Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC329056, William F. Fahey, Judge.
Hitchcock, Bowman & Schachter and Robert Schachter for Plaintiff and Appellant.
Muehle & Whitman, Scott L. Whitman and Michael D. Fitts for Defendants and Respondents.
ASHMANN-GERST, J.
In this breach of contract and fraud action, appellant Zaffar Hassanally (Hassanally) sued respondents JRAM Enterprises, Inc. (JRAM), Jeffrey Foong (Foong) and Rose Foong (collectively the sellers) and alleged that they breached the terms of the sixth supplemental escrow instructions (supplemental instructions) that were part of their executed real estate purchase contract (contract). According to Hassanally, JRAM failed to remediate the code deficiencies that were the subject of a notice to comply (notice) issued against the property by the City of Los Angeles (City). The sellers obtained summary adjudication and a dismissal with evidence that the City issued a written certificate (certificate) stating that all code violations related to the notice had been cured. Citing evidence that the City issued the certificate in error, and that the code violations had not been fully remediated, Hassanally is now pursuing an appeal and requesting that we reverse the dismissal.
In declarations submitted below Foong stated that he is the vice-president of JRAM and Rose Foong stated that she is the treasurer. According to the statement of facts in Hassanally’s opening brief, Foong and Rose Foong are the principals of JRAM.
We find no error and affirm. Contrary to what Hassanally contends, the supplemental instructions required no more than JRAM obtain written confirmation from the City that the notice was satisfied. JRAM met its obligation. Hassanally cannot challenge the efficacy of the certificate based on fraud or mistake because he did not advance the pertinent arguments below.
FACTS
The complaint
As alleged, the parties entered into a contract for Hassanally to buy property from JRAM. Subsequently, the City issued the notice and demanded that code violations be cured. The supplemental instructions obligated JRAM to satisfy the City with respect to the notice and obtain written confirmation from the City that it reinspected the property and withdrew the notice. Though JRAM executed the supplemental instructions, it had no intent to perform. Prior to the close of escrow, the City approved the property and JRAM presented the certificate to Hassanally. But the City inspector issued the certificate in error; JRAM did not make all the necessary repairs. Based on these facts, JRAM breached the contract and committed promissory fraud.
The contract and supplemental instructions were exhibits to the complaint.
According to the contract, the property was a 47-unit apartment building, which JRAM had agreed to sell for $2,400,000. Hassanally was given a seven-day window to inspect the property. Paragraph 22 of the contract contained an “as is” clause stating that Hassanally was purchasing the property solely in reliance on his own investigation. JRAM represented and warranted that it was unaware of any outstanding code violations. If JRAM received notice of any code violations prior to the close of escrow, it was obligated to notify Hassanally. Hassanally was given a five-day period to notify JRAM, in writing, of his decision to cancel the contract based on any such code violations. Hassanally waived all his rights and remedies against JRAM with respect to the physical condition of the property, and he agreed to bear all risks regarding the property’s conditions.
In the respondents’ brief, JRAM avers that the property is a 48-unit apartment building.
According to the supplemental instructions: “[JRAM], at its cost and expense, . . . shall assume the responsibility for satisfying the City as it relates to the [notice]. In this regard, it shall be [JRAM’s] obligation to make all required repairs and corrections to the [property] as ultimately determined by the City and obtain written confirmation . . . from the City that the [property] has been re-inspected and that the [notice] has been withdrawn and/or satisfied. In connection therewith, [Hassanally] agrees that [he] shall not interfere with [JRAM’s] efforts to satisfy the City and shall not engage in any activities that may increase the cost or expense in fulfilling [JRAM’s] obligations under [the supplemental instructions], and agrees not to communicate with the City until such time as [JRAM] obtains [the certificate].” Hassanally agreed to contribute $35,000 to the cost of the remediation.
The sellers’ motion for summary adjudication
According to the sellers’ points and authorities, JRAM paid a company called Inveserve $50,000 to make the necessary repairs to the property and facilitate a new inspection by the City. During the time that Inveserve was remediating the property, Hassanally had full access. In fact, he monitored Inveserve’s work. Subsequently, the City issued the certificate. Once Hassanally received the certificate, he inspected the property again. He notified JRAM that he considered the repairs made by Inveserve to be inadequate. Despite this contention, Hassanally proceeded with the sale of the property. Based on these facts, the sellers argued that JRAM did not breach the contract, or commit promissory fraud, because it met its only obligation, which was to secure the certificate.
