Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC332145, Ralph W. Dau, Judge.
Tyron J. Sheppard for Defendant and Appellant.
Onwaeze & Nwabuzor and Ogochukwu Victor Onwaeze for Plaintiff and Respondent.
KLEIN, P. J.
Chris Nwadiwe appeals a judgment entered in favor of plaintiff Pascal Adigwe pursuant to which a jury awarded Adigwe $106,000 in damages and the trial court, sitting in equity, declared a resulting trust in Adigwe’s favor with respect to a fourplex in Bellflower. We reject Nwadiwe’s various claims of error and affirm the judgment.
BACKGROUND
1. Purchase of the property.
In September of 1998, Nwadiwe, a married man, purchased a fourplex in Bellflower for $405,000, taking title in his sole name. The $90,000 down payment was provided by Nwadiwe’s cousin, plaintiff Adigwe, and the balance of $315,000 was financed by a loan obtained by Nwadiwe. Nwadiwe also put $5,000 of his own money into escrow but received a credit out of the escrow in the amount of $2,584.03.
2. Adigwe’s claim of ownership.
Adigwe, a federal congressman in Nigeria, claimed Nwadiwe agreed to purchase the property for Adigwe and hold title for Adigwe’s benefit. Nwadiwe was to pay Adigwe the rental income from the property and transfer title to Adigwe at some later date. Nwadiwe was to receive any tax benefit from the property and a management fee, which at first would be 5 percent of the rents, but as the property matured, would increase to 10 percent.
Adigwe requested transfer of title to the property shortly after the purchase because he had to disclose his assets in order to run for political office in Nigeria. Nwadiwe initially said it would take time to transfer title, he was putting the papers together and Adigwe should be patient. Nwadiwe later told Adigwe he had discovered Adigwe had to be present in the country to effect the transfer.
In November of 1999, Adigwe asked an attorney visiting Los Angeles to assist Nwadiwe to transfer the title. The attorney presented a letter of acknowledgment that recited, among other things, the rental income of the property was $4,150 per month and the monthly mortgage payment was $2,523.56. The attorney reported Nwadiwe became upset that Adigwe had brought a third party into a matter that concerned “two brothers.” Instead of signing the document presented by Adigwe’s attorney, Nwadiwe gave the attorney a written acknowledgment that he had received $90,000 from Adigwe.
Nwadiwe sent Adigwe accountings and information related to the income and expenses of the property. Nwaidwe initially made no payments to Adigwe, claiming the property was not producing income. Nwadiwe commenced making quarterly payments of $2,000 in April of 2000. Nwadiwe made six such payments then made no further payments until April of 2003 when Nwadiwe sent Adigwe $10,000. Nwadiwe sent a final payment of $80,000 in December of 2004, for a total of $102,000. Adigiwe believed these payments represented money Nwadiwe previously had withheld.
Adigwe visited this country in March of 2005. He telephoned Nwadiwe to arrange a meeting but Nwadiwe first claimed he had oral surgery then failed to appear for a scheduled meeting. On April 15, 2005, Adigwe sued Nwadiwe seeking damages for violation of their agreement and a resulting trust with respect to the property.
3. Nwadiwe’s claim the $90,000 was a loan.
Nwadiwe claimed Adigwe loaned him the $90,000 as consideration for Nwadiwe watching over Adigwe’s younger brother, Chukwuma Adigwe (Chukwuma), who moved to Los Angeles at about the same time as the loan and lived with several roommates, including Nwadiwe’s brother, in an apartment complex Nwadiwe managed. Nwadiwe claimed Adigwe preferred to loan him $90,000 to invest in real estate, rather than pay his brother’s expenses as they arose, because the loan would be repaid but the expenses would not. Nwadiwe agreed to ensure that Chukwuma lived here comfortably and eventually got immigration papers. Nwadiwe claimed he paid Chukwuma’s rent, he paid an immigration lawyer $2,500 to help Chukwuma get a visa, he assisted Chukwuma with two weddings and one divorce, he helped to bury Chukwuma’s second wife and he made many payments in cash to Chukwuma or for his benefit.
