Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M89350.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendants Tadakazu Kojima and David M. Gizzi appeal from a judgment entered against them following a court trial on plaintiff Elliot Dolin’s complaint alleging in part, as pertinent to this appeal, causes of action for breach of a written agreement, intentional misrepresentation, and breach of an oral agreement. Dolin had terminated a written agreement for the purchase by him of a Ferrari owned by Kojima before the stated closing date of the agreement, but Gizzi, who had been acting as Kojima’s agent, refused to refund the $25,000 deposit Dolin had previously transferred to Gizzi. Defendants contend that the judgment must be reversed because the trial court applied the wrong statutes when interpreting the parties’ written agreement and the court erred in admitting the testimony of a witness “who proceeded to attempt to assassinate Mr. Gizzi’s character.” As we find no error or abuse of discretion, we will affirm the judgment.
Gizzi was sued individually and dba Euro-Classics. DMG International Management Services, Inc., a business incorporated by Gizzi, was also named as a defendant. We will hereafter use “defendants” to collectively refer to all four defendants.
Defendants raise two additional contentions in their opening brief, the determination of which were subject to this court’s granting of two motions to augment the record on appeal. On November 24, 2010, this court denied both motions to augment the record. Accordingly, we will not further discuss these two additional contentions.
BACKGROUND
On July 9, 2008, Dolin filed a second amended complaint for damages against defendants alleging six causes of action including, as pertinent to this appeal, cause of action No. 1 (breach of written contract), cause of action No. 3 (intentional misrepresentation), and cause of action No. 6 (breach of oral contract). Dolin alleged that he had terminated a written agreement pursuant to the provisions of the agreement and that Gizzi, for himself and as agent for Kojima, refused to return his $25,000 deposit. Dolin further alleged that Gizzi orally agreed to reimburse Dolin $2,500 for travel expenses advanced by Dolin on Gizzi’s behalf. Attached to the complaint was a signed motor vehicle purchase and sale agreement dated July 19, 2007, between Dolin as the buyer, Kojima as the seller, and Gizzi as Kojima’s agent, regarding a 1953 Ferrari 212 Inter Vignale Coupe in Osaka, Japan, for the purchase price of $575,000.
Paragraph 2 of the attached agreement states in pertinent part: “Unless Buyer shall cause this agreement to be terminated as provided for below, the transaction contemplated herein shall close (‘Closing’) on or before August 6, 2007 at 5:00 p.m. Pacific Daylight Time (the ‘Closing Date’). On or before the Closing Date, the Purchase Price shall be paid by Buyer via bank wire or other cleared funds to, at Buyer’s discretion, either Seller or Agent (who is expressly appointed by and authorized by Seller to receive payments on Seller’s behalf) and the Vehicle shall be delivered by Seller to such shipping agent as Buyer shall designate.... In the event Buyer shall make payment of the Purchase Price to Agent, Agent shall not, under any circumstances, release funds to Seller until such time as Shipping Agent shall confirm that it has taken delivery of the Vehicle.”
Paragraph 3 of the agreement states in pertinent part: “Buyer shall have a period of time (the ‘Review Period’) in which to conduct direct or third party physical inspections of the Vehicle and/or to conduct such investigations or research into the history and/or authenticity of the Vehicle as Buyer deems appropriate. The Review Period shall commence upon the Effective Date of this Agreement (as defined below) and shall expire on the Closing Date. At any time during the Review Period, Buyer shall have the right, at Buyer’s sole and absolute discretion, to terminate this Agreement by providing written notice (‘Termination Notice’) to Agent by facsimile or email, and said notice shall be deemed delivered to Agent as of the time and date of Buyer’s transmission of same. Upon Buyer’s delivery of Termination Notice to Agent, or if Buyer shall fail to make the payment of the Purchase Price to Seller or Agent by the Closing Date, this Agreement shall be deemed terminated.”
