Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. SCV 102214, A. Rex Victor, Judge. Affirmed.
Martin E. Keller for Plaintiffs, Cross-Defendants and Appellants.
Best Best & Krieger, Kira L. Klatchko, Douglas S. Phillips; Klatchko & Klatchko and Philip S. Klatchko for Defendant, Cross-Complainant and Respondent Paul Emerson.
Green & Hall, Brian C. Plante and Karen L. Vander Meer for Defendants and Respondents Perrie A. Mundy and Re/Max Advantage.
OPINION
Ramirez, P.J.
1. Introduction
Alaster Rea and Anita Rea (collectively plaintiffs) and Paul Emerson II entered into a lease agreement with an option to purchase. Perrie Mundy of Re/Max Advantage worked as the real estate agent for both parties. When plaintiffs stopped paying rent after having discovered some problems with the house, Emerson initiated an unlawful detainer proceeding. Plaintiffs never exercised the purchase option. Plaintiffs filed their action against Emerson, Mundy, and Re/Max for various causes of action, including breach of contract, specific performance, and fraud. Defendants filed motions for summary judgment. The court granted the motions for a few reasons, including that plaintiffs could not show that they were entitled to specific performances or damages without having exercised the option to purchase the property.
In challenging the trial court’s rulings, plaintiffs argue that triable issues of material fact existed as to whether defendants had knowledge of the defects and whether they suffered damages as a result of defendants’ conduct. We conclude that, because any remaining factual disputes concerned the option to purchase the property, plaintiffs’ failure to exercise the option was fatal to their case. We affirm the judgment.
2. Factual and Procedural Summary
Plaintiffs hired Mundy, a real estate agent with Re/Max Advantage, to assist in locating a house to purchase. Mundy showed them Emerson’s 5,000 square-foot house at 13139 Oak Crest in Yucaipa. After viewing the property, plaintiffs and Emerson entered into a residential lease agreement with an option to purchase. Plaintiffs agreed to pay $3,000 per month in rent, plus $5,000 for the purchase option. Plaintiffs and Emerson agreed on the purchase price of $449,000 with a $35,000 downpayment. Based on the parties’ agreement, the option expired on October 31, 2001.
Plaintiffs subsequently discovered some problems with the house, including problems with the roof, the plumbing and the heater. After informing Mundy of the problems with the roof and the plumbing, the parties agreed that Emerson would fix the roof, but, otherwise, the property would be sold “as is.” The parties modified their agreement accordingly. Emerson repaired the roof, as agreed.
Despite the problems, plaintiffs still were interested in buying the house. Although the option agreement had expired, plaintiffs continued to discuss with Emerson their efforts to obtain the downpayment from a source in Ireland. According to plaintiffs, Emerson orally agreed to extend the option.
However, after discovering additional problems with the vinyl siding and windows, plaintiffs stopped paying rent. Emerson initiated unlawful detainer proceedings to evict plaintiffs from the property. Up to this point, plaintiffs had not exercised the option to purchase the property.
On March 4, 2004, plaintiffs filed their second amended complaint against Emerson, Mundy, and Re/Max for fraud, negligent misrepresentation, breach of fiduciary duty, breach of written and oral contract, negligence, and specific performance of the option to purchase.
On September 24, 2004, defendants Mundy and Re/Max (hereafter collectively Mundy) filed a motion for summary judgment or, in the alternative, summary adjudication. Defendants argued that Mundy did not have any actual knowledge of the alleged defects and did not make any misrepresentations concerning the condition of the property. In support of their motion for summary judgment, defendants provided Mundy’s declaration. In her declaration, Mundy maintained that she did not tell plaintiffs that the property was in “turnkey” condition, but rather informed them that the property was being sold “as is.” Mundy also explained that she had advised plaintiffs to conduct an inspection and even scheduled three inspection appointments for them, none of which plaintiffs kept.
