Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. GIN016743, Thomas P. Nugent, Judge.
McINTYRE, J.
In what is the third appellate proceeding in this action arising out of the alleged breach of an agreement to make certain improvements on a private road, Gisele Pender appeals a judgment entered in favor of defendants Johannes Karl Notthoff, Norbert Waldenmayer, Harold and Margie Andersen, Harold Andersen, Jr., Georgeanne Andersen, Alan Shada and San Clemente Nurseries (collectively, the Developers) after the court denied her request to have the agreement specifically enforced against them. Pender contends that the trial court (1) erred in concluding that she was not entitled to have a jury empanelled at the trial of her breach of contract claim seeking specific performance to decide an issue of the parties' intent underlying certain contractual language; (2) violated the law of the case as established by the prior decisions of this court; (3) erred in finding that she had not met her burden of establishing her interpretation of the agreement because that finding was not supported by substantial evidence; and (4) erred in ruling on her additional claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The Developers respond that Pender's arguments are without merit and that we should affirm the judgment and remand the matter to permit them to seek recovery of their attorney fees incurred on this appeal. We find Pender's arguments unavailing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
In the late 1980s, the Developers owned separate parcels of land in an unincorporated area of San Diego County (the County) that was adjacent to the City of Vista (the City); they were considering development of their properties into multiple residential lots. Their properties were located along the eastern (or "upper") and middle portions of San Clemente Avenue, an 18- to 20-foot wide private road that dead-ended on its eastern end. San Clemente Avenue was in poor condition and had substantial drainage problems and the Developers were aware that various improvements, including the extension of a City sewer line, improvement of the road and resolution of the drainage issues, would be required as a condition of development. They formed an association for the purpose of facilitating their development goals.
Because the City's zoning laws were more favorable to denser development than the County zoning laws, the Developers petitioned to have their properties, and the other properties on San Clemente Avenue, annexed to the City and to have the City sewer line extended to the area. However, a number of other owners of existing residences on San Clemente Avenue (the Residents) opposed the petition, based on concerns about who would be required to pay for the construction of the extended sewer line and the road improvements and about the possibility of over development of the area, although they were interested in having the City take over responsibility for maintaining the road.
To achieve the level of support required by the City as a condition of granting annexation, the Developers indicated that they would make street improvements to mitigate the increased density that annexation would allow and entered into negotiations with a steering committee informally established by the Residents for that purpose. The steering committee, made up of retired attorney Frank Allen, civil engineer Barry Bender and developer Fred Clayton, undertook responsibility for documenting the terms agreed upon during the discussions. It proposed that the Developers agree to bring San Clemente Avenue up to "City standards for a public street," which the parties understood, under existing standards, would require the road to be paved to a width of 40 feet. (Former Vista Code § 27-1.3.1, subd. (b).) The Developers accepted the steering committee's proposal.
After additional discussions as to certain other terms, the parties entered into a written agreement (the Improvement Agreement) in March 1989 whereby the Developers agreed to make various improvements along San Clemente Avenue, including "[paving] San Clemente Avenue . . . with curbs and gutters to bring it up to [C]ity standards for a public street" and placing the existing utilities underground. (Italics added.) The agreement further provided that the Residents would not be required to reimburse the Developers for the costs of connecting their homes to the City sewer line.
To address the Developers' concern that they should not have to pay for the improvements if the City did not approve their proposed projects, the Improvement Agreement also provided that "[a]ll agreed upon improvements to be made by Developers will take place subsequent to and subject to tentative map approvals and the bonding of final maps [ready] for recordation," but would be "initiated and diligently pursued promptly" thereafter. It further specified that the Residents "may seek to cause future building in the Annexation Area on land other than the 76 acres owned by Developers to be restricted to lots which are a minimum of one acre."
Shortly thereafter, the Developers entered into a letter of understanding as to how the costs of the required improvements were to be split amongst them. The City approved the Developers' sewer reimbursement agreement and initiated annexation proceedings, which, in accordance with their obligations under the Improvement Agreement, the Residents supported.
