Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC378085. Mary Ann Murphy, Judge.
Law Offices of R. Joseph Kerendian and Associates, R. Joseph Kerendian, and F. Bari Nejadpour for Plaintiff and Appellant.
Law Office of William A. Soroky and William A. Soroky for Defendant and Respondent.
ROTHSCHILD, J.
F. Bari Nejadpour, doing business as Lawyers Title & Mortgage Group, appeals from the judgment entered after the trial court granted summary judgment for Ladan L. Palabod in this action arising out of a brokerage agreement regarding real property in Thousand Oaks. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Operative Complaint
On August 25, 2008, Nejadpour filed the operative first amended complaint against Palabod for breach of contract and related claims. Nejadpour alleged that, on February 15, 2005, he and Palabod had entered a written brokerage agreement giving him the exclusive authorization and right from February 15, 2005 to August 15, 2005 to sell Palabod’s real property in Thousand Oaks. Under the agreement, Nejadpour was to receive six percent of the selling price of the property, whether the buyer was procured by him, Palabod or any other person during the brokerage agreement’s exclusivity period. Nejadpour advertised the property for $1.8 million and, during the exclusivity period, submitted three offers for the property in the amounts of $1.7 million, $1.65 million and $1.5 million, all of which were rejected by Palabod. On June 3, 2005, Palabod unilaterally cancelled the brokerage agreement, explaining that she no longer wished to have Nejadpour as her real estate broker. Palabod then employed another broker to sell the property and failed to pay Nejadpour the six percent commission specified in the brokerage agreement. Nejadpour claimed that Palabod’s failure to pay him a commission constituted a breach of the brokerage agreement, and he sought $110,700 in commission, plus interest, advertising and other out-of-pocket expenses, amounts for lost business opportunities, attorney fees and costs.
2. The Summary Judgment Motion and Opposition
Palabod moved for summary judgment. According to the evidence in support of the motion, Nejadpour, who is an attorney and has a law firm in his name in addition to operating a brokerage firm, submitted an offer to purchase the Thousand Oaks property from Benjamin Donel, an attorney who practiced law with Nejadpour’s office and was listed on the firm letterhead. Nejadpour, however, failed to disclose his relationship with Donel when submitting the offer. When Palabod learned of the relationship between Nejadpour and Donel, she hired an attorney, who determined that Nejadpour’s failure to disclose his relationship with Donel when he submitted Donel’s offer constituted grounds for Palabod to rescind the brokerage agreement.
On June 3, 2005, Palabod’s attorney sent Nejadpour a notice of rescission, citing case authority and stating: “Please be advised that the [brokerage agreement] dated February 15, 2005... is rescinded as of 6:00 p.m. on June 3, 2005. The basis of rescission is your action... in failing to disclose that an offer... for the property... with Mr. Benjamin Donel as offeror was on behalf of your partner.... This action by you is a breach of your fiduciary duty of full disclosure to... Palabod.”
On June 6, 2005, Maria Morales, a paralegal in Nejadpour’s law office, sent correspondence on firm letterhead to Palabod’s attorney in which she stated that, “[r]egarding the listing of [the property], if it is [Palabod’s] wish to cancel the listing... then we will honor her request, we do not agree with it but will honor it. Additionally there is an issue of certain sale’s tool items, which are left at her residence.... Please take notice that if these items are not returned by Friday, June 10, 2005 to the above address... Palabod will have to pay the following charges. [¶] 1. Tall Full Crystal Vase. $285.00 [¶] 2. Red For Sale Sign with full board backing. $45.00 [¶] 3. Brochures, brochure holder and other promotional material[.] $95.00 [¶] Total cost of these material[s] should she decide not to return the same... will be billed to her in the amount of $425.00 by Friday, June 10, 2005.”
On June 7, 2005, Palabod’s counsel responded in writing to Morales that Palabod “is attempting to arrange for a return of the items set forth in your letter, as well as a return of her key.” The following day, on June 8, 2005, Palabod’s counsel sent another letter to Morales, confirming that Palabod had returned the for sale sign and promotional materials and paid $300 to cover the cost of the crystal vase.
