Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Michael B. Orfield, Judge, Super. Ct. No. GIN034592
McCONNELL, P. J.
Peng Tan, Su Gao, Shi Jie Goa and Kun Xiu Yi (collectively Tan when appropriate) appeal a judgment that ordered specific performance of a real estate purchase and sale agreement in favor of Pacific Star Ventures, LLC and Zags 1, LLC (together Pacific Star when appropriate). Tan contends the trial court made numerous errors in ordering him to convey the property. Tan, however, did not post an undertaking to obtain a stay of the judgment, title to the property has been conveyed, and Tan has voluntarily accepted the benefits of the judgment. Thus, based on principles of waiver and mootness, we grant Pacific Star's motion to dismiss the appeal insofar as it concerns specific performance. We deny the motion to dismiss insofar as it concerns attorney fees awards included in the judgment, but we affirm that portion of the judgment as Tan has shown no abuse of discretion.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2003 the parties entered into a contract for Tan's sale of two undeveloped parcels of land totaling approximately 80 acres to Pacific Star or its assignee, Zags 1, which was to fund the purchase and take title at the close of escrow. Tan was to retain a 10 percent interest in the property, thereby reducing the $4,750,000 purchase price to $4,275,000. Pacific Star was to make a down payment of $2,137,500, including a total of $125,000 in earnest money deposits, and Tan was to finance the $2,137,500 balance under specified terms. The contract provided for a 90-day contingency period for Pacific Star's conduction of "feasibility, soil, engineering and other studies," and a close of escrow date 30 days after the removal of contingencies. Paragraph 19 of the contract required Pacific Star to perform certain tasks, such as provide evidence of sufficient funds to close escrow, identify Zags 1's investors, and provide a list "of all engineers, surveyors, etc. and their contract agreements that [Pacific Star] is engaging to evaluate the feasibility of [development of] the lands."
Additionally, the contract provided, "In the event any litigation or dispute between Buyer and Seller should arise as a result of, or in connection with, this Agreement, the prevailing party shall be entitled to recover attorney's fees and costs of suit."
Pacific Star immediately began performing its contract obligations. In early September 2003, it deposited $25,000 into escrow and notified Tan it retained an engineer he recommended to perform a feasibility study. Pacific Star asked Tan's real estate agent what type of financial information Tan required, and it offered financial statements. The agent, however, advised that a bank letter would suffice. In early October, Pacific Star provided a letter from Wells Fargo Bank that stated it was "more than capable of completing a land purchase for $5,000,000." Also in early October, Pacific Star provided Tan with a list of potential investors in Zags 1, but stated it reserved the right to amend the list and would provide a final list at the close of escrow.
A third party, Thomas Hover, had negotiated with Tan for several years to purchase the property, and in August 2003 he unsuccessfully offered $5,100,000 for it. Hover contacted Tan again in November 2003, and Tan said the property remained available, but the price had gone up and Hover should submit a higher offer.
The contingency period was set to expire on December 4, 2003, and on December 3 Tan denied Pacific Star's request to extend the period by one week. Additionally, for the first time Tan complained that Pacific Star's identity of potential investors in Zags 1 was insufficient and he required "a firm list of the buyers."
On December 4, Pacific Star deposited an additional $100,000 into escrow and signed a waiver of contingencies. Tan then directed his real estate agent to ask Pacific Star "how much money it would take for [it] to walk away from this transaction." Pacific Star declined to negotiate and Tan wrote several letters in an attempt to get out of the contract. In a December 8 letter, Tan complained that the investor list was not in compliance with paragraph 19 of the contract, and the bank letter was insufficient proof of Pacific Star's ability to close escrow.
In late December, Pacific Star wired the balance of the purchase price and costs to the escrow agent. Escrow did not close, however, because Tan failed to provide documents required by the escrow instructions, including a signed grant deed.
Pacific Star and Zags 1 sued Tan for specific performance and breach of contract. Tan cross-complained against Pacific Star, Zags 1 and their principal, Kevin Koentopp, for fraud, breach of contract and breach of the implied covenant of good faith and fair dealing.
