Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and a post judgment order of the Superior Court of San Diego County, Ct. No. GIN035452, Michael B. Orfield, Judge. Reversed in part, affirmed in part. Super.
NARES, J.
This action involves a dispute between Hampton Realty and Mortgage (Hampton), a real estate brokerage business, and Thomas Krouse (Thomas) and Yelena Klinova (Yelena) (together the Krouses), who hired Hampton to help them sell their home, regarding (1) whether the Krouses breached the parties' exclusive right-to-sell residential listing agreement (listing agreement), and whether the Krouses were obligated to pay a $37,250 broker's commission to Hampton after the Krouses rejected a $745,000 full price offer to purchase their residential property that included terms not listed in or authorized by the listing agreement and then withdrew the property from the market; (2) whether Hampton fraudulently induced the Krouses to enter into the listing agreement through so-called "Easy Exit" representations in a marketing brochure, which were not incorporated in the integrated listing agreement, and that the Krouses could cancel that agreement at any time and for any reason; and (3) whether Hampton defrauded the Krouses by allegedly promising to list the property at a price above fair market value, but listing the property at a lower price, based on Hampton's opinion of the value of the property, for the purpose of making a quick sale to easily earn the commission.
The use of first names is solely for the purpose of clarity.
Hampton filed a complaint against the Krouses alleging causes of action for breach of the listing agreement, breach of the implied covenant of good faith and fair dealing, and declaratory relief. In their cross-complaint against Hampton, the Krouses alleged causes of action for intentional misrepresentation and for unfair business practices in violation of Business and Professions Code section 17200.
Hampton's complaint also alleged causes of action for bad faith breach of the listing agreement and constructive fraud, which are not at issue in this appeal and shall not be further discussed.
Hampton's causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing, and the Krouses' intentional misrepresentation cause of action, were the subjects of a jury trial. The court granted Hampton's motion in limine to exclude evidence of the Easy Exit provisions of Hampton's marketing brochure on the ground those provisions contradicted the terms of the listing agreement, and thus the parol evidence rule barred evidence of those provisions. The jury found in special verdicts that the Krouses breached the listing agreement, and awarded Hampton damages in the amount of $9,500. The jury also found that the Krouses did not breach the implied covenant of good faith and fair dealing, and that Hampton did not make a false representation of an important fact.
Hampton's declaratory relief claim and the Krouses' unfair business practices cross-claim were the subjects of a later bench proceeding. The court issued a written decision finding (1) against Hampton and in favor of the Krouses on Hampton's claim for declaratory relief, in which Hampton had sought a determination that the Krouses owed it a broker's commission in the amount of $37,250 under the listing agreement; and (2) against the Krouses and in favor of Hampton on the Krouses' unfair business practices cross-claim. Later the court denied the Krouses' new trial motion and awarded Hampton reasonable attorney fees and costs in an amount exceeding $73,000.
The Krouses appeal the judgment and the denial of their new trial motion, contending (1) the court prejudicially erred in granting Hampton's motion in limine to exclude evidence of the Easy Exit provisions of Hampton's marketing brochure; (2) substantial evidence did not support the jury's finding that the Krouses breached the listing agreement; and (3) the court improperly denied their new trial motion because the jury verdict was contrary to law and inconsistent both with itself and with the court's subsequent ruling on Hampton's declaratory relief claim. In its respondent's brief, Hampton asserts (among other things) that all three of the Krouses' contentions fail because the Krouses did not provide a complete reporter's transcript of the trial, and thus the record is inadequate to show prejudicial error.
We conclude that the partial record is adequate for purposes of this appeal, the court properly determined that the parol evidence rule barred evidence of the Easy Exit provisions of Hampton's marketing brochure, and the court did not err in denying the Krouses' new trial motion. We also conclude, however, that although substantial evidence supports the jury's special verdict finding that the Krouses breached the listing agreement, the $9,500 damages award in favor of Hampton must be reversed because that award is unsupported by evidence and is thus speculative. Because Hampton did not prevail on any of the three causes of action alleged in its complaint, and the Krouses did not prevail on either of the causes of action alleged in their cross-complaint, we further conclude there was no prevailing party in this case and thus the award of attorney fees and costs in favor of Hampton must also be reversed.