On January 14, 2005, Emerson also filed a motion for summary judgment or summary adjudication. As did Mundy, Emerson argued that he did not have actual or constructive knowledge of the alleged defects and did not make any misrepresentations concerning the property. He also argued that he had no obligation to perform under the purchase agreement because plaintiffs failed to make their monthly rental payments and failed to exercise the option to purchase the property. Emerson also provided evidence that plaintiffs agreed to purchase the property “as is.”
Plaintiffs filed their opposition to Mundy’s motion for summary judgment on November 30, 2004. Plaintiffs later filed their opposition to Emerson’s motion for summary judgment on March 16, 2005. In both oppositions, plaintiffs argued that there were triable issues of material fact as to each of their causes of action. Plaintiffs specifically argued that defendants failed to disclose the defects with the property and that Emerson had agreed orally to extend the option.
The trial court granted defendants’ motions for summary judgment. The court found that defendants’ evidence established that they made no misrepresentations concerning the condition of the property and, moreover, plaintiffs did not suffer any damages because they did not exercise the option to purchase the property. The trial court awarded Emerson $39,285 in unpaid rents and fees. The court awarded defendants a total of $69,577, which included attorney’s fees and costs.
3. Discussion
Plaintiffs claim that the trial court erred in granting defendants’ motions for summary judgment. They argue that the court erred because there remained triable issues of material fact as to whether Emerson and Mundy knew about the defects in the property and failed to disclose them. Plaintiffs also claim that the trial court erred in finding that their oppositions to defendants’ motions were untimely.
Both Emerson and Mundy preliminary argue that plaintiffs failed to support the claims in their opening brief with adequate citation to the record and relevant legal authority. Mundy also argues that the court properly exercised its discretion in finding that plaintiffs’ oppositional papers were untimely and inadequate. Because plaintiffs failed to file a timely separate statement of disputed facts, Mundy argues that the court properly found that plaintiffs had failed to show any material issue of triable fact. Emerson adds that, even based on the undisputed facts, plaintiffs cannot establish that they were entitled to specific performance or damages.
A. Plaintiffs’ Appellate Brief
Defendants contend that plaintiffs’ brief should be deemed waived because it does not contain references to the record or adequate citations to the relevant legal authority.
It is well established that the appellant bears the burden of affirmatively showing error. The appellant’s statement of facts must include specific citations to the record. (Cal. Rules of Court, rule 8.204(a)(C).) When the appellant fails to provide the required citations, the court may deem the claim waived. (See Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 & fn. 2.) A reviewing court has no obligation to search the record for evidence to support a claim raised by a party whose brief fails to specify the relevant pages of the record. (See Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.)
Furthermore, an appellant must support his or her claim with citations to authority. (See Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.) If a brief does not contain properly supported legal analysis, the reviewing court may deem the argument waived. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) In seeking review before a reviewing court, an appellant must provide both an adequate statement of facts and a proper analysis of the law.
In this case, plaintiffs’ statement of facts makes no reference to the record on appeal. Also, in plaintiffs’ argument, there are three cited cases, all of which provide a general statement concerning the standard of review for an appeal from a judgment granting a motion for summary judgment. There are no other citations to authority to support plaintiffs’ specific arguments. Plaintiffs make some effort to correct these deficiencies in their reply brief by referring broadly to the evidence presented in opposing defendants’ motions for summary judgment. These efforts, however, are inadequate to cure the defects in their opening brief. For this reason alone, we can deem plaintiffs’ arguments waived and affirm the trial court’s judgment. Nonetheless, in the abundance of caution, we will address plaintiffs’ substantive arguments.
B. Plaintiffs’ Opposition and Separate Statement
Plaintiffs argue that the trial court erred in finding that their opposition and supporting papers were untimely and inadequate. Mundy contends that the trial court properly found that plaintiffs’ oppositions suffered from a number of procedural deficiencies.