In 1990, the Developers hired land consultant Brooks Cavanaugh to assist them in their development efforts. In accordance with the then-applicable standards, the Developers' plans provided for the lower portion of San Clemente Avenue to be paved to a 40 foot width, which Cavanaugh estimated at that time would cost approximately $225,000.
In February 1991, the City issued an environmental impact report (EIR) addressing the environmental impacts of the proposed annexation and development. The EIR indicated that the daily traffic volumes from annexation and development would increase from 1,524 to 3,204 average daily trips (ADTs) and concluded that a two-lane residential class street would provide adequate service for the increased traffic, but that the existing roadway was not constructed to design standards. The EIR did not specifically require traffic mitigation, but "recommended" that San Clemente Avenue "be widened to provide a consistent minimum width of 40 feet of improved paved width" to accommodate the increased traffic and provide on-street parking. The City certified the EIR in March 1991 and approved the Developers' tentative maps, conditioned on the paving of the entirety of San Clemente Avenue to a width of 40 feet and the undergrounding of utilities along the roadway. In May 1992, the City approved the annexation.
In March 1993, the Developers discussed the possibility of seeking reimbursements from the City for improvements to the lower portion of San Clemente Avenue, although no further action was taken on the proposal at that time. In early 1994, however, the Developers approached the City about creating an assessment district to facilitate the equitable sharing of the costs for making the required improvements among all of the properties that were being subdivided, or could be subdivided in the future.
The City authorized a feasibility study regarding the creation of such a district. The study concluded that the total costs of the improvements would be $1,735,106. It also set forth the proposed contributions to be made by each of the Developers.
Certain Developers and owners of other nearby properties that were large enough to be subdivided in the future contributed funds or paid for improvements to the upper and middle portions of San Clemente Avenue. A number of them, however, objected to the level of funding specified in the feasibility study for the completion of the improvements to the lower portion of San Clemente Avenue, which did not abut any of their properties. Apparently as a result of these objections, the assessment district was never formed.
In 1995, the City began updating its general plan and formed a task force to discuss and recommend changes to the community identity and scenic roadways element of the City's general plan, with an eye toward "reduc[ing] public improvement standards for new development and redevelopment in semi-rural areas," including "flexibility in street widths . . . . (Pender v. Waldenmayer (Aug. 2, 2005, D044781) [nonpub. opn.] p. 5.) During the work of the task force, 35 streets were suggested for a rural road designation, which would allow the road so designated to be 28 feet rather than 40 feet in width and to have above-ground utilities; San Clemente Avenue was not one of the streets so suggested. The task force published its final report in July 1995, recommending that pavement widths generally be reduced, but not identifying any particular streets for width reduction.
Meanwhile, Notthoff made various proposals in an attempt to keep the development plans moving forward, suggesting that the City allow the Developers to postpone construction of the improvements until after 50 of the homes were built or that the City contribute to the costs of the improvements. Apparently there was no definitive response to Notthoff's proposals, so in 1997 he asked Cavanaugh to seek modifications of the tentative map requirements for improvements on the lower portion of San Clemente Avenue, particularly as to the undergrounding of utilities, to lessen the financial burdens on the Developers. After a number of meetings, discussions and letters between Cavanaugh and the City engineer, the City rejected the Developers' request to eliminate the requirement of undergrounding the utilities on lower San Clemente Avenue, but agreed to provide $125,000 toward the cost of that improvement; City staff also suggested that the Developers might alleviate some expense by seeking approval to improve lower San Clemente Avenue pursuant to a modified rural road standard, which would require them to pave the lower portion of the road to a width of 28 feet rather than 40 feet. (A 40-foot wide road allows for on-street parking while a 28-foot wide road is traffic lanes only.)
Heeding the City's suggestion, Notthoff hired a civil engineering firm to prepare a design sketch of San Clemente Avenue as a 28-foot wide road and submitted a revised tentative map that provided for the paving of the lower portion of San Clemente Avenue to a width of 40 feet unless the City adopted rural road standards, in which case the new standards would apply. Notthoff also went door-to-door to talk to Residents about possible modification of the requirements regarding the width of the street. After a public hearing, the City's planning commission recommended Notthoff's revised tentative map for approval.