Based on these facts, Palabod argued that, as a matter of law, she did not breach the brokerage agreement or otherwise owe Nejadpour any commission or related damages from the sale of her Thousand Oaks property because the brokerage agreement had been rescinded by mutual consent through her notice of rescission on June 3, 2005 and Nejadpour’s acceptance of it in the letter sent by his paralegal, Morales, on June 6, 2005.
In opposition to summary judgment, Nejadpour argued that Palabod could not show mutual rescission as a matter of law because a triable issue of material fact existed as to whether the June 6, 2005 letter from Morales constituted an acceptance of Palabod’s desire to rescind the brokerage agreement. Although Nejadpour admitted in his declaration supporting his opposition to summary judgment that he “caused” his paralegal to “send a letter acknowledging receipt of [Palabod’s] wrongful rescission” of the brokerage agreement, he said that the letter was not “to be inferred as an act of mutual rescission, ” or “represent a waiver of [his] remedies” for damages caused by breach of the agreement, but was intended only to convey his inability to force Palabod to comply with the agreement.
3. The Trial Court’s Order Granting the Motion and Entry of Judgment
On March 11, 2010, the trial court entered an order granting summary judgment on the ground of mutual rescission. The court concluded, “The seller-defendant’s attorney sent a notice of rescission to the plaintiff broker on June 3, 2005. On June 6, 2005, plaintiff broker’s paralegal responded in pertinent part: ‘Regarding the listing... if it is [defendant’s] wish to cancel the listing with [plaintiff] then we will honor her request, we do not agree with it but will honor it. [¶] In the same letter, plaintiff broker asked for the return of the for sale sign, brochures and brochure holder and vase valued at $285. Plaintiff returned all items except the vase, but sent a check for $300 for the vase. [¶] Plaintiff broker accepted defendant-seller attorney’s notice of rescission.” (Citations omitted.) Judgment was entered in favor of Palabod. Nejadpour filed a timely notice of appeal from the judgment.
DISCUSSION
1. Standard of Review
A trial court must grant a summary judgment motion when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We independently review the trial court’s decision, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, ’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
2. The Trial Court Properly Granted Summary Judgment
As recognized by the trial court’s grant of summary judgment, a contract may be mutually rescinded “if all the parties thereto consent.” (Civ. Code, § 1689, subd. (a).) Nejadpour contends summary judgment was improper because a triable issue of material fact exists as to whether the statements in his paralegal’s June 6, 2005 letter constitute an acceptance of Palabod’s June 3, 2005 notice of rescission and thus a mutual rescission of the brokerage agreement. According to Nejadpour, the statements demonstrate, not mutual rescission, but recognition that, although he did not agree with Palabod’s decision to rescind the brokerage agreement, he would honor her request, while remaining entitled to exercise all legal remedies based on her rescission. We disagree.
The June 6, 2005 letter prepared by Nejadpour’s paralegal provides that, “[r]egarding the listing of [the property], if it is [Palabod’s] wish to cancel the listing... then we will honor her request, we do not agree with it but will honor it.” In addition, it gives terms for Palabod to return personal property items to Nejadpour. The letter thus by its terms recognizes and accepts rescission of the brokerage agreement. As a result, the June 3, 2005 notice of rescission and the June 6, 2005 response thereto constitute a mutual rescission of the brokerage agreement.
The statement in the June 6, 2005 letter that “we do not agree with” cancellation of the agreement does not negate mutual rescission. A party’s reluctant acceptance of an agreement is still an acceptance nonetheless. (Chicago Bridge & Iron Co. v. Industrial Accident Commission (1964) 226 Cal.App.2d 309, 316 & fn. 2 [fact that party entered agreement reluctantly does not detract from the legal effect of his assent]; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 184, p. 219 [“acceptance that is unqualified, though made with some protest, is a ‘grumbling acceptance, ’ and such an acceptance is sufficient”].) Nejadpour accepted the rescission, even though he might not have been happy about it or protested it to some extent.