During the hearing on defendants’ motions for summary judgment on March 30, 2005, the trial court made the following comments concerning plaintiffs’ opposition to Mundy’s motion:
“I think it needs to be pointed out that the opposition is deficient in many aspects. First, it was filed late. Second, there is no separate statement of disputed[/]undisputed facts in support of the opposition. [¶] . . . [¶] Also there is no evidence submitted to establish a triable issue of fact. . . . [¶] Also, there’s no memo of points and authorities that’s been submitted.”
Code of Civil Procedure section 437c sets forth a list of procedural requirements. “Any opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(2).) The statute also provides that, “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).) The court’s determination as to the appropriate remedy for a parties’ noncompliance with the statute is discretionary. (See Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 258; see also Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 259.)
Mundy filed her motion for summary judgment on September 24, 2004. The court set the hearing for Mundy’s motion on December 9, 2004. Plaintiffs filed their opposition to Mundy’s motion on November 30, 2004, after the 14-day deadline. With their opposition, plaintiffs filed a “response to the statement of undisputed facts propounded by defendants Perrie Mundy and Re/Max Advantage.” On December 3, 2004, Mundy notified the court that she had not received plaintiffs’ opposition. The hearing on Mundy’s motion was continued to February 22, 2005. On February 15, 2005, Mundy again notified the court that she had not received plaintiffs’ opposition. On February 18, 2005, plaintiffs filed a “supplemental opposition.” On the court’s own motion, the hearing for Mundy’s motion was continued to March 30, 2005, which also was the date set for the hearing on Emerson’s motion.
At the hearing on March 30, 2005, it appears that the court’s initial comments were based on plaintiffs’ supplemental opposition. As noted by the court, the supplemental opposition included only a declaration from plaintiffs’ counsel and an excerpt from Mundy’s deposition testimony. We note, however, that the court told plaintiffs that it also reviewed the earlier opposition filed on November 30, 2004.
Plaintiffs’ opposition filed on November 30, 2004, was late, in light of the original hearing date on December 9, 2004. The accompanying papers also were inadequate, but possibly not as inadequate as the court initially thought. Plaintiffs’ “points and authorities” consists of objections to Mundy’s declaration and a list of triable issues of fact, without any citations or legal analysis. It is, however, accompanied by plaintiffs’ declarations and copies of the contracts. Although the trial court found that plaintiffs failed to submit a separate statement of disputed facts, it appears that plaintiffs filed their separate statement with their opposition on November 30, 2004. Plaintiffs responded to Mundy’s separate statement of undisputed facts, placing most of the facts in dispute. The trial court, therefore, was wrong in its initial assessment that the facts presented by Mundy were undisputed.
Mundy contends that the trial court’s ruling was proper because plaintiffs’ failed to submit any affidavits in support of their causes of action. There is no indication in the record, however, that the trial court rejected plaintiffs’ initial opposition and supporting affidavits. While plaintiffs’ opposition was untimely, their points and authorities poorly drafted, and their supporting evidence scanty, the record nevertheless shows that plaintiffs’ response was sufficient to place certain factual issues in dispute, including whether defendants misrepresented the condition of the property before the parties entered their agreement.
C. Triable Issue of Material Fact
The pivotal question in this case is whether these disputed factual issues were material—i.e., whether they prevented defendants from showing that they were entitled to judgment on each of plaintiffs’ causes of action as a matter of law. Emerson argues that the disputed facts were immaterial and that the undisputed facts conclusively established that plaintiffs were not entitled to specific performance or damages. We agree.
In reviewing a ruling granting summary judgment, we independently review the record to determine whether there is any triable issue of material fact. (Code Civ. Proc., § 473c, subd. (c).) Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) In making this determination, we apply the same three-part analysis as applied by the trial court: first, we identify the issues as framed by the pleadings; second, we determine whether defendants have shown that plaintiffs cannot establish a prima facie case; and, third, if defendants are successful, we consider whether plaintiffs have shown the existence of a triable issue of material fact. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274; Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048-1049.)