Nwadiwe promised to repay the loan at the rate of $500 per month. Nwadiwe claimed he explained details of the operation of the property in letters and emails to Adigwe so that Adigwe would understand why Nwadiwe was unable to make payments on the loan, which Adigwe knew were dependent on rental income. When the attorney came to Nwadiwe’s home in 1999, Nwadiwe refused to sign the acknowledgment because it did not set forth their agreement. Nwadiwe did, however, acknowledge in writing that he had received $90,000 from Adigwe.
Nwadiwe borrowed $40,000 in May of 1999, using the property as collateral. At that time Nwadiwe had not yet made any payments to Adigwe because he was having trouble managing the property. Nwadiwe claimed he also was having difficulty with bills and needed to take care of those matters before he repaid Adigwe. Nwadiwe again borrowed against the property in December of 2000 in the total amount of $120,000. In November of 2002, Nwadiwe refinanced the property with a first trust deed and note in the amount of $472,500. Nwadiwe used the proceeds of the refinancing to repay the previous loans. Nwadiwe’s wife’s name was placed on the title when Nwadiwe refinanced. Nwadiwe admitted he did not inform Adigwe about any of these loans.
Nwadiwe testified he was placing himself in jeopardy by accepting money from Adigwe based on his suspicions as to the source of the $90,000. Nwadiwe had received threats from Chukwuma and had to sell one of his other properties to raise the $80,000 he paid Adigwe in December of 2004.
4. Other evidence.
Chukwuma admitted he shared an apartment with Nwadiwe’s brother but testified he paid his own rent and shared expenses with his roommates. The money Nwadiwe paid toward Chukwuma’s immigration expenses was wired to Nwadiwe by Adigwe. Chukwuma claimed Nwadiwe paid only $100 toward the funeral of his wife and that it is customary in his country for relatives to contribute toward funerals.
Chukwuma testified he was involved in looking for property that Adigwe might purchase and he heard Nwadiwe tell Adigwe, on the telephone, that Nwadiwe would transfer title to the property to Adigwe after some time. Also, when Nwadiwe purchased the property, Chukwuma heard Nwadiwe tell the real estate agent, “I’m buying this property for my cousin, and . . . I don’t want my wife[‘s] name to be involved in this property.”
Emmanuel Obi testified that in 1998, Nwadiwe told him that Adigwe sent him $90,000 to purchase property for Adigwe. Nwadiwe said he could not put title to the property in Adigwe’s name because Adigwe had no social security number and, if Nwadiwe sold, he would lose $10,000 Nwadiwe had put into the property. Chukwuma came to Obi’s home three times and demanded that Obi tell Nwadiwe either to sell the property or put it in Adigwe’s name. The second time Chukwuma threatened that someone would be killed if Nwadiwe did not comply. Obi conveyed these statements to Nwadiwe.
5. Circumstances surrounding the $80,000 payment.
Nwadiwe testified that, in November of 2004, Emmanuel Udensi, Nwadiwe’s cousin, came to Nwadiwe and indicated he had heard from Adigwe’s father that Nwadiwe was refusing to repay a loan and Adigwe was threatening to lodge a complaint with Nwadiwe’s village. Thereafter, Pastor Ubido, who is very close to Adigwe’s family, suggested a meeting at which Nwadiwe agreed to repay Adigwe. At the meeting, Obi and Pastor Ubido told Nwadiwe they had achieved a settlement and that Nwadiwe should repay the money. Further, Adigwe did not require interest, just return of the money. Obi testified it is the custom in their village to have the elders suggest a resolution of disputes. However, the parties to the dispute are not bound by the suggested resolution. After the transfer of the $80,000, bringing the total repaid to $102,000, Nwadiwe thought the matter was resolved and he owned Adigwe nothing further.
However, Adigwe testified he never asked Pastor Ubido or Obi to intervene in the dispute with Nwadiwe. Adigwe claimed he spoke with Obi about this matter only after the $80,000 was deposited into Adigwe’s account.