Tan moved for summary judgment on the ground he was not authorized by the other defendants, his wife and her parents, to sign the purchase and sale agreement. The court denied the motion and gave Pacific Star leave to file a second amended complaint adding causes of action for fraud and breach of representation or warranty.
In May and June 2005, the court conducted a bench trial, and on June 22 it issued a tentative statement of decision ordering specific performance of the purchase and sale agreement, and alternatively, finding the defendants breached the contract. In August the court revised and finalized the statement of decision. The court found all defendants agreed to sell the property through Tan, and Pacific Star sufficiently performed under paragraph 19 of the contract, and in any event, Tan gave no notice of unfulfilled terms. The court ruled against Tan on his second amended cross-complaint.
On August 15, 2005, the court entered a judgment that scheduled escrow closing for September 16 and ordered Tan to provide the escrow company with a signed grant deed and perform all other acts required to convey the property to Zags 1. The judgment also ordered Tan to pay his adversaries' attorney fees and costs in amounts to be determined in posttrial motions.
On September 16, 2005, Tan applied ex parte for a stay of enforcement under Code of Civil Procedure sections 917.3 and 917.4. The court continued the matter for several weeks. At an October 12 hearing, Pacific Star submitted a declaration from the escrow officer that stated Tan prohibited the disclosure of documents to Pacific Star's counsel, and had not fully complied with escrow instructions. Tan represented that he had signed and deposited all required documents, but the court was unsatisfied and again continued the matter. The court explained that for Tan to obtain a stay, "we needed escrow at a point where [it] could close as soon as the judge said: Go ahead and close."
Code of Civil Procedure section 917.3 provides: "The perfecting of an appeal shall not stay enforcement of the judgment . . . in the trial court if the judgment . . . appealed from directs the execution of one or more instruments unless the instruments or instruments are executed and deposited in the office of the clerk of the court where the original judgment . . . is entered to abide the order of the reviewing court." Code of Civil Procedure section 917.l4 provides that the perfection of an appeal shall not stay the enforcement of a judgment that directs the sale or conveyance of real property unless the appellant gives an undertaking in a sum fixed by the court.
The plaintiffs brought a motion to determine the amount of attorney fees, and on October 5, 2005, the court issued a tentative ruling awarding Pacific Star $622,270 in contractual attorney fees and Kevin Koentopp $71,250 in cost-of-proof sanctions under Code of Civil Procedure section 2033.420. The court did not award Zags 1 any fees. After an October 14 hearing, the court confirmed the ruling and the awards were added to the August 15, 2005 judgment.
On October 21, Tan filed a notice of appeal of the original judgment. At a November 28, hearing, the court ordered that to obtain a stay Tan must post a $1,750,000 bond by December 16. Tan did not post a bond and no stay was issued. On December 28, Tan filed a second notice of appeal to challenge the fee awards.
Tan states his appeal is from two judgments. Ordinarily, however, there can only be one final judgment in a single action. (Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, 60.) We have taken judicial notice of the superior court file (Evid. Code, § 452, subd. (d)), which shows the court entered only one judgment on August 15, 2005, and it included awards of unspecified attorney fees and provided for the setting of amounts by postjudgment motions. The amounts of the awards were later added to the judgment, and the judgment subsumes the awards. (See Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 2:156.2, p. 2-73.)
In January 2006, in accordance with Tan's instructions, Zags 1 delivered four deeds of trust, each to secure one-fourth of the $2,137,500 promissory note. The beneficiary of the deeds of trust is "1031 Exchange Advantage, Inc.," a company Tan selected to accommodate his intended exchange of the sale proceeds for like kind property under Internal Revenue Code section 1031.
Escrow closed on January 27, 2006, and under Tan's instructions the escrow company allocated purchase proceeds as follows: $375,302 in cash via wire transfer to 1031 Exchange Advantage, Inc.; $850,000 in cash via check payable to Tan; and $2,137,500 in the form of a promissory note secured by the four deeds of trust for the benefit of 1031 Exchange Advantage, Inc. Additionally, the escrow company disbursed $805,992 to Pacific Star for Tan's benefit to satisfy abstracts of judgment totaling $731,868.02 for attorney fees and costs, plus interest, and an additional $34,485.84 in interest earned on escrow deposits.