In their second amended complaint, plaintiffs sued defendants for fraud, negligent misrepresentation, breach of fiduciary duty, breach of written contract, breach of oral agreement, negligence, and specific performance under the option contract. The fraud, negligent misrepresentation, breach of fiduciary duty, negligence, and breach of oral agreement causes of action are based on defendants’ alleged misrepresentation or concealment concerning the condition of the property. In their breach of written contract claim, plaintiffs alleged that Emerson failed to repair the roof adequately. In seeking specific performance, plaintiffs alleged that the parties had an oral agreement to extend the option for a year. Plaintiffs also alleged that they did not exercise the option because Emerson failed to make the repairs. Plaintiff sought specific performance of the option to purchase the property and $38,000 in damages.
As noted by defendants, the undisputed evidence showed that plaintiffs could not establish that they suffered any damages or were entitled to specific performance. What plaintiffs fail to realize is that any misrepresentation or concealment concerning the condition of the property was relevant only if plaintiffs were buyers and not renters. (See Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1077.) Buyers and renters have different property interests and rights. (See, e.g., Sixta v. Ochsner (1960) 187 Cal.App.2d 485, 492.) The undisputed evidence conclusively showed that plaintiffs never took steps to change their status from renters to buyers. Plaintiffs admit that they failed to exercise the option to purchase the property. An option contract is not a contract to buy the property, but only a contract for the right to buy the property. (See Allen v. Smith (2002) 94 Cal.App.4th 1270, 1279; Wilson v. Ward (1957) 155 Cal.App.2d 390, 394.) According to the parties’ written agreement, the option expired on October 31, 2001. Because plaintiffs did not exercise their option to buy the property, they cannot complain that they were deceived concerning the condition of the property.
Also, although plaintiffs alleged that Emerson had agreed to a one-year extension, they failed to produce any evidence to support their allegation. Plaintiffs’ evidence showed only that they still were interested in purchasing the property and that they had conversations with Emerson about their interest. There is no evidence, however, that the parties modified their written contract or that Emerson orally agreed to a one-year extension. During her deposition testimony, Anita Rea explained, “I believe that so long as we were paying the mortgage for Mr. Emerson that as soon as we had the money to exercise the option, we would do so.” According to Anita Rea, there was no other time limit.
Even if there was an oral agreement to extend the option, the undisputed evidence showed that plaintiffs stopped paying rent in 2002. Although they owed $3,000 per month for rent on Emerson’s 5,000 square foot home, they claimed that they withheld rent because of the unresolved repair issues. The record shows, however, that plaintiffs paid only about $300 to repair a window and a $1,500 deposit to repair the vinyl siding. The siding had blown off during a windstorm in the winter of 2002. Some of the repairs were not made. But the problems did not affect the desirability of the house. Plaintiffs lived in the house from March 2001 until they were evicted in April 2003. Plaintiffs paid only about $43,000 of the $75,000 owed in rent during this time. Therefore, even if the option contract was contingent upon plaintiffs’ continued rent payments, the option terminated when plaintiffs decided to stop paying rent.
We conclude that the trial court properly found that plaintiffs failed to show any triable issue of material fact. Plaintiffs’ causes of action under contract and tort theories rely on the premise that defendants deceived them into purchasing a home with defects. Because the undisputed facts show that plaintiffs never exercised the option to purchase the property, they were not entitled to specific performance. Likewise, because the undisputed facts show that plaintiffs were merely renters, and even renters who were delinquent in their rent payments, they could not show that they suffered any damages as a result of any intentional or negligent conduct by defendants. For this reason, the trial court properly granted defendants’ motions for summary judgment.
4. Disposition
We affirm the trial court’s judgment. Defendants shall recover their costs on appeal.
We concur: McKinster, J., Miller, J.