5. Adigwe’s computation of damages for breach of the agreement.
In closing argument, Adigwe’s counsel conceded Nwadiwe had paid Adigwe a total of $102,000, but noted Nwadiwe had not accounted for $160,000 in equity and argued Adigwe was entitled to $2,000 in rental income per quarter for each of the 24 quarters that Nwadiwe owned the property or $48,000. “So if you add this up, the balance owed by the defendant as of today, and what we’re asking for is $106,000 . . . .”
6. The jury’s special verdict.
As relevant to this appeal, on August 7, 2006, the jury found in a special verdict that Adigwe’s claim for breach of contract arose less than two years before Adigwe filed the lawsuit on April 19, 2005, the contract terms were clear enough to permit the parties to understand what was required of each, Adgiwe did all or substantially all of the significant things the contract required of him, Nwadiwe failed to do something required by the contract, Adigwe was harmed by Nwadiwe’s failure to perform and Adigwe suffered damages in the amount of $106,000. The jury answered each question on the special verdict unanimously.
7. The trial court’s ruling on Adigwe’s request for equitable relief.
On August 8, 2006, the trial court sitting in equity found, “based on the evidence and the jury’s verdict, a resulting trust arose in favor of [Adigwe]. [Adigwe] argued to the jury that he was entitled to damages in the amount that [Nwadiwe] had encumbered the property following the purchase, and [Nwadiwe] argued that he had put up funds at closing beyond [Adigwe’s] $90,000 contribution. The jury found . . . Nwadiwe owed damages in the amount of $106,000 to plaintiff. [¶] The judgment filed by the court this date reflects the situation described.” The judgment awarded Adgiwe damages in the amount of $106,000, declared that Nwadiwe held title to the property in trust for Adigwe and ordered Nwadiwe to transfer title to Adigwe subject to the deed of trust in the principle sum of $472,500.
On August 15, 2006, Nwadiwe filed a request for a statement of decision, which the trial court ignored.
On September 20, 2006, the trial court conducted post trial hearings on Nwadiwe’s motions for new trial, to set aside the judgment and for judgment notwithstanding the verdict. The trial court took the motions under submission and denied them in a minute order filed later that day.
CONTENTIONS
Nwadiwe contends Adigwe improperly recovered on two mutually exclusive remedies, the finding of a resulting trust is not consistent with the facts and the trial court’s failure to render a statement of decision prevents application of the usual presumption in favor of the judgment, the trial court erroneously refused to instruct the jury on accord and satisfaction, the trial court improperly excluded evidence of a magazine article about Adigwe, the evidence does not support the jury’s finding that Adigwe’s complaint was timely and the award of damages for breach of contract is not supported by the evidence.
DISCUSSION
1. Mutually exclusive remedies.
Nwadiwe contends Adigwe was made whole by the award of damages, which included $160,000 in misappropriated equity. According to Nwadiwe, an award of full title to Adigwe constitutes a double recovery of the misappropriated equity in that title to the property includes any appreciation in equity while the property was held in trust. Nwadiwe further asserts his testimony at trial shows he used the proceeds of the refinancing to maintain and improve the property. Thus, Adigwe cannot recover damages and title to the property. Nwadiwe asserts that, by opting to pursue damages, Adigwe has abandoned the claim for equitable relief. (Buckmaster v. Bertram (1921) 186 Cal. 673; Walton v. Walton (1995) 31 Cal.App.4th 277, 293.) Nwadiwe argues that because Adigwe tried the damage claim to the jury and received an award compensating him for breach of contract, he cannot also obtain title to the property. (Raedeke v. Gibralter Sav. & Loan (1974) 10 Cal.3d 665, 671.)
This claim fails. Unlike the cases cited by Nwadiwe, equitable relief in the form of a resulting trust was not inconsistent with an award of damages for breach of contract. The resulting trust arises because Nwadiwe took title to the property for the benefit of Adigwe. The damages related to 1) Nwadiwe’s failure to account for rents received over the six years that Nwadiwe held title to the property, and 2) the increase in the debt recorded against the property in the amount of the new loans Nwadiwe obtained using the property as collateral. Contrary to Nwadiwe’s assertion, Nwadiwe did not prove, or even attempt to prove, that he used the proceeds of the loans to improve or maintain the property. Thus, both monetary damages and equitable relief were necessary in this case to give Adigwe the benefit of his bargain.