The planning commission also considered the task force recommendation that the City adopt a rural road ordinance. Cavanaugh spoke on behalf of the Developers in support of the adoption of the proposed ordinance. Several Residents also supported the rural road ordinance after discovering that widening San Clemente Avenue to a width of 40 feet would adversely impact existing improvements on their properties and would also exacerbate drainage issues on the street.
In August 1999, the planning commission recommended adoption of the rural road ordinance "to establish alternative standards for streets serving rural areas to allow the street improvements to be more visually compatible with surrounding development" and authorizing the City Planner to designate roads that met certain criteria as rural roads. (Pender v. Waldenmayer (Aug. 2, 2005, D044781) [nonpub. opn.] p. 6.)The planning commission subsequently recommended approval of other Developers' revised tentative maps containing conditions similar to those in Notthoff's revised map.
In September 1999, the City adopted a rural road ordinance, specifying that roads designated thereunder were to be paved to a width of 28 feet. Pursuant to the ordinance, the City planner was authorized to designate a particular street as a rural road, provided (1) the street's average daily traffic volume was not projected to exceed 3,000 ADTs; (2) the properties served by the road were designated as low density residential; (3) the street was located in a rural area and the alternative road standards would make the improvements more visually compatible with the surrounding development; and (4) the application of the alternative standards would not create a health or safety hazard.
Shortly thereafter, acting City planner Robin Putnam designated San Clemente Avenue as a rural road. Putnam did not consider the 1991 EIR, which concluded that the increased traffic from the proposed development (3,204 ADTs) exceeded the City's standards for designating a rural road (3,000 ADTs), but conducted her own analysis as to whether San Clemente Avenue could properly be designated as a rural road under the applicable standards. She estimated that the traffic to result from the proposed development, involving the construction of 81 homes on the Developers' properties, would result in 2,388 ADTs; the eight-year-old EIR's higher estimate was based on the assumption that 152 homes would be built on those same properties. (Putnam's estimate turned out to be fairly accurate; a study conducted by the City in 2006 showed that the actual traffic created by the constructed homes, along with the estimated traffic from certain others yet to be built in the area, was 2,402 ADTs.)
The City approved the Developers' revised tentative maps and the Developers proceeded with their development plans. In October 2000, Notthoff sold his property to TRC Corporation, which subsequently assigned its rights to Cypress/Avalon LLC (collectively with its principal, Avalon).
Prepared to proceed, Avalon submitted a final map, which the City accepted in July 2001. It gave the Residents notice that it intended to begin the work to widen the lower segment of San Clemente Avenue to a 28-foot width. In response, certain Residents banded together in an attempt to have Avalon pave the road to a 40-foot width and complete other improvements on lower San Clemente Avenue. Their efforts, however, proved unavailing. The City thereafter approved final maps submitted by other Developers and accepted Avalon's offer to dedicate easements for the lower San Clemente Avenue improvements, including the 28-foot wide road, in 2005.
2. Procedural Background
The following discussion of the procedural background is taken from the prior nonpublished appellate opinions (Pender v. Waldenmayer (Aug. 2, 2005, D044401) [nonpub. opn.] (Pender I); Pender v. Waldenmayer (Aug. 2, 2005, D044781) [nonpub. opn.] (Pender II)), as well as the record of the proceedings after the Pender II remand.
In November 2001 Pender filed this action against the Developers and Avalon, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing and declaratory and injunctive relief. (Pender II at p. 7.) Her complaint alleged that the Developers had failed to pave San Clemente Avenue to a width of 40 feet, place the existing utilities underground, and make other improvements required by the Improvement Agreement. (Ibid.)
In the pretrial proceedings, Notthoff brought a motion to strike a number of Pender's allegations, including allegations that the City "standards at the time provided the street was to be forty feet wide" and that the Developers breached the Improvement Agreement by failing to pave San Clemente Avenue to a 40-foot width, and the court granted his motion. (Pender II at p. 7.) After the court also granted a motion by Avalon for summary judgment, trial proceeded on Pender's claims against the Developers for breach of contract, on the limited theory that the Developers had failed to underground the utilities as required by the Improvement Agreement, and for breach of the implied covenant of good faith and fair dealing, based on the Developers' arrangement with the City to reduce the required width of the road to 28 feet. (Pender I at p. 9; Pender II at pp. 8-9.)