Paragraph 4 of the agreement states in pertinent part: “Within one (1) business day following the parties’ execution of this Agreement, Buyer shall deposit with Agent the sum $25,000 (the ‘Deposit’) to be held in trust by Agent. The Deposit shall be held by Agent until the occurrence of one of the following events: i) termination of the Agreement pursuant to the provisions of Paragraph 3 above, in which case Agent shall fully refund the Deposit to Buyer within three (3) business days of either Buyer’s delivery of Termination Notice to Agent or Buyer’s failure to pay the balance of the Purchase Price by the Closing Date, whichever is sooner, or ii) Buyer’s payment to Seller or Agent of the balance of the Purchase Price, at which time the Deposit shall be applied towards the Purchase Price and be deemed tendered by Buyer towards the Purchase Price.”
Paragraph 7 of the agreement states in pertinent part: “Seller and Agent represent and warrant to Buyer that Seller is the sole, exclusive and lawful owner of the Vehicle, and that it has good and marketable title to the Vehicle.... Subsequent to Buyer’s payment of the Deposit to Agent, but Prior to Closing, Seller shall deliver to Buyer a bill of sale, duly notarized by a United States Notary Public, which shall convey all right, title and interest in and to the Vehicle to Buyer....”
Paragraph 9 of the agreement provides that the agreement shall be governed by the laws of California, and Paragraph 11 of the agreement includes a provision for the payment of attorneys’ fees by the non-prevailing party in the event of a dispute concerning the performance of the obligations in the agreement. Paragraph 12 of the agreement provides that the effective date of the agreement is the date “that all parties shall have executed this Agreement.” Kojima signed the agreement on July 19, 2007, and Dolin and Gizzi signed the agreement on July 20, 2007.
Also attached to the complaint was a copy of an email from Dolin to Gizzi dated July 27, 2007, stating in pertinent part: “This shall serve as my written Termination Notice pursuant to the provisions of Paragraph 3 of the Motor Vehicle Purchase and Sale Agreement dated July 19, 2007 (the ‘Agreement’) for the 1953 Ferrari... owned by Mr. Tadakazu Kojima. Pursuant to the provisions of Paragraph 4 of the Agreement, you are required to ‘fully refund the Deposit to Buyer within three (3) business days’ of this notice. I hereby place demand upon you to fully refund to me the Deposit of $25,000 being held in trust by you not later than 5:00 PM local time, August 1, 2007 as prescribed in the Agreement.”
Defendants filed their answer to the complaint on October 14, 2008.
The Trial Testimony
The Sale of the Ferrari
Dolin testified that he is a commercial real estate investor in Los Angeles, and that he has purchased five classic or vintage automobiles since 2001. He prepared the written purchase and sale agreement at issue in this case. He had orally negotiated the provisions of the agreement with Gizzi as Kojima’s representative before the provisions were reduced to writing. The Ferrari was located in Japan and Dolin had only seen photographs of it before he entered into the written agreement. Paragraph 3 of the agreement gave him an opportunity to inspect the car, to research its history, and to terminate the transaction at his sole discretion, during a review period that would expire on August 6, 2007. Paragraph 4 of the agreement required that Dolin’s $25,000 deposit be held in trust by Gizzi, and that it either be refunded to him if he terminated the transaction or be applied to the purchase price of the Ferrari if he proceeded forward. Dolin understood that whatever documentation would accompany the car might be in Japanese, so he felt that a notarized bill of sale would facilitate the import and registration processes in California. Thus, the agreement states that the notarized bill of sale was to be provided as a condition precedent to closing the transaction.
Dolin wired the $25,000 to Gizzi’s business bank account. Dolin and Gizzi orally agreed that Gizzi would travel to Japan with Dolin using Dolin’s air miles, and that Gizzi would pay Dolin $2,500 for the use of his air miles. Dolin and Gizzi then traveled to Osaka and met Kojima on July 24, 2007. Kojima took them to view the Ferrari. Dolin inspected the car, took a number of photographs, and did a test drive. Dolin, Gizzi, and Kojima had dinner together that night, and they agreed to meet in the morning to go to the United States consulate to get the required notarization on a bill of sale.