On February 3, 2006, the four deeds of trust and the grant deed were recorded. The same date, Pacific Star and Koentopp filed acknowledgements of full satisfaction of the judgment. In July 2006 Zags 1 paid Tan the first installment payment of $74,812.50 on the promissory note, via check made out to 1031 Exchange Advantage, Inc.
DISCUSSION
I
Specific Performance
A
Tan assigns numerous errors to the specific performance judgment, such as that the contract was indefinite, uncertain and unconscionable, and Pacific Star materially breached paragraph 19 of the contract. We do not reach the merits, however, and grant Pacific Star's motion to dismiss the appeal insofar as it concerns specific performance.
The parties have submitted declarations in conjunction with Pacific Star's motion to dismiss, which we consider to the extent they contain competent and relevant evidence. "Although appellate courts are generally reluctant to take evidence, they should do so when it shows that events occurring after judgment and notice of appeal have rendered the appeal moot." (Long v. Hultberg (1972) 27 Cal.App.3d 606, 608.) We also grant Pacific Star's request for judicial notice as to exhibits B-F, H-L, and O; we deny the request as to exhibits A, M, N and P. We grant Tan's request for judicial notice as to exhibits 13 and 14, and deny it as to exhibits 1 through 12.
"Ordinarily, a party cannot accept the benefits of a judgment, in whole or in part, and then attack it by appeal. His conduct in taking any of its advantages while seeking to reverse it is inconsistent, and the result is a waiver of the right. 'He has the option to proceed with his appeal or to accept what the judgment may award him and forego his appeal. If he does accept the fruits of the judgment his election so to do estops him from further prosecution of the appeal. It is, in effect, his affirmance of the validity of the judgment against him.' " (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 212, p. 268, citing Turner v. Markham (1907) 152 Cal. 245, 247.)
In Al J. Vela & Associates, Inc. v. Glendora Unified School Dist. (1982) 129 Cal.App.3d 766, the court applied this rule in the land conveyance context. Hughes Development Corporation (Hughes) appealed a judgment ordering it to convey to Al J. Vela & Associates, Inc. (Vela) a parcel of real property on the condition Vela pay Hughes $54,360. (Id. at p. 768.) The court dismissed the appeal on the ground Hughes waived its appellate rights by accepting and cashing Vela's check for $54,360. The court explained: "Having received the money, Hughes is barred from prosecuting its appeal from the judgment insofar as the judgment orders conveyance of the property. As stated in San Bernardino v. Riverside (1902) 135 Cal. 618, 620: 'A party cannot accept the benefit or advantage given him by an order and then seek to have it reviewed. After receiving the money which the court has directed to be paid to him, he will not be heard to say that the court erred in making such order, and if by the order a right or favor is given to the other party as the consideration for making such payment, the party receiving the money will be held to have assented to a granting of the favor or right.' " (Id. a p. 769.)
Tan asserts the waiver rule is inapplicable because he was compelled to accomplish an exchange of the sale proceeds for like kind property under Internal Revenue Code section 1031 to defer capital gains taxes. Tan relies on Lee v. Brown (1976) 18 Cal.3d 110, 116, which explains that an exception to the general rule of waiver applies when the appellant's acceptance of benefits arose under compulsion of risk of forfeiture. In Lee v. Brown, the majority opinion held the defendants' acceptance of the amount of their homestead exemption after an execution sale of their property did not constitute a waiver of their appeal rights because "as a practical matter, defendants may lose the right to the homestead exemption to which they are concededly entitled if they do not accept the exemption funds before exhausting their appeal rights. This possibility occurs because [former] Civil Code section 1257 extends to the funds the homestead protection for a period of six months only." (Ibid.; see also Miller v. Lobdell (1952) 109 Cal.App.2d 628, 631 ["An exception to the general rule that a voluntary acceptance of the benefit of a judgment bars an appeal therefrom is recognized where payments on a judgment are made under compulsion of threatened serious financial loss"].)
Tan, however, would not have been under any compulsion to reinvest the sale proceeds in like kind property had he provided a bond and obtained a stay of the judgment pending appeal, as discussed more fully below. Further, not all of the sale proceeds went to the Internal Revenue Code section 1031 exchange accommodator. Rather, Tan personally accepted $850,000 of the sale proceeds, and he does not establish he was under any compulsion to accept those funds. The record does not support Tan's suggestion the court would hold him in contempt if he did not withdraw the funds from escrow.
