Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV31527
BUTZ, J.Plaintiff Cameron Atkin sued defendants--his father Conrad Atkin, his sister Lark Paddock, and his brother-in-law William (Bill) Paddock--for specific performance of an alleged oral agreement to sell him certain real property defendants owned in Calaveras County. Finding there was no contract and that Cameron did not prevail on his theories of equitable estoppel or quantum meruit, the trial court gave judgment for defendants. The court did order defendants to return Cameron’s payments on a theory of unjust enrichment.
Because the parties share last names, we refer to them by first names to avoid confusion and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
Cameron appeals, arguing that there is no substantial evidence to support the trial court’s finding that the parties failed to enter into a contract for sale of the property and that defendants should have been equitably estopped from denying the contract. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996 Conrad and his wife, Geri Atkin, refinanced the mortgage on their Calaveras County property to replace their fire-destroyed mobile home. As part of the refinancing, Lark and Bill cosigned the loan and their names were added on title to the property. All witnesses testified that in 2002, following Geri’s death, Cameron, Lark and Bill discussed the possibility of Cameron purchasing the property from defendants and taking over the mortgage payments. However, the testimony was in sharp conflict as to whether those discussions culminated in an agreement.
Conrad has continuously resided on the property. Cameron regularly used the property to store cars and lived on the property intermittently until 2004. In 2003, after Cameron’s son was released from prison, defendants allowed his son to move onto the property and live there rent-free.
From September 2002 to February 2004, Cameron sent monthly checks to Bill, some containing the notation “land payment.” Bill used the monthly checks Cameron sent him to pay the mortgage. When Cameron did not send a check, Bill used his own money to pay the mortgage. In February 2004, Bill and Lark returned Cameron’s check and refused to accept further payments.
Cameron’s testimony
Cameron testified that the August 2002 discussion culminated in an oral agreement whereby Cameron would buy the property from defendants for $100,000, pursuant to the following terms: Cameron would pay off the $53,000 loan principal; Cameron would reimburse Lark for $20,000 in prior loan payments; Cameron would pay $14,000 in back taxes owed on the property; and he would pay the difference between the above amounts and $100,000 to Conrad, who would also receive a life estate. According to Camero n, Bill told him that “as long as [Cameron] was making the payment, the property was [his].” He made improvements to the property and he asserted it was “common knowledge” that he had purchased it. Cameron claimed the reason Lark refused his February 2004 payment was because she wanted more money for the property.
Defendants’ testimony
Each defendant denied there was ever an agreement to sell the property to Cameron. Lark stated that while there were discussions about selling the property to Cameron, the parties never reached agreement on the terms of sale. She explained that negotiations came to a halt when Cameron refused to pay Conrad for his equity in the property. Defendants testified that Cameron’s checks represented payments for the storage of Cameron’s vehicles and for permitting Cameron’s son to live there rent-free. They returned the February 2004 check after a rancorous conversation in which Cameron accused Lark of trying to steal the property from him.
Litigation and judgment
In July 2005, Cameron filed this action for specific performance of an oral contract to buy the property.
The case was tried by the court sitting without a jury. The trial court issued a statement of decision finding that, despite evidence of discussions about the sale of the property, “there was never a mutual agreement on the terms of the contract in general and particularly what defendant Conrad Atkin would be paid for his share of the property.” Moreover, even if the parties had reached an oral contract, it would be barred by the statute of frauds, because Cameron failed to show exclusive possession and thus did not qualify under the “part performance” exception to the writing requirement.
Finally, the court rejected Cameron’s claim that defendants should be equitably estopped from denying his purchase of the property because “defendants did not intend to deceive plaintiff” in accepting his payments, “nor did they have a duty to tell him he was not buying the property . . . .” As already noted, the court ordered defendants to return Cameron’s payments on a theory of unjust enrichment.
DISCUSSION
I. Substantial Evidence
Cameron argues there is insufficient evidence to support the decision below because the trial court accepted defendants’ “improbable or incredible” testimony that there was no agreement.
The trial court based its decision on a lack of mutual consent. Mutual consent is an essential element to the formation of any contract. (Civ. Code, §§ 1550, 1565 & 1580; Meyer v. Benko (1976) 55 Cal.App.3d 937, 942-943.) To find mutual consent, “[t]he parties’ outward manifestations must show that the parties all agreed ‘upon the same thing in the same sense.’” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)
“‘“Where findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .”’” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968 (Lenk).)