When they went to the consulate the next morning, Dolin was not sure if he was going to buy the Ferrari. Nevertheless, they presented a completed bill of sale to the notary. The notary told them that if the document was transferring interest in the car to Dolin “then and there, ” she was not willing to notarize it. She would notarize it only if Dolin signed an affidavit stating that the document was to be used for some other purpose at a future time in the United States. Dolin signed the affidavit and Kojima and Dolin signed the bill of sale in the presence of the notary. The notary separately stamped and signed the bill of sale and the affidavit. Gizzi told Dolin to hold on to the bill of sale as Kojima still had possession of the car. Gizzi said that the car would not be released until Kojima got paid. At no time did Dolin say that he was going to buy the Ferrari or that he waived the review period stated in the written purchase and sale agreement.
After returning to the United States on July 25, 2007, Dolin forwarded the photographs he took of the Ferrari to several individuals. When he heard back from these individuals, Dolin concluded that the car was not as it had been represented to him. On July 26, 2007, Dolin telephoned Gizzi and told him that he did not want to buy the car. Dolin also explained that he expected to get a refund of his $25,000 deposit pursuant to the written agreement, and that he would return the bill of sale to Gizzi the next day. Gizzi agreed that they would exchange the refund of the deposit for the return of the bill of sale.
That night, Gizzi sent an email to Dolin telling him that if he did not tender the balance of the agreed-upon purchase price by 5:00 p.m. the next day, Gizzi would sell the Ferrari to somebody else. On July 27, 2007, Dolin sent an email to Gizzi stating that he would be sending an official termination letter. Dolin sent to Gizzi by Federal Express a termination letter along with other documents relating to the car. Gizzi faxed Dolin another message demanding full payment by the end of the day and “hinting” that Dolin had actually purchased the car. Gizzi did not return any of the $25,000 deposit Dolin sent to him and he stopped payment on the $2,500 check he gave Dolin for the use of his air miles.
Dolin further testified that the bill of sale was not intended in this case to affect a transfer of title. Gizzi told Dolin that there would be Japanese documents that would accompany the car that would be needed to import and register the car in California, and that the documents would be sufficient for Dolin to obtain a United States title. Dolin intended the notarized bill of sale to be ready and available should the transaction close at a later point in time, so that he could then get a certificate of title and register the car in California.
Gizzi testified that he is an international business consultant and that he is also a broker for the purchase and sale of collector cars. In the transaction at issue in this case, he expected to receive a five percent commission upon completion of the sale. He received the $25,000 deposit from Dolin, and he still has possession of it. He represented Kojima when Kojima sold the subject Ferrari in March 2008 to another party for $625,000.
Gizzi brokered at least 150 transactions involving vintage cars in the previous 18 or 19 years. Sometimes he represented the buyers and sometimes he represented the sellers. Typically he used two agreements, a purchase agreement and a bill of sale. A bill of sale signifies a done deal. “That’s a final step.” Dolin told Gizzi that he wanted a notarized bill of sale because one is necessary to register a car in Arizona, which was where Dolin intended to register the car. Thus, Gizzi understood that if Dolin saw the car in Japan and it was as Gizzi had represented it to be, then the transaction would be finalized in Japan with a notarized bill of sale. After inspecting the car in Japan, Dolin said, “Well, I’ve seen everything I need to see. Let’s finish the paperwork, you know, for the title transfer.” Dolin presented a boiler plate bill of sale, which he and Kojima signed in Kojima’s office. Dolin said that he wanted the bill of sale notarized the next day so that he could take it home with him. The three of them celebrated the sale at dinner that night.
