Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 372767, William A. Mayhew, Judge.
Shapiro Buchman Provine & Patton, Matthew K. Wisinski; Best Best & Krieger, Victor L. Wolf and Christina A. Hickey for Intervener and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Scott M. Reddie for Defendant and Respondent.
OPINION
Wiseman, Acting P.J.
A farmer and developer entered into a written agreement for the purchase and sale of a 40-acre vineyard near Modesto to develop into a shopping center. Over the course of the two-year escrow period, the value of the property increased and the seller declined to close the deal. The buyers sued for breach, and the jury found for the seller. The buyers and their brokers now claim the jury was misinstructed, the court admitted inadmissible evidence, and the evidence did not support the verdict. They also claim that, before trial, the court erroneously granted summary judgment in favor of Sam Paregian, sole owner and admitted alter ego of Bacchus Vineyards, which owned the property. We affirm.
This opinion is identical to the one filed simultaneously with it in Ennis Commercial Properties, LLC et al. v. Sam Paregian et al. (case No. F053680). The two appeals—one filed by the buyers and the other by their brokers—involve the same facts, issues, and counsel and arise from one trial and one record.
FACTUAL AND PROCEDURAL HISTORIES
Sam Paregian was the sole owner of Bacchus Vineyards, a corporation, which owned the land. A dentist, Paregian maintained his practice and also began farming almonds and grapes when he bought the property in 1967. We will refer to respondents Paregian and Bacchus Vineyards collectively as “the seller” in this opinion, except where it is necessary to refer to them by name in order to distinguish them.
In 2002, after he began receiving inquiries about selling the property, Paregian retained his dental office manager, Victoria Hepburn, as his agent. Though Hepburn was a defendant in the case, the parties filed a stipulation in this court on October 7, 2008, stating that the appeals were not directed toward the judgment against her.
In 2002, Robert Henry and Ben Ennis expressed interest in buying the property. Henry was a principal of HA Devco, Inc., and Ennis was a principal of Ennis Commercial Properties, LLC, and Ennis Homes, Inc. (appellants in case No. F053680). The buyers were represented by appellant Gallagher & Miersch, Inc., a brokerage, and its principal, Ed Gallagher. We will refer to all the appellants collectively as “the buyers,” except where it is necessary to refer to them by name to distinguish them from each other.
On March 27, 2003, the buyers made a written offer to buy the property. The offer included a price of about $6 million. It also included a term that would become the central point of dispute in the case: As part of the consideration for the sale, the buyers would transfer back to the seller a portion of the property, called a pad, on which a store could be built within the planned development. The offer was in the form of a proposed contract. The terms on these points read as follows:
“2. PURCHASE PRICE The Purchase Price for the Property shall consist of two types of consideration, both cash and a freestanding frontage parcel (hereinafter called ‘Pad’) located in the project (‘Shopping Center’) to be constructed on the Property, said consideration more particularly described as follows:
“2.1. Cash. The first portion of the Purchase Price shall be the cash sum of Six Million Ninety-Eight Thousand Four Hundred Dollars ($6,098,400.00), which sum equates to One Hundred Fifty-Two Thousand Four Hundred Sixty Dollars ($152,460.00) per acre.…
“2.2. Pad. The second portion of the Purchase Price shall be the transfer to Seller of a freestanding pad (‘Seller’s Pad’) located on the stronger Oakdale frontage of the Shopping Center project to be constructed on the Property. The location of Seller’s Pad will be chosen by Buyer and approved by Seller.… Title to this Seller’s Pad will pass to Seller at the close of Escrow.…”
The offer also included a term providing that the cash portion of the consideration would be reduced on a pro rata basis for “each net usable acre by which the Property is less than 40 acres.” The reduction was to consist of acreage that would be subject to public easements for rights of way or a retention pond, plus the seller’s pad.
Hepburn sent the buyers a written counteroffer, signed by Paregian, on May 8, 2003. It proposed a cash price of $10.6 million and stated that “[t]he sales price will not be adjusted by any acres that are not ‘net useable.’ The purchase price does not include a sellers pad[.]” The counteroffer also differed from the buyers’ offer in several other respects: It stated that the escrow period would be one year, while the buyers’ offer required two years for government approvals; it stated that there would be no tenant-approval condition, while the buyers’ offer stated that the buyers’ securing of an anchor tenant was a condition precedent of the buyers’ performance; it stated that there was to be no government-approval condition, while the buyers’ offer stated that the buyers’ obtaining of government approvals for the shopping center was a condition precedent of the buyers’ performance; and it excluded any extensions of time, while the buyers’ offer gave the buyers the right to three, six-month extensions.
The buyers faxed the seller their own counteroffer, consisting of a cover letter and a new proposed contract, on May 27, 2003. The cover letter explained that the buyers agreed to the price of $10.6 million, would reduce the scope of (but not eliminate) the net useable acres and tenant-approval provisions, and would not eliminate the provision allowing for extensions of time. The cover letter did not mention the pad. In the new proposed contract, former paragraph 2.2, describing the pad, was deleted, but the introductory sentence of paragraph 2 had not been edited and still said, “The Purchase Price for the Property shall consist of two types of consideration, both cash and a freestanding frontage parcel (hereinafter called ‘Pad’) located in the project.…”
Paregian, Hepburn, Henry, Ennis, and Gallagher met in a conference room at the Modesto Airport on June 19, 2003. Hepburn brought copies of the buyers’ second proposed contract and a sheet of paper on which some terms had been typed. The typed terms (with typographical errors uncorrected by us) read:
“BUYERS REVIEW OF TITLE TO BE COMPLETED WITHIN 30 DAYS OF RECEIPT OF PRELIMINARY TITLE AND EXCEPTIONS FROM SELLER. $5000.00 SHALL BECOME NON REFUNDABLE AND RELEASED TO SELLER UPON APPROVAL.