In an attempt to show his wife's parents, Kun-Xiu Yi and Shi-Jie Gao, did not benefit from the judgment, Tan's declaration states, "I did not share the sale proceed[s] of $850,000" with them. We question the statement's credibility, given that the family members presumably had equal ownership interests in the property, as evidenced by Tan's instruction that Zags 1 deliver four deeds of trust in equal amounts to secure the $2,137,500 promissory note. In any event, his declaration does not state his wife's parents lack an interest in the $850,000 or will not ultimately obtain a share of that money. Moreover, the parents benefited from the judgment insofar as sale proceeds were transferred to 1031 Exchange Advantage, Inc., for the accommodation of a property exchange.
Tan's declaration is also unavailing because, as discussed below, the appeal is not viable on the additional ground the specific performance judgment was not stayed and it has been satisfied.
Further, Tan's contention he received no benefits from the judgment — as the "judgment itself . . . does not describe or specify any specific monetary or asset consideration to be exchanged by the parties" — lacks merit. The judgment enforced the contract, which contained the sale terms.
Tan's reliance on Greenspot Desert Inns v. Roy (1944) 63 Cal.App.2d 54 (Greenspot), is misplaced. In Greenspot, the lessee of a cafe obtained a judgment of specific performance of an option to purchase the property. The lessors appealed, and the lessee moved to dismiss on the ground the lessors accepted the judgment's award of $13,200.55 in rentals. The court denied the motion because the lessors sought more than $28,000 in rentals, and although " '[a]s a general rule, a party may not accept the fruits of a judgment and at the same time appeal from the same," an "exception to this rule is recognized where the appellant is conceded to be entitled to the thing which he has accepted and where the appeal only relates to an additional claim on his part." (Id. at p. 59.) In Greenspot,the court also concluded the lessors were compelled to accept the rents because of unique financial circumstances attributable to World War II. (Id. at pp. 59-60.) The Greenspot exception does not apply when, as here, "the portion of the judgment appealed from cannot be reversed without affecting the right of the appellant to retain the fruits received." (Trollope v. Jeffries (1976) 55 Cal.App.3d 816, 825.)
Notably, the Greenspot court rejected the argument the lessors signed a conditional sales contract "under compulsion of the mandatory order in the judgment," as "that portion of the judgment could have been stayed by the deposit with the county clerk of the conditional sales contract pending the determination of the appeal." (Greenspot, supra, 63 Cal.App.2d at p. 59.)
The defendants waived appellate review of the specific performance judgment by voluntarily accepting its benefits.
B
Additionally, the appeal is moot because Tan did not post an undertaking, the action was not stayed, and Pacific Star has already obtained specific performance of the judgment. An appeal will generally "be dismissed as 'moot' when, through no fault of respondent, the occurrence of an event renders it impossible for the appellate court to grant appellant any effective relief." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 5:22, p. 5-5.) It is established that the reversal of a judgment or order pertaining to the conveyance of real property would be an "idle act" when the property was sold pending appeal. (Los Angeles County v. Butcher (1957) 155 Cal.App.2d 744, 747.)
In First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798 (Fegen), the bank obtained a money judgment against Fegen and perfected a lien on Fegen's real property. The trial court ordered sale of the property, and Fegen appealed. He did not, however, post an undertaking to obtain a stay under Code of Civil Procedure section 917.4, and after unsuccessful attempts to postpone the sale it was conducted and the bank was the successful bidder. (Fegen, at pp. 800-801.) The Court of Appeal dismissed the appeal as moot, explaining: "Because Fegen did not post an undertaking, the [p]roperty was sold pursuant to the trial court's order. Consequently, this court cannot fashion any order which would have the effect of reversing the trial court's order of sale or otherwise preventing the sale of the [p]roperty, an event which has already occurred." (Id. at p. 801.)