At trial, the court found in the Developers' favor, holding that because they had complied with the conditions for approval of their tentative maps, they did not breach the Improvement Agreement. (Pender II at p. 10.) It entered judgment in the Developers' favor and awarded them attorney fees and costs ($107,027.31 to Notthoff, $88,202.69 to Waldenmayer, and $54,579.97 to the Anderson defendants, San Clemente Nurseries and Shada, collectively). (Ibid.)
Pender separately appealed the judgment in favor of Avalon (Pender I) and the subsequent judgment in favor of the remaining Developers (Pender II). Avalon prevailed on the former appeal and, on remand, the court awarded Avalon its attorney fees and costs. (Pender later agreed to settle with Avalon by paying it $93,436.90.) She fared better in the latter appeal, wherein we concluded that the trial court erred in granting Notthoff's motion to strike, which had the effect of "essentially gutt[ing]" her breach of contract claim; we reversed the judgment in favor of the Developers and remanded the matter for retrial. (Pender II at pp. 10-11, 16.)
On remand, the trial court allowed Pender to file a fourth amended complaint. The pleading continued to assert causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing and sought specific performance as relief thereunder; it added allegations that Notthoff also breached the Improvement Agreement by failing to ensure that the agreement would be binding on Avalon and requested compensatory damages of $93,436.90, the amount she was obligated to pay Avalon.
Prior to retrial, Pender requested that a jury be empanelled to resolve the conflicts in the extrinsic evidence as to the parties' underlying intent regarding the meaning of the "up to [C]ity standards" clause of the Improvement Agreement. The court recognized that Pender would be entitled to a jury trial as to her breach of contract claim against Notthoff, but indicated that its inclination to bifurcate the trial as to that claim and conduct trial without a jury on her other claims, both of which sought specific performance of the Improvement Agreement. Pender responded that she was at least entitled to have an advisory jury empanelled on the equitable claims, but the trial court ultimately rejected her argument.
After a presentation of the evidence and the arguments of counsel, the court issued a statement of decision in which it found that Pender failed to establish, by a preponderance of the evidence, that the parties intended the "up to City standards" language of the Improvement Agreement to refer to those standards in effect at the time the agreement was signed rather than the standards that were in effect when the Developers obtained their tentative maps. It reasoned "[w]hile it may be that the plaintiff assumed that the City standards existing at the time the agreement was entered into would control, the evidence does not permit a finding that such an agreement was reached by the parties. Indeed the evidence supports an opposite conclusion."
The court noted that the terms of the Improvement Agreement were negotiated by sophisticated individuals on both sides, all of who were aware that the City standards were subject to change at any time. It specifically cited the testimony of Fred Clayton, one of the primary negotiators on behalf of the Residents, that the reality was that "you don't get any promises from the City, you just get what is in effect [at the time of the development]" and "that's all you can depend on," as well as similar testimony by the other primary negotiator for the Residents, Barry Bender. The court also pointed out that when specifically asked why, in accordance with the Residents' own proposal, the contract required improvement of the road to "City standards" rather than expressly requiring the Developers to build a 40-foot wide road, Clayton offered no answer. It found significant the evidence showing that a substantial motivation for the Residents' execution of the Improvement Agreement was their collective desire to have the road improved and to have the City take over responsibility for maintaining it thereafter. Finally, the court relied on the contractual requirement that the improvements would be made by the Developers only "subsequent to and subject to tentative map approvals" (language that the Residents drafted) as additional evidence of the parties' intent that the Developers were obligated to improve the road to City standards in effect at the time the Improvement Agreement was signed, regardless of the standards imposed by the City in approving their tentative maps.
After trial, the Developers separately sought to recover their attorney fees incurred in this action. The court granted their motions, awarding attorney fees of $152,635.00 to the Anderson defendants, Shada and San Clemente Nursery, $190,230.30 to Waldenmayer, and $229,808.50 to Notthoff, and entered judgment in their favor. Pender appeals.
