court issued a 

statement of decision in favor of Jane. The court found that the Listing Agreement was 

jointly drafted by Lopez and the Changs‘ attorney. The court construed the commission 

schedule to provide for payment to Broker of ―  ̳3% of the selling price if the Chang‘s 

[sic] exercise their first right of refusal option.‘ ‖ The trial court concluded that the plain 

language of the Listing Agreement required a commission payment of three percent of 

$1.325 million, which is the amount the sellers (the Vance heirs) were actually paid. The 

court rejected LPB‘s argument that it must read ―selling price‖ in the Listing Agreement 

as incorporating the full amount of the Khimani offer. The court concluded: ―[T]here is 

no showing that the parties here intended to be bound by any terms in any other 

document, and certainly not documents to be created in the future by non-parties.‖ The 

court considered extrinsic evidence offered by both parties, and found that none of the 

extrinsic evidence supported a different interpretation. Judgment was entered for Jane 

and the trial court awarded costs and attorney fees. LPB filed a timely notice of appeal.

II. DISCUSSION

The Listing Agreement provides three triggers for payment of the sales 

commission: ―A. If the property is sold, exchanged, or otherwise transferred during the 

above listing period or any written extension, by owners, or through any other source. 

[¶] B. If the property is withdrawn from sale . . . or made unmarketable by owner‘s 

voluntary act during the above listing period. [¶] C. If an agreement to sell or exchange 

the property is made by owner within one hundred eighty (180) days after the termination 

of this agreement to persons with whom [LPB] has had contact or negotiations during the 

listing period . . . .‖. The parties agree that LPB‘s commission is based on the ―listed 

price‖ under condition B (withdrawn from market) and on the ―selling price‖ under 

conditions A and C (sale). They also agree that condition A applies here. The 

commission schedule clearly contemplates a three percent commission if the Changs 

exercise their right of first refusal. The disputed question is: What ―selling price‖ 

applied when the Changs exercised their right of first refusal and purchased only the 

Vance heirs‘ fractional interests in the property?
6

LPB contends that the court erred when it concluded that LPB was owed only 

three percent of $1.325 million rather than three percent of $2.65 million. LPB claims 

that ―selling price‖ means the purchase price offered by Khimani. LPB also contends 

that it is entitled to a commission of $79,500 because Lopez produced a buyer who was 

ready, able, and willing to purchase the entire property for $2.65 million. Jane, on the 

other hand, contends that ―selling price‖ means the actual amount paid by the Changs. 

She also asserts that she had no obligation to pay LPB a commission because she did not 

sell her property and because the provision requiring payment of a commission upon 

procurement of a ―ready, willing and able buyer‖ was removed from the Listing 

Agreement.

A broker‘s right to be paid a commission is determined by the terms of his or her 

contract, and the seller and broker may provide that no commission shall be earned until 

the occurrence of a specified event or condition. (Seck v. Foulks (1972) 25 Cal.App.3d 

556, 571.) ―It has long been the law of this state that any right to compensation asserted 

by a real estate broker must be found within the four corners of his employment contract. 

[Citations.] By the same token, however,  ̳[the] parties to a broker‘s contract for the sale 

of real property are at liberty to make the compensation depend upon any lawful 

conditions they see fit to place therein. [Citations.]‘ [Citation.] In short it is the contract

which governs the agent‘s compensation, and that contract is strictly enforced according 

to its lawful terms.‖ (Blank v. Borden (1974) 11 Cal.3d 963, 969; accord, Steve Schmidt 

& Co. v. Berry (1986) 183 Cal.App.3d 1299, 1305.)

―The interpretation of a written instrument is solely a judicial function unless the 

interpretation turns upon the credibility of extrinsic evidence. We are not  ̳ ―bound by a 

construction of the contract based solely upon the terms of the written instrument without 

the aid of evidence [citations], where there is no conflict in the evidence [citations], or a 

determination has been made upon incompetent evidence [citation].‖ [Citations.]‘ 

[Citation.]‖ (RC Royal Development & Realty Corp. v. Standard Pacific Corp. (2009) 

177 Cal.App.4th 1410, 1418.)
7

Here, although Lopez and Jane‘s counsel testified to differing undisclosed 

interpretations of the Listing Agreement, there is actually no conflict in the relevant 

extrinsic evidence regarding the intention of the parties. ―California recognizes the 

objective theory of contracts [citation], under which  ̳[i]t is the objective intent, as 

evidenced by the words of the contract, rather than the subjective intent of one of the 

parties, that controls interpretation‘ [citation.]. The parties‘ undisclosed intent or 

understanding is irrelevant to contract interpretation. [Citations.]‖ (Founding Members 

of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 

109 Cal.App.4th 944, 956.) For this reason, we disregard the testimony regarding the 

parties‘ undisclosed understandings, as did the trial court. Because this leaves no conflict 

in the extrinsic evidence, we interpret the Listing Agreement de novo. (RC Royal 

Development & Realty Corp. v. Standard Pacific Corp., supra, 177 Cal.App.4th at 

p. 1418; Steve Schmidt & Co. v. Berry, supra, 183 Cal.App.3d at p. 1309.)