2. The evidence supports the trial court’s finding of a resulting trust.
a. Relevant principles.
“ ‘A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. [Citations.] Such a resulting trust carries out and enforces the inferred intent of the parties. [Citations.] “Ordinarily a resulting trust arises in favor of the payor of the purchase price of the property where the purchase price, or a part thereof, is paid by one person and the title is taken in the name of another. [Citations.] ‘The trust arises because it is the natural presumption in such a case that it was their intention that the ostensible purchaser should acquire and hold the property for the one with whose means it was acquired.’ [Citations.]” ’ [Citation.] . . . The trustee has no duties to perform, no trust to administer, and no purpose to pursue except the single purpose of holding or conveying the property according to the beneficiary’s demands. [Citation.]” (Estate of Yool (2007) 151 Cal.App.4th 867, 874-875.)
Clear and convincing proof is required to support a declaration of a resulting trust. (G.R. Holcomb Estate Co. v. Burke (1935) 4 Cal.2d 289, 299; Johnson v. Johnson (1987) 192 Cal.App.3d 551, 555-556.) However, on appeal we assume the trial court applied the correct standard and inquire only whether substantial evidence supports the trial court’s finding. (Viner v. Untrecht (1945) 26 Cal.2d 261, 267; Helm v. Zaches (1949) 94 Cal.App.2d 625, 628.)
b. Nwadiwe’s argument.
Nwadiwe asserts the trial court was required to render a statement of decision with respect to its equitable determination of a resulting trust and award of full title to Adigwe. Nwadiwe claims the trial court’s failure to provide a statement of decision, after a timely request, makes it impossible for this court to review the trial court’s ruling. Therefore, this court must conduct an independent review of the record and cannot employ the usual rule by which conflicts are resolved in favor of the judgment.
Nwadiwe’s request for a statement of decision asked the trial court to address: whether Adigwe proved by clear and convincing evidence that Nwadiwe held title pursuant to a resulting trust; whether Adigwe proved by clear and convincing evidence that he paid the entire purchase price for the property; whether Adigwe could enforce a resulting trust without tendering the purchase price, including the amount borrowed by Nwadiwe; whether the parties intended Adigwe to acquire full title when Adigwe never intended to assume the loan in Nwadiwe’s name; whether the matter was settled prior to the filing of the lawsuit and whether Adigwe was entitled to rents, misappropriated equity and full title.
Nwadiwe further contends the trial court’s finding of a resulting trust cannot be based solely on the jury’s verdict because the jury applied a preponderance of the evidence standard and a resulting trust must be based on clear and convincing evidence. Also, Adgiwe paid only $90,000 toward the purchase of the property and Nwadiwe paid $5,000 and used his credit to provide an additional $315,000. Absent proof that Nwadiwe lent the $5,000 or his credit to Adigwe, Adigwe was entitled to only a 22 percent interest in the property, not full title. (Viner v. Untrecht, supra, 26 Cal.2d at pp. 269-270.) Further, Adigwe cannot enforce even a 22 percent interest in the property without a tender of $90,000 because Adigwe has accepted repayment of that amount. Nwadiwe concludes the judgment conveying full title to Adigwe is not consistent with the facts of the case and must be reversed.
Nwadiwe also argues the trial court improperly found Nwadiwe and Adigwe entered into an express trust. However, the trial court found a resulting trust, not an express trust. Thus, we decline to address Nwadiwe’s express trust arguments.
c. Resolution.
Turning first to Nwadiwe’s assertion the trial court was obliged to render a statement of decision, Code of Civil Procedure section 632, provides that a superior court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” (Code Civ. Proc., § 632.) However, where “the trial is concluded within one calendar day or in less than eight hours over more than one day . . . the request must be made prior to the submission of the matter for decision.” (§632.)