“NET ACERAGE NOT TO EXCEED 2 ACRES.
“SELLER SHALL HAVE THE RIGHT TO APPROVE ANY ASSIGNMENT OF THE PURCHASE AGREEMENT.
“SELLER TO BE ADVISED AND CONSULTED AS ENTITLEMENTS ETC. PROGRESSES.
“THIS FINAL LAND PURCHASE AGREEMENT IS SUBJECT TO REVIEW BY SAM PAREGIANS ATTORNEYS AND CPA. ANY EXTENSIONS, MODIFICATIONS, OR ADDENDUMS TO BE MUTUALLY AGREED UPON IN WRITING.
“THE PURCHASE PRICE DOES NOT INCLUDE A PAD.”
This paper was signed by Ennis, Henry, and Paregian at the airport meeting and bore the handwritten date June 19, 2003. Also in handwriting, beside the typed term regarding net acreage, was the phrase “FOR RIGHT OF WAY PURPOSES.” Beside this handwritten language, the initials “B.E.,” “R.W.H.” and “S.P.” were written in by hand. The heading “Addendum ‘A’” was handwritten at the top of the page.
Ennis, Henry, and Paregian also signed the buyers’ second proposed contract during the airport meeting. On the first page, the date May 27, 2003, is crossed out and June 19, 2003, is written in by hand. Beside the date are the handwritten initials “B.E.,” “R.W.H.” and “S.P.” In the heading, the word “FINAL” is handwritten before the typed “LAND PURCHASE AGREEMENT.” The parties’ initials again appear beside the handwritten edit. There were no other changes to the buyers’ proposed contract. The statement that the purchase price consisted of two components, cash and a pad, remained in the document, while the paragraph describing the pad continued to be omitted.
Shortly after the two documents—the Final Land Purchase Agreement and Addendum A—were signed, Hepburn opened an escrow account at Chicago Title. She gave the two documents, among other things, to Bob Greene, an escrow officer. Greene drafted escrow instructions and provided them to the parties. One instruction read, “Buyer and Seller agree that the purchase price does not include a ‘Pad’ as defined in Paragraph 2 of the ‘LAND PURCHASE AGREEMENT.’” The instruction was sent to Hepburn on February 9, 2004, and she did not object to it.
The buyers began applying for government permits and approvals. While doing so, they exercised their rights under the agreement to two, six-month extensions of time, setting the time for satisfaction of conditions at June 30, 2005, and the closing date 30 days later.
The value of the property rose while the escrow was pending and both sides had discussions with potential buyers offering higher prices. On June 27, 2005, the buyers executed an agreement with Wal-Mart Stores, Inc., to resell the property without government approvals for $20,222,184. The seller received a letter of intent on July 1, 2005, from another developer, Cal-Pacific Ventures, to enter into negotiations to buy the property for $325,000 per acre, which was about $60,000 more per acre (about $2 million more in total) than the price in the parties’ agreement.
In a letter dated June 15, 2005, the seller’s attorney demanded a closing date on or before July 1, 2005. By letter dated June 17, 2005, the buyers agreed to close between June 27 and July 1, 2005. On June 30, 2005, however, Hepburn told Greene that Paregian was not prepared to sign documents necessary for the closing, and she instructed Greene not to release any information to Stewart Title without prior permission from Paregian. Greene informed the buyers at the end of that day that Chicago Title was suspending activity on the escrow. On July 5, 2005, the seller’s attorney wrote to the buyers’ attorney, saying, among other things, that there was a discrepancy between paragraph 2 of the agreement, which provided that a pad was part of the consideration, and the addendum, which provided that it was not. “This matter must be resolved before closing,” the letter stated. Paregian never signed the necessary documents and the sale never closed.
Ennis Commercial Properties, LLC, and HA Devco, Inc., filed a complaint against Paregian, Bacchus Vineyards, and Hepburn in superior court on June 30, 2005. As later amended, the complaint alleged that Paregian and Bacchus Vineyards breached the contract by refusing to close the sale. It alleged that Paregian, Bacchus Vineyards, and Hepburn defrauded and conspired to defraud the buyers by falsely representing that Paregian owned the property as an individual. Finally, the complaint alleged that Hepburn intentionally interfered with the contract, inducing Paregian to breach it. The complaint prayed for specific performance and damages.
The seller filed a cross-complaint on August 13, 2005, against Ennis Commercial Properties, LLC, Ennis Homes, Inc., HA Devco, Inc., Ben Ennis, and Robert Henry. As later amended, the cross-complaint prayed for rescission of the contract on three grounds: fraud in the inducement arising from the buyers’ alleged representations that they would convey a pad to the seller as part of the consideration for the sale; fraud in the inducement arising from the buyers’ allegedly false representation that they could raise enough money to obtain city approvals and complete the transaction; and mutual mistakes of the parties regarding whether a pad was part of the consideration and which individuals or entities among the cross-defendants were to be the buyers. The cross-complaint further alleged that the buyers breached the contract by using extension periods to find a buyer to whom to sell the property at a profit instead of continuing to try to obtain government approvals; by not tendering a pad; and by rejecting Paregian’s demand that, as a precondition to Paregian’s signing the documents necessary for closing, they first transfer the purchase funds to Chicago Title from Stewart Title, where they had been held in a concurrent escrow related to the transaction between the buyers and Wal-Mart. Finally, the cross-complaint alleged that the buyers breached the implied covenant of good faith and fair dealing, and it sought quiet title to the property. In addition to seeking rescission and quiet title, the cross-complaint prayed for damages and expungement of the lis pendens filed by the buyers.