The next morning they went to the United States consulate. The notary was not willing to sign the bill of sale because it did not list the purchase price. After some discussion, Dolin added language to the bill of sale that was acceptable to the notary, and she notarized it. Dolin kept the bill of sale after it was notarized. After leaving the consulate, Kojima dropped Gizzi and Dolin off at their respective hotels following their discussion of the logistics of shipping and the money transfers. After Gizzi and Dolin returned to the United States, Dolin emailed Gizzi that he wanted to back out of the purchase. Gizzi stopped payment on his $2,500 check because he “had no faith in [Dolin] or his word at that point.”
A Prior Transaction
Gizzi testified that he represented the seller during a 2005 transaction involving Donald Weber’s possible purchase for $125,000 of an Alpha Romeo that was located in Japan. Weber asked Gizzi to inspect the car on his behalf. Gizzi did so and he sent Weber 80 to 100 pictures of the car. Weber agreed to buy the car and then he sent Gizzi a $35,000 wire transfer as a first payment. Thereafter, Weber concluded that the car was not authentic and requested a refund of his $35,000, less what Gizzi spent to travel to Japan. Gizzi agreed to the refund, and he had already returned “the majority” of the $35,000 before Weber sued him.
Donald Weber testified that he is a retired oil and gas operator who buys and sells classic cars as a hobby. In 2005, Weber learned that Gizzi had a client in Japan who had an Alfa Romeo for sale. Gizzi offered to represent Weber in inspecting the car, in taking pictures, and in reporting back on the condition and authenticity of the car, as he was going to Japan anyway. Gizzi sent Weber over 100 photographs of the car and he represented that the car was genuine. Weber sent the photographs to two Alpha Romeo experts. Gizzi insisted on a $35,000 deposit, so Weber wired that amount to Gizzi while he was awaiting the reports from the two experts. When Weber received the reports from the two experts, he concluded that the car was not as represented to him by Gizzi, so he asked Gizzi for his deposit back less a reasonable amount for the incremental costs of Gizzi’s trip to Japan. Gizzi did not agree that he was obligated to return the deposit because he claimed that Weber was violating their contract. But they did not have a contract and, after a period of months, Gizzi did return $20,000 to Weber. However, Gizzi never provided Weber any proof of his claimed incremental travel expenses or even proof that he had actually traveled to Japan. Therefore, Weber sued Gizzi. Gizzi kept $5,500 upon settlement of the matter.
The Trial Court’s Decision
On January 6, 2010, the trial court filed its statement of decision finding against defendants and for Dolin in part on his first and sixth causes of action for breach of the written and oral agreements, but against Dolin on his third cause of action for intentional misrepresentation. The court also found that Dolin incurred reasonable attorney fees in the sum of $90,845.40. Therefore, judgment was entered for Dolin against defendants “in the sum of $27,500.00 plus prejudgment interest in the sum of $6,524.24, [and] attorneys fees in the sum of $90,845.40” the same day.
In the statement of decision the court found as to the first cause of action that “[t]he intent of the parties was set forth in the written agreement and it was clear that neither Kojima nor Dolin intended that the title pass at the time the bill of sale was delivered. If delivery of the bill of sale amounted to an unconditional transfer of title, then Dolin would have acquired the ownership of the valuable Ferrari for only $25,000.00. This was not the intent of either party.” “The contractual review period was not eliminated by delivery of the bill of sale and [Dolin] was still able to terminate the agreement. The parties intended that the signing of the bill of sale serve as a condition precedent to the transfer of title. Further, the parties did not intend that the deposit be forfeited under any circumstances. Under the clear language of the contract, Gizzi does not have any legal right to keep the deposit.” “The court concludes that all of the contentions of [Dolin] have merit and that [he] is entitled to a refund of his $25,000.00 deposit under the clear language of the written contract. In addition, [he] is entitled to recover prejudgment interest at the rate of 10 percent per annum pursuant to Civil Code section 3289(b) from July 30, 2007 in the sum of $6,524.24. [Dolin] is the prevailing party and is entitled to recover his reasonable attorney fees under section 11 of the contract.” “Dolin is entitled to recover judgment against Kojima because Kojima is vicariously liable for the conduct of his agent and Kojima specifically authorized Gizzi to receive payments on Kojima’s behalf in section 7 of the contract.”