The certificate was submitted with the motion. It stated that Andy Garcia (Garcia), an inspector from the City of Los Angeles Housing Department, fully re-inspected the property and determined that all deficiencies listed in the notice were eliminated or otherwise satisfied.
Foong submitted a declaration in support of the sellers’ motion and set forth the following averments. The contract was entered into on June 24, 2004. Hassanally conducted an inspection of the property and was thereafter given full access to the property by Inveserve. Following his inspections, Hassanally made certain demands. As a result, the parties agreed in writing that JRAM would credit Hassanally $15,000 at close of escrow and remove stains on walls in specified units. Hassanally confirmed the removal of all physical and property inspection contingencies. Then, prior to the close of escrow, JRAM received the notice from the City and alerted Hassanally. He was given three extensions of time to exercise his right to cancel. During those extensions, Hassanally once again inspected the property. He admitted that he was previously aware of the conditions set forth in the notice and that the purchase price reflected the current condition of the property. In the meantime, JRAM engaged the services of Inveserve to prepare a remediation proposal (Inveserve Proposal). After extensive negotiations, the parties agreed to a resolution of the dispute, which was set forth in the supplemental instructions.
Continuing on, Foong declared: During the negotiations, Hassanally “requested revisions to the draft of the [supplemental instructions] that would require JRAM to remain responsible to the City after the issuance of the Written Certification and after the close of escrow. JRAM rejected Hassanally’s request and Hassanally agreed not to include such a provision in the [supplemental instructions].” JRAM accepted the Inveserve Proposal for $50,000. In November 2004, Inveserve told JRAM that the City re-inspected the property and that the notice had been satisfied. Soon thereafter, the City sent the certificate. After a copy of the certificate was delivered to Hassanally, he inspected the property again. He notified JRAM that the repairs were inadequate and deficient. Nonetheless, Hassanally elected to proceed with his purchase of the property. At his instruction, the escrow closed on or about November 10, 2004, and title was transferred. Three months later, the City issued a new notice to comply.
Exhibit G to Foong’s declaration was a letter dated November 10, 2004, from Hassanally. The letter was addressed to JRAM’s attorney, Scott Whitman (Whitman), and contained the following text: “In reference to the . . . property, I am proceeding to close Escrow. [¶] However, I reserve all rights and claims arising from [JRAM’s] failure to perform all the work required in the [notice]. [¶] Your clients have not responded to my proposals and have failed to comply with the work required and have breached the contract.”
Whitman also submitted a declaration. Exhibit A to his declaration was a letter dated October 7, 2004, that he sent Hassanally rejecting a proposal that JRAM remain responsible for the property’s condition after the close of escrow. It stated that JRAM agreed “to take on the responsibility of satisfying the City and doing that repair work that the City requires in order to obtain the Written Confirmation, but will not assume any responsibility after escrow closes.”
Exhibit C to Whitman’s declaration was a letter dated November 5, 2004, from Hassanally stating that “during our several inspections of the property, we were disappointed that [JRAM was] only doing the bare minimum of work and in a substandard fashion. This work would only cause us to re-do the work that [JRAM is] doing. This is unacceptable as it violates the intent and spirit of the [supplemental instructions].” The letter concluded that “[i]n order to resolve the outstanding issues, I will close escrow on November 10th, 2004, providing [JRAM agrees] that I will not contribute the $35,000.00 toward the cost of repairs. As an alternative, [JRAM] can leave $50,000.00 in escrow, do all the items in the [notice] and provide me with paid Invoices on work completed.”
The fourth exhibit to Whitman’s declaration, exhibit D, was pages from Garcia’s deposition. Garcia testified as follows: When he initially inspected the property in September 2004, Hassanally’s representative said there was no need to be thorough because the property would be rehabilitated after the sale. In November 2004, during the re-inspection, Garcia and the property manager each selected units to be examined. Garcia went back to the property in March 2005 because the City received complaints from Hassanally and the tenants. Hassanally wanted to know why Garcia signed off on the prior remediation. According to Garcia: “Well, after conversations with him, we . . . told him that their representative . . . told us they were going to buy it as-is, they were going to rehab the whole building. [¶] And so that’s the reason—part of the reason why we had closed the file in the first place.” Since the inspection of March 2005, Hassanally remediated the property and cured all of the violations.