Gallagher & Miersch, Inc., the brokerage firm employed by the buyers, filed a complaint in intervention against Paregian, Bacchus Vineyards, and Hepburn on November 18, 2005. As later amended, the complaint in intervention alleged breach of contract and intentional interference with contract. It prayed for damages equal to the commissions it would have earned on both the sale to the buyers and the resale to Wal-Mart.
Before trial, the seller filed a motion for summary judgment or summary adjudication requesting, among other things, that Paregian be held not liable in his individual capacity. The buyers argued that Paregian should remain in the case because Bacchus Vineyards was his alter ego and he was looting the company to make it judgment-proof. They also pointed out that above Paregian’s signature on the agreement are the words “SAM PAREGIAN, as single man as his sole and separate property.” The court granted summary adjudication in favor of Paregian as an individual, finding there was “no disputed issue of material fact with regard to his personal liability on the contract at issue. Defendants concede that Dr. PAREGIAN is the ‘alter ego’ of Defendant, BACCHUS ENTERPRISES, but also establish without question that BACCHUS ENTERPRISES is fully capable of compensating in damages or performing the contract at issue, thus Plaintiff will suffer no injustice in the absence of Dr. PAREGIAN’S personal liability.”
At trial, the parties testified about their beliefs and intentions regarding the pad. Hepburn said the paper that became Addendum A originated as her notes about an offer she received from a Mr. Rodde. She said she wished to compare the buyers’ proposed terms with Rodde’s, which did not include a pad; the terms on the paper “were just highlights of things that I wanted to remember to discuss with [the buyers] when we got to the airport and also to discuss with [Paregian] on the way to the airport.” Hepburn further claimed the only term in Addendum A the parties agreed to was the one stating that the deduction for land taken for public easements was not to exceed two acres; this was the provision, partially handwritten, beside which the parties’ initials appeared. When asked why, in that case, he and the other parties also placed their full signatures at the bottom of the page, beneath all the terms, including the term saying the price included no pad, Paregian testified that his intent was only to enable the reader to identify the initials. Like Hepburn, Paregian claimed the paper did not say “Addendum A” at the top when he signed it. Hepburn admitted the heading was on the page when she submitted it to the escrow officer, however; Henry testified that he or Ennis wrote those words on the paper during the meeting but conceded that this happened after the paper was signed. Paregian admitted he did not cross out any of the terms on the paper—neither the no-pad term nor any other—when he placed his full signature at the bottom along with that of Henry and Ennis, but insisted his intent was that the signed paper would be effective only with respect to the term with the initials by it.
Hepburn testified that she raised the issue of the pad at the airport meeting, pointing out to Henry that paragraph 2 of the Land Purchase Agreement still mentioned a pad but no longer contained a description of it. She said she told Henry that Paregian wanted a pad; Henry said not to worry about it:
“And I said, you know, here—I go, you had in the [previous proposed contract], Mr. Henry, a description [of a pad], but this one, you don’t. And he said—and I said, you know, the pad—[Paregian] wants a pad because it would be something that would help him for retirement purposes.
“And I remember Bill Henry saying, oh, don’t worry about that. Don’t worry about it. Yeah. Everything was great. Don’t worry about it.
“And then [Paregian] piped up and said something about, yeah, well, you know, because I want to be part of it.
“And he said, oh, of course. Of course. Don’t worry about it. And that’s what I remember.”
Paregian also testified that Henry responded to Hepburn’s comments about the pad by saying, “[D]on’t worry about it. We’ll take care of it.” Hepburn explained that she understood Henry’s remarks to mean “[t]hat the pad was in there.” She believed the details would be dealt with in the escrow instructions. Paregian testified that he left the meeting believing a pad was part of the consideration for the sale and would not have entered into the contract had he believed that was not the case.
Henry testified that the failure to delete the reference to the pad in paragraph 2 was an error, and that, although the parties could have lined out that reference by hand, they chose to state that there was no pad in Addendum A instead. Ennis similarly testified that the statement in Addendum A that the price did not include a pad was meant to modify paragraph 2. Henry said the parties discussed the terms in Addendum A and agreed that all of them, including the term that no pad was included in the consideration for the sale, were included in the contract. He denied that Hepburn or Paregian said at the airport meeting that Paregian wanted a pad because he wanted to be part of the development. His recollection of Hepburn’s comments at the meeting was that she said the reference to the pad in paragraph 2 had been left in by mistake. Ennis testified that Hepburn presented the paper that became Addendum A at the airport meeting and said, “here’s the changes that we’ve all agreed to.” Henry said Hepburn had also called him earlier, shortly after May 27, 2003, to say he had made a mistake in failing to delete the reference to a pad in paragraph 2; he offered to fix this and send a revised document, but she wanted to wait because there could be other changes. Hepburn denied this conversation ever happened.
Greene, the escrow officer, testified that Hepburn came to see him to open an escrow account in June 2003, bringing the two signed writings with her. She discussed the terms with him and explained that the provision in Addendum A stating that the purchase price did not include a pad meant just that—the purchase price did not include a pad. Hepburn denied that she had a conversation with Greene in which she explained the terms of the agreement and said she never told him a pad was not part of the price.