In their appellants' opening brief, the Krouses provide a statement of facts that relies in part on Yelena's trial testimony. Although the Krouses have provided a reporter's transcript of Yelena's trial testimony on direct examination, they have not provided a transcript of her testimony on cross- or redirect examination. Hampton has chosen to not provide its own summary of significant facts and does not specifically challenge any portion of the statement of facts provided in the Krouses' opening brief.
A. Initial Meeting
In 2003 the Krouses considered selling their home in Carlsbad. In July of that year Anna Calderon, a licensed real estate agent who works for Hampton, first met with the Krouses at their home to talk to them about entering into a listing agreement with Hampton. Calderon spent about half an hour with the Krouses talking about what Hampton could do for them, the amount of the commission they would be charged, and what kind of marketing campaign she would have. She also provided to them certain real estate forms, as well as marketing materials that were designed to encourage potential clients to hire Hampton.
1. Easy Exit provisions of Hampton's marketing brochure
One of the marketing documents that Calderon gave to the Krouses at that initial meeting was a 12-page brochure titled "FOR YOUR INFORMATION" (hereafter alternatively referred to as Hampton's marketing brochure or Hampton's brochure), the cover of which included Hampton's name and logo. That brochure came from Stewart Schwarz, a real estate broker who owned Hampton. It contained information about Hampton, what sellers should expect when selling their homes and how they should prepare their homes for sale.
Hampton's marketing brochure also contained representations that Hampton offered an Easy Exit listing agreement that its clients could easily cancel if they were dissatisfied with Hampton's marketing efforts. One page was titled "How to Avoid Tying Yourself Up With a 3-6 Month Listing, An Easy Exit Listing Puts YOU in Control!" (Italics added.) This page, under the heading "NEW PROGRAM," explained, "Now the risk and anxiety associated with listing your home can be eliminated, thanks to my Easy Exit listing. [¶] The Easy Exit listing allows you to cancel your listing at any time, for any reason. If at any time you are not 100% satisfied with my marketing effort, you can exit from the listing just by calling me on the phone or sending me a letter. No hassle. No questions asked. [¶] WARNING: If you decide to list your home with a real estate company, don't be tied up by a listing without specific, written, verifiable performance guarantees and an Easy Exit listing." (Italics added.)
Another portion of Hampton's brochure was titled "Special Report: The Nine Most Deadly Mistakes You Can Make When Selling Your Home." Under the subheading "Deadly Mistake #5[:] Signing A Long-Term Listing Without A Written, Specific, Performance Guaranty," this portion of Hampton's brochure stated in part: "Always protect yourself by making sure that you receive a written promise stating that you can cancel the listing, without charge, if specific written performance details are not adhered to by the broker. [¶] . . . Always protect yourself by getting a guaranty of specific performance with the right to cancel. I offer what I call an 'Easy Exit' listing agreement, which gives you the right to cancel any time, for any reason whatsoever. That's how sure I am that you'll always be ecstatically happy with my services." (Italics added.)
Calderon told the Krouses that she and Schwarz worked as a team and that, as her broker, Schwarz always reviewed everything she prepared for the clients. The Krouses were the first clients with whom she had signed a listing agreement as the listing agent. She told the Krouses that Schwarz had been a real estate broker for 20 years. She suggested that they get an appraisal of their home to help them determine its value. The Krouses did not want to pay for an appraisal and thus did not get one before they signed the listing agreement.
At this meeting, Calderon also asked the Krouses what they would do if the house sold right away. She testified that the Krouses never told her they wanted an escrow as long as 120 days, and they never discussed listing the property at a premium of $50,000 over its fair market value. During her testimony on direct examination, Yelena testified there was a discussion about selling the house at a premium before she and Thomas signed the listing agreement.
After this initial meeting with Calderon, the Krouses reviewed and discussed the materials that she had left with them, including the Easy Exit provisions in Hampton's marketing brochure.
B. Listing Agreement
On August 5, 2003, Calderon again met with the Krouses. Calderon told them she thought their home was worth between $680,000 and $700,000. The Krouses told Calderon they wanted to list the property at between $735,000 and $745,000. Hampton and the Krouses executed a standard form exclusive right-to-sell listing agreement—titled "RESIDENTIAL LISTING AGREEMENT (Exclusive Authorization and Right to Sell"—and Hampton listed the property that same day.