DISCUSSION
1. Request to Strike Certain Exhibits
As a preliminary matter, the Developers request that we strike certain exhibits submitted by Pender (nos. 1, 3, 16, 19, 20, 24, 26, 30, 32, 33, 35, 37, 41, 42, 45-47, 49-50, 52-53, 55-57, 61, 63, 67, 70-72, 79, 81-82, 84, 96, 101-102, 109-110, 114-115, 118-119, 124, 135, 138-141, 143, 148-149, 152, 154-156, 161-166, & 170-172) on the ground that none of these exhibits was admitted into evidence at trial or lodged with the trial court for its consideration. Pender responds that (1) exhibit 143 was in fact received into evidence (it was), (2) the California Rules of Court allowed her to submit exhibits that the court refused or that were lodged with the court at trial (see Cal. Rules of Court, rule 8.224(a)(1), (b)(2)), (3) this court should take judicial notice of certain of the exhibits, and (4) her briefs did not cite any exhibits that were not received into evidence or for which judicial notice was not requested below.
Although a number of the Developers' objections are well taken, we had substantially undertaken our review of the record before we received the motion to strike or the opposition thereto. Under these circumstances, and given our ultimate conclusion that substantial evidence in the record, including those exhibits, supports the trial court's finding, we deny the motion to strike as moot.
2. The Denial of Pender's Request for an Advisory Jury
The law is well-established that the right to a jury trial exists in civil actions at law, but not those in equity. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 845, citing C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.) In classifying a given action as legal or equitable, the court looks to its substance, to wit, the nature of the rights at issue and the remedy sought, rather than the label given to it in the complaint. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 845.) Where an action is equitable in nature, the fact that the plaintiff has also requested incidental monetary damages does not convert the action into one at law and thus entitle a party to a jury trial. (Id. at p. 846, & cases cited therein.)
Pender admits that her contract causes of action against all of the Developers seek specific performance rather than compensatory damages and that, as such, those claims are equitable in nature. (See also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1241; Corder v. Corder (2007) 41 Cal.4th 644, 656, fn. 7). She nonetheless contends that she was entitled to a jury trial because the parties submitted conflicting extrinsic evidence as to the meaning of the "City standards" language of the Improvement Agreement.
However, the law is clear that the nature of the action determines whether there is a right to a jury trial. (Crouchman v. Superior Court (1988) 45 Cal.3d 1167, 1175.) In an equitable action, where there is no right to a jury trial, the court rather than a jury sits as the trier of fact, determining the credibility of the witnesses, weighing the evidence and, in this instance, determining the intent of the contracting parties. (See Walton v. Walton (1995) 31 Cal.App.4th 277, 287 [holding that there is no constitutional right to a jury trial in a specific performance action even where there are legal issues regarding the contract sought to be enforced]; Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 285 [same]; Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671 [recognizing that in a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues first, without a jury, and if its determination of those issues is also dispositive of the legal issues, it need not empanel a jury at all].)
Pender cites to De Guere v. Universal City Studios, Inc. (1997) 56 Cal.App.4th 482 as authority for her position that she was entitled to have a jury decide the parties' intent. However, to the extent that that decision can be read as holding that a party is entitled to demand a jury trial in any action, whether legal or equitable, where there is conflicting extrinsic evidence as to the proper interpretation of a contract, we conclude that it is contrary to the law and thus decline to follow it. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 845; generally Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411; compare City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [indicating that the jury in a legal action make findings of fact as to matters on which conflicting extrinsic evidence has been submitted].) We likewise find distinguishable the case Pender cites, for the first time in her reply brief, to the effect that, in an insurer's declaratory relief action against its insured seeking a determination that there is no coverage under the insurance policy, there is a right to a jury trial. (California Casualty Indemnity Exchange v. Frerichs (1999) 74 Cal.App.4th 1446, 1450; see Manneck v. Lawyers Title Ins. Corp. (1994) 28 Cal.App.4th 1294, 1299-1301 [explaining that such a declaratory relief action is a substitute for an action at law for breach of contract].)
Because Pender was not entitled to have a jury trial on her claims seeking specific enforcement of the Improvement Agreement, the court's decision not to empanel a jury in this case was proper.