The parties met at the office of Chicago Title on September 9, 2004. According to Hepburn’s testimony, Henry and Ennis wanted to modify the purchase agreement to allow additional extensions of time beyond June 30, 2005. While this was being discussed, Paregian said, “[W]hat about my pad?” Henry or Ennis produced Addendum A and said it provided that there would be no pad. Hepburn told them the paper was her notes, not an addendum, and there was never an agreement to make the terms on the paper part of the contract. She testified that, as a response to the buyers’ view that no pad was included in the deal, she refused to agree to further extensions:
“I said, wait a minute here. Wait a minute. I said, if this—if you’re trying to turn this now into an addendum and you’re trying to tell Dr. Paregian that he’s not going to get a pad, I said, well, then why don’t you read through all this stuff here. Guess what? I said, you’re not going to play pick and choose.
“Then you know what? Here it says [reading]:
“‘Any extensions, modifications, and addendums must be mutually agreed upon in writing.’
“I said, guess what? You’re not going to get your extensions then.” Hepburn testified that the discussion at this meeting was the first time she became aware that the buyers believed a pad was not part of the consideration for the sale. Henry testified that the subject of the pad was not discussed at all at the September 9, 2004, meeting.
When asked at trial why he prevented the sale from being completed by refusing to sign the necessary documents and deposit them in escrow, Paregian testified to a reason that had nothing to do with a pad: He had become afraid that if he did so, he could somehow lose the property and not be paid for it.
Paregian also testified that if Hepburn had called and told him the purchase funds were already in escrow, he “could have ran down there and signed it within five minutes’ time.” His testimony did not include any statement that he would also have insisted on a deed to a pad. His counsel, however, immediately followed up on his answer by asking a leading question that inserted the pad issue: “Now, if you had been informed that the purchase funds were at Chicago Title escrow and a deed transferring the pad was delivered to Chicago Title escrow, would you have signed the deed and the escrow instructions at Chicago Title?” Paregian said yes. The seller’s appellate brief also attempts to tie Paregian’s fear of nonpayment in with the pad issue, referring to his unwillingness to perform “before the purchase funds (which included a deed to a Pad) arrived at Chicago Title.…” Paregian’s testimony, before the question was asked, however, referred specifically to money.
“Q. Now, why didn’t you sign a deed and sign escrow instructions and at least put those documents into Chicago Title escrow?
“A. Well, I was afraid that, once I did that, I may be minus the money and my property, because at that stage of the game, I didn’t have much trust in these people.”
On cross-examination, Paregian was asked whether he had ever heard of anyone selling property through an escrow and somehow ending up losing the property and not getting paid. Paregian admitted he had not, but said, “There’s always a first time, sir. That’s the way I look at life.” He was also asked whether he could have prevented this possibility by having his attorney or agent draft an escrow instruction stating that the deed was not to be released to the buyers until the purchase funds were received and ready to be released to the seller. He answered, “I imagine.”
Paregian’s fears on this point apparently arose from the fact that the buyers intended to pay for the property with the proceeds of the resale to Wal-Mart and had set up a concurrent escrow, using a different title company, Stewart Title, to handle that transaction. Greene, the Chicago Title escrow officer, believed the purchase money would not be transferred from Stewart Title to Chicago Title until after the deed transferring the property from the seller to the buyers had been recorded—not just received in escrow. He prepared an escrow instruction for the parties’ signature stating that this situation had been disclosed. Henry and Ennis signed it, but Paregian did not. Henry testified that he believed there was no precondition to the release of funds by Stewart Title to Chicago Title and stated that he signed the instruction under protest. The parties have cited no portion of the record that would confirm Greene’s belief. They have not, for instance, cited any escrow instruction deposited in the Stewart Title escrow requiring the deed to be recorded before the transfer of the purchase funds to Chicago Title. Violet Gonzales, the Stewart Title escrow officer, submitted a declaration stating that she intended to transfer the funds to Chicago Title after the deed was submitted to Chicago Title but prior to recordation.
California real property expert, attorney Edmund Regalia, testified for the buyers on the subject of whether the concurrent escrow situation meant the buyers failed to perform. When asked whether the buyers did all that was required of them to close on June 30, 2005—even though they did not cause the money in the Stewart Title escrow actually to be transferred to Chicago Title—Regalia opined that they did, for Stewart Title notified Chicago Title that it was prepared to close as soon as the seller deposited his deed and instructions in the Chicago Title account:
“The buyers had fully performed what they had to do. They had tendered instructions and they had tendered money from the … Stewart Title escrow where that money was located. [¶] … [¶] As of the morning on the 30th when [the Stewart Title escrow officer] wired Greene that the conditions to her escrow were satisfied—she didn’t quite use that language—and the money was ready for transfer, the buyers had not only tendered, they had fully performed.”
Regalia further opined that the seller failed to do what was required for closing because he “didn’t submit anything into the escrow.” The seller could, perhaps, have satisfied his obligations by submitting an escrow instruction requiring the money to be transferred to Chicago Title before his deed would be deposited, but he never did this. He also opined that the custom and practice in the industry is to have the deed come into escrow first and be readied for recordation, followed by the deposit of the money; then the deed is recorded and the money disbursed to the seller. He testified that Greene was wrong to think the deed transferring the property from the seller to the buyers would have to be actually recorded—as opposed to received in escrow and made ready for recordation—before the money could be transferred into escrow.
The seller presented expert testimony by Dave Brooks, an escrow officer. He offered three opinions: The buyers “did not properly make sure that the … double escrows were coordinated between Stewart Title and Chicago Title”; neither the buyers “nor Wal-Mart had given authorization for the transfer of the funds to Chicago Title for closing”; and the buyers “were not prevented from depositing their funds into escrow” at Chicago Title.