Paragraph 1 ("EXCLUSIVE RIGHT TO SELL") of the listing agreement provided that the Krouses employed Hampton for the listing period beginning on August 5, 2003, and ending on January 4, 2004, and granted it "the exclusive and irrevocable right to sell" the Krouses' property. (Italics added.)
In paragraph 3.A. of the listing agreement, the price of the Krouses' property was listed as "between $735,000 and $745,000." In paragraph 3.B., titled "Additional Terms," two blank lines were provided for the insertion of any additional listing terms. No such terms were inserted and the lines were left blank.
The provisions governing Hampton's compensation were set forth in paragraph 4 ("COMPENSATION TO BROKER"). Paragraph 4 provides: "A. Seller agrees to pay Broker as compensation for services irrespective of agency relationship(s) [5 percent] as follows: [¶] (1) If Broker, Seller, cooperating broker, or any other person procures a buyer[] who offers to purchase the Property on the above price and terms, or on any price and terms acceptable to Seller during the Listing Period, or any extension." (Italics added.)
Paragraph 4.A. (3) provided that the Krouses agreed to pay Hampton the specified 5 percent commission "[i]f, without Broker's prior written consent, the Property is withdrawn from sale . . . or made unmarketable by a voluntary act of Seller during the Listing Period, or any extension." (Italics added.)
Paragraph 15 of the listing agreement contained the following attorney fee provision: "In any action . . . between Seller and Broker regarding the obligation to pay compensation under this agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker . . . ." Paragraph 16 ("ADDITIONAL TERMS") provided: "Admin. Fee/Transaction coordinator $200.00 non-refundable except if contract expires."
Of additional importance to this appeal is the integration clause set forth above the signature lines in paragraph 20. It provided in part that the listing agreement "constitutes the entire contract and a complete and exclusive expression of their agreement, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement."
C. Offers To Purchase the Krouses' Home
On September 9, 2003, an offer was made to purchase the Krouses' property for the price of $670,000. Thomas did not want to look at or counter it because the price offered was less than what he was looking for. The house was shown for the first time the next day, September 10, and two people saw the house on that date.
The next day, September 11, 2003, Calderon received a faxed full price acceptance of the Krouses' offer to sell from Christopher Gould (Gould's acceptance), agreeing to purchase the Krouses' home for the full asking price of $745,000. Gould's full price acceptance contained numerous additional terms. For example, paragraph 2.J. contained an appraisal contingency and provided: "This Agreement is (OR, if checked □ is NOT) contingent upon the Property appraising at no less than the specified purchase price. . . ." The appraisal contingency meant that Gould's acceptance was contingent upon a bank determining that the offer was fair given the value of the property. Gould's acceptance also asked for a 30-day escrow, and requested the Krouses to assume various costs, such as the cost "not to exceed $425.00 of a one-year home warranty plan . . . with the following optional coverage: upgrades A/C & washer/dryer." By its express terms, Gould's acceptance would expire that evening at 7:00 p.m.
At around 5:30 p.m. that same day, September 11, Calderon and Schwarz met with the Krouses at their home to discuss the terms of Gould's acceptance, and Schwarz urged them to respond to it. At trial, Calderon could not remember whether one of the questions discussed was whether the house had been listed at the appropriate price. Thomas told Calderon and Schwarz he needed to get an appraisal before he could respond to Gould's acceptance. Calderon and Thomas discussed the length of escrow. When Thomas said he would need at least a 90-day escrow, Calderon advised him that such an escrow would not be in his best interest because the buyer was relocating and needed to buy a house right away, and a 90-day escrow would not work for him. Thomas also had questions about various paragraphs in Gould's acceptance. Thomas was concerned about the appraisal contingency and discussed it with Calderon and Schwarz. Schwarz told Thomas he could eliminate the appraisal contingency in a counteroffer. They discussed the costs involved in Gould's acceptance. Calderon testified that she and Schwarz left a blank counteroffer form with Thomas, who said he would be able to counter Gould's acceptance the next day after he received an appraisal. Calderon told Thomas he had an obligation to answer a full price offer from a qualified buyer. Schwarz was very frustrated. When asked at trial what he had learned as to why Thomas did not want to "put it back in the court of the buyer," Schwarz testified that "something came up about an appraisal," and he felt that Thomas was waiting to get an appraisal. Schwarz stated he told Thomas, "Okay, you can do that but at least, if you counter, you're keeping your dialogue going until you get this appraisal." Thomas left at around 7:00 p.m. to go to a meeting. At trial, Calderon denied hearing Schwarz say to Thomas, "You accept this offer or I'm going to sue you."