Tan asserts he should be excused from the stay requirement because he was unable to post the "enormous" $1,750,000 undertaking. As Pacific Star points out, however, under that reasoning "the losing party at trial could always refuse to post an undertaking, allow performance under a specific performance judgment, file an appeal, take the proceeds from the sale, and then defeat a motion to dismiss by simply claiming an inability to pledge available assets or post an appropriate undertaking." An appellant may not forego posting a bond and shift the risks of delay pending appeal to the respondent. (See Cunningham v. Reynolds (1933) 133 Cal.App. 148, 150-151 ["The purpose of the undertaking is to protect the respondent"]; Hein v. Highlands Ins. Co. (1976) 64 Cal.App.3d 627, 633 ["The stay of enforcement inherently involved a risk of a decline in value of the property pending appeal. That risk should be borne by the party who appealed and her sureties, not by plaintiff, who was wronged by the stay"]; Code Civ. Proc., § 917.4 [undertaking covers value of occupation, waste, and for mortgaged property any deficiency].)
Tan also suggests the conveyance of the property to Zags 1 can be undone. His declaration states an exchange under section 1031 of the Internal Revenue Code (26 U.S.C. § 1031) was critical, because the assessment of capital gains taxes "would have diminished our ability to have sufficient funds to refund back to the [r]espondents in the event that the [a]ppeal is successful." The declaration also states, "None of the sellers have irreversibly consumed or expended any of the sale proceeds paid out of escrow. The sale proceeds are being preserved in a manner that could be returned to the respondents should the court reverse the specific performance judgment." The declaration of Tan's wife, Su Gao, states, "I have placed the consideration received from escrow in a most liquid form allowed under the 1031 exchange regulation." Under 26 United States Code section 1031, however, replacement property shall not be treated as like kind property unless it was identified as exchange property within 45 days of the taxpayer's transfer of the original property, and he or she consummates the purchase of the replacement property within the earlier of 180 days of the transfer, or "the due date (determined with regard to extension) for the transferor's return of the tax imposed by this chapter for the taxable year in which the transfer of the relinquished property occurs." (26 U.S.C. § 1031(a)(3)(B)(ii).) The escrow here closed on January 27, 2006, and the above declarations were signed on September 22, 2006, which was already beyond the 180-day period.
Further, Tan complains Pacific Star is guilty of laches as it did not move for dismissal until after he filed his opening brief, and as a result he "invested a considerable amount of energy, time, concentration and expense in this [a]ppeal." Tan, however, cites no supporting legal authority. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Tan, of course, could have conserved resources by voluntarily dismissing his appeal of the specific performance judgment after the property was sold and appellate relief was no longer available.
Regardless of any arguable substantive merit of Tan's appeal, this court cannot unwind the conveyance of his property to Zags 1. If Tan wanted to challenge the specific performance judgment, it was incumbent on him to post an undertaking and obtain a stay to maintain the status quo pending appeal. Because title to the property was conveyed while the appeal was pending, and Tan accepted benefits of the judgment, the appeal is precluded insofar as it concerns specific performance.
II
Attorney Fees
Pacific Star also contends Tan's challenge of the attorney fee awards must be dismissed because the awards were satisfied from the escrow account. Tan's declaration, however, states none of the defendants authorized the escrow officer to satisfy the attorney fee awards and "[w]e became aware of this only after she sent U.S. the closing statement after the money was disbursed." Pacific Star has submitted a declaration by the escrow officer, and she does not contradict Tan's declaration. Accordingly, we conclude the payment of attorney fees was not voluntary, and thus dismissal is not proper. Indeed, even "the voluntary payment of a judgment will not deprive a party of his right to appeal unless it is shown that the payment was by way of compromise or with an agreement not to take or prosecute an appeal." (Hartke v. Abbott (1930) 106 Cal.App. 388, 391.)
Tan complains that in support of its motion for attorney fees, Pacific Star did not submit its attorney-client fee agreement, only two of the attorneys who worked on the case submitted sworn declarations in support of the claim, as opposed to each person who worked on the case, and "there is no impartial expert witness testimony to justify the huge attorney fees claim." Tan, however, has waived the issues by not citing any supporting legal authority. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th 1445, 1448.)
Additionally, Tan claims too many attorneys and support staff worked on the case and billed too many hours. "With respect to the amount of fees awarded, there is no question our review must be highly deferential to the views of the trial court. [Citation.] As our high court has repeatedly stated, ' " '[t]he "experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong" — meaning that it abused its discretion.' " ' " (Children's Hosp. and Medical Center v. Bonta´ (2002) 97 Cal.App.4th 740, 777.)