After the evidence was presented, the court and parties discussed jury instructions. The buyers requested an instruction that read: “I instruct you that, under the terms of the contract, the purchase price did not include a pad.” The court declined to give this instruction, saying, “Of course I’m going to refuse [it]. That’s for the jury to determine.” The issue of the conflict between paragraph 2 and Addendum A on the pad term was submitted to the jury via an instruction on contemporaneous writings:
“When two written documents relating to the same transaction are signed at the same time by the same parties, they must be interpreted as one document. If the two written documents contain ambiguous or internally inconsistent provisions, you must determine what the parties intended by those provisions when they signed the documents.
“In determining what the parties intended the meaning of the two documents to be, you may consider evidence of the negotiation of the parties and of surrounding circumstances that led to the signing of the documents.”
The buyers’ counsel said he considered this instruction superfluous, but he had no “specific objection” to it.
The court also agreed to give the jury instructions on the seller’s defenses of unilateral mistake and fraud in the inducement. The buyers objected to the instruction on unilateral mistake, arguing that the seller’s pleadings referred only to mutual mistake. The seller argued that the evidence supported unilateral mistake and the court accepted the instruction.
The mistake and fraud instructions both related to the issue of the pad:
“Defendant Bacchus Vineyards claims there was no valid contract because it was mistaken about whether the purchase price included a pad [i.e.,] a free-standing frontage parcel located on the property.
“To succeed, Bacchus Vineyards must prove all of the following:
“One, that Bacchus Vineyards was mistaken that the contract to be signed by the parties provided for a pad as part of the purchase price;
“Two, that plaintiffs or any one of the plaintiffs knew that Bacchus Vineyards was mistaken and used that mistake to take advantage of Bacchus;
“Three, that Bacchus Vineyards’ mistake was not caused by its excessive carelessness;
“And, four, that Bacchus Vineyards would not have agreed to enter into the contract if it had known that the contract did not provide for a pad as part of the purchase price.
“If you decide that Bacchus Vineyards has proved all of the above, then no contract was created.
“Bacchus Vineyards claims that no contract was created because its consent was obtained by fraud. To succeed, Bacchus Vineyards must prove all of the following:
“One, that [plaintiffs] represented that the purchase price would include a pad;
“Two, that plaintiffs knew that the representation was not true;
“Three, that plaintiffs made the representation to persuade Bacchus Vineyards to agree to the contract;
“Four, that Bacchus Vineyards reasonably relied on the representation;
“And, five, that Bacchus Vineyards would not have entered into the contract if it had known that the representation was not true.
“If you decide that Bacchus Vineyards has proved all of the above, then no contract was created.”
In his closing argument, the buyers’ counsel argued that the seller breached the contract when he failed to perform on June 30, 2005, by declining to tender or place into escrow a signed deed or any of the other documents necessary for the closing. He claimed the seller also breached the contract in several other ways: He failed to state the amount of the premium for the title insurance policy; he stated his refusal to pay the buyers’ broker’s commission; he violated a confidentiality clause by discussing the contract with other potential buyers; he stated his refusal to accept the agreed-upon two-acre deduction for rights of way; and he failed to remove deeds of trust from the property. Counsel contended that Paregian’s and Hepburn’s claims regarding their beliefs about the pad—whether offered to prove that no pad term was included in the contract or that it was included by means of mistake or fraud—were not credible. Relying on impeachment evidence, he accused them of lying; he said the real reason they refused to close the sale was that the value of the property had increased.
The seller’s counsel contended in his closing argument that no contract was formed because the seller’s agreement was obtained through mistake or fraud about the pad. Relying on impeachment evidence, counsel claimed it was Henry who lied. If there was a contract, counsel argued, it was the buyers who breached; they failed to perform because they did not transfer the purchase money from Stewart Title to Chicago Title, excusing the seller’s performance. Further, even if there was a contract and the buyers’ tender was adequate, the seller never breached because he had until 30 days after the satisfaction or waiver of condition, i.e., until the end of July 2005, to perform, while the buyers sued on June 30.
After 25 trial days (with opening statements and testimony beginning on day three), the jury went home, returned for day 26, deliberated for two hours and 49 minutes, and returned a general verdict in favor of the seller by a vote of nine to three. The verdict stated: “We, the jury in the above-entitled action, find in favor of defendant, Bacchus Vineyards, and against plaintiffs, Ennis Commercial Properties, LLC; Ennis Homes, Inc.; and HA Devco, Inc.; and against [Intervener], Gallagher and Miersch, Inc.” Based on the verdict, the court issued a statement of decision rejecting the buyers’ equitable claim for specific performance.
The buyers filed a motion for judgment notwithstanding the verdict. They argued that a reasonable jury could not find that the contract included a pad as part of the consideration; that the seller entered into the agreement as a result of a mistake or fraud concerning a pad; that the buyers failed to make an adequate tender of the purchase money; or that the seller performed or was excused from performing. The buyers also filed a motion for a new trial. The court denied both motions.
DISCUSSION
I. Extrinsic evidence and instructions regarding the pad
The buyers argue that the court erred by admitting extrinsic evidence, in violation of the parol evidence rule, to show that the agreement provided for a pad as part of the consideration and by refusing to instruct the jury that the agreement included no such provision. We disagree.