The next day, September 12, Calderon received an e-mail from Thomas in which he asked her five questions, including whether a seller has the right to change the listing price of the property. In his e-mail response, Schwarz stated: " 'Yes. However, if there is a full[ ]price offer presented prior to any price change, the seller is contractually obligated to perform under the prevailing price per the M[ultiple Listing Service] listing.' " Schwarz also wrote: " 'The fact that you are getting an appraisal is not relevant to your contractual obligations. If you fail to perform under the terms of the listing agreement between you and Hampton, Hampton will exercise its rights, as spelled out in the agreement.' "
1. The Krouses' withdrawal of the property from sale
At some point in time, Thomas's attorney told Calderon that she was not to contact Thomas, and she should speak with the attorney. Thereafter, Calderon received a fax from Thomas requesting cancellation of the listing agreement pursuant to the Easy Exit, and Schwarz told Calderon that Hampton was not going to honor the cancellation request because the Easy Exit was not part of the listing agreement. Hampton received a $200 check from the Krouses, which Hampton returned to them.
PROCEDURAL BACKGROUND
A. Hampton's Complaint
In February 2004 Hampton brought suit against the Krouses to recover a 5 percent commission in the amount of $37,250 for the sale of the property to Gould that was never completed. In its complaint against the Krouses, Hampton alleged causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief. Specifically, Hampton alleged that the Krouses breached the listing agreement and acted in bad faith by failing to respond to Gould's $745,000 full price offer, and, without Hampton's consent, withdrawing the property from sale and making it unmarketable by their voluntary conduct during the listing period. In its declaratory relief claim, Hampton sought a determination that the Krouses were obligated to pay Hampton the $37,250 commission under the terms of the listing agreement.
B. The Krouses' Cross-complaint
The Krouses thereafter filed a cross-complaint against Hampton, alleging causes of action for intentional misrepresentation and for unfair business practices in violation of Business and Professions Code section 17200.
C. Hampton's Motion in Limine No. 1
In a pretrial hearing, the court granted Hampton's motion in limine No. 1, in which Hampton sought an order excluding evidence of the Easy Exit provisions of Hampton's marketing brochure on the ground those provisions contradicted the terms of the listing agreement, and thus the parol evidence rule barred evidence of those provisions.
D. Jury Trial and Verdicts
In January 2006, a five-day jury trial was held on Hampton's causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing, and on the Krouses' intentional misrepresentation cause of action. The jury found in a special verdict that the Krouses breached the listing agreement and awarded Hampton damages in the amount of $9,500. The jury also found in special verdicts that the Krouses did not breach the implied covenant of good faith and fair dealing and that Hampton did not make a false representation of an important fact.
E. Bench Proceeding and Decision on Hampton's Declaratory Relief Claim
The court thereafter conducted a non jury proceeding on Hampton's declaratory relief claim and the Krouses' unfair business practices cross-claim. In March 2006, after taking the matter under submission, the court issued a written decision finding (1) against Hampton and in favor of the Krouses on Hampton's claim for declaratory relief, in which (as already discussed) Hampton had sought a determination that the Krouses owed it a broker's commission in the amount of $37,250 under the listing agreement; and (2) against the Krouses and in favor of Hampton on the Krouses' unfair business practices cross-claim.
F. Judgment
In April 2006, the court entered judgment in this matter. The judgment expressly incorporated the jury's special verdicts in favor of Hampton on its breach of contract claim, in favor of the Krouses on Hampton's claim for breach of the implied covenant of good faith and fair dealing, and in favor of Hampton on the Krouses' cross-claim for intentional misrepresentation. It also included the court's finding against Hampton on its declaratory relief claim, and the court's finding in favor of Hampton on the Krouses' statutory unfair business practices cross-claim. The judgment included the jury's award of damages in favor of Hampton in the amount of $9,500 and an order awarding attorney fees and costs to Hampton.
G. Denial of the Krouses' New Trial Motion
In May 2006 the Krouses brought a motion for new trial (discussed post). Following a hearing, the court issued a written ruling on the Krouses' new trial motion, stating simply that the motion was denied. The court's written order also granted Hampton's motion for attorney fees and awarded it fees in the amount of $66,172.51 plus costs in the amount of $7,849.57. This appeal followed.
