(Citing Chan v. Title Ins. Trust Co. (1952) 39 Cal.2d 253 [ 246 P.2d 632]; Rubin v. Fuchs (1969) 1 Cal.3d 50 [ 81 Cal.Rptr. 373, 459 P.2d 925]; 1 Miller Starr, Cal. Real Estate (2d ed. 1989) § 1:135, p. 488.)

Although it concedes it failed to perform by tendering the balance of the purchase price as required under the VLPA, Equassure contends its obligation to do so was excused because it was dependent on the de la Cruzes's performance of several conditions precedent-delivering marketable title, obtaining a residential property report and removal of the tenants and storage containers from the property. Equassure relies on Rubin v. Fuchs (1969) 1 Cal.3d 50 (Rubin) to support its argument that these requirements were conditions precedent to its own performance. In Rubin a buyer agreed to purchase certain real property from the seller for $30,000 in cash to be deposited before the close of escrow and execution of a purchase money deed of trust for the balance.

[Citations.] Instead, whenever possible the courts will construe promises in a bilateral contract as mutually dependent and concurrent. [Citations.]" (Rubin v. Fuchs (1969) 1 Cal.3d 50, 53-54; see alsoKatemis v. Westerlind (1953) 120 Cal.App.2d 537, 546.) "There are . . . numerous cases holding or indicating that in respect to an escrow to effectuate a purchase and sale of real property the duty of the seller to deposit necessary instruments and the duty of the buyer to deposit the necessary funds are concurrently conditional.

Indeed, the loans could not be funded nor could the escrows close on the scheduled closing date because Overseas failed to comply with its escrow obligations. This case is more closely analogous to Rubin v. Fuchs (1969) 1 Cal.3d 50 [ 81 Cal.Rptr. 373, 459 P.2d 925], a case which the Pittman court distinguished. ( Pittman v. Canham, supra, 2 Cal.App.4th p. 561.)

“[P]rovisions of a contract will not be construed as conditions precedent in the absence of language plainly requiring such construction.” Rubin v. Fuchs, 459 P.2d 925, 928 (Cal. 1969); see Corbrus, LLC v. 8th Bridge Cap., Inc., No. 219CV10182CASAFMX, 2021 WL 2781811, at *13 (C.D. Cal. July 1, 2021); Barroso v. Ocwen Loan Servicing, LLC, 146 Cal.Rptr. 3D 90, 97 (Cal.Ct.App. 2012).

"The rule is that provisions of a contract will not be construed as conditions precedent in the absence of language plainly requiring such construction." Rubin v. Fuchs, 1 Cal.3d 50, 53, 459 P.2d 925, 928 (1969). "Instead, whenever possible the courts will construe promises in a bilateral contract as mutually dependent and concurrent."

The phrase " 'Subject to' is generally construed to impose a condition precedent" under California contract law. Rubin v. Fuchs, 1 Cal.3d 50, 54 (1969). As a result, Finn asserts that every single term and condition in the SPA is a condition precedent to his Payment Obligations because Section 1.2 of the SPA states that his Payment Obligations are "[s]ubject to the terms and conditions of this Agreement . . ."

This approach has been followed in California. ( Yamanishi v. Bleily Collishaw,Inc. (1972) 29 Cal.App.3d 457, 462-463 [ 105 Cal.Rptr. 580]; see also Rubin v. Fuchs (1969) 1 Cal.3d 50, 53 [ 81 Cal.Rptr. 373, 459 P.2d 925] [stating that "provisions of a contract will not be construed as conditions precedent in the absence of language plainly requiring such construction"].) A contract clause that has been construed in this fashion is sometimes referred to as a "pay when paid" rather than a "pay if paid" provision.

But "stipulations in an agreement are not to be construed as conditions precedent unless such construction is required by clear, unambiguous language; and particularly so where a forfeiture would be involved or inequitable consequences would result. [Citations.]" ( Alpha Beta Food Markets v. Retail Clerks Union Local 770 (1955) 45 Cal.2d 764, 771, 291 P.2d 433 ( Alpha Beta Food ); see also Rubin v. Fuchs (1969) 1 Cal.3d 50, 53, 81 Cal.Rptr. 373, 459 P.2d 925 [contract provisions are not construed as conditions precedent in the absence of language plainly requiring such construction]; City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 493, 143 Cal.Rptr.3d 438.) Because "such conditions are not favored by the law, [they] are to be strictly construed against one seeking to avail [it]self of them. [Citation.]"

"The existence of a condition precedent normally depends upon the intent of the parties as determined from the words they have employed in the contract. [Citation.]" (Realmuto v. Gagnard (2003) 110 Cal.App.4th 193, 199.) But "stipulations in an agreement are not to be construed as conditions precedent unless such construction is required by clear, unambiguous language; and particularly so where a forfeiture would be involved or inequitable consequences would result. [Citations.]" (Alpha Beta Food Markets v. Retail Clerks Union Local 770 (1955) 45 Cal.2d 764, 771 (Alpha Beta Food); see also Rubin v. Fuchs (1969) 1 Cal.3d 50, 53 [contract provisions are not construed as conditions precedent in the absence of language plainly requiring such construction]; City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 493.) Because "such conditions are not favored by the law, [they] are to be strictly construed against one seeking to avail [it]self of them. [Citation.]" (Antonelle v. Kennedy & Shaw Lumber Co. (1903) 140 Cal. 309, 315.)