Jose Torres, an Inveserve supervisor, declared that he monitored the remediation at the property. After the work was completed, he called the City and asked for a re-inspection. After the re-inspection he was told that the property had passed. He did not conceal the conditions at the property, nor did he attempt to influence or pressure anyone from the City. Moreover, he never told anyone from the City that repairs would be made after October 31, 2004.
Hassanally’s opposition
In opposition, Hassanally argued that the sellers promised to make certain repairs and then reneged on their promise. He contended that his declaration, and the deposition of Garcia, “establish[ed] that all of the necessary work was not completed.” Additionally, he asserted that the sellers, through their agents, fraudulently misrepresented to Garcia that they would complete the work before the close of escrow. He further asserted that as a defrauded party he was permitted to enforce the contract and sue for breach of contract and fraud, and that the release in the contract did not stand as a bar to his action.
A declaration from Hassanally offered statements about the parties’ agreement and things the sellers purportedly said to Garcia. The trial court sustained objections to those portions of the declaration.
Hassanally’s attorney, Robert Schacter (Schacter), provided a declaration that summarized portions of Garcia’s deposition testimony. There was no objection. As summarized, Garcia testified that he did the re-inspection in the presence of Whitman and a representative for Hassanally. Garcia recalled that “[w]e were talking about the inspection and that the building was being sold. And the representative for the Buyer was there. And I recall it was said by both parties that they were going to purchase the property AS-IS; . . . [Whitman] told me that they were going to buy the property, the Buyers agreed to buy it and they were going to rehab the [property].” Garcia went into about 10 units. He picked some and the property managed picked some. There was work in progress in the units he inspected, which was enough for him to conclude that the entire building was being worked on. To some extent Garcia relied on the statement that the general contractor would continue with the work. But he did not recall who made that statement. On the day of the re-inspection, Whitman gave Garcia the certificate and asked him to sign it. Garcia signed it, but in hindsight he testified that signing it was a mistake.
The sellers’ reply
In the reply, the sellers’ stated that the “conditions of the [property] in the [notice] were fully known to Hassanally prior to the City’s issuance of such [notice.] After conducting his due diligence investigations before and after executing the [contract] and during the due diligence period . . ., Hassanally extracted a price reduction concession based on the [property’s] condition.” The sellers argued that JRAM’s sole responsibility was to obtain the certificate, adding: “While Hassanally initially sought [JRAM’s] continued liability after the issuance of the Written Certification, such continued liability was expressly rejected by [JRAM].” Hassanally admitted in his deposition that he initially tried to get JRAM to agree to liability after the issuance of the written certification.
The hearing and dismissal
At the hearing, the trial court tentatively announced that there were no triable issues of fact. The trial court opined that Hassanally’s real dispute was with the City for issuing the certificate even though the work was not completed and that it was irrelevant that the code violations had not been abated because Garcia issued the certificate and “met with representatives from both sides at the site, and they indicated that the repairs would be completed in the future.” The trial court stated that it was “a little fuzzy as to who was going to [complete the repairs], but Garcia didn’t seem to care, so he signed the certificate, [and Hassanally] represented he was going to buy [the property] as is, and did so.”
Schacter argued that the supplemental instructions required JRAM to complete the repairs required in the notice. The trial court disagreed, suggesting that JRAM was absolved of its contractual duties once the certificate was issued, especially considering that Hassanally was purchasing the property as is. In the trial court’s view, Garcia said “he relied on the buyer’s representative saying they were going to buy it as is and going to rehab the whole project, and that’s why he signed off. I think he regretted having done so.”
This colloquy led Schacter to state: “But your honor, I think the bottom line—the point is [Garcia] had admitted clearly that he should have not signed it, that the work was not done. [¶] That leads to the question what was [JRAM’s] obligation. [JRAM’s] obligation was to do all the work that ultimately was decided by the City that needed to be done to satisfy the [notice].”
Whitman adverted to the reply papers, arguing that they showed that “the parties explored the issue of post written certification from the City liability, and in those documents in the reply declaration its spells out specifically [Hassanally] sought [JRAM] to have post written certification liability, and it was outright rejected by [JRAM]. [¶] Then [Hassanally] came back and said, okay, how about if we cap that post written certification liability at $10,000. And [JRAM] said, absolutely not. You’ve got two options: cancel the deal, get your deposit back, or proceed with the sale, and he decides to go ahead without any continuing liability on the part of [JRAM].” Whitman suggested that “this is the risk of loss and the buyer took the risk. If the City was negligent, if [Garcia] didn’t do a thorough job, that was his problem, [Hassanally’s] problem, because that was fully negotiated, and it was rejected, and [Hassanally] elected to proceed.”