The court found that Dolin was “not entitled to recover on his third cause of action for intentional misrepresentation because he has failed to prove reasonable reliance on any actionable misrepresentations or damages resulting therefrom.”
As to the sixth cause of action, the court found that “there was a valid oral contract between Dolin and Gizzi whereby Gizzi agreed to pay Dolin $2,500.00 for the value of round trip business class airline tickets between San Francisco and Japan provided by Dolin and Gizzi breached this agreement by stopping payment on his corporate check that was delivered to Dolin pursuant to this oral agreement.... At the time Gizzi breached the contract he was acting as the agent of Kojima and Kojima is vicariously liable for Gizzi’s conduct.” “In addition to recovering $2,500.00, Dolin is entitled to recover prejudgment interest at the rate of 10 percent per annum from July 30, 2007 until the date of entry of judgment.”
DISCUSSION
The Written Agreement
Defendants first contend that the judgment must be reversed because the court chose incorrect statutes to interpret and apply to the parties’ written agreement. Defendants argue that the controlling statutes are in the Civil Code, which deals generally with transfers of title to property, rather than in the Vehicle Code, which deals with transfers of title or any interest in “a vehicle registered under this code” (Veh. Code, § 5600), or the California Uniform Commercial Code, which deals with the transfer of title to “goods” (Cal. U. Com. Code, § 2401). Defendants argue that under Civil Code sections 1053 through 1056, transfer of title occurs upon delivery of a completed bill of sale, so Dolin breached the written purchase and sale agreement by refusing to pay the remaining amount of the purchase price after he received the completed bill of sale.
All further statutory references are to the Civil Code.
Sections 1053 through 1056 provide: “A transfer in writing is called a grant, or conveyance, or bill of sale. The term ‘grant, ’ in this and the next two articles, includes all these instruments, unless it is specially applied to real property.” (§ 1053.) “A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.” (§ 1054.) “A grant duly executed is presumed to have been delivered at its date.” (§ 1055.) “A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.” (§ 1056.)
The issue before the trial court was whether the parties intended title to the Ferrari to pass to Dolin upon delivery to him of a completed bill of sale. The trial court answered this question by resort to the language of the written purchase and sale agreement rather than to section 1056.
Section 1056 applies to a transaction only when there has been a “delivery.” “Delivery of a deed depends upon the intention that title shall pass irrevocably. Whether there was a good delivery or not is a question of fact. The physical handing over of the piece of paper upon which certain words and figures are written and printed in and of itself and with nothing more does not constitute a good and sufficient delivery.” (Danenberg v. O’Connor (1961) 195 Cal.App.2d 194, 200.)
Thus, whether there had been a “delivery” in this case depends upon whether Kojima had the intention to pass title irrevocably upon the handing over of the completed bill of sale. “[W]hile delivery of a deed to a grantee is necessarily absolute under the rule laid down in section 1056 of the Civil Code, a question may remain as to whether there has been such a delivery with the intent to transfer title. [Citation.]... [T]he question whether such delivery has taken place is a question of fact involving the intent of the parties, and, in particular, the intent of the grantor. Unless the grantor’s instructions are only in writing, in which case the effect of the transaction depends upon the true construction of the writing, it is necessary, in ascertaining the grantor’s intent, to have recourse to his acts and declarations both before and after his transmission of the deed to the grantee.” (Estate of Pieper (1964) 224 Cal.App.2d 670, 687; see also Kelly v. Bank of America (1952) 112 Cal.App.2d 388, 395-396 [the act of delivery of a deed must be accompanied with the intent that it shall become presently operative as such and presently pass title; whether the requisite intent exists is a question of fact for the trial court or jury].)