DISCUSSION
I. PAROL EVIDENCE RULE: HAMPTON REALTY'S MOTION IN LIMINE NO. 1
Citing Code of Civil Procedure 1856, subdivision (g) (discussed post) for the proposition that the parol evidence rule does not exclude evidence of fraud, the Krouses contend the court prejudicially erred in granting Hampton's motion in limine No. 1 to exclude evidence of the Easy Exit provisions of Hampton's marketing brochure because the court's ruling precluded them from fully asserting their defense of fraudulent inducement "while at the same time inhibiting the counterclaims [they] asserted against [Hampton]." We conclude the court properly granted Hampton's motion in limine No. 1.
A. Background
When the Krouses successfully moved the court for leave to file their cross-complaint to allege against Hampton causes of action for intentional misrepresentation and unfair business practices, they indicated that they sought to prove at trial—as an affirmative defense to Hampton's claims against them and in support of their cross-claims against Hampton—that Hampton had used the Easy Exit provisions of its marketing brochure in a " 'bait and switch' " tactic to fraudulently induce them to enter into the listing agreement by falsely representing in that brochure that they would have the right to cancel the listing agreement at any time for any reason. We begin with an overview of the Easy Exit provisions of Hampton's marketing brochure.
In its pretrial motion in limine No. 1, Hampton sought to exclude any reference to or evidence of "statements, writings, advertising/marketing literature, or other evidence which directly contradicts the language in the [listing agreement] on the grounds that all references to such statements or writings . . . will violate the Parol Evidence rule." Pointing out that the listing agreement contained an integration clause indicating the parties' intent that the listing agreement encompass their entire agreement and noting that the Krouses had cancelled the listing agreement on the basis of the Easy Exit provisions of Hampton's brochure one week after Gould made his full price offer to purchase the Krouses' property, Hampton argued that the terms of the listing agreement prohibited parol evidence of contrary terms.
In their written opposition to Hampton's in limine motion, the Krouses cited Code of Civil Procedure section 1856, subdivision (g) in arguing that although extrinsic evidence is generally not admissible to contradict or vary terms of a contract where an integration clause is present, under California law "extrinsic evidence is always admissible to prove that a party's consent to a contract was had through fraud." At the hearing on the motion, the court reviewed the relevant case law and the provisions of Code of Civil Procedure section 1856, subdivision (g), and found that the statute "is a generic statement about the use of parol evidence when it comes to fraud. The case law has been more specific. And it said, when it comes to fraud, the parol evidence rule can be utilized except in those situations where the fraud claimed goes contrary to an express term in the contract." The court then granted Hampton's motion in limine No. 1.
B. Analysis
Witkin explains that "[t]he parol evidence rule, with certain exceptions, prohibits the introduction of any extrinsic evidence (oral or written) to vary or add to the terms of an integrated written instrument . . . ." (2 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence, § 59, p. 179.) Witkin also explains that "[a] writing is an integration when the parties manifest or express their intention that it shall be a final statement of their agreement." (Id., § 68, p. 187.) "The integration doctrine, which brings the parol evidence rule into operation, raises a question of law for the judge, not a question of fact for the jury." (Id. at p. 188.)
The parol evidence rule is codified in Code of Civil Procedure section 1856, subdivision (a). (2 Witkin, Cal. Evidence, supra, § 61, p. 181.) That subdivision provides: "Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement."
A fraud exception to the parol evidence rule is codified in Code of Civil Procedure section 1856, subdivision (g). (See generally 2 Witkin, Cal. Evidence, supra, §§ 97-98, pp. 218-219.) Subdivision (g) of section 1856 provides: "This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in [Code of Civil Procedure] Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud." (Italics added.)
Code of Civil Procedure section 1860 provides: "For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the Judge be placed in the position of those whose language he is to interpret."