First, LPB contends that it is entitled to a commission of $79,500 because Lopez 

produced a buyer who was ready, able, and willing to purchase the entire property for 

$2.65 million. LPB insists that it is entitled to three percent of $2.65 million because 

―[t]he parties executed a listing agreement (per [Steve Schmidt & Co. v. Berry, supra,

183 Cal.App.3d 1299]) and [LPB] produced a buyer with a signed purchase-sale 

agreement (per Austin v. Richards (1956) 146 Cal.App.2d 436]) and [the Changs] 

exercised their right to purchase the property on the terms and conditions of the third 

party contract under a right of first refusal . . . . [¶] . . . [¶] The trial court misunderstood 

that the purpose of broker agreements is to obtain a purchaser for property and, upon 

securing a buyer, the broker is entitled to be paid a commission based upon a percentage 

of the purchase price obtained.‖

Even assuming that LPB has not forfeited this argument by failing to raise it 

before the trial court, LPB has shown no error. ―A common type of listing agreement is 

one . . . wherein the broker agrees to produce a buyer ready, willing and able to purchase 

the described property on the terms and conditions set forth in the listing and the seller 

agrees to accept the offer on the terms set forth in the agreement. Under such an 
8

agreement, it is well settled the broker‘s commission is earned upon the production of a 

ready, willing and able buyer.‖ (Steve Schmidt & Co. v. Berry, supra, 183 Cal.App.3d at 

p. 1305.) Generally, ―where the contract fixes the broker‘s right to remuneration upon 

his sale, if he shall produce a purchaser able and willing to buy, he has performed his part 

of the contract, and the owner‘s liability for his compensation or commission is complete, 

and cannot be avoided by any arbitrary or wanton refusal to consummate the sale. 

[Citations.]‖ (Merriman v. Wickersham (1904) 141 Cal. 567, 570.) ―  ̳The broker has 

performed his duty and has earned his commission regardless of whether a written 

contract is actually entered into or whether the sale is ever consummated by the delivery 

of the property and the payment of the purchase price.‘ [Citations.]‖ (Coulter v. Howard 

(1927) 203 Cal. 17, 25–26.)

But, ―[t]he contents of a listing agreement, not its label, determine the parties‘ 

rights. [Citation.]‖ (Howard Gitlen & Associates, Inc. v. Ameri (1989) 208 Cal.App.3d 

90, 95.) LPB concedes that, ―[i]n entering into the listing agreement . . . , [Jane] was free 

to condition her obligation to pay commissions—or not pay them at all if . . . she 

exercised her right of first refusal.‖

LPB‘s reliance on Steve Schmidt & Co. v. Berry, supra, 183 Cal.App.3d 1299, 

Austin v. Richards, supra, 146 Cal.App.2d 436, and McNamara v. Steckman (1927) 

202 Cal. 569 is misplaced. These cases merely illustrate the following rule: ―In the 

absence of some specific terms and conditions, a sales listing requires the broker to obtain 

a ready, willing and able purchaser or the actual execution of a contract by the seller in 

order for the commission to be earned, and the only conditions are that a ready, willing 

and able purchaser be found or that a contract of sale actually be executed. The more 

common practice in modern listing agreements is for the terms of the listing to be more 

precise and complete in specifying when and under what conditions the commission is 

earned and payable.‖ (2 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 5.42, p. 5-159, 

italics added & fn. omitted.) Unlike any of the cases relied on by LPB, the listing 

agreement involved herein does include specific conditions for payment of a 

commission—sale or withdrawal from sale. These conditions do not include the broker‘s 
9

production of a ready, willing and able buyer. (McNamara v. Steckman, at p. 571; Steve 

Schmidt & Co. v. Berry, supra, 183 Cal.App.3d at pp. 1303–1305, 1309; Austin v. 

Richards, supra, 146 Cal.App.2d at pp. 437, 440.) In fact, the parties deleted that 

condition during negotiation of the Listing Agreement.