Schacter objected to the evidence presented in connection with the reply on the grounds that Hassanally had no opportunity to respond. The trial court indicated that it had not considered the evidence in the reply brief. It then asked if Hassanally could offer any contradicting evidence. According to Schacter, the negotiations regarding postescrow liability only pertained to tenant complaints. In the end, the trial court did not give any weight to the reply evidence. The trial court explained that, in its view, the issue was whether “the error of the city inspector can provide a basis for liability of a seller in this case.” In response, Schacter stated, “I don’t think the law would support an argument that the seller who may have known of a mistake and may have coerced [Garcia]—I’m using that term loosely—coerced [Garcia] to authorize the certification, can benefit from its own breach of contract and own fraud, whereas my client is entirely innocent and should not bear the burden of the city inspector mistake.” But the trial court did not “see any evidence of coercion at all by either side.”
The sellers submitted additional evidence in connection with the reply. But much of it merely bolstered paragraph 14 of Foong’s original declaration, which states that the sellers rejected the request that they remain liable after obtaining written certification from the City. That paragraph of Foong’s original declaration was cited as evidentiary support for issue No. 1, fact No. 3 and issue No. 5, fact No. 6 in the sellers’ separate statement in support of summary adjudication of issues. The first statement of fact averred: “Under the [contract] and [supplemental instructions], [JRAM’s] obligations to Hassanally with respect to the [notice] were limited to obtaining a Written Certification from the City that the [property] was re-inspected and that the [notice] was withdrawn or otherwise satisfied.” The second one stated: “During negotiations leading up to the execution of the [supplemental instructions], Hassanally requested revisions to the draft of the [supplemental instructions] that would require [the sellers] to remain responsible to the City after the issuance of a Written Certification and after the escrow closed, but [the sellers] rejected Hassanally’s request and Hassanally agreed not to include such a provision in the [supplemental instructions].” Evidence of the negotiations pertaining to postwritten confirmation liability was present in the sellers’ moving papers, and it supported the trial court’s interpretation. However, we do not factor this evidence into our analysis because, ostensibly, the trial court based its decision entirely on the contractual language.
The trial court granted summary adjudication and dismissed Hassanally’s action. The order granting summary adjudication provided, in part, that there was “no credible evidence that [JRAM] or [its] agents misled [Garcia]; instead, the evidence appears to be that [Garcia] relied on [Hassanally’s] representations and decided to facilitate the sale by signing the [certificate] presented to him.”
Also, the trial court found no evidence to support the promissory fraud claim. “Paragraphs 20 and 21 of the [complaint] alleged that [the sellers’] false statements were ‘contained in the [supplemental instructions].’ However . . ., the determination of whether the repairs were adequate was to be made by the City and not the buyer or seller. [Hassanally] has failed to introduce any evidence that [the sellers] knowingly made false statements about the repairs at the time the [supplemental instructions] were signed, especially since the parties agreed that an independent third-party (the City) would determine in the future if [JRAM’s] repairs were adequate. Assuming arguendo that [the sellers] knowingly made false statements about the future repairs they would make, [Hassanally] has failed to introduce evidence that he could reasonably rely on such statements, because [Hassanally] had the built-in safeguard of the City inspector having the final say as to the adequacy of the repairs.”
In conclusion, the trial court found that “this is a classic case of ‘buyer’s remorse.’ [Hassanally] is apparently a sophisticated buyer of real estate, as indicated by his careful negotiations of the terms of the [contract] and the various [supplemental instructions]. Even when [Hassanally] believed that [JRAM] had failed to make all necessary repairs, he did not avail himself of the extended termination option. Instead, [Hassanally] chose to purchase the property ‘as-is.’ This is likely because [Hassanally] thought that he was getting the better of the deal. Only when his new tenants started complaining some months later, which precipitated another City inspection, did [Hassanally] decide that the deal was not as good as he had hoped. But these facts do not give rise to a valid claim of breach of contract or fraud.”
This appeal followed.