Here, the jury trial lasted several weeks. Thereafter, based on the jury’s factual findings, the trial court addressed the equitable issues presented. (See A-C Co. v. Security Pacific Nat. Bank (1985) 173 Cal.App.3d 462, 474.) The hearing on the equitable issues commenced and was completed on the day following the jury’s verdict. Consequently, Nwadiwe was required to request a statement of decision with respect to the trial court’s finding of a resulting trust prior to submission of the matter for decision. Thus, Nwadiwe’s request for a statement of decision, made one week after the trial court entered judgment in favor of Adigwe, was not timely. Therefore, we employ the usual rules of appellate review, which provide that a trial court’s judgment is presumptively correct, error must be affirmatively demonstrated, and where the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718; Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.)
The evidence showed Adigwe essentially paid the entire down payment of $90,000. Both Nwadiwe and Adigwe testified a substantial down payment was required in order for the property to carry itself and produce income. Nwadiwe testified this was necessary in order for him to be able to repay the loan; Adigwe testified he wanted to avoid negative cash flow. Because both parties contemplated the rental income from the property, and not Nwadiwe, would repay the loan, the fact that Nwadiwe’s credit was used to obtain the loan should not give rise to an interest in the property. (See Johnson v. Johnson, supra, 192 Cal.App.3d at p. 559; Stone v. Lobsien (1952) 112 Cal.App.2d 750, 756.) Rather, the trial court properly viewed the situation as one in which Adigwe paid the consideration for the property and title was taken in Nwadiwe’s name. In these circumstances, the law presumes a resulting trust in Adigwe’s favor.
With respect to Nwadiwe’s claim of a pro tanto interest in the property based on his infusion of $5,000 into escrow, half of that amount was returned to Nwadiwe at the close of escrow. The trial court properly could conclude Nwadiwe’s actual contribution of $2,500 was de minimus compared to Adigwe’s contribution and that it was reasonable for Nwadiwe to put this relatively small amount of money into escrow in order to obtain the benefits the agreement afforded him, namely, the tax write-offs and the management fee.
Nwadiwe’s complaint that Adigwe has not accepted an obligation to pay the loan on the property has been avoided by the judgment which directs that the resulting trust in Adigwe’s favor be subject to the existing deed of trust in the principle sum of $472,500.
Nwadiwe’s claim Adigwe must tender the $90,000 that Nwadiwe repaid him similarly fails. The $102,000 Nwadiwe voluntarily paid Adigwe prior to the lawsuit and the $106,000 the jury awarded Adigwe represented amounts Adigwe was owed in rental income and equity that Nwadiwe removed from the property but failed to remit to Adigwe. No part of these amounts constituted repayment of the $90,000. Consequently, Adigwe has no obligation to tender $90,000 to Nwadiwe in order to recover full title to the property on a theory of resulting trust.
In sum, the record amply supports the trial court’s award of full title to the property to Adigwe, subject only to the existing first deed of trust in the amount of $472,500, on a theory of resulting trust.
3. The trial court properly refused to instruct the jury on accord and satisfaction.
Nwadiwe requested an instruction on accord and satisfaction based on Nwadiwe’s claim his payment of $80,000 to Adigwe under the agreement reached with the help of Emmanuel Obi and Pastor Ubido resulted in full settlement of their dispute. Nwadiwe contends the refusal to instruct on accord and satisfaction was error in that the facts adduced at trial with respect to the payment of the $80,000, if believed, demonstrated Adigwe’s agreement to accept a sum certain to resolve the dispute. Nwadiwe concedes that Adigwe denied negotiating a settlement, but Nwadiwe claims Adigwe was thoroughly impeached on this point and admitted he received $80,000 after speaking with the negotiators.
“A defendant asserting the defense of accord and satisfaction must establish ‘(1) that there was a “bona fide dispute” between the parties, (2) that the debtor made it clear that acceptance of what he tendered was subject to the condition that it was to be in full satisfaction of the creditor’s unliquidated claim, and (3) that the creditor clearly understood when accepting what was tendered that the debtor intended such remittance to constitute payment in full of the particular claim in issue.’ [Citation.]” (BII Finance Co. v. U-States Forwarding Services Corp. (2002) 95 Cal.App.4th 111, 126-127.)