3. Law of the Case Doctrine
The law of the case doctrine, which is designed to promote judicial economy, generally precludes multiple appellate reviews of the same issue in a single case. (People v. Gray (2005) 37 Cal.4th 168, 196.) "Under the law of the case doctrine, when an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal." (People v. Barragan (2004) 32 Cal.4th 236, 246, citations omitted.)
As its name suggests, the law of the case doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact. (People v. Barragan, supra, 32 Cal.4th at p. 246.) Moreover, it applies "only if the evidence [presented] on retrial or rehearing of an issue is substantially the same as that upon which the [earlier] appellate ruling was based." (Ibid., quoting People v. Mattson (1990) 50 Cal.3d 826, 850; see also Estate of Baird (1924) 193 Cal. 225, 244 [recognizing that the introduction of new evidence that is materially or substantially different than that presented in the earlier proceedings will obviate the application of the doctrine].)
Pender takes issue with a sentence in the court's statement of decision that "nothing in the agreement . . . imposes an affirmative obligation on [the Developers] to do anything more than execute documents" and contends that this finding violates the law of the case as established by language in Pender I and Pender II that the Improvement Agreement obligated the Developers "to make various improvements along San Clemente Avenue[.]" (Pender I at p. 3; Pender II at p. 3.) Pender misconstrues the court's language, however, which addressed her breach of contract cause of action against Notthoff for failing to ensure that Avalon would be bound by the terms of the Improvement Agreement after he sold his property to Avalon. When taken in context, the court's statement does not contradict the quoted language from Pender I and Pender II, neither of which involved any issue about a Developer's obligations under the Improvement Agreement to bind his successors.
Even if the challenged language had related to Pender's claim that the Developers were required to build San Clemente Avenue to a 40-foot width, the law of the case doctrine would be in any event inapplicable since the retrial involved new and substantially different evidence on that issue from what was presented in the proceedings involved in Pender I and Pender II. Pender I involved the granting of summary judgment in Avalon's favor based on the superior court's finding that Notthoff's obligations under the Improvement Agreement did not constitute an equitable servitude and thus was not enforceable against Avalon. (Pender I at pp. 11-13.) Pender II challenged a judgment after a trial that, as a result of the superior court's earlier ruling on a motion to strike allegations that the Developers were required to pave San Clemente Avenue to a 40-foot width, did not include the issue of whether the parties had intended to impose such a requirement. (Pender II at pp. 11, 14.)
The trial on remand from Pender II presented, for the first time, the issue of whether the parties to the Improvement Agreement intended for the Developers to improve San Clemente Avenue in accordance with the City standards for a public road as they existed at the time the agreement was executed. Consequently, that trial involved the presentation of substantial evidence that was not presented either in connection with Avalon's motion for summary judgment or in the first trial relating to whether the Developers had failed to comply with their contractual obligations to underground the utilities and whether they breached the Improvement Agreement by seeking to have the City alter the applicable standards.
In accordance with the authorities cited above, neither the language of Pender I nor that of Pender II was binding on the factual issues raised on the retrial. Consequently, the superior court did not violate the law of the case doctrine by making findings regarding the Developers' obligations, as determined from the evidence of the parties' intent at the time they executed the agreement.
4. Sufficiency of the Evidence
Pender also challenges the sufficiency of the evidence to support a finding that the Improvement Agreement did not obligate the Developers to make San Clemente Avenue 40 feet wide, as required by the City standards in effect at the time the agreement was entered. The Developers preliminarily contend that Pender has waived this issue because her brief largely sets forth evidence favorable to her and ignores the evidence favoring the court's finding.
The Developers are correct that established rules of appellate practice require an appellant who challenges the sufficiency of the evidence to set forth all material evidence on the point rather than merely evidence supporting its view of the case and that an appellant who fails to comply with this rule may be deemed to have waived the alleged deficiencies. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) However, although Pender's description of the evidence in her brief is not entirely forthcoming, we do not find it to be so deficient as to justify a finding of waiver.