The parol evidence rule states that evidence extrinsic to an agreement set forth in an integrated (i.e., final and complete) writing is not admissible to contradict the writing’s terms. A corollary to the rule provides that extrinsic evidence is admissible to ascertain the meaning of an integrated writing if the writing is reasonably susceptible of the meaning advocated by the party proffering the evidence. This corollary applies to admit evidence relevant to determining the meaning of ambiguous writings, regardless of whether the ambiguity appears on the writing’s face or only emerges in light of the extrinsic evidence. (Code Civ. Proc., § 1856; Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 39-40 & fn. 8; Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 435.) As Chief Justice Traynor wrote, “If the court decides, after considering [extrinsic evidence], that the language of a contract, in the light of all the circumstances, ‘is fairly susceptible of either one of the two interpretations contended for …’ [citations], extrinsic evidence relevant to prove either of such meanings is admissible.” (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, at p. 40.)
In this case, the dispute over whether extrinsic evidence should have been excluded under the parol evidence rule is not difficult to resolve. First, at trial, the buyers never made an objection, a motion in limine, or a motion to strike on parol evidence rule grounds, and therefore, have failed to preserve the issue for appeal. (People v. Saunders (1993) 5 Cal.4th 580, 590-591; People v. Gates (1987) 43 Cal.3d 1168, 1185; Perry v. McLaughlin (1931) 212 Cal. 1, 6.) They argue that they preserved the issue by moving for a bifurcated trial in which equitable issues would be tried first in the absence of the jury. Among other things, their briefs in support of this motion argued that there would be no need for a jury to resolve contract interpretation problems because these issues were to be resolved by the court. The court’s decision to conduct a nonbifurcated trial did not, however, imply anything about the admissibility of extrinsic evidence to prove the meaning of the parties’ agreement. In fact, if the bifurcation motion had been granted, the contract interpretation problem would have arisen in both proceedings, and the question of the admissibility of extrinsic evidence—regardless of whether the decision maker was the judge or the jury—would still have needed an answer. The ruling on the bifurcation motion did not resolve this question.
The buyers also argue that they preserved the issue by requesting a jury instruction stating that the contract included no pad. This argument is also unpersuasive, since the giving of that instruction would not have been incompatible with the admission of extrinsic evidence. The court could have found that there was no pad term as a matter of law in light of the extrinsic evidence. In addition, the request for the instruction was made after all the evidence was presented to the jury, and it was unaccompanied by a motion to strike.
In sum, the buyers did nothing in the trial court to obtain a ruling that extrinsic evidence was inadmissible; and the trial court did nothing that made it futile to attempt to exclude that evidence. The issue is waived. Our conclusion also disposes of the buyers’ contention that the court erred when it did not admit the extrinsic evidence conditionally outside the presence of the jury to determine whether the writing was integrated and whether the extrinsic evidence supported an interpretation of which the writing was reasonably susceptible. The court was never asked to do so.
Second, if the issue were not waived, we would apply the independent review standard (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165) and decide that the extrinsic evidence was admissible, even under the assumption that the two documents were an integrated writing. The writing contained two provisions that flatly contradicted each other: the statement in paragraph two that “[t]he Purchase Price for the Property shall consist of two types of consideration, both cash and a freestanding frontage parcel (hereinafter called ‘Pad’) located in the project,” and the statement in Addendum A that “THE PURCHASE PRICE DOES NOT INCLUDE A PAD.” A semanticist might question whether an outright contradiction is “ambiguous,” for it states with perfect clarity that the same thing both is and is not the case. In any event, it is clear enough that an outright contradiction falls within the class of problems properly resolvable by extrinsic evidence. When the buyers argue that the admission of extrinsic evidence violated the parol evidence rule because the seller used it to contradict the express terms of the writing, they overlook the fact that the express terms of the writing contradicted themselves and that the extrinsic evidence supporting the seller’s view was consistent and inconsistent with those terms at the same time. The contradiction meant the writing was reasonably susceptible of the interpretations urged by both parties. The parties also disagree about whether the extrinsic evidence was admissible to support the seller’s defenses of unilateral mistake and fraud in the inducement. Since we hold that the admissibility issue was waived and the evidence was admissible to show the meaning of the contract (and no limiting instruction was requested) we need not resolve this additional dispute.
A more difficult question is whether, in light of all the evidence, the court should have determined that the contract included no pad as a matter of law and should have instructed the jury that it did not. For, even when a contract is reasonably susceptible of a certain interpretation, and extrinsic evidence is relevant and admissible to prove that interpretation, the interpretation can turn out to be wrong and the court’s adoption of it—or the court’s decision to allow the jury to adopt it—can be reversible error. The standard of review depends on the nature of the extrinsic evidence. We review for substantial evidence if the interpretation depends on evidence requiring credibility findings and we review de novo if it does not:
“‘We review the agreement and the extrinsic evidence de novo, even if the evidence is susceptible to multiple interpretations, unless the interpretation depends upon credibility. [Citation.]’ … (… Schaefer’s Ambulance Service v. County of San Bernardino (1998) 68 Cal.App.4th 581, 586 [80 Cal.Rptr.2d 385] [‘[T]o the extent the evidence is not in conflict, we construe the instrument, and we resolve any conflicting inferences, ourselves’].) In contrast, ‘[i]f the parol evidence is in conflict, requiring the resolution of credibility issues, we would be guided by the substantial evidence test. [Citation.]’ [Citation.]” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266-1267.)