In addition, Nejadpour’s uncommunicated subjective intent that he presented in opposition to summary judgment, stating that by the letter he intended only to recognize Palabod’s cancellation and retain all his legal rights against her, is irrelevant to the determination whether the parties mutually rescinded the brokerage agreement. (Alex Robertson Co. v. Imperial Casualty & Indemnity Co. (1992) 8 Cal.App.4th 338, 346 [“Parol evidence of the subjective, uncommunicated intent of one of the parties is not admissible to contradict the express terms of an agreement”]; Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 327 [“uncommunicated subjective intent is not relevant” to determination of existence of mutual assent]; see also Larsen v. Johannes (1970) 7 Cal.App.3d 491, 500-501 [declarations attempting to show that parties to contract for rescission and release meant something other than what they said are incompetent testimony and cannot defeat summary judgment].)
Moreover, aside from the expression of mutual rescission in Palabod’s June 3, 2005 notice of rescission and Nejadpour’s June 6, 2005 response, Nejadpour’s conduct indicates his consent to rescind the brokerage agreement. “An abandonment of a contract may be implied from the acts of the parties, and this may be accomplished by the repudiation of the contract by one of the parties and the acquiescence of the other party in such repudiation and words of the parties to the effect that they are mutually rescinding the contract are not necessary.” (Griffin v. Beresa, Inc. (1956) 143 Cal.App.2d 299, 301, citing McCreary v. Mercury Lbr. Distributors (1954) 124 Cal.App.2d 477, 486.) After recognizing Palabod’s rescission of the brokerage agreement and indicating his assent to honor it, Nejadpour requested the return of the personal items he had at Palabod’s property, or their monetary equivalent, and received from Palabod all of the items except one for which she paid him more than he had requested. This course of conduct demonstrates Nejadpour’s agreement to mutual rescission.
Nejadpour also argues that summary judgment should be reversed because a triable issue of material fact exists regarding his relationship with his paralegal, Morales, and her authority to “assent to a mutual rescission” of the brokerage agreement. Nejadpour, however, cites no evidence raising a disputed material fact regarding Morales’s authority. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 [plaintiff defeats summary judgment by presenting evidence that demonstrates the existence of a disputed material fact].) Moreover, the evidence is to the contrary. In his declaration supporting the opposition to summary judgment, Nejadpour acknowledged that he “caused” Morales to write the June 6, 2005 letter responding to Palabod’s notice of rescission. Further, his conduct in accepting the return of his personal property items and $300 from Palabod evidences his agreement to rescission as expressed in the June 6, 2005 letter from Morales. (Faulkner v. Brooks (1932) 125 Cal.App. 137, 140 [party could not obtain vacatur of judgment when he either authorized his attorney to enter the stipulated judgment or ratified the attorney’s act in doing so by virtue of his subsequent conduct].) Nejadpour cannot obtain reversal of the summary judgment based on an argument that is contrary to his own evidence in opposition to the motion. (Cf. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22-23 [party who makes admissions against his interest in sworn testimony cannot defeat summary judgment based on subsequent, contradictory statements].)
Palabod also moved for summary judgment on the ground of unilateral rescission, maintaining that she was entitled to unilaterally rescind the brokerage agreement based on Nejadpour’s failure to disclose his relationship with Donel when submitting Donel’s offer and that her notice of June 3, 2005 constituted a unilateral rescission of the brokerage agreement. Because we decide that summary judgment was proper on the ground of mutual rescission, we need not address the arguments and evidence supporting and opposing summary judgment on the ground of unilateral rescission, including whether Nejadpour was required to disclose his relationship with Donel when submitting Donel’s offer and, if so, whether his failure to do constituted grounds for Palabod to unilaterally rescind the brokerage agreement.
DISPOSITION
The judgment is affirmed. Palabod is entitled to recover her costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.