In this case, the written purchase and sale agreement set forth the parties’ mutual intentions regarding Kojima’s physical handing over of the bill of sale to Dolin. Thus, it is the written agreement which necessitated the handing over of the bill of sale, rather than the wording of the bill of sale itself, which was determinative of the issue of whether there had been a “delivery.” If there had there been no underlying written agreement, then the trial court could have properly determined, by relying on the provisions of section 1056, whether it was the mutual intent of the parties that the physical handing over of the bill of sale would pass title of the Ferrari from Kojima to Dolin. However, the trial court properly relied on the provisions of the parties’ written agreement rather than section 1056 when it determined whether title to the Ferrari passed from Kojima to Dolin upon the handing over to Dolin of the completed bill of sale.
On issues of contractual interpretation, where the interpretation does not turn on the credibility of conflicting extrinsic evidence, an appellate court is not bound by the trial court’s interpretation and will decide the issue de novo. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847.)
In interpreting a contract, a reviewing court applies the following rules. “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.” (§ 1636.) “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 contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible....” (§ 1639.) “The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (§ 1641.) “A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.” (§ 1643.)
Here, the terms of the July 19, 2007 purchase and sale agreement are clear and unambiguous, and they explicitly set forth the parties’ mutual intent. The parties intended Dolin to deposit $25,000 with Gizzi, who would hold the deposit in trust for Kojima. (Paragraph 4.) Dolin then had until August 6, 2007, at 5:00 p.m., to pay the remainder of the $575,000 purchase price to either Gizzi or Kojima (paragraph 2), and Kojima had until the same date and time to hand over to Dolin a notarized bill of sale (paragraph 7) and to the shipping agent all necessary export documentation and the vehicle (paragraph 2). Dolin had to pay the $25,000 deposit, but not the entire $575,000 purchase price, before Kojima had to hand over the notarized bill of sale. (Paragraph 7.) If at any time prior to August 6, 2007, at 5:00 p.m., Dolin decided to terminate the agreement for any reason, he had to notify Gizzi in writing of his decision. (Paragraph 3.) If Dolin timely paid the remainder of the $575,000 purchase price, the $25,000 deposit would be deemed tendered by Dolin towards the purchase price. (Paragraph 4.) If Dolin timely provided written notification of his decision to terminate the agreement, or if he failed to timely pay the remainder of the $575,000 purchase price, the agreement was deemed terminated and Gizzi was to fully refund the $25,000 deposit to Dolin within three business days. (Paragraph 4.) If Kojima failed to timely deliver the vehicle and documentation to the shipping agent, the deposit and all other payments made to Gizzi by Dolin were to be immediately refunded to Dolin upon his request. (Paragraph 4.)
The trial court correctly found that the parties’ agreement stated that they did not intend that the title of the vehicle would pass from Kojima to Dolin at the time the notarized bill of sale was handed over to Dolin. The only condition Dolin was required by the written agreement to satisfy before Kojima was required to hand over the bill of sale was payment of the $25,000 deposit. Although Dolin was required to pay the entire purchase price before the deal could close, he was not required to pay the entire purchase price before Kojima was required to hand over the bill of sale. The trial court also correctly found that the parties did not intend that Dolin was precluded by the handing over of the bill of sale from terminating the agreement prior to the agreed upon closing date and time. Dolin had the right to terminate the agreement for any reason at any time prior to the agreed upon closing date and time, as long as he notified Gizzi in writing of his decision to do so, and then Gizzi had to refund Dolin his $25,000 purchase price. In addition, the trial court correctly found that the parties did not intend that Gizzi retain the $25,000 deposit under any circumstance. The deposit was required to be either returned to Dolin upon termination of the agreement or forwarded to Kojima upon completion of the agreement by the date and time of its closing.