To the extent that the substantial evidence standard is applicable, “our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Much of the most important evidence in this case called for no credibility determinations. The documents and signatures were conceded to be authentic. The parties concurred in the view that the addendum was written later than the main body of the agreement, though signed at the same time. It was undisputed that the proposal to include a pad as part of the consideration originated in the buyers’ offer and that the suggestion to eliminate the pad originated in the seller’s counteroffer. There was no dispute that Chicago Title drafted escrow instructions stating that a pad was not part of the consideration or that the seller made no objection to those instructions. It was undisputed that when Paregian chose not to perform on June 30, 2005, neither he nor Hepburn mentioned the pad, or anything else, as a reason. The preponderance of the evidence that was not in conflict strongly supports the view that the contract included no pad term. If there were no other admissible evidence at issue, we would hold that the trial court erred when it refused to instruct the jury that a pad was not part of the contract.
There was other evidence, however, that required the finder of fact to make credibility determinations. The parties testified to competing explanations about why the agreement contained contradictory terms about the pad: Henry testified that his editing mistake left a reference to the pad in paragraph 2, while Paregian testified that, when he signed the addendum, he intended to execute only the term related to deductions of acreage for rights of way; the other terms were merely notes written by Hepburn which were not intended to be included in the agreement. Henry and Hepburn told conflicting stories about what happened after Henry forwarded Hepburn the edited version of his counteroffer: He claimed she called him to bring to his attention his error in leaving a reference to the pad in paragraph 2, but suggested that the error be fixed later after the parties had settled on all the terms, while she claimed the call never happened. The parties gave different accounts of what happened at the airport meeting when the documents were signed. Hepburn and Paregian testified that they said they still wanted a pad and Henry replied that they shouldn’t worry about it; Hepburn and Paregian said they thought this meant the parties had an understanding that the pad was part of the contract. Henry testified that no such conversation took place at the airport meeting. The parties also gave different accounts of what happened at the meeting at Chicago Title on September 9, 2004. Hepburn testified that the disagreement about whether the contract included a pad emerged then, while Henry testified that nothing was said on that subject.
The verdict, of course, indicates that it was the seller’s witnesses whom the jury found credible. This finding is not subject to de novo review. Accepting the seller’s witnesses’ testimony as true, can we still find that the contract included no pad term as a matter of law based on the remaining, unconflicting evidence?
We could and would if the conflicting testimony related only to the parties’ unexpressed subjective intentions about what the contract meant. For instance, if Paregian had testified only that he privately intended his signature on the addendum to execute one of the several provisions on the page, the fact finder’s acceptance of this testimony would be entitled to no deference, because a signature objectively manifests the signer’s assent to the document and his secret intention to be bound only by selected parts beneficial to him has no force. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 960 [“[U]ndisclosed statements regarding intent or understanding of” the writing “are irrelevant to contract interpretation under the objective theory of contracts”; appellate court determines writing’s meaning de novo “[a]fter winnowing out the extrinsic evidence that is irrelevant under the objective theory of contracts”].)
The testimony went beyond describing unexpressed subjective understandings, however. When Hepburn and Paregian testified that they raised their concern about the pad at the airport meeting and Henry told them not to worry about it, they asserted facts from which the fact finder could reasonably infer that they expressed their understanding and the buyers confirmed it. Extrinsic evidence, if admissible, is properly used to show the parties’ agreement even if, absent that evidence, objective standards would point to a different meaning. (See Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d at p. 39 [“The fact that the terms of an instrument appear clear to a judge does not preclude the possibility that the parties chose the language of the instrument to express different terms”].) It was this kind of testimony that opened up the possibility that, in spite of strong other evidence to the contrary, the parties’ agreement included a pad as part of the consideration for the sale.
The credibility determinations that had to be made preliminarily to deciding what the parties really said to each other were for the jury to make. These determinations controlled the ultimate conclusion about the meaning of the contract. Since the view that it was the seller’s witnesses who were telling the truth was supported by substantial evidence (including witness testimony, impeachment testimony, and the witnesses’ demeanor), we cannot reverse the judgment on the ground that the contract included no pad term as a matter of law.
II. Instruction on unilateral mistake
The buyers argue that the court erred when it agreed to give the jury instructions on the seller’s defense of unilateral mistake even though the seller pleaded only mutual mistake. We disagree.
The seller proffered the unilateral-mistake instruction on the ground that the evidence showed unilateral mistake rather than mutual mistake. Since the seller did not plead unilateral mistake, his counsel told the court that “to the extent the plaintiffs don’t agree to [the instruction], we would need to move to amend to conform to proof.”
A court should grant a motion to amend a pleading to state a legal theory not previously pleaded, but related to the same general set of facts as the previously pleaded theories, if the opposing party would not be prejudiced by the amendment. Denial of leave to amend under these circumstances is an abuse of discretion. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
When the court agreed to give the instruction, it did not formally grant a motion to amend to conform to proof, but we do not think that makes any difference here. It would have abused its discretion if it had denied leave to amend. The buyers have not shown that they were prejudiced by the court’s decision to instruct on unilateral mistake. They argue that they were deprived of the ability to conduct discovery or cross-examine Paregian and Hepburn on the issue of whether the alleged mistake arose from their own carelessness, but we do not see what additional discovery or cross-examination they could have conducted that would have made a significant difference. Those present at the airport meeting were all questioned extensively about the conflicting references to a pad in the agreement and about what they thought those references meant and what was said about them. The buyers also argue that they were deprived of the opportunity to move for summary adjudication or nonsuit on unilateral mistake. As we will explain later in this opinion, however, that the unilateral mistake theory was supported by substantial evidence, so motions for summary adjudication or nonsuit could not properly have been granted. The buyers’ argument that the jury should have been prevented from considering unilateral mistake because of a pleading defect is, therefore, without merit.