STANDARD OF REVIEW
“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) Given this precept, we look to the standard of review pertinent to motions for summary judgment. “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
DISCUSSION
1. Breach of contract.
According to Hassanally, the supplemental instructions required JRAM to make the repairs required by the notice and that there is a triable issue as to whether the work was ever completed. JRAM, in contrast, contends that all it had to do was obtain the certificate, which it did. After interpreting the supplemental instructions, we conclude that JRAM extinguished its contractual obligation under the supplemental instructions by obtaining the certificate.
a. Interpretation of the supplemental instructions.
When interpreting a contract, our goal is to effectuate the mutual, expressed intention of the parties. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821.) We must do this, if possible, based on the contractual language. (AIU Ins. Co. v. Superior Court, supra, at p. 822.) The clear and explicit meaning of the words, interpreted in their ordinary and popular sense, controls unless the parties used the words in a technical sense, or gave them a special meaning. (Ibid.) However, the plain language of the contract can sometimes lead to two or more reasonable interpretations. In that case, the contract is ambiguous. (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 196–197.) It falls upon the courts to resolve the ambiguity by applying the rules, inter alia, set forth in Civil Code sections 1635 to 1663.
The supplemental instructions obligated JRAM to satisfy “the City as it relates to the [notice].” In that regard, JRAM had to make the “required repairs and corrections to the [property] as ultimately determined by the City and obtain written confirmation . . . from the City that the [property] has been re-inspected and that the [notice] has been withdrawn and/or satisfied.”
In Hassanally’s view, the supplemental instructions required JRAM to cure the code violations rather than merely satisfy the City and get the notice rescinded. But JRAM’s obligation to make repairs “as ultimately determined” by the City is reasonably susceptible to two interpretations. JRAM’s “obligation” to make repairs was only in regard to its duty to satisfy the City. This suggests that JRAM’s duty was discharged once the City signed off on the remediation. But the phrase “it shall be JRAM’s obligation to make all required repairs” can be read to mean that JRAM had to satisfy the City and complete the work. The problem is that Hassanally did not analyze this ambiguity. “Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [an appellant’s] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
An appellate court must adopt all intendments and inferences necessary to affirm a judgment unless they are contradicted by record. (Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) Ostensibly, the trial court concluded that the contract obligated JRAM to prove the City’s satisfaction with the remediation and nothing more. The record does not stand in contradiction to that interpretation. We have no choice but to presume that the trial court was correct.
We note that there is evidence that JRAM rejected Hassanally’s request that they remain liable after the City issued written confirmation of re-inspection and satisfaction. This evidence was relevant (Mayers v. Loew’s, Inc. (1950) 35 Cal.2d 822, 829 [“It is thus apparent that the contract is not clear on its face, and under the theory of the parol evidence rule . . ., evidence of the negotiations of the parties and of surrounding circumstances was admissible for the purpose of determining the meaning of the contractual provisions”]), and it tends to support our conclusion that the trial court was correct. But we do not factor this evidence into our analysis because the trial court did not take it into consideration.
Though academic, it bears stressing that the trial court’s interpretation is consistent with the contract and its exhibits and amendments. The contract provided instructions to the escrow holder. Exhibit B to the contract contained general instructions to the escrow holder and established what should happen if the conditions of the escrow were not complied with. The supplemental instructions informed the escrow holder of JRAM’s obligation to satisfy the City regarding the notice, and then stated that the closing date would be extended if written confirmation of re-inspection by the City was not procured by the closing date. Correction of the code violations was not mentioned in the extension provisions. In context, the supplemental instructions were designed to facilitate the close of escrow; conversely, they did not purport to govern the rights of the parties once escrow was closed. Significantly, written confirmation from the City was treated as a triggering event for the close of escrow. Also, the disputed portion of the supplemental instructions was preceded by the heading “Seller’s Obligation to Remedy the [Notice].” Notably, it does not refer to JRAM’s obligation to correct the code violations.
b. There is no triable issue as to breach.
Ultimately, the question is whether the certificate was effective to extinguish JRAM’s duty under the supplemental instructions.
Hassanally argues that the certificate did not extinguish JRAM’s duty because it was the result of fraud or mistake. He refers us to the following quote in one of the Witkin treatises: “If the parties agree that the sufficiency of performance is to be determined by some third person, e.g., an architect, that person’s determination is conclusive in the absence of proof of fraud or mistake. [Citations.]” (1 Witkin Summary of Cal. Law (10th ed. 2005) Contracts, § 782, p. 871.) But there is a barrier to this argument. It was not made below. Points not raised in the trial court will not be considered on appeal. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
Our analysis could stop here.
