Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CC05932, David T. McEachen, Judge.
Dana F. Knutson for Cross-complainants and Appellants.
Mark L. Bradbury for Cross-defendants and Respondents.
OPINION
ARONSON, J.
Kam F. Yee and Siu Long Yee challenge the trial court’s nonsuit ruling on their cross-complaint seeking breach of contract damages against Philippe Sigal and Helen C. Sigal. The Yees entered into an agreement to sell their residence to the Sigals, with the Sigals depositing $10,000 in escrow. In an addendum, the Sigals agreed to pay for any needed repairs to the property, including an estimated $2,860 in termite repairs. The addendum also provided that escrow would be cancelled and the Sigals would receive back their deposit if a cloud appeared on title. The escrow company received a $2,860 invoice for repairs from a termite company, and a former prospective buyer recorded a lis pendens against the property. A dispute arose when the Sigals refused to allow the Yees to deduct the invoice amount from the Sigal’s deposit.
We conclude the trial court properly granted the nonsuit motion on the Yees’ breach of contract claim. The addendum reflected the parties’ mutual intent to terminate the contract automatically upon a cloud appearing on the property’s title. The abandonment had the effect of cancelling all of the parties’ promises, and required the return of the Sigals’ full deposit. Moreover, the Yees failed to present sufficient evidence the invoice represented money actually due and owing, or that they would suffer damage from the unpaid invoice. Accordingly, we affirm.
I
Factual and Procedural Background
On November 20, 2003, the parties entered into a residential purchase agreement in which the Yees agreed to sell the Sigals a residence in Newport Beach. In an addendum, the Sigals accepted responsibility for any necessary repairs to the property, expressly including an estimated $2,860 in termite repairs. The addendum acknowledged the existence of another contract between the Yees and another buyer, and provided that if a cloud appeared on the property’s title, the escrow would be cancelled and the Sigals would receive their deposit back within seven days. On November 24, 2003, Chicago Title Company (Chicago Title), as escrow holder, received the Sigal’s $10,000 purchase deposit. On December 2, 2003, the previous buyer for the property recorded a lis pendens against the property. On December 17, 2003, Chicago Title received an invoice for $2,860 from Anytime Termite Company (Anytime) for repairs purportedly made to the property.
On September 29, 2005, Chicago Title prepared escrow cancellation instructions for the return of the full deposit to the Sigals. The Yees, however, instructed Chicago Title to pay the Anytime invoice and deduct the amount from Sigals’ deposit. As a result of the parties’ inability to agree on whether the escrow company could deduct the Anytime invoice from the deposit, Chicago Title filed an interpleader action, naming the parties and Anytime as defendants. Anytime did not answer, and Chicago Title took Anytime’s default. The Yees filed a cross-complaint for breach of contract and declaratory relief against the Sigals and Chicago Title, alleging the Sigals were responsible for paying the Anytime invoice.
The case proceeded as a bench trial. After the Yees presented their evidence on the cross-complaint, the trial court granted the Sigals’ nonsuit motion on the Yees’ claim concerning the Anytime invoice. The trial court ruled that the invoice was barred by the statute of limitations, the Yees presented no evidence the work described in the invoice had been performed, and the Sigals did not breach the purchase agreement when they failed to pay the invoice. The trial court entered judgment, and the Yees now appeal.
II
Discussion
As the Yees recognize, a motion for nonsuit under Code of Civil Procedure section 581c, subdivision (a), applies only to jury trials. Reviewing courts therefore treat an order granting nonsuit as a judgment for defendant under Code of Civil Procedure section 631.8. (Commonwealth Memorial, Inc. v. Telophase Society of America (1976) 63 Cal.App.3d 867, 869, fn. 1.) “The purpose of . . . section 631.8 is to enable a trial court which, after weighing the evidence at the close of the plaintiff’s case, is persuaded that the plaintiff has failed to sustain his burden of proof, to dispense with the need for the defendant to produce evidence. [Citations.] ‘. . . In weighing the evidence, the trial judge may exercise the prerogatives of a fact trier by refusing to believe witnesses and by drawing conclusions at odds with expert opinion. If the motion is granted, his findings are entitled to the same respect on appeal as any other findings and are not reversible if supported by substantial evidence.” (Heap v. General Motors Corp. (1977) 66 Cal.App.3d 824, 829-830.)
Code of Civil Procedure section 581c, subdivision (a), provides: “Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.”
Code of Civil Procedure section 631.8 provides: “(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint. [¶] (b) If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for. [¶] (c) If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment operates as an adjudication upon the merits.”
The Yees contend the trial court’s ruling is erroneous, and cite the following unrebutted evidence presented at trial: The purchase agreement and addendum, obligating the Sigals to pay for any needed repairs to the residence; the Anytime invoice; Kam Yee’s testimony that he discussed with the Sigals their requirement to pay the invoice, and that the Sigals had the work done to qualify for the purchase loan.
“A contract may be mutually abandoned by the parties at any stage of its performance or before any performance has been commenced, and by such abandonment each party is released from any further performance . . . .” (Honda v. Reed (1958) 156 Cal.App.2d 536, 540.) “Abandonment of a contract terminates it and entirely abrogates so much of it as is unperformed.” (Id. at pp. 539-540.) Paragraph three of the addendum demonstrates the parties’ mutual intent to abandon and terminate the purchase agreement automatically upon the occurrence of a cloud on title. Specifically, paragraph three of the addendum provides: “Buyer and Seller agree if any cloud of title occurs to owners property during escrow timeframe between Kam Yee and Mr. & Mrs. Sigal both parties agree that cancellation of escrow will be necessary. Seller will then give the escrow holder the authority to return Buyers deposit within 7 days of receipt of information regarding cloud of title.” Paragraph three demonstrates the parties’ mutual intent to fully release the Sigals from their obligations under the agreement if cancelled due to a cloud on title arising during escrow.
Kam Yee acknowledged the lis pendens was recorded on December 2, 2003, and that Anytime was not authorized to make the termite repairs until December 11, 2003, nine days after the lis pendens had been recorded. We can divine nothing from the agreement demonstrating the parties intended the Sigals pay for repairs to a residence they were no longer going to be purchasing.
Moreover, the evidence supports the trial court’s finding that the Yees did not prove the Anytime invoice represented money due and owing. Specifically, the following exchange occurred on cross-examination: “Q[:] . . . Mr. Yee, you testified earlier today that so as far as you know, the repairs were made to the property. Did you go in and inspect the property after the repairs were supposedly made? [¶] A[:] I wouldn’t have the knowledge. I seen the property, but I wouldn’t tell you what was actually repaired. I went by there and some work was done.” (Italics added.)
When asked on direct examination whether the terminate repairs were actually performed, Kam Yee responded: “So far, no.” (RT 23) Based on the later question asked during cross-examination, however, this response appears to have been a transcription error of the response “so far as I know.”
In addition, the Yees failed to introduce evidence demonstrating they suffered any damage due to the Sigals’ purported breach of contract. The Anytime invoice was addressed and sent directly to Chicago Title. Although Chicago Title named Anytime as a party to its interpleader action, Anytime never appeared and was defaulted. Yee did not personally authorize the repair work, and Anytime never sent Yee an invoice or any other documentation demanding payment from him. Anytime did not sue Yee, nor did it record a mechanic’s lien against his property. Yee admitted he had not been authorized by Anytime to collect money owed on the invoice. We conclude that substantial evidence supports the trial court’s ruling, and therefore affirm the judgment.
III
Disposition
The judgment is affirmed. The Sigals are entitled to their costs of this appeal.
WE CONCUR: SILLS, P. J., MOORE, J.