Matthews v. Starritt (1967) 252 Cal.App.2d 884 demonstrates how parties may 

vary the terms of a listing agreement to deal with the unique situation presented by a right 

of first refusal. In that case, a real estate broker sought recovery of a commission under 

an exclusive listing agreement. (Id. at p. 885.) Prior to signing the agreement, the seller 

informed the broker that one of the tenants on the property had an option to purchase the 

property. The listing agreement, signed thereafter, provided for a commission equal to 

five percent of the selling price and that ―the sale was subject to the existing leases and 

also subject to the refusal of the purchase price by [the tenant] within 20 days.‖ (Id. at 

p. 886 & fn. 1, italics added.) There was no further discussion between the seller and 

broker regarding the broker‘s right to commission in the event the tenant exercised its 

option. (Id. at p. 886.)

After the tenant exercised its option to purchase the property, a dispute arose 

regarding the broker‘s right to a commission. (Matthews v. Starritt, supra, 

252 Cal.App.2d. at pp. 886–887.) The reviewing court concluded that the italicized 

language constituted a condition precedent to the broker‘s entitlement to a commission. 

(Id. at p. 888.) The court also rejected the broker‘s argument that he was entitled to a 

commission because he secured a purchaser and those services effected the sale to the 

tenant. The court observed: ―The [ready, able, and willing buyer] cases have no 

application to the instant situation where the agreement to sell and, therefore, the broker‘s 

commission is expressly made conditional. [Citation.] Acceptance of a conditional deal 

procured and presented by the broker does not give him a right to commission unless and 

until the condition is performed. [Citation.] [¶] . . . [I]f [the broker] had wished to protect 

his right to a commission in this situation, he should have expressly inserted an 

appropriate statement . . . that he was entitled to a commission even though [the tenant] 

exercised its option.‖ (Id. at pp. 888–889.)
10

In this case, the Listing Agreement similarly provides that ―[t]he sale will be 

subject to [the Changs‘] rights of the lease agreement,‖ which include the right of first 

refusal. But, the Listing Agreement also included a statement that LPB was entitled to a 

commission even if the Changs exercised their option. Matthews v. Starritt, supra,

252 Cal.App.2d 884 does not address such a situation.

Even if the Listing Agreement as a whole is ambiguous—because the commission 

schedule provides for a commission of three percent if the Changs exercise their right of 

first refusal—we are not compelled to conclude that LPB‘s interpretation controls. We 

agree with the trial court that the plain meaning of ―selling price‖ is ―the price actually 

paid‖ when the property is sold. And, even if we were to agree with LPB‘s assumption

that ―selling price‖ is ambiguous in the context presented here—where a co-owner who is 

also a tenant exercises its right of first refusal to buy out the remaining owners‘ fractional 

interest—LPB has not presented any reason, under routine contract interpretation 

principles, that its interpretation, rather than that supported by real estate custom and the 

―subject to‖ clause, should prevail.2

―A contract must be interpreted to give effect to the mutual, expressed intention of 

the parties. Where the parties have reduced their agreement to writing, their mutual 

intention is to be determined, whenever possible, from the language of the writing alone. 

[Citations.] We may not  ̳create for the parties a contract which they did not make, and 

. . . cannot insert in the contract language which one of the parties now wishes were there. 

[Citation.]‖ (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 473.) ―A contract must 

be so interpreted as to give effect to the mutual intention of the parties as it existed at the 

time of contracting, so far as the same is ascertainable and lawful.‖ (Civ. Code, § 1636.)3 

 

2 Both Lopez and Jane understood the general custom and practice in the industry 

to be that sellers, not buyers (as the Changs were here), pay the real estate commission. 

(See Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74 

Cal.App.4th 1232, 1244 [industry custom properly considered in contract interpretation].)

3 All further statutory references are to the Civil Code.
11

―The language of a contract is to govern its interpretation, if the language is clear and 

explicit, and does not involve an absurdity.‖ (§ 1638.)

―  ̳When a dispute arises over the meaning of contract language, the first question 

to be decided is whether the language is ―reasonably susceptible‖ to the interpretation 

urged by the party. If it is not, the case is over. [Citation.] If the court decides the 

language is reasonably susceptible to the interpretation urged, the court moves to the 

second question: what did the parties intend the language to mean?‘ [Citations.] 

Whether the contract is reasonably susceptible to a party‘s interpretation can be 

determined from the language of the contract itself or from extrinsic evidence of the 

parties‘ intent. [Citation.] Extrinsic evidence can include the surrounding circumstances 

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

subject matter of the contract; and the subsequent conduct of the parties. [Citations.] 

When no extrinsic evidence is introduced or the extrinsic evidence was not relied on by 

the trial court or is not in conflict, we independently construe the contract. [Citation.]‖ 

(Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4th 964, 979–980.)

