Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG4177871
RIVERA, J.
Defendant Jerlyn L. Smith appeals a judgment awarding plaintiff Nicole R. Lee specific performance of a contract to convey real estate. She contends on appeal that no contract was formed; that the trial court wrongly awarded specific performance, incidental damages, and attorney fees; and that the trial court should not have dismissed her cross-complaint. We affirm.
I. BACKGROUND
On July 12, 2004, defendant listed for sale her property located at 7229 Favor Street, Oakland, California. The initial asking price was $289,950. Defendant later lowered the asking price to $269,950. Plaintiff offered to purchase the property for $261,000, and faxed the offer to Kim Dorsey, the listing agent, on August 13, 2004.
On the afternoon of August 18, 2004, Dorsey sent a counteroffer to plaintiff by facsimile. The counteroffer, which defendant had signed, specified the sales price as $269,000. It also indicated that defendant was making at least one counteroffer to another prospective buyer and that as a result defendant must re-sign the counteroffer for plaintiff’s acceptance to be binding. On the same day, plaintiff signed the counteroffer and faxed the counteroffer back to Dorsey.
Plaintiff realized that she had not written the time on the counteroffer, so she added “4:00 p.m.” and re-faxed the counteroffer to Dorsey. Dorsey later informed plaintiff that she had written the wrong date on the counteroffer. Plaintiff changed the “9” to “8” for the month on all copies of the counteroffer in her possession.
On August 22, 2004, plaintiff received the counteroffer by facsimile transmission. The counteroffer indicated it had been re-signed by Dorsey on behalf of defendant “per telephone conversation.” On August 25, 2004, plaintiff opened escrow. On August 30, 2004, defendant personally re-signed the counteroffer. A few days later, plaintiff received additional documents from Dorsey, including a counteroffer with defendant’s signature, a seller’s affidavit for the State of California first-time home buyer program, and a City of Oakland first-time home buyer program addendum.
At trial, defendant denied that she gave Dorsey authority to re-sign the counteroffer on her behalf or that she personally re-signed the counteroffer.
At trial, defendant verified that the signature on the addendum was hers but disputes signing the seller’s affidavit. Seller’s signature was required on the two documents for plaintiff to receive down payment assistance as a first-time home buyer.
Relations between plaintiff and defendant later deteriorated, and defendant’s son told defendant’s real estate agent that defendant had received a higher offer for the house. Defendant ultimately refused to close the transaction.
On September 30, 2004, plaintiff brought an action for specific performance and breach of contract, and recorded a notice of lis pendens against the property. Defendant cross-complained against plaintiff and her broker, Diana Frappier. The trial court dismissed the cross-complaint at trial. The court found that the contract between plaintiff and defendant was valid and awarded plaintiff specific performance and incidental damages. In doing so, it found that plaintiff had accepted defendant’s counteroffer in a timely fashion; that defendant had authorized her agent to accept the acceptance, and had ratified her agent’s acceptance by re-signing the counteroffer herself; that plaintiff performed all conditions necessary for the close of the sale; and that defendant breached the contract by declining to execute the closing documents. The court also found that interest rates had increased since the time originally contemplated for the sale, resulting in higher financing costs for plaintiff, and awarded the difference in incidental damages. Plaintiff moved for contractual attorney fees, and the trial court granted the motion.
II. DISCUSSION
A. Acceptance of the Counteroffer
Defendant contends that the trial court committed reversible error in ruling that she and plaintiff had entered into a contract. According to defendant, plaintiff did not accept her counteroffer in a timely fashion, and defendant’s “signatures were forged and fraudulently altered” in the counteroffer. In essence, defendant attacks the sufficiency of the evidence to support the trial court’s findings.
It is well settled that in reviewing evidence on appeal, “all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. . . . [W]hen a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 (Crawford).) The substantial evidence standard also applies to findings made by a trial court in its statement of decision rendered after a nonjury trial. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.) Where, as here, “the trial court’s findings are set forth in a statement of decision, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.’ ” (TME Enterprises, Inc. v. Norwest Corp. (2004) 124 Cal.App.4th 1021, 1030 (TME).)
The relevant language in the counteroffer states: “EXPIRATION: This Counter Offer shall be deemed revoked and the deposits, if any, shall be returned unless this Counter Offer is Signed by the Buyer or Seller to whom it is sent and a Copy of the Signed Counter Offer is personally received by the person making this Counter Offer or ___________, who is authorized to receive it, by 5:00 PM on the third Day After this Counter Offer is made.” There is evidence that plaintiff accepted the counteroffer by signing it and returning it to Dorsey on the day she received it. There is also evidence that defendant re-signed the counteroffer and returned it to plaintiff, thus fulfilling the condition that the counteroffer was not binding until re-signed by defendant and received by plaintiff. Although defendant disputes that the signature on the counteroffer was hers, Dorsey testified that she saw defendant sign it, and a forensic expert testified with “the highest level of confidence” that the signature on the counteroffer was defendant’s. In the circumstances, substantial evidence supports the trial court’s conclusion that plaintiff and defendant entered into a valid contract for the sale of the property.
B. Specific Performance
Defendant contends the trial court erred when it ruled that plaintiff was entitled to specific performance. In support of this contention, she argues that plaintiff did not provide any loan documents to prove that she had the resources to purchase the property. “It is well settled that a buyer seeking specific performance of a contract for the sale of realty has the burden of proving that he was able to perform his obligations under the contract.” (Henry v. Sharma (1984) 154 Cal.App.3d 665, 669.) Here, the loan officer from Wells Fargo Home Mortgage testified that plaintiff was pre-approved for $261,000, and that she could have been approved for more. There is also evidence that plaintiff would receive down payment assistance from two governmental programs. This evidence supports the conclusion that plaintiff was able to meet her contractual obligations.