In reviewing the merits of Pender's challenge, we must view the evidence in the light most favorable to the judgment and resolve evidentiary conflicts and indulge all reasonable inferences possible to uphold the court's finding. (See generally San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.) Even if circumstantial evidence could reasonably be reconciled with a contrary conclusion, this alone does not warrant interference with the determination of the trier of fact. (People v. Farnam (2002) 28 Cal.4th 107, 143.) Further, uncorroborated testimony of a single witness is sufficient to support a finding, unless that testimony is physically impossible or inherently improbable. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; People v. Scott (1978) 21 Cal.3d 284, 296.) "Testimony is not inherently improbable unless it appears that what was related or described could not have occurred." (People v. Johnson (1960) 187 Cal.App.2d 116, 122.)
Applying these principles, we conclude that the trial court's finding is supported by substantial evidence. As noted by the trial court, the language of the Improvement Agreement itself provided that the Developers were required to bring San Clemente Avenue "up to City standards"; although it could have, the agreement did not specify that the Developers were required to make the road 40 feet in width. As a result of our decision in Pender II, Pender was entitled to offer extrinsic evidence to support her interpretation of the quoted language. (Pender II at p. 14.) This does not mean, however, that the trial court was required to find that evidence credible and its statement of decision makes clear that it in fact found to the contrary.
The court also relied on the provision of the Improvement Agreement specifying that "[a]ll agreed upon improvements to be made by Developers will take place subsequent to and subject to tentative map approvals and the bonding of final maps [ready] for recordation," concluding that this language reflected the parties' recognition that the precise parameters of the Developers' obligations would be determined by the conditions imposed by the City in approving their tentative maps. Further, several witnesses (including steering committee members Allen and Bender) testified that the parties discussed and understood that the standards existing at the time the agreement was entered required the road to be paved to a width of 40 feet, but also understood that the City was not bound by their agreement and could impose whatever conditions it felt were appropriate on the Developers' tentative maps.
Notwithstanding this evidence (which amply supports the court's finding), Pender contends that the court failed to consider relevant evidence, such as the laws in existence at the time the contract was entered, the parties' pre-contracting statements and the parties' subsequent conduct, in interpreting the Improvement Agreement. The record, however, is replete with evidence as to what the City standards were at the time the parties entered into the contract, what various Residents and Developers said leading up to the execution of the contract and what they did after the contract was signed.
Moreover, although these factors are all relevant for consideration in determining what the parties intended at the time they entered into the contract, they are not, as Pender seems to suggest, determinative. For example, although parties to a contract are presumed to have had the existing law in mind at the time of the execution of their agreement (e.g., Swenson v. File (1970) 3 Cal.3d 389, 393), that presumption does not help Pender here because (1) it is duplicative of what the virtually uncontroverted evidence at trial established (i.e., that the parties were aware of the existing City standards at the time they entered into the Improvement Agreement) and (2) it does not answer the question of whether the parties intended those standards to be applicable irrespective of whatever conditions the City might impose on the Developers' tentative maps. Similarly, while the parties' conduct after the agreement was signed clearly shows that they were aware of the standards then applicable, it does not establish the parties' intent.
For the reasons set forth above, we conclude that substantial evidence in the record supports the trial court's determination that the evidence was insufficient to establish, by a preponderance, Pender's interpretation of the contract.
5. Ruling on Pender's Claim for Breach of the Implied Covenant and Prayer for Specific Performance
Finally, Pender argues that the trial court's determination of her first cause of action for breach of contract rendered her remaining claims for breach of the implied covenant and breach of contract against Notthoff "immaterial" and that, accordingly, the court erred in resolving those remaining causes of action in its statement of decision. Frankly, we cannot make heads or tails of this argument. Absent a dismissal of Pender's remaining claims, the court was required to resolve them (see Code Civ. Proc., § 904.1; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497 ["There can be but one final judgment in an action, and that is one that in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy"]); further, as Pender admits in her brief, the court's resolution of the first cause of action based on a finding that the Developers' proffered interpretation of the Improvement Agreement was the one established by the evidence emasculated her remaining claims. The court did not act improperly in addressing and resolving Pender's remaining claims in its statement of decision.
DISPOSITION
The judgment is affirmed. The Developers are entitled to recover their costs on appeal.
WE CONCUR: HUFFMAN, Acting P.J., O'ROURKE, J.