The trial court summarized the relevant testimony before denying Nwadiwe’s request. The trial court noted Nwadiwe never testified that Adigwe told him “he would accept $80,000 to dispose of all claims.” Although Adigwe admitted he received the $80,000 and Obi “felt the matter was settled,” Obi did not testify there had been an agreement that if Nwadiwe paid $80,000, the matter would be settled. Further, Obi testified he did not receive a demand from Adigwe and “never reached any agreement on how much would be paid. [Adigwe] did not ask me to settle this matter.” The trial court further observed there was no testimony from Pastor Ubido. Thus, “[T]here simply is no evidence that [Adigwe] agreed to accept the money in full satisfaction of his claim. All that we have is that [Nwadiwe] surmised that that’s what would happen.”
The foregoing summary of the relevant testimony reveals the propriety of the trial court’s ruling. Indeed, Nwadiwe did not testify that he sent Adigwe $80,000 on condition its acceptance would constitute full payment. Nor did Nwadiwe claim that he discussed with Adigwe before sending the $80,000 that it would resolve their dispute. Rather, Nwadiwe claimed he repaid the loan in full. Thus, accord and satisfaction was not in issue. It follows that Nwadiwe was not entitled to an instruction on that theory.
4. The trial court committed no reversible error in excluding evidence of a magazine article about Adigwe.
The trial court granted Adigwe’s motion in limine to exclude evidence of an article in a Nigerian magazine that indicated Adigwe was being investigated for financial fraud crimes. Nwadiwe asserts this article was not offered to prove Adigwe’s character but to show Nwadiwe’s fear of Adigwe and to explain why Nwadiwe wanted to repay Adigwe as quickly as possible. (People v. Hill (1992) 3 Cal.4th 959, 987, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Assuming for the sake of discussion the magazine article was not hearsay because it was offered to show Nwadiwe’s state of mind, the trial court properly could exclude evidence of the article under Evidence Code section 352 on the ground its probative value was substantially outweighed by the probability its admission would necessitate undue consumption of time, create substantial danger of undue prejudice, confuse the issues, or mislead the jury. The article contained unproven allegations of fraud. Thus, it had the potential of inflaming the jury based on matters that were irrelevant to the issues presented to the jury. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 597.)
Moreover, the trial court permitted Nwadiwe to testify he suspected the source of the loan was such that Nwadiwe was placing himself in danger by accepting it, and that Chukwuma had threatened that harm would befall Nwadiwe if he did not resolve the dispute with Adigwe. The magazine article would have been cumulative to this evidence.
Consequently, no abuse of the trial court’s discretion appears in the exclusion of the magazine article from evidence. (People v. Carey (2007) 41 Cal.4th 109, 128; Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147.)
5. The evidence supports the jury’s finding that Adigwe’s complaint was timely.
Nwadiwe contends Adigwe’s complaint, filed in April of 2005, was not timely under the two-year statute of limitations that applies to breach of an oral promise or the four-year statute of limitations that applies to imposition of a resulting trust. (Code Civ. Proc., §§ 339, subd. 1, 343.) Nwadiwe notes Adigwe’s original verified complaint alleged that Nwadiwe repudiated their agreement as early as September 29, 1998, and, at the latest, in January of 2001. Nwadiwe bases this assertion on an allegation in the original verified complaint which states: “On or about January 2001, [Adigwe] demanded of [Nwadiwe] that he convey legal title to the property . . . and that he provide complete accounting of the rents received on the property.” Nwadiwe asserts Adigwe’s admission that he demanded performance in January of 2001 conclusively demonstrates the complaint was not timely.
Nwadiwe argues the trial evidence also supported this view. Nwadiwe points to his refusal to sign the letter of acknowledgment that Adigwe’s attorney presented in November of 1999. Nwadiwe notes the letter of acknowledgment recited that the property had been purchased with $90,000 provided by Adigwe and the balance of $315,000 provided by Nwadiwe’s loan. The acknowledgement further indicated their agreement was to hold title to the property in proportion to their investment. Nwadiwe claims it is difficult to believe Nwadiwe would refuse to agree to the terms of the letter if, in fact, he had agreed to convey full title to Adigwe. Thus, the refusal to sign the letter of acknowledgment triggered the running of the statute of limitations. Nwadiwe concludes the trial court should have resolved the statute of limitations issue in his favor prior to trial.