If ambiguity exists, we rely on the rules of contract interpretation to resolve the 

ambiguity. (§ 1637.) ―The words of a contract are to be understood in their ordinary and 

popular sense, rather than according to their strict legal meaning; unless used by the 

parties in a technical sense, or unless a special meaning is given to them by usage, in 

which case the latter must be followed.‖ (§ 1644.) ―A contract may be explained by 

reference to the circumstances under which it was made, and the matter to which it 

relates.‖ (§ 1647.) ―If the terms of a promise are in any respect ambiguous or uncertain, 

it must be interpreted in the sense in which the promisor believed, at the time of making 

it, that the promisee understood it.‖ (§ 1649.) ―Furthermore, in case of an ambiguity, the 

contract should be construed most strongly against the party who drafted or supplied it. 

[Citations.] Thus, where a listing agreement is prepared by a broker, . . . any uncertainty 

in the provisions therein relating to the commission should be construed in favor of the 

seller.‖ (Matthews v. Starritt, supra, 252 Cal.App.2d at p. 887.)
12

LPB primarily seeks to support its interpretation of the Listing Agreement by 

arguing that it incorporated the sales price ultimately offered and accepted for the entire 

Property. LPB contends: ―Most significantly, there was only one purchase-sale 

agreement generated in this transaction: The Khimani Contract. When [Jane] exercised 

[the] Right of First Refusal, she did so under the terms, rights and obligations set forth in 

the Khimani Contract.‖ LPB insists that ―the trial court should have properly viewed [the 

Khimani Offer] as the necessary condition precedent in the performance of the parties 

[sic] obligations (and entitlements) to receiving a commission.‖ ―A condition precedent 

is one which is to be performed before some right dependent thereon accrues, or some act 

dependent thereon is performed.‖ (§ 1436.)

As noted ante, the Listing Agreement and extrinsic evidence of negotiations 

between the parties make clear that sale of the Property, rather than simply procurement 

of the Khimani Offer, was the condition precedent to LPB earning a commission. And, 

we agree with the trial court that the parties did not incorporate either the Khimani Offer, 

the Lease, or the Changs‘ notice of exercise of the right of first refusal into the Listing 

Agreement. ―[T]o have a valid incorporation by reference, the terms of the document 

being incorporated must be  ̳ ―  ̳known or easily available‘ ‖ ‘ to the contracting parties. 

[Citation.]‖ (Gilbert Street Developers, LLC v. La Quinta Homes, LLC (2009) 

174 Cal.App.4th 1185, 1194.) ―Most basically, what is being incorporated must actually 

exist at the time of the incorporation, so the parties can know exactly what they are 

incorporating. [Citation.]‖ (Ibid.) LPB suggests, without any authority to support the 

assertion, that this contract principle does not apply to the type of contract at issue here. 

LPB suggests that later-created documents must be incorporated by reference into listing 

agreements because ―EVERY broker listing agreement involves the setting of a 

commission based upon the precise requirement that commissions are tied to the payment 

of a percentage of a future—not-yet-obtained—sales agreement between an as-yet 

unknown, unidentified buyer at a price not yet set.‖ We are not persuaded. LPB‘s 

argument equally supports ―the price actually paid‖ interpretation. Furthermore, 
13

accepting LPB‘s argument would contradict the terms of the Listing Agreement, which 

includes an integration clause.

The implied covenant of good faith and fair dealing does not assist LPB‘s cause. 

―[E]very contract has an implied covenant not to do anything which injures the right of 

the other party to receive the benefits of the agreement. [Citation.]‖ (Torelli v. J. P. 

Enterprises, Inc. (1997) 52 Cal.App.4th 1250, 1257.) However, the problem here is that 

LPB seeks to obtain more than the Listing Agreement provides. The implied covenant 

cannot assist it in this endeavor.

The trial court did not err in concluding LPB was not entitled to any further 

commission. Accordingly, we need not address LPB‘s argument that the trial court‘s 

award of attorney fees must be reversed with reversal of the judgment.4

III. DISPOSITION

The judgment is affirmed. Respondent is to recover her costs on appeal.

_________________________

Bruiniers, J.

We concur:

_________________________

Simons, Acting P. J.

_________________________

Needham, J.

 

4 We also need not address LPB‘s argument that the parties‘ conduct, prior to the 

commission dispute arising, supports its interpretation of the Listing Agreement. In its 

opening brief, LPB only raises this issue in passing and does not include any reasoned 

analysis of how Jane‘s conduct demonstrates an intent to pay commission based on the 

third party offer for the entire Property. (See People v. Stanley (1995) 10 Cal.4th 764, 

793 [if no legal argument with citation to authority ―  ̳is furnished on a particular point, 

the court may treat it as waived, and pass it without consideration‘ ‖]; Badie v. Bank of 

America (1998) 67 Cal.App.4th 779, 784–785 [when an appellant raises an issue ―but 

fails to support it with reasoned argument and citations to authority, we treat the point as 

waived‖].)