The scope and meaning of the fraud exception to the parol evidence rule has been addressed and decided by the courts in California. In Coast Bank v. Holmes (1971) 19 Cal. App.3d 581, 591 (Holmes), the Court of Appeal explained that "in California a tenuous distinction has been drawn between an oral promise which is consistent with the written agreement and one which is at variance with a matter covered by the writing." Citing Bank of America v. Pendergrass (1935) 4 Cal.2d 258, 263 (Pendergrass) (among other authorities), the Holmes court stated that "[e]vidence of a false promise inconsistent or at variance with the terms of the written agreement has been held to be inadmissible as being in violation of the parol evidence rule." (Holmes, supra, 19 Cal. App.3d at p. 591, italics added.) The Supreme Court in Pendergrass explained that "[o]ur conception of the rule which permits parol evidence of fraud to establish the invalidity of the instrument is that it must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing." (Pendergrass, supra, 4 Cal.2d at p. 263, italics added; see also Wang v. Massey Chevrolet (2002) 97 Cal. App.4th 856, 873 ["Under the Pendergrass rule, the fraud exception to the parol evidence rule does not apply where parol evidence is offered to show a fraudulent promise ' "directly at variance with the promise of the writing" ' "]; 2 Witkin, Cal. Evidence, supra, § 98, p. 219 [citing Pendergrass for the proposition that "a plaintiff who attempts to show a false promise with respect to a matter covered by the main agreement contradicts the terms of the agreement in direct violation of the rule, and this cannot be permitted"].)
Citing Simmons v. Cal. Institute of Technology (1949) 34 Cal.2d 264 (Simmons), the Holmes court also explained "a false promise which is independent of or consistent with matters covered by the agreement has been held to be admissible." (Holmes, supra, 19 Cal. App.3d at p. 591, italics added.) In Simmons, the Supreme Court stated that "[i]t is clear that 'where the execution of a contract has been induced by a promise made without any intention of performing it, this constitutes such fraud in obtaining the contract that it may be declared null and void' but that 'a distinction must be made between . . . a parol promise . . ., which by its very nature is superseded by the final writing, inconsistent with it, and a promise made with no intention of performing the same, not inconsistent with the writing, but which was the inducing cause thereof.' " (Simmons, supra, 34 Cal.2d at p. 274.)
The Holmes court observed that the Pendergrass rule excluding evidence of a false oral promise that is inconsistent or at variance with the terms of a written agreement to prove fraud has been "severely" criticized on the ground that "it is inconsistent to have a rule that promissory fraud may invalidate an agreement but exclude proof of such fraud when the false promise is at variance with the terms of the writing." (See Holmes, supra, 19 Cal. App.3d at p. 591.) However, the California Supreme Court has not overturned its prior decisions in Pendergrass, supra, 4 Cal.2d 258, and Simmons, supra, 34 Cal.2d 264, which govern the issue presented in the instant appeal.
Here, it is undisputed that the listing agreement is an integration. Paragraph 20 (titled "ENTIRE CONTRACT") of that agreement is an integration clause, which provides: "All prior discussions, negotiations and agreements between the parties concerning the subject matter of this agreement are superseded by this agreement, which constitutes the entire contract and a complete and exclusive expression of their agreement, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. . . ."
Because the listing agreement signed by the Krouses is an integrated agreement, evidence of the Easy Exit promises or provisions in Hampton's marketing brochure was inadmissible by operation of the parol evidence rule to the extent those promises or provisions were inconsistent and at variance with the language in the integration clause stating that the listing agreement "constitutes the entire contract and a complete and exclusive expression of their agreement." As already discussed, one of the provisions of Hampton's brochure stated, "I offer what I call an 'Easy Exit' listing agreement, which gives you the right to cancel any time, for any reason whatsoever." That provision of the brochure, however, is inconsistent and directly at variance with the provisions of paragraph 4.A. (3) of the listing agreement, which obligated the Krouses, as the sellers, to pay Hampton the specified 5 percent commission in the event the property was withdrawn from sale without Hampton's prior written consent during the listing period.
For the foregoing reasons, we conclude the court properly ruled that the parol evidence rule barred evidence of the Easy Exit provisions of Hampton's marketing brochure. We thus need not address Hampton's arguments that the Krouses' contention fails because (1) the Krouses failed to provide the whole trial transcript; and (2) notwithstanding the court's ruling granting Hampton's motion in limine No. 1, the jury did consider Hampton's marketing brochure because it was received in evidence during Hampton's case-in-chief.
Hampton complains that the five-day trial was held on January 10, 11, 12, 17 and 18, 2006, but the Krouses designated only a portion of the reporter's transcript of the trial (specifically, January 9, 10, 11 and 12) and left out the reporter's transcript for January 17 and 18. The opening statements to the jury presented by the parties' counsel were not transcribed, and the record does not include a transcript of the closing arguments to the jury.