The applicable law is well settled. “ ‘While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487, quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320; Estate of Fincher (1981) 119 Cal.App.3d 343, 351.)
Here, Nwadiwe demurred to the first amended complaint based on the allegation in the original verified complaint that Adigwe was aware of Nwadiwe’s intent not to perform as early as 1998 and certainly by January 1, 2001. However, the complaint did not allege that Nwadiwe refused to convey title at that time. Further, the evidence reasonably supported Adigwe’s claim that Nwadiwe did not refuse to convey title until March of 2005. Prior to that time, Nwadiwe urged Adigwe to rely on their close personal and family relationship, gave Adigwe plausible explanations for the failure to convey, regularly accounted to Adigwe with respect to the income and expenses of the property and repeatedly indicated he would convey title when Adigwe came to this country.
With respect to the Nwadiwe’s refusal to sign the letter of acknowledgment presented to him in November of 1999 by Adigwe’s attorney, Nwadiwe did not demurrer to Adigwe’s complaint or seek summary judgment based thereon. Rather, at trial, Nwadiwe argued his refusal to sign the acknowledgment demonstrated that Adigwe never previously sought full title to the property, thereby bolstering Nwadiwe’s argument the $90,000 was a loan. However, in his motion for judgment notwithstanding the verdict, Nwadiwe argued the refusal to sign the acknowledgment put Adigwe on notice that Nwadiwe would not even convey a percentage of the title to Adigwe, let alone full title, and thus commenced the running of the statute of limitations.
We are not persuaded that Nwadiwe’s refusal to sign the acknowledgment commenced the running of the statute of limitations. Although Nwadiwe refused to sign the acknowledgment, he did acknowledge receipt of Adigwe’s $90,000 and he expressed indignation that Adigwe would doubt his commitment to their agreement by permitting a third party to become involved in a matter that involved “two brothers.” Further, Adigwe’s request for partial title is explained by an email from Adigwe to Nwadiwe dated April 6, 2002, in which Adigwe complained that Nwadiwe previously had promised Adigwe’s “name will be partially reflected in the document and before one year fully reflected . . . .” The request for a percentage of the title in November of 1999 is consistent with this statement of Adigwe’s understanding of the agreement with Nwadiwe that a conveyance of partial title would precede a transfer of full title.
Moreover, as noted above, Nwadiwe continued to account to Adigwe with respect to the income and expenses of the property after the November 1999 refusal and continued to assure Adigwe that he would abide by their agreement. Given these circumstances, the jury reasonably could find the statute of limitations did not commence to run until there was an unequivocal repudiation of the contract, which did not occur in this case until March of 2005 when Nwadiwe refused to meet with Adigwe.
In sum, because the facts adduced at trial support the jury’s finding, Nwadiwe’s attack on the timeliness of Adigwe lawsuit fails.
6. The damages awarded for breach of contract is supported by the evidence.
Analogizing the situation presented in this case to an “ordinary contract for the sale of real property,” (AOB 19) Nwadiwe argues Adigwe failed to tender the balance of the purchase price and the damages awarded by the jury were not authorized by Civil Code section 3306. We address these points separately below.
a. The breach of contract.
Nwadiwe contends he was never in breach of contract because Adigwe never tendered the balance on the purchase price of the property. Nwadiwe notes that, in order to establish a purchase money resulting trust, the claimant must plead and prove an obligation to pay the full purchase price with cash or credit. (Viner v. Untrecht, supra, 26 Cal.2d at p. 269.) Nwadiwe argues there must be performance or tender of performance to put the other party in default. (Pittman v. Canham (1992) 2 Cal.App.4th 556, 559.) Nwadiwe claims the jury’s finding that Adigwe did all or substantially all of the significant things the contract required him to do is not supported by substantial evidence in that Adigwe admitted at trial that he never tendered any funds beyond the initial $90,000, and admitted he did not demand legal title until March 25, 2005. Even if the alleged contract did not obligate Adigwe to pay Nwadiwe’s purchase money loan, such an agreement must be implied.