Defendant also contends that the contract could not be specifically enforced because it lacked adequate consideration, it was unconscionable, and it was obtained by misrepresentation, concealment, circumvention, and unfair practices. Defendant points to nothing in the record to support these contentions and, therefore, we reject them.
We similarly reject defendant’s contention that the contract was too uncertain to be specifically enforced because there were several versions of the counteroffer with altered dates and different handwritings. The variations in the several iterations of the document have been adequately explained.
A contract for the sale of real property is not specifically enforceable unless it contains all material terms and expresses each in a reasonably definite manner. (Burr & Ladd, Inc. v. Marlett (1964) 230 Cal.App.2d 468, 473.) The material terms in the contract before us are clearly ascertainable. The only dispute is whether a contract was ever formed, and we have already resolved that issue against defendant.
C. Incidental Damages for Higher Interest Rate
Defendant contends the trial court erred by awarding plaintiff incidental damages in addition to the equitable remedy of specific performance.
Equitable considerations permit the trial court to grant compensation, incidental to specific performance, to the buyer in a specific performance action for increased financing costs caused by the seller’s breach. (Hutton v. Gliksberg (1982) 128 Cal.App.3d 240, 247-252 (Hutton); Stratton v. Tejani (1982) 139 Cal.App.3d 204, 208.) The term “incidental damages” may suggest that a plaintiff has been awarded damages for breach of contract in addition to specific performance. Rogers v. Davis (1994) 28 Cal.App.4th 1215, 1220-1221, clarifies the confusion: “[D]efendants are partly correct when they state that plaintiffs cannot receive both specific performance and damages for breach of contract. . . . [¶] However, plaintiffs may recover both the property itself, through the remedy of specific performance, and additional compensation, sometimes incorrectly referred to as ‘damages,’ when such compensation is necessary to fully vindicate the plaintiffs’ contractual rights.” Thus, where specific performance alone would not fully vindicate a plaintiff’s contractual rights because of an increase in interest rates since the time the defendant should have transferred the property, the court may award additional compensation, incidental to specific performance, for the difference in the cost of the loan. (See Hutton, supra, 128 Cal.App.3d at pp. 250-251.)
We see no error in the award of such incidental damages here. The trial court found that interest rates at the time of trial were higher than at the time when the contract specified performance, resulting in an additional cost of $62,330 for plaintiff to purchase the property. We review the trial court’s finding for substantial evidence. (Crawford, supra, 3 Cal.2d at p. 429; see also TME, supra, 124 Cal.App.4th at p. 1030.) Here, plaintiff testified that the interest rate she had locked in was 4.25 percent, and that the rate had risen at least two points. Frappier, her broker, testified that plaintiff would have received her loan at the interest rate of 4.25 percent in 2004 and that the interest rate had since risen to 6.625 percent. This evidence is sufficient to support the trial court’s finding that plaintiff would suffer increased financing costs as a result of defendant’s breach.
D. Attorney Fees and Costs
Defendant contends plaintiff forfeited her right to contractual attorney fees because she failed to pursue mediation before filing this action, and that therefore the trial court erred when it awarded plaintiff attorney fees and costs.
The attorney fee provision in the contract provides: “In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A.”
Paragraph 17A is the mediation provision, which provides in relevant part: “Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. Paragraphs 17B(2) and (3) below apply whether or not the Arbitration provision is initialed. . . . If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.” Paragraph 17(B)(2) exempts certain actions from the arbitration and mediation provisions, and provides in part: “The filing of a court action to enable the recording of a notice of pending action . . . shall not constitute a waiver of the mediation and arbitration provisions.”
The trial court interpreted this paragraph to mean that “there is no forfeiture of the right to pursue fees if an action is filed to enable the recording of a notice of action pending.” Noting that there was evidence that defendant intended to sell the house to another buyer, and that plaintiff sought to mediate the dispute after the action and the notice of lis pendens were filed, the trial court concluded plaintiff had not forfeited her right to seek attorney fees.
Reviewing the trial court’s interpretation of the contract de novo (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847), we agree that a party who files an action in order to record a lis pendens so as to prevent an impending sale of the property does not waive the right to contractual attorney fees by failing to seek mediation before filing the action. We also agree that the evidence supports the conclusion that plaintiff had to record a notice of lis pendens to prevent defendant from selling the property to the other prospective buyer, and that plaintiff thereafter expressed her willingness to mediate the dispute. In the circumstances, the trial court did not err in awarding plaintiff her attorney fees and costs.
E. Dismissal of Cross-complaint
Finally, defendant contends that the trial court erred in dismissing her cross-complaint. The cross-complaint alleged causes of action for slander of title, intentional infliction of emotional distress, abuse of process, conspiracy, and fraud against plaintiff and Frappier. At the close of defendant’s case-in-chief, plaintiff and Frappier moved for a directed verdict on the cross-complaint. The trial court dismissed the cross-complaint, concluding that defendant had not presented evidence to support any theory of liability and that this was simply a bona fide contract dispute. On appeal, defendant contends that the evidence shows plaintiff filed the complaint and recorded a notice of lis pendens without justification.
Defendant has provided no legal authority to support her contention that her cause of action for slander of title should not have been dismissed. Points not supported by reasoned argument and citations to legal authority will be treated as waived. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) In any case, in light of our conclusion that the trial court did not err in determining defendant was contractually bound to convey the house to plaintiff, there can be no contrary determination that plaintiff was not justified in filing the complaint in this action and recording the notice of lis pendens. Accordingly, we see no abuse of discretion in the trial court’s decision to dismiss defendant’s cross-complaint.
We have no occasion to discuss the applicability of the privilege of Civil Code section 47, subdivision (b), which appears on its face to protect both the complaint and the notice of lis pendens.
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.