Dolin paid the $25,000 deposit, and Kojima handed over the notarized bill of sale. However, Dolin decided to terminate the written agreement before the agreed upon deadline and timely notified Gizzi in writing of his decision and his request for refund of the deposit. Dolin did not pay the remainder of the purchase price and Kojima did not deliver the car and required documentation to the shipping agent. Accordingly, Gizzi was required to return the $25,000 deposit to Dolin, and both Gizzi and Kojima are liable to Dolin for that amount plus interest and reasonable attorney fees.
The cases cited by defendants in support of their contention that title passed unconditionally to Dolin upon delivery of the bill of sale pursuant to section 1056 are inapposite, as none of them involves the interpretation of a written agreement that set forth the grantor’s intent. In Lewis v. Brown (1913) 22 Cal.App. 38, the trial court found that the plaintiff had delivered a deed to real property “absolute upon its face” (id. at p. 41) to the defendant “with the understanding and agreement” that the plaintiff would retain a life estate and that the deed would not be recorded until after the plaintiff’s death. (Id. at p. 40.) Because Code of Civil Procedure section 1971 requires “a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring” an “estate or interest in real property, ” the appellate court found that “any attempt either to restrict or enlarge the scope or effect of an indenture transferring real property by an oral agreement is expressly prohibited....” (Id. at pp. 42-43.)
In Blackledge v. McIntosh (1927) 85 Cal.App. 475, a mother personally handed four grant deeds to real property to her daughter with instructions that the deeds not be recorded until after her death. The daughter placed the deeds in a desk drawer but her brother took them out and recorded them about 18 months prior to their mother’s death. (Id. at pp. 479-480.) The executor of the mother’s estate sued the daughter, claiming that the property belonged to the mother’s estate. The trial court found, and the appellate court agreed, that there was a sufficient delivery of the deeds to pass title of the property from the mother to the daughter. (Id. at p. 481.) The appellate court further found that any oral agreement or understanding that the mother may have had with her daughter that the deeds should not be recorded until after her death “could have no effect upon the delivery, because the deeds were absolute in form and could not be delivered to the grantee conditionally.” (Id. at p. 483.)
In Ivancovich v. Sullivan (1957) 149 Cal.App.2d 160, the appellants’ contention was that an executed deed to real property was personally delivered with oral conditions but the conditions were never complied with, which rendered the recorded deed legally insufficient and void. (Id. at p. 163.) The appellate court found that, because no conditions were expressed in the deed itself, the oral conditions were ineffective, the deed was operative upon delivery, and the vesting of title had occurred by operation of law. (Id. at pp. 165-166.) However, the court further found that the appellants retained an action for damages for breach of the oral conditions as they were expressed concurrently with the delivery of the deed and constituted the consideration for its delivery. (Id. at p. 166.)
In the case before us, Dolin transferred a $25,000 deposit to Gizzi and Kojima handed over a notarized bill of sale pursuant to the terms of a written agreement. The parties could, and by their written agreement expressly did, require that further conditions be met before title to the Ferrari passed from Kojima to Dolin. Until that time, Dolin could, and by his email to Gizzi expressly did, terminate the written agreement. Therefore, title to the Ferrari never passed from Kojima to Dolin and Dolin is entitled to recover his $25,000 deposit from Kojima and Gizzi pursuant to the terms of the written agreement.
The Testimony of Donald Weber
At the end of the first day of trial, after Dolin’s counsel had examined Gizzi on his dealings with Donald Weber, defendants’ counsel informed the court that he had “[a] belated relevancy objection, Your Honor, to this entire series of questions.” The court overruled the objection. Defendants did not object the next morning when Dolin requested leave to call Weber to testify on his behalf out of order, but defendants’ counsel did ask that “the record please note I have a continuing objection to the relevance of any of [the] testimony from this witness. The court “noted” the objection.