On the merits, the problem is that the sufficiency of the remediation was not the issue. The issue was the City’s satisfaction. Thus, the rule quoted from Witkin above has no application to the facts in the present case. Further, none of the cases cited by Hassanally assist him. California Sugar Etc. Agency v. Penoyar (1914) 167 Cal. 274 and Lucas v. Quigley Motor Co., Inc. (1961) 191 Cal.App.2d 152 merely reflect the rule quoted from Witkin above. Macomber v. State of California (1967) 250 Cal.App.2d 391 (Macomber), Clack v. State of California (1969) 275 Cal.App.2d 743 (Clack), and Acoustics, Inc. v. Trepte Constr. Co. Inc. (1971) 14 Cal.App.3d 887 (Acoustics) are inapposite. They involved public contractors seeking to recover for extra work necessitated by incorrect plans and specifications. Their contracts provided that if a designated public agent rejected their claims, that decision was conclusive in the absence of fraud or gross error. (Macomber, supra, 250 Cal.App.2d at p. 398; Clack, supra, 275 Cal.App.2d at pp. 745–746; Acoustics, supra, 14 Cal.App.3d at p. 908.) The supplemental instructions do not pertain to the filing of claims with a government entity. Rialto Construction Co. v. Reed (1911) 17 Cal.App. 29 (Rialto) is similarly inapposite; it involved a contract that permitted a third party to conclusively resolve disputes in the absence of fraud or gross mistake. (Rialto, supra, 17 Cal.App. at pp. 32–33.) The supplemental instructions did not contain an exception establishing that written confirmation would bind the parties unless it was procured through fraud or gross error. The court in Pacific Commercial Co. v. Greer (1933) 129 Cal.App. 751 held that a plaintiff was bound by a third party’s certification of the quality of secondhand wire rope in the absence of fraud, collusion or palpably arbitrary action. (Pacific Commercial Co. v. Greer, supra, at pp. 756–757.) But again, the quality of the remediation was not the issue.
2. Fraud.
According to Hassanally, there is a triable issue as to whether the sellers committed promissory fraud.
We disagree.
a. The applicable law.
For purposes of establishing liability for promissory fraud, the law requires that Hassanally show “‘(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent at the time of making the promise; (3) the promise was made with intent to deceive or with intent to induce the party to whom it was made to enter into the transaction; (4) the promise was relied on by the party to whom it was made; (5) the party making the promise did not perform; (6) the party to whom the promise was made was injured.’ [Citation.]” (Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal.App.3d 107, 119.) The plaintiff’s reliance must be reasonable. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
b. There are no triable issues.
Our ensuing discussion regarding the merits of Hassanally’s promissory fraud claim tracks the arguments he advances in part IV of his opening brief, which is entitled “A Party Defrauded has the Election to Affirm the Contract and Sue for Fraud and/or Breach of Contract.”
To begin, Hassanally avers that the first “issue is whether a misrepresentation (promise to perform with no intent to perform) EXISTED AT THE TIME OF THE PROMISE. . . . [¶] That issue, along with practically all other issues concerning fraud, are generally questions of fact.” This concludes his argument regarding the first, second and fifth elements of promissory fraud. Given our interpretation of the contract, there is no evidence that the sellers made a false promise. They assumed the obligation to obtain written certification of the City’s satisfaction prior to the close of escrow, and they did so. In sum, they made good on their promise.
Next, Hassanally informs us that “when a party discovers fraud, the party may complete the contract and sue for damages.” This of no moment. The trial court granted summary adjudication due to a dearth of evidence regarding a false promise and reasonable reliance. Citing Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, Hassanally explains that the sellers cannot rely on his release of claims to bar this action. But this issue is moot. It was not relied upon by the trial court, and it cannot ameliorate the elemental deficiencies.
Hassanally was silent regarding the trial court’s conclusion that the evidence fails to establish reliance. Impliedly, he does not assign error on this point. Alone, this is enough to affirm dismissal of the fraud cause of action. We have no obligation to forge ahead with an analysis of the reliance element, for it “is not our responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)
DISPOSITION
The judgment is affirmed.
The sellers shall recover their costs on appeal.
We concur: BOREN, P. J. CHAVEZ, J.