The buyers also argue that the instruction should have been rejected because the evidence did not warrant it. A requested instruction must be given if it is legally correct and relates to a material question upon which there is evidence substantial enough to merit consideration by the jury. (People v. Avena (1996) 13 Cal.4th 394, 424.) The question, therefore, is whether there was enough evidence of unilateral mistake to warrant consideration by the jury. This evidentiary standard is not a high one. The buyers argue that the evidence failed to prove unilateral mistake, but that is not the applicable standard for determining whether a jury instruction was warranted.
As the instructions indicate, the elements of unilateral mistake were (1) that the seller mistakenly believed the contract included a pad; (2) that the buyers knew of the mistake and took advantage of it; (3) that the mistake was not caused by the seller’s excessive carelessness; and (4) that the seller would not have entered into the agreement but for the mistake. The testimony of Paregian and Hepburn about their beliefs and intentions was enough evidence to warrant the jury’s consideration of the first and fourth elements. Their claim that Henry encouraged them at the airport meeting to believe he was agreeing to include a pad was enough evidence to warrant the jury’s consideration of the second and third elements.
III. Motion for judgment notwithstanding the verdict
The buyers contend that the trial court should have granted their motion for judgment notwithstanding the verdict because the verdict was not supported by substantial evidence. They say the jury must have found that, (1) even if there was a contract, the seller did not breach it; or (2) there was no valid contract because of fraud in the inducement; or (3) there was no valid contract because of unilateral mistake. There was insufficient evidence to support any of these conclusions, the buyers argue. Again, we disagree.
We have already stated what the standard of review is for a claim of insufficient evidence. When a jury returns a general verdict on multiple causes of action, and the verdict is challenged on grounds of insufficient evidence, we affirm if the record is adequate to uphold any one of the causes of action. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673.) Here, the buyers are challenging a general defense verdict in a contract case where the jury could have found that the plaintiffs simply proved no breach or that the defense proved either of two affirmative defenses, fraud in the inducement or unilateral mistake. If the record supports any one of these three theories, we must affirm.
To show that the record does not support the first theory—that the plaintiffs simply failed to prove their case—would be extremely difficult, since the seller had no burden of proof in the trial court with respect to that theory. A jury is under no compulsion to believe even powerful evidence of the affirmative existence of facts and may reject that evidence unless it cannot rationally be disbelieved. To prevail, the buyers would have to show that a contract and a breach existed as a matter of law, i.e., that it was impossible for a rational fact finder not to find them. (Blank v. Coffin (1942) 20 Cal.2d 457, 460-462; Byrum v. Brand (1990) 219 Cal.App.3d 926, 946-947; Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099-1100.) They have not made this showing. Further, although he was not required to do so, the seller did present evidence supporting the view that he did not commit a breach of contract. We have already said that there was sufficient evidence to conclude that the agreement could reasonably be interpreted to mean that it included a pad for the seller. This evidence, together with the evidence that the buyers did not tender or intend to tender a pad, would have been sufficient to support a no-breach finding if evidence had been required. These conclusions are enough to uphold the trial court’s denial of the buyers’ motion for judgment notwithstanding the verdict.
There also was substantial evidence to support the verdict under the seller’s affirmative defenses, fraud in the inducement and unilateral mistake. The testimony of Paregian and Hepburn about what transpired at the airport meeting was sufficient evidence to support those defenses. The buyers focus on the elements of the defenses that required objective reasonableness on the part of the seller—the lack-of-excessive-carelessness element of unilateral mistake and the reasonable-reliance element of fraud in the inducement—and contend that there was insufficient evidence to support them. If any reasonable fact finder could find reasonable reliance and an absence of excessive carelessness, however, we cannot disturb those findings. Though the question may be close, we conclude a reasonable jury could decide that, at the airport meeting, the seller saw the contradiction in the written agreement, sought reassurance from his counterparties, and reasonably thought he had obtained it.
The record is sufficient to support the verdict. Consequently, the court did not err in denying the buyers’ motion for judgment notwithstanding the verdict. This conclusion also disposes of Gallagher & Miersch’s separate argument—apart from the claim that the motion for judgment notwithstanding the verdict should have been granted—that the judgment was not supported by substantial evidence.
IV. Summary adjudication in favor of Paregian
The buyers argue that the trial court erred when it granted summary adjudication in favor of Paregian as an individual, removing him from the case as a defendant. Since there never were separate factual allegations against Paregian and Bacchus Vineyards, however, our affirmance of the jury’s determination that there was no liability on the contract means the question of Paregian’s individual liability is moot. The verdict means either that there was no contract or that there was no breach, so Paregian cannot be liable in any event.
V. Deposit
The buyers assert that they paid $100,000 in deposits to the seller, which were not refunded. They claim that, because one of the possible bases for the jury’s verdict was that there was no contract, we should order the seller to pay $100,000 to the buyers even if we affirm the judgment. There is no legal basis for this order. This claim was not submitted to the jury or ruled on by the court. In any event, as an appellate court, we do not issue money judgments in the first instance.
VI. Attorneys’ fees and costs
The buyers note that the court awarded attorneys’ fees and costs to the seller and request that we reverse that award. The only ground for this request in this appeal, however, is the claim that the judgment on the merits should be reversed. Since we are affirming the judgment on the merits, we will not now reverse the award of fees and costs. The issue of fees and costs is pending in a separate appeal (case No. F055151). We express no opinion here on its merits.
DISPOSITION
The judgment is affirmed except with respect to the award of attorneys’ fees and costs, which is pending in a separate appeal. The summary adjudication in favor of Paregian as an individual and the order denying judgment notwithstanding the verdict are affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: Levy, J., Gomes, J.