Defendants later moved to strike Weber’s testimony, but the court ruled that “the testimony of Mr. [Weber] is admissible under [Evidence Code section] 1101[, subdivision] (b) as testimony of... Mr. Gizzi’s commission of a civil wrong on another occasion to prove motive, absence of mistake, plan on the fraud cause of action that was alleged.... [S]o I’m not going to strike that testimony.”
Defendants now contend that the trial court erred in allowing Dolin to cross-examine Gizzi on his dealings with Weber over their objections and admitting Weber’s testimony regarding those dealings. Defendants contend that Weber “proceeded to attempt to assassinate Mr. Gizzi’s character, ” and that their “repeated objections to Donald Weber’s testimony should have been sustained” as the evidence was irrelevant and its admission denied them a fair trial.
Dolin contends that Weber’s testimony was admissible because it showed a pattern of conduct by Gizzi in keeping money that had been entrusted to him when he had no right to keep it. Alternatively, Dolin contends that any error by the court in admitting Weber’s testimony was harmless.
Evidence Code section 1101, subdivision (a) prohibits, with specified exceptions not relevant here, admission of evidence of “a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct).” Subdivision (b) of the same section provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or disposition to commit such an act.” Thus, evidence of a party’s prior acts is admissible “when relevant to prove some fact (such as motive, ... plan, [or] absence of mistake...).” (Evid. Code, § 1101, subd. (b).)
However, a trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice.” (Evid. Code, § 352.) “ ‘ “Prejudice” as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a[n Evidence Code] section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice.... “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the [opponent] as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]”... ‘[T]he statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’... In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the [trier of fact], motivating [him or her] to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the [trier of fact’s] emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the [trier of fact] will use it for an illegitimate purpose.’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 438-439.)
“When a trial court overrules a [party’s] objections that evidence is irrelevant, unduly prejudicial and inadmissible character evidence, we review the rulings for abuse of discretion. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice.... [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; italics omitted; accord, Mozzetti v. Brisbane (1977) 67 Cal.App.3d 565, 578.)
In this case, the trial court found that Weber’s testimony regarding his dealings with Gizzi was relevant and admissible to show Gizzi’s motive, absence of mistake, and plan regarding the sale of the Ferrari and the $25,000 deposit. Weber’s testimony showed that Gizzi had, prior to the transaction at issue, kept the first payment tendered by a buyer to purchase an automobile from a client of Gizzi’s even though the buyer later decided to terminate the transaction. The court was not required to “engage in an on-the-record evaluation of the factors affecting the weighing process” pursuant to Evidence Code section 352. (People v. Holt (1984) 37 Cal.3d 436, 453.) The record must show only that the court “performed its obligations.” (People v. Mendoza (2000) 24 Cal.4th 130, 178.) The extensive discussions of Weber’s testimony during the parties’ closing arguments to the court, and the probative value of the testimony, indicates that the court was well aware of its Evidence Code section 352 obligations when it exercised its discretion to not strike the testimony. As Weber’s testimony was relevant and admissible, and there is nothing in the record to support a finding that the prejudicial effect of the testimony outweighed its probative effect, we find no abuse of discretion.
Even if we were to find that the court abused its discretion in admitting Weber’s testimony, we would find that defendants were not prejudiced by its admission. The trial court stated that it admitted the evidence as relevant to the fraud, or intentional misrepresentation, cause of action. However, the trial court found against Dolin and for the defendants on that cause of action. The court’s findings against defendants on the breach of a written contract causes of action regarding the $25,000 deposit were based on the clear and unambiguous wording of the parties’ purchase and sale agreement, and the findings against defendants on the breach of an oral agreement were based on Gizzi’s oral promise to Dolin regarding the payment for his use of Dolin’s air miles. Therefore, defendants cannot show that admission of Weber’s testimony resulted in a manifest miscarriage of justice. (Mozzetti v. Brisbane, supra, 67 Cal.App.3d at p. 578.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
WE CONCUR: MIHARA, J., DUFFY, J.