Opinion
B161257.
7-10-2003
DENNIS PAUSTIAN, Plaintiff and Appellant, v. MARCIA PATTERSON, Defendant and Respondent.
Regan Braun Law Office, James J. Regan, and Catherine Starr for Plaintiff and Appellant. Bergkvist, Bergkvist & Carter and Michael Bergkvist for Defendant and Respondent.
Plaintiff Dennis Paustian appeals the judgment entered in favor of defendant Marcia Patterson following a bench trial. Plaintiff sought damages on account of defendants failure to deliver to him a real estate transfer disclosure statement as required by Civil Code section 1102 et seq. in connection with plaintiffs purchase of defendants real property. Because substantial evidence supports the judgment, we affirm.
FACTS
On appeal, we view the facts in the light most favorable to the judgment. In this challenge to the sufficiency of the evidence, our power "begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the [trial courts] determination." (Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873-874, 197 Cal. Rptr. 925.)
We grant plaintiffs motion to augment the record with the deposition testimony of Gerald L. Redmond, the transcript of which was read and considered by the trial court prior to its ruling.
In early 2000, defendant offered for sale a single family residence located in Torrance. The property had previously been used as a rental unit. The last tenants had enclosed a porch with pieces of old plywood; the enclosure contained no windows, electrical wiring or plumbing, and had a large crack down the center where the concrete slab had buckled. It was apparent that this "addition" was not a part of the original structure. The tenants had made other adjustments to the property as well, including knocking out windows and walls. When the tenants vacated, defendant determined that she could not undertake the repairs needed to make the house suitable as a rental property, and so decided to sell it. She was also told by a real estate agent that due to the distressed condition of the property, a buyer would not be able to get conventional financing. Thus, defendant offered to finance the sale.
Defendant sold the house without the aid of a real estate broker. She represented to plaintiff that the property was a "tear down," and testified that plaintiff confirmed that he intended to tear it down. Defendants ex-husband, Bill Orman, showed the property to defendant. He, too, "confirmed the obvious" to plaintiff, explaining that the plumbing was old, the wiring was bad, and the porch would have to be torn down because it was too close to the property line.
Plaintiff agreed to purchase the house for $ 125,000, with defendant financing $ 115,000 of that sum. Plaintiff opened escrow, instructing the escrow officer to include in the escrow instructions both an "as is" clause and a "no termite inspection" clause. Defendant failed to provide plaintiff with the written disclosure statement required by Civil Code section 1102 et seq. The transaction closed in March of 2000.
Over a year later, plaintiff contacted defendant and requested that she provide additional financing to enable him to complete the renovation of the property. Defendant refused.
The renovations have apparently been completed. There was testimony at trial that, with the exception of the bedroom, bathroom and part of the roof, the original house was torn down and a new house built.
Plaintiff sued defendant, alleging that the latters failure to provide the written disclosure statement mandated by the Civil Code caused him damage. Trial was to the court. Defendant acknowledged that she did not provide plaintiff with a written disclosure statement, but maintained that she orally disclosed to plaintiff all of the matters which would have been set forth in a written disclosure, and that plaintiff was therefore not damaged on account of defendants violation of the statutory disclosure requirements.
The trial court entered judgment for defendant, presumably agreeing that, even though defendant failed to deliver the disclosure statement required by the Civil Code, plaintiff suffered no damages as a result of that violation.
DISCUSSION
On appeal, plaintiff argues that he is entitled to judgment against defendant because she violated Civil Code section 1102 et seq., the provisions of which are mandatory. As plaintiff notes, a seller of real property "who willfully or negligently violates or fails to perform any duty prescribed by any provision of this article shall be liable in the amount of actual damages suffered by a transferee." (Civ. Code, § 1102.13.)
There is no doubt that defendant was required to provide plaintiff with the written disclosures mandated in Civil Code section 1102 et seq. The statute itself provides that "the delivery of a real estate transfer disclosure statement may not be waived in an as is sale . . . ." (Civ. Code, § 1102.1, subd. (a).) However, defendant did not claim that the statute did not apply to the sale due to the "as is" clause, nor that the requirement was waived, nor that she satisfied the statute by making an oral rather than a written disclosure. Rather, defendant argued, and the trial court agreed, that plaintiff did not suffer any damages on account of defendants admitted violation of the written disclosure requirement. Simply put, the trial court did not believe plaintiffs testimony that he did not know about the illegal addition when he bought the house. To the contrary, the trial court impliedly found that, even without receiving a written disclosure statement, plaintiff knew of all of the deficiencies in the house before he purchased it, arrived at a suitable purchase price with that knowledge in mind, and intended all along to renovate the property to remedy its multiple defects. Thus, the trial court concluded that the sum which plaintiff spent to improve the property, and which he claimed were his damages, was in fact money that he intended to invest in the property prior to the purchase.
Substantial evidence supports the trial courts judgment. Both defendant and her ex-husband testified that they orally disclosed to plaintiff all of the defects in the property which were subject to written disclosure; that the defects were in any event open and obvious; and that from the outset, plaintiff indicated his intention to tear down the property and rebuild. In fact, he did just that.
Because substantial evidence supports the judgment, we affirm.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P.J., and MOSK, J.