We cannot say there was any abuse of discretion, as Tan presents no cogent argument and includes no record citations to show any particular tasks were unnecessary, redundant or unreasonable. "The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure, supra, Appeal, § 594, p. 627.) It "is counsel's duty by argument and citation of authority to show in what respects rulings complained of are erroneous." (Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265, italics added.) " 'This court is not inclined to act as counsel for . . . appellant and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion.' " (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Further, Tan contends that since only he signed the purchase and sale agreement, which contained the attorney fees clause, the other defendants are not responsible for the payment of fees. This contention ignores the evidence. The court found that Tan's wife and her parents agreed with Tan to sell the property, authorized him to enter into the contract on their behalves, and ratified the contract.
Tan also asserts that since Pacific Star caused escrow to be amended on December 26, 2003, to assign its interest in the Purchase and Sale Agreement to Zags 1, Pacific Star is not entitled to attorney fees incurred after that date as it no longer had any interest in the matter. In its statement of decision, however, the court determined "both . . . Zags 1 and Pacific Star . . . are proper parties in this lawsuit. . . . Both play a role in the contract, Pacific Star . . . as buyer and Zags 1 as the entity to take over title at the close of escrow. Zags 1 is the vehicle formed to take title and administer the property following the close of escrow, Pacific Star . . . [is] the stated buyer. Both are necessary parties. Exhibit 17, the assignment, was executed in contemplation of the close of escrow, and was never intended as nor did it amount to an immediate 'walk away' document by Pacific Star."
"Contract interpretation presents a question of law which this court determines independently. [Citations.] [¶] 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.]" (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 472-473.) The contract stated Zags 1 would take title to the property at the close of escrow, which did not occur prior to trial because Tan did not perform. The agreement provided that before the close of escrow, Pacific Star had numerous obligations, such as depositing funds into escrow, conducting a feasibility study during the 90-day contingency period, disclosing the identities of Zags 1's investors and closing escrow within 120 days. We conclude the court's interpretation of the contract is reasonable.
Moreover, at an August 15, 2005 hearing regarding the language of the proposed judgment, Tan opposed the plaintiffs' efforts to have the court order specific performance in favor of Zags 1, and agreed with the court that it should be ordered in favor of Pacific Star since it was the party to the purchase and sale agreement. Tan argued, "if title has to convey, it goes to Pacific Star," and "what Pacific Star . . . does with the title after the close of escrow is up to Pacific Star." Tan cannot now complain that Pacific Star had no interest in the contract, and concomitant responsibility for attorney fees, after the December 2003 assignment made in contemplation of the close of escrow. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 ["an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal"].)
Also, in his opening brief Tan asserts that since attorney Wesley Thompson represented Zags 1, and Pacific Star was awarded the attorney fees, his fees must be deducted from the award. Thompson, however, submitted a declaration that stated he represented both Pacific Star and Zags 1, and Tan does not assert his fees could be segregated by entity.
Lastly, we reject Tan's contention the court erred by awarding Koentopp cost-of-proof sanctions for failing to admit the truth of certain factual matters (Code Civ. Proc., § 2033.420) without issuing a statement of decision on the issue (Code Civ. Proc., § 632). "Code of Civil Procedure section 632 requires the court to issue a statement of decision 'upon the trial of a question of fact' when it receives a request therefor by a party appearing at trial. In general, however, section 632 applies when there has been a trial followed by a judgment. [Citation.] It does not apply to an order on a motion. [Citation.] This is true even if the motion involves an evidentiary hearing and the order is appealable." (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) "A statement of decision is not required regarding an award of attorney fees pursuant to a motion." (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1252.) As we explained in footnote 2, infra, the attorney fees here were the subject of postjudgment motions.
DISPOSITION
The appeal is dismissed insofar as it concerns specific performance. The judgment is affirmed insofar as it concerns attorney fees. The plaintiffs are entitled to costs on appeal.
I CONCUR: O'ROURKE, J.
I CONCUR IN THE RESULT: HUFFMAN, J.