Here, Lark testified that while they did discuss the possibility of Cameron’s purchasing the property in 2002, the parties never reached an agreement on the purchase price, among other terms. Defendants explained that the payments they accepted from Cameron were given in consideration for allowing his son to live on the property and for allowing him to store vehicles there. This testimony was clearly sufficient to support the trial court’s finding that there was no mutual agreement for the sale of the property.
Cameron points to the fact that, after discussions about purchasing the property were held, he sent monthly checks to defendants, some of which contained the notation “land payment,” and defendants accepted those payments. He ridicules defendants’ testimony, that “they didn’t know” the checks were installment payments pursuant to a land agreement, as incredible and unworthy of belief.
“‛“‘[I]t is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’” [Citations.] Testimony may be rejected only when it is inherently improbable or incredible . . . .’” (Lenk, supra, 89 Cal.App.4th at p. 968.) For an appellate court to determine “there is no substantial evidence because of inherent improbability, there must exist either a physical impossibility of the evidence being true, or such a state of facts so clearly apparent that nothing need be assumed nor any inferences drawn to convince the ordinary mind of the falsity of the story.” (Powell v. Powell (1919) 40 Cal.App. 155, 158-159, italics added.)
Defendants tendered a plausible explanation for why they accepted monthly checks--compensation for storage of Cameron’s vehicles and allowing Cameron’s son to live on the property rent-free. This testimony does not presuppose a belief in an impossible state of affairs, nor is it manifestly false without resorting to inferences. Thus, the trial court’s finding of no mutual consent cannot be disturbed.
II. Statute of Frauds
Cameron claims the trial court applied the wrong standard in ruling that his failure to take exclusive possession of the property precluded him from asserting the part performance exception to the statute of frauds. Because we affirm the trial court’s finding that the parties never entered into an oral contract, we need not reach this argument.
In any event, the court’s ruling was free from error. “The doctrine of part performance by the purchaser is a well-recognized exception to the statute of frauds as applied to contracts for the sale or lease of real property. [Citation.] ‘Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer has taken possession of the property and either makes a full or partial payment of the purchase price, or makes valuable and substantial improvements on the property, in reliance on the oral agreement.’” (Sutton v. Warner (1993) 12 Cal.App.4th 415, 422 (Sutton).)
As the court stated in Sutton, in order to satisfy the possession requirement, “[p]ossession must be more than a ‘mere technical possession, not open to observation of the neighborhood, and capable of being proved only by select and confidential witnesses . . . .’ [Citation.] It must be actual, visible, notorious and exclusive, so that it manifests clearly that the buyer is claiming and asserting a distinctive ownership of the property inconsistent with the right of possession or ownership in any other person.” (Sutton, supra, 12 Cal.App.4th at pp. 422-423, italics added.)
The evidence is undisputed that Cameron never took exclusive possession of the property. While he lived there sporadically, his father Conrad resided there continuously. Cameron even conceded that Conrad sometimes limited his full use of the property. Hence, the trial court properly found that the part performance exception to the statute of frauds was not satisfied.
III. Equitable Estoppel
Cameron argues that the contract should have been enforced under the doctrine of equitable estoppel. According to Cameron, “[t]he concept of estoppel goes hand in hand . . . with [defendants’] lack of substantial evidence or credible evidence to support the trial court’s holding.” He claims that because he made 19 payments under a reasonable belief he was buying the property, defendants should be estopped from asserting that there was no contract.
Because this argument is essentially a rehash of Cameron’s substantial evidence argument under a different name, it requires no further comment.
In any event, the doctrine of equitable estoppel is only available as a defense to prevent a party to an oral contract from claiming that the contract is invalid under the statute of frauds, where he has induced detrimental reliance. (Humetrix, Inc. v. Gemplus S.C.A. (9th Cir. 2001) 268 F.3d 910, 918; seegenerally1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 406, pp. 445-447.) Because there was substantial evidence to support the court’s finding that the parties never entered into an oral contract, an essential fact necessary for the invocation of equitable estoppel was absent. Cameron cites no authority to support his apparent contention that the doctrine can be applied to prove the contract itself.
IV. Interest Payments
Cameron argues “alternatively” that the trial court should have allowed interest on all payments he made to defendants. Once again, because the point is merely asserted without supporting authority, it is forfeited. (Kim v. Sumitomo Bank (1993)17 Cal.App.4th 974, 979.)
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, Acting P. J., CANTIL-SAKAUYE, J.