Nwadiwe further asserts the jury’s finding that Nwadiwe failed to do something the contract required him to do is not supported by the evidence because Nwadiwe’s duty to convey title to Adigwe under the alleged contract never arose. Nwadiwe notes the evidence was uncontroverted that Adigwe never tendered payment of the purchase money loan. Nwadiwe concludes the jury’s finding in Adigwe’s favor on the breach of contract cause of action must be reversed.
This contention fails because the transaction in dispute was not an “ordinary contract for the sale of real property” in which delivery of a deed and payment of the purchase price are concurrent conditions as was the case in Pittman. Rather, Nwadiwe took title to property that Adigwe purchased. The contract Nwadiwe breached was the oral agreement to convey the title to Adigwe.
b. The amount of the damages awarded.
Continuing his analogy to cases involving the breach of a contract for the sale of real property, Nwadiwe contends Adigwe’s damages are limited by Civil Code section 3306, to the price paid, expenses incurred in examining title, the difference between the price paid and the value of the property at the time of the breach, the expenses incurred in preparing to enter upon the land, consequential damages according to proof and interest. Applying this statute here, Nwadiwe asserts Adigwe can recover only the $90,000 he contributed toward the purchase price. Thus, there is no evidence to support the jury’s award of damages in the amount of $106,000, in that the evidence was uncontroverted that Nwadiwe paid a total of $102,000 as of December 2004.
Civil Code section 3306 provides: “The detriment caused by the breach of an agreement to convey an estate in real property, is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach, the expenses properly incurred in preparing to enter upon the land, consequential damages according to proof, and interest.”
Nwadiwe further argues the misappropriation of equity claim is an improper attempt by Adigwe to recover the difference between the price paid and the value of the property at the time of the breach, which is authorized by Civil Code section 3306. Nwadiwe complains that, because Adigwe offered no proof of the value of the property at the time of the breach, the jury had no basis upon which to calculate damages under Civil Code section 3306. Nwadiwe objects to Adigwe’s argument that his refinancing of the property was a misappropriation of equity. According to Nwadiwe, this is not an allowable measure of damages and, even if it were, Adigwe would have to show that Nwadiwe made improper use of the loan proceeds. Also, there is no provision in Civil Code section 3306 for recovery of loss of rental income. (Stevens Group Fund IV v. Sobrato Development Co. (1991) 1 Cal.App.4th 886, 892.) Further, there was no evidence of the net rental income or Nwadiwe’s management fee presented at trial. Adigwe’s testimony that Nwadiwe promised to remit profits of $2,000 per quarter fails to demonstrate that the property, in fact, generated profit and Nwadiwe’s income tax returns show a loss for the years 2001 through 2004.
As with the previous argument, Nwadiwe’s attempt to liken this case to one involving the breach of a contract for the sale of real property is not persuasive. Thus, Nwadiwe’s reliance on Civil Code section 3306 is misplaced. It applies where there is a failure to convey in a contract for purchase of real property between a buyer and a seller. In this case, Nwadiwe and Adigwe were not in a buyer/seller relationship. Rather, the gravamen of the complaint was the failure of a trustee to convey title to the beneficiary and to account for the proceeds of the property. Adigwe was entitled to lost rental income, which the jury reasonably could calculate at the rate of $2,000 per quarter based not only on Adigwe’s testimony, but also Nwadiwe’s conduct in paying that amount to Adigwe for six quarters in 2000 and 2001. The jury was entitled to disregard the loss Nwadiwe claimed on his tax returns with respect to the operation of the property and, to the extent Nwadiwe claims he used the loan proceeds to improve the property, Nwadiwe failed to present evidence of such improvement.
In sum, the amount of the damages awarded by the jury finds substantial support in the record.
DISPOSITION
The judgment is affirmed. Adigwe shall receive costs on appeal.
We concur:
KITCHING, J., ALDRICH, J.