II. SUFFICIENCY OF THE EVIDENCE
The Krouses also contend that substantial evidence did not support the jury's finding that the Krouses breached the listing agreement. We reject this contention, but conclude the jury's $9,500 damages award in favor of Hampton must be reversed because it is unsupported by evidence and is thus speculative.
A. Standard of Review
"Under [the substantial evidence standard of review], we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn." (Howard v. Owens Corning (1999) 72 Cal. App.4th 621, 630-631.) To be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. (Id. at p. 631; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal. App.4th 1094, 1100.) However, substantial evidence is not synonymous with any evidence. (Oregel, supra, at p. 1100; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal. App.3d 864, 871.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal. App.4th 634, 652.)
B. Analysis
"It is . . . well settled in this state that a withdrawal-from-sale clause in an exclusive-right-to-sell contract is lawful and enforceable, a claim for compensation under such a clause being not a claim for damages for breach of that contract but a claim of indebtedness under its specific terms." (Blank v. Borden (1974) 11 Cal.3d 963, 969.)
Here, paragraph 4.A. (3) of the listing agreement obligated the Krouses, as the sellers, to pay Hampton the specified 5 percent commission in the event the property was withdrawn from sale without Hampton's prior written consent during the listing period. The jury found that the Krouses had breached the listing agreement, but the special verdict did not specify the exact theory of liability on which the jury based its finding.
The jury answered "Yes" to query No. 4 of the breach of contract special verdict, which asked they jury: "Did [the Krouses] fail to do something that the [listing agreement] required them to do?"
The partial trial transcript shows that after Hampton procured Gould's full price offer to buy the property, the Krouses refused to respond to it. Calderon testified that Thomas's attorney told her that she was not to contact Thomas, and she should speak with the attorney. Calderon also testified that she later received a fax from Thomas requesting cancellation of the listing agreement pursuant to the Easy Exit, and Schwarz told Calderon that Hampton was not going to honor the cancellation request because the Easy Exit was not part of the listing agreement. The foregoing evidence is sufficient to sustain a jury finding that the Krouses breached the listing agreement by withdrawing their property from sale during the listing period without Hampton's prior written consent.
Our analysis, however, does not end here. Civil Code section 3300 provides that "[f]or the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." Civil Code section 3301, however, provides that "[n]o damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin." (Italics added.) As this court explained in Piscitelli v. Friedenberg (2001) 87 Cal. App.4th 953, 989 (Piscitelli), "[w]hatever its measure in a given case, it is fundamental that 'damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.' " (Italics added.)
Here, as the parties' counsel acknowledged during oral argument, there is no evidence in the trial record to support the jury's $9,500 damages award. Because that award is therefore speculative, it cannot stand and must be reversed. (Civ. Code, § 3301; Piscitelli, supra, 87 Cal. App.4th at p. 989.) Although Hampton claimed in its complaint that the Krouses were contractually obligated to pay it the full 5 percent commission in the amount of $37,250 on Gould's $745,000 offer to purchase the Krouses' property, it did not challenge the $9,500 award in the trial court and did not separately appeal in this case.
In the breach of contract special verdict form, the jury found that the Krouses breached the listing agreement. Specifically, the jury answered "Yes" to the question, "Did [the Krouses] fail to do something that the contract required them to do?" The jury also answered "Yes" to the question, "Was Hampton Realty harmed by that failure?" When asked, "What damages resulted from the failure?" the jury answered "$9,500."
III. DENIAL OF THE KROUSES' MOTION FOR NEW TRIAL
The Krouses next contend that the court improperly denied their new trial motion because the jury verdict was contrary to law and inconsistent both with itself and the court's subsequent ruling on Hampton's declaratory relief claim. We reject this contention.
A. Background
The Krouses brought a motion for new trial on three principal grounds. First, citing Code of Civil Procedure section 657, subdivision 6, they asserted a new trial was necessary because the jury's verdict against them on Hampton's breach of contract claim was so inconsistent both with itself and with the court's March 2006 decision in their favor on Hampton's declaratory relief claim on "identical issues" that it was " 'against law' " within the meaning of that statute. Second, the Krouses maintained they were also entitled to a new trial under Code of Civil Procedure section 657, subdivision 6 because the court's decision in their favor on Hampton's declaratory relief claim showed that the evidence upon which the jury's breach of contract verdict against them rested was insufficient. Last, the Krouses claimed they were entitled to a new trial under Code of Civil Procedure section 657, subdivision 1 because the court's granting of Hampton's motion in limine No. 1 (discussed ante) to exclude evidence of the provisions of Hampton's marketing brochure was improper and denied the Krouses a fair trial. Hampton filed written opposition to the motion. Following a hearing, the court issued a written tentative ruling on the Krouses' new trial motion stating simply that the motion was denied. Following a hearing, the court confirmed that ruling.
B. Analysis
The Krouses contend the court should have granted them a new trial because Hampton was seeking in its breach of contract claim to recover the full $37,250 commission based on Gould's full price ($745,000) offer, but the jury only awarded Hampton damages in the amount of $9,500 after it found that the Krouses had breached the listing agreement, and thus the jury's verdict was inconsistent with itself. This contention is moot in light of our conclusion that the jury's award of damages was speculative and must be reversed. As already noted, Hampton has not separately appealed the judgment to contest the amount of damages awarded by the jury.
The Krouses' complaint that the jury's verdict against them was inconsistent with the court's March 2006 written decision in their favor on Hampton's declaratory relief claim is also unavailing. In that decision, the court found under Civil Code section 1086, subdivision (f)(1), that Hampton "is entitled to its commission per the listing agreement when it procures a buyer who offers to purchase the property at the price and terms set forth in the listing agreement, or on any price and terms acceptable to the seller. The listing agreement did not state any terms. Therefore, any offer to purchase which includes a price and terms, by definition would not, by definition, be on terms authorized by the listing. If the offer was for $745,000, a full[ ]price offer, but demanded that escrow be for one year, the sellers would have been well within their rights to reject such a term." (Italics added.) The court also found that Hampton "does not have the right to its commission by the mere presentation of a full[ ]price offer, unless no terms are attached." The court then found in favor of the Krouses on Hampton's declaratory relief claim in which Hampton sought a determination that the Krouses owed it the $37,250 commission.
Civil Code section 1086, subdivision (f)(1) provides: "An 'exclusive right to sell listing' is a listing whereby the owner grants to an agent, for a specified period of time, the exclusive right to sell or to find or obtain a buyer for the property, and the agent is entitled to the agreed compensation if during that period of time the property is sold, no matter who effected the sale, or the listing agent receives and presents to the owner any enforceable offer from a ready, able, and willing buyer on terms authorized by the listing or accepted by the owner. The exclusive right to sell listing may provide for compensation of the listing agent if the property is sold within a specified period after termination of the listing to anyone with whom the agent has had negotiations before that termination."
The foregoing record does not show, as the Krouses contend, that the jury's verdict against the Krouses on Hampton's breach of contract claim was inconsistent with the court's decision against Hampton on its declaratory relief claim, as the court did not address the issue of whether the Krouses breached the listing agreement by withdrawing their property from sale during the listing period without Hampton's prior written consent, as Hampton alleged in its complaint.
The Krouses' remaining claim in their new trial motion that the court's decision in their favor on Hampton's declaratory relief claim showed that the evidence upon which the jury's breach of contract verdict against them rested was insufficient, was not supported by the record. For reasons already discussed, we have concluded that substantial evidence supports the jury's finding that the Krouses breached the listing agreement. Thus, the court's denial of the motion on this ground was not in error.
Finally, we have already concluded that the court properly granted Hampton's motion in limine No. 1 to exclude evidence of the provisions of Hampton's marketing brochure. Thus, the court's denial of the Krouses' motion was not in error with respect to this ground.
IV. ATTORNEY FEES AND COSTS
Because Hampton did not prevail on any of the three causes of action (breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief) alleged in its complaint, and the Krouses did not prevail on either of the causes of action (intentional misrepresentation and violation of Bus. & Prof. Code, § 17200) alleged in their cross-complaint, the record shows there was no prevailing party in this case. Accordingly, the award of contractual attorney fees and costs in favor of Hampton must be reversed.
The attorney fee clause in paragraph 15 of the listing agreement provides: "In any action, proceeding or arbitration between Seller and Broker regarding the obligation to pay compensation under this agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker . . . ." (Italics added.)
DISPOSITION
The judgment is reversed in part and affirmed in part. The jury's $9,500 breach of contract damages award is reversed, as is the award of contractual attorney fees and costs in favor of Hampton